Vasantha A/P K Sockalingam Chettiar v 1. ) Raja Alagappan Annamalai (MA-22NCvC-55-08/2024)

RAJA ALAGAPPAN ANNAMALAI (Passport No: 127958069)

PARVATHY SREENIVASAN (Passport No: P7195297)

ANNAMALAI ANNAMALAI (Passport No: M5089201)

SOLACHI SOMASUNDARAM (Passport No: U6924287)

SUBRAMANIAN ANNAMALAI (Passport No: Y7052841) ... DEFENDANTS

INTRODUCTION [1] By Enclosure 73, the 1st to 4th Defendants seek a stay of all proceedings in this probate action pending the final disposal of Civil Suit No. DA-22F-1-20/2024 in the High Court at Kota Bharu (the "KB Suit") , in which the validity of the marriage between the Plaintiff and the deceased is in issue. [2] The action concerns the estate of the late Dr AL Annamalai @ Alagu Chettiar Annamalai A/L A Alagappa Chettiar (the "deceased"). The Plaintiff seeks probate of a will dated 23.07.2019 (the "Will"). Under the Will, she is appointed sole executrix and is given the deceased's movable and immovable property absolutely. [3] The 1st to 4th Defendants are children of the deceased. Their position, as developed in their reply submission, is that the deceased had entered into two marriages (the first in or about 1961, and a subsequent marriage with the Plaintiff in 1979), that the first marriage was subsisting at the material time, and that the subsequent marriage is liable to be declared void ab initio. The Plaintiff's position is that she resided with the deceased for more than forty years and was at all material times treated by the deceased as his wife. [4] I express no view on the substantive question of marital validity. That question is squarely within the jurisdiction of the High Court at Kota Bharu and is reserved for the trial of that action. [5] The application before me has both a procedural and a substantive aspect. As a preliminary matter, the Plaintiff objects that the application should be dismissed in limine for delay and lack of bona fides. On the merits, the parties join issue on whether the criteria for a stay are met. I address both aspects below. [6] I have considered the affidavits filed by both sides, the written submissions of the parties, and the authorities placed before me. My reasons follow in the order set out in the Issues for Determination. The disposition is set out in Sections 6 and 7 below.

MATERIAL FACTS AND PROCEDURAL HISTORY [7] The Plaintiff is Vasantha a/p K Sockalingam Chettiar. The Defendants are Raja Alagappan Annamalai, Parvathy Sreenivasan, Annamalai Annamalai, Solachi Somasundaram and Subramanian Annamalai. [8] The Will is a single instrument executed on 23.07.2019. It identifies the Plaintiff by full name. It describes her as "my wife, Vasantha". It appoints her as sole trustee and executrix. It gives the deceased's movable and immovable property to her absolutely. It provides a substitutional gift to Kala Abirami a/p A.L. Annamalai only on the contingency of the Plaintiff predeceasing the testator. [9] The Plaintiff first commenced Originating Summons No. MA- 32NCVC-298-11/2023 in this Court for a grant of probate. That originating summons was withdrawn on 18.07.2024 with liberty to file afresh. [10] On 12.08.2024, the Plaintiff filed the present action. She seeks among other reliefs, a declaration that the Will is valid and an order that probate be granted to her as sole executrix. [11] On 04.10.2024, the 1st to 4th Defendants commenced the KB Suit. The validity of the marriage between the Plaintiff and the deceased is directly in issue in that action. (I note in passing that the 1st to 4th Defendants' written submission at paragraph 3.4 states a different commencement date of 18.11.2024. The Plaintiff's detailed chronology, which has not been disputed in the 1st to 4th Defendants' reply submission, gives 04.10.2024. I proceed on that basis. Nothing in this judgment turns on the precise date.) [12] On 06.03.2026, the 1st to 4th Defendants filed Enclosure 73, seeking a stay of all proceedings in this action, including pre-trial directions and the fixing of trial dates. The notice of application contains six prayers, namely:

(i) a stay of all proceedings pending final disposal of the KB Suit;

