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HIGH COURT MALAYA, TEMERLOH
RAMLY ALI JC
IN THE ESTATE OF YAP HONG KAI, DECEASED; YAP TECK NGIAN APPLICANT)
versus
.
PETITION NO: 31-38-1995
Decided On : 11-02-01
IN THE COURT OF APPEAL OF MALAYSIA
APPEAL FROM THE HIGH COURT OF MALAYA AT IPOH
JUDICIAL COMMISSIONER IN CHAMBERS
CIVIL APPEAL NO. W-02(NCVC)-[NUMBER]-2024
BETWEEN
YAP TECK NGIAN
(Administrator of the Estate of Yap Hong Kai, Deceased)
... APPELLANT
AND
(1) YAP [NAME OF FIRST CITATOR]
(2) YAP [NAME OF SECOND CITATOR]
(Siblings of Yap Hong Kai, Deceased)
... RESPONDENTS*
NOTICE OF APPEAL
TAKE NOTICE that the Appellant, being dissatisfied with the Decision of the Judicial Commissioner in Chambers of the High Court of Malaya at Ipoh dated [DATE OF JUDGMENT] whereby the appeal against the decision of the Senior Assistant Registrar dated 19 February 2001 (!) (!) (!) was dismissed with costs (!) , hereby appeals to the Court of Appeal upon the grounds set out in the Memorandum of Appeal served herewith and seeks the following orders:
That the Decision of the Judicial Commissioner dated [DATE] be set aside.
That the decision of the Senior Assistant Registrar dated 19 February 2001 dismissing the application to set aside and cancel the citation dated 29 November 2000 (!) (!) (!) be set aside.
That the citation dated 29 November 2000 issued under O. 72 rr. 7 and 8 of the Rules of the High Court 1980 be set aside and cancelled.
Costs of the application below and of this appeal to the Appellant.
Such further or other relief as this Honourable Court deems fit.
DATED this [DAY] day of [MONTH], 2024.
[LAWYER'S FIRM]
Solicitors for the Appellant
[Address]
[Contact Details]
To:
The Registrar
Court of Appeal
Putrajaya
AND TO:
Solicitors for the Respondents
[Details if known]
MEMORANDUM OF APPEAL
The Appellant appeals on the following grounds:
Ground 1
The learned Judicial Commissioner erred in law in holding that a citation under O. 72 r. 7 of the Rules of the High Court 1980 to bring in a grant of administration is merely a precondition to a subsequent revocation action by writ under O. 72 rr. 1(2), 2(1) and 2(3), such that the merits of revocation need not be assessed at the citation stage and only an affidavit verifying facts per O. 72 r. 8(2) is required (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) . The Respondents failed to disclose any valid grounds for revocation of the grant, which are limited to invalid wills, later wills, post-will marriage, or grants to non-entitled persons (!) (!) (!) (!) (!) (!) (!) (!) (!) .
Ground 2
The learned Judicial Commissioner erred in law in holding that O. 71, which governs non-contentious probate business including caveats under r. 41(3), does not apply to citations under O. 72 r. 7 in contentious probate actions for revocation of grants, such that no caveat is required prior to issuing such a citation under O. 72 rr. 7 and 8 (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) . A caveat was required under O. 71 r. 41 before issuance of the citation, which was not entered, rendering the procedure irregular (!) (!) (!) .
Ground 3
The learned Judicial Commissioner erred in law in holding that an application for a citation under O. 72 r. 7 to bring in a grant is made ex parte by affidavit in accordance with O. 72 r. 8 and sealed by a registry officer, without the need for a summons in Form 62 or any other originating process prior to commencement of the action by writ (!) (!) (!) . The application for citation required a summons in Form 62 as an originating process, which was not filed, rendering the citation irregularly issued (!) (!) (!) .
Ground 4
The learned Judicial Commissioner erred in fact and in law in failing to consider that unreplied allegations in the affidavits must be deemed accepted, including the absence of valid grounds for revocation and procedural irregularities (!) (!) (!) (!) .
