Judgment

[Please note that this case has not been edited in accordance with the current Singapore Law Reports house style.]

 Judgment reserved.

Warren LH Khoo J:

1           These proceedings have arisen from the purported sale by the first three defendants to the fourth defendant of a shophouse known as No 13 Jalan Besar, Singapore. The plaintiff claims that the first three defendants had no title to the property and were not competent to sell it to the fourth defendants, Scan Electronics (S) Pte Ltd.

2           There are two sets of proceedings. The main one is OS 437/95. In this summons, the plaintiff as the administrator de bonis non of the estate of a deceased person seeks to set aside the purported sale. The main claim of the plaintiff is that the property belonged and belongs to the estate of the deceased, and the first three defendants had no right to claim to represent the estate of the deceased and they had no title to the property to pass it to the fourth defendant. The plaintiff also seeks to set aside an ex parte court order made on 27 August 1993 in OS 787 of 1993 (the 1993 originating summons) whereby the first two defendants were authorised by the court to effect the sale. As a counter to the claim by the plaintiff, summonses have been taken out under the 1993 originating summons with a view, if I may summarise it in this way, to remedying any deficiencies in the title of the first three defendants over the property and in their capacity to deal with the property. In this judgment, I shall be dealing mainly with OS 437/95. Except where the context otherwise indicates, references to an originating summons are references to this summons.

3           The undisputed facts are as follows. In 1944, Mohamed bin Ali bin Faraj Basalamah (‘Basalamah’ or ‘the deceased’) died intestate at Madudah, Hadramaut (then in Arabia, now in Yemen) leaving the subject property (the property) in Singapore. He left a wife, two daughters and three sons. Letters of administration to his estate were on 24 November 1953 granted to Syed Abdulkader bin Ahmad Alhadad (Abdulkader Alhadad) as the duly constituted attorney of Shaik Ahmad bin Mohamed bin Ali Basalamah (Ahmad Basalamah), the eldest son of Basalamah, expressed to be until Ahmad Basalamah should come in and apply for a grant to himself. Abdulkader was adjudicated a bankrupt on 8 August 1958 and was not discharged from bankruptcy until October 1979.

4           Abdulkader Alhadad died intestate on 4 June 1981. On 2 December 1982, letters of administration to his estate were issued jointly to his wife Sharifah Bahaiah bte Ibrahim Alsree (Sharifah) and his son Syed Ibrahim bin Abdul Kadir Alhadad (Ibrahim Alhadad), the third defendant, in Probate No 1508 of 1981.

Dealings with the property

5           Activities in connection with the sale of the property began in late 1991. On 8 November 1991, the grant of letters of administration to the estate of Abdulkader Alhadad to Sharifah and Ibrahim Alhadad, which had been issued on 2 December 1982, was registered against the property. The registration was effected under provisions of the Registration of Deeds Act, as the property was held under what is colloquially known as common law title, as opposed to a title under the Land Titles Act. On 11 February 1992, Sharifah and Ibrahim Alhadad purported to grant an option to one Yeo Ah Ngoh to purchase the property at the price of $380,000.

6           By a power of attorney dated 8 January 1990 executed in Yemen and duly deposited in the registry of this court, Ahmad Basalamah and his brother Shaik Hassan bin Mohamed bin Ali Basalamah (Hassan Basalamah) had appointed the plaintiff as their attorney for the purpose of applying for letters of administration de bonis non to their father’s estate and safeguarding assets of the estate.

7           It may be noted here that Ahmad Basalamah is the same Ahmad Basalamah who had given Abdulkader Alhadad a power of attorney to apply for the original letters of administration to the estate of Basalamah deceased. However, nothing turns on that in these proceedings.

8           When the plaintiff found out about the proposed sale of the property to Yeo, he instructed his solicitors to write to the solicitors for the estate of Abdulkader Alhadad to object to the sale. The latter were told of his appointment as the attorney, and that he had been instructed to apply for letters of administration de bonis non to the estate of Basalamah. They were also requested to take action to expunge the registration of the grant of letters of administration in favour of Sharifah and Ibrahim against the property. A similar letter was written to the solicitors for the intending purchaser. The administrators of the estate of Abdulkader Alhadad did not comply with the request. However, the sale to Yeo Ah Ngoh did not go through.

