Visaladchumy A/P Narayanan & 5 Lagi v Wakil Diri Kepada Haridas A/L Narayanan (Si Mati) & 2 Lagi (N-02(NCVC)(W)-1573-08/2017)

(ii) 7/7/2017 dismissing the Appellants' claims and allowing the $ 2 ^{n d} $ and $ 3 ^{r d} $ Respondents' Counterclaim and damages of RM5,000.00 with costs of RM20,000.00 to be paid to the $ 1 ^{s t} $ Respondent and RM30,000.00 to be paid to the $ 2 ^{n d} $ and $ 3 ^{r d} $ Respondents subject to allocatur fees. [2] The Appellants are the Plaintiffs whilst the $ 1^{\mathrm{st}} $ $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Respondents are the $ 1^{\mathrm{st}} $ $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants in the Court below. We shall for purposes of this appeal refer to the parties as they were referred to in the High Court. [3] At the hearing of the appeal on 11/4/2019 and subsequently at the continued hearing date on 9/5/2019, the 2nd and 3rd Respondents were represented by Messrs. Ahmad Sukeri & Associates. However we observed the 1st Respondent was not represented during the hearing of the appeal although the Affidavit of Service affirmed by the process server affirmed on 5/4/2019 for service of the Amended Notice of Appeal dated 14/12/2018 and the Appellants' solicitors' letters dated 21/12/2018 informing the 1st Respondent of the date of hearing of the appeal showed that the said documents were duly served. Likewise the Affidavit of Service of the same process server affirmed on 3/5/2019 for service of the Appellants' solicitors' letter 15/4/2019 informing the 1 $ ^{st} $ Respondent of the continued hearing date showed that the said letter was duly served. [4] Having carefully considered the submissions of the respective Counsel and having perused the Records of Appeal before us, we unanimously allowed the appeal. These are the reasons for our decision. Background Facts [5] There are 11 beneficiaries to the estate of one Narayanan a/l Krishnan ('the Deceased') who died intestate on 4/7/1989, including the $ ^{1st} $ to $ ^{5th} $ Plaintiffs and the $ ^{1st} $ Defendant, who are brothers and sisters. On 10/11/2015, the $ ^{1st} $ Plaintiff died intestate and by an Order of the Court dated 28/12/2015, the proceedings in the Suit was ordered to be carried between the $ ^{1st} $ to $ ^{5th} $ Plaintiffs and for the $ ^{6th} $ Plaintiff to be made a party to the Suit as a Plaintiff in substitution of the deceased $ ^{1st} $ Plaintiff. The $ ^{1st} $ Defendant was appointed as the administrator of the Deceased's estate vide the Letter of Administration dated 28/9/1990. [6] At all material times, the Deceased was the original owner of the 2 plots of land known as Geran Mukim 452 Lot 5368 measuring 6.101 acres (' $ 1^{\mathrm{st}} $ plot') and Geran Mukim 895 Lot 5589 measuring 2.454 acres at Mukim Labu, Gadung Jaya, District of Seremban, Negeri Sembilan Darul Khusus( $ 2^{\mathrm{nd}} $ plot') collectively referred to as 'the 2 plots of Land'). [7] On 24/7/1997, upon an application made by the 1 $ ^{1st} $ Defendant to the Land Office of Negeri Sembilan, the 1 $ ^{1st} $ Defendant had obtained an order pursuant to s.17 of the Small Estates (Distribution) Act 1955 (Act 98) （'SEDA 1955'）to sell the 2 plots of Land to a company for an agreed price of RM4.00 per square foot (this price of "RM4.00" is as pleaded by the Plaintiffs) and the proceeds of sale to be equally divided amongst the 11 beneficiaries of the Deceased's estate （'Order dated 24/1/1997'）. [8] However the Plaintiffs alleged that the sale and purchase transaction for the agreed price of RM4.00 per square foot did not materialise. Instead, on 2/6/2014, the Plaintiffs discovered the 2 plots of Land were sold to the $ 2 ^{nd} $ and $ 3 ^{rd} $ Defendants with a purchase price of RM250,000.00 for the $ 1 ^{st} $ plot which is equivalent to RM2.30 per square foot and RM700,000.00 for the $ 2 ^{nd} $ plot which is equivalent to RM2.60 per square foot. At all material times, the $ 1 ^{st} $ Defendant did not dispute having received the purchase price totalling RM950,000.00 from the $ 2 ^{nd} $ and $ 3 ^{rd} $ Defendants. The sale and purchase of the 2 plots of Land to the $ 2 ^{nd} $ and $ 3 ^{rd} $ Defendants was alleged by the Plaintiffs to be without their consent. [9] Consequently, the 1 $ ^{st} $ Plaintiff had lodged caveats over the 2 plots of Land on behalf of the Plaintiffs. On 2/6/2014, the 5 $ ^{th} $ Plaintiff had lodged a police report against the 1 $ ^{st} $ Defendant contending that the 1 $ ^{st} $ Defendant had breached the obligations and duties vested on him as the administrator of the Deceased's estate and had committed fraud in disposing the 2 plots of Land to the 2 $ ^{nd} $ and 3 $ ^{rd} $ Defendants. [10] By way of letters dated 16/6/2014 and 10/7/2014, the 1 $ ^{st} $ Plaintiff applied for notes of proceedings and had obtained the same in respect of 2 hearings held at the Land Office on 28/9/1990 and 24/1/21997. [11] Sometime in 2015, the Plaintiffs engaged M/s Raine and Horne International Zaki & Partners Sdn Bhd to determine the market value of the 2 plots of Land at the time of the said sale. According to the Valuation Report, the market value of the 2 plots of Lands at the time of the said sale were RM1,340,000.00 and RM450,000.00 respectively totalling RM1,790,000.00. According to the Plaintiffs the sales were undervalued and not favourable to them. [12] On 19/10/2015, the Plaintiffs filed a Writ of Summons and Statement of Claim seeking, among others, (i) a declaration that the $ ^{1 \mathrm{st}} $ Defendant was in breach of his statutory and fiduciary duties as administrator of the Deceased's Estate; (ii) that the $ ^{1 \mathrm{st}} $ Defendant be removed as an administrator; (iii) a declaration that the sales of the 2 plots of Land by the $ 2^{n d} $ and $ 3^{r d} $ Defendants be set aside and are declared null and void. [13] The 2nd and 3rd Defendants later filed their Defence and Counterclaim seeking, among others, general damages, aggravated and exemplary damages for the trespass caused by the Plaintiffs' private valuer over the 2 plots of Land and for the private caveats lodged over the same. [14] The appeal before us is brought by the Plaintiffs against the High Court Order dated 26/10/2016 and the Order dated 7/7/2017. Decision of the Court [15] We shall only deal with the issues which we consider relevant for purposes of disposing this appeal. A. Appeal against the dismissal of the application to amend the Amended Statement of Claim [16] As for the dismissal of the Plaintiffs' application to amend the Amended Statement of Claim (encl.143), all the learned Judge stated was- "...Permohonan plaintiff-plaintiff tersebut telah tidak dibenarkan oleh mahkamah ini dan rayuan telah dibuat oleh plaintiff-plaintiff pada 2.8.2017. Keputusan mahkamah ini menolak Notis Permohonan untuk meminda Pernyataan Tuntutan adalah bertarikh 26.10.2016. Notis rayuan tersebut difailkan di luar masa yang ditetapkan dan tiada permohanan untuk lanjutan masa difailkan ke mahkamah ini." (para 63 Grounds of Judgment ('Grounds') [17] Prior to addressing the merits of the amendment application it would be useful to state the following events that transpired. It is not disputed that when this suit was fixed for trial in the Seremban High Court, the 2nd and 3rd Defendants made an application to strike out the Plaintiffs' claim in the High Court on the ground that there was no cause of action against the 2nd and 3rd Defendant. The 2nd and 3rd Defendants appealed against the decision of the High Court dismissing the striking out application. During the hearing of the said appeal before this Court on 22/8/2016, the 2nd and 3rd Defendants raised points of law pertaining to SEDA 1955 which they did not raise at the High Court. The said appeal of the 2nd and 3rd Defendants was dismissed. [18] It is not disputed that on 23/8/2016 (a day after the dismissal of $ 2^{n d} $ and $ 3^{r d} $ Defendants' striking out application), the Plaintiffs filed encl.143 to amend the Amended Statement of Claim to plead SEDA 1955 and further and/or in the alternative to the Probate and 5 Administration Act 1959( Act 97) ('PAA 1959'). The said proposed amendments are reflected in paras 17.2 to 17.7 of the Proposed Re Amended Statement of Claim (Annexure A to the Affidavit in Support of encl.143). [19] It is to be noted that the events mentioned in paras 17 and 18 above occurred prior to the making of the High Court Order dated 26/10/2016. [20] Prior to the hearing of the Plaintiffs' appeal vide Notice of Appeal dated 2/8/2017 before us, the 2nd and 3rd Defendants had filed a Notice of Motion on 25/9/2017(encl.4) to strike out part of the said Plaintiffs' Notice of Appeal against the decision of the learned Judge dismissing their application for amendment of the Amended Statement of Claim. The 2nd and 3rd Defendants alleged, among others, that (i) the appeal against the High Court Order dated 26/10/2016 has been filed out of time; (ii) the Plaintiffs did not seek for adjournment of the High Court proceedings to allow the Plaintiffs to appeal against the High Court Order dated 26/10/2016 until after the completion of the proceedings on 27/3/2017; (iii) the Plaintiffs did not seek leave of this Court to file the Notice of Appeal against the High Court Order dated 26/10/2016 out of time; and (iv). the Plaintiffs' appeal against the High Court Order dated 26/10/2016 is defective. [21] Based on the Order of the Court of Appeal dated 27/2/2018, the Notice of Motion (encl.4) was heard and accordingly dismissed. [22] Reverting to the merits of the appeal in respect of the amendment application, the learned Judge had dismissed the amendment application as the Notice of Appeal dated 2/8/2017 against the High Court Order dated 26/10/2016 was filed out of time and no application of extension of time to file the Notice of Appeal had been filed. In our considered view the reason for the learned Judge's dismissal of the amendment application is academic because those were the grounds ventilated by the 2nd and 3rd Defendants in their Notice of Motion filed on 25/9/2017 (encl.4) to strike out the Plaintiffs' appeal against the High Court Order dated 26/10/2016 which was dismissed by this Court. [23] Counsel for the $ 2^{n d} $ and $ 3^{r d} $ Defendants argued that the amendment application was made in the course of trial, it was a second amendment to the Statement of Claim and the Plaintiffs failed to appeal notwithstanding that the amendment application was not granted by the High Court (para 49 of $ 2^{n d} $ and $ 3^{r d} $ Defendants' Written Submission dated 8/4/2019). [24] Counsel for the Plaintiffs submitted that the Plaintiffs did not proceed to appeal against the High Court Order dated 26/10/2016 at that point in time as the Plaintiffs took it as a ruling made during the course of trial and are therefore appealing to this Court in the present appeal. In support thereof Counsel relied on a decision of this Court in Christopher ak Bandi @ Josny v Tumbang ak Nakis & Anor (Jamil bin Sindi, third party)[2016] 4 MLJ 100 for the proposition that the appellant could still litigate the trial court's refusal to allow the amendment application in the appellate court if there was an appeal by the appellant after the conclusion of the trial of the suit and the appellant still reserved the right to challenge the Sessions Court's refusal to allow the requested amendment. [25] Counsel for the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants in submission- [26] In Christopher ak Bandi's case, the appellant sued the respondents in the Sessions Court for damages arising from a road accident. After one witness testified and the trial was adjourned to another date, the appellant filed a formal application to amend his writ and statement of claim to include an additional claim for "cost of professional care." The Sessions Court dismissed the application. On the appellant's appeal against the dismissal, the High Court sustained a preliminary objection by the respondents and the $ ^{3 rd} $ party that the Sessions Court's ruling was not a "decision" under s. 3 of the Courts of Judicature Act 1964 ('the CJA') which could be appealed against as it was "made in the course of a trial or hearing and did not have the effect of finally disposing of the rights of the parties". The appellant argued that an application to amend pleadings was not caught by s. 3 of the CJA as the Rules of Court 2012 allowed an application to be made at any stage of the proceedings including after trial but before judgment was handed down. [27] In Christopher ak Bandi, the fact that the High Court dismissed the appellant's application to amend by sustaining the preliminary objection of the respondents which was upheld by the Court of Appeal is not disputed. The Court of Appeal had dismissed the appellant's appeal primarily on 2 grounds-