(v) costs in the cause; and

(a) the Plaintiff is named in the Will as executrix and as absolute beneficiary;

(b) the Will refers to the Plaintiff by name and additionally describes her as "my wife, Vasantha";

(c) the validity of the marriage is in issue in the KB Suit, which has been fixed for trial, and not in this action;

(d) the Indian proceedings concern, principally, the characterisation and partition of property in India alleged to be Joint Hindu Family property, and not the validity of the Will;

(e) Enclosure 73 was filed on 06.03.2026, approximately seventeen months after the commencement of the KB Suit and approximately eighteen months after this action was filed; and

(f) the action is at the pre-trial case management stage and trial dates have not been fixed.

ISSUES FOR DETERMINATION [17] The issues are:

(a) as a preliminary matter, whether the application should be dismissed in limine on the grounds of delay and lack of bona fides;

(b) if not, the legal framework governing a stay of proceedings pending another proceeding;

(c) whether there exist special circumstances that are exceptional and compelling, such that it would be unjust or inequitable for this action to proceed pending the KB Suit;

(d) whether the balance of justice justifies the granting of a stay;

(e) whether the application constitutes an abuse of process;

(f) whether and on what basis the Indian proceedings affect the disposal of this application; and

(g) what consequential directions, if any, should be made.

STATUTORY AND LEGAL FRAMEWORK A. JURISDICTION [18] The application is brought under Order 92 rule 4 of the Rules of Court 2012 and section 25(2) of the Courts of Judicature Act 1964 read with Item 11 of the Schedule. The High Court has inherent jurisdiction to stay proceedings before it where justice so requires, and a statutory power to make such interim and ancillary orders as may be just and convenient. The existence of jurisdiction is not in issue. What is in issue is whether and how the discretion should be exercised.

(B) THE APPLICABLE TEST [19] I adopt, the framework articulated by the High Court in Public Bank Bhd v Umapagan K Ampikaipakan [2025] CLJU 510, where the Court, by reference to the Court of Appeal's decision in Jagdis Singh Banta Singh v Outlet Rank (M) Sdn Bhd [2013] 4 MLJ 213 and the Federal Court's decision in Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2003] 4 CLJ 1, identified three considerations for the evaluation:

(i) the existence of special circumstances that must be exceptional and compelling, such that it would be unjust or inequitable for the case to proceed;

