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Colonial Cases

Ma Me Gale v. Ma Sa Yi, 1904


Ma Me Gale v. Ma Sa Yi

Judicial Committee of the Privy Council
12 December 1904
Source: The Times, 13 December, 1904

(Present - Lord Macnaghten, Lord Lindley, Sir Ford North, Sir Andrew Scoble, and Sir Arthur Wilson.)
  This was an appeal from a judgment of the Chief Court of Lower Burma of August 8, 1901, reversing a decision of the Judge of the Court of Moulmein.
  Mr. Lawson Watson, K.C., and Mr. J. W. McCarthy appeared for the appellant; Mr. Herbert Cowell for the respondent.
  The arguments were recently heard before a Board composed of Lord Davey, Lord Robertson, and Sir Arthur Wilson, when judgment was reserved.
  Sir Arthur Wilson, in delivering last week (for Lord Robertson) the judgment of the Board, said the question in the case was whether the respondent and the appellant are both keitima adopted daughters of the deceased Ma Ye, a Burmese lady of considerable fortune, who died on April 14, 1899, or whether the respondent alone stood in that relation to the deceased.  Ma Ye had been married; her husband Ke On predeceased her by a few years and she was   childless. The two litigants are sisters by blood, being both daughters of a lady named Ma Ku, who was cousin of Ma Ye.  The respondent, who is the elder of the two sisters by a year and some months, is admitted to be a keitima adopted daughter of Ma Ye, and the suit, which was initiated in the Court of the Judge of Moulmein by plaint on September 19, 1899, was brought to obtain a declaration that the appellant is keitima daughter of Ma Ye and entitled to a part of her estate. The written statement of the respondent was in substance, a denial that the appellant had been adopted; and the first and leading issue settled for the trial of the cause, to which alone the attention of their Lordships was invited, was as follows:-
  "Was the plaintiff adopted by the late Ko On and Ma Ye so as to entitle her to inherit?!"
Evidence was taken before the Judge of Moulmein, and on commission, and he decided in favour of the appellant. On appeal that judgment was reversed by the Chief Court of Lower Burma. Upon the issue in this suit it was to be observed that the thing to be established was a relation between these two persons, Ma Ye and the appellant. Neither ceremony nor written document was required to constitute or initiate that relation. There must be, on the one hand, the taking of the child by the adoptive parent with the intention and on the footing that the child should inherit. What had to be ascertained was whether with the consent of her parents the appellant was adopted by Ma Ye as her child and one of her heirs. While the consent of the natural parents was the legal condition of the relation, that could not seriously be said to present any substantial difficulty in the way of the appellant. From her early childhood she and her mother were left by her father to shift for themselves, and her mother had before her marriage lived in Ma Ye's house, and was on affectionate terms with that lady.
  It happened that while the mother was dead the father was examined on commission, and he gave direct and positive evidence of his consent, and of the adoption, and the Judge had believed his testimony. The question of fact whether the appellant was adopted by Ma Ye and treated by her as her keitima adopted daughter was to be determined as a question of evidence. A few of the more salient facts must be noted in the order of time.
  The appellant, to begin with, was born in Ma Ye's house in or about 1857, so that the early incidents of her childhood were sufficiently remote to account for inaccurate or varying recollection on the part of the witnesses. Between her birth and the death of her natural mother in or about 1869 there was a period during which she lived at times with Ma Ye and at times with Ma Ku. From Ma Ku's death to her own first marriage, she lived with Ma Ye - a period of four or five years. In or about 1873 she married Ismail Lotia. While the circumstances of that marriage were not credible and would have strained any but a strong tie, that was very soon condoned; the husband was employed by Ma Ye; the appellant's first two confinements took place in a house hired by that lady. The first husband died in or about 1884, and from his death the appellant and her children lived in Ma Ye's house until her second marriage in or about 1889. That second marriage, again, was not, at first, regarded as satisfactory, and it was delayed until Ma Ye's consent was obtained. From that time the appellant, while living with her husband, was frequently at Ma Ye's house, and Ma Ye frequently at her's, and one of her children was constantly with Ma ye.  Finally, Ma Ye died in the arms of the appellant on April 14, 1899.
