Selvarany A/P Chelliah v 1. ) Selvarajan A/L Chelliah (WA-24NCvC-1250-07/2021)

SELVA VISHNU A/L CHELLIAH ...DEFENDANTS GROUNDS OF JUDGMENT 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 3 Introduction [1] This was the Plaintiff’s application for, inter alia, the distribution of the estate of one Chelliah a/l Vallipuram, leave to dispose of or to sell the estate property, proceeds of the sale to be distributed amongst the beneficiaries, and for the shares of the beneficiaries in the estate property to be confirmed by the Court. The factual background [2] The Plaintiff and the Defendants are children of one Chelliah a/l Vallipuram (“Chelliah”) who had died intestate in March 1972. In 1976, Letters of Administration was granted to his wife, Maheswary and the Plaintiff, to administer Chelliah’s estate, which comprised only one landed property, a single-storey terrace house in Petaling Jaya, Selangor (“the Estate Property”). [3] Maheswary passed away in March 2014. Although she was in possession of the Letters of Administration, both she and the Plaintiff had failed to complete the distribution of the Estate Property. After the death of Maheswary, the Second Defendant had extracted a grant of probate dated 19 October 2016, based on a will purportedly executed on 10 April 2002 by the late Maheswary. However, upon an application by the Plaintiff, the will was declared null and void by the High Court in March 2018. [4] In May 2019, by virtue of section 8 of the Small Estates (Distribution) Act 1955 (“Small Estates (Distribution) Act”), the Plaintiff petitioned 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 4 (“the Petition”) for an order in relation to the interest of the late Maheswary. [5] In May 2021, after hearing the Petition, the Land Administrator ruled that the late Maheswary had no interest in the Estate Property, and, therefore, dismissed the Petition. It was crucial to note that at this hearing, none of the Defendants were present. [6] In July 2021, this Application was filed, which was allowed in principle for the following reasons. Contentions, evaluation, and findings [7] Although several averments were made during the hearing of this Application, in the final analysis, the gist of the Defendants’ resistance to this Application was premised on two grounds, namely that the estate of Maheswary had yet to be administered, and secondly, that the Estate Property had not been registered and vested in the name of the Plaintiff as administrator pursuant to section 346 of the National Land Code 1965 (“National Land Code”). Whether the estate of Maheswary had to be administered first [8] On the first issue, the Defendants contended that Maheswary’s interest in the Estate Property had still not been administered and distributed pursuant to the Probate and Administration Act 1959 (“the Probate and Administration Act”), and the Distribution Act 1958 (“Distribution Act”); and since Maheswary had died before the Estate Property was 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 5 administered and distributed, this Application was, therefore, misconceived and unsustainable. [9] I was unable to accept the contention of the Defendants as pursuant to section 6 of the Distribution Act, Maheswary’s shares in the Estate Property had devolved to Chelliah’s estate. The provision reads: Section 6 – Succession to intestate estates

After the commencement of this Act, if any person shall die intestate as to any property to which he is beneficially entitled for an interest which does not cease on his death, such property or the proceeds thereof after payment thereout of the expenses of due administration shall, subject to the provisions of section 4, be distributed in the manner or be held on the trusts mentioned in this section, namely- …

if an intestate dies leaving issue but no spouse and no parent or parents, the surviving issue shall be entitled to the whole of the estate; [Emphasis added.] [10] Maheswary, therefore, who was a beneficiary of Chelilah’s estate, had no interest in the Estate Property until the administration of the Chelliah’s estate was complete and distribution made according to the laws of the distribution of intestate estates. This is trite law as expounded by the Federal Court in Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 4 CLJ 285. [11] Furthermore, the Plaintiff had already applied to the Land Administrator pursuant to section 8 of the Small Estates (Distribution) Act for the 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 6 determination and distribution of Maheswary’s interest in the Estate Property and, after perusing the application, the Land Administrator had ruled that after her death, Maheswary had ceased to have any interest in the Estate Property. Maheswary’s death before the completion of the administration and distribution of Chelliah’s estate had caused her interest to cease, and as such, it had devolved to the estate of Chelliah. Section 8 of the Small Estates (Distribution) Act reads: Section 8 – Petition for distribution

