Raveendran A/L Shanmugam v Selvakumari A/P Palany (WA-24NCvC-3398-08/2023)

PARAMASIVAM A/L PALANY (on behalf of Mesers. Kumari Palany & Co.)

DATUK REJENDRAN PALANY … INTERVENERS GROUNDS OF JUDGMENT (Encl. 95)

In the Re-Re-Amended Originating Summons (Ex Parte) (encl. 95), the Applicant applied for the following orders: 18/08/2025 16:34:04 WA-24NCvC-3398-08/2023 Kand. 162 “(1A) That an inquiry be held pursuant to Section 52 of the Mental Health Act 2001 in order to determine whether Selvakumari d/o Palany … the Respondent abovenamed is a mentally disordered person who is incapable of managing herself and/or her affairs.

A declaration that Selvakumari d/o Palany … the Respondent named above, is suffering from mental illness, known as, Alzheimer's Disease and is incapable of managing herself and/or her affairs.

that the applicant Raveendran s/o Shanmugam …, the Respondent's husband named above is appointed as a "committee" for the Respondent and the Respondent's estate in accordance with Sections 58, 59, 63 and 64 of the Mental Health Act 2001.

that the applicant named above is appointed as the legal guardian to the Respondent and estate of Respondent.

That the Applicant is granted the right to sell, transfer, charge / mortgage or otherwise disposal of such properties as may be necessary from time to time which the Applicant deems reasonable for the purpose of settling the Respondent's debts, the discharge of any encumbrance on the Respondent's estate and payment or provision for the maintenance of the welfare and health of the Respondent and also the payment of any court-related costs.

That the Applicant is given absolute authority as a permanent representative and/or any reasonable authority that allows the Applicant to sign and execute any and all documents related to the management and handling of medical, welfare, including selling, transferring, charging/mortgaging and liquidating any immovable, movable assets, liabilities, goodwill and partnership as stated in paragraphs 6 and sub-paragraphs 7(a) to 7 (m) hereinbelow and any other matters related to the Respondent in carrying out his duties as a committee and guardian for the Respondent and Respondent's estate.

That the Applicant is granted the right to manage, operate and liquidate all bank accounts belonging to the Respondent.

The immovable and movable assets, liabilities, goodwill and partnership in relation to paragraphs 4, 5 and 6 hereinabove known to the Applicant so far are as follows:-

Half share (1/2) in the property bearing Strata Title Grant No 46229/M1- B/12/242, Plot No 242, Floor 12, Building No M1-B, Accessory Plots A111, A834, Lot 81, Section 70, Kuala Lumpur City and State Federal Kuala Lumpur with postal address Unit B12-04, Suasana Sentral Condominium, Jalan Stesen 5, KL Sentral, 50470 Kuala Lumpur, Federal Territory and housing loan with

A property bearing Strata Title Grant No. 46229/M-1A/16/73, Plot No. 73, Floor 16, Building No. M1-A, Accessory Plots A187, A591, Lot 81, Section 70, Kuala Lumpur City and State Federal Territory of Kuala Lumpur with postal address Unit A16-01, Suasana Sentral Condominium, Jalan Stesen 5, KL Sentral, 50470 Kuala Lumpur, Federal Territory and housing loan with Public Bank Berhad;

Current account number …; Loan account number …; Credit Card … and any other account that is currently with Malayan Banking Berhad / Maybank Islamic Berhad; d) Current account numbers … and …; Savings account number …; loan account …; Safe Deposit Box number … and any other account that is currently with Public Bank Berhad and also Public Islamic Bank Berhad; e) Current account number …; Sixteen … Fixed Deposits and Credit Cards …; and any other account that is currently with CIMB Bank Berhad/CIMB Islamic Bank Berhad; f) Current account number … and any other account that is currently with HSBC Bank Malaysia Berhad and also HSBC Amanah. Malaysia Berhad; g) Investment shares with member number … and any other investment that is currently with Amanah Saham Nasional Berhad …; h) Investment shares with Koperasi NLFCS Berhad with membership number …; i) Savings, current and loan accounts with numbers …, …, …, …, … and any other account that is currently with Barclays Bank PLC in London, UK including the loan; j) Savings and current accounts with numbers …, … and any other account that is currently with HSBC UK Bank plc in London, UK; k) Equity shares with TTS Legal Ltd in London, UK; l) Goodwill in the use of the firm's name, Kumari Palany & Co, (London) Solicitors; m) Partnership and Goodwill in firm's name Kumari Palany & Co, Solicitors & Advocates in Malaysia.

that the presence of Doctor Chee Kok Yoon from Lifecare Diagnostic Medical Center Sdn Bhd at No 5, Centre. Jalan Kerinchi, Bangsar, 59200, Kuala Lumpur, Federal Territory is exempted and the affidavit of Doctor Chee Kok Yoon is used in this proceeding.

