JUDGMENT

Ismail Khan J:

The issue raised before me is whether a person who has obtained an order from the Registrar for the grant of letters of administration to issue can be sued in a representative capacity before the grant is extracted by him for the purpose of enabling the liability of an intestate estate to be determined and paid out of the assets of the deceased.

The plaintiffs' claim is against the first and second defendants as administratrix and administrator respectively of the estate of one Goh Tiong Tan, deceased, for damages for breach of contract and/or duty as common carrier and/or negligence in and about the carriage of goods. It was alleged that the plaintiffs entrusted certain goods to the deceased for conveyance by boat and the goods were lost during transit in blameworthy circumstances.

The defence is, inter alia, that the defendants have not been constituted the legal representatives of the deceased and cannot be sued in that capacity. The plaintiffs' action was incompetent and ought to be dismissed in limine.

It is not in dispute that letters of administration to the estate were granted on 15 January 1960, but that the grant had not been extracted. The action was commenced on 18 January 1960.

Mr. Ball for the defendants relied on the case of Chia Teck Liang V. Tan Soo Khiang, where it was held by Mills J that when a Court makes an order that letters of administration shall issue to the petitioner, such an order does not constitute a grant within the meaning of s. 70 of the Johore Probate and Administration Enactment (No. 22). He contended that until the grant is extracted, the defendants have no locus standi as representatives and could not therefore be sued in a representative capacity so as to bind the estate by a judgment.

Mr. Lloyd for the plaintiffs contended that the defendants became the representatives of the deceased's estate as from 15 January 1960, when the Court made an order that letters of administration do issue. He cited the case of Chia Foon Sian & Anor. V. Lam Chew Fah & Anor. , a Singapore case. In that case letters of administration were granted to the plaintiff on 19 September 1947, but they were not extracted until 18 August 1950. Whitton J held that the plaintiff acquired the character of administrator on 19 September 1947. According to the learned Judge, it is the order of the Court that grant should issue rather than the grant under seal which confers status. He also dealt with the judgment of Mills J in the Johore case but sought to differentiate it on the ground of the difference in language between the words "grant the same under its seal" in s. 70 of the Johore Probate and Administration Enactment and the words "a grant under the seal of the Court issuing the same" in s. 2 of the Probate and Administration Ordinance (Straits Settlements) Cap. 51. Section 70 of the Johore Enactment is as follows:

(i) Whenever it appears to the Court that letters or administration to the estate of a person deceased, with or without a copy of the will annexed, should be granted, the Court shall, upon an undertaking being given as required by sub-section (ii) hereof, grant the same under its seal in manner following:- .......

There, is no provision in the Probate and Administration Ordinance (Straits Settlements) Cap. 51 in language identical with s. 70 of the Johore Enactment. Section 17 of the Probate and Administration Ordinance provides for the grant of letters of administration on the death of a person intestate, and s. 2 thereof defines letters of administration as "a grant under the seal of the Court issuing the same...". With due respect to the learned Judge I do not see that, apart from the difference in terminology, there is any difference in the meaning of the words between the two sections. In my opinion the overriding words in both are the words "grant under seal" and they mean that when a Court makes a grant, what is contemplated is a grant under its seal, and until the grant