Tan Chin Hock @ Sunny v Chan Teng Yoon (BA-22NCvC-335-08/2021)

CHAN TENG YOON [NO. K/P: 601028-08-6437]

PENTADBIR TANAH DAERAH HULU LANGAT SELANGOR DARUL EHSAN … DEFENDAN-DEFENDAN GROUNDS OF JUDGEMENT

The 1st Defendant, in this case, had initially vide enclosure 24 applied to strike out the Plaintiff’s claim under Order 18 rule 19 of the Rules of Court 2012 (ROC 2012). However, at the hearing of enclosure 24, the 1st Defendant raised a preliminary objection. Upon 08/12/2022 09:24:06 BA-22NCvC-335-08/2021 Kand. 74 the 1st Defendant’s request, the preliminary objection was heard first.

In his preliminary objection against the Plaintiff’s action, the 1st Defendant contended that since the Plaintiff is seeking a declaration that the transfer of a property pursuant to a Grant of Probate with Will annexed was done fraudulently and thus null and void, it is, therefore, a Probate action. Hence, it is mandatory for the Plaintiff to comply with the requirements of Order 72 of the ROC 2012, that is by first issuing a citation pursuant to Order 72 rule 7 of the ROC

The 1st Defendant submitted that the Plaintiff’s failure to comply with the said mandatory requirements are fatal and therefore the Plaintiff’s action ought to be struck off.

The 1st Defendant’s preliminary objection was dismissed. The 1st Defendant then applied to withdraw enclosure 24 without costs. The Plaintiff had no objection, and therefore, the 1st Defendant’s application in enclosure 24 was struck out with no order as to costs. The 1st Defendant then appealed against this Court’s decision to dismiss the preliminary objection.

The facts of the case as stated in the Plaintiff’s Statement of Claim are as follows: a. The Plaintiff is the lawful beneficiary of his great grandfather’s estate, Tan Hoi (deceased) (to be referred to as Tan Hoi-1). Tan Hoi-1 was at all material times the registered owner of a property held under EMR 3740, Lot 797 Mukim Kajang (the said property) since 03.08.1917. b. Tan Hoi-1 had died on 15.09.1924. Upon Tan Hoi-1’s death, his son, one Tan Jeng Seng and later his grandson Tan Chong Beng @ Tan Yok Kaw who was the Plaintiff’s father continued to manage the said property and had paid the quit rent on the said property yearly. When the Plaintiff’s father passed away on 08.02.2006, the Plaintiff continued to manage the said property and paid the quit rent yearly. The Original Issue Title for the said property is in the Plaintiff’s possession. c. The said property was at all material time with and in the possession, care and control of the Plaintiff’s family and formed part of the estate of Tan Hoi-1. The said property was let to various tenants on monthly basis by the Plaintiff’s family. d. On 19.08.2021, the Plaintiff was notified by one of the tenants that there were inquiries regarding the sale of the property. Upon further investigation and enquiries, the Plaintiff found that the said property was transferred to the 1st Defendant purportedly by way of a Probate application. e. The Plaintiff conducted an online search at the Shah Alam High Court for the Probate application vide Originating Summons No. BA-32NCVC-704-09/2021. The Plaintiff discovered that the 1st Defendant, one Chan Teng Yoon (NRIC No. 601028-08-6437) had named himself as the applicant in the said Probate application and had claimed himself as the executor and beneficiary under a Will dated 21.09.2007 purportedly given by a person named Tan Hoi with NRIC No. 330428-71-5069 (to be referred as Tan Hoi-2), who had claimed to be the registered owner of the said property. f. Subsequently, on 25.08.2021 the Plaintiff lodged a police report against the 1st Defendant for transferring the said property fraudulently.

