Jaswant Kaur a/p Ujagar Singh v Kalwant Singh a/l Ujagar Singh (w-02(NCVC)(A)-996-05/2018)

KALWANT SINGH A/L UJAGAR SINGH (No. K/P: 600317-10-6487)

HARDEEP SINGH A/L UJAGAR SINGH … PERAYU-PERAYU (No. K/P: 590107-10-6503)

JASWANT KAUR A/P UJAGAR SINGH (No. K/P: 571018-10-6356)

HARBANS KAUR A/P UJAGAR SINGH (No. K/P:560926-10-5136)

JASWANT SINGH A/L UJAGAR SINGH (No. K/P: 691108-10-5863)

HARJEET SINGH A/L UJAGAR SINGH (No. K/P: 691108-10-5409/ No. Passport Australia: M2806123) … RESPONDEN-RESPONDEN ( Dalam perkara mengenai Saman Pemula bertarikh 18.7.2017 (Kandungan 1) Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Wilayah Persekutuan Saman Pemula No: WA-24NCVC-1110-07/2017 2 Dalam Perkara Geran Probet Ujagar Singh A/L Phuman Singh Saman Pemula No: 32NCVC-308-03/2015 Dan Dalam Perkara mengenai harta pusaka Ujagar Singh A/L Phuman Singh Dan Dalam Perkara Geran Probet Nihal Kaur @ Manjeet Kaur I/K Ujagar S. Saman Pemula No: S-32NCVC-1500-10/2014 Dan Dalam Perkara mengenai harta pusaka Nihal Kaur @ Manjeet Kaur I/K Ujagar S. Dan Dalam Perkara Akta Probet dan Pentadbiran 1959/Akta Pembahagian 1958

JASWANT KAUR A/P UJAGAR SINGH (No. K/P: 571018-10-6356)

HARBANS KAUR A/P UJAGAR SINGH (No. K/P:560926-10-5136) 3

JASWANT SINGH A/L UJAGAR SINGH (No. K/P: 691108-10-5863)

HARJEET SINGH A/L UJAGAR SINGH (No. K/P: 691108-10-5409/ No. Passport Australia: M2806123) … PLAINTIF-PLAINTIF

KALWANT SINGH A/L UJAGAR SINGH (No. K/P:600317-10-6487)

HARDEEP SINGH A/L UJAGAR SINGH (No. K/P: 590107-10-6503) … DEFENDAN-DEFENDAN CORAM ZALEHA BINTI YUSOF, JCA YAACOB BIN HAJI MD SAM, JCA LAU BEE LAN, JCA GROUNDS OF JUDGMENT [1] This is an appeal against the order of the High Court at Kuala Lumpur dated 24.4.2018 in respect of Originating Summons No: WA-24NCVC- 1110-07/2017 (the OS). The appellants were the defendants in the OS and the respondents were the plaintiffs. [2] The appellants and the respondents are all siblings and their father was one Ujagar Singh and their mother was one Nihal Kaur. Both their 4 parents had passed away; Nihal Kaur on 24.3.2013 and Ujagar Singh on 4.12.2014. [3] What is in dispute between them is their late mother’s ¼ share in a property (the said Property) held under H.S. (D) 48086, P.T. 47593, Mukim Kuala Lumpur with a postal address of No. 16, Jalan 23/70A, Desa Sri Hartamas, 50480 Kuala Lumpur. [4] To understand the issue our attention was drawn to the fact that this whole property held under H.S. (D) 48086 were divided into 4 shares, ¼ was held by Nihal Kaur, ¼ by Ujagar Singh, ¼ by the 1st appellant and ¼ by the 2nd appellant, respectively. The dispute herein, as alluded to earlier, only relates to the said Property originally held by Nihal Kaur. [5] Before her passing, Nihal Kaur had on 5.10.2001 executed her Last Will and Testament for her Malaysian estate, in which inter-alia she bequeathed the said Property to her husband Ujagar Singh. [6] Ujagar Singh had also executed his Last Will and Testament for his Malaysian estate on 31.3.2007. The issue before us was whether the said Property was willed in Ujagar Singh’s will. 5 The Reliefs in the OS [7] At the High Court, the respondents (plaintiffs) prayed for, inter alia, the following reliefs:

