Malaysia legislation
Section 41
Section 41
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so.
Explanation—A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.
(a)
A bequeaths his property to B, C and D, “to be equally divided amongst all and each of them, if living at the time of my death, then amongst their surviving children”. No such children are in existence. In a suit against
A’s executor, the court may declare whether B, C and D took the property absolutely, or only for their lives, and it may also declare the interests of the children before their rights are vested.
(b)
A covenants that, if he should at any time be entitled to property exceeding RM100,000, he will settle it upon certain trusts. Before any such property accrues, or any persons entitled under the trusts are ascertained, he institutes a suit to obtain a declaration that the covenant is void for uncertainty.
The court may make the declaration.
(c)
A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property.
32
(d)
A bequeaths property to B for his life, with remainder to B’s wife and her children, if any, by B, but, if B die without any wife or children to C,
B has a putative wife, D, and children, but C denies that B and D were ever lawfully married; D and her children may, in B’s lifetime, institute a suit against C and obtain therein a declaration that they are truly the wife and children of B.
Effect of declaration