1. ) Pang Shiao Yin v 1. ) Pang Woon Nyok (JA-24NCvC-1368-12/2023)

1.

PANG SHIAO YIN (No. K/P: 870917-23-5362)

PANG SOK FENG (No. Pasport Singapura: K2045659E)

PANG HUI CHING (No. Pasport Singapura: K2867955K) …PLAINTIF-PLAINTIF

PANG WOON YEOK (No. K/P Lama: 5458526) (No. K/P Baru: tidak diketahui)

HON MEOY YING (No. Pasport Singapura: K1202618A) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 1)

This is an Originating Summons (Enclosure 1) by the Plaintiffs (“Ps”) for declarations, among others, that a Distribution Order made by 17/11/2025 15:17:12 JA-24NCvC-1368-12/2023 Kand. 83 S/N vAWtW7y7Lki9svBrhl4PDg the Land Administrator dated 03.04.1993 (“the said Distribution Order”) transferring a piece of land known as HSM 1789 Lot 6444, Mukim Senai, Daerah Kulai, Negeri Johor (“the Land”) from the estate of the deceased younger brother, Pang Hun Kwe to his elder brother, the 1st Defendant (“D1”), is null and void and of no effect.

In the event this Court is with the Ps on the aforesaid prayer, Ps also pray that D1 be declared as holding ½ share of the Land as trustee for the Ps, and further consequential orders for D1 to transfer the said ½ share of the Land to the estate of the deceased or if D1 refused the Deputy Register is to execute the necessary transfer instrument to that effect.

Upon conclusion of hearing, I dismissed Enclosure 1 with costs of RM5,000.00 to be paid by Ps to D1 only, subject to allocator fees.

Ps have since filed an appeal to the Court of Appeal against my judgment.

Thus, this is my grounds of judgment for the said decision. Salient facts

The following facts are gathered from the numerous affidavits filed by the parties. S/N vAWtW7y7Lki9svBrhl4PDg

Ps are siblings. They are the offspring of D2 who is their mother and Pang Hun Kwe (deceased) their father.

D1 is the elder brother of the deceased. D1 opposed Enclosure 1. D2 in her affidavits in Enclosure 59 and Enclosure 60 supports Enclosure 1.

Sometime in year 1989, an application for alienation of the Land was made in the name of the deceased.

However, before the Land was approved by the State Authority, the deceased died on 09.07.1992 due to road accident.

It was only on 29.08.1992, that the Land Administrator’s Office issued a Notice in Form 5A informing that the application for alienation of the Land had been approved subject to the condition that payments must be made within 3 months from the date of the said Notice, failing which the approval will be withdrawn.

Following the said Notice, payment was made for the premium and the Land was subsequently alienated to and registered under the name of the deceased. S/N vAWtW7y7Lki9svBrhl4PDg

D1 then petitioned for small estate distribution of the deceased’s estate.

A hearing was then held by the Land Administrator in the presence of the D1 and D2. Ps were minors at that time thus did not attend the hearing.

On 03.04.1993, the said Distribution Order was pronounced whereby the Land was ordered to be transferred to D1 absolutely.

Ps contend that the said Distribution Order was null and void due to D1’s incomplete disclosure to the Land Office relating to the actual number of beneficiaries of the deceased, which include Ps (minors at the material time) and the deceased’s parents.

D1 on the other hand contends that although the application of the Land was made under the name of the deceased, the real applicants for the Land were their parents. The deceased’s name was only use for the purpose of the application.

Further, upon knowing of the approval for the Land application, their parents had asked D1 to pay for the premium. D2, being the deceased widow did not make any payment for the premium. D2 also is not eligible to hold the Land since she is a Singaporean. S/N vAWtW7y7Lki9svBrhl4PDg

D1 also contends that during hearing before the Land Administrator, D1 had agreed not to claim any rights over the Land.

D1 paid for the premium in full to the Land Office. Ever since then D1 continued to pay quit rent and maintenance costs for the Land. Thus, D1 contends that he is the rightful owner to the Land.

D1’s version that it was their parents who were the actual applicant for the Land and that it was D1 who had paid the premium for the Land is supported by D1’s sisters who had sworn their affidavits and filed in Court as Enclosure 9 and Enclosure 10 respectively.

At the outset, the administration and distribution of small estate are matters that fall within the exclusive jurisdiction of the Collector (who is also the Land Administrator). Section 4 of the Small Estate (Distribution) Act 1955 [ACT 98] states that:- “(1) Save as in this Act otherwise provided no interest in any small estate shall devolve on or vest in any person by virtue of any instrument other than an order or grant made under this Act.