9           On 13 January 1993, Sharifah and Ibrahim executed a deed purporting to appoint Ibrahim himself and his uncle Syed Salim Alhadad bin Syed Ahmad Alhadad (Salim Alhadad), the first defendant, as the new ‘trustees’ of the property. This deed was registered against the property on 23 February 1993. On 10  February 1993, Ibrahim and Salim Alhadad executed a further deed purporting to appoint Syed Hashim bin Abdul Kader Alhadad (Hashim Alhadad), the second defendant, as an additional trustee of the property. This deed was registered against the property on 25 February 1993. So by these two instruments, the first three defendants were purportedly appointed as trustees of the property.

10       On 29 May 1993, the first three defendants purported to grant an option to the fourth defendant, Scan Electronics (Singapore) Pte Ltd, to purchase the property at the price of $550,000, subject to an order of court sanctioning the sale to be obtained by the vendors within 120 days from the exercise of the option. The option was exercised on 22 June 1993. On 3 August 1993, Scan Electronics lodged a caveat against the property.

11       On 19 August 1993, the first two defendants applied ex parte by the 1993 originating summons for an order authorising them to sell the property by private treaty at the price of $550,000. On 27 August 1993, the court made an order in terms of the application. I pause here to note that as of the date of the option, all three of the first three defendants had been appointed ‘trustees’ by the various instruments earlier referred to, and the option described them as personal representatives of the estate of Abdulkader Alhadad and as the vendors. However, in the application to court, only two of the three, ie Salim and Hashim, were the applicants, and they were described in the summons and in the order made as the personal representatives of the estate of Basalamah. The affidavit in support, however, set out the history of how the first three defendants came to be appointed ‘trustees’ much in the way I have set it out earlier. It recited the death of Basalamah, the appointment of Abdulkader Alhadad as administrator of the Basalamah estate, the death of Abdulkader Alhadad and the appointment of his widow and Ibrahim as administrators to his estate, and the subsequent appointments of Ibrahim, Salim and Hashim. However, the affidavit described them as ‘trustees of the estate of Abdulkader Alhadad’.

12       The order of court authorising the sale by the first two defendants as ‘personal representatives’ of the estate of Basalamah, was registered against the property on 3 September 1993. The sale was completed by a deed of assignment dated 15 October 1993. When the plaintiff discovered this, he lodged a caveat against the property dated 15 April 1994 on behalf of Ahmad and Hassan Basalamah as two of the beneficiaries of the estate of Basalamah deceased.

The course of proceedings

13       Acting on the power of attorney given to him by the Basalamah brothers, the plaintiff had on 25 June 1990 filed a petition for letters of administration de bonis non to the estate of Basalamah deceased. However, there were delays in the proceedings, and the petition was not granted until 16 September 1994, and the grant was not issued until 22 November 1994. On 8 May 1995, the plaintiff as the administrator de bonis non of the estate of Basalamah deceased took out this originating summons.

14       On 26 May 1995, Scan Electronics filed an application by summons-in-chambers No 3129 of 1955 in this originating summons counterclaiming for a declaration that it is the lawful owner of the property and for an order to expunge the caveat lodged on behalf of Ahmad Basalamah and Hassan Basalamah.

15       On 5 June 1995, the originating summons came before me on a usual summonses day. On the application of the plaintiff I ordered that he be at liberty to file an affidavit in reply to the affidavit filed by the fourth defendant in support of its claim in the summons in chambers just mentioned. On the assumption that the nature of the case might require cross-examination on the affidavits, I ordered that deponents of affidavits filed should be made available for cross-examination on the hearing of the originating summons.

16       The originating summons went before Goh Joon Seng J on 16 June 1995. His honour directed that the summons in chambers be heard together with the main originating summons and he made certain other procedural directions. One of these required that all affidavits of the first three defendants be filed and served by 7 July. The learned judge also directed that all deponents be made available for cross-examination at the hearing. The first three defendants did not file any affidavit in pursuance of this order.