The cost of this application is borne by the Applicant.

Liberty to apply.

Relief and further instructions deemed necessary by this Honorable Court.”.

The parties had agreed for mediation to be held before the presiding judge which resulted in the Terms of Settlement being signed by the Applicant and both Interveners on 28.2.2025, pending the finalisation of the Consent Order.

The Consent Order was supposed to be recorded on 7.3.12025, however, the parties had a new dispute on one of the terms of the Terms of Settlement.

Despite an attempt to resolve the dispute vide a continued mediation on 27.3.2025, this was unfortunately not successful. Hence, encl. 95 had to be heard on its merits. In this regard, the learned counsels who represented the parties agreed that the only issue for this Court to decide is in respect of prayer (2) i.e. who shall be appointed as a Committee for the Respondent.

Encl. 95 was heard as a contested ex-parte application. After having considered the cause papers and written submissions of the Applicant and the Interveners, on 28.4.2025, I decided as follows:

prayers (1A) and (1) were not disputed and thereby allowed;

prayer (2) – the Committee shall consist of the Applicant, the 1st Intervener and the Respondent’s sister, Rageswary a/p Palany;

prayer (3) was inapplicable;

prayer (4) was allowed with all references to the word “Applicant” to be substituted with the word “Committee”;

prayer (5) was allowed with the wordings as proposed by the 1st Intervener in the Written Submission (encl. 130) with two minor changes to read “The Committee to sign or execute all documents including banking instruments, land instruments, cheques as may be required for the purpose of the management, operation and handling of the medical welfare, including selling, transferring, charging/mortgaging and liquidating any immovable, movable assets, liabilities as stated in paragraph 6 and sub paragraphs 7 (a) - (j) subject to the provisions under sections 59, 63 and 64 of the Mental Health Act 2001.”;

prayer (6) was allowed with the word “Applicant” substituted with the word “Committee”;

prayers (7)(a) to (j) were allowed with the words “goodwill and partnership” to be deleted from the chapeau;

prayers (8), (9) and (9A) were allowed; and

prayer (10) – further provision was made as regards the decision and meetings of the Committee as proposed by the 1st Intervener in encl. 130 whereby, “All decisions shall be made by the Committee based on a unanimous voting rule through meetings of the Committee which shall be conducted whenever there is a need for decision making in the following manner:

physical or virtual meetings or a combination of physical and virtual;

(ii) can be called by member by written notice to all others;

(iii) notice to be sent to by way of email or Whatsapp;

(iv) written notice to be given at least 3 days before the meetings; and

any decision by the Committee shall be carried out by a representative to be appointed by the Committee during the meeting.”.

The Applicant is aggrieved with my decision in making the order in respect of prayers 2, 4, 5, 7(a) - (j) and 10. These are my full grounds of judgment.

The Applicant and Respondent are husband and wife. Their solemnization of marriage took place at the Malaysia Hindu Sangga, Wilayah Persekutuan Council on 14.9.1995.

The Respondent was an advocate and solicitor since 1996 and she founded and practised in the firm of Messrs. Kumari Palany & Co. (‘Law Firm’).

Sadly, the Respondent is suffering from uncurable Alzheimer disease and has been treated by Dr. Chee Kok Yoon from Lifecare Diagnostic Medical Centre Sdn Bhd, Bangsar, Kuala Lumpur for the past few years.

The Respondent was certified to be suffering from the disease by Dr. Chee Kok Yon and her former doctor from Hospital Pantai, Kuala Lumpur, Dr. Shanti Viswanathan.

The Respondent has been under the Applicant’s care prior to, and after, the diagnosis. Her mental state has been deteriorating since the Movement Control Order in 2020 and she eventually became unable to manage her personal affairs and became dependent on the Applicant.

The Respondent and Dr. Chee Kok Yoon attended the first mediation on 28.2.2025.

Due to the Respondent’s condition, the Applicant took the view that it is proper for him be appointed as a Committee to manage the Respondent’s personal affairs and assets as the Applicant has to incur costs in taking care of the Respondent, including the Respondent’s financial liabilities.

The 1st and 2nd Interveners’ application to intervene was allowed on 11.3.2024 and 10.6.2024, respectively.

