Terrell A-G CJ:

The facts and arguments sufficiently appear from the judgment.

This is a motion to revoke the probate of the will and codicil of the testator which was granted to the respondent on 18 November 1925.

By his will and codicil the testator appointed the respondent, who was his brother, executor and trustee, and declared certain trusts of his immovable property in Singapore until the expiration of the period of 21 years from the death of the survivor of his children. Pending the period of distribution the trustee was to divide the rents as therein provided. There is no allegation that these trusts have not been faithfully carried out.

By cl 6 of his codicil the testator directed as follows:

If my brother Ally bin Ahmad bin Ali al Tway Basalamah should not be living at the time of my death or should decline or be incapable to act as my Executor and Trustee of my said will, I declare my son Shaik Abubakar bin Abdullah bin Ahmad al Tway my Executor and Trustee, and failing him, my next eldest son living at time of my death.

Shaik Abubakar, the testator's eldest son, predeceased him, and the next in succession is the present applicant.

It appears that the respondent having administered the estate for nine years, left for Arabia in June 1934 and has not returned. It is stated in the applicant's affidavit and not denied, that he has no intention of returning. Before leaving Singapore he gave a joint and several Power of Attorney in favour of Shaik Ali bin Awath al Tway and the applicant. This Power of Attorney is general in its terms and makes no special reference to the estate of the above named testator. The Power of Attorney is not such a Power of Attorney as is contemplated by s. 27 of the Trustees Ordinance (Cap. 59), but presumably it has so far proved adequate for the purpose of the collection of the rents of the properties which are subject to the trusts of the will and codicil.

The applicant asks the Court to revoke the grant of probate and to make a fresh grant in the applicant's favour on the ground that the respondent having left the country is "incapable of acting as Executor".

I do not say that the Court has no jurisdiction under s. 31 of the Probate and Administration Ordinance to revoke even a grant of probate, but in the words of the section such revocation must be "for sufficient cause", and the Court clearly has a discretion. The jurisdiction might well be exercised if a sole executor had become insane before he had fully administered the estate, and there may be other cases in which a revocation would be desirable. In the present case, however, there is no suggestion of maladministration and the Court will not lightly revoke the appointment of an executor who had the testator's confidence. A fatal objection is that it is now 15 years since the testator died and, in the absence of evidence to the contrary, I am entitled to assume that the administration has been completed long since, and that the respondent, who was originally executor and trustee, now functions in the latter capacity only. It may be that the applicant is entitled to make an application under the Trustees Ordinance, but with that I am not concerned.

I am satisfied that the application to revoke the probate is misconceived and must be dismissed with costs.

Motion dismissed.