1

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO: 02(f)-6-02/2013(A)
5

ANTARA

10

PORAVIAPPAN A/L ARUNASALAM PILLAY

(SEBAGAI PENTADBIR HARTA PESAKA
NADARAJAH A/L SITHAMBARAM PILLAI)

PERAYU

DAN
15

20

25

1.
2.

PERIASAMY A/L SITHAMBARAM PILLAI

BALASUBRAMANIAM A/L MOOKAPILLAI
DAN VIJAYALATCHUMI A/P MOOKAPILLAI
(SEBAGAI WAKIL-WAKIL DIRI BAGI HARTA
PESAKA PONNAMAL A/P RAMASAMY
PILLAI, SI MATI)
...
RESPONDENRESPONDEN

[DALAM PERKARA MENGENAI MAHKAMAH RAYUAN

MALAYSIA DI PUTRAJAYA RAYUAN SIVIL NO. A-02-981-2001]

ANTARA
30

PORAVIAPPAN A/L ARUNASALAM PILLAY

(SEBAGAI PENTADBIR HARTA PESAKA
NADARAJAH A/L SITHAMBARAM PILLAI) ...

35

PERAYU

DAN
1.
2.
5

PERIASAMY A/L ARUNASALAM PILLAY

BALASUBRAMANIAM A/L MOOKAPILLAI
DAN VIJAYALATCHUMI A/P MOOKAPILLAI
(SEBAGAI WAKIL-WAKIL DIRI BAGI HARTA
PESAKA PONNAMAL A/P RAMASAMY
PILLAI, SI MATI)
...
RESPONDENRESPONDEN

10

[DALAM MAHKAMAH TINGGI MALAYA DI IPOH

GUAMAN SIVIL NO: 2087/1985]
ANTARA
15

PORAVIAPPAN A/L ARUNASALAM PILLAY

(SEBAGAI PENTADBIR HARTA PESAKA
NADARAJAH A/L SITHAMBARAM PILLAI)
DAN

20

1.
2.
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PERIASAMY S/O SITHAMBARAM PILLAI

BALASUBRAMANIAM S/O MOOKAPILLAI &
VIJAYALATCHUMI D/O
(Sebagai Wakil-wakil Diri bagi Harta Pesaka
Ponnamal d/o Ramasamy Pillai, Simati) DEFENDAN

CORAM:
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35

PLANTIF

RAUS SHARIF, PCA

ABDULL HAMID EMBONG, FCJ
AHMAD HAJI MAAROP, FCJ
HASAN LAH, FCJ
RAMLY HAJI ALI, FCJ

JUDGMENT
[1] For convenience, in this judgment the parties will be referred to
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as they were in the High Court.

[2]

The background facts leading to the present appeal are these.

On 18.2.1982, Nadarajah S/O Dato Sithambaram (deceased) entered

into a sale and purchase agreement (the agreement) with one
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Madam (Mdm) Ponnamal D/O Ramasamy to sell the land held under
Grant No. 12359 Lot 1631 Mukim Teluk Bharu, in the State of Perak,
measuring approximately 306 acres (the said land). The purchase
price of the said land stated in the agreement was RM3 million out of
which the deceased acknowledged receipt of RM420,000.00 as a

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deposit and part payment from Mdm Ponnamal. The completion date
of the agreement was 18.12.1982 subject to the approval of the
Foreign Investment Committee (FIC).
[3]

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On 20.8.1982, the deceased passed away. He left behind an

aged mother named Datin Sellayee Ammal, a brother (the First

Defendant), two sisters, and a nephew named Dr. Shanmuganathan
(Dr. Shan). Dr. Shans father was the elder brother of the deceased
who predeceased him. On 4.9.1982 and 5.9.1982, a family meeting
was held to decide on the management of the affairs of the

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deceaseds estate. The following persons attended the meeting:

(i)

The First Defendant;

(ii)

Mrs. Thanaletchumi (one of the two sisters of the

deceased);

(iii)

sister of the deceased);

[4]
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Mr. Dorairaj (representing Mrs. Kamalavathy, the other

(iv)

Dr. Shan; and

(v)

The Plaintiff.

The co-ordinator of the meeting was the Plaintiff who also

recorded the minutes of the meeting. The Plaintiff was the brother-inlaw of Dr. Shan.
[5]

According to item 2 of the minutes of the family meeting, since

Datin Sellayee (the sole beneficiary of the estate of the deceased

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under the law) was old and was residing in India, she would be
requested to renounce her entitlement to the said land in favour of the
following persons:

(a) The First Defendant;

(b) Mrs. Kamalavathy;

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(c) Mrs. Thanaletchumi; and

(d) Dr. Shan.
[6]
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Item 3 of the minutes of the meeting states that the Plaintiff and

Mr. Dorairaj should administer the estate of the deceased. However,

if the lawyers are of the opinion that only one administrator is

sufficient then the Plaintiff shall be the sole administrator.
[7]

Item 4 of the minutes of the meeting states:

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4.

The properties that due to be administered are

A)

Kamachi Estate of about 129.5 Hactors consisting of 9

Grants. Of the 9 Grants the main one Lot No. 1631 of 306 acres
has been transferred to Mr. Mooka Pillai, for an approximate sum
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of $3 million. He in turn has paid a sum of $420,000/- as deposit

to late Mr. S. Nadarajah and the balance of sum 2.58 million is
payable on or before December 18.
It has been agreed that this property be sold and the

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monies obtained to be used to pay the loan detained from

Overseas Union Trust, for the KL building bought by the Late Mr.
Nadarajah and the balance to be kept to pay the death duty.

[8] According to the minutes of the meeting, the next family meeting
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would be on 9.10.1982.

However, this did not take place as on

1.10.1982 Datin Sellayee died, and it seemed that in her last will and
testament she left the entire estate to Dr. Shan. The effect of her last
will is that if it is proved, then the entire estate of the deceased will go
to Dr. Shan.
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This, according to the evidence, appeared to have

triggered a number of courses of action taken with regard to the

deceaseds estate by certain persons who attended the family
meeting; which courses of action were not in line with the direction of

the course of action to be taken as recorded in the minutes of the

family meeting.
[9]
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On 8.3.1983, the First Defendant petitioned for letters of

Administration for the deceased estate.

However this was not

proceeded with. On the same date, acting on a power of attorney

granted to him by Dr. Shan, the Plaintiff applied for letters of
Administration of the deceaseds estate which was granted by the
Court on 16.8.1983. On 4.10.1983 a copy of the Court order was
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served on the First Defendant. However, when the Plaintiff attempted

to extract letters of Administration, he was prevented from doing so by
a caveat entered by the First Defendant.
[10] On 12.3.1984 the First Defendant applied for a grant of probate

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in the Ipoh High Court (case No. 152/84) insisting that the deceased
had left a will appointing him as the executor and sole beneficiary of
the deceaseds estate. The First Defendant did not disclose to the
Court the grant of the letters of Administration to the Plaintiff. On
21.8.1984 the First Defendant obtained an order for probate to the

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deceaseds estate.
[11] On 10.10.1984, the Plaintiff lodged a caveat against the grant of
probate to the First Defendant. In addition to that, on 15.10.1984 by
way of an originating motion (F54/84) the Plaintiff applied for in the

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Kuala Lumpur High Court and obtained an ex parte injunction against

the First Defendant preventing him from acting for the deceaseds

estate.

The First Defendant attempted to set aside that interim

injunction. On 1.4.1985 L.C. Vohrah J (as he then was) ordered the

ex parte injunction granted on 15.10.1984 to continue except :
(a) that the Applicant (1st Defendant) herein to continue acting as

the representative of the estate of Nadarajah s/o Dato

Sithambaram Pillai in the High Court Originating Summons. No.
267 of 1984 until the Official Administrator Malaysia takes over;
(b)

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that the Official Administrator Malaysia to take charge of all the

assets of the estate of Nadarajah s/o Dato Sithambaram Pillai.

The learned judge also ordered that this action be transferred

and dealt with in the Ipoh High Court.
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[12] On 26.11.1985 the Plaintiff, (in the capacity as Dr. Shans

attorney), filed a writ against the First Defendant seeking for a
declaration that the will which was relied upon by the First Defendant
to obtain the Grant of probate in respect of the deceaseds estate was
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a forgery and was null and void, and that the grant of probate to the
First Defendant be revoked. As will be seen later in this judgment, the
outcome of this application as declared by the Federal Court
eventually on appeal, became the main plank from which the Plaintiff
launched his challenge to the Consent Order dated 31.10.1985.

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[13]

Meanwhile, on the part of Mdm Ponnamal, on 16.12.1982 [i.e

two days before the date for the completion of the purchase of the
said land], through his solicitor, Mr. Seeralan, she wrote a letter to the
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deceased. Carbon copies of the letter were sent to the persons who
attended or were represented at the family meeting on 4.9.1982 and
5.9.1982. In this letter Mdm Ponnamal stated that she was ready and
willing to proceed with the purchase of the said land by paying the
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balance of the purchase price except that there should be deductions

for certain matters concerning the said land which were not disclosed
at the time of the agreement, the major one being the government
acquisition of about 21 acres of the said land.

After receiving no

response, on 23.8.1983 Mdm Ponnamal, through her solicitors

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Messrs Nahappanpuri and Partners, wrote to the Plaintiffs solicitor

reiterating her desire to complete the purchase of the said land since
the bank loan to finance it was in place.
[14] On 25.2.1984 Mdm Ponnamal filed Originating Summons No.

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267/84 [O. S. 267/84] in the Ipoh High Court against the deceaseds
estate seeking for specific performance of the agreement.

In that

action, Mdm Ponnamal named her former solicitor, Mr. Seeralan as

the Second Defendant. The reason given for roping in Mr. Seeralan
was that he was the stakeholder of the document of title to the said
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land and the memorandum of transfer duly executed by the deceased

at the time of the agreement which would be required to effect the
transfer of the said land to Mdm Ponnamal or her nominees. For the
purpose of the proceeding in O. S. 267/84, Mdm Ponnamal applied by
way of a summons in chambers for an order that the First Defendant

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be appointed to represent the deceaseds estate which order was

granted by Anuar Zainal Abidin J. (as he then was) on 20.4.1984.

[15] Mdm Ponnamal proceeded with the hearing of O. S. 267/84. On

31.10.1985 at the hearing before Ajaib Singh J (as he then was), a
Consent Order (the Consent Order) was recorded.

