Haji Aminah bte Bakri v Manisah bte Haji Bakri and Others

• Judge: Chao Hick Tin JC
• Judgment Date: 01 November 1988
• Neutral Citation: [1988] SGHC 83
• Citation: [1988] SGHC 83
• Defendant Counsel: Mohamed Kamil bin Fadzlullah Suhaimi (Kamil & Co),Choo Kwun Kiat and Halimah Jalil (HA Jalil & Associates,Robert Wee (Ho & Wee)
• Published date: 19 September 2003
• Plaintiff Counsel: Mirza M Namazie and TM Tan (Mallal & Namazie)
• Date: 01 November 1988
• Docket Number: Originating Summons No 976 of 1987
• Court: High Court (Singapore)
• Subject Matter: 'If necessary',Construction,Parol evidence rule,Executrix granting option for sale of property of estate without consulting co-executrix,Evidence of oral statements admissible to ascertain meaning of clause in option,Exception to parol evidence rule,Words and Phrases,Duty of court in approving sale,Option stipulating sale requiring court's sanction,s 94 Evidence Act (Cap 97),Evidence,Whether executrix duty to secure best price for sale,Succession and Wills,Whether necessary to obtain court's approval to sanction sale,Admissibility of evidence,Co-executrix subsequently receiving higher offer for property

Cur Adv Vult

The plaintiff is one of two executrices and trustees of the estate of one Haji Habsah bte Haji Hassan (the testatrix) who died on 26 December 1983. The other executrix and trustee is the first defendant. Under the will, the testatrix, subject to the payment of just debts and funeral and testamentary expenses, `give, devise and bequeath all my estate both real and personal of whatsoever nature and wheresoever situate unto my trustees absolutely to be divided between them in equal shares`. Both the plaintiff and the first defendant are not the natural but are the adopted children of the testatrix.

On 13 March 1987, by an amended petition, the plaintiff and the first defendant applied for a grant of probate of the said will, which was granted shortly thereafter. However, on 23 January 1987, well before any application was made for the grant of probate and without consulting the plaintiff, the first defendant gave an option to Polysos Enterprises (Pte) Ltd (hereafter called `Polysos`: the third defendant herein) to sell Lot 1448 Mukim 23, otherwise known as No 66 and 66A, Lorong Melayu, off Changi Road, Singapore (the property) at a sum of $432,600. The option was exercised by Polysos on 6 February 1987. The plaintiff was in the dark regarding this proposed sale until 19 February 1987. The property is the only asset of the estate.

The option was given by the first defendant without obtaining a valuation report. At that point in time the first defendant only obtained, through a telephone conversation with a valuer of Debenham Tewson & City Valuers Pte Ltd, a rough indication as to the worth of the property. It was only on 21 February 1987 that the valuer gave a valuation report wherein he stated that the property was valued as on 23 January 1987 at $450,000. For completeness I should at this juncture add that the estate duty branch has on 11 February 1988 placed a value of $800,000 on the property as on the date of death of the testatrix, ie 26 December 1983. Further on 23 March 1988, at the request of the solicitors for the plaintiff, M/s Kiong Chai Woon & Co Pte Ltd gave the following values of the property on the dates indicated:

26 December 1983 $700,000 (date of death of testatrix)

(23) January 1987 $550,000 (date of option)

(3) August 1987 $600,000 (date on which the plaintiff entered into

a conditional contract of sale with a new purchaser)

(23) March 1988 $600,000 (date of valuation report)

On 14 May 1987, the plaintiff received an offer to purchase the property at $560,000. Polysos was asked whether they would match that price. However, they refused, stating that the estate was bound by the option given by the first defendant. Later on 3 August 1987, the plaintiff entered into a conditional contract of sale with the new purchaser at a price of $560,000.

In this originating summons (OS) a number of reliefs are prayed for, the first of which is to seek the court`s disapproval of the sale effected by the option granted by the first defendant to Polysos. As Polysos are obviously interested and would be affected by the first prayer, I allowed, on the application of Polysos, that they be added as the third defendant. The second defendant is a beneficiary of the estate of the testatrix, being a nephew of the testatrix. There is agreement as between the plaintiff and the first and second defendants on all the prayers in this OS. But I should state that on the first prayer, the stand of the first defendant is that she leaves it to the court, since she is the person who gave an option to the third defendant subject to the approval of the court. Therefore, the contest on the first prayer is between the plaintiff and the second defendant on the one side and the third defendant on the other.

The option of 23 January 1987 has the following clause:

15 The property is sold subject to my obtaining the court`s approval to sanction the sale, if necessary.

It is not denied by the third defendant that they knew that the property belongs to the estate of the testatrix and that the first defendant was selling as an executrix. Clauses 10 and 11 of the option say so.

On or about 28 January 1987, before the option was exercised, the third defendant`s solicitor (Mr Tay) rang up the first defendant`s solicitor (Miss Jalil) requesting for a deletion of cl 15 since it was quite unnecessary to obtain the court`s approval; the testatrix died less than six years ago. Miss Jalil informed Mr Tay that the first defendant would not agree to the deletion because although consent of court is not required under s 35(2) of the Conveyancing and Law of Property Act, there `might be beneficiary/beneficiaries in the estate who might be objecting to the sale of the estate property and that as such if any of the said beneficiary/beneficiaries or the residuary legatees in the will of the deceased were to object to the same, a court order sanctioning the sale must be obtained`. Following that telephone conversation a copy of the will of the testatrix was collected on that same day by a clerk of Mr Tay. These facts are not disputed by the third defendant. No affidavit in denial has been filed by either the third defendant or their solicitor, Mr Tay.

Therefore, when the third defendant exercised the option on 6 February 1987, they were well aware of the fact situation, that there is another executrix and trustee who is on the face of the will entitled to a half-share of the estate.

I should also add that arguments have been submitted to me by counsel for the plaintiff that under Muslim law, a Muslim cannot give away more than one-third of his estate by will; that under Muslim law, two-thirds of the estate must go to the heirs of the testatrix unless the heirs agree to the excess bequests. Accordingly the plaintiff submitted that the third defendant must have known or be deemed to have known that there will be other beneficiary or beneficiaries to the estate besides the plaintiff and the first defendant. A related point raised is that Muslim law does not recognize adoption. For reasons dealt with hereafter, there is no need for me to address these questions. Neither did counsel for the third defendant make any submission on them.

There are really two questions for me to decide in relation to the first prayer. First, is there a firm contract to sell and buy the property pursuant to the option given on 23 January 1987 and exercised by the third defendant on 6 February 1987? Second, if the answer to the first question is in the negative, should this court, in the circumstances, approve the said sale.

The answer to the first question will depend on the correct interpretation of the words `if necessary` in cl 15. Counsel for the third defendant submitted that the expression `if necessary` should be construed to mean as required or necessitated by law. He relied on the meanings of the word `necessary` given in Chambers Dictionary and Concise Oxford Dictionary : `indispensable`; `that must be done`. He also cited the case Re Mercury Model Aircraft Supplies Ltd [1956] 2 All ER 885 to say that `cautiousness` is not `necessary`. That case concerned a matter of taxation between solicitor and client.

On the other hand, counsel for the plaintiff argued that `if necessary` should not in the circumstances be interpreted to mean `required by law`. My attention was drawn to a very helpful passage in Black`s Law...