Janice Ng Wan Fong v 1. ) Ng Poh Lan (BA-22NCvC-434-10/2024)

NG POH LAN (No. K/P: 551203-08-5296)

FOONG PEK WEI (No. K/P: 720218-10-5506)

FOONG PEK SAN (No. K/P: 760903-10-5439)

HARTININGSIH (No. Passport: E6234346)

PAWS ANIMAL WELFARE SOCIETY (SUBANG BRANCH) … DEFENDANTS GROUNDS OF JUDGMENT

This is my decision on the Defendants’ application (Enclosure 5) to strike out the Plaintiff’s Writ of Summons and Statement of Claim under Order 18 Rule 19(1)(b) and (d) of the Rules of Court 2012. The 1st to 3rd Defendants seek to strike out the Plaintiff’s entire claim on grounds that: 17/11/2025 16:58:18 BA-22NCvC-434-10/2024 Kand. 28 i) the subject matter of the claim falls within the exclusive jurisdiction of the Syariah Court; and ii) the action is frivolous, vexatious and an abuse of the process of the court.

Having heard learned counsel for both parties and perused the written submissions including the Plaintiff’s Written Submission dated 17 February 2025, the Defendants’ Written Submissions dated the same date, and the Plaintiff’s Reply dated 3 March 2025, I dismissed Enclosure 5 with costs.

I now set out my reasons in full.

The material facts are largely not in dispute. The Plaintiff is the daughter of the late Ng Poh Li (“the Deceased”), who passed away on 30 December 2023. The Deceased left behind his wife, Lieow Siew Cheng, and two daughters, the Plaintiff and Janelle Ng Wan Mei (collectively, “the next of kin”).

The Deceased executed a Will dated 22 October 2019 (“the Impugned Will”), in which the next of kin were not named as beneficiaries. Instead, the Deceased appointed the 1st to 5th Defendants, including his siblings and an animal welfare organisation (PAWS), as the beneficiaries.

On 15 January 2024, the 1st Defendant obtained a Grant of Probate from this Court based on the Impugned Will. The Plaintiff and her mother, unaware of the application, subsequently filed their own application for Letters of Administration and later discovered the issuance of the Probate.

The Plaintiff contends that the Impugned Will is null and void, because the Deceased had converted to Islam on 3 September 2022 at Pertubuhan Al-Khaadem and was buried in an Islamic cemetery. She asserts that upon conversion, the Deceased’s estate must be distributed in accordance with Islamic law (faraid), and not pursuant to the 2019 Will executed prior to his conversion.

The Plaintiff therefore commenced this action to challenge the validity of the Probate, alleging concealment and misrepresentation by the 1st Defendant and seeking a declaration that the estate should be administered in accordance with Islamic law.

The Defendants applied to strike out the action, submitting that: i) The claim hinges entirely on whether the Deceased was a Muslim at the time of death, which under section 61(3)(b)(xi) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (“ARIE”) falls exclusively under the jurisdiction of the Syariah Court. ii) By virtue of Article 121(1A) of the Federal Constitution, the Civil High Court has no jurisdiction over any matter within the jurisdiction of the Syariah Courts. iii) Consequently, the Plaintiff’s claim is frivolous, vexatious, and an abuse of process, warranting summary dismissal.

The Plaintiff argues that: i) The issue before this Court is probate and administration, not a dispute over conversion. ii) The Deceased’s religious status is not in dispute, as it has been conclusively established through official documents namely, the Death Certificate issued by JPN, the HTAR Death Register, and the Burial Registration Form from Tanah Perkuburan Islam Kampung Pendamar. iii) This Court, as the Probate Court, possesses inherent jurisdiction under Order 72 of the Rules of Court 2012 to supervise probate matters, including revocation of grants obtained through concealment. iv) The Plaintiff’s case raises serious triable issues, and should not be summarily struck out.

The following issues arise for determination: i)Whether the Plaintiff’s claim falls within the exclusive jurisdiction of the Syariah Court; ii)Whether the claim discloses a reasonable cause of action under civil law; and iii)Whether this is a plain and obvious case that justifies the exercise of the Court’s power to strike out under Order 18 Rule 19(1).

The principles governing applications to strike out are settled. Under Order 18 Rule 19(1), the Court may strike out a pleading if it:

discloses no reasonable cause of action or defence;

is scandalous, frivolous, or vexatious;

may prejudice, embarrass, or delay the fair trial of the action; or

is otherwise an abuse of the process of the Court.