(A) Issue 1 - The Preliminary Objection on delay [23] The Plaintiff's preliminary objection is, in summary, that the 1st to 4th Defendants delayed the filing of Enclosure 73 by approximately seventeen months from the filing of the KB Suit (and longer from the filing of the Indian proceedings), that no explanation appeared in the affidavit in support, that an explanation appeared only in a later affidavit in reply, and that the application is in any event an afterthought lacking bona fides. The Plaintiff relies, among other authorities, on Hong Leong Finance Bhd v Low Thiam Hoe [2016] 1 MLJ 301 (Federal Court), Ineax Engineering Sdn Bhd v Ineax Process Sdn Bhd & Anor [2017] MLJU 543, International Construction & Civil Engineering Sdn Bhd v Jittra Sdn Bhd & Ors [2018] 1 LNS 1252 (Court of Appeal), Empire Holding Ltd v Suruhanjaya Sekuriti Malaysia & Ors [2023] MLJU 2750, Chan Chee Wing v Robert Yeow Tow Hock & Ors [2021] MLJU 2417, and Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 (Court of Appeal). [24] The principle invoked is well established. In International Construction, the Court of Appeal stated that the threshold to seek a stay is high and that, where the bona fides of the application are in doubt, a stay application must be dismissed in limine. In Ng Hee Thoong, the Court of Appeal held that, whenever there is a delay, it is for the applicant to give an explanation by affidavit, even before the point is taken by the other side. In Hong Leong Finance, in the analogous context of an application to amend, the Federal Court emphasised that the onus is on the applicant to furnish a reasonable explanation for any delay. [25] I accept these principles. The question is whether, on the present facts, the threshold for dismissal in limine is reached. [26] The 1st to 4th Defendants' explanation is, in substance, threefold. First, they say that they could not sensibly have applied for a stay of indefinite duration before the KB Suit had been fixed for trial; the application was made promptly upon the KB Suit being fixed for trial and shortly before a scheduled case management date in this action. Secondly, they say that the e-review minute of 23.12.2024, on which the Plaintiff relies, did not impose a mandatory deadline for the filing of all interlocutory applications, and that the minute was directed at a different intended application (described in the minute as an APL application). Thirdly, they rely on the overriding objective in Order 1A and submit that the substantive merits of the application should not be defeated by what they describe as a technical objection. [27] I have considered the e-review minute of 23.12.2024 set out in the parties' submissions. Read fairly, the minute records the Court's decision to fix case management for an interlocutory application after the application is filed; it does not, in terms, impose a fixed cut-off after which no interlocutory application may be filed. There is therefore no breach of an unambiguous direction of this Court. The Plaintiff's submission to the contrary, with respect, overstates the effect of the minute. [28] It remains the case that the explanation for the delay was not advanced in the affidavit in support, and was given for the first time in an affidavit in reply after the Plaintiff had taken the point. In an ideal case, the explanation would have appeared in the affidavit in support: the principle in Ng Hee Thoong applies. The explanation is also not particularly strong: while it is correct that an indefinite stay would be an unattractive proposition, this does not fully answer why the application could not have been signalled earlier, given that the alleged overlap between marital status and probate was apparent from the moment the KB Suit was commenced. To that extent, the Plaintiff's objection has force. [29] Nevertheless, on a fair view of the matter, I am not persuaded that the threshold for dismissal in limine is reached on this application. The 1st to 4th Defendants did, when pressed, give an explanation; that explanation, while imperfect, is not implausible; and there is no unambiguous breach of a direction of this Court. The bona fides of the application, while not unimpeachable, are not so plainly absent as to warrant disposal without consideration of the merits. [30] The Preliminary Objection is therefore dismissed, but I record the qualification that delay is also a relevant factor on the merits, in particular as part of the balance of justice in Section 5(D) below. To this extent the Plaintiff's objection succeeds in part.

