Herman Iskandar v Shaikh Esa and Another

• Jurisdiction: Singapore
• Judgment Date: 13 July 1992
• Date: 13 July 1992
• Docket Number: Originating Summons No 540 of 1992
• Court: High Court (Singapore)

Herman Iskandar

Plaintiff

and

Shaikh Esa and another

Defendant

[1992] SGHC 191

Michael Hwang JC

Originating Summons No 540 of 1992

High Court

Probate and Administration–Administration of assets–Testator devising property to wife–Testator's wife not Singapore citizen–Testator's son executor of estate–Son granting option to purchase property to purchasers–Option exercised upon terms that son required to obtain order of court pursuant to s 35 (2) of the Conveyancing and Law of Property Act (“CLPA”) approving sale–Whether son executor or trustee–Whether son having power to sell property specifically devised to testator's wife–Whether leave under s 35 (2) of the CLPA necessary even though provisions of s 3 of the Residential Property Act mandatory–Sections 35 and 35 (2) Conveyancing and Law of Property Act (Cap 61, 1985 Ed)–Sections 3 (3) and 3 (4) Residential Property Act (Cap 274, 1985 Rev Ed)–Section 59 (1) Trustees Act (Cap 337, 1985 Ed)

The testator, an Indonesian national, devised his property to his wife and appointed his wife and son as the executors and trustees of his will. The testator's wife subsequently died, leaving the son, the plaintiff, as the sole executor. The plaintiff granted an option to the defendants to purchase the property.

The option was exercised upon terms that the plaintiff was required to obtain an order of court pursuant to s 35 (2) of the Conveyancing and Law of Property Act (Cap 61, 1985 Rev Ed) (“the CLPA”) approving the sale. The plaintiff applied for the requisite order and the application was granted on an ex partebasis.

The defendants argued that the plaintiff had no power to sell and had to apply for an order under s 59 (1) of the Trustees Act (Cap 337, 1985 Rev Ed).

The plaintiff argued that he still maintained his status as legal personal representative and had not become a trustee. As legal personal representative he was selling the property pursuant to s 3 (4) of the Residential Property Act (Cap 274, 1985 Rev Ed) (“the RPA”) as part of his duties of administration of the estate.

Held, granting the declaration:

(1) Whether the plaintiff was still an executor or whether he had become a trustee was beyond argument because of the express provisions of s 3 of the RPA. The net effect of s 3 was to make the disposal of the residential property part of the duties of the administration of an estate by a legal personal representative. Accordingly, so long as the residential property had not been sold pursuant to s 3, the Legislature had precluded the change in capacity from legal personal representative to trustee, even if all other duties of the legal personal representative had been performed: at [10].

(2) On the evidence, the plaintiff did not appear to have completed his duties of administration of the estate at the time of sale contract, despite the lapse of time since the testator's death: at [11].

(3) The argument raised by defence counsel that, notwithstanding s 3 of the RPA, the plaintiff had no power to sell property which had been specifically devised to the testator's wife, must fail. First, the imposition of a legal duty by the Legislature on a person must connote a power to carry out that duty. The power to sell the property stemmed from the duty imposed by s 3 (4) of the RPA. Since the legal personal representative had power to sell, s 59 (1) of the Trustees Act was inapplicable, since that subsection could only be invoked where the trustee had no power in law to sell. Second, although that property had been specifically devised, that devise was ineffective as such by virtue of s 3 (3) and the legal personal representative was empowered by s 3 (4) to sell the property: at [13].

(4) Even though the provisions of s 3 of the RPA were mandatory, leave should still be applied for under s 35 (2) of the CLPA: at [16].

(5) As the plaintiff was selling as legal personal representative pursuant to s 3, he must sell within the statutory period, which was ten years or such further time as the Controller may think fit: at [17].

Safiah binte Tahar also known as Safiah binte Taga, deceased, Re the estate of [1940] MLJ 285 (folld)

Harvell v Forster [1954] 2 QB 367 (folld)

Wong Boon Pin v Wong Boon Wah [1989] 1 SLR (R) 189; [1989] SLR 296 (refd)

Conveyancing and Law of Property Act (Cap 61, 1985 Rev Ed)s 35 (2) (consd);s 35 (1)

Residential Property Act (Cap 274, 1985 Rev Ed)ss 3 (3), 3 (4) (consd);ss 3 (6),36

Trustees Act (Cap 337,1985 Rev Ed)s 59 (consd)

Herman Jeremiah (Haridass Ho & Partners) for the plaintiff

T P B Menon (Wee Swee Teow & Co) for the defendants.

Judgment reserved.

Michael Hwang JC

1 This is a friendly action between the vendor and the purchaser of a property to determine the proper order of court to be made in respect of the proposed sale.

2 The property in question is 12 Namly Garden...