ADZAM BIN ANUAR (sebagai waris dan wakil waris Zainah Binti Mohd Sham (No.K/P-480430085848) dan cucu kepada Robea'ah Binti Mat Sapi Rabiah Binti Mat Safi (Sijil Mati-B918528)) v 1. ) AHMAD ZUHARI BIN MOHD SHAM (AA-22NCvC-121-11/2024)

SHABARIAH BINTI MOHD SHAM

SERI INTAN BINTI MOKHTAR 25 (NO. K/P: 730501-14-5158) …DEFENDANTS GROUNDS OF JUDGMENT Introduction [1]. The plaintiff's present suit seeks to set aside a distribution 30 order made under the Small Estates (Distribution) Act 1955. The claim is framed around allegations of fraud and omission 09/09/2025 01:39:42 AA-22NCvC-121-11/2024 Kand. 26 by the defendants in securing that order. However, the legal foundation upon which the plaintiff attempts to mount this challenge is fatally flawed, both in law and in equity, which 35 prompted the defendant to apply to strike out the action pursuant to Order 18 rule 19(1)(a), (b), (c) and/or of Rules of Court 2012. Background Facts [2]. The dispute concerns the estate of the late Robea’ah binti Mat 40 Sapi @ Rabiah binti Mat Safi, who passed away on 24 June 1994, leaving two immovable properties in Mukim Chenderiang, Batang Padang, Perak, namely GM 2015 Lot 3861 and GM 2312 Lot 4403, each comprising a 3/7 undivided share. The deceased was survived by seven beneficiaries, 45 including her children Zainah binti Mohd Sham (the plaintiff’s late mother), Shabariah binti Mohd Sham (2nd defendant), Ahmad Zuhari bin Mohd Sham (1st defendant), and others. [3]. For many years after the death, no steps were taken by the wider family to administer the estate. In 2013, the 1st and 2nd 50 defendants informed the family that they intended to initiate administration proceedings and requested cooperation in supplying supporting documents. Other beneficiaries declined or showed no interest, effectively leaving the administration task to the 1st and 2nd defendants. Acting on this, the 2nd 55 defendant filed a petition at the Small Estate Distribution Office, Batang Padang, and on 9 June 2014, she obtained a distribution order (Form E) in her favour for GM 2015 and GM

[4]. The 2nd defendant thereafter offered the properties for 60 purchase by the heirs, but none expressed interest. She then offered them to her children, whereupon the 3rd defendant, Seri Intan binti Mokhtar, agreed to purchase them. On 9 April 2015, the 3rd defendant paid RM25,000.00 from her Tabung Haji account to the 2nd defendant, who in turn executed a 65 Form 14A Memorandum of Transfer transferring her interest in GM 2015 and GM 2312 to the 3rd defendant. The transfer recited “love and affection” as consideration, but the defendants maintain this was only to facilitate processing by the Land Office; in substance, the transfer was a sale 70 supported by the RM25,000 payment. The title was subsequently issued in the 3rd defendant’s name. [5]. The plaintiff became aware of the distribution order obtained by the 2nd defendant sometime on 29 November 2023, when it was expressly referred to in a sale and purchase agreement 75 involving another estate property, GM 3375, which had been omitted from the earlier administration proceedings. In that transaction, the plaintiff’s company, Simfoni Yakin Sdn Bhd, acted as the purchaser while the heirs of the deceased were named as vendors. That transaction led to litigation in an 80 originating summons in the High Court at Ipoh SP No. AA- 24NCVC-9-01/2024, where the High Court granted a vesting order in favour of Simfoni Yakin on 6 March 2024 (amended 11 June 2024). The 1st and 2nd defendants, dissatisfied, filed an originating summons No. AA-24NCVC-554-10/2024 to 85 challenge that order and to set aside the same. [6]. Upon examining the estate file, the plaintiff allegedly discovered on 15 April 2024that the Form A petition listed only the 1st and 2nd defendants as beneficiaries, omitting five others, including his mother. He also discovered the 2015 90 transfer to the 3rd defendant, which he contends was fraudulent, lacking letters of administration, locus standi, and valid consideration. A police report was lodged on 2 June 2024 against the 2nd defendant, followed by a letter on 5 June 2024 from the plaintiff’s solicitors notifying the Land Administrator. 95 Consequently, the 2nd defendant was charged in the Tapah Magistrate’s Court on 7 March 2025 under section 181 of the Penal Code for making a false statement to a public servant. However, the plaintiff made no mention of any plea, decision, or disposal of the case. 100 [7]. The plaintiff’s present action, commenced by way of a writ, seeks declarations that the 2014 distribution order and subsequent transfer to the 3rd defendant is null and void, alleging fraud, negligence, and breach of trust. The defendants, in turn, have applied to strike out the action under 105 Order 18 rule 19(1) Rules of Court 2012, contending it discloses no reasonable cause of action, is frivolous and vexatious, and constitutes an abuse of process.

