KAN FAT TAT ALSO KNOWN AS KAN FAT v. KAN YIN TAT ALSO KNOWN AS KAN TAT

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HEAD NOTES

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1982, No. 865

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. The Plaintiff is the younger brother of the Defendant. They are the only sons of Kan Shiu Cheong, who died in 1922, domiciled in the New Territories. Their family have lived in the Tsung Pak Long Village, New Territories for at least 5 generations. The Plaintiff has 2 sons and no grandson. The Defendant has 7 sons and 9 grandsons.

2. Their parents were farmers in the Village with modest means, tilling a few pieces of land which were either inherited or purchased by Kan Shiu Cheong together with his brothers.

3. Between 19th December 1935 and 26th January 1949, 18 lots of land in D.D. 91 and 92 were purchased in the name of Kan Shiu Cheong Tso, with the Plaintiff and the Defendant registered as managers, under s. 15 of the New Territories Ordinance. Of these 18 lots of land, Lots 2866 and 2868 in D.D. 91 were apparently sold in 1938. There is disagreement over the circumstances of this sale and the disposition of the proceeds of sale, I will return to them later in the judgment.

4. Of the remaining 16 lots, 11 lots have been resumed by the Crown. In their place, there are now the cash compensation and letters B (hereinafter referred to collectively as compensation) pleaded in paragraph 5 of the Re-amended Statement of Claim. These 16 lots together with the 3 lots referred to in the next paragraph comprise the 19 lots referred to in paragraph 9(2) of the Re-amended Statement of Claim. And it is in relation to these 19 lots that the Plaintiff claims "a declaration that division of the said 19 lots of land and any proceeds therefrom or resumption money representing the same and income thereof be made equally between the Plaintiff and the Defendant representing the 2 fongs of Kan Shiu Cheong Tso, i.e. on a per stirpes and not on a per capita basis. "

5. Apart from the lots purchased and registered in the name of Kan Shiu Cheong Tso, the Plaintiff and the Defendant also inherited 3 lots, namely, lots 565, 573 and 574 in D.D. 92 which they also caused to be registered in the name of the Kan Shiu Cheong Tso, with themselves as managers thereof.

6. Unfortunately a dispute has arisen between the Plaintiff and the Defendant over the disposition of the compensation. The Plaintiff contends that the compensation should be distributed and that such distribution should be made per stirpes. The Defendant contends that on resumption, a resulting trust arose and the managers should hold the compensation on a resulting trust for the Defendant who it is alleged was the settler of these 11 lots. Alternatively the Defendant contends whether there should be any distribution must be decided by the members of the Tso unanimously or preferrably by a majority thereof, and that in any event distribution in accordance with Chinese customary law should be per capita.

7. It is convenient to commence the family story with the grandfather. There is a family tree which has been produced as EX. P.l. There is no dispute about its accuracy. The grandfather, Kan Ping Tai, had 3 sons, of whom Kan Shiu Cheong was the eldest. His other sons were Kwai Cheong and Pui Hing. Some land were owned in the name of Kan Ping Tai Tso of which, the Plaintiff, the Defendant and their cousins, Sum Yee, only son of Kwai Cheong, and Muk Tai, one of the sons of Pui Hing, were managers.

8. The father, Kan Shiu Cheong was a farmer, but at times he also worked as a coolie. I believe he was poor.

9. The Defendant, who was born in 1900 has had very little education. He helped in the family fields, and started working as a caddy at weekends at the Golf Club when he was 12. He became an earth coolie when he was 17, presumably as soon as he was old enough. Until 1917, his uncles lived with his father and his family. In 1917, when Kwai Cheong was married, he moved out and in 1918 when Pui Hing married he also moved out. After they moved out they ceased to be one household, and land whether inherited or owned jointly were divided and cultivated by the 3 brothers separately. Although there was no formal division of title, the land was cultivated separately as if they formed separate holdings. When his father died in 1922, the Defendant had to borrow $40 from a distant relative Kan For Hing for the funeral.

10. Insofar as Kan Shiu Cheong's family could be described as a Ka, meaning family, the Plaintiff and the Defendant's respective families, constitute fongs (literally rooms) in that Ka, or branches of that Ka.

11. The Defendant started work with a company when he was 20, which later became known as Hong Kong Excavation and Piling Pile Diving and Construction Co. Ltd. (HK Excavation), initially at 50 cents a day, after 7 months it was raised to 70 cents and after a year to $1 a day when he became foreman. He and his mother and an elder sister, the latter two continued to work the family land, were the sole support of the family. At that time the Plaintiff, who was born in 1903, was too young to work. Indeed, the Defendant told me and I accept that he supported the Plaintiff in his education. In the result the Plaintiff probably became the best educated member of Kan Ping Tai's family, when in 1932 he graduated with a diploma for passing the Junior School Examination of the University of Hong Kong with distinction in arithmatic. His uncles Kai Hing and Pui Hing were, I am told, poorly educated. His mother was illiterate and could not even sign her name.

12. The family lived at house no. 32 Tsung Pak Long Village, which had been passed from first born son to the first born son for at least 5 generations. In due course, the Defendant also inherited house no. 32.

13. As I have said the Plaintiff's father who owned land together with his brothers, or inherited land from Kan Ping Tai together with them, divided such land between his brothers and him for the purpose of cultivation and income so that after such division although the land would remain registered in their joint names, they would cultivate the land and enjoy the income separately. It also appears that as the eldest son, Kan Shiu Cheong was given a bigger share. It is accepted by the Plaintiff, that as the elder son the Defendant was entitled to what he called the 'elder son's share', however, he claimed that such share had been satisfied when the Defendant was allowed to purchase with family assets, a property at Keeloong Street, Kowloon in his sole name. I will deal with that allegation in due course.

14. Returning to the Defendant, as I said he worked as a foreman at HK Excavation. His work mainly, if not, solely, involved gypsum plastering work. His immediate superior was a Charlie Shank who obviously thought highly of him. He worked there for more than 10 years and when HK Excavation ceased business in 1932, the Defendant was given good testimonials by them. Also by 1932, he was earning $65 a month.

15. The Defendant married in 1924. His wife lived with his elder sister and mother in the Village who all worked the family land. In 1931, his first son was born. They were self supporting. But the Defendant would give his mother his surplus income, as he described it, as pocket money, no doubt to be spent on things which were not necessaries.

16. After the cessation of business by HK Excavation, the Defendant returned to the Village and started a sub-contracting business. One of his first job was to build a well at the Fanling Lodge. He needed very little capital. What little he needed, he borrowed from his father-in-law. I believe he did not use any family money in establishing that business. It is also clear that he obtained no help from his family in that business at all.

17. He worked as such sub-contractor using the Chinese name of Tat Lee for about a year until he met Charlie Shank at Fanling Lodge who offered him work as a foreman with Eastern Mercantile & Construction Company, at $50 a month. He accepted. After a few months, Charlie Shank asked him to take charge of a gypsum factory at Tsun Wan owned by Simplex Gypsum Products Ltd. (Simplex Gypsum).

18. He was paid $50 a month together with $13 travelling expenses. I find that the sub-contracting business terminated when he went to work for Eastern Mercantile.

19. In the meantime the Plaintiff had graduated from Queen's College at the end of 1932, having passed the Junior School Examination of the University of Hong Kong.

20. Sometime in 1933, the Plaintiff commenced work at China Light as a trainee meter reader. There is some dispute over the position of the Plaintiff at China Light and his earnings. The Defendant called him an office boy and derided him for being a trainee meter reader for 2 years. I am inclined to think that the commencement salary might well have been $16 a month but would not be surprised if by the time the Plaintiff left he was earning $27 or $28 a month.

21. Also sometime in 1933, the Defendant commenced his new sub-contracting business, acting mainly, indeed solely initially, as a sub-contractor for Simplex Gypsum. He was given credit by Simplex Gypsum for the supply of gypsum. As for setting up expenses, he borrowed what he needed, namely, $400, from his father-in-law. I am satisfied that he did not receive any financial help from his family in setting up the sub-contracting work which he carried on in the name of Kan Tat. In Chinese it was known as Tat Lee. He used House No. 32, Tsung Pak Long Village as the business address, I believe, not so much because the business was run from there but because he had no other permanent address.

22. In June 1934, the Defendant was given a sub-contract by Simplex Gypsum in relation to the gypsum plastering work at the Hongkong Bank head office building then to be constructed.

23. In March 1935, presumably because of the pressure of work on the Defendant, Simplex Gypsum wanted a new foreman/storekeeper for their Tsun Wan factory. The Plaintiff was recommended and got the job though only at $30 a month without travelling expenses. The Plaintiff did not last very long in that job. According to the Defendant because the Plaintiff could not get along with the workers, according to the Plaintiff because the job was meant to be temporary and the intention was that he should help the Defendant in his sub-contracting work at the Hongkong Bank Building. I think the truth probably lies somewhere between. I am not surprised that a young man of 22 who had little working experience and no relevant working experience should be unable to perform the job of a foreman/ storekeeper satisfactorily. On the other hand, it seems natural that the Defendant would wish the Plaintiff to work for him if the Plaintiff could be offered a job. In any event, the Plaintiff started work at Kan Tat in June 1935. His monthly pay was $30.

24. One of the issues in this case, and one which occupied a substantial amount of time, is who owned the business Kan Tat. According to the Plaintiff, it was a family business, and as the Defendant and he are the only sons, they owned the business in equal shares. According to the Defendant, the business was his. This issue is important in the event of resulting trust, because all the lands resumed were purchased with profits from this business.

