Alwee Alkaff v Syed Jafaralsadeg and Others and Another Action

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 01 November 1997
• Neutral Citation: [1997] SGHC 286
• Docket Number: Suits Nos 218 of 1996 and 1799
• Date: 01 November 1997
• Published date: 19 September 2003
• Year: 1997
• Plaintiff Counsel: TM Tan and Therese Tan (Mallal & Namazie)
• Citation: [1997] SGHC 286
• Defendant Counsel: Zaheer Merchant (Madhavan Louis & Partners),SB Shah (SB Shah)
• Court: High Court (Singapore)
• Subject Matter: Whether the lessor has a right to forfeit for non-payment of rent,Landlord and Tenant,Forfeiture,Whether an Order of Court can effect conveyance of a leasehold interest,Termination of leases,Land,Conveyance

Judgment:

JUDITH PRAKASH J

This was another espisode in the saga of the estate of Syed Ahmad bin Abdulrahman bin Ahmat Aljunied, deceased (the reversion holder), arising out of the actions of the first to fourth defendants herein (sometimes called `the trustees`) who at all material times were the trustees of the estate of the deceased. The actions which were consolidated by orders of court made on 22 May 1997 concern the ownership of the property known as No 143 Dunlop Street, Singapore (the property).

2.The plaintiffs in Suit No 1799/94 are the lawful children and beneficiaries of Shaik Mohamed bin Ali bin Mohamed bin Abdul Shaik Altamimi (the intestate) who died in 1951 in Tarim, Hydramout, Yemen. The plaintiff in Suit No 218/96, Mr Alwee Alkaff, is the administrator of the estate of the intestate. He obtained letters of administration to the estate of the intestate by a grant made in April 1995 and issued in September 1995.

3.The property is freehold. However, a 999-year lease was created by a lease marked Lot 79 made on 26 October 1877. It is common ground that the owner of the reversionary interest in the property was the reversion holder. This reversionary interest together with the reversionary interest in 77 other allotments was conveyed to the reversion holder on 18 January 1892. It was specifically stated in the indenture that the vendor was seized of all 78 allotments in fee simple subject to the 78 leases for 999 years made in respect of such allotments. The reversion holder died on 26 July 1894 and probate of his estate was granted to the first in a long line of trustees and executors on 16 April 1895.

4.The leasehold interest was the subject of various conveyances between 1877 and 1929. The property originally formed part of Lot No 79 of Grant No 369. It was subsequently resurveyed and renumbered Lot 6-9 of Town Subdivision 16. The present lot number is Lot 99967N Town Subdivision 16. The address of the shophouse built on the property was previously No 64 Dunlop Street.

5.The leasehold interest in the property was assigned to the intestate by an indenture dated 4 November 1929. It has been occupied by subtenants for many years. Mr Alwee Alkaff, acting as the agent of the family of the intestate dealt with the subtenants and collected the rent. In early 1994, the trustees of the reversion holder purported to sell both the reversionary and leasehold interests in the property to the fifth defendant. When Mr Alkaff found out about this, he started Suit No 1799/94 on behalf of the plaintiffs therein pursuant to powers of attorney they had given him and obtained an injunction order preventing the trustees from conveying the property to the fifth defendant. Suit No 218/96 was commenced later, after Mr Alkaff obtained the grant of letters of administration to the estate of the intestate. The substantive reliefs in both actions were the same.

6.The plaintiffs in both actions applied for summary judgment. These applications were heard by me and at the conclusion of the hearing I granted the applications and made the following orders/declarations: (1). that the unexpired residue of the leasehold interest of 999 years demised under the lease marked Lot No 79 made on 26 October 1877, of and in the property being Lot 99967N (Old Lot No 6-9) of Town Subdivision 16 (No 143 Dunlop Street, Singapore) (the property), doth vest in the estate of Shaikh Mohamad Bin Ali Bin Mohamed Bin Abdul Shaikh Altamimi;

