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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA
[CIVIL SUIT NO: S5-22 - 755 - 2003]
BETWEEN
GUINDARAJOO VEGADASON
(I/C NO: 580601-10-7107)

... PLAINTIFF

AND
SATGUNASINGAM BALASINGAM
(I/C NO: 7502155)

... DEFENDANT

SUCCESSION: Administration - Inter vivos gift - Plaintiff applied to revoke letters

of administration (LA) granted to defendant and claimed ownership of house given to
him by deceased as a gift during her lifetime - Deceased was sole beneficiary to the
estate of her deceased daughter, Ariasakthi - Whether deceased entitled to sell or
give away as a gift, her entitlement of the estate before completion of the
administration of the estate of Ariasakthi - Defendant later obtained order to
transfer house to himself - Whether house was an inter vivos gift to plaintiff and not
part of estate of deceased - Whether plaintiff had an equitable interest in the house
based on proprietary estoppel
SUCCESSION: Administration - Revocation of grant - Non-compliance by plaintiff
with Rules of Court 2012, O. 72 r. 2(3) - Whether fatal - No objection by defendant
for last 10 years - Whether any prejudice or damage suffered by defendant by such
non-compliance - Whether defendant waived right to object - Plaintiff not a
beneficiary under both estates of Ariasakthi and deceased - Whether he had requisite
locus to apply for revocation of the letters of administration - Whether the two LA
granted to defendant should be revoked
[Plaintiffs claim allowed with costs of RM25,000.00.]

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Case(s) referred to:

Amravathy d/o v. Nadeson & Anor (both as administratixes of the estate of Ayaduray
Sugirtha Lingam, deceased) v. Sivaprasagam s/o Nagamany (as executor of the estate
of K Nagamany Nee Sugirtha Letchumy d/o Ayadurai) [2007] 4 MLJ 319 (refd)
Amirthanayaki Kumarasamy v. Lembaga Kelayakan Profesion Undang-undang
Malaysia [2010] 1 MLJ 656 (refd)
Badiaddin bin Mohd Mahidin & Anor v. Arab Malaysian Finance Berhad [1998] 1
MLJ 393 (refd)
Boustead Trading (1985) Sdn Bhd v. Arab Malaysian Merchant Bank Berhad [1995]
3 MLJ 331 (refd)
Chor Phaik Har v. Farlim Properties Sdn Bhd [1997] 3 MLJ 188 (refd)
Chong Keat Reality Sdn Bhd v. Ban Hin Lee Bank Bhd [2003] 3 MLJ 321 (refd)
Farlim Properties Sdn Bhd v. Goh Keat Poh & Ors [2003] 4 MLJ 654 (refd)
Gillett v. Holt [2001] Ch 210 (foll)
Goh Keat Poh & Ors v. Farlim Properties Sdn Bhd & Ors [2010] 10 CLJ 70 [2009] 5
MLJ 449 (refd)
Jennings v. Rice [2003] 1 P & CR 100 (foll)
Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 2 MLJ 565 (refd)
Lim Eng Kay v. Jaafar bin Mohamed Said [1982] 2 MLJ 156 (refd)
Kane v. Radley - Kane [1998] 3 All ER 753 (refd)
Khoo Cheng & Ors (As Administrators Of The Estate Of Gan Hong Kok, Deceased) v.
Gan Hong Yock & Ors And Another Appeal [2005] 3MLJ 614 (refd)
Ong Thye Peng v. Loo Choo Teng & Ors [2008] 4 MLJ 31 (refd)
Ramsden v. Dyson [1866] LR 1 HL 129 (foll)
Re Khoo Boo Gon (decd); Khoo Teng Seong v. Teoh Chooi Ghim & Ors [1981] 2 MLJ
68 (foll)
Re Swinburne; Sutton v. Featherley [1925] All ER Rep 313 (refd)
Re Wasserberg [1915] 1 Ch 195 (refd)
Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v. Balakrishnan a/l Kaliannan
[2013] 6 MLJ 149 (refd)
Tan Chong Kiat v. Kwan Ah Soh [1998] 3 MLJ 884 (refd)

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Thorne v. Major [2009] 3 All ER 945 (foll)

Willmott v. Barber [1880] 15 Ch D 96, [1881-5] All ER Rep Ext 1779 (foll)
Yap Teck Ngian v. Yap Hong Long & Ors [2007] 5 CLJ 290 (refd)
Legislation referred to:
National Land Code 1965, s. 346
Distribution Ordinance 1958, s. 6(1) (ii)
Probate and Administration Act 1959, ss. 34, 60(4)
Rules of Court 2012, O.72 r. 2(3), O. 76 r. 3, O. 92 r. 4
Specific Relief Act 1950, s. 17(a)
Other source(s) referred to:
Cheshire, Fifoot and Furmstons Law of Contract, Second Singapore and Malaysian
Edition
Williams, Mortimer and Sunnecks, Executors, Administrators and Probate (17 th Ed,
1993)
Dato Sinnadurai, Law of Contract (3 rd Edition)
GROUNDS OF JUDGMENT
Introduction
1.

The dispute in this case is over a house which one Maheswary Navaratnarajah
(the deceased) was entitled to as the sole beneficiary to the estate of her
deceased daughter. The plaintiff claims ownership o f the house on the basis
that the deceased was his adoptive mother and that she had given the house
to him as a gift during her lifetime and /or in the alternative he had an equitable
interest in the house.

2.

The plaintiff further seeks an order for the revocation of the probate granted to
the defendant to administer the deceaseds estate on the ground that the latter had
misappropriated the house in his own favour. The defendant is the first cousin of
the deceased. His father and the deceaseds mother were siblings.

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The parties and salient facts

3.

In 1966 at the age of eight years of age, the plaintiff came to live with the
deceased and her two daughters Navasakthi Navaratnarajah (Navasakthi) and
Ariasakthi Navaratnarajah (Ariasakthi) in their house at No. 2, Lorong Halia,
Jalan Kelang Lama, Batu Tiga Kuala Lumpur (hereinafter referred to as the
house). In 1981, Ariasakthi became the sole registered proprietor of the house
when Navasakthi transferred her half-share to her.

4.

Navasakthi and Ariasakthi predeceased their mother on 19 June 1993 and 11

March 1994, respectively. From then on, the plaintiff was the only person who
lived and looked after the deceased until her demise. On 29 November 1994,
the deceased and the defendant attended the legal firm of Messrs Shook Lin &
Bock to apply for Letters of Administration (LA) of Ariasakthis estate as the
deceased was the sole beneficiary to her late daughters estate. The lawyer who
filed the application for LA was informed by the defendant, that the plaintiff, being
only an adopted son of the deceased, was not a beneficiary of the deceaseds
estate.

5.

The deceased, however, passed away on 26 January 1995, before the issuance
of the LA to her. The plaintiff was 37 years of age when the deceased passed
away at the age of 75. He continued to live in that house and got married
about six years later, on 4 October 2000. He continues to live in the house with
his wife and three children. He has lived there for about 47 years now.

6.

B y two petitions dated 16 November 1995, the defendant applied to be

appointed as the administrator of the estate of the deceased and for him to be

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appointed the administrator de bonis non to replace the deceased in respect of

the estate of Ariasakthi. In the affidavits sworn for the purposes of obtaining the
LA, the defendant described himself as the nephew of both the deceased and
Ariasakthi. The beneficiaries of the deceaseds est ate ie, her siblings who
live in Sri Lanka, consented to the appointment of the deceased as the
administrator. Accordingly, on 24 September 1996, L A were granted to the
defendant as the administrator of the estate of the deceased and Ariasakthi.
7.

On 21 September 1998, defendant applied under section 60 of the Probate and

Administration Act 1959 (the 1959 Act) and section 6(1)(ii) Distribution
Ordinance 1958 (Distribution Ordinance) for an order to transfer the house
to himself. The application was made under the estate of Ariasakthi. The material
parts of the order read:
ATAS PERMOHONAN yang dinamakan diatas DAN
SETELAH MEMBACA Saman Dalam Kamar bertarikh 16hb
Jun, 1998 dan Afidavit Satgunasingam a/l Balasingam yang
diikrarkan pada 11hb Jun, 1998, kesemuanya difailka n
bersama DAN SETELAH MENDENGAR ENCIK REJINDER
SINGH peguamcara bagi sipempetisy en DENGAN IN I
ADALAH
D IPERI NTAHKAN
bahawa
Harta
Pusaka
Ariasakthi a/p Navatnarajah dibahagikan menurut Seks yen 6
(1) (ii) Distribution Ordinance, 1958, pada anak saudaranya
Satgunasingam
a/l
Balasingan
DAN
SELANJUTNYA
Bahagian dalam rumah beralamat No. 2 Lorong Halia, Kuala
Lumpur diatas tanah E.M.R. 5187, Lot No. 198 (Secti on 98)
Bandar Kuala Lumpur dan didaftar bawah nama Ariasakthi
a/p Navatnarajah, mendiang, dipindah dan didaftar pada
anak saudara nya Satgunasingam a/l Balasingan DAN
ADALAH JUGA Kos Permohonan ini dikeluarkan dari Harta
Pusaka mendiang Ariasakthi a/p Navanatrajah.

