Abu Bakar v Jawahir and Others

• Jurisdiction: Singapore
• Judge: S Rajendran J
• Judgment Date: 14 May 1993
• Neutral Citation: [1993] SGHC 109
• Date: 14 May 1993
• Subject Matter: Jurisdiction,Jurisdiction under common law,History of power of High Court to partition land and to order a sale in lieu of partition,Civil Procedure,High Court's jurisdiction to order partition of land,Jurisdiction to order sale in lieu of partition,s 18(2)(c) Supreme Court of Judicature Act (Cap 322)
• Docket Number: Originating Summons No 798 of 1992
• Published date: 19 September 2003
• Defendant Counsel: Lim Kim Hong (Mas & Partners)
• Court: High Court (Singapore)
• Plaintiff Counsel: Shamin Dhilawala (Palakrishnan & Pnrs)

Cur Adv Vult

In 1970, Mohamed bin Abdullah and his wife Mardiziah bte Haji Taib gifted their home at No 26 Jalan Ulu Siglap (a semi-permanent single-story house) to their four children, namely, Abu Bakar bin Mohamed (plaintiff), Jawahir bte Mohamed (first defendant), Noor bte Mohamed (now deceased - second defendant), and Hanapiah bin Mohamed, who were all residing there.

In 1988, Hanapiah, who had married and moved out of the house in 1976, sold his share (at a price of $110,000) to the other members of the family resulting in their having 1U3 interest each. At about that time Noor bte Mohamed conveyed half her 1U3 share to her husband Abdul Aziz bin Adnan (third defendant). The plaintiff moved out of the property in 1984 when he went to work in Malaysia. The property is now occupied by the first and third defendants and members of their respective families.

The plaintiff married a Malaysian girl and settled in Malaysia. He desired to purchase a property in Malaysia for his family and, to finance the purchase, has since 1989 been attempting, without success, to get the other co-owners to buy out his interest in No 26 Jalan Ulu Siglap. The first and third defendants have, in affidavits filed in these proceedings, stated that they do not have the means to pay the plaintiff the market price for his share of the property. A firm of property consultants have valued the property as at 16 September 1992 to be $1.4m.

The plaintiff by this application seeks an order that the property be sold in the open market and the proceeds, after discharging the charge to the Central Provident Fund Board and expenses connected with the sale, be distributed to the co-owners in accordance with their respective shares. The application is resisted by the first and third defendants on the grounds that they (and the plaintiff, if he so desires) have a right to continue to reside in the family home and that a sale would cause them considerable inconvenience and hardship. The plaintiff counters this by stating that he and his family are unable to benefit by residing in the house, that he is incurring considerable expenditure in renting a house in Kuala Lumpur for his family and that if the house were to be sold and the proceeds distributed he as well as the defendants would benefit in that the proceeds of sale will enable each party to have a separate home.

The plaintiff bases his application on s 18(2)(c) of the Supreme Court of Judicature Act (Ch 322) which reads:

(18) (2) Without prejudice to the generality of subsection (1) the High Court shall have and shall exercise the following powers:

...

(c) power to direct a sale instead of partition in any action for partition of land; and in any cause or matter relating to land, where it appears necessary or expedient, to order the land or any part of it to be sold, and to give all necessary and consequential directions;

To understand the ambit of s 18(2)(c) it will be useful to look at the history of the power given to the High Court to partition land and to order a sale in lieu of partition.

At common law there was no right to compel partition. Coparceners, who took their land by descent from the former owner, were allowed to insist upon partition, for as their co-ownership was cast on them by the act of the law and not by their own agreement, it was thought right that the perverseness of one should not prevent the others from obtaining a more beneficial method of enjoying the property. This argument was, however, not applied to joint tenants or tenants in common, which necessarily arose by act of parties; but by the Partition Acts 1539 and 1540 (of Henry VIII), a statutory right to...