MAUNG SEIN SHWE Vs. MAUNG SEIN GYI

JUDGEMENT

(1.) This is an appeal by Maung Sein Shwe by special leave from a decree of the High Court of Judicature at Rangoon, dated 13 June 1929, which affirmed the decree of the District Court of Myaungmya, dated 3 April 1928. The suit was brought by Maung Sein Gyi (hereinafter called the plaintiff) against defendant 1, Maung Htin Gyaw, the father of Maung Sein Shwe, who was defendant 2 and is hereinafter called the appellant, Maung Po Chein, hereinafter called defendant 3, and defendants 4 and 5, who were assignees of the plaintiff and defendant 3 of some of the property in dispute. At the time of the suit the appellant was a minor and was represented by his guardian and father Maung Htin Gyaw. The suit was brought by the plaintiff for the administration of the estate of U Po Thet, a Burmese Buddhist, who died in the Myaungmya district on 4 January 1924, leaving a considerable fortune, and the question in this appeal relates to the succession to the said estate.

(2.) The following are the material facts : U. Po Thet was married to Ma Kyi Nyo. They had four children: the three eldest children died young and without issue. The fourth, a daughter, born in 1894, was called Ma Saw Hla. In 1912, the daughter married Maung Htin Gyaw defendant 1 in the suit. On 1 may 1914, the appellant, son of the said daughter and defendant 1, was born. Five months later Ma Saw Hla died : both her parents were alive at the time of her death. In 1922, Ma Kyi Nyo, the wife of "U Po Thet and the mother of Ma Saw Hla, died. On 31 December 1922, U Po Thet made a gift (called a shinbyu gift) to the appellant by a registered deed of about 511 acres of paddy land, a pucca house and diamond and gold ornaments An issue was raised at the trial as to the execution and the validity of this deed, but there is now no question as to this deed except that it is alleged by the appellant that by a slip the pucca house was omitted from that part of the decree which related to the shinbyu gift. Reference to that matter will be made later. On 11 October 1923, U Po Thet executed a deed of adoption which was duly registered. By this deed U Po Thet adopted the plaintiff and defendant 3 as his kittima sons "with a view to inherit good and bad inheritance:" This phrase was said to mean that the adopted sons would inherit not only the assets but also the debts of U Po Thet. The deed provided that : "The two adoptees, namely, Maung Sein Gyi and Maung Chein also undertake according to the duties of sons towards the parent to perform the duties important and unimportant towards, look after and feed the Kyaungtaga U Po Thet when he is in sound health, to treat him with medicine and by the help of physician during his illness and to look after and take care of, according to law as the natural sons of Kyaungtaga U Po Thet, his own moveable properties, such as diamonds, gold, rice, paddy, household furnitures, etc., and immovable properties, such as paddy lands, pucca house, granary, garden lands, etc., with the exception of the pucca house, paddy lands and diamond and gold jwelleries which had been given previously to his grandson Maung Sein Shwe by a deed. Accordingly, after this deed of adoption of Maung Sein Gyi and Maung Chein who are the sons of his own younger brother Maung Tha Dun (deceased) as Kittima sons with a view to inherit, is drawn up, he, the adopter Kyaungtaga U Po Thet, signs it with consent."

(3.) In January 1924, U Po Thet died. In 1924 a suit was brought by the appellant's father in which he claimed to be an adopted son of U Po Thet ; in this he failed, and it is not necessary to refer further to that suit beyond stating that the District Judge disposed of that suit and the present suit, which was instituted in January 1925, in one judgment. In the present suit, viz., No. 9 of 1925, the plaintiff, one of the adopted sons, prayed for a decree: "(1) Declaring that he is a Keittima adopted son of the deceased U Po Thet and as such is entitled to 11/48 share in the Estate of U Po Thet deceased. (2) That the Estate of the said U Po Thet deceased be administered by and under the direction of this Honourable Court. (3) That accounts of both moveable and immovable properties together with mesne profits accruing therefrom may be taken."