(i) Bahawa Defendan Pertama selaku Wasi bagi Wasiat Ujagar Singh A/L Phuman Singh bertarikh 31.3.2007 menurut Geran Probet Ujagar Singh A/L Phuman Singh (Saman Pemula No. 32NCVC-308-03/2015) bertarikh 30.3.2015 melaksanakan pembahagian bagi lebihan daripada harta pusaka Ujagar Singh A/L Phuman Singh (iaitu ¼ bahagian hartanah lot kedai yang dipegang di bawah No. Hakmilik 62660, Lot 47593, Mukim Kuala Lumpur, Wilayah Persekutuan) menurut Akta Probet dan Pentadbiran 1959 kepada kesemua waris-waris Ujagar Singh A/L Phuman Singh dalam tempoh 14 hari dari tarikh perintah;

(a) Ujagar Singh’s own ¼ total share and interest in the shop house No. 16, Jalan 23/70A, Desa Sri Hartamas, Kuala Lumpur; and 7

(b) his 2/3 share in another house No: 209, Jalan Maarof, Kuala Lumpur. Having made such a finding, the Learned High Court Judge made the following decision: “[26]…. Dalam keadaan yang biasa saya bersetuju dengan hujahan peguam terpelajar Plaintif berhubung cara pembahagian harta sedemikian. Namun, setelah meneliti wasiat Nihal secara terperinci, serta fakta dan peruntukan seksyen 18 Akta Wasiat 1959, pada hemat saya bukanlah niat Nihal untuk memberikan harta tersebut kapada suami beliau Ujagar Singh. Niat beliau adalah untuk memberikan harta tersebut kepada Harjeet Singh (Plaintif Keempat) seorang sahaja dan/atau anak Harjeet. Ini jelas dapat dilihat di perenggan 2 Wasiat beliau di mana Nihal Kaur berwasiat seperti berikut:- “2. I hereby declare that my Will is to be construed and shall take effect in accordance with the Laws of Malaysia.

I give to my husband, UJAGAR SINGH A/L PHUMAN SINGH [NRIC No. 231216-71-5151] absolutely my undivided share in the shop lot held under H.S.(D) 48086, P.T. 47593, Mukim Kuala Lumpur, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan K.L., bearing the postal address of No. 16, Jalan 23/70A, Desa Sri Hartamas, 50480 Kuala Lumpur [hereinafter 8 called the “shop lot”]. In the event my husband does not survive me. I give to my fourth son, HARJEET SINGH A/L UJAGAR SINGH [NRIC No. 691108-10-5409] a life interest in my undivided share in the shop lot. In the event he does not survive me or upon his death, I give my undivided share in the shop lot to his natural children in equal shares and my Trustee shall hold on trust their beneficial shares until the youngest child attains the age of 30. In the event my fourth son does not have any surviving natural children, then I give to:- ……” [9] Based on the above, he therefore allowed the application (the OS) in favour of the 4th respondent only. Brief Facts, Submissions and Our Decision [10] It is not disputed that upon the death of their parents, the 1st appellant was appointed as the executor for both Nihal Kaur’s and Ujagar Singh’s estates. What triggered this action was the discovery by the respondents as a result of a land title search at the Land Office on 19.1.2016, that the said Property was transferred to the appellants in equal share on 19.8.2015. 9 [11] Before this OS was filed, the Land Administrator, upon a complaint made by the 1st respondent that the transfer was not in accordance with Ujagar Singh’s will, had filed an application vide Kuala Lumpur High Court Originating Summons No: WA-24NCVC-1542-09/2016 to set aside the transfer on the ground that it was null and avoid. The defendant did not object to this application, hence the High Court granted the relief prayed for in the said Originating Summons. [12] For ease and clarity of reference, we reproduce the relevant clauses in Nihal Kaur’s will and Ujagar Singh’s will as follows:

12.1 Nihal Kaur’s Will: “….3. I give to my husband UJAGAR SINGH A/L PHUMAN SINGH [NRIC No: 231216-71-5151] absolutely my undivided share in the shop lot held under H.S. (D) 48086, P.T. 47593, Mukim Kuala Lumpur, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan K.L., bearing the postal address of No. 16, Jalan 23/70A, Desa Sri Hartamas, 50480 Kuala Lumpur [hereinafter called the “shop lot”]. In the event my husband does not survive me, I give to my fourth son, HARJEET SINGH A/L UJAGAR SINGH [NRIC No: 691108-10-5409] a life interest in my undivided share 10 in the shop lot. In the event he does not survive me or upon his death, I give my undivided share in the shop lot to this natural children in equal shares and my Trustee shall hold on trust their beneficial shares until the youngest child attains the age of 30. In the event my fourth son does not have any surviving natural children, then I give to …”

12.2 Ujagar Singh’s Will: “…3. I appoint my son Kalwant Singh [‘Kalwant”] (Malaysian IC No: 600317-10-6487) of 10 Lorong 8/3E, Sec 8, Petaling Jaya to be the executor of and trustee [“my trustee”] of this my Malaysian will and estate and devise and bequeath the whole of my Malaysian estate both real and personal unto my trustee upon the following trusts. i. To sell call in and convert my shares and moneys held in banks and financial institutions for payment thereout of my just debts and funeral and testamentary expenses and to hold the residue on trust for my wife Nihal Kaur @ Manjeet Kaur [“Nihal”] (Malaysian IC No. 380120-10-5016). ii. I give my one-fourth title share and interest in shophouse No. 16, Jalan 23/70A, Desa Sri Hartamas, Kuala Lumpur (“the said shophouse”) being the land described in certificate of title HS(D) 48086 PT 47593, Mukim and Daerah Kuala Lumpur to my sons Kalwant and Hardeep Singh [“Hardeep”] (Malaysian IC No: 590107- 10-6503) in equal shares as tenants in common subject to the life 11 interest of my wife Nihal during her lifetime to the receipt and retention of all rentals receivable for the shophouse for her own benefit. The other part-owners of the shophouse Hardeep and Kalwant have agreed to honour this agreement. iii. I give my two-thirds share title and interest in house No. 209 Jalan Maarof, Kuala Lumpur (“the said house”) being the land held under certificate of title Geran 3114 Lot 28597 Mukim and Daerah Kuala Lumpur unto my son Kalwant and my grandson Talvinder Singh Choan in equal shares as tenants in common subject to the prior unconditional life interest of my wife Nihal to reside in the said house during her lifetime if she so decides.

