Amareson A/L K.Velu [AMARESON & MEERA (PENANG)] Harbajan Kaur [MEHGALA & COMPANY (BUTTERWORTH)]

DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG DALAM NEGERI PULAU PINANG, MALAYSIA GUAMAN SIVIL NO: PA-22NCVC-184-09/2016 Antara 1. Thivager a/l G. Subramaniam (sebagai wakil diri persendirian waris kepada G. Subramaniam a/l Govindasamy, simati) 2. Nyanabel a/p S. A. Paliah (No. KP: 440528-07-5128) (sebagai pentadbir harta pesaka Ramachandran a/l Govindasamy, simati) 3. Dev Kumar a/l Santhiran (No. KP:631022-07-5603) (sebagai pentadbir harta pesaka de bonis non harta pesaka Sivagamyammal w/o Govindasamy) ... Plaintif-Plaintif Dan G. Namasivayam a/| Govindasamy (No. KP: 261021-07-5067) ... Defendan JUDGMENT Introduction [1] On 3.11.2020 the defendant filed this application to strike out the 3" plaintiff's defence to counterclaim under O. 18 r, 19(1) (a), (b), (¢) and (d) of the Rules of Court 2012 (enclosure 62). On 9.12.2021, | dismissed the application and the counterclaim on a preliminary issue raised by counsel for the plaintiffs. This judgment contains the reasons for my decision. Background [2] The action before me concerns a family dispute in respect of property that forms the estate of Sivagamyammal w/o Govindasamy (“the deceased”). At the time the writ was filed the following reliefs were sought against the defendant: (i) a declaration that the defendant was bound by the terms of a deed of arrangement dated 12.2.2011 (iii) between the beneficiaries in respect of the property of the deceased; an order that the defendant transfer property known as Lot No. 430, Mukim 12, Daerah Seberang Perai Utara, Pulau Pinang (Lot No. 430) to the third defendant, who is the administrator de bonis non for the estate of the deceased; the defendant will be paid his share of Lot No. 430 after the same is transferred to the 3 defendant; the defendant transfers 1/6 share in Lot 3065 to the 1* plaintiff and the 2°¢ defendant in 1/12 shares respectively; the defendant transfers Lot Nos. 485(1), 485(7), 457(2), and 457(6), Mukim 12, Daerah Seberang Perai Utara, Pulau Pinang to the estate of G. Subramaniam a/l Govindasamy; and (vi) damages for breaching the terms and conditions of the deed of arrangement. [3] There were a myriad of interlocutory applications and orders from the time this action was filed on 28.9.2016. The main order being the setting aside on 1.8.2019 of the judgment in default entered against the defendant on 11.1.2017. Subsequent to this order, the 3" plaintiff on 9.8.2019 filed and served a ‘defence and counterclaim’ on 9.8.2019. The defendant's counterclaim contained the following reliefs: (i) | the defendant has rights and interest as beneficiary in the estate of the deceased which is not yet distributed; (ii) the 3 defendant takes the necessary steps to transfer the defendant's share in the estate of the deceased which is not yet distributed; (iii) the 3 defendant provides an account and documents in respect of the estate of the deceased which is not yet distributed; (iv) the 37% defendant provides a true and complete inventory of the estate of the deceased which is not yet distributed since the passing of the deceased in 1967; and (v) special damages (if any) and general damages. [4] On 19.11.2019 the plaintiffs withdrew their claim against the defendant. This Court struck out the claim leaving only the defendant’s counterclaim to be determined. [5] On 18.9.2020 the plaintiffs filed their ‘reply to defence and defence to counterclaim’ while on 2.10.2020 the defendant filed his ‘reply to the defence to counterclaim’. This was followed by the defendant on 3.11.2020 filing the instant application (enclosure 62) to strike out the ‘defence to counterclaim’. Decision of the Court [6] Enclosure 62 could not be heard because the 3 defendant had passed away on 22.12.2020. An application was made to substitute the defendant with the executor of his estate, one 5 Jamuna Rani a/o Namasivayam. The application was purportedly made under O. 15 r. 7(1) of the Rules of Court 2012 which reads as follows: 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. [7] | say purportedly because the above rule merely declares that where the cause of action survives the action shall not abate by reason of death. It does not provide for the making of an application. However, O. 15. r. 7(2) allows the making of an order to substitute the deceased with another person but not the estate of the deceased. This is because upon the death of a person any person the substantive law is provided