Lai Siew Kien v Solid Invention Sdn Bhd & 5 Lagi (B-02(IM)(NCVC)-2486-12/2018)

SOLID INVENTION SDN BHD … RESPONDENTS [COMPANY NO. 860237-M]

LAI KIM FONG [NRIC NO. 690721-10-5621]

LAI KIM LING [NRIC NO. 760206-14-5603]

LAI KIM LOONG [NRIC NO. 650115-10-7241]

LIM KUAN SEK [NRIC NO. 340515-05-5096] (As the Executrix and Trustee of the

LAI MAH LEE [NRIC NO. 590424-10-6638] [IN THE HIGH COURT IN MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA APPEAL NO.: BA-22NCVC-437-08/2016 2 BETWEEN SOLID INVENTION SDN BHD ... PLAINTIFF [COMPANY NO. 860237-M]

LAI KIM FONG [NRIC NO. 690721-10-5621]

LAI KIM LING [NRIC NO. 760206-14-5603]

LAI KIM LOONG [NRIC NO. 650115-10-7241]

LIM KUAN SEK [NRIC NO. 340515-05-5096] (As the Executrix and Trustee of the

LAI MAH LEE [NRIC NO. 590424-10-6638]

LAI SIEW KIEN … DEFENDANTS [NRIC NO. 610529-10-6568] Coram: Hamid Sultan bin Abu Backer, JCA Umi Kalthum binti Abdul Majid, JCA Mohamad Zabidin bin Mohd Diah, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of the Court) 3 GROUNDS OF JUDGMENT [1] The appellant/6th defendant who is one of the beneficiaries of a will by the deceased father, Lai Pin Jam, appeals against the decision of the learned High Court judge who had allowed the suit of the purchaser/plaintiff for specific performance of a sale and purchase agreement of the disputed property for RM6,515,739.42 as the purchase price. [2] The central debate in this case is whether the beneficiary’s consent must be obtained and the plaintiff’s position from the beginning is that consent need not be obtained by the executrix / 4th defendant to dispose of a property under the will. Skeletal Facts [3] In our own words, the skeletal facts of the case can be summarized as follows:-

The 1st to 3rd defendants are siblings and co-owners of the property in dispute;

The deceased is the uncle of the 1st to 3rd defendants;

The 4th defendant is the wife of the deceased and mother of 5th and 6th defendants who are the beneficiaries of the deceased’s will. 4

At all material times, the 6th defendant did not consent to the sale of the property to the plaintiff. This was also the position of the 5th defendant. However, at a late stage, the 5th defendant had also consented, but not the 6th defendant.

The 1st to 4th defendants had entered with a Sale and Purchase Agreement to sell the property to the plaintiff. In the Sale and Purchase Agreement, the parties were aware that an order of court may be necessary and the plaintiff had placed a stipulation in the Sale and Purchase Agreement that consent must be obtained. The relevant clause 2.1 of the Sale and Purchase Agreement reads as follows:- “2. CONDITIONS PRECEDENT “2.1 The parties hereby agreed that the sale and purchase of the said Property shall be subjected to and conditional upon the Second Vendor at their own cost and expenses, obtaining the necessary court order for sale of the said Property in favour of the Purchaser in lieu of the transfer of the said Property to beneficiaries of the estate of the late LAI PIN JAM @ LAI YAM (hereinafter referred to as "the Order for Sale") within Six (6) months from the date of this Agreement (hereinafter referred to as "the Conditional Period") or such extended period as may be granted by the Purchaser.”

The plaintiffs paid the relevant deposit sums under the Sale and Purchase Agreement and executed it and sent it to the 4th defendant’s solicitor. The 4th defendant’s solicitor replied stating that they are unable to proceed with the sale as the 5th and 6th 5 defendants, i.e. the beneficiaries, had refused to agree with the sale.

The 1st to the 3rd defendants were ready to proceed with the sale, but subsequently took the position that they wanted to terminate and returned the deposits.