[8]. It is trite that the High Court does not possess original 110 jurisdiction to review or invalidate a distribution order issued by the Land Administrator under Section 29 Akta Harta Pusaka Kecil (Pembahagian) 1955 (Small Estates (Distribution) Act). Section 29 of the Act states that the power lies exclusively in the appellate jurisdiction. It provides: 115 “(1) Subject to the other provisions of this Act and to subsection (5) any person aggrieved by any order, decision or act made or done by a Land Administrator under this Act may appeal to the High Court:.. 120

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 time 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 125 payable.” [9]. This appellate jurisdiction in s.29 of the Act has been consistently affirmed by the apex court in Fatimah binti Mat Akir & Anor v Sharifah binti Haji Ahmad & Ors [1976] 1 LNS 130 29; [1977] 1 MLJ 107; [1976] 1 MLRA 405, where it is directly applicable to the present case. The Federal Court held that although the High Court ordinarily has jurisdiction over matters concerning estate distribution, Parliament has conferred exclusive original jurisdiction on the Collector under section 135 4(1) of the Small Estates (Distribution) Act. The High Court’s role is appellate only, under section 29. Where a distribution order aggrieves a party, the proper course is to appeal within time or seek leave to appeal out of time. It is not open to such a party to circumvent the statute by commencing 140 a fresh action in the High Court, even if fraud or incapacity is later alleged. In the present case, the plaintiff and his family had knowledge of the distribution as early as 2015 and again in November 2023, but chose not to appeal. Instead, the plaintiff filed an action by writ in the High Court to invalidate the 145 distribution order. This was the impermissible approach rejected in Fatimah binti Mat Akir (supra). Accordingly, consistent with the binding Federal Court authority, the plaintiff’s action is misconceived, amounts to a collateral attack on a valid statutory order, and must be struck out. Relevant 150 passage of the judgment is appended below: “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. 155 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:— 160 “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.].” 165 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 ...” 170 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 175 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. 180 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.” 185 [10]. Also, in Ahmad bin Abdul Majeed v Habibah bte Abdul Majid & Anor [2001] 2 MLJ 245; [2000] 7 MLRH 808; [2001] 2 AMR 1521, the High Court, in allowing the preliminary objection, held it could not entertain a declaratory suit to set 190 aside a distribution made by the District Land Administrator. Her Ladyship Rahmah Hussain held : “Held (1) The High Court has no jurisdiction to handle or hear the plaintiff's application to set aside the order for the division of the estate made by the Gombak District Land 195 Administrator. The issue in dispute involves a small estate which is subject to the provisions of the Act and it is exclusively within the original jurisdiction of the land administrator. The plaintiff ought to have appealed against the decision of the Gombak District Land Administrator 200 made on 23 November 1995 as provided under s 29(1) of the Act (see p 249G, 251D).