I declare that I have intentionally not made provision under this my will for my daughters and other sons for reason that I have already made adequate alternative financial provision for them.” [13] Before us, it was our task to put a construction to the will, especially Ujagar Singh’s will. [14] Learned Counsel for the appellants submitted that as Nihal Kaur predeceased Ujagar Singh, at the point Ujagar Singh passed away, Ujagar Singh already had beneficial interest of the said Property registered in Nihal Kaur’s name. As such, this portion of the said 12 Property formed part of Ujagar Singh’s Malaysian estate. Thus, “the whole of my Malaysian estate” in clause 3 of Ujagar Singh’s will, will include the said Property. Learned Counsel cited the provisions of sections 18, 20, 21 and 23 of the Wills Act 1959 (Act 346) to support his contention that despite the fact that Ujagar Singh’s will did not specifically devise the said Property, by referring to clause 3 of the will, the entire Malaysian estate of Ujagar Singh including the said Property, had been devised and bequeathed to the 1st appellant. There is therefore no need for residuary clause in Ujagar Singh’s will. [15] Learned Counsel for the appellants further submitted that the High Court had essentially rewritten Ujagar Singh’s will by ordering the said Property to be transferred to the 4th respondent when no such divestment was made in the will. The High Court erred by relying on Nihal Kaur’s will as one cannot construe the terms of a will by using extrinsic document especially the terms of another person’s will. Also, he further submitted, as clause 4 of Ujagar Singh’s will had expressly excluded all his daughters and other sons (including the 4th respondent), the very decision of the High Court to give the 4th respondent an interest in the said Property would be directly inconsistent with Ujagar Singh’s express intention depicted in his will. Learned Counsel for the 13 appellants had inter-alia cited the following cases to support his argument: Freme v Clement [1881] 18 CH D499; Perrin & Others v Morgan & Others [1943] AC 399; Scale v Rawlins & Others [1892] AC 342; Re Whitrick (deceased). Sutcliffe v Sutaliffe & Others [1957] 2 All ER 467 CA; Tan Sri Dr. Mahadevan (eksekutor dan pemegang amanah wasiat Ratnavale s/o Mahalingam bertarikh 10.2.1971) v Dr. Jeyalakshmi a/p Ratnavale & Ors [2016] MLJU 1773 and Higgins & Others v Dawson & Others [1902] AC 1. [16] Learned Counsel for the respondents submitted that from a reading of Ujagar Singh’s 2007 will, it is clear that at the material time, it was in his contemplation that the “whole of my Malaysian estate” meant only the 2 movable and immovable assets (or his shares in the assets) as he had very clearly listed down the assets and made specific gifts and trusts in respect of the 3 items mentioned therein. There was also no residuary clause in the will which meant that Ujagar Singh had not contemplated any other assets other than the 3 items listed in clause 3 of his will. Those 3 items were his shares and monies in banks and financial institution, his own ¼ share in the shophouse No. 16, Jalan 23/70A, Desa Sri Hartamas, Kuala Lumpur and his share in a house No: 209, Jalan Maarof, Kuala Lumpur. He could not have personally 14 contemplated his inheritance of the said Property as he had not even inherited the said Property at the particular time. To support this submission, the following cases had inter alia been cited: David Wee Eng Siew v Lim Lean Seng & Anor [2014] 1 CLJ 299; Tan Sri Dr. Mahadevan, supra and Hsu Yik Chai v Hsu Yaw Tang & Anor [1982] 2 MLJ 227. [17] Learned Counsel for the respondents further submitted that the Learned High Court Judge was right in ordering that the said Property is to be inherited by the 4th respondent as that was the intention of their parents as shown in clause 3 of Nihal Kaur’s will. [18] We had perused the Records of Appeal and considered the submissions of the parties. We found the validity of the wills were not in dispute. What was in dispute was the entitlement to the said Property; simply said, whether the said Property was willed in Ujagar Singh’s will. To answer this, we need to scrutinise the will. But before doing this, it is pertinent for us to first answer one crucial question whether this Court can interpret Ujagar Singh’s will by using Nihal Kaur’s will. This Court in Tan Sri Dr. Mahadevan, supra, had stated that to determine the intention of one’s will, the words used must be given their plain and obvious meaning as in the normal trite principles of construction of 15 documents. We found there was no mention of Nihal Kaur’s intention in Ujagar Singh’s will and there was no mention that he wished to give effect to Nihal Kaur’s intention to give the said Property to the 4th respondent. The words were just not there in Ujagar Singh’s will and it is not for us to speculate. See: The opinion of The Lord Chancellor Halsbury in Scale v Rawlins, supra. The same opinion was echoed by Lord Watson in the same case when His Lordship said as follows: “We are not at liberty to speculate what the testator may have intended to do, or may have intended to do, or may have thought that he had actually done. We cannot give effect to any intention which is not expressed or plainly implied in the language of his will ….” [19] Hence, on this issue, we fully agreed with Learned Counsel for the appellants that the Learned High Court Judge had erred when he construed Ujagar Singh’s will by using Nihal Kaur’s will. There was absolutely nothing in Ujagar Singh’s will that divested the said property to the 4th respondent. By giving that order, we are of the view that the Learned High Court Judge had re-written the terms of Ujagar Singh’s will which in our opinion is wrong. 