Zulaikha Bee bte Mohideen Abdul Kadir v Quek Chek Khiang

• Jurisdiction: Singapore
• Judgment Date: 25 August 2014
• Date: 25 August 2014
• Docket Number: Suit No 636 of 2011
• Court: High Court (Singapore)

Zulaikha Bee bte Mohideen Abdul Kadir

Plaintiff

and

Quek Chek Khiang and others

Defendant

[2014] SGHC 168

Tan Siong Thye J

Suit No 636 of 2011

High Court

Equity—Defences—Laches—Plaintiff only seeking to enforce trust deed 43 years after it was effected—Trust deed allowing plaintiff to enforce trust deed at any time—Whether there was prejudice caused by any delay

Evidence—Admissibility of evidence—Non-registered trust deed—Whether s 4 Registration of Deeds Act (Cap 269, 1989 Rev Ed) rendering non-registered trust deed inadmissible—Section 4 Registration of Deeds Act (Cap 269, 1989 Rev Ed)

Trusts—Express trusts—Owner of land did not understand English—Whether trust validly established by trust deed drafted in English—Whether contents of trust deed were interpreted and explained to owner—Whether owner understood contents of trust deed

The plaintiff and the third defendant were daughters of Fatimah bte Sultan Ibrahim (‘Fatimah’) who passed away in 1996. The second defendant was the son of the third defendant. The fourth defendant, the estate of Fatimah, was the legal owner of the properties in dispute. The properties were 261 Joo Chiat Place (‘261 JCP’), 261 A Joo Chiat Place (‘261 AJCP’) and 263 Joo Chiat Place (‘263 JCP’) that were located on a piece of land that was not subdivided (‘the Land’). The first defendant, a former tenant of 261 AJCP, failed to make an appearance and a judgment in default of appearance was obtained against her. All other parties involved agreed that 263 JCP belonged to Mr Haji Mohamed Abdul Kader (‘Abdul Kader’), the brother-in-law of the plaintiff and the third defendant.

The plaintiff sought to enforce a trust deed dated 1971 (‘the 1971 Trust Deed’) by which Fatimah declared that she was to hold 261 JCP and 261 AJCP on trust for the benefit of the plaintiff. To this extent she sought a declaration that she was the legal and beneficial owner of 261 AJCP. The second and third defendants resisted the enforcement of the trust deed by first contending that the 1971 Trust Deed was inadmissible as evidence since it was not registered. The second and third defendants also contested the validity of the 1971 Trust Deed on the basis that Fatimah, who did not understand English, did not understand the contents of the 1971 Trust Deed that was drafted in English. Lastly, they rely on the defence of laches to resist enforcement of the 1971 Trust Deed. The third defendant also counterclaimed that Fatimah had orally declared that she was to hold 261 AJCP on trust for the third defendant sometime before she passed away.

Held, granting the application in part and dismissing the counterclaim:

(1) As between the registered proprietor, the trustee, and the beneficiary, s 4 of the Registration of Deeds Act (Cap 269, 1989 Rev Ed) (‘RODA’) was no bar to a proper vindication of the true proprietary relationship between them. To do so would be to allow the trustee a convenient escape to obligations which he or she clearly undertook to observe under the trust. Given that the plaintiff was seeking to enforce the 1971 Trust Deed against the fourth defendant, the registered proprietor of Land, and the fact that there was no subsequent acquisition of legal title by another party, the 1971 Trust Deed should be admitted despite its non-registration: at [33] and [34] .

(2) It was also questionable whether a declaration of trust fell under the definitions of ‘assurance’ and ‘convenience’ under s 2 (1) of the RODA. Courts had always been more concerned with the particular circumstances of the case than with s 4 of the RODA when dealing with unregistered trusts. Furthermore, it would appear rather curious that trusts had to still be registered under s 4 of the RODA even though they were ‘kept off the register’vis-à-vis the Land Titles Act (Cap 157, 2004 Rev Ed). Therefore, non-registration of the 1971 Trust Deed per se did not make it inadmissible as evidence and it also did not affect its validity: at [35] to [37] .

(3) Given that Fatimah's right thumb print was affixed to the 1971 Trust Deed, and the fact that the 1971 Trust Deed was more than 30 years old, s 92 of the Evidence Act (Cap 97, 1997 Rev Ed) applied and Fatimah was presumed to have understood the contents of the 1971 Trust Deed and properly executed it. In any event, PW 1, Mr Ebrahim Marican bin Esmail Sahib and Mr Seah Kheng Hock (a conveyancing clerk formerly employed by DW 2, Mdm Wu Eng Eng Jeanne, the lawyer who oversaw the execution of the 1971 Trust Deed), were also found to have interpreted and explained the 1971 Trust Deed to Fatimah. Furthermore, the defendants accepted the validity of a trust executed by Fatimah in 1967 and a mortgage executed at the same time as the 1971 Trust Deed. There was no reason for them to single out the 1971 Trust Deed as invalid: at [40] to [57] .