25. The Plaintiff told me that even before he left China Light he had helped the Defendant with calculations and measurements after office hours or during week ends. He said he would not have done so had he not believed that the business was a family business. That I do not accept. I have no reason to believe that their relationship was not close. I do not believe the Plaintiff would have refused to help the Defendant even if he had been told that the business was the Defendant's own and not a family business. The Defendant denied that he asked the Plaintiff to help him. On balance I accept the evidence of the Defendant. In any event, the evidence of the Defendant, which I accept is that he had employees to help him with his sub-contracting work and the Plaintiff was unable to help him because he had no relevant experience. But even if the Plaintiff did give the Defendant some help, I am of the view that such help would have been given, as a brother would to another, without any belief or expectation that thereby he would acquire any interest in the business, and without any belief that the business was a family business.

26. On the evidence, I am satisfied that the business Kan Tat was not established with family money or family help. Indeed the Plaintiff did not suggest that any family money was used in establishing the business, though he claimed that after the business was established, both he and the Plaintiff contributed capital for the purchase of items needed. I do not accept that. Nor do I think the Plaintiff ever believed that the business was a family business or that he had an equal or any share in it.

27. The Plaintiff claims that the name Kan Tat in English is an abbreviation of his name, Kat Fat Tat, and the Defendant's name, Kan Yin Tat. I should be very surprised if the two names would ever have been abbreviated in this way. In business, the Defendant was known as Kan Tat and the Plaintiff Kan Fat. Indeed, their identity cards give their names as Kan Tat and Kan Fat respectively. I do not believe the business name Kan Tat was an abbreviation of the Plaintiff's and the Defendant's name : I believe it was simply the Defendant's name which was used as the business name.

28. Some point was taken over the Chinese name of the business which I will romanise as "Tat Lee". The name does not help the Plaintiff at all. If anything, the combination of the character "Tat", with the character "Lee" meaning profit, suggests that it was the Defendant's, Kan Tat's, business. However that may be I do not find this useful in helping me to decide the ownership of Kan Tat.

29. The properties which were purchased in the name of Kan Shiu Cheong Tso, are set out in EX. P.2. The first such lots were purchased on 19.12.1935 and the last in 1949. They were purchased for a total sum of $1,816. The last lot namely, lot 1217 in D.D. 95 was purchased with funds provided by Kan Tat & Company, a partnership formed after the War. I shall disregard this lot for the present purpose.

30. Of the other 17 lots, the Plaintiff tells me that they were purchased in the name of the Tso with profits from Kan Tat, which according to him was a family business, because they wanted to honour the memory of their father.

31. The Defendant says that it was purchased with profits which belonged to him only, they were put in the name of a Tso because that would make them practically inalienable and because he wanted the income for the education of descendants and to defray the expenses of ancestral worship.

32. Whatever might have been the intention, I believe in the event of a conveyance to a Tso, the law will presume an intention to create a trust over the properties, in favour of the members of the Tso from time to time, subject to such limitations or conditions as may be imposed on such properties by Chinese custom or customary rights affecting such land. I also believe that the primary object of the Tso would be the veneration of the ancestor in whose name the Tso was established. Any surplus income would normally be used for education, and other worthy causes.

33. The resulting trust point raises interesting and important points of law.

34. To appreciate it fully, one has to begin with an examination of the New Territories Ordinance, and in particular, section 13 thereof.

 

Section 13 provides -

 

"In any proceedings in the High Court or the District Court in relation to land in the New Territories, the court shall have power to recognize and enforce any Chinese custom or customary right affecting such land.

35. The effect of s. 13 is that the Court must recognise and enforce any Chinese custom or customary right affecting such land. See Tang Kai Chung and another v. Tang Chik-Shang and others 1970 HKLR 276 at 295.

36. What is a Tso? With respect, I believe, Mills-Owens J. correctly described it ibid at p. 279

"Speaking generally, a Tso may be shortly described as an ancient Chinese institution of ancestral land-holding whereby land derived from a common ancestor is enjoyed by his male descendants for the time being living for their lifetimes and so from generation to generation indefinitely. Thus every male descendant of the common ancestor automatically becomes entitled at birth to an interest in the land for his life-time; on his death his interest merges so as automatically to enlarge the interests of the surviving male descendants; thus his interest at any given moment during his lifetime depends on the number of male descendants then living and on his death it forms no part of his estate. But this is  speaking generally; some elaboration will be required in the present case. A Tso is named after the common ancestor.........A Tso (of the nature which this case concerns) is formed not by the common ancestor but by his son or sons on or after his death, and as a matter, it would seem, of filial duty in accordance with Confucian tradition for the purpose of veneration of the common ancestor. "

37. I will in due course examine the evidence of the experts in Chinese law called by the parties, but I believe nothing they said detracted from Mills-Owens J.'s description of Tso.

 

Further Mi11s-Owens J. said at p. 294 -

 

"Apart from the provisions of the New Territories Ordinance, I have no doubt that the trusts of the Tso would be invalid either as being contrary to the rule against perpetuities or as creating a mode of devolution unknown to the English common law (the rule and the law relating to the creation of unauthorised modes of descent both applying to the Colony by virtue of section 3 of Cap. 88. ) I would refer to the Privy Council cases of Yeap Cheah Neo v. Ong Cheng Neo and Cooper v. Stuart; para. 565 of 29 Halsbury's Laws pp. 277-8 (see also Cheshire (9th Edn. ) p. 235 et seq. ); and the local cases of Lau Leung Shi v. Lau Po Tsun and In re Chan Quan Ee). "

38. It seems to follow that certainly for as long as the land is registered in the name of a Tso, it is not subject to the rules against perpetuities. I believe it is clear that any attempt to settle land outside the New Territories in the form of a Tso would be void because of the rule against perpetuities. In other words, unless Chinese law and custom applies, the rule against perpetuities is part of the law of England applicable to Hong Kong by virtue of S. 3 of the Application of English Laws Ordinance Cap. 88 The relevant provisions of which provide :

"(1)    The common law and the rules of equity shall be in  force in Hong Kong -

 

39. Perhaps I should describe briefly how English law came to be introduced to the New Territories.

40. The New Territories Order-in-council of 1898 provided, inter alia, that -

41. On 8th April 1899, the Governor, in pursuance of the New Territories Order-in-Council, proclaimed and directed -

"that from the said 17th April 1899, all laws and ordinances, which shall at such date be in force in the Colony of Hong Kong, shall take effect in the (New Territories) and shall remain in force therein until the same shall have been altered or amended by Her Majesty or by the Governor of Hong Kong, by and with the advice or consent of the legislative council. "

42. It will be seen from the above brief historical narrative, condensed from the judgment of the Chief Justice in Winfat Enterprises (H.K.) Co. Ltd. v. A.G. 1984 HKLR 32, how the law of Hong Kong and with it the law of England were introduced to the New Territories. Therefore to ask whether the rule against perpetuities was ever introduced to the New Territories, one has to ask whether the rule formed part of the Law of Hong Kong on 17th April 1899.

43. As at 17th April 1899, I believe, there was little to distinguish Hong Kong from Penang such that had the matter arisen for decision on appeal from Hong Kong to the Privy Council, the Board would have reached the same conclusion as in Yeap Oheah Neo and others v. Ong Cheung Neo, and held that the rule against perpetuities applied to Hong Kong.

44. So I am of the view that generally speaking but for the New Territories Ordinance, the rule against perpetuities applied to the New Territories since 17th April 1899.

45. Here 11 lots have been resumed.

46. On resumption, the land reverted to the Crown. In its place, are letters B and cash compensation. Letters B are not land. See Yan Fook Hong Co. Ltd. and another v. A.G. Civil Appeal No. 136 of 1984.

47. The definition of land in the New Territories Ordinance, which is inclusive, does not include proceeds of sale or compensation for compulsory acquisition of land.

48. In my opinion, prima facie, the compensation cannot be regarded as land and insofar as the application of Chinese custom or customary right depends on s. 13 of the New Territories Ordinance, such Chinese custom or customary right ceases to apply upon reversion of the land to the Crown. The right to compensation is a chose in action, and the actual compensation are Letters B and cash. Neither is land

49. That being the case, one has to ask whether the rule against perpetuities applies to such compensation.

50. That would depend on whether such application would cause injustice or oppression. See Yeah Cheah Neo and others v. Ong Cheng Neo 6 P.C. 381 and per Hogan C.J. in Re Tse Lai-Chin deceased at 177.

51. But in determining whether application of English law would cause injustice or oppression, one has to ask as Hogan C.J. did ibid at p. 178 "Injustice! At what time?"

