Balai@Thanavalli a/p A Ayacanno v Santhe a/p Saboo Basnayake (BA-22NCvC-153-04/2025)

BALAI @ THANAVALLI A/P A. AYACANNO (No K/P: 650501-10-5156)

SAVATHER A/P AYACANNO (No K/P: 621229-10-6842) … PLAINTIF-PLAINTIF

SANTHE A/P SABOO BASNAYAKE (No K/P: 631220-10-7426) … DEFENDAN PERTAMA

PENGARAH TANAH DAN GALIAN SELANGOR DAERAH PETALING … DEFENDAN KEDUA

PENDAFTAR HAKMILIK NEGERI SELANGOR … DEFENDAN KETIGA 17/04/2026 09:46:54 BA-22NCvC-153-04/2025 Kand. 34 GROUNDS OF JUDGMENT Introduction [1] Enclosure 21 is the Amended Notice of Application dated 23.10.2025 by the 1st Defendant pursuant to Order 18 Rule 19 of the Rules of Court 2012 to strike out the Amended Writ (Enclosure 12) and Amended Statement of Claim (Enclosure 13). [2] After perusal of the cause papers and upon hearing submissions by the counsels, I have allowed Enclosure 21 based on the reasonings which I shall explain hereafter. Background facts [3] The 1st Plaintiff and the 2nd Plaintiff are sisters. The Plaintiffs’ father is Ayacanno a/l Appoo. The Plaintiffs’ elder brother is Raja a/l Ayacanno (“the Deceased”). Back in the 1970s, the Plaintiffs’ family were staying in a long house in an area known as Sungai Way Tin Mining. [4] In the 1980’s, Sungei Way Enterprise Sdn Bhd (“the Developer”) wanted to develop the area. As part of the relocation plan, the Developer agreed to allocate to the Plaintiffs’ family one (1) unit of low-cost terrace house. [5] The family discussed this matter and they agreed for the house to be purchased under the Deceased’s name. Eventually, the house held under PN 12715, Lot 13112, Bandar Sunway, Daerah Petaling, Negeri Selangor and bearing correspondence address as No 6, Jalan PJS 10/11C, Taman Dato’ Hormat, Petaling Jaya, 46000 Selangor (“the Property”) was registered under the Deceased’s name. The family also agreed that the Deceased will hold the Property on trust for all of the family members. [6] A loan (“the Loan”) was taken from MBSB Bank Berhad (“the Bank”) in order to finance the purchase of the Property. The 1st Plaintiff helped the Deceased to pay the monthly instalment for the Loan (“the Loan Instalment”). [7] The family moved into the Property in 1981. In 1984, the Deceased married his wife (“the Deceased’s Wife”) and had six (6) children (“the Deceased’s Children)”. In 1990, the Plaintiffs’ father died. By that time, the Plaintiffs had also got married and had moved out of the Property. [8] In 1996, the Deceased fell ill. It was also during this time that the relationship between the Deceased and the Deceased’s Wife deteriorated. The Deceased’s Wife and the Deceased’s Children eventually left the Deceased and moved elsewhere. [9] Since the Deceased was very sick and there was no one else was taking care of him, the 1st Plaintiff offered to take care of him. The Deceased then moved in to stay with the 1st Plaintiff. [10] After moving out of the Property to stay with the 1st Plaintiff, the Deceased rented the Property to the 1st Defendant. It was agreed that the rental was to be paid by the 1st Defendant directly to the Deceased’s Wife and the Deceased’s Children. The Deceased eventually died in 1997. [11] Many years later, in 2022, the 1st Plaintiff had the opportunity to meet up with the Deceased’s family. It was then that the 1st Plaintiff got to know that since the Deceased died in 1997, the Deceased’s Wife and the Deceased’s Children did not receive any rent from the 1st Defendant. The 1st Plaintiff was also informed that the Deceased has already sold the Property to the 1st Defendant. [12] The Plaintiffs proceeded to conduct a land search on the Property and found out that the Property has been transferred from the Deceased to the 1st Defendant pursuant to a sale and purchase agreement dated 10.4.1996 (“the Sale & Purchase Agreement”), wherein the Deceased sold the Property to the 1st Defendant at the purchase price of RM 45,000.00 (“the Purchase Price”). [13] The Plaintiffs state that the Deceased could not have entered into the Sale & Purchase Agreement with the 1st Defendant. This is because the Deceased was suffering from acute diabetes at that material time. The Deceased was also staying with the 1st Plaintiff at all times and had difficulty moving about. Therefore, it would have been impossible for the Deceased to have signed the Sale & Purchase Agreement without the 1st Plaintiff’s knowledge. [14] The Plaintiffs says that the Sale & Purchase Agreement has been transacted by way of fraud. The Plaintiffs also state that the distribution order (“the Distribution Order”), which was subsequently obtained by the 1st Defendant in respect of the Property, was similarly been obtained by way of fraud. [15] Accordingly, the Plaintiffs seek a declaration that the Sale & Purchase Agreement, the Distribution Order and the transfer in respect of the Property are all void. Summary of the 1st Defendant’s case (in supporting Enclosure 21) [16] The 1st Defendant explains that she had agreed to purchase the Property from the Deceased and had entered into the Sale & Purchase Agreement dated 10.4.1996. The 1st Defendant had also paid the deposit sum to the Deceased. [17] However, the 1st Defendant could not secure a loan to finance the purchase of the Property. The Deceased and the 1st Defendant then agreed that the 1st Defendant would continue to pay the Loan Instalment to the Bank. It was also agreed that the 1st Defendant’s monthly settlement of the Loan Instalment would amount as part of the settlement of the Purchase Price. It was further agreed that the 1st Defendant would continue to reside in the Property. [18] However, before the Sale & Purchase Agreement can be completed, the Deceased died on 24.3.1997. The 1st Defendant applied for the distribution of the estate on 15.12.1998 and obtained the Distribution Order. [19] Thereafter, the 1st Defendant continued to pay the Loan Instalment to the Bank until its full payment on 10.7.2007. Upon full payment of the Loan, Messrs Umar Baki & Co (“the