by section 8(1) of the Civil Law Act 1956 which states as follows: Subject to this section, on death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate: [8] Further, the following wordings of O. 15. r. 7(2) envisage some other person to substitute the deceased: 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] Under this provision the interest or liability of the deceased is assigned or transmitted to or devolve on some other person and an order must be sought to make that other person a party to the action and for the proceedings to be carried on as if such person has been substituted for the deceased. Upon an order under O. 15 r. 7(2) being made the following provisions of O. 15 r. 8(3) and (4) are then triggered: (3) Where by an order under rule 6 or 7 a person is to be made a defendant, the rules as to entry of appearance shall apply accordingly to entry of appearance by him, subject, in the case of a person to be made a defendant by an order under rule 7, to the modification that the time limit for appearing shall begin with the date on which the order is served on him under rule 7(4) or, if the order is not required to be served on him, with the date on which the order is sealed with the seal of the Court. The entry of appearance shall be in Form 16. (4) Where by an order under rule ... 7 a person ... is to be made a party in substitution for some other party, that person shall not become a party until — (a) ...; or (b) where the order is made under rule 7, the order has been served on him under rule 7(4) or, if the order is not required to be served on him, the order has been sealed with the seal of the Court, and where in accordance with 8 the foregoing provision a person becomes a party in substitution for some other party, all things done in the course of the proceedings before the making of the order shall have effect in relation to the new party as they had in relation to the previous party, except that an entry of appearance by the previous party is not dispense with an entry of appearance by the new party in Form 16. [10] Thus, the party who becomes a party in substitution for the deceased is required to enter an appearance in Form 16. This is clearly different where a personal representative or administrator or executor of the estate of the deceased makes an application to substitute the deceased and continue with the cause of action that survives for the estate of the deceased. [11] It is for this reason the order sought by the executor of the estate of the deceased is worded as follows: Jamuna Rani a/o Namasivayam (NRIC No. 630905-07- 6242 sebagai wasi sah dalam harta pusaka G. Namasivayam a/| Govindasamy (No. K/P: 261021-07- 5067), simati. [12] Therefore, any interest of a deceased person which has survived for the benefit of his estate, whether in a claim or counterclaim, is brought by persons clothed with the necessary locus standi such as the personal representative or administrator or executor for the estate of the deceased. It is this person who makes the application to substitute the deceased which is reflected by way of an amendment to the pleadings. [13] Whislt, the order to substitute the deceased was made after jeave was granted to make the application on 8.4.2021, no amendment was made to substitute the deceased till today. This is in non-compliance of O. 20 r. 9 of the Rules of Court 2012 which states as follows: Where the Court makes an order under this Order giving any party leave to amend a writ, pleading or other document, then, if that party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the 10 order or, if no period is so specified, of a period of fourteen days after the order was made, the order shall cease to have effect, without prejudice, however, to the power of the Court to extend the period [14] No application has been made till today for an extension of time to extend the period after the order dated 8.4.2021 had lapsed. Counsel sought an adjournment to make an application but it was already too late in the day. The order to substitute the deceased has ceased to have effect and therefore there is no proper party before this court to prosecute the counterclaim. Conclusion [15] For the above reasons | dismissed enclosure 62 and the counterclaim. “Amarjeet Sidgh Serjit Singh Judicial Commissioner High Court of Malaya at Penang Dated: 21% January 2022 a1 Counsel for the Plaintiff : Amareson A/L K.Velu [AMARESON & MEERA (PENANG)] Counsel for the Defendant : Harbajan Kaur [MEHGALA & COMPANY (BUTTERWORTH)] 12