Trustees under disability must have their obligations enforced to protect beneficiary rights, including the right to vest trust property and demand accountings.

[1] This case raises the following three questions:

(1) where a trust deed provides for a sole trustee to hold an interest in land for the benefit of a minor (Beneficiary) and when the sole trustee suffers a disability, what recourse is available to the Beneficiary? This concerns an application of s 48(b)(i) of the Trustee Act 1949 ( TA ). My research is not able to disclose any previous Malaysian case which has construed s 48(b)(i) ;

(2) when the Beneficiary reaches the age of majority, whether the Beneficiary can apply to Court for an order to extinguish the trust; and

(3) if the Court extinguishes the trust, whether the Court can make the following consequential orders:

(a) land compensation (paid by the State Authority to the sole trustee for acquisition of part of the land in question) should be repaid by the sole trustee to the Beneficiary; and

(b) the sole trustee shall provide to the Beneficiary a written account of the sole trustee's receipt of all rent from the land in question.

B. Background

[2] The plaintiff (Plaintiff) initially filed this originating summons (OS) against the first defendant (1st Defendant) only. In the Plaintiff's affidavit in support of the OS (encl 2), the Plaintiff alleged as follows, among others:

(1) on 9 January 2003, the 1st Defendant was registered by the Land Administrator (LA) in the Register Document of Title (RDT) under the National Land Code as a trustee for the Plaintiff in respect of ½ share [Half Share (Land)] in a piece of land held under title GM 629, Lot 6742, 14½ Mile, Jalan Cheras, Mukim Kajang, Hulu Langat District, Selangor Darul Ehsan (Land). It is to be noted that at the time of the registration of the 1st Defendant as a trustee for the Plaintiff regarding the Half Share (Land), the Plaintiff was only 5 years 16 days;

(2) in 2012, part of the Land was acquired for the construction of 11 Mass Rapid Transit Project (Land Acquisition). In respect of the Land Acquisition, the 1st Defendant was given land compensation amounting to RM249,070.00 (Land Compensation); and

(3) the 1st Defendant has suffered a stroke. Consequently, the 1st Defendant is now disabled, both mentally and physically, and cannot carry out her duties as a trustee for the Plaintiff regarding the Half Share (Land) (1st Defendant's Disability). The 1st Defendant is presently under the care of "Seavoy Nursing Home". Photographs of the 1st Defendant's Disability have been exhibited in encl 2.

[3] The second defendant (2nd Defendant) was not cited by the Plaintiff as a co-defendant in this OS but she affirmed an affidavit on 3 December 2018 (encl 6) to support an application (purportedly by the 1st Defendant) to strike out the OS (encl 7). Enclosure 6, among others, confirmed the 1st Defendant's Disability.

[4] When encl 7 was heard on 15 March 2019:

(1) the Plaintiff and 1st Defendant were represented by Encik Khairul Ariffin Bin Abdul Rahman (Encik Khairul) and Mr Cantius Leo Camoens (Mr Camoens) respectively;

(2) I drew the attention of both learned counsel that in view of the 1st Defendant's Disability, in accordance with O 76 rr 3(2) and 6(3) of the Rules of 2012 (RC), a litigation representative should be appointed to act for the 1st Defendant in this case. I reproduce below O 76 rr 3(2), 6(3), (5)(b) and (7) RC:

"Order 76 r 3(2) Except as provided by para (4) or (5) or by r 6, an order appointing a litigation representative of a person under disability is not necessary.

Order 76 r 6(3) Where in any proceedings against a person under disability that person does not appear by a litigati