Tan Kah Fatt & 1 Lagi v Tan Ying (1. B-02(NCvC)(W)-1091-05/2018, 2.B-02(NCvC)(W)-1162-05/2018)

1.

TAN SIN YEE … PERAYU-PERAYU (No. K/P: 021008-10-1600) (dengan pembelaan oleh Wakil Litigasi, Lu Yan Liu) TAN YING … RESPONDEN (No. Passport China: G36857658) [DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN NO. WA-22NCVC-297-06/2015 TAN YING … PLAINTIF (No. Passport China: G36857658)

TAN SIN YEE (No. K/P: 021008-10-1600) … DEFENDAN-DEFENDAN] (dengan pembelaan oleh Wakil Litigasi, Lu Yan Liu) 2 DIDENGAR BERSAMA DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: B-02(NCvC)(W)-1162-05/2018

Y-TEQ AUTO PARTS (M) SDN BHD (No. Syarikat: 736211-P)

Y E MOTORCYCLES (M) SDN BHD … PERAYU-PERAYU (No. Syarikat: 664541-P)

TAN YING (No. Passport China: G36857658) (sebagai pentadbir bersama Harta Pusaka TAN KAH YONG, SI MATI) … RESPONDEN-RESPONDEN [DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO: BA-22NCVC-571-10/2016 (Dahulu Didaftarkan Di Bawah Saman Pemula No. 24-667-06/2015) Dalam perkara berkenaan dengan Harta Pusaka TAN KAH YONG [No. K/P: 780731-10-5181] (Si Mati) dalam Petisyen Mahkamah Tinggi Malaya di Shah Alam Petisyen No. 31-518-12/2012 3 DAN 5 Dalam Perkara berkenaan dengan Seksyen 67 Akta Probet dan Pentadbiran 1959 DAN 10 Dalam perkara berkenaan dengan Aturan 80, Kaedah-Kaedah Mahkamah 2012 DAN 15 Dalam perkara berkenaan dengan Seksyen 9 dan 53 Akta Relif Spesifik 1950

Y-TEQ AUTO PARTS (M) SDN BHD

Y E MOTORCYCLES (M) SDN BHD … PLAINTIF-PLAINTIF

TAN KAH FATT

TAN YING (NO. PASSPORT CHINA: G36857658) (sebagai pentadbir bersama Harta Pusaka TAN KAH YONG, SI MATI) … DEFENDAN-DEFENDAN] 35 CORAM ZALEHA BINTI YUSOF, JCA 40 YAACOB BIN HAJI MD SAM, JCA LAU BEE LAN, JCA 45 4 GROUNDS OF DECISION 5 [1] There are 2 appeals before us which arose out of 2 High Court Suits which were ordered to be heard together at the High Court. They are-

(i) Appeal 1091 i.e. Suit No: 22 NCvC -297-06 /2015 which the learned Judicial Commissioner (‘JC’) referred to in her Grounds of 10 Judgment (‘Grounds’) as “Suit 1”; and

(M) Sdn Bhd (‘Y-Teq’) and Y E Motorcycles (M) Sdn Bhd (‘Y E 20 Motorcycles’), 1st and 2nd Plaintiffs in Suit 2, whilst Tan Kah Fatt and Tan Ying are the 1st and 2nd Respondents/1st and 2nd Defendants. [4] For ease of reference, parties will be referred to as they were in proceedings before the High Court. 25 [5] Having considered the Written and Oral Submissions of the respective Counsel and the Records of Appeal before us, we unanimously dismissed the 2 appeals. Herein are the reasons for our decisions. 30 5 Salient Background Facts 5 [6] The undisputed facts as gleaned from the Grounds which is based on the Agreed facts filed by the parties. Tan Kah Yong (the deceased) passed away on 7/10/2012 and died intestate. The deceased left behind 2 daughters–

(i) Tan Sin Lin born on 2/1/2009 out of the deceased’s lawful 10 marriage to Tan Ying on 18/1/2005; and

(i) Tan Ying, PW2 in Suit 1;

(v) Tan Cheng San, DW4 in Suit 1, father of the deceased. 25 The only liability of the deceased as per the List of Assets and Liabilities in the LA was the funeral expenses of RM10,000.00. [8] In Suit 1, Tan Ying brought the claim against Tan Kah Fatt and 2nd Defendant (Tan Sin Yee) pleading she was legally the rightful 30 beneficiary of the estate of the deceased and for the removal of Tan Kah Fatt as co-administrator and a declaration that the 2nd Defendant in Suit 1 is an illegitimate child and does not have any legal right to 6 claim an interest in the estate of the deceased and for her to return 5 whatever monies/assets received by her/her guardian ad litem. Essentially Tan Ying relied on the following grounds:

(a) of conflict of interest that Tan Kah Fatt was one of the directors of the 2 Plaintiff companies in Suit 2 , Y-Teq and Y E Motorcycles that were suing him and Tan Ying as the 10 administrators of the deceased’s estate for (i) the return of insurance pay out of RM6,689,542.01 (‘Insurance Monies’) received by them as administrators under the policy no. 2785222A (‘the Insurance Policy’) which was insured in the deceased’s name during his tenure as director of the 2 companies, (ii) the 15 return of 3 cars i.e. Toyota Camry 2.0 bearing registration no. WKE8816, Madza 2.5 bearing registration no. WPB 101 and BMX6 bearing registration no. WVK 101 (‘the 3 Cars’) and (iii) repayment of a purported director’s advance of RM 38,650.00 given to the deceased during his tenure as a director of the Plaintiffs; and 20

(b) of misrepresentation by Tan Kah Fatt that the 2nd Defendant in Suit 1, though illegitimate was entitled to a share in the said estate of the deceased which induced her to include the 2nd Defendant as one of the beneficiaries in the LA of the estate of 25 the deceased. [9] In Suit 1, Tan Kah Fatt and the 2nd Defendant (represented by her guardian ad litem) denied Tan Ying’s claim and filed a Counterclaim against the estate of the deceased for RM1,850,000.00 as expenses 30 and education for the 2nd Defendant and a declaration that she is entitled to 25% of the estate of the deceased because there existed a purported trust for the 2nd Defendant . Among others, Tan Kah Fatt argued (i) it 7 was the deceased’s wishes that the 25 % of his properties and cash be 5 kept for the benefit of the 2nd Defendant and for his 2 daughters to be treated equally; and (ii) that he made a suggestion that the money from the deceased’s estate is to be used to redeem the disputed property known as HS(D) 230935, PT 18289, Mukim Bukit Raja, Daerah Petaling, Selangor Darul Ehsan (Tan Ying’s matrimonial home ) as it was 10 motivated by the fact that the deceased’s estate had approximately RM905,733.04 left in the account which was insufficient to pay the monthly instalments until the full settlement of the loan. [10] In Suit 2, the deceased and one Lee Guan Eng (PW3 in Suit 2) 15 (deceased’s brother in law) were directors holding 50% shareholding each in the 2 companies, Y-Teq and Y E Motorcycles. Y-Teq and Y E Motorcycles (Plaintiffs) claimed against the administrators, Tan Kah Fatt and Tan Ying (D1 and D2 respectively in Suit 2) for the return of the Insurance Monies, the 3 Cars and the purported advance loan to the 20 deceased (see para 8 (a) above). Tan Kah Fatt in his defence did not contest the Plaintiffs’ claim but also agreed with the Plaintiffs’ claim that the deceased was insured under the insurance policy no. 2785222A to allegedly protect the business of the 2 companies, that the 3 Cars were held in trust by the deceased for Y-Teq and that RM38, 650.00 was a 25 loan disbursed by Y-Teq to the deceased which became due and payable upon deceased’s death. Whereas Tan Ying (Plaintiff) in Suit 1 denied the policy was to protect the business of the 2 companies and alleged that the main purpose of the policy was for personal and family protection, the 2 companies were never named as the beneficiaries 30 under the policy and there was no trust created over the 3 Cars. 8 5 Decision of the High Court in Appeal 1162/ Suit 2 [11] The learned JC held the fundamental issue before the Court was whether there existed a position of trust. In relation to this, Her Ladyship found there were 3 sub-issues to be determined by the High Court as follows: 10 “(a) Irrefutable evidence of clear intention by words and/or conduct of the said deceased that, D2/Tan Sin Yee in Sit-1 is legitimately entitled to 25% of estate of the deceased though being an illegitimate child of the said deceased;

(b) Irrefutable evidence that the purported payments of the premium for the said life insurance policy of the said deceased which was personal to holder 15 and the purchase of the said cars registered under the name of the deceased purportedly made by the said companies constitute a trust over those properties to be held by the deceased for and on behalf of the said companies during his tenure as a director of the said companies; and

(c) That the legal requirement of the three C’s for the creation of a valid trust 20 had been satisfied, i.e. Certainty of the subject matter of the trust, Certainty of the object of the trust and Certainty of the words creating the trust.” [12] On the Insurance Monies, the learned JC dismissed Y-Teq and Y E Motorcycles’ claims primarily for the following reasons (para 51 25 Grounds):

(a) the law requires a tabled agenda and resolution of the Plaintiffs to be made in order to authorise the deceased to hold the insurance policy on trust for the benefit of the Plaintiffs, which is absent in this case;

(b) their failure to discharge the burden of proof to establish a valid trust because- 9

(i) there is no evidence to support the legal formality for 5 the creation of a trust; and

(a) there is a lack of board meeting agenda, minutes of meeting, legitimate extract of resolution to authorise the purchase and payments of the 3 Cars under the personal name of the deceased 15 during his tenure as a member of the board and for him to hold the 3 Cars for the benefit of the 1st Plaintiff;

(b) the alleged signatures of the deceased found on the purported Statutory Declaration and Directors’ Resolution for the 3 Cars 20 differ from the signature of the Notice of Resolution dated 1/4/ 2011 and 11/5/2010;

(c) the Directors’ resolutions ( pp.222-227 of Common Bundle C1 referred in Grounds) is not endorsed by the company secretary as 25 a certified true copy from the official records of the company; and