  Those bare facts in the appellant's life showed that from her own birth to Ma Ye's death the two were closely associated in Ma Ye's house. Nor could it escape observation that on the death of mother and husband, the appellant reverted to Ma Ye's house and that even during the lives of mother and husband that house was more to her than it would be but for some special tie. Further, the care and authority of Ma Ye were exerted when occasion arose. The outline thus drawn was filled up by numerous witnesses; and their Lordships, looking to the nature of the matters spoken to by those witnesses, could not but ascribe a special weight to the impressions formed and the conclusions arrived at by the Judge of First Instance.
  One consideration, however, must be mentioned as considerably narrowing the controversy. At an early stage of the trial, the counsel for the respondent admitted that whenever the respondent and the appellant during their youth were together in Ma Ye's house they were treated in the same manner, except that the respondent alleged she was and the appellant was not trusted with the keys. The significance of that admission lay in the fact that the respondent was, on her own showing, a keitima adopted daughter. Accordingly, it was admitted that in Ma Ye's house the appellant was treated as a keitima adopted daughter was treated; and that applied not to weeks, or months, but years.  The matter of the keys did not detract from the admission, and presumably that was an indivisible privilege and the respondent was the elder sister.
  Again, the true question being, what was the relation? It was a question of secondary, although doubtless considerable, importance, when it began. The respondent and the Judges in the Court of Appeal had made much of the fact that the witnesses for the appellant ascribed the adoption, some to one period, and some to another. At the distance of 30 or 40 years it was not surprising that there should be some variance. But it had not been shown to the satisfaction of their Lordships how that objection met or got rid of a large body of evidence which went to prove that Ma Ye called both girls her daughters and told people they were her daughters, while Ma Ye's conduct towards the appellant completely accorded with the truth of the statements thus ascribed to her.
  It seemed probable that the  true solution of the question as to the time of adoption was the simple one adopted by the Judge of First Instance, that the father of the two spoke truly and that the appellant was adopted in her early childhood; that Ma Ye let the natural mother have the girl much with her while young; that the appellant's return to Ma Ye's house on the death of her natural mother looked of itself like an adoption; but that her position as Ma Ye's adopted daughter had existed all along. The vicissitudes of the appellant's matrimonial affairs threw her life into strong contrast with the more steady and stay-at-home life of the respondent; but those circumstances could not abate the result already brought about, while in one view they rendered the more significant the intimacy which subsisted between the appellant and Ma Ye, from the earliest days of the appellant down to the last moments of Ma Ye.  The Judges in the Chief Court of Lower Burma had discussed the evidence in much detail, some of their appreciations and discriminations being of a character more generally possible to the Judge who heard and saw the witnesses.  But towards the close of the judgment, Mr. Justice Birks said:- "It is clear that the act of adoption has been inferred from the conduct of Ma Ye to the plaintiff, and had  Ma Me Gale" (the appellant) "been the only daughter of Ma Ku, I think the Judge might have  been justified in his inferences. The conduct of this kindly old couple may be easily explained by the fact that the two sisters were very fond of each other, and that they did not wish to make any difference of treatment apparent."
That rather roundabout explanation was not to be found in the deposition of the respondent, who ought to have known, and was unsupported by the rest of the evidence. Nor does the learned Judge furnish any satisfactory explanation of the body of testimony which explained the identity of treatment by Ma Ye's own statements that both girls were hers. To say, as Mr. Justice Fox had done, that these things took place long ago, and that the Burmese were proverbially inattentive and inexact, was an observation which hardly met the circumstantial and unshaken evidence given by several persons on a point the importance of which was crucial, and on which cross-examination had failed of any substantial effect.
  Their Lordships were satisfied that the case was rightly decided by the Judge of First Instance, and they would humbly advise his Majesty that the appeal ought to be allowed, the judgment of the Chief Court of Lower Burma reversed with costs, and the judgment of the Judge of the Court at Moulmein restored.  The respondent would pay the costs of this appeal.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School