The order

practically ordered the First Defendant to execute all relevant transfer

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forms to transfer the said land to Mdm Ponnamal or her nominees,

and upon registration of the transfer, the balance of the purchase
price of RM2,370,135.00 (instead of RM2,760,000.00 as provided in
the agreement) shall be paid by Mdm Ponnamal to the First
Defendants solicitor who should then put it into a fixed deposit

10

account in trust for the estate. The Consent Order is as follows:

ORDER
THIS ORIGINATING SUMMONS coming on this day

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for bearing in the presence of of Mr. A. Iruthaya Raj of

Counsel for the plaintiff, Mr. N.T. Rajah of Counsel for the
1st defendant And Mr. Karunanithi, as Assistant Official
Administrator and 2nd defendant being absent AND UPON
READING the affidavits filed herein AND UPON HEARING

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Counsel as aforesaid:
BY CONSENT IT IS ORDERED that the 2nd defendant
do forthwith deliver the title deed relating to Grant for Land
No. 12359 for Lot No. 1631 in the Mukim of Teluk Bharu

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District of Lower Perak to the plaintiffs solicitors to be dealt

with in accordance with the term of the order.

10

AND IT IS ORDERED that the 1st defendant do

forthwith execute a withdrawal of caveat Presentation No.
1142/84 lodged by him on 14th March 1984 and deliver the
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same to the plaintiffs solicitors to enable the registration of

the transfer in favour of the plaintiff or her nominee or
nominees.
AND IT IS ORDERED that the 1st defendant do

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forthwith execute all relevant documents, forms and returns

under the Real Property Gains Tax on behalf of the estate
of Nadarajah s/o Sithambaram deceased and deliver the
same to the plaintiffs solicitors.

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AND IT IS ALSO ORDERED that the plaintiff be at

liberty to present the transfer executed by the said
Nadarajah s/o Sithambaram deceased on 18th February
1982 for registration within 3 months from date of this order
and that the Registrar of Titles Perak do give effect to the

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said transfer by making necessary memorial of transfer.

AND IT IS ALSO ORDERED that upon registration of

transfer as aforesaid the plaintiff do forthwith pay the sum
of $2,370,135.00 to the 1st defendants solicitors namely
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Messrs Maxwell, Kenion, Cowdy & Jones and that the

receipt of the said sum by the said solicitors Messrs

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Maxwell, Kenion, Cowdy & Jones be a valid discharge and

release to the plaintiff for payment of the said sum of
$2,370,135.00 by the estate of Nadarajah s/o Sithambaram
deceased.
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AND IT IS ALSO ORDERED that the said Messrs

Maxwell, Kenion, Cowdy & Jones shall place the said sum
of $2,370,135.00 on fixed deposit in a Commercial Bank in
trust for the estate of Nadarajah s/o Sithambaram
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deceased to be dealt with in accordance with the order of

court.

AND IT IS ALSO ORERED that the dispute relating to

the sum of $209,865.00 payable under the term of the
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agreement dated 18.2.82 be determined at the hearing of

this matter or by a separate suit filed for that purpose.

AND IT ALSO ORDERED that the plaintiff shall go into

occupation of the land upon payment of the said sum of
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$2,370,135.00 to the said solicitors Messrs Maxwell,

Kenion, Cowdy & Jones and until then the estate of the
deceased shall be entitled to all profits and income from
the said land.

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AND IT IS ALSO ORDERED that the parties be at

liberty to apply.

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Given under my hand and the Seal of the Court this

31st day of October 1985.
[16] The Plaintiff responded promptly by filing in the Ipoh High Court
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Civil Suit No 2087/85 against the First Defendant and Mdm

Ponnamal, praying for the following orders:
(1)

A Declaration that the Consent Order of 31st

October 1985 is a nullity and/or null and void;

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(1A)

A declaration that the purported Sale Agreement

of 18 February, 1982 was a sham and in any
event is void and unenforceable.

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(1B)

An Order that the Defendants and any of them do

surrender and deliver the title and the transfer
documents in their possession relating to the said
land.

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(1C)

An Order for removal of the caveat entered by

Ponnamal d/o Ramasamy Pillai.

(1D)

Damages for Fraud and Deception against the

Defendants.

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(1E)

Damages against the Estate of Ponnamal d/o

Ramasamy Pillai for wrongful entry of caveat.

(2) An Injunction restraining the Defendants and each of

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them from acting on the terms of the said Order;

(3) Such further or other relief; and

(4) Costs.

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[17] The First Defendant and Mdm Ponnamal filed their defences.
Mdm Ponnamal also counter-claimed against the Plaintiff for the
following : (a)

the injunction granted by L.C. Vohrah J be

discharged; (b) the caveat entered by the Plaintiff on the Estate be

removed; (c) she be at liberty to enforce and carry into execution the
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Consent Order; (d) an inquiry into damages.

[18] When Mdm Ponnamal passed away on 25.11.1988, her estate
was represented by her two children and they were the Second
Defendants in Civil Action 2087/85.

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It is this Civil Suit which

eventually found its way to this Court and become the subject of the
present appeal.
[19] On 17.2.1997 the Federal Court declared that the will of the
deceased upon which the First Defendant obtained an order of

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probate on 21.8.1984 in the Ipoh High Court Petition No. 152/84,

was a forgery and was null and void.

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The Federal Court also

14

ordered that the probate obtained from the Ipoh High Court vide
Probate Petition No. 152 of 1984 on 21.8.1984 be revoked. (See
Dr. Shanmuganathan v. Periasamy s/o Sithambaram Pillai
[1997] 3 MLJ 61). The Plaintiff then succeeded in extracting his
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letters of Administration.
[20] On 29.10.2001, the High Court dismissed the Plantiffs claim
(in the Civil Suit No. 2087/85) with cost and allowed the Second
Defendants counter claim as to prayers (a), (b), (c), (e), (f), and (g).

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[21] The Plaintiff appealed to the Court of Appeal. On 5.3.2010,

the Plaintiffs appeal was dismissed with cost. The orders made by
the High Court were affirmed.

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[22] On 7.2.2013 this Court granted the Plaintiff leave to appeal on

the following questions (the leave questions):
(a) Can a valid consent be given for the sale of a deceaseds
property by an executor appointed under a will that is
subsequently declared by the court to be a forgery?

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(b)

Whether the approval given by the Court to a consent order for

the sale of estate property is valid when pending interpleader
summons challenging the genuineness of the sale was not

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brought to the attention of the court?

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(c)

Whether the Official Administrator could validly consent to the

sale of deceased property under Section 39 and Section 60 of
the Probate & Administration Act 1960 without an empowering
court order?

[23] Based on the pleadings filed by the parties, two issues were
raised for the determination of the High Court. The first was whether
the agreement was a sham to cover-up a money lending transaction
which was not enforceable since Mdm Ponnamal was not a licenced
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money lender. The second was whether the Consent Order was a
nullity and ought to set aside.
[24] On the first issue, upon consideration of the evidence presented
before it the High Court found that the Plaintiff had failed to prove on

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the balance of probabilities that the agreement was a sham

transaction and a cover-up of an illegal money lending transaction.
The learned trial judge gave several reasons to support his findings.
This is what the learned trial judge said in his judgment:

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1.

I do not find the terms and conditions stipulated in the S & P

Agreement unusual to give rise to any suspicion that it was
intended for a money lending transaction. Though the provision
for payment of the balance of the purchase price is not within
the period of 3 to 4 months after the date of execution of the

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agreement this is not extraordinarily uncommon.

Such

arrangement is often left to the parties to negotiate. In this case

we are looking at a fairly large piece of estate land involving a
sizeable consideration and the parties could have agreed to

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extend payment of the balance of the purchase beyond what is
practiced in the purchase of a dwelling house.
2.

As regards to the absence of a provision for specific

performance in the event of the vendor refusing to complete the

sale, I cannot comprehend how this can be used to infer a

money lending transaction or that this transaction is not genuine
sale and purchase of a landed property. By substituting this for
specific performance the parties agreed to penalized the vendor
when such a situation arise with a double payment i.e. pay back

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what the vendor had received plus an additional equivalent

sum. If this had been a cover-up for a money lending deal I do
not think that the borrower would agree to this provision since
he would have to pay far too much to redeem his property
especially when interest, as alleged, was already included in

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the initial deposit payment. This clause though providing an

escape route to the vendor does not in itself reflects an
arrangement where the borrower can have his property back by
repaying the sum borrowed with interest. To me this penalty
clause is more of a deterrent against a renegade vendor in a

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normal sale and purchase of property.

3.

There is no evidence that the value of Kamatchy Estate was

higher than what is stated in the S & P Agreement. Tan Sri

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Thamalingam is a respectable valuer and he prepared his

report in 1982 long before these disputes between these parties
to this suit began.

His valuation of the market price of the

property is comparable to the stated consideration in the S & P

Agreement.
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4.

Seeralans allegation is highly suspicious. Read in the light of

other evidence, I do not consider it of any probative value.
Madam

Ponnamal had instantly

denied this Seeralans

allegation in a sworn affidavit followed by her complaint to the

Bar Council on Seeralans conduct in this matter. Seeralan was

disciplined by that professional body and had refused to attend

court to press ahead with this allegation though being a party to
the action. If Seeralan was committed to such allegation he
would have defended it and not left unattended after asserting
it, particularly when there was an avenue to verify its

10

authenticity. Failure on Seeralans part to do so gives Moorka

Pillais explanation on why Seeralan proceeded with such
allegation much credit.

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5.

I do not have much regard for the evidence advanced by the

plaintiff and PW3.

Firstly PW3 is currently under the

employment of the plaintiff. This could induce him to be on the

side of the plaintiff. As for the plaintiff, I find his recollection of
what the deceased told him is quite remarkable without having
being spoken of this earlier or protesting to it at the family

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meeting. This is more significant when there is evidence of the

deceased being a bachelor and went about his business in a
quiet way. In evaluating the plaintiffs testimony one must not
disregard that he holds a Power of Attorney for this brother-inlaw Dr. Shan, who, if the plaintiff is successful in this action

25

would inherit the entire Kamatchy Estate.

I view plaintiffs

evidence with suspicion.

6.
30

FIC was indeed obtained after the completion date. But failure
to secure this before the completion date by itself and from the

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18
observations stated above cannot imply an existence that the
transaction was a sham.

Solicitors usually made such

application on behalf of their client. In this case, Mooka Pillai

had disclosed that Seeralan was instructed to carry this task.
5

Now that Seeralan is dead, we are deprived of his reason for

this delay. But given the circumstances at that time, with the
death of the deceased so close to the completion date; the
demise of the sole beneficiary Datin Sellayee; and the
competing interest in the deceased estate that followed, delay

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in this matters may be an acceptable excuse for reason of

uncertainly. But there were other actions by Madam Ponnamal
and Mooka Pillai to support the purchasers earnest desire to
proceed with the purchase. These are: application for a loan to
finance the purchase; securing the services of a land valuer to

15

give an opinion on the value of the property for the purpose of

the said loan; and the writing of letters to the dead man and
carbon copies to all interested and affected parties indicating
continual interest in purchasing the said property.