52. On that authority, I am entitled, indeed bound, to consider the question of injustice as at the time of resumption.

53. However, one sees the difficulty of any approach which suggests that the applicability of English law may depend on varying circumstances. That would give rise to great uncertainty. How would one know when a rule of law may apply or cease to apply. With respect, I agree with Mills-Owens J. when he said -

"There is considerable force in the Hong Kong decisions commencing with that of Sir Fielding Clarke C.J. in 1893, which I take to be, in part, to the effect that Hong Kong on being granted a legislature in 1843, and at the same time endorsed with a body of law to set it on its path, was intended thence forth itself to legislate for any change of circumstances which might occur in the future. Otherwise the greatest uncertainties might arise; certainly if one attempted to distinguish between one inhabitant and another. "

54. Indeed Hogan C. J. adverted to the same difficulties at p. 181.

"An unwelcome consequence of recognizing such change is the measure of uncertainty that it may create. Faced with a position where it could be said that, although earlier circumstances were such as to preclude the application of English law, those circumstances had altered and therefore English law might now be applicable, would not legal practitioners have great difficulty in advising their clients from day to day? "

55. However, after spending some 10 pages of his judgment dealing with this question, he concluded at P. 187 -

"Similarly, if, in a case like this, the court had, for the purpose of determining testamentary capacity, construed the 1844 enactment or the 1873 enactment when it was first introduced, the court would presumably have analysed contemporary circumstances with a view to seeing whether they excluded the application of English law. If the circumstances justifying exclusion continued to exist or came into operation at a later date then they would, presumably, operate to exclude English law at the later date but would that mean that only circumstances identical with those prevailing at the date of the enactment could have this effect? The category of such circumstances could hardly be closed at that time. Other and different circumstances might arise at a later date but with the same effect or characteristics i.e. that of leading to injustice and oppression if English law were applied to them. It would seem that when such circumstances  arise then section 5 (now s.3 of the Application of English Law Ordinance) must operate to prevent the application of English law. Similarly, it would seem that if the circumstances giving rise to hardship ceased to exist or their impact is altered so that they no longer give rise to injustice or oppression then the conditions prescribed by section 5 for the exclusion of English law would not operate and consequently, at this point, English law could become applicable, but amongst the factors to be weighed would be the danger that a departure from what had long been accepted might itself cause hardship.

 

It would be unrealistic to ignore entirely the passage of time and any alteration of circumstances so as to hold not only the words in the 1873 enactment etc. have today the same meaning as the words in the earlier enactments, but that the relevant circumstances are the same. Even if the words have the same meaning in the sense that they should be interpreted in the same way, that meaning and that interpretation would have to be applied to the circumstances and the position prevailing subsequently and one should not substitute for these the earlier circumstances and conditions. If the section in question had said English law will not apply to anyone who has an income of less than $20,000 a year and, as a result, all the Chinese inhabitants then living in Hong Kong were excluded in 1843, it would hardly be suggested that every Chinese subsequently coming to the Colony should be excluded, irrespective of what his income might be, simply because he was Chinese. Would it be more reasonable to argue that if the circumstances of those Chinese who were then living in Hong Kong were such as to fall within the exception expressed in the 1844 Act, all Chinese, whatever their circumstances, subsequently residing in the Colony would be similarly excluded? "

56. Mills-Owens J. at p. 196 seems to be of the view so far as local circumstances of Hong Kong was concerned, the Court was entitled to take into account the current situation. Rigby S.P.J. did not express any view on the matter.

57. S.5 of the Application of English Laws Ordinance has been substantially re-enacted (now s.3) in 1971, and I am mindful of Webb v. Qutrim 1907 A.C. 81 at 89. I believe one can say that the legislature must be taken to have intended the words, which have received authoritative interpretation by Hogan C. J., to bear the meaning which has been put upon them by him.

58. I believe therefore I should consider the question of injustice or oppression as at the time of resumption.

59. In this context it is relevant to understand the rationale behind the rule against perpetuities. At P.394 Sir Montague E. Smith, in delivering the advice of the Board, said:

"This rule (the rule against perpetuities), which certainly has been recognised as existing in the law of England independently of any statute, is found upon considerations of public policy, which seem to be as applicable to the condition of such a place as Penang as to England; viz, to prevent the mischief of making property inalienable, unless for objects which are in some way useful or beneficial to the community. "

60. I believe that such considerations of public policy apply as well to the New Territories. However, the legislature has by the New Territories Ordinance, made an exception at least in the case of New Territories land registered in the name of a Tso. So I must accept that it is not considered to be contrary to public policy that land in the New Territories should be dedicated for a purpose which would have been regarded as void as against perpetuities as a matter of English law.

61. The question then is, since the Ordinance has made an exception of New Territories land dedicated to and registered in the name of a Tso, would it be unjust or oppressive to apply the rule against perpetuities to the compensation for such land on compulsory acquisition?

62. I accept one must draw a line somewhere. I do not believe one can validly set up a perpetual purpose trust which is not charitable. The only statutory exception seems to be New Territories land registered under s.15 of the New Territories Ordinance. So the Legislature has obviously drawn the line at land. That being so, is it open to the Court to say that in the event of compulsory acquisition, compensation is also excepted so that the Tso could continue with letters B and cash instead of land?

63. Before answering that question, I wish to consider whether as a matter of Chinese customary law, a Tso could exist if its assets consisted of moveables only.

64. On the subject of Chinese customary law, I have been greatly assisted by the expert witnesses called on behalf of the parties. Mr. Dicks, who was called on behalf of the Plaintiff, needs no introduction. He is well qualified as an expert. Dr. Hugh D.R. Baker, the author of "A Chinese Lineage Village : Sheung Shui", and "Chinese Family & Kinship", is a Reader in Modern Chinese and Head of the Contempory China Institute at the School of Oriental and African Studies, University of London, and is wellknown in academic circles and his expertise in Chinese customs, especially those of Sheung Shui is well recognised. Mr. Lo Hsien-Han who was also called on behalf of the Defendant holds a Bachelor of Laws degree from Chungking University and from 1958 until he retired as Senior Land Executive in 1979, worked in the New Territories Administration and therefore was in an enviable position to observe New Territories customs in operation. Each of them has prepared a draft affidavit which was confirmed and expanded on by them in their evidence. Although I have found the elucidation by them in their oral evidence helpful, I find as one would expect, the gist of their evidence has been carefully stated in such draft affidavits. Accordingly on most points I need only refer to the draft affidavits in the judgment.

65. It appears from the evidence of Mr. Dicks and Dr. Hugh Baker that as is natural in any agricultural society, since the main form of wealth or at least income producing property was land, one would expect Tso properties to be made up of land. However, I understand their evidence to be that as a matter of Chinese customary law, Tso property may consist of moveable assets as well as land. Moreover, they do not say and I do not understand their evidence to imply that, as a matter of Chinese custom law, Tso assets may not solely be in moveable assets. In any event, the Kan Shiu Cheong Tso owns other lots of land which have not been resumed. So, in my view, there is no difficulty, so far as Chinese customary law is concerned, for the Tso to continue notwithstanding conversion of the 11 lots into compensation. But what is the position as a matter of the law of Hong Kong?

66. In the passage from Mills-Owens J.'s judgment in Tang v. Tang at P. 294 cited above, he said "Apart from the provisions of the New Territories Ordinance, I have no doubt that the trusts of the Tso would be invalid either as being contrary to the rule against perpetuities... " Did the learned Judge intend by that statement to say that the rule against perpetuities must necessarily apply to compensation on resumption of Tso land? If so, unless I am convinced he is wrong, I should follow him, as a matter of judicial comity. I am of the opinion that the learned Judge did not so intend. So I can answer the question free from the constraint of binding authorities.

67. I have not find the question easy to answer. Doing the best I can, I have come to the conclusion that it would be unjust or oppressive to apply the rules against perpetuities to such compensation. It would be unjust and oppressive because it would effectively render void or destroy Tsos in the New Territories, some of which were purposely set up under the protective umbrella of the New Territories Ordinance, and others of antiquity. I am told some Tsos go back hundreds of years. In this context I do not believe it is important at which time one should consider the question of injustice. Though I apprehend that the feeling of injustice and oppression would have been stronger in 1899 than say in 1982, when the last of the 11 lots were resumed. I do not believe the legislature ever intended to destroy Tsos by a side wind. The definition of land in the New Territories Ordinance is inclusive. I do not read from it any intention on the part the legislature deliberately to exclude such compensation from the protection of Chinese custom. I hasten to add that I do not decide what the position might be regarding the applicability of the rules against perpetuities to the proceeds of voluntary sales where different considerations may apply. That question does not arise here and naturally I would not deal with it.

68. But in the event that the rule against perpetuities applies to such compensation, Mr. Chang argues that the English concept of resulting trust should not apply. That would only be right if it would be oppressive or unjust to apply it. He further argues that the Tso having been struck down by the rule against perpetuities the compensation should be divided amongst the members for the time being per stirpes. I do not know why that should be so. Why should not the settlor who may wish to reinvest the compensation in New Territories land and to rededicate it to a Tso be given the opportunity to do so? In most cases, it might not have mattered, because the settlor would have been dead a long time, and whether the compensation should devolve on an intestacy or in the event of a resulting trust, the same people would benefit. But that is not the point. I believe it would not be unjust or oppressive to apply the doctrine of resulting trust if it would not be unjust or oppressive to apply the rule against perpetuities.

69. But if I am wrong and the rule against perpetuities applies, I am of the view that it renders the Tso void. It is a purpose trust in perpetuity and it is not a charitable trust. See Megarry and Wade, The Law of Real Property 5th ed. P. 296. That being the case, if it applies, then ordinary equitable principles of resulting trust will apply. The property will revert to the settler.

70. It is therefore important to consider who was the settler.

71. The purchases were made with profits from the business of Kan Tat, which was established in 1933 and terminated when the Japanese occupied Hong Kong.

72. Who owned Kan Tat?

73. The Defendant claims that he was the sole proprietor and that the Plaintiff was a mere employee.

74. The Plaintiff claims that he had an equal undivided share in the business, on either of 2 bases:

75. This concept of family property is said to be part of Chinese customary law, and which was part of the law of Hong Kong. This concept is clearly inconsistent with English law relating to individual ownership.