The Plaintiff claimed that the 1st Defendant had committed fraud-a. by preparing and presenting as valid a Will dated 21.09.2007 purportedly executed by Tan Hoi-1 although at that material time Tan Hoi-1 who was the registered owner of the said property died on 15.09.1924. b. by using as valid a Will dated 21.09.2007 purportedly executed by Tan Hoi-2 on 21.09.2007 wherein the said property was bequeathed to the 1st Defendant as the sole beneficiary, though Tan Hoi-2 was not even born when the said property was registered in the name of Tan Hoi-1 on 03.08.1917. c. by using the Will dated 21.09.2007 fraudulently to apply for a Grant of Probate vide Originating Summons No. BA-32NCVC- 704-09/2021 and thereafter registering his name as the executor and beneficiary of the said property.

Therefore, the Plaintiff claimed that the said property was fraudulently transferred to the 1st Defendant without the Plaintiff’s knowledge and/or consent of the beneficiaries of the estate of Tan Hoi-1, the registered owner.

The law pertaining to a Probate action is provided under Order 72 of the ROC 2012. What amounts to a Probate action was explained in Order 72 rule 1 (2). It states as follows: “(2) In these Rules, "probate action" means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious.”

Upon perusal of the Pleadings and upon reading the written submissions filed by the Plaintiff and the 1st Defendant and having heard the oral submissions by the parties, I find that the Plaintiff’s claim does not fall within the ambit of Order 72 of the ROC 2012 and therefore, there was no requirement for the Plaintiff to first issue a citation pursuant to Order 72 rule 7 of the ROC 2012. My reasons are stated below.

I find the crux of the Plaintiff’s claim is for the return of the said property which the Plaintiff claimed belonged to Tan Hoi-1 and was fraudulently transferred and registered in the name of the 1st Defendant as the executor of the estate of Tan Hoi-2.

The Plaintiff in his Statement of Claim had stated that the actual registered owner of the said property was Tan Hoi-1 since 03.08.1917 and upon the death of Tan Hoi-1 on 15.09.1924, the said property was managed by the Plaintiff’s grandfather, father and subsequently by the Plaintiff himself. The Plaintiff alleged that the original title of the said property is still in his possession and in the name of Tan Hoi-1.

The Plaintiff’s claimed that the said property was never owned and registered in the name of Tan Hoi-2 with NRIC No. 330428-71-5069 who was born on 28.04.1933. When the title was registered in the name of Tan Hoi-1 in 1917, Tan Hoi-2 was not even born. Therefore, the Plaintiff claimed that Tan Hoi-2 never had a beneficial interest in the said property at the time of the making of the Will on 21.09.2007 or anytime thereafter. The said property never formed part of the estate of Tan Hoi-2.

Hence, the Plaintiff in his claim is not challenging the Will made by Tan Hoi-2 on 21.09.2007, but the issue in the Plaintiff’s claim is whether the subject matter devised and bequeathed under the said Will, i.e. the said property, forms part of the estate of Tan Hoi-2.

Perusal of the Plaintiff’s Statement of Claim, I find the Plaintiff is not seeking revocation of the grant of Probate obtained by the 1st Defendant. The reliefs sought by the Plaintiff, inter alia, are as follows: a. declaration that the transfer of the property held under GM 6984, Lot 797, Bandar Kajang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan (Formerly held under EMR 3740, Lot 797 Mukim Kajang) now registered in the name of Chan Teng Yoon (NRIC No. 601028-08-6437) the 1st Defendant as the Executor of the estate of the late Tan Hoi (NRIC No: 330428- 71-5069) was fraudulently done and therefore is null and void; b. that the registration of the property held under GM 6984, Lot 797, Bandar Kajang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan (Formerly held under EMR 3740, Lot 797 Mukim Kajang) now registered in the name of Chan Teng Yoon as the beneficiary of Estate of Tan Hoi (NRIC No: 330428-71- 5069) pursuant to Grant of Probate be declared null and void and the memorial in the name of the late Tan Hoi who had held the property held under EMR 3740, Lot 797 Mukim Kajang since 3.8.1917 and now held under substituted Title No: GM 6984, Lot 797, Bandar Kajang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan be reinstated.