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(emphasis added).
8.

Upon procuring the above Court Order, the defendant repeatedly requested the
plaintiff to vacate the property but the plaintiff flatly refused. By letter dated 5
July 2002, the defendants solicitor wrote to the plaintiff as follows:
Pursuant to Court Order dated 21 s t September 1998 and
granted by the High Court of Malaya in Kuala Lumpur, our
client has been granted the entire rights, interest , title and
benefit to the Premises No. 2, Lorong Halia off Jalan Kelang
Lama, Batu 3, Kuala Lumpur
Our client informs us that in spite (sic) of repeated requests
and demands made to you, you have failed and neglected to
vacate the above premises.
Our client further informs us that he has secured a prospective
purchaser for the said premises and that your refusal to give
possession of the said Premises is hindering the completion of
the Sale and Purchase Agreement.
We have our clients instructions to give you notice which we
hereby do that you are to vacate the said premises on or
before the 31 s t day of August 2002
In the event that you do not vacate the said premis es and give
possession of the same to our client on or before the 31 s t Day
of August 2002, we have instructions from our client to
proceed with eviction proceedings against you and you will be
held liable for all costs and expenses incurred by our client in
taking such action

9.

When the plaintiff ignored the numerous requests made to him to vacate the
house, the defendant commenced two actions in the Kuala Lumpur Sessions
Court against the plaintiff for the recovery of the house, both of which were
dismissed.

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On 9 June 2003, the plaintiff commenced the present action against the
defendant claiming for, inter-alia, the following relief:
a)

A declaration that the said house constitutes a gift inter vivos

to the plaintiff and does not comprise or form any part of the
estate of the deceased;

b)

A declaration that, in any event, the plaintiff had acquired a

license coupled with an equity over the said property and
thereafter the said property does not comprise part of the
estate of the later Mother;

c)

An order under section 34 of the Probate & Administration

Act 1959 that all grants of Letters of Administration to the
defendant be revoked;

d)

An order that the defendant do make restitution to the estate

as follows:
i.

Refund

the

sum

of

AUD100,000

(equivalent

to

RM200,000) and all other bank monies withdrawn;

ii.

Surrender the title of the said property to the plaintiff

and/or deposit the same into Court pending trial;

iii.

R e s t o r e t h e t i tl e to m o t o r v e hi c l e r e g i s t r a t i o n n o.
W B D 9 1 9 6 t o t h e s ta t e ;

iv.

R e s t o r e a ll j e w e ll er y t o t h e e s t a t e a s w e l l a s t h e
contents

of

the

safe

deposit

b ox

at

Bumiputra

C o m m e r c e B a n k , Ma i n B r a n c h ; a n d
v.

Restore all wearing apparel, saries and wearing

i t e m s t o th e e s t a t e .

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11.

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On 29 January 2010, the plaintiff obtained judgment in his favour when the
defendant failed to attend court for the hearing. The judgment was based on the
evidence adduced by the plaintiff and his witnesses. However, the said judgment
was set aside by the Court of Appeal and a retrial was ordered. The decision of
the Court of Appeal was subsequently affirmed by the Federal Court.

12.

On 3 February 2013, the plaintiff sustained serious head injuries in a vehicular

accident which rendered him mentally unfit to continue with the present action. On
17 December 2013, his wife was appointed as his litigation representative
pursuant to Order 76 r. 3 Rules of Court (ROC) to take over and proceed with
the trial of the action.

Contention of the parties

13.

It was the plaintiffs case that the house was given to him as an inter-vivos gift by
the deceased during her lifetime. The house therefore did not form part of her
estate when she died intestate. In the alternative, the plaintiff claimed that he had
acquired an equitable interest in the house by satisfying a number of promises
extracted from him by the deceased in her lifetime.

14.

The plaintiff further sought that the LA granted to the defendant to administer
the estate of the deceased and Ariasakthi be revoked on three grounds. Firstly,
he contended that the LA had been obtained by the defendant by deliberately
misleading the court that he was the nephew of the deceased and Ariasakthi.
Secondly, the defendant had deliberately misled the court by stating in the
petitions that the value of the hous e w as RM130, 000 . 00 w hen it w as over

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RM600,000.00. Thirdly, that the defendant had, by the Order of Court dated 21
September 1998 [set out above (at 7)], unlawfully obtained an Order to transfer
the house to himself.
15.

The defendant, on the other hand, denied that the house had been given to the
plaintiff as an inter-vivos gift and/or that the plaintiff had acquired an equitable
interest in it. He maintained that the house was the property of the estate of
Ariasakthi. The defendant further denied that the two LA had been procured by
misrepresentation and explained that the reference to him as a cousin in the two
petitions was a misstatement. He also disputed that by the Order of Court
dated 21 September 1998, he had transferred estate property to himself. He
alleged that the Order was sought only to transfer the house to himself in his
capacity as administrator so as to facilitate the sale of the house to complete the
administration of the estate of Ariasakthi.

Witnesses
16.

Evidence on behalf of the plaintiff was given by his wife, his close friend David
Fernandez, his neighbour Dr Parameswary Vythialingam, and his doctor Dr Yong
De Jun. In view of the inability of the plaintiff to give evidence, the notes of
evidence taken at the earlier trial, at which he had given evidence, was tendered
as evidence without any objection from the defendant.

17.

The defendant testified on his own behalf and also and called Aileen PL Chew, a
partner in the legal firm of Messrs Shearn Delamore.

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The Issues
18.

The parties raised a litany of issues and these can be summarised as follows:
1.

Whether the deceased had title or interest in the house at the

material time to give it away as a gift;

2.

If yes, did the deceased give it away as a gift to the plaintiff;

3.

Whether the plaintiff had acquired an equitable interest in the

property;

4.

Whether the failure to comply with Order 72 r. 2(3) ROC is fatal;

5.

If no, whether the two LA granted to the defendant should be

revoked; and

6.

Whether the Order of Court dated 21 September 1998 can be

set aside in the absence of a prayer to this effect in the
statement of claim.

Issue 1: Whether deceased had interest or title in the house?

19.

The defendant contended that at the time of the alleged gift, the deceased as the
sole beneficiary of Ariasakthis estate, had no interest or title in the house which
was capable of being given to the plaintiff as a gi ft. This contention was
premised on the fact that the estate of Ariasakthi remained unadministered at
the time of the alleged gift. It was argued that until all the lawful debts of the
estate of Ariasakthi had been paid and the residual estate ascertained and
distributed to the deceased in accordance with the Distribution Ordinance 1958,
the deceased acquired no interest or title to the house. It was further argued, that
in law, the next of kin of a deceased who died intestate have no interest in any

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particular item of property forming part of an unadministered estate, and their only
right, it was submitted, was to have the estate duly administered.
20.

In support of this proposition, strong reliance was placed on the decisions of the
Federal Court in Chor Phaik Har v. Farlim Properties Sdn Bhd [1997] 3 MLJ
188 (Farlim 1) and the Court of Appeal in Amravathy d/o v. Nadeson & Anor
(both as administratixes of the estate of Ayaduray Sugirtha Lingam,
deceased) v. Sivaprasagam s/o Nagamany (as executor of the estate of K
Nagamany Nee Sugirtha Letchumy d/o Ayadurai) [2007] 4 MLJ 319, where the
decision of the Federal Court in Farlim 1 was referred to.

21.

In response, the plaintiff disputed that the deceased had no interest in the house
that was capable of being given away as a gift prior to the completion of the
administration of the intestate of Ariasakthi. In this connection, the court was
referred to the decision of the Court of Appeal in Farlim Properties Sdn Bhd v.
Goh Keat Poh & Ors [2003] 4 MLJ 654 (Farlim 2) and Goh Keat Poh & Ors v.
Farlim Properties Sdn Bhd & Ors [2010] 10 CLJ 70 [2009] 5 MLJ 449 (Farlim
3).

22.

In the alternative, it was contended that the decision in Farlim 1 did not apply to
the present instance as there was one important difference in the facts of both
cases. The crucial element which existed in that case, namely, the fact that there
were several beneficiaries in respect of the unadministered estate of the
deceased, was absent here. It was argued that as the sole beneficiary of
Ariasakthis estate, the deceased was the only person entitled to the residuary
estate of the intestate and this obviated the necessity to determine her share of
the net residue of the estate.