(B) Issue 2 - Special circumstances [31] The 1st to 4th Defendants contend that there are special circumstances exceptional and compelling, such that it would be unjust or inequitable for this action to proceed pending the KB Suit. The argument has three principal limbs. [32] First, the 1st to 4th Defendants say that the Plaintiff's right to seek probate depends on her status as the lawful wife and beneficiary of the deceased; that this very status is in issue in the KB Suit; and that, if the Plaintiff is later found not to have been the lawful wife, the present action would fail entirely. They submit that the KB Suit is therefore determinative of, and goes to the root of, the present action. [33] Secondly, and developed primarily in their reply submission, the 1st to 4th Defendants point to the description of the Plaintiff in the Will as "my wife, Vasantha". They submit that the description "my wife" imports a legal status; that, if that status is not made out, the description on which the Will rests is undermined; and that the Court ought not to assume the status at this stage. [34] Thirdly, they say that there is a real risk of inconsistent findings if the two actions proceed in parallel, and that, if probate is granted and acted upon, the consequences may not be easily reversible. [35] The Plaintiff's response is structured. She submits, first, that her locus standi in the present action does not depend on her status as the deceased's wife but flows from her appointment as sole executrix under the Will. She submits, secondly, by reference to Letchumanan Chettiar and Chin Jhin Thien, that the probate enquiry is concerned with the genuineness of the Will, due execution and attestation, testamentary capacity, and the dispelling of suspicious circumstances; and is not concerned with the disposition of property under the Will or with marital status as such. She submits, thirdly, that the Will identifies her by name (Vasantha) and that any question about the descriptive element "my wife" is a matter for the trial of this action and not a basis for a stay. [36] I prefer the Plaintiff's analysis on the central point, but with the qualifications set out below. [37] On locus standi, I accept that the Plaintiff's standing to commence the present action arises from her appointment as executrix in the Will. That appointment is a testamentary appointment whose validity is to be determined according to the principles applicable in probate. It does not, on the face of the Will or as a matter of law, depend on the prior or contemporaneous determination of the validity of the marriage between the Plaintiff and the deceased. It will of course be open to the Defendants, in the substantive trial, to raise any properly pleaded matter going to the validity of the Will (including, if so advised, suspicious circumstances). But the standing to bring the action is not, on the materials before me, contingent on the marital question. [38] On the description "my wife, Vasantha". I do not reach a concluded view on this point and do not consider it appropriate to do so on this interlocutory application. I record the following observations only. The point was developed primarily in the 1st to 4th Defendants' reply submission, and the Plaintiff did not have an opportunity to deal with it in detail in writing before me. It plainly raises a question of construction. Whether the description "my wife" operates as essential to the gift, or as merely descriptive of the named beneficiary, is a question of construction reserved for trial; the parties remain at liberty to make such submissions on construction, and to cite such authority, as they may consider appropriate at that stage. For present purposes and for the limited purpose of determining whether the existence of the description requires a stay of this action it is sufficient to observe that the Will identifies the Plaintiff by name; that the relationship between the descriptive element and the operative gift is, on its face, a matter of construction; and that the existence of an arguable construction question does not, by itself, require this Court to await the determination of the marital question by another Court. [39] On the doctrine of suspicious circumstances, as articulated in Chin Jhin Thien and Choo Mooi Kooi, I observe that the doctrine has its place at the substantive trial. It is at trial that the propounder must adduce evidence of due execution, testamentary capacity and knowledge and approval, and must dispel any suspicion arising from the circumstances. The Defendants are entitled to put suspicious circumstances in issue by their pleadings, to test the propounder's evidence, and to call their own evidence. Whether the Plaintiff was lawfully married to the deceased may form part of the factual matrix at trial. It does not necessarily have to be determined first; nor, on the present materials, is it shown to be so plainly engaged that the trial would be premature without it. [40] On the risk of inconsistent findings, I observe that an inconsistency in the strict sense arises only as between findings of the same legal character on the same fact. A finding by this Court that the Will was duly executed and that the testator had capacity is not a finding on marital status. A finding by the Kota Bharu Court on marital status is not a finding on due execution or capacity. The $ 1^{\mathrm{st}} $ to $ 4^{\mathrm{th}} $ Defendants' real concern, as developed in their reply submission, is consequential rather than logical: that, if probate is granted, dealings may follow that may be difficult to reverse. That concern does not establish inconsistency in the legal sense, but is a matter going to the balance of justice and to consequential directions, considered below. [41] Taking these matters together, I am not persuaded that the existence of the KB Suit constitutes a special circumstance that is exceptional and compelling, such that it would be unjust or inequitable for this action to proceed. The two actions are factually related but not identical. The marital question may be relevant to discrete subquestions in this action if properly pleaded and proved at trial. It is not shown on the present materials to determine the probate question itself.