I agree with the learned counsel for the Plaintiff’s submission that the Plaintiff has no locus to interfere in the Probate action of Tan Hoi-2 because he is not a legal beneficiary of Tan Hoi-2’s estate nor can the Plaintiff claim any property rightfully held by Tan Hoi-2 at the time of his death.

I am of the view that the Plaintiff is not a “person interested” pursuant to section 41 of the Probate & Administration Act 1959. Plaintiff is not the beneficiary of Tan Hoi-2 therefore, does not have the locus to interfere in the probate action of Tan Hoi-2 and hence would not come within the scope of Order 72 (see Lionel Lau Siang Kok v Datuk Seri Panglima Lau Cho Kun [2014] 10 CLJ 500).

The Plaintiff is challenging the legitimate ownership by Tan Hoi-2 of the said property, which the 1st Defendant has alleged to be part of the estate of Tan Hoi-2 and which forms part of the estate bequeathed in the said Will. The Plaintiff is not challenging the rest of the contents of the Will and Grant of Probate. In this case, at the trial, the Court has to determine whether Tan Hoi-2 had ownership rights over the said property before he could Will it. A testator cannot Will a property without the existence of ownership rights over the property (David Wee Eng Siew v Lim Lean Seng & Anor [2014] 1 CLJ 299). Hence, except for the enquiry into the legitimacy of inclusion of the said property in the Will and the Grant of Probate, the validity or otherwise of the rest of the Will and subject matter of the Grant of Probate to the 1st Defendant is not a matter of enquiry before this Court.

Further, the Plaintiff also claimed that the 1st Defendant had used a Will as an instrument to fraudulently transfer the property of Tan Hoi-

1.

Therefore, the Plaintiff has to bring an action by way of Writ to prove that Tan Hoi-1 was the rightful owner of the said property and hence the said property does not form part of the estate of Tan Hoi-2 and the 1st Defendant had used the said Will as an instrument to fraudulently transfer and register the said property to his name. Thus, it is my considered view that the Plaintiff’s claim does not fall within the scope of Order 72.

It is trite that this Court has the jurisdiction to set aside any order made by another court of concurrent jurisdiction if it is proven to have been obtained illegally based on ex debito justitie principle (see Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 2 CLJ 75).

Perusal of the authorities cited by the 1st Defendant, I find the authorities cited involved beneficiaries to the estate challenging the Grant of Probate or Letters of Administration. Which is not the case in the Plaintiff’s claim.

For the reasons stated above and based on the Statement of Claim filed by the Plaintiff, the Court finds that the Plaintiff’s claim against the 1st Defendant is for fraudulently transferring the said property to the 1st Defendant by using a Will as an instrument. I, therefore, ordered that 1st Defendant’s Preliminary Objection be dismissed with costs of RM4,000.00

The 1st Defendant also applied to withdraw his application under Order 18 rule 19 in enclosure 24 with no order as to costs. The Plaintiff had no objection and thus enclosure 24 was struck out with no order as to costs.

The Plaintiff vide enclosure 4 applied for an injunction to preserve the status quo of the said property and to restrain the 1st Defendant from having any dealings on the said property until the disposal of the suit. The Court on 09.03.2022 had allowed an interim order pending the disposal of enclosure 4.

The Plaintiff then applied for the interim order dated 09.03.2022 to be extended till the disposal of the Writ action. The 1st Defendant did not object to the Plaintiff’s application and therefore by consent of both parties, the Court allowed an extension of the interim order in enclosure 4 until the disposal of the Plaintiff’s Writ action. Dated: 8th day of December 2022 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiff : James Dominic Culaz & Sonia Deva Doss (Messrs Culaz & Assoc.) For the 1st Defendant: Krishnasamy Bhaktavatsalu (Messrs Krishna Bhakta & Associates) For the 2nd Defendant: Maizatul Munirah Abdul Rahman (Pejabat Penasihat Undang-Undang