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Farlim 1
23.

In view of the conflicting legal submissions of the parties, it is necessary to

examine the the Farlim cases cited by both sides. I n Farlim 1, the facts were
these. B y an agreement dated 4 Januar y 1943 between Chor Bah Say (the
deceased) and a company, the deceased acquired undivided share in the
Ayer Itam Estate, which included two pieces of land. Upon his death, his interest
under the 1943 agreement devolved to and became vested in his estate. The
defendant was the remaining direct beneficiary of the deceaseds estate. By two
sale and purchase agreements dated 23 January 1992 between the company
and the executors of the beneficiaries of the estate of the deceased on the one
part and the plaintiff on the other part, the former agreed to sell the lands to the
latter for RM32,0006,000. The defendant refused to execute the sale
agreements and lodg ed a private caveat against the lands. This prompted the
plaintiff to apply for the removal of the private caveat on the ground that they
were persons aggrieved by virtue of the sale agreements. The application was
allowed by the High Court.

24.

The defendants appeal to the Federal Court was allowed. All the 3 Judges, Edgar
Joseph Jr FCJ, Mohamed Dzaiddin FCJJ and Abu Mansor JCA, were in
agreement that a beneficiary of the estate of a person who dies intestate has no
interest or title to any property forming part of the estate until the administration
is completed. In allowing the appeal, Mohamed Dzaiddin FCJ stated (at 196):
Based on the above commentaries, founded no doubt on
the analogous principle of law concerning testate
succession, it is our conclusion that in law, a beneficiary
under an intestacy has no interest or property in the
personal estate of a deceased person until the

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administration of the latter's estate is complete and

distribution made according to the law of distribution of
the intestate estate.
25.

In coming to this conclusion, the Federal Court referred to and relied on a

passage in Executors, Administrators and Probate (17 th Ed, 1993) by Williams,
Mortimer and Sunnecks which stated at p 1050:
A residuary legatee has no interest in a defined part of the
estate until the residue is ascertained, nor can income be
ascribed to unascertained residue. His right, which is of
course

transmissible,

administered

and

is

to

applied

have
for

his

the

estate

benefit

properly
when

the

administration is complete. The right of a beneficiary

claiming on a total intestacy is similar, except that he takes
under a statutory trust for sale and conversion.
Farlim 2
26.

In Farlim 2, the same plaintiff as in Farlim 1, applied for specific performance of

the sale agreements against the beneficiaries to the 1992 Agreements after the
administration of the estate of the deceased had been completed. The
beneficiaries applied to strike out the claim on the ground that it disclosed no
cause of action as the validity of the sale agreements had been determined by the
Federal Court in Farlim 1, and the matter was res judicata. The High Court agreed
with the position taken by the beneficiaries and allowed the application. But on
appeal, the said decision was reversed by the Court of Appeal. It was held that
the doctrine of res judicata did not apply as the validity of the 1992 Agreements
had not been considered by the Federal Court. The Court of Appeal then

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proceeded to consider if the said agreements were enforceable by the plaintiff.

Mohd Noor Ahmad JCA delivering the judgment of the Court, said (at 666):
The circumstances had changed since the decision of the
Federal Court in the aforesaid case. The administration of
the deceased's estate was completed sometime in 1995
after distribution order was obtained from the High Court
by CLHE on 19 May 1995. That was the position when the
appeal came before the learned Judge. In Nik Mohamed
Salleh v. Tengku Besar Zabidah [1971] 1 MLJ 73, the Federal
C o u r t h e l d t h a t a l t h o u gh t h e be n e f i c ia r i e s of t he
d e c e a s e d s e s t a t e h a d n o t i t l e t o t he l a n d w hi c h t h e y
a g r e e d t o s e ll und e r a n a g r e e m e n t t h e y ha d a s p e s
successionis in the land. As such, the administrator of the
deceas ed s es t a t e was com pelled t o t rans fer t he who le
land to the purchaser, by virtue of the provisions of s. 17(a)
of the Specific Relief (Malay States) Ordinance 1950 ('the
SR (MS) Ordinance') and s. 44(1) of the Contracts (Malay
States) Ordinance 1950 ('the C(MS) Ordinance').Section
17(a) of the SRA, which is in pari materia with the same
section of the SR(MS) Ordinance, states:
.........
In Kersah La'usin v. Sikin Menan [1966] 2 MLJ 20 where,
under an agreement, the sole beneficiary sold the land
registered under his deceased mothers name, in his
judgment Raja Azlan Shah J (as His Highness was then)
stated:
The first consideration is whether the plaintiff
could enter into a contract with the defendants
(deceased) father involving a subject matter
which was then not subsisting in the sense that
the said land was still in his mothers name. It is
not disputed that he was the sole beneficiary and
that he was in such a position that when the time
came he could perfect the title of the purchaser.
The fact that at the date of contract the vendor
had neither title nor power to call for title is not of
itself as answer to a suit of specific performance
by the purchaser; Brickies v. Snell [1916] 2 A.C.
599. Actual possession of both the legal estate
and any equitable rights are not pre-requisites so
long as the vendor is in such a position that when
the time for completion comes he will be in a

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position to pass on the title to the purchaser. In
those circumstances the contract is good but
only in equity.

And later, concluded (at 667 to 668):

What is discernible from the authorities is that a
beneficiary to a deceased's estate can enter into a
cont ract of sale of land involving a subject matt er which
is not subsisting in the sense that the land is still in the
deceas ed's nam e. H owever, when t he beneficiary co m e s
t o be in a pos it ion t o pas s on t he t it le t o t he pur chas er
he can be com pelle d by t he purchas er t o m ake good t he
cont ract out of t hat int eres t . A lt hough in t he pres ent
appeal, cl 1. 1. of t he relevant 1992 A gree m ent s s t a t es
t hat t he s ale is in res pect all t he right s , t it le a nd int eres t
and s hares of all the beneficiaries in t he s aid lan ds , t o
our m ind, having regard t o t he fact t hat t he
adm inis t rat ion of t he deceas ed s es t at e had not bee n
co m plet ed at t he t i m e of it s execut ion, t he s ubj ect m a t t e r
involved in t he t rans act ion is none ot her t han the s ale o f
s pec s ucc es s ionis . A s s pecific perform anc e of t he 1992
A gree m ent s as pra yed for by t he plaint iff in t he ac t ion i s
an equit able relief, t he court will look at t he s ub s t ance
rat her t han t he for m . A nyway, it i s s t ill open t o t h e
plaint iff t o am end it s pleading t o cover t his point , if it s o
wis hes , before t he t rial of t he act ion.
( em phas is added )
Farlim 3
27.

Further to the decision of the Court of Appeal in Farlim 2 that the striking out
order was wrong, the trial proceeded. At the conclusion of the trial, the High
Court allowed the plaintiffs application for specific performance of the agreements.

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Farlim 3 is the defendants appeal to the Court of Appeal against that decision
of the High Court. The Court of Appeal allowed the appeal on the ground that
the term spec successionis was not mentioned in the sale agreements. Hasan
Lah JCA stated (at paras 35 to 37):
We have carefully considered the judgment of the Federal
Court in the Chor Phaik Har's case and we are satisfied that
the Federal Court, in deciding the issue whether Farlim was a
person aggrieved within the meaning of s. 327 of the National
Land Code, did consider the issue of the validity of the Farlim
agreements. The Federal Court clearly and unequivocally held
that in the agreements the beneficiaries had agreed to sell
their rights title and interest of their respective shares in the
said lands. The Federal Court also held that in law a
beneficiary under an intestacy has no interest or property in
the personal estate of a deceased person until the
administration of the deceased's estate is complete and
distribution made according to the law of distribution of the
intestate estate. As such the beneficiaries of the estate of
Chor Bah Say had no interest or property in the estate of Chor
Bah Say so as to give them any title to the land. The
beneficiaries could not therefore have covenanted to convey
any title to the plaintiff.
We are unable to agree with the contention that the subject
matter of the Farlim agreements was the spes successionis
the defendant had in the said lands for the simple reason that
the Federal Court has made a finding that in the Farlim
agreements the beneficiaries have agreed to sell their rights
title and interest of their respective shares in the said lands.
Furthermore the term 'spes successionis' was never
mentioned in the Farlim agreements. As such the question of
disposing a spes successionis did not arise. The plaintiff did
not raise the issue of spes successionis before the Federal
Court. The plaintiff must abide by the decision as res judicata
applies not only to issues the court was actually required to
decide but also to every issue which the parties exercising
reasonable diligence might have raised at that time (Asia
Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3
MLJ 189).
Applying the principles of res judicata/issue estoppel the
plaintiff was therefore estopped from claiming that the
defendants had agreed to sell their 'alleged spes
s ucces s ionis '. A s s uch we are of t he view t hat t he learned

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High Court judge has erred in coming to the decision that

what the first to sixth defendants had intended to sell was
their spes successionis.
28.