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[25] Having considered the evidence as available in the Appeal

Record in this case ourselves, we agree with the Court of Appeal that
the totality of the evidence in this case sufficiently supports the
aforesaid findings of the learned trial judge. Indeed, in item 4 of the
minutes of the family meeting it was clearly recorded by the Plaintiff

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himself that the purchaser has paid to the deceased the deposit of
RM420,000.00 and that the balance of RM2.58 million was payable
on or before Disember 18 as provided in paragraphs 1 and 2 of the
Agreement. There is therefore no basis for appellate intervention and
we affirm the findings of the learned trial judge on the first issue.

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19

[26] On the second issue, the learned trial judge ruled that the
Consent Order was not a nullity. The learned trial judge opined that
although the First Defendant was not technically wrong, equitably he
should not have represented the deceaseds estate in agreeing to the
5

Consent Order.

However, his Lordship held that even if the First

Defendant had no authority to consent, the Official Administrator (OA),

by virtue of Justice L.C. Vohrahs order (made on 1.4.1985), had the
authority to consent. This is what the learned trial judge said:

10

Technically he is not wrong but equitably this defendant should not

have represented the deceased estate in agreeing to the Consent
Order. At that time he was aware that there was a contest to the Will
by the plaintiff. Besides, he also knew that Letters of Administration
had been granted to the plaintiff. In addition, the injunction, though

15

permitting him to continue to act for the deceased estate this was
only of a temporary and interim nature until the Official Administrator
moves in.

But he was not the only person who sanctioned this

arrangement. In the Consent Order it is expressly declared that the

Assistant Official Administrator, one Mr. Karunanithi, obviously
20

representing the Official Administrator, was also present at the

hearing on the 31.10.1985.

Even if the 1st defendant had no

authority to give consent but surely, by virtue of Justice L.C. Vohrahs

Order, the Official Administrator had.

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[27] The Court of Appeal affirmed the decision of the learned trial
judge. It held:

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20

Whether the consent order dated 31.10.1985 was a nullity

The learned trial judges findings on this issue as summarised
by us in the earlier part or our judgment was in the negative. In
5

holding that the consent order was not a nullity, we agree with
appellants counsel that the learned judge did not address the
question on whether or not the consent given by the 1st Defendant
under a forged will was a nullity. However the failure of the judge to
consider same does not to our mind affect the correctness of the

10

judges conclusion that the consent order was not a nullity. We say
so because in the factual context herein there was overwhelming
evidence that the 1st Defendant was not the only person who
sanctioned the items of the consent order. The record shows that
when the consent order was recorded before the Court on 31.10.85

15

there was present the Assistant Official Administrator whom the

learned trial judge held had the requisite authority to give the relevant
consent. He further found that the Official Administrator had been
duly appraised of the factual matrix through the cause papers serves
on him before he sanctioned the terms of the consent order.

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[28] This brings us to the leave questions. In our view there is a link
between the first and the third leave questions. This is necessarily so
because although the High Court opined that the First Defendant
should not have represented the deceased in agreeing to the
25

Consent Order, it nevertheless validated the Consent Order holding

that even if the First Defendant had no authority to give consent, the
OA had the authority to do so by virtue of Justice L.C. Vohrahs order
dated 1.4/1985.

These two leave questions essentially bring into

focus the role and legal capacity of the First Defendant and the OA in

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21

relation to the deceaseds estate when they appeared in O. S. 267/84

when the Consent Order was recorded.

The main thrust of the

Plaintiffs appeal appears to be based on these questions. We will

deal with these two questions first.
5

SUBMISSIONS
THE FIRST LEAVE QUESTION

10

(a) Can a valid consent be given for the sale of a deceaseds property by
an executor appointed under a will that is subsequently declared by
the court to be a forgery?

[29] The thrust of the argument advanced on behalf of the Plaintiff

15

by his learned counsel is that a forged will is void ab initio and that
the grant of probate and the title of the so-called executor was a
nullity. The revocation of the will made the grant of probate void ab
initio. Learned counsel relied on the Privy Council case of Chan Kit
San v. Ho Fung Hang [1902] AC 257 where Lord Davey, speaking

20

for the Privy Council said:

By the revocation the grant of probate was made void ab initio, for
there was not in fact any will to be proved. It is now known that the
apparent title of the so-called executor, was founded on a fiction

25

and a fraud, and for the purposes of the present argument the
probate must be treated as a nullity and as never having had any real

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22
existence. The Court cannot be bound to take notice when the fact
are known of an apparent right of action obtained by fraud,

[30] Learned counsel for the Plaintiff also contended that any act
5

done by an executor under a title created by a forged will was a

nullity. In support of his submission he cited Pundit Prayrag Raj v.
Goukaran Pershad Tewari 6 CWN 787 where the Court held that it
did not matter that the mortgage in that case was created by the
executor before her probate was revoked. The Court observed at

10

page 791:
And lastly we must observe that in this case the Will having been
declared to be a forgery, and therefore void ab initio, any acts done
by the lady under any title created by the Will must be held to be in

15

law void (see in this connection Williams on Executors, 9th Ed., p.

501.

[31] Learned counsel also referred to Sheriffa Shaikah v. Ban Hoe

Seng [1963] 29 MLJ 241 and Canara Bank v. Canada Sales
20

Corporation and others AIR 1987 SC 1603. In Sheriffa Shaikah it

was held that a forged power of attorney was a nullity and a mortgage
deed created by the use of the forged power attorney was a nullity.
In Canara Bank it was held that a forged cheque could give no
mandate to the Bank.

25

[32] Learned counsel submitted that the cases he had cited were in
line with the principle that a forged instrument could create no legal

22

23

rights in third parties and was void ab initio. Citing Birch v. Birch
[1902] p 130 at pg 137 138 (per Cozens-Hardy LJ), learned
counsel submitted that a forged will was bad against the whole world
and not just the forger.
5

[33] Reverting to the present appeal, learned counsel submitted that

the First Defendant consented to the Consent Order to transfer the
estate to the Second Defendant in his capacity as an executor under
the forged will, and upon the will being declared a forgery it became
10

void ab initio and all actions taken by the First Defendant pursuant to
the will was a nullity. He contended that an executor appointed by a
forged will could not bind the estate because his appointment itself
was void in the eyes of the law.

15

[34] Learned counsel submitted that the first leave question should
be answered in the negative and that the Consent Order be declared
a nullity.
THE THIRD LEAVE QUESTION

20

(c) Whether the Official Administrator could validly consent to the

sale of deceased property under Section 39 and Section 60 of
the Probate & Administration Act 1960 without an empowering
court order?
25

[35] According to the learned counsel for the Plaintiff, the third leave
question became important because the Courts below opined that
23

24

although the First Defendant should not have given consent to the
sale of the said land, the consent was nevertheless validated
because of the presence of the OA at the proceedings.

[36] Learned counsel submitted that as a matter of law under the

Probate and Administration Act 1959 (the Probate Act), the OA was
not empowered to approve the sale of the said land without first being
appointed administrator of the deceaseds estate. By virtue of section
60(4) of the Probate Act, the OA then had to apply to Court for

10

permission to sell the said land. Learned counsel submitted that the
mistake had come about as a result of failure to distinguish between
a vesting order and an administrative order. A vesting order placed
the OA in the same position as a receiver holding property in interim
but an administration order would empower him to deal with the

15

property.

This, according to learned counsel was the distinction

between section 39 and section 60 of the Probate Act. According to

the learned counsel, Justice Vohrahs order dated 1.4.1985 vested
the estate in the OA. Under section 39(1) of the Probate Act, the OA
functioned only in an interim capacity like a receiver he needed a
20

further order to administrator the Estate vested in him. Kuruppan

Chattier v. Subramaniam Chattier & Ors [1933] 2 MLJ 226,
Selvarajah & Anor. v. Official Administrator [1978] 2 MLJ 108,
Lim Cheng Kwang v. Sivamalai d/o Sinnathambi & Anor [1994] 2
CLJ 59 and Jamaliah bte Hj. Mahsudi v. Sivam a/l Munsamy &

25

Anor [1999] 5 MLJ 250 were cited in support of the submission.

24

25

[37] Learned counsel contended that under section 60, only an

administrator may apply to sell intestate estate property, and thus, in
the absence of a Court order appointing him as the administrator of
the Estate, the OA could not have validly consented to the sale.
5

Therefore his presence in the Court proceedings could not in law be

taken to be an assent because since he had not been appointed an
administrator, he was not empowered to give any consent.
[38] Learned counsel for the First Defendant submitted that the first

10

leave question presupposed that only the First Defendant granted

consent on behalf of the deceaseds estate which was not factually
correct because when the First Defendant gave consent as a
representative of the deceased estate under O. 15 RHC 1980, the
OA was also present in Court and participated in the proceedings

15

when the Consent Order was recorded. According to the learned

counsel, at the very least the OA had not opposed the order of
specific performance of the agreement which was sought for.
[39] On the third leave question, learned counsel for the First

20

Defendant submitted that the present case is not a case of sale by

the representative of a deceaseds estate which could attract the
application of section 39 and section 60 of the Probate Act.
According to the learned counsel, in this case the deceased executed
the agreement during his lifetime.

25

The representative of the

deceaseds estate consented merely to give effect to the transaction

entered into by the deceased during his lifetime. The representative

25

26

also had the benefit of the consensus of the beneficiaries of the

deceaseds estate in the form of the minutes of the meeting of the
beneficiary, including the Plaintiff. The First Defendants consent to a
valid agreement which was a genuine bargain (as found by the trial
5

Court) should still stand. The First Defendant was appointed by the
Court under Order 15 Rule 6A of the Rules of the High Court 1980
(RHC 1980). It was the exclusive right of an administrator to decide
whether to sell or not to sell any land in the course of his duty as
administrator of the estate of the deceaseds person. Khaw Poh

10

Chuan v. Ng Gaik Peng & Ors [1996] 1 MLJ 761 (FC) was cited as
the authority in support. Learned counsel submitted that the death of
a seller/vendor did not vitiate a lawful agreement. Haji Osman bin
Abu Bakar v. Saiyed Noorbin Saiyed Mohamed [1952] 18 MLJ 37
and Kersah Lausin v. Sikin Menan [1966] 2 MLJ 20 were referred

15

to in support of that submission.

[40] Learned counsel also submitted that setting aside of a
perfected Consent Order can only be made on limited ground that it
was null and void for illegality or lack of jurisdiction, and that the

20

power to set aside should only be exercised judicially in exceptional

cases where the defect was of such a serious nature that there was a
real need to set aside the defective order to enable the Court to do
justice. Badiaddin bin Mohd Mahidin & Anor v. Arab Malaysia
Finance Bhd [1998] 1 MLJ 393 at pages 409, 426 was relied upon

25

in support of that submission.

26

27

[41] The thrust of the submission of the learned counsel for the
Second Defendant in defence of the Consent Order is as follows:
The Second Defendant was at all material times a bone fide
purchaser of the land. The first leave question was misleading and it
5

presumed that the First Defendant consented to the Consent Order

as an executor of the deceaseds estate which was not the case
because the First Defendant was vested with the power to bind the
Estate by the order of the High Court appointing the First Defendant
as the personal representative of the Estate. The First Defendant

10

was never the executor of the Estate.

