Chay Chong Hwa and Others v Seah Mary

• Jurisdiction: Singapore
• Judge: Abdul Wahab Ghows
• Judgment Date: 24 May 1984
• Neutral Citation: [1984] SGCA 16
• Date: 24 May 1984
• Subject Matter: Land,Conveyance,Probate and Administration,Grant of letters of administration,s 92(1) Land Titles Act (Cap 276),Whether grant of letters of administration of deceased's estate necessary for completion of purchase,Completion,Contract for sale of land,ss 2, 37(1) & (2) Probate and Administration Act (Cap 23),Sale of land,Administrators to sell interest of deceased in property,Conditions of sale,Whether grant of letters of administration of estate of deceased necessary for completion of purchase,Administrators selling deceased's interest in property
• Docket Number: Civil Appeal No 86 of 1982
• Published date: 19 September 2003
• Defendant Counsel: Ng Wing Cheong (Ng Wong & Chung)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Ruth Kao (Ruth Kao)

The first, second and third appellants and one Lee Ee Hoong, deceased are registered as proprietors as tenants in common in equal shares of the land, Lot 960 of Mukim V, Pandan, together with a house thereon known as 12, Sunset Square, Singapore (the property). The fourth appellants are the administrators of the estate of Lee Ee Hoong deceased (the Deceased) who died on 16 March 1975. By an agreement dated 30 September 1980 (the sale agreement) the appellants agreed to sell to the respondent the property at the price of $420,000 and in such sale the fourth appellants are selling the interest of the deceased in the property as administrators. As at the date of the sale agreement the fourth appellants had not extracted the grant of letters of administration of the estate of the deceased, though an order for the grant was made on 10 October 1975 by the assistant registrar of the High Court. In fact, the grant was extracted only on 5 May 1981.

Under cl 4 of the sale agreement the Appellants were to obtain a certificate from the Commissioner of Estate Duties releasing the property from any claim for estate duty payable thereon in respect of the death of the deceased and under cl 9 thereof completion of the sale and purchase of the property was to take place within 14 days after the respondent had received notice of such certificate. On the date when the sale agreement was executed, ie 30 September 1980, the fourth appellants had already obtained the certificate dated 4 September 1980 from the Commissioner under s 37(1) of the Estate Duties Act (Cap 137), and immediately after the sale agreement was executed the appellants gave notice thereof to the respondent. When completion of the sale and purchase of the property was to take place, the solicitors acting for the respondent requested for production of the grant of letters of administration of the estate of the deceased. The solicitors acting for the appellants, on the other hand, took the view that it was not necessary to produce such a grant; the only proof that need to be produced to the Registrar of Titles for the purpose of registering the transfer of the property was the order made for the grant, and this proof could be given in the form of a certified copy of the petition for the grant with the said order endorsed thereon. The said order in this case was given in the form of the words, `Be it so` appearing at the bottom of the petition signed by the assistant registrar of the High Court. As it transpired, no agreement on this point was reached between the respective solicitors, and on 21 January 1981 the solicitors for the appellants invoked condition 5 of the (Revised) Singapore Conditions of Sale (which is a term of the sale agreement) and gave ten days` notice in writing to the solicitors for the respondent to the effect that if on the expiry of ten days from the date of the notice the respondent did not withdraw her requirement for production of the grant of letters of administration of the estate of the deceased, then pursuant to that condition the sale would be annulled. The solicitors for the respondent did not withdraw the requirement, and on 4 February 1981 the solicitors for the appellants wrote a further letter to the solicitors for the respondent stating that as the requirement for production of the grant had not been withdrawn, the sale was annulled.

The respondent then on 13 March 1984 took out an originating summons, entered as No 128 of 1981, pursuant to s 4 of the Conveyancing and Law of Property Act (Cap 268) applying for, inter alia, the following reliefs, namely:

(a) a declaration that the fourth appellants are not entitled to call upon the respondent to complete the purchase of the property without the production of the grant of letters of administration of the estate of the deceased;

(b) a declaration that the notice dated 21 January 1981 given to the respondent pursuant to condition 5 of the (Revised) Singapore Conditions of Sale is invalid and

(c) a declaration that the sale agreement is still subsisting and binding on the parties thereto.

The summons was heard by Lai Kew Chai J who held that the production of the grant of letters of administration of the estate of the deceased was required for completing the sale of the property, and made an order in terms of the summons. Against that decision the appellants appealed. At the conclusion of the appeal we dismissed it with costs to the respondent.

Before us several points were raised and argued by Miss Kao for the appellants, including a point of procedure that the matter should not have been brought before the court by way of an originating summons under s 4 of the Conveyancing and Law of Property Act (Cap 268) but by a writ of summons, on the ground that there were facts in dispute. We have no doubt in our minds that the matter before us falls squarely within the ambit of the said s 4 and the originating summons initiated by the respondent is the appropriate procedure for bringing the matter before the court. From the affidavits filed in support and in opposition thereof there does not appear any dispute on the facts relevant to the points in issue. Essentially this appeal revolves on only two issues:

(a) first, as the fourth appellants are selling the undivided one quarter share of the deceased in the property as personal representatives, whether the grant of letters of administration of the estate of the deceased is required to be produced for the purpose of completing the sale, and

(b) secondly, if the answer to the above is in the affirmative, whether the appellants were justified in invoking condition 5 of the (Revised) Singapore Conditions of Sale.

The first issue was resolved as long ago as 1910 by the decision of the Court of Appeal in MTA Mootiah Chitty v Ong Hai Swee and Anor (1911) 12 SSLR 84. In that case the owner of certain leasehold premises agreed to sell them to one Tan Kah Kee who then entered into a contract to sell them to a purchaser who in turn entered into a further contract to sell the same to a sub-purchaser. Before completion of the sale of the premises to Tan Kah Kee the owner died. Prior to his death the owner had made a will, and his executors applied to court for a grant of probate. The court made an order for the grant of probate but the grant was not extracted until much later. In the meanwhile, the sub-purchaser required completion of the sale of the premises to him by the purchaser. On the date fixed for completion the purchaser tendered an assignment executed by the executors of the will of the owner, by Tan Kah Kee and by him together with a certified true copy of the executors` petition for a grant of probate with the order for the grant in terms of the prayer, ie the words `be it so` endorsed thereon and also an office copy of the testator`s will. The sub-purchaser refused to accept such documents on the ground that no evidence was disclosed of the executors` title to assign and of their power to give a complete discharge for the payment of the purchase money. It was held by the Court of Appeal that the sub-purchaser was entitled to refuse to accept such title from the purchaser. Thornton J in the Court of Appeal at p 92 said:

Pinney v Pinney, 8 B and C 335, already referred to and all the cases that were referred to on behalf of the appellant all go to show that a grant of Probate under the seal of the court must first be made before an executor is able to give a complete indemnity to a purchaser for the purchase money. Mr Emerson has not...