A beneficiary's status under Faraid does not inherently provide caveatable interest in property not formally recognized as part of the deceased's estate; interests must be immediate and verifiable.

See Mee Chun J:

Introduction

[1] Enclosure 1 is the Applicant's application to remove a caveat entered by the Respondent on the land HSD 56 No Lot LO 361 Bandar Kluang, Daerah Kluang, Johor (Land) on 12 November 2019. On the land is situated Hotel Ailang (Hotel) of which the registered proprietor is Ailang Holding Sdn Bhd (Company).

Trust Deed

[2] Pursuant to a Trust Deed dated 10 October 2019 (Trust, exhibit WML-2, enclosure 2), one Wong Chong Yee @ Ashraf (Settlor/Ashraf) appointed the Applicant to be the sole trustee of his 300,005 ordinary shares (trust shares) in the Company.

[3] It was declared inter alia in the Trust that the Settlor has executed all the necessary documents for the Applicant to be appointed as the sole director of the Company and the trust shares to be transferred and vested onto the Applicant wherein the Applicant shall have full authority to run, operate and manage the Hotel and the Land (clause 1). Clause 2 provided the Applicant to have the absolute power and discretion to sell and dispose of the Hotel and the Land and hold the proceeds on trust for the benefit of the Trust.

Hibah

[4] Prior to the Trust, Ashraf had earlier executed a Dokumen Pengisythiran Hibah dated 25 July 2019 (Hibah, exhibit SW-2, enclosure 4). Pursuant to the Hibah, the Land and the Company were gifted to the Applicant.

Faraid

[5] On 9 July 2020 an order for faraid (Faraid) was granted by the Muar Syariah High Court for the estate of Ashraf (exhibit A-1, enclosure 6). The beneficiaries were the Applicant (1/3 share) and the Respondent (2/3 share).

Parties

[6] The Applicant, Respondent and Settlor/Ashraf are siblings and Muslims Ashraf passed away on 10 December 2019.

Cause Papers

[7] Other than the Originating Summons (OS) in encl 1, the relevant cause papers are as follows-

a) The Applicant's Affidavit in Support affirmed by the Applicant on 19 June 2020 (AIS, encl 2);

b) The Respondent's Affidavit in Reply affirmed by the Respondent on 13 July 2020 (AIR, encl 4);

c) The Applicant's Affidavit in Reply affirmed by the Applicant on 23 July 2020 (Applicant's AIR, encl 5);

d) The Respondent's Affidavit in Reply (2) affirmed by the Respondent on 11 August 2020 (Respondent's AIR (2), encl 6);

e) The Applicant's Affidavit in Reply (2) affirmed by the Applicant on 14 August 2020 (Applicant's AIR (2), encl 7); and

f) The Respondent's Additional Affidavit affirmed by the Respondent on 2 September 2020.

Issue

[8] The issue as presented by the Applicant was on what amounted to a caveatable interest and arising therefrom the removal of the caveat as laid down in s 327 of the National Land Code 1965 (NLC).

[9] On the part of the Respondent, it was raised that the OS ought to be converted into a writ as there were too many disputed issues of facts. On the merits of the OS it was contended the Trust was not valid and that the Respondent has a caveatable interest based on the Faraid granted.

Conversion Into A Writ

[10] From para 26 of the Respondent's submission the dispute of law and fact centred on the validity of the Trust; whether Ashraf's estate ought to be governed by the Hibah, Trust or Faraid and whether the shareholding of the Company and that of the Land formed part of Ashraf's estate.

[11] The Court was of the considered opinion that the primary issue was on the caveat entered by the Respondent. The validity or otherwise of the Trust would indeed be considered by the Court as to whether the Applicant has the locus to commence the OS. The same too for the other issues, if indeed they were relevant.

[12] There was therefore no necessity to convert the OS into a writ.

[13] Reference to Leong Yeu Moi v. Neo Ai Si , [2015] 10 MLJ 518 was made where it was said an OS is not an appropriate mode to decide the existence or validity of a trust. In that case what was sought was a declaration of trust based not on a written document. Here there is a Trust Deed reduced into writing which was not challenged until the present OS.

Law On Caveat

Whether The Applicant