Where any person has died intestate leaving a small estate, any person claiming to be interested in the estate as a beneficiary, or a creditor, or a purchaser, or in the circumstances mentioned in subsection 18(1) the penghulu or a Settlement Officer of the district or of the locality in which any land of which the deceased was the proprietor is situated, or the Official Administrator, may lodge with the Land Administrator at any district wherever the immovable property comprised in the estate is situated a petition in the prescribed form, for the distribution of the estate. …

If the Land Administrator decides that the estate is a small estate, he shall deal with the petition in accordance with subsection 4(2) but if it appears to him that it would be more expedient for the petition to be heard by another Land Administrator, he may apply to the Director of Lands and Mines or the Director General of Lands and Mines, as the case may require, for an order to be made under subsection 4(2). *** Section 4 – Jurisdiction in respect of small estates …

The Land Administrator of the district where a petition has been lodged or in the case of more than one petition has been lodged, the Land 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 7 Administrator of the district where the first petition has been lodged, shall have exclusive jurisdiction to deal with the distribution and administration of the whole estate wherever situated: [Emphasis added.] [12] It was crucial to note that the Defendants had not explained their absence at the hearing before the Land Administrator, nor had they disputed the decision of the Land Administrator. As such, the Defendants were estopped from challenging the decision of the Land Administrator and from resisting this Application. Whether the Estate Property had to be registered and vested in the Plaintiff’s name [13] The Defendants further contended that the Estate Property had not been registered and vested in the name of the Plaintiff, pursuant to section 346 of the National Land Code. In gist, the Defendants’ claim was that the Plaintiff had bypassed section 346 of the National Land Code, which reads: Section 346 – Registration of personal representatives

The personal representative or representatives of any deceased person may apply to the Registrar under this section to be registered as such in respect of any land, or share or interest in land, forming part of that person's estate; and the Registrar, if satisfied that any estate duty due in respect of the estate has been paid, or a postponement of payment allowed in respect of the land, share or interest in question, shall give effect to the application in accordance with subsections (3) and (4). [Emphasis added.] 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 8 [14] An apt starting point would be to understand the role and function of an administrator, which was explained by Vincent Ng J (as he then was) in Re: Estate of Teoh Cheow Choon; Ex parte: Khor Hong Luang [1994] 4 CLJ 575, in the following passage: An administrator is a person who obtains his authority solely from the grant of Letters of Administration and to whom representation of the deceased is committed by the Court in default of an executor. His office resembles that of an executor but, since he has not been selected by the deceased, he is, in general, obliged to give a bond with sureties for the due performance of his duties which (in regard to immovable property) he could perform only with the sanction of the Court, by way of an application for leave to distribute or transfer. As he derives his authority and powers only from the Court, s. 60 (4) of the Probate and Administration Act 1959, provides that he cannot without previous permission of the Court:

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

lease any such property for a term exceeding five years. [Emphasis added.] [15] The Defendants contended that the Plaintiff would not be able to sell the Estate Property pursuant to section 60(4) of the Probate and Administration Act, which reads: Section 60 – Power of personal representative to dispose of property …

An administrator may not, without the previous permission of the Court – 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 9

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. [Emphasis added.] [16] In support of their argument, the Defendants relied on the Court of Appeal decision in Amanah Raya Bhd (representative for Chen Song Lim, deceased) v Ong Chin Hoo [2020] 3 MLJ 463. In my view, that case may be distinguished from the facts of the present case, as in that case, the beneficiaries in question had entered into an agreement to sell the property of the deceased without first having obtained letters of administration. In the present case however, the Letters of Administration was issued by the Court in 1976. [17] Furthermore, in the case of Re: Estate of Teoh Cheow Choon Ex parte: Khor Hong Luang, it was held that it was unnecessary for the executor under a will or the administrator under letters of administration to apply for vesting of the deceased’s property to his name. In this Application, the Plaintiff had in fact applied for leave to dispose or to sell the Estate Property and proceeds of the sale be distributed to the beneficiaries, which was in accordance with section 60(4) of the Probate and Administration Act. [18] The Plaintiff also brought to the Court’s attention, the Federal Court case of Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrator of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 10 721 (“Tebin bin Mostapa”). In that case, the issue was whether an administrator of the estate of a deceased land owner in Sarawak, who had yet to have the lands in question registered in his name, could qua administrator apply to Court under section 177 of the Sarawak Land Code to remove a caveat affecting the lands. The provision reads: Section 177 – Procedure for removal

