Noor Hisham Ismail J:

(Enclosure 1)

Introduction

[1] This is an Originating Summons (encl 1) by the Plaintiffs ("Ps") for declarations, among others, that a Distribution Order made by the Land Administrator dated 3 April 1993 ("the said Distribution Order") transferring a piece of land known as HSM 1789 Lot 6444, Mukim Senai, Daerah Kulai, Negeri Johor ("the Land") from the estate of the deceased younger brother, Pang Hun Kwe to his elder brother, the 1st Defendant ("D1"), is null and void and of no effect.

[2] In the event this court is with the Ps on the aforesaid prayer, Ps also pray that D1 be declared as holding a share of the Land as trustee for the Ps, and further consequential orders for D1 to transfer the said ½ share of the Land to the estate of the deceased or if D1 refused the Deputy Registrar is to execute the necessary transfer instrument to that effect.

[3] Upon conclusion of hearing, I dismissed encl 1 with costs of RM5,000.00 to be paid by Ps to D1 only, subject to allocator fees.

[4] Ps have since filed an appeal to the court of Appeal against my judgment.

[5] Thus, this is my grounds of judgment for the said decision.

Salient Facts

[6] The following facts are gathered from the numerous affidavits filed by the parties.

[7] Ps are siblings. They are the offspring of D2 who is their mother and Pang Hun Kwe (deceased) their father.

[8] D1 is the elder brother of the deceased. D1 opposed encl 1. D2 in her affidavits in encl 59 and encl 60 supports encl 1.

[9] Sometime in year 1989, an application for alienation of the Land was made in the name of the deceased.

[10] However, before the Land was approved by the State Authority, the deceased died on 9 July 1992 due to a road accident.

[11] It was only on 29 August 1992, that the Land Administrator's Office issued a Notice in Form 5A informing that the application for alienation of the Land had been approved subject to the condition that payments must be made within 3 months from the date of the said Notice, failing which the approval will be withdrawn.

[12] Following the said Notice, payment was made for the premium and the Land was subsequently alienated to and registered under the name of the deceased.

[13] D1 then petitioned for small estate distribution of the deceased's estate.

[14] A hearing was then held by the Land Administrator in the presence of the D1 and D2. Ps were minors at that time thus did not attend the hearing.

[15] On 3 April 1993, the said Distribution Order was pronounced whereby the Land was ordered to be transferred to D1 absolutely.

[16] Ps contend that the said Distribution Order was null and void due to D1's incomplete disclosure to the Land Office relating to the actual number of beneficiaries of the deceased, which include Ps (minors at the material time) and the deceased's parents.

[17] D1 on the other hand contends that although the application for the Land was made under the name of the deceased, the real applicants for the Land were their parents. The deceased's name was only used for the purpose of the application.

[18] Further, upon knowing of the approval for the Land application, their parents had asked D1 to pay for the premium. D2, being the deceased's widow did not make any payment for the premium. D2 also is not eligible to hold the Land since she is a Singaporean.

[19] D1 also contends that during hearing before the Land Administrator, D1 had agreed not to claim any rights over the Land.

[20] D1 paid for the premium in full to the Land Office. Ever since then D1 continued to pay quit rent and maintenance costs for the Land. Thus, D1 contends that he is the rightful owner to the Land.

[21] D1's version that it was their parents who were the actual applicants for the Land and that it was D1 who had paid the premium for the Land is supported by D1's sisters who had sworn their affidavits and filed in court as encl 9 and encl 10 respectively.

Decision

[22] At the outset, the administration and distribution of small estates are matters that fall w