The decisions in the Farlim cases illustrate that a beneficiary or person interested
under an intestacy does not have a defined or specific legal or equitable interest to
which a claim may be laid before the estate has been administered but may enter
into a perfectly valid contract to sell that entitlement if any, whatever it may be,
even prior to the completion of the administration of the estate. The entitlement
that a beneficiary can sell is a right to an expectancy of inheritance, or 'spes
successionis'. This means the residue that is due to the beneficiary after the
estate is administered. Under the said contract, the purchaser purchases and
obtains a 'spes successionis' which only becomes enforceable once the
administration of the estate is completed, and if and when the beneficiary
obtains the asset that he has sold under the contract in the expectancy he will
receive it from the intestate. Upon the asset being vested in the beneficiary, the
court can order specific performance as provided in section 17(a) of the Specific
Relief Act 1950.

29.

I pause here to observe that the dictum reproduced in para [26] above, in my
judgment, really disposes of the defendant's argument that the deceased was not
entitled to sell or give away as a gift whatever her entitlement of the estate
before the completion of the administration of the estate of Ariasakthi. This court
holds that, in law the deceased as the sole beneficiary to Ariasakthis estate,
was entitled to give away as a gift, the entitlement, 'share', 'interest' or by
whatever name it may be called that which was due to her upon the completion
of the administration of the estate of Ariasakthi. Thus, the plaintiff, if he is able
to show that the deceased had given the house to him as a gift, would be entitled

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to enforce the gift only upon the completion of the administration of the estate of
Ariasakthi.
Issue 2: Whether there was a gift?
30.

I now turn to the all important question in this case, namely whether the deceased
had given her entitlement to the house as an inter vivos gift to the plaintiff.

31.

Under common law, there are generally two categories of gifts; donatio mortis
causa and gifts inter vivos. A gift made donation mortis causa is also known as a
deathbed gift. This is a gift that the donor makes when he or she is contemplating
the prospect of his or her imminent, though not necessarily certain, death. On the
other hand, a gift inter vivos is the the voluntary and gratuitous transfer of property
while the donor is still alive and not in expectation of death. Unlike a will, which
merely regulates succession after death, a gift inter vivos, strips the donor of his
property during his lifetime. Following a gift inter vivos, the donor no longer has
any rights to the property, and cannot get it back without the permission of the
done it was gifted to.

32.

The constituent elements of a gift inter vivos are well settled. They are accurately
stated in Halsbury's Laws of England, 4th ed., Volume 20 at pages 1-2, as
follows:
A gift inter vivos may be defined shortly as the transfer of
any property from one person to another gratuitously while
the donor is alive and not in expectation of death. It is an act
whereby something is voluntarily transferred from the true
possessor to another person with the full intention that the

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thing shall not return to the donor. It has been said that
there must be an intention on the part of the recipient to
retain the thing entirely as his own without restoring it to the
giver. This, it seems, is incorrect. .... A gift appears to be
effective when the donor intends to make it a gift and the
recipient takes the thing given and keeps it, knowing that he
has done so. The mere fact that the recipient regards the
thing given as a loan and intends so to treat it does not by
itself prevent the transaction from being effective as a gift.
33.

In Tan Chong Kiat v. Kwan Ah Soh [1998] 3 MLJ 884, the Court endorsed the
view expressed in Halsburys that a valid inter vivos gift comes into effect upon
the transfer of any property by a living donor to the donee without consideration
as a gift.

34.

The authorities on the subject make it clear that words of gift or mere intention
to make a gift is insufficient, however clearly expressed. There must be some
overt act of physical transfer of subject matter of the gift to the donee. In Re
Swinburne; Sutton v. Featherley [1925] All ER Rep 313, the Court of Appeal
held that in order to make an effectual gift inter vivos there must be an actual
transfer of the subject of the gift or of the indicia of title to the gift. See also
Re Wasserberg [1915] 1 Ch 195. The meaning and requirement of transfer is
easy to understand in the context of chattels but, the question arises what is the
position vis a vis immovable property which cannot be physically delivered.

35.

In my judgment, in order for a gift of immovable property to be valid, it is

incumbent on the donee to show that the donor has parted with ownership; this
can be done by showing that the donor has executed transfer forms in favour of

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the done, or has surrendered the title deeds to the donee or given the donee
exclusive control of the immovable property or something to that effect.
36.

In the instant case, I accept the evidence of the plaintiff that the deceased had
expressed the intention to give him the house as a gift. But, there is no further
evidence that the deceased had taken the necessary steps to transfer the house to
him, an essential element to render the gift complete and enforceable. She had not
even seen a lawyer for the transfer to be effected. In the circumstances, I am
constrained to decide, in the light of the authorities, that there was no transfer of
the house to the plaintiff. I therefore find that the plaintiff has failed to prove that
the house was given to him as a gift inter vivos by the deceased.

Issue 3: Whether the plaintiff had acquired an interest in the house based on
proprietary estoppels?
37.

Alternatively, the plaintiff predicates his claim to the house on the doctrine of
equitable interest and/or proprietary estoppel. The plaintiff contended that he had
acquired an interest in the house as he had relied on the assurance or promise
given to him by the deceased that he would inherit the house if he looked after
her and complied with her 5 conditions. These were:
i.

That the plaintiff would reside on the house with her (the deceased)
during the whole of her lifetime;

ii.

That the plaintiff would not marr y or live apar t from her during the
whole of her lifetime;

iii.

That the plaintiff would look after the deceas ed and provide for her
medical needs and care during her lifetime;

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That the plaintiff would always maintain the said house and upkeep it
in a fit and habitable condition; and

v.

That at all times the plaintiff would reside in the said house after the
deceaseds death in the memor y of her and her late husband and
Ariasakthi and Navasakthi.

38.

The principles of proprietary estoppel were formulated by Ramsden v. Dyson

[1866] LR 1 HL 129 and Willmott v. Barber [1880] 15 Ch D 96, [1881-5] All ER
Rep Ext 1779. In both these cases, the principle was used as a sword by the
plaintiffs to establish a proprietary interest in someone else's property on the basis
that they had incurred expenditure on the property in the mistaken belief that it
belonged to them, and that belief had been encouraged by the true owners
silence and inaction standing by without intervening. In the first case, Lord
Cranworth said, at pp 140-141:
If a stranger begins to build on my land supposing it to be
his own, and I, perceiving his mistake, abstain from setting
him right, and leave him to persevere in his error, a court of
equity will not allow me afterwards to assert my title to the
land on which he had expended money on the supposition
that the land was his own. It considers that, when I saw the
mistake into which he had fallen, it was my duty to be active
and to state my adverse title; and that it would be dishonest
in me to remain wilfully passive on such an occasion, in
order afterwards to profit by the mistake which I might have
prevented.

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In Thorne v. Major [2009] 3 All ER 945, the House of Lords had occasi on to
consider the meaning of the expression proprietary estoppel. Lord Walker said (at
para 29):
An academic authority (Gardner An Introduction to Land
Law (2007) p 101) has recently commented: 'There is no
definition of proprietary estoppel that is both comprehensive
and uncontroversial (and many attempts at one have been
neither).' Nevertheless most scholars agree that the doctrine
is based on three main elements, although they express them
in slightly different terms: a representation or assurance
made to the claimant; reliance on it by the claimant; and
detriment to the claimant in consequence of his (reasonable)
reliance (see Megarry and Wade Law of Real Property (7 t h
edn, 2008) para 16-001; Gray and Gray Elements of Land Law
(5 t h edn, 2009) para 9.2.8; Snell's Equity (31 s t edn, 2005)
paras 10-16 to 10-19; Gardner An Introduction to Land Law
(2007) para 7.1.

40.

