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Intestate Succession

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Intestate Succession

law

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Naing Aung
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Chapter I Succession and Inheritance : Since the reign of ancient Myanmar Kings’, problems arising out of Marriage, succession and partition were adjudicated by the leamed Judges in accordance with the Myanmar Customs and Culture. Inheritance is a perpetual or continuing right to an estate invested in a person and his heirs. The canons of inheritance are the rules directing the descent of real property throughout the lineal ‘and collateral consanguinity of the owner dying intestate. Succession has been defined as the power or right of coming to the inheritance of ancestors, and liabilities of a deceased person to his or her heirs.’ Consequently, there is a little difference between succession and inheritance. Succession is not only succession of the deceased person's estate but also the coming next after and-taking the place: of the deceased by his or her heirs. But inheritance is only succession of deceased person's estate. According to Manugye, there are four kinds of inheritance, viz: - (@) that which is obtainable by children, grandchildren and great-grandchildren only; , Selection of Leading Cases on Buddhist Law with dissertations, 2" Edition, Part ‘May Oung, II, Inheritance, British Burma Press, 1926, P.207 Gi) that which is obtainable by children and stepchildren: Gi) that which is obtainable by some children and not by others though bom of the same parents; and (iy) that which should be withheld from children who have failed in filial duty. The first may be exemplified by the palmyra. This tree cannot be Propagated from cuttings or shoots: having lived its allotted period it bears fruit and dies. The fruits then continue the species, Whilst the parent tree is alive, no other tree is produced from it. Even so do children, grandchildren and great-grandchildren alone inherit on the death of the parents, The second may be exemplified by the bamboo. It is the nature of this Plant to propagate its kind from its roots whence spring shoots which grow up like the Parent, as well as from its fruit which it bears when about to die. Even so do parents have children and stepchildren to share their estate. The third may be likened to the plantain tree, which propagates its kind from shoots, which grew up from the base like the parent tree; but from its fruit no tree is produced. Likewise do parents have children who are entitled to inherit as well as those who are not? The fourth may be exemplified by the reed. It is the nature of the reed to multiply its species through its root. In due time the reed flowers and dies. Without bearing fruit. The flower does not fertilize any fruits. Even so are there some children who failed in filial duty and therefore do not obtain any inheritance, as well as others who live with their parents and support them and are thus entitled to inherit? Amwebon and Cittara give the same version as Manugye. 1.1. Basie Principle of Suecession Myanmar Customary Law of Inheritance is complete and systematic, As the essence of Myanmar Customary Law, there are six basic principles, namely:~ (a) _ Intestate succession; 2 Gaung, U, A Digest of the Burmese Buddhist Law Concérning Inheritance and Marriage; Volume 1, Inheritance, Section 6, Pp. 15-16 satay (b) On the death of a husband or wife witho Succeeds to the whole of the deceased's estate; (©) Inheritance shall not ascend when it can descend: (4) Thenearer shall exclude the more remote; @® In a competition between equidistant, the full blood excludes. the half-blood; and 3 Conduct can indeed operate as disqualification but it is in no sense a necessary qualification to obtain the right of inheritance. In the Inheritance under Myanmar Customary Law, Provision that who may be the heir according to the order of su portion of the estate may be inherited when one Person passed one may get this right as soon as the death of deceased ancestor , Which vests in him Separately and individually. This right of legatee is called vested right. Pertaining to the basic principle of law of inheritance, Dr. Maung Maung in his book? stated that has vested cannot be divested," there is a definite lecession and what away. Subsequently, "Succession cannot be kept in abeyance, and once it 1.1.1, Intestate Succession. Myanmar Buddhist does not have the tight to dispose of his property by means of a Will. Inheritance, therefore, is by intestate succession only.* According to section 2(h) of the Succession Act’, "Will" means the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death, A Will is the legally enforceable declaration of a persons’ intention of what he desires to be done after his death, which declaration is revocable during his lifetime, and is operative for no purpose until death, and is applicable to the situation which exists at the maker's decease.