Any registered proprietor or any other person having a registered estate or interest in the estate or interest may apply to court for removal of a caveat. [Emphasis added.] [19] At the Federal Court, it was held that section 177 of the Sarawak Land Code must be given a harmonious interpretation and should not be construed literally to mean that only a registered proprietor of land or person having a registered interest in land could apply to remove a caveat, and that section 177 of the Sarawak Land Code had to be read purposively and harmoniously with sections 2, 113, 115 and 218 of the Sarawak Land Code, all of which read: Section 2 – Interpretation “proprietor” includes the Government and any person entitled to an estate or interest in alienated land, whether such estate or interest is protected by registration or not, but does not include any person holding or deemed to hold land by licence from the Government; ****** 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 11 Section 113 – When instruments deemed to be registered. Every grant and lease of State land and every instrument or other dealing affecting land under this code shall be deemed to be registered under the provisions and for the purposes of this code as soon as particulars regarding the same, together with the name of the person entitled to the interest therein, have been entered on the Register and the entry signed by the Registrar: Provided that any grant, lease or provisional lease of State land shall also be deemed to be registered as soon as one part of such grant or lease, duly completed is permanently annexed to, or forms party of, the Register. ****** Section 115 – Registered proprietor The person named in any grant, lease or other instrument registered in accordance with section 113 as entitled to or taking any estate or interest shall be deemed to be the registered proprietor thereof. ****** Section 218 – Legal representatives. In any form under this code, the description of any person as proprietor, transferor, transferee, chargor, chargee, lessor, lessee or sublessee, or as trustee, or as having or taking any estate or interest in any land, shall be deemed to include the heirs, executors and administrators and assigns of that person. [Emphasis added.] [20] The Federal Court concluded, therefore, that a registered proprietor, pursuant to section 177 of the Sarawak Land Code, would include a deceased registered proprietor’s executor or administrator. 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 12 [21] Although the Federal Court in Tebin bin Mostapa was not dealing with section 346 of the National Land Code, in my view, the principle was the same, which meant that section 346 of the National Land Code should be read purposively and in harmony with sections 39(2), 59, 60 and 68 of the Probate and Administration Act, all of which read: Section 39 – Vesting of property of an intestate …

On the making of an order for a grant of administration by the Court all such property shall vest in the administrator. ****** Section 59 – Rights of action of personal representative Subject to any other written law, a personal representative has the same powers to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts due to him at the time of his death as the deceased had when living. ****** Section 60 – Power of personal representative to dispose of property …

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. 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 13 ****** Section 68 – Duties of representatives

On the death of a person intestate as to any property, the property shall be held by his personal representatives-

as to the immovable property upon trust, subject to section 60, to sell the same; and

as to the movable property upon trust to call in, sell and convert into money such part thereof as may not consist of money, with power to postpone the sale and conversion for such a period as the personal representatives, without being liable to account, may think proper, and so that any reversionary interest be not sold until it falls into possession, unless the personal representatives see special reason for sale. [Emphasis added.] [22] To further support the Plaintiff’s contention, reference was made to section 8(1) of the Civil Law Act 1956, which provides that on a person’s death, all causes of action subsisting against or vested in him shall survive either against or for the benefit of the estate. The provision reads: Section 8 – Effect of death on certain causes of action