[42] Learned counsel of the Second Defendant submitted that
although the injunction order by L.C. Vohrah J dated 15.10.1984
provided that the First Defendant would act as the representative of

15

the Estate for the purpose of O. S. 267/84 until the OA take over,
(and the OA appeared to have taken over on or about 11.9.1985), the
OA consented to the First Defendants continued involvement in the
O. S. 267/84 and was in any event present at the hearing of O. S.
267/84 which culminated in the Consent Order.

20

As such the

deceaseds estate was duly represented by the OA.

[43] Learned counsel further submitted that in any event, the Plaintiff
was estopped from taking issue with the Consent Order because he
had not taken any positive step to intervene in O. S. 267/84, and had

25

sat by and let events occured as they did. In fact, according to the
learned counsel, the Plaintiff could even be described as having

27

28

instigated these events.

In this regard he said, by a letter dated

12.04.1985, the Plaintiffs solicitors requested the OA to take over the

assets which the latter did. In his letter dated 11.9.2005, the OA said:

Dengan hormatnya ingin saya memaklumkan bahawa Pegawai

Pentadbir Pusaka Malaysia sedang menguruskan harta pusaka
simati.

Learned counsel contended that the OA agreed with the course of

10

action which culminated in the granting of the Consent Order.

[44] With regard to the third leave question, the substance of the
submission of the learned counsel for the Second Defendant is as
follows.

15

The OA was appointed to take over as representative for

the Estate by way of the varied injunction and the Plaintiff was
content to accept the state of affairs contemplated by the said order.
Therefore, the Plaintiff was precluded from contending that the OA
was not in a position to make such orders as were necessary for the
purpose of O. S. 267/84. This, according to the learned counsel,

20

included the recording of the Consent Order which was the

culmination of a process which involved not only the OA but the
Plaintiff, through solicitors. In fact, it was submitted that the OA took
over representation of the Estate on the urging of the Plaintiffs
solicitors. In this context, learned counsel submitted that it was self-

25

evident that the Plaintiff was estopped from asserting a contravention

of law in the manner which was attempted in this case. According to
the learned counsel, in the circumstances of the present case,

28

29

estoppel applied. In support of his submission learned counsel relied

on Owen Sim Liang Khui v. Piasau Jaya Sdn Bhd & Anor [1996] 4
CLJ 716.

[45] Continuing his submission, learned counsel contended that in

any event, sections 39 and 60 of the Probate Act did not apply. At
the time O. S. 267/84 was commenced, and subsequently the varied
injunction was granted, a letter of Administration had been issued in
the name of the Plaintiff. Although the letter of Administration was

10

caveated by the First Defendant, this state of affairs necessarily

precluded the application of section 39 of the Probate Act, because it
could not be said that administration had not been granted within the
meaning of section 39.

15

[46]

Learned counsel submitted that section 60 of the Probate Act

also did not apply because it applies to personal representative

within the meaning of section 60(1) of the Probate Act which
provides:

20

In dealing with the property of the deceased his personal

representative shall comply with this section.

[47] However, according to the learned counsel, the definition of

personal representatives under section 2 of the Probate Act only
25

included, other than where liability for death duties were concerned,
an executor or administrator. It was submitted that the fact pattern in
this case was clearly outside the scope of the definition. According to
29

30

the learned counsel, in this case, the First Defendant was appointed
pursuant to Order 15 Rule 6A of the RHC 1980. The OA was then
directed by the High Court to take over as representative of the estate
by way of the varied injunction. This was not an order made pursuant
5

to, or to give effect, to section 39 of the Probate Act, nor could it have
been in the circumstances. The varied injunction did not have the
effect of appointing the OA in law as the executor or the administrator
of the deceaseds estate.

10

[48]

Further, learned counsel submitted that the definition under

section 2 as aforesaid did not include the OA.

Learned counsel

submitted that in Kerajaan Malaysia v. Yong Siew Choon [2005] 4

CLJ 537, this Court observed that by virtue of section 39 of the
Probate Act, the OA became the legal representative of the Estate in
15

question until such time as probate or legal administration was

granted. Learned counsel submitted that the OA as such was not an
executor or administrator as contemplated by the definition as a
distinction was drawn between the two roles and a legal
representative.

20

DECISION OF THIS COURT

THE FIRST AND THE THIRD LEAVE QUESTIONS
[49] To reiterate, the Plaintiff challenged the Consent Order on the
25

basis that the will of the deceased (upon which the First Defendant
obtained a probate on 21.8.1984) was declared by this Court on

30

31

17.2.1997 to be a forgery and was therefore null and void. The Court
also ordered the probate to be revoked. It was submitted on behalf of
the Plaintiff that the First Defendant had consented to the Consent
Order to transfer the said land to the Second Defendant in his
5

capacity as an executor under the forged will and upon the will being
declared a forgery it became void ab initio and all actions taken by the
First Defendant pursuant to the will was a nullity. It was contended
that an executor appointed by a forged will could not bind the said
land because his appointment itself was void in the eyes of the law.

10

On behalf of the First Defendant on the other hand, it was contended

inter alia, that the First Defendant consented to the Consent Order as
representative of the deceased under O. 15 of the RHC 1980. In a
similar vein, it was contended on behalf of the Second Defendant that
the First Defendant had not consented to the Consent Order as an

15

executor but was vested with the power to bind the deceaseds estate
by the order of the High Court appointing the First Defendant as the
representative of the deceaseds estate pursuant to O. 15 r 6A of the
RHC 1980. We agree. O. 15 r 6A of the RHC 1980 provides:

20

6A Proceedings against estates (O 15 r 6A)

(1) Where any person against whom an action would have
lain has died but the cause of action survives, the action may, if no
grant of probate or administration has been made, be brought
against the estate of the deceased.

25
(2)

Without prejudice to the generality of paragraph (1), an

action brought against the personal representatives of A.B.

31

32
deceased shall be treated, for the purposes of that paragraph, as
having been brought against his estate.
(3)
5

An action purporting to have been commenced against a

person shall be treated, if he was dead at its commencement, as

having been commenced against his estate in accordance with
paragraph (1), whether or not a grant of probate or administration
was made before its commencement.
(4)

10

In any such action as is referred to in paragraph (1) or

(3)
(a) the plaintiff shall, during the period of validity for service of the
writ or originating summons, apply to the Court for an order
15

appointing a person to represent the deceaseds estate for the

purpose of the proceedings or, if a grant of probate or
administration has been made for an order that the personal
representative of the deceased be made a party to the
proceedings, and in either case for an order that the

20

proceedings be carried on against the person appointed or, as

the case may be, against the personal representative, as if he
had been substituted for the estate;
(b) the Court may, at any stage of the proceedings and on such

25

terms as it thinks just and either of its own motion or an

application, make any such order as is mentioned

in

subparagraph (a) and allow such amendments (if any) to be

made and make such other order as the Court thinks necessary
in order to ensure that all matters in dispute in the proceedings

32

33
may be effectually and completely determined and adjudicated
upon.
(5)
5

Before making an order under paragraph (4) the Court

may require notice to be given to any insurer of the deceased

who has an interest in the proceedings and to such (if any) of
the persons having an interest in the estate as it thinks fit.
(5A) Where an order is made under paragraph (4) appointing

10

the Official Administrator to represent the deceaseds estate,

the appointment shall be limited to his accepting service of the
writ or originating summons by which the action was begun
unless, either on making such an order or on a subsequent
application, the court, with the consent, of the Official

15

Administrator, directs that the appointment shall extend to

taking further steps in the proceedings.
(6)

Where an order is made under paragraph (4), rules 7(4)

and 8(3) and (4) shall apply as if the order had been made
20

under rule 7 on the application of the plaintiff.

(7)

Where no grant of probate or administration has been

made, any judgment or order given or made in the proceedings

shall bind the estate to the same extent as it would have been
25

bound if a grant had been made and a personal representative

of the deceased had been a party to the proceedings.

[50] Before the introduction of O. 15 r 6A of the RHC 1980, a

Plaintiff could not commence an action against the estate of a
30

deceased Defendant until letters of administration were extracted. O.

33

34

15 r 6A of the RHC 1980 enables a Plaintiff to commence action

against the estate of a deceased Defendant, where no grant of
probate or administration has been made in respect of the Estate.
The rule gives the Plaintiff an advantage of commencing proceeding
5

against a deceased Defendant without first ascertaining the

administrator or executor of the estate and obviates the risk of
limitation setting in [see Malaysia Civil Procedure 2013 page 159].
In Yong Siew Choon v. Kerajaan Malaysia [2003] 2 MLJ 150, after
stating the legal position before the introduction of O. 15 r 6A of the

10

RHC 1980, the Court of Appeal explained the scope of the rule. In
this regard the following statement from the judgment of the Court of
Appeal was approved by the Federal Court as excellent exegesis on
O. 15 r 6A of the RHC 1980 (see Kerajaan Malaysia v. Yong Siew
Choon [2006] 1 MLJ 1) :

15
Returning to the present case, we would observe that the
respondent was perfectly entitled (by reason of O 15 r 6A) to
commence the action in the manner intituled. But having done so, it
did nothing else save to prosecute the action to judgment. In other
20

words, there was blatant non-compliance with O 15 r 6A(4).

It is our judgment that while O 15 r 6A is a remedial provision of
adjectival law, it is important that a litigant who seeks to take
advantage of it must comply with its terms before he or she may take

25

advantage of any provision of substantive law. See, Balachandran v

Chew Man Chan [1995] 4 MLJ 685, per Vincent Ng J; Singapore
Gems Co v The Personal Representives for Akber Ali (deceased).
Non-compliance therefore renders the action more than a mere

34

35
irregularity.

The entire action is badly constituted as a matter of

substantive law. For, it is only in an action against the duly appointed

legal representative of the estate of a deceased that a judgment may
be obtained that may be enforced against the assets of the estate.
5

That is why O 15 r 6A(7) of the RHC makes it abundantly clear that if

the terms of O 15 r 6A of the RHC are complied with then an order or
a judgment obtained in the action shall bind the estate of a deceased
person. Conversely, therefore, if the provisions of O 15 r 6A of the
RHC are not complied with then any order or judgment is useless as

10

it would be wholly unenforceable against the estate of the deceased.

To summarise, the rule of substantive law is that an action may be
commenced and maintained by or against the estate of a deceased
after, and only after, letters of representation have been extracted.

15

Order 15 r 6A of the RHC provides a very limited exception to that

substantive rule by permitting the commencement of an action
against the estate of a deceased even before the extraction of letters
of representation. But it regulates the future prosecution of the action
by requiring (in r 6A(4)) certain steps to be taken in that respect and

20

specifying the time limited for the taking of such steps. Failure to
observe the terms of r 6A(4) of O 15 will therefore deprive a plaintiff
of the beneficial effect of r 6A and thereby activate the principal rule
of substantive law governing such actions so as to render the action
already commenced a nullity. As already stated in the preceding

25

paragraph of this judgment that is what happened in the present

case.
The appeal is accordingly allowed. The order of the High Court is set
aside. The plaintiffs action is dismissed with costs both in this Court

35

36
and in the court below.