Lord Walker further explained (at para 61):

In my opinion it is a necessary element of proprietary
estoppel that the assurances given to the claimant (expressly
or impliedly, or, in standing - by cases, tacitly) should relate
to identified property owned (or, perhaps, about to be owned)
by the defendant. That is one of the main distinguishing
features between the two varieties of equitable estoppel, that
is promissory estoppel and proprietary estoppel. The former
must be based on an existing legal relationship (usually a
contract, but not necessarily a contract relating to land). The
latter need not be based on an existing legal relationship, but
it must relate to identified property (usually land) owned (or,
perhaps, about to be owned) by the defendant. It is the
relation to identified land of the defendant that has enabled
proprietary estoppel to develop as a sword, and not merely a
shield: see Lord Denning MR in Crabb v. Arun DC [1975] 3 All
ER 865 at 871, [1976] Ch 179 at 187

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The cases illustrate that proprietar y estoppel arises most commonly when an
owner of land (or one about to become owner) encourages another to act to his
detriment in the belief that he will obtain a right or interest in that property. The
underlying rationale is that it would be unjust and unconscionable for the maker of
the assurance not to give effect to his promise. In Gillett v. Holt [2001] Ch 210
Robert Walker LJ said:
It is important to note at the outset that the doctrine of
p r o p r i e t a r y e s t o p pe l c a n no t b e t r e at e d a s s u bd iv i d ed
i n t o t h r e e o r f ou r w a t e r t i g h t c o m p a r t m e n t s . B o t h s i d e s
a r e a g r e e d o n t h a t , a n d in t h e c o u r s e o f t h e o r al
a r g u m e n t i n t h i s c o u r t i t r e p e a t e d ly b e c a m e a p p a r e n t
that the quality of the relevant assurances may influence
t he is s ue of reliance, t hat r eliance and det rim ent ar e
oft en int ert wined, and t hat whet her t here is a dis t inct
need for a m ut ual unders t anding m ay depend on how
t he ot her ele m en t s are for m ulat ed and unders t ood.
M oreov er, t he fundam ent al principle t hat equit y is
concerned
to
prevent
unconscionable
conduct
permeates all the elements of the doctrine. In the end
the court must look at the matter in the round.

42.

The requirements of estoppel were considered by the Federal Court in

Boustead Trading (1985) Sdn Bhd v. Arab Malaysian Merchant Bank Berhad
[1995] 3 MLJ 331. The Court stated, by way of obiter dicta, that the principle
that estoppel can only be invoked if there was assurance, reliance and detriment
was no longer correct. The rationale for this view was based on dicta
expressed by some English Judges that detriment was not an ingredient in the
equation. It was observed (at 347);

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Taking now the requirement of detriment, it is quite

apparent that in the early developm ent of the doctrine,
there are to be found in the judgments of eminent judges
s t a t e m e n t s i n d i c a t i n g t h a t o n e w ho r e l i e s u p on an
e s t o p p e l m u s t p r o ve t h a t h e r e l i ed up o n h is op p on e n t 's
c o n du c t a n d i n c o ns e q u e n c e a c t e d t o h i s d e t r i m e n t . A n d
this view had found its way into the equity jurisprudence
of Malaysia. (See, for example, Wong Juat Eng v. Then
T h a w En & A n or [ 1 9 6 5 ] 2 M L J 2 1 3 . ) A s h a s b e e n s e e n ,
the former requirement, namely, that there ought to have
been reliance was exploded by the decisions in
Amalgamated Investment, in Taylor Fashions, in Societe
Italo-Belge (sub nom 'The Post Chaser' and Lim Teng
Huan.
We take this opportunity to declare that the detriment
e l e m e n t d o e s n o t fo r m p a r t o f t h e do c t r i n e o f e s t o p p e l .
In other words, it is not an essential ingredient requiring
proof before the doct rine may be invoked. All that need
be s hown is t hat in t he part icular circu m s t anc es of a
cas e, it would be unj us t t o per m it t he repres ent or or
encourager t o ins is t upon his s t rict legal right s . I n t he
res olut ion of t his is s ue, a j udicial arbit er would, when
m aking his as s es s m ent of where t he j us t ice of t he c as e
lies , be ent it led t o have regard t o t he conduct of t he
litigant raising the estoppel. This may, but need not in all
cases, include the determination of the question as to
whether the particular litigant had altered his position,
although such alteration need not be to his detriment.
43.

Two authors on Contract law in Malaysia and Singapo re disagree with the
dictum of the Federal Court that the detriment is not an essential element of the
doctrine of estoppel. Dato Sinnadurai in his book Law of Contract (3 rd Edition)
stated (at 147):
Whilst it is now acknowledged that unconscionability [is]
the touchstone for all relevant forms of estoppel, the basic

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principles governing the doctrine have not altered much,

particularly the relationship between the requirement for
consideration in a contract, and the enforceability of a
promise unsupported by consideration in the sphere of
promissory estoppel. The requirement to establish detriment
appears to be firmly rooted and, despite some views to the
contrary, continues to be a vital ingredient.
44.

The editors of Cheshire, Fifoot and Furmstons Law of Contract, Second

Singapore and Malay sian Edition have expressed a similar view at p 211;
It is submitted with respect, that it was unfortunate that the
court in Boustead Trading (1985) Sdn Bhd v. Arab Malaysian
Merchant Bank Bhd [1995] 3 MLJ 331 FC did not canvass the
arguments centring around the concept of detriment more
fully. It is further submitted that the arguments made earlier
[by the authors] to the effect that detriment is the most
concrete manifestation of inequitability, still hold, particularly
in the light of the courts emphasis, in the passage quoted
[above], on fairness and justice. And there is also some
recent case law that also endorses the requirement of
detriment itself.

45.

As for the element of detriment and its correlation with reliance, the reasoning of
Walker LJ in Gillett v. Holt ([at 43] supra) is instructive:
The overwhelming weight of authority shows that detriment
is required. But the authorities also show that it is not a
narrow or technical concept. The detriment need not consist
of the expenditure of money or other quantifiable financial
detriment, so long as it is something substantial. The

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requirement must be approached as part of a broad inquiry as

to whether repudiation of an assurance is or is not
unconscionable in all the circumstances.
There must be sufficient causal link between the assurance
relied on and the detriment asserted. The issue of detriment
must be judged at the moment when the person who has
given the assurance seeks to go back on it. Whether the
detriment is sufficiently substantial is to be tested by whether
it would be unjust or inequitable to allow the assurance to be
disregarded - that is again, the essential test of
unconscionability. The detriment alleged must be pleaded
and proved.
46.

The view expressed by the Federal Court in Boustead that detriment is not an
essential ingredient of estoppel is not binding on this Court as it was merely an
obiter dicta. The majority of the English cases on this subject, favour the view that
detriment is a sine qua non of estoppel. This Court is therefore at liberty to follow
the English authorities on this point. The three main elements requisite for a
claim based on proprietary estoppel are: an assurance given to the plaintiff,
reliance by the plaintiff on the assurance and detriment incurred by the plaintiff as
a consequence of that reliance. In my judgment, to dilute the requirements of
proprietary estoppel would result in frivolous claims being pursued against land
owners.

47.

Once the three elements that constitute proprietary estoppel are proved on a
balance of probabilities, the court must consider what is necessary in order to
satisfy the equity which has arisen. When considering that exercise, the English
Court of Appeal in Jennings v. Rice [2003] 1 P & CR 100 held that the question

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as to how the equity should be satisfied was a matter for the court's discretion in
the light of all the circumstances including the claimant's expectation and the
detriment he suffered. In this regard, Walker LJ observed at para 48 that .. .
reference to the minimum [in such a context] does not require the court to be
constitutionally parsimonious, but it does implicitly recognise that the court
must also do justice to the Defendant.
48.

Walker LJ provided guidance at paras 50 and 51 of his judgment as to the

manner in which the court should seek to satisf y su ch an equity:
.. . if the Claimant's expectations are uncertain, or
extravagant, or out of all proportion to the detriment
w hi c h t h e C l a i m a n t ha s s uff e r e d , t h e c o u r t c an and
s h o ul d a t t h e c l ie n t ' s e qu i t y s h oul d b e s a t i s f i ed i n
a n o t h e r ( an d g en e r a l l y m o r e l i m i t e d ) w a y .
B u t t h a t d o e s n o t m e a n t h a t t h e c our t s h ou ld in s u c h a
c a s e a b an d on e x p ec t a t i o n s c o m p l e t e ly , a nd l oo k t o t h e
d e t r i m e n t s u ff e r ed by t h e C l a i m a n t a s d ef in i ng t he
a p p r op r i a t e m e a s ur e o f r e l i e f. I n d ee d in m a n y c as e s ,
t h e d e t r i m e n t m a y b e e v e n m o r e d i f fic u l t t o q u an t if y , i n
f in a n ci a l t e r m s t h a n t h e C l ai m a n t ' s e x p e c t a t i o ns . . . .
M o r e o v e r t h e C l a im a n t m a y n o t b e m o t i v a t e d s o l e l y b y
r e l i a n c e o n t h e b e n e f a c t o r ' s a s s u r a n c e s , a nd m a y
r e c e i v e s o m e c o u n t e r v a i l i ng b e n ef i t s ( s u c h a s f r e e b ed
a n d bo a r d ) . I n s u c h c i r c u m s t a n c e s t h e c o u r t h a s t o
e x e r c i s e a w id e j udg m e n t a l d i s c r e t i o n.

