[1] This originating summons is an application by the plaintiff to be included as one of the administrators of the estate of one Neoh Eng Hong (‘the deceased’) and also as one of the beneficiaries of the said estate.

[2] I have striked out the originating summons with costs but with liberty given to the plaintiff to proceed afresh by way of a writ action.

[3] I shall now give my grounds.

[4] I shall begin by alluding briefly to the background facts of the case. The first defendant, Ong Leng Choo is the wife of the deceased (Neoh Eng Hong). She married the deceased on 11 November, 1948 in accordance with Chinese customary marriage. The marriage was later registered on 24 March 1976 under the Civil Marriage Ordinance, 1952. She and the deceased had four children, namely, Neoh Hoe Suan, Neoh Hoe Shin (the second defendant), Neoh King Hun and Neoh Sun Meng.

[5] In the present case, it is alleged by the plaintiff that, during the subsistence of the marriage of the first defendant with the deceased, the latter had married her late mother, Wong Ah Kim. The alleged marriage took place in the early part of the year 1960 under Chinese customary marriage. By this marriage, the deceased and the plaintiff’s late mother had four children, namely, Neoh Ah Yan (the plaintiff), Neoh Siew Hwa, Neoh Ah Geat and Neoh Siew Lung. The plaintiff’s mother had two other children by a previous marriage, namely, Tan Pooi Fong and Tan Pooi Fun. The plaintiff’s mother died on 23 June 1997. According to the plaintiff, her late mother and the deceased had been staying together since she was born. They stayed at a premise having an address at No. 57A, Jalan Kampar, Off Jalan Pekeliling, until the death of the deceased on 23 November 1992.

[6] The deceased died intestate on 23 November 1992. On 17 August 1999, the defendants filed a petition at the High Court of Kuala Lumpur for [*157] the letters of administration in respect of the estate of the deceased. The letters of administration were issued to them.

[7] The plaintiff claims that she is the lawful daughter of the deceased by reason of the deceased’s marriage with the plaintiff’s late mother. She, therefore, claims that she is entitled as a beneficiary to the estate of the deceased. Hence, she applies to be included as an administrator and as a beneficiary of the deceased estate.

[8] The plaintiff alleges that the registration of the deceased’s marriage with the first defendant is not valid by reason of s 30(b) Civil Marriage Ordinance 1952 because at the time of the registration, the deceased was (allegedly) still married to her mother under Chinese customary marriage. Section 30(b) Civil Marriage Ordinance provides:

30. Any marriage purported to be solemnized under this Ordinance shall

be void if:

(a) …

(b) either of the parties was at the date of such marriage married

under any law, religion, custom or usage to any person other than

the other party;

[9] The defendants, on the other hand, contends that from the fact that the deceased registered the marriage with the first defendant under the 1952 Ordinance in 1976, an inference could be made that there was no other marriage (civil or custom) subsisting then between the deceased and any other person since s 14(1)(d) of the Ordinance required the deceased, at the time of applying for the registration of his marriage to the first defendant to declare that he, at that point of time was never married to anyone else (other than the first defendant) under any law, religion or custom. Section 14(1)(d) reads:

Every notice required to be given under the provisions of s 11 of this

Ordinance shall be accompanied by a written declaration:

(a) …

(b) …

(c) …

(d) that neither of the parties to the intended marriage is married

under any law, custom, religion or usage to any person other than

the person with whom