JUDGMENT

Mackney, J - This is a case of contest between step-grandchildren and stepchildren over inheritance to the estate of Ma Kin Zin who was the widow of one Maung Maung Ngwe. Maung Maung Ngwe had three children by his wife Ma Po. The eldest Ma Thet She was the mother of the plaintiffs-appellants. The other two children were Ma Sein Mya And Ma Thet Hta, the defendants-respondents. After Ma Po's death Maung Maung Ngwe married Kin Zin about the year 1904. Ma Thet She died in 1922 and Ma Kin Zin died in 1930. The learned Assistant District Judge held that the stepchildren exclude the step-grandchildren on the ground that it is the basic rule of Buddhist Law that the nearer excludes the more remote. He therefore dismissed the suit. In Maung Dwe v. Khoo Houng Shein 1925 P.C. 29 their Lord-ships of the Privy Council considered the case where a step-son had made common cause with the step-grandchildren and was content that they should share along with him. The step-son and step-grandchildren together claimed to be entitled to inherit the estate of their respective step-parent and step grandparent to the exclusion of his collateral. Their Lordships approved the finding of the Chief Court of Lower Burma in the case which was in favour of the step-son and step-grandchildren. At the same time they especially noted that they pronounced no opinion as to what would be the result in a contest between the step-son and the step-grandchildren--either or both were entitled to exclude the collaterals. Their Lordships quoted with approval the remark of a Judge of the Chief Court of Lower Burma which was as follows:

The point of view of the Buddhist Law is undoubtedly based on the community of interest between husband and wife. So strong is the bond between them that, in the absence of natural children the husband's or wife's children, as the case may be, rank as the children of the step-parent in the matter of inheritance to the exclusion of collateral blood relations.

2. It might be argued that if the step-grandchildren are to rank as children of the step-parent in the matter of inheritance to the exclusion of collateral blood relations, the step-grandchildren should also come in to share on the analogy of the right which the grandchildren have to share in the estate of their grandparents. In my opinion this argument cannot be sustained successfully. No reference in the Dhammathats has been brought to my notice in which any mention is made of step-grandchildren. Section 6 of the Manukye which is quoted in their Lordships' judgment is as follows:

There are four kinds of inheritances, namely (1) that which is obtainable by children, grandchildren and great-grandchildren only; (2) that which is obtainable by children and stepchildren.

3. It must be observed that no mention is made of step-grandchildren. In Maung Po Thu Daw v. Maung Po Than 1924 Rang. 73 (of 1 Rang.), a decision of a Full Bench of this Court, it was held that "grandchildren succeed to their grandparents" estate in their own right" and further that "they do not reach the inheritance by virtue of being the children of their parents' (in that case), "for the parents had not reached the inheritance." (Here in the present case also the appellants' parent had died before Ma Kin Zin). They occupy the same position as their parents in respect of the inheritance, "that is to say they succeed by virtue of their relationship with the propositus." "They succeed directly to the grandparents and should therefore take in equal shares" as being more remote than the children. This case was referred to by Carr, J., in Maung Shwe Ye v. Maung Po Mya 1926 Rang. 4. (of 3 Rang.) he says:

The question really seems to depend upon whether representation is a principle of Buddhist Law. In my order of reference in Maung Po Thu Daw v. Maung Po Than 1924 Rang. 73, I suggested a doubt whether it was. The question was not definitely decided by the Full Bench in that case, but their decision on the question raised con