76. The concept is of wide implication. It is described in Jamieson, Chinese Family and Commercial Law at pp. 24 and 25.

"II. - Next as to the mode in which the family property is divided. This consists not only of all ancestral inherited property and the accumulations made by the head of the family, but also of all property acquired by the sons. Prior to division, the family is an undivided whole, holding all things in common. The father is nominal owner, but each of the sons has an expectant interest in his share, of which he cannot be deprived. The earnings of every member are brought into a common fund, and no one has a right to compel a partition or to withdraw from the society until it is dissolved by mutual consent or by the natural demise of the head. The division of the property is therefore an important event. It corresponds to the Emancipatio of the Roman law. The sons become sui juris, and thereupon a new set of rights comes into existence. Prior to division a deceased son's estate reverts to the common fund, after division it devolves on his sons or adopted successor according to the general law. No distinction is made between land and any other kind of property. To come within the scope of this general rule, however, it must be understood that the sons have, as a matter of fact, held together up to the time of a division. A partial dissolution often occurs when one son leaves the family for an official position or for purposes of trade in a different part of the country. He is held to be "separately established," and his earnings would not fall into the common fund for distribution. Whether he would share or not would depend upon the arrangement at the time of his separation.

The persons entitled to the family property, as thus defined, are-

(1) - All sons and their male descendants, whether born of the principal wife or of a concubine. These divide the whole of the estate equally between themselves, grandsons getting a father's share. Daughters are not entitled to any share. If they are already married they have left the family for good, and of course have no further claim; but a certain sum, as agreed upon in each particular case, is set apart before division for the marriage expenses of those still unmarried. As regards other things these latter form part of the household of the eldest son, who on that account not unfrequently gets a somewhat larger share.

Mr. Dicks describes family property in his draft affidavit

77. If the concept of family property is still applicable to Hong Kong today it can have very wide implications. It would appear that a father can compel his children to hand over their earnings. Indeed it is an essential part of the concept that "no one has a right to compel a partition or to withdraw from the society until it is dissolved by mutual consent or by the natural demise of the head. " See Jamieson, op cit. For as long as the father is alive, and in the absence of consent, the sons' income belong to the family even after they have their own families. And more importantly, under the concept of family property, although the head might not have been regarded as absolute owner, he had almost absolute power of disposition over the family property. Nor is it confined to claims by fathers, it would certainly enable sons to claim against their father's estate, and brothers against brothers too.

78. Was family property ever part of the law of Hong Kong, if so, has it ceased to be so, and if so, how and when? It may be that there is no satisfactory answer to all these questions.

79. But whatever the position, it was the opinion of Hogan C.J., in re Tse Lai Chim, deceased, op. cit. at P.192-3 that "Anyone discharging the functions of a probate judge in Hong Kong can be only too well aware that testamentary capacity in accordance with English law has been assumed and acted upon by many Chinese members of the community for a long time past, just as individual rather than family ownership has been widely accepted amongst all sections of the community. " I believe by "a long time past" the former Chief Justice meant, for as long as one could remember.

80. Moreover, it is implicit in Re Tse Lai Chim that the concept of family property was not or had not been part of the law of Hong Kong for a very long time for had it been otherwise, and the concept was applicable to Hong Kong during part of testator's lifetime, so much of his property which was acquired during that period could not have been freely bequeathed by him.

81. I do not believe even in the thirties, and even in the New Territories, family property or ownership was part of the law of Hong Kong or that there was acceptance of this concept which would have impressed a plastering business with the characteristics of a family property. Indeed, I find it difficult to grasp a concept of family property (I exclude land in New Territories from this consideration because of the New Territories Ordinance) which could be said to apply to some Chinese inhabitants and not others. Or that this concept could apply, as it were, by choice or inclination. If the concept applied to Hong Kong at all, it must be on the basis that English Law relating to individual properties were not applicable to Hong Kong because it would have been unjust or oppressive so to apply them. Whatever the position might have been in 1843, when Hong Kong was a barren rock, by 1899, when New Territories became a part of Hong Kong, I believe family property was no longer part of the law of Hong Kong and therefore it was not imported into the New Territories by the Proclamation. Another way, a better way, of putting this, is to say that by 1899, English law relating to individual ownership was part of the law of Hong Kong, which was made applicable to the New Territories by the Proclamation. In this context I recall the rhetorical question of Hogan C. J. and ask "Injustice! At what time?" Whether the relevant time be 1843, 1899 or 1933 (when Kan Tat was started), I am of the opinion that the English law concept of individual property applied to Hong Kong to the exclusion of the Chinese concept of family property. My conviction that this is so, grows stronger the further one gets away from 1843, from a probability in 1899 to a virtual certainty in the 1930s, to certainty today.

82. Indeed, a decision by the Supreme Court in Nanking the highest Court in China on 13th September 1920, (applying Chinese customary law), suggests that the concept of family property, even as a matter of Chinese customary law, might not have been applicable to the business of Kan Tat. I quote verbatim from the report : See China Law Review Vol. 2, Nos. 1-8, 1924-1926 at P. 89.

"Syllabus

 

One cannot claim a share of what is earned by the personal efforts of one's brother, though the family estate is yet undivided.

 

Facts

 

A and B were brothers. The father, upon his death, left an inheritance of no great value. Instead of taking a share therein, B went away to make his own way through the world. After a few years, he amassed a fortune of millions of dollars. The question is, whether A has a share in the earnings of B.

 

Decision

 

A has no share.

 

Reasons

Since B went out to start business on his own account without taking anything of the common undivided inheritance, what he earned through his own efforts rightfully belongs to himself. It would work high injustice if A is allowed to share the profits, toward the getting of which he contributed no part whatever. "

83. Even if Chinese customary law concept of family property applied, on the authority of this, I would hold Kan Tat was not a family property and the Plaintiff had no share in it.

84. That being my opinion on the applicability of the Chinese concept of family property, I have to go on to consider whether the Plaintiff had by his effort or contribution, if any, acquired any interest in the partnership. In this context, there is evidence that after the War, the Plaintiff and the Defendant carried on 2 partnership businesses. I need only deal with one of them. The other lasted only a short time and throws no new light on the matter.

85. As I have said the business Kan Tat was terminated as a result of the Japanese occupation of Hong Kong. After the War, a new business was established. It was called Kan Tat & Co. It was a partnership and capital was contributed and the profit and loss were shared 4:11 between the Plaintiff and the Defendant. The Plaintiff's explanation for the unequal share is that he was not confident of the business prospects. That I do not believe. Rather I think the unequal shares reflected their relative experience and importance.

86. The Plaintiff's other explanation for his being a junior partner in Kan Tat & Co. is that between the War, he and his brother already had an informal division of the family property so that from then on one could say that they were separate households. I will return to this informal division later.

87. I believe it is unlikely that before the War, the Plaintiff and the Defendant would have accepted or agreed that the Plaintiff should be an equal or indeed a partner. Anyone who has lived in Hong Kong for a long time would know that it was not uncommon even in the 1930s, for a brother to work for another brother for a wage. It is said that the Plaintiff was paid $30 a month throughout. However according to the Defendant, who I believe, the Plaintiff was at times allowed some extra payments. In any event, in the days of relatively stable prices, I would not be surprise, if raises in wages would have been the exception rather than the rule, if one stays in the same job. I believe the Plaintiff was an employee of the Defendant before the War in the business of Kan Tat and as he was paid for his work, I do not think he could acquire any interest in the business as a result of his employment. Nor do I think the fact that part of the Defendant's family lived in the village, or the use by the business of the ground floor of 174 Fa Yuen Street make any difference.

88. After the close of evidence, indeed, after Mr. Wei had finished his address, the Plaintiff applied for leave to Re-re-amend his Reply and Defence to Counterclaim in terms of paragraph 3A of the same. I granted leave.

89. In essence, the Plaintiff asserts that even if the profits which was used for the purchase of the Tso Land was not family money (because the business was not a family business) the Defendant had made a gift of such profits to his mother for the purpose of constituting the same as family funds.

90. There is an interesting background to how such profits were made.

91. Shortly after the Defendant started his sub-contracting business for Simplex Gypsum in June 1934, he was given the sub-contract for the plastering work for the new Hong Kong Bank Head Office. It was a lucrative contract. However, in September 1935, there was some extra plastering work which the Defendant was invited to tender for. He told me that he did not want to do this extra work principally because his second wife (Madam Lui Choi Fung) had died shortly before. So he put in a tender at $8.40 per linear foot instead $.70 which would have been right. To his surprise and no doubt delight his tender was accepted. As a result he made a windfall profit of $11,000. His total profit from the Hong Kong Bank Head Office sub-contract exceeded $24,000.

92. He said that at the end of October 1935 he collected approximately $22,000 of his profits from the Bank, he immediately returned home to his mother and showed her the money; to make her happy because they had always been poor. It was a small fortune. Indeed, as Mr. Chang suggested, the Defendant might well have said to his mother, showing her the money, "We are rich!" or some such expression. He said he asked his mother to keep the money for him but he also made clear to her that if and when he needed money he would take the money back. He said he never intended to make a gift of it to his mother or to his family and he made that clear to her; that the money was his to be spent as he pleased and if he pleased he could spend it on say purchasing land in the name of a Tso, to be named after his father, principally for the education of descendants. That would benefit his as well as the Plaintiff's descendants. He set particular store by education. Probably partly because he had very little education, and partly because of the general respect for learning which permeated all levels of Chinese society. He said he told his mother that he would want to buy some land and would ask her for the money when he decided to buy. His mother apparently buried the money! He was asked why he did not open a bank account. His explanation was that in the 1930s it was very difficult to open a bank account and one needed a guarantor for the purpose. I believe him.

93. He said about 6 months later he managed to open an account with the Bank of East Asia but he left the money with his mother.

