JUDGMENT

Spargo, J - The case out of which this appeal arose was a suit for the administration of the estate of one Yoo Chow Shu, a Chinese Buddhist, who died at Pyawb. wegyi village in Twante Township in the year 1918. It is said that Yeo Chow Shu left surviving him a widow Daw Khin, two sons named Yeo Ah Kywan and Yeo Ah Gwan, and a daughter Yeo Ma Pu. It is said that the deceased left moveable and immoveable property in Burma and the present suit purports to be by one of the sons of the deceased for the administration of the estate left by Yeo Chow Shu. The plaintiff made his mother, his brother and his sister defendants 1, 2 and 3; and he has added as defendants 1 and 5 Ah Kyan Sin and his wife Ma Hriyar who purchased from Daw Khin certain property which is said to have formed part of the estate left by Yeo Chow Shu. Defendants 4 and 5 are the real defendants. Defendants 1, 2 and 3 being members of of the family made no defence at all. The written statement filed by defendants 4 and 5 was not very artistically drawn, but it does say in para. 3 that these defendants contended that the plaintiff has no cause of action against them. It nowhere appears in the written statement, and the judgment of the learned Township Judge does not show anywhere, that there was a clear statement by defendants 4 and 5 that they are not proper parties to a suit for the administration of the estate left by Yeo Chow Shu and the issue that was framed was whether there was a cause of action against defendants 4 and 5.

2. The learned Township Judge referred to arguments based on Section 301, Succession Act, and concluded that Section 304, Succession Act, would not prevent the plaintiff from suing for the administration of the estate. It was in the appeal against the Township Court's decree that the real point at issue emerged and that was that defendants 4 and 5 should not have been made defendants in a suit for the administration of Yeo Chow Shu's estate. The learned District Judge remarked at the outset of his judgment that this case is of an unusual nature and I think, though there is no room for doubt, that it is so. The learned District Judge proceeded to consider the question which had been raised before him, which was whether a person outside the family can be joined as a defendant in an administration suit merely because he has come into possession of part of the estate. Should he be made a defendant in the suit or should he be sued by the representative of the estate separately? The learned District Judge considered two cases that were cited before him and decided to follow the second of these cases because it was an authorized ruling and he held that defendants 4 and 5 were therefore proper par. ties to the suit. Defendants 4 and 5 appealed against this decision and claimed that they are not proper parties to the administration suit and that the suit as against them should have been dismissed. Mr. Hay for the appellants referred to Lutchmi Ammal v. Narasamma 1921. 13 Bur. L.T. 237, the headnote of which reads;

In a suit for administration of the estate of a deceased person, it is not competent it the Court to make a declaration as to title to property claimed by parties to the suit adversely to the estate. The proper method of recovering property for the estate would be by regular suit on behalf of the estate in the proper Court against the person claiming the property adversely to the estate.

3. This case is authority for the preposition that in a suit for administration of an estate if part of the estate has passed into the hands of outsiders, the proper course is for the representative of the estate to file suits for the recovery of such parts. In the course of that case, Fox, C.J. said:

The proper method of recovering the lands for the estate would appear to be by regular suits, in the proper Courts against the persons who claimed, and possessed the lands respectively. Each had a right to have the question of his title to the land he had de