MA MI Vs. KALLANDER AMMAL

JUDGEMENT

(1.) THIS is an appeal from the decree of the High Court at Rangoon reversing the decree of the District Court of Pegu. The suit was brought by the respondent Kallander Ammal, to recover the whole, or in the alternative, a part of the estate of her deceased husband, Sheik Moideen, who died intestate on the 29th February 1920.

(2.) IN her plaint she claims to be the sole heir of her deceased husband, and alleges that the first defendant, Ma Mi, falsely claims to have been his lawful wife, and that the second defendant Mahamed Eusoof, falsely claims to be the legitimate son of the deceased Sheik Moideen by one Ma Kin; and that neither of them has any claim to any portion of or interest in the estate of the deceased. Notwithstanding which, as she alleges, the defendants have been withholding the property of the deceased from her. The defendants filed a joint written statement in which they denied that the plaintiff was heir to the estate, and pleaded that prior to his death the deceased divorced the plaintiff according to Mahomedan Law, and that the said divorce was communicated to the plaintiff, and the plaintiff thereafter ceased to be the wife of the deceased if she was legally married to him at any time. They also pleaded that as widow and son of the deceased they were his only heirs and legal representatives.

(3.) THE plaintiff appealed to the High Court at Rangoon, who held that there was no legal evidence on record of the contents of the divorce document, as the evidence tendered in the absence of the document itself was not secondary evidence within the meaning of Section 63 of the Indian Evidence Act. They accordingly held that a divorce by talaknama or writing was not proved; and being further of opinion that no oral divorce was proved by the evidence on record, they allowed the appeal and decreed the plaintiffs' suit.