49.

In the same case, Aldous LJ writing the leading judgment, observed at para 36:
The value of [such an] equity will depend upon all the
circumstances including the expectation and the detriment.
The task of the court is to do justice. The most essential
requirement is that there must be proportionality between the
expectation and the detriment.

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50.

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Applying these principles to the factual matrix in this case. On the evidence, the
deceased was about to become the owner of the house at the material time. I
accept the evidence of the plaintiff that the deceased had assured him that he
would inherit the house, if he satisfied her 5 conditions. The evidence given by
the witnesses called by the plaintiff demonstrated that the plaintiff had a close
relationship with the deceased and she treated him as if he were her son. He was
permitted by the deceased to perform the funeral rites for Ariasakthi and
Navasakthi. In my judgment, this is crucial evidence which affords strong
corroboration to the plaintiffs assertion that he was the adopted son (by custom)
of the deceased. The deceased had relied on his love and kindness to look after
her after the demise of her daughters. There is no evidence that any of her
other relatives had offered or taken care of her after the death of Ariasakthi and
Navasakthi. In the circumstances, it is inherently probable that she would have
made that promise to him.

51.

Did the plaintiff therefore rely on the promises or assurances? In my judgment,

he did. On the evidence, I find that the plaintiff had kept these promises in the
expectations that he would acquire ownership of the house upon the death of the
deceased. He was under no obligation to look after the elderly woman, but he did.
He did not get married. He ran errands for her. He was not paid for doing so and
am satisfied that he did all these things principally because of the promise made
to him that he would inherit the house.

52.

I am satisfied that the fact that he remained single and looked after an elderly and
sickly woman during the material time, is sufficient evidence that he had suffered

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detriment in consequence of his reliance of the promise made to him by the

deceased.
53.

What therefore, is the minimum equity necessary to do justice in the present case
to avoid an unconscionable and disproportionate result? The Courts have a wide
discretion in this regard. On balance, in my judgment, the equity is satisfied by a
declaration that the house be transferred to him by the estate of the deceased.
The estate is bound by that assurance given by the deceased to the plaintiff. In
my judgement, it would be unjust and unconscionable to deny the plaintiffs
equitable interest in the house.

Issue 4 : Whether Non Compliance with Order 72 r.2(3) ROC is fatal?

54.

That brings me to the point made pursuant to Order 72 r. 2(3) ROC. The
defendant contended that it was not open to the pla intiff to apply for the
revocation of the two Las that were granted to him in view of his failure to comply
with Order 72 r. 2(3) Rules of Court 2012 (ROC). It was said that this was a
mandatory provision and non compliance with it is fatal. This provision provides:
A writ beginning an action for the revocation for the grant of
probate of the will, or letters of administration of the estate, of
a deceased person shall not be issued unless a citation under
rule

has

been

issued

or

the

probate

or

letter

of

administration, as the case may be, has or have been lodged

in the Registr y.

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The Federal Court in Yap Teck Ngian v. Yap Hong Long & Ors [2007] 5 CLJ 290
considered the legal effect of this provision. Nik Hashim FCJ observed at
paragraph (6) that:
Thus, it is clear from the above provisions that before
any person can file a writ for the revocation of the grant of a
letter of administration, a citation against the person to
whom the letter was granted must be issued to him
requiring him to bring into and leave at the Court Registry
the letter of administration (O. 72 r. 7). The citation must
be settled by the court before it is issued (O. 72 r. 8(1)).
Before a citation is issued pursuant to O. 72 r. 7 an
affidavit verifying the statements of fact to be made in the
citation must be sworn by the person applying for the
citation to be issued (O. 72 r. 8(2)) and that the citation
m us t be s erved pe rs onally on t he cit ee which the ci t ors
did in t he pres ent cas e. I n t he A d m inis t rat ion of E s t at es
H andbook, Kanes h Sundrum s t at es at p. 187 para 192:
Every probate action must be begun by writ issued
out of the Registry of the High Court. The writ must
be endorsed with a statement of the nature of the
interest of the plaintiff and of the defendant in the
estate of the deceased. A writ beginning an action
for the revocation of probate or administration can
only be issued after a citation to bring in grant has
been issued or the probate or letters of
administration has been lodged in the said registry.
(emphasis added)

56.

It is admitted and common ground that the plaintiff did not comply with Order 72
r. 2(3) ROC prior to the institution of this action. But, the plaintiff took the
position that Order 72 r. 2(3) has no application here as the present action is a
mixed claim as opposed to a pure probate action as statutorily defined under this
O r der . I n the alter n a tive, it w as pointed out that the def enda nt had f iled a

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conditional appearance and had taken numerous steps in these proceedings from
the time the action was instituted. This objection could have been raised sooner,
but was not. It was said that by his conduct, the d efendant has waived his
right to raise this objection. In the further alternative, it was argued that this was
not a mandatory provision and that the plaintiff would be prejudiced if the
objection is allowed to be taken at this very late stage.
57.

In Chong Keat Reality Sdn Bhd v. Ban Hin Lee Bank Bhd [2003] 3 MLJ 321
Gopal Sri Ram JCA explained with his accustomed lucidity and authority, the
modern approach that is to be adopted when there is a failure to observe
procedural provisions in these words (at 328):
Lastly, there is the question of the modern approach to
the breach of procedural provisions by a litigant. It is to be
emphasized that the courts are concerned with the
dispensation of both procedural and substantive justice
according to the merits of a given case. So, when a party to
litigation complains of breach of a procedural provision by
his opponent, the primary question is not whether the
particular provision is to be regarded as mandatory or
directory according to the terms of the language in which it
is couched. The correct question that the judicial arbiter
should ask himself is this: What injustice has the party
complaining suffered by reason of the procedural breach?
It is the answer to this question that will ultimately
determine whether the court should uphold or reject a
procedural complaint.

58.

In a similar vein, a another panel of the Court of Appeal in Amirthanayaki

Kumarasamy v. Lembaga Kelayakan Profesion Undang-un dang Malaysia
[2010] 1 MLJ 656 stated (at para 13 and 14):

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Such procedural technical objection (as in the present case)

should not be allowed to obstruct the process of justice to
the deserving. As we move towards the era of facilitating the
process of litigation, the raising of objection on technical
grounds would certainly and clearly be a thing of the past. It
is clearly the intention and wisdom of the rules committee to
provide for the smooth administration of the due process and
administration of justice by way of substantial merits of the
case and not merely on procedural technical defaults (see
Beauford Baru Sdn Bhd v. Gopala Krishnan a/l VK Gopalan
[2002] 6 MLJ 134).
A judge should not be so besotted by the rules that his sense
of justice and fairness becomes impaired because of his
blithered fixation on technicalities of the rules and the cold
letter of the law (see Megat Najmuddin bin Dato' Seri (Dr)
Megat Khas v. Bank Bumiputra (M) Bhd [2002] 1 MLJ 385 per
Mohtar Abdullah FCJ).
59.

The authorities illustrate that the question I need to consider is whether the
defendant has suffered any prejudice or damage by reason of the plaintiffs noncompliance with Order 72 r. 2(3) ROC. There is no evidence to show that the
defendant has been prejudiced by the non-compliance, and I therefore reject the
complaint made by the defendant. In any event, having raised no objection for
the last 10 years the defendant has waived his right to raise this objection.

Issue 5 : Whether the two LA granted to the defendant should be revoked?

60.

I now turn to the petitions filed by the defendant to apply for LA for the estates of
Ariasakthi and the deceased. As earlier noted at para [5], the defendant had
described himself as the nephew of both Ariasakthi and the deceased in the
affidavits filed in support of these petitions. This was incorrect and I am prepared

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to accept that this may be attributed to an unintentional mistake. The petition was
in the Malay language, and there is no evidence that the defendant was well
versed in that language.
61.

However, the complaint that requires a close scrutiny is the allegation made by
the plaintiff that the defendant had obtained the Order of Court dated 21
September 1998 in breach of his duties as an administrator. It was a fraud on the
beneficiaries. The defendants explanation to the aforesaid complaint was that
the Order was obtained to vest the house in his name as the administrator of the
estate to enable him to sell it to liquidate the assets of the estate for distribution.
It was said that he did not acquire ownership of the house by virtue of the Order.

62.

