A Deed of Family Arrangement does not create a trust over properties; registered owners can deal with their properties independently, and claims lacking cause of action may be dismissed.

Akhtar Tahir J:

Introduction

[1] The Plaintiffs are seeking a Declaration from the Court against the Defendant who is their brother, that the properties left behind by their parents are trust properties and therefore should be disposed accordingly, for the benefit of all the siblings.

[2] The Plaintiffs applied that the issues in this case to be determined by way of O 33 or O 14A of the Rules of Court 2012("the Rules") without the necessity of a full trial.

[3] The provisions of O 33(2) and O 14A are reproduced here for ease of reference:

2. Time of trial of questions or issues (O 33 r 2)

The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

1. Determination of questions of law or construction (O 14A r 1)

(1) The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that:

(a) such question is suitable for determination without the full trial of the action; and

(b) such determination will finally determine the entire cause or matter or any claim or issue therein.

(2) On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.

(3) The Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question.

(4) The jurisdiction of the Court under this Order may be exercised by a Registrar.

(5) Nothing in this Order shall limit the powers of the Court under O 18 r 19 or any other provisions of these Rules.

[4] After hearing submissions from both parties, the Court allowed the application. The disposal of the issue in this case rested upon the Court's interpretation and construction of a Deed of Family Arrangement (DOFA) which was executed by the parents as well as the Plaintiffs and the Defendant.

Dofa

(This Document Is Reproduced In Full For Ease Of Reference As An Enclosure To This Judgment)

The Issue

[5] The sole question for determination in this case is whether the DOFA created a trust over the properties in dispute.

Trust?

[6] At the outset the Court noted that all the properties have been registered to the respective persons mentioned in the DOFA. In fact all the properties have been transferred as stated in DOFA itself where it is stated as follows:

1. In consideration of natural love and affection, the Parents and the Children are entering into this Deed of Family Arrangement to preserve the legacy the Parents are leaving for the Children, the grandchildren and the future generations of the Family.

2. Simultaneous with the entering of this Deed, the Parents are transferring the following properties to the Children in the following manner:

[7] Being registered owners of their properties, the persons named have an indefeasible right of the properties. This is clear from s 340 of the National Land Code

(1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.

(2) The title or interest of any such person or body shall not be indefeasible:

(a) in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

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

(c) where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.

(3) Where the title or interest of any person or body is defeas