1. ) Ravinderjeet Kaur A/P Harbans Singh v 1. ) Bhoopindar Singh A/L Harbans Singh (BA-22NCvC-249-06/2024)

RAVINDERJEET KAUR A/P HARBANS SINGH

DILBIR KAUR A/P HARBANS SINGH

AMRIT BINTI ABDULLAH

MOHSEN MANINDER BIN ABDULLAH (NO. K/P: 5002208-71-5445) PLAINTIF-PLAINTIF DAN 1. BHOOPINDAR SINGH A/L HARBANS SINGH (NO. K/P: 490116-71-5249) (sebagai Pentadbir bagi harta pusaka Harbans Singh a/l Indar Singh, Si mati)

NUR DIYANAH INDER BINTI ABDULLAH (INDERJEET KAUR A/P HARBANS SINGH) (NO. K/P: 580415-08-5506) EFENDAN-DEFENDAN 04/08/2025 12:42:41 BA-22NCvC-249-06/2024 Kand. 53 S/N Bth5m7mu7kuUPYHpFqtq2w (sebagai Pentadbir bagi harta pusaka Harbans Singh a/l Indar Singh, Si mati) GROUNDS OF JUDGMENT Introduction 1. The underlying action in this case is by 4 living beneficiaries of the estate of Harbans Singh A/L Indar Singh (deceased) against the Defendants who are the administrators of the estate under Letters of Administration granted 23 years ago on 18-11-2003.

This case had been set down for trial on 3 and 4 September 2025 when on 16-4-2025, the Defendants moved the Court under Order 14A and/or Order 33 Rule 2 or 3 of the Rules of Court 2012 to have certain questions of law in this action determined without the need for a trial, namely:

Whether this action is estopped by res judicata by reason of 2 prior consent judgments against the Defendants

Whether the Court has jurisdiction to grant the relief sought in this action as the consent judgments are still valid and binding

Whether the pleadings disclose facts supporting the relief sought

Whether the action is time-barred or pre-mature.

The Defendants argue that the questions can be answered without a trial and when answered, will determine or substantially determine the action. The Defendants have gone on to submit why on a determination of the questions, the action ought to be dismissed. Background Facts 4. A summary of past litigation by beneficiaries of the estate against the Defendants is as follows: Suit 24-1605-12/2012 22NCVC-200- 04/2015 Filed by 1st to 3rd Plaintiffs 1st to 3rd Plaintiffs Date filed 24-10-2012 10-4-2015 Particulars of pleading and remedy As far as may be discerned, failure to furnish an inventory and account of the administration Delay in distribution; no account of administration; failure to distribute RM6,614,226.48 in released unclaimed monies; unauthorised S/N Bth5m7mu7kuUPYHpFqtq2w transfer of 2 properties in Mukim Slim Perak to a third party; rent-free occupation of estate properties by the Defendants ____ Removal and substitution of Defendants as administrators; inventory and accounts Date of Consent Judgment 2-12-2013 ( Judgment No. ) 5-2-2016 ( Judgment No. ) Terms of Consent Judgment Defendants to disclose monthly accounts on or before the 10th of the month, once every 3 months Various orders directing the distribution of specifically identified assets of the deceased including:

RM3.5 million of unclaimed monies be distributed S/N Bth5m7mu7kuUPYHpFqtq2w equally between the 7 beneficiaries on or before 26-2-2016

RM1,260,840 in proceeds from the sale of 2 Batang Padang properties be distributed equally between all beneficiaries within 14 days of 26-2- 2016

RM175,000 balance proceeds from the sale of a Mukim Damansara property sold to the 2nd Defendant be distributed equally between all beneficiaries

RM175,000 balance proceeds from the sale of another Mukim Damansara property to the 4th Plaintiff be S/N Bth5m7mu7kuUPYHpFqtq2w distributed equally between all beneficiaries

an account of the RM1 million set aside for legal expenses to be submitted to the beneficiaries within 14 days of final distribution of the balance

