Sarina Binti Mohd Yunus v 1. ) Rahmah Binti Mohd Yusop @ Mohd Yusoff (No. K/P: 460208-14-5424) (WA-24NCvC-482-03/2021)

AND RAHMAH BINTI MOHD YUSOP@MOHD YUSOFF [NRIC NO : 460208-14-5424]

SUFFIAN BIN MD YUNUS [NRIC NO : 690419-10-5807] ..DEFENDANTS GROUNDS OF JUDGMENT

This case arises from a dispute within a family concerning a property held under the title known as HSD 11493, No. PT 479, Mukim Ampang, District of Kuala Lumpur. The registered proprietor of the property was the late Md Yunus bin Darus who had passed away on 15-9-2013. 2

The Plaintiff, Sarina binti Mohd Yunus, is the daughter of the deceased.

The First Defendant is the Plaintiff’s mother. The Second Defendant is the Plaintiff’s younger brother.

The Plaintiff has an ongoing dispute concerning the administration of the estate of the deceased and including the way the said property is being administered, rented and potential distribution of the estate’s assets. As of to date, the estate remains administered solely by the First Defendant and has not been finalised.

Unhappy with the manner in which the estate is being administered and due to the ongoing dispute with her family, the Plaintiff lodged a caveat over the said property on 15-7-2020.

The grounds on which the said caveat was lodged could be seen in Form 19B and the affidavit filed by the Plaintiff. The Plaintiff relies on the following grounds to justify lodging the said caveat over the said property: - 3 “2. Alasan-Alasan tuntutan saya atas tanah / kepentingan itu ialah:-

Saya adalah waris bagi harta pesaka Md Yusus bin Darus [No K/P; 360620-08-5543] (“arwah bapa saya”).

Arwah bapa saya meninggal dunia pada 15.9.2013.

Hartanah yang dipegang di bawah H.S.(D) 11493, No PT 479, Mukim Ampang, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan Kuala Lumpur (“hartanah tersebut”) adalah sebahagian daripada harta pesaka arwah bapa saya dan merupakan rumah keluarga.

Terdapat tiga (3) org waris dalam harta pesaka arwah bapa saya iaitu Rahmah Binti Mohd Yusop@ Mohd Yusoff (“ibu saya”), Suffian Bin Md Yunus (“adik lelaki saya”) dan juga diri saya.

Pada awal tahun 2018, ibu dan adik lelaki bersama keluarganya telah berpindah daripada Hartanah tersebut, secara senyap tanpa memberitahu saya.

Hubungan saya dengan ibu saya dan adik lelaki saya telah renggang hampir lebih dari tiga (3) tahun, di mana saya sama sekali dikecualikan oleh ibu dan adik lelaki saya dalam segala urusan berhubung harta pesaka arwah bapa saya.

Kini, baru saya dapat tahu bahawa ibu saya telahpun dilantik sebagai pentadbir harta pesaka arwah bapa saya. 4

Memandangkan keadaan diatas, saya ingin memasukkan suatu Kaveat Persendirian terhadap Hartanah tersebut untuk menjaga dan memelihara kepentingan saya.

Notice was issued by the Department of Land and Mines of the Federal Territory to remove the aforesaid caveat by letter dated 15- 2-2021 under section 326 of the National Land Code 1965.

The Plaintiff then applied by the Originating Summons filed in these proceedings essentially to preserve the caveat for a further period of years from 15-7-2020.

This application is objected to by the Defendants. They inter alia alleged that the Plaintiff does not have a valid basis to enter the said caveat over the said property contrary to the requirements of the National Land Code.

I have considered the Originating Summons, the affidavits, written submissions and the arguments raised by counsels during the hearing on 8-6-2021. I find that the Plaintiff does not have any valid grounds to enter the caveat on 15-7-2020. Therefore, I decided to dismiss the Plaintiff’s Originating Summons with costs. The 5 following contains my grounds for dismissing the Plaintiff’s Originating Summons. B. Whether there exists any basis for the extension of the caveat under section 326 (1B) or (2) of the National Land Code 1965

The Plaintiff is seeking to extend the caveat despite the decision by the Registrar to remove the caveat under section 326 (1) of the National Land Code 1965.

