Lee Hun Hoe CJ (Borneo):

This appeal is against the decision of the learned Judge in directing the Registrar of the Kuching Land Registry to remove the caveat L 3633/1973 affecting seven parcels of land. The caveat listed 11 items covering fourteen parcels of land and was registered on 20 June 1973. Of the items one item (7) covers four parcels of land.

By an originating motion No. K3 of 1973 dated 10 April 1976, respondent applied for removal of the caveat in respect of item (7). By another originating motion No. 7 of 1976 dated 24 May 1976 he applied for the removal of the same caveat covering the remaining ten parcels of land. Both motions were made under s. 177(1) of the Land Code (Cap. 81) which enables any registered proprietor or any other person having a registered estate or interest in the estate or interest against which a caveat has been lodged to apply to the High Court for an order to remove the caveat. At the hearing of the second motion No. K7 of 1976 in the High Court, the parties agreed that the Court was concerned with seven parcels of land as the other parcels were not registered in respondent's name but in the name of Lee Chuan Hong Co. Ltd. They also agreed to have the two motions heard together as the laws affecting both motions would be the same and the decision made on one motion would be binding on the other.

It would be helpful to set out certain facts which are not in dispute. Lee Boon Boh died on 18 January 1955 leaving a will by which he appointed respondent who was his partner and cousin to be the executor and trustee of his estate. The firm of Lee Chuan Hong Co. was owned by deceased who had five shares and respondent also five shares. The other two shares were held by Lee Cheng Leong who retired in 1957. After probate, respondent in his capacity as executor and trustee registered himself as proprietor of deceased's shares in the firm and continued running the business. In 1960 he converted the firm into a limited company under the style of Lee Chuan Hong Co. Ltd. Of the 50 shares in the limited company the estate would seem to be allocated 18 shares. Appellants were deceased's sons. They were to share the residue of the estate with their mother on the deceased's youngest son attaining 24 years of age in 1972. No distribution was made. Neither did appellants account for the estate. The three beneficiaries were thus not satisfied with the manner the estate was administered. They believe respondent was using the estate money to invest in properties for his own benefit. Consequently, the said caveat was lodged. Following this they initiated an action Civil Suit No. K205 of 1973 against respondent praying for account and a declaration in respect of certain property.

In his affidavit respondent says that by reason of the caveat he has been embarrassed in the administration of the estate and also been hampered in his duties as an executor. He also says that the deceased's youngest daughter got married only in 1976 and the administration has not been completed.

By a summons in chambers dated 17 January 1976, the residuary beneficiaries sought and obtained an order from the High Court for the transfer of the 18 shares in the limited company to themselves. However, on appeal this Court set aside the order and ordered an earlier trial of Civil Suit No. K205 of 1973. (See Federal Court Civil Appeal No. K66 of 1977). This is important because respondent contended that up to 31 December 1975 the estate owed the company $85,870.63 being money advanced to the various beneficiaries on the strength of the will. Any advance made has of course to be accounted for in the final distribution of the estate. Having proved the will by applying for probate, respondent administered the estate for some 18 years. Usually, an executor proves the will as soon as possible to forestall likely challenge to the validity of the will. It is, therefore, strange that respondent should turn round to question the validity of the wil