Zulaikha Bee Binte Mohideen Abdul Kadir v Quek Chek Khiang and others

• Jurisdiction: Singapore
• Judge: Tan Siong Thye JC
• Judgment Date: 25 August 2014
• Neutral Citation: [2014] SGHC 168
• Court: High Court (Singapore)
• Hearing Date: 19 March 2014,14 March 2014,12 March 2014,17 March 2014,18 March 2014,05 May 2014,07 March 2014,04 March 2014,13 March 2014
• Docket Number: Suit No 636 of 2011
• Plaintiff Counsel: Adrian Tan and Lim Siok Khoon (Stamford Law Corporation)
• Defendant Counsel: Rajan Nair (Messrs Rajan Nair & Partners)
• Subject Matter: Trusts,Express Trusts,Equity,Defences,Laches,Evidence,Admissibility of Evidence
• Published date: 29 August 2014

Tan Siong Thye J: Introduction

This case concerns an unfortunate family dispute as to the beneficial ownership over a plot of land, Lot MK26-9739M, at Joo Chiat, Singapore (“the Land”). The fourth defendant, the estate of the late Fatimah Binte Sultan Ibrahim (“Fatimah”), holds the legal title to the Land. Fatimah is the mother of the plaintiff, Ms Zulaikha Bee Binte Mohideen Abdul Kader, and the third defendant, Ms Ummuhani Umma Binte Mydin Abdul Kader. There are three houses on the Land which has an area of 688.7 square meters or 7413 square feet. The Land has not been subdivided. The addresses of these three houses are: 261 Joo Chiat Place (“261 JCP”); 261A Joo Chiat Place (“261A JCP”); and 263 Joo Chiat Place (“263 JCP”).

The first defendant, Madam Quek Chek Kiang was not involved in these proceedings as she had already been dealt with. The plaintiff had obtained judgement in default of appearance against her on 6 February 2013. Therefore the plaintiff’s action is against the remaining three defendants who have counter-claimed against the plaintiff.

During the course of the trial, both the plaintiff and the defendants agreed that 263 JCP is beneficially owned by Mr Haji Mohamed Abdul Kader (“Abdul Kader”), the brother-in-law of the plaintiff and the third defendant. In the course of the trial the parties agreed that the plaintiff is the beneficial owner of 261 JCP. However, in the defendants’ reply to the plaintiff’s closing submissions it seems that the defendants have had a change of heart. Therefore, this court takes it that the dispute relates to the beneficial ownership of 261 and 261A JCP.

The plaintiff seeks to establish her beneficial ownership over 261 JCP and 261A JCP by way of a trust deed executed by the plaintiff and Fatimah on 7 June 1971 (“the 1971 Trust Deed”). In the trust deed, Fatimah declared that she was to hold the Land as trustee for the plaintiff, the beneficiary. The defendants resist the plaintiff’s claim by alleging that the 1971 Trust Deed is invalid on several grounds. Furthermore, even if the 1971 Trust Deed is valid, they argued that the plaintiff is barred by the doctrine of laches and the Limitation Act (Cap 163, 1996 Rev Ed) (“the Limitation Act”) from enforcing the 1971 Trust Deed. Lastly, they also argued that the document embodying the 1971 Trust Deed is inadmissible as evidence of an express trust in favour of the plaintiff because of the failure to register the 1971 Trust Deed.

The second and third defendants also counterclaim for the beneficial interest in 261A JCP. They allege that Fatimah had orally promised to give 261A JCP to the third defendant.

Facts Background

The Land was first purchased by Mr Mohamed Hidayatullah Sahib (“Sahib”), the late husband of the plaintiff, on 13 April 1956 for $9,200.¹ On 13 April 1960, Sahib conveyed the Land to Fatimah for $11,000 by way of a deed of conveyance (“the 1960 Conveyance”).² Fatimah mortgaged the Land to Sahib for $10,000 on the same day.³

Fatimah then leased 261A JCP to Mr K A Abdul Razak (“Razak”), the husband and father of the third defendant and second defendant respectively, on 20 September 1981 for $50 per month.⁴ Razak paid rent to Fatimah initially. According to the third defendant, a few years thereafter Fatimah told Razak to give the rent monies to her instead and Razak stopped paying rent to Fatimah.⁵ On 15 January 1962 Razak subleased 261A JCP to Mr Toh Chong Kim (“Toh”), the late husband of the first defendant, for $50 per month.⁶ The third defendant alleged that Razak was responsible for the payment of the property tax from 1961 onwards.⁷

On 27 February 1967, Fatimah executed a trust deed vis-à-vis 263 JCP (“the 1967 Trust Deed”) in the presence of an advocate and solicitor, Mr Doraisamy Ramasamy. She declared that she was to hold 263 JCP as trustee for Abdul Kader, the beneficiary. PW1, Mr Ebrahim Marican Bin Esmail Sahib, a friend of Sahib, and Mr Mohamed Yousoff signed off as witnesses of the execution of the 1967 Trust Deed.⁸ The 1967 Trust Deed was registered with the Registry of Deeds on the same day.⁹ The parties do not dispute the 1967 Trust Deed and thus agree that Abdul Kader is the beneficial owner of 263 JCP.