(ii) Application of principles pronounced by the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 which concerned an application to amend pleadings and the principle of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 was discussed. [28] The foregoing paragraphs quoted by the $ 2^{n d} $ and $ 3^{r d} $ Defendants concerned the case of Hong Leong Finance Bhd v Low Thiam Hoe (supra) and the observations of the Federal Court regarding the new pre-trial case management regime under O.34 RHC1980 and now under O.34 of the ROC 2012 calling for a different approach to prevent delay in the progress of a case to trial and for its completion and where an application to amend the pleading is made at a very late stage, the principles of Yamaha Motor ought not to be the sole consideration. David Wong JCA (later Chief Judge SS) (as he then was) (delivering the judgment of the Court) stated that the case before them was "a glaring example of unnecessary delay". His Lordship held that to concede to the contention of the appellant that his matter was appealable would "give a party an extra bullet, so to speak, to delay an expeditious trial and would also be inconsistent to the jurisprudence of the present regime of civil procedure." [29] In our considered view, Counsel for the Plaintiffs exercised prudence in abstaining from filing an appeal against the ruling of the learned Judge vide High Court Order 26/10/2016 for the reasons expressed by this Court in Christopher ak Bandi's case, i.e., it would be non-appealable and would not be in accord with the jurisprudence expounded by the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe. [30] What is significant is the decision of the Court of Appeal in Christopher ak Bandi's case does not end there after the deliberation of the 2 cases alluded in paras 27 and 28 above. With respect, what Counsel for $ 2^{n d} $ and $ 3^{r d} $ Defendants failed to observe which Counsel for the Plaintiffs did and utilised the same to his clients' advantage was, despite dismissing the appellant's appeal, His Lordship at 110 [21] concluded- [21] Finally, we wish to reiterate that the appellant can still litigate the refusal of the sessions court judge in allowing the application for amendment of the writ and statement of claim in the appellate court if there is an appeal by the appellant after the conclusion of the trial of the suit. Hence, the appellant still reserves this right to challenge this refusal of the sessions court to allow the requested amendment". [31] Premised on the view expressed by this Court in Christopher ak Bandi's case at 110 [21] quoted above and with which we agreed, in our judgment, Counsel for the Plaintiffs did not file the amendment application out of time. This is because the Plaintiffs can still litigate the refusal of their amendment application of their Amended Statement of Claim after the conclusion of the Suit as they have before us the appeal of the dismissal of their Suit and hence their right to challenge the said refusal is reserved. In light of the above, we find the learned Judge had erred in dismissing the Plaintiffs' application to amend the Amended Statement of Claim. We therefore allowed the amendment sought by the Plaintiffs. B. Main Appeal against the dismissal of the Suit B1. Whether there was a breach of statutory and fiduciary duties? [32] At the outset we wish to place on record that during oral submission, Counsel for the Plaintiffs conceded that the Plaintiffs were no longer pursuing on the issue of fraud, which included the issue of whether the learned Judge erred when Her Ladyship held that the 1 $ ^{st} $ Defendant obtained the State Authority's consent to transfer the 2 plots of Land to the 2 $ ^{nd} $ and 3 $ ^{rd} $ Defendants vide letters from the District and Land Office Seremban dated 3/3/2014. [33] The following appeal is considered in the context of us having allowed Plaintiffs' application to amend the Amended Statement of Claim, which is to include the Plaintiffs' pleading on SEDA 1955. It not disputed that the $ ^{1st} $ Defendant, Haridas, was the administrator of the Deceased's estate and that the $ ^{1st} $ Defendant had sold the 2 plots of Land to the $ ^{2nd} $ and $ ^{3rd} $ Defendants. The crux of the appeal before us revolved around the issue of whether the sale and transfer of the 2 plots of Land by the $ ^{1st} $ Defendant to the $ 2^{nd} $ and $ 3^{rd} $ Defendants was done in accordance with the PAA 1959 and/or SEDA 1955. The $ 2^{nd} $ and $ 3^{rd} $ Defendants ( $ 1^{st} $ Defendant was unrepresented) have taken the position that the PAA 1955 does not apply to the facts of this appeal and the only applicable statute was the SEDA 1955. The Plaintiffs however submitted that regardless of which statute applied, there was non-compliance by the $ 1^{st} $ Defendant in transferring the 2 plots of Land to the $ 2^{nd} $ and $ 3^{rd} $ Defendants. [34] In Ong Thye Peng v Loo Choo Teng & Ors [2008] 4 MLJ 31, the deceased, a registered proprietor of a property died testate. By a sale and purchase agreement the 1 $ ^{st} $ and 2 $ ^{nd} $ respondents who were appointed as trustees of the estate by order of the Court sold the property to the 3 $ ^{rd} $ to 8 $ ^{th} $ respondents (purchasers). Clause 8 of the agreement provided that the trustees shall also apply to the Court for formal sanction to sell the property in accordance with the PAA 1959. The purchasers instituted proceedings (1981 civil suit) against the trustees and the State Government of Penang for specific performance of the agreement (suit against the latter was discontinued). The appellant, one of the original executors and trustees of the deceased's will, upon his application was added as a defendant to the 1981 civil suit, denied the validity of the agreement and alleged, among others, that the trustees could not lawfully enter into the agreement without prior approval of the Court and him. [35] We are conscious that the facts of Ong Thye Peng's case (supra), a case cited by both the Plaintiffs and 2 $ ^{nd} $ and 3 $ ^{rd} $ Defendants, differ from the facts of the appeal before us. Nevertheless we are of the view that the judicial pronouncements of the Federal Court emanating from one 5 of the questions of law i.e. Question number 3 formulated for its determination is relevant in the disposal of the issue before us. [36] Question number 3 states- "Whether the beneficiaries of an estate of a person who dies testate should, in law, be entitled to the same measure of protection as that afforded to beneficiaries under the provisions of the Probate and Administration Act 1959 and judicial pronouncements thereof." The appellant relied on Haji Aminah bte Bakri v Manisah bte Haji Bakri & Ors [1989] 1 MLJ 350 for the proposition that an executor, being a trustee, owed a duty to obtain the best price for the assets of the estate that is being sold and that the relevant date to determine whether the sale price is fair is at the date of the hearing of the application for the sanction to sell. The respondent however contended there is a distinction between a sale by an administrator and an executor or trustee and that the appellant's case was founded on s.60(4) PAA 1959 which refers to "administrator" and not an "executor" or "trustee". [37] In addressing the arguments of the appellant and the respondent the Federal Court in Ong Thye Peng's case opined at 52[28] as follows: [28] In our opinion the language employed in s 60 of the 1959 Act is clear. It is concerned with the manner of disposal of the property of a deceased person by his personal representative. Section 60(3) of the 1959 Act deals with the disposal of the property of a person who dies testate while s 60(4) at the 1959 Act deals with the property of a person who dies intestate. Under s 60(4)(a) of the 1959 Act, the immovable property of a person who dies intestate may not be