DALAM HARTA PUSAKA VELOO A/L RAMASAMY PUNGAN A/L RAMASAMY & ANOTHER

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM (BAHAGIAN SIVIL) GUAMAN SIVIL NO: BA-22NCVC-581-12/2019 ANTARA PUSHPARANI A/P VELOO (NO. K/P: 630522-10-6678) sebagai wakil kepada Harta Pusaka VELOO A/L RAMASAMY (simati) (NO. K/P: 79138) …PLAINTIF DAN 1. PUNGAN A/L RAMASAMY (NO. K/P: 8115318) 2. RAMASAMY A/L POONGAVANAM (NO. K/P: 520108-10-5365 …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction 1. By an application in enclosure 18, the Defendants apply to strike out the claim of the Plaintiff under Order 18 rule 19 (1) (b), (c) and/or (d) of the Rules of Court 2012. 1 Background facts 2. The dispute between the parties pertains to land held under GM No. 400 Lot 829, Mukim Kapar, District of Klang, Selangor (“the said land”). The dispute arose from the following antecedent events. 3. On 16.10.1976, by a Sale Agreement, Fatimah Binti Haji Ali sold her land which comprised of 489/729 undivided share of land held under E.M.R. No. 3369 Lot 829, Mukim of Kapar, District of Klang (the predecessor in title to the said land) to Subramaniam s/o Ayavoo, Nadesan s/o Masilamany and Rajoo s/o Muniandy (“the purchasers”) for a sum of $40,000.00. 4. Subsequent to the sale of the abovementioned land by Fatimah, the purchasers executed a Trust Deed dated 15.2.1984 declaring that they held the land purchased from Fatimah on trust for persons mentioned in Annexure A of the Trust Deed. There were a total of 16 persons listed in Annexure A. The terms of the Trust Deed further stated that these 16 persons were co-purchasers who provided the consideration monies of $40,000.00. The trust was also stated to be irrevocable. 5. The 1st Defendant was one of the 16 persons listed in Annexure A. His share portion of the said land was stated as 122/1467. By the terms of the Trust Deed, he was one of those who provided the consideration for the purchase of the said land. 2 6. The 1st Defendant has since sold his portion of the undivided share of 122/1467 of the said land to the 2nd Defendant. This portion was sold for a price of RM 120,000 and full purchase price has since been paid. A statutory declaration affirmed by the 1st Defendant on 11.7.2012 was exhibited. The 1st Defendant swore on oath that he had entered into an oral agreement with the 2nd Defendant to sell his undivided share of 122/1467 of the said land for RM 120,000, for which he had also received payment. 7. The 1st Defendant’s right to the land is contested on the ground that the 1st Defendant was merely a trustee of the 122/1467 portion of said land as he did not provide the funds for the purchase of the said land. The purchase money was provided by the parents of Veloo a/l Ramasamy (now deceased), who were also the parents of the 1st Defendant. Their parents had intended for the 1st Defendant to hold the property on trust for three of their male children, namely Veloo a/l Ramasamy, Muniandy a/l Ramasamy and the 1st Defendant himself. Veloo is therefore entitled to the said land as a beneficial owner of 1/3 of the 122/1467 share of the said land. 8. The Plaintiff’s case contends, inter alia, that 1st Defendant sold the entire undivided 122/1467 share of the said land to the 2nd Defendant without the knowledge of Veloo. 9. The reliefs sought in the Statement of Claim are for a declaration that the Plaintiff is a lawful owner of 40/1467 share of the said land and seeks an order from this Court that this portion be transferred to the Plaintiff. In addition, a consequential order that the Registrar 3 of the High Court be allowed to sign Form 14A to give effect to the order eventually granted by the Court, is also sought. Grounds For Striking Out 10. Against the background facts as stated above, the Defendants have premised their striking out application on several grounds stated in their application as follows:- (i) the Plaintiff does not have the necessary locus to bring the action under the Civil Law Act 1956 and the Probate and Administration Act 1959; (ii) the1st Defendant is the lawful proprietor of 40/1467 undivided share in the said land which is now claimed by the Plaintiff. The Plaintiff has not adduced any evidence of a trust; and (iii) the 2nd Defendant had bought the said land as a bona fide purchaser for value from the 1st Defendant, pursuant to the 1st Defendant’s right provided in the Trust Deed. Decision of this court 11. The law on striking out of pleadings is settled. This summary power is only to be exercised in plain and obvious cases and where the claim is obviously unsustainable. This principle has been restated in many cases. (See: Bandar Builders Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36; Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul 4 Makmur & Anor [2016] 1 CLJ 1; See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235). 