The plaintiff had filed a suit No. 536 against the 1st to 4th defendants which was subsequently settled by a consent judgment. The 6th defendant was not a party to the consent judgment.

The 6th defendant, to protect the interest in the land, had filed a caveat.

The plaintiff and the 1st to 4th defendants have executed a sale and purchase agreement as per the consent judgment.

Notwithstanding the execution of the Sale and Purchase Agreement by consent, the 4th defendant had made an ex-parte application to the court to validate and sanction the sale and purchase Agreement. The High Court quite vigilantly had directed the 4th defendant to file affidavit evidencing the 5th and 6th defendants’ consent to the sale. The request by the 4th defendant to dispense with the consent was rejected by the court. 6

The 4th defendant withdrew the application for validation and/or sanction; and subsequently upon various correspondence between the plaintiff and the 1st to 4th defendants, it became clear that the 1st to 4th defendants will not proceed with the Sale and Purchase Agreement.

It is not in dispute that at all material time, the plaintiff’s position was that they have a right to waive clause 2.1 of the Sale and Purchase Agreement which was not in their favour and in addition the law does not require the 5th and 6th defendants’ consent.

The plaintiff proceeded to file the action for specific performance relief but this time naming not only the 1st to 4th defendants but the beneficiaries as well. In Suit No. ‘536’, the 5th and 6th defendants were not parties.

The 1st to 6th defendant’s defence in principle was court sanction must be obtained from the beneficiaries of the sale and purchase agreement.

Before the trial, the 1st to 5th defendants agreed to complete the Sale and Purchase Agreement; and the only issue before the court was whether the 6th defendant’s consent is necessary to complete the Sale and Purchase Agreement. [4] In the instant case, the learned judge had framed the issues to be tried based on the plaintiff’s submission that there are two issues for 7 determination. The learned judge had framed the issues to be tried as follows:- “[21] Given the above, I agree with submissions of counsel for the Plaintiff, that there were essentially only two life issues for determination, which are:

Whether Clause 2.1 of the SPA is legally necessary and required for the completion of the sale and transfer of the Property to the Plaintiff?

If so, whether the 6th Defendant had expressly or impliedly consented to the sale of the Property and/or whether she is estopped from denying or from refusing her consent to the sale of the Property?” [5] Looking at the pleadings and the dispute between the parties, the only issue of law which need to be determined is whether consent of the beneficiary is needed to sell the property of the deceased where the deceased had specifically bequeathed the property to the beneficiaries. General Principles of Probate and Letters of Administration [6] The subject on wills and probate have its own specific jurisprudence and it is also specifically mentioned in section 24(f) of the Courts of Judicature Act 1964 (CJA 1964) which reads as follows:- “24. Without prejudice to the generality of section 23 the civil jurisdiction of the High Court shall include —

jurisdiction to grant probates of wills and testaments and letters of administration of the estates of deceased persons leaving property 8 within the territorial jurisdiction of the Court and to alter or revoke such grants.” [7] The executor and/or executrix are legally bound to give effect to the intention of the testator. In cases where it is not possible to act as per the direction of the testator’s instruction, the Probate and Administration Act 1959 (PAA 1959) provides some direction and relief. The Trust Act 1949 may also apply when the executor and/or executrix had obtained probate. [8] Whether there is a requirement to obtain consent or order of court under PAA 1959 for the executor and/or executrix (as opposed to the Administrator) to sell the property in normal circumstances - it may not be necessary. However, when there is a dispute as in this case by the vendor itself and the purchaser having in a way agreed to obtain court’s approval, it may be prudent to obtain court’s sanction. The CJA 1964, under the “Additional Powers of Court” in the Schedule allows for such disputes to be settled by way of court order. [See Schedule – Additional Powers of High Court, clause 3 – “Power to direct a sale instead of partition in any action for partition of land; and in any cause or matter relating to land, where it appears necessary or expedient, to order the land or any part thereof to be sold, and to give all necessary and consequential directions”]. [9] In the instant case, the Additional Powers provision was not placed before the High Court and/or Court of Appeal. The section in which the learned judge had relied on were sections 60(3) and 60(4) of PAA 1959 which reads as follows:- 9 “(3) A personal representative may charge, mortgage or otherwise dispose of all or any property vested in him, as he may think proper, subject to any restriction which may be imposed in this behalf by the will of the deceased, and subject to this section: Provided that an executor may dispose of any property notwithstanding any restriction so imposed, if he does so in accordance with an order of the Court.

