Syed Ali Redha Alsagoff (administrator of the estate of Mohamed bin Ali, deceased) v Syed Salim Alhadad

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 17 July 1996
• Neutral Citation: [1996] SGHC 142
• Docket Number: Originating Summons Nos 437 of 1995 and 787 of 1993
• Date: 17 July 1996
• Published date: 19 September 2003
• Year: 1996
• Plaintiff Counsel: Tan Teng Muan and Wong Khai Leng (Mallal & Namazie)
• Citation: [1996] SGHC 142
• Defendant Counsel: Peter Pang and Bevin Netto (Peter Pang & Co),Palakrishnan and P Balagopal (Palakrishnan and Pnrs)
• Court: High Court (Singapore)
• Subject Matter: Whether Conveyancing and Law of Property Act changed common law in this respect,s 35(1) Conveyancing and Law of Property Act,Administration of assets,Probate and Administration,Defences,Whether administrator of deceased's estate could inherit right to administrate another estate of which deceased was formerly administrator,Equity,Distinction between executors and administrators,Cross-examination of deponent on affidavit,Civil Procedure,Whether current administrator of former administrator's estate automatically becomes trustee of original deceased's estate,Whether administrator becomes trustee on clearing estate's liabilities,Whether application an abuse of process,Equity follows law,Witnesses,Transmission of powers of representation of estate of deceased,Defence of laches only valid against equitable claims,No defence against party who asserted rights in law,Laches

Cur Adv Vult

These proceedings have arisen from the purported sale by the first three defendants to the fourth defendant of a shophouse known as No 13 Jalan Besar, Singapore. The plaintiff claims that the first three defendants had no title to the property and were not competent to sell it to the fourth defendants, Scan Electronics (S) Pte Ltd.

There are two sets of proceedings. The main one is OS 437/95. In this summons, the plaintiff as the administrator de bonis non of the estate of a deceased person seeks to set aside the purported sale. The main claim of the plaintiff is that the property belonged and belongs to the estate of the deceased, and the first three defendants had no right to claim to represent the estate of the deceased and they had no title to the property to pass it to the fourth defendant. The plaintiff also seeks to set aside an ex parte court order made on 27 August 1993 in OS 787 of 1993 (the 1993 originating summons) whereby the first two defendants were authorised by the court to effect the sale. As a counter to the claim by the plaintiff, summonses have been taken out under the 1993 originating summons with a view, if I may summarise it in this way, to remedying any deficiencies in the title of the first three defendants over the property and in their capacity to deal with the property. In this judgment, I shall be dealing mainly with OS 437/95. Except where the context otherwise indicates, references to an originating summons are references to this summons.

The undisputed facts are as follows. In 1944, Mohamed bin Ali bin Faraj Basalamah (`Basalamah` or `the deceased`) died intestate at Madudah, Hadramaut (then in Arabia, now in Yemen) leaving the subject property (the property) in Singapore. He left a wife, two daughters and three sons. Letters of administration to his estate were on 24 November 1953 granted to Syed Abdulkader bin Ahmad Alhadad (Abdulkader Alhadad) as the duly constituted attorney of Shaik Ahmad bin Mohamed bin Ali Basalamah (Ahmad Basalamah), the eldest son of Basalamah, expressed to be until Ahmad Basalamah should come in and apply for a grant to himself. Abdulkader was adjudicated a bankrupt on 8 August 1958 and was not discharged from bankruptcy until October 1979.

Abdulkader Alhadad died intestate on 4 June 1981. On 2 December 1982, letters of administration to his estate were issued jointly to his wife Sharifah Bahaiah bte Ibrahim Alsree (Sharifah) and his son Syed Ibrahim bin Abdul Kadir Alhadad (Ibrahim Alhadad), the third defendant, in Probate No 1508 of 1981.

Dealings with the property

Activities in connection with the sale of the property began in late 1991. On 8 November 1991, the grant of letters of administration to the estate of Abdulkader Alhadad to Sharifah and Ibrahim Alhadad, which had been issued on 2 December 1982, was registered against the property. The registration was effected under provisions of the Registration of Deeds Act, as the property was held under what is colloquially known as common law title, as opposed to a title under the Land Titles Act. On 11 February 1992, Sharifah and Ibrahim Alhadad purported to grant an option to one Yeo Ah Ngoh to purchase the property at the price of $380,000.

By a power of attorney dated 8 January 1990 executed in Yemen and duly deposited in the registry of this court, Ahmad Basalamah and his brother Shaik Hassan bin Mohamed bin Ali Basalamah (Hassan Basalamah) had appointed the plaintiff as their attorney for the purpose of applying for letters of administration de bonis non to their father`s estate and safeguarding assets of the estate.

It may be noted here that Ahmad Basalamah is the same Ahmad Basalamah who had given Abdulkader Alhadad a power of attorney to apply for the original letters of administration to the estate of Basalamah deceased. However, nothing turns on that in these proceedings.

