TAN MA SHWE ZINAND Vs. KHOO SOO CHONG

JUDGEMENT

(1.) The suit out of which this appeal has arisen was brought on 7 March 1934, by respondent; 1, Khoo Soo Chong, in the High Court at Rangoon in its original civil jurisdiction. The purpose of the suit was to establish that the plaintiff is the sole heir to the estates of his uncle, Khoo Boon Tin, and of Tan Ma Thin, this uncle's widow, either (1) as their adopted son, or (2) as the former's nephew. It has been held in the High Court, both at first instance and on appeal, that the plaintiff failed to prove that the alleged adoption was in fact made, and though this issue has been raised again before the Board, their Lordships see no reason to disturb the concurrent findings on this point. The facts which bear upon the plaintiff's claim as nephew may be shortly stated. His uncle, Khoo Boon Tin, was the eldest of four sons of a Chinaman who lived in Burma. The family professed the Buddhist religion, and Khoo Boon Tin married Tan Ma Thin, also a Chinese and a Buddhist. He died in 1906 childless. Of his three brothers, the second son had predeceased him leaving no children. The third, Khoo Htwa Khan, survived till 1917 and died leaving three sons of whom the plaintiff is the eldest having been born on 31 March 1905. The fourth son Khoo Hine Htow was alive at the time of the present suit and gave evidence at the trial for the plaintiff.

(2.) On the death of Khoo Boon Tin in 1906, his widow, Tan Ma Thin, entered into possession of his property, obtained letters of administration to his estate from the Chief Court, carried on his business and engaged in other business. She died on 14 April 1929, having made a will dated 29 June 1927. Her estate was sworn at over two lakhs of rupees. Probate was obtained of the will from the High Court on 24 August 1929. By it she had made a number of charitable and other bequests, including a legacy of Rs. 2000 to the plaintiff, but she had made no residuary bequest and part of her property was not disposed of by her will. If the Succession Act applied to her will, the charitable bequests were invalid under S. 118 thereof, as the will had not been deposited in accordance with the terms of that Section. On 24th November 1930 her sister, the first appellant, sued on the Original Side of the High Court for administration of her estate claiming that the present appellants (that is, herself, her sister and her brother) were the only heirs and that the charitable bequests were invalid. The present plaintiff was not impleaded and the suit proceeded against the other sister of the testatrix, her brother and her executors. The trial Judge upheld the charitable bequests on the ground that the will was governed by English law and not by the Indian Succession Act; but on appeal Page C. J. and Cunliffe J., Tan Ma Shwe Zin V/s. Tan Ma Ngwe Zin, (1932) 19 AIR Rang 59 held that the law to be applied to "Chinese Buddhists" was Chinese Customary law and remanded the case. On remand it was held by Sen J., (11 July 1933) that the charitable bequests were valid and that each of the present appellants was entitled to one-third of the property not disposed of by the will.

(3.) Thereafter, on 7 March 1934, some 23 years after the death of his uncle and about five years after the death of his aunt, the respondent by his plaint in the present suit claimed that he was sole heir to both, on the footing that Chinese Customary law governed inheritance and succession to Chinese Buddhists in Burma and that in any case the widow had only a limited interest in her husband's estate and had no right to dispose of it. In the High Court both the trial Judge (Sen J.) and the Division Bench (Robert C, J. and Leach J.) on appeal from him, held that Chinese Customary law governed the case. But the trial Judge was not satisfied that under that law a childless widow had no rights in her husband's estate or in her own personal estate acquired after the death of her husband. By his decree dated 3 June 1930 he dismissed the suit. The Division Bench, however, proceeding largely upon Jamieson's "Chinese Family and Commercial Law," held in favour of the plaintiff that on the death of his uncle the plaintiff should have been adopted by the agnates and was entitled to the inheritance: that a wife is entitled to no estate of her own as all she brings to her husband or receives vests in her husband's family; but that, as she is entitled to be in control of the inheritance during her life, time did not run against the plaintiff till the death of Tan Ma Thin in 1929. The result of this decision was an order that an account be taken to ascertain what the plaintiff was entitled to, with a direction that the only property to be excluded as property of Tan Ma Thin to which the plaintiff was not entitled was ornaments and jewellery and valuables of the like nature together with silk stuffs and all property of whatever kind as (sic) may have been given by her husband to her in his lifetime.