(C) Issue 3 — Balance of justice [42] The Plaintiff relies, on this question, on the High Court's decision in Koh Hooi Siang & Ors v Tay Yew Chong [2018] MLJU 1759, where the balance of convenience (also termed the balance of justice) was identified as one of the factors to be considered by the Court in deciding whether a stay should be granted. That principle is uncontroversial and I apply it here. [43] The Plaintiff's prejudice is direct and identifiable. She is the named executrix and the named beneficiary under the Will. A stay of indeterminate duration would prevent her from progressing the action towards determination. The deceased's testamentary intentions, as expressed in the Will, would be held in abeyance for the duration of any stay. Such delay would, in itself, prejudice her substantively, regardless of the ultimate outcome. [44] The 1st to 4th Defendants' prejudice is more remote. Their concern, summarised, is that the Plaintiff may obtain probate and deal with estate assets including any assets in India before the KB Suit is determined. The 1st to 4th Defendants describe this risk as serious and irreparable. I am prepared to accept that the concern is genuine. I do not, however, accept that the only or proportionate response is a complete stay of this action. The concern is, on a proper analysis, addressable by case management including, where appropriate, undertakings or preservation directions made on a properly constituted application and not by suspending the determination of the substantive rights in this action. [45] I add that the 1st to 4th Defendants' delay in filing Enclosure 73 weighs in the balance. The application could have been signalled earlier. Some of the asset-dissipation concern that the 1st to 4th Defendants now press could itself have been the subject of earlier interlocutory applications. The fact that the application is brought at the pre-trial stage, rather than at an earlier stage, somewhat reduces the persuasive force of the prejudice argument. [46] Refusing a stay does not deprive the 1st to 4th Defendants of their defences. They may contest the Will, challenge due execution, raise suspicious circumstances, and pursue any properly pleaded issue at trial. They may also continue the KB Suit. Their substantive position is preserved. [47] On a proper view of the materials, the balance of justice does not favour the suspension of the probate action. It favours the continuation of the action, subject to such case management as may be appropriate.

(D) Issue 4- Abuse of process [48] The Plaintiff submits that Enclosure 73 is frivolous, vexatious and intended solely to delay the proceedings. She relies, in this connection, on the High Court's description in Manhong Poultry Farming Sdn Bhd v Goldform Corp Sdn Bhd [2017] MLJU 2416 of "frivolous" and "vexatious" applications as obviously unsustainable, groundless, and raised to embarrass or annoy. [49] I do not accept that characterisation. Enclosure 73 raises a genuine concern about the relationship between two related proceedings and the orderly administration of an estate alleged to be subject to overlapping disputes. The application is not properly described as frivolous or vexatious. It does not, in my judgment, amount to an abuse of process. That a stay is not warranted on the merits is not the same as saying that the application was an abuse to bring; it is simply to say that, on the merits, the threshold for a stay has not been crossed. [50] Accordingly, the third prong of the Umapagan test is not engaged.

(E) Issue 5 - The Indian proceedings [51] The position on the Indian proceedings is, in my judgment, more straightforward than the parties' submissions might suggest, for two reasons. [52] First, as a matter of procedure, the 1st to 4th Defendants do not and on the prayers as framed, cannot seek a stay of this action specifically pending the disposal of the Indian proceedings. The notice of application seeks a stay pending the disposal of the KB Suit. The 1st to 4th Defendants accept this in their reply submission, where they expressly state that their primary position is for a stay pending the disposal of the KB Suit and that the Indian proceedings are matters in respect of which they reserve liberty to apply. They rely, in support of their reservation, on the Federal Court's decision in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237 on the scope of liberty to apply for consequential orders. I accept that liberty to apply is a real, if limited, mechanism; but the matter does not arise for substantive determination on this application as framed. [53] Secondly, as a matter of substance, the Indian proceedings concern the characterisation and partition of property in India alleged to constitute Joint Hindu Family ancestral property. The disposition of immovable property is, on settled principles of private international law, governed by the lex situs. Whether particular Indian property is Joint Hindu Family property is a question for the Indian courts. The grant of probate in Malaysia, by contrast, is a determination of the executor's authority to represent the estate within Malaysia. It does not, of its own force, override the Indian courts' jurisdiction over Indian property. [54] There is, in addition, a factual dispute as to the present operative status of the Madras orders, the Plaintiff contending that the status quo order exhibited as Exhibit C expired on 12.04.2024, and the 1st to 4th Defendants disputing that contention. I do not need to resolve that dispute on this application, and I do not. It is sufficient to observe that no specific operative Madras order has been demonstrated to me which prohibits this Court from determining whether probate should be granted in Malaysia, or which would be directly contradicted by such a grant. [55] The Indian proceedings, considered both procedurally and substantively, do not constitute an independent basis for staying this action. The 1st to 4th Defendants' liberty to apply, on a proper application and on submissions, is preserved.