* Maung Maung, Dr., Law and Custom in Burma and the Burmese Family, 1963, P. 107 Maung Maung, Dr., Law and Custom in Burma and the Burmese Family, 1963, P. 103 India Act XXXIX, 1925 (30th September, 1925) Burma Code Vol: XI ‘Thomas E. Atkinson, Handbook of the law of Will and Administration of Decedent's Estates including Principles of Intestate Succession, West Publishing Co., 1937, P. 1 * ambulatory and rey That's why, disposition of the the death of the person who ocable during his life. Property by Will shall be effected after make it and it is revocable during his lifetimes,” The principle that a man may select the person on whom his Property. is to devolve after his demise is not to be found in th 1¢ Dhammathats,*® ‘Whether a Myanmar Buddhist has or has not ‘This question had arisen before the British annexed the So, the main question is " the power to make a Will." Upper Myanmar. |n fact, the Myanmar word “Thedanse” nowhere appears in the Dhammathats. Parents when conscious of their approaching death call their heirs ‘ogether and make a formal division, orally or in writing of their properties among the heirs and exhort them to accept the allocation without dispute. This is the idea conveyed by the Myanmar word "thedansa". Therefore, the idea conveyed by the word "thedansa" is not the same as that conveyed by the English word “wil” (as understood by Christians and as interpreted in the Succession Act). In 1866, Sir Arthur Phayre, the Chief Commissioner of British Myanmar, had issued a circular that "no Will by a Myanmar Buddhist having heirs, which dispose of property, moveable or immoveable, contrary to the Myanmar Customary law of Inheritance should be admitted as valid,"” The question as to whether Myanmar Buddhist can or cannot make Will was first cropped up in La U v. Ma Saung Ma case. In that case, it was postulated that the right to share in ancestral estate is not affected by any instruction or Will on the part of a co-heir. So, this decision cannot be explicit on this question. : i ition, Vol: 1, P. 29 : oo: fuse of Leading Cases on Buddhist Law with dissertations, 2™ Edition, Part II, Inheritance, British Burma Press, 1926, P. 207 % Mya Sein, U, Myanmar Customary Law, 10" Edition, P. 215 ‘© LaU v. Ma Saung Ma, 1873, S.J., P. 12 il i le In 1875, Sanford, the Judicial Commissioner of the Lower Myanmar in an obiter expressed the view in Maung San Yun v. Maung Myat Thin!” case that "the idea of 4 Will to take effect after death upon Property not actually Possession of the legatee was foreign to Myanmar Customary Law and Cause the devolution of property contrary to the law of inheritance." passing into no Will could The same dictum was laid down in the same year by Quinton in Ma Thi v. Ma Nu’? case that a Myanmar Buddhist has no Power to dispose of Property by Will as he or she pleases, In 1880, the question was more fully discussed by the Special Court composed by Wilkinson and Crosthwaite J.J., who concurred in the opinion expressed by Sanford J.C. in San Yun v. Myat Thin cited above, in Ma Bwin v. Ma Yin? case. In that case, it has been held that " ownership of property involves rights to dispose of it during lifetime; with death ownership as well as power of disposition determines; the power of making a testamentary disposition of property is not a natural right Possessed by owners of properties but is a creation of the legislature and if the law does not confer that right on owners of properties they cannot exercise it; Myanmar Customary Law says nothing about testamentary disposition; unless it can be shown, that the power of testamentary alienation has been enjoyed and recognised for so long as to become an established usage and a part of the Myanmar Customary Law, the Will of a Myanmar Buddhist cannot be maintained; so a Myanmar Buddhist cannot make a Will." The British judges, after extensively survey and research, ruled early that though "there can be no doubt that Buddhists have for some years been disposing of their property by Will, yet there is no evidence of such long established usage as would justify the conclusion that the power of testamentary alienation has become a Tecognised part of the Myanmar Customary Law." The Local Government in British Myanmar studied the question extensively in 1881, and when a bill was proposed to declare the extent of the testamentary power of Hindus and Buddhists, and to provide for the exercise of that power, the Chief Commissioner reported in Myanmar "there is "Maung San Yun v. Maung Myat Thin, S.J., P. 46 (48) Ma Thi v. Ma Nu, S.J., P. 70 (72) ® Ma Bwinv. Ma Yin, S.J, P. 108 4 strong and general opinion against any considerable extension of the testamentary power. Mr. Egerton Allen, the Government Advocate, has endeavoured to trace the history of Wills in British Myanmar. He stated that the earliest Buddhist Will of Which probate had been granted was made in 1864, that in 1865 the then Chief Commissioner, on being asked his opinion as to the expediency of extending to Buddhists such part of the Indian Succession Act as relates to ‘testamentary Succession, had stated that he considered that no part of that-Act should be extended to Myanmar as the Buddhist law did not allow the making of any Will, the terms of which might be at variance with the law of inheritance." ‘The Commission on Buddhist Wills, appointed in 1938, also came to the same conclusion, '* The annexation of Upper Myanmar in 1886 opened a large and new field of enquiry and taking advantage of this circumstance, Mr. W. F. Meres, J.C., when in 1887 the case of a Will cropped up, had further enquiry made in the upper and lower provinces as to the exercise of the testamentary power by Myanmar Buddhists. In Maung Me v. Sit Kin Nga '*, the question was further enquired into; a large number of officials arid non-officials from all parts of the country, including members of the Hluttaw of the last King of Myanmar were invited to furnish information and expression of opinion on the subject. Before deciding the question, the Judge asked two important questions to the ex-ministers of the Hluttaw, including ex-Kinwun Mingyi. The