Syed Ahmad Jamal Alsagoff (administrator of the estate of Noor bte Abdulgader Harharah, (deceased) and others v Harun Bin Syed Hussain Aljunied (alias Harun Aljunied) and others and other suits

• Judge: Belinda Ang Saw Ean J
• Judgment Date: 26 November 2010
• Neutral Citation: [2010] SGHC 347
• Citation: [2010] SGHC 347
• Published date: 14 December 2010
• Docket Number: Suit Nos 263, 264 and 271 of 2010 (SUM Nos 2248, 2250 and 2249 of 2010)
• Year: 2010
• Plaintiff Counsel: Kirpal Singh (Kirpal & Associates),Mirza Namazie, TM Tan and Wong Khai Leng (Mallal &Namazie
• Hearing Date: 12 August 2010,07 June 2010,30 August 2010
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure

Belinda Ang Saw Ean J: Introduction

The first defendant, Harun bin Syed Hussain Aljunied @ Harun Aljunied (“D1”), and the second defendant, Syed Abdulkader bin Syed Ali @ Syed Abdul Kader Alhadad (“D2”) applied to strike out three actions relating to three properties known as Nos 18, 20 and 22 Upper Dickson Road, Singapore. The striking out applications in all three actions, viz, Summons No 2248 of 2010 in Suit 263 of 2010, Summons No 2249 of 2010 in Suit 271 of 2010, and Summons No 2250 in Suit No 264 of 2010, were dismissed on 12 August 2010. The costs orders made on 30 August 2010 required D1 and D2 to pay costs fixed at $20,000 plus reasonable disbursements for all three striking out applications. D1 and D2 have appealed against the orders.

Suit No 263 of 2010 (“Suit 263”) concerns the property known as No 20 Upper Dickson Road (“No 20”); Suit No 264 of 2010 (“Suit 264”) concerns the property know as No 22 Upper Dickson Road (“No 22”), and Suit No 271 of 2010 (“Suit 271”) concerns the property known as No 18 Upper Dickson Road (“No 18”). I shall refer to these three properties collectively as “the properties”. For convenience, the plaintiffs in the three actions are collectively referred to as “the 2010 Plaintiffs”, and the three actions are collectively referred to as “the 2010 Proceedings”.

D1 and D2 are said to be the present trustees of the estate of Syed Ahmad bin Abdulrahman bin Ahmat Aljunied (“Ahmad Aljunied”). In 1994, the trustees of the estate of Ahmad Aljunied were supposedly Syed Salim Alhadad bin Syed Ahmad Alhahad (“Salim”); Syed Ahmad Alhadad bin Syed Abdulkadir Alhadad (“Ahmad”); Syed Jafaralsadeg bin Abdulkadir Alhadad (“Jafaralsadeg”); and Syed Ibrahim bin Adbulkadir Alhadad (“Ibrahim”). I shall refer to these four individuals collectively as “the former trustees”. D1 and D2 in their Defence (Amendment No 2) pleaded that the former trustees were appointed trustees of the estate of Ahmad Aljunied by Order of Court dated 27 November 1992 in Originating Summons No 1122 of 1992 (“OS 1122/1992”). By that Order of Court dated 27 November 1992 (hereafter referred to as “the 1992 Order”), the properties in question, amongst others, were vested in the former trustees subject to the trusts of the will of Ahmad Aljunied.

The third defendant, BMS Hotel Properties Pte Ltd (“BMS Hotel”) did not appear in the proceedings and was not represented.

In substance, there were two applications in each action before me: (a) an application for an interim injunction against D1 and D2; and (b) an application to strike out the action. I was only required to decide on the striking out applications. The other applications for an interim injunction were amicably resolved between the parties on 12 August 2010.

The claims in the three actions (the 2010 Proceedings)

The 2010 Plaintiffs have filed pleadings and affidavits setting out the following material facts.

By a Deed dated 27 December 1877, Kavena Koonjan Chitty granted the leasehold interest in the properties for a period of 999 years to Moona Meyna Meyappa Chitty. In 1892, Ahmad Aljunied became the owner of the properties in fee simple subject to the 999-year leasehold interest (“the freehold reversion”). Ahmad Aljunied died in 1894. Over the years, the leasehold interest in the properties was assigned from time to time to different persons, the last assignment ended with the following individuals as lessees: (a) No 20: In 1969, the 999-year leasehold interest was assigned to Shaikh Ali bin Abdulgader Harharah (“Ali”). In 1973, Ali assigned one-third share in the leasehold interest of No 20 to his sister, Noor binte Abdulgader Harharah (“Noor”). Noor died on 12 December 1990. Ali died on 17 May 1997. Prior to his demise, he was the administrator of his sister’s estate. The present administrators of Noor’s estate are the first and second plaintiffs in Suit 263. The first plaintiff is Syed Ahmad Jamal Alsagoff (“Jamal”). The second plaintiff is Abdul Majid Omar Harharah. The third to sixth plaintiffs are the beneficiaries of Ali’s estate. The fifth plaintiff is Kamal bin Ali Harharah (“Kamal”). The fourth plaintiff, Kamiliah binte Ali Harharah and one Murtadha Abdulqader have applied for Letters of Administration in Probate No 71 of 1999. The application has been granted and estate duty has been paid. However, at the time Suit 263 was filed, the Grant of Letters of Administration had not been issued. (b) No 18: In 1969, the 999-year leasehold interest was assigned to Syed Mohamed bin Hashim bin Mohamad Alhabshi (“Mohamad”). Mohamad died on 18 August 1973. The first and second plaintiffs in Suit 271 are the daughters of Mohamad. The first plaintiff is Fatimah Mohamed Hashim Alhabshee (“Fatimah”). The second plaintiff is Buhaya Mohamed Hashim Alhabshee (“Buhaya”). The third to sixth plaintiffs are the derivative beneficiaries of the estate of Mohamad. Jamal is the plaintiffs’ attorney in the proceedings. As attorney, he has applied for Letters of Administration for the estate of Mohamad. He has been appointed Administrator of the estate, but the Grant of Letters of Administration had not been issued at the time Suit 271 was filed. (c) No 22: In 1969, the 999-year leasehold interest was assigned to Shaikhah Fitom binte Ghalib bin Omar Al-Bakri @ Fetum binte Galib (“Fitom”). Fitom died on 16 February 1973. The first to fifth plaintiffs in Suit 264 are the derivative beneficiaries of the estate of Fitom. Jamal is the plaintiffs’ attorney in the proceedings.

