Sitiawah Bee bte Kader v Rosiyah bte Abdullah

• Jurisdiction: Singapore
• Judge: S Rajendran J
• Judgment Date: 12 October 1999
• Neutral Citation: [1999] SGHC 267
• Docket Number: Originating Summons No 10 of 1999
• Date: 12 October 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Kurubalan R and Leonard Anthony Netto (Netto & Netto)
• Citation: [1999] SGHC 267
• Defendant Counsel: Raadthie Vijayan-Nair (Tang & Tan)
• Court: High Court (Singapore)
• Subject Matter: Land,ss 53(5) & 65(6) Land Titles Act (Cap 157),Whether presumption applicable to HDB flats,Creation of tenancy in common,Trusts,s 51(4) Housing and Development Act (Cap 129),Presumed resulting trusts,Whether resulting trust over HDB flat prohibited by statute,Resulting trusts,Proportion of contribution made to purchase price,Interest in land,HDB flat,Joint tenancy,When presumption arises,Severance of joint tenancy,Proportion of each co-owner's interest in property

: In 1980 the plaintiff and the defendant (who are mother and daughter respectively) applied for and were allocated a Housing and Development Board (`HDB`) flat at Ang Mo Kio. The flat was registered in their names as joint tenants. The purchase consideration for the flat was $27,100. The initial deposit for the flat ($6,231) came from the plaintiff`s late husband and the remainder was paid by the defendant through the defendant`s CPF account.

In recent years, the relationship between the two became strained and the plaintiff desired to move out of the Ang Mo Kio flat and reside at an HDB flat at Yishun to be jointly purchased by the plaintiff and another daughter of the plaintiff. A contract for the purchase of the Yishun flat was entered into and submitted to the HDB for approval. The HDB would not approve of the purchase unless the plaintiff and the defendant undertook to sell the Ang Mo Kio flat. The defendant refused to consent whereupon she received a letter from the plaintiff`s solicitor, dated 17 November 1998, which stated:

We act on behalf of Hajjah Sitiawah Bee bte Kader. Our instructions are as follows:

1 The above premises was the family home following resettlement scheme.

2 The deposit and renovation costs was paid by our client and mortgage payments by yourself.

3 Our client is desirous of disposing her interest, and she is in the process of purchasing another HDB flat.

4 We propose that you contact us urgently, to discuss an amicable settlement, immediately on receipt of this letter.

5 However, if we do not hear from you within seven (7) days of this letter, we hold firm instructions to commence proceedings without further notice.

Kindly contact our Mr Kuru of our office with regards to the same.

The defendant did not respond to this letter. The plaintiff therefore commenced these proceedings wherein she sought, inter alia, the following orders:

(a) The leasehold interest in the property known as Blk 524, Ang Mo Kio Avenue 5, [num ]08-4126, Singapore 560524 (the `flat`), may be ordered to be sold, assigned or transferred in the open market by private treaty under s 18(2) of the Supreme Court of Judicature Act (Cap 322), subject to the approval of the Housing and Development Board and in accordance with the rules and regulations of the Housing and Development Board.

(b) The proceeds of sale, assignment or transfer of the flat, less the costs of such sale, assignment or transfer may be used to discharge the charge held by the Central Provident Fund Board and thereafter be distributed between the plaintiff and the defendant in the same proportion as the contribution which both the plaintiff and the defendant made towards the purchase of the flat or in such ratio or proportion as the court deems fit.

(c) Any other order which may be necessary for prayers (a) and (b) herein including an order that the joint tenancy of the premises held by the plaintiff and the defendant be severed and/or a declaration that the said joint tenancy has been or be severed and that the plaintiff and the defendant hold the leasehold interest in the flat as tenants-in-common in the same proportion as the contribution which the plaintiff and the defendant have made towards the purchase of the flat or in such share or ratio as the court deems fit.

Although in prayer (b) above the plaintiff had sought an order that the sale proceeds of the flat be distributed between the parties in the same proportion as the contributions which each party made, the plaintiff`s case before me proceeded on the basis that as resulting trusts are prohibited by s 51(4) of the Housing and Development Act, the plaintiff and the defendant were entitled to an equal share of the sale proceeds whilst the defendant`s case was that as she had contributed all or, alternatively, the major portion of the purchase price, she should be entitled to all, or alternatively, such proportion of the sale price as was proportionate to her contribution.

With regard to prayer (c), although the plaintiff sought an order that the joint tenancy be severed, the plaintiff had in fact, prior to the hearing of the originating summons, unilaterally severed the tenancy by invoking the provisions of ss 53(5) and (6) of the Land Titles Act. These provisions read as follows:

(5) Without prejudice to any rule or principle of law relating to severance of a joint tenancy, any joint tenant may sever a joint tenancy of an estate or interest in registered land by an instrument of declaration in the approved form and by serving a copy of the instrument of declaration personally or by registered post on the other joint tenants.

(6) Upon the registration of the instrument of declaration which has been duly served as required by subsection (5), the respective registered estates and interests in the registered land shall be held by the declarant and the remaining joint tenants as tenants in common in their respective shares.

The approved form of the instrument of declaration prescribes the following form of words to be used in the declaration:

... that I am the registered proprietor of the land as joint tenant together with the other Registered Proprietor hereinafter mentioned and that I wish to sever the joint tenancy and hold the land as a tenant-in-common with the Registered Proprietor in the share proportionate to the number of joint tenants.

The plaintiff made the prescribed declaration naming the defendant as the other registered proprietor, served the declaration on the defendant as required by s 53(5) and had the instrument registered with the Registrar of Land Titles. By serving the instrument on the defendant, the plaintiff effectively severed the joint tenancy and created a tenancy-in-common with the defendant in equal shares and by registering the instrument with the Registrar of Titles, the plaintiff gave notice to third parties of that fact.

The affidavits filed by the defendant in these proceedings were extremely lengthy. In them the defendant delved in great detail into her personal relationship with her mother (plaintiff) and siblings. The evidence of the defendant was that from the very beginning the parties had intended that the flat should belong to the defendant and the defendant alone. She alleged that, for that reason, her late father had provided the initial deposit on her behalf and not on behalf of the plaintiff. She claimed that her father had done so because she (defendant) was the most filial and responsible of his children. The defendant claimed that in addition to paying the balance of the purchase price she had also borne the costs of all renovations, utilities and maintenance of the flat.

The plaintiff, on the other hand, claimed that the initial deposit paid by her late husband was on her behalf and not on behalf of the defendant. The plaintiff also claimed that she had paid about $5,000 for the initial renovation costs of the flat and borne the maintenance costs and utilities charges for the flat. The plaintiff did not, however, dispute that it was the defendant who paid the balance of the purchase price. Some of the other siblings of the defendant, who were residing or had resided at the flat, claimed that they had all contributed to the purchase and maintenance of the flat.

Counsel for the defendant submitted that the plaintiff, not having made any contribution towards the purchase price, held her entire interest in the joint tenancy (and, after the severance, the tenancy-in-common) in trust for the defendant. She submitted, in the alternative, that in equity each party was beneficially entitled only to such part of the tenancy as was proportionate to the contribution made.

Findings of fact

Given the circumstances of the family at that time and the need to have a home after they had been evicted from their premises at Changi, it seems to me more likely than not that the late father, in providing the money for the initial deposit,...