first is that if there is disposition of property by making a Will by Myanmar Buddhist, are there any defence and objection on such Will together with the fact of the Will and when it made? The second is that is the making of Will and the right to make a Will justifiable? Answer to this with whether there is any objection on that point with references. With regard to the first question, the reply dated on 24" May 1888 by ex-Kinwun Mingyi is that there is a custom to dispose of the property before the death Maung Maung, Dr., Law and Custom in Burma and the Burmese Family, 1963, P. 103 15 Maung Me v. Sit Kin Nga, 1887. P, 429 of the owner of property and the defence and objection on some cases; furnished together with the ‘copy of Will. Among these Wills, the oldest is dated July 1823. That earliest Will is that of a so-called testator who entirely divests himself of his property, dividing it amongst his children, the heirs agreeing to assign to him, for his maintenance while he lives, a piece of land which is to Tevert to them on his death and to bind themselves not to dispute the division. This and other so-called Wills that were brought to the notice of the learned Judicial Commissioner were held to be clearly gifts inter vivos and not Wills. The ex-Ministers of the Hluttaw gave nine instances of so-called Wills made by the Myanmar Buddhists in the time of the Myanmar King. But the paucity of the so-called Wills then existent in the whole of the country is in itself a sufficient Proof of the undoubted fact that the power of making Wills has not been enjoyed and Tecognized for so long as to become an established usage and a part of Myanmar Customary law. There may be a few cases in which some Buddhist have disposed of their property by Will, but they cannot be treated as precedents which will serve as a guide without the sanction of usage and of common consent, Concerning the second question, the reply is that believing that the making of Will is just; that there is nowhere expressly prohibited the making of Will in the Dhammathats and treatises; that there is a Will made by a testator on his deathbed. In concluding that the exercise of testamentary power was never a part of the Myanmar Customary Law, the judicial Commissioner, rejected the view of the members of the Hluttaw that "there is no reason to justify the supposition that making a Will or the right to make a Will, is contrary to law. In support of their view, the Myanmar Ministers of the Hluttaw in their note of the 24", May 1888, stated that "(a) Among Myanmar Buddhists, making a Will or the right to make a Will is not forbidden by any passage in the Buddhist Scriptures; (b) Nor is the making of a Will, or the right to make a Will, forbidden by any passage in the Dhammathats or other secular works; (c) In some Dhammathats it is enacted that a Will made by a testator on his death-bed shall not be held to be valid, By the expression "on death-bed" here is meant that state of unconsciousness, which precedes death. Therefore it may be inferred that a testament, written or oral, made by & person before he is in articulo mortis (at the point of death) in the presence of respectable laymen or monks is valid; (d) in respect of the different ways of dividing an estate as prescribed in the various Dhammathats if there exists no valid testament either written or oral, the manner of dividing it among the heirs is only to be gathered by logical inference." To the note was appended nine documents, which the Ministers described as Wills. The earliest of such documents was that of 1823 and the most recent were those of 1887. Also appended to the opinion of Myanmar Ministers and extracts from Buddhists Texts were attached, Among these, two documents referred to disposition of properties by way of Gift; one by a Rahan (Monk) and the other by a layman to be valid after his death respectively. The Ministers deemed the first one to be valid and the other to be void. Actually, none of the nine documents, relied upon by the Myanmar Ministers was in the nature of a true Will. Some of them were dispositions in Ppraesenti (at the present time) which the executants require their heirs not to contest; and those which declared the executant’s intentions, which he or she desires to be carried out after his or her death, were all irrevocable dispositions, while a true Will is ambulatory and revocable in the testator’s lifetime. Further from the reply of the Myanmar Ministers, it is clear that they contemplate a public disposition "made in the presence of respectable monks or laymen, or under circumstances which render it valid," whereas the terms of a true Will need not be and are not usually published even to the two attesting witnesses; all that such witnesses need to know is that the document bears the signature of the executants made in their presence. It is clear that the Myanmar Ministers, with Kinwun Mingyi at their head, understood by the word “thedansa” something different from a “Will” as contemplated by the Judicial Commissioner in his request for their views. % Disposition by “a rahan saying on my death let my property belong to my preceptor, teacher, fellow-student, mother, father of any other person is invalid, a similar gift by a layman is valid.” For these reasons, the Judicial Commissioner in Maung Me v. Sit Kin Nea "” definitely decided that “a Myanmar Buddhist cannot make a Will.” Therefore, it has been a settled law that Myanmar Buddhist inheritance is by intestate succession only. 4 The another question is as to whether there are some texts in the Dhammathats