(d) the Directors’ resolution dated 28/6/2011 for the purchase of the BMW X6 allegedly signed by the deceased is inconsistent with the fact that the deceased was in China. 30 [14] On the purported loan sum of RM38,650.00 from the 1st Plaintiff, 10 the learned JC dismissed Y-Teq‘s claim primarily for the following reasons 5 (para 54 Grounds):

(a) it was not officially reflected in the Accounts and current Annual Return of the 2 Plaintiffs; and

(b) there are no Board of Meeting minute or resolution to 10 authenticate the alleged advance. Our Decision in Appeal 1162/ Suit 2 Whether the Insurance Policy was purchased by the Deceased to protect Plaintiffs or the family? 15 [15] Learned Counsel for Y-Teq and Y E Motorcycles submitted that the learned JC erred–

(a) when Her Ladyship examined the 2 companies’ claim for Insurance Monies from the perspective whether a trust was 20 created because his clients’ claim in respect of the Policy was not based on trust but rather that the Policy was purchased for their benefit;

(b) when Her Ladyship held the view that a tabled agenda and 25 resolution of the board are the only way to show the consensus of a company. Counsel argued the intention of a company could be gathered from surrounding evidence other than a written board resolution. The following passages from 3 cases were cited:

(i) Sime Darby Ltd v. Port Swettenham Authority [1966] 30 2 MLJ 116 where the Court quoted a passage from the judgment of Lennard’s Carrying Co. v. Asiatic Petroleum Co. Ltd. [1914] 1 K.B. 432 as follows: 11 “Useful guidance on how the mind and will of a company may be 5 manifested is also to be found in the judgment of Denning L.J. in Bolton (H.L.) Engineering Co. Ltd. V. T.J. Graham & Sons Ltd.”

(c) the learned JC failed to consider other relevant evidence 5 which prove that the deceased intended to purchase the Policy to protect the business of Y-Teq and Y E Motorcycles namely-

(i) the “ Large Amount Questionnaire” executed by the deceased and witnessed by Mr. Leong Tuck Keong (PW1 in Suit 2 – AIA insurance agent ) and Mr. Chin Yew Lee (PW2 10 in Suit 2 - AIA district manager). Y-Teq and Y E Motorcycles contended that the relevant evidence established by this document is that-  p. 3 of the Questionnaire lists down the name of the 2 companies, Y-Teq and Y E Motorcycles 15  p. 4 of the Questionnaire states that the intention of purchasing the Policy is to ensure that the 2 companies keep on growing on business and investment;

(i) the policy was issued pursuant to the proposal form submitted by the deceased, (ii) the deceased in no uncertain terms named the second respondent as the beneficiary of the policy and (iii) had signed the proposal form witnessed by the insurance agent (second respondent). 15 [16 ] The 1st Defendant held the same position as the Plaintiffs in that the Insurance Policy was purchased by the deceased for the purpose of protecting the Plaintiffs’ business and relied on the witness statements 20 of Mr. Leong(Q&A 8), Mr. Chin ( Q&A 11) and Mr. Lee Guan Eang (Q&A 6). Requirement of Companies’ Resolutions 25 [17] We shall deal with the submissions of the Plaintiffs and the 1st Defendant together. It is significant to note that the excerpt from the judgment of H. L. Bolton (Engineering) (supra) at para 15(b) (ii) above which is relied on by the Plaintiffs must be understood in the context of the facts of the case which concerned a tenancy matter where the 30 landlords company A opposed the grant of a new tenancy against a tenant company C which occupied the premises on a sublet of part of the premises by a tenant company B which had moved out of the 14 premises. Landlords company A opposed on the ground that they 5 intended to occupy the holding for their own business. Before the hearing of the application in the county court there had been no board meeting or other collective decision showing the intention of the landlords to occupy the premises in question. The business of the landlords were customarily managed by their directors, who held only 1 board meeting a year, but 10 who had in their managerial capacity affirmed such an intention and had taken practical steps to that end. (See Headnotes). [18] However the case of H. L. Bolton (Engineering) can be 15 distinguished from the instant appeal on the facts. In the appeal before us, it is not disputed that there was no company resolution with regard to the purchase of the Insurance Policy. When it was put in cross-examination to the company secretary, Chow Chee Han (PW1-Suit) that there was no requirement to pass any resolution for the purpose of 20 buying the Insurance Policy, Chow Chee Han (PW1-Suit 1) stated (NE AR Vol. 2A/130-131) as follows: “CHOW: It depends on what insurance you are buying, if you buying a Keyman insurance is then is for the benefits of the company then you need to pass a resolution. If for personal then of course is no 25 need to inform. GK: Why do you say so? What is the basis? CHOW: Was-is considered the expenses and then assets to the company then you need to have a resolution. Just like you bought a car, an asset, you need a resolution.” 30 [19] There were records of Directors’ Resolutions (P17, P50 and P51 (2nd Defendant’s CB/59-61 respectively) and Statutory Declarations (P2, 15 P3 and P4) (2nd Defendant’s CB/ 62-64 respectively) purportedly made 5 by the deceased that the 3 Cars were held on trust by the deceased for the Plaintiffs. The determination of whether the deceased held the 3 Cars on trust for the 1st Plaintiff will be addressed hereafter. Therefore we find that the learned JC did not err when she held “there is no trust for the deceased and/or the estate of the deceased to hold the life insurance 10 policy pay-out [Insurance Monies] for and on behalf of the said companies [Plaintiffs]”. Her Ladyship’s finding, among others, which is substantiated by authorities included: “…in this legally established set-up, any proposed undertaking as the one involving the said deceased to take on a life insurance policy personal to holder 15 but to hold all benefits under the said policy for the sole benefit of the company, would in the legal circumstance requires an approved board agenda duly tabled and properly recorded in the board meeting minutes and extract resolution (circular or otherwise) to authorised the said transaction for the said deceased. Such is the legal formality which is apparently missing in this present case”. 20 [20] For the foregoing reasons we find the Plaintiffs’ contentions in para 15 (b) above are without merit. In our judgment, it is sufficient for the learned JC to conclude that in the absence of any company resolution, the Plaintiffs’ claim in respect of the Insurance Monies has not been 25 proved on a balance of probabilities. Large Amount Questionnaire [21] For completeness, since the learned JC did not make mention of 30 the Large Amount Questionnaire and the evidence of Mr. Leong Tuck Keong (PW1-Suit 2) and Mr. Chin Yew Lee (PW2-Suit 2) in the Grounds, it is incumbent on this Court to examine the evidence of these insurance agents to determine the purpose of the deceased purchasing the 16 Insurance Policy. This approach is in accord with the “plainly wrong “ 5 test principle applied in appellate intervention i.e, a decision arrived at by the trial court without judicial appreciation of the evidence might be set aside on appeal propounded in Gan Yook Chin & Anor v. Lee Ing Chin & Ors. [2004] 4 CLJ 309. At p.320 the Federal Court endorsed the following: 10 “…the court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase “insufficient judicial appreciation of evidence” merely related to such a process. This is reflected in the Court of Appeal’s restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by 15 assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him.” [22] In his witness statement Mr. Leong testified, among others, the following: 20 “7. What is the purpose of this Large Amount Questionnaire Form? In insurance practice, not everyone is entitled to be insured with a large sum. Hence, when someone intends to be insured with a 25 large sum, the Insurance Company would require some background checking on the proposed insured to determine whether he is entitled to such large insured sum.

Q: Please tell Court what is the purpose of the Tan Kah Yong, 30 the Deceased in purchasing this Insurance Policy? The purpose of purchasing this Insurance Policy is stated in the Large Amount Questionnaire:- i) at page 3, for Partnership Protection which both the 35 Plaintiffs Companies were listed for protection; 17 ii) at page 4, it was stated that:- 5 we need protection in case something happen to the director and saving for their retirement. Our company still keep on growing on business and investment.” 10 [23] The cross-examination evidence (NE/AR/Vol.2D/897-90) showed that Mr. Leong was merely a witness, he did not fill up the Insurance Proposal Form which was filled by one Evelyn, (admin of CYL agency of which Mr. Leong was attached as an Assistant Manager), he did not fill the Large Amount Questionnaire (P49) which was filled by Mr. Chin, 15 he admitted that he was not able to explain to the deceased regarding both the said forms and it was explained by Mr. Chin, his upline and he was not sure if the deceased understood all the terms of the policy. As such we are inclined to agree with the submission of Counsel for 2nd Defendant that Mr. Leong has no personal knowledge with regard to 20 the Insurance Policy and his evidence shall remain inadmissible as it is hearsay evidence. In this regard we agree with the view expressed by Abdul Kadir Sulaiman J (later FCJ) (as he then was) in Tempil Perkakas v Foo Sex Hong (t/a Agrodrive Engineering ) [1996] 2 MLJ 542 at p.547 as follows: 25 “…It is clear law that if anything is said or tendered through a witness which is not within the actual knowledge of the witness, anything said or tendered would remain inadmissible notwithstanding the omission to object by the opposing party. The opposing party cannot be taken to have admitted to what had been said and tendered.” 30 [24] Mr. Chin in his witness statement testified, among others, that he came to know the deceased and Lee Guan Eang (PW3-Suit 2) through Mr. Leong as “directors and shareholders, i.e. the key persons of the 35 18 Plaintiffs and the Plaintiffs are having properties which are under finance”. 5 When cross-examined whether the insurance money was paid out to the estate of the deceased, Mr Chin replied he did not know as it was not handled by him. When asked to whom should money under the Insurance Policy be paid, he replied “to the company.” When questioned the reason for his answer, Mr. Chin replied (NE/AR /Vol.2D/ 913) as follows: 10 “CHIN Refer to the time when I proposed the insurance to him. Because his company is owing a lot of loan. So I proposed to him, if anything happens to the Director, if anything were to happed (sic) to the Director, it would bring huge impact to the company. Therefore, I introduced the policy to him and he also accepted the policy. Which is the premium 15 shall be paid by the company. So in event of anything happens, the compensation can be paid to the company. Because it is quite a large sum, large amount to be paid by the company, which is as high as RM120,000 per year.” 20 The aforesaid answer of Mr. Chin is essentially a repeat of his witness statement in Q&A 7. [25] Para 4.2 of the Inland Revenue Board (LHDN) Public Ruling No: 25 2/2003 describes the purpose of “Key-man” insurance as follows: “4.2 Death, critical illness, sickness, accident or injury of an employee or a director may result in a loss of business income for the employer or company. Insurance may be taken on the life of an employee or a director who is a “key” person to cover the risk of loss of business income. This type of insurance is 30 known as “key-man” or “key-person” insurance. Further para 4.3 of the said Public Ruling states- “4.3 The right to the insurance proceeds of a “key-man” insurance must remain with the employer or company and the proceeds must not be payable 35 to the “key-person” or his family.” 19 5 (Emphasis provided) [26] Mr. Chin admitted that the Large Amount Questionnaire (P49) was filled by him and signed by the deceased on 30/5/2011, which significantly 10 contained the following:

(i) the part of “Personal/Family Protection and Investment” and “Partnership Protection” were marked (√);

(i) P49 was filled up by Mr Chin and was signed by the deceased. Mr. Leong was present at the scene but was uncertain whether the 10 deceased understood the contents of P49;

(v) according to the evidence of DW3-Suit1 and DW4-Suit1 (the 30 deceased’s parents), the deceased was very poor in the English language and Mr Leong who was present at the scene was uncertain if the deceased understand the contents of P49. 21 [29] Given our finding that there was inconsistency and ambiguity in the 5 Large Amount Questionnaire (P49), we are entitled to invoke the contra proferentum rule against the Plaintiffs. In this regard we agreed with the position of this Court in the case of Sim Ah Hee @ Lee Ah Hee and Anor v Affin Bank Berhad [2010] MLJU 393 in endorsing the rule as expressed by Lord Brightman in Kandasamy v .Mohamad Mustafa (1983) 10 2 MLJ 85 PC as follows: “There is a principle of constructions that if a document inter partes contains an ambiguity which cannot otherwise be satisfactorily resolved, it is to be construed adversely to the party who proffered it for execution.” 15 [30] It is not disputed that there were only 2 directors in Y-Teq and Y E Motorcycles. PW 3 -Suit 2, Lee Guan Eang, was the only director left in the 2 companies at the time of the deceased’s death. The evidence given by Lee Guan Eang in cross-examination (NE/AR/Vol.2 E/1052) showed 20 that he admitted that the Insurance Policy was bought to protect and take care of the deceased’s family and not for the Plaintiffs and it became apparent that the conduct of the deceased’s family members were using the Plaintiffs to prevent the 2nd Defendant from claiming back the portion wrongly distributed to Tan Sing Yee was nothing more 25 than an afterthought. Among others, the evidence included- “LEE: Tan Sing Ling dan juga Tan Ying telah terima peruntukan dari asset simati itu sebanyak RM3.5 juta, Yang Arif. Tetapi beliau masih tamak lagi. Jadi dengan keadaan sebegini… Oleh keadaan sebegitu, saya ingin mengambil semula duit insurans itu kembali kepada syarikat. 30 Dengan cara ini barulah syarikat boleh menjaga keluarga beliau. GK: Beliau itu siapa? LEE: Tan Kah Yong.” 22 Payment of the insurance premiums 5 [31] The Plaintiffs and the 1st Defendant argued that the payment of the insurance premiums by Y-Teq was indicative that the Insurance Policy was purchased for the protection of the business of the Plaintiffs. According to the Plaintiffs, the premium was first paid by the deceased using his credit card and charged half yearly, amounting to RM 59,544.54 10 which is equivalent to RM119,089.08 a year. These payments were subsequently reimbursed by Y-Teq by monthly instalments to the deceased’s credit card so that Y-Teq need not pay such a huge amount in one shot (evidence of Lee Guan Eang in re-examination). 15 [32] We agreed with the submission of Counsel for the 2nd Defendant that who paid the insurance premium did not matter as it will not affect the entitlement under the Insurance Policy. This fact was confirmed by Mr. Chin during cross-examination as follows: 20 “YA: Does it matter who paid the insurance premium? Chin: It doesn’t matter.” We are mindful that this confirmation was given by no ordinary person but authoritatively by the insurance agent for AIA Berhad who filled the 25 Large Amount Questionnaire and held the position of District Manager of CYL Agency. Insurance Policy with no nominee 30 [33] It is an undisputed fact that there was no nominee in the Insurance Policy and the same was not assigned to the Plaintiffs. 23 [34] The 2nd Defendant argued that in the absence of nomination of the 5 Plaintiffs as the nominee of the Insurance Policy, she as the administrator must distribute the Insurance Monies to the beneficiaries as listed in the Letter of Administration (CCB/170-172). The Plaintiffs on the other hand argued that the provisions of the Insurance Policy only allowed a natural person to be nominated as a nominee and the Plaintiffs being companies 10 are not entitled to be nominated. The Plaintiffs reiterated that the Large Amount Questionnaire which was part of the Insurance Policy was vital to determine the intention of the deceased which was to protect the business of the Plaintiffs. 15 [35] With respect, we find there is no merit in the Plaintiffs’ submission. The governing law at the material time, as highlighted by Counsel for the 2nd Defendant, were ss. 169(1) and 171 of the Insurance Act 1996 (Act 553) which provide as follows: “169. (1) Where a policy owner of a policy dies without having made a 20 nomination, subject to section 168, the licensed insurer shall pay the policy moneys of the deceased policy owner to the applicant who produces the Grant of Probate or Letters of Administration or Distribution Order.” “171. A person to whom policy moneys may be paid under section 169 shall 25 receive the policy moneys as an executor and not solely as a beneficiary and shall distribute the policy moneys in due course of administration of the estate of the deceased person in accordance with the terms of a will of the deceased person, and if there is no such will, in accordance with the law application to the administration, distribution and disposition of his estate upon his intestacy.” 30 [36] Based on the above-mentioned provisions under the Insurance Act, it is clear that where the insurance policy has no nominee and the 24 deceased died intestate as in this appeal before us, the licensed 5 insurer shall pay the policy moneys to the applicant who produces the Letters of Administration and that applicant shall distribute the policy moneys in due course of the administration of the estate of the deceased in accordance with the law applicable to the administration, distribution and disposition of his estate upon his intestacy. This legal position has 10 been confirmed by the insurers of the Insurance Policy in para 3 of its letter to the administrators of the estate of the deceased i.e the 1st and the 2nd Defendants vide the Letter of Administration when the Insurance Monies were approved for payment to them. 15 [37] There is an added reason which we must address is that we find there is much force in the submission of Counsel for the 2nd Defendant that Suit 2 was an afterthought by the family members of the deceased to recover asset that belong to the estate of the deceased. Why is this 20 so? An examination of the LA, which is a contemporaneous document showed that the estimated amount of the proceeds under the Insurance Policy was inserted in the List of Assets. (2nd Respondent’s CB/2-4). It is noteworthy that the family of the deceased had already distributed the proceeds under the Insurance Policy to the beneficiaries as listed 25 in para 7 above and what is left to be determined is the portion of Tan Sin Yee (2nd Defendant in Suit 1) where the family members claimed the deceased created a trust in favour of Tan Sin Yee which is being challenged by the Plaintiff in Suit 1 (Tan Ying). 30 [38] Tan Kah Fatt (a director of the Plaintiffs/the 1st Defendant in Suit 2/1st Defendant in Suit 1) had initially claimed that the assets as per the 25 List of Assets of the deceased, including the Insurance Monies were 5 held on trust for Tan Sin Yee. On the other hand Tan Kah Fatt claimed the Insurance Monies belonged to the Plaintiffs in Suit 2. Counsel for Tan Ying (2nd Defendant in Suit 2 and Plaintiff in Suit 1) argued that the conduct of Tan Kah Fatt was questionable as he had put himself in a position of conflict and which should not be allowed. 10 [39] In fact at the hearing before us, whereby by agreement the oral submission in Appeal 1162 preceded Appeal 1091, Counsel for Tan Kah Fatt informed the Court that Tan Kah Fatt will stand guided by the Court’s 15 instruction as to Suit 1. Further, we observed that the learned JC was very much alive to this fact when she stated, “[50]…In all the circumstances of the case and the way Tan Kah Fatt had conducted himself from the facts of the case I am unable to take him as a witness of truth looking at the evidence in its totality.” Since the learned JC has 20 made the finding of fact on the creditworthiness of Tan Kah Fatt for reasons which will become obvious when we deal with Appeal 1061 (Suit1), there is no cause for us to interfere given that learned JC had the audio advantage of seeing and hearing the witness as the trial Court judge to make a proper assessment of the said witness. 25 [40] Additionally, we agreed with the submission of the Counsel for 2nd Defendant that Tan Kah Fatt (DW1) in Suit 1 and Suit 2 cannot be permitted to approbate and reprobate. Support for the same is found 30 in Tetuan Theselim Mohd Sahal & Co & Ors v Tan Boon Huat & Anor [2017] MLJU 275 wherein this Court quoted the principle elucidated 26 by Scrutton LJ in Verschures Creameries Ltd v Hull and Netherlands 5 Steamship Co Ltd (1921) 2 KB 608 (at p.612) as follows: “The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that that it is valid, and then turn around and say it is void for the purposes of securing some other 10 advantage. That is to approbate and reprobate the transaction.” [41] For the reasons given above, we are of the considered view that the Plaintiffs are not the owner of the Insurance Policy entitling them to 15 the Insurance Monies. [42] As we find there are no merits in the Plaintiffs’ contentions in para 15 (a), (b) and (c ) above and the subparagraphs thereunder, we hold that 20 the learned JC did not err when she found that the Insurance Policy was bought by the deceased to protect the family. Whether the deceased held the 3 Cars on trust for the 1st Plaintiff? 25 [43] Under this head of argument, the Plaintiffs contended that the learned JC has erred in dismissing the Plaintiffs’ claim to the 3 Cars on essentially the 3 following grounds as stated in the Memorandum of Appeal:

(a) The 1st Plaintiff paid for the instalments of the three vehicles;

(b) Directors’ resolutions were passed to authorise the deceased to hold the three vehicles on trust for the 1st Plaintiff; and 27

(c) Statutory declarations were executed by the deceased to 5 declare that the three vehicles were held on trust by the deceased for the 1st Plaintiff. [44] Counsel for the 1st Defendant (Tan Kah Fatt) likewise contended that the deceased held the 3 Cars under trust for the Plaintiffs based 10 on the same 3 grounds canvassed by the Plaintiffs and relied on the witness statement (Q&A 18, 19, 20 and 21) of Mr. Lee Guan Eang (PW3 -Suit 2). 15 [45] Before determining whether there are merits on the 3 grounds of appeal, we observed that the learned JC correctly took cognisance of the legal principles on the creation of a trust, namely,- “… that the creation of a trust is never dependent on any statutory formalities unless required by specific legislations”, “the formalities of the 3C’s ( sic) 20 must be met. In whatever way the intention is expressed (sic) the requirements need to be satisfied: certainty of intention to create a trust-that a trust is intended, certainty of the subject-matter of the trust-that specified property is to be bound by the trust and certainty of object-that is of the persons intended to have benefit of the trust. The words used to convey the intention must be 25 sufficiently clear to demonstrate an intention to impose a mandatory obligation on the recipient of the property as opposed to a purely moral obligation, an intention that the objects of the trust will benefit come what may.” 30 [46] The learned JC stated that “It is an accepted fact that the said cars are all duly registered in the personal name of the deceased”. The burden is on the Plaintiffs to prove that the 3 Cars were held by the deceased 28 on trust for them as they claimed as correctly submitted by Counsel for 5 the 2nd Defendant in accordance with s. 101 of the Evidence Act 1950. [47] Referring to above 2nd and 3rd grounds, the Plaintiffs claimed that the 3 Cars were held on trust by the deceased for them based on the-

(a) Directors’ Resolutions comprising- 10 P50- Directors’ Resolution for car no. WKE 8816 (R2 CB/59); P51- Directors’ Resolution for car no. WPB 101 (R2CB/60); P17- Directors’ Resolution for car no. WVK 101 (R2 CB/61); and

(b) Statutory Declarations comprising-P2 Statutory Declaration affirmed by the deceased on 12/2/2009 in 15 respect of P50 (AR Vol. 2M/2782); P3 Statutory Declaration affirmed by the deceased on 2/3/2009 in respect of P51 (AR Vol. 2M/2784); and P4 Statutory Declaration affirmed by the deceased on 24/2/2009 in respect of P17 (AR Vol. 2M/2786). 20 [48] Counsel for the Plaintiffs argued that the learned JC should not decide whether the signature on the 3 said Statutory Declarations is a forgery as forgery was not pleaded citing Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ1 and there was no expert evidence 25 adduced to support the forgery citing Dato’ Mokhtar bin Hashim v PP [1983] 2 MLJ 232 at 255. [49] We accept the principles propounded in Samuel Naik (supra) and 30 Dato’ Mokhtar bin Hashim v PP (supra). We have examined the pleaded defence of the 2nd Defendant i.e that there was no trust created over the 3 Cars and para 7 reads as follows: 29 “Defendan Kedua juga menyatakan bahawa sepanjang pengetahuan 5 Defendan Kedua, si mati tidak pernah menandatangani apa-apa dokumen dan/atau surat yang berkaitan dengan amanah terhadap kenderaan-kenderaan tersebut.” Whilst the 2nd Defendant, Tan Ying (PW2- Suit1) did not plead forgery 10 specifically, the defence is wide to the effect that to her knowledge, the deceased had never signed any documents and/or letter relating to holding a trust of the 3 Cars. [50] When cross-examined, Tan Ying compared the signature on P50, 15 P51,P17, P2, P3 and P4 with the Notice of Resolution dated 1/4/2011 and 11/5/2010 in the Memorandum and Article of Association of Y-Teq (R2 CB/72-73) and she genuinely believed that the signature on P50, P51,P17 P2, P3 and P4 were forged as it was not the signature of the deceased and she had made a police report in this regard (P1, R2 CB 20 /68) wherein she reported that on the 1/4/2014 when she was at her lawyer’s office and was shown “dokumen-dokumen surat ikatan amanah - Trust Deed - dan surat akuan ” from the lawyer acting for Y-Teq and further stated- “SETELAH MELIHAT DOKUMEN-DOKUMEN TERSEBUT, SAYA AMAT 25 TERKEJUT KERANA TANDATANGAN YANG DIKATAKAN MILIKAN SUAMI SAYA TAN KAH YONG DALAM DOKUMEN-DOKUMEN TERSEBUT BUKAN MERUPAKAN TANDATANGANNYA. SAYA DENGAN SESUNGGUHNYA PERCAYA BAHAWA DOKUMEN-DOKUMEN TERSEBUT ADALAH SATU DOKUMEN TIPU.” 30 Having regard to the evidence and the pleaded defence of Tan Ying, the pith and substance of the evidence is that based on the comparisons made, she believed it was not the signature of the deceased and the 30 word “forged” was used in the loose sense in that the deceased did 5 not sign any documents whatsoever. [51] During cross-examination, Tan Ying also referred to P17- Directors’ Resolution dated 28/6/2011 and stated that the deceased was not in 10 Malaysia on the said date because P18, the deceased’s passport showed that the deceased was in China from 10/6/2011 until 29/6/2011. The Plaintiffs relied on the evidence of Lee Guan Eang who when cross-examined stated that the deceased did not sign P17 on 28/6/2011 as he was overseas and had pre-signed the document before he went overseas. 15 It was put to him that the deceased did not sign the document but as expected, he disagreed. [52] We are mindful of the principles of appellate intervention 20 pronounced by the Federal Court in Herchun Singh & Ors v. Public Prosecutor [1969] 2 MLJ 209 at p.211 that- “An appellate court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the 25 finding.” We decline to exercise appellate intervention as we find the learned JC’s findings are in accord with what any reasonable trier of fact similarly circumstanced would have found having regard to the fact that the learned JC made a finding of fact that she “ find the evidence of 30 Tan Ying to be credible and can be accepted “ after having regard to all the contemporaneous evidence which we have alluded in the preceding paras 50 and 51. This is evident in para 52 of the Grounds. 31 (See Green Crescent Resources v Ching Miew Yoke & Ors [2016] 5 MLJU 25 at para 46 of the Report). [53] Counsel for the Plaintiffs relied on s. 343(1) of the Companies Act 2016 (‘CA 2016’) and argued that the learned JC ought not to find the 10 Directors’ Resolutions are not authentic just because they were not certified by the Company Secretary. With respect, we disagreed with the Plaintiffs’ submission. 15 [54] S. 343(1) CA 2016 provides- “The record of a resolution passed otherwise than at a meeting of members, if purporting to be signed by a director of the company or by the secretary, is sufficient evidence of the passing of the resolution.” 20 (Emphasis added) [55] The learned JC after having taken into account all the factors which we have mentioned in paras 50 and 51 above, in para 52 of the 25 Grounds, stated that “creates sufficient doubt as to its authenticity and contents respectively” and “It is also to be observed that in all the cases involving the said cars, the purported dates for the alleged execution of the Statutory Declaration does not equate with the date of the Directors’ Resolutions authorising the purchase and for the 30 purported declaration of trust which in the circumstances of the case created doubt in the veracity of the plaintiffs’ story.” We are of the considered view that s. 346(1) CA 2016 does not assist the Plaintiffs because whilst it can be argued that the Directors’ Resolutions is 32 sufficient evidence of the passing of the Resolutions, they however still 5 suffer from the infirmity found by the learned JC that there is sufficient doubt as to the contents of the Directors’ Resolutions and the veracity of the Plaintiffs’ story. 10 [56] There is an added reason why we are of the considered view that the Statutory Declarations (P2, P3 and P4) ought not to be admissible. On the admissibility of the Statutory Declarations, we are persuaded by the submission of Counsel for Tan Ying that they ought not to be admissible as the maker, the deceased was not available to prove the 15 Statutory Declarations and they do not fall within the exception of the hearsay rule (See Ng Chooi Kor v Isyoda (M) Sdn Bhd [2010] 3 MLJ 492 (CA) at 505 [16] and Datuk Seri Anwar bin Ibrahim v Public Prosecutor [2014] 3 MLJ 882 (CA) at 889 [15]). 20 [57] We also find that the failure of the Plaintiffs to call the relevant and material witness in the person of Commissioner of Oaths, Sarasvathy Nalliah who witnessed the affirmation of the Statutory Declarations, invoked an adverse inference under s.114(g) Evidence Act against the 25 Plaintiffs. [58] The 3 Cars are listed in the List of Assets under the LA. It is only logical that if the 3 Cars were intended to be held on trust by the deceased 30 for the Plaintiffs, they ought not to insert into the List of Assets. The evidence showed that 2 of the 3 Cars, no. WPB 101 and no. WVK 101 were transferred to the deceased’s mother, DW3 who has no relationship 33 with the Plaintiffs as per the JPJ search of the said 2 Cars (D39 (A) and 5 D39(B) (R2 CB/95-96) and without the knowledge of Tan Ying. DW3 confirmed that she had not made any statutory declaration with respect to the transfer of the said 2 Cars to her. We find this is odd despite the Plaintiffs’ reliance on director’s resolution and statutory declaration to record the Plaintiffs’ transaction. 10 [59] For all the foregoing reasons we find the learned JC did not err when she held that the deceased never intended to hold the 3 Cars for and on behalf of the Plaintiffs. 15 Whether the deceased had obtained a loan for the sum of RM 38,650.00 from the 1st Plaintiff? [60] In respect of the issue of whether there is a payable loan of RM 20 38,650.00 by the estate of the deceased, we concluded that it is no longer a live issue because we observed that the said issue did not constitute a ground of appeal in the Memorandum of Appeal and neither did the Plaintiffs pursue the issue further in their written or oral submissions. In other words, the Plaintiffs had abandoned this issue 25 as a ground of appeal. Our Decision in Appeal 1091/ Suit 1 Removal of Tan Kah Fatt as a joint administrator of the estate of 30 the deceased [61] The learned JC has removed Tan Kah Fatt, the 1st Appellant / the 1st Defendant in Suit1 as a joint administrator of the estate of the 34 deceased. Tan Kah Fatt contended that the learned JC erred in law and 5 fact in making the said Order on the grounds of appeal contained in paras 2, 3 and 4 of the Memorandum of Appeal which can be summarised respectively as follows:

(a) “walaupun Perayu Pertama telah menjalankan semua tanggungannya sebagai Pentadbir secara jujur, adil dan tekun”;

(b) “tidak mengambilkira kepentingan ibu bapa simati yang juga adalah benefisiari estet simati yang menyokong Perayu Pertama kekal sebagai Pentadbir Bersama estet simati); 15

(c) “gagal menghayati Perayu Pertama adalah hanya Pentadbir Bersama simati dengan Responden dan ini bermakna Perayu Pertama tidak boleh melakukan apa-apa sewenang–wenangnya tanpa persetujuan Responden sendiri.” 20 [62] In determining whether Tan Kah Fatt has discharged his duty as an administrator responsibly, Counsel for Tan Ying submitted the learned JC was correct in ordering the removal of Tan Kah Fatt by 25 referring to the case of Ligar Fernandez v Eric Claude Cooke [2002] 5 MLJ 17, particularly to p.183 C-D as follows: “Learned counsel had argued, and I accept, that applying the objective test, all that is needed is for the plaintiff to adduce sufficient evidence to raise a strong 30 suspicion of the defendant’s inaction, want of diligence and honesty, or a conflict of interest situation or inability to act to invoke this court’s jurisdiction under s 34 of the PAA and allow the reliefs sought. The allegations for consideration are thus, a question of facts to be determined by this court on an objective test. 35 35 It is immaterial therefore, if the allegations are actually believed or not, so long 5 as it can be objective determined that they raised a reasonable suspicion, then the plaintiff would have succeeded.” (Emphasis added) 10 [63] In Ligar Fernandez (supra), the plaintiff sought 2 reliefs: to revoke the grant of probate to the defendant and to remove the defendant’s appointment as the executor and trustee of the estate of the deceased. The 1st relief which the plaintiff sought was under s.34 of the Probate and Administration Act 1959 (‘the PAA’) which states- 15 “Any probate or letters of administration may be revoked or amended for any sufficient cause.” In this instant appeal, it is an undisputed fact that Tan Kah Fatt and Tan Ying are appointed co-administrators pursuant to the LA and Tan Ying is 20 seeking to remove Tan Kah Fatt as administrator. [64] We are of the considered opinion that the learned JC was correct in adopting the approach taken by the High Court in Ligar Fernandez 25 as encapsulated in the passage reproduced in para 62 above. The High Court in Ligar Fernandez did so after taking into account that the Court of Appeal in Damayanti Kantilal Doshi & Ors v Jigar-lal Katilal Doshi & Ors [1988] 4 MLJ 268 had followed the test applied by the Federal Court in the case of Re Khoo Boo Gong, decd Khoo Theng 30 Seong v Teoh Chooi Ghim & Ors [1981] 2 MLJ 68. The High Court in Ligar Fernandez held that the phrase “sufficient cause” has not been defined but the test is an objective test whereby the consideration of the welfare and interests of the beneficiaries of an estate is the 36 paramount criterion in deciding whether there is sufficient cause to 5 interfere. [65] We observed that the learned JC after taking cognisance that a conflict of interest situation constituted a ground for the removal of an 10 administrator thereafter analysed whether there was sufficient evidence to raise a strong or reasonable suspicion of such a conflict. At para 44 of the Grounds, the learned JC stated that “Tan Kah Fatt in Suit-1 as the co-administrator of the estate of the deceased and also sitting as a director of the said companies had given his consent for the plaintiffs in 15 Suit-2 to proceed against the estate of the deceased which clearly supports the contention by Tan Ying in Suit-1 that Tan Kah Fatt is in a positon of conflict and ought to be removed immediately.” 20 [66] Additionally, the learned JC found an added factor in the unbecoming conduct of Tan Kah Fatt as an administrator wherein in Suit 1, he had withheld a sum of RM 1,800,000.00 and had pressured Tan Ying to redeem the matrimonial house that was part of the estate of the deceased and allowed his parents (DW3-Suit-mother and DW4-Suit- 25 father) and, particularly his siblings to move in to the matrimonial house without paying any rental to the estate of the deceased. This is a finding of fact which the learned JC has made which we should be slow to disturb having regard to the oft cited principle of appellate intervention that the trial Judge has had the audio and visual advantage 30 of seeing and hearing the witnesses and we did not find substantial and compelling reasons for disagreeing with the finding. (See Herchun Singh (supra) and Green Crescent Resources ( supra)). 37 [67] In any event we find there is no rebuttal submission whatsoever 5 from Tan Kah Fatt to dispel that a conflict of interest situation has arisen which constituted sufficient cause for the revocation of the LA granted to him and consequentially his removal as administrator which we hold the learned JC correctly ordered. To conclude we find that the Plaintiff, Tan Kah Ying has more than discharged the burden of 10 proof of “sufficient cause” required i.e there is more than a reasonable or strong suspicion raised of the fact that Tan Kah Fatt had acted in conflict of interest as an administrator in this case which warranted his removal as administrator. On this note, we are of the considered view that the submission of Counsel for Tan Kah Fatt that he had carried 15 out his responsibility as an administrator in a proper, honest and diligent manner when he distributed the Insurance Monies whereby every beneficiary received RM 1,497,000.00 and that the shares of the monies are kept for the interest of Tan Sin Lee and Tan Sin Yee (see para 7 above) are acts of Tan Kah Fatt which is negated when weighed 20 against the fact that he had acted in conflict of interest of his duty as administrator; on one hand he distributed the Insurance Monies but on the other hand, as a director of Y-Teq and YE Motorcycles (Plaintiffs in Suit 2), he took the position that the Insurance Policy was purchased for the benefit of the 2 companies and as the learned JC correctly found 25 he had given the consent for the Plaintiffs in Suit 2 to proceed against the estate of the deceased. Whether the 2nd Defendant being an illegitimate child is entitled to succeed the estate of the deceased? 30 [68] The learned JC made the Order on 24/4/2018, “I am granting the declaration that the said child D2 (Tan Sin Yee) In Suit 1 is an illegitimate 38 child and consequently will not have the right under the present law to 5 claim an interest in the estate of the deceased…”. Her Ladyship “declare[d] that D2 is not entitled to be included as one of the beneficiaries to the estate of the deceased“. In para 7 of the Memorandum of Appeal, the Defendants contended the learned JC erred as follows: “Yang Arif Hakim Mahkamah Tinggi yang Bijaksana telah silap dari segi 10 undang-undang dan fakta apabila memberikan deklarasi bahawa Perayu Kedua (Tan Sin Yee) adalah anak luar nikah Simati lantaran tidak berhak untuk menjadi waris kadim Simati dan tidak dibenarkan untuk mewarisi harta pusaka Simati apabila terdapat amanah yang ditubuhkan oleh Simati untuk kepentingan Perayu Kedua yang mana Simati semasa beliau hidup dan 15 sekarang estet Simati mempunyai tanggungjawab secara equity dan “statutory” untuk sokongan, kesihatan, Pendidikan dan penyaraan Perayu Kedua.” 20 [69] On the legal position , the learned JC stated that s. 4 of the Law Reform (Marriage and Divorce) Act1976 (Act 164) (‘LRA’), provides that any marriage solemnised under any law, religion, custom or usage before the LRA came into force i.e 1/3/1982 shall be deemed to be registered under the LRA and shall be valid; whilst after 1/3/1982 25 marriages solemnised under any law, religion, custom or usage will only be valid if registered. [70] The learned JC examined the evidence of Lu Yan Liu (DW2-Suit1), the mother of Tan Sin Yee (D2 in Suit1), who stated that she and the 30 deceased went through a customary wedding dinner attended by family and friends at Lan Hwa Garden Hotel at the end of 2002 and therefore for the marriage to be valid, it has to be registered which the deceased and DW2 failed to do. The learned JC held “the deceased and DW2 was 39 never legally married at any material time under the LRA. As a 5 consequence any children born out of the union between them would be considered to be born out of wedlock. D2 in Suit 1 is therefore an illegitimate child for all intent and purposes”. [71] The learned JC noted that on the birth certificate of D2-Suit1, 10 there was an endorsement “Permohonan Seksyen 13” and Her Ladyship made a finding that the deceased acknowledged himself to be the father of D2- Suit 1 which is permitted under s. 13 of the Birth and Death Registration Act 1957 (Act 299) which provides that the name of the father of an illegitimate child will only be entered or registered in the 15 birth certificate of the said child if the father of the child acknowledged himself to be the father. [72] The learned JC examined the following provisions in s. 3 of the Distribution Act 1958 (interpretation provision) (Act 300) (‘Distribution 20 Act’): “child” means a legitimate child and where the deceased is permitted by his personal law a plurality of wives includes a child by any of such wives, but does not include an adopted child other than a child adopted under the provisions of the Adoption Act 1952 [Act 257]; 25 “issue” includes children and the descendants of deceased children;” [73] Based on the aforesaid provisions and also s. 6 of the Distribution Act (succession to intestate estates), the learned JC held that “it clearly 30 makes no provisions for the distribution of the estate to an illegitimate child.” 40 5 [74] It is not disputed that the deceased died intestate. Therefore the relevant law governing the distribution of the deceased’s estate will be the Distribution Act as the long title suggests. It is our considered view that the findings of the learned JC are correct upon a proper construction of the relevant provisions of the Distribution Act quoted in the Grounds. 10 [75] At para 41 of the Grounds the learned JC stated- “Consequently, it is my considered view that the onus is on Tan Kah Fatt and DW2 in Suit-1 to establish that D2 is the legitimate daughter of the deceased. It is trite that to establish her right to succeed in the estate of the said deceased 15 who died intestate. Tan Kah Fatt and DW2 must not only prove that D2 was the daughter of the said deceased but must, by reason of the above provisions also show that she is the legitimate daughter of the said deceased. From my observation, I find that Tan Kat Fatt and DW2 had failed to establish that D2 was the legitimate daughter of the deceased and therefore by law has no right 20 to succeed in the estate of the deceased.” This finding of the learned JC, is in our considered view also correct premised on Shamugam v Pappah [1994] 1 MLJ 144, a case where the plaintiff (Shamugam) claimed for (i) a declaration that he was the 25 only legitimate child of the deceased and the sole beneficiary of the deceased’s estate under the Distribution Act and (ii) a declaration that the defendant (Pappah) and her 3 children were not the lawful wife and legitimate children of the deceased and were not entitled to a share of the deceased’s estate. Edgar Joseph JR SCJ (as he then was) opined 30 at p.145 as follows: “(2) The plaintiff had the burden of establishing that he was the legitimate son of the deceased. In order to establish his right to succeed to the estate of the deceased who died intestate, the plaintiff must not only prove that 41 he was the son of the deceased but must, by reason of the Distribution 5 Act 1958, also prove that he was the legitimate son of the deceased. Likewise the burden of proof was on the defendant to establish that she was the lawful widow and relict of the deceased and that her three children were the children of her marriage to the deceased.” 10 Whether the Plaintiff was misrepresented by the 1st Defendant and the lawyer handling the LA? [76] Perusing the written submission of Counsel for Tan Kah Fatt (1st Defendant in Suit 1), it appears that Tan Kah Fatt has abandoned this 15 ground of appeal spelled out in para 6 of the Memorandum of Appeal. For completeness we shall address this ground of appeal. Briefly, Tan Kah Ying (Plaintiff in Suit 1) submitted that she was told by Tan Kah Fatt and solicitors who prepared the LA that an illegitimate child was entitled to the estate of the deceased and Tan Ying relied on the statement 20 and included the name of Tan Sin Yee (2nd Defendant in Suit1) in the List of Beneficiaries under the LA. [77] In Ng Siew Lan v John Lee Tsun Vui and Anor [2017] 2 MLJ 167, in a sale and purchase transaction of land, the Federal Court at p.169 25 held- “(6) Being the solicitors acting for the plaintiff in the land transaction, the first and second defendants owed her a duty not to injure her by failing to do that which they had undertaken to do, which was to take all necessary steps to effect transfer of the land to her upon execution of the sale and 30 purchase agreement. The first and second defendants failed to discharge that duty in a manner that was expected of a reasonably competent solicitor having regard to the standards normally adopted in the profession. The first and second defendants were clearly in breach 42 of their contractual and fiduciary duties to the plaintiff. It tantamount to 5 misrepresentation by silence.” [78] Therefore on the authority of Ng Siew Lan(supra), we agreed with the submission of Counsel for Tan Ying that the solicitors appointed by 10 Tan Kah Fatt to represent him and Tan Ying in the application for the LA had misrepresented Tan Ying because he failed to inform Tan Ying that Tan Sin Lee being an illegitimate child based on D19 (Tan Sin Lee ‘s birth certificate under s. 13 of the Birth and Death Registration Act 1957) was not entitled to the estate of the deceased. 15 [79] We therefore find there is no merit in the said ground of appeal as the learned JC has correctly decided the following in para 41 of the Grounds- 20 “I am satisfied in all the circumstances of the case and evidence of witnesses including that of Tan Ying in Suit-1, being a foreign national unfamiliar with local legislation, she was in fact misled by the assurances and misrepresentation by Tan Kah Fatt and her evidence is corroborated by the evidence of PW3, the solicitor for Tan Kah Fatt that handled the application for the LA that he did not 25 notice the word “Permohonan Bawah Seksyen 13” stated on the birth Certificate of D2. In this circumstances I therefore hold that there was a misrepresentation of facts by Tan Kah Fatt to Tan Ying regarding the inclusion of D2 in the list of beneficiaries to the estate of the deceased even though she is legally not entitled to under the Distribution Act 1958.” 30 43 Whether there is a trust created by the deceased for the 2nd 5 Defendant, Tan Sin Yee? [80] The learned JC found the Defendants failed to prove the existence of a trust in respect of their claim against the estate of the deceased by way of a Counterclaim. Under this head of argument, the Defendants’ grounds of appeal appear in para 8 of the Memorandum of Appeal and 10 paras 1 to 4 of the Supplementary Memorandum of Appeal. [81] Counsel for the Defendants contended that a trust was created in favour of the 2nd Defendant, citing the following cases:

(a) Wan Naimah v. Wan Mohamad Nawawi [1974] 1 MLJ 15 41(FC)- A trust is not formally required to be in writing and even if the trust is created orally , it is not necessary to use precise term as long as the words used are clear and unequivocal to show that there is an intention to create a trust;

(b) Gissing v Gissing [1970] 2 All ER 780 (HL) at p.790- the flexibility in the creation of trust can be seen in situation where trust can be implied from the words or conduct of a party; the test is for the Court to objectively draw the inference as to the intentions of parties to a transaction which a reasonable man 25 could draw from their words or conduct and not to any subjective intention or absence of intention which was not made manifest at the time of the transaction itself;

(c) Tneu Seng Bee & Ors v Lumayan Plantation Sdn Bhd & Ors and another appeal [1999] 1 MLJ 449 where the Court of 30 Appeal affirmed the trial judge’s decision in finding that there 44 was an implied trust based on the fact that the collective 5 contribution of the siblings help to build the family wealth and the registered owners of the various properties were in fact holding the properties on trust for the family;

(d) Datuk M Kayveas v. See Hong Chen & Sons Sdn Bhd & Ors [2013] 5 CLJ 949 at 970 [36] where the Federal Court 10 reiterated that an express trust can be either in writing or orally so long it expresses the intention of the person creating the trust and will come into being once it is declared by the person creating it; and

(e) Ram Kumar Gopal Ram & Anor v. Ram Kailash Gopal 15 Ram [2016] 1 LNS 1337 (HC)- in the absence of a trust in writing, the party claiming a trust is created has to prove the existence of the trust though proof of the 3 Cs’. [82] We agree with the legal principles regarding the creation of a trust 20 established in the cases referred to by Counsel for the Defendants. In fact on the law on the creation of trusts, we observed the learned JC was mindful of the applicable legal principles, namely, “the legal requirements of the 3Cs’(sic) which must be satisfied to form a completely constituted and enforceable trust” which we have alluded in para 45 25 above and the learned JC had made reference to various authorities in para 31 to 34 of the Grounds. Her Ladyship cited Low Tin Yong @ Low Leong Lian v Low Yong Thuan [2018] MLJU 73 stating that “the Court of Appeal observed that the onus was on the respondents (Tan Kah Fatt and DW2 in Suit1) to establish the alleged trust basing on the 30 3C’s (sic) legal requirement applied in the present case.” 45 [83] The legal requirement of the 3Cs’ referred to by the learned JC 5 appear in paras 54 and 55 of Low Tin Yong (supra) and was highlighted by Counsel for the Plaintiff as follows: “[54] In determining whether or not a trust subsisted in law, the learned judge failed to consider, or consider in any detail, whether the three essentials of a valid trust were in fact established on the present factual matric, namely:

(a) Certainty of words;

(b) Certainty of subject; and

(c) Certainty of object. (see Yeong Ah Chee v Lee Chong Hai [1994] 2 CLJ 20 per Peh Swee Ching SCJ). 15 [55] In this context the onus was on the respondent, as plaintiff, to establish that the late mother had uttered clear, unequivocal and irrevocable words to the appellant and his siblings for the purposes of creating a trust on the said land. None of the witnesses was able to testify the words uttered by the late mother to create such a trust, as it were. This fundamental first limb for the creation of 20 a trust was therefore not satisfied.” [84] Counsel for the Plaintiff submitted the standard of proof required in showing the existence of a trust is one that is beyond reasonable doubt as held in Low Tin Yong. With respect, we are inclined to agree with 25 Counsel for the Defendants that the standard is on a balance of probabilities for the following reasons:

(a) in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1, where the Federal Court at 17[49] opined that “there are only the two standards of proof, namely, beyond 30 reasonable doubt for criminal cases while it is on the balance of probabilities for civil cases...There is no third standard. And ‘Neither the seriousness of the allegation nor the seriousness of 46 the consequences should make any difference to the standard 5 of proof to be applied in determining the facts’.”;

(b) the principle postulated by the Lord Chancellor in Po Kin & Anor v Po Shein AIR 1926 PC 77 that became the basis for the decision of the Court of Appeal in Low Tin Yong ( see para 49(iv) of the Report) was previously examined by the same Court 10 of Appeal in the case of ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 where Gopal Sri Ram JCA (as he then was) delivering the judgment of the Court at 430[16] clarified- “[16] It is apparent from that passage that the learned Lord Chancellor 15 was merely referring to a set of circumstances where a plaintiff claims to be the true owner of property registered in the name of the defendant and apparently paid for by the defendant. …Further, we do not think by the phrase ‘beyond reasonable doubt’ the Lord Chancellor was imposing the criminal standard of proof in those circumstances. He was merely 20 emphasising the high degree of proof demanded by the circumstances postulated by him.” We agreed with the submission of Counsel for the Defendants that the view expressed by the Court of Appeal in ESPL (supra) 25 is much more consistent with the pronouncement on the standard of proof in Sinnaiyah (supra);

