JUDGMENT

Hasan Lah JCA:

Introduction

[1] This is an appeal by the defendants against the decision of the High Court at Kuala Lumpur dated 5 January 2006 whereby the High Court had allowed the plaintiffs' claim against the defendants.

[2] On 25 June 2007, after hearing submissions of counsel from both parties, we allowed the appeal with costs.

Facts Of The Case

[3] The plaintiffs are the lawful children and lawful issues of their mother, Bon Tong @ Low Boon Siew.

[4] The plaintiffs' mother was the lawful daughter and issue of her father, Low Moh, deceased.

[5] The plaintiffs are the lawful grandchildren and lawful issues of Low Moh, deceased.

[6] The defendants are the lawful sons and lawful issues of the said Low Moh, deceased.

[7] The 2nd defendant, Low Huck Tuck @ Low Hock Tay is now deceased.

[8] The plaintiffs' mother and the defendants were siblings.

[9] The plaintiffs' mother died intestate on 22 September 1966. She predeceased her father, Low Moh.

[10] The said Low Moh died intestate on 11 January 1977 leaving behind a lawful widow and ten lawful children surviving him, including the defendants.

[11] By grant of Letters of Administration dated 14 October 1977 issued by the High Court of Kuala Lumpur, the defendants (being maternal uncles of the plaintiffs) were jointly appointed as administrators of the estate of Low Moh, deceased.

[12] The co-administrator (the 2nd defendant - Low Hock Tuck @ Low Hock Tay) died intestate on 23 February 1999, leaving the 1st defendant as the sole surviving administrator of the estate of Low Moh, deceased.

[13] Assets of the estate of Low Moh, deceased were:

(a) 1/10 portion in each of the 22 pieces of land in Mukim Klang, Seksyen 1, Port Swettenham;

(b) Land known as C.T. 10102 Lot 390, Seksyen 67, Bandar Kuala Lumpur;

(c) 1/2 of the unindivided portion in each of two pieces of land known as C.T. 11023 Lot 3910 and EMR 2426 Lot 1168 both the same in Mukim Kuala Lumpur;

(d) 1/8 portion in each of the five pieces of land in Mukim Batu Segambut;

(e) fixed deposit receipt no. 030686 in Lee Wah Bank, Medan Pasar Kuala Lumpur for the amount of RM185,222.50;

(f) fixed deposit receipt no. 030687 in Lee Wah Bank, Medan Pasar Kuala Lumpur for the amount of RM40,275;

(g) Cash to the amount of RM279,419.07 in Kwong Yik Bank, Jalan Bandar, Kuala Lumpur.

(h) a business (inclusive of goodwill) known as Low Moh Lorry service at No. 2, Foch Avenue, Kuala Lumpur valued at RM61,447.60; and

(i) five cars valued at RM7,200.

[14] Liabilities and expenses of the estate of Low Moh, deceased were:

(a) income tax for the year of 1976: RM23,664.80

(b) income tax for the year of 1977: RM45,809.35

(c) funeral expenses: RM1,000

The Plaintiffs' Claim Against The Defendants

[15] The plaintiffs claim that by virtue of the provisions of the Distribution Ordinance 1958 and the terms of a written agreement dated 9 April 1983 ("the Deed of Family Arrangement"), the plaintiffs are entitled to 1/9th share in one of the 22 pieces of land set-out in para. 11(a) above ie, the land held under H.S. (M) 3043, P.T. No. 395 Mukim of Klang, Section 1, Port Swettenham.

[16] The plaintiffs also claim that by virtue of the provisions of the Distribution Ordinance 1958 and the terms of the Deed of Family Arrangement, the plaintiffs are entitled to:

(a) 1/9th share in the land set out in para 11(b) above ie, the land known as C.T. 10102 Lot 390, Seksyen 7, Bandar Kuala Lumpur;

(b) 1/9th share in three shop lots and seven double storey terrace houses built on parts of the two assets set out in para. 11(c) above ie, 1/2 of the undivided portion in each of two pieces of land known as C.T. 11023 Lot 390 and EMR 2426 Lot 1168 both the same in Mukim Kuala Lumpur;

(c) 2/33rd share in the remainder of the two assets set out in para. 11(c) above;

(d) 1/9th share in the assets set out in para. 11(d) above ie, 1/8 portion in each of the five pieces of land in Mukim Batu Segambut;

(e) 2/33rd share in the nett balance and nett proceeds of the assets set out in paras. 11(e) to 11(i) above