Section 326 of the National Land Code 1965 is reproduced herein for ease of convenience: - “(1) Any person or body whose land or interest is bound by a private caveat may at any time apply in Form 19H to the Registrar for its removal, and such application shall be accompanied by the prescribed fee.

On receiving any application for removal under this section, the Registrar shall— 6

serve upon the person or body at whose instance the caveat was entered a notice of intended removal in Form 19C; and

make an endorsement on the register document of title that the notice in Form 19C has been served on the person or body at whose instance the caveat was entered and of the date of such service, and shall sign and seal the endorsement. (1AA) Notwithstanding section 431, the service of notice in Form 19C may be effected by facsimile transmission to the person or body at whose instance the caveat was entered and it shall be deemed to have been duly served where there is a return acknowledgment by electronic or other means to the effect that the notice has been received by such person or body.

In the case in which a notice of intended removal in Form 19C has been served under subsection (1A), the caveat shall lapse and be of no effect at the expiry of two months specified in the notice unless before the expiry of that period the Registrar shall have been served with an order of the Court extending the time provided in the said notice.

The Court may, on the application of any person or body on whom such a notice has been served under subsection (1A) 7 (and acting, if the circumstances so require, ex parte), from time to time extend the said period of two months; and the Registrar, on being duly served with an order of the Court under this subsection, shall make an endorsement on the register document of title of the date of service on him of the order and of the period of the extension, and shall sign and seal the endorsement.

The Registrar shall remove any caveat pursuant to this section by cancelling the entry thereof on the register document of title, and noting thereon the reason for the cancellation and the date thereof.

Every cancellation under subsection (3) shall be signed and sealed.”

Essentially, the Plaintiff is challenging the validity of the decision of the Registrar to remove the caveat and believes that she falls under of the categories of persons entitled to enter or lodge a private caveat under section 323 of the National Land Code 1965. Section 323 of the National Land Code 1965 is reproduced below:- 8 “(1) The persons and bodies at whose instance a private caveat may be entered are—

any person or body claiming title to, or any registrable interest in, any alienated land or undivided share in any alienated land or any right to such title or interest;

any person or body claiming to be beneficially entitled under any trust affecting any such land or interest; and

the guardian or next friend of any minor claiming to be entitled as mentioned in paragraph (b).

Any such person or body wishing to apply for the entry of such a caveat shall do so in Form 19B and such application shall be attested in accordance with section 211 notwithstanding that the provisions dealt with dealings in alienated land, and shall state therein the nature of the claim on which his application is based, and whether the caveat is to be expressed to bind the land itself or an undivided share in the land or a particular interest only, and the last known address of the proprietor if the caveat is to be expressed to bind the land itself or an undivided share in the land.

Any application under this section shall be accompanied by— 9

the prescribed fee;

the grounds giving rise to the claim thereto, verified by a statutory declaration by the applicant or his advocate and solicitor; and

if relating to a part of the land, a description or a plan of the land affected, and if relating to an undivided share in the land or a part thereof, a description, which is sufficient for identification.

The leading authority on this area is the judgment of Gopal Sri Ram JCA (as he then was) in Luggage Distributors v Tan Hor Teng [1995] 1 MLJ 719.