which directly declare that dispositions of properties by Wills must be Biven effect to but which were not available at the time the judicial decisions denying testamentary powers to the Myanmar Buddhists were given in Lower Myanmar. ‘The only section, which has some bearing on the question, is S. 78 of the Digest, Vol: I'*, It contains 12 Dhammathats of which six only directly deal with the point- Pyu, Dhammathatkyaw, Rasi, and Rajabala, Sonda and Panam, The Pyu lays down (inter alia) that "what the dead gave the living gets and he whom the dead liberated is indeed emancipated." This rule is also stated in the Sonda and Panam, The Rasi, the Dhammathatkyaw and the Rajabala all give the rule that "a gift made to take effect on the death of the donor is valid," the property given being treated as the Separate property of the donee. Of these six, only two (Rasi and Panam) are mentioned in S. 79, which says that a gift made in extremis is not valid, if there has been no delivery of possession (Rasi). Such a gift is valid only when accompanied by delivery of possession (Panam). This is also laid down in the other Dhammathats quoted in that section. Thus section 79, which declares that deathbed gifts are invalid, provides an exception that such gifts are valid if there are followed by delivery of possession. If, as the section contemplates, possession is essential to constitute a valid gift, whether it be a gift made in extremis or otherwise, this cannot be a disposition of property to take effect on the death of the donor, Section 79 clearly refers to deathbed and other gifts and is therefore not a proviso to section 78, which apparently refers to testamentary dispositions of property. On the other hand, passages from this and several other Dhammathats may be cited to show that alienation of property to the injury of the heirs is prohibited (vide sections 74-75 Digest). Many passages quoted in these sections serve to show that it is not certain that Myanmar Customary law does "Maung Me v. Sit Kin Nga, 1887 S.J., P. 429 " Gaung, U, A Digest of the Burmese Buddhist Law Concerning Inheritance and Marriage; Volume 1, Inheritance. not prohibit testamentary disposition and even assuming that that is the case, it does not necessarily follow that property can be so disposed of, for a mere non-prohibition is of no avail. But it has been argued that the testamentary alienation of property is nowhere expressly prohibited in the Dhammathats and that therefore itis legal, and to this plausible argument one cannot reply better than in the words of Mr. Justice Markby. He says: "It seems to me that such an argument on such a point is worth nothing. Whoever hears that the measure of law in any country is express command or express prohibition." This passage was quoted with approval by the Special Court in Ma Bwin v. Ma Yin”, whith was followed in Maung Me v. Sit Kin Nga” already cited, and the argument has been sufficiently disposed of by the leamed Judges in both cases. As stated above there are certain passages in some unimportant Dhammathats which declare that testamentary alienation must be given effect to, but they are few and far between and as already observed the Manugye, which for so long has been recognized as the leading guide in the administration of justice, is one of the majority which make no mention of testamentary dispositions. Another point to make argument on testamentary disposition is that on the death of a wealthy Myanmar, his estate is generally frittered away in litigation, thereby preventing the accumulation of capital in the country. It is also stated that Myanmars spend a lot of money over inheritance suits in the shape of court-fees, Advocate's fees, traveling and other expenses, etc., and as these suits as a rule take a long time the parties have practically little or nothing left by the time they are over, for they have already spent a large sum of money over this litigation. The estate, it is urged, has to be divided among the persons who are declared entitled to inherit, each getting a small portion, if the estate is not large and the heirs are many; but if there was no lawsuit the whole of the property would remain intact. But without the testamentary power all these evils can be avoided. Litigation is one of the principal causes of poverty among Myanmar Buddhists; the point is whether, if the testamentary power be conferred on them, the ® Ma Bwin v. Ma Yin, S.J, P. 100 ® Maung Me v. Sit Kin Nga, 1887 S.J., P. 429 litigation will decrease, It is not likely to decrease because Wills, which are not valid or genuine, might crop up. On the other hand a Will is to be a certain extent secret and is revocable. It is generally concealed from the knowledge of all persons except the individual or individuals concemed. As a rule it is kept secret or bidden from general knowledge and is not revealed till the death of the testator. That being so, fears may be entertained that when a man dies intestate leaving his wife or wives and children behind him, an unscrupulous heir or stranger may draw up a fictitious or spurious Will and claim his property as a legate. Such a thing is not impossible and what is there to prevent it? If such an event happens, the result will be simply disastrous. And it may be reasonably expected that the proposed litigation conferring testamentary Power on Myanmar Buddhists will open a door to fraud and will not have the desired effect. To confer the testamentary power would either give rise to further litigation or would enable persons prone to evil to perpetrate fraud and to profit by