Syed Yacob Alkaff v Syed Alwee Alkaff and Others

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 30 October 1992
• Neutral Citation: [1992] SGCA 73
• Docket Number: Civil Appeals Nos 126 and 127 of 1990
• Date: 30 October 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: Mohan Singh (B Mohan Singh & Co)
• Citation: [1992] SGCA 73
• Defendant Counsel: Tan Kok Quan (with Ashok Kumar) (Lee & Lee),Eric Choa (Wee Swee Teow & Co),G Raman (G Raman & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Administration of assets,Settlor,Probate and Administration,Need to establish 'convincing proof',Rectification of capital clause to reflect true intention of settlors,Rectification,Whether settlors intended to discriminate against some of their heirs,Trusts,Standard of proof

Cur Adv Vult

These two appeals are essentially against the decision of Chan Sek Keong J (as he then was) refusing an application by the appellant for the rectification of a capital clause in two instruments of settlement dated 21 December 1888 and 17 March 1893 respectively. [See [1991] 1 MLJ 453 .]

The 1888 settlement was made by one Syed Shaikh bin Abdulrahman Alkaff (`Syed Shaikh`) and his brother, one Syed Mohamed bin Abdulrahman Alkaff (`Syed Mohamed`). The 1893 settlement was made by Syed Shaikh alone. Under these two settlements, immovable properties situated in Singapore were vested in trustees, and income therefrom was to be distributed amongst the descendants of the settlors and another brother, one Syed Abdullah bin Abdulrahman Alkaff. On the expiry of the respective trust periods, the capital assets of the settlements were to be distributed amongst the persons specified in the capital clause. The trust period prescribed under each deed was to be that period covering the lifetime of various named persons plus 21 years thereafter. A number of the specified lives in being in each deed were grandchildren of the settlors. The trust period of the two settlements ended on 2 December 1986, which was the date on which the capital assets were to be distributed. It might be appropriate for us at this juncture to mention that subsequent to the 1893 settlement, Syed Shaikh alone executed four more settlements in the following years, 1898, 1901, 1905 and 1906.

Syed Shaikh and his two brothers were Hadramaut Arabs and Muslims of the Shafei Sub-school of the Sunni Sect. They were born in Tarim, South Yemen and were educated there. `Syeds` are descendents of the Prophet Mohamed and they are both religious and conservative. It would appear that in his lifetime Syed Shaikh made three wills, namely, in 1898 (with codicil) 1902 and 1910, and a vow in 1902.

The capital clause of the 1888 settlement read as follows:

Upon trust nevertheless at the expiration of the (trust period) ... for such person or persons then living as is or are the grandchild or grandchildren of the settlors or either of them or the said Syed Abdullah bin Abdulrahman Alkaff deceased ... or in the event of a total failure of issue of (the three Alkaff brothers) then for such person or persons as would then be entitled thereto according to Mohammedan law ...

The capital clause in the 1893 settlement was in similar terms except that the words `male` was inserted before the words `grandchild` and `grandchildren`.

For purposes of comparison it might be useful for us to refer to the provisions as regards income as set out in the 1888 settlement. The income was to be distributable to the settlors during their lives in equal shares, then wholly to the survivor, and on his death:

Upon trust to divide the same annually among such of the children or remoter issue of the settlors and of the said Syed Abdullah ... as shall from time to time be living during their respective lives in the proportion of two shares to males and one share to females but so that the issue of a deceased child shall take among them the share only which their parent or parents would have taken if living in the same proportion as aforesaid between males and females.

The income provision in the 1893 settlement was in similar terms except that only male children or remoter male issues of the three Alkaff brothers were to be entitled to the income thereof.

The appellant is a great-grandson of the settlor, Syed Shaikh. He took out two originating summonses (OS Nos 936 and 937 of 1986), one in respect of each settlement. In the hearing below as well as in these appeals he represents not only himself but also 28 other great-grandchildren of Syed Shaikh and Syed Abdullah. Syed Mohamed died without leaving any descendant. The respondents are the trustees of the settlements. The second respondent has also been appointed by the court to represent all those persons interested in arguing against the reliefs sought by the appellant. Another 50 great-grandchildren residing in Singapore who were interested in arguing against all or any of the questions posed directions and declarations sought were by order represented by Syed Ali bin Mohd Alkaff and Syed Alwi bin Hussain Alkaff who are not taking part in these appeals.