An administrator may not, without the previous permission of the Court—

mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property situate in any State and for the time being vested in him; or

lease any such property for a term exceeding five years.” [10] It must be noted that section 60(3) read as a whole does not give absolute discretion to the personal representative to deal with assets arbitrarily and where there is a dispute the common sense prudent approach as per rule of law is to get direction from the court. [11] The learned judge had relied on the following cases, namely:- (1) Ong Thye Peng v Loo Choo Teng & Ors [2008] 4 MLJ 31; (2) Re: Estate of Teoh Cheow Choon; Ex parte: Khor Hong Luang [1994] 4 CLJ 575; (3) Lee Ah Ngan & 1 lagi Iwn Lee Kow [1995] 2 CLJ 51; (4) Balbosa v Ayoub AH [1990] 37 WIR 447; (5) T Sivam Tharamalingam v Public Bank Berhad [2018] 6 CLJ 1; (6) Tradium Sdn Bhd v Zain Azahari bin Zainal Abidin[1995] 1 MLJ 669;

Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd 10 [1995] 3 MLJ 331; (8) Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202. [12] The Memorandum of Appeal of the appellant reads as follows:- “1. The learned Judge erred in law and/or in fact in holding that Lai Pin Jam @ Lai Yam, the deceased, ('Testator') had not imposed any restriction on the power of the 5th Respondent to sell or dispose of the Testator's legal title or interest in the land held under Geran 27629, Lot 1379, Mukim Semenyih, Daerah Ulu Langat, Negeri Selangor ('Subject Property');

The learned Judge erred in law and/or in fact in holding that clause no. 4 of the Last Will and Testament of the Testator dated 5.12.2013 ('Will') applies to the Subject Property;

The learned Judge erred in law and/or in fact in holding that Clause 2.1 of the Sale and Purchase Agreement dated 10.9.2015 ('SPA') is capable being waived by the 1st Respondent;

The learned Judge erred in law and/or in fact in finding that the Appellant and the 6th Respondent consented to the sale of the Subject Property to the 1 Respondent when the 5th Respondent entered into a consent judgment with the 1st Respondent on 2.9.2015 ('1st Consent Judgment');

The learned Judge erred in law and/or in fact in finding that the Appellant and the 6lh Respondent had consented to or authorized the 5th Respondent to enter into the 1st Consent Judgment;

In arriving at his finding that the Appellant and the 6th Respondent had consented to the sale of the Subject Property, the learned Judge erred in 11 law and/or in fact by failing to consider that the legal and/or evidential burden of Proof remains with the 1st Respondent;

In arriving at his finding that the Appellant and the 6th Respondent had consented to or authorized the 5th Respondent to enter into the 1st Consent Judgment, the learned Judge erred in law and/or in fact by failing to consider that the legal and/or evidential burden of proof remains with the 1st

The learned Judge erred in law and/or in fact in holding that the Appellant and the 6th Respondent are estopped from denying that they had consented to the sale of the Subject Property;

The learned Judge erred in law and/or in fact in treating the consent judgment entered into by the 5th and 6th Respondents on 17.8.2018 (2nd Consent Judgment) as evidence of the factual basis giving rise to estoppel on the part of the Appellant and the 61'1 Respondent or as evidence of consent to the sale of the Subject Property;

The learned Judge erred in law and/or in fact in ordering that the SPA be rectified by deleting and/or cancelling the whole of Clause 2 of the SPA;