Solicitors”) prepared the Deed of Receipt and Reassignment. The Property was then registered into the 1st Defendant’s name. For the past 28 years (since 1997), the 1st Defendant had conducted extensive renovation to the Property. [20] The 1st Defendant submits that the Plaintiffs have no locus standi to commence this action against her. The Plaintiffs are only siblings to the Deceased and they have failed to show that they have successfully obtained the grant of probate or the letters of administration. [21] The 1st Defendant points out that the Deceased’s Wife and the Deceased’s Children are still alive. Therefore, the Plaintiffs cannot be treated as lawful beneficiaries under the Distribution Act 1958. The lawful beneficiaries should be the Deceased’s Wife and the Deceased’s Children. [22] The 1st Defendant also argues that there was no proof to show that the Plaintiffs had paid the Loan Instalment to the Bank. The Plaintiffs have also failed to produce any proof to show that they actually paid the quit rent and assessment for the Property throughout all these years. [23] The 1st Defendant also submits that the claim is statute barred as the Sale & Purchase Agreement took place 28 years ago. The allegation of fraud is also not supported by particulars. [24] Lastly, the 1st Defendant points out that the Plaintiffs are claiming general, aggravated and exemplary damages for themselves personally. The 1st Defendant argues that the Plaintiffs should not be allowed to unjustly enrich themselves by commencing this suit. Summary of the Plaintiffs’ case (in opposing Enclosure 21) [25] The Plaintiffs state that any persons having a beneficial interest in an asset would have the locus standi to commence a legal action for the purpose of protecting and preserving the asset of the estate. [26] The Plaintiffs argue that they are only praying for a declaratory judgment at this juncture. They are not seeking for a share in the Property but merely wants to defend their beneficial right. Therefore, the question of taking out the letters for administration would only arise when it becomes necessary for those beneficiaries to claim his or her share in the estate. [27] As such, the Plaintiffs submit that, as qua beneficiaries of the Deceased’s estate, they have all the rights to bring this action for the purposes of protecting and preserving the Property. [28] Lastly, the Plaintiffs also argue that the writ cannot be dismissed summarily as the cause of action of this matter involves fraud and illegality. Findings of the Court [29] The background events of this dispute originated some 30 years ago. The Plaintiffs’ family had moved into the Property in 1981. The Deceased got married in 1984. The father, sadly, died in 1990, by which time the Plaintiffs had also got married and had moved out of the Property. The actual events leading to the dispute began when the Deceased fell ill, during which the Deceased’s Wife and the Deceased’s Children had also left the Property due to matrimonial disputes. The Deceased eventually moved out of the Property as well. The Deceased passed away in 1997. [30] After the Deceased passed away in 1997, it would appear that all issues and questions relating to the Property were aptly forgotten by the Plaintiffs. The Plaintiffs never inquired as to who were occupying the Property and who was actually servicing the Loan Instalment to the Bank. The matter was only resurrected some 26 long years later, brought about by the reconciliatory meeting between the 1st Plaintiff and the Deceased’s family. This chanced encounter would open the Pandora’s box. The Plaintiffs had found out that the 1st Defendant had become the registered owner of the Property, but by devious means, so says the Plaintiffs. [31] The fact that the 1st Defendant is occupying in the Property should not come as a surprise to the Plaintiffs, for they had already so pleaded that the Deceased had initially rented the Property to the 1st Defendant. But the Plaintiffs had assumed (wrongly), of the 1st Defendant’s continued status as a tenant, and that the 1st Defendant had been continuing to pay rent to the Deceased’s Wife and the Deceased’s Children. [32] The Plaintiffs’ counsel had earnestly invited me to appreciate the factual events and settings, which would provide the Court the chance to investigate the dispute and unravel the wrong that had permeated through the decades. However, I would not have such an opportune, for before me is Enclosure 21, brought on by the 1st Defendant, questioning the legal standing and position of the Plaintiffs as proper and rightful litigants. [33] Clearly, the relationship between the Plaintiffs and the Deceased are that of siblings. However, the Deceased was married and was survived by the Deceased’s Wife and the Deceased’s Children. As such, the Plaintiffs, being the siblings, would not be deemed to be beneficiaries of the Deceased’s estate to Section 6 and Section 7 of the Distribution Act 1958. [34] I agree that the Plaintiffs do not have the locus standi to commence this action for relief when they failed to produce any letters of administration or grant of probate. The Plaintiffs have also failed to explain why the Deceased’s Wife and the Deceased’s Children have not raised any dispute with the 1st Defendant. The Deceased’s Wife and the Deceased’s Children have also not commenced any suit nor have they also produced the letters of administration or grant of probate. [35] It has been decided by the Federal Court in Deraman & Ors v Mek Yam [1976] 1 LNS 20, whereby Ali FJ has made the following observation: - “Furthermore, the appellants have no legal title. They never had. They are only beneficiaries of their father’s estate. The only person who could have legal title after their father’s death would be the legal representatives of the state. There was no evidence of any legal representatives having been appointed. On that ground also the appellants have no right to bring an action under Section 10(1)

