P L D 1960 Supreme Court (Pak (PLP)

AMIRUDDIN AHMAD J.-This is a certificated appeal from a judgment and decree of a Division Bench of the High Court of East- Pakistan in a Second Appeal in a suit for declaration. The appellant before us was the plaintiff in the suit and the suit was for a declaration that the entry in Khatian Nos. 60 and 243 of Mauza Baranishanbaria in the District of Bakarganj relating to her rights in the lands covered by those Khatians in the current settlement record of rights was incorrect, inasmuch as a one-third share of the lands in Khatian No. 60 and two thirds share in Khatian No. 243 were recorded in the names of her step-brother and sister, who, according to the Burmese Buddhist Law by which the parties are governed, could not get more than a one-eighth share, even if it is held that in both the properties their father had an interest. But it was alleged in the plaint that as a matter of fact the property in Khatian No. 60 exclusively belonged to the mother of the plaintiff and their father had no interest in it, and that after the divorce of the mother of the defendants they did not maintain filial relationship with their father and therefore were not entitled to inherit anything The plaintiff also set up a family arrange ment having been made after the death of her father. The subordinate Judge, who tried the suit, found that the property in Khatian No. 60 exclusively belonged to the mother of the plaintiff as her self-acquired property and now belonged to the plaintiff in its entirety, and that the plaintiff was entitled to seven-eighths share and the defendants to one-eighth share in the property of Khatian No. 243, which, he held, was what is known in the Burmese Buddhist Law as Hnapazon property and gave a declaration accordingly that the record of rights was incorrect. In coming to that conclusion he also relied on a registered Kabala, Exh. 1, dated the 16th February 1950, executed in plain tiff's favour by the two defendants in respect of certain lands in Khatian No. 49 similarly inherited by them describing their right to the land as follows :

"of which Kaloshe Mag is the owner and on his death we, the executants, are owners of 9 gds. share by inheritance from our father." This 9 gandas share works out to one-eighth. On appeal by the respondents the Additional District Judge, Barisal, held that both the properties relating to Khatian Nos. 60 and 243 were the Hnapazon properties of Kaloshe Mag, the father of the parties, and Uchamfru, the mother of the plaintiff, and also held that the record showing in Khatian No. 60 that two-thirds of the land belonged to plaintiff and one-third to the defendants was correct. With regard to Khatian No. 243, he held that it was incorrect to a certain extent and was of the opinion that the plaintiff was entitled to two-thirds of the land covered by both the Khatians and the defendants to one third, but he held that as the settlement had also been made under section 31 (2) of the East Bengal State Acquisition and Tenancy Act, the plaintiff's only remedy was in an appeal to the Special Judge under section 53 of the Act and not by a separate suit. In this view of the matter he dismissed the plaintiff's suit. The plaintiff, Mrapome Magni, then preferred a second appeal to the High Court, who agreed with the shares of the parties as held by the lower Appellate Court but allowed the appeal holding that section 53 of the East Bengal State Acquisition and Tenancy Act was no bar against the maintainability of the suit. Before we deal with the questions of law arising in this appeal it is necessary to state the relevant facts as admitted by the parties or found by the Courts below. The plaintiff Mrapome Magni's father was one Kaloshe Mag, whose first wife was Khania Magni, by whom he had a son, named Ruithawo Mag and a daughter Ue Magni, who are the defendants in the suit. Kaloshe Mag divorced Khama Magni and later married Ucharrifru Magni and began to live with her in her house in a different village. After the divorce of their mother the defen dants continued filial relationship with their father. From the second marriage 'the only issue was a daughter Mrapome Magni, the plaintiff. The properties in suit in both the Khatian Nos. 61 and 243 were acquired by the joint efforts of Kaloshe Mag and Uchamfru Magni, the plaintiff's mother, during the subsistence of their marriage. Kaloshe Mag died in or about the year 1943 and Uchamfru Magni died in or about the year 1951. Kaloshe Mag thus left a son and a daughter by his divorced wife and an only daughter by his second wife, who also survived him. On these facts we have to determine the shares of the appellant and respondents according to the Burmese Buddhist Law by which they were admittedly governed. Under the said law the properties of a Burman Buddhist married couple are divided into four classes, namely, payin also known as atetpa, lattetpwa kanwin and hnapazon, each of Which is governed by a different rule of succession. In the present case we are only concerned with the succession of hnapazon property. In the Full Bench case of Ma Nyein E v. Maung Maung and others (A I R 1952 Rang. 340), in which the judgment was delivered by a Burman Judge Maung Ba, J. with whom Chief Justice Rutledge and Brown, J. concurred, it was held after reviewing the law on the subject and interpreting the law as laid down in the Dhammathat of Manugye or Manukye that where a Burman Buddhist who has married more than once dies leaving hnapazon property of the last marriage the law of partition of that property between the pubbaka children (children by previous marriage) and their step-parent is as follows :