Sub-s 58(1) and ss 63 and 64 of the Mental Health Act 2001 [Act 615] (‘MHA 2001’) provide as follows: “58. Appointment of committees

If the Court finds that the person who is alleged to be mentally disordered is incapable of managing himself and his affairs due to his mental disorder, the Court may appoint a committee or committees of the person and of the estate of the person and may, as the Court deems fit, make an order –

as to the remuneration, if any, of the committee or committees out of the person's estate; or

as to the giving of security by the committee or committees. ….”. “63. Dealing with mentally disordered person's property The Court may, if it appears to the Court to be just or for the benefit of the mentally disordered person, order that any property, movable or immovable, and whether in possession, reversion, remainder, contingency or expectancy, be sold or charged or otherwise disposed of as seem most expedient for the purpose of raising money to be applied for any of the following purposes:

the payment of his debts, including any debt or expenditure incurred for his maintenance or for his benefit;

the discharge of any encumbrance on his estate;

the payment of or provision for the expenses of his future maintenance and the maintenance of his family, including the expenses of his removal to any place in or outside Malaysia and all related expenses;

the payment of the costs of any proceedings under this Act and of any costs incurred by order or under the authority of the Court.”. “64. Committee to execute instrument

The committee of the estate of a mentally disordered person shall, in his name and on his behalf, execute all such conveyances and instruments of transfer in relation to any sale, charge, or other disposition of the estate of the mentally disordered person as may be ordered by the Court.

The committee shall also, under the order of the Court, exercise all powers vested in a mentally disordered person, whether the powers are vested in him for his own benefit or in his capacity as a trustee or guardian.”.

In the Singapore case of Wong Sau Kuen and Others v Wong Kai Wah and Another [2008] 2 SLR (R) 561, the learned High Court Judge expressed the following view: “8 In making a determination on the composition of the Committee, the primary objective of the court is to ensure the protection of YLL and her interests. It is the court's role to "sieve and filter out the bitter dross of family conflict in order to arrive at a reasonably good solution" for YLL: Teo Choo Him v Teo Leng Hui [2005] SGHC 97 at [22]. In this respect, it is always better to have family members rather than outsiders as members of the Committee. People familiar with YLL's background and idiosyncrasies would be more likely to manage her affairs better. In the present case, the siblings would know YLL and her interests best. It would not be sensible to appoint an independent person as a member of the Committee. 9 Secondly, it was also necessary that all the siblings appointed to the Committee were not at loggerheads with one another, in order to facilitate workable solutions to problems that may arise from time to time, and to aid in effective decision-making. On the facts, the second to fifth plaintiffs and the second defendant were on good terms with one another and as such, there was lesser potential for conflict within a committee constituted of them.”.

The court in Liew Ju Min v Choo Wee Poh & Ors and another case [2017] MLJU 133 expressed the view that a committee of the estate of the person does not need to be appointed from a relative or next of kin of the mentally disabled person. The court may, in its exercise of judicious discretion, appoint anyone who is considered most suitable for the task.

Based on the research by the learned Judge in the case of Hasnah Baba v Juliah Mohd Hassan [2020] 4 MLRH 158, His Lordship said that there was no case prior to Hasnah Baba which has construed s 58 MHA 2001. His Lordship opined, among others, that upon proof of the respondent’s incapability, the court may appoint one or two committees as stipulated under sub-ss 58(1) and (2) MAH 2001 (see too, Goh Yong Peow v Goh Sok Choo & Ors [2015] 10 MLJ 160).

In the instant case, there was no dispute that the Committee to be appointed would be of the person and of the estate of the person. Submissions, Analysis and Findings

As mentioned at the outset, the main issue for my determination was as to the composition of the Committee for the Respondent. The Applicant strenuously submitted that he alone should be the Committee, and if there is a pressing need for there to be a co-member of the Committee, the Applicant proposed Ms. Sharmini a/p S Ganesan (‘Sharmini’).

This is to be contrasted with the position put forth by the Interveners whereby –

the 1st Intervener contended that he should be appointed as the Committee together with the Applicant; and

the 2nd Intervener submitted that the members of the Committee should be the 1st Intervener, Ms. Rageswary a/p Palany (‘Rageswary’) and Puan Fauziah binti Razali (‘Fauziah’).

Each of the abovesaid proposal is not without justifications.

Firstly, I have no hesitation that the Applicant should be a member of the Committee for the reasons as put forth by him, among others, that, as the Respondent’s husband, he is familiar with the Respondent’s background and idiosyncrasies and he has been living with, and taking care of, the Respondent’s daily needs.

The issue was then whether there should be a co-member or co-members of the Committee, and if so, who?