In that case Gopal Sri Ram JCA stated: - “In Eng Mee Yong (supra), Lord Diplock, in two passages, summarised the approach to be taken by a Court faced with such an application as is postulated by the section. This is what he said (at p. 215): This is the nature of the onus that lies upon the caveator in an application by the caveatee under s. 327 for removal of a caveat: he must first satisfy the court that on the evidence presented to it his claim to an interest in the property does raise a serious question to 10 be tried: and, having done so, he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the action, by preventing the caveatee from disposing of his land to some third party ….. In Mosbert Berhad v. Stella D'Cruz [1985] 2 MLJ 446 (SC), Seah SCJ put the test in this fashion: For the purpose of deciding whether a private caveat is defective or void the High Court should confine itself to the caveat and other relevant supporting documents. The procedure to be adopted should be a simple and summary one. ….. The Supreme Court in Kumpulan Sua Betong Sdn. Bhd. V. Dataran Segar Sdn. Bhd. [1992] 1 CLJ 150 made it clear that any claim to a caveatable interest that is asserted must be minutely inquired into in order to decide whether the caveat should remain on the register 11 document of title or be removed." (per Jemuri Serjan CJ (Borneo), at p. 270). In my judgment, there are three stages through which an inquiry of this nature must go. The first stage is the examination of the grounds expressed in the application for the caveat. If it appears that the grounds stated therein are insufficient in law to support a caveat, then cadit quaestio, and the caveat must be removed without the necessity of going any further.” Wong Kuan Tan v. Gambut Development Sdn. Bhd. [1984] 1 CLJ 441, illustrates how the issue of caveatability may be concluded at the first stage. …. Hashim Yeop A. Sani FJ (later CJ, Malaya) stated the proposition (at p. 115) in language unrivalled for its clarity: To put it more simply, the caveator in this case must first satisfy the Court that he has 'caveatable interest' in the land. Only if he has such an interest can he qualify to lodge a caveat under s. of the National Land Code. In the application to have the caveat removed the onus is cast upon the caveator to satisfy the Court that on the evidence presented his claim to an interest in the land raises 12 a serious question to be tried and after having done so he must go on to show that on the balance of convenience the caveat should be extended until the disposal of the main action. (emphasis supplied). At p. 116 of the report he added: Thus it is plain that the appellant claimed to have the right to lodge the caveat but based on cl. 4(a) of the Deed of Assignment. It is also plain that this was a contractual right applicable only when purchase price is not fully paid. But this alone cannot create a caveatable interest in the land. The contractual provision does not create an interest within the meaning of s. 323 of the National Land Code. Interests which are protectable by caveat are only interest recognised by the Code. The contractual provision does not amount to an equitable or other interest sufficient to support a caveat. Section 323(1) of the National Land Code sets out the classes of persons who may lodge private caveat. They are person or body claiming title to any alienated land; or claiming any registrable interest in any alienated land; or claiming any right to such title or interest; and includes person or body claiming to be beneficially entitled under any trust affecting any such land or interest. The words "any right to such title or interest" may be wide 13 enough to allow rights arising under a contract for registrable dealing to be protected by a caveat but they are not wide enough to cover mere personal rights as distinguished from rights relating to land. …… Another illustration is afforded by the facts of Tan Heng Poh v. Tan Boon Thong [1992] 1 CLJ 316[1992] 2 MLJ 1 which concerned the interest of a beneficiary under a will. Although the correctness of this decision in another respect, not relevant for present purposes, has been called into question and effectively reversed [see Chor Phaik Har V. Farlim Properties Sdn. Bhd. [1994] 4 CLJ 285], it remains as authority for the proposition that a beneficiary under a will has no caveatable interest until his testator's estate has been fully administered. The matter does not come to an end once the caveator satisfies the Court that his claim as expressed in the application in Form 19B amounts in law to a caveatable interest. He must go on to show, in appropriate cases, that, based on the affidavits filed, his claim discloses a serious question meriting a trial. This then is the second 14 stage. The degree of proof that has to be offered will, of course, vary from case to case. At this the second stage the Court is more concerned with matters of evidence and proof offered to support the caveator's claim. …. The third stage is arrived at only after the first two hurdles have been crossed by the caveator. Here the question to be asked relates to the balance of justice, or what Lord Diplock termed in Eng Mee Yong (supra) as 'the balance of convenience'. As to the matters that go to determine in which direction the balance should tilt, these have already been set out in such clear terms by Lord Diplock in Eng Mee Yong that mere repetition becomes unnecessary. It is only upon satisfying these three stages of curial scrutiny that a caveat may be permitted to remain. That this should be so is only logical; for it is a serious matter to caveat a person's property, and unless a case is properly made out, a caveat ought not be permitted to remain on the register a moment longer than is absolutely necessary.” 15

I am of the opinion that the above principles are applicable in an application under section 326 of the National Land Code 1965. Although, the above cases are concerning an application to remove a private caveat under section 327 of the National Land Code 1965, the same test will be applicable to determine whether the extension of time should be granted in view of the decision by the Registrar to remove the said caveat.

