A caveat must declare a clear caveatable interest; a beneficial interest in land alone is insufficient to justify its imposition.

JUDGMENT

(Enclosure 1 - Os By Plaintiff To Remove Caveat)

Christopher Chin Soo Yin J:

Brief Facts

[1] The Plaintiff sought in Enc 1 for an Order of this Court to remove the caveat presented by the Defendant and subsequently registered by the Land Office over Lot 3344 Block 13 Seduan Land District, with an intermediate terraced dwelling house thereon ("Lot 3344") by the Registrar of Land and Surveys, Sibu.

[2] The Plaintiff and one Ching Kuok Fei (D) acquired Lot 3344 in equal undivided shares. The said Ching Kuok Fei (D) died at age 35 (due to Burkitt Lymphoma) on the 15 July 2021. Just before he died, he executed a memorandum of transfer over his half share in favour of the plaintiff but such transfer could not be registered because of the caveat by the Defendant.

[3] Two days before passing away the said Ching Kuok Fei (D) made a Will on the 13 May 2021 where be bequeathed his half share in Lot 3344 to the Plaintiff. It is pertinent to note here that in para 11 of the AIO of the Defendant, it was conceded that the Deceased was compos mentis on the day the Will was given, that is on the 13 July 2021:

"11. On the 13 July 2021 the deceased has complained of abdominal pain and he was alert but in lethargic looking with tachypnea."

[4] The Plaintiff obtained Probate while the defendant, who was the father of the Deceased, obtained competing Letters of Administration, to the estate of the Deceased.

[5] Under the Sarawak Land Code the lodgement of a caveat must be accompanied by a statutory declaration by the caveator declaring his caveatable interest in the subject land. In the case the Defendant swore such a statutory declaration but therein he did not defined clearly any caveatable interest capable of being registered. Instead his sole motive for caveating Lot 3344 was purely to protect the beneficiaries of the Deceased:

"6. I depose the truth of this statutory declaration in order to lodge a caveat so as to protect the interest(s) of the beneficiary of the deceased over his ½ undivided right title and interest in the said house to forbid further dealing(s) of the same until administration of all the estates of the deceased."

[6] The Caveator caveated the entire Lot 3344 which at the relevant time was still in the name of the Vendor, Law Yew Aik, holding the whole share therein, and had not been transferred yet into the joint names of the Plaintiff and the Deceased and did not confine or limit the injunctive effect of the caveat to the half undivided share of the Deceased.

[7] The Caveator/Defendant then commenced an action in SBW-22NCVC-15/8-2022 to challenge the validity of the Will.

Reasons For Decision

[8] On the 3 October 2022, I ruled in favour of the Plaintiff and ordered the removal of the caveat over Lot 3344 but did not allow the prayer for damages as the suit by the Plaintiff did not move this Court under s 179 of the Sarawak Land Code being section specific for compensation for wrongful caveats.

A. Beneficial Interest In Land Does Not Constitute Caveatable Interest In Lan.

[9] In Chor Phaik Har v. Farlim Properties Sdn Bhd , 1997 MarsdenLR 2303 , the Federal Court held that:

" In law, a beneficiary under an intestacy has no interest or property in the personal estate of a Deceased person until the administration of the latter's estate is complete and distribution made according to the law of distribution of the intestate estate."

[10] It is worth noting what Dr Andrew Chew Peng Hui in this book of "Caveat System in Sarawak (3rd Edn)" at pp 54 said:

"Can residuary beneficiaries claim interest in land comprised in the estate or in which the estate is interested? In a loose and general sense they may be said interested but this is not the way the courts looks at the issue. The Principle of law applied by the courts is that residuary beneficiaries are entitled only to distributive shares of the surplus alter all the liabilities of the estate is ascertained. It is only then that they can claim specifically any interest in the land."

B.