disposed of without the previous permission of the court. Under s 60(3) of the 1959 Act, the property of a person who dies testate may be disposed of in any manner the executor may think proper subject to the imposition of any restriction by the will of the deceased. In that event the executor may still do so in accordance with an order of the court. What requires deliberation is the difference in law, if any, in the manner of disposal of the property of a person who dies testate and a person who dies intestate." (Emphasis added) [38] The Federal Court in Ong Thye Peng's case considered another of its case in Yap Yoke Luan & Ors. v Ong Wee Tok & Ors [1984] 1 MLJ 23, which was relied on by the Plaintiffs. In Yap Yoke Luan (supra) the $ ^{1st} $ and $ ^{2nd} $ respondents, as the administrators of the estate of a deceased person, had agreed to sell land belonging to the estate to the respondents. The sale was subject to obtaining leave of Court provided in the sale agreement. The beneficiaries were cited as respondents and the appellants applied to be added as interveners. The application was dismissed by the learned Judge as the beneficiaries opposed the application on the grounds, among others, that the agreed purchase price was grossly below the market value. [39] The Federal Court in Ong Thye Peng's case opined that the effect of s.60 (4) of PAA 1959 was considered in Yap Yoke Luan and referred to the dicta of Syed Agil Barakbah FJ (as he then was) at p.25 as follows: "In this regard we are of the view that the appellants as the proposed purchasers under a conditional contract were perfectly well aware that their contract had to be approved by the court before it could be carried into effect and they had taken the risk of losing their bargain if the court refused to grant such approval. The duty of the court is to protect the rights of the beneficiaries and not to consider the interests of the proposed purchasers. In exercising its discretion the court will have to look into the facts and surrounding circumstances of the case i.e. whether the proposed sale was favourable to the beneficiaries and whether the administrators had acted with proper prudence in exercising their overriding duty to obtain the best possible price. The court is concerned that the price is a reasonable one not at the time the offer was made but at the time of hearing the application for approval of the proposed sale. (Che Ah and Che Yang Kelsom v Che Ahmad [1941] MLJ 126, and Buttle vs. Saunders [1950] 2 All ER 193, at p 195 and Tunku Ismail & Ors [1982] 2 MLJ 44). We agree with respect with the learned judge that the purchase consideration of $150,000 was manifestly low in the light of the valuation of the market value of $244,000 for the said land at the material time. It was apparent that the administrators had failed to carry out their duty as trustees to obtain the best possible price. Since most of the beneficiaries had not been consulted nor their consent been obtained, the administrators should have applied the common sense rule of calling for a valuation report. That would have assisted them in considering whether the purchase consideration they had agreed upon was reasonable as the best possible price." (Emphasis added) [40] The Federal Court in Ong Thye Peng's case also considered the case of Haji Aminah bte Bakri (supra) where the issue of whether the requirement of obtaining the best possible price as at the date of hearing is also applicable where an order of the Court is sought for the disposal of property of a person who dies testate. The Singapore High Court held the relevant date to determine whether the sale price is fair is the date of hearing of this application and not at the time of offer. [41] Albeit in the context of Ong Thye Peng's case, the Federal Court was concerned with the duty of executors, the Federal Court compared it to the role of the administrators towards the estate and found their roles to be synonymous. This appears at 55 [32] as follows: [32] As they must act in the interest of all beneficiaries their duty is to ensure that the estate of which they are trustees benefits as much as possible when they deal with trust property. The result is that the obligation of executors and administrators towards the estate of which they are personal representatives must be the same. This is because their primary duty is to protect the rights and interests of the beneficiaries. There can therefore be no difference in the duty of administrators and executors in the sale of estate property. It follows that even in the case of a sale of property by an executor the relevant date to determine whether the price for the hearing of the application for approval of the proposed sale just as in the case of a sale by an administrator as explained in Yap Yoke Luan & Ors v Ong Wee Tok & Ors [1984] 1 MLJ 23 referred to earlier". (Emphasis added) [42] The Federal Court in Ong Thye Peng's case at 55 [33] further opined that under the PAA 1959, the order of the Court sought under s.60(4) which refers to obtaining of the 'permission' of the Court to approve the sale, and that under s.60(3) which refers to 'order of the court' for the disposal of any property are placed in the same position because the different language employed in both the subsections require the application of the same tests of a consideration of the interests of the estate in making the order. [43] Similar interpretations on s. 60(4) of the PAA 1959 which are in accord with the decisions in Ong Thye Peng and Yap Yoke Luan with respect to the procedure to be followed by an administrator in the disposal of immoveable property of the estate of a deceased who died intestate and thus more akin to the facts of the appeal before us are the following decisions of this Court cited by the Plaintiffs: "These provisions are intended to prevent any improper sale of or dealing in the immovable property of the estate of a deceased by an administrator, who is required by law to apply to the High Court for an order of sale, supported by affidavit exhibiting a reliable valuation report on the property concerned for the consideration of the judge." (at 621 [8]); and "Once the order of sale made under s 60(4) of the Probate and Administration Act, it is the duty of the administrators to sell the estate property at a price not lower than the reserved price. The administrators should act in the best interest of the estate and sell it at the highest price that is available." (at 623 [13])." [44] We wish to make the following observations. Interestingly, this Court in Khoo Cheng (supra) at 622[12] referred to the cases below and made the following observations: Jewa & Ors [1982] 2 MLJ 44, where Syed Agil Barakbah J (as he then was) said "I feel it is my duty to protect the rights of all the beneficiaries in the land to be sold." [45] Further the cases alluded in the preceding subparas (a), (b) and (c) were the very same cases relied on by the Federal Court in Yap Yoke Luan (at p.25 G left) and the Federal Court had remarked (p.25 E right) that "The well accepted principle in Che Ah & Che Yang Kelsom's case did not appear to have been cited. We feel that had that been brought to the attention of the learned Judge, his decision would have been different." The principles in Che Ah & Che Yang Kelsom's case were applied in Haji Aminah bte Bakri which the Singapore High Court noted was applied in Re the Estate of Tunku Mohamed Jewa and Yap Yoke Luan. Finally, as for the latter case, the Federal Court in Ong Thye Peng endorsed the view it expressed therein. [46] Premised on the authorities discussed above, we agreed with the submission of Counsel for the Plaintiffs that the 1 $ ^{st} $ Defendant, Haridas as administrator of the estate of the Deceased owed fiduciary duties to the Plaintiffs, the beneficiaries of the estate of the Deceased. His duties included-

