Tan Chwee Chye and Others v P V RM Kulandayan Chettiar

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 26 October 2005
• Neutral Citation: [2005] SGHC 203
• Docket Number: Originating Summons No 619 of 2002 (Summons in Chambers No 2341 of 2005)
• Date: 26 October 2005
• Year: 2005
• Published date: 27 October 2005
• Plaintiff Counsel: Chew Kei-Jin and Lavinia Rajah (Tan Rajah and Cheah)
• Citation: [2005] SGHC 203
• Defendant Counsel: Lai Swee Fung (Unilegal LLC)
• Court: High Court (Singapore)
• Subject Matter: Whether default order obtained in proceedings commenced against deceased person valid,Civil Procedure,Judgments and orders,Claim for adverse possession by one co-owner against another co-owner,Land,Adverse possession,Applicable principles,Whether court having jurisdiction to order personal representative of deceased person's estate to be made party to proceedings after default order made

26 October 2005 Judgment reserved.

Belinda Ang Saw Ean J:

1 This application raises a question of whether a claim for adverse possession can be established by one co-owner against another co-owner. The other issues are of a procedural nature. They concern the validity of a default order obtained in proceedings commenced against a deceased person. It is necessary to examine the procedure adopted in Originating Summons No 619 of 2002 which led to obtaining the default order.

2 The plaintiffs, Tan Chwee Chye, Tan Sin Eng and Ng Chek Seng, are the trustees of the Singapore Chinese Weekly Entertainment Club (“the Club”). The Club was established in 1891 and, for the most part of its existence, has operated from its clubhouse at 76 Club Street, Singapore. The clubhouse is built on land comprising Lot 85-1 (new format Lot 99794P) TS 3 and Lot 85-2 (new format Lot 99793V) TS 3. The Club, through various trustees, has owned Lot 85-1 since 1898.

3 By an Order of Court dated 10 July 2002 (“the default order”), the plaintiffs obtained by default of appearance a declaration that they had become entitled to possession of the land comprising Lot 85-2 forming part of 76 Club Street by virtue of having been in adverse possession of the land by themselves and their predecessors in title for a period in excess of 12 years. Until then, the trustees of the Club and the defendant, P V RM Kulandayan Chettiar, had been shown in the Registry of Deeds as tenants-in-common in equal shares of Lot 85-2.

4 The applicant, K L Ramanathan (“Ramanathan”), seeks permission to intervene in the proceedings with a view to setting aside the default order. The defendant died on 7 January 1985 in Ipoh, Malaysia. The applicant is the defendant’s son and sole executor of his will. The High Court in Malaya at Malacca granted probate to the applicant on 2 April 1985 and the same was re-sealed on 27 May 1987 in Singapore.

5 The plaintiffs’ position is that the application is without merits and ought to be dismissed. Service of the Originating Summons by way of advertisement in the New Straits Times was effected pursuant to an order for substituted service properly obtained, and the facts and law necessary to prove a claim for adverse possession were before the court granting leave to enter the default order. The plaintiffs were at all material times unaware of the defendant’s death.

Background facts

6 I begin with the history of the ownership of Lot 85-2. I shall for convenience refer to Lot 85-2 as “the land”. By an Indenture of Assignment dated 3 January 1901, Cheang Jin Hean assigned the land to Tan Quee Lan and Mayna Ahna Ravena Mana Perianar Chitty (son of Raman Chitty) as tenants-in-common in equal shares. Tan Quee Lan then sold his half-share of the land to the then trustees of the Club in October 1901. The Club appeared to have at some stage mortgaged its half-share of the land. On 29 April 1980, there was a reassignment by the Oversea-Chinese Banking Corporation Limited of the one-half share in the land to the then trustees of the Club. As for the other half-share, there were through the years various assignments of that interest to different individuals. The defendant became the legal co-owner of the land by virtue of an Indenture of Assignment dated 23 August 1957 from one V V R N V R N Nagappa Chettiar (son of Veerappa Chettiar).