17       The originating summons duly came before me on 15 August, together with the purchaser’s summons in chambers. Also before me was a summons in chambers No 7774 of 1994 taken out by the vendors in the 1993 originating summons seeking an order that the property be vested in them as trustees and that the sale by them on 15 October 1993 for the sum of $550,000 be affirmed. Other summonses were taken out in both originating summonses, and I shall refer to them in due course. The plaintiff appeared as intervenor in the 1993 originating summons for the purpose of resisting applications made under that summons.

The surprise turn

18       The facts and the issues as they presented themselves to me before the hearing appeared to be quite simple and straightforward. I have referred to the option for sale of the property, the court order authorising the sale and the deed of assignment. In these documents, the first three defendants, or two of them in the case of the last two documents, described themselves as either the personal representatives of the estate of Abdulkader Alhadad or the personal representatives of the estate of Basalamah. At no time had they ever described themselves as the beneficial owners of the property or otherwise as having any beneficial interest in the property. However, on the first day of the hearing, Mr Pang, counsel for the first three defendants, told me that his clients in fact claimed a beneficial interest in the property and that they claimed to be entitled to retain the proceeds of sale for themselves. He said that under Muslim law, the estate of a deceased person had to be distributed as soon as possible. Since Basalamah died so long ago, it could be assumed that his estate, including the property in question, must have been distributed. He contended that before Abdulkader’s death he must have completed the administration of the Basalamah estate.

19       Mr Pang referred to something called the ‘faraid’ as supporting his allegation that the estate had been distributed. He suggested that Abdulkader probably paid the estate duty for the estate and became creditor to the estate and must have somehow become entitled beneficially to the subject property. In his written submission after conclusion of the hearing, he went further and suggested that Abdulkader must have paid the beneficiaries their respective shares in the value of the property, and must have become the beneficial owner of the property himself. The fact that the beneficiaries of the Basalamah estate had not made any claims to the property earlier, he said, supported his contention that they had ceased to have any beneficial interest in it.

20       No affidavit had been filed by Mr Pang’s clients or on their behalf to support any of his allegations and contentions. However, he told the court that if he was given an opportunity to cross-examine Ahmad Basalamah and the plaintiff, there was a good chance that he would be able to make good his allegations and contentions. He therefore applied to the court that he be allowed to cross-examine the two persons for the purpose.

21       I rejected the application. It appeared to me after hearing all these submissions by counsel that he had not made good his application to cross-examine the deponents. His clients had never taken the position in the proceedings to date that the property no longer belonged to the Basalamah estate, but to them beneficially. Furthermore, if the property had in fact been distributed, it was difficult to see why no steps had been taken to vest it in the person to whom it was distributed, as the land register still showed the estate of Basalamah as the owner of it.

22       As for the ‘faraid’, it comes in the form of what is said to be a page of a book kept by Abdulkader Alhadad in which he is said to have kept records of estates administered by him. All that it says is that Basalamah died on such and such a date, that he left three sons, two daughters and a wife. Against each of these beneficiaries is set out a number of shares, ie each son 14 shares, each daughter 7 shares, and the wife 8 shares. It then records the fact that Abdulkader Alhadad was appointed administrator under a power of attorney given by Ahmad Basalamah, and that the wife died on 17 August 1954 leaving the children. The affidavit of the first three defendants, which had been filed on 24 December 1994 in summons-in-chambers No 7774 (referred to above), was none too helpful. It said elliptically and vaguely:

Further, the ‘Faraid’ containing the beneficiaries and the distribution of shares inheritance according to Muslim law was completed and extracted from a book containing many other faraids which were duly translated.

23       The document on the face of it does not show that the estate of Basalamah had been distributed. Even if it had been distributed, it does not help to show how Abdulkader Alhadad came to be beneficially entitled to the property as alleged.

24       The object of the proposed cross-examination was to try to establish a case which would go entirely against the established previous position of the first three defendants. They had not laid any ground for the proposed cross-examination. They had chosen not to file any affidavit although they had been given time to do so. They were merely hoping that Shaik Ahmad or Ali Redha might be able to assist them to make out their own case. It seemed to me that what they were attempting to do was nothing short of an abuse of process. I disallowed the application.