(ii) A duty to act with proper prudence when dealing with the estate property;

(iii) A duty to obtain best possible price for the assets of the estate that are being sold; and

(iv) A duty to distribute the proceeds of the sale of the estate property among the beneficiaries. [47] In addition we have reproduced the following provisions of the SEDA 1955 and the Small Estates (Distribution) Regulations 1955 ('SED Regulations') and the relevancy of the same would become apparent as the parties' arguments in relation to the Order dated 24/1/1997 would reveal hereafter. [48] S.17 of the SEDA 1955 provides- "17. Subsequent applications. [49] SED Regulations 16A and 16AA state- "16A. Sale by private treaty. Subject to any written law, upon application by the administrator under section 17 of the Act the Land Administrator may order the land to be sold by a private treaty." "16AA. Exercise discretion b the Land Administrator. In the exercise of any discretion under this regulation, the Land Administrator shall take into consideration that- [50] Premised on paras 37-40 of the Grounds, the learned Judge held that pursuant to the Order dated 24/1/1997, (i) the 1 $ ^{st} $ Defendant had the right to sell the 2 plots of Land to the $ 2^{nd} $ and $ 3^{rd} $ Defendants; (ii) the $ 2^{nd} $ and $ 3^{rd} $ Defendants had obtained the consent from the beneficiaries to sell the 2 plots of Land and there is no requirement to obtain another order to sell the same (para 25 of Grounds); and (iii) s.60(6) of the PAA 1959 did not apply as the order to sell the 2 plots of Land had been obtained. [51] Counsel for the $ 2^{nd} $ and $ 3^{rd} $ Defendants' contended that (i) it was not disputed that consent had been obtained from all the beneficiaries based on the Order in Form T i.e. the Order dated 24/1/1997; (ii) the Order dated 24/1/1997 was not set aside, cancelled or appealed against by the Plaintiffs; (iii) the status of the $ 1^{st} $ Defendant as administrator of the Deceased's estate was not challenged; (iv) s.60(4) of the PAA 1959 was not applicable as the applicable law was the SEDA 1955, (v) the $ 2^{nd} $ and $ 3^{rd} $ Defendants are bona fide purchasers (to be dealt with under heading B2); and (vi) the Plaintiffs' claim was in fact an internal dispute among the beneficiaries. [52] Counsel for the Plaintiffs argued that the learned Judge erred when she failed to consider there was a need for a fresh order to sell the 2 plots of Land citing Soon Seng Co Sdn Bhd v Toko Palayakat Jamal (M) Sdn Bd (formerly known as Abdul Jamal Trading Sdn Bhd) [1999] 5 MLJ 75 because-

(ii) in 2013, the $ 1^{st} $ Defendant sold the 2 plots of Land to the $ 2^{nd} $ and $ 3^{rd} $ Defendants at the price of RM2.30 per square feet for the $ 1^{st} $ Plot (Lot 5368) and RM2.60 per square feet for $ 2^{nd} $ Plot (Lot 5589) when in fact the Order dated 24/1/1997 relied on by him made 16 years prior to the sale itself provided for the 2 plots of Land to be sold at the price of RM 4.00 per square feet; and

(iii) the $ 1^{\mathrm{st}} $ Defendant had breached the general duties as Administrator of the Deceased's estate and his statutory duties under s.60(4) of the PAA 1959 and/or s.17(1) of the SEDA1955. [53] In our judgment there is no merit in the submissions of the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants. Based on the wordings of s.17 of the PAA 1955 and in the context of the appeal before us, it is clear that the section envisages and prescribes the procedure of making subsequent applications as follows: [54] Terms like "subsequent applications" and "where it is becomes necessary to make any other or further order" found in s.17 SEDA 1955 lend support to the fact that more than one application can be made under s.17 as long as the criteria for making the request by the administrator is met. Form P which is the prescribed form for an application under s.17 (unless the Land Administrator permits use of any other form), specifies, among others, the entry of the following particulars: "SUBSEQUENT APPLICATION (Section 17)

Insert (1) refers to the previous order granted under s.17;

Insert (2) refers to the requirement for making the subsequent application "e.g. appoint a new trustee; new administrator, withdraw caveat etc."