In this case, I note that the basis for the entry of the private caveat by the Plaintiff concerns the dispute concerning the administration of the estate of the deceased and the decision by her mother, the 1st Defendant, as an administrator of the estate. Therefore, I will have to consider, based on the National Land Code and decisions of the superior Courts, whether the Plaintiff’s claims constitute a registrable interest recognised capable of protection under section 323 of the National Land Code 1965.

To answer this question, I have considered the following cases: -

Tan Heng Poh v Tan Boon Thong [1992] 2 MLJ 1.

Hew Sook Ying v Hiew Tin Hee [1992] 1 CLJ Rep 120. 16

Eng Mee Yong v Letchumanan [1979] 1 LNS 18

Chor Phaik Har v Farlim Properties [1997] 4 CLJ 393

Krishnan Daruman v Lechimunisamy Natu [2014] 10 CLJ 40

Masor Shafiei v Abdul Rahman Suleiman [2019] 9 CLJ 83.

After reviewing the above authorities, I find that the Plaintiff does not have a right to lodge a caveat over the said land. I am guided by the decision of the Federal Court in Chor Phaik Har v Farlim Properties (supra), where Mohamed Dzaiddin FCJ (as he was then) stated: - “It must be observed at the outset that there is no clear authority for the proposition that a beneficiary under an intestacy has no interest in the property of a deceased person until the estate has been fully administered. In our view, however, there is much persuasive force in what is stated in the textbook on "The Law and Practice of Intestate Succession" by C.H. Sherrin and Bonehill. At p. 93 the learned authors opined as follows: Questions accordingly arise as to the nature of the beneficiary's interest under an intestacy during the course of administration. Has he, for instance, an interest which is capable of being bequeathed by his will or of being disclaimed? 17 There is considerable authority on this point and the answers to the questions posed are to be found in the House of Lords decisions in Lord Sudeley v. Attorney General, and Dr. Barnado's Homes National Incorporated Association v. Commissioners for Special Purposes of the Income Tax Acts and in the Privy Council decision in Commissioner of Stamp Duties (Queensland) v. Livingston [1965] AC 694. Although these cases were all concerned with testate succession, the principles stated are usually regarded as being applicable equally to the nature of a beneficiary's right on intestacy. [Emphasis added]. The basic principle appears from the Barnado's case, where it was clearly stated: When the personal estate of a testator has been fully administered by his executors and the net residue ascertained, the residuary legatee is entitled to have the residue as so ascertained, with any accrued income, transferred and paid to him: but until that time he has no property in any specific investment forming part of the estate or in the income from any such investment, and both corpus and income are the property of the executors and are applicable by them as a mixed fund for the purposes of administration. 18 We would also refer to a passage in "Executors, Administrators and Probate (17 Edn.), 1993" by Williams, Mortimer and Sunnecks which stated at p. 1050: A residuary legatee has no interest in a defined part of the estate until the residue is ascertained, nor can income be ascribed to unascertained residue. His right, which is of course transmissible, is to have the estate properly administered and applied for his benefit when the administration is complete. The right of a beneficiary claiming on a total intestacy is similar, except that he takes under a statutory trust for sale and conversion. [Emphasis added]. Based on the above commentaries, founded no doubt on the analogous principle of law concerning testate succession, it is our conclusion that in law a beneficiary under an intestacy has no interest or property in the personal estate of a deceased person until the administration of the latter's estate is complete and distribution made according to the law of distribution of the intestate estate.” 19

This position was also stated by Gopal Sri Ram JCA in Luggage Distributors (supra). It is worth repeating what his Lordship stated in the said case: - “Another illustration is afforded by the facts of Tan Heng Poh v. Tan Boon Thong [1992] 1 CLJ 316[1992] 2 MLJ 1 which concerned the interest of a beneficiary under a will. Although the correctness of this decision in another respect, not relevant for present purposes, has been called into question and effectively reversed [see Chor Phaik Har V. Farlim Properties Sdn. Bhd. [1994] 4 CLJ 285], it remains as authority for the proposition that a beneficiary under a will has no caveatable interest until his testator's estate has been fully administered.”