12. I have considered grounds (ii) and (iii) and in view of the heavily contested facts in relation to these grounds, I hesitate to exercise the court’s summary power to strike out. However, I find merits in ground (i) and this application can be decided on the issue of locus alone. 13. For a court to take cognisance of a claim, the Plaintiff must first establish that he has the necessary locus to bring the action. The claim of the Plaintiff was initially commenced in the name of the estate of Veloo a/l Ramasamy. The Plaintiff was cited as ‘Dalam Harta Pusaka VELOO A/L RAMASAMY (simati)(NO. K/P.: 7931383). Veloo passed away on 26.2.1986. Subsequent to the filing of this suit, by an exparte application made on 10.1.2020, the Plaintiff applied to amend the name of the Plaintiff to ‘Pushparani s/p Veloo (NRIC No: 630522-106678), as personal representative of the estate of Veloo a/l Ramasamy.’ The application was made under O 15 rule 6A, 7 and 8 of the Rules of Court 2012, and/or section 8 of the Civil Law Act, 1956 read together with O 20 rule 1. The Plaintiff’s application was granted by the Court on 5.3.2020. 14. I must at this stage, state that I respectfully disagree with the order granted. The application under O 15 rule 6A, 7 and 8 was totally misconceived. 5 15. Veloo passed away well before this action was instituted. Whilst section 8 of the Civil Law Act, 1956 provides for survival of causes of action vested in the deceased for the benefit of his estate, the suit must be commenced following the rules of procedure providing for the same. The suit was clearly intended to be brought for the benefit of the estate of Veloo. However, the manner it was done was contrary to both procedure and substantive law. 16. An application under O 15 rule 6A of the Rules of Court 2012 is made in circumstances provided as follows, Proceedings against estates (O. 15, r. 6A) 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. (2) Without prejudice to the generality of paragraph (1), an action brought against “the personal representatives of A. B. deceased” shall be treated, for the purposes of that paragraph, as having been brought against his estate. (3) 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) In any such action as is referred to in paragraph (1) or (3)— 6 (a) the plaintiff shall, during the period of validity for service of the summons, apply to the Court for an order appointing a person to represent the estate of the deceased 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 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 terms as it thinks just and either of its own motion or on 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 may be effectually and completely determined and adjudicated upon. 17. The above provision is intended to apply to a situation where the Plaintiff wishes to pursue a claim against a deceased person, but no grant of probate or of administration has been made to the estate of a deceased person. O 15 rule 6A then provides a recourse to the Plaintiff by allowing a suit to be brought in the name of the personal representative of the estate of the deceased. Where the Plaintiff makes such an application, then the provisions of O 15 rule 6A(4)(a) applies. 18. The Federal Court in the case of Poraviappan a/l Arunasalam Pillay (suing as administrator of estate of the late Nadarajah a/l Sithambaram Pillai) v Periasamy a/l Sithambaram Pillai & Ors 7 (on behalf of personal representatives of the estate of Ponnamal a/p Ramasamy the deceased) [2015] 4 MLJ 285 has clearly enunciated the legal position on O 15 rule 6A as follows, [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 deceased defendant until letters of administration were extracted. O 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 against a deceased defendant without first ascertaining the administrator or executor of the estate and obviates the risk of limitation setting in (see Malaysian Civil Procedure 2013) 159). ….. [51] In explaining the object of O 15 r 6A of the RHC 1980 in Kerajaan Malaysia v Yong Siew Choon the Federal Court said at p 9:[2015] 4 MLJ 285 at 310: 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 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. ………. [55] O 15 r 6A(4)(a) of the RHC 1980 provides for the following two alternative situations: 8 (i) the plaintiff shall apply to the Court for an order appointing a person to represent the deceased's estate for the purpose of the proceedings; or (ii) 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. 19. Clearly, O 15 rule 6A applies where the estate of a deceased is the intended defendant. It has no application in the case of a deceased who has passed away but which cause of action survives, and a suit is intended to be commenced on behalf of the estate. 20. Order 15 rule 7 is also not applicable to the Plaintiff. The provision states, Change of parties by reason of death (O. 15, r. 7) 7. (1) Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy. (2) Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it is necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first-mentioned party. An application for an order under this paragraph may be made ex parte. 