The Collector of the district where the greater part in value of the property is situated shall have exclusive jurisdiction to deal with the distribution and administration of the whole estate wherever situated:…” S/N vAWtW7y7Lki9svBrhl4PDg

Any order made by the Collector shall have the same force and effect and enforceable as an order made by a court. Section 14(9) of ACT 98 states that:- “14(9) Any order made by a Collector under this section shall have the same force and effect and shall be enforceable in the same manner as if it had been made by a court but there shall be no appeal from such an order except under section 29.”.

Thus, in cases where any person is dissatisfied with the decision of the Collector, such person may appeal against the said decision to the High Court under s.29 of ACT 98 which states as follows:- “29(1) Subject to the other provisions of this Act and to subsection

any person aggrieved by any order, decision or act made or done by a Collector under this Act may appeal to the High Court: … …

The time limited for appeal and the procedure in every such appeal shall unless otherwise provided by rules made under section 30 conform to the limited for, and the procedure in, a civil appeal from a Sessions Court with such variations as may be necessary and the same fees shall be payable.”

In respect of the time frame for filing of such appeal, it shall be within 14 days from the date of the decision as prescribed in Regulation 10 of the Small Estate (Distribution) Regulations 1955 as follows: “(1) (a) Appeals to the High Court shall be brought by giving notice of appeal in Form K2. S/N vAWtW7y7Lki9svBrhl4PDg

An appellant may appeal from the whole or any part of a decision (which expression shall, in these Regulations, mean any order, decision or act made or done by a Collector) and the notice of appeal shall state whether the whole or part only, and what part, of the decision is appealed against.

The notice of appeal shall be entitled and filed in the proceedings before the Collector and shall be filed in the Collector’s Office within 14 days from the day on which the decision appealed against was pronounced…”

Now, it is obvious from the facts that there was no appeal filed by anyone, particularly D2 who is the widow of the deceased, either during the period of appeal nor any other period thereafter against the Distribution Order.

In this regard, this Court agree with the submissions of D1’s counsel that this Court has no jurisdiction to hear the OS herein since the correct procedure ought only to be by way of an appeal to the High Court under s.29 of ACT 98.

On this jurisdictional ground, this Court is bound to follow the decision of the Federal Court in Fatimah Binti Mat Akir & Anor v. Sharif ah Binti Haji Ahmad &Ors [1977] 1 MLJ 107, where it was held that: “The suit is an attempt to get an order whereby an interest in Akil’s estate should devolve on or vest in his beneficiaries. Normally the High Court would have jurisdiction to entertain it. S/N vAWtW7y7Lki9svBrhl4PDg But this suit relates to a small estate and the legislature has expressly provided by section 4(1) of the Small Estates (Distribution) Ordinance that it is not the High Court, but the Collector, who exclusively has original jurisdiction. That section provides: - “Save as in this Ordinance otherwise provided no interest in any small estate shall devolve on or vest in any person by virtue of any instrument other than an order or grant made under the provisions of this Ordinance [by the Collector, etc.],” Further, section 7(1) expressly provides that: - “If the Registrar [of the High Court] is satisfied that any intestate estate in respect of which a petition for letters of administration has been filed in the High Court is a small estate he shall transfer such petition to the Collector..” It is plain that the scheme of the Ordinance is that in matters relating to the administration of a small estate the small man should be spared the trouble of going to the High Court with its technicalities and expense and that instead his problems should be dealt with expeditiously and informally by the Collector who has special experience with and knowledge of the peasantry. In view of this I am of the opinion that the learned judge was right in dismissing this action, though not for the reason given by him. The proper course for the appellants was to have appealed against the Settlement Officer’s order, which they did not do, for though the High Court has no original, it has however appellate jurisdiction over the administration of small estates.” S/N vAWtW7y7Lki9svBrhl4PDg

Although Ps try to rely on the Court of Appeal’s decision in Ahmad bin Abd Majeed lwn Habibah bte Abdul Majid dan satu lagi [2007] 3 MLJ 418 to support their position that this Court has jurisdiction to hear this OS, this Court finds that facts in Ahmad’s case is distinguishable from the present OS. In the instant matter, the record of proceeding before the Land Administrator shows that D2 was present for herself and on behalf of Ps who were minors at that time, thus no infringement of Ps’ right of hearing that could nullify the Distribution Order.

However, in the event this Court has jurisdiction to hear this OS, it is this Court’s finding that although the application for the Land may have been made by the deceased, the preponderance of probability from the totality of evidence tends to support D1’s position that the de facto applicants were not the deceased but the deceased and D1’s parents where the deceased’s name was only used as mere proxy or nominee. Thus, when the payment for the premium for the Land was made solely by D1 upon the instructions of their parents, a resulting trust must be presumed to have existed over the Land. Hence, the deceased was at most only a trustee to the Land when the land was registered under the deceased’s name.

