JUDGMENT

Otter, J - This appeal concerns the estate of a man called TJ Kan Gyi who died in the year 1912-13. The appellants (who were the plaintiffs in the suit) are the husband and child of his daughter, Ma Hla Yin (deceased) by his first wife Ma Kya Gaing, respondent 1. Ma Hla Yin at her death was the eldest then surviving child, but not the firstborn child of TJ Kan Gyi. Respondents 2 and 3 are the children of TJ Kan Gyi and Na Kya Gaing who now survive; respondent 4 is the minor child of respondent 1; respondent 5 is a successor in title to the first three respondents and respondents 6 and 7 are the successors in title of respondent 1.

2. The claim of the appellants is disputed in law, and respondent 1 Ma Kya Gaing further contended that, after the death of TJ Kan Gyi and before the death of Ma Hla Yin, an arbitration was agreed to by those then interested, and that subsequently a partition of the joint property took place. The Additional District Judge came to the conclusion that as Ma Hla Yin was not a first-born child, she did not acquire the status of orasa and that therefore her claim upon this basis was not maintainable. As I have indicated, the claim of the appellants was not based upon the right of Ma Hla Yin as a true orasa daughter arising upon the death of her mother, for of course the latter is still alive. But the claim rests upon what has been described as the status of quasi (or technical) orasa daughter which gives her a right arising on the remarriage of the mother.

3. It may be useful at this stage to briefly refer to the leading case upon the question of the status of the true orasa, viz. Kirkwood v. Maung Sin A.I.R. 1924 P.C. 238. A number of questions had been referred to a Full Bench of this Court and two of these were:

6. In such a family (viz. a family consisting of sons and daughters) can there be an orasa son who, predeceasing his parents, can transmit to his children a right to preferential treatment in the division of the estate?

7. If so, can the eldest child, being a daughter, on her mother predeceasing her father, claim a quarter-share as orasa or transmit to her children a right to preferential treatment in the division of the estate?

4. The answers of the five Judges composing the Full Bench were in substantive agreement with that of Heald, J., (as he then was) appearing at p. 769 of the report and which was as follows:

6, In a family where the eldest born child is a daughter and is competent, there can be no auratha son, and there can be no son vchose children have a right of preferential treatment in the division of the parent's estate.

7. If the eldest born is a daughter, and is competent, she is auratha, and as auratha can, on her mother's death, claim from her father a quarter share of the estate. If she dies before becoming entitled to that share her children have a right to preferential treatment in the division of the estate.

5. Their Lordships of the Privy Council expressed no opinion upon question 7, but they concurred in the answer to question 6, and part of the head-note in the case is:

An orasa child is the eldest born child capable of undertaking the responsibilities of a deceased parent, and the status of orasa does not depend upon the child, if a son, surviving the father or, if a daughter surviving the mother. There can be but one orasa. The three essential conditions for the existence of the status of "orasa" are that: (a) the child is the first-born; (b) the child attains majority; (c) the child being a son helps in the acquisition of the family properties and the discharge of the father's responsibilities, or being a daughter helps the mother in the management and control of the family properties and household.

Held that the appellant's father who was the oldest son but the second born child has not the status of an "orasa." As the eldest child (though a daughter) fulfilled the conditions laid down in the head-note of the case, she, and not the oldest son who was the second born ch