Vincent Ng Kim Khoay J:

This was an ex parte application by the applicant for an order that a piece of land held under Suratan Hakmilik Sementara H.S. (D) 1500 for Lot No. PT 003769 in Mukim 9, Daerah Seberang Perai Selatan, Negeri Pulau Pinang (the said land) be vested according to the shares and in favour of the beneficiaries named in the will of the deceased named Teoh Cheow Choon.

The affidavit of the applicant dated 12 April 1994 (Encl. 1) filed on 13 April 1994 in support of the Saman Pemula (Encl. 2) states as follows:

1. The applicant was the executrix and trustee for the estate of Teoh Cheow Choon (the deceased).

2. The said deceased died on 31 December 1976 and the Grant of Probate had been issued by the Penang High Court vide Probate No. 365 of 1977.

3. The said deceased died, possessed of and entitled to the whole of the undivided share of the said land.

4. Pursuant to paragraph 4 of the Last Will and Testament of the deceased dated 3 December 1976, the deceased had bequeathed the said land to the following names:

(i) Khor Hong Luang (I/C No. 2557589) Deceased's wife ... 2/11 shares.

(ii) Teoh Chin Seng (I/C No. 2557510) Deceased's son ... 2/11 shares.

(iii) Teoh Chin Kwang (I/C No. 2555928) Deceased's son ... 2/11 shares.

(iv) Teoh Chin Hua (I/C No. 4044239) Deceased's son ... 2/11 shares.

(v) Teoh Tong Giap (I/C No. A 0877959) Deceased's son ... 2/11 shares.

(vi) Teoh Tong Keat (I/C No. 6781031) Deceased's grandson ... 1/11 shares.

5. The applicant has paid the debts, funeral expenses and estate duty for the said land.

6. There is no minority interest in the estate of the deceased.

7. In this premises, the applicant prays for order in terms for the application.

This application by an executor for a vesting order - unfortunately, a common phenomenon in many High Courts in the country on any given chamber day in a Court fixture - was misconceived for being unwarranted and wholly superfluous. The application stems from a common misconception among lawyers here about the purpose of a vesting order which, among its repertoire of reliefs, the Court is empowered to give in dispensing justice; a misconception which, incidentally, has also revealed a manifest failure on the part of a law practitioner to appreciate the markedly different powers and role of executors on the one hand and administrators on the other (both commonly referred to as personal representatives) of the deceased's estate.

It has been the common practice of lawyers to apply to Courts for vesting orders in cases where the personal representatives of an estate have taken out Probate or Letters of Administration. In cases where an applicant is issued with the Grant of Letters of Administration he should only apply to the Court for leave to distribute but never, a vesting order, whereas an executor who is armed with a Grant of Probate with Will annexed need not make any such application either for leave or vesting order. Such wholly unnecessary applications (albeit ex-parte) by executors for vesting orders only clutters the Court's already heavy Chamber list and should not only be strongly disapproved but dismissed by the Court.

An administrator is a person who obtains his authority solely from the grant of Letters of Administration and to whom representation of the deceased is committed by the Court in default of an executor. His office resembles that of an executor but, since he has not been selected by the deceased, he is, in general, obliged to give a bond with sureties for the due performance of his duties which (in regard to immovable property) he could perform only with the sanction of the Court, by way of an application for leave to distribute or transfer. As he derives his authority and powers only from the Court, s. 60 (4) of the Probate and Administration Act 1959 , provides that he cannot without previous permission of the Court:

(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable prope