it, Neither result is desirable. Jt is therefore desirable that status quo should be maintained. One of the chief reasons why some people are clamouring for the testamentary power is that parents will exercise a firmer moral control over their children who are expected, in return, to render them greater respect and obedience. Testamentary power, they say, would thus promote the children’s proper behaviour and the fulfillment of filial duties, so desirable among the parent rising generation, and the children would take great care to avoid bad habits, which will incur the displeasure of their parents if they do not wish to be disinherited. But this advantage may be obtained without legislation conferring testamentary power, for the Dhammathats contain provisions allowing parents to disinherit children who defy parental authority and act contrary to their wishes, or who abuse and strike them. Hence, Myanmar Buddhists have no right to dispose of their properties, both moveable and immoveable, by means of a Will. Myanmar Buddhist Law of inheritance is always by intestate succession. Although Myanm ani will. : is of ound minor may dispose alienate by her own of any property, which she could are deaf or dumb OF blind are not thereby incapac! ii jnarily insan able to know what they 40 by i js ordinarily oF H © an interval in which he is of sound mine. whether arising from jntoxication OF fhat he is doing. and the property acquiring by own exertion will while he 2 Iness or from is in such 4 state of mind, any other cause, that he does not know WI The person's own property can be disposed by means of Will. ‘According to the Law 0! his share in the family joint property Muhammadan, any pro] of being transferred and which exists at the time of the testator’s may queathed by @ will?! But by a Will. Property, which belongs to another, cannot be bes 19 more than a third of their property. Other two-thirds f Dayabhaga, the father can dispose his own by means of Will. yperty which is capable be disposed of estate and According to the Law of ‘a person cannot dispose ni devolves to their heirs. According to the Succession ‘an dispose all of his or her estate by Will. dispose of their estate by making ‘Act, all persons of Christian can make @ will. He or she ¢ ‘Although Myanmar Buddhist cannot Will, some attempts to circumvent the rule against testamentary disposition. In Ma Thin Myaing v. Maung Gyi? case, "where a mother made a gift of ions by a deed of sale to three out of her five children, subject to a condition that e ES es +s = is on her death, the parties being Buddhist. In this case, the as held that a Myanmar Buddhist cannot dispose of his property after his d il is death by Will, and no Myanmar Buddhist can under the guise of making a a Noshirvan H. Jhavala, Princ 3 iples of Mahomedan Law, 4th Editi , 4th Editi E Booksellers Law Publishers: Princess Street, Bombay 2, P. ne ea Ma Thin Myaing v. Maung Gyi, 1 Ran., P. 351 ag Bift be allowed in effect to make a Will. He cannot set at naught the provisions of his personal law as to inheritance of his property after his death." Moreover, in Maung Thu Kha and one v, U Thunanda and one” case, “where a document by which property was’ disposéd of under the guise of a deed of gift or trust was in reality an attempt to dispose of the owner's property after death in order to defeat the operation of the ordinary laws of inheritance. It was held that the document being a Will is void if executed by a person subject to the Myanmar Customary Law." % Furthermore, in U Tezawwunta v. Maung Zaw Pe and one™ case "it is contrary to the principles of Myanmar Customary Law that a Myanmar Buddhist by means of a testamentary disposition should attempt to evade the rules of succession and inheritance prescribed under the personal law to which he is subject. If a Myanmar Buddhist by a voluntary transfer inter vivos assigns property to a person who is a stranger, with the intention that such transfer should become operative after his death, the transfer is null and void." In Daw Lay Tin (U Ohn Tin, her legally representative) v. U Aung Win’* case it was held that "It is a settled law that according to Myanmar Customary Law Myanmar Buddhist cannot make a Will. If the deed is implied as gift to take effect after his death, Myanmar Buddhist cannot execute it. But Myanmar Buddhist can make a valid gift during his or her lifetime according to section 122 of the Transfer of Property Act”®, It is provided that: - “Gift is the transfer of certain existing moveable or immoveable Property, made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he still capable of giving. If the donee dies before acceptance, the gift is void.” Hence a gift to be valid there must be delivery of possession during the lifetime of the donor. ‘Maung Thu Kha and one v. U Thunanda and one, 5 Ran., P. 371 U Tezawwunta v. Maung Zaw Pe and one, 10 Ran., P. 224 Daw Lay Tin (U Ohn Tin, her legally representative) vy, U Aung Win, 2001, M.L.R., P. 392 ‘The Transfer of Property Act, India Act IV, 1882 (1* July, 1882) . one who is his or her heirs, there is exceptional provisions in the Dhammathats. Yazathat Manugye Manuvannana Manu Kungyalinga Cittara Although the donor delivers his property during his or her lifetime to U Gaung’s Digest”” states as follows: - fa gift of property accompanied by delivery of possession is so made by the parents to one of their children that nothing is left on their death for partition among the other children, such child shall not say that the Property so given is his or hers, but it shall be divided among