Subject to this section, on death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate: 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 14 [23] After taking into consideration the case law and statutory provisions, I was unable to accept the Defendants’ contention that the Plaintiff should obtain a separate vesting order before making this Application, bearing in mind that in this Application itself, leave of Court to dispose of the Estate Property was already sought by the Plaintiff. [24] It was also a fact that there was an inordinate delay in the administration of Chelliah’s estate, and as such, there was no reason for the Defendants to delay it further, bearing in mind that the Defendants would benefit equally from the distribution of the proceeds of the sale of the Estate Property. [25] It was also undisputed that the First and Fifth Defendants had no objection to the Estate Property being sold and proceeds divided. The resistance stemmed from the Second, Third and Fourth Defendants, especially the Second Defendant who was occupying the Estate Property since 2015, and refused to vacate it. Despite this fact, I had not allowed the Plaintiff’s claim in this Application for the rental from the Second Defendant. [26] In fact, from the reliefs that the Plaintiff had prayed for as listed below, I had not allowed prayers (c), (e), (k) and (l), which included the claim for the rental from the Second Defendant: a) That the Second Defendant return the original title deed of the Estate Property to Plaintiff; b) That the beneficiaries and their shares in the Estate Property to be confirmed by the Court; 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 15 c) That co-proprietorship of the Estate Property by the beneficiaries be determined pursuant to section 145 of the National Land Code; d) That the Plaintiff be granted leave to dispose or to sell the Estate Property and proceeds of the sale be distributed to the beneficiaries; e) That the open market value of the Estate Property to be determined; f) That the beneficiaries be given the liberty to purchase the Estate Property failing which the Estate Property is to be sold to the public; g) That if the beneficiaries fail to purchase the Estate Property in three months’ time, the Plaintiff will be given the liberty to sell the Estate Property; h) That the Plaintiff will be given the permission to do whatever necessary to execute the documents for the sale of the Estate Property; i) That the Plaintiff will be given the permission to appoint the necessary solicitors to act on her behalf to complete the sale of the Estate Property; j) Within 10 days after receipt of the proceeds of sale, the same is to be distributed to the beneficiaries according to their respective shares; k) That the Second Defendant pays rental of the Estate Property beginning from the month of September 2015 until the vacant 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 16 possession of the Estate Property be given to the successful purchaser/ bidder; l) The rental of the Estate Property recovered from the Second Defendant be divided among the beneficiaries according to their respective share; m) That the Land Administrator/ Registrar of Lands be directed to register the new proprietorship of the Estate Property. [27] It would, therefore, be inequitable for the Defendants to resist this Application as they had done so based on their personal motives, and which were not in the interest of all the beneficiaries. This was fortified by his involvement in the purported will of Maheswary which was eventually declared null and void. [28] As such, selling the Estate Property and dividing the proceeds would be a measure in good faith by the Plaintiff, which was also fair, reasonable and in the interest of all the beneficiaries. Conclusion [29] In the upshot, based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, including the written and oral submissions of parties, this Application was allowed with costs, except for prayers (c), (e), (k) and

as alluded to above. 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 17 Dated: 7 June 2022 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Plaintiff – V Kumaresan; Messrs Huang Khairun Kumar & Associates For the Defendants – Ashok Kandiah; Messrs Kandiah Partnership Cases referred to: ➢ Amanah Raya Bhd (representative for Chen Song Lim, deceased) v Ong Chin Hoo [2020] 3 MLJ 463. ➢ Re: Estate of Teoh Cheow Choon Ex parte: Khor Hong Luang [1994] 4 CLJ 575 ➢ Solid Invention Sdn Bhd v Lai Kim Fong [2019] MLJU 595 ➢ Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint 7 June 2022 ……………………………………………………………………………………………… ________________________________________________________________________ 18 administrator of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721 Legislation referred to: ➢ Civil Law Act 1956 – section 8 ➢ Distribution Act 1958 – section 6 ➢ National Land Code 1965 – section 346 ➢ Probate and Administration Act 1959 – sections 31, 39(2), 59, 60, 68 ➢ Sarawak Land Code – sections 2, 113, 115, 177, 218 ➢ Small Estates (Distribution) Act 1955 – sections 4, 8