Insert (4) refers to "nature of the relief sought" The usage of the words "e.g." and "etc." in insert (2) presupposes that the requirements stated therein are purely illustrative and an application under s. 17 can be made under a myriad of circumstances. [56] Regs.16A and 16AA of the SED Regulations provides for a sale transaction by private treaty and it is not a sale of land by auction ordered by the Land Administrator (reg. 16(1)) or sale by tender among the beneficiaries ordered by the Land Administrator (reg. 16(2)). [57] We are of the considered view that s.17 of the PAA 1955 has to be read with regs.16A and 16AA of the SED Regulations. First, it is due to the presence of the words "upon application by the administrator under section 17 of the Act" in reg. 16A. Secondly, under reg. 16A, the Land Administrator has the discretion to order the land to be sold by private treaty by virtue of the word "may". Thirdly, whilst the Land Administrator has the discretion to order the land to be sold by private treaty under reg. 16A, such order by the Land Administrator is governed by the opening words "Subject to any written law" (which we will address later). Finally, the exercise of the discretion envisaged by reg.16A is amplified by reg.16AA which provides for the matters which the Land Administrator shall take into consideration when he exercises his discretion in a making an order for sale of land by private treaty. The 2 mandatory requirements are- "(a) the potential buyer has been ascertained;

the sale price which is equal to the market value of the land or at any value as agreed by the beneficiaries and deem fit by the Land Administrator has been determined." [58] Further, we are of the view that the usage of the opening words "Subject to any written law" in reg.16A means that in an application by an administrator under s.17 of the SEDA 1955, the Land Administrator's exercise of discretion to order the land to be sold by private treaty is "subject to any written law" and the "written law" envisaged here would include s.60(4) of the PAA 1959. [59] Before we discuss further the relationship between the relevant legal provisions under the PAA 1959, the SEDA 1955 and the relevant Regulations therein, we wish to touch on the sale price of the 2 plots of Land during the $ ^{2^{nd}} $ hearing on 24/1/1997. On a perusal of the pleadings, the Plaintiffs' pleaded case is (i) the price of the 2 plots of Land to be sold to the unnamed company as requested by the $ ^{1^{st}} $ Defendant is RM 4.00 per square feet, (ii) the Order dated 1997 is to sell at that price and (iii) the sale of the 2 plots of Land at that price did not materialise. However in his Statement of Defence, the $ ^{1^{st}} $ Defendant held a contradictory position when he admitted what is stated in subpara (i) but denied subparas (ii) and (iii). The $ ^{2^{nd}} $ and $ ^{3^{rd}} $ Defendants pleaded they had no knowledge of the price as they were not privy to the claims of the Plaintiffs. [60] The Notes of Proceedings ('NOP') of the Land Administrator of the $ 2^{nd} $ hearing on 24/1/1997 pertaining to the request of the $ 1^{st} $ Defendant resulting in the Order dated 24/1/1997 which the Plaintiffs' Counsel drew to our attention to support their submission reads as follows: "Saya minta membuat permohonan ulang bicara kerana kawasan RTN Gadon Jaya ada syarikat yang bercadang hendak beli dengan harga yang agak baik iaitu lebihkurang RM4.00 dan masih dalam perundingan. Saya dan waris-waris telah bersetuju dengan harga yang ditawarkan. Sekarang saya sebagai Pentadbir mohon satu perintah dikeluarkan bagi membolehkan saya menjual dan membuat pindahmilik kepada pembeli berkenaan." (Emphasis added) [61] In line with the foregoing contemporaneous document, we would regard the intended sale price of the 2 plots of Land on 24/1/1997 was "approximately RM 4.00 per square feet." In our view even taking the sale price of the 2 plots of Land was intended at approximately RM 4.00 per square feet and not per se RM 4.00 per square feet as the Plaintiffs contended, the slight difference in price does not detract from the fact that the intended sale price was hovering around the figure of RM 4.00 per square feet. [62] Based on the legal principles governing 60(4) PAA 1959 and s. 17 (1) SEDA 1955 which we have discussed above, we find there are common safeguards in respect of the disposal of immoveable property of a deceased's estate by an administrator, be it under s. 60(4) PAA 1959 or s. 17 (1) SEDA 1955, namely-

it requires the administrator to make an application, in the case of the former, obtain the "permission of the Court " and in the case of the latter, make an application to the Land Administrator; and

(ii) the underlying principle to be gleaned in the exercise of discretion by the Court and the Land Administrator is to protect the right and interests of the beneficiaries, the beneficiaries must be consulted and consent procured and to obtain the best possible price for the land in question (to be dealt under heading B3). [63] In Soon Seng Co (supra), briefly, the administrator of the deceased's estate entered a written agreement with the plaintiff who paid a deposit of RM115,000 for sale of property of which the deceased was the registered owner. The administrator had obtained an order of the Court for sale of the property to the plaintiff. A dispute arose between the administrator and the plaintiff. The defendant entered a caveat over the property on the basis that it had paid RM55,000 for the purchase of the property. In considering the plaintiff's application for removal of the caveat, one of the issues determined by the High Court is whether the administrator must reapply to the Court for sale of the property to the defendant. The defendant's argument which is not unlike the $ ^{2^{nd}} $ and $ ^{3^{nd}} $ Defendants in the appeal before us, since the administrator had already obtained the Court's permission earlier the sale of the property to the plaintiff, there was no need to obtain a $ ^{2^{nd}} $ permission for sale of the property to the defendant. The Court found the defendant's argument flawed from inception and held that the administrator ought to have obtained a fresh consent order pursuant to s. 60(4) PAA 1959 for the sale of the property to the defendant and failure to obtain such a consent must, prima facie, render the contract if any between the defendant and the administrator voidable pursuant to s. 60(6) PAA 1959. The Court's rationale, among others, is as follows (p.84): "The reason why the court requires its consent for the sale of any immovable property of a deceased by the administrator pursuant to s 60(4) of the Probate and Administration Act 1959 is to protect the interest of the beneficiaries. When the court gave its consent for the sale of the said property to the plaintiff, it was aware of the details of the sale including the fact that the total purchase price was RM1,150,000.00. Surely common sense dictates that if the administrator contends that the earlier agreement to sell based on which the court's consent was obtained is deemed aborted, then the court's fresh approval must be obtained for a subsequent sale. The court will not lend its benign hand to any nefarious schemes. I, therefore, hold that the administrator in this case ought to have obtained a fresh consent pursuant to s 60(4) of the Probate and Administration Act 1959 for the sale of the said property to the defendant. The failure to obtain such a consent must, prima facie, render the contract, if any, between the defendant and the administrator voidable pursuant to s 60(6) of the said Act. On this score too, the defendant has failed to establish that it has a caveatable interest." [64] We agreed with the view expressed by the learned Judge in the Soon Seng Co. which is in accordance with the judicial pronouncements in relation to the disposal of land of a deceased estate by an administrator enunciated by our superior Courts in the cases which we have referred to earlier. Given that in 2013, 1 $ ^{st} $ Defendant sold the 2 plots of Land to the 2 $ ^{nd} $ and 3 $ ^{rd} $ Defendants at the price of RM2.30 per square feet for 1 $ ^{st} $ Plot (Lot 5368) and RM2.60 per square feet for 2 $ ^{nd} $ Plot (Lot 5589) when in 1997, 16 years prior to that, in stark contrast, the Order obtained by the 1 $ ^{st} $ Defendant was to sell the 2 plots of Land at approximately RM 4.00 per square feet to an unnamed company. Surely it defies logic that since the subsequent purchasers and the sale price at the subsequent date is lower than the sale price intended initially and given that there was no valuation done by the 1 $ ^{st} $ Defendant, it is incumbent for the 1 $ ^{st} $ Defendant to apply to the Court for a fresh order under s. 60(4) PAA 1959. [65] By failing to comply with the above, in our judgment, the $ 1^{\mathrm{st}} $ Defendant has breached his fiduciary duties as an administrator of the Deceased's estate alluded in para 46 above and his statutory duties under s. 60(4) PAA 1959 which rendered the sale of the 2 plots of Land to the $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants voidable pursuant to s. 60(6) PAA 1959. Further, we are of the view that the learned Judge failed to appreciate that the $ 1 ^{s t} $ Defendant breached his statutory duties under s.17 SEDA 1955 and the relevant SED Regulations. Therefore the sale of the 2 plots of Land to the $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants ought to be set aside. B2. Whether the title to the 2 plots of Land is "defeasible"? [66] The learned Judge at para 61 of Her Ladyship's Grounds held the $ 2^{nd} $ and $ 3^{rd} $ Defendants are bona fide purchasers for valuable consideration and hence their title is indefeasible. To reiterate, this was the submission of the $ 2^{nd} $ and $ 3^{rd} $ Defendants. [67] With respect we disagreed with the $ 2^{\mathrm{n d}} $ and $ 3^{\mathrm{r d}} $ Defendants' submission and we find the learned Judge's finding is misconceived. S.340 (2) of the National Land Code ('NLC') provides - "(2) The title or interest of any such person or body shall not be indefeasible (a)...