25       I have since had the advantage of reading the judgment of my learned colleague Justice Judith Prakash in Tan Sock Hian v Eng Liat Kiang [1995] 3 SLR 49 in which she disallowed the application by the husband in a divorce case to cross-examine the wife on her affidavit in support of her claim for maintenance. The husband himself had not filed any affidavit challenging the wife’s evidence. It was held by her honour that the application to cross-examine the wife had been rightly refused by the assistant registrar. She referred to the observation of Harman J in Re Cloverbay Ltd (No 2) [1990] BCLC 449 that in the ordinary procedure by originating summons:

evidence is given by affidavit and almost always, in my experience, there is no cross-examination unless contrary affidavits are sworn raising issues of fact which can only be resolved by cross-examination.

26       His Lordship, after describing some of those situations, went on to say:

Apart from such matters, in my view, originating summons procedure was designed to proceed without cross-examination. That is not to say that the court has not got power so to order, but it rarely does so and only, in my judgment, where it can see an issue of fact raised.

27       In the instant case, clearly the first three defendants whom Mr Pang represented, had not raised the question of Abdulkader Alhadad’s beneficial entitlement to the subject property in any affidavits filed by them; in fact they had not filed any affidavit at all although given leave to do. So the rejection of the application to cross-examine was not only right by intuition, but was also in accordance with principle and authority.

Section 35(1) Conveyancing and Law of Property Act

28       Counsel for the first three defendants then referred to s 35(1) of the Conveyancing and Law of Property Act (Cap 61, 1994 Ed) to show that they had the power to deal with the property. Section 35(1) reads as follows:

All land shall, so far as regards the transmission and devolution thereof on the death of any person in whom it is vested, whether beneficially or on any trust or by way of mortgage, be deemed to be of the nature of chattels real, and accordingly all the like powers for one only of several joint personal representatives, as well as for a single personal representative, and for all the personal representatives together, to dispose of and otherwise deal with the land, shall belong to the deceased’s personal representatives or representative from time to time, with all the like incidents, but subject to all the like rights, equities and obligations as if the land were a chattel real vesting in them or him, and for the purposes of this section the personal representatives for the time being of the deceased shall be deemed in law his heirs and assigns within the meaning of all trusts and powers.

29       The argument, as I understand it, is this. Section 35(1) provides that land held by a person in trust, as well as beneficially, devolves on his personal representatives when he dies. ‘Personal representatives’ by common assent include administrators as well as executors. Abdulkader Alhadad as the administrator of the estate of Basalamah completed his administration by the payment of the estate duty and other debts. He became in law a trustee of the residue, including the subject property. So Abdulkader Alhadad held the property as trustee. Abdulkader Alhadad died, so, by operation of s 35(1), the land subject of the trust devolved on his personal representatives, ie Sharifah and Ibrahim. Sharifah and Ibrahim held the land as trustees, and in their capacity as trustees they or either of them had power under s 40 of the Trustees Act to appoint additional or substitute trustees. Furthermore, ‘trust’ and ‘trustee’ are defined by s 3 of that Act to include implied and constructive trusts, and to the duties incident to the office of a personal representative, and it is provided that ‘trustee’ where the context so admits includes a personal representative. The appointments of the first three defendants as trustees of the property were therefore valid. The first three defendants, as trustees for the time being of the trust land, therefore had the power to sell the land, and the sale was therefore valid.

History and object of s 35(1)

30       Section 35(1) of the Conveyancing and Law of Property Act and its predecessors were enacted to assimilate the rules at common law in regard to the transmission and devolution of real and personal property on the death of a person. Broadly speaking, the position at common law was as follows. The freehold estate of a person who died went direct to the devisee named in his will; if he died intestate, the freehold estate descended directly to his heir ascertained in accordance with the Inheritance Act 1833. It did not devolve on the personal representatives. Personal property of the deceased, on the other hand, went to his personal representatives and was distributable in accordance with the will or, in a case of intestacy, in accordance with the rules of intestate succession. ‘Personal property’ included and includes chattels real, which, unlike freehold, are estates or interests arising out of lands of a definite duration, e g tenancies and leases. So there were different rules governing the transmission and devolution of freehold and chattels real. In the Straits Settlements, as well as in England, but at different times, legislative changes were made to bring the rule governing freehold in line with that governing chattels real. In the Straits Settlements, the first change was introduced by Indian Act 20 of 1837, which by s 1 provided as follows:

All immovable property situate within the jurisdiction of the Court of Judicature of Prince of Wales Island, Singapore and Malacca, shall, as far as regards the transmission of such property on the death and intestacy of any person having a beneficial interest in the same, or by the last Will of any such person, be taken to be, and to have been of the nature of chattels real and not of freehold.

