JUDGMENT

Page, C J - This appeal is allowed. The petition for the grant of letters of administration out of which it arises is, in my opinion, a speculative proceeding that ought to have been dismissed. The controversy with which we are concerned relates to the estate of U Ba Thu, who in the later years of his life changed his name to U Po Thu Daw. The deceased's wife, Daw Aye Mya, was the sister of U Po Thant. Daw Aye Mya and U Po Thant were possessed of the inheritance that they had received from their father, U San Hla Byu. U Po Thu Daw died on 4th December 1927. The status of the respondent as his brother is admitted. The petition by the respondent for the grant of letters of administration was filed on 16th September 1929, and a oaveat was entered by and on behalf of the appellants upon the ground that they had been adopted as keittima children by U Po Thu Daw. The main issue in the case is whether at the time when he purported to execute the deed of adoption in favour of the appellants, II Po Thu Daw, was insane or capable of executing a deed of adoption. As I have stated, in my opinion, the present proceedings are of a speculative nature, and I say for two reasons: (1) because the respondent has ad-mitted that he is being financed in these proceedings by a Chinaman in Rangoon, who is a friend of his, and to whom he has agreed, if the proceedings terminate in his favour, to hand over no less than 45 per cent, of what he recovers; and (2) because, whereas U Po Thu Daw died on 4th December 1927, legal proceedings to obtain letters of administration were not commenced by the respondent until 16th September 1929 when the Civil Surgeon at Henzada, Dr. Banerji, who died in July 1928, was no longer available as a witness.

2. Now, Dr. Banerji was present when the deed of adoption was formally registered, and he had given a medical certificate to the effect that the deceased was "mentally quite fit to execute a deed of adoption." In the certificate the Civil Surgeon added "he has answered my questions rationally and I found him quite sane." Of course, as the substantial ground upon which U Nyun challenged the validity of the deed of adoption was that at the time when it was executed the deceased was not in his right mind, during the lifetime of Dr. Banerji he would have found an obstacle in his way which it would be difficult for him to surmount; and I have no doubt that it was only after the death of Dr. Banerji that the respondent, U Nyun and Chinese friend thought it worth while to take proceedings for the purpose of obtaining a grant of letters of administration to the estate of his brother. The appellants are four of the eight surviving children of Daw Aye Mya's brother U Po Thant and his wife Daw Mya. U Po Thu Daw and Daw Aye Mya were childless. For reasons into which it is unnecessary to enter, since the death of U San Hla Byu the estate has remained undivided. U Po Thant with his wife and children lived in a house about three-quarters of a mile distant from that occupied by U Po Thu Daw, and there was a volume of evidence at the trial to the effect that during the lifetime of U Po Thu Daw and Daw Aye Mya this childless couple, uncle and aunt, showed great affection towards the children in the large family of which U Po Thant was the head. The learned advocate for the respondent has not contended, in my opinion, quite rightly, although there was evidence to the effect that there had been an earlier adoption of the appellants by U Po Thu Daw and Daw Aye Mya, that the evidence was strong enough to form a sound basis for a claim that the appellants had been adopted during the lifetime of Daw Aye Mya who died in 1925. About a year before her death Daw Aye Mya went over to U Po Thant's house because she was more likely to be better attended there than she would have been if she were living alone with U Po Thu Daw, and she died in U Po Thant's house. There can be no doubt, I think, that at all material times the undivided joint es