9 21. O 15 rule 7 applies in a situation where a plaintiff or a defendant, having commenced a suit or having been sued in an action, dies before the suit is determined. The provision allows for a substitution of parties to allow the proceedings to continue. 22. The factual matrix here is different. Veloo passed away before the suit was filed. O 15 rule 7 relied on in the application to amend the name of the Plaintiff, is of no application here. 23. Although O 15 rule 8 was also relied on in the earlier application to amend the name of the Plaintiff, this provision applies only if an order has been granted under rule 6 or 7 of the same Order. It is therefore irrelevant in this instance. 24. I add a note of comment here. The Statement of Claim suffers from serious defects right from the start. Apart from erroneously referring to the “Estate of Veloo a/l Ramasamy, deceased” as the Plaintiff prior to the amendment, the Statement of Claim and the entire paragraphs contained therein leaves no doubt that whenever the Plaintiff is mentioned, it is in fact a reference to Veloo. Veloo is the party claiming for the 40/1467 undivided share of the said land held on trust by the 1st Defendant, pursuant to an alleged trust created by their parents. 25. The amendment of the Plaintiff to “Pushparani a/p Veloo, as personal representative of the estate of Veloo, the deceased” has not corrected any earlier error. This has unfortunately compounded the errors made, and added to the confusion, as the Statement of Claim was not amended. All references to the Plaintiff in the 10 Statement of Claim, which prior to the amendment, meant Veloo, now refers Pushparani a/p Veloo. This has created an incongruous pleaded claim as the capacity of both Pushparani and Veloo are different. 26. The Plaintiff contends that the Defendants did not apply to set aside the ex parte order of 5.3.2020 amending the name of the Plaintiff. The Defendants are not obliged to do so. If the amendment allows them to now take an application to strike out on the grounds that the Plaintiff has no locus to bring an action, they are entitled to do so. 27. Pushparani is the daughter of Veloo. For Pushparani to bring an action for the estate of Veloo, she must have either obtained a letter of administration or probate, failing which she lacks the necessary locus to bring the action. She cannot in law, sue in the capacity as a personal representative of the estate. Case laws are replete on this point. 28. In Dato' Ramesh a/l Rajaratnam v Datin Zaleha bt Abd Rahman & Ors [2014] 6 MLJ 651, in discussing numerous decided authorities on the issue, the Court of Appeal concluded, Malaysian courts have repeatedly given recognition to the rule that an administrator must have the sealed order of the High Court before getting entangled in any legal proceedings in court. 29. In Deraman & Ors v Mek Yam [1977] 1 MLJ 52, the Plaintiffs who were beneficiaries to the estate of their father, brought a suit against the Defendant who had successfully got himself registered 11 as the owner of part of the land formerly owned by their late father. The Federal Court held, Furthermore, the appellants have no legal title. They never had. They are only beneficiaries of their father's estate. The only person who could have legal title after their father's death would be the legal representatives of the estate. There was no evidence of any legal representatives having been appointed. On that ground also the appellants have no right to bring an action under section 10(1)(a) of the Ordinance. The action ought to have been dismissed as the appellants have no right or cause of action. (See also: Amanah Raya Bhd (suing as administrator for the estate of Kantilal Prabhulal Doshi, deceased) v Jigarlal Kantilal Doshi & Ors and other suits [2014] 6 MLJ 629, Ang Hoi Yin v Sim Sie Hau [1969] 2 MLJ 3). 30. These authorities have consistently held that a person who institutes an action on behalf of the estate of a deceased person can only do so after letters of administration or probate have been extracted. Conclusion 31. As the suit brought by Pushparani a/p Veloo as a personal representative of the estate of Veloo is clearly contrary to procedure and established legal principles on the bringing of an action on behalf of an estate of a deceased, the action cannot be maintained. 12 32. The application of the Defendants is allowed and the suit struck out. Having decided so, I would also add that the merits of the Plaintiff’s suit have not been determined in any way, by these proceedings. Costs of RM 1000 is to be paid to both the Defendants. Date: 16th November 2020 -SGD- ……………………….. Alice Loke Yee Ching Judicial Commissioner High Court of Malaya Counsel for Plaintiff : Mr. Hariharan Kuppusamy Tetuan Hariharan Kuppusamy & Co Counsel for the Defendant : Mr. Siva Ganish Sundrarajoo Tetuan Siva Ganish 13