31       It was held in Re Goods of Cauder Mohudeen deceased [1877] Leic 281, that this section only applied to immovable property in which the deceased had both the beneficial and legal interest, and not to immovable property in which the deceased only had a legal interest but not the beneficial; in other words, it did not apply to immovable property held on trust.

32       The provisions of the Indian Act of 1837 were repealed and re-enacted in much more elaborate language as s 33(1) of the Conveyancing and Law of Property Ordinance of 1886. Section 33(1) of that Ordinance appears as s 35(1) of the present Act by that title. For present purposes, it is sufficient to note that the uniform rule of transmission and devolution was extended to property vested in the deceased on any trust as well as beneficially. This had the effect of reversing the decision in the Cauder Mohudeen case.

33       I now turn to the question at hand. It seems to me that in considering this question, one has to bear in mind the principles established in another area of the law, the law concerning the administration of estates of deceased persons. What is involved here is the principle regarding the chain of representation of the estates of deceased persons. In this respect, a distinction between executors and administrators should be borne in mind. An executor is appointed by the will of the testator, but an administrator is appointed by the court. Unlike the position of an administrator, the appointment of an executor is presumed to be founded upon the special confidence which the testator has in him and his actual appointment by the will of the testator. On this basis, an executor is therefore allowed to transmit his powers to his own executor as a person in whom he has equal confidence. Thus, where there is a grant of probate of the will of testator A to an executor B, and B dies, the executor of B becomes the executor of the estates of both A and B. The interest vested in the original executor by probate of the will of the testator is continued and kept alive by probate of the will of the executor, without the need for a new probate of the original will. So long as the chain of representation is unbroken, e g by an intestacy, the last executor in the chain is the executor of every preceding testator. Where the chain of representation is broken, an administrator de bonis non of the original testator must be appointed by the court.The position is confirmed now in s 16A of our Civil Law Act. See also Williams Executors Administrators and Probate (16th Ed) p 40.

34         The position of an administrator is different. He is appointed by the court, typically, as in this instant case, because the deceased has not left a will appointing his own executors. When the administrator of the estate dies without completing the administration, an administrator de bonis non must be appointed to carry on the administration of the original estate; the administration of the original estate does not automatically pass to the second administrator. This rule was established a long time ago, and is well entrenched in the law. See Warren v Warren (1678) 2 Chan Cas 247; 22 ER 928 and Thorn v S (1601) Gouldsb 182; 75 ER 1079. Citing Blackstone’s Commentaries (2 Bl Com 14th Ed 506), the learned editors of 17 Halsbury’s Laws of England (4th Ed) para 984 state that upon the death of a sole or surviving administrator appointed upon an intestacy, the chain of representation must be continued by the appointment of an administrator de bonis non.

35       It is also a well established principle in the construction of statutes that the legislature is to be presumed not to intend to change the law without express language. This by now self-evident proposition was also laid down a long time ago. Thus, in Arthur v Bokenham (1708) 11 Mod 148, 150, it was said: ‘… in all doubtful matters, and where the expression is in general terms, the words are to receive such a construction as may be agreeable to the rules of common law in cases of that nature, for statutes are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare.’

36       I would proceed on the assumption that the object of the legislative provisions of 1820 and 1886 referred to earlier was merely to abolish the special rule at common law relating to succession to the freehold estate of a deceased person. Such property was to be treated like other property of the deceased, and everything, including trust property, goes to the personal representatives to be administered or distributed in accordance with the will or the rules of intestate succession. The provisions were not intended to alter the established rules concerning the succession of the office of personal representatives of a deceased person.