As noted earlier in para [6], the defendant had made this application pursuant
to section 60(4) of the 1959 Act and section 6(1)(ii) Distribution Ordinance under
the estate of Ariasakthi. The affidavit in support of the application was dated 24
July 1998, and was laconic and merely stated that he was the nephew of
Ariasakthi. There was no mention that the house had devolved to the deceased
nor that the beneficiaries had consented for him to become the new registered
owner of the house.

63.

The validity of the defendants submission that the Order of 21 September 1998
was merely a vesting order requires an examination of relevant statutor y
provisions that govern the subject matter. They are section 346 of the National
Land Code 1965 which deals specifically with the transmission of property on
the death of the registered proprietor, and section 60 of the Probate and
Administration Act which deals with the sale of estate property by the

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administrator. First, I refer to the provisions in section 346 of the NLC which
states;
(1) The personal representative or representatives of any
deceased person m ay apply to the Registrar under this
section to be registered as such in respect of any land,
forming part of that persons estate and the Registrar, if
satisfied that any estate duty due in respect of the estate
has been paid, or a postponement of payment allowed in
r e s p e c t o f t h e l and , s h a r e o r in t e r e s t i n qu e s t i on , s h all
g i v e ef f e c t t o t h e a pp li c a t i o n in a cc o r d a n c e w i t h t h e
p r o v i s i o ns of s u b - s e c t i o n s ( 3 ) an d ( 4 ) .
(2)

Any such application shall be accompanied by(a)

(b)

(c)

the grant of probate or letters of administration;

if available, the issue document of title to the land or,
where the application relates to a lease or a charge,
the duplicate thereof; and
such other documents or evidence as the Registrar
may require, or as may be prescribed.

(3)
The Registrar shall give effect to any such application by
endorsing on the register document of title to the land to
which, or a share or interest in which, it relates a note of the
date of death of the deceased person and a memorial to the
effect that the said land, share or interest is vested in the
applicant or applicants as representative or, as the case may
be, as representatives.
(4)
Every such memorial shall be signed and sealed by the
Registrar, and a copy thereof shall be made on the issue
document of title or, as the case may be, duplicate lease or
charge, if sent with the application or subsequentl y obtained
by him.
(5)
No personal representative or representatives shall be
capable of executing any instrument of dealing in respect
of any land, share or interest until it has become
registered in his or their name or nam es pursuant to this
section.
(emphasis added)

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64.

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And, section 60 of the 1995 Act provides:

(1)
(2)

(3)

(4)

(5)
(6)

In dealing with the property of the deceased his personal

representative shall comply with this section.
Unless the Court otherwise directs, no sale, transfer,
conveyance or assent in respect of immovable property shall
be made without the concurrence of all the personal
representatives of the deceased; and subject as aforesaid,
where there are several personal representatives the powers
of all may, in the absence of any direction to the contrary in
the will or grant of administration, be exercised by any one of
them.
A personal representative may charge, mortgage or otherwise
dispose of all or any property vested in him, as he may think
proper, subject to any restriction which may be imposed in
this behalf by the will of the deceased, and subject to this
section:
Provided that an executor may dispose of any property
notwithstanding any restriction so imposed, if he does so in
accordance with an order of the Court.
An administrator may not, without the previous
permission of the Court(a)
mortgage, charge or transfer by sale, gift, exchange
or otherwise any immovable property situate in any
State and for the time being vested in him; or
(b)
lease any such property for a term exceeding five
years.
Nothing in this section shall affect subsection 15(2) of the
Trustee Act 1949 [Act 208].
The disposal of property by a personal representative in
contravention of this section shall be voidable at the instance
of any other person interested in the property.

(emphasis added)
65.

It is clear from the above two statutory provisions that there is no requirement in
law for an administrator or personal representative to apply to the court for a

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vesting order for estate property to be vested in his name as an administrator.

The application is not made to the court but to the Registrar of the relevant
Land Office enclosing the LA and other supporting documents. This is the
first step that an administrator needs to take in the sale of immovable property of
the estate of a deceased. Until the transmission of the property to the
administrator under section 346 of the NLC, an administrator cannot execute the
transfer documents on behalf of the estate. Next, an administrator must file an
application for the sale of the estate property pursuant to section 60(4) of the
1995 Act with the consent and the knowledge of the beneficiaries. The sale of
immovable property can only be effected with the sanction of the court.
66.

In the present case, there is no explanation from the defendant why the
application for the vesting order was made pursuant to section 60(4) of the 1959
Act instead of section 346 NLC. As noted earlier, section 60(4) of the 1959 Act
is only applicable when an administrator wants to sell estate property and to apply
for the property to be registered in his name. The conduct of the defendant in
invoking this provision to transfer property to himself is not permitted. As an
administrator he holds estate property on trust for the beneficiaries. It is clear
from the terms of the Order of 21 September 1998, made pursuant to section
60(4) of the 1959 Act that the ownership of the house has been absolutely
transferred to the defendant. The Order as drawn up does not indicate in any
way, as contended by the defendant, that the house has been transferred to him
in his capacity as an administrator. Indeed, the legal effect of the Order is made
clear by the defendants solicitors letter to the plaintiff, reproduced above at [7].
By acquiring proprietorship of the house, the defendant would no longer need
the leave of the court to sell it as mandated by section 60(4) of the 1995 Act.
Thus, when the house is sold, the sale proceeds would come to the defendant
instead of the estate.

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67.

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In Khoo Cheng & Ors (As Administrators Of The Estate Of Gan Hong Kok,
Deceased) v. Gan Hong Yock & Ors And Another Appeal [2005] 3MLJ 614,
Arifin Jaka JCA said (at 621):
Section 60(4) of the Probate and Administration Act 1959
expressly provides that an administrator may not without the
previous permission of the High Court: '(a) mortgage, charge
or transfer by sale, gift, exchange or otherwise any
immovable property situate in any State and for the time
being vested in him.' These provisions are intended to
prevent any improper sale of or dealing in the immovable
property of the estate of a deceased by an administrator, who
is required by law to apply to the High Court for an order of
sale, supported by affidavit exhibiting a reliable valuation
report on the property concerned for the consideration of the
judge.

68.

In Ong Thye Peng v. Loo Choo Teng & Ors [2008] 4 MLJ 31, Augustine Paul FCJ
said ( at para 28):
In our opinion the language employed in s. 60 of the 1959 Act
is clear. It is concerned with the manner of disposal of the
property of a deceased person by his personal
representative. Section 60(3) of the 1959 Act deals with the
disposal of the property of a person who dies testate while s.
60(4) of the 1959 Act deals with the property of a person who
dies intestate. Under s. 60(4)(a) of the 1959 Act the immovable
property of a person who dies intestate may not be disposed
of without the previous permission of the court.

69.

The prohibition in law on an administrator and/or trustee dealing with and acquiring or
appropriating trust/estate property for himself is well settled. It is called the rule

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against self dealing. The case on point is Kane v. Radley - Kane [1998] 3 All ER
753. The Court held:
The self-dealing rule applied to personal representatives as
it applied to trustees, and was not excluded by s. 41 a of the
Administration of Estates Act 1925. Thus, it was not
permissible for a personal representative to make an
appropriation in his own favour in satisfaction of a
pecuniary legacy to himself, unless the assets
appropriated were cash or equivalent to cash. In the instant
case, shares in s. Ltd, being unquoted investments, were
not the equivalent of cash, and accordingly the
appropriation by the widow without either the sanction of
the court or the consent of the beneficiaries whereby she
purported to become the beneficial owner of, and not
merely the personal representative holding, those shares
was invalid. The declaration sought would therefore be
granted (see p 763 g to j and p 764 e to j, post).
And later (at 759):
There is no case in which an appropriation by a personal
representative in his or her own favour of assets of the
estate in satisfaction of a pecuniary legacy has been
upheld. Indeed there seems to have been no case dealing
with such an appropriation at all. Such an appropriation is,
it seems to me, in clear contravention of the self-dealing
rule. It is equivalent to a purchase by the personal
representative of the appropriated assets. That being so, it
may not be surprising that there is no case to be found
where such an appropriation has been taken to court in an
attempt for it to be upheld. Be that as it may, there is
simply no such case that counsel have been able to find.
70.

The authorities discussed above illustrate that an administrator or personal

representative is not at liberty to transfer estate assets to himself without the sanction
of the court or the consent of the beneficiaries. The defendant has in breach of

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section 60(4) of the 1959 Act transferred and appropriated the house to himself. This
constitutes a breach of trust.
71.