The deposit is to be refunded to the

appellant.

[51] In explaining the object of O. 15 r 6A of the RHC 1980 in

5

Kerajaan Malaysia v. Yong Siew Choon (supra) the Federal Court

said at page 9:
The starting point for such a consideration is the object of O 15 r 6A
which is described in the Malaysian High Court Practice (1998 Desk

10

Edition) Vol 1 at p 361 in the following terms:

The purpose of this rule is to overcome the difficulties of suing
the estate of a person who had died before the commencement
of the action and in whose estate no grant of probate or of
administration had been made. There is no person to sue.

15
[9]

In the case of Re Amirteymour, Deceased [1979] 1 WLR 63,

Lord Diplock in explaining the object of their O 15 r 6A of the Rules of

the Supreme Court, upon which our O 15 r 6A is based, said at p 66:
20
It has already been pointed out that proceedings against the
estate of a deceased person that are authorised by s 2 of the
Proceedings Against Estates Act 1970 and O 15 r 6A take the
form of actions in personam. They are neither actions in rem,
25

which are peculiar to the Admiralty jurisdiction of the Court, nor

are they actions against an abstraction a form of proceeding
unknown to English law. As in all actions in personam there
must be in existence some person, natural or artificial and
recognised by law, as a defendant against whom steps in the

30

action can be taken. If and so long as there is no such person

36

37
the action, though it may not abate, cannot be continued, as, for
example, where a sole defendant to a subsisting action dies
and no executor or administrator has yet been appointed
against whom an order to continue the proceeding can be
5

obtained under O 15 r 7.
[10] Thus, the object of O 15 r 6A is to provide a remedy where
there is no person in law who can be sued.

It is therefore

superfluous to state that even where no grant of probate or of

10

administration has been made to the estate of a deceased

person O 15 r 6A will have no application if there is, in law, a
person who can be sued. An executor de son tort is such a
person.

As The Law of Wills, Probate Administration and

Succession in Malaysia and Singapore by Mahinder Singh

15

Sidhu says at p 146:

When an executor has accepted office as an executor, he
shall not thereafter renounce it. Acceptance does not mean
only those executors appointed by the Court or authorised by

20

the probate Court, to serve in that capacity.

It includes an

executor de son tort who, without having been appointed

executor, or without having taken out letters of administration,
intermeddles with the goods of the deceased, or does any other
act characteristic of the office of executor or administrator. He
25

has all the liabilities and none of the privileges of an executor

(Coote v Whittington (1873) LR 16 Eq 534).

[52] Returning to the appeal before us, on 25.2.1984 Mdm

Ponnamal filed O. S. 267/84 in the Ipoh High Court against the
30

deceaseds estate (the First Defendant) and one Mr. Seerelan, her

37

38

former solicitor (the Second Defendant), seeking for the following

orders:
(a) within 2 months from date of this order the applicant be at
5

liberty to deposit the amount of $2,370,135.00 with this

Honourable Court and upon deposit of the said sum of
$2,370,135.00 the applicant be at liberty to proceed to register
the transfer executed by the said Nadarajah s/o Sithambaram
deceased in favour of Ponnamal d/o Ramasamy Pillai on

10

18.2.82;
(b) the second Defendant do immediately hand over the title deed
relating to Grant No. 12399 for Lot No. 1631 Mukim of Teluk
Bharu, Mukim of Lower Perak held by him as stakeholder to the

15

applicants solicitors upon the applicants undertakings that the

said transfer shall not be presented for registration until the
balance of the purchase price is deposited in accordance with
prayer (a);

20

(c) the parties be at liberty to apply and the costs of this application
be provided for.

[53] The facts which form the basis of Mdm Ponnamals application
25

as disclosed in her affidavit are as follows.

On 18.2.1982 she

entered into the agreement with the deceased to purchase the said
land for a total consideration of RM3,000,000/= and that upon
execution of the agreement she paid RM420,000/= as a deposit and
part-payment of the purchase price; the balance of which was to be

38

39

paid on or before 18.12.1982 but subject to the approval of the

Foreign Investment Committee (FIC) being obtained.

Before

completion of the purchase, on 20.8.1982 the deceased passed

away. Mdm Ponnamal affirmed that as far as she knew, no person
5

had taken out letters of Administration in respect of the deceaseds

estate and that she understood that there was a dispute among
members of the deceaseds family, and that it would take some time
before the dispute was resolved and letters of Administration were
granted. She affirmed that she had always been ready and willing to

10

complete the purchase, but as there was no legal representative of

the deceaseds estate, she had not been able to pay the balance of
the purchase price. She further affirmed that the FIC granted the
approval for the purchase of the said land on 14.4.1983. According
to her, pursuant to the agreement, the deceased had already

15

executed a transfer in favour of her nominee, and the memorandum

of transfer together with the document of title were deposited with
the Second Defendant who was holding the same as stakeholders.
After the execution of the agreement it had come to her knowledge
that sometime in 1980, the Perak State Government had acquired

20

an area of 21 a 1 r 25 p which formed part of the said land

purchased by her. The deceased did not disclose this when the
agreement was executed by the parties. She had been advised by
her solicitors and she verily believed that in view of the said nondisclosure by the deceased, she was entitled to deduct from the

25

balance of the purchase price, the value of the said land acquired by
the Government calculated according to the purchase price as

39

40

stated in the agreement.

The amount to be deducted was

RM209,865/=. She had also made arrangement with the bank to

obtain the necessary finance to complete the purchase and she was
prepared to deposit the balance of the purchase price in Court. She
5

was advised by her solicitors and she verily believed that she should
deposit the balance of the purchase price in the Court and obtain the
Court order to proceed to register the transfer.
[54] In our view, Mdm Ponnamal was entitled to file O. S. 267/84.

10

Having filed the O. S., she could not have proceeded further to
prosecute the action to judgment without taking action to comply
with the provision under O. 15 r 6A(4) of the RHC 1980.

Non-

compliance with O. 15 r 6A(4) would render the action filed a nullity.

The entire action would have been badly constituted as a matter of
15

substantive law.

For it is only in an action against the duly

appointed legal representative of the estate of a deceased that a

judgment may be obtained which may be enforced against the
Estate.

That is why O. 15 r 6A of the RHC 1980 makes it

abundantly clear that if the terms of that order are complied with,
20

then an order or a judgment obtained in the action shall bind the

estate of a deceased person. [See the Court of Appeal judgment in
Yong Siew Choon v. Kerajaan Malaysia (supra) at page 156].
Unlike the Respondent Plaintiff in Yong Siew Choon v. Kerajaan
Malaysia (supra), where after having commenced the action

25

against the estate of the deceased, it did nothing else save to

prosecute the action to judgment, we find that in the present appeal,

40

41

Mdm Ponnamal did comply with O. 15 r 6A(4) of the RHC 1980.

Having commenced her action in O. S. 267/84, she followed it up by
filing the summons-in-chambers [page 1632 1633, Jilid 16 of the
Appeal Record] applying for a Court Order appointing a person [the
5

First Defendant] to represent the deceaseds estate for the purpose

of O. S. 267/84 as follows:
(a) that Periasamy s/o Sithambaram Pillay of 5 Market Street,
Teluk Intan, Perak, be appointed to represent the estate of
Nadarajah s/o Sithambaram Pillay deceased for the purpose of

10

the proceedings herein and that the order given or made in the
proceedings herein do bind the estate of Nadarajah s/o
Sithambaram Pillay deceased.

15

(b)

that the costs of the application be costs in the cause.

[55] O. 15 r 6A(4)(a) of the RHC 1980 provides for the following two
alternative situations:

20

(i)

the Plaintiff shall apply to the Court for an order

appointing a person to represent the deceaseds estate
for the purpose of the proceedings; or

(ii)
25

if a grant of probate or administration has been made, the

Plaintiff shall apply for an order that the personal
representative of the deceased be made a party to the
proceeding.

41

42

[56] It is clear from the prayer in her application and her affidavit
filed in support of that application that she was not seeking for an
order that the personal representative of the deceased (pursuant to
a grant of probate or administration) be made a party to the
5

proceedings in O. S. 267/84. So, her application was not dependant

on any probate. It is true that in her affidavit she mentioned about
being informed by the First Defendant about a will purportedly
executed by the deceased on 7.4.1982 appointing the former as the
executor of the deceaseds estate. However, no probate had been

10

obtained. In this regard she affirmed that steps were being taken by
the First Defendant to apply for probate. However, she said that as
there were some problems among the members of the deceaseds
family, it would take some time before probate was obtained. It is
opportune to add at this juncture that although an executor derives

15

his title and authority from the will of his testator and not from any
grant of probate, the production of the probate is the only way in
which he is allowed to prove his title [see S.M.K.R Miyappa Chetty
v. S. N Supramaniam Chetty [1916] I A.C 603 P.C, page 608, per
Lord Parker of Waddington].

20

So, without a probate the First

Defendants title pursuant to the will was not proven. Thus, the will
was not and could not have been the basis of Mdm Ponnamals
application. Her application was not under the second limb of O. 15
r 6A(4)(a) of the RHC 1980.

It is clear from the prayer in her

application and the affidavit in support that she had applied to the
25

Court for an order appointing a person (the First Defendant who was
the deceaseds brother) to represent the deceaseds estate for the

42

43

purpose of the proceedings in O. S. 267/84. In our view, under O.

15 r 6A(4)(a) of the RHC 1980 for such a person to be appointed
there is no requirement that a probate or letters of Administration
have been granted.
5

As we have explained, if probate or

administration had been granted, the application should be under

the second limb of O. 15 r 6A(4) of the RHC 1980 for the personal
representative of the deceased to be made a party to the
proceedings. Indeed, in this case as evident from her affidavit in
support of the application, Mdm Ponnamal made the application

10

because no person had taken out letters of Administration in respect

of the deceaseds estate. That was the basis of her application.
She affirmed that she understood steps were being taken by the
First Defendant to apply for probate. However, as there were some
problems among the members of the deceaseds family it would

15

take some time before probate was eventually obtained. It was in

those circumstances that on 20.4.1984, Annuar J (as he then was)
allowed Mdm Ponnamals application, and ordered the following:
that Periasamy s/o Sithambaram Pillay of 5 Market Street, Teluk

20

Intan, Perak, be appointed to represent the Estate of Nadarajah s/o

Sithambaram Pillay deceased for the purpose of the proceedings
herein (O. S 267/84) and that the order given or made in the
proceedings herein (O. S 267/84) do bind the Estate of Nadarajah
s/o Sithambaram Pillay deceased.

