JUDGMENT

Anuar Zainal Abidin CJ (Malaya):

The brief facts are that on 29 August 1982, one Nadarajah (hereinafter referred to as 'the deceased'), a wealthy bachelor and a non-practicing lawyer, died unexpectedly. The deceased was survived by his natural and lawful mother, brother (hereinafter referred to as 'the defendant') and two sisters. As no will was found, it was believed by all concerned that the deceased died intestate. If this be so, then pursuant to s. 6(1)(iv) of the Distribution Act 1958 , the deceased's mother, Datin Sellayee Ammal w/o Dato' Sithambaram Pillai (hereinafter referred to as the 'mother') would be the sole beneficiary to the estate of the deceased. However, shortly after, i.e. on 1 October 1982, the mother too died in India. But the mother died testate naming her grandson, the plaintiff (who is the nephew of the deceased and defendant), as the sole beneficiary and executor of her will.

Acting on the will of the mother, the plaintiff through his attorney, applied to the High Court at Kuala Lumpur and obtained a grant for letters of administration for the estate of the deceased. A will, alleged to be that of the deceased, surfaced in suspicious circumstances, of which more will be said later. In this alleged will, the defendant was named as the executor and the beneficiaries named therein were the defendant, the plaintiff and the two sisters of the deceased. Acting on this alleged will, the defendant petitioned the High Court at Ipoh for probate and obtained the grant thereof. Upon being informed of the grant of probate and of the will, the plaintiff took steps to set aside the grant, inter alia, on the ground of forgery.

Hence the sole issue before the Court was whether the alleged will of the deceased was genuine or a forgery.

In view of two observations to be made shortly, on multiplicity of proceedings and the delay in concluding the trial, it becomes necessary in narrating these facts, to state somewhat in detail, the various actions instituted by the plaintiff and the defendant and the manner in which the trial was conducted in instalments, over a period of seven years.

As stated earlier, the plaintiff through his attorney, acting on the will of the mother, petitioned the High Court at Kuala Lumpur for grant of letters of administration with the mother's will annexed for administration of the mother's estate in Malaysia which, by reason of the earlier said provision of the Distribution Act , included the properties of the deceased (the '1st action'). On 16 August 1983 an order was made for grant of administration. On 4 October 1983, a copy of this order was served on the solicitors for the defendant. In response, on 31 October 1983, the defendant lodged a caveat on the sealing of grant in favour of the plaintiff.

Sometime in 1983, the defendant presented a petition in the High Court at Ipoh for administration of the deceased's estate ('2nd action'). The basis for his petition was that the deceased had died intestate. The mother had died. This petition was presented without notice to the plaintiff. For reason that subsequently transpired, i.e. the surfacing of the will, the defendant did not proceed with this petition.

On 12 March 1984, the defendant presented a fresh petition in the same High Court but this time, for grant of probate in his favour as executor and a beneficiary of the deceased's estate ('3rd action'). This petition was grounded on the alleged will of the deceased dated 7 April 1982. This too was without any notice to the plaintiff, albeit the plaintiff is named as one of the beneficiaries to the deceased's estate in the alleged will. On 21 August 1984, the High Court at Ipoh ordered the grant of probate. By a letter dated 25 August 1984, the solicitors for the defendant informed the solicitors for the plaintiff of the order and of the existence of the alleged will. The defendant's solicitors suggested that in the light of the existence of the will, the plaintiff should withdra