(4) The defendants also failed to prove that Fatimah did not intend to hold the Land on trust for the plaintiff. Non-registration per se was not conclusive evidence that the 1971 Trust Deed was a sham. Although DW 2 could not explain why the 1971 Trust Deed was not registered, she maintained that it was intended to be legally enforceable: at [64] to [67] .

(5) The defendants could not rely on the defence of laches as they have failed to show any prejudice caused by delay. The 1971 Trust Deed clearly allowed the plaintiff to decide at any time to have the property under the trust conveyed to any person that she chose. This was therefore not a case of delay. Although certain key witnesses had passed away, there was no lack of documentary evidence. PW 1 and DW 2 were also able to shed light on the execution of the 1971 Trust Deed: at [77] to [84] .

(6) Although the plaintiff was the beneficial owner of 261 JCP and 261 AJCP, her request for specific performance of the 1971 Trust Deed by having the fourth defendant convey the Land to her could not be allowed as all parties had accepted that Abdul Kader was the beneficial owner of 263 JCP which formed part of the Land. The plaintiff could not be declared the legal owner of the Land or be entitled to recover possession of it for this reason as well. The plaintiff's claim for rent was also rejected as she was not the legal owner of 261 AJCP during the relevant period: at [85] to [88] .

(7) The third defendant's counterclaim was premised on a purported oral declaration of trust over land that was unenforceable as declaration of trusts had to be in writing. Furthermore, there were serious inconsistencies in the third defendant's testimony which rendered her testimony unsafe to rely on: at [90] to [97] .

Abdul Gani v State of Madhya Pradesh AIR 1954 SC 31 (refd)

Belfield International (Hong Kong) Ltd v Sheagar s/o T M Veloo [2014] 1 SLR 24 (refd)

Chean Siong Guat v PP [1969] 2 MLJ 63 (refd)

Ching Chew Weng Paul v Ching Pui Sim [2010] 2 SLR 76 (refd)

Chong Poh Siew v Chong Poh Heng [1994] 3 SLR (R) 188; [1995] 1 SLR 135 (refd)

Ong Siew Lay v Ong Boon Chuan [2009] SGHC 99 (refd)

Osman bin Din v PP [1995] 1 SLR (R) 419; [1995] 2 SLR 129 (folld)

PP v Tan Kok Siong Robin [2004] SGDC 224 (refd)

Quek Hung Heong v Tan Bee Hoon [2014] SGHC 17 (refd)

Tan Kow Quee, Re Estate of [2007] 2 SLR (R) 417; [2007] 2 SLR 417 (folld)

TV Media Pte Ltd v De Cruz Andrea Heidi [2004] 3 SLR (R) 543; [2004] 3 SLR 543 (refd)

Civil Law Act (Cap 43, 1994 Rev Ed) s 6 B

Civil Law Act (Cap 43, 1999 Rev Ed) ss 7, 7 (1)

Control of Rent Act (Cap 58, 1985 Rev Ed)

Evidence Act (Cap 97, 1997 Rev Ed) ss 92, 120

Land Titles Act (Cap 157, 2004 Rev Ed)

Limitation Act (Cap 163, 1996 Rev Ed) ss 6 (1) (a) , s 22 (1) , s 22 (1) (b) , s 22 (2)

Registration of Deeds Act (Cap 269, 1989 Rev Ed) ss 2 (1) , 4 (consd)

Statute of Frauds 1677 (c 3) (UK) s 9

Adrian Tan and Lim Siok Khoon (Stamford Law Corporation) for the plaintiff

Rajan Nair (Rajan Nair & Partners) for the defendants.

Judgment reserved.

Tan Siong Thye J

Introduction

1 This case concerns an unfortunate family dispute as to the beneficial ownership over a plot of land, Lot MK 26-9739 M, at Joo Chiat, Singapore (‘the Land’). The fourth defendant, the estate of the late Fatimah bte Sultan Ibrahim (‘Fatimah’), holds the legal title to the Land. Fatimah is the mother of the plaintiff, Ms Zulaikha Bee bte Mohideen Abdul Kader, and the third defendant, Ms Ummuhani Umma bte Mydin Abdul Kader. There are three houses on the Land which has an area of 688.7 m² or 7413 sqft. The Land has not been subdivided. The addresses of these three houses are:

(a) 261 Joo Chiat Place (‘261 JCP’);

(b) 261 A Joo Chiat Place (‘261 AJCP’); and

(c) 263 Joo Chiat Place (‘263 JCP’).

2 The first defendant, Mdm 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 counterclaimed against the plaintiff.

3 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 261 AJCP.

4 The plaintiff seeks to establish her beneficial ownership over 261 JCP and 261 AJCP 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...