25

[57] In our view, that order was properly made pursuant to O. 15 r

6A(4)(a) of the RHC 1980 and it duly appointed the First Defendant

43

44

as the legal representative of the deceaseds estate for the purpose

of the proceedings in O. S. 267/84, and more importantly, pursuant
to O. 15 r 6A(7), the Court ordered that the order given or made in
O. S. 267/84 do bind the deceaseds estate. In other words, since
5

the

First

Defendant

had

been

duly

appointed

the

legal

representative of the deceaseds estate, any judgment may be

obtained and enforced against the deceaseds estate.

To recall

what was held by the Court of Appeal in Yong Siew Choon v.

Kerajaan Malaysia (supra):
10
. It is only in an action against the duly appointed legal
representative of the estate of a deceased that a judgment may be
obtained that may be enforced against the assets of the estate. That
is why O 15 r 6A(7) of the RHC makes it abundantly clear that if the
15

terms of O 15 r 6A of the RHC are complied with then an order or a

judgment obtained in the action shall bind the estate of a deceased
person. Conversely, therefore, if the provisions of O 15 r 6A of the
RHC are not complied with then any order or judgment is useless as
it would be wholly unenforceable against the estate of the deceased.

20

[58] In our view, in the appeal before us, the provisions under O. 15
r 6A of the RHC 1980 had been complied with. The Consent Order
against the deceaseds estate which was properly represented by
the First Defendant as the duly appointed legal representative of the
25

deceaseds estate was properly obtained and was enforceable

against the deceaseds estate.

44

45

[59] Indeed, even Vohrah Js ex parte injunction order granted on

1.4.1985 also appeared to have recognised and given effect to the
Court order appointing the First Defendant as the representative of
the deceaseds estate when it ordered the First Defendant to
5

continue acting as representative of the estate of Nadarajah s/o

Dato Sithambaram Pillai in the High Court Originating Summons
No. 267/84 until the Official Administrator Malaysia take over;
(b)

that the Official Administrator Malaysia to take charge of all the

assets of the Estate of Nadarajah s/o Dato Sithambaram Pillai.

10

[60] We have not lost sight of the fact that the First Defendant was
ordered to continue acting as representative of the deceaseds
estate until the OA takes over and that the OA was to take charge of
all the assets of the deceaseds estate. The order must be read as
15

a whole. The question is when did takes over become effective to

end the First Defendants role as legal representative of the estate?
In our view, logically, takes over in the order must be takes over
validly as administrator of the estate. In other words, until the OA
takes over validly as administrator of the estate, the First

20

Defendant was to continue acting as representative of the

deceaseds estate in the proceedings in O. S. 267/84. Thus, we are
of the view that if that order was construed to be an order vesting all
the assets of the deceaseds estate in the OA, in line with section 39
of the Probate Act, mere vesting of the assets as such did not

25

authorise the OA to deal with the assets of the deceaseds estate.

The OA must proceed to apply for and extract the grant of letters of

45

46

administration, to administer the estate [see Chay Chong Hwa &

Ors v. Seah Mary, [1987] 1 MLJ 173, PC, K.A.L.R.M. Karuppan
Chettiar v. Subramaniam Chettiar & Ors [1933] 2 MLJ 226,
Selvarajah & Anor v. Official Administrator & Anor [1978] 2 MLJ
5

108. Without the letters of Administration, it was not competent for

the OA to represent the deceaseds estate in place of the First
Defendant. In this case there is nothing to show that by 31.10.1985,
the OA had applied for letters of Administration. Further, even if the
order date 1.4.1985 could be construed to be an order appointing

10

the OA as the administrator of the deceaseds estate, it was not

sufficient to clothe the OA with the title and authority to act as the
personal representative of the estate.

In this regard, in Jigarlal

Kantilal Doshi v. Amanah Raya Berhad [2011] 9 CLJ 361, this

Court said at page 373:
15
[17]

With respect, we are in agreement with the submission of the

appellant that the Court of Appeal had failed to appreciate the

distinction between an appointment and a grant. It is the grant that
clothes the personal representative with a title upon its issue by the
20

Registry under the seal of court. The administrator derives his title
from the grant and cannot act until then. We agree with what Ismail
Khan J said in P Govindasamy Pillay & Sons Ltd v. Lok Seng Chai &
Ors [1961] 1 LNS 78 that it is only on extracting the grant of letters
of administration that the petitioner can be said to be duly clothed

25

with the representative character and to have acquired a title to the

estate. The learned judge in that case also followed Lord Parkers
observation in the case of SMKR Meyappa Chetty v. SN
Supramaniam Chetty [1957] 1 WLR 157, that:

46

47
An administrator on the other hand derives title solely under
his grant and cannot, therefore, institute an action as
administrator before he gets his grant. The law on the point
is well settled.
5

[61] In this case there is nothing to show that by 31.10.1985 the OA

had been issued by the Court Registry under the seal of Court, with
letters of administration.

Thus, he was not competent to act as

personal representative of the deceaseds estate in the proceedings

10

in O. S. 267/84.

That being the case it cannot be said that on

31.10.1985 the OA had taken over in place of the First Defendant.

In short, in either case, on 31.10.1985, the OA had not taken over
from the First Defendant. Thus, on 31.10.1985 the First Defendant
was still the duly constituted legal representative of the deceaseds
15

estate when he assented to the Consent Order which, in our view,

was properly made and enforceable.
[62] In view of what we have said thus far, we find it unnecessary to
answer the First and the Third Leave Questions.

20

THE SECOND LEAVE QUESTION:

(b) Whether the approval given by the Court to a consent
order for the sale of estate property is valid when
25

pending

Interpleader

Summons

challenging

the

genuineness of the sale was not brought to the

attention of the court?

47

48

[63] The thrust of the submission by the learned counsel for the
Plaintiff in respect of the second leave question is as follows. The
draft Consent Order which was settled between the solicitors for the
First and the Second Defendants respectively, two days before the
5

recording of the of the Consent Order. It was tendered before Ajaib

Singh J for approval on 31.10.1985. It was recorded by the learned
judge as if it was an uncontested matter without any controversy
surrounding it. The attention of the learned judge was not brought to
the Interpleader Summons taken out in the same proceedings (O. S.

10

267/84) by the solicitor, Mr Seeralan, or the affidavits filed by him in

support of that Interpleader Summons which challenged the
agreement transacted between the deceased and Mdm Ponnamal
as not being a genuine sale.

The Consent Order records Mr.

Seeralan as being absent as if he had stayed away from the

15

proceedings although served, whereas Mr. Seeralan had notified the

Court and the solicitors for the First and the Second Defendants of
his absence, and that he would abide by any decision of the Court
or to act under the directions of the Court.

Mdm Ponnamals

solicitor was requested to mention on Mr. Seeralans behalf. Mr.

20

Seeralan (since deceased) was the former solicitor for Mdm

Ponnamal, who drafted the agreement. Upon being served with the
Originating Summons in O. S. 267/84, Mr. Seeralan through his
solicitors took out an Interpleader Summons declaring that he had
no personal interest in the property but asking the Court to

25

determine who was entitled to the title in his custody.

In his

supporting affidavit he alleged that the sale was in fact a disguise for

48

49

a money lending transaction.

Learned counsel for the Plaintiff

contended that it was obligatory for the First and Second

Defendants to bring to the Interpleader Summons to the attention of
the learned judge for him to decide on the interpleader. As that was
5

not done, the Consent Order was made without the interpleader
being decided on whether the sale was a genuine sale. Learned
counsel for the Plaintiff submitted that there was no explanation from
both Defendants as to why that Interpleader Summons was not
disclosed to the Court on 31.10.1985. It was contended that in the

10

result, the Ipoh High Court approved the draft Consent Order without
being informed of the Interpleader Summons and the affidavits
impugning the sale.

The Interpleader Summons was never

adjudicated or dismissed.

The High Court therefore did not

adjudicate on the question whether the agreement was a genuine

15

sale or a disguised money lending transaction. It was contended

that it was obligatory for the First and Second Defendants to bring to
the attention of the learned judge the Interpleader Summons for him
to decide on it. As this was not done, the Consent Order was made
without the interpleader being decided on whether the impugned

20

sale was a genuine sale or a disguised money lending transaction.

It was contended that the Consent Order was approved by the Court
without full disclosure of the relevant facts by the parties who
obtained the order. It was also contended that the First and the
Second Defendants had acted collusively with each other to obtain

25

the order by keeping out the Plaintiff, and without full disclosure.
The Consent Order was therefore vitiated under section 44 of the

49

50

Evidence Act 1950. It was submitted that where the Court was led
into making an order without disclosure of all the facts, such an
order could not stand.

In support of that submission, learned

counsel relied on Chee Pok Choy & Ors v. Scotch Leasing Sdn
5

Bhd [2001] 4 MLJ 346; Shripadgouda v. Govindgouda, AIR 1941

Bomb. 77; and Meek v. Fleming [1961] 3 All AE 148.
[64] For the First Defendant, it was submitted that the second
question was predicated on matters which had not been pleaded.

10

Since the question was never in issue in the Courts below, it should
not be an issue before us.

For the Second Defendant, it was

submitted that the second question was misleading as the

Interpleader Summons was not made an issue by Mr. Seeralan.
According to the learned counsel for the Second Defendant, Mr.
15

Seeralan in fact left the matter to the Court after having informed the
Registrar that he would abide by any order of the Court. Had it been
an important matter, Mr. Seeralan would have taken issue with O. S.
267/84, which he failed to do.

Learned counsel contended that

therefore it was not open to the Plaintiff to seek to do so in the High

20

Court action (the Ipoh High Court Civil Suit No. 2087/85) the
decision in which is the subject matter of the instant appeal. Learned
counsel also submitted that adjunct to this, was the undisputed fact
that the Plaintiff failed to take any active steps to intervene in O. S.
267/84. This, it was submitted, was an election to abandon any

25

challenge to jurisdiction, and thus an implied acceptance of

jurisdiction. It was argued that the Plaintiff could not subsequently

50

51

take an inconsistent position. In support of his submission learned

counsel referred to Bauer (M) Sdn Bhd v. Daewoo Corporation
[1999] 4 CLJ 665 and Lai Yoke Ngan & Anor v Chin Teck Kwee
& Anor [1997] 3 CLJ 305.
5

[65] The second leave question makes specific reference to the

pending Interpleader Summons.

So, the starting point is to ask

whether the pending Interpleader Summons (Seeralans SummonsIn-Chambers) [see page 1642 1643, Appeal Record, Vol. 16] is
10

in fact an Interpleader Summons?.