The 1971 Trust Deed

The 1971 Trust Deed was executed on 7 June 1971 in the presence of another advocate and solicitor, DW2, Madam Wu Eng Eng Jeanne. Fatimah’s right thumb print was affixed to the 1971 Trust Deed. PW1 also signed off as a witness of the 1971 Trust Deed together with DW2’s clerk, Mr Seah Kheng Hock (“Seah”).¹⁰ In the 1971 Trust Deed, Fatimah declared that she was to hold the Land on trust for the benefit of the plaintiff. The 1971 Trust Deed was not registered.

On the same day Fatimah also mortgaged the Land to Mr Wee Keng Kiat (“Wee”) for $8,000. The indenture of statutory mortgage was also executed in the presence of DW2 (“the 1971 Mortgage”).¹¹ The 1971 Mortgage was registered with the Registry of Deeds on 13 August 1971.¹²

The state of affairs of 261A JCP after the execution of the 1971 Trust Deed

The state of affairs regarding the occupation of 261A JCP did not change after the execution of the 1971 Trust Deed. Toh continued to stay at 261A JCP and paid rent to Razak who kept the rental monies. After Toh passed away, his family continued to reside at 261A JCP and paid rent to Razak. Razak also continued to pay for the property tax up till 2006.¹³ Neither the plaintiff nor Fatimah took issue with such an arrangement.

The state of affairs persisted after Sahib passed away in 1992. In 1996 Fatimah passed away. In 2001 the plaintiff started to assert her interest over 261A JCP.

Initial attempts by the plaintiff to recover 261A JCP

On 28 March 2001, PW2, Mr Mohamed Mohidin Habibullah Bin Hidayathullah (“Habibullah”), the plaintiff’s son, issued a notice to quit to Razak demanding that 261A JCP be vacated by 30 April 2001.¹⁴ PW2 took this action after the Control of Rent Act (Cap 58, 1985 Rev Ed) (“the Control of Rent Act”) was repealed on 1 April 2001. 261A JCP was still subleased to the first defendant. At that time Razak was in poor health and his affairs were managed by the second and third defendants.

261A JCP was not vacated by 30 April 2001. PW2 then entered into a separate tenancy agreement with the first defendant to lease 261A JCP from 1 August 2001 to 31 July 2003 at a rent of $900 per month. There was also an option to renew the lease for a period of one year at a revised rent.¹⁵ Thereafter, the first defendant stopped paying rent to Razak.

The Land was brought under the Torrens system on 20 February 2002 and Fatimah was registered as the proprietor of the Land.¹⁶

Countermeasures undertaken by the second defendant

The second defendant, acting on behalf of Razak, then commenced proceedings against the first defendant on 14 July 2003 to recover arrears of rent and possession of 261A JCP.¹⁷ The plaintiff was not made a party in the proceedings. The first defendant entered an appearance in the proceedings on 20 August 2003 and filed a defence on 4 November 2003. Razak passed away on 25 April 2004 and the second defendant was made a party to proceedings on 16 November 2004 to continue the action against the first defendant.¹⁸

On 24 June 2005, the first defendant and the second defendant entered into a settlement agreement. The first defendant agreed to surrender possession of the premises to the second defendant. She also agreed to pay a sum of $3,000 to the second defendant as settlement for the arrears of rent. The second defendant then entered into a tenancy agreement with the first defendant on the same day to lease 261A JCP to the first defendant from 1 July 2005 to 30 December 2005.

Prior to the settlement agreement PW2 had entered into an oral lease agreement on a month to month basis for $800 per month regarding 261A JCP.¹⁹ However, as a result of the proceedings between the first defendant and the second defendant, the first defendant stopped paying rent to PW2 on 16 January 2005.²⁰

Upon the expiry of the tenancy agreement, the first defendant gave vacant possession of 261A JCP to the second defendant on 20 December 2005.²¹

The proceedings leading up to this dispute

On 10 May 2006, the plaintiff and PW2 commenced proceedings in the District Court against the first defendant and the second defendant to recover possession of 261A JCP and arrears of rent (“DC 1722/2006”). The claim was dismissed on 4 December 2010 on the grounds that the District Court did not have jurisdiction to hear the matter and that the proceedings should have been commenced in the High Court.²²

The plaintiff, thereafter, commenced the present suit in the High Court against the defendants. Only the second, third and fourth defendants participated in the proceedings. The first defendant had already vacated possession of 261A JCP to the second defendant on 31 December 2005. She no longer resided at 261A JCP and did not enter an appearance in this suit. A default judgment was accordingly entered against the first defendant.

The witnesses

PW1 and PW2 were witnesses for the plaintiff. The second defendant, the third defendant and DW2 were witnesses for the defendants. The defendants also sought to call the plaintiff as a defence witness. The plaintiff’s counsel objected to this application as she had been diagnosed by Dr Adrian Wang, a consultant psychiatrist at Gleneagles Medical Centre, to be suffering from dementia which impairs her cognitive functions.²³ She no longer has the mental capacity to retain or understand relevant information related to the suit and would not have been able to follow court proceedings or advise counsel. She is therefore unfit to appear as witness. This is the reason why PW2 was appointed as the litigation representative for the plaintiff on 18 December 2012. For these reasons the plaintiff’s counsel did not call the plaintiff as part of the plaintiff’s case.

The...