GM 1743 Lot 3555 391,850.00 2. GM 2888 Lot 4333 349,392.00 3. GM 2137 Lot 6907 48,800.00 4. GM 1057 Lot 10893 298,040.90 5. GM 3060 Lot 5051 240,097.00 6. TDK (GRN 62181) Lot 6165 682,502.10 TOTAL 2,010,682.00 [14] The Defendant did not participate in the acquisition proceedings as can be seen in Exhibit P-3 of Encl. 2 (pages 70 – 76). Hence, the Pentadbir Tanah Daerah Manjung in 2016 obtained leave of the Ipoh High Court to deposit the compensation money of RM2,010,682.00 into court. Then, on Messrs. Sault Scott & Co intervened in 2021 in the land acquisition proceedings and obtained the Court’s leave for the compensation money amounting to RM2,010,682.00 to be paid to them from the court’s account. It was this law firm which the Defendant had sought to include as a third party in this suit. [15] It was an undisputed fact that 4 pieces of land (i.e. numbers 1, 3 4 and 5 in the table above) had been which the amount was RMRM1,030,827.06 had been agreed to be shared with the Plaintiffs in the suit OS 75 (in the Consent Order dated 24.1.2024). But the 2 remaining lands have not been “settled” by the parties; which was why the present suit was filed. The Plaintiffs’ solicitor had obtained confirmation from Bahagian Kewangan, Pejabat Ketua Pendaftar Mahkamah Persekutuan that the compensation money for the 2 pieces of land amounting to RM1,031,894.10 had been deposited into Messrs. Sault & Scott’s client’s account (refer to Exhibit P-6 of Encl. 2 at page 118). [16] Thereafter, the Plaintiffs’ solicitor wrote to Messrs Sault & Scott via letters dated 25.3.2024 and 22.4.2024 requesting for information on the land acquisition and status of compensation received. The response received from the latter on 2.5.2024 was that “… please be informed that the funds have been dealt with in accordance with the instructions from our client” and did not give details of the compensation amount despite having received the compensation money (refund) from the court (refer to Exhibit P-8 of Encl. 2 at pages 134 – 136 and Exhibit P-9 of Encl. 2 at pages 141 – 144). Despite the demand letter from the Plaintiffs’ solicitor dated 15.5.2024, they contended that Messrs. Sault & Scott have failed and / or refused to reply to the Plaintiffs’ solicitor’s letter and/or pay the remaining monies to them. [17] The Plaintiffs, being 2 of the 4 beneficiaries of the estate whom are entitled to ½ share of the compensation money awarded for the 2 pieces of land amounting to RM542,713.68, sought the Court’s order that the Defendant pay them the said amount with interests and costs. They averred that they, as beneficiaries of the estate of the Deceased, are also entitled to settle the matters such as the settlement done by the Defendant with another beneficiary, i.e. his brother by the name of Muthu in Civil Suit No. 22NCVC-06-03/2016 filed in the High Court at Taiping. Muthu as plaintiff in that suit had also averred that the Defendant had failed in his duties as an administrator of the Estate to wind up and administer all the properties of the Deceased (refer to page 77 of Exhibit K-1 of Encl. 5). Among others, Muthu sought for ¼ of the total share of the Estate and damages for the inordinate delay in administering the Estate. Now, ironically, Messrs. Sault & Scott acted for Muthu in that action against the Defendant. [18] On 16.5.2016, Muthu and the Defendant entered into a Consent Judgment where, amongst others, the former was declared to be entitled to 1/5 of the total assets of the Deceased’s Estate in Malaysia, being a valid beneficiary (refer to Exhibit K-1 of Encl. 5 at pages 94 – 99). The Plaintiffs alleged that Muthu and the Defendant had entered into the Consent Judgment without the knowledge of the other beneficiaries at that time. The Plaintiffs questioned the “double standard” in the Defendant’s dealings with Muthu wherein the selectiy prejudve treatment had left the other beneficiaries in dire need of financial assistance, and the Defendant’s refusal to pay their entitlement of the acquisition money is highly prejudicial to them. Hence, there is more reason for interim distribution of the substantial Estate monies to be carried out by the Defendant. EVALUATION AND FINDINGS OF THE COURT [19] The application in Encl. 1 was made under O.80 r.2(1) of the ROC. The provision states: Determination of questions without administration (O. 80, r. 2) [20] The Plaintiffs submits that the Court is empowered to do so under O.80 r.3 (e), which reads “… (e) an order directing any act to be done in the administration of the estate of a deceased person or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed, as the case may be, under the direction of the Court.”