Interpleader Summons as

provided under O. 17 r 1(a) RHC 1980, is the provision for what is

styled as stakeholders interpleader, which is the applicable
provision in the context of the present case. The whole object of the
interpleader provision is to enable a person in the position of a
15

stakeholder to get relief from the Court and get it decided as to

which of the two or more claimants he has to account for the money,
goods or chattels which he holds. So, as provided by O. 17(1)(a)
RHC 1980, the state of being sued or the expectation to be sued in
respect of those goods by two or more persons making adverse

20

claims, is the precondition which the applicant must fulfil to give the
Court the jurisdiction to exercise discretion to grant the relief,
provided under O. 17. There must be some real foundation for such
expectation. In this regard, even a letter from one of the adverse
parties containing a direction and warning to the interpleader not to

25

release the contested documents of titles, for example, could not be

construed as a claim from that party.

51

This is clear from the

52

judgment of this Court in Tetuan Teh Kim Teh, Salina & Co v. Tan
Kau Tiah & Anor [2013] 5 CLJ 161, where the Court said:
[34]
5

O 17 r 1(a) RHC is the provision for what is known as

stakeholders interpleader. Under this provision a person who holds

any money, goods or chattels which he does not claim, or is under
liability for a debt and he expects to be sued in respect of that
money, goods or chattels by two or more persons, that person can
protect himself from an action and the costs of such an action by

10

calling on these claimants to interplead, in other words, to claim

against one another, so that the Court can decide to whom the
money, goods or chattels belong. [Mallals Supreme Court
Practice, 2nd edn, vol. 1, 1983]. The nature of an interpleader is
lucidly explained in De La Rue v. Hernu, Peron & Stockwell Ltd.

15

De La Rue claimant [1936] 2 AER 411 [referred to by this Court in

Chin Leong Soon & Anor [1970] 2 MLJ 228. See also Glencore
International AG v. Shell International Trading and Shipping Co
Ltd

and

another

[1999]

AER

(Comm)

922]

..
20

.
[40] The discretionary relief of interpleader (provided under O 17 r
1(a) RHC) will not be granted unless there appears to be some real
foundation for expectation of a rival claim [see Watson v. Park
Royal (Caterers) Ltd [1962] 2 All. E. R 346, Chin Leong Soon &

25

Ors v. Len Chee Omnibus Co. Ltd (supra)]. It appears from its
judgment that the Court of Appeal was not satisfied on the evidence,
that the precondition that there must appear to be some real
foundation for such expectation was made out. In other words, the
precondition that the Plaintiff expects to be sued in respect of the

30

documents of titles by two or more persons making adverse claims

52

53
thereto required under O 17 r 1(a) had not been fulfilled., In its
judgment the Court of Appeal said:

10

15

And a mere direction and warning from the second respondent not
to release the 18 original issue documents of titles cannot be
construed as a claim against the first respondent. We will now
reproduce the letter dated 10.5.2007 from the solicitors for the
second respondent addressed directly to the first respondent and
that letter will show that there was no direction or warning from the
solicitors of the second respondent but rather it was couched in
general terms as a mere statement and nothing else. That letter
was worded as follows (see page 327 to 328 of Bahagian C Jilid
3):
With regard to the demand for the return of the said titles, please
take note of the following:
(i)

20
(ii)

(iii)

Our client has also applied by Summons for (an) injunction to

restrain the Arbitrator and the Claimant Tan Kau Tiah from
taking further steps in this matter, and this application is part
heard before the Honourable Judge of the High Court; and

(iv)

The interim Award has not been registered, and it is our

clients intention to vigorously oppose any application to do so.

25

30

Our client Bintang Merdu has applied to the High Court to

remove the Arbitrator in this matter on grounds of
misconduct;
Our client has also applied to amend the above application to
set aside the interim Award also for misconduct;

It is our clients view that the titles should be held by you as (a)
stakeholder until the dispute is resolved, which is not the case at
present.
35
We trust (that) you will take into consideration the above matter in
carrying (out) you duties as (a) stakeholder in this matter and in
deciding the status of the said titles.

53

54
[41] We accept the finding that the letter dated 10.5.2007 was not a
direction and warning from the first Defendant to the Plaintiff, and
that it did not amount to a claim by the first Defendant to the title.
The letter merely stated the first Defendants view that the Plaintiff
5

should continue to hold title until the dispute between the first and
second Defendant was resolved.

[66] On the mode of the application under O. 17 this Court said:

10

[42]

O 17 r 3(3)(b) of RHC also requires that an interpleader

summons must be supported by evidence that the applicant

(a) claims no interest in the subject matter in dispute other than
for charges or costs;
15
(b) does not collude with any of the claimant to that subjectmatter; and
(c) is willing to pay or transfer that subject-matter into Court or
20

to dispose of it as the Court may direct.

[67] In his affidavit in support of his purported interpleader

application, Mr. Seeralan stated that on 18.2.1982 Mdm Ponnamals
husband agreed to lend $300,000/= to the deceased to be repaid on
25

or before 18.12.1982. Out of the said sum, $120,000/= represented

interest. Mr. Seeralan stated that he was instructed to draw up the
relevant documents in the name of Mdm Ponnamal, and to include
$120,000/= claimed by way of interest in the principal sum thereby
making a total of $420,000/=. To secure the loan, Mr. Seeralan drew

54

55

up a document purported to show that the deceased had agreed to

sell to the Plaintiff the said land for a sum of $3,000,000/=. According
to Mr. Seeralan, the real value of the said land in 1982 exceeded
$5,000,000/=. The deceased died on 20.8.1982 before the money
5

lent was due for payment. Mr. Seeralan then deposed the following:
8.

The Plaintiff now claims that she is entitled to complete the

purchase of the said land under the said agreement and has
instituted the proceedings herein.

10
9.

The claim against the First Defendant in the present form interalia untenable as no Letters of Administration has to the best of
my knowledge information and belief been extracted and as
there are serious questions in dispute and Originating

15

Summons is not an appropriate means of disposing the

conflicting interests.
10. The issue document relating to the said land was left with me as
stakeholder and as security for the loan together with a signed

20

document of transfer as stated in the Statement of Claim.

11. I have in the past done similar transaction for the Plaintiffs
husband.

25

12. I claim no interest in the said issued document of this title or the
signed document of transfer or in any of the documents and
chattels set one in the Statement of Claim and do not in any
manner collude with the estate of the deceased who are
described as the First Defendant.

55

56

[68] Paragraph 9 of Mr. Seeralans affidavit is crucial. It is evident

that Mr. Seeralan was not seeking for interpleader relief as a person
who was vexed by suits from two or more person making adverse
claims. Paragraph 9 embodies his real complaints. His first complaint
5

was that Mdm Ponnamals claim against the First Defendant was
untenable because he alleged that no letters of Administration has
been extracted.

This is not and cannot be a ground for an

interpleader application.

In any case this is not true because as

alluded to earlier in this judgment, on 20.4.1984, the High Court had

10

made an order appointing the First Defendant to represent the Estate

under O. 15 r 6A(4)(a) of RHC 1980. Mr. Seeralans other complaint
was that according to him as there are serious questions in dispute,
Originating Summons procedure was not an appropriate means of
disposing the dispute. This is reinforced by his subsequent affidavit

15

when he stated as follows:

5.

What is in dispute is not the ownership or the right to purchase

any land but whether the Court should not in view of the fact set out
in the affidavit supporting my interpleader application go beyond the
20

documents prepared and which said documents have been left in my

custody as stakeholder and ascertain if the transaction was a mere
money lending transaction or in fact a transaction involving the sale
and purchase of a rubber estate.

25

He was not actually seeking for interpleader relief. That was not the
purpose of his application. He himself agreed that the ownership of
the land and the right to purchase was not in dispute.

56

What he

57

wanted the Court to do was beyond that. He wanted the Court to

investigate and adjudicate whether the sale was mere money lending
transaction.

Again this is not and could not be a ground for an

interpleader application.
5

In any case, if he was serious about his

allegation, since he was already made a party to O. S. 267/84, he

should pursue his allegation in that proceeding itself, rather than
leaving it to be questioned later by the Plaintiff (who was not a party to
O. S. 267/84). A party litigant cannot be indifferent and negligent in
his duty to place the materials in support of his contention and

10

afterwards seek to show that that the case of his opponent was false.
[See S.P. Chengalvaraya Naidu v. Jaganath AIR 1994, S.C, per
Kuldip Singh J]. As it transpired, Seeralan was not present in the
proceeding on 31.10.1985 and was content to have Mdm Ponnamals
solicitor mention on his behalf. In our view, Mr. Seeralan failed to fulfil

15

the precondition under O. 17 r 1(a) RHC that he was being sued or

expected to be sued by two or more persons making adverse claims.
Thus, the so called interpleader application was not properly before
the Court pursuant to O. 17 RHC 1980 to clothe it with the jurisdiction
to consider the interpleader application first before considering O. S.

20

267/84.
[69] Be that as it may the more important question which must be
considered is whether the point raised in the second leave question
was pleaded by the Plaintiff?

25

Although the challenge as to the

genuineness of the sale [i.e whether it was a disguised money

lending transaction] was mentioned in the leave question, that is not

57

58

the focus of the leave question. From the leave question what was
not brought to the attention of the Court [in other words not
disclosed to the Court] was the pending Interpleader Summons.
Thus, it is clear that the focus of the second leave question is the
5

Interpleader Summons which it was alleged was not brought to the

attention of the Court. The question then raised is whether in such a
case the Consent Order is valid? In the nutshell the contention of
the Plaintiff in respect of the second leave question is that
Seeralans Interpleader Summons must be disclosed by the First or

10

the Second Defendants to the Court. In other words, since it was an

Interpleader Summons, it must first be decided by the Court before it
could consider O. S. 267/84. Failure to do so vitiated the Consent
Order under section 44 of the Evidence Act 1950.

That section

provides that any party to a suit or other proceeding may show that
15

any judgment, order or decree which is relevant under sections 40,

41, or 42 of the Evidence Act 1950, and which has been proved by
the adverse party, (a) was delivered by a Court not competent to
deliver it, or (b) was obtained by fraud or collusion.

20

[70] In our view, the point raised by the Plaintiff in the second leave
question constitutes a specific ground of challenge on the validity of
the Consent Order.

This ground of challenge is separate and

different from the grounds already pleaded by the Plaintiff in his

pleading in impugning the Consent Order and praying for it to be set
25

aside.

In forming such a view we have not lost sight of paragraph

58

59

16 of the Amended Statement of Claim which contains the following

averment:
By reason of the matters aforesaid the Plaintiff avers and contends
5

that the Consent Order of 31st October 1985 is a nullity and was
obtained by non-disclosure, deception and fraud by the First
Defendant and Ponnal and ought to be set aside.

[71] The matters aforesaid in the above paragraph are matters

10

pleaded in paragraph 1 to paragraph 15 of the Amended Statement

of Claim (Jilid 2, Record Rayuan, page 138 to page 143).
completeness we set out those paragraphs below:
1.

The Plaintiff is the Administrator of the Estate of Nadarajah s/o

Dato Sithambaram Pillai (hereinafter referred to as the

15

Deceased) by Order of Court made on 16th August, 1983 in

Kuala Lumpur High Court Petition No. 369 of 1983. Letters of
Administration with Will annexed were extracted on 4th
November, 1997.
20
2.

