JUDGMENT

Noor Hisham Ismail J:

(Enclosure 47)

Introduction

[1] The present grounds of judgment concerns the intervener's application in Encl 47 to set aside an order dated 10 August 2023 (Encl 23) on the basis that it is a nullity as a whole.

[2] Having read the submissions put forth by the parties and all the cause papers filed, this Court allows the intervener's application in Encl 47 with costs of RM3,000.00 to be paid by the applicant to the intervener.

[3] Dissatisfied with this Court 's decision, the Applicant had filed an appeal at the Court of Appeal.

Facts of the Case

[4] For a better understanding of Enclosure 47, it would be useful to examine the factual matrix of the present case.

[5] Phang Hoon Ying ("PHY") had died intestate on 16 September 1991.

[6] At the time of his death, PHY was the registered proprietor of a property known as H.S.(M) 2680, Lot 5350, Tempat Sg Lenek II, Mukim Chaah, Daerah Labis, Negeri Johor ("said property") which is the subject matter of the present case which significance would be apparent in this grounds of judgment later.

[7] PHY's beneficiaries includes his wife, five (5) sons and three (3) daughters.

[8] The intervener ("I") and Phang Seng Hee ("PSH") were sons of PHY referred to above. Their significance would appear later in this judgment.

[9] PSH subsequently passed away in 2014.

[10] In 2018, the Applicant ("A") obtained letters of administration for PSH's estate. A is thus the administrator to PSH's estate.

[11] I then petitioned to be the administrator of PHY's estate.

[12] This application was allowed on 15 October 2019 by the Estate Distribution Officer, Segamat Land Administrator ("SLA") pursuant to s 13 (Order for distribution of small estate), Small Estates (Distribution) Act 1955.

[13] During hearing before the SLA, A had among others claimed that the said property was fully owned by PSH. This allegation was supported by statutory declarations adduced by A (these could be found at exh PSJ-1 in A's Affidavit in Support of Encl 23 accordingly. A's allegation was disputed by PHY's beneficiaries including I.

[14] The SLA rejected A's contention and found that the Statutory Declarations relied upon by A were not instruments of transfer within the meaning of the National Land Code 1965.

[15] At the same time, all of PHY's beneficiaries including A agreed on oath for I to be the administrator of PHY's estate and the distribution of among others the said property. The distribution order issued by the SLA in Form F dated 15 October 2019 states that the said property is to be divided among all the beneficiaries as agreed by them.

[16] A then filed for an extension of time to appeal against SLA's decision with regards to the distribution order and the grant of letters of administration in respect of PHY's estate. The High Court on 6 October 2020 (Originating Summons JA-24NCVC-343-06/2020) dismissed A's application. This decision was upheld by the Court of Appeal which subsequently dismissed A's appeal (Civil Appeal No J-01(NCVC)(A)-595-11/2020) on 7 January 2023.

[17] Subsequent to the Court of Appeal decision above, I had via his solicitor's letter dated 27 March 2023 requested from A's solicitors among others for the return of the title documents to the said property to him as the administrator of PHY's estate.

[18] A took the position as evident from his solicitor's letter dated 6 April 2023 that the said property belongs to PSH and thus A refused to accede to I's request.

[19] Consequently, I conducted a land search at the land office on the said property. I discovered that while the said property was registered in his name as the administrator to PHY's estate, there was a private caveat that has been inserted on the said property by A.

[20] I's request as could be seen in his solicitor's letter dated 16 May 2023 for the return of the title documents to the said property and for the withdrawal of A's private caveat was not evidently fruitful.

[21] I then filed Originating Summons JA-24NCVC-59