Edgar Joseph Jr. SCJ:

In this case, the plaintiff, Shamugam s/o S. Kanapathy, in effect, claimed a declaration that he is the only legitimate child of one S. Kanapathy s/o Sinnathamby deceased ("the deceased"), who died on 1 May 1983, leaving behind no other next of kin, that as such, he is the sole beneficiary of the estate of the deceased and, so, entitled to the whole of such estate under the Distribution Act 1960 . He further claimed a declaration that the defendant Pappah d/o Chinniah Nadar, and her three children, are not the lawful wife and legitimate children of the deceased respectively, and, as such, not entitled to any share in the estate of the deceased.

Other reliefs prayed for by the plaintiff were as follows:

8.(c) an order that the defendant do forthwith render an account to the plaintiff of any of the assets of the estate of the said S. Kanapathy s/o Sinnathamby, deceased that come to her hands or possession and payment over by the defendant to the plaintiff forthwith of any money unlawfully and illegally received or collected by the defendant; (d) an interim injunction forthwith restraining the defendant and her agents or servants from in any way applying for or obtaining Letter of Administration to the estate of the plaintiff's said father S. Kanapathy s/o Sinnathamby deceased until after the trial of this action or until the further order of this Honourable Court; (e) an interim injunction forthwith restraining the defendant and her agents or servants from in any way soliciting for payments or receiving the payments or any of them from the State Government of Perak or its agencies for the supply of toddy by the plaintiff's said father S. Kanapathy s/o Sinnathamby deceased, during his lifetime to the State Government of Perak or its agencies until after the trial of this action or until the further order of this Honourable Court; (f) an interim injunction forthwith restraining the defendant and her agents or servants from in any way dealing with the assets of the estate of the plaintiff's said father S. Kanapathy s/o Sinnathamby deceased, until after the trial of this action or until the further order of this Honourable Court. (g) an order that all moneys payable by the State Government of Perak and Penang and their agencies in respect of toddy supplied by the plaintiff's said father during his lifetime be paid to the plaintiff abovenamed as the sole legal next of kin and beneficiary to this estate.

On the other hand, the defendant alleges that she is the lawful widow of the deceased, who she married on 6 August 1967, and that there are three children of this marriage, namely, Santhi, Krishna Veni and Vengai Valanattan. The defendant further denies that the plaintiff is the son of the deceased because his natural father is one Ramiah Nadar, the younger brother of the deceased. Accordingly, the defendant contends that the plaintiff is not entitled to any share in the estate of the deceased and so his claim should be dismissed.

A preliminary objection had been raised by Counsel for the defendant in his written submission - though only after the conclusion of the hearing on the merits - that the procedure adopted by the plaintiff in commencing these proceedings by way of writ is wrong and that, in any event, the Court has no jurisdiction to adjudicate on the issue of legitimacy and marriage.

As regards the objection to the procedure adopted by the plaintiff, Counsel for the defendant has contended that the plaintiff should have proceeded by way of petition under s. 5 of the Legitimacy Act 1961 , which provides:

5.(1)A person claiming that he or his parent or any remoter ancestor became or has become a legitimated person may, whether domiciled in Malaysia or elsewhere apply by petition to the High Court praying the Court for a decree declaring that the petitioner is the legitimate child of his parents, or that his parent or remoter ancestor was legitimate; and the High Court shall have jurisdictio