94. The money was used to buy the 17 lots of land referred to above.

95. In addition, in 1936, he purchased a property at Keeloong Street for $5,400 in his sole name.

96. Also he purchased 174 Fa Yuen Street for $8,400 in January 1937 in the joint names of the Plaintiff and him. It is not disputed that he intended to purchase this property in the name of the Tso but had the property registered in their joint names, when that turned out to be impossible because the property was not situated in the New Territories. I should add that the Defendant also said that this property was registered in the Plaintiff's name as a reward for his diligence in his work at Kan Tat.

97. Part of the money was used for the Defendant's wedding, and household expenses.

98. I am asked to infer from the above, that the Defendant intended to and did make a gift of the profits to his mother or his family.

99. On balance, I believe, good son and brother that the Defendant was, he nevertheless made it clear to his mother that although as a filial son he intended that she should never want for anything, the money that he handed over was meant to be kept by her for him. Indeed, for as long as he had no banking account, it is difficult to think of a safer place. He lived more or less on building sites. He had even then at least 2 wives and it is doubtful how much he trusted either of them. Even if he trusted his wives, unless he were to split the money into 2 halves and allowed each half, preferring one over the other would probably lead to domestic discord. I think it was quite natural that he should have kept the money with his mother. Indeed, even after he had a bank account, it is doubtful how much a person of his background would have trusted a bank.

100. I do not believe the circumstances narrated above show that he intended to or did make a gift of the money to his mother or the family. Nor do I think when he handed the money over he was doing so pursuant to the Chinese concept of family property. In this context I am not dealing with the concept of family property as a matter of Chinese law, which willy nilly, would turn what the Defendant earned into family money. But the idea of the family as a unit, and the money of one being treated as the money of all, as part of the matrix of evidence which would enable me to find that when he handed over the money he intended to turn and did turn what up to that moment was his own money into family money or that his mother understood it to be so.

101. There is some doubt whether the Defendant ever told the Plaintiff that he had handed the money to his mother. He said in chief that he had not. But in re-examination 3 days later he said he had, which no doubt took Mr. Neoh by surprise. It is perhaps remarkable that the Plaintiff never mentioned that fact. For obvious reasons Mr. Wei did not cross-examine him on it. This late revelation explains Mr. Chang's late application for leave to amend to rely on this handing over of the money. Nothing really turns on this. The Defendant who is 83 gave his evidence over a period of 4 days with exemplary clarity helped no doubt by the meticulous examination of Mr. Neoh and the fair cross-examination of Mr. Chang, However, the 2 answers are inconsistent. I prefer the former.

102. So in my judgment, if the rule against perpetuities and the principle of resulting trust are applicable to the compensation, the compensation would result to the Defendant so that he would be entitled to the compensation beneficially.

103. However, for the reasons given earlier, I do not believe a resulting trust has arisen.

104. If I am right then, the compensation is still subject to and owned by the Tso.

105. The next question is, what should happen to the compensation?

106. It is an essential part of Mr. Chang's arguments that on resumption, or as he puts it on segmentation, whether voluntary or compulsory, any member of the Tso may compel distribution of the proceeds. Majority decision would not help him because his client's fong is the smaller.

107. It is necessary first to consider the nature of Tso property. It seems clear from both Mr. Dicks and Dr. Hugh that Tso properties were never meant to be alienated or divided. As Mr. Dicks put it in his draft affidavit :

108. Mr. Lo's evidence is that "The main purpose of forming a Tso is to perpetuate the family's land ownership to take care of successive generations of all male members of the Tso. "

109. I have no difficulty in accepting as a matter of Chinese customary law that Tso properties are meant to be perpetual, inalienable and indivisible.

110. I am not aware of any authority which would support the contention that even if all but one member of the Tso wish to reinvest the compensation in say other land in the New Territories in the name of the Tso, a single member can nevertheless compel distribution.

111. I should also consider whether a member or a majority of them may compel a sale or partition of Tso land. This is relevant to the plaintiff's claim relating to distribution of the other 8 lots of land not yet resumed. Also it may throw light on the principle applicable to distribution of proceeds of sale or compensation. Because if sale or partition cannot be compelled, I should consider whether there is any relevant difference between sale, partition and distribution of proceeds of sale or compensation which should make distribution of proceeds of sale or compensation compellable.

112. So far as partition is concerned, the leading and only authority is the judgment of Mills-Owens J. in Tang v. Tang 1970 HKLR 276. The learned judge held that the Partitions Acts 1539 and 1540 did not apply to a Tso property and partition would be contrary to Chinese custom see p. 321.

113. Regarding the Partition Ordinance, which came into force between the conclusion of the hearing and the delivery of that judgment, Mills-Owens J. expressed the view that s. 13 of the New Territories Ordinance must have overriding effect.

114. Of course, unless I am convinced that the judgment of Mills-Owens J. is wrong, I should follow it as a matter of judicial comity. See per Lord Goddard C.J. in Police Authority For Huddlesfield v. Watson 1947 KB 842 at 848. With respect, I agree without reservation that partition would be contrary to Chinese custom.

115. Accordingly a member may not compel partition. So, in my opinion, the Plaintiff's claim so far as it relates to the distribution of the 8 lots not yet resumed must fail.

116. Is there any relevant difference between a partition of the land and a distribution of the compensation which made the latter compellable but not the former? It will be remembered that there does not appear to be any prohibition in Chinese customary law to a Tso holding moveable properties. I can think of no relevant difference. Nor has one been suggested.

117. It may be relevant in this context to consider how a sale of Tso property may come about.

118. I will first deal with the position as a matter of Chinese customary law as it was applied outside Hong Kong, and then deal with the application or development of Chinese customary law in the context of the New Territories Ordinance. As I have said all the experts are agreed that Tso land are meant to be inalienable indivisable and perpetual. However, Mr. Dicks and Dr. Baker accepted that even in traditional times, sales did take place, no doubt for urgent reasons. Mr. Dicks has referred me to the Gazette of the Supreme Court for 1928 recorded in Le Droit Chinois Moderne No. 16 published in 1933. The English translation is Ex. P. 16. I am told and accept, that the Supreme Court in Nanking, which was then the highest judicial tribunal in China, in deciding this matter, was applying Chinese customary law. The summary of the ratio decidendi is as follows.

"[when] the members of a clan dispose of fields [charged with] sacrifices [to the ancestors], the question is one of [assets] which have the character of collective property; the conditions of validity of such an act of alienation] are, naturally, that it is a case of necessity, and that the unanimous consent of the members of the clan has been obtained. However, if by virtue of local custom, the heads of all the fongs acting collectively have the capacity to represent the members as a whole in the execution of an act of alienation; or if, [when] the heads of all the fongs have summoned a general meeting of the clan, the act of alienation [can] be decided upon by a majority of votes; or if the act of alienation, once effected, has been subsequently ratified by the clan as a whole; [an act of alienation made' in any of these circumstances] must be recognized as valid. "

119. I think it is clear from this decision that as a general rule, alienation must be because of necessity and that unanimous consent of the members of the clan must be obtained though this general rule is subject to local custom being different.

120. Another decision of the Supreme Court in Nanking, namely decision no. 51 in the 18th year (1929) (Ex. P. 17), which dealt with renunciation of a right of redemption held that such redemption would only be valid if all the fongs of the clan had given their consent. The translation is set out hereinbelow.

"Collective property (property belonging to the ancestral cult): renunciation of a right of redemption is only valid if all the fongs of the clan (pai) have given their consent - redemption by one of the persons interested does not confer any individual right of property on him.

 

Reasons :

 

.... In these circumstances, the field in question constitutes sacrificial property held in common; without the consent of all the fongs of the same clan, for the manager of the ancestral temple on his own initiative to arrogate to himself the right of renunciation is not possible. It is for this reason that even supposing it to be established that Lu Kuiqing, the manager of the ancestral temple, had made the declaration mentioned above (- whoever has the means to redeem the property may keep it for himself), it is difficult to pretend that this could be a  ground for refusing redemption to other members of the clan who never gave their consent, as all. the respondents are aware .... Moreover, this field was originally held in common by the descendants of Lu Shizhi; thus, even if the deceased father of the appellant, Lu Jingkan, and Lu Xianwen, have paid to redeem it and have divided it apart [from the other co-proprietors] in order to farm it, it is apparent that the appellant cannot rely on this fact to maintain that it is the individual property of whoever redeemed it .... "

121. Although one would note the difference between the 2 decisions in that in the latter, consent of all the fongs, as opposed to all members of the clan is required, I do not believe the 2 decisions are essentially different or irreconcilable. Rather I believe the emphasis is on unanimous consent, though in the latter case, the units to give such consent, are the fongs rather than individual members. However, it may be inferred that in turn the fongs would ascertain the wishes of its own members. Though in view of the heirachical structure of a Chinese family it is unlikely that a direct descendant would not obey the head of his fong who would normally be his direct ascendant.

122. Further, in "Varieties of Huong-Hoa, a Problem of Vietnamese Law" by Henry McAleavy, an article which appeared in the Bulletin of the School of Oriental and African Studies, University of London, Vol. XXI, Part 3, 1958, he said at the conclusion at P. 619 -

"That customary law, it is submitted, was on the evidence, indistinguishable from the custom in China, and huong-hoa fell into 2 classes. In the first class, it remained as family property, the management of which was vested either in the eldest son (as especially in the case of the ancestral temple) or, for most of the property, in all sons by turn. In the second class, an extra portion of huong-hoa was given outright to the eldest-son, as a vestigial recognition of the right of cult-succession by primogeniture, and his duty to apply this to the maintenance of` the ancestral cult was moral and not legal.

