Buttrose J:

This is an appeal by the plaintiffs from a decision of Choor Singh J in a probate action instituted to determine who has the right to administer the estate of one Tang Pui Sim who died intestate on 12 August 1964.

The facts which give rise to these proceedings are these:

In Probate No. 691 of 1964 the first defendant petitioned for a grant of letters of administration of the estate of the deceased to her and her daughter, the second defendant. It was not in dispute that the defendants had no beneficial interest in the estate of the deceased and were not the next-of-kin and their petition was made under s. 18(3) (d) of the Probate and Administration Ordinance (Cap. 17). They maintained that the deceased did not leave her surviving any issue or next-of-kin.

In Probate No. 753 of 1964 the plaintiffs petitioned for a grant of letters of administration of the estate of the deceased to them. They maintained that they were the lawful cousins and next-of-kin of the deceased.

Curiously enough both petitions came up before the Registrar for hearing on the same day and for some extraordinary reason both were granted. One can only surmise that the grant of letters of administration to the defendants was made per incuriam.

The plaintiffs then applied by motion to have the grant made to the defendants revoked.

Subsequently the Court ordered that the motion proceed as an action and pleadings were filed.

The plaintiffs claimed a declaration that they were the lawful cousins and nextof-kin of the deceased and that the grant of letters of administration to the defendants be revoked.

The defendants on the other hand maintained that the plaintiffs were not the lawful cousins and next-of-kin of the deceased and sought a declaration accordingly and claimed that the grant of letters of administration in favour of the plaintiffs be revoked.

At the trial the plaintiffs withdrew their claim for a declaration that they were the lawful cousins and next-of-kin of the deceased on the ground that it was redundant and unnecessary. The stand which they took was that they had been accepted by the Registrar on their sworn evidence on affidavit as the lawful cousins and next-of-kin of the deceased and to whom in consequence a grant of letters of administration was regularly and properly made and it was for the defendants to attack it.

It was the contention of the plaintiffs that as the defendants had no interest in the estate and were not claiming to be the next-of-kin the grant was made to them per incuriam and should be revoked. In any event the plaintiffs asserted that the onus or burden was on the defendants to show that the grant to them should not be revoked on the principle that where letters of administration have been regularly obtained the person in possession of them is not bound to propound his interest till the party calling it in question has established his own interest, see Dabbs v. Chisman [1810] 161 ER 946 and that the defendants should have been called on to discharge the onus of proving their interest and disproving the plaintiffs' interest.

The trial Judge failed to give any ruling on these questions and after hearing argument on both sides on these matters proceeded summarily to revoke both grants. No opportunity was given to the plaintiffs to be heard further on the matter or to call evidence or to propound their interest should it become necessary.

It is from this decision that the plaintiffs now appeal.

It is, perhaps, unfortunate that the trial Judge failed to appreciate the position for this is what he said:

There were therefore two clear issues of fact to be decided: first, whether the plaintiffs were the next- of-kin of the deceased; and secondly, whether the deceased died leaving no next-of-kin and no creditors. It was to decide these questions of fact that the Court ordered this matter to proceed as an action. And at the trial of the action, it was incumbent upon the parties to prove to the satisf