where registration was obtained by forgery, or by means of an insufficient or void instrument; or

(c)...

Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in subsection (2)-

it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and

any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested: Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser." (Emphasis added) [68] There is merit in the submission of the Plaintiffs that the issue of whether the 2nd and 3rd Defendants are bona fide purchasers for valuable consideration is immaterial to this case. What is apposite in this appeal is whether the 2nd and 3rd Defendants have "deferred indefeasibility" or "immediate indefeasibility" which in turn will depend on whether they are "immediate" or "subsequent" purchasers of the 2 plots of Land. In the recent Federal Court case of See Leong Chye @ Sze Leong Chye & Anor v United Overseas Bank Berhad and another appeal [2019] 1 MLJ 25, it was held that it has been laid in case laws that the proviso to s. 340(3) of the NLC provides for deferred indefeasibility and not immediate indefeasibility. On this point the Federal Court at 37[51]-[52] referred to another Federal Court case of Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1 which held as follows: [51] We are of the view that the proviso is directed towards the provision of sub-s (3) alone and not to the earlier subsection. This in our view is supported by the use of the words 'in this subsection' in the proviso. Therefore its application could not be projected into the sphere or ambit of another provisions of s 340. [52] Furthermore, even though sub-s (3)(a) and (b) refer to the circumstances specified in sub-s (2) they are restricted to subsequent transfer or to interest in the land subsequently granted thereout. So it could not apply to the immediate transferee of any title or interest in any land. " [69] The Federal Court in See Leong Chye (supra) referred to a host of other Federal Court cases, among which is the Federal Court case of Kamarulzaman bin Omar & Ors v Yakub bin Husin &Ors [2014] 2 MLJ 768 and acknowledged that the said case set out the guide for determining when a purchaser falls under the proviso to s.340(3) of the NLC. The Federal Court in See Leong Chye at 38[25] quoted a passage of the judgment of Jeffrey Tan FCJ (as he then was) in Kamarulzaman (supra) which states- "[46] Before we adjourn, we would summarise the foregoing and pass on the following, as a guide to trial courts. Whenever a registered title or interest is sought to be set aside under s 340, first ascertain whether the title or interest under challenge is registered in the name of an immediate purchaser is still liable to be set aside if any of the vitiating elements as set out in s 340(2) has been made out. If the title or interest is registered in the name of a subsequent purchaser, then the vitiating elements in s 340(2) would not affect the title or interest of a bona fide subsequent purchaser. The title or interest of a subsequent purchaser is only liable to be set aside if the subsequent purchaser is not a bona fide subsequent purchaser. The title or interest acquired by a subsequent purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a subsequent purchaser is indefeasible." [70] In the premises we are of the view that the learned Judge clearly erred in law and in fact when Her Ladyship found the $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants' title to be indefeasible because they are bona fide purchasers for valuable consideration. Quoting what Jeffrey Tan FCJ (as he then was) said in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Almeloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 (which case was referred in See Leong Chye) (at 39[27])- "In the wake of Tan Ying Hong, Kamarulzaman bin Omar & Ors v Yakub bin Husin & Ors, and Samuel Naik Siang Ting v Public Bank Bhd, the concept of immediate indefeasibility of the title of an immediate purchaser was passe, if not already in 2010 then certainly in January 2016." Only a subsequent purchaser is entitled to raise the shield of indefeasibility... the bona fides of an immediate purchaser is not a shield to defeasibility. The defeasible title of an immediate purchaser is still liable to be set aside." (Emphasis added) [71] Applying the legal principles from the host of high authorities cited, it is unequivocal that the 2 $ ^{nd} $ and 3 $ ^{rd} $ Defendants are immediate purchasers of the 2 plots of Land and therefore immediate indefeasibility does not attach to their titles, the proviso to s. 340(2) of the NLC does not apply and it does not matter whether the 2 $ ^{nd} $ or 3 $ ^{rd} $ Defendants are "bona fide purchasers" for value or not. In our judgment the sale of the 2 plots of Land shall be liable to be set aside and the titles conferred on the 2 $ ^{nd} $ or 3 $ ^{rd} $ Defendants should be revoked on the basis that the titles were acquired pursuant to a void instrument, namely the Order dated 24/1/1997. B3. Whether there was proper valuation of the 2 plots of Land? [72] We have shown above that in the determination of the disposal of land of a deceased who died intestate by an administrator or even by an executor, be it under s.60 (4) PAA 1959 or s.17 SEDA 1955, what is of paramount importance is the interest of the beneficiaries. In the case of the former, it is incumbent for them to obtain the best possible price invariably based on a valuation report. In the case of the latter, the fact that the Land Administrator has to ensure that "the sale price which is equal to the market value of the land" or "any value as agreed by the beneficiaries and deem fit by the Land Administrator has been determined" presupposes the best possible price for the land is obtained in the first place by the administrator before he puts in an application to the Land Administrator. [73] On this note, the learned Judge held that the $ ^{1 \mathrm{st}} $ Defendant had obtained the best possible price when Her Ladyship said - “[32] Defendan pertama semasa pemeriksaan balas oleh peguam cara plaintiff telah menyatakan harga RM700,000.00 adalah harga yang terbaik yang diperolehinya kerana hartanah tersebut terletak agak pendalaman.” [74] The Plaintiffs contended that the sale of the 2 plots of Land by the $ ^{1st} $ Defendant to the $ 2^{nd} $ and $ 3^{rd} $ Defendants was not based on the market value of the Land at the point of sale in 2013. The Plaintiffs had called the valuer, Miss Lim Yee Pheng (PW1) from Raine & Horne International Zaki & Partners Sdn Bhd who prepared the Valuation Reports of the 2 plots of Land. PW1 concluded the market value as at 2014 is as follows:

for Lot 5589 of 2.454 acres, it was RM450,000.00 which however was sold to the $ 2^{nd} $ and $ 3^{rd} $ Defendants for RM 250,000.00 with a price differential of RM200,000.00; and