In 1994, the former trustees purported to transfer the leasehold and freehold reversion in the three properties to BMS Hotel. The transfer was by an Indenture dated 12 May 1994 (“the Conveyance”). The consideration for the transfer was stated to be $1.4m, and the receipt of the consideration was acknowledged by the former trustees as vendors in the Conveyance. By a Deed of Rectification and Confirmation dated 1 November 1994 (“the Confirmation”), the former trustees confirmed that they had conveyed to BMS Hotel the leasehold, and allowed the merger of the leasehold and the freehold reversion.

The 2010 Plaintiffs’ case is that the former trustees had no legal basis to claim that they were vested with the leasehold interest in the properties. As such and to the extent the Conveyance and the Confirmation purported to assign the leasehold interest, the Conveyance and the Confirmation were executed fraudulently. Further or in the alternative, the Conveyance and the Confirmation were executed pursuant to a conspiracy by the former trustees among themselves and/or with BMS Hotel (by way of lawful and/or unlawful means) with the primary intention of causing loss to the 2010 Plaintiffs and their predecessors-in-title by depriving them of the leasehold interest in the properties.

The 2010 Plaintiffs also pleaded that the former trustees and BMS Hotel are liable to account to them as constructive trustees having intermeddled in the leasehold interest and with the trusts in respect of the estates of Noor and Ali, the estate of Fitom, and the estate of Mohamad.

In relation to the claim against D1 and D2, the 2010 Plaintiffs say that since March 2010, D1 and D2 had interfered with the possession of the properties by demanding that the tenants and occupiers pay rental to them. In addition, D1 and D2 had also in their letter dated 9 April 2010 to the solicitors of the 2010 Plaintiffs, M/s Mallal & Namazie, claimed to have taken possession of the properties. By their acts and conduct, D1 and D2 had acted fraudulently with the intention of depriving the 2010 Plaintiffs of their rights and estate in the leasehold interest. Furthermore, D1 and D2 are liable to account to the 2010 Plaintiffs as constructive trustees having intermeddled in the leasehold interest and with the trusts in respect of the estates of Noor and Ali, the estate of Fitom, and the estate of Mohamad.

There is also an assertion that following the Conveyance of the freehold reversion to BMS Hotel, and of the fact that BMS Hotel had not derived title to the leasehold properties as the former trustees had no title or interest in the leasehold to pass to BMS Hotel, D1 and D2 as trustees of the estate of Ahmad Aljunied have no standing to assert any proprietary interest in the properties, whether of the reversionary interest or the leasehold interest.

The 2010 Plaintiffs are seeking, inter alia, a declaration that the transfer of the leasehold to BMS Hotel by the former trustees was null and void, and that the third defendant, BMS Hotel, acquired no leasehold interest in the properties. The 2010 Plaintiffs are seeking an order to rectify the Register of Deeds by expunging and/or cancelling the entries in the Register in favour of BMS Hotel. The 2010 Plaintiffs also seek a declaration that D1 and D2 have intermeddled in the leasehold interest and/or the respective estates.

The 2010 Proceedings made specific reference to the orders made at a pre-trial conference (“PTC”) in Originating Summons No 1234 of 1994 (“OS 1234/1994”) and Originating Summons No 1052 of 1995 (“OS 1052/1995”) on 28 May 1999 (hereafter collectively referred to as “the May 1999 Orders”). As a consequential relief, the 2010 Plaintiffs have asked for the May 1999 Orders to be set aside. I shall explain the May 1999 Orders later.

Separately, the 2010 Plaintiffs filed applications for an interim injunction against D1 and D2 to restrain them from interfering with the tenants and evicting them. The injunction applications were not heard as D1 and D2 gave their agreement in lieu of a court order that pending the resolution and/or final outcome of the 2010 Proceedings, they would not: (a) deal in any way with the unexpired 999-year leasehold interest in respect of Nos 18, 20 and 22 Upper Dickson Road; and (b) make any representation to any person or party, oral, written or by way of conduct or otherwise,...