37       When executors or administrators have cleared the estate in the sense of having discharged the debts and liabilities of the estate, they stand in the position of trustees in relation to the residuary estate. Thus, in Ponder v Ponder [1921] 2 Ch 59, it was decided by Sargant J that an administrator who has paid all expenses and debts and cleared the intestate’s estate stands in the same position towards the next of kin as that which an executor who has cleared the estate stands in towards the residuary legatees; he ceases to be an administrator and becomes a trustee, and the court can appoint a new trustee to act jointly with him. In Re Cockburn [1957] 2 All ER 522, Danckwerts J held that where there has been a grant of administration with the will annexed, the administrators, after clearing the estate and completing the administration in this sense, are entitled to appoint, under provisions similar to s 40 of our Trustees Act, new trustees of the will who can exercise all the powers conferred by the will on the trustees of the will. The learned judge said:

Whether persons are executors or administrators, once they have completed the administration in due course, they become trustees holding for the beneficiaries, either on an intestacy or under the terms of the will, and are bound to carry out the duties of trustees, although in the case of administrators they cannot be compelled to go on indefinitely acting as trustees and are entitled to appoint new trustees in their place and thus cleared themselves of the duties which were not expressly conferred on them under the terms of the testator’s will and which they were not bound to accept.

38       These two cases support the proposition that when an executor or an administrator has completed administration in the sense of having cleared the estate of debts and liabilities, he stands in the position of a trustee in relation to the residuary estate, and trustees can be appointed to act with him or in his place. But they do not support the proposition sought to be put forward that when an administrator dies, the administrators of the estate of the administrator have the power to appoint trustees for the residuary property of the original estate of whom the deceased administrator was the administrator. The law is quite clear that in such a situation no one but an administrator de bonis non can have power over the residuary estate left unadministered. I agree with the submission of Mr Tan for the plaintiff that s 35(1) of the Conveyancing and Law of Property Act does not apply to any land held on a ‘trust’ which arises in this way. In the case of an administrator, such as Abdulkader Alhadad in this case, to apply this section to such property would in effect be to go against the rule regarding the chain of representation in the administration of estates.

39       I therefore reject the submission that because Abdulkader Alhadad had become trustee of the subject property on the basis that he had cleared the estate, on his death, the property, as ‘trust’ property, devolved on his administrators and that these administrators as trustees had in turn the power to appoint additional and substitute trustees for the purpose of continued administration of the estate of the estate of the original deceased, Basalamah.

40       Counsel for the first three defendants referred me to the case of A-G v Haji Abdul Rahman (1889) 4 Ky 497 as supporting his contentions. With respect, I do not think that this case is of any assistance to him. It is clear that the case deals with the devolution of powers over a trust property through a succession of executors, and not administrators.

41       I therefore hold and find that the first three defendants had no title to the property; nor did they have any power to deal with it.

The purchaser’s contentions: acquiescence, laches

42       The position of the purchasers, Scan Electronics, is as follows. Apart from supporting the contentions of the first three defendants in respect of s 35(1) of the Conveyancing and Law of Property Act, they rely on the defence of acquiescence. They submit that Ali Redha Alsagoff, who had been appointed attorney for Ahmad Basalamah and Hassan Basalamah in 1990, knew about the impending sale of the property or about steps being taken towards the sale; that he stood by and acquiesced in the sale or in the steps taken towards the sale. He should therefore not be allowed to impeach the sale They rely on a passage from Kerr on Fraud and Mistake (7th Ed) p 597 to the effect that if a person:

with full knowledge or sufficient notice or means of knowledge, of his rights and all the material circumstances of the case, freely and advisedly does anything which amounts to the recognition of a transaction, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time, and knowingly and deliberately permits another to deal with the property, or incur expense, under the belief that the transaction has been recognised, or freely and advisedly abstains for a considerable lapse of time from impeaching it, there is acquiescence, and the transaction, although originally impeachable, becomes unimpeachable in equity.

43       Counsel for Scan Electronics was content for their case to be decided on the affidavits and the documents produced. He relies on the undisputed facts, the correspondence, and the entries in the register of deeds and other documentary evidence to establish a case of acquiescence. He points to the following facts. First, the grant of letters of administration to the estate of Abdulkader was registered against the property on 8 November 1991 in the Registry of Deeds. The appointments of Ibrahim, Salim and Hashim as trustees were similarly registered against the property. Ali Redha Alsagoff is a man well versed in real estate matters, and from the correspondence, it is clear that he knows and at the relevant time knew how to make searches at the Registry of Deeds to find out transactions affecting the property. This is evidenced by the fact that he found out in 1992 from a search at the registry about the proposed sale of the property to Yeo Ah Ngoh. It is also evidenced by the fact that he found out in September 1994 about the sale to Scan Electronics perfected by the deed of assignment of lease dated 15 October 1993.