As laid down in Bandar Builder Sdn Bhd v United Malayan Banking Corp Bhd [1993] 4 CLJ 7, striking out is a drastic remedy and should be invoked only in plain and obvious cases. The Court must proceed cautiously and not embark on a detailed examination of evidence. If the pleadings disclose any reasonable question fit for trial, the matter should proceed to hearing.

Similarly, in Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6 MLJ 70 (CA), the Court of Appeal reaffirmed that the summary power to strike out should only be exercised when a claim is “obviously unsustainable.” Where complex factual or legal issues arise, the matter should not be summarily disposed of.

These authorities underscore the principle that the Court’s role at this stage is not to determine the merits, but merely to ascertain whether the Plaintiff’s pleadings disclose an arguable case. G. ISSUE 1 — WHETHER THE HIGH COURT HAS JURISDICTION

The Defendants rely heavily on section 61(3)(b)(xi) ARIE 2003, which provides that the Syariah High Court shall have jurisdiction over any proceeding seeking a declaration that a deceased person was a Muslim at the time of his death.

They also invoke Article 121(1A) of the Federal Constitution, which excludes civil court jurisdiction in matters within the purview of the Syariah Courts.

The Plaintiff, on the other hand, contends that her claim is not one seeking such a declaration, but rather a challenge to the validity of a probate grant and administration of an estate matters within the civil High Court’s probate jurisdiction.

I agree with the Plaintiff’s submission. The substance of the claim concerns whether the Defendants had concealed material facts (namely, the Deceased’s conversion to Islam) in obtaining a Grant of Probate. This falls squarely under the supervisory jurisdiction of the Probate Court pursuant to Order 72 ROC

2012.

It is trite that the nature of the cause of action, and not the mere presence of religious elements, determines jurisdiction. In Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 CLJ 253 (FC), the Federal Court held that the Syariah Court’s jurisdiction must be expressly conferred by statute, and cannot be implied.

The Federal Court in Rosliza Ibrahim v Kerajaan Negeri Selangor [2021] 2 MLJ 181 clarified that Syariah Court’s jurisdiction only arises when a person’s faith is the primary subject matter of the dispute. Where religion is incidental or collateral, the civil court retains jurisdiction.

Applying those principles here, the Plaintiff’s suit does not seek a determination of faith, but alleges fraudulent concealment in the procurement of a probate. The question of whether the Deceased was a Muslim is not a matter of doctrinal inquiry, but a question of fact supported by documentary evidence.

It follows that Article 121(1A) does not operate to oust this Court’s jurisdiction merely because the dispute involves a Muslim or a religious element. The claim remains within the realm of civil law specifically, probate and succession.

Upon evaluating all the documents tendered, I am satisfied that the deceased had unquestionably died as a Muslim. The death certificate, hospital records, and burial registration collectively establish that the deceased professed Islam at the time of his passing. H. ISSUE 2 — WHETHER THE CLAIM DISCLOSES A

The Statement of Claim pleads, inter alia, that: i) The Deceased converted to Islam in 2022; ii) The 1st Defendant knew of this conversion but failed to disclose it to the Court; iii) The Defendants obtained a probate based on a Will rendered invalid by the Deceased’s change of faith; and iv) The Plaintiff, as a Muslim heir, is entitled to a share of the estate according to Islamic inheritance law.

These allegations, if proven, amount to a clear cause of action under probate law namely, that a grant was obtained through non-disclosure or misrepresentation.

The law recognises that a Will executed prior to conversion may be invalidated by operation of Islamic law upon the testator’s conversion. The High Court in Re Ismail bin Awang (Deceased) (unreported, 1993) held that the conversion of a non-Muslim testator renders his prior Will inoperative, as succession thereafter is governed by Hukum Syarak.

The Plaintiff has produced prima facie documentary evidence including the death certificate, hospital records, and burial registration which demonstrate that the deceased was a Muslim at the time of death. This evidence cannot be disregarded and indeed the deceased had converted, and whether the Defendants had knowledge of such conversion, are questions of fact requiring evidence. These cannot be conclusively determined at the interlocutory stage.

Hence, the Plaintiff’s claim clearly raises triable issues fit for adjudication.

The Defendants allege that the Plaintiff’s claim is vexatious and intended to delay the administration of the estate.