(ii) for Lot 5368 of 6.1 acres, it was RM1,340.000.00 which however was sold to the $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants for RM 700,000.00 giving a price differential of RM640,00.00. [75] Counsel for the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants submitted that the 2 Valuation Reports were not conclusive of the market value of the 2 plots of Land essentially on the grounds that PW1 did not conduct the physical inspection of the 2 plots of Land but was conducted by her assistant, one Cik Siti Zamilah who was not called as a witness and that PW1 agreed that her findings in the Valuation Reports are "sekadar pendapatnya sahaja." [76] As for the 2 Valuation Reports, the learned Judge held that the valuation therein was not admissible due to the following reasons: "SP1 telah mengesahkan bahawa bukan beliau yang mengendalikan pemeriksaan fizikal ke atas dua hartanah tersebut tetapi seorang yang bernama Siti Zamilah yang telah memasuki tanah-tanah tersebut untuk mengendalikan pemeriksaan fizikal. SP1 bukanlah pihak yang telah melihat sendiri dua hartanah tersebut sebaliknya hanya bergantung kepada laporan oleh Siti Zamilah tersebut dan Siti Zamilah tidak dipanggil untuk memberi keterangan."(para 51 of Grounds) Her Ladyship further held that the Plaintiffs failed to prove that the 2 plots of Land were sold at below market price due to the following: "SP1 juga telah bersetuju bahawa apa-apa penemuan yang dibuat olehnya melalui laporan-laporan penilaian tersebut adalah sekadar pendapatnya sahaja."(para 52 of Grounds) [77] With respect we are of the considered view that the learned Judge fell into error in her abovesaid findings and these are the same points submitted by the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants before us and therefore we say there is no merit in their submission for these reasons. We find that PW1 arrived at the market value of the 2 plots of Land based on comparative studies of the land sold in the neighbouring areas as per his testimony in his Witness Statement in Q&A (s) 11 and 11A. We find it necessary to reproduce the same as follows: "11. Q: Could you please elaborate on the sales evidence that mentioned in your testimony No.10 for Lot 5589?

A: In arriving at the market value for Lot 5589 in the sum of RM450,000.00 as at 19.2.1014, I took into account the following sales and purchase transactions: i. 2 lands measuring 1.999 acres sold on 28.2.2013 and 22.7.2013 and for the sum of RM300,000.00 and RM400,000.00 respectively. ii. Land measuring 8.698 acres was sold on 13.3.2013 for RM1,842,150.00 and 7.655 acres sold on 31.5.2013 for RM1,531,200.00. Further, in arriving at the market value of RM490,000.00 as at 2.4.2015, I took into account, sales and purchase of lands measuring 1.999 acres sold on 30.5.2014 for RM350,000.00 and 3,1160 acres sold on 12.9.2014 for RM678,650.00 Comparable plan showing acres of land sold in at page 144 of the CBD.

Q: What are the sales evidence for Lot 5368? A: In arriving at the market value for Lot 5368 in the sum of RM1,340,000.00 as at 19.2.2014, I took into account the following 5 sales and purchase transactions: i. 5.9800 acres sold on 31.12.2012 for RM1,300,00.00 ii. 6.5755 acres sold on 19.1.2013 for RM2,004,970.00 iii. 6.1109 acres sold on 12.4.2013 for RM1,800,000.00 iv. 5.9923 acres sold on 19.8.2013 for RM1,670,557.00 and v. 6.2617 acres sold on 3.9.3023 for RM1,772,456.00." [78] Regarding the argument that PW1 agreed that his findings in the Valuation Reports are "sekadar pendapatnya sahaja." which found favour with the learned Judge, we observed that clarification was sought from PW1 by the Counsel for the Plaintiffs (NOP pp.21-22, "Rekod Rayuan Tambahan"). We have examined the evidence of PW1 in re-examination where he explained that the comparative studies were made based on the sales and purchase transactions that was recorded in the "Jabatan Penilaian dan Perkhidmatan Harta". [79] Further, there were no valuation reports produced by the $ 2^{n d} $ and $ 3^{r d} $ Defendants and therefore the evidence of PW1 which remain unchallenged put to naught the $ 2^{n d} $ and $ 3^{r d} $ Defendants' submission that "SP2( 5 $ ^{th} $ Plaintiff) 'telah menggunakan perkataan "harga pasaran" di dalam Laporan Polis bertarikh 2.6.2014 [yang] dibuat olehnya. Namun beliau gagal menyatakan apakah harga pasaran pada tahun 2013 sewaktu 2( dua) Plot Tanah tersebut dijual.' This is because in the absence of any valuation report challenging the 2 Valuation Reports tendered by PW1, it is not open to the $ ^{2nd} $ and $ ^{3rd} $ Defendants to challenge the derivation of the market value arrived at by PW1. Here we agreed with what was held in People Realty Sdn Bhd v Hong Leong Bank Bhd & Anor [2007]. 6 MLJ 595 at 599[9] , albeit in the context of an originating summons seeking, among others, for an order for sale of land. This Court was of the view that in the absence of any affidavit evidence and a valuation report from the appellant challenging the valuation report submitted by the $ ^{1st} $ respondent bank who created a charge over the land to secure the repayment of banking facilities granted by them to the appellant, it is not open to the latter now to challenge the derivation of the reserve price. [80] On the issue of rejection by the learned Judge of PW1's evidence on the ground that the physical inspection was conducted by her assistant, we find the case of KFJ Sjarah House (M) Sdn Bhd v Lembaga Kemajuan Wilayah Pulau Pinang [2012] 3 MLJ 850 which dealt with a point similar to the facts in this appeal is of relevance. The High Court in that case at 866 [22] held that the valuation report of SP7 was prepared by Miss Goh and she and others assisted in the valuation work under the supervision of SP7 but the final approval of the valuation was by SP7 who was the actual authority who signed the report; SP7 who authenticated the report was the actual maker of the document and it is not invalidated by the hearsay rule merely because Miss Goh was the one who prepared it. [81] In this regard, we agreed with the view in KFJ Sjarah House (M) Sdn Bhd (supra) and find that with respect the learned Judge had erred in not admitting the evidence of PW1 merely on the ground that she was assisted by her assistant who conducted the physical inspection. What is material is the learned Judge failed to appreciate PW1's unequivocal evidence that the 2 Valuation Reports were prepared and signed by her, a registered valuer and estate agent. We are of the view that the fact that PW1 did not do the physical inspection and the assistant was not called as a witness does not diminish the probative value of the Reports as what is paramount is that PW1 had categorically stated she had prepared and signed the Reports. [82] At para 31 of Her Ladyship's Grounds, the learned Judge stated- " [31] Namun berdasarkan taksiran oleh Lembaga Hasil Dalam Negeri di mana telah menaksirkan nilai hartanah untuk Geran Mukim 895, Lot 5589, Mukim of Labu, District of Seremban, Negeri Sembilan Darul Khusus hanya RM250,000.00. Untuk hartanah bagi Geran Mukim 452, Lot 5368 Mukim of Labu, District of Seremban, Negeri Sembilan Darul Khusus tidak mempunyai legal access ke hartanah tersebut. Untuk masuk ke hartanah tersebut, plaintiff-plaintiff atau defendan pertama defendan kedua dan ketiga harus melalui hartanah pihak ketiga." [83] Whilst it is true the Notice of Assessment from LHDN dated 23/4/2014 states that "Nilai Pasaran (Tarikh Perjanjian Jual Beli /Surat Cara Pindah Milik)" is RM250.000.00 for the 2.454 acres ( $ 2^{nd} $ plot ), however we observed that the learned Judge failed to consider that the Notice of Assessment from LHDN dated 22/4/2014 for 6.101 acres ( $ 1^{st} $ plot) was valued at RM1,200,000.00. In our judgment, the consideration by the learned Judge that the $ 1^{st} $ plot of Land did not have access road to the said property does not diminish the probative value of the unchallenged evidence of the 2 Valuation Reports which was premised on the comparative studies made based on the sales and purchase transactions that was recorded in the "Jabatan Penilaian dan Perkhidmatan Harta." Thus we agreed with the submission of the Plaintiffs that when the $ ^{1st} $ Defendant sold the $ ^{1st} $ plot for RM700,00.00, there was a gross difference of RM500,000.00. [84] In light of the foregoing reasons, the learned Judge's finding that the Plaintiffs failed to prove that the 2 plots of Land were sold at below market price (para 52 of Grounds) is not true and is inaccurate. C. Other matters [85] There is one other matter which we considered but which we find parties did not submit before us as it impinged on the relief prayed for in para 23(b) of the Re-Amended Statement of Claim which reads- "24.23 AND the Plaintiffs claim:-