Although the plaintiff was absent from the proceedings before the registrar, the plaintiff is still considered an aggrieved party within the definition provided under s 29 of 205 the Act. As such, the plaintiff should name the Gombak District Land Administrator as a party to his action if the remedy the plaintiff wishes to apply for is a declaration to set aside the order of the land administrator (see p 251H-I) ” 210 [11]. Similarly, in Abu bin Ahmad v Daharah bt Ab Aziz & Ors [1995] 2 AMR 1703; [1995] MLJU 152, His Lordship K.N Segara, emphasised that the proper mode of redress was by appeal, not by fresh proceedings. In Syed Hamid bin Syed Bakar v Syed Mahadi & Ors [2000] MLJU 570; [2000] CLJU 215 279, the court reiterated that where a statutory process has been exhausted, the aggrieved party must utilise the prescribed appellate route. These principles are not merely procedural, but there to safeguard finality, legal certainty, and the proper allocation of jurisdiction. 220 [12]. In a later case of Gan Hock Soon v Gan Thay & Ors [2012] MLJU 764; [2013] 2 MLRH 551; [2012] CLJU 726, which followed Fatimah binti Mat Akir & Anor (supra) confirming the settled law that any grievances concerning distribution 225 orders must be pursued via appeal. The High Court reiterated its lack of original jurisdiction. [13]. Beyond the procedural defect, the plaintiff’s conduct undermines the equity of his claim. The impugned distribution order was issued nearly a decade ago. The plaintiff, by his own 230 admission and through documentary evidence, had actual knowledge of the order for years. In particular, in Saman Pemula No: AA-24NCVC-9-01/2024, the plaintiff directly referred to and relied upon the same distribution order as part of the factual matrix of that claim. That reliance constitutes 235 affirmation of the order’s validity. The doctrine of acquiescence arises: one who benefits from a state of affairs or asserts its legitimacy in earlier proceedings cannot subsequently challenge it for convenience. Equity will not assist such a litigant. 240 [14]. The law of laches also bars this claim. In Gan Hock Soon (supra), Her Ladyship Umi Kalthum J, in the High Court of Muar, confirmed that a delay of 23 years in asserting one's rights, especially when others have acted upon the apparent finality of the estate distribution, is fatal. Her Ladyship referred 245 to a Supreme Court case of DR M Mahadevan Mahalingam v S Lourdenadin & Another Case [1988] 2 CLJ 601; [1988] 2 MLJ 371, to impress on the point of laches. She quotes passages by Justice Hashim Yeop A Sani (SCJ as he then was): 250 “The doctrine of laches in the court of equity is not an arbitrary or a technical doctrine. The discretion is founded on the principle that there may be circumstances when it would be practically unjust to give a remedy of specific performance, for example either because the party has by 255 his conduct done that which might fairly be regarded as a waiver or where by his conduct he has put the other party in a situation in which it would be unreasonable to place him if the remedy were afterwards to be asserted. In Lindsay Petroleum Co. v Hurd the doctrine was stated by Lort 260 Selbourne and he said: " But in every case if an argument against relief which otherwise would be just is founded on mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles 265 substantially equitable. Two circumstances always important in such cases are the length of the delay, and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the 270 other, so far as relates to the remedy."' di muka surat 378, perenggan I, kanan, muka surat 379, perenggan E, F kiri: " In our view, for the present purpose, it is important to look at the delay of 14months in instituting the proceeding after 275 her interest was threatened and also the delay in lodging a caveat to protect her interest until after a lapse of about five years. A court of equity aids the vigilant, not the indolent. .... We are of the view that under the circumstances the case is 280 not a fit and proper one of the grant of specific performance ..." [15]. In the present case, the plaintiff's delay has prejudiced the certainty of titles and transactions flowing from the distribution 285 order. [16]. Further, estoppel by conduct also applies aptly in this case. The plaintiff’s prior reference to the distribution order in Saman Pemula No: AA-24NCVC-9-01/2024 created a legitimate expectation among the parties that he did not dispute its 290 validity. To now recant from that position is both unfair and legally untenable. As was held in Fatimah binti Mat Akir (supra), courts must guard against litigants reopening settled distributions unless there has been a timely and properly constituted appeal. 295 [17]. In totality, the plaintiff’s action is not only jurisdictionally unsustainable, but also equitably barred. This is a classic case where the doctrine of finality must prevail. The statutory framework under the 1955 Act was enacted precisely to avoid such protracted and collateral challenges. Accordingly, this 300 court should decline to assume jurisdiction as indicated by the plaintiff and dismiss the action as an abuse of process. Conclusion [18]. In conclusion, the plaintiff’s action is not only jurisdictionally unsustainable, but also equitably barred. This is a classic case 305 where the doctrine of finality must prevail. The statutory framework under the 1955 Act was enacted precisely to avoid such protracted and collateral challenges. The plaintiff and his family had known of the distribution order since 2015 but had failed to appeal. Instead, they attempt a collateral challenge 310 after affirming the order in other proceedings. Such conduct undermines certainty and fairness. The law demands finality, not endless reopening of settled estates. This suit is struck out to preserve that finality and the integrity of the statutory scheme and prevent abuse of process. 315 Dated : 8 September 2025 [MOSES SUSAYAN] 320 JUDGE HIGH COURT IN MALAYA AT IPOH, PERAK 325 For the Plaintiff : Mohamad Haziq Bin Mohamad Asman Advocates and Solicitors [Messrs Akram Hizri, Azad & 330 Azmir] Bangi, Selangor For the Defendant : Ma'arof Bin Abdul Karim Advocates and Solicitors 335 [Messrs Ma'arof & Co.] Teluk Intan, Perak Head notes: Distribution — Administration of estates — Small estate — Distribution by Land Administrator — Plaintiff’s suit to set aside 340 distribution order made under the Small Estates (Distribution) Act 1955, alleging fraud and omission by the Defendants. — The Defendants applied to strike out the writ under Order 18 rule 19(1) ROC 2012. — Whether the High Court has no original jurisdiction to invalidate a distribution order; the exclusive remedy lies in appeal 345 under section 29 of the 1955 Act. Citing Fatimah binti Mat Akir [1977] 1 MLJ 107 — Whether collateral challenges through fresh suits should be allowed when the Plaintiff and his family had knowledge of the distribution order since 2015, affirmed it in later proceedings, and yet failed to appeal. — Whether equity, laches, and estoppel further 350 barred the claim. — Whether the action was found to be jurisdictionally unsustainable, inequitable, and an abuse of process, and as such ought to be struck out to preserve finality and certainty in estate administration.