In arriving at his decision to allow the SPA to be rectified by deleting and/or cancelling the whole of Clause 2 of the SPA, the learned Judge had erred in law and in fact by failing to determine whether Clause 2 is contrary to the intention of the parties of the SPA and/or failing to consider that the legal and/or evidential burden of proof that Clause 2 is contrary to the intention of the parties of the SPA remains with the 1st Respondent;

In arriving at his decision that the consent of the Appellant and the 6th Respondent is no longer necessary, the learned Judge erred in law and/or 12 in fact in failing to consider that the 5th Respondent is also a trustee of the Appellant and the 6th Respondent in respect of the Subject Property; and

The learned Judge erred in law and/or in fact in decreeing specific performance against the Appellant and the 6th Respondent who is not a party to the SPA.” [13] The learned counsel for the appellant says – “(a) the condition precedent in clause 2.1 is a legal necessity and subsists;

clause 2.1 is necessary as the testator had imposed an implied restriction in the form of the specific device or bequeath onto the executrix (4th defendant) power of disposal;

clause 2.1 on the facts cannot be unilaterally waived by the respondent and it also benefits the 4th defendant who is a bare trustee of the 5th and 6th defendants from being liable for breach of trust;

the appellant and the 6th respondent are not party to the sale and purchase agreement and/or consent judgment.” [14] The plaintiffs claim as summarized in the writ reads as follows:- “(1) a declaration that the Consent Judgment and/or the Sale of the Property and/or the SPA by the Defendants to the Plaintiff subsists and is binding and effective between the parties;

a declaration that Clause 2 of the SPA requiring the 4th Defendant to obtain a court order for the sale of the Property is legally unnecessary and for an 13 order that the said SPA be rectified by deleting and/or cancelling the said Clause 2;

further and/or In the alternative, a declaration that the Plaintiff Is entitled to waive Clause 2 of the SPA requiring the Defendant to obtain a court order for the sale of the Property and that the Plaintiff has waived the said Clause 2;

further and/or In the alternative, a declaration that the 5th and 6th Defendants had expressly and/or Impliedly consented to the Sale of the Property and for an order pursuant to section 60 of the Probate and Administration Act 1959 validating the Sale of the Properly and/or the SPA;

an order that the Defendants do specifically perform the terms of the Consent Judgment end/or the Sale of the Properly and/or the SPA together with all necessary and consequential directions and inquiries;

an order that In the event of any default on the part of the 1st to 6th Defendants or any of them in executing any documents required In respect of prayers (1) to (5) above, the Deputy Registrar or Senior Assistant Registrar of the High Court shall execute such documents on behalf of the said 1st to 6th Defendants or any of them;

damages to be assessed and paid by the Defendants or any one or more of them jointly and/or severally to the Plaintiff;

exemplary damages be assessed and paid by the 4th to 6th Defendants or any one or more of them jointly and or severally to the Plaintiff; 14

interest on such damages as awarded at the rate of 5% per annum for such period as deemed fit and proper by this Honourable Court until the date of full settlement of the damages awarded;

an order that the caveats entered on the Properly by the 5th and 6th Defendants with the Selangor Registrar of Titles on 12.11.2014 through Presentation No. 66304/2014 be cancelled and that the Registrar of Titles and/or Land Administrator of Selangor do forthwith after being served a copy of the Order In this action make a note in the Register Document of Title of the cancellation of those caveats;

an order that the Plaintiff's private caveat lodged on the Property vide Presentation No, 70408/2012 be extended and maintained until completion of the transfer and/or registration of the Property to the Plaintiff;

an order that the parties be at liberty to apply;

costs; and

such further and/or other relief be given as deemed fit and proper by this Honourable Court.” [15] To save court’s time, the grounds of judgment as placed before us in a rudimentary manner read as follows:- “BRIEF FACTS OF THE CASE

The Defendants are related to one another, with: a) the 1st to 3rd Defendants being siblings; b) the 4th Defendant being:

an aunt to the 1st to 3rd Defendants; and 15

(ii) the mother of the 5th and 6th Defendants.

