Omar Ali bin Mohd and Others v Syed Jafaralsadeg bin Abdulkadir Alhadad and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 30 May 1995
• Neutral Citation: [1995] SGHC 137
• Docket Number: Suit No 1799 of 1994
• Date: 30 May 1995
• Year: 1995
• Published date: 19 September 2003
• Plaintiff Counsel: TM Tan (Mallal & Namazie)
• Citation: [1995] SGHC 137
• Defendant Counsel: Leslie Netto and Tan Beng Swee (Netto Tan & S Magin),Peter Pang (Peter Pang & Co)
• Court: High Court (Singapore)
• Subject Matter: Security,Relevant factors for consideration,Locus standi,Foreign plaintiffs,Costs,Action to protect property of estate,Parties,Succession and Wills,O 23 r 1 Rules of the Supreme Court,Whether beneficiaries could sue where no letters of administration had been granted,Action to protect property of estate where no letters of administration had been granted,Civil Procedure,Whether action initiated on behalf of estate or in personal capacities,Locus standi of beneficiaries,Whether beneficiaries could sue,Standing

The matter that came before me concerned a question of security for costs. It came by way of an appeal against a decision of the learned assistant registrar who ordered that the plaintiffs be required to furnish security for costs in a sum of $3,000 (up to O 14 stage). Having heard the parties I allowed the appeal and set aside the order for security. I now give my reasons.

This action, which was commenced on 9 November 1994, relates to a property known as No 143 Dunlop Street (the property). One Syed Mohamed bin Ali bin Mohamed bin Abdul Shaikh Altamimi, who died intestate in 1951 (hereinafter called `the intestate`), was at all material times the owner entitled to the unexpired term of a leasehold interest of 999 years in the property, being part of lease marked lot No 79 made on 26 October 1877 between Kavena Koonjam Chitty and Inche Ittam. The plaintiffs, nine in all, are the lawful children, and thus the beneficiaries of the estate of the intestate.

The first to fourth defendants (hereinafter referred to as `the first four defendants`) are the trustees of the estate of Syed Ahmad bin Abdulrahman bin Ahmat Aljunied, who was the reversion holder of the property, by virtue of a deed of appointment dated 24 July 1992. The fifth defendant claims to be a purchaser of the property from the first four defendants. It would appear that sometime on or about 18 March 1994 the first four defendants had without the plaintiffs` knowledge or consent offered the property, including the leasehold interest therein of the intestate, for sale to the fifth defendant by way of an option, which option was apparently exercised by the fifth defendant on 18 May 1994.

By this action the plaintiffs seek a declaration that the unexpired residue of the leasehold interest of 999 years in the property vests in the estate of the intestate and that the purported sale by the first four defendants to the fifth defendant, in so far as it included the leasehold interest of the intestate`s estate, is null and void. The plaintiffs also seek the removal of the caveat lodged by the fifth defendant on 6 October 1994 in so far as it affects the leasehold interest and an injunction to restrain the first four defendants from dealing with the leasehold interest.

Background

One Alwee Alkaff said that he has been the agent of the estate of the intestate since 1972. When his father was alive, the father was the agent. Alwee Alkaff was formally appointed attorney of the plaintiffs on 2 August 1994. He deposed that he had dealt with one Syed Hussain bin Abdulkader bin Abdulrahman Aljunied (Syed Hussain Aljunied), a then trustee of the estate of the reversion holder, who had on 3 January 1978 appointed Alwee Alkaff as agent for Syed Hussain Aljunied to collect and receive rent, etc, due from the tenant of the property. Syed Hussain Aljunied was appointed a trustee of the reversion holder`s estate pursuant to a deed of appointment dated 28 August 1958. On 3 February 1978, Syed Hussain Aljunied gave notice to the lessee/occupier of the property asking for arrears of rent for the years 1958 to 1978 amounting to $20 in all to be paid within 7 days `failing which legal action shall be commenced against (lessee/occupier) with no further notice to recover the amount due`. Alwee Alkaff said that he paid on behalf of the estate of the intestate the rent due on the property for those years, at $1 per year. In addition, he also paid the rent for 1978 to 1984. Alwee Alkaff also averred that he has been collecting rent from the tenant of the property on behalf of the intestate`s estate and has been paying property tax due on the property, and evidence was exhibited to substantiate that. He said, however, that since 1984, Syed Hussain Aljunied had failed to collect the yearly rent from the intestate`s estate and no representative of the reversion holder`s estate had come forward to collect the said yearly rent from the intestate`s estate.