all the co-heirs according to the usual rules of partition. Although parents may say that they give the whole of their Property to one or other of their children, yet’ such child shall not get all the Property, because the parents say so only in the exuberance of their spirits. If such child is one who is of great assistance to the parents, he shall get double his ordinary share, Parents'make a gift of property accompanied by delivery of Possession to one of their children, if nothing is left for the other children, the gift shall be partitioned among all the children in the same Way as if it were common inheritance. Some parents say that they give the whole of their property to one of their children who has performed his or her duties to their entire satisfaction. Yet such child can have possession of the same only during the father’s lifetime; the gift cannot be absolutely binding, and he or she is entitled to get only double his or her ordinary share. If a gift of property accompanied by delivery of Possession is so made by the parents to one of their children that nothing is left on their death for partition among the other children, such child shall not say that the gift is his or hers, but it shall be divided among all the co- heirs according to the ordinary rules of partition. If there is no property left for partition other than that given by the parents to one of their children, the gift shall be partitioned among all * Gaung, U, A Digest of the Burmese Buddhist Law Concerning Inheritance and Marriage; Volume I, Inheritance, Chapter 8, section 75 the co-heirs. For, in the case of a hen feeding her chickens, the food brought by her and given to one only is yet pounced upon and shared by the other chickens. With regard to this matter, we can see in the following cases, According to U Naga v. Maung Hla” case, the Court prohibits the giving of the parents’ entire estate to ‘one child. In Daw Thai v. Daw Ngoot and one case, the donor, a Sino- Myanmar Buddhist, nine days prior to her death made a gift of her entire estate, when death was imminent to Strangers when there were natural heirs. A gift of entire estate isnot valid according to Myanmar Customary Law. In U Tin Win v. U Tin Nyunt® case, “There is no prohibition to Aispose of his or her property by making a gift. But according to Dhammathats, Chapter 8, Section 75, there must be presumed that such kind of gift is contrary to Myanmar Customary Law. Hence the gift shall be partitioned among all the children in the same way as if it were common inheritance.” Similar decision can be seen in Daw Khin Mya Sit v. Daw Su Su and two*! case. Hence, if nothing is left for the other children, the gift shall be void and that property so given shall be divided among all the co-heirs according to the usual rules of partition. : Therefore, we may firmly say that Myanmar Buddhist cannot dispose of their property by means of a Will and cannot be evaded by an attempted transfer inter vivos to take effect upon the death of the donor. But they can dispose of their property by an arrangement of special contract before his death among those heirs, whereby they bind themselves to accept a certain method of partition. But such an arrangement will not usually give them a right to recover the property from their father during his lifetime and such arrangement are not binding until the parent dies and the heirs act upon it and are thereby estopped challenging its validity. U Naga v. Maung Hla, 2 U.B.R. (1907-09) Gift, P. 7 Daw Thai v. Daw Ngoot and one, 1949 B.L.R., P. 471 (H.C.) UTin Win v. U Tin Nyunt, 1983 BLR.,P. 191 Daw Khin Mya Sit v. Daw Su Su and two, Civil Special Appeal No. 29/2001 (S.C.) Dr. Maung Maung mentioned in his book” "family compact or settlement may be made, either by word or mouth, or in writing." Similarly, most of the cases** unanimously show that the family arrangement can be made by oral agreement. If it involves immoveable property worth more than one hundred kyats, it is to be registered according to the Registration Act.34 Among Myanmar Buddhists the father foreseeing that the heirs may Quarrel about the division of property on his death, not infrequently arranges a special Contract before his death among those heirs, whereby they bind themselves to accept a certain method of partition though such an arrangement does not usually give them a cause of action against him during his life.2> Hence such arrangement is not binding until the parent dies, The parties to a family arrangement must be persons who have a right in the property in regard to which the arrangement is made and there must be mutuality among them in the arrangement so as to make the arrangement binding on all of them2® ’ In U Nyunt Maung v. Daw Mya Shwe’” case, family compact was contracted by the heirs of deceased and other persons who have no entitle to inherit. In this case the Court held that family compact is not a mutually agreement among them to succeed the estate. Hence, it may be firmly said that family arrangement can only be made mutually between persons who have entitled to succeed in deceased's estate, Maung Maung, Dr., Law and Custom in Burma and the Burmese Family, 1963, P. 104 » Ma Kyaw and one v. Daw Kyay U, 1935 A.LR., Ran., P. 355; UBaPe v. Ma Choti @ Ma Nyunt and one, 1966 BLR,, P. 727 (C.C.); Ma Ngwe Khin v. Ma Ye Sein, 1960 BLL.R., P. 313 (H.C.) * Ma Shu Hmwe v. Daw Kyay Hmyin, 1950 B.L-R., P. 111 (H.C); U Aung Nyunt v. Maung Ohn Myint, 1981 B.LR,, P. 121 * Ma Thit v. Maung To Aung, S.J., P. 197; ‘Ma Aye Mya v. Ma Kun, 11 U.B.R. (1892-96) P. 102 % Taung Min v. Ramkumar