. The need arose to apply to the Court for the prayers in Encl. 1 because of the Defendant’s refusal to distribute the monies in respect of the 2 lands abovementioned. In this regard, the Plaintiffs referred the Court to the case of Kiranjit Kaur v Jagjit Singh v Thambalasingam @ Thanabalasingam [2022] 6 MLRH 549 in support of their contention that the Court is empowered to order an interim distribution of the Estate of the deceased pending the final disposal of the matter. [21] The Defendant submits that the Plaintiffs’ application in Enclosure 1, which is misconceived, premised on 2 grounds that: Deceased can distribute the compensation sum to the Plaintiffs despite the incomplete administration of the Estate of the said Deceased; and Muthu for the distribution of the proceeds of the compensation sum, the Plaintiffs are equally entitled to enter into a Consent Order with the Defendant as well. [22] The Defendant contends that by virtue of the principle in the case of Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 3 MLJ 188, the beneficiaries have no interest whatsoever in the Deceased’s estate until the Defendant winds up the estate and distribution made according to the law of distribution of an intestate estate. There, His Lordship Mohamed Dzaiddin FCJ explained that: “Legal proposition It must be observed at the outset that there is no clear authority for the proposition that a beneficiary under an intestacy has no interest in the property of a deceased person until the estate has been fully administered. In our view, however, there is much persuasive force in what is stated in the textbook on The Law and Practice of Intestate Succession by CH Sherrin and Bonehill. At p 93, the learned authors opined as follows: Questions accordingly arise as to the nature of the beneficiary's interest under an intestacy during the course of administration. Has he, for instance, an interest which is capable of being bequeathed by his will or of being disclaimed? There is considerable authority on this point and the answer to the questions posed are to be found in the House of Lords decisions in Lord Sudeley v The Attorney General [1987] AC 11 and Dr Barnado's Homes National Incorporated Association v Commissioners For Special Purposes of the Income Tax Acts [1921] AC 1 and in the Privy Council decision in Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694. Although these cases were all concerned with testate succession, the principles stated are usually regarded as being applicable equally to the nature of a beneficiary's right on intestacy. The basic principle appears from the Barnado's case, where it was clearly stated: “When the personal estate of a testator has been fully administered by his executors and the net residue ascertained, the residuary legatee is entitled to have the residue as so ascertained, with any accrued income, transferred and paid to him: but until that time, he has no property in any specific investment forming part of the estate or in the income from any such investment, and both corpus and income are the property of the executors and are applicable by them as a mixed fund for the purposes of administration.' (Emphasis added.)” We would also refer to a passage in Executors, Administrators and Probate (17th 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, is to have the estate properly administered and applied for his benefit 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. (Emphasis added.) 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 administration of the latter's estate is complete and distribution made according to the law of distribution of the intestate estate.” [Emphasis added] [23] The Defendant also relied on the case of Chong Fook Sin v. Amanah Raya Bhd & Ors [2010] 7 CLJ 917 which endorsed the principle in Chor Phaik Har (supra). The Plaintiffs submits that the Defendant is directly telling the Plaintiff to wait indefinitely for the Defendant to wind up the estate. This Court is mindful of what the Federal Court has stated in Chor Phaik Har’s Case (supra), but it is an undisputed fact that the Defendant has not complied with this Court’s orders of 28.4.2023 which varied the previous order dated 13.9.2022; his justification is this is because the administration is incomplete and the Estate is yet to be wound up. The Plaintiffs urged the Court nevertheless that its primary duty is to protect the welfare of the beneficiaries. The beneficiaries are prejudiced by the refusal of the Defendant to distribute to them their entitlement under the land acquisition monies for more than 27 years now. [24] I refer to the case cited by the Defendant in Soo Hooi Ling & Ors v Khoh Keow Bok & Ors [2019] MLJU 1569 where the High Court stated: “[11] Firstly, an administrator’s duty first and foremost is to discharge the debts and liabilities of the estate. The debts and liabilities are paid out of the assets of the estate. The known debts and liabilities are usually found annexed to the letters of administration. In the present case the letters of administration show numerous debts and liabilities of the deceased. In this regard the law is trite: a beneficiary under an intestacy has no interest or property in the personal estate of a deceased person until the administration of the latter’s estate is complete and distribution made according to the law of distribution of the intestate estate (per Mohamed