(2). title to the unexpired residue of the leasehold interest of and in the property did not pass and has not passed to the fifth defendant whether by way of the option (averred to in the caveat lodged against the property and registered in Volume 2667 No 123 at the Registry of Deeds by the fifth defendant and said to be granted by the first to fourth defendants to the fifth defendant of unknown date) or otherwise, and that the defendants, whether singularly or jointly, have no title, right, interest, or claim against the said leasehold interest of and in the property;

(3). the caveat lodged by the fifth defendant against the leasehold interest of and in the property registered in Volume 2677 No 123 at the Registry of Deeds be cancelled;

(4). the first to fourth defendants are hereby restrained from dealing with the leasehold interest of the estate of Shaikh Mohamad Bin Ali Bin Mohamed Bin Abdul Shaikh Altamimi of and in the property;

(5). the damages be assessed; and

(6). costs be reserved to be dealt with on a date to be fixed.

The first, third and fourth defendants, who were the three trustees of the reversion holder who took an active role in the actions (the second defendant having been made a bankrupt after the commencement of Suit No 1799/94), have now appealed against all of the above orders.

7. Issues raised by the first, third and fourth defendants

The trustees by an affidavit filed in Suit No 1799/94 on 9 January 1995 exhibited a draft defence in which they raised the following defences: (1). they required the plaintiffs to prove that they were the children of the Intestate;

(2). they claimed they had no knowledge of the existence of a leashold interest to which the property is subject;

(3). they claimed they had no knowledge that the Intestate was at the time of his death the owner of the leasehold interest of the property;

(4). they claimed that the head lease did not exist or said that if it did exist it was not registered and was thus inadmissable as evidence of any title to the property;

(5). they claimed that the original lessee did not execute any valid assignment of the unexpired term to anyone so that all persons listed in the Index of Land of the Registry of Titles and Deeds claiming an interest in the leasehold title are making invalid claims;

(6). they claimed that the intestate was not entitled to the unexpired term of the leasehold interest because the last registered assignee of the lease was not the intestate - this is because the name of the assignee appears as Shaik Mohamad bin Ali bin Mohamad bin Abdul Shaik of Gahar Hadramout instead of Shaik Mohamad bin Ali bin Mohamad bin Abdul Shaik Altamimi;

(7). alternatively, if the intestate is the same person as the last registered assignee, the leasehold interest had been forfeited on the grounds that the intestate had abandoned the leasehold interest and/or breached several covenants and conditions of the headlease including the payment of the yearly rent of one dollar; and

(8). they denied that the intestate had paid the yearly rent of one dollar to the previous trustees of the will of the reversion holder.

8.On 3 June 1996 the trustees, by an affidavit made by the first defendant (the said affidavit), mounted a belated challenge to the title of the intestate. Essentially it was their argument that there had been a long line of orders of court going back to an order made on 28 October 1895, in Suit No 304 of 1885 (the 1895 Order). It was the trustees` contention, by way of construction of the 1895 Order, that the 1895 Order had somehow vested the property in the estate of the reversion holder and therefore that the intestate had never acquired any leasehold interest in the property since by the time the conveyance was made in his favour no leasehold interest existed anymore. This was the main argument put forward by the trustees at the summary judgment hearing before me. I will deal with it first and then consider the other points made by them during those arguments.

9.It should first be noted that the trustees admitted by the said affidavit that a 999-year leasehold interest in the property was created by the then owner of the freehold, Kavena Koonjan Chitty, in October 1877. The lease so created was duly registered under the Indian Act No XVI of 1839. The original lease has, however, been lost. Thereafter there were various conveyances of the leasehold title. All of them were duly registered in the appropriate registries although some of the original documents cannot now be found. The title to the leasehold interest can however itself be traced right back to Kavena Koonjan Chitty.

10.It is also common ground that Kavena Koonjan Chitty mortgaged his freehold interest in the property and other lots in 1878 and the mortagagee subsequently sold them. After one further intervening conveyance, the freehold interests in the property and the other lots were conveyed to the reversion holder on 18 January 1892. The reversion holder died on 27 July 1894 leaving a will dated 4 May 1894. In this will he appointed his brother, Syed Abdulrahman bin Allie bin Omar Al Junied (the original trustee) to be the sole trustee of the will and declared:

I give unto my trustee all those leasehold lots of vacant lands namely 115 lots

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