The 1st Defendant had purported to be the executor, under an

alleged Will of the Deceased dated 7th February, 1982 (the
alleged Will), of the estate of the Deceased and in this regard
had obtained an Order of probate from the Ipoh High Court vide

25

Petition No. 152 of 1984, without disclosing to the Ipoh Court of

the prior Grant of Letters of Administration (LA) to the Plaintiff.
The 1st Defendants grant and the alleged Will are being
impeached in proceedings brought by the Plaintiff vide Kuala
Lumpur High Court Originating Motion No. F54 of 1984.

59

For

60
3.

The 2nd Defendants are the Personal Representatives of the

Estate

of

Ponnamal

d/o

Ramasamy

Pillai

(Deceased)

(Ponnamal). Ponnamal is the alleged purchaser of the land

held under Grant No. 12359 for Lot No. 1631, Mukim of Teluk
Bharu, District of Lower Perak, (hereinafter referred to as the

said land) under an alleged Sale and Purchase Agreement

dated 18th February 1982 with the Deceased. The said land
was at all material times registered in the name of the
Deceased who was the legal and beneficial owner thereof.
10
4.

The Plaintiff avers that upon the death of the Deceased on 20th
August 1982 the said land vested in the estate of the Deceased
in intestacy. It was accordingly the responsibility of the lawful
administrator of the estate to decide on all claims made on the
said land.

15
5.

The Plaintiff and the 1st Defendant were in dispute as to who

was the lawful Administrator of the estate of the Deceased. In
this respect the Plaintiff instituted proceedings vide Kuala
Lumpur High Court Originating Motion No. F54 of 1984 to

20

revoke the Grant to the 1st Defendant as a nullity, and further

that the alleged Will under which the 1st Defendant purports to
act is a forgery and that the 1st Defendant was responsible for
or/had complicity in the forgery.
25
6.

By an interim Order vide Kuala Lumpur High Court O.M. No. F54-1984 made on 1st April, 1985 the Kuala Lumpur High Court,
inter alia, ordered that the 1st Defendant continue acting as the
representative of the estate of the Deceased in Ipoh High Court

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Originating Summons No. 267 of 1984 only until the Official
Administrator Malaysia takes over.

7.

In breach of the said Order and notwithstanding that the Official

Administrator had taken over the assets of the Deceased the 1st

Defendant purported to represent the estate and consent to the

Order of 31st October 1985.
8.

The Plaintiff avers that the said consent of the 1st Defendant is
a nullity and the said Consent Order is in consequence a nullity.

10

9.

The Plaintiff avers that the purported Sale Agreement of 18th

February, 1982 was in reality a sham for a money lending
transaction between the Deceased and one Mookapillai s/o

15

Arumugam Pillai, the husband of the Ponnamal, wherein the

said Mookapillai lent the Deceased a sum of $300,000 to be
repaid with interest at $120,000 on or before 18th December
1982.

20

10. The real value of the said land in 1982 was $5,000,000 but it
was deliberately undervalued as $3,000,000 in the alleged Sale
Agreement.

25

11. Moreover, the alleged Sale Agreement made no mention of the

acquisition of part of the land by the authorities. Ponnamal has
purported unilaterally and without any authorisation to deduct
from the purported sale price a sum equivalent to the value of
the acquired land.

30

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12. Further, notwithstanding that the alleged Sale contract had
elapsed through non-completion by the completion date, and
the death of the Deceased before completion, the Ponnamal
purported to apply for Foreign Investment Committee F.I.C.
5

approval and complete the alleged sale.

13. Notwithstanding the above matters and inspite of knowledge of

the same the 1st Defendant has purpoted to consent to the
10

alleged sale and/or the Order of 31st October 1985 made under
the proceedings known as Ipoh High Court Originating
Summons No. 267 of 1984, thereby depriving the estate of the
said land and perpetrading a fraud on the beneficiaries and the
estate.

15

The Plaintiff avers that the said consent of the 1st

Defendant is a nullity and the said Consent Order is in

consequence a nullity.
14. The Plaintiff further avers that there was collusion between the
1st Defendant and Ponnamal to deprive the estate of the

20

Deceased of the said land. The Plaintiff contends that this is

fraud on the estate and the beneficiaries thereof.
15. The Plaintiff further avers that the procedure in the proceedings
Ipoh High Court Originating Summons No. 267 of 1984 and the

25

Orders sought thereunder amounted to a decree of specific

performance of the alleged Sale Agreement and was clearly
wrong. Notwithstanding the patently wrong procedure the 1st
Defendant purported to consent to the said application of
Ponnamal.

30

The said consent and the order thereon was a

nullity.

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15A.On 17 February, 1997 the Supreme Court gave judgment and
pronounced against the alleged Will declaring the same to be a
forgery. In the circumstances, all steps and actions taken by
the 1st Defendant under the alleged Will are a nullity including
5

and in particularly his attendance in Court on 31 October 1985

through his Counsel to give consent to the purpoted sale in his
capacity as Executor under the alleged Will.
15B. Further the Supreme Court by its Order of 17 February 1997

10

expressly revoked the Grant of Probate in favour of the 1st

Defendant granted by the Ipoh High Court vide Probate Petition
No. 152 of 1984 on 21 August 1984. Accordingly, all actions
and sanctions or consents given or steps taken by the 1st
Defendant in his capacity as Executor under the said Grant of

15

Probate is void and of no effect.

15C. Further by reason of the judgment of the Supreme Court aforestated
and the Orders made therein, the 1st Defendant could not have
validly represented the Estate of Nadarajah in any proceedings.

20
15D. In particular the Plaintiff says that the purported Order of 20 April
1984 appointing the 1st Defendant who had held himself out as the
Executor appointed under the alleged Will, to represent the Estate of
Nadarajah was a nullity by reason of the said Will being declared a
25

forgery. Further the Plaintiff will contend that the conduct of the 1st
Defendant in the said Will forgery proceedings in failing to give
evidence on oath to deny the allegations against him and actively
setting up a Will that was pronounced a forgery, shows his complicity
in defrauding the Estate of Nadarajah and further that his

30

involvement in the instant proceedings in purporting to represent the

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64
Estate and give consent and to receive payment from Ponnamal is
part of a single scheme to defraud the Estate.

[72] Those paragraphs of the Amended Statement of Claim amongst

others, contain averments about the Plaintiff and the Defendant
being in dispute as to who was the lawful Administrator of the Estate
of the deceased, the Plaintiff being the Administrator of the Estate
vide the Court order dated 16/8/83, the First Defendant purporting to

10

be the executor of the deceaseds estate and obtaining an order of

probate in the High Court Petition No. 152 of 84 relying on an
alleged will of the deceased dated 7.2.1982 without disclosing to the
High Court of the prior grant of Letter of Administrator (LA) to the
Plaintiff, and the Plaintiffs action to impeach the alleged will in

15

Originating Motion No. F 54 of 1984 culminating in the Federal Court

Order on 17.2.1997 declaring the alleged will to be a forgery.
Consequently, it was averred by the Plaintiff that the First Defendant
could not claim any right or justification for his action under the
forged will, and accordingly, all actions and sanctions or consent

20

given or steps taken by the First Defendant in his capacity as

Executor under the said Grant of Probate was void. Clearly, that
essentially is the pleaded case of the Plaintiff in seeking to set aside
the Consent Order as being a nullity/or null and void. Of course lest
it be forgotten, the other material matter pleaded was that the

25

agreement in reality was a sham money lending transaction. But as

we have said earlier, the focus of the second leave question is not
the averment that the sale was a sham money lending transaction
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65

itself, but the non-disclosure of the Interpleader Summons filed by

Mr Seeralan. Indeed, the issue of whether the sale was a sham
money lending transaction was adjudicated in the trial before the
High Court which concluded [and in our view rightly] that the Plaintiff
5

had failed to prove on the balance of probability that the agreement

was a sham transaction for the cover up of an illegal money lending
transaction. In fact in arriving at that conclusion the learned High
Court Judge had among other evidence, duly considered Mr.
Seeralans allegation in his affidavit that the sale was a cover up for

10

a money lending transaction.

[See paragraphs 24 to 25 of this

judgment]. It appears to us that the non-disclosure of the

Interpleader Summons as a ground of challenge to the validity of the
Consent Order was an indirect way of reviving or relitigating the
issue of whether the sale was a sham money lending transaction
15

which had been decided by the High Court [and the decision of
which was affirmed by the Court of Appeal). More importantly, we
find that the non disclosure of the Interpleader Summons filed by Mr.
Seeralan under O. 17 r 1(a) of the RHC 1980 was never pleaded by
the Plaintiff as a separate and/or alternative ground in seeking to

20

nullify and set aside the Consent Order. Since this issue and the
material facts to support it were not pleaded by the Plaintiff in his
Amended Statement of Claim, the Plaintiff could not be allowed to
succeed and obtain judgment on it on appeal. In the circumstances
we do not find it necessary to answer the second question [see

25

Ambank (M) Berhad (yang sebelum ini dikenali sebagai ArabMalaysia Bank Berhad) v. Lukman Kamil Bin Mohammed Don

65

66

[2012] MLJ 56, F. C., Lee Ah Chor v. Southern Bank Bhd. [1991]
1 MLJ 428, S. C, Pengarah Jabatan Pengangkutan Negeri
Selangor & Ors v. Sin Yoong Ming [2015] 1 MLJ 1, F.C. Datuk M
Kayveas v. See Hong Chen & Sons Sdn Bhd & Ors [2014] 4 MLJ
5

64, F.C.].
[73] In the result and for the reasons we have given the Plaintiffs
appeal is dismissed with costs.

10

[74] The decisions and orders made by the Courts below are
affirmed.

15

(TAN SRI AHMAD HAJI MAAROP)

Federal Court Judge
Malaysia.
20

Dated : 17th June 2015

Counsel for the Appellant

25

66

Dato Cyrus V. Das

En. T. Sudhar
Tetuan Shook Lin & Bok
Peguambela & Peguamcara
20th Floor
AmBank Group Building
55 Jalan Raja Chulan
50200 Kuala Lumpur.

67

Counsel for the First Respondent :

Dato Bastian Vendargon

Cik Annemarie Vendargon
Tetuan Dev Pillai & Co
Peguambela & Peguamcara
51-03-1, (3rd Floor)
Lorong Batu Nilam 1A
Bandar Bukit Tinggi
41200 Klang
Selangor Darul Ehsan.

Counsel for the Second Respondent:

Dato Malik Imtiaz Sarwar

En. Pavendeep Singh
En. Ramesh a/l Kanapathy
En. Lee Sit Cheng
Tetuan Chellam Wong
Unit L-06-08, No. 2
Jalan Solaris
Solaris Mont Kiara
50480 Kuala Lumpur.

10

15

20

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