The court ruled that noncompliance with mandatory prerequisites in probate actions is fatal, reinforcing the binding effect of consent judgments on the parties involved.

Amarjeet Singh Serjit Singh JC:

[1] This is an application by the defendants to strike out the plaintiffs' writ and statement of claim under O 18 r 19(1)(d) of the Rules of 2012 (enclosure 29). The plaintiff contended that the civil suit was a probate action which did not comply with O 72 of the Rules of 2012 and the plea of res judicata has rendered the said civil suit or part thereof an abuse of the process of the Court.

[2] On 13 December 2021, I dismissed the application. This judgment contains the reasons for my decision.

Background Facts

[3] The case concerns a dispute concerning the administration of the estate of one Venkatachalam Chettiar who passed away testate on 8 March 1985 ("the deceased" and "the estate"). The grant of probate for the estate was issued on 26 October 1993. The beneficiaries of the estate are the two plaintiffs and the 2nd defendant. The executors of the estate are Swaminathan Chettiar, since deceased, the defendants and the 2nd plaintiff. The plaintiffs and the 2nd defendant are Indian nationals residing in India while the 1st defendant, a Malaysian citizen, is the only executor of the estate within jurisdiction and who has direct control over assets of the estate.

[4] The 1st defendant is also the beneficiary of the estate of Swaminathan Chettiar who was the deceased's brother. Both Swaminathan Chettiar and the deceased were co-proprietors of various properties wherein the latter held 1/8 shares of such properties.

2014 Consent Order

[5] On 4 January 2012, the plaintiffs commenced Penang High Court Civil Suit 22NCvC-2-01/2012 against the defendants. It was alleged by the plaintiffs therein that the 1st defendant had breached his fiduciary duty by failing to distribute the estate according to the terms of the will, account for and/or to keep accounts for the income and expenses of the said estate, misappropriated monies of the estate and failed to distribute monies from income and proceeds received by the estate to the beneficiaries since the passing of the deceased. The principal reliefs sought in that civil suit were: (i) an account for all monies received and expensed by the 1st defendant; (ii) payment of monies due to the plaintiffs from the estate; (iii) the removal of the 1st defendant as executor; and (iv) damages.

[6] On 18 September 2014 the parties entered into a consent judgment with the following terms ("the 2014 Consent Judgment"):

(a) The 1st defendant is to render the accounts of the estate of the deceased for the years 206 to 2014 and the accounts are to be kept at No 140, Penang Street, Penang whereby all the beneficiaries are given access to the said accounts.

(b) The immediate sale of certain identified properties and the manner the proceeds of sale are to be distributed;

(c) The vesting of certain identified properties in favour of the 1st defendant and/or the 2nd defendant upon payment of the value of the plaintiffs' portion failing which the manner in which the said properties are to be vested in the parties;

(d) The sale of certain identified properties within 2 years failing which how the said properties are to be vested in the parties;

(e) All the unsold properties registered in the name of the deceased or jointly with the estate of Swaminathan Chettiar or any other person shall belong to the parties in the following proportions: 1st plaintiff 1/6 share; 2nd plaintiff 1/6 share; 1st defendant 1/2 share; and 2nd defendant 1/6 share;

The Present Civil Suit

[7] The plaintiffs in the present civil suit pleaded in paras 13 to 21 that the 1st defendant breached the 2014 Consent Judgment. The first breach was that:

(i) the 1st defendant while rendering the financial statements, notations on hand-written ledgers and tax computations did not give or allow access to documents such as vouchers, agreements, receipts and bank statements to verify the accounts that were rendered; and

(ii) the 1st defendant has failed to take action to vest the identified properties for sale that remained unso