Syed Salim Alhadad and Others v Dickson Holdings Pte Ltd

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 29 January 1997
• Neutral Citation: [1997] SGHC 25
• Docket Number: Suit No 1837 of 1994
• Date: 29 January 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: KS Chung and SB Shah (SB Shah)
• Citation: [1997] SGHC 25
• Defendant Counsel: HM Dyne and KK Tang (Tang & Partners)
• Court: High Court (Singapore)
• Subject Matter: Locus standi,Trustees,Appointment of trustees of estate of deceased,Trusts,Appointment,ss 45 & 60 Trustees Act (Cap 337),Whether plaintiffs must have beneficial interest in estate of deceased to make application,Circumstances under which appointment of new trustee can be made,Trust estate,Entitlement to freehold reversionary interest of trust properties

This is an application by the defendants for a declaration that the plaintiffs do not have locus standi to institute this action against the defendants and for an order that the action be dismissed.

In this action, the plaintiffs in their alleged capacity as trustees of the estate of Syed Ahmad bin Abdul Rahman bin Ahmat Aljunied (the testator) claim against the defendants possession of certain properties known as No 1, 7, 9 and 17 Dickinson Road. I shall refer to No 1, 7 and 9 as the first three properties, and No 17 by its own name.

The facts concerning these properties are only sketchily set out in the pleadings. The statement of claim in particular is vague and short on particularity. It would appear that all four properties were the subject of leases for terms of 999 years created by Elizabeth Campbell on 1 August 1859. It is alleged that the plaintiffs as the trustees of the will of the testator are entitled to the freehold reversionary interest of the properties. In relation to all four properties, it seems to be alleged that the party who purported to sell them to the defendants had no title to convey to the defendants. Alternatively, it is alleged that by dealing with the property by way, inter alia, of a mortgage on 7 December 1990 the defendants have repudiated the title of the plaintiffs and the plaintiffs have accepted the repudiation. It seems to be further alleged that in relation to all four properties, the leases of 1 August 1859 provided for the payment to the freeholder of an annual rent of one Spanish dollar. Since this has not been paid, the plaintiffs are entitled to forfeit the leases.

The defendants contend that the statement of claim should be struck out as disclosing no cause of action or as an abuse of the process of court. Without prejudice to this position, they filed a defence. In relation to No 17, the defendants say that their predecessors in title had been in uninterrupted possession adverse to the plaintiffs and to the plaintiffs` predecessors in title since 30 June 1905. The defendants therefore assert that they are entitled to the freehold estate of this property. Alternatively, if the plaintiffs have a title to the property, that title is subject to the 999 year leasehold, and the plaintiffs are not entitled to bring proceedings for the possession of the property. In relation to the other three properties, the defendants say that if the plaintiffs are able to prove their title as freeholders, their title is subject to the 999-year leasehold and they are not entitled to bring proceedings for the recovery of possession. As for the non-payment of the rent of one Spanish dollar a year, the defendants say that that does not entitle the plaintiffs to claim a forfeiture of the leases in the circumstances.

The defendants` objection to the plaintiffs` title to sue is based on the ground, as they say, that the plaintiffs are not the properly appointed representatives of the estate of the testator and are not vested with the legal estate in the properties.

The history of how the plaintiffs came to be appointed trustees of the estate of the testator is contained in affidavits filed by or on behalf of the first two plaintiffs in OS 1122/92, in which the first two plaintiffs applied for an order that they be appointed the trustees of the will of the testator and for the validation of the appointment of the third and fourth plaintiffs as such trustees by a deed of appointment dated 24 July 1992. These affidavits disclose the following facts, which, as far as they go, are not disputed.

The testator died on 26 July 1894. He left a will in Arabic dated 4 May 1894 by which he appointed the following persons, who were his brothers, as his executors and trustees:

(i) Syed Allawie bin Abdulrahman bin Ahmad Aljunied;

(ii) Syed Mohamed bin Abdulrahman bin Ahmad Aljunied;

(iii) Syed Omar bin Abdulrahman bin Ahmad Aljunied.

Probate was granted to Syed Mohamed bin Abdulrahman bin Ahmad Aljunied, the second named person above, on 16 April 1895, leave being reserved to the other two brothers to prove the will, which they never did. These two are now presumed dead. Syed Mohamed himself died in October 1920.

By a succession of court orders and deeds of appointment after Syed Mohamed`s death, various persons were appointed trustees of the testator`s estate, which included the testator`s interest in the properties subject of this suit. It is not necessary to name them all or to refer to these court orders and deeds of appointment until we come to 31 October 1940. By a deed of that date, Shaik Almas bin Sallim Yagood as the surviving trustee appointed Syed Ahmad bin Abdulkader Alhadad as a new trustee to act jointly with him, and the properties were vested in them subject to the trusts of the will of the testator. Syed Ahmad bin Abdulkader Alhadad will feature prominently in the issue raised in this summons, and I shall for short refer to him as `Ahmad Alhadad`.