44       Counsel for Scan Electronics says that after the plaintiff found out about the intermeddling with the property by the personal representatives of the estate of Abdulkader, it had taken him more than three years to commence this action, and in the meantime he had ‘allowed’ the first three defendants to sell the property to Scan Electronics. He says that neither the plaintiff nor the beneficiaries of the estate of Basalamah had filed a caveat against the property. There was also undue delay in the application for administration de bonis non. So, he contends, the plaintiff or the beneficiaries of the estate of Basalamah had stood by and allowed the sale to Scan Electronics to proceed. They cannot now complain about the propriety of the sale. Counsel goes as far as saying that the inaction amounts to fraud.

45       I think I can deal with these contentions fairly shortly. The twin essential requirements for a case of acquiescence in the circumstances of this case are knowledge, actual or constructive, of the wrongful acts of the defendants in relation to the plaintiff’s property and a conscious omission to stop them or prevent them from taking place or a knowing condonation of them. It seems to me that these requirements are far from being satisfied in this case. In relation to the proposed sale to Yeo in 1992, the correspondence shows that the plaintiff, far from condoning it or accepting it, in fact protested firmly against it. He made clear his view that the estate of Abdulkader had no interest in the property, that the property still belonged to the estate of Basalamah, and that he was applying for letters of administration de bonis non. He also demanded that the caveat lodged by the purchaser against the property be withdrawn. So it cannot be said that he condoned or acquiesced in the proposed sale to Yeo.

46       The submission on behalf of Scan Electronics impliedly requires owners of property or those acting on their behalf to keep a degree of vigilance against incursions on their rights by others which is entirely uncalled for. I reject the implied suggestion that the plaintiff should have kept a constant search of the land register to detect any such incursions. The evidence suggests very strongly that despite the clear objections raised to the first sale, steps were taken by the first three defendants without the knowledge of the plaintiff to put themselves in a position, so they thought, of being able to deal with the property. They never told the plaintiff Ali Redha Alsagoff about the proposed sale, but now they say he allowed the sale to proceed, or even knowingly allowed it; they also now say that he should have stepped in earlier to stop it. In my view these are quite unreasonable and untenable arguments. There is simply no foundation in fact for the contention that those representing the estate of Basalamah had allowed the sale to proceed, let alone that they had knowingly allowed it. So the case for acquiescence fails.

47       Counsel for Scan Electronics also contend that the delays and inactions on the part of the plaintiff or the beneficiaries of Basalamah’s estate amount to laches. Laches is essentially an equitable defence in answer to a claim in equity. Here, the claim by the plaintiff as the administrator de bonis non is a claim to assert rights at law of the estate over the property. It seems to me that the defence of laches has no place in this context. It seems to me that this is a case where the maxim equity follows the law aptly applies.

48       I now refer to the various summonses which I dealt with in the course of the hearing and deal with those which were held over.

Summons No 7774 of 1994 in OS 787 of 1993

49       This is an application by Salim, Hashim and Ibrahim Alhadad for an order that the subject property, being ‘vested’ in the estate of Abdulkader deceased, be vested in them ‘as trustees’, and that the sale to Scan Electronics be confirmed. The arguments advanced by Mr Pang set out earlier based on s 35(1) of the Conveyancing and Law of Property Act, on the ‘faraid’ and on s 40 of the Trustees Act, were made to support this application. Since I have rejected these arguments, it remains for me to formally dismiss the summons with costs to the plaintiff, as intervenor in the 1993 originating summons. And I do so.

Summons No 6391 of 1995 in OS 787 of 1993

50       This is an application by Hashim and Salim Alhadad that the order of court of 27 August 1993 authorising the sale be amended so that (1) instead of being described as the ‘personal representatives’ of the estate of Basalamah deceased, they be described as the ‘trustees’ of that estate, and (2) the property may be vested in them as ‘trustees of the said property for the sale.’

51       The arguments revolve the same issues of law which have been dealt with. I dismiss the summons, with costs to the plaintiff as intervenor in the 1993 originating summons.

