Payna Chettiar v Maimoon bte Ismail and Others

JudgeChao Hick Tin J
Judgment Date14 April 1997
Neutral Citation[1997] SGHC 95
Citation[1997] SGHC 95
Defendant CounselBenjamin Goh (Bernard, Rada, Barker & Pauline Chen),Chandra Mohan (Rajah & Tann)
Published date19 September 2003
Plaintiff CounselLow Chai Chong (Rodyk & Davidson)
Date14 April 1997
Docket NumberSuit No 1074 of 1994
CourtHigh Court (Singapore)
Subject MatterRights of bona fide purchasers for value without notice,Relief,Equity favoured such purchasers,Bona fide purchasers,Order of court,O 14 r 12 Rules of Court 1996,s 75 Conveyancing and Law of Property Act (Cap 61),Summary proceedings,Order of court not to be invalidated as against purchasers,Whether such purchasers entitled to rely upon a judgment in rem for title to property,Civil Procedure,Land,Sale of land,Determination of question of law or construction of document,Claim that default judgment obtained without proper service,Equity,Purchasers obtained title to property pursuant to default judgment,Whether application should finally determine entire cause or matter

This is an action by the plaintiff for a declaration that lots 1825 and 1827 Mukim 23 (the property) on which premises now known as Nos 36, 38, 38A and 38B Jalan Kechot stand, belong to him and that certain dealings on the property are null and void. There are altogether nine defendants to this action. What is now before me is an application by the third to ninth defendants, pursuant to O 14 r 12, for a determination of a question of law, namely, whether as pleaded in the statement of claim the plaintiff is entitled to the reliefs against the defendants. The second defendant associated itself with that application. Hereinafter I shall refer to the second to ninth defendants as `the defendants`.

Background

The plaintiff (hereinafter called `Payna`) became the owner of the property by virtue of an indenture of conveyance dated 13 June 1949. The property then had only a house on it called No 38 Jalan Kechot (the premises). In Suit No 2448/87, the first defendant herein, whom I will hereinafter call `Maimoon`, sued Payna for a declaration that all the rights and title of Payna in the property had been extinguished by virtue of the Limitation Act.

In that suit Maimoon averred that her father was the tenant of the premises paying a monthly rent of $10.
Her father was a tenant even before Payna became the owner. In 1960 her father died and she continued to reside therein and pay the rent. Maimoon asserted that in December 1969 a different person came to collect rent and she refused to pay unless the person showed his authority. Since then she did not pay rent to anyone and neither did anyone come to collect rent. Maimoon alleged that she had been paying the property tax for the property since 1970.

On 22 January 1988 judgment in default of defence was entered against Payna in Suit No 2448/87 wherein it was declared that Maimoon was entitled to the property by adverse possession and that Payna`s rights as owner had been extinguished.
The judgment also ordered that the Registrar of Deeds and/or the Registrar of Titles do register the declarations and orders made therein. Those declarations and orders were duly registered in the Registry of Deeds.

On 12 August 1988, Maimoon offered to sell the property and the sale was completed on 22 February 1989 to Chung Sin Realty Pte Ltd (Chung Sin), the second defendant herein.


The property (namely lots 1825 and 1827) was subsequently amalgamated with lot 1829 and the three lots were given a new number, lot 4289.
This combined lot was thereafter sub-divided into lots 4290 to 4293 (the four lots). Chung Sin developed separate dwellings on each lot and a qualified title in respect of each lot under the Land Titles Act was issued. Lot 4290, with the dwelling erected thereon (No 36 Jalan Kechot) was sold to the third to fifth defendants as tenants in common in equal shares; lot 4291 ( with house No 38 Jalan Kechot) to the sixth and seventh defendants as joint tenant and lot 4292 (with house No 38A Jalan Kechot) to the eighth and ninth defendants as joint tenants. Lot 4293 (with house No 38B Jalan Kechot) is still being held by the second defendant. Thus, by 1991 the defendants became the registered owners of the four lots.

On 4 August 1993, Payna entered a caveat against all four lots.
On 22 September 1993 Payna applied to set aside the judgment obtained by Maimoon on 22 January 1988 in Suit No 2448/87. On 24 October 1994, upon hearing counsel for Maimoon and for Payna, the court set aside the said judgment and gave time to Payna to file his defence. I must observe that, even though Payna knew the defendants have acquired rights and interests to the four lots as bona fide purchasers, as he instructed the commencement of the present action on 30 June 1994, yet no notice of the application to set aside the judgment in Suit No 2448/87 was given by Payna to the defendants.

