1. ) ANANDH KUMAR A/L GANAPATHI v Kaniammah A/p Suppaih [Menyaman sebagai Pentadbir Harta Pusaka Ganapathi A/l Ayavu, No. K/P: 500714-01-5177 / 795259 (Si Mati)] (JA-22NCvC-115-09/2023)

ANANDH KUMAR A/L GANAPATHI

DR SUNDER RAJ A/L GANAPATHI (NO. K/P: 770330-01-5135) …PLAINTIF-PLAINTIF DAN KANIAMMAH A/P SUPPAIH (NO. K/P: 531027-01-5302) [Menyaman sebagai Pentadbir Harta Pusaka Ganapathi a/l Ayavu, No. K/P: 500714-01-5177/795259 (Si Mati)] …DEFENDAN GROUNDS OF JUDGMENT (Enclosure 41) [1] The Plaintiffs are the beneficiaries and the lawful sons of the deceased Ganapathi a/l Ayavu and the Defendant being a lawful wife of the deceased. This is an appeal arising from the decision of this Court in dismissing the Defendant’s application in enclosure 41 filed pursuant to Order 33 Rule 2, 3 and/or 5 and Order 92 Rule 4 Rules of Court 2012 (“ROC”) against the Plaintiffs seeking for a determination on points of law as follows: 06/06/2025 17:02:40 JA-22NCvC-115-09/2023 Kand. 82 S/N upkM90KR0aXqAtytm/G8w i. Whether the Plaintiff’s claims are time barred in pursuant to section 23 of the Limitation Act 1953 following Grant of Letters of Administration which was obtained on 31.7.2010; ii. Whether Plaintiffs’ claims on the element of fraud are time-barred in pursuant to section 29 of the Limitation Act 1953; and iii. Whether Plaintiffs’ claims are “probate action” which is not made in compliance with Order 72 Rules of Court 2012. [2] The said application subject to the answers given in affirmative by this Court, will enable the Defendant to seek for the dismissal of the Plaintiffs’ claim, without it having to go through a full trial. This Court, on the other hand in dismissing the said enclosure, and having sight of the pleadings in the main suit contended by the Plaintiffs the administration of the estate being one marred with fraud whilst the Defendant denying it, was of the view that the points relied or issues raised by the Defendant in enclosure 41 are triable issues, not one that can be directly ascertained without hearing further evidence from witnesses. Brief facts [3] The deceased father died intestate leaving behind moveable and immoveable properties. Apart from the Plaintiffs, there are 3 other siblings to the Plaintiffs being 2 younger brothers and a younger sister. Except for the younger sister, the other 2 brothers had or about to reach the age of majority at the time of death of the father on 3.1.2009. All siblings had agreed for the Defendant to be the administrator of the estate. The Letter of Administration was granted on 12.3.2010 and extracted on 31.7.2010. S/N upkM90KR0aXqAtytm/G8w [4] The list of assets presented by the Defendant in the said application for LA, based on the Plaintiffs’ contention, omitted a few other properties. The Defendant did not deny this but forwarded an answer in her defence. It is of significance to state that the Defendant had earlier filed an application in enclosure 17 to strike out the Plaintiffs’ suit which was dismissed by this Court. [5] The reasons pleaded by the Defendant in enclosure 17 rested also on the same issues raised in this enclosure 41, suggesting the Plaintiffs’ suit is barred by the Limitation Act and it being a ‘probate action’ is in breach of O72 Rules of Court 2012. The 3rd ground centers on the contention that the claim by the 2nd Plaintiff is restricted by the principle of ‘res judicata’. Enclosure 17 was dismissed by this Court on 10.7.2024. The filing of enclosure 41 then followed on 24.7.2024. [6] The affidavit in support filed by the Defendant to enclosure 41, the affidavit in reply filed by the Plaintiffs both either carry opposing averment of facts, disputing the other deponent’s contention and putting forward submissions of the applicable sections of the law contained in the Limitation Act. Some deposition of facts by the Plaintiffs were not denied by the Defendant. Such as the rented properties of the deceased but Defendant contend that as the payment of the said rental not consistence, serves as a justification on the part of the Defendant not to distribute the rental with the Plaintiffs. [7] Hence to this Court, having sight amongst others, of the plea of fraud cited by the Plaintiffs in this suit contending that the signatures of the Plaintiffs in the affidavits of no-objection to the transfer, as being forged (the Defendant did not dispute that an investigation is on-going S/N upkM90KR0aXqAtytm/G8w arising from the Plaintiffs’ police report, fortified by the fact that arising from the Plaintiffs’ complaint, the striking out from the list of valid practicing CO, by the Chief Registrar’s office of the