JUDGMENT

1. Maung Ba Thwin, a boy of 14, sued his stepfather, Mauug Po Hti, for the administration of the estate of his mother, Ma Thein Ngwe, deceased.

2. The defence pleaded was that, when Maung Ba Thwin was four months old his mother and father divorced, and Ba Thwin has since that time lived with his father without maintaining filial relations with the mother.

3. The Court of first instance dismissed the suit on its finding that Maung Ba Thwin had not maintained any filial relations with his mother prior to her death, and this finding was upheld by the lower-appellate Court.

4. The lower appellate Court Judge quoted in support of his ruling the remarks in Ma Tin U v. Ma Ma Than A.I.R. 1927 Rang. 250, that when there is a divorce the children ordinarily go with one or other of the parent, and lose the right to inherit from the parent with whom they case to live, unless they maintain or resume filial relations with that parent, and in Mi San Mra Rhi v. Mi Than Da U [1900] 1 L.B.R. 161, that

the rights of the children of a divorced pair seem to depend upon the arrangements made at the time of the divorce as to which branch of the two families they shall belong to. The children while minors are bound by the choice of their parents in this respect.

5. The facts elicited in the Court of first instance are roughly as follows:

Ba Thein, the father, was divorced in 1914 from Ma Thein Ngwe when the plaintiff-appellant was two years old, the mother remaining in Thabya, the father moving to Thabyechaung, some miles away, Ma Thein Ngwe paying him Rs. 450, consisting of Rs. 300, half the hnapazou property, and a debt of Rs. 150, which he had borrowed from her mother, and which apparently, having little hope of recovering, she forgave him. The child remained with the mother, but after a month the father took it away without the knowledge and consent of the mother* and refused to return the child unless Ma Thein Ngwe came to Thabyechaung for it. The mother, after waiting for eight months, returned to the father and stayed some days with him, hoping to recover the child. The father, who was using the child as a lever to get his wife to return to him, accompanied her to Thabya and left the child with her, but again took away the child after the lapse of a month.

6. The above facts are elicited from civil Regular No. 196 of 1914 of the Township Court of Launglon, in which Maung Ba Thein sued his wife for restitution of conjugal rights within a year of the divorce, the evidence in which case has presumably?although the diary of the original trying Judge is not explicit on the point?been admitted by consent to the record. That the mother did not make more strenuous efforts to get the child brought back to Thabya is explained by the fact that it did not thrive there. She had already lost four children and this child was the sole survivor. Even in the proceedings for restitution of conjugal rights, Maung Ba Thein admitted that, on the two occasion's when he took the child back to Thabyechaung, the child had been ailing in Thabya, so that the silence of the mother on this point, which impressed the learned District Judge on appeal, does not disprove the case now set up, that the reason that the child remained undisturbed in Thabyechaung was the belief that Thabya did not agree with it. In Thabyechaung the child lived in the house of Ma Nu Yin, its paternal aunt, with its father. Two years after the divorce, the father re-married and went to Mergui, leaving the child behind, and has Since apparently taken no interest in the welfare of the child. The mother, on the other hand, paid its school expenses and used to visit it at Thabyechaung.

7. Two years after the marriage of the father, Ma Thein Ngwe re-married, and after her re-marriage, although the intercourse between mother and child was not entirely interrupted, her visits became very rare. When she died the child attended her funeral, and apparently obtained an admission from the stepfather that it had