Ground 5
The learned Judicial Commissioner erred in upholding the citation despite the Respondents' failure to demonstrate any interest entitling them to seek revocation, given the unadministered estate context and defects alleged without merit (!) (!) .
The Appellant seeks leave to raise any other grounds or arguments at the hearing of the appeal.
DATED this [DAY] day of [MONTH], 2024.
[LAWYER'S FIRM]
Solicitors for the Appellant
Ramly Ali JC:
This is an appeal to the judge in chambers against the decision of the learned senior assistant registrar (SAR) made on 19 February 2001 in dismissing the appellant's application to set aside and to cancel the citation dated 29 November 2000 issued pursuant to O. 72 rr. 7 and 8 of the Rules of the High Court 1980 (RHC).
For the purpose of this appeal, the appellant, who at the material time, was the administrator of the estate of his late father, one Yap Hong Kai (deceased), is the citee while the respondents who at the material times were the brothers and sisters of the said Yap Hong Kai (deceased), are the citors.
Brief Facts
One Yap Swee King @ Yap Swee Kim @ Yap Swee Keng (YSK) died on 2 October 1964. The appellant's late father, Yap Hong Kai (YHK) and all the citors are children of the said YSK. At the time of YSK's death, the beneficiaries were his wife, one Tan Sok Hun, and all his children (which include YHK and all the citors). On 21 May 1968, the said YHK was granted a letter of administration to administer the estate of the said YSK. However, on 1 November 1993, the said YHK died. The administration of the estate of YSK (where YHK was the administrator) was not fully completed when YHK died. The citors claimed that one of the properties of the said YSK which was not completely administered by YHK at the time of his death was a piece of land held under GM210 Lot 432 Sek. 9, Sungai Ara, Mukim Mentakab, Pahang. The said land was and is still registered under the name of the said YHK as "representative". On 2 February 1996, the appellant was granted a letter of administration to administer the estate of the said YHK. The list of assets or properties of the said estate of YHK as exhibited in the said letter of administration were: (i) land held under GM706 Lot 430 Sek. 9, Sungai Ara, Mukim Mentakab Pahang, and (ii) land held under GM210 Lot 432 Sungai Ara Pahang.
The citors claimed that the said grant of the letter of administration to the appellant was defective on the grounds that:
i. the appellant has failed to inform the court that his late father, YHK was an undischarged bankrupt at his death. An AO and RO to that effect were made against YHK on 30 April 1979;
ii. the appellant has failed to inform the court that the land held under GM706 Lot 430, Sek. 9, Sungai Ara, Mukim Mentakab, Pahang was in fact belonging to the State Government as declared by the High Court in Temerloh on 30 January 1996; and
iii. the appellant has failed to inform the court that the land held under GM210 Lot 432, Sek. 9, Sungai Ara, Mukim Mentakab, Pahang was in fact held by the said YHK, only as "representative" as the administrator of the estate of YSK.
The first citor has applied for a letter of administration 'De Bonis Non' in respect of the unadministered estate of the said YSK videMahkamah Tinggi Temerloh, Petition No: 31-26-1999 involving the said land held under GM210 Lot 432, Sek. 9, Sungai Ara, Mukim Mentakab, Pahang. The application is still pending. In the meantime, the citors intended to file a writ against the appellant to cancel or revoke the said grant of the letter of administration of the estate of YHK which was granted to the appellant on 2 February 1996. This is to stop the appellant from distributing the said properties among his brothers and sisters (children of the said YHK) and to enable the citors to claim their interest in respect of the said land which they claimed still to be in the estate of YSK which was not administered when YHK died. For that purpose and as a condition precedent before the said writ can be issued, the citors have on 31 October 2000 applied for the issuance of a citation under O. 72 r. 7 and 8 of the RHC 1980. On 29 November 2000 the court has issued the said citation, directing the appellant to bring into and leave at registry of the High Court the said letter of administration for the purpose of the citors' writ for its revocation or cancellation which will be filed and
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