I also refer to the decision of the Federal Court in Al Rashidy Kassim v Rosman Roslan [2007] 3 CLJ 361 and the Court of Appeal in Magna Bay Sdn Bhd v Bahili Mohd Yaman & Anor [2018] 4 CLJ 157. 20

In Magna Bay Sdn Bhd v Bahili (supra), Harmindar Singh JCA (as he then was) stated:- “ [14] In this respect, it is trite law that a beneficiary under an intestacy has no interest or propriety in the personal estate of a deceased person until the administration of the latter's estate is complete and distribution made according to the law of distribution of the intestate estate (Chor Phaik Har v. Farlim Properties Sdn Bhd [1997] 4 CLJ 393; [1997] 3 MLJ 188 FC). Nevertheless, a beneficiary may still have a legal remedy to recover the assets of the estate provided special circumstances are shown to exist (Wong Moy (Administratix of the Estate of Theng Chee Khim, (deceased) v. Soo Ah Choy [1996] 3 SLR 398 followed by the Federal Court in Al Rashidy, supra; see also Joseph Hayim Hayim and Another v.

Therefore, one could summarise the applicable legal position concerning the rights of a beneficiary of an estate to seek protection of his or her interest are as follows: - 21

The beneficiaries of an estate do not have a caveatable interest over the lands owned by the deceased until such a time that the estate is fully administered.

This general rule is however protected by equity as and when there exist special circumstances. This is shown in situation where it is shown that properties of the deceased ought to be protected due to circumstances such as fraud by the administrator.

The categories in which this may be applicable are not closed but as seen in the cases cited earlier, it must be shown that the said properties must be protected and preserved. Such an instance arises when the administrator is found to have transferred the property to himself or that the land was transferred from the estate to a party by way of fraud. Therefore, the Plaintiff must show to this Court that her claims as stated in Form 19B and the accompanying affidavit fulfil the requirements of the law summarised above to extend the caveat under section 326 of the National Land Code 1965. 22

I find that the issues raised by the Plaintiff in Form 19B, and the affidavit filed in support of the same do not disclose a registrable interest under the National Land Code, there is no basis for the said caveat to continue. Her claim as a beneficiary over the estate of the deceased and the property of the deceased will only come into play after the estate is fully administered.

At this juncture, the Plaintiff does not have any right to lodge a caveat over the property under the National Land Code. It is not the function of this Court to make any determination on the issue of the right method of distribution, especially when dealing with a Muslim estate. I would like to stress that this Court is only concerned with the rights of parties pursuant to the National Land Code.

The Plaintiff has failed to pass the first hurdle as laid down by the Court of Appeal in Luggage Distributors (supra). She has failed to show any registrable interest in the land capable of protection under section 323 of the National Land Code 1965 and should not continue under section 326(2) of the National Land Code

Her claims are solely concerning her rights in personam against her mother and brother and do not fall within the purview of the said proviso. 23

Furthermore, she has not shown any special circumstances justifying her action of filling the caveat on the property. The Plaintiff’s Form 19B shows that the said property remains part of the property of the estate that is still being administered by the mother. I do not find any special circumstances that have been pleaded or shown by the Plaintiff, in the said Form 19B, justifying her right to claim as a beneficiary of the estate. Therefore, the general rule as laid down in Luggage Distributors (supra) and Chor Phaik Har v Farlim Properties (supra) is still applicable.

I also find that the dispute appearing in the Plaintiff’s Form 19B and the affidavit filed thereto relate solely to the strained familial relationship between parties. I am reminded of what Hamlet said to his uncle, Claudius, “a little more than kin and less than kind.” This strained relationship, however evincing and disheartening, unfortunately does not justify the extension of the caveat. They do not fall under any of the categories justifying the extension of the caveat under section 326 of the National Land Code 1965. 24 C. Decision of this Court

Given the above, I hereby dismiss the Plaintiff’s application in the Originating Summons with costs of RM5,000.00 subject to allocator to be paid to the Defendants. Dated 9th of June 2021 Dato’ Indera Mohd Arief Emran bin Arifin Judicial Commissioner High Court Malaya Kuala Lumpur NCvC 8 25 Mr. S Thilaga for the Plaintiff Messrs. S Thilaga Advocates & Solicitors Ahmad Fadzli bin Abdul Salam for the Defendants