 

Deloustal, while maintaining that the inalienability of cult-property had always been an absolute rule, confesses that such property was in fact often sold. On this point, Philastre holds the view that it is only the fraudulent sale of cult-property which is forbidden by the Code of Gia-Long. From what we have already seen, especially the practice in China, it is submitted with confidence that Philastre is right, and that the prohibition against sale by the nineteenth century had only a moral force. Naturally, in the case of cult-property of the first class, the concurrence of the whole body of coproprietors was necessary to convey a valid title. "

123. The Code of Gia-Long, I am told and so far as I can see, is for all practical purposes identical with Da Qing Luli.

124. First a word about "Huo'ng Hoa". In Chinese it is made up of 2 characters, namely, incense and fire. As its name suggests, it concerns property set aside primarily for ancestral worship. As I read McAleavy's article, what he called cult fund is essentially no different from Tso property.

125. I am satisfied on the evidence before me that as a matter of Chinese customary law, as applied in China, disposition of Tso property by sale, must be by the unanimous consent of members of the Tso subject to local customs to the contrary.

126. That being the case, prima facie, in the New Territories, unanimous consent of all members are required unless local customs or the New Territories Ordinance require otherwise.

127. As for local custom permitting sale otherwise than by unanimous consent, there is no evidence.

128. On the other hand, I have the evidence of Mr. Lo Hsien-Hau, that as a matter of established practice, consent by the Land Officer, "would only be given after the proposed disposal was notified to all members of the Tso and a meeting of such members held approving this disposal. I shall refer to such a meeting as "the family meeting". Such procedure had to be followed because Tso land was intended to be kept for the enjoyment and benefit of all the beneficiaries. Therefore, each member of the Tso must have a voice in its disposal. The custom that Tso property is intended to be kept in fact for the benefit of male descendants of the ancestor in whose name the Tso was created had established itself in the New Territories for centuries. Indeed in the course of my studies and my long association with New Territories inhabitants, this custom had been universally accepted and never questioned. The disposal of Tso land was therefore considered to be exceptional, and thus the District Officer had to ensure that the agreement of all the beneficiaries was forthcoming before he allowed the disposal. "

129. S. 15 of the New Territories Ordinance, so far as is relevant, provides

"manager, who shall, after giving such notices as may be prescribed, have full power to dispose of or in any way deal with the said land as if he were sole owner thereof, subject to the consent of the Land Officer. "

130. Indeed evidence given in other cares also point to the requirement of unanimous consent. See for example, Chu Tak-Ring and others v. Chu Chan Cheung Kiu and others, 1968 HKLR 563, where Mr. Akers-Jones, as he then was, said -

"If they were to be sold it would be a family business agreed by the family and by all persons who are entitled to have a say in the dealing in that property".

131. However, although Mr. Justice Scholes at P. 577 referred to Mr. Akers-Jones' evidence as reliable independent expert evidence, he made no specific finding that he agreed with Mr. Akers-Jones that sale of Tso property required unanimous consent of all Tso members. I refer to this evidence only to show that it is consistent with Mr. Lo's evidence and with what I perceive to be the general rule in China but I do not place any particular reliance on it.

132. In Mr. Akers-Jones's evidence in Tang v. Tang at P. 309, he said "I think if (the Land officer) was sure that this (the proposed sale for a purpose other than repair of the temple or education) represented the real wishes of the Tso and that the Tso had the consent, the willing consent, of all the managers and that there was not going to be a frightful rumpus immediately this sale had taken place, then I think the Land Officer would exercise his discretion and say "If this is how you want it, certainly you can carry on". He would not stand in the way because again if he did that he would be interferring with local custom. "

133. Again in quoting this, I am mindful that he was giving his opinion as an expert in another case. No matter how knowledgeable or authoritative the expert might be, that is not evidence in the instant case. However, it may be permissible to quote it to show that it is not inconsistent with what Mr. Lo told me.

134. I accept that it has always been the practice of the Land Office to require notice to be posted in the event of sale of Tso land inviting objections from members of the Tso. In Tang v. Tang at P. 320. Mills-Owens J. said ".... on the occasion of any intended dealing it is the practice of the Land Office to give public notice thereof inviting objections from members of the Tso. "

135. Of course, S. 15 requires notice to be given. Indeed, an example of that can be found in EX. D.3, when in 1938, the Plaintiff and the Defendant decided to transfer lots 2866 and 2868 in D. D. 91 to Miss Bessie Lee. This practice of course is consistent with the notion that all members of the Tso must agree before there could be a sale.

136. I am satisfied on the evidence before me, that the custom in the New Territories is that disposition of land requires the consent of all members of the Tso.

137. If the custom is, as I find it to be, unanimous consent of all Tso member is required for sale, just as it would appear, unanimous consent is required for partition, (I disregard the requirement of consent of the Land Officer to sale or any dealing with the land under s. 15 of the New Territories Ordinance, which is an additional requirement). What then is the custom regarding distribution?

138. In dealing with this question I must remind myself that my duty is to ascertain and apply the custom or customary rights applicable to New Territories. As Mr. Lo says in his evidence and I readily accept, the inhabitants of the New Territories are keenly aware of their customary rights and guard them jealously. In this area, there is little room for judicial initiative.

139. Normally one would expect in the case of sale of Tso land that before giving or withholding consent, a member would be told the purpose of the sale, and he will give or withhold consent according to whether or not he agrees with the purpose. So that if the purpose for the sale is that there should be distribution, in giving their unanimous consent, it can be taken that they were also consenting to distribution. Though if that were the reason given to the Land Office, I do not believe it is likely that he would have approved the sale. Thus, in the two sales by Kan Ping Tai Tso, referred to below, although I have little doubt that the real purpose for the sales, was that the proceeds should be distributed, in the documents presented to the Land Officer, the reasons given were maintenance of graves and education.

140. So ordinarily, one would not find any separate agreement relating to distribution. Though according to Mr. Dicks he was aware of cases where notwithstanding agreement to dispose of Tso land, there were subsequent dispute about distribution.

141. Mr. Chang argues that since in the case of compulsory acquisition no consent need be given by members of the Tso to the disposition of the land the fact that unanimous consent would be required in the voluntary disposition of Tso land is irrelevant to the division of compensation, and the compensation is divisible if any one member desires it. I am unable to see why that should be so. I believe the rationale behind the requirement of unanimous consent for sale of Tso land is that Tso land is meant to be kept in perpetuity, just as all Tso assets are meant to be kept in perpetuity and are meant to benefit generations to come. For that reason I can see no valid distinction between sale of a capital asset and the distribution of capital. Both are exceptional acts which should require unanimous agreement of all Tso members.

142. In my opinion, it will be very mischievous, in the absence of compelling reason, for the Court to hold that in the case of resumption, any member could put an end to the Tso by demanding distribution so that he could effectively compel the dissolution of the Tso.

143. This is additional support for my view that the decision to distribute must be by unanimous consent, and not compellable by members.

144. Moreover I am not aware of any Chinese custom which would entitle any member to compel the distribution of surplus income or indeed surplus capital. If not, it is difficult to see why capital money arising out of compulsory acquisition should be distributable by compulsion.

145. I am of the opinion, just as a member may not force a sale, nor a partition (regardless of s. 15), a member may not compel a distribution, as a matter of Chinese customary law.

146. In my opinion, what one member can not do, a majority of member cannot do either. I am not aware of any relevant local custom which would displace the general rule that unanimous consent is required. Moreover, I believe it runs counter to the perpetual nature of a Tso, that any member or any number of members may dissolve it by requiring distribution of the compensation or proceeds of sale.  Dissolution by unanimous consent might have been tolerated on the basis that there was no legal sanction against it and of course there was no one to object.

147. The Defendant insists that there should be no distribution without the holding of a family meeting. This is partly correct. But I believe the true rule is that there can be no distribution without unanimous consent of all Tso members and a family meeting is where such unanimous consent may be given. With respect, I echo the feeling of Mills-Owens J. that if distribution were compellable, it would have profound consequences to the institution of Tsos in the New Territories Tang v. Tang ibid P. 321. In this context I have to stress that I am not saying that as a matter of Chinese custom distribution may take place provided there was unanimous consent. Rather my decision is a negative one, namely, that there is no Chinese customary law, proved to my satisfaction, which would entitle any member or any number of members to demand distribution such that a Court seized of the matter would enforce the demand. I do not think there was any Chinese custom permitting sale or distribution as such. Though in the absence of oppositions there will be no one to stop it, see, for example, McAleavy op. cit. It is not for me to decide in this action and I do not so decide, what rights, if any, infants or unborn interests may have in any such distribution or indeed in any sale or partition.

148. Should I carry on and deal with the claim for a declaration as to the correct mode of distribution in view of my finding that there can be no distribution without unanimous agreement? Although this declaration was not sought specifically on the Re-amended Statement of Claim, it has been argued as if it was.

149. Before dealing with that I should consider whether in giving or withholding his consent, a member has a free choice so that he can be guided by what he conceives to be his own interest. With the corollary that, whatever be the correct mode, a member may legitimately refuse to give his consent unless other members are prepared, say, to agree to a different mode of distribution.