16 [20] We took note that Ujagar Singh’s will was made in 2007. At that time Nihal Kaur was still alive. Hence, the said Property had not yet been inherited by Ujagar Singh. So he could not be said to have contemplated the said Property to be part of his assets at the time of the execution of the will. [21] However, we are also mindful of the provisions of section 18 of Act 346 which states as follows : “18 Wills shall be construed to speak from the death of the testator. Every will shall be construed, with reference to the property comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” [22] From the reading of section 18, the will of Ujagar Singh was to take effect as if it had been executed immediately before his death i.e. on 4.12.2014, even though it was made in 2007. Hence, was it wrong for Learned Counsel for the appellants to submit that despite the fact that Ujagar Singh’s will did not specifically devise the said Property, by referring to clause 3 of the will, the entire Malaysian estate of Ujagar Singh including the said Property, had been devised and bequeathed to 17 the first appellant? With due respect, we said, no. We found support in the Federal Court case of Hsu Yik Chai, supra, wherein the Honourable Lee Hun Hoe CJ (Borneo) (as he then was) had said the following: “The purpose of construction is to give effect to the intention of the testator expressed in the words of the will. On that point we would only refer to what Lord Romer said in Perrin v Morgan at page 420 and also quoted by the Learned Judge as follows:- “My Lords, I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed the court is entitled, to use a familiar expression, to sit in the testator’s armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said-.. There can be little doubt that when the testator made the will he had in his mind the welfare of his children and widow and that he had little assets and that he had to continue to rely on his brothers to keep his family together….” (emphasis added). 18 [23] Premised on the above, we agreed with the appellants that the object of interpreting a will is to give effect to the intention of a testator that is expressed in the words of the will and such words are to be read in the light of circumstances in which the will is made. [24] As alluded to earlier, when Ujagar Singh made the will, the said Property had not formed part of his assets yet even though Nihal Kaur’s will was already in existence. Upon scrutinising clause 3 of his will, we were of the view that the clause does not contemplate any other assets other than those 3 items listed therein. It was very clear to us that the said Property was not willed in Ujagar Singh’s will. Of course we were not looking at Clause 3 alone. We had to read the will as a whole to see what it meant. See: in re Macandrew’s Will Trusts. Stephene and Another v. Barclays Bank Ltd and Others [1964] Ch 704 and Higgins case, supra. Having read Ujagar Singh’s will as a whole, including its clause 4, we were of the view, it was Ujagar Singh’s intention to limit his Malaysian estate only to those listed in clause 3. The said Property was obviously not part of his Malaysian estate in the will. 19 [25] Ujagar Singh’s will also did not contain residuary clause. The Federal Court in David Wee Eng Siew v Lim Lean Seng & Anor [2014] 1 CLJ 299 had at paragraphs 19 & 21 held as follows: “[19] To overcome any unfinished business of residual property a legal method may be devised i.e, by the usage of provisions in the will called the residuary or residue clause whereupon the remaining property will be disposed of. How the residuary clause is to be worded and given the necessary meaning or intention will be left to the ingenuity of the testator or his solicitor. Such a residuary clause therefore addresses any remaining property, after all the debts, taxes, expenses, and specific bequests and devises have been fully satisfied. This residuary clause ensures that the remainder of the testator’s property is distributed to the person or persons he intends to bequest. [20] ……….. [21] Any failure to draft such residuary clause or a comprehensive residuary clause will cause the remainder of his property to pass by intestate succession, a result that may not be the desire of the testator. In other words, the residuary estate will pass to all the heirs at law as intestate property as stated earlier i.e in accordance with the Distribution Act 1958 (see Re Barne’s Will Trusts [1972] 2 All ER 639.” 20 [26] Following the said decision of the Federal Court we were of the view that the said Property was the residuary estate and consequentially it will pass to all the heirs at law of Ujagar Singh as intestate property as stated in accordance with the Distribution Act 1958. Conclusion [27] In the upshot, we therefore allowed the appeal in part. We set aside the whole order of the High Court dated 24 April 2018 and substituted it with the following order: that the said Property to be distributed amongst the heirs at law of Ujagar Singh as intestate property in accordance with the Distribution Act 1958. [28] We ordered parties to bear their own costs. Signed by Dated: 26 September 2019 (ZALEHA BINTI YUSOF) Judge Court of Appeal Malaysia Peguambela bagi Perayu-Perayu Tetuan Vin Law Co. Suite 6.05, Level 6, Wisma E & C No. 2, Lorong Dungun Kiri Damansara Heights 50490 Kuala Lumpur 21 Peguamcara bagi Responden-Responden Messrs Thomas Philip 5-1, Jalan 22A/70A Wisma CKL Desa Sri Hartamas 50480 Kuala Lumpur