Judgement

Appeal (No. 17 of 1926) from a decree of the High Court (March 25, 1925) reversing a decree of the District Judge of Insein.

The suit was brought by the first respondent to eject the appellants and their mother, the second respondent, from property consisting of about thirty acres at Kokine.

The appellants were the children of one Sarkies Vertannes, who died in 1897. They contended that under their fathers will there was intestacy as to the property, and that they were entitled to their shares in it according to the Indian Succession Act. The second defendant, who was the widow of Sarkies Vertannes and executrix of the will, had conveyed the property to the appellant in 1918 in discharge of mortgage debts with which she had charged it; she did not defend the suit and was now joined as a formal respondent. The first respondent had let the property to the first appellant in 1918 for twelve months, and given him notice to quit.

The chief questions arising on the appeal accordingly were (1.) whether the will gave the property to the second respondent; (2.) if not, whether she had power as executrix to convey it to the first respondent; (3.) whether the appellants-or any of them were estopped from asserting their title as heirs to their father.

The facts appear fully from the judgment of the Judicial Committee.

The trial judge held that upon the true construction of the will there was an intestacy as to the land in suit, that the first appellant was estopped under s. 116 of the Indian Evidence Act, 1872, from denying the title of the first respondent, but that no case of estoppel was made out against the other appellants. As a result he decided that the first respondent was entitled to the land in suit, subject to charges for the interests of the children other than the first appellant. Upon appeal to the High Court by both parties, the learned judges (Robinson C.J. and Maung Gyi J.) held that the property passed to the testators widow, the present second respondent, under the will; further, that in any case all the present appellants (except the third) were estopped by their conduct and acquiescence. The appeal by the present appellants was dismissed, and that by first respondent allowed.

1927. Feb. 28; March 4. Dunne K.C. and E. B. Raikes for the appellants.

Sir George Lowndes K.C, Vaisey K.C. and Leach for the first respondent.

The arguments appear from the judgment of the Judicial Committee.

March 31. The judgment of their Lordships was delivered by

LORD PHILLIMORE. The narrative in this case is to the following effect. Sarkies Vertannes was an Armenian Christian practising as a solicitor in Rangoon. In 1886 he made his will, and the material part is as follows "This is the last Will and Testament of me Sarkies Vertannes of No. 68 A, Halpin Road, in the town of Rangoon, British Burma. I do hereby appoint Mary my wife the sole executrix of this my will. I do hereby revoke all wills and dispositions heretofore made by me, and do publish and declare this to be my last Will and Testament. I give and devise and bequeath my three houses numbered respectively 68, 68A, 68B, in Halpin Road, in the said town of Rangoon, together with land thereto belonging and all the out-offices and buildings standing thereon, and all my household furnitures, carriages, horses, chattels and effects, and all moneys and debts due and owing to me which I shall be possessed of at the time of my death unto my said executrix absolutely."

He died in May, 1897. At that time he was possessed of other immovable property besides that mentioned in his will—namely, certain land at Kokine in a suburb of Rangoon —and it is concerning this land that the dispute has arisen.

His widow obtained probate of the will and administered the estate, sold the three houses in Halpin Road which are specified in the will, paid all the debts including a mortgage on the Kokine land, and was left finally with this land free from incumbrances and Rs. 19,000 in August, 1904.

Th