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1923 Supreme(SC) 36
Privy Council
Parmoor, Buckmaster, Justice Viscount Haldane, JJ.
Ma Than Than -Appellant
Versus
Ma Pwa Thit -Resopndent
P.C.A. No. 95 of 1922
Decided On : 06-07-1923
Water house and Co., Orr Dignams, Sander son, Dube, Montgomery, E.B. Raikes, A.M. Dunne
Adoption in the relevant customary law is established via publicity and notoriety. Appellate courts should not overturn a trial judge's finding on witness credibility without exceptional circumstances, and arbitration awards based on collusion are legally invalid.
Headnote:(A) Customary Law - Adoption - Krittima Daughter - Adoption under the relevant customary law does not require a special ceremony but must be a matter of publicity and notoriety. Evidence that a child lived continuously in the house of the adopter from infancy for over a decade, was entered in school registers as the child of the adopter, and had school fees paid by the adopter constitutes strong evidence of such publicity and notoriety.
(B) Evidence - Credibility of Witness - Appellate Review - Where a trial judge, having observed the witness's demeanour and heard the evidence, concludes that a witness is credible, it requires circumstances of exceptional character to justify a Court of Appeal in reaching a different conclusion. This pertains to the trustworthiness and demeanour of the witness rather than the mere weight of the evidence.
(C) Arbitration - Collusion - An award made by arbitrators acting collusively with a party is invalid. Such an award cannot be relied upon as a finding of fact nor can any payment made under its terms be regarded as a valid release of claims against an estate.
Facts of the case:
A claim was brought to determine if the appellant was the krittima adopted daughter of a deceased individual. The appellant had lived in the deceased's house from the age of one for approximately thirteen years with the consent of the natural parents. School records listed the deceased as the parent, and the deceased paid the school fees. A witness testified to the performance of an adoption ceremony. A subsequent dispute was referred to arbitrators who issued an award recognizing the appellant as the krittima daughter and awarding a specific sum, which was paid. The respondent contested the adoption and argued the payment constituted a release of claims.
Findings of Court:
The court found that the evidence of the appellant living in the deceased's house and the school register entries established the adoption through publicity and notoriety. The trial judge's finding on the credibility of the key witness was upheld. The arbitration award was found to be the result of collusion and was therefore invalid.
Issues: Whether the appellant was a krittima adopted daughter based on the evidence of publicity and notoriety; whether the appellate court was justified in overturning the trial judge's assessment of witness credibility; and whether a collusive arbitration award constituted a valid release of claims.
Ratio Decidendi: Adoption is established by publicity and notoriety. An appellate court should not substitute its view on witness credibility for that of the trial judge absent exceptional circumstances. An award vitiated by collusive misconduct is wholly invalid and provides no legal release.
Result: Appeal allowed.
Legal Category Hierarchy
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family law
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adoption
- burmese adoption
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adoption
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practice and procedure
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evidence
- witness credibility
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arbitration
- collusive awards
-
evidence
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succession
- estate distribution
Lord Parmoor:-
The question involved in this appeal is whether the appellant is the krittima adop ted daughter of Ko Po Kyaw and Ma Nyun. Ko Po Kyaw died at Edward Street, in Rangoon, on the 27th October, 1916, leaving consi derable property, worth from Us. 1,00,000 to Rs. 1,50,000. Ma Nyun was the first wife of Ko Po Kyaw.
The appellant claims that she was adopted as krittima daughter in or about 1893, after the dece ased, and his first wife, had been married 16 years without children. The respondent was the fifth of the six wives of the deceased. She was married to the deceased about 1906, was divorced from him about six months later, but resumed living with him after the death of his sixth wife, and was living with him at the time of his death. The appellant was born in 1892, being the daughter of Ma Gyoke, who was a cousin of Ko Po Kyaw, and married to Ko Maung Grale. In the first Court the Judge, Mr. Justice Robinson, gave judg ment in favour of the appellant, but this judgment was set aside in the Court of Appeal.
At the trial of the action, their was a considerable conflict of evidence between the witnesses, called respectively on behalf of the appellant and respondent. Mr. Justice Robinson held that implicit trust might be placed in the evi dence of Maung So Naing, who had joined Ko Po Kyaw in business many years ago, and was the trusted manager of the business. He lived in Ko Po Kyaw's house, and was treated like a brother.
There is no doubt of the impor tance of the evidence of Maung So Naing, but in the Court of Appeal his evidence was treated as un reliable, and the Chief Justice regrets that he cannot agree with the learned Judge's opinion of this man's impartiality. Before further considering the weight that should be given to the evidence of Maung So Naing, it will be well to state shortly certain facts which are either not disputed, or which, in the opinion of their Lordships, have been clearly established.
Ko Po Kyaw and Ma Nyun took the appellant, when she was a child, aged about one year, away from her parents, and she lived in the house of Ko Po Kyaw in Edwards Street for the next thirteen or four teen years. She was taken to Ko Po Kyaw'shouse with the consent of the natural parents, and Ma Gryoke, the natural mother, states that she was taken to be adopted by Ko Po Kyaw and Ma Nyun; and this Statement which alone might be of little value, is in accord with the subsequent sequence of events.
From the time that the appellant was taken to the house of Ko Po Kyaw she appears to have been brought up publicly as his daughter, and to have lived openly and con tinuously under his protection.
Their Lordships attach much importance to the evidence of Maung Po Lun, who kept a school in Rangoon, and who entered the appellant's name in the School Register for the month of March, 1899, according to the regulations prescribed for the students' names in native schools. The entry in the register was produced, and in the column in which the name and occupation of parent or guardian is entered, the name entered is :-
" Maung Ea Kyaw, Trader, Edward Street."
In the first place, it is clear that the name entered in the register is not the name of the natural parents, and secondly, their Lordships see no reason for doubting that the name actually entered was that of Ko Po Kyaw, although some doubt is thrown on this in the judgment in the Court of Appeal.
Evidence was further given that the school fees were paid by Ko Po Kyaw during the time that the appellant remained at school. A further exhibit from the school register was produced containing the entry of the appellant's sister, Ma Than Kin, and in this case the name entered as parent is that of the natural father Mg. Grale.
After the appellant had left school she continued to sleep in Ko Po Kyaw's house until she was about fourteen years of age, after which she slept in the house of her natural mother Ma Gryoke. The reason given for this change is that, at this time, Ko Po Kyaw brought
