JUDGMENT

Dunkley, J - This appeal raises a point of Burmese Buddhist law which is not governed by direct authority. In accordance with the facts which have been found by the lower Courts, Ma Tut, who died about eleven years ago, was the wife of one Maung Pya, who died in 1931. They were both Taking Buddhist and both were previously married prior to their union with each other. Ma Tut's first husband was U Ya, a Chinaman, and the present plaintiffs-appellants are her children by U Ya. Prior to his marriage with Ma Tut, Maung Pya married one Ma Yaung, and their children are the defendants-respondents. There was no issue of the marriage between Ma Tut and Maung Pya, and no property was acquired during their coverture. Ma Tut brought no property to her marriage with Maung Pya, but Maung Pya himself brought certain property, which is the property now in. dispute. The suit, as brought in the Sub-Divisional Court of Moulmein, was a suit for the administration of the estate of Maung Pya, the plaintiffs-appellants claiming a one-sixth share in the attetpa or payin property of Maung Pya. The suit of the plaintiffs-appellants was dismissed by the Sub-Divisional Court, and this decision was confirmed on first appeal to the District Court of Amherst, Consequently, this second appeal lies only on matters of law. Some general contentions have been raised on behalf of the respondents in support of the decisions of the lower Courts, and it is convenient that I should deal with these first.

2. It has been urged in the first place that, because the appellants are Chinese Buddhists, they cannot be entitled to any share in the estate of the deceased, Maung Pya, who was a Talaing Buddhist; but, in my opinion, there is no force in this contention. The estate, which now has to be administered, is the estate of a Taking Buddhist, and it has therefore to be administered in accordance with Burmese Buddhist law and distributed amongst the persons who are entitled to a share therein in accordance with that law. It is not suggested that the appellants are not the legitimate children of Ma Tut, born in lawful wedlock, and consequently, if under Burmese Buddhist law her are children are entitled to any share in this property, the fact that the appellants do not happen to practice the same religion as their deceased mother and step-father cannot affect their rights and is entirely immaterial. It has further been alleged that there was no community of interest between the appellants and the new family which their mother joined on marrying their stepfather, and that therefore they are not entitled to inherit in this latter family. This is a question of fact which was not raised in either of the lower Courts, and consequently, it cannot be raised in second appeal. Moreover having perused the evidence in the case, I find that there is ample evidence to show that the appellants did maintain relations with their mother during her second marriage, and that there is no real force in this contention. It has been laid down by their Lordships of the Privy Council in the case of Maung Dwe v. Khoo Haung Shem A.I.R. 1925 P.C. 29, that it is not necessary for the establishment of a person's right to inherit for him to prove that he maintained filial relationship with the deceased, and there is no evidence on which it could be held to the contrary that the appellants did not maintain such relationship.

3. The third point raised is that Ma Tut died several years before her husband Maung Fya's death, that at the time of her death she was not within reach of the inheritance to her husband's payin property, and that therefore her children by her first marriage, who claim through her, can have no right to inherit such property. As authority for this proposition the case of San Pe v. Ma Shwe Zin A.I.R. 1919 L.B. 148, is quoted, but this decision was expressly dissented from in the case of Ma Nyein v. Ma Tha Gaung A.I.R. 1920 U.B. 11, and is of doubtful authority. Reference has also b