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1917 Supreme(SC) 44
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, SIR JOHN EDGE, MR. AMEER ALI, AND SIR WALTER PHILLIMORE, BART.
MAUNG THWE - Appellant
Versus
MAUNG TUN PE (REPRESENTATIVES OF) - Respondents
On Appeal From The Chief Court of Lower Burma.
Decided On : July 5, 1917.
Solicitor for appellant:H. Anderson, Solicitors for respondents: Bramall & White.
Under Burmese Buddhist law, kittima adoption is proved by publicity and notoriety rather than formal ceremony. Separation from adoptive parents does not result in forfeiture of inheritance if the separation is consensual and filial duties are continued.
Headnote:(A) Burmese Buddhist Law - Adoption and Inheritance - Kittima child - Proof of adoption - Adoption does not require a formal ceremony or a specific statement on a particular date, but must be a matter of publicity and notoriety; it can be proved either as having taken place on a distinct occasion or inferred from a course of conduct inconsistent with any other supposition.
(B) Forfeiture of inheritance - Separation from adoptive parents - A kittima child may forfeit inheritance rights by separating from adoptive parents, viewed as an act of ingratitude; however, if the separation is with the consent of the adoptive parents and the child remains ready and willing to discharge filial duties, the bond is not broken and forfeiture does not occur.
Facts of the case:
Two claimants contested the estate of a childless couple, each claiming to be the sole adopted son. The first claimant alleged adoption at age seventeen, witnessed by elders, and lived with the parents until marriage, after which he resided with his mother-in-law with the parents' consent. The second claimant alleged adoption in infancy, receiving financial support and managing the widow's business affairs after the father's death.
Findings of Court:
Both claimants were found to be adopted heirs. The first claimant's separate residence after marriage did not constitute forfeiture as it was consensual and he continued to perform filial duties. The second claimant's status as an adopted son was established through conduct and the actions of the widow after the father's death, despite the lack of witnessed ceremonies during the initial adoption.
Issues: Whether the claimants were adopted sons under the applicable law of inheritance and whether separate residence by one claimant resulted in the forfeiture of inheritance rights.
Ratio Decidendi: Adoption under the applicable law is established by publicity and notoriety rather than formal ritual. Forfeiture due to separation depends on the intention of the child; where separation is consensual and filial duties are maintained, the right to inherit is preserved. Conduct can be used to infer adoption even when a specific act of adoption was not witnessed.
Result: Decree of the lower court reversed; both claimants declared heirs as kittima sons; case remitted to the lower court with this declaration.
Legal Category Hierarchy
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family law
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succession
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burmese buddhist law
- adoption
- inheritance
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burmese buddhist law
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succession
Judgement
Appeal from a judgment and decree of the Chief Court (September 23, 1913) reversing decrees of the District Judge of Tharrawaddy.
The appellant and the deceased respondent each claimed that according to Burmese Buddhist law he was the adopted son of a Burman and his wife, both deceased, and that he was solely entitled to inherit their estate.
The facts and the effect of the decisions in Burma appear from their Lordships judgment.
1917. June 5. G. 8. Sanders, for the appellant.
F. J. Coltman, for the respondents.
The arguments were directed to the facts and the inferences to be drawn from the evidence. Reference was made to the authorities mentioned in the judgment.
July 5. The judgment of their Lordships was delivered by
SIR WALTER PHILLIMORE. The litigation in this case concerns the succession to the estate of U Shwe Mya and Ma Shwe I, Burmans professing the Buddhist faith, a wealthy married couple who died childless—the husband early in 1906, and the wife on February 9, 1908. Upon the death of the latter a contest arose between the claims of Maung Thwe, a nephew of the husband, and Maung Tun Pe, a nephew of the wife, each claiming to be the sole adopted child and to succeed to the exclusion of the other.
After certain abortive police proceedings the contest took a regular shape, Maung Thwe being the applicant for administration and Maung Tun Pe resisting him and setting up his rival claim. Much evidence was given before the District Judge, and he in the result decreed letters of administration to Maung Tun Pe, upon what ground does not appear.
Maung Thwe, being aggrieved by this decision, appealed to the Chief Court, which refused to hear the case upon the merits or to interfere with the order, the judges stating that the decision as to administration would not operate as res judicata, and that it would be open to Maung Thwe to establish his right in other proceedings, Thereupon the present proceedings were instituted by Maung Thwe against Maung Tun Pe as administrator, Maung Thwe setting forth his title as an adopted son and sole heir to the estate, complaining that Maung Tun Pe wrongfully refused to deliver the estate to him, and praying for a declaration that he was the sole heir and for consequential relief. Maung Tun Pe put in a defence in which he denied the plaintiffs adoption and all the other allegations in the plaintiffs claim, stated that he was the only adopted son and heir, having been adopted in his infancy, and prayed that the suit might be dismissed.
The District Judge, who was not the same judge before whom the administration proceedings had been taken, framed three issues, which were as follows—1. Who of the claimants to the estate should be recognized by the Buddhist law of inheritance as heir to the estate of the deceased U Shwe Mya and Ma Shwe I ? 2. Have either or both of them been adopted ? 3. What is the extent and value of the estate of the deceased U Shwe Mya and Ma Shwe I ? By agreement between the parties the evidence in the previous case was read as evidence in this case, some of the witnesses being further examined and cross-examined, and one or two fresh witnesses being added.
By his judgment, dated January 12, 1911, the District Judge declared that Maung Thwe was the sole adopted kittima son of the deceased couple and their sole heir, and directed consequential accounts and inquiries. And by a subsequent order, dated May 3, he directed Maung Tun Pe to transfer to Maung Thwe the property of which he had become possessed as administrator. From these decrees an appeal was taken to the Chief Court of Lower Burma, which, by its judgment dated September 23, 1913, allowed the appeal, reversed the decrees, and dismissed Maung Thwes suit with costs in both Courts.
The Chief Court found that Maung Thwe had not proved his adoption, and that it became, therefore, unnecessary to decide whether Maung Tun Pe had or had not proved his adoption, as he was in possession and the plaintiff had failed to