In each originating summons, the appellant sought: (i) a declaration as to the true meaning of the word `grandchildren` in the capital clause; and (ii) rectification of the said clause to reflect the true intention of the settlors. The rectification initially sought was to substitute the words `for such person or persons then living as is or are the grandchild or grandchildren of the settlors or either of them or the said Syed Abdullah bin Abdulrahman Alkaff deceased` in the capital clause with `for our successors and the successors of the said Syed Abdullah bin Abdulrahman Alkaff deceased in accordance with the tenets of Islamic law`. At the conclusion of the trial this was amended. What was sought was the insertion of the words `or died prior to the date of distribution the issues of those grandchildren who died prior to the date of distribution to take per stirpes to the shares of the deceased grandchildren` after the words `for such person or persons then living` in the capital clause.

It may be noted that on the date the originating summonses were instituted, there were then living 38 male grandchildren and 39 female grandchildren of both Syed Shaikh and Syed Abdullah. However, 44 male and female grandchildren of these two Alkaff brothers had died.

Earlier in 1970, an originating summons (No 41 of 1970) was taken out by a great-grandson of Syed Abdullah, to determine this very point of construction as to the meaning of the word `grandchildren` in the 1888 settlement. The grandchildren and the great-grandchildren were separately represented in that proceeding. In his written judgment in Re Alkaff Settlement ,1 Choor Singh J ruled that the expression `grandchildren` meant the children of one`s children. He rejected the contention that it could mean issues of any degree.

One of the main issues canvassed before the learned trial judge in OS No 936 of1986 was the question of issue estoppel or res judicata. The basis for the argument was that the construction of the expression `grandchildren` had already been decided as between the grandchildren and the great-grandchildrenin OS No 41 of 1970. However, the appellant attempted to argue that res judicata did not apply. As regards issue estoppel, the appellant contended that that was not an absolute rule: it could be re-opened in exceptional circumstances, eg the discovery of new evidence which showed that the previous decision was wrong. In this instance there was a discovery of a new will and a vow of Syed Shaikh after the decision in OS No 41 of 1970. Nevertheless, the learned trial judge, having reviewed the relevant authorities, held that the decision in OS No 41 of 1970 operated as a cause of action estoppel as well as an issue estoppel against the appellant. He held that the institution of OS No 936 of 1986 seeking a construction of the term `grandchildren` in the 1888 settlement deed amounted to a relitigation between the same parties of the very construction point already decided. He felt that if, indeed, there was discovery of new relevant evidence, the proper course for the appellant to take was to apply to the Court of Appeal for an extension of time to file an appeal.

However, as regards the relief of rectification, the learned judge held that what was decided by Choor Singh J in OS No 41 of 1970 did not give rise to a cause of action estoppel even in relation to the 1888 settlement. As he rightly pointed out:

The reason is that rectification is different from construction. The ingredients of the causes of action are not the same. The primary purpose of a construction action in relation to an instrument is to ascertain the intention of the maker from the words used by him, whereas the primary purpose of a rectification action is to substitute new words for those actually but mistakenly used by the maker in order to reflect his true intention.

As regards the 1893 settlement, the learned trial judge held that even on the construction point, neither cause of action estoppel nor issue estoppel applied. There was no question of any relitigation because OS No 41 of 1970 was not concerned with the 1893 settlement even though the parties would be the same and the issue of construction would also be the same. The learned judge then proceeded to examine the construction issue in relation to the 1893 settlement. While recognizing that ordinarily the word `grandchildren` means descendants of the second degree, it was possible that in a particular context the word might have a wider sense. He was prepared to accept the proposition that there was an ambiguity in the capital clause. He then examined the evidence adduced by the appellant to determine the intention of Syed Shaikh. He ruled that there was nothing in the capital clause to indicate that the settlors intended that the capital assets should be distributed to both living and deceased grandchildren, in the latter event the children of a deceased grandchild shall take the benefits due to their father.

In this appeal, counsel for the appellant put forward a faint argument on the construction point. In fact, nothing in the petition of appeal touches on the construction point. Neither has counsel for the appellant argued that the learned trial judge was wrong in respect of the res judicata or estoppel point insofar as the 1888 settlement is concerned. The only issue upon which substantial arguments are raised relates to the refusal of the trial judge to grant rectification of the capital clause in both settlement deeds.

Counsel for the appellant submitted that the learned trial judge erred in his decision not to grant rectification for reasons which...