Ram, A.LR. 1934 Ran,, P. 176 » U Nyunt Maung v. Daw Mya Shwe, 1974 Civil 2nd Appeal No. 33 In Ma Thit x eng To Aung™ case the Court remarked that an agreement of family arrangement is whether valid or not is more likely concem with Myanmar Customary Law than the Contract Act. Consequently, we must execute a family arrangement in accordance with the provision of the Contract Act? Although the family arrangement is contrary to Myanmar Customary Taw of inheritance, the Court cannot frustrate it by that reason only, Similarly, it can be seen in the following case that the family arrangement cannot be frustrated after the death of the owner by coheirs. In Ma E Mya v. Ma Kun" case, coheirs can make contract between themselves as to how they divide the estate of deceased even though anything mentioned in the Myanmar law of inheritance. If coheirs appoint an arbitrator to give award as to inheritance, this award cannot be set aside Myanmar Customary Law of inheritance. by reasons of contrary to When a family arrangement has been entered into or acquiesced in by all the persons interested in the family property and has been carried into effect none of the persons who consented thereto may thereafter be heard to: repudiate that arrangement or set up that it is not binding in law.*" Family arrangement is a contract and “free consent" is the most important ingredient. In Taffuzal Ahmed v. Maung Shwe Kyi‘ case, where the consent of one of the persons to the family arrangement was not free consent and the arrangement was inequitable, the Court can frustrate this family arrangement. In this case, if the person who consents to family arrangement gave up its undoubted rights by orally, such arrangement could not be valid. Ma Thit v. Maung To Aung, .J.,P. 197 Indian Act IX, 1872 (Ist September 1872) Burma Code Vol: IX Ma E Mya v. Ma Kun, Il U.B.R. (1892-96) P. 102 Ma Kyaw and one v. Daw Kye U, 1935 A.LR, Ran, P. 355; U Thumana v. Ma Saing, 2 U.B.R. (1892-96) P. 390; Ma Pan Si @ Daw Yin Yin v. Ma Hla Yin and five others, 1963 B.LR, P. 800 (808) C.C, © Taffuuzal Ahmed v. Maung Shwé Kyi, 1929 A.LR,, Ran., P. 355 In U Myat Pyu and one v. Ma Saw Shin and two others" case, "On the death of Daw Gauk, her younger brother and three nephews entered into a family arrangement for division of inheritance orally and a garden land was allotted to the nephews. There was some dispute between the parties and the brother had called village elders to make a settlement. In a suit by the brothers to recover a land so allotted on the ground that the nephews were not entitled to inherit and the settlement was not legal.” In this case, it was held that "A family settlement is valid, even though the claims of some of the parties may not be strictly legal and even if there has been misconception of legal rights. In the absence of fraud or misrepresentation it is not ‘open to Court to try to ascertain if all claims were well founded. There was a bona fide settlement of conflicting claims and the adequacy or otherwise of the consideration leading to the compromise will not bé considered by the Court. It is the design of such arrangement to preserve quiet in the family.” In Daw The Yin v. U Htun Nyan and sixteen others“ case, it was held that the family arrangement could be made before the death of the owner of the estate. In this case, U Thet Pe, J., stated his opinion as follows: - "The main object of the family arrangement is to prevent the emergence of the multiple suits concerning inheritance and to evade the quarrel on that matter.” The parties to a family arrangement must be persons who have a right in the property in regard to which the arrangement is made and there must be mutually among them in the arrangement so as to make the arrangemtent binding on allofthem. There is no question of Myanmar Customary Law involved in a family ‘compact, which is neither a gift nor a testamentary disposition. Parties agreeing to a family arrangement and acting upon it are estopped from questioning its validity or legality when there is no fraud, undue influence, or concealment of material things. Courts do not generally disturb a family arrangement unless it is inequitable on the 8 UJ Myat Pyu and one v. Ma Saw Shin and two others, 1949 BLR,, P. 492 (H.C) Daw The Yin v. U Htun Nyan and sixteen others, 1966 BLR., P. $91 (595) C.C. face of it and unless an heir is thereby made to give up his undoubted rights for an inadequate consideration in the absence of professional assistance, So, the making of family arrangement is the good idea and intention of Myanmar Buddhist. Though Myanmar Buddhist can make family arrangement, it Cannot be seen the family arrangement in other family laws. 1412. On the Death of a Husband or Wife, without Children, the Surviving Spouse succeeds to the whole of the Deceased’s Estate. The second general principle of Myanmar Customary Law of Inheritance is that "on the death of a husband or wife, the survivor, in the absence of children, succeeds to the whole of the deceased estate."