(F) Issue 6 - Consequential case management [56] Enclosure 73 sought a stay. It did not seek substantive interlocutory relief in the form of preservation orders, undertakings as to dealings, or directions for the disclosure of estate assets. The Plaintiff has not had the opportunity to make submissions on the form or content of any such relief. It would not be appropriate, on the dismissal of Enclosure 73, for this Court to grant substantive relief that has not been prayed for and on which the parties have not been heard. [57] I have considered whether it would nevertheless be appropriate, in the exercise of the Court's general case management jurisdiction, to make an interim, even-handed direction restraining all parties from dissipating or otherwise dealing with estate assets pending further order. There is, on the materials before me, a real concern on the 1st to 4th Defendants' side that estate assets may be the subject of dealings before the substantive issues are resolved, and an even-handed direction binding all parties symmetrically would, in form, be of limited reach. [58] On reflection, I have concluded that the better course is not to make such a direction on this application. The notice of application in Enclosure 73 contains six prayers. None of them seeks any direction concerning the preservation of estate assets. The general prayer for such further or other relief as the Court deems fit (prayer (vi)) is not, in my judgment, a sufficient basis for granting substantive interlocutory relief that imposes obligations on the Plaintiff (who would be bound by such a direction in equal measure) and on which the Plaintiff has had no opportunity to make submissions as to its appropriateness, scope, or form. It is preferable, consistent with principles of natural justice and with the proper limits of the Court's adjudicative role on this application, that any direction concerning the preservation of estate assets be made — if at all — on a properly constituted application supported by appropriate evidence and on full submissions from both sides. [59] Accordingly, beyond the dismissal of Enclosure 73, no operative direction is made on this application. Any party who seeks further interlocutory relief including, for the avoidance of doubt, any direction concerning the preservation of estate assets, undertakings as to dealings, particulars of estate assets, or coordination with the KB Suit or the Indian proceedings may apply, on a properly constituted application and on submissions, at the next case management or earlier.

CONCLUSION [60] summarise my conclusions. [61] The Plaintiff's preliminary objection on delay is rejected, though delay is a relevant factor on the balance of justice on the merits. [62] On the merits, applying the three-pronged test articulated in Public Bank v Umapagan, the 1st to 4th Defendants have not established special circumstances that are exceptional and compelling. The KB Suit is related to but not, on the present materials, determinative of the probate question; the Plaintiff's standing to bring the action arises from her appointment as executrix; and the construction question raised by the description "my wife, Vasantha" is, in my view, a matter for trial and not a basis for staying this action. [63] The balance of justice does not favour the suspension of this probate action. The Plaintiff's prejudice is direct; the 1st to 4th Defendants' prejudice can be addressed, where necessary, by properly constituted interlocutory applications. [64] The application is not an abuse of process; the third prong of the Umapagan test is not engaged. [65] The Indian proceedings do not, on the application as framed, provide an independent basis for a stay. The 1st to 4th Defendants' liberty to apply is preserved. [66] Enclosure 73 should be dismissed. Beyond the dismissal, no operative direction is made on this application. Substantive interlocutory relief, if sought by any party, will be addressed on a properly constituted application and on submissions.

ORDERS OF THE COURT [67] The Court orders as follows:

(a) Enclosure 73 is dismissed.

(b) Costs of Enclosure 73 shall be paid by the 1st to 4th Defendants to the Plaintiff in the sum of Rm 7,500, subject to allocator.

(c) Liberty to apply. (MELAKA) Lawyer For Plaintiff : En. Nahdan Rengganathan Bin Abdullah bersama Cik Ow Su Wan Tetuan A Rengganathan & Co Peguambela dan Peguamcara No. 2-26, Jalan PM 3, Plaza Mahkota, 75000 Melaka. Lawyer For Defendents : En. Vijaymohan a/l Mohan Ghandi (b/p Def 1, 2, 3 & 4) Tetuan Vijay Peguambela dan Peguamcara E 09-11, Plaza Mont Kiara, No. 2, Jalan Kiara, 50480 Kuala Lumpur.