Commissioner of Oath who attested the affidavit and the other contentious facts coming from both the Plaintiffs and Defendant, this Court formed the view that it is not for this Court to come to a finding of facts at this stage, more so with the dismissal of the striking out application filed by the Defendant in enclosure 17. [8] The defence by the Defendant of the Plaintiffs’ action being time barred is not one that can be determined easily without first, resorting to the disputed facts and forming a deduction by way of finding of facts or inferences on the facts in issue. This can only be done on a full hearing. Furthermore, at the time of filing of this suit and the respective enclosures, the list of assets has yet to be finalized and concluded, making it still a live issue. [9] Only after a full trial, then would this Court be able to determine if the exception encapsulated in section 29 of the Limitation Act to the general rule on the limitation period in section 23, or instead is a case where section 22 of the Act that centers on ‘constructive trust’ (as pleaded by the Plaintiffs) is triggered. Further evidence not just by way of examination in chief but also cross-examination would then allow all these issues to be determined by this Court (see: Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474 (SC).) [10] Similarly, the application of the ‘res judicata’ principle raised by the Defendant in enclosure 17 which viewed by this Court as not applicable in the determination of the whole suit. This, having perused other existing S/N upkM90KR0aXqAtytm/G8w suits filed by the respective parties below, the application of the said principle invite some degree of explanation from both the parties. [11] The said suits are as follows: i. Suit JA-24NCVC-832-09/2022 filed by the Plaintiffs pertaining to property held under HSD 96227 PT 9074 Mukim Rasah, Negeri Sembilan where the Defendant was ordered by the High Court to transfer and register the said property to the 2nd Plaintiff (see: AIS enclosure 42 reference to ‘Statement of Claim’ by Plaintiffs in para 52 exhibit ‘K-1’); ii. Suit OS No. 24NCvC-355-07/2014 involving shares belonging to the deceased Gangan a/l Suppiah which the sale proceeds of this shares were used to purchase a property (the shares was owned by one Gangan a/l Suppiah, a sibling of the Defendant and father to wife of 2nd Plaintiff who were the Plaintiffs in this said suit) where the Plaintiffs’ suit was dismissed in limine as per the Grounds of Judgment of the learned Judicial Commissioner (see: enclosure 19 AIR page 16 pdf) dismissed with liberty to file a proper action vide Writ of Summons (which this Court agree the option given renders an appeal redundant and in any event, the shares and property neither related nor relevant to this existing suit); iii. Suit JB-28NCC-11-03/2020 by Defendant as shareholder (deceased Ganapathi was shareholder of Lechemanan Plantations Sdn Bhd “LPSB” and deceased’s shares contended by the Plaintiffs “illegally transferred” to Defendant on death of deceased). A sale of LPSB’s property of Geran No. 48635 Lot No. 103 Mukim Ulu Sungai Sedili Besar, S/N upkM90KR0aXqAtytm/G8w Daerah Kota Tinggi for RM7,940,000.00 which the Plaintiffs are claiming in this present suit, for a certain portion of the sale of the said property. [12] As to the point of the suit is one of a probate action, there appears to be some dispute as to whether the Defendant had failed to voice their objection to an oral application by the Plaintiffs to withdraw relief (vii) seeking to allow the 2nd Plaintiff to be a joint administrator with the Defendant. This amendment, in the absence of any clear objection by the other party, logically would have been allowed by this Court. [13] Be that as it may, with all the dispute on fraud and forgery still unsettled and the list of assets have not been determined, it is unlikely that the Plaintiff would press on with this relief. In any event, this can be determined in the full trial. For all these reasons, enclosure 41 was dismissed and case to proceed with full trial. Signed (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) Judge High Court of Malaya Johor Bahru Dated: 31.5.2025 S/N upkM90KR0aXqAtytm/G8w COUNSEL For the Plaintiff: Manian K Marappan R K Menon Messrs R K Menon & Co. Advocates & Sokitors Room 5, 6 & 7, 6th Floor Foh Chong Building Jln. Ibrahim 80000 Johor Bahru For the Defendant N. G. Vinod (Intan Maisarah Mohd. Khir bersamanya) Messrs. Law Chambers of Vin Sa & Ian Advocates & Solicitors Unit 6.14 & 6.15, Level 6, Plaza DNP No. 59 Jln Dato’ Abdullah Tahir 80250 Johor Bahru S/N upkM90KR0aXqAtytm/G8w