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NOTE: Family Law cases applying customary law in ore-independence Malaya and its

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Source: Malayan Law Journal Unreported;Malayan Law Journal Reports


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Malayan Law Journal Unreported/2017/Volume/Peter Chong & Anor v Khatijah binti Md Ibrahim & Anor and
another suit - [2017] MLJU 1612 - 30 October 2017

[2017] MLJU 1612

Peter Chong & Anor v Khatijah binti Md Ibrahim & Anor and another suit
HIGH COURT (PENANG)
LIM CHONG FONG J
CIVIL SUIT NO 22NCVC-429-06 OF 2012 AND NO 22NCVC-567-08 OF 2012
30 October 2017

Ang Khoon Cheong (CP Ang & Co) for the plaintiffs.

Norhisham bin Shaidi (Norhisham & Co) for the first and second defendants.

Tan Swee Cheng (SC Tan) for the third defendant.

Lim Chong Fong J:

GROUNDS OF JUDGMENT

Introduction

[1] The disputes involve the sale of part of undivided share in a piece of land held by a Muslim woman under
joint tenancy with her sister who both acquired the land as a gift from their late Muslim father.
[2] The Plaintiffs in Penang High Suit no. 22NCVC-429-06/2012 ("Suit 1[#65533]?) are individuals. Likewise,
the Plaintiffs in Penang High Court Suit no. 22NCVC-567-08/2012 ("Suit 2[#65533]?) (Suit 1 and Suit 2 col-
lectively "Suits[#65533]?) are also individuals with the Third Plaintiff acting as personal representative of the
estate of the late Liang Kuan Hoe.
[3] The First Defendant ("Khatijah[#65533]?) is also an individual and also acting as the Second Defendant
in representative capacity of the estate of her late sister Aishah binti Md Ibrahim ("Aishah[#65533]?) in both
Suits too.
[4] The Third Defendant in both Suits is a private limited company registered pursuant to the Companies Act
1965.

Background Facts

[5] By a deed of conveyance dated 26 February 1940 registered as Volume 808, page 637 no.160
("Deed[#65533]?), a R. Govindasamy a/l Rengasamy Naidu sold the piece of land known as Lot no. 3 held
under Geran no. 21594, Section 5, Bandar Georgetown, Daerah Timur Laut, Penang ("Land[#65533]?) to
Mohamed Ibrahim bin Mohamed Eusoff ("Ibrahim[#65533]?).
[6] The Deed is reproduced here:
2
3
4

[7] The material portion of the Deed reads as follows:


5

"In consideration of the sum of Dollars Seven Hundred ($700-00) now paid by the Purchasers to the Vendor (the re-
ceipt whereof the Vendor hereby acknowledges), the Vendor, as Beneficial Owner, hereby conveys to the Purchaser
All those pieces of land and hereditaments more particularly described in the First Schedule hereto To Hold the same
unto the Purchaser for and during his life and thereafter to his children Mohamed Ismail, Aishah (f) aged 7 years and
Khatijah (f) of 21 days as Joint Tenants.[#65533]?

[8] After the Deed was perfected, Ibrahim took possession of the Land. However Ibrahim and his son Mo-
hamed Ismail predeceased Aishah and Khatijah. The sisters then took absolute possession of the Land. The
Land was on 27 June 1977 recorded in the Interim Register by the Penang Land Titles Board in the names
of Aishah and Khatijah as proprietors holding as joint tenants pursuant to the National Land Code (Penang
and Malacca Titles) Act 1963.
[9] On 3 February 1990, Aishah unilaterally executed a sale and purchase agreement with the Plaintiffs in
Suit 2 to sell the portion of the Land shaded as Plot no. 9. Furthermore on 17 September 1990, Aishah uni-
laterally executed another sale and purchase agreement with the Plaintiffs in Suit 1 to sell 1,400 square foot
of portion of the Land shaded as Plot no. 8.
[10] The Plaintiffs in both Suits paid the purchase price under the aforesaid sale and purchase agreements
in full to Aishah and went into possession of both portions of the Land. They erected premises thereon now
known as no. 472-A, Jalan Air Itam, 11400 Penang and no. 470, Jalan Air Itam, 11400 Penang respectively.
[11] Aishah died on 4 March 1998 without having completed the transfer and registration of the portions of
the Land to the Plaintiffs. After the demise of Aishah, Khatijah was registered as the sole registered proprie-
tor of the Land in 1/1 share.
[12] Consequently, the Plaintiffs instituted both Suits to principally seek specific performance of their respec-
tive sale and purchase agreements.
[13] In the meantime, Khatijah on or about 4 February 2013 sold the Land to the Third Defendant. The sale
and purchase agreement was however not executed by Khatijah. In Penang High Court Suit no. 22NCVC-
97-06/2014 ("Related Suit[#65533]?), the Court on 27 February 2015 ordered specific performance of the
sale and purchase agreement in favour of the Third Defendant.

Preliminary

[14] Both Suits were originally heard before Nantha Balan J and