In my considered view, co-members should be appointed to the Committee because the evidence supports the 1st Intervenor’s submission that, as early as when the first appointment was made with Dr. Shanti, it was the 1st Intervener and his siblings who made the appointment and the Applicant was not aware of what Dr. Shanti had said as he never attended the appointments.

Furthermore, as at the date of the hearing of encl. 95, the Applicant has not hired full-time qualified caretakers for the Respondent when this is the most basic need for the Respondent. Despite the Applicant’s insistence that he is able and fit to be the Respondent’s caregiver, the reality is that the Applicant himself is aging and he is not in a position to care for the Respondent’s daily needs and comfort for the long term.

What is crystal clear from the hearing is that the Applicant was adamant that, either he alone, or together with Sharmini, are to be the members of the Committee. In other words, the Applicant does not wish for any family member of the Respondent to be part of the Committee. As aptly questioned by the Interveners, why is the Applicant taking this unwavering stand?

The 2nd Intervener insisted that the Applicant cannot be made as a sole committee to the Respondent considering the Applicant’s previous conduct and treatment of the Respondent where it was always at the insistence of the Respondent’s family members and the 2nd Intervener that the Applicant actually does things for the Respondent.

In my assessment of the evidence, while the Applicant has attempted to portray himself as the loving and devoted husband who can be trusted to be the sole Committee of the person and of the estate of the person, the Interveners have shown that there have been lapses in judgment by the Applicant in the years since the Respondent’s condition was diagnosed.

Moreover, I was persuaded by the 2nd Intervener’s submission that prayers 4, 5, 6 and 7 in encl. 95 involve broad powers and these could potentially lead to actions that may not be solely in the best interests of the Respondent.

Therefore, I firmly believe that it is in the Respondent’s best interests that the Applicant should not be the sole member of the Committee as there is a need for check and balance and to ensure that any decision made in the future will truly be most beneficial for the Respondent.

Turning now to the question on who should be the other member or members of the Committee, based on the respective submissions of the Applicant, 1st Intervener and 2nd Intervener, –

the 1st Intervener is an advocate and solicitor and younger brother of the Respondent. He and the Respondent have been partners of the Law Firm since 2002 and is the sibling who is closest to the Respondent. He was involved during the initial diagnosis of the Respondent and is well aware of the arduous journey that she had to endure. He has diligently paid all the Respondent’s expenses and liabilities on time, including the repayment of the Respondent’s properties and joint properties with the Applicant, as well as the Applicant’s monthly salary of RM10,000.00. He has always offered himself to be part of the application even before encl. 95 was filed. He is likely to be clear, objective and realistic on the medical condition and mental capacity of the Respondent. He does not require any remuneration if appointed as a member of the

Sharmini is an advocate and solicitor of 25 years standing and practising in Messrs. Bock and Partners, Kuala Lumpur. She has known the Applicant and Respondent since before they were married. She has averred on oath that she is not related to any of the parties in this proceeding; neither she nor her firm has acted for, or against, any of the parties in this proceeding; she is ready, willing and able to act as a co-member of the Committee together with the Applicant; she will be independent and act in the Applicant’s best interests; and she seeks no renumeration for her role. She has no interest in the Applicant’s portion of the joint matrimonial estate or assets. She does not have an acrimonious relationship with the Applicant that could hamper the proper functioning of the Committee;

Rageswary is a civil engineer by profession and is employed in Melbourne, Australia. She is the Respondent’s elder sister and has always shared a good relationship with the Respondent. She has declared her readiness, availability and ability to be appointed as one of the co-members of the Committee, and she further confirmed that she is not seeking any remuneration for her role as a co-member. Previously, she took unpaid leave from 13.9.2022 to 10.10.2022 to help train the Respondent’s helpers to take care of the Respondent. At the date of submissions, she was on sabbatical leave to take care of her mother in Malaysia and she was staying in the same apartment block as the Respondent. In her statutory declaration, she has declared her readiness to leave her job to take care of the Respondent, if necessary; and

Fauziah is one of the partners in the Law Firm and has been friends with the Applicant and the Respondent for almost 26 years. She shares a close relationship with the respondent as a friend and business partner. She has declared her readiness, availability and ability to be appointed as one of the co-members of the Committee. She does not seek any remuneration as a co-member.