The tenant of the property was one Wong Peng Eng @ Hoe Pee Eng who passed away in 1983. His family continued to stay there after his death. The daughter of the tenant, Hoe Hong Kee (born in 1953), has deposed that while her father was alive he had been paying rent to Alwee Alkaff. As a child she had accompanied her father to Alwee Alkaff`s office at the Arcade to pay rent. She deposed that her family has been staying there even before she was born.

On 25 August 1993 the first defendant wrote to the tenant of the property asking for payment of rent. This was brought to the attention of Alwee Alkaff, who rejected the claim of the first defendant. In view of this demand by the first defendant for rent from the tenant, and of the steps taken by certain individuals to evict the tenant and/or collect rent from the tenant, on 18 May 1994 the plaintiffs lodged a caveat against the property in the Registry of Deeds.

On 6 October 1994 the fifth defendant also lodged a caveat against the whole of 143 Dunlop Street as a purchaser of the property from the first four defendants, as trustees of the estate of the reversion holder. It would appear that sometime also in October 1994, the fifth defendant took steps to negotiate with the occupiers of the property with a view to getting them vacate the premises.

For the reasons aforesaid, on 9 November 1994 the plaintiffs initiated the present action and obtained an ex parte injunction restraining all the defendants from proceeding to conclude the sale of the property. Thereafter, there were some other interlocutory proceedings relating to the production of documents which I need not go into. At the time the appeal came before me, there was also a pending application by the plaintiffs for summary judgment.

Application for security for costs

Then on 29 December 1994 the first four defendants applied for security for costs on the ground that the plaintiffs are ordinarily resident out of jurisdiction. They pointed out that the address of the plaintiffs stated on the writ of summons is just `Tarem, Hydramout, Republic of Yemen`, without house number or street name. They also said that the plaintiffs have not given their identity numbers. In addition, they made the following points on the merits of the plaintiffs` claim:

(i) The leasehold interest was vested in one Shaik Mohamed bin Ali bin Mohamed bin Abdul Shaik and not in Syed Mohamed bin Syed Ali bin Mohamed bin Abdul Shaikh Altamimi .

(ii) The plaintiffs have no legal authority whatsoever to institute the present action; no one has the legal authority to act on behalf of the estate of the intestate until that person has applied to the court for a grant of letters of administration.

Alwee Alkaff, on behalf of the plaintiffs, answered the points as follows:

(i) There is no error in the description of the plaintiffs` address. Tarem (also spelt Tarim) is a village in the governorate of Hydramout and it is in the interior of South Yemen. There is no street name or house number, like villages in China. Alwee Alkaff has corresponded with the plaintiffs and others in the village using only that address.

(ii) The words `Shaik` can either be a name or a title, eg `Datuk` in Malaysia. As a title, `Shaik` need not be used. The word `Syed` is used to describe male descendants of Hussain, the eldest grandson of Prophet Mohamed. As an illustration, Alwee Alkaff said he himself is a Syed but has only used the name Alwee Alkaff.

(iii) `Altamimi` is a family or tribal name. Muslims are generally referred to by their name and their father`s name. The family name may or may not be used.

(iv) While it is true that no personal representative has been appointed to the estate of the intestate, the fact remains that the plaintiffs have a beneficial interest in the estate of the intestate, and thus in the property. The action is necessary to protect the property of the estate.

At a hearing on 6 January 1995 the learned assistant registrar ordered that:

(i) the plaintiffs furnish security to the first four defendants up to the stage of O 14 hearing in the sum of $3,000;

(ii) pending the security to be furnished, all proceedings be stayed; and

(iii) the plaintiffs pay costs of the application fixed at $500.

For completeness, it should be mentioned that a similar application for security for costs was also made by the fifth defendant and a similar order was made by the assistant registrar in respect thereof. I dismissed the plaintiffs` appeal against that order for a different reason. No further appeal is taken by the plaintiffs against the dismissal. Therefore, no more need be said on that.

Defendants` title to the property

It seemed to me clear that in the minds of the first four defendants, they knew of the existence of the leasehold interest of the intestate and that their entitlement as trustees of the estate of the reversion holder to sell the entire property to the fifth defendant was not one without problems or difficulties. This is evident from the option which they granted to the fifth defendant, and which contains the following provisions:

2 The purchaser had agreed to purchase the said property with full knowledge and notice to (sic) the said property and including the existing matters towards the said property which had yet to be resolved.

3 The vendors shall take all steps as necessary to resolve all outstanding matters towards the said property.

4 The purchaser shall be at liberty to rescind and cancel this agreement if in the event the said outstanding matters cannot be resolved within the time fixed for completion and including the failure of the vendors in removing the existing caveat towards the said property.

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9 The vendors confirm that they had determined sooner...