150. Mr. Chang points to Tang v. Tang and argues that Mills-Owens J. was of the opinion that insistence on distribution per capita as opposed to per stirpes would be oppressive. At P. 320 of his judgment he said -

"As I gather further, the distribution of part of the proceeds of sale or other alienation of lands on a per capita basis is a recent innovation. In this regard I feel impelled to the conclusion that distribution on a per capita basis is not a product of the evolution of custom, but rather the product of a bargaining or negotiating process carried out in the course of the deliberations of the family meeting whether to agree to a sale or other alienation. I feel impelled also to the conclusion that whilst lands of the worshipping group would never be voluntarily alienated, there is not the same inhibitation against sale of other lands of the Tso and that, if necessary, the family meeting would "adopt" some good purpose if it was desired to sell; in other words, whilst paying lip-service to custom, custom would not be allowed to stand in the way of an advantageous sale, whether advantageous to the Tso as a whole or advantageous to individual members by reason of intended distribution of moneys per capita. "

151. At pp. 285-6 of his judgment the learned judge expressed the opinion that the insistence by the stronger Tongs that the proceeds be divided per capita and not per stirpes was oppressive. See pp. 285-6 of the judgment.

152. There the learned judge was dealing with allegations of mismanagement or oppression as matters going to his discretion whether or not partition should be ordered. In the result he found that the Partition Acts did not apply to Tso lands in the New Territories and therefore the question of discretion did not arise.

153. I do not believe the learned Judge meant to say it would be oppressive for an individual member to insist on division on a per capita basis such that he may be compelled to do otherwise. I am of the view a member may refuse to agree without giving any reason. I believe, in this context, the position of a member of a Tso can be compared to that of a shareholder in a company. He can exercise his vote as he wishes. He is not accountable to anyone for its exercise.

154. That being so, would any declaration on the correct mode of distribution be meaningless or academic? I have not found this an easy question. However, I have come to the conclusion that I should go on and try to see if there        is a correct mode of distribution of Tso property as a matter of Chinese customary law; because, first my decision that distribution must be by unanimous consent may be wrong. Secondly having heard detail evidence on the point, I should express a view if I can, because even if the mode of distribution may not be binding and that Tso members are free to agree otherwise, it may be helpful for it to be known, whether there is a correct mode, and if so, what that is.

155. Having said that, I am at once confronted with the difficulty, which is apparent from the quotations from Mr. Dicks and Dr. Baker's draft affidavits. As a matter of Chinese customary law, Tso property are intended to be inalienable indivisible and perpetual, how then can there be a correct mode of distribution?

156. Is Tang v. Tang an authority in favour of a custom of per capita distribution in the New Territories?

157. The decision in Tang v. Tang was read and re-read to me, and it is clear that there was no evidence on what the correct mode of distribution of proceeds of Tso lands in China was, nor what the custom in the New Territories was. More importantly, the learned judge was not asked to declare what the custom, if any, was.

158. Indeed at P. 312 Mr. Aker-Jones is recorded to have said regarding payment of compensation by the Crown on a resumption, "Yes, it pays it to the managers, but it is very often a matter of some considerable difficult to decide how the compensation for resumption, for re-entry of that kind, is to be distributed and in some cases the clan concerned is unable to reach any agreement and the money just remains as an unclaimed balance until they reach agreement. "

159. Earlier in the same page, the learned judge said "On the documentary evidence there is no doubt whatsoever that in past years numerous sales have taken place. There is however no acceptable evidence as to the manner in which the proceeds of those sales were distributed. "

160. I do not believe Mills-Owens J. meant to decide in Tang v. Tang that as a matter of Chinese custom, the correct mode of distribution was per stirpes.

161. As Mr. Wei puts it, I am concerned with what Chinese customary law is and not what it ought to be. I agree. I do not believe, sitting here, and notwithstanding the useful evidence of Mr. Dicks, Dr. Baker and Mr. Lo and learned books and treatises on Chinese law, I should or can legitimately declare what Chinese customary law ought to be. I should only "recognise and enforce any Chinese custom or customary right affecting "land in the New Territories.

162. Mr. Wei argues that custom must have 4 characteristics :

163. I agree such characteristics would be required to prove a custom as a matter of English law.

164. But as for Chinese custom in the present context, I believe reasonableness does not come into it. As for immemorial origin, no doubt one cannot trace it back to the year 1189, the commencement of the reign of Richard I. That is obviously inapplicable. However, I have no doubt that such custom must be certain.

165. But, Mr. Dicks says in paragraph 21 of his draft affidavit:

"It follows that it is not possible to depose to any established rules of traditional Chinese law or custom as to the manner in which the property of a tso should be divided amongst the male descendants of the common ancestor. At the same time it is in my view possible to identify with reasonable certainty the general legal and customary principles underlying the institution of common ancestral property which would necessarily govern the distribution of such property if the question were to arise under traditional Chinese law. These principles are, first and foremost, the principles of law and custom which govern the ordinary devolution of family property, and secondly the principles, largely customary in nature, which govern internal relationships within the common descent group, including the particular rules for the employment or distribution of the income from the property in question. I shall endeavour to explain further the interrelationship of these two principles as follows. "

166. Is the custom contended for by Mr. Dicks sufficiently certain for this purpose?

167. Although Mr. Dicks greatly expanded on this thesis in his evidence, his evidence can be summarised as follows:

168. He is of course correct that Tso property was originally family property, because most Tso properties were made up of a portion of undivided family property which was dedicated to a Tso. In any event, so long as individual ownership was unknown, all properties would be family property, though depending on whether the family had been divided, the composition of the family might be different.

169. Dr. Baker's evidence can also be put quite simply:

170. Whatever might have been the origin of the Tso property, and even accepting that it was family property before it was dedicated to a Tso, the deliberate removal of such property from the main stream of the family property and the fact that it was intended to be perpetual and inalienable and certainly not meant to be divided, show that if and when there should be division, the correct mode of division of family property, namely, per stirpes, should not apply or at least would not necessarily apply.

171. I hope I can be forgiven for not referring to their evidence at greater length, which I would have done if this judgment is not already so long. I am mindful of the list of differences between family and Tso (Ex. D. 11) prepared by Dr. Baker and Mr. Dicks' evidence in rebuttal on the subject. I believe I have summarised what I consider to be the major differences between Tso and family properties in this context.

172. Per stirpes division in China, as I understand it, provides for equal divisions amongst the sons of the relevant direct ascendant. Given a desire to achieve equality amongst the sons, I believe that to be the only fair method of distribution. A division per capita such that each male descendant living at the time of distribution, regardless of generation should have an equal share, would not be fair to the younger sons, who are likely to have less descendants on death of the relevant ascendant which is the earliest time at which one could insist on division. It seems that as a matter of Chinese law, one could insist on division on death of one's father (who was also head of the family) after a decent period for observance of the rites (I disregard postponement during the life time of the widow). One would expect the son who happened to have the largest number of descendants then to demand division. So effectively, if division is per capita, it would mean equal division to each living descendant on the death of the head. That seems to me to be arbitrary. Why should the law prefer some remote descendants over others because of the accident of their being born prior to the death of the relevant ascendant. So in my opinion per stirpes division of family property is both reasonable and right. Indeed, any system of division per capita in the sense we have used the word would seem to be unsatisfactory because the number of shares may vary depending on the time of distribution.

173. This difficulty is highlighted by paragraph 10 of the Re-re-amended Reply and Defence to Counterclaim which suggests 3 different dates for computation, namely, the date of the resumption by the Crown of the said properties, the date the distribution ought to have been made, or at the date the Originating Summons of these proceedings.

174. It is accepted that so far as family property was concerned, as a matter of Chinese customary law, it should be divided per stirpes.

175. But should the same mode of distribution apply to Tso properties?

176. The evidence shows that it is common for Tso properties to be cultivated by rotation of the stirpes. And that when the Tso properties are large enough, and the Tso old enough, they may be divided into two parts. The larger called Tsing Sheung Tin would be enjoyed by rotation of the stirpes.

177. It is not disputed that when it comes to distribution of ceremorial pork, each male descendant attending would have an equal share. I suspect thats not so much, as suggested, to accord with the principle of per capita distribution but an inducement to male descendants to attend.

178. It is then said, when it comes to education, the enjoyment would be per capita. Thats what one would expect. No doubt the village school if run by a Tso, would encourage and expect every male descendant to attend. Also, educational allowances would be paid to male descendants individually. I do not believe this has anything to do with per capita distribution. It is the nature of the benefit, which no doubt is meant to be enjoyed by all who qualify.

179. As for relief of poverty, that no doubt depended on individual circumstances.

180. If I am free to say what the mode of distribution ought to be, I think I am strongly inclined in favour of per stirpes distribution.

181. However, was that the custom?

182. I asked Mr. Dicks, how he thought a Chinese magistrate might have reacted if the same problem had been submitted to him. He said quite fairly that he thought the magistrate would have sent the litigants back to their villages for conciliation. Such was the traditional Chinese way. And according to Mr. Lo, with his extensive experience in the New Territories, such seems to be still the custom in the New Territories. He tells me and I accept that there is a strong desire for consensus and harmony and although a Tso might not reach agreement at once, they would continue to try until they do reach agreement. At times, this process may take years.

183. Mr. Dicks also said in re-examination that he thought the Magistrate would have a large discretion in the matter.

184. In any event, as I understand Mr. Dicks' evidence, the answer of the Magistrate would not have been: "But, of course, the correct mode of distribution of Tso property is per stirpes, just like any other kind of family property. "

185. Can I at this distance of time, declare what the custom was or must have been?

186. This matter has not been the subject of decision in Hong Kong, although the dictum in Tang v. Tang cited above also shows Mills-Owens J.'s inclination.

187. Would Mills-Owens J. have been prepared to declare what the custom was, with its wide implication, on the evidence before him? Should I declare what the custom is, on the evidence before me, even with my inclination towards per stirpes distribution. Before answering that question I will turn to consider what evidence there was of actual distribution and see if they show or prove any custom.

188. There is evidence of agreements within different Tsos in the New Territories on the mode of distribution. Some might be partly per stirpes and partly per capita, some entirely per capita, and some entirely per stirpes. See also the press cuttings in Defendant's bundle.