Dzaiddin FCJ in Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 3 MLJ 188 and subsequently followed by the Federal Court in Chong Fook Sin v Amanah Raya Bhd & Ors [2010] 7 CLJ 917). This Court is bound by the legal principle stated in the above cases. The estate in this case is yet to be administered. Therefore, the beneficiaries until such event takes place have no interest or property in the estate. In the circumstances, the 2nd and 3rd plaintiffs are not entitled to any monies until the administration of the estate is complete and distribution of the intestate estate determined pursuant to the law of distribution. The 1st plaintiff and the 1st defendant therefore cannot be ordered to release monies of the estate to the beneficiaries for whatever purpose before the estate is administered.” [Emphasis added] [25] But this Court also noted that His Lordship in that case has earlier stated: “[9] It is clear from the affidavits that the differences of the co-administrators have delayed the administration of the said estate which is further exacerbated by the present action. There are allegations and counter allegations by both the co-administrators against each other: each blaming the other for dereliction of their duties as administrator. [10] However, this application does not concern the issue of dereliction of the co-administrator’ duties. The issue is whether on the facts and circumstances of the present case this Court ought to exercise its discretion in granting the interim mandatory injunction sought by the plaintiffs. In my judgment the plaintiffs have failed to show an unusually strong and clear case that the mandatory injunction would probably be granted at the trial. A careful consideration of the facts and circumstances does not warrant an exercise of discretion granting the interim mandatory injunction against the co-administrators. My reasons are as follows: “[11] Firstly, an administrator’s duty first and foremost is to discharge the debts and liabilities of the estate…”. [Emphasis added] [26] From the averments in the affidavits in the present case, I found that the Plaintiffs’ allegations about the Defendat’s failure to administer the Estate properly was not unfounded. Again I emphasise that the Defendant admits the administering of the estate is incomplete. But why has the Defendant refused to give the Plaintiffs information about the administration that he has done or not done (the subject-matter of Encl. of OS-75)? And why is it taking too long? I am of the view that the principle in the case of Chor Phaik Har (supra) CANNOT be read in isolation and the Defendant cannot pick and choose the rulings in that case to suit his position, after admitting that he still has not administered the estate after 27 years of being granted the Letters of Administration in 1997. The Defendant must come to the Court with clean hands. The list of assets in Exhibit P-1 of Encl. 22 revealed 66 assets (properties) not incuding monies and shares in the Estate of the Deceased. It is also clear from the letters of Messrs. Sault & Scott exhibited therein that at least 6 of the properties have been acquired by the Government and the monies dispensed to the Defendant. As Administrator, why did the Defendant not participate in the acquisition proceedings? The value of the lands had increased by at least ten-fold. For instance, for GM 1057 Lot 10893 the value at the time of acquisition was RM298,040.90 and in 1997 it was only worth RM24,900.00. The only liabilty listed then was the funeral expenses amounting to RM6,000.00. [27] The Defendant further submits that the Consent Order executed in 2016 with Muthu has yet to be executed. Therefore, a Consent Order which is yet to be executed remains merely as a paper judgment. Although the Consent Order has been entered into between the Defendant and Muthu, the Defendant is not permitted to give effect to the terms of the Consent Order until the administration of the Estate of the said Deceased is completed based on the trite principle explained above. His counsel submits there has been no breach whatsoever by the Defendant. The Defendant has remained consistent in his stance that the beneficiaries of an intestate estate has no interest or property in the Estate of the said Deceased until the administration of the Estate of the said Deceased is complete. In that regard, even if the Defendant subsequently enters into a Consent Order with the Plaintiffs for the distribution of the Plaintiffs’ share to the compensation sum of the said Lands, such a Consent Order would merely be rendered a paper judgment, until and unless the administration of the Estate of the said Deceased is completed. [28] The Defendant admits that he filed OS-75 for the sole purpose of distributing the assets of the Estate of the said Deceased, which is still pending determination before this Court and Encl. 1 cannot be granted by this Court at this juncture. I am puzzled as to why he claims so because the records show that OS-75 has been disposed on 24.1.2024 when they entered