of the Ordinance. The action ought to have been dismissed as the appellants have no right or cause of action.” [36] In Law Hock Key & Anor v Yap Meng Kon & Ors [2008] 3 CLJ 470, the Court of Appeal similarly decided that as the plaintiffs are claiming their deceased mother’s right in the estate of her deceased father, the plaintiffs have to obtain the letters of administration in respect of the estate of their mother in order to entitle them to bring this action against the defendants. Although the plaintiffs are the beneficiaries of their mother’s estate but they are not the legal representatives of the estate as they had not applied for the letters of administration in respect of their mother’s estate. As such, the plaintiffs have no locus standi to bring the action against the defendants. [37] Similarly, in Chew Huat Jin & Ors v Andrew Lim Fatt Keong & Ors [2013] 8 CLJ 533, the High Court held that a beneficiary to a deceased’s estate had no interest and no legal title to commence an action independently of the legal representative duly appointed to administer the estate. [38] The Plaintiffs however argued that in special circumstances, a beneficiary could seek declaratory relief for the limited purpose of protection and preserving the assets of the estate. The Plaintiffs had argued that they are qua beneficiaries for the Deceased’s estate and has all the rights to bring this action against the Defendants solely for the purpose of protecting and preserving the Property. The Plaintiffs also argued that they are not seeking for a share of the Property but merely wish to defend their beneficial rights. In this respect, the Plaintiffs had relied on the following legal authorities: - Al Rashidy bin Kassim v Rosman bin Roslan [2007] 4 MLJ 297; Ooi Jim & Anor v Ai Eit & Ors [1997] 2 MLJ 105; Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors [2024] 8 MLJ 550. [39] In Al Rashidy bin Kassim v Rosman bin Roslan [2007] 4 MLJ 297, the Federal Court held that, in deciding whether the plaintiffs had locus standi, there existed special circumstances for the plaintiffs qua beneficiaries to commence legal action against the respondent for the purpose of protecting and preserving the assets of the estate. [40] In Ooi Jim & Anor v Ai Eit & Ors [1997] 2 MLJ 105, the Federal Court decided that it was not necessary for the plaintiff to take out letters of administration in order to bring the action which was primarily an action for a declaration as to the status of her husband. The question of taking out letters of administration would only arise when it became necessary for the plaintiff to claim her share in the estate. [41] Similarly, in Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors [2024] 8 MLJ 550, the High Court held that the plaintiff need not take out letters of administration as the plaintiff was not claiming a share in the deceased’s estate as the action against the defendants was merely to protect and preserve the estate of the deceased. As such, there existed special circumstances for the plaintiff as a beneficiary of the deceased’s estate to bring this action against the defendants qua beneficiary for the purpose of protecting and preserving the assets of the estate. [42] However, the 1st Defendant had sought to distinguish Al Rashidy bin Kassim v Rosman bin Roslan by pointing to the fact that the plaintiffs in that case were “… the grandchildren of Hj. Abu Bakar, since deceased, and the lawful beneficiaries of his estate.” As such, the plaintiffs in Al Rashidy, being the lawful beneficiaries, were recognized as plaintiffs qua beneficiaries because they had an equity in the estate of the deceased. However, in the present case, the Plaintiffs are siblings of the Deceased. [43] I agree to the 1st Defendant’s argument. Section 6(1) (e) of the Distribution Act 1958 states that if an intestate dies leaving a spouse and issue but no parent or parents, the surviving spouse shall be entitled to one-third of the estate and the issue the remaining two-thirds. Therefore, in this case the Deceased’s Wife and the Deceased’s Children would be deemed as the surviving spouse and issue. The Plaintiffs cannot be deemed as beneficiaries of the estate of the Deceased. The Plaintiffs do not have the beneficial rights under Section 6 of the Distribution Act 1958. [44] Similarly, the plaintiff in Ooi Jim & Anor v Ai Eit & Ors sought a declaration that her deceased husband was the lawful adopted son of one Tan Ing, who had died intestate. And the plaintiff in Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors is the natural-born son of the deceased, and was allowed to file the action against the defendants to protect and preserve the estate of the deceased. [45] In this particular dispute, I find that the Plaintiffs have failed to establish that they have the requisite locus standi or that they are beneficiaries to the Deceased’s estate. The Plaintiffs have failed to obtain letters of administration. They have also failed to show that they are beneficiaries under the Distribution Act 1958 as the Deceased was survived by his wife and children. As such, the Plaintiffs cannot be recognized as qua beneficiaries. [46] Additionally, the 1st Defendant had pointed out that the Plaintiffs had sought for general, aggravated and exemplary damages for themselves personally. The reliefs sought for were: - “(i) Secara alternatifnya, suatu gantirugi mengikut nilai pasaran hartanah tersebut kini dipegang di bawah HS(D) 165893 / PN 12715, Lot 13112, Bandar Sunway, Daerah Petaling, Selangor yang beralamat di No 6, Jalan PJS 10/11C, Taman Dato’ Hormat, Petaling Jaya, 46000 Selangor Darul Ehsan pada tarikh penghakiman sebagai ganti pemindahan semula hartanah tersebut kepada Plaintif-Plaintif;

