JUDGMENT

Heald, Offg C J - In Suit No. 19 of 1928 of the District Court of Amherst Lim Kyin Kauk, claiming to be a son of Baw War, whom he alleged to have been a Chinese Confucian born in China and at the time of his death domiciled in Burma, sued for the administration of Baw War's estate by the Court and for partition and possession of his share. His mother Ma Hnin Bu, had already been granted Letters of Administration in respect of the estate in Civil Miscellaneous Case No. 24 of 1927 of the same Court, and it may be noted that in those proceedings she had described Baw War as a Chinese Confucian, and that her step-daughter, Ma Lwe, who opposed her application had described him as a Chinese Buddhist. In the suit Lim Kyin Kauk joined as defendants his mother, who as has been said was administratrix of the estate, his sisters Ma The The, Ma E. Zin and Ma B. Kyu, his minor brother Lim Kyin Swi, one Phan Tiyok, who was the widower of his half sister Ma Thein, and his half sister Ma Lwe, who is now the wife of her deceased sister's widower Phan Tayok. Ma Thein and Ma Lwe were Baw War's daughters by an earlier wife, Ma Nu, who had died, and it may be noted that both Baw War's wives, Ma Nu and Ma Hnin Bu were daughters of Chinese fathers.

2. In his plaint Lim Kyin Kauk said that if Baw War was a Buddhist then under the Chinese Customary Law, which had been held to apply to the estate of "Chinese Buddhists" he and his younger brother Lim Kyin Swi would be jointly entitled to the whole of the estate, as being Baw War's only sons, while if Baw War was a Confucian, the Indian Succession Act, would apply to his estate, so that the widow would be entitled to a one-third share and he personally would be entitled to one-seventh of the remaining two-thirds, since there were seven children who would share equally.

3. The real contest was between the second wife with her family on the one side and the representatives of the first wife on the other, the latter being admittedly in possession of a considerable part of the estate. These representatives were Ma Lwe and her husband Phan Tiyok as representing her sister Ma Thein. In their written statement Ma Lwe and Phan Tayok did not deny that Baw War was a Chinese Confucian born in China and domiciled in Burma but they alleged that Burmese Buddhist law applied to his estate and they said that under Burmese Buddhist law Lim Kyin Kauk had no interest in the estate so long as his mother, Ma Hnin Bu was alive. They pleaded further that on 30th October 1923, after the death of Baw War which according to both parties occurred on 21st January 1923, the matter of the partition of the estate was referred to the arbitration of two arbitrators, namely Baw War's brother San Ya and one Maung Kin, by Ma Thein and Ma Lwa on the one side and Ma Hnin Bu and her eldest daughter Ma The The on the other, that in making that reference Ma Hnin Bu represented her other children, namely Ma E. Zin, Ma E. Kyu, Lirn Kyin Kauk, and Lim Kyin Swi, that by the award of those arbitrators certain properties were allotted to themselves and certain properties to Ma Hnin Bu and her children, and that Lim Kyin Kauk as well as Ma Hnin Bu and her other children were bound by the award and the partition made in accordance with it.

4. Ma Hnin Bu's case was that Baw War was a Confucian and that therefore the Succession Act applied to his estate, so that she as Baw War's widow was entitled to one-third of his estate and his children by her were entitled to equal shares with the two daughters by the earlier wife. She said that the alleged partition was only a temporary arrangement whereby Ma Thein and Ma Lwe, who were Baw War's eldest children, were given the custody of a large part of the estate until it could be properly administered, and she asked the Court to declare the shares in the estate to which the various parties were entitled.

5. Her children, other than Lim Kyin Kauk, pleaded that their father Baw War was either a Confucian or a "