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2022 MarsdenLR 244
HIGH COURT MALAYA GEORGETOWN
SHARMILA BANU A M ABDUL LATIF & ORS – Appellant
Versus
M K MUHAMMAD RAWTHER KADERSHA RAWTHER – Respondent
[Civil Suit No: PA-22NCvC-64-03/2021]
Claims barred by res judicata cannot be pursued if previously adjudicated, ruling deemed frivolous and vexatious.
Headnote:(A) Limitation Act 1953 – Section 23 and 29 – Res judicata – The court struck out the plaintiffs' claim on grounds of res judicata due to a prior determination in Civil Suit No:12 of 1946, which established that the properties in question were not part of the deceased's estate – Claim deemed frivolous and vexatious as properties were vested with specific beneficiaries; ruling interpreted as an abuse of process. (Paras 15, 18, 21)
Facts of the case:
The plaintiffs sought declarations regarding the intestacy of the deceased and the fraudulent transfer of properties, which they claimed should revert to the estate.
Findings of Court:
The court ruled that the previous ruling on the properties' ownership barred the plaintiffs' claims and deemed them unsustainable.
Issues
: The court addressed whether the claim was barred by res judicata and limitation, with regards to previous rulings on the properties.
Ratio Decidendi:
The claim was deemed frivolous due to the clear prior determination that the properties were not part of the estate of the deceased.
Result:
The plaintiffs' writ and statement of claim were struck out.
JUDGMENT
Introduction
[1] This is an application by the defendant to strike out the writ and statement of claim under O 18 r 19(1) (a) and/or (b) and/or (c) and/or (d) of the Rules of 2012 (Encl 10). On 23 December 2021, I allowed the application and struck out the claim. This judgment contains the reasons for my decision.
Background
[2] On 17 August 1943, one Ana Mohamed Rawther bin Amir Mohideen passed away (hereinafter referred to as "the deceased"). The 1st, 2nd, 3rd, 4th and 6th plaintiffs and the defendant are the deceased grandchildren. The 5th plaintiff is the deceased son-in-law. The plaintiffs pleaded case is that the deceased died intestate and at the time of his death was the owner of 9 properties all of which are situated in s 4, Jelutong Town, North-East District, Penang now bearing the following title numbers: 172113, 172114, 172115, 172116, 172117, 172118, 30384, 30386 and 30387 ("the 9 properties"). The plaintiffs claim that no letters of administration were ever taken out to administer the estate of the deceased.
[3] It is pleaded that the deceased left behind three wives and ten children. They were Kasir Ammal (first wife), Ummasali Ammal (second wife) and Nyak Wan binti Che Ahmad (third wife):
(a) The children with the first wife are:
(i) AM Jaiton Ammal (the 2nd plaintiff's mother);
(ii) AM Kadersha Rawter (the defendant's father); and
(iii) Zubaidah Ammal.
(b) The children with the second wife are:
(i) Ahamed Ammal (the 3rd plaintiff's mother)
(ii) AM Abdul Kader
(ii) AM Hameed Sultan (the 4th plaintiff's father)
(iii) Janubsani (the wife of the 5th plaintiff)
(iv) Zaharvan Ammal (the 6th plaintiff's mother)
(v) AM Abdul Lathiff (the 1st plaintiff's father)
(c) The deceased had one child with the third wife whose name is was Abdul Zabbar.
[4] The plaintiffs alleged that AM Kadersha Rawter had fraudulently caused to be transferred into his name the 9 properties without the knowledge of the other lawful beneficiaries of the deceased which at the material time were the deceased's wives and children. The 9 properties were subsequently registered in the name of the defendant by way of transmission. The plaintiffs brought this action against the estate of AM Kadersha Rawter for the reinstatement of the 9 properties in the name of the deceased thereby making the same assets of the estate of the deceased. The defendant was sued in his capacity as the administrator of the estate of AM Kadersha Rawter.
[5] It was alleged that the status of the 9 properties came to light when AM Abdul Lathiff, one of the deceased's sons, came to know that the defendant had on 22 December 2006 filed an application for letters of administration to administer the estate of AM Kadersha Rawther at the Penang High Court vide Petition No 31-315-2006 and, in that application, had listed the 9 properties as assets of the said estate. It is pleaded that on 13 March 2007, upon legal advice, AM Abdul Lathiff lodged a caveat against the said application. Eventually, on 12 April 2014 the defendant obtained letters of administration to administer the estate of AM Kadersha Rawther vide Ipoh High Court Petition No 31-3-2013.
[6] In the meantime, AM Abdul Lathiff had passed away and the 1st plaintiff was granted letters of administration to administer his estate. The 1st plaintiff proceeded to lodged private caveats on the 9 properties pursuant to the National Land Code after she discovered that the 9 properties were on 16 May 2016 registered in the name of the defendant. The other plaintiffs also lodged private caveats against the said properties.
[7] There the matter rested until the plaintiffs filed the instant civil suit on 24 March 2021 wherein the following orders were sought:
(i) a declaration that the deceased died intestate; a declaration that the transfer of the 9 properties to the name of AM Kadersha Rawther is null and void and of no effect;
(ii) a declaration that the 9 properties are not assets of the estate of AM Kadersha Rawth