Suatu gantirugi khas untuk kehilangan kegunaan hartanah tersebut sebanyak RM 1,000.00 sebulan dibayar oleh Defendan Pertama dari tarikh 2008 sehingga Penghakiman Mahkamah yang mulia ini;

Gantirugi Am dibayar oleh Defendan Pertama, Kedua dan Ketiga secara bersama dan/atau berasingan untuk ditaksirkan oleh Mahkamah yang Mulia ini;

Gantirugi Teruk dan Gantirugi Teladan dibayar oleh Defendan Pertama dan Defendan Kedua dan Defendan Ketiga secara bersama dan/atau berasingan ditaksirkan oleh Mahkamah yang mulia ini;” [47] I therefore agree that the Plaintiffs’ claim for damages would run afoul to the principle enunciated in Al Rashidy bin Kassim v Rosman bin Roslan, which had decided that: - “(22) Now, in view of our finding that the appellants do have the locus standi to commence legal proceeding to protect and preserve the asset of the estate we hold that the appellants are entitled to the order as prayed for in prayer (c) of the claim. But as beneficiaries, we hold that the appellants are not entitled to claim for general and special damages on behalf of the estate; such a claim can only be made by the legal representative of the estate.” [48] The Plaintiffs cannot on the one hand argue that they are not seeking for a share in the Property but merely wants to defend their beneficial right; but on the other hand, sought to claim for general, aggravated and exemplary damages for themselves personally. Conclusion [49] Accordingly, for the reasons above, Enclosure 21 is allowed with costs fixed at RM 3,000.00. Dated the 17th April 2026. (SEOW HOCK PENG) JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsel: For the Plaintiffs : K. Arivom Namasivaya a/l K. Kannan (Messrs Arivom & Co) For the 1st Defendant : Vijayasundra Thevar a/l Kuppumuthu (Messrs Vijay Thev & Co.)

Deraman & Ors v Mek Yam [1976] 1 LNS 20

Law Hock Key & Anor v Yap Meng Kon & Ors [2008] 3 CLJ 470

Chew Huat Jin & Ors v Andrew Lim Fatt Keong & Ors [2013] 8

Al Rashidy bin Kassim v Rosman bin Roslan [2007] 4 MLJ 297

Ooi Jim & Anor v Ai Eit & Ors [1997] 2 MLJ 105

Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors [2024] 8 MLJ 550