However, the Plaintiff has tendered substantial documentary proof including the JPN Death Certificate, Police Verification Form, and Islamic burial records indicating that the Deceased was buried as a Muslim. These are public documents within the meaning of section 74 of the Evidence Act 1950, which carry presumptive evidentiary value.

Furthermore, the Plaintiff’s own conversion to Islam and her reliance on faraid rights establish locus standi to challenge the probate.

In Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 1 CLJ 285, the Court of Appeal held that the burden of proof lies on the party seeking to strike out to show that the claim is “manifestly unsustainable.” The Defendants have not discharged that burden.

The Plaintiff’s action cannot therefore be characterised as frivolous or vexatious. On the contrary, it raises legitimate questions concerning the validity of the probate and the proper distribution of the estate.

In Bandar Builder (supra), the Supreme Court cautioned that a claim should not be struck out merely because the prospects of success appear weak. Similarly, in Sivakumar (supra), the Court of Appeal held that as long as the pleadings disclose some cause of action or question fit for trial, the matter must proceed.

The High Court in Kelana Megah Development Sdn Bhd v Kerajaan Negeri Johor [2016] MLJU 1649 emphasised that where findings of fact are required, the case should proceed to trial with viva voce evidence and cross-examination.

The Defendants also rely on Latifah Mat Zin, Rosliza Ibrahim, and Indira Gandhi Mutho v Pengarah JAIP [2018] 3 CLJ 145 to argue that civil courts have no jurisdiction in matters of religion. However, these cases are distinguishable. Each involved either conversion disputes or religious status declarations.

Here, the Plaintiff does not seek a declaration of conversion or contest the validity of any Islamic act. Rather, she asserts a probate irregularity within the domain of civil law. The question of the Deceased’s religion is only incidental, supported by official civil documents, and not subject to religious adjudication.

The Plaintiff’s claim is therefore properly maintainable in this Court.

The dual legal system in Malaysia requires the courts to maintain harmonious jurisdictional boundaries between civil and Syariah courts. While Article 121(1A) protects the autonomy of Syariah institutions, it does not strip the civil courts of their constitutional role in areas reserved to them, including probate, succession, and estate administration.

As recognised by the Federal Court in Subashini Rajasingam v Saravanan Thangathoray [2008] 2 MLJ 147, jurisdiction must be determined based on the relief sought, not merely on the identity or religion of the parties.

Accepting the Defendants’ argument would effectively bar any civil remedy for a Muslim convert’s heirs where a Will was executed before conversion an outcome inconsistent with justice and equity.

The civil courts remain the proper forum to supervise probate grants and to ensure that estates are administered lawfully and honestly, regardless of religious considerations.

Having considered all submissions and authorities, I make the following findings: i) The Plaintiff’s claim, although connected to matters of religion, falls primarily under the civil jurisdiction of this Court relating to probate and administration of estates. ii) The Plaintiff has adduced documentary evidence indicating that the Deceased died a Muslim. iii) The Plaintiff’s pleadings disclose a reasonable and arguable cause of action involving alleged concealment, fraud, and misrepresentation in obtaining probate. iv) The case raises serious triable issues which require oral evidence and cross-examination, and hence cannot be summarily dismissed under O.18 r.19. v) The Defendants have not shown that the Plaintiff’s action is frivolous, vexatious, or an abuse of process.

The Plaintiff’s suit raises legitimate and substantial issues of law and fact that warrant a full trial. It is not a plain and obvious case for striking out.

Accordingly, the Defendants’ application in Enclosure 5 is dismissed with costs. The matter shall proceed to case management for trial directions.

Before parting with this matter, I note that the intersection of civil and Syariah jurisdictions in estate matters remains delicate. Each system must operate within its constitutional limits while ensuring that justice is done. This Court’s decision does not encroach upon Syariah jurisdiction; rather, it affirms that the civil courts retain supervisory powers over probate matters where fraud or concealment is alleged.

The claim shall therefore proceed to trial for determination of the following key factual issues: i) Whether the Defendants were aware of the deceased conversion; and ii) Whether the Grant of Probate was procured through material non-disclosure or misrepresentation.

These questions must be determined after full evidentiary hearing, not summarily. Dated this 05 November 2025 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Plaintiff : Ms. Vasanthi (Ms. Nooradila binti Abdul Aziz and Ms. Danshana with her) Tetuan Adila Aziz & Associates Counsel for Defendant : Mr. Iqbal Harith Liang bin Danial Liang Tetuan Fahri, Azzat & Co