When the plaintiff found out about the proposed sale of the property to Yeo, he instructed his solicitors to write to the solicitors for the estate of Abdulkader Alhadad to object to the sale. The latter were told of his appointment as the attorney, and that he had been instructed to apply for letters of administration de bonis non to the estate of Basalamah. They were also requested to take action to expunge the registration of the grant of letters of administration in favour of Sharifah and Ibrahim against the property. A similar letter was written to the solicitors for the intending purchaser. The administrators of the estate of Abdulkader Alhadad did not comply with the request. However, the sale to Yeo Ah Ngoh did not go through.

On 13 January 1993, Sharifah and Ibrahim executed a deed purporting to appoint Ibrahim himself and his uncle Syed Salim Alhadad bin Syed Ahmad Alhadad (Salim Alhadad), the first defendant, as the new `trustees` of the property. This deed was registered against the property on 23 February 1993. On 10 February 1993, Ibrahim and Salim Alhadad executed a further deed purporting to appoint Syed Hashim bin Abdul Kader Alhadad (Hashim Alhadad), the second defendant, as an additional trustee of the property. This deed was registered against the property on 25 February 1993. So by these two instruments, the first three defendants were purportedly appointed as trustees of the property.

On 29 May 1993, the first three defendants purported to grant an option to the fourth defendant, Scan Electronics (Singapore) Pte Ltd, to purchase the property at the price of $550,000, subject to an order of court sanctioning the sale to be obtained by the vendors within 120 days from the exercise of the option. The option was exercised on 22 June 1993. On 3 August 1993, Scan Electronics lodged a caveat against the property.

On 19 August 1993, the first two defendants applied ex parte by the 1993 originating summons for an order authorising them to sell the property by private treaty at the price of $550,000. On 27 August 1993, the court made an order in terms of the application. I pause here to note that as of the date of the option, all three of the first three defendants had been appointed `trustees` by the various instruments earlier referred to, and the option described them as personal representatives of the estate of Abdulkader Alhadad and as the vendors. However, in the application to court, only two of the three, ie Salim and Hashim, were the applicants, and they were described in the summons and in the order made as the personal representatives of the estate of Basalamah. The affidavit in support, however, set out the history of how the first three defendants came to be appointed `trustees` much in the way I have set it out earlier. It recited the death of Basalamah, the appointment of Abdulkader Alhadad as administrator of the Basalamah estate, the death of Abdulkader Alhadad and the appointment of his widow and Ibrahim as administrators to his estate, and the subsequent appointments of Ibrahim, Salim and Hashim. However, the affidavit described them as `trustees of the estate of Abdulkader Alhadad`.

The order of court authorising the sale by the first two defendants as `personal representatives` of the estate of Basalamah, was registered against the property on 3 September 1993. The sale was completed by a deed of assignment dated 15 October 1993. When the plaintiff discovered this, he lodged a caveat against the property dated 15 April 1994 on behalf of Ahmad and Hassan Basalamah as two of the beneficiaries of the estate of Basalamah deceased.

The course of proceedings

Acting on the power of attorney given to him by the Basalamah brothers, the plaintiff had on 25 June 1990 filed a petition for letters of administration de bonis non to the estate of Basalamah deceased. However, there were delays in the proceedings, and the petition was not granted until 16 September 1994, and the grant was not issued until 22 November 1994. On 8 May 1995, the plaintiff as the administrator de bonis non of the estate of Basalamah deceased took out this originating summons.

On 26 May 1995, Scan Electronics filed an application by summons\_in\_chambers No 3129 of 1955 in this originating summons counterclaiming for a declaration that it is the lawful owner of the property and for an order to expunge the caveat lodged on behalf of Ahmad Basalamah and Hassan Basalamah.

On 5 June 1995, the originating summons came before me on a usual summonses day. On the application of the plaintiff I ordered that he be at liberty to file an affidavit in reply to the affidavit filed by the fourth defendant in support of its claim in the summons in chambers just mentioned. On the assumption that the nature of the case might require cross\_examination on the affidavits, I ordered that deponents of affidavits filed should be made available for cross\_examination on the hearing of the originating summons.

The originating summons went before Goh Joon Seng J on 16 June 1995. His honour directed that the summons in chambers be heard together with the main originating summons and he made certain other procedural directions. One of these required that all affidavits of the first three defendants be filed and served by 7 July. The learned judge also directed that all deponents be made available for cross\_examination at the hearing. The first three defendants did not file any affidavit in pursuance of this order.

The originating summons duly came before me on 15 August, together with the purchaser`s summons in chambers. Also before me was a summons in chambers No 7774 of 1994 taken out by the vendors in the 1993 originating summons seeking an order that the property be vested in them as trustees and that the sale by them on 15 October 1993 for the sum of $550,000 be affirmed. Other summonses were taken out in both originating summonses, and I shall refer to them in due course. The plaintiff appeared as intervenor in the 1993 originating summons for the purpose of resisting applications made under that summons.

The surprise turn

The...