Summons 3129 of 1995 in OS 437 of 1995

52       As stated above, this is an application by Scan Electronics for a declaration that they are the lawful owners of the property, and for an order to expunge the caveat lodged on behalf of Ahmad and Hassan Basalamah. I formally dismiss this summons with costs to the plaintiff.

Summons No 6056 of 1995 in OS 437 of 1995

53       This was an application by Salim, Hashim and Ibrahim Alhadad that the letters of administration de bonis non granted to Ali Redha Alsagoff do not apply to the property or alternatively that the letters of administration de bonis non be revoked. The application was made on the ground that in applying for the letters of administration, Ali Redha Alsagoff had failed to disclose or misrepresented certain facts to the court. First, he failed to produce the letters of administration granted to Abdulkader Alhadad in 1953 and that the subject property was the only asset in the estate. Secondly, the certificate of inheritance filed was not correct in that it showed the widow of Basalamah to have a share while in truth, the widow having died before distribution her share would have lapsed by Islamic law. Thirdly, it was represented to the court that the estate had not been distributed when in truth it had.

54       I dismissed the application with costs to the plaintiff. The application by Ali Redha Alsagoff for the grant of letters of administration de bonis non was made on the basis that the estate of Basalamah had not been distributed. As I have stated earlier, the contention that the estate had been distributed has not been supported by any evidence. The estate of Basalamah deceased is still shown as the proprietor of the property; there has not been any assent of the property in favour of anyone. The fact that it was not disclosed that Basalamah’s widow had died is not something that would go to the root of whether administration should be granted. If it is correct that her share lapsed by operation of Islamic law, the probate registrar was not asked or required to rule on such collateral matters, and so the inaccuracy in the beneficiaries entitled to a share or the amounts of their respective shares was not material to the grant. Procedurally, I did not think the application was in order. An application to revoke a grant of letters of administration should surely be made in the probate proceedings and not here. I therefore dismissed the application. A subsequent application that I hear further argument was also rejected.

Summons No 6080 of 1995 in OS 437 of 1995

55       This was an application by Sharifah and Ibrahim Alhadad, as administratrix and administrator of the estate of Abdulkader Alhadad, to be added as the fifth and sixth defendants in OS 437/95, so as to enable them to claim the proceeds of the sale of the property. The grounds for the application were similar to those grounds put forward by Mr Pang for the first three defendants. Again it was contended that Abdulkader Alhadad paid the estate duty and thereby completed the administration of the estate of Basalamah, that Abdulkader Alhadad then distributed the estate by paying the beneficiaries cash, and he thereby acquired a right to retain the subject property as his own. No new evidence was adduced to support any of these allegations. Reference was again made to the same so-called ‘faraid’. It was quite evident that this was just another attempt to make the same assertions which had not made much headway through the counsel for the first three defendants. Since a prima facie case for intervention was not made out, I dismissed the application with costs, which I fixed at $1,000 to be paid to the plaintiff forthwith.

Summons No 6408 of 1995 in OS 437 of 1995

56       This is an application by Scan Electronics to rectify the deed of assignment of 15  October 1993 whereby the property was purportedly conveyed to Scan Electronics by the first three defendants. It was left over for consideration, and I now deal with it. Basically, Scan Electronics say there are two mistakes in the deed. First, the vendors were described in the recitals as trustees of the estate of Abdulkader Alhadad. Scan Electronics ask that this be corrected so that they may be described as the trustees of the property of the estate of Basalamah deceased. Secondly, the vendors were also referred to in the deed of assignment as the legal personal representatives of the estate of Basalamah deceased. Scan Electronics ask that these descriptions be rectified so that they may be referred to as the trustees of the property of the estate of Basalamah deceased.

57       It seems to me that once it is held that the vendors had no title to deal with the subject property because they were not within the chain of representation, there is no ground for rectifying the document, if the object and effect of the rectification is to clothe the vendors with the title and authority which they never had. It is curing the symptom without curing the disease. I dismiss the application with costs to the plaintiff.

Conclusion

58       I therefore find that the plaintiff succeeds against all the defendants in OS 437/95. I shall settle the terms of the orders to be made in this originating summons and in the 1993 original summons as appropriate.

Application allowed.

Reported by Noorunnisa Ibrahim Kutty