into a Consent Order in OS No. AB-24NCvC-105-07/2023 and withdrew OS-75 with no order as to costs on the same date. And OS-75 which was filed in 2021 was withdrawn after numerous postponements had been granted on the request of the Plaintiff (the Defendant here) purportedly to obtain documents in India and on account of his ill-health. It is safe for the Court to conclude that the plaintiff’s (the Defendant here) suit OS-75 was withdrawn by himself after almost 3 years he filed it after he could not produce most of the documents that were requested for discovery by the defendants (the Plaintiffs here). [29] On record, the Plaintiffs state that the Defendant has paid the Plaintiffs the sum of RM 560,427.82 under Originating Summons No. AB- 24NCVC-105-07/2023 (the previous OS) for the acquisition of other lands of the estate. Hence, why is he now refusing to pay the acquisition monies for the other 2 pieces of lands? The Plaintiffs submits that the Defendant should not be allowed to approbate and reprobate: Kind Action (M) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2024] 6 MLRA 328 [30] In the Court of Appeal case of Lee Kwee Foh Sdn Bhd v Loke Kooi Chuan Properties Sdn Bhd & Anor [2024] MLJU 1357, Justice Collin Lawrence Sequerah stated: “[55] In the case of Cheah Theam Kheng v. City Centre Sdn Bhd & Other Appeals [2011] 2 MLRA 660; [2012] 2 MLRA 125; [2012] [2012] 1 MLJ 761; [2012] 2 CLJ 16 the Court of Appeal cited Sir Nicholas Browne-Wilkinson VC in Express Newspapers Plc v. News (UK) Ltd & Others [1990] 3 All ER 376 as follows: "There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt once stance, cannot thereafter be permitted to go back and adopt an inconsistent stance". [31] The Plaintiffs meanwhile, referred to another Court of Appeal case of Kathryn Ma Wai Fong v Wong Kie Chie & Anor [2024] 6 MLRA 858 wherein His Lordship Justice Mohamed Zaini Mazlan referred to the English Court of Appeal case of Vershures Cremeries Limited v Hull And Netherlands Steamship Company Limited [1921] 2 KB 608 and stated: “[33] WKC and WKY could not approbate and reprobate. Given two choices, they must elect one stance. The English Court of Appeal in Verschures Creameries, Limited v. Hull and Netherlands Steamship Company, Limited [1921] 2 KB 608 explained the concept of approbate and reprobate as follows: “A plaintiff is not permitted to “approbate and reprobate.” The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election − namely, that no party can accept and reject the same instrument: Ker v. Wauchope (1); Douglas-Menzies v. Umphelby (2). The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn around and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.” [Emphasis added] [32] To conclude on this point, the Plaintiffs submit that the Defendant has made an option to pay the Plaintiffs of their entitlement under the acquisition the Defendant is now estopped by conduct to preclude later to change the stance. I agreed with the Plaintiffs’ submissions as the facts in the affidavits and exhibits filed by both parties speak for themselves. The Defendant has not shown any proof to substantiate the inordinate delay in distributing the compensation after the monies have been obtained by Messrs. Sault & Scott, upon his own instructions. In the case of Pentadbir Tanah Daerah Petaling v Swee Lin Sdn Bhd [1998] 2 MLRA 438, at page 440, the Court of Appeal stated: “[10] Quite apart from the construction of para 1(3)(b) of the First Schedule, there is a principle of great antiquity that a litigant ought not to benefit from its own wrong. Although of universal application, it has been restated when applied to a particular context. For example, the principle when applied in the context of the law of contract may be formulated as follows: a party ought not to be permitted to take advantage of his own breach. See Alghussein Establishment v. Eton College [1988] 1 WLR 587; New Zealand Shipping Co Ltd v. Societe Des Ateliers Et Chantiers De France [1919] AC 1.”. [Emphasis added] [33] Coming back to the issue of the Plaintiffs’ reliance on O.80 r.2(1) which was not cited in the intitulment, the Defendant submits that Kiranjit Kaur Jagjit Singh (supra) is not applicable and distinguishable on the present facts. In that case, the plaintiff’s application was made pursuant to Order 80 r.2 of the ROC. Here, the Plaintiffs’ application was filed inter alia, premised on Section 62 of the Probate and Administration Act 1959 and Section 6(1)(c) of the Distribution Act 1958. But the Plaintiffs also relied on O.92 r. 4 which provides: Inherent powers of the Court (O. 92, r. 4) [34] The Defendant placed heavy reliance on the principle in Chong Phaik Har’s Case (supra) without elaborating on the facts of that case. The Plaintiffs submit that the case can be distinguished on the facts because there, it was on an issue whether the beneficiaries to an intestate estate has caveatable interest over their respective beneficial interest on a property. It primarily relates to Section 327 of the National Land Code.