(c), (d) Orders that the Defendants file for a declaration in Singapore that Takdir Singh A/L Harbans Singh is deceased ( ) and apply for letters of administration of the s assets in Singapore; completion of S/N Bth5m7mu7kuUPYHpFqtq2w distribution thereof within 6 months of the Declaration 5. In this writ action filed by the 1st to 3rd Plaintiffs and additionally, the 4th Plaintiff, the pleaded case is that despite the 2 prior suits filed against the Defendants, the Defendants have still not completed the distribution of the estate and have failed to give an account of the administration. Specifically, the allegation is that the Defendants:

have not fully complied with 4 of the orders in Consent Judgment No. 2 as recorded, in that the 4th Plaintiff had been denied full distribution of his share of the assets referred to therein;

have refused to provide an update of the status of the administration requested by the 1st Plaintiff;

have ignored threats of committal proceedings by the 2nd and 3rd Plaintiffs for failing to comply with the terms of

have failed to respond to demands for an account of the with Consent Judgment No. 2.

The action is personal against the Defendants and is premised duties and/or fiduciary duties as administrators. The relief sought is essentially the removal and substitution of the Defendants as administrators of the estate, an order that they furnish an inventory and account of S/N Bth5m7mu7kuUPYHpFqtq2w their administration of the estate and any other relief as the Court deems appropriate.

The pleaded defence is that the action is time-barred, that it is the Plaintiffs who have delayed the distribution, that the 4th Plaintiff is not a party to the consent judgments and that the 3rd and 4th Plaintiffs are Muslims. There are no particulars to the pleaded allegation that the Plaintiffs caused the presumably admitted delays in the distribution of the estate. The Defendants also filed a counterclaim for damages based on these pleadings, which counterclaim was struck out by this Court on 13-11-2024 for disclosing no reasonable cause of action. Findings and analysis Res Judicata 8. The Defendants contend that the Plaintiffs are estopped by the doctrine of res judicata because this action is based on breach of fiduciary duties and seeks substantially the same remedies as those sought in the 2 prior actions, as summarized above, which have concluded in Consent Judgment No. 1 and Consent Judgment No.

S/N Bth5m7mu7kuUPYHpFqtq2w

This Court disagrees with the Defendants on this point for the simple reason that:

the 4th Plaintiff was not party or privy to the past actions although he was apparently present at the mediation which led to Consent Judgment No. 2; and

those past actions were not premised on the same particulars of breach and therefore, it cannot be said that they are premised on the same causes of action.

It is not seriously disputed that the Defendants are trustees with continuing fiduciary duties as administrators of the estate (Koh Siew Keng & Anor v Koh Heng Jin [2008] 3 CLJ 450), and their inaction and/or other breaches of duty in the past when sued upon and remedied, cannot shield them from future actions for continuing or new breaches of their duties. To rule as such would mean that the Defendants can in the future, act with impunity.

A cursory examination of the pleadings will also show that the alleged failure to fully comply with 4 of the orders in Consent Judgment No. 2 resulted in the 4th Plaintiff being denied full distribution of his share of the assets referred to therein. This is a fresh claim by the 4th Plaintiff against the Defendants.

As for the alleged failure to furnish accounts of the administration at , it will be noted that apart from Consent Judgment No. 1 which ordered the Defendants to do so every 3 months, there is a general obligation by the Defendants to do so as accounting parties vis-à-vis all beneficiaries of the estate.

Jurisdiction By arguing the lack of jurisdiction, the Defendants suggest that this Court is functus officio complaints as they have culminated in Consent Judgment No. 1 and Consent Judgment No. 2. For the same reasons set out above, this Court takes the view that it has the jurisdiction to deal with a fresh action against the Defendants based on new allegations of wrongdoing.

In any case, it would appear that the 4th Plaintiff is not a party to Consent Judgment No. 1 or Consent Judgment No. 2 and it is settled law that a judgment cannot bind a non-party (Keng Chwee Liang v Wong Thak Thong [1983] 2 MLJ 320). In fact, the Defendants have pleaded the fact that the 4th Plaintiff is not a party to the consent judgments in their Defence, suggesting that the alleged non-distribution of proceeds to the 4th Plaintiff is justified for that reason. This must surely be investigated at trial and the Defendants held to account if they have deliberately withheld distribution to the 4th Plaintiff.

It is also not obvious that the 1st to 3rd Plaintiffs are limited to instituting committal proceedings against the Defendants for their alleged breaches of duty, as Consent Judgments No. 1 and No. 2 do not deal comprehensively with all issues nor with issues that have since arisen. It may be that the only remedy that the 1st to 3rd Plaintiffs are entitled to is enforcement of Consent Judgment No. 1 and No. 2 under Order 45 Rule 5 of the Rules of Court 2012 or by way of a fresh action, but the Defendants have not asked this question.