"In a case where there is an issue of the last marriage the step-child or children collectively take one-eighth and the step parent seven-eighths." In that case the property under partition was the hnapazon property of the last marriage as in the present case. There were children of the first marriage and there was an issue, of the last marriage. The only difference is that in this case the division is asked for by the issue of the last marriage after the death of the mother, while in the Full Bench case the mother herself asked for division. But the existence of a child was also taken into consideration in determining her share of seven-eighths. The distinction between the said Full Bench case and the present case is, therefore, not material, as under the Buddhist Law a child of a deceased person is the first heir who succeeds to his property to the exclusion of other relations, and succession can never be held in abeyance (Principles of Modern Burmese Buddhist Law, Sixth Edition, Pages 183 and 184). In the present case the plaintiff, Mrapome Magni, being the only child of her mother, Uchamfru Magni, under the authority of the said Full Bench case, inherited the entire seven eighths share of her mother to the exclusion of other relations if any. The Full Bench case was followed in the case of Ma Sai Da v. Ma Nwe (A I R 1929 Rang. 253) where the District Judge gave a decree in favour of the step-child against her step-mother for one-eighth share in the hnapazon property of the last marriage and it was upheld as being in accordance with the rule of partition laid down in the above Full Bench case. This rule was again followed in the case of Ma San Nyun 'and another v. Maung Tint (A I R 1930 Rang. 190), in which it was held that in the jointly acquired property of the latter marriage the child of the earlier marriage takes a one- eighth share and the widow of the later marriage a seven-eighths share. On behalf of the respondents reference was made to the case of U Pe v. U. Maung Maung Kha (A I R 1932 P C 152) and our attention was drawn to the observations made therein that the husband and wife in a Burmese Buddhist marriage do not hold property as joint tenants but as tenants-in-common and that the Dhammathats in their entirety form what may be called the Institutional Buddhist Law and that, their Lordships found no difficulty in holding this as the supreme authority where such questions as succession are concerned. With regard to the first observation all that can be said is that this proposition holds good so long as the husband and wife are alive and before succession opens on their death, after which according to the Dhammathats them selves succession to the heirs opens. Relying on the latter observation with regard to the supreme authority of the Dham mathats reliancs was placed on the following extract from the Dhammathats or the Laws of Manoo by D. Richardson, Vol. X, page 274, under heading `The Law of Partition' between the sons of a first and second marriage :

"The two laws of inheritance as regards the sons of the father by a first and second wife are these: Let the son of the first marriage have all the father's original property, and let the son of the second have all that his mother brought with her ; let the property acquired subsequently to the mar riage with the second wife be divided into three shares ; let her son have two, and the son of the first marriage one share, and let them pay the debts in the same proportion." As the Buddhist Law, does not make a difference in the shares of a son and daughter, it was on this text that the judgment of the High Court was sought to be supported and it was urged that the plaintiff was entitled to two-thirds and the defendants to a one-third share. We are unable to accept this proposition. The first part of the text relied upon refers to pay in properties of the father and mother and the latter part, namely relating to `property acquired subsequently to the mar riage with the second wife' relates evidently to the lettetpwa property of the husband individually acquired after the second marriage. We do not think it relates to hnapazon property which is acquired by the spouses during the second marriage by their joint exertion which is the present case. In any event, this text does not affect the rule laid down in the three decisions quoted above relating to hnapazon property which were based upon a consideration of the entire body of Dhammathats; and the mode of its division. We, therefore, hold that the plaintiff appellant in the case is entitled to seven-eighths of the property in dispute and the respondents to one-eighth. The entry in the record of rights made under the Bengal Tenancy Act, 1885, with regard to the plots in question does not appear to have been altered or revised under section 31 of the East Bengal State Acquisition and Tenancy Act, 1950, and was simply carried on the new record. We do not, there fore, think that section 53 of the latter Act bars the present suit. Besides, this point was not raised by the respondents before us, and we need not consider it further. The result is that this appeal is allowed with costs. The judgment and decree of the High Court are modified. The appellant will get a declaration of her title with regard to seven-eighths share in the suit property, and the entries in the record of rights are declared incorrect in so far as they are inconsistent with such declaration. A. H. Appeal allowed.