The Plaintiff, a private limited company is unrelated to the Defendants.

The 1st to 3rd Defendants are co-proprietors of a half share of the land known as Lot 1379, Mukim Semenyih, Daerah Hulu Langat, Selangor, held under Geran No. 27629 ("Property"). The other half share of the Property is registered in the name of Lai Pin Jam @ Lai Yam, deceased ("Deceased") who is the father of the 5th and 6th Defendants, and the late husband of the 4th Defendant.

The Deceased, by his Last Will and Testament dated 5.12.2013, had: a) appointed the 4th Defendant as executrix and trustee of his estate; and b) gave, devised and bequeathed his half share of the Property to 5th and 6th Defendants in equal shares.

The Deceased, passed away on 29.5.2007, and on 30.9.2009 Probate was granted on the Will in favour of the 4th Defendant as the executrix and trustee of the estate.

Sometime in 2012, the 1st to 3rd Defendants, and the 4th Defendant as executrix and trustee of the estate of the Deceased, agreed to sell their respective half ownership of the Property to the Plaintiff at the price of RM6,515,739.42. At all times, during negotiations and settling the terms of the Sale and Purchase Agreement ("SPA"), the Plaintiff as purchaser, and the 1st to 4th Defendants as vendors, were represented by solicitors.

The 4th Defendant's solicitors Messrs LMA vide an undated letter confirmed to the Plaintiff's solicitors Messrs KWC that the 4th Defendant "agrees with the terms of the draft Sale and Purchase Agreement (dated 6.12.2012)" and 16 asked Messrs KWC to proceed with the fairing and execution of the SPA by all parties.

The Plaintiff as purchaser executed the SPA, and in fulfilment of its obligations under clause 1.1, made all necessary payments to the relevant parties. However, on or about 24.12.2012, Messrs LMA, the solicitors for the 4th Defendant, informed Messrs KWC, the Plaintiff's solicitors, that after "much consideration and discussion with the (5th and 6th Defendants)" the 4th Defendant was "unable to proceed with the sale" and returned the SPAs without executing the same.

The Plaintiff vide its solicitors letter dated 26.12.2012 asserted that the position taken by the 4th Defendant was untenable in law as the terms of the SPA have been agreed by all parties and for all intent and purposes the sale contract has been concluded, and that the execution of the SPA was a mere formality. The Plaintiff demanded that the 4th Defendant execute the SPA and gave notice to the 4th Defendant that failure to execute the terms of the SPA would be a repudiation of sale contract. The 4th Defendant did not accede to that demand.

The 1st to 3rd Defendants at first took the position that there was a concluded sale contract between the parties and informed the Plaintiff's solicitors that they were ready, able and willing to execute the SPA and perform its terms. However, separately, on or about 7.5.2013, the 1st to 3rd Defendants attempted to repudiate the sale by returning to the Plaintiff the payment of the earnest deposit and the 1st to 3rd Defendants' half share of the balance deposit that the Plaintiff had paid earlier. 17

The Plaintiff then instituted a civil action in the High Court Shah Alam vide Civil Suit No. NCVC-536-08/2013 ("Suit 536") against the 1st to 4th Defendants in respect of their refusal to complete the sale of the Property and sought inter alia an order of specific performance of the SPA.

On or about 2.9.2015, the Plaintiff and the 1st to 4th Defendants entered into and recorded a consent judgment in respect of Suit 536 ("Consent Judgment"), pursuant to which: a) all parties to Suit 536 must sign and perform the SPA and all relevant documents on or before 11.9.2015; b) all parties to Suit 536 will proceed to perform their respective duties under the terms of the SPA; and c) the Plaintiff shall make an ex gratia payment of RM250,000.00 to the 1st, 2nd and 3rd Defendants, and a sum of RM50,000.00 to the 4th Defendant, which payment shall be made to Messrs KWC as stakeholders pending completion of the SPA.

On or about 10.9.2015, the Plaintiff, the 1st, 2nd, 3rd and 4th Defendants, executed the SPA. The Plaintiff once again fulfilled all its obligations under the Consent Judgment and made payment of the ex-gratia sums.

On or about 8.10.2015, the 4th Defendant made an ex-parte application to the High Court for an order to validate/sanction the SPA.

The Plaintiff, however, took a contrary stand and contended that there was no requirement in law for the Court's consent to the sale of the Property.

The 1st to 4th Defendants evinced an intention not to proceed with the SPA. The Plaintiff construed this refusal to be a breach of the Consent Judgment and also repudiation of the SPA by the 1st to 4th Defendants. Accordingly, the Plaintiff gave notice of repudiation to the solicitors of the 1st to 3rd 18 Defendants and to the solicitors of the 4th Defendant and then proceeded to file the present action.

The Plaintiff's action is for breach of contract and seeks inter alia an order for specific performance of the SPA in accordance to the terms of the SPA and the Consent Judgment.

However, just prior to commencement of trial, the 4th and 5th Defendants entered into another Consent Judgment with the Plaintiff, where the 4th and 5th Defendants in essence agreed to abide by the SPA and previous Consent Judgment and thus, effectively consented to the sale of the Property to the Plaintiff.

On the first day of trial, counsel for the 1st to 3rd Defendants clarified that her clients were always ready and willing to proceed with SPA, and that the issue of consent and Clause 2.1 is contractually a matter only between the Plaintiff and 4th to 6th Defendants arid does not concern her clients.

Hence, in essence only the 6th Defendant held out against the Plaintiff's claim. The 6th Defendant chose not to compromise her pleaded defence and wished to proceed with trial.

The 1st issue - Whether the 6th Defendant's consent is required? • The HCJ found that on the facts and the law, the 4th Defendant as executrix of the Will does not have to procure the consent of the 5th and 6th Defendants, i.e. the beneficiaries of Property under the Will, in order to enter into the SPA and to sell the Property. There is no requirement in the Will for the executrix to obtain such consent. 19 • The HCJ found that there are no such restrictions in the Will that would curb her powers of disposal. And therefore, under S. 60(3) of the PAA there is no need to procure an order of court to sanction the sale. • Hence, the stipulation in the SPA that the 4th Defendant shall obtain the "necessary court order for the sale of the Property" is superfluous and unnecessary. Thus, the HCJ found Clause 2.1 of the SPA that requires a court order for the sale transaction in the SPA is unnecessary and/or inoperable, and declare it to be so.

Waiver by the Plaintiff • In any event, a condition such as in Clause 2.1, which was inserted for the benefit of the Plaintiff/purchaser, in abundance of caution, may be waived by the Plaintiff/purchaser, and the facts show that the Plaintiff did waive that condition.

5th and 6th Defendant's implied consent by conduct and estoppel • The HCJ also found that the 4th Defendant, as executrix, had authority to enter into the Consent Judgment dated 2.9.2015 in the Suit No. 536 for the specific performance of the SPA (which was entered in the notable presence of the 5th Defendant), and that the said Consent Judgment is binding on the 5th and 6th Defendants, as both of them had knowingly left it to the 4th Defendant to deal with their solicitors and to instruct the solicitors. • The HCJ agreed with the Plaintiff that the clear effect and/or implication of the 4th Defendant entering into the Consent Judgment is that the 5th and 6th Defendants no longer objected to the SPA but had instead consented to the sale of the Property to the Plaintiff upon 20 the terms in the SPA and the added terms in the Consent Judgment. Hence, both the 5th and 6th Defendants would be estopped from denying that they had consented to the sale of the Property. The subsequent conduct of the 4th and 5th Defendants in entering into the second Consent Judgment on 17.8.2018, just a few days before trial, is evidence of this fact.

6th Defendant's knowledge and agreement by conduct • 6th Defendant had knowledge of the sale transaction and had by her conduct agreed to the sale. • Firstly, the 6th Defendant had at all material times knowledge and was well aware of the sale of the Property to the Plaintiff, both through the SPA and the then ongoing Suit 536. • Secondly, the 6th Defendant testified that at the material time, she never informed the Plaintiff directly that she did not want to sell the Property. • Thirdly, the 6th Defendant was agreeable to the terms of the Consent Judgment. The 4th Defendant in entering the Consent Judgment had represented to the Plaintiff that the 6th Defendant's consent to the SPA had been obtained or will be forthcoming. Hence, the 6th Defendant will in law be estopped from denying that she had consented to the sale of the Property and/or from refusing her consent to the sale.

Judgment for the Plaintiff • Judgment was entered for the Plaintiff against the 1st, 2nd, 3rd and 6th Defendants and order in terms of prayers (1), (2), (3), (4), (5), (6),

(9), (10), (11), (12) and (13) of paragraph 43 of the Amended Statement of Claim was granted with an order for costs as follows : 21 a) the sum of RM25,000.00 to the Plaintiff to be borne and paid by the 1st to 3rd Defendants; b) the sum of RM35,000.00 to the Plaintiff to be borne and paid by the 6th Defendants. • The Court further ordered that the cost awarded are to be deducted from the balance purchase price payable by the Plaintiff to the respective Defendants.

Defendant's claim for Indemnity and Contribution • As for the 1st to 3rd Defendants' claim for indemnity and contribution against 4th to 6th Defendants, the HCJ found that there is no basis in law or in fact for such an order to be made. • As for 6th Defendant's claim for indemnity and contribution against the 1st to 3rd Defendants, the HCJ also found that there is no basis in law or in fact for such an order to be made. • Hence, the HCJ dismissed both Notices for Indemnity and Contribution without any order for cost.” Preliminary View on Section 60(3) of PAA 1959 [16] Section 60(3) gives wide powers to the personal representative, in this case for the 4th defendant to deal with the property with a caveat subject to any restriction which may be imposed in the will. Even if there is a restriction, it can be disposed of by order of court. 22 [17] Restriction here plainly means the right to dispose. The Deceased had specifically instructed the property to be given to the 5th and 6th defendants. That part of the will reads as follows:- “3. I GIVE, DEVISE AND BEQUEATH the following properties:- A) my one third (1/3) share of my double storey terrace house held under individual title Nos. Hakmilik 330 and Hakmilik 388, Lot 35501 and 35561, both in the Mukim and District of Kuala Lumpur, State of Wilayah Persekutuan bearing address No. 47, Jalan Telok Pulai, Bukit Seputeh, 58000 Kuala Lumpur to my wife LIM KUAN SEK (f); B) in the event that my wife predeceases me, then my share In item (A) above shall be given to my youngest daughter, LAI SIEW LEE; and C) my half share of the land held under Geran No. 27629, Lot 1379, Mukim of Semenyih, District of Ulu Langat, State of Selangor Darul Ehsan to my two daughters, LAI MAN LEE and LAI SIEW KlEN in equal quarter (1/4) shares.

I, GIVE, DEVISE AND BEQUEATH all my real and personal estate whatsoever and wheresoever situate and not hereby or by any codicil hereto otherwise disposed of unto my Trustee upon trust to retain, sell, call in or convert the same into money with power to postpone such sale, calling In or conversion without being liable for any loss occasioned thereby and out of the proceeds thereof and any ready monies comprised in my estate to pay my just debts, funeral and testamentary expenses and to stand possessed of the residue of such monies and of any property comprised in my estate for the time being remaining unconverted (hereinafter called "my residue estate") to my wife, LIM KUAN SEK absolutely.” 23 [18] The learned judge had relied on the Federal Court’s case of Ong Thye Peng v. Loo Choo Teng & Ors [2008] 4 MLJ 31. However, that case attempts to be in favour of the appellant. In that case, Augustine Paul FCJ, at page 52, paragraph [28] had said:- “… Under s 60(3) of the 1959 Act the property of a person who dies testate may be disposed of in any manner the executor may think proper subject to the imposition of any restriction by the will of the deceased. In that event the executor may still do so in accordance with an order of the court. …” [19] Our preliminary understanding of section 60(3) of the PAA and the quote of Augustine Paul FCJ is that the executor has wide powers of disposal provided that there is no restriction to whom the property in the will should go, etc. Even if there is a restriction, a court order may be secured to deal with the property otherwise stated in the will. [20] Thus, the real question is whether the word “Give, Devise, And Bequeath’ the following properties in clause 3 of the will, is it not a restriction in the will related to the property? In our view, it is a restriction in terms of executor’s power in disposing the estate of the deceased. The power is limited to carry out the last wishes of a testator, i.e. the will. It is a coercive act and in line with breach of fiduciary duty jurisprudence for the executor to act without the consent of the beneficiaries. Clause 2.1 was not inserted for benefit of the purchaser/plaintiff alone, it was there to protect the beneficiaries as well. It is not for the plaintiff to unilaterally waive Clause 2.1 of the SPA, after having acknowledged that rights in the SPA. 24 [21] The consent judgment or whatever act of the executrix cannot be said to be binding on the beneficiaries unless the executrix has sufficient powers to do so. In this case, the last wishes of the testator was to bequeath the property to his children, nothing in the will had empowered the executrix to sell the property to the 3rd party. The executrix’s power to sell was excluded by the will that says, “… not hereby or by any codicil hereto”. [22] When there is a strong objection by the beneficiaries to the SPA, in this case the caveat, and in the absence of the express agreement/consent, the court should not have taken the “agreement to sell” was by conduct. The evidence is obvious that the beneficiaries objected to the SPA. Hence, the conduct approach as inferred by the learned judge is only an inference contrary to the existing evidence. [23] It must be noted that the plaintiffs’ prayers are all declaratory in nature and extremely oppressive against the 6th defendant as beneficiary of the estate. In addition, the declaratory prayers being discretionary in nature, the court will be slow in granting it if proper steps are not taken to seek direction of the court and on the facts of the case. A declaratory order is not available to an individual who has committed a wrong and thereafter sought to regularise such wrong, or one who has taken a step to assert his rights. Thus, where the cause of action is clearly related to a breach of contract, an application for a declaration is inappropriate. [See KNK Development Sdn Bhd & Ors v. Sumbangan Aneka Sdn Bhd [2019] 10 CLJ 822]. It is trite that the declaratory relief are discretionary relief. If the court finds it will be unjust on the facts and circumstances to grant the declaration it may refuse the 25 declaration. [See Ahmad Nazrin Abd Halim & Anor v. Allianz General Insurance Company (M) Bhd. [2015] 9 CLJ 821 CA]. [24] We find merit in the appellant’s submission. In essence, the last wishes of the testator must be honoured unless it is not possible at all. This is a proper case for us to exercise appellate intervention. The appeal is allowed with costs for here and below. The High Court order is hereby set aside. We consequently order the suit No. BA-22NCVC-437-08/2016 be dismissed with costs. We hereby order so. Dated: 9th July, 2020 SGD (DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. Note: Grounds of judgment subject to correction of error and editorial adjustment, etc. 26 For Appellant: Ms Praveena Karunamoorthy [with Ms Aneera Chowdhury] Messrs. Karunamoorthy & Associates Advocates & Solicitors D6-3A-10, Level 3A, D6 @ Sentul East 801, Jalan Sentul 51000 Kuala Lumpur. [Ref: 207.18/DB/LIT/JLSK] For 1st Respondent: Mr. Conrad Young [with Mr. Tan Shang Neng] Messrs. Sreenevasan Young Advocates & Solicitors J-3A-13, Solaris Mon’t Kiara No. 2, Jalan Solaris 50480 Kuala Lumpur. [Ref: SY.1333.18] For 2nd to 4th Respondents: (Self Represented) For 5th Respondent: Messrs. James Wong For 6th Respondent: