(ii) of Order 15 rule 6(2)(b) ROC 2012. 15 16 [20] The test for granting leave to intervene is to see whether the 17 person’s ‘legal interest’ and not merely his commercial’ interest would be 18 affected. The test was clearly explained by the Federal Court in Sistem 19 Penyiaran Trafik KL Barat Sdn Bhd v Kenny Heights Development 20 Sdn Bhd & Anor [2009] 3 MLJ 809 at p.819 as follows: 21 22 “With particular reference to O. 15 r. 6(2)(b)(i) or (ii), the test for the grant 23 or refusal of leave to intervene is whether a person's 'legal interest', and 24 not merely his commercial interest, would be affected. The question 25 is: will a person's rights against or liabilities to any party to the 26 action in respect of the subject matter of the action be directly 27 affected by an order which may be made in the action. [Emphasis 28 added]” 29 30 S/N aWoj7rQmhUO/KziQQnWk3g [21] As to what encompasses ‘legal rights’ was expanded in the case of 1 Hong Leong Bank Bhd (formerly known as Hong Leong Finance Bhd 2 v Staghorn Sdn Bhd and other appeals [2008] 2 CLJ 121. It held: 3 4 “The provision categorically states that at that early stage, all that the 5 applicant has to do is to show by way of affidavit that 'there may exist 6 a question or issue arising out of or relating to or connected with 7 any relief or remedy claimed in the cause or matter which in the 8 opinion of the court it would be just and convenient to determine 9 as between him and that party as well as between the parties to the 10 cause or matter.' The court decides whether or not to exercise the 11 discretion to allow or not to allow him to intervene based on affidavit 12 evidence alone, because the evidence has not been adduced since the 13 trial has not started.". 14 15 [22] The Proposed Intervener has contended that she has a legitimate 16 interest directly related to the subject matter in this proceedings stating 17 that any decision made in this proceedings will directly and/or affect her 18 rights and interests including but not limited to legal and proprietary rights 19 and her claim filed in the Klang Sessions Court against the 1st Respondent 20 for the jewellery. 21 22 [23] She also contended that leave ought to be granted to her to 23 intervene in the interest of justice and fairness and to enable all matters 24 raised to be determined with her as a party. 25 26 [24] The 1st Respondent disagrees and has argued that the Proposed 27 Intervener has no legal interest in the subject matter of the divorce 28 proceedings in relation to the issue of jewellery that is pleaded in 29 paragraph 33(t) of the Re-Amended Cross Petition (Encl 129). The 1st 30 S/N aWoj7rQmhUO/KziQQnWk3g Respondent has pointed out that the jewellery belonged to and was 1 owned by the deceased, not the Proposed Intervener. 2 3 [25] I find merit in the 1st Respondent’s contentions as I am of the view 4 that any order that will be determined by this Court in the dispute of the 5 jewellery will not directly affect the Proposed Intervener as the Proposed 6 Intervener has averred in her Affidavit in Support via Paragraphs 6, 7 and 7 8 that “According to the Deceased’s wish, the Proposed Intervener had 8 agreed to give the jewellery to the Petitioner and by Petitioner’s request, 9 the Proposed Intervener had kept the jewellery on his behalf”. Keeping in 10 mind the purpose of the Proposed Intervener to intervene as she averred 11 was to tell the “truth” regarding the jewellery and to subsequently provide 12 evidence/statements regarding the “status and ownership of the 13 jewelries”, therefore the intervention will have no bearing or impact on the 14 proceedings. 15 16 [26] I also agree with the 1st Respondent’s submissions that the 17 Proposed Intervener can give evidence as a witness without being added 18 as a party. There is no need for the Proposed Intervener to be added as 19 a party for her to give evidence. 20 21 [27] It must be emphasized at this point nowhere in her Affidavit in 22 Support (Encl 136) did the Proposed Intervener make any averments that 23 she is claiming for an order that the jewellery are to be returned to her. It 24 therefore serves no purpose for her to be added as a party. Her interest 25 is not at all affected by the outcome of this proceedings. At best she would 26 be a very important witness for the Petitioner in staking his claim over the 27 jewellery which he avers were bequeathed to him by his deceased father. 28 29 S/N aWoj7rQmhUO/KziQQnWk3g [28] To contrast that, the 1st Respondent has laid claim on the jewellery 1 as pleaded at paragraph 33(t) of the 1st Respondent’s Re-Amended Cross 2 Petition. In a preceding paragraph the 1st Respondent had pleaded that 3 the jewellery were owned by the deceased and in March 2018 the 4 deceased had given the jewellery as a gift to the 1st Respondent and the 5 Children of the marriage. 6 7 [29] To bring the matter into sharp focus, the case of Bank Pertanian 8 Malaysia Bhd v Rampai Maluri Sdn Bhd (Ab Rahim bin Ghalim, 9 proposed intervener [2020] MLJU 2203 comes to mind where the Kuala 10 Lumpur High Court decided as follows: 11 12 “[13] With regards to the issue of the Proposed Intervener’s legal 13 interest in the subject matter of these proceedings, I find that he 14 does not have the requisite locus standi to intervene in these 15 proceedings premised on his standing as the former director and 16 current shareholder of the Defendant on a claim for monies due 17 and owing by the Defendant only. If the Proposed Intervener’s 18 interest is at all affected by the outcome of this proceedings, it 19 would at best, only be his commercial rights. It is also relevant that 20 this action concerns a normal monetary debut recovery which does 21 not concern the Properties. It has been demonstrated in a number 22 of cases that a shareholder’s right is only affected commercially. 23 … 24 [27] However, to be allowed to intervene, the Proposed Intervener 25 must satisfy the legal test of having a legal interest in the subject 26 matter of the proceedings first and foremost. This was made clear 27 in para. 9 of the judgement in the Bujang Hj Ulis case: 28 To succeed in an intervener’s application, the applicants have 29 to show that they have a right in the subject matter of the suit 30 and want to be made a party to protect their interest. They must 31 comply with the procedural requirement to intervene as set out 32 in O 15 r 6 (2)(ii) of the RHC.” 33 S/N aWoj7rQmhUO/KziQQnWk3g [28] The application to intervene should not be granted liberally 1 and certainly not if the legal requirements are not met as held by 2 the Federal Court in Hong Leong Bank Bhd (formerly known as 3 Hong Leong Finance Bhd) v Staghorn Sdn Bhd and other appeals 4 [2008] 2 CLJ 121: 5 “Pegang Mining, Arab Malaysia Merchant Bank and Gurtner 6 v Circuit all show that the interest of a would-be intervener 7 in the subject matter of the action in which he seeks to 8 intervene must be shown to exist. He is not to be allowed to 9 intervene merely on a claim that he has an interest in the 10 subject matter. The ‘flexibility of approach’ mentioned in 11 Pegang Mining is not to be taken to mean laxity in the standard 12 for the qualification to intervene.” (emphasis added) 13 [29] It is clear to me, that the Proposed Intervener’s right to be heard, as 14 perceived by the Proposed Intervener does not override the requirement 15 of the Proposed Intervener having legal interest in the subject matter of 16 this proceedings.” 17 18 [30] The principles laid down in the above case have clearly provided the 19 litmus test to examine whether the Proposed Intervener had established 20 her legal interest in the subject matter in question and not merely a 21 commercial interest (see Pegang Mining Co. Ltd v Choong Sam & Ors 22 [1968] CLJU 96). 23 24 [31] This Court was further guided by the decision of the Supreme Court 25 case of Arab Malaysia Merchant Bank Berhad v Dr Jamaludin Dato’ 26 Mohd Jarjis [1991] 1 CLJ Rep 19 where their Lordships held in applying 27 the principles in addition to those stated above as follows: 28 29 “One of the class of cases covered by the said rule, which allows 30 intervention by persons not parties, is where the proprietary or pecuniary 31 rights of the intervener are directly affected by the proceedings or where 32 S/N aWoj7rQmhUO/KziQQnWk3g the intervener may be rendered liable to satisfy any judgment either 1 directly or indirectly.” 2 3 [32] From a perusal of the affidavit evidence it can be gathered that both 4 the Proposed Intervener and the Petitioner have admitted that the 5 deceased bought the jewellery and the Proposed Intervener as the 6 deceased’s wife had enjoyed the use of all the jewellery. Being the one 7 using and wearing them did not entitle her to claim ownership of the 8 jewellery as the Proposed Intervener herself admitted that she had 9 submitted to the wishes of the deceased to distribute the jewellery at the 10 time the deceased was still alive. 11 12 [33] The affidavit evidence further revealed that the Petitioner and the 13 Proposed Intervener were in agreement that the ownership of the 14 jewellery in dispute belonged to the deceased and the deceased had 15 before his demise written down in a piece of paper the list of jewellery to 16 be divided. Had the jewellery belonged to the PI, the deceased would not 17 have expressed the wish to divide the jewellery on behalf of the Proposed 18 Intervener. 19 20 [34] With respect this Court agrees with the 1st Respondent’s contention 21 that the deceased could have, if he wanted to, amended his Last Will and 22 Testament dated 30.5.2017 to include the jewellery to be divided between 23 all his beneficiaries including the Proposed Intervener. Instead of taking 24 that recourse, the deceased had made the decision to gift the jewellery to 25 the 1st Respondent and the Children of the Petitioner during his lifetime. 26 The fact that the jewellery was not listed in the deceased’s Last Will and 27 testament is further proof that the division of the jewellery was done by 28 the deceased in his lifetime as per his wishes. The Will was written to 29 S/N aWoj7rQmhUO/KziQQnWk3g reflect the deceased’s wishes and intention only to divide the property and 1 assets listed in the Will after his passing. 2 3 [35] Furthermore the deceased clearly stated in his Will that he was not 4 leaving anything to the Proposed Intervener as she will receive his 5 monthly pension. 6 7 [36] It is further noted that the Proposed Intervener failed to exhibit or 8 adduce documentary evidence such as receipts or invoices to prove legal 9 ownership of the jewellery in question. This would certainly have aided 10 her case to show that the jewellery rightfully belonged to her. 11 12 [37] It will be recalled that the dispute before this Court is whether the 13 jewellery to be distributed to the 1st Respondent and Children of the 14 marriage was as a gift given by the deceased during his lifetime as the 15 presumption of advancement claimed by the 1st Respondent or to the 16 Petitioner or was the jewellery inherited by the Petitioner as he claims. 17 18 [38] At any rate the Proposed Intervener’s clear and unequivocal 19 admission that she had agreed to abide by the wishes of the deceased to 20 distribute the jewellery after his demise effectively drove home the crucial 21 factor that she had renounced her rights to the jewellery. 22 23 [39] Therefore it is crystal clear that the Proposed Intervener who 24 acceded to the deceased’s wishes to divide and give the jewellery as a 25 gift during his lifetime is now not entitled to claim that she is the legal 26 owner of the jewellery. This reinforces the Court’s view that she has no 27 legal right to reclaim the jewellery on behalf of the Petitioner and the Court 28 shall not lend itself to such methods. 29 S/N aWoj7rQmhUO/KziQQnWk3g [40] This Court finds merit in the 1st Respondent’s contention that the 1 Proposed Intervener is merely a ‘busybody’ in this Divorce Proceedings. 2 There is no need for her to be included as a party to the proceedings. The 3 Petitioner has already claimed ownership of the jewellery. It is worthy to 4 note that the Proposed Intervener had never rebutted the claim by the 5 Petitioner of his ownership of the jewellery belonging to the deceased that 6 was gifted away. In fact, the Proposed Intervener had conceded with the 7 Petitioner that the jewellery in question ought to be given to the Petitioner. 