That the $ 1^{\mathrm{st}} $ Defendant be removed as an Administrator of the Deceased's estate and the grant of letters of administration to be granted to Moorali Tharan a/l Narayana, the abovenamed $ 5^{\mathrm{th}} $ Plaintiff in this suit." [86] The $ 1^{\mathrm{st}} $ Defendant in Q&A 14 of his Witness Statement stated- "Q14 Saya rujuk anda kepada perenggan 10.2 dan 10.3 Pemyataan Tuntutan Plaintif, di mana Plaintif-plaintif telah menyatakan bahawa surat-Surat Pentadbiran harta pusaka Si Mati telah diberikan kepada Plaintif ke -5 iaitu Encik Mooralitharan a/I Narayanan? Boleh kamu sahkan sama ada kenyataan tersebut adalah benar? A14 Saya menafikan pernyataan tersebut. Saya menegaskan di sini pada tarikh perbicaraan yang kedua, Encik Mooralitharan telah menolak dirinya sebagai Pentadbir memandangkan beliau mempunyai masalah-masalah peribadi dan beliau pada ketika itu merupakan seorang yang bujang." [87] Having combed through the relevant NOP(Rekod Rayuan ( Bhg B Jld1(muka surat 218-434) pp.413, 414 and 416 top pagination), we noticed during the cross-examination of the $ 1^{\mathrm{st}} $ Defendant by Counsel for the Plaintiffs, the following transpired: "ADS: Yang Arif, we take, actually what my learned friend is doing is we had took the position and it's in the Statement of Claim as well, that initially the application was made to be in the name of one of the Plaintiffs that is Mr Moorali but when the order was, came up, it was under the Defendants, First Defendant's name. JSM: Correct." Further, there was confirmation by the 1 $ ^{st} $ Defendant of the following: "ADS: It also states there that he made, when the witness made the application, Mr Haridas, when you made the application, you asked that the administratorship be given to Mr Moorali Tharan:? Haridas: Benar, Yang Arif." [88] In fact what the Plaintiffs pleaded in the Statement of Claim is- "10.2 At the conclusion of the said hearing the Grant of Letters of Administration of the Deceased's estate was granted to the 5th Plaintiff. 10.3 However, the Land and Mineral Office of Negeri Sembilan inadvertently issued the Grant of Letters of Administration to the 1st Defendant ('the Order dated 28.9.1990") and hence the 1st Defendant was appointed as the Administrator of the Deceased's estate." [89] The position taken by the Plaintiffs save for the fact we have no explanation for the use of "inadvertently" in para 10.3 of the Re-Amended Statement of Claim was confirmed by Counsel for the $ ^{1 \mathrm{st}} $ Defendant and admitted by $ ^{1 \mathrm{st}} $ Defendant himself that he had asked for the administratorship to be given to the $ ^{5 \mathrm{th}} $ Plaintiff (PW2). We find it is crystal clear from the NOP before the Land Administrator on 28/9/1990 that upon the application of the 1 $ ^{st} $ Defendant and consented to by the named beneficiaries therein, the 5 $ ^{th} $ Plaintiff (PW2) was appointed as administrator of the Deceased's estate. What is written in the NOP is as follows: "Hukuman Saya Mustapha bin Haji Alias. Pem. PT Seremban dengan ini memerintahkan semua bahagian harta simati diturunmilik kepada Moorali Tharan a/Narayanan sebagai Pentadbir. Perentah $2.00 Carian Harta Tiada t.t 28/9/90" [90] However for some unexplained reason the Order dated 28/9/1990 bore the name of the 1st Defendant as the administrator despite the order made by the Land Administrator that the 5th Plaintiff (PW2) is the administrator. We are unable to accept the self serving statement of the 1st Defendant in Q&A 14 above as his answer is inconsistent with the NOP before the Land Administrator on 28/9/1990 and it is inaccurate for him to say that "pada tarikh perbicaraan yang kedua, Encik Mooralitharan telah menolak dirinya sebagai Pentadbir" because we noticed that the 1st Defendant's name appeared as administrator in the Order dated 28/9/1990 as early as 28/9/1990 (1st hearing) and not on 24/1/1997 (2nd hearing) as the 1st Defendant testified in Answer 14 of his Witness Statement. D. Conclusion [91] For all the foregoing reasons we find there are merits in the appeal which compelled us to exercise our appellate intervention. Accordingly we unanimously made the following Order:

in respect of the appeal against the dismissal of the application to amend the Amended Statement of Claim, we allowed the appeal in terms of prayers (i) and (ii) of encl.143. The High Court Order of 26/10/2016 is hereby set aside;

in respect of the main appeal, we allowed the appeal of the Plaintiffs against the High Court Order of 7/7/2017 as per prayers 23

to (e) of the Re-Amended Statement of Claim. The High Court Order of 7/7/2017 is hereby set aside; and

awarded to the Plaintiffs costs of RM50,000.00 here and below subject to allocatur. Dated: 30/06/2020 LAU BEE LAN Judge Court of Appeal Malaysia Putrajaya COUNSEL: Alex De Silva (together with Shamalah Selvarajah and Saresh Mahendaren) (Messrs. Bodipalar Ponnudurai De Silva Advocates & Solicitors) For the Appellants Ahmad Fakhri Bin Abu Samah (together with Muhammad Azwar bin Ab Manab dan Nuurul Atila Binti Mohamad Hanapi) (Messrs. Ahmad Sukeri & Associates) For the $ 2^{\mathrm{n d}} $ and $ 3^{\mathrm{r d}} $ Respondents