The Applicant argued that the Interveners’ candidates are not fit to be on the Committee for the following reasons:

The 1st Intervener He is based in Seremban and he only started dropping by to see the Respondent fleetingly after he moved his mother from Seremban to an apartment within the vicinity of the Applicant’s apartment block in Kuala Lumpur. He showed no interest in the Respondent’s well-being prior to this. He has not taken care or attended to the Respondent’s needs throughout the entire time that she has contracted Alzheimer’s disease. He has never at all indicated any intention of wanting to take care of Selvi. His intervention in this suit is only because of his interest in the Law Firm as a salaried partner. He does need not be in the Committee to protect his interest as he has full control over the Law Firm, and he therefore controls any payments made by the Law Firm to the Respondent. In respect of the payments made to the Respondent, the Committee is responsible and accountable for the utilisation of these payments without the need for the 1st Intervener to be in the Committee. In the light of the acrimonious relationship between the Applicant and the 1st Intervener, a Committee comprising of both of them would result in a deadlock which would be detrimental to the Respondent’s interest. It is the Court’s role “to sieve and filter out the bitter dross of family conflict in order to arrive at a reasonable good solution” [see Wong Sau Kuen (supra)].

Rageswary She is an Australian citizen based in Australia. She has been working and staying there for the past 24 years. Thus, she would not know of the Respondent’s needs or requirement.

Fauziah She is married with five children and residing in Nilai. She is a salaried partner of the Law Firm and has no family or other personal relationship with the Respondent. Since the diagnosis of Alzheimer disease, she has never visited or called the Respondent to check on her health. She is in, or stands in, the same position as the 1st Intervener and hence, does need not be in the Committee.

At the opposite end, the 1st Intervener contended that Sharmini is an unsuitable candidate because she will only be equipped with part of the facts and will be wholly reliant on the Applicant. The fear is that, ultimately, the Applicant will have the main right to make decisions.

The 2nd Intervener submitted that Sharmini is not an independent party per se and there will be a conflict of interest arising from the deep-rooted friendship between the Applicant and Sharmini, which will prejudice the Respondent’s rights. The appointment of Sharmini was vehemently objected on the ground that it undermines the objectivity and independent judgment that are important for a fair decision-making process by the Committee.

After utmost deliberation of the averments and submissions by all parties concerned, and having considered the proposed co- members relationship with the Respondent, their ability to act in her best interests and their suitability to manage her affairs in a responsible and impartial manner, it is my finding that it would be best for the composition of the Committee to be within the family circle of the Applicant, the 1st Intervener and Rageswary.

As the Respondent’s siblings, the 1st Intervener and Rageswary would be familiar with the Respondent’s background and peculiarities.

The 1st Intervener’s interests are intertwined with that of the Respondent due to his unique position of being both the Respondent’s brother and business partner of the Law Firm. He has demonstrated an active and consistent role in managing the Respondent’s financial affairs by ensuring the regular payments from the Law Firm.

I am conscious of the fact that the relationship between the Applicant and the 1st Intervener is not at its most cordial. In the event of any major differences, I am confident that, as the Respondent’s elder sister, Rageswary would be able to overcome any deadlock or break any impasse that might occur within the Committee. The reasons proffered by the Applicant in objecting to Rageswary’s appointment has to do with the fact that she is based in Australia. However, Rageswary has declared her willingness to return to Malaysia with the noble intention of taking care of the Respondent.

As regards prayers 4, 5 and 7, these were included in encl. from the beginning. Hence, it appears that the Applicant’s unhappiness is over the fact that, with my decision, these prayers were allowed in respect of the Committee which now consists of the 1st Intervener and Rageswary, apart from the Applicant.

Finally, turning to prayer 10, the procedure for meetings and decisions made by the Committee was suggested by the 1st Intervener. At the hearing, the Applicant’s counsel did not make any submission to object to the proposed provision and the justifications. In my considered view, the 1st Intervener’s proposed provision would provide clarity on how the Committee is to carry out the powers granted by the Court and ensure its smooth operation.

It is observed that all the parties concerned had averred that they only have the Respondent’s best interests in mind. The sincerity of these affirmations would be put to test in the implementation of the decision of this Court in respect of encl. 95. It would be most unfortunate if the members of the Committee continue to argue incessantly on this matter as the person who stands to lose would be the one whom they profess much affection and preparedness to care for, namely, the Respondent.

For the reasons as abovementioned, the application in encl. was allowed as set out in paragraph 5 above with no order as to costs. DATED: 15 August 2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA (NCvC2) KUALA LUMPUR Solicitors for the Applicant: Steven Thiru (Alvin Oh Seong Yew, Sew Chang Peng & Ananthan a/l Nithya Moorthi with him) Messrs. Sia Siew Mun & Co. Solicitors for the 1st Intervener: Vasanthi Vasathurai (Harvinder Singh Sindhu with her) Messrs. Vin Law & Co. Solicitors for the 2nd Intervener: Ramesh a/l Lachmanan (Fitrah Ain Binti Idris with him)