Carey J:

Upon a motion by the plaintiff for revocation of letters of administration granted to the defendants and for a grant in substitution to the plaintiff and the 1st defendant, it was ordered that the matter should proceed as an action in Court.

The plaintiff claims to have seen a secondary wife of the deceased and as such to be now a widow of the deceased and entitled jointly with the other widow, the 1st defendant to administer the deceased's estate.

The whole issue therefore depends on whether or not the plaintiff was a secondary wife of the deceased, for, if she was she has an equal right with the 1st defendant to the grant of letters of administration.

The guiding principles in a question of this nature seem to be well established and have been expounded at great length in several cases in this Court, and, inasmuch as there is no material conflict in such decisions of any relevancy in the present case, it would be mere waste of time were I to do more than refer to them in a summary manner.

It is established that a Chinese man may have as many wives as he may be disposed to. Usually he has a principal wife and may have several secondary wives as well. No precise ceremony of marriage is requisite in the case of a secondary wife, but there must be some evidence of intention and some recognition of the status of wife in order that a secondary marriage may be established (Cheang Thye Phin and Ors. v. Tan Ah Loy [1920] AC 369, Six Widows Case [1908] 12 SSLR 120, In re Will of Tay Geok Teat, Sunny Tay v. Seow See Neo & Anor. 3 MLJ 83, In re Seow Im Swee (deceased), Seow Beng Hay v. Seow Soon Quee & Anor. 2 MLJ 111).

There is the general presumption in favour of marriage where parties have cohabited as man and wife over a period of years.

Of course such presumption is immediately rebutted by proof that one of the parties cohabiting is not free to contract a marriage with the other, for instance where the man is already the lawful husband of another woman or the woman is already the lawful wife of another man (Khoo Hooi Leong v. Khoo Hean Kwee [1926] AC 529 at p. 543)

In the present case the plaintiff, who was the principal wife of another man from before 1932 until his death in January 1937, claims to have started to cohabit with Yeoh Boon Tean, the deceased man, in 1932 (vide particulars furnished). Though it is conceded that after the death of her husband, continued cohabitation with Yeoh Boon Tean could give rise to the presumption in favour of the marriage of the plaintiff with Yeoh Boon Tean, it could not give retrospective effect to such presumption. One might perhaps go so far as to say that, in a case such as the present one, the fact that one party was not free to contract a second marriage detracts somewhat from the value of the presumption when the incapacitated party does become free. It might even be argued that something indicative of an intended change in the former status was essential in order for the presumption to arise on continuance of a cohabitation which could not give rise to the presumption initially.

When one appreciates that a secondary wife may be acquired with so little formality and when acquired, she and her children, if any, in the event of an intestacy, share in the estate of the late husband, there is, if marriage is to remain a recognised honourable estate, an urgent necessity to ensure that a mistress or kept woman and her children, if any, should not step in to minimize the shares on distribution of the legal wives and children of the deceased.

The parties appear to accept what was propounded in the case of In re Lee Choon Guan Deceased, Lew Ah Lui v. Choa Eng Wan & Ors. 4 MLJ 78, viz, that in order to prove a Chinese secondary marriage (a) long continued cohabitation, (b) an intention to form a permanent union and (c) repute of marriage must be established.

Reviewing the evidence on these lines I find that the plaintiff met Yeoh Boon Tean at least eleven years before h