(c) there are a host of precedents of the Court of Appeal suggesting that the balance of probabilities standard should be the preferred standard: Wong Kim Cheng v Aidil Fahmy bin 30 Zainal Abedin & Ors [2014] 2 MLJ 63, Zainab Bt Ibrahim v Limah Bt Che Mat [2014] 6 MLJ 419, Dato Seri Dr M Mahadevan v Panchanath Mahalingam Ratnavale & Ors [2013] 5 CJL 710. 47 5 [85] Notwithstanding their respective positions on the standard of proof to be applied when determining the existence of trust, both Counsel for the Plaintiff and Defendants submitted that they have satisfied both burden of proof. We noted that the learned JC has applied the standard of proof of on a balance of probabilities (para 55 of the Grounds), hence 10 the learned JC did not err on this point of argument. [86] Tan Kah Fatt, (the 1st Defendant) in examination in chief (Q&A12) of his Witness Statement stated that a trust was created in favour of the 2nd Defendant (Tan Sin Yee) as follows: 15 “A: The deceased who is biological father of the 2nd Defendant while still alive informed declared and stated clearly to family members among others to his parents (Tan Moo Ning and Tan Cheng San), Lu Yan Liu the Plaintiff and to myself several times that:-

(a) 25% of all is properties and cash wherever situated kept by the 20 deceased for the benefit of the 2nd Defendant;

(b) The deceased desired to treat both his children equally being fair to both his children; and

(c) the 25% on trust as stated in sub para (a) is kept for the benefit and interest of the 2nd Defendant’s future; 25 (hereinafter referred to as “the trust”)” [87] We observed that the evidence of Tan Kah Fatt’s mother, (DW3- Suit 1), his father (DW4- Suit 1), Tan Sin Yee’s (2nd Defendant) mother 30 (DW2- Suit 1) with regard to the existence of the trust is identical to that of Tan Kah Fatt. Regarding this, the learned JC correctly observed, “Their evidence comfortably complimented (sic) and supported each 48 other as to the position that the deceased had orally voiced out his 5 supposed intention that 25% of his money and properties are to be given to D2-Suit1. The word used by the witnesses is “sin quo” i.e a trust”. [88] We have examined the relevant cross-examination evidence of these witnesses to be discussed below. We find that notwithstanding that 10 Tan Kah Fatt and all these mentioned witnesses stated the content of the trust, yet they were unable to repeat in Court during cross-examination in verbatim how the trust was created and were unable to prove that the deceased had uttered clear and unequivocal and irrevocable words to them and other family members that the trust 15 was intended for the 2nd Defendant. [89] Although Tan Kah Fatt said that there was a trust, that the deceased told him of the trust on many occasions during family function, Chinese New Year, “when we get together”; yet strangely he was unable 20 to recall which particular year, and even went to the extent of saying even before he went to USA to study in 2000. On the probabilities of Tan Kah Fatt’s evidence, the learned JC expressed at para 50 of the Grounds as follows: “…Tan Kah Fatt in his evidence stated that the said deceased had expressed 25 his wishes to create a 25% trust for D2 before his trip to USA but however, the learned counsel for Tan Ying submitted that the evidence is not probable since the daughter (D2) was not even born at the material time.” [90] Tan Kah Fatt also stated during cross-examination (NE p, 537 30 RR Jld 4) that the arrangement of “The Plaintiff 25%, my parent(sic) 49 and then 50% go to both the children” was told to him by the firm 5 handling the LA and was not from the deceased. This in our view is tantamount to hearsay as referred in para 92 below. [91] With regard to her assessment of Tan Kah Fatt’s credibility as a witness, the learned JC remarked at para 50 of the Grounds as follows: 10 “In all the circumstances of the case and the way Tan Kah Fatt had conducted himself from the facts of the case I am unable to take him as a witness of truth looking at the evidence in its totality. The deceased (sic) actual state of mind on the issue of the alleged trust could never be legitimately determined without independent materials of evidentiary value.” 15 In this connection the conduct of Tan Kah Fatt adverted to by the learned JC has been discussed in paras 65 and 66 above. [92] 2nd Defendant’s mother (DW2-Suit1) stated in her Witness 20 Statement (Q&A19) the following: “19. Q: Can you tell the court whether your late husband (the deceased) communicated anything about the trust to you or his family? My late husband during his lifetime had mentioned about the trust several times to various people including the Plaintiff, myself, my 25 late husband’s parents, 1st Defendant and a few others especially during occasions and functions wen the family members enquired about the 2nd Defendant and her welfare wherein my late husband had mentioned that he had set up a trust in favour of the 2nd Defendant.” 30 When cross-examined on her answer to Q19, DW2-Suit 1 said that she was not invited to these gatherings (NE RR Jld 5 p. 796). Further, DW2 –Suit 1 in re-examination stated “And I would…sometimes I would go shopping 50 with his family. For instance, my daughter’s grandparents and also my daughter’s 5 younger aunty, we went shopping, we went meals together. They told me that… they told about Tan Kah Yong’s Trust to his… to both his daughters and Tan Kah Yong treated both his daughters equally.” (RR Jld 5 p.826). In this regard we agreed with the submission of Counsel for the Plaintiff that the foregoing evidence is inadmissible under the hearsay rule if it 10 is the object of the evidence is to establish the truth that the deceased had a created a trust for the 2nd Defendant. (see Subramaniam v Public Prosecutor [1956] 22 MLJ 220). Thus we find the learned JC did not err when she held that the evidence of the witnesses with regard to the existence of the trust is hearsay (para 50 of the Grounds). 15 [93] When DW3-Suit1 and DW4-Suit1 were cross-examined by Counsel for the Plaintiff regarding the trust which they claimed they were told by the deceased, their respective answers in particular were as follows: “CW So bolehkah anda mengulangi secara verbatim apa Tan Kah Yong yang 20 menyatakan pada majlis-majlis keluarga? NING Tidak mungkin saya boleh cakap secara verbatim apa yang diberitahu oleh Tan Kah Yong.” (RR Jld 5 p.853). “CW Ok Tan Kah Yong, boleh anda mengulangi apa Tan Kah Yong cakap secara verbatim? 25 CHENG Saya tidak dapat ingat, Yang Arif.” (RR Jld 5 p.888). In re-examination Tan Kah Fatt testified that the statement in Q&A12 of his Witness Statement were the precise words of the trust which the deceased spoke in Hokkien, “Xin Tuo“ and the other details, the deceased spoke in Hokkien and Mandarin. Assuming what Tan Kah Fatt said is 30 true, it begs the question of why when the words of the purported trust 51 were allegedly spoken in Hokkien and Mandarin by the deceased, we 5 find it hard to believe that DW3-Suit1 was unable to state verbatim what was said by the deceased on the trust whilst DW 4-Suit1 replied that he could not remember. [94] Counsel for the Plaintiff submitted that for a trust to be completed, 10 the trust property has to be vested in the trustee citing the following cases:

(a) Ng Khi Kung v Ng Khi Fui & Ors [2011] 1 MLJU 1026 where the High Court held- “A trust is only valid if the title to the property is in the trustee and if the 15 trusts have been validly declared. A declaration that A holds on trust for B is ineffective if the property is not vested in A.”

(b) Yeong Ah Chee @ Yan Hon Wah v Lee Chong Hai & Anor and 13 Other Appeals [1994] 3 CLJ 20 where the Supreme Court 20 held as follows: “A volunteer is a beneficiary who has not given any valuable consideration, (in the usual sense of the ordinary law of contract), for the creation of a settlement or trust. It is a settled rule of equity, that a Court of equity would not render 25 assistance to a volunteer in the case of an incompletely constituted trust. An incompletely constituted trust is one in which the trust property has not been finally and completely vested in the trustee.” Premised on the authorities cited, we agreed with Counsel for the Plaintiff’s submission that in this instant appeal, no trust was created 30 given that the deceased did not transfer any of the trust property to the 52 trustees, DW3-Suit1, DW4-Suit1 and the 1st Defendant who were said 5 to be appointed by the deceased as trustees. [95] At para 50 of the Grounds, the learned JC stated- “I find difficulty in accepting that the said deceased, being the natural father of D2(Suit-1) who knows that she is classified as illegitimate by law would not 10 formalize a trust for the benefit of D2(Suit-1) if that be his express intention bearing in mind the importance of the issue on her future legal position. But here in the present case, evidence was led that the said deceased had instead took up a life insurance policy on D2(Suit-1) rather than to formalize a trust deed to mitigate potential dispute if that really be his actual alleged intention.” 15 [96] Counsel for the Defendants submitted that the l earned JC has erred in law and fact and raised the following ground of appeal in para 4 of the Memorandum of Appeal: “apabila membuat pendapatan atau anggapan yang salah dan yang tidak 20 langsung disokong oleh keterangan bahawa kononnya simati yang ketahui Perayu Kedua adalah anak luar nikah di bawah undang-undang dan yang ketahui isu-isu undang-undang yang akan dihadapi oleh Perayu Kedua dalam masa akan datang, akan mengesahkan amanah (formalise a trust) bagi kepentingan Perayu Kedua jika itu kehendaknya.” 25 [97] Having regard to the facts of the 2 present appeals, we are of the considered view that the said ground of appeal is misconceived. We agreed with the submission of Counsel for the Plaintiff that there is in existence Suit 2 which was filed by Y-Teq and YE Motorcycles against 30 the 1st Defendant and the Plaintiff in Suit 1 as the administrators of the estate of the deceased. We have seen how in Suit 2 , it was alleged that 53 the deceased held the 3 Cars on trust for the companies whereby 5 Statutory Declarations were affirmed and Directors Resolutions were signed by the deceased in respect of the trust. [98] For the foregoing reasons, in our judgment there has been no error committed by the learned JC when she made a finding on a 10 balance of probabilities that “In all the circumstances of the case, I hold that the said legal requirements (3c’s) for the creation of a valid trust had not been satisfied and consequently there is no such trust created for D2-(Suit-1)”. 15 Whether the estate of the deceased is responsible to support the illegitimate child? [99] Counsel for the Defendants canvassed an alternative argument i.e, in the event the Court did not find that a trust was created in favour of the 2nd Defendant by the deceased, the estate of the deceased 20 is still duty bound to provide maintenance for the 2nd Defendant. Counsel for Defendants submitted that the learned JC has erred by not even considering this issue in the Grounds. [100] The Defendants’ above said contention was raised in para 5 of the 25 Supplementary Memorandum of Appeal in that the learned JC has erred in law and in fact as follows: “apabila gagal sama sekali di dalam Alasan Penghakimannya untuk menyebut, menghayati dan memutuskan estet simati bertanggungjawab untuk sokongan, kesihatan, Pendidikan dan penyaraan Perayu Kedua iaitu seorang kanak- 30 kanak dan anak simati di bawah equity dan/atau Akta (statutory) termasuk 54 tetapi tidak terhad kepda Seksyen 3 Akta Penjagaan Budak 1961 (Section 3 5 Guardianship of Infants Act 1961) dan Seksyen 3(2) Akta Perempuan Bersuami dan Anak-anak (nafkah) 1950 (Section 3(2) Married Women and Children (maintenance) Act 1950).” [101] Counsel for the Plaintiff submitted that the duty of the estate of the 10 deceased to the 2nd Defendant who is illegitimate is very clear based on the following authorities. Counsel referred to ss.3 and 6 of the Guardianship of Infants Act 1961 (Act 351) (‘the GIA’) which provide- “3. The guardian of the person of an infant shall have the custody of the infant, and shall be responsible for his support, health and education.” 15 “6. On the death of a parent of an infant, the surviving parent, if any, shall, subject to this Act be guardian to the infant either alone or jointly with any guardian appointed by the deceased parent, and-