The position as of 30 May 1958

There were subsequent appointments, so that from 27 August 1954, the trustees of the will of the testator, in whom the legal estate in the properties was vested, were as follows:

(i) Ahmad Alhadad himself;

(ii) Syed Abdulkader bin Ahmad Alhadad;

(iii) Syed Shaik bin Mohamed bin Abdulrahman Aljunied; and

(iv) Syed Ali bin Mohamed bin Abdulrahman Aljunied.

Of the four, Ahmad Alhadad died on 30 May 1958, and Syed Abdulkader retired as a trustee on 27 August 1958 on account of his bankruptcy. He was replaced by Syed Hussain bin Abdulkader bin Abdulrahman Aljunied. So as from 27 August 1958, the trustees of the will of the testator were:

(i) Syed Shaik bin Mohamed bin Abdulrahman Aljunied;

(ii) Syed Ali bin Mohamed bin Abdulrahman Aljunied; and

(iii) Syed Hussain bin Abdulkader bin Abdulrahman Aljunied

Chain of representation of the estate of Ahmad Alhadad

What followed needs to be stated in some detail. As stated above, Ahmad Alhadad died on 30 May 1958. He left a will dated 14 October 1955 whereby he appointed his sons Syed Abdulkader bin Ahmad Alhadad and Syed Hassan bin Ahmad Alhadad as his executors and trustees. Syed Abdulkader was the same Syed Abdulkader who was one of the four trustees of the will of the testator as from 27 August 1954. See above. When he became a bankrupt, in August 1958, he not only retired as a trustee of the will of the testator, but he also renounced probate to the will of Ahmad Alhadad. As a result, letters of administration with will annexed to the estate of Ahmad Alhadad were granted to Sharifah Rugayah binti Alwee Alhadad and Syed Hassan bin Ahmad Alhadad on 23 July 1962.

On 16 October 1976, Syed Hassan bin Ahmad Alhadad died. By an order of court dated 8 November 1982, Syed Esa bin Ahmad Alhadad was appointed in his place, but he died soon thereafter on 13 July 1983, leaving Sharifah Rugayah binti Alwee Alhadad as the sole administrator of the estate of Ahmad Alhadad.

By an order of court dated 16 August 1991, the first two plaintiffs in these proceedings, ie Syed Salim Alhadad bin Syed Ahmad Alhadad and Syed Ahmad Alhadad bin Syed Abdul Kadir Alhadad, were appointed as additional administrators of the estate of Ahmad Alhadad. It is the propriety of the subsequent action of the first two plaintiffs in relation to the estate of the testator (a opposed to the estate of Ahmad Alhadad) that has given rise to contention in these proceedings before me. To appreciate the issue raised, it is pertinent to note the presence of two estates here, that of the testator and that of Ahmad Alhadad.

Action of the first two plaintiffs: OS No 1122 of 1992

By a deed dated 24 July 1992, the first two plaintiffs purported to appoint the third and fourth plaintiffs as trustees to act jointly with themselves in the trusts of the will of the testator.

On 25 November 1992, the first two plaintiffs took out an originating summons (No 1122 of 1992) in which they asked that the first two plaintiffs be appointed trustees of the will of the testator, and that upon the registration of the order of court in the Registry of Deeds, the appointment of the third and fourth plaintiffs as the trustees of the will of the testator by the deed of appointment of 24 July 1992 `do stand confirmed.` They applied for the subject properties, together with many others therein specified, to be vested in the four plaintiffs.

The application by the first and second plaintiffs was made ex parte. The affidavit of the first and second plaintiffs in support in the main set out the history of the administration of the testator`s estate, the various appointments by deeds and court orders in respect of the testator`s estate as well as in respect of the estate of Ahmad Alhadad, as I have, in summary, set out above. The first two plaintiffs then went on to state that the three trustees of the estate of the testator (see para 10 above) were either dead, or had remained out of Singapore for more than 12 months or were unfit or incapable of acting as the trustees of the trusts of the said will of the testator.` They then asked that orders be made in the terms of their application.

Two days later, on 27 November 1992, probably on a usual summonses day, the learned judicial commissioner KS Rajah made an order in terms of the application. It was then registered against all four properties in the Registry of Deeds.

Subsequent events

It appears that the defendants purchased the leasehold of all four properties by an assignment of lease dated 7 December 1990 from Wong Tak Realty (Pte) Ltd. On the same date, they executed a mortgage in favour of the Bank of China.

On 24 June 1994, the plaintiffs` attorney wrote to the defendants referring generally to the `covenants and conditions` of the leases in respect of the four properties, and specifically to the covenant to pay a yearly rent of `Spanish dollars`, claiming that the defendants had breached the covenants and conditions, and purporting to forfeit all the leases. On 14 November...