7 On 24 October 2000, the Singapore Land Registry (“SLR”) wrote to the plaintiffs and the defendant at 76 Club Street as registered co-owners of the land under the Registration of Deeds Act (Cap 269, 1989 Rev Ed). In that notice of conversion, the plaintiffs and the defendant were notified of the conversion of ownership of the land under the Registration of Deeds Act to the Torrens system under the Land Titles Act (Cap 157, 1994 Rev Ed). On 28 March 2001, SLR sent a conversion notice similar to the one despatched in October 2000 to the defendant at 8 Jalan Maharani, Muar, Johor. It is the applicant’s case that he did not receive this conversion notice. On 5 April 2001, SLR informed the plaintiffs’ firm of solicitors, M/s Tan Rajah & Cheah, that SLR had had no response from the defendant on the conversion notice sent to both addresses. In that same letter, SLR sought the assistance of the plaintiffs as co-owners for the information requested from the defendant.

8 Tan Rajah & Cheah wrote on 30 July 2001 to a previous solicitor of the defendant, M/s Donaldson & Burkinshaw, for information regarding the defendant. The latter were unable to assist as the files of this particular client had been destroyed in 1984. Mr H M Dyne, who was the partner in charge, had nothing useful to add.

9 The plaintiffs on 28 August 2001 lodged a caveat in the Registry of Deeds claiming an interest as adverse possessors of the one undivided equal half-share in the land registered in favour of the defendant. On 8 May 2002, the plaintiffs filed this Originating Summons. Ng Chek Seng in his supporting affidavit of 3 May 2002 stated that neither he nor any of the other trustees were aware of any contact at any time between the defendant and the Club apart from some brief correspondence with a lawyer then acting for the defendant. Presumably, Ng Chek Seng was referring to Donaldson & Burkinshaw’s letter dated 15 September 1969 to the Club’s lawyer, M/s Philip Hoalim & Co. Interestingly, Donaldson & Burkinshaw in that letter took the trouble to trace the defendant’s root of title to demonstrate his entitlement to a half-share in the land.

10 On 31 May 2002, pursuant to an Order of Court dated 14 May 2002 for substituted service of the Originating Summons out of jurisdiction, an advertisement was inserted in the New Straits Times. The advertisement giving notice of the Originating Summons appeared in the New Straits Times on 31 May 2002.

11 Since no appearance was entered on behalf of the defendant within the time limited to do so, the plaintiffs applied for and obtained a default order in terms of the Originating Summons on 10 July 2002. On 12 May 2005, Ramanathan filed the subject application.

Procedural point

12 Counsel for the applicant, Mr Lai Swee Fung, contends that the default order and the Order of Court for substituted service on the defendant must be set aside for non-compliance with the Rules of Court (Cap 322, R 5, 1997 Rev Ed). The Originating Summons was not properly brought as the proceedings were issued against a deceased person. The Order for substituted service of the proceedings was equally bad for the same reason.

13 At the hearing, Mr Lai pressed the point that it was incumbent on the plaintiffs under O 15 r 6A(4)(a) of the Rules of Court to obtain an order making the personal representative of the defendant a party to the proceedings as probate had been granted. The order and Originating Summons must also be served on the personal representative. In response, Mr Chew Kei-Jin for the plaintiffs argued that it was not necessary to do all that as judgment in default had already been obtained.

14 Order 15 r 6A provides:

(1) Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.

(2) …

(3) An action purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate in accordance with paragraph (1), whether or not a grant of probate or administration was made before its commencement.

(4) In any such action as is referred to in paragraph (1) or (3) —

(a) the plaintiff shall, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings or, if a grant of probate or administration has been made for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;

(b) the Court may, at any stage of the proceedings and on such terms as it thinks just and either on its own motion or on application, make any such order as is mentioned in sub-paragraph (a) and allow such amendments (if any) to be made and make such other order...