JUDGMENT

Sir Charles Murray-Aynsley (Singapore) CJ:

In this case appellant had claimed to be a tsip of the deceased. At the hearing the learned Judge found that she was not. The appeal raised questions of law and fact. In his judgment the learned Judge cited and relied upon the judgment of Terrell J, in the case of Re Lee Choon Guan, decd [1935] MLJ 78. It was contended that this judgment was erroneous in that it decided that recognition by the family of the alleged husband was not merely evidentiary but essential to the validity of a secondary marriage. It is true that the perusal of the judgment might give that impression, but I do not think that the learned Judge acted on that assumption. In the present case there was admittedly no such recognition but the learned Judge did not base his decision merely on that ground but on the evidence generally. I do not think, therefore, that the judgment was based upon an erroneous view of the law.

Objection was also taken to a quotation, referred to with approval, from a judgment of Carey J, in the case of Tan Ah Bee v. Foo Koon Thye [1947] MLJ 169, which reads as follows:

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 recognized 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.

I regard that passage as unfortunate. There is no sanctity about a Chinese marriage whether in the case of a tsai or a tsip. The Chinese idea of any marriage is purely secular, a matter of contract. In any case it is too late to object to secondary marriages, and if one decides in favour of one side in any case, it is usually to the detriment of the other. I think that all that passage really means is that one should not let sympathy overlook the weight of evidence. This is true but trite.

I do not think that the judgment is based on an erroneous view of the law. Therefore, the appeal must be regarded as an appeal of fact.

The learned Judge decided that the appellant not a tsip. Can that finding be justified on the evidence? The effect of the evidence is accurately summarised the judgment appealed against. I do not think that it is necessary to go through it in detail. Certain observations may be made. At the beginning the deceased simply visited the appellant in the place where she lived with her adopted mother. This does not indicate that from the beginning the appellant had the status of a tsip. Later the deceased set the appellant and her adoptive mother in various houses and in them entertained at one time quite lavishly. Here the appellant was treated as a wife and so far as this type of evidence goes it is in favour of the appellant. It is not, however, conclusive. On such occasions a woman may very well be treated as a wife without being one. The witnesses who deal with this part of the case were either relatives of the appellant or persons who attended parties given by the appellant and the deceased. None of them seems to have been what may be called intimate friends of the deceased. Certainly none of the family knew anything about the appellant.

During the trial the advisers of the respondent discovered a very valuable piece of evidence. It appears that the appellant and the deceased quarrelled. The appellant took proceedings against the deceased. A writ was issued, followed by a statement of claim. The claim was based on the allegation that the appellant was the kept mistress of the deceased. As has been pointed out, if she were a wife she would not have had a right of action. Therefore, it cannot be assumed that it was a case of inadvertence or falsa descriptio. Before delivering the pleadings the solicitors concerned must have enquired into th