In the statement of claim filed herein, Payna states that he is an Indian citizen and a permanent resident of India.
His properties in Singapore and Malaysia were being managed by agents. He was last in Singapore in June 1970. He avers that Maimoon had paid rent to his agents until 5 August 1982. It was only for a short period that he did not have any agents to manage his Singapore properties. He asserts that it is not true that from 1970 Maimoon was in adverse possession of the property (lots 1825 and 1827) and had paid property tax therefor. He says that his agents had paid property tax up to 1990. Indeed, in 1977, pursuant to a notice from the relevant authorities, his agents instructed contractors to carry out modern sanitation works and paid for the same; Maimoon was aware of that. Payna also contends that as he was not within jurisdiction at the relevant time, service of the writ in Suit No 2448/87 by substituted service was not good service and the default judgment obtained was as a result irregular. Payna also alleges fraud against Maimoon.

However Payna does not in the statement of claim assert that the second defendant was not a bona fide purchaser of the property from Maimoon; neither does he allege that the third to ninth defendants were not bona fide purchasers from the second defendant.
The only allegations made by Payna against the defendants to contend that they have not acquired any title or interest to their respective lots are contained in paras 18 and 19 of the statement of claim and it is important that I set out those two paragraphs:

18 By reason of the untrue and false statements in the first defendant`s statutory declaration and statement of claim Suit No 2448 of 1987 and the fraud perpetuated therein the first defendant did not get any legal beneficial and/or possessory interest to the said land and premises and as such she was incapable of passing any legal beneficial or possessory interest to the said land and premises to any one at all.

19 Consequently no legal beneficial or possessory interest to the said land and premises or any part thereof ever passed to any of the (second to ninth) defendants.



It is not alleged that the defendants knew or ought to have known of the false statements in Maimoon`s statutory declaration or in the statement of claim filed in Suit No 2448/87.


Counsel for the defendants argued that, even accepting what Payna alleged as regards the property to be true, and that Maimoon was not entitled to it on the ground of adverse possession, the rights of a bona fide purchaser/sub-purchaser who relied upon a judgment of adverse possession cannot be affected by the wrongdoing of Maimoon and that the judgment should not have been set aside.
If this submission of the defendants is correct, it would dispose of the action without the need for a trial.

Rights of bona fide purchasers

It is settled law that a judgment by default is no less a judgment and is good and enforceable unless it is set aside: see Issac v Robertson [1984] 3 All ER 140 and Pembinaan KSY Sdn Bhd v Lian Seng Properties Sdn Bhd [1991] 1 MJL 100 .

A judgment in rem is a judgment of a competent court in respect of a res actually or constructively within the jurisdiction of the court and the judgment must determine the right to, or disposition of, such res in the control of the court: Carr v Fracis Times & Co [1902] AC 176 .
A judgment in rem is, `as regards persons domiciled and property situated within the jurisdiction of the court pronouncing the judgment, exclusive against all the world in whatever it settles as to the status of the persons or property, or as to the right or title to the property, and as to whatever disposition it makes of the property itself or of the proceeds of its sale. In other words all persons, whether party to the proceedings or not, are estopped from averring that the status of persons or things or the right or title to property, is other than the court has by such a judgment declared or made it to be`: 16 Halsbury`s Laws England para 984.

However, fraud will vitiate a judgment so obtained.
An exception to that is probably the case where a purchaser has acquired title to property in good faith and for value upon the faith of a judgment in rem: Louis Castrique v William Imrie & Anor [1869] 4 LR HL 414 .

In 16 Halsbury`s Laws of England para 1000, the learned authors stated the law as to fraud on judgment as follows:

Fraud is an extrinsic, collateral act which vitiates the most solemn proceedings of courts of justice. A judgment obtained by fraud or collusion, even, it seems, a judgment of the House of Lords, may normally be treated as a nullity. An exception to the generality of those propositions should probably be made where a purchaser has acquired title to property in good faith and for value upon the faith of a judgment in rem. Apart from this they may be accepted without qualification in favour of persons who were not party to the judgment, whether it was in rem or in personam. [Emphasis added.]



In Pilcher v Rawlins [1872] LR Ch App 259 , two sets of situation were involved.
First situation: the trustees of a settlement advanced trust...

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