189. Evidence was called by the Plaintiff, to prove a custom in Tsang Pak Long Village of division per stirpes.

190. The evidence which is said to show this custom are:

191. In relation to the 2 sales in 1977, by Kan Ping Tai Tso, I am afraid the story is quite involved and much time was spent on it. But put simply, Kan Muk Tai, one of the managers, needed money very badly, and wanted to sell these 2 properties. According to the Defendant he was reluctant to sell, but was eventually persuaded to agree. He says that he only agreed when Kan Muk Tai agreed that out of the proceeds of sale he should be paid $16,000 and $8,000 respectively, representating a payment of $1,000 and $500 respectively per male descendant in his fong. He said he was paid $11,500 and $4,800 respectively which would have been the share payable to his fong on a per stirpes basis on the sale of the 2 lots. And in addition he says that he was paid the balance of $4,500 and $3,200 earlier out of deposits received by Kan Muk Tai. The story is strange. It is denied by Kan Muk Tai. However, after anxious consideration, I have come to the conclusion, on a fine balance, that the Defendant is right when he said he was paid $16,000 and $8,000 respectively. Here I am afraid there is a suggestion of some informality, indeed irregularity in the sales. The suggestion being that the lots might have been sold for more than what appeared on the record. I must confess Kan Muk Tai did not impress me as a witness. Also I find both his and the Plaintiff's explanation, about the balance of the purchase price, namely, $4,616, after distribution of $23,000 per fong, arising out of the sale of lot 339 in D.D. 91, which was supposed to be used for the maintenance of Kan Ping Tai's grave, unconvincing. More so when it transpired that Kan Ping Tai had no grave but that his remains were kept in an urn. I find the explanation that Kan Muk Tai had not spent the money on the maintenance of the "grave"because there have been pregnancies in the Tso since 1977, difficult to accept. Also, it would not have surprised me, if the stated consideration did not represent all that had been paid.

192. I also find that it was unlikely that no deposit had been received, one would have expected a deposit to be paid on an agreement conditional on the Land Officer's approval. I believe the Defendant when he said he was initially paid, out of the deposits received, the sums necessary, to make up the shortfall for the $16,000 and $8,000.

193. As for Kan Wing Kut Tso, although there were only 5 fongs. The division was into 7 equal shares, apparently, because one of the managers who did not belong to these 5 fongs insisted that 2 collateral branches should also share in the distribution as a price for his signing the necessary documents! This cannot be regarded as evidence of any custom.

194. In relation to Kan Tan Shu Tso and Kan Ngan Fong Tso, the witnesses called both made it quite clear that the mode of distribution was agreed to by the members. So they may not be helpful as spontaneous evidence of custom. Though to be fair, neither witness had any doubt that the custom was distribution per stirpes.

195. There is also a letter dated 6th September 1984, from the Tsung Pak Long Village council addressed to the Kan Ping Tai Tso which stated that "a meeting of the villagers was convened on the night of 25th August 1984 and unanimously noted that it has been the traditional custom of distribution of estate since this village was established (in the Tsing Dynasty) that the mode of distribution is that the son succeeded the father, the grandchild succeeded the son, and as regards the estate of your grandfather, Kan Ping Tai Tso, it should be divided into 3 equal shares for his 3 sons accordingly. " i do not think I can place such weight on this since the evidence of specific instances of the operation of this "custom" do not seem to point to a well established custom. Further, this meeting was held without agenda, or prior notice of what would be discussed. Moreover, it is not clear whether the villagers who attended were mindful of the difference between the distribution of the estate of a deceased villager and Tso properties, although the letter specifically referred to the Kan Ping Tai Tso. The word Tso is sometimes used to denote that the person is dead.

196. So much for evidence of per stirpes distribution.

197. On the other hand, there is evidence of a Wong Fook Loong Tong in Tsung Pak Long Village, which distributed proceeds equally to male as well as female members. Admittedly this is a Hakka Tong but it has not been explained why that makes any difference. The word Tong is often used interchangeably with Tso. Indeed, the word Tso does not appear in s. 15 the New Territories Ordinance.

198. I now deal with the informal division of cultivation right of the lots between the Plaintiff and the Defendant which took place between 1936 and 1949. It is obvious that the Defendant was given the lion's share, whether one uses crown rent or area as the criterion, it seems the Defendant's share was at least double that of the Plaintiff's. The Plaintiff claims that the devision was unequal because the Defendant was required to support their mother, to pay the expenses of visits to ancestral graves, to provide rice for persons residing at Fa Yuen Street, and to pay Crown rent on all the lots. The Defendant denied that there were any such conditions. He said that their mother was supported by the rent from 2 of the upper floors at Fa Yuen Street, and in any event he had always supported her. He said this informal division reflects and supports his contention that division of income or corpus should be on a per capita basis. At the relevant time, he had two sons whereas the Plaintiff had none. I do not believe the Plaintiff when he said the division was subject to those conditions. I am afraid the Plaintiff is liable to say what he thinks will advance his case. A clear example of that is his evidence relating to the transfer to Miss Bessie Lee. However, to be fair to him the Defendant admits that he was responsible for ancestral visits in 2 out of 3 years. On the other hand I doubt whether the inequality in the informal division, was based on any notion of per capita distribution. I do not believe the division was meant to be short term. At that time as the Plaintiff was still young, who could tell that he might not reverse the table on the Defendant so far as number of children were concerned. I rather suspect that the Defendant got the larger share because he was the elder son. The Plaintiff accepts that as the elder son, the Defendant should have more but claims that the Defendant has had his share in Keelong Street. As I have said I do not believe the Keelong Street property was meant to be the Defendant's elder son's portion. In this context, one must not confuse the Defendant's right to the first born son's share in right of his father in the Kan Ping Tai Tso which share he dedicated to the Kan Ping Tai Tso. Here I am dealing with his first born son's share in his own right in his father's Tso.

199. I do not believe I can rely on the informal division as evidence of a custom of per capita distribution.

200. My conclusion is that I do not believe it has been established that a certain and continuous custom of sufficient antiquity existed in the Tsang Pak Long Village so that I must decide this matter on the basis of some custom which is general to the New Territories and not on the custom of a specific locality.

201. I must turn to consider whether there is evidence of such custom in the New Territories. On the evidence I have reviewed above, I do not believe it has been proved to the degree of certainty required that there was such a custom. I am mindful of the observations of Mills-Owens J., however, it seems to me clear that even though per capita distribution might have been a comparatively recent innovation, there is no evidence of a custom that the distribution of proceeds of compensation should be per stirpes.

202. Nor am I satisfied that the evidence of Mr. Dicks shows that there was such a custom in China. I think it is not possible to talk of a custom in this context since distribution was not supposed to take place at all. I do not believe any such "custom" would have been recognised or enforced by any Chinese court. More likely, the litigants would have been sent away with the admonition that sale of Tso land or distribution of proceeds of sale of Tso land or of compensation was impious and the Court would have none of it.

203. In the circumstances, I am not able to find and therefore cannot declare what the correct mode of distribution is according to Chinese custom.

204. The result is therefore that the Plaintiff's claim for a declaration and consequential directions fails.

205. Mr. Wei also relies on the equitable principle of equality is equity and refers me to cases such as Jones v. Maynard 1951 1 Ch 572, and Bower v. Ridley-Thompson 1942 1 Ch. 197. In the former, Vaisey J. said at P. 575, "I think that the principle which applies here is Plato's definition of equality as a "sort of justice": if you cannot find any other, equality is the proper basis. " The latter is a case of a class gift.

206. He submits that if I do not find any custom, I may apply rules of equity to fill the vacuum.

207. With respect, I am not sure these authorities assist. What I am concerned with here is Chinese custom. Either there is such Chinese custom or there is not. Equality is indeed a sort of justice. But the per stirpes distribution is based on equality too. It has at least the advantage of certainty. There is no doubt that that is the basis of distribution of family properties in China. No doubt in the evolution of Chinese custom, equality as a sort of justice played a part, but I am unable to say the concept of equality is equity would enable me to find that per capita distribution should apply. Nor do I think I can fill any vacuum.

208. I turn to the counterclaim.

209. The Defendant seeks -

                (1), (3) and (4) are dismissed.

210. As for (4A), I do not believe the Court should order a meeting. The Defendant is of course free to call a meeting. The members may or may not attend. So far as distribution in accordance with the wishes expressed at the meeting is concerned, that is too vague and I will not grant it in any event. I have said there can be no distribution without unanimous consent. It is implicit in my finding that the members may by unanimous agreement decide the mode of distribution.

211. As for (2), I am not inclined to make any such declaration; as I have said there is a trust in favour of the members of the Tso from time to time, subject to such limitations or conditions as may be imposed on such properties by Chinese custom or customary rights affecting such land. I also believe that the primary object of the Tso would be the veneration of the ancestor in whose name the Tso was established. Any surplus income would normally be used for education and other worthy causes. But I do not think I should in effect direct how they should be used. There is no evidence of any disagreement as to how the income should be used. No argument has been addressed to me on this, and I do not wish to express any view as to what the Court's attitude should be in the event of disagreement.

212. As for (5), I am not disposed to make this declaration, especially since the Land Officer has not been made a party to these proceedings.

213. Lastly, I should mention that in the course of the hearing I asked counsel whether infants' and unborn interests should be represented. Counsel were of the opinion that they need not be. I expressed no opinion on it. In the result it does not matter since I have refused to grant any of the declarations sought.

214. I make an order nisi that each party pays his own costs.