Further, it would be quite remarkable for the Defendants to suggest that because Consent Judgment No. 2 stipulates no time therefore at liberty to sit on it indefinitely to the detriment of the beneficiaries who are now without recourse because Consent Judgment No. 2 prevents it. The Defendants must account for their failure to complete the distribution Singapore assets.

As to whether removing the Defendants as administrators will create 2 inconsistent Judgments of the Court, this Court does not see any inconsistency from their position or office as administrators. As noted, past forbearance in their removal as administrators does not render them immune from action. In any case, this is a question that can be dealt with in the formulation of the remedies after the trial of this action.

Pleading point The Defendants argue that the Plaintiff failed to plead a lack of good faith or damages as elements for the claim in breach of fiduciary duties. This argument is without merit as the Plaintiffs are only required to plead material facts in the statement of claim, and the pleading is sufficient to make out a triable case of breach of duties by the Defendants based on the summary set out in paragraph [5] above. Statutory time bar

The Defendants finally submitted that the 6-year time limit for a tort action applies in this case because the pleaded cause of action is breach of fiduciary duties. To be clear, a claim for breach of fiduciary duties is not premised in tort but in equity. Based on the causes of action and remedies pleaded, the relevant provisions to consider are sections 6(2), 6(3), 6(6) and 22(1)(b) of the Limitation Act 1953 ( LA : Section 6(2) any matter which arose more than six years before the Section 6(3) expiration of twelve years from the date on which the judgment became enforceable and no arrears of interest in respect of S/N Bth5m7mu7kuUPYHpFqtq2w any judgment debt shall be recovered after the expiration of six year Section 6(6) this section shall apply (if necessary by analogy) to all claims for specific performance of a contract or for an injunction or for other equitable relief whether the same be founded upon any contract or tort or upon any trust or other ground in equity. Section 22(1)(b) an action by a beneficiary under a trust, being an action-

to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received

A consent judgment is akin to a contract and specific performance of a contract which involve or encompass the recovery of trust property by a beneficiary from a trustee is not caught by the limitation period of six years prescribed under section 6(6) of the LA but is subject to section 22(1) of the LA which requires that either subsection (a) or (b) be proved whereupon no limitation period applies (Abdul Razak Sheikh Mahmood v Bhupinder Singh s/o Avtar Singh [2012] 3 MLJ 348).

Section 22(1)(b) of the LA may apply in this case as the Defendants are by definition, trustees and therefore also accounting parties vis-à-vis the Plaintiffs. In Ong Tok How & Anor v Madam Ong Lay Eng @ Ong Lay Ien (Proposed administrator /Administrator for Ooi Koe Ley, wife of the deceased) [2011] 3 MLJ 799, the plaintiffs claim of breach of fiduciary duty was found to lie in the realm of the law of trusts and came under section 22 of the LA for which there is no period of limitation.

In this case, t time bar question has been formulated in the abstract. The claim may be characterized as a fresh action on continuing breaches based on the plea that the Defendants have withheld accounts, that the 4th Plaintiff has not received full distribution and/or in respect of all beneficiaries entitled, that the Singaporean assets of the deceased have yet to be administered as the Defendants have undertaken to do under Consent Judgment No. 2.

Thus, the facts of this case may lead this Court to find that it is dealing with a claim by beneficiaries for recovery of trust property in the possession of the trustees, in which case no period of limitation applies (Anthony Kulanthai Marie Joseph v. Malaysian Assurance Alliance Bhd [2008] 4 CLJ 205; Law Hock Key & Anor v. Yap Meng Kan & Ors [2008] 3 CLJ 470), or an action on a Judgment ordered less than 12 years prior to the commencement of the action.

Conclusions T tion leaves too many questions open for it to be determined summarily and there is insufficient material on which the questions framed by the Defendants can be satisfactorily answered. Accordingly, the ismissed with costs of RM5,000.00. Bertarikh : 4 Ogos 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Plaintif-Plaintif: Muhammad Yassir Rabani bin Ramlan Tetuan Seow & Megat Peguam bagi pihak Defendan-Defendan: Lim Jit Kiong (bersama Lin Chia