There is one further matter. The application by the defendant also made reference to
section 6(1)(ii) Distribution Ordinance. This provision reads:
(1) After the commencement of this Ordinance, if any person
shall die intestate as to any property to which he is beneficially
entitled for an interest which does not cease on his death, such
property or the proceeds thereof after payment thereout of the
expenses of due administration shall, subject to the provisions
of section 4, be distributed in the manner or be held on the
trusts mentioned in this section, namely(i)
If a woman die intestate leaving a husband, the whole of
her estate shall go to him
(ii)
If a husband dies intestate leaving a wife and issue, the
surviving wife shall be entitled to one-third of the estate : but if
he leave a wife and no issue, the surviving wife shall be entitled
to one-half of the estate

72.

Section 6(1)(ii) is concerned with the distribution of the estate of a husband

who dies intestate leaving a wife and children. It has no application to the
transfer of estate property to the name of administrator. The defendant was
not the wife of the deceased and I fail to understand the relevance of this
provision in seeking an order for the house to be vested in him in his capacity
as the administrator.

73.

The question that arises is whether the plaintiff entitled to rely on these facts as
a basis to apply to the court for a revocation of the two LAs granted to the
defendant to administer the estate of Ariasakthi and the deceased. He is not a
beneficiar y under both estates. Does he have the requisite locus to apply for

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revocation of the letters of administration. The defendant took the position that he
had no standing.
74.

Section 34 of the 1995 Act provides:

Any probate or letters of administration may be revoked or
amended for any sufficient cause.

75.

The scope of section 34 was considered by the Federal Court in Re Khoo Boo
Gon (decd) ; Khoo Teng Seong v. Teoh Chooi Ghim & Ors [1981] 2 MLJ 68.
Chang Min Tat FJ said (at 69):
The power to revoke a grant of probate or letters of
administration is vested in the High Court by section 34 of the
Probate& Administration Act, 1959 (Rev. 1972) and can be
exercised for any sufficient cause. However, there is no
definition of what is sufficient cause. But, if in the words of
Jeune, President, in In the Goods of William Loveday [1900] P
154, the real object which the court must always keep in
view is the due and proper administration of the estate and
the interests of the parties beneficially entitled thereto, then
the test of what is a sufficient cause is the due and proper
administration of the estate and the interests of the
beneficiaries. In our view, that is a strictly objective test.
(emphasis added)

76.

The onus is on the plaintiff to establish that there is sufficient cause for the
revocation. He has an interest in the house that has been transferred to the
defendant. He claims the house was a gift to him by the deceased upon the
h o u s e d e v o l vi n g t o h e r u p o n t h e d e a th o f h e r d a u g h t e r , A r i a s a k t h i . I n m y

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judgment, the plaintiff is clothed with the requisite locus because he has an
interest in the estates of both the deceased and Ariasakthi and is therefore entitled
to apply for the LA to be revoked pursuant to section 34.
77.

For the foregoing reasons, I therefore revoke the two LAs granted to the
defendant.

Issue 6 : Whether Order dated 21 September 1998 can be set aside sue motu by
the Court?
78.

The final point has to do with the Order of Court dated 21 September 1998. It was
undisputable that it had been obtained in breach of section 60(4) of the 1959 Act.
The legal effect of an order obtained in breach of a statutory provision was
considered by the Federal Court in Badiaddin bin Mohd Mahidin & Anor v.
Arab Malaysian Finance Berhad [1998] 1 MLJ 393. His Lordship Mohd Azmi
FCJ explained (at 409):
For my part, I must hasten to add that apart from breach of
rules of natural justice, in any attempt to widen the door of
the inherent and discretionary jurisdiction of the superior
courts to set aside an order of court ex debito justitiae to a
category of cases involving orders which contravened any
written law, the contravention should be one which defies a
substantive statutory prohibition so as to render the defective
order null and void on ground of illegality or lack of
jurisdiction. It should not for instance be applied to a defect
in a final order which has contravened a procedural
requirement of any written law. The discretion to invoke the
inherent jurisdiction should also be exercised judicially in
exceptional cases where the defect is of such a serious

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nature that there is a real need to set aside the defective order
to enable the court to do justice. In all cases, the normal
appeal procedure should be adopted to set aside a defective
order, unless the aggrieved party could bring himself within
the special exception.
79.

Gopal Sri Ram JCA addressed the same issue (at 426):
It is one thing to say that an order of a court of unlimited
jurisdiction must be obeyed until it is set aside. It is quite a
different thing to say that a court of unlimited jurisdiction may
make orders in breach of written law. Isaacs v. Robertson is
certainly not authority for the latter proposition. I take it to be
well settled that even courts of unlimited jurisdiction have no
authority to act in contravention of written law. Of course, so
long as an order of a court of unlimited jurisdiction stands,
irregular though it may be, it must be respected. But where an
order of such a court is made in breach of statute, it is made
without jurisdiction and may therefore be declared void and
set aside in proceedings brought for that purpose. It is then
entirely open to the court, upon the illegality being clearly
shown, to grant a declaration to the effect that the order is
invalid and to have it set aside. It is wrong to assume that
such an order may only be corrected on appeal.
(emphasis added)

80.

The oft - quoted dictum of Gopal Sri Ram JCA makes it clear that an order which
is null and void can only be set aside in proceedings brought for that purpose. In
relying on that dictum, the defendant pointed out that there was no prayer in the
statement of claim for the order dated 21 September 1998 to be set aside. In the

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absence of such a prayer, the Court had no power to set it aside. The plaintiff
conceded that there was no express prayer but pointed out that there was a prayer
seeking for such other or further as is deemed fit and proper by this honourable
Court. The plaintiff contended this prayer must not be treated as a mere ornament
to pleadings devoid of any meaning based on the decision in Lim Eng Kay v.
Jaafar bin Mohamed Said [1982] 2 MLJ 156 and Ritz Garden Hotel (Cameron
Highlands) Sdn Bhd v. Balakrishnan a/l Kaliannan [2013] 6 MLJ 149.
81.

In Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 2 MLJ 565, a
similar objection was taken when the Court made an order that was not sought in
the application. The appellant there contended that the High Court had erred in
setting aside the whole judgment when the application by the respondent was
merely to set aside a portion of the judgment. In rejecting the argument, the
Gopal Sri Ram JCA explained (at 382 and 383):
The next question that arises is whether the learned judge
was right in reversing the order he made in chambers and in
setting aside the whole of the judgment, when the summons
before him sought to set aside only so much of the judgment
that directed the assessment of damages. I think that he was.
This is a case in which the plaintiffs had absolutely no right
whatsoever to obtain an order for the assessment of
damages. There was, as earlier observed, no judgment for
damages against the defendants on 28 November 1991. It is
elementary law that there can be no assessment of damages
in the absence of a judgment granting damages. Such a
judgment did not come until 2 December 1991. So, here is a
case where the cart had been squarely placed before the
horse. The judgment for the assessment of damages was
found in a judgment which was flawed in other respects.

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The learned judge was therefore perfectly entitled, in the

interests of justice, to take cognizance of the breach of O. 13 r
6(1) and to set aside the whole of the offending judgment. The
authority of a court to act suo motu to set aside a judgment
entered pursuant to its coercive power must, no doubt, be
exercised with caution. But it is there to be exercised in
appropriate cases; and I am satisfied that the case at hand
was indeed a proper case.
(emphasis added).
82.

An administrator is appointed by the court to be the guardian of the estate. He is in

a fiduciary position with regard to the assets that come into his possession by
virtue of his office. His duty is to preserve them and deal with them in
accordance with the law; to apply them in the due course of administration for
the benefit of the creditors, legatees of various sorts, and the residuary
beneficiaries. In breach of his fiduciary duties, the defendant has obtained a court
order to transfer an asset of the estate to himself without the knowledge and
consent of the beneficiaries. This court cannot simply fold its arms and look
askance without acting positively in the interest of justice and setting matters right
where there has been a serious breach of the law. In such a case as this where
the defendant has been guilty of self dealing, it is not only permissible but
incumbent on the court to act suo muto to intervene to do what is just and to
protect the estate of the deceased by setting aside the Court Order dated 21
September 1998. This Court has the inherent power to make any order as may be
necessary to prevent injustice or to prevent an abuse of the process of the Court
pursuant to Order 92 rule 4 ROC.

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Conclusion
83.

For the reasons given, I allow the plaintiffs claim with costs of RM25,000.00.

84.

I would end by thanking counsel for the invaluable assistance to the court.

Dated: 30 JUNE 2014

(S M KOMATHY SUPPIAH)
Judicial Commissioner
High Court of Malaya
Kuala Lumpur
COUNSEL:
For the Plaintiff - Steven Thiru (Aaron Matthews, Darmain Segaran & Gregory Das with
him); M/s Isaacs & Isaacs
For the defendant - M Manoharan; M/s M Manoharan & Co

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