(a) if not guardian has been appointed by the deceased parent;

(b) in the event of the death or refusal to act of the guardian or 20 guardians appointed by the deceased parent, The Court may, if it thinks fit, appoint a guardian to act jointly with the surviving parent.” (Emphasis added) 25 [102] Counsel for the Plaintiff further referred to Koh Lai Kiow v Low Nam Hui [2005] 7 MLJ 143, where Azahar Mohamad JC (now CJ Malaya) when dealing with an application concerning the maintenance of illegitimate children, at 148[6] was referred to 2 differing High Court cases by counsel for the plaintiff to support his argument that the GIA 30 applied to illegitimate children as follows: 55 “The first is the case of Low Pek Nai v Koh Chye Guan [1995] 1 MLJ 238 where 5 Mohd Hishamudin J found himself in disagreement with the views expressed by the learned judge in Re Balasingam and held that 1961 Act applied also to illegitimate children. In this regard, Zulkefli JC (as he then was) in Khor Liang Keow v Tee Ming Kook [1995] 4 MLJ 629 disagreed with Mohd Hishamudin J in the case of Low Pek Nai and agreed with the learned judge in Re Balasingam. 10 At p.635 of the report Zulkefli JC (as he then was) said:” [103] As to the legal position on the applicability of the GIA to an illegitimate child, we agreed with Counsel for the Defendants that the issue has been laid to rest in the case of Sean O’ Casey Patterson v 15 Chan Hoong Poh & Ors [2011 ] 3 CLJ 722. At p.738, James Foong FCJ (as he then was) (delivering the judgement of the Court) opined- “[36] As correctly observed in Re Balasingam (supra), there is a “remarkable absence of any reference to illegitimate children other than in the above mentioned s. 1(2)(a) (now changed to s. 1(3)(a).” But then, one cannot ignore 20 the fact that this word “illegitimate” appears in s. 1(3)(a) of GIA 1961. Undeniably, this word here is used for the purpose of excluding all mothers who professes or professed the Islamic faith from the benefits of the provisions of this Act. But why did Parliament single out an illegitimate child of a mother who professes or professed the Islamic religion? If Parliament had intended this Act 25 to apply only to a legitimate child it could have kept silent on the issue of legitimacy in this section like in the remaining part of the Act. There is no necessity to express this to cover an illegitimate child in s. 1(3)(a). By specifically highlighting this to say that “in the case of an illegitimate child” it must have been intended, in our opinion, to be a reminder, not to exclude those 30 who are illegitimate. Thus, this Act should apply to all children, legitimate as well as illegitimate. Otherwise, we see no reason, why an illegitimate child is singled out for mention in s. 1(3)(a) GIA.” 56 [104] Be that as it may, we agreed with the submission of Counsel for the 5 Plaintiff that premised on s.6 GIA, upon the death of the deceased, the 2nd Defendant’s mother (DW2-Suit1) will be the guardian of the 2nd Defendant who shall be responsible for the support, health and education of the 2nd Defendant in accordance with s. 3 of the GIA. 10 [105] The legal position as to whether it is the duty of the estate of the deceased to be responsible for the support, health and education of the 2nd Defendant has been fortified by the Distribution Act which disallows an illegitimate child from claiming any assets from the estate of his parents. We have dealt with this issue in paras 68 to 75 above. 15 [106] Counsel for the Defendants submitted (i) there are ample evidence to show that the deceased had maintained the 2nd Defendant well although she is illegitimate and at no time did the deceased abandoned his duty as the father of the 2nd Defendant and (ii) upon his death , that 20 duty is naturally transferred to his estate to continue to provide the same as what is required under the law when the deceased was alive. [107] To bolster his arguments, Counsel for the Defendants cited s. 3(2) of the Married Women and Children (Maintenance) Act 1950 (Act 263) 25 (‘the MWCA’) which provides that a court of law may order a person who neglects or refuses to maintain an illegitimate child of his to make monthly allowance for the said child and s. 9 of the MWCA which provides the jurisdiction to grant such order is vested in the High Court. 30 57 [108] Counsel for the Defendants has urged the Court that in due 5 course of justice, it is high time for the Court to set a precedent judicially that the right of an illegitimate child for maintenance from the estate of the child’s deceased father be allowed given that there is evidence that the deceased had maintained the 2nd Defendant during his lifetime. 10 [109] With respect, we are of the considered view that we were unable to accede to the request of Counsel for the Defendants for the following reasons submitted by Counsel for the Plaintiff which we agreed. Firstly, the High Court has no jurisdiction to make any order as to the 15 maintenance of the children under s.3(2) of the MWCA except if the case is referred to the High Court by the Court of 1st instance i.e. the Sessions Court or a Court of a First Class Magistrate as defined under s.2 of the MWCA. S.2 of the MWCA provides that- “Court” means a Sessions Court or a Court of a First Class Magistrate;” 20 [110] In this regard we agreed with the approach adopted in Koh Lai Kiow (supra) and the sound reasoning of James Foong JC (as he then was) in Goh Koon Suan v Heng Gek Kiau as to the interpretation 25 of s. 9 of MWCA which was agreed to by the High Court in Koh Lai Kiow at p.152 as follows: “In any event, the expression ‘court’ in s 3(2) read together with s 2 of the 1950 Act means a sessions court or a court of a first class magistrate. It is clear to me that s 3(2) of the 1950 Act gives a sessions court or a court of a first class 30 magistrate the jurisdiction to order any person who neglects or refuses to maintain an illegitimate child to make such monthly allowance as to the court seems reasonable. As a result, in my view, it is only proper that the appropriate 58 court of first instance should deal with this matter. In this context, the authority 5 that I would like to cite is the case of Goh Koon Suan v. Heng Gek Kiau [1992] 1 MLJ 270. There, the defendant applied under s 3(2) of the 1950 Act for the maintenance or a child born as a result of cohabitation between the plaintiff and defendant. At the hearing of that application counsel for the plaintiff took a preliminary objection that the High Court as a court of first instance had no 10 jurisdiction to hear the application. James Foong JC (as he then was) dismissed the defendant’s application and he said this, and I respectfully agree with him, at p.281 of the report: The ‘Court’ granting such relief under the said Act has been defined under s 3 of the said Act, as the subordinate courts. Therefore, such 15 relief as claimed by the defendant, should in the first instance, be brought in the subordinate court. Only when, as provided for under s 8 of the said Act, such matters in the opinion of the subordinate court are more conveniently dealt with by the High Court, can the matter be referred to the High Court. 20 I earned defence counsel’s reliance on s 9 of the said Act, to provide the High Court with jurisdiction to hear this application, as a court of first instance, is a misinterpretation of this particular section of the Act. Though s 9 does provide the High Court with powers to determine 25 matters arising from the said Act, its powers only relate to matters referred to it by the subordinate courts under s 8 of the Act and not, on its own to imply that, the High Court can hear such matters in the first instance. Therefore, the court of first instance for relief sought under the Act must be the subordinate court.” 30 (Emphasis added) [111] Secondly, as correctly submitted by Counsel for the Plaintiff s. 3(2) MWCA referred to by the Defendants does not apply to the deceased as s. 3 of the Interpretation Acts 1948 and 1967 provides that- “person” includes a body of persons, corporate or unincorporated;” 35 59 Therefore it is crystal clear that the word “person” in s. 3(2) MWCA does 5 not include the estate of the deceased. [112] From the discussion above, we are of the considered view that our laws do not provide for an illegitimate child to make any claim from the 10 estate of the deceased which position is galvanised by the fact that the relevant law governing the distribution of the deceased’s estate being the Distribution Act does not allow any illegitimate child to claim an interest from the estate of the deceased person. 15 [113] We conclude by echoing the words of the learned JC who was conscious of the fact that “a court of law is only duty bound to interpret the provisions as is passed by the legislature …[and] unless and until that position in the Distribution Act of 1958 is altered by the legislature, 20 the court is bound by its limitation no matter how harsh it may appear. Such duty of the legislature cannot be surrogated to the courts of law.” (para 42 of Grounds) Support for this position taken is found in the Federal Court case of T.O Thomas v. K.C.J. Reddy & Anor [1974] 2 MLJ 87 at p.90 B-E right column. 25 Conclusion [114] For all the foregoing reasons we find there are no merits in the appeal which compelled us to exercise our appellate intervention. 30 [115] We unanimously made the following Order in respect of the 2 Appeals: 60 Appeal 1091 5

(i) the appeal of the Appellants is dismissed with costs of RM15,000 to the Respondent subject to allocatur;

(i) the appeal of the Appellants is dismissed with costs of RM15,000 to the Respondents subject to allocatur;