On resulting trust, this Court refers to Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 where it was held by the English Court (House of Lords) at page 708 that:- S/N vAWtW7y7Lki9svBrhl4PDg “Under existing law a resulting trust arises in two sets of circumstances: (A) where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a presumption, which presumption is easily rebutted either by the counter - presumption of advancement or by direct evidence of A's intention to make an outright transfer: see Underhill and Hayton pp. 317ff, Vandervell v. IRC [1967] 1 All ER 1 at 8, [1967] 2 AC 291 at 312ff and Re Vandervell's Trusts (No 2), White v. Vandervell Trustees Ltd [1974] 1 All ER 47 at 63ff, [1974] Ch 269 at 288ff. (B) Where A transfers property to B on express trusts, but the trusts declared do not exhaust the whole beneficial interest: ibid and Barclays Bank Ltd v. Quistclose Investments Ltd[1968] 3 All ER 651, [1970] AC 567. Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention. Megarry J in Re Vandervell's Trusts (No 2) suggests that a resulting trust of type (B) does not depend on intention but operates automatically. I am not convinced that this is right. If the settlor has expressly, or by necessary implication, abandoned any beneficial interest in the trust property, there is in my view no resulting trust: the undisposed - of equitable interest vests in the Crown as bona vacantia: see Re West Sussex Constabulary's Widows, Children and Benevolent (1930) Fund Trusts [1970] 1 All ER 544, [1971] Ch 1.” S/N vAWtW7y7Lki9svBrhl4PDg

In view of the abovesaid principles, perhaps it would be right for this Court to say that the most important element in determining whether a resulting trust exist or otherwise is to objectively ascertain the intention of the parties. In Takako Sakao v Ng Pek Yuen & Anor [2010] 1 CLJ 381 the Court of Appeal had this to say:- [19] In our judgment, the primary function of the court in a case where a resulting trust is asserted or a gift is alleged arising from a disposition of property is clear. It is to determine whether the initial donor intended to make a gift of the property be it movable or immovable, or whether he or she intended it to be held by the donee in trust for some other person or persons, including the donor or the disponee or both. A court when called upon to decide whether a resulting trust or a gift was intended in given circumstances should not begin by resorting to presumptions. It must meticulously examine the facts to objectively ascertain the true intention of the parties. If the intention of the parties when objectively determined was that the particular property was to be held on a resulting trust then that is the conclusion the court should declare. However, if the intention was that the disponee of the property was to have it as a gift, there can then be no question of a resulting trust being implied. It is only when there is absent any indication of what was intended by the parties that the court should resort to presumptions. Were it otherwise, the court may be arriving at an incorrect conclusion based on a presumption when the evidence points in quite the opposite direction.

Thus, since D2, being the mother of Ps and the widow of the deceased, was herself present during the hearing before the Land Administrator and had relinquished her rights (which include Ps from S/N vAWtW7y7Lki9svBrhl4PDg the evidence) over the Land for the purpose the Distribution Order, D2 is now estopped from saying otherwise as per the averments in her affidavits in Enclosure 59 and Enclosure 60. In addition, the delay in bringing this matter to this Court is contumelious with no valid justification either by Ps or D2.

Thus, since there was also no action at all taken by D2 to challenge the Distribution Order after all these years, this Court finds the explanations and denials averred by D2 in Enclosure 59 and 60 are all afterthoughts and inconsistent with D2’s purported position that she had no knowledge of the facts leading to the making of the Distribution Order. As a result, D1’s version on the creation of the resulting trust over the Land must be taken as the truth, and so I hold.

In short, on the facts and circumstances of this case, there is no valid reason for this Court to exercise its discretion to grant the declaratory reliefs prayed for in the OS. S/N vAWtW7y7Lki9svBrhl4PDg Conclusion

Based on the reasons as adumbrated above, this Court dismisses Enclosure 1 with costs to be paid by Ps to D1 only. Dated: 17th November 2025 ……………………………………… (Noor Hisham Bin Ismail) Judge High Court, Johor Bahru For the Plaintiffs: Messrs HT Lim & Partners No.7, 7A & B, Jalan Susur Kulai 1 Taman Seraya, Kulai Besar 81000 Kulai, Johor For the 1st Defendant: Messrs Messrs. KS Pang & Co. Unit 8.02, 8th th Floor, Menara TJB, No. 9, Jalan Syed Mohd Mufti, 80000 Johor Bahru S/N vAWtW7y7Lki9svBrhl4PDg