*® This general principle will be dealt with in detail in Chapter Il. 1.1.3. Inheritance shall not ascend when it can descend. One person has two lines of succession: Ist, the descendant line, "children and their descendants; 2nd, the ascendant line, parents and their __ representatives. The basic principle of succession is that "Inheritance shall not ascend when it can descend. In Ma Hnin Bwin v. U Shwe Gon“ case, father and sister of deceased contested to inherit the estate of the deceased. In this case the right of the father of deceased cannot be maintained as against the right of sister, because sister is in the descending line and the father js in the ascending line, Father Mater De Sister E Maung, Dr., Burmese Buddhist Law, First Printing, Rangoon Sapay Lawka Printing Works, 1970, P. 117 Ma Hnin Bwin v. U Shwe Gon, 8 L.B.R. (1915-16) P.1 (P.C.) Introduction 7 aes Has been sccopeized and practiced i Mysemer Pe ee ee ac ee 3 at the time of performing any domestic ceremony such as washing the head of a new-born baby, placing a baby in the cradle, naming a child, or at the time of marriage of the child and grandperent’s gift to grandchild. Death-bed gifts also expressed in Dhammathts. Normally, the Transfer of Property Act applies to all cases of gifts between donor and dnoce. However, when a question of succession, inheritance, marriage, religious usage or institution arises in a case of gift, Myanmar Customary Law must be applied. Whether a particular gift is valid or not is to be decided in accordance with Myanmar Customary Law. Dhammthats require delivery of possession in all case of gifts except in the cases of shinbyu gifts and grandparent’s gift. Although the Dhammathats insist on delivery of possession, they require neither any document in writing nor acceptance of the gift by the donce for the validity of the gift. Before the Transfer of property Act came into operation in Myanmar, there are various kinds of gift according t0 Dhammathats. But Myanmar Customary Law recognized the three categories of gift only. They are shinbyu sift, grandparent's si By ideath-t a gift. After the operation Transfer of Property Act in Myanmar, there are so many Kinds of gift, if immoveable propesty eg parents gif, mariage Sif birthd gift and natural love gift that can be done by the provisions of ‘Trsmsir ropesty Act. Now, ot nnd = Miynmner Bohs ot only to sie the Moves Customary Law but also the provisions Transfer of Property Act : : arm i Mee Comer Lehi sm meen . lame, But if any codified law or promalgsted law, prescribed by jscontradicted withthe Customary Law the former shall eval. sLi-d ‘9761 “GOHIPS, ‘gsaad roMURAW Ysnug ‘WooSuEY ‘MET {siyppnig wo sosec Suypea Jo WORIS vin 3uno ae iat “p81 wOHD2S NIA sovdeug ‘go8 “1 ounyon asic BumeD “Teor, ay J0 “62 YORDAS = ‘ehe-d 1g s20deU{9 "UORIPO p_Z‘SIEUEUUIEUCT axsnUeN UE Jo asvo ® Ur ses’ UORNINSUT ax Surorauonap ut paddle 2q prnogs mel ISI4PPME "UF ing PV to afesn snoiSijau ‘aBequreu ‘sousyuoyul “uorssooons Jo uonsanb WOH oenuog pue wy Auodorg Jo soysue], MyM waoU0 axe Aotp Ing “MET Kreut0}s119 ‘uss wi2ou0d you st Auadoud Auv Suyats ‘sey Suns|xXo oF BuypIOr9Vy Ayadosd a[qranour jo yi T Syrodoid apqvan owt Jo Yt “1 eure sy, se yns spurs ons anoge axp apnjout Aadoud Jo y18 ‘os “Auodord ajqeaaouy pure ‘Ayodoid ayqvoaou ore dau, “Aadosd jo spury oni are azomp ‘Atradoxd exp Jo Suuwout aun uy me] Suns puw aver] Crowoysng euUExWY ZopuN pryBA Jou ae ITEM q peut iS pue yIS paq-mwap “yi se Uosiod v Surald “yrs Jo spury aaoqe ay UT _ Goqnour oy yi8 se anes uo sty sani3 roumo oup ‘opduexS 409) wosiod v aAtd or pomoype ose inq Ayodoad aay 0} ATuO you pamorfe ‘poviad iuMepdeped “OACAIOWY StEMTEUUIEYC 2yp UI passaxdxo of; ! 7 Ixo ose st yI3 poq- 1 -puesd 0} s,jusmd-puesd ayy Kq apeur 13 bagdaissc tS" z iq oper 18 apnjout osye pue ‘oBeumeU ayn Jo oun ot. a or juyureu ‘ajpeso amp uy U0p 28 Jo ENB 20 Kg poxdanoe puw aouop xp poyea “rou o sowop xp poo ‘dosed ato &q woneSPSueD mtn pur syEnjon peu Suadou fanouna 0 qeo.ou Bune UES Jo sasueN a1 YIN, WJ wonysg yy _spoop pasar are aay ssqun pea 10 ave SamHadaid 2|quoAONE yo sy wns mq ‘sase9 yons op poyidde aq sna MOT Areuio sn ToUIURA YA, suo Souq 1 aBesn snofas saya Jo worson 2af0aut SUES niquiys -ofiprout 10 Kuousaz29 Bu}109-189 404] JO 10 anoey ut pu} jo iS v Sayyeur UBL w axouM Se OOUTEIOYOT ‘wotsvo00 2tp Ho pInyD SIU {yo sopour 8 sou aBosn snoy#ijay yo sou w soqprou oq ou a8e9 JOKHOUE ME sopeur st wa yp v aro se soue oq Jo JANEW w ag Aeur ase so4oUe tH “AUoWIaIOD dqutys aup e apa st yi v axoysa se aBusn snorfyjos jo xaeUE B oq ou YTB at Ose uo ‘ypea Jo ssounisumorto zeynoad ou uo spuodap Jou 40 YIs Jo ased e OF ver] Areumoysng zeumEKWy soITOYA “Y!S Yons Jo AuprEA oy SurUTEDIOP fe aq pmnoys me] Areuioysn) roUUA yy “YLT 420 adesn snorStyau ‘oSeyreU “DouEHDqUT ‘woIssa9oNs Jo VONSaNb v UDA Ing “souOP. ‘puv soup waamiag sy{8 Jo sasvo ype 0} sarjdde Auodoug Jo s2ysueLy MLL WD 405 sme] Jo wonwyddy — 7] sr SOSsoLa, A Wo 10 44 poudks wounnsut Jo Wis prea y ‘*pn|out jou ssop Auadoud MAL 2¥} JO € wonsog fom sea] 18 Aq pawsane pue ‘soUop ay} Jo 19 “queo atp oy paysene old arqvorounay giz Avodoug 2qqeanou anv 0q smu YB Jo spury somo “KuowaLa9 nf € Asruorsn seuss “7 “HS OWN ge ect pl0z wo gZl ET ee sem [LAN © Bupyeur yo 1uBLs om yeMP panstyag 24 EIB Pres aH “uoRSanb puooas JO qumno208 UO “ILA Jo saidoo xis BurysenE yas ay pue suoNsalqo aWiOs a7aA\ aH2Kf} PUR ‘ap aio aloyoq sistypen seummsyy Aq [HAA & yA sonuadosd Buoys pu SupLAIP stmoysno fedonipent arom aJouy Ip pres ay ‘suonsanb asoqy Jo roodsax uy Suneyy fF) KBr sury, Aq poydar Sz] MUOEN Jo TUIXEN\ ST POvEP 4H] aM UT “you 40 asiean ut uonaafgo Aue sea asoryJaypOqs asmeaH Jo 20ta39}0r ‘2 YM zamsue 0} ‘puy Zoonsnf ame |TEA\ & SuryeUE Joy YSU axp puE TTL & SurFeU eip ZUR Nos og ~ s1 woRsaNb puodds “yeep saxp B10}29 [THAN ® La sonuodord wavo oth pareys pue papraip sistppng, reuEA YY ywK. punoy sora pey Loup Jt 10 FO [ILA erp 40) Bumpeayd v som azoqp JoKoyM pu WaX ‘ayEp ‘TIEN JO se|NONEd — St UoRsAND sng “Cojepueyy uF 1XBuUMMUTY Surpnyour ssaySTUTL JOUNNOY Joyo PUB JOSIE, sxomnyp{ s9uuOF 2m 0} ywoUHBpn! 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