8 9 [41] It also bears reiteration to hold that there is no necessity for the 10 Proposed Intervener to be included as a party to the proceedings. There 11 should only be two parties involved here to claim for the rights to the 12 jewellery. The case rests and falls on either the version given by the 13 Petitioner or the 1st Respondent. Since the 1st Respondent has laid claim 14 to the jewellery as a gift, it falls upon the duty of the Petitioner at the trial 15 to rebut the presumption of advancement of gift invoked by the 1st 16 Respondent. The Proposed Intervener’s role if any is only to provide 17 supporting evidence to the Petitioner’s claim. 18 19 [42] If the Proposed Intervener is intent on laying claim to the jewellery 20 by her alleged conduct in distributing the jewellery after the deceased’s 21 demise, then I would consider the alleged division of the jewellery to be 22 fraught with invalidity as the PI had no power to distribute any movable or 23 immovable property of the estate of the deceased without a valid Grant of 24 Letters of Administration. Learned counsel for the 1st Respondent helpfully 25 brought my attention to a passage in the case of Er Ngee (P) & Ors v Lim 26 Choon Hiok (P) & Ors [2017] MLJU 52 which, in my opinion applies in 27 the circumstances of the instant case: 28 29 S/N aWoj7rQmhUO/KziQQnWk3g “[66] It is a trite general principle of law that a plaintiff, who is a 1 beneficiary of an estate, has no locus standi to sue anyone to claim for 2 an asset of an estate until the administration of the estate is completed. 3 S. 59 of the Probate and Administration Act 1959 states that the right to 4 commence an action for the estate of a deceased is vested in the 5 personal representative (whether by grant of probate or letters of 6 administration. It was held by the Federal Court in three cases, viz Lee 7 Ah Thaw’s case; Chor Phaik Har’s case; and Deraman’s case, that the 8 beneficiaries of a deceased’s estate have no interest in a deceased’s 9 estate until the administration of the estate is completed. This general 10 principle is applicable to an estate claim by a beneficiary.” 11 12 [43] The Proposed Intervener has not shown nor exhibited any Grant of 13 Letters of Administration in any of her affidavits. This further reinforces 14 this Court’s view that she has no legal and beneficial interest to claim the 15 jewellery. 16 17 [44] In my evaluation of the evidence through the affidavits I have noted 18 that both the Petitioner and the Proposed Intervener have averred facts 19 that approbate and reprobate in both the Divorce Petition and the civil suit 20 filed at the Klang Sessions Court in relation to the ownership of the 21 jewellery. 22 23 [45] In his Affidavit in Reply dated 11.10.2023(Encl 110) the Petitioner 24 has alleged that the jewellery is owned and kept by the deceased. The 25 Petitioner has also alleged that the jewellery was given to the Proposed 26 Intervener and classified the jewellery as “Barangan Emas Harta Pusaka 27 tersebut.” 28 29 [46] In his “Balasan Terpinda Semula Kepada Jawapan Terpinda 30 Kepada Petisyen dan Jawapan Terpinda Dipinda Semula Kepada 31 S/N aWoj7rQmhUO/KziQQnWk3g Petisyen Balas Terpinda Semula dated 27.2.2024 (Encl 133) the 1 Petitioner described the jewellery as follows: 2 3 “81B. Pempetisyen percaya barang kemas yang dinyatakan di 4 perenggan 30(i) sehingga 30(ix) (selepas ini dikenali secara kolektif 5 sebagai “sebahagian Barangan Emas tersebut”) adalah barang kemas 6 yang dimiliki oleh keluarga Pempetisyen dan disimpan oleh arwah Dr 7 Ganaisan a/l Kuppusamy. 8 81C. Arwah Dr Ganaisan telah memberi kepada Alai Sundram @ 9 Balasaraswathy a/p Suppiah (ibu Pempetisyen) inter alia: 10 ….” 11 12 [47] In the police report No. Klang 012136/23 lodged by the Proposed 13 Intervener on 10.4.2023, she has described the jewellery as follows: 14 15 “Barang-barang kemas saya tersebut adalah barang kemas lama yang 16 diberikan oleh nenek saya, emak saya dan juga yang dibelikan oleh 17 mendiang suami saya.” 18 19 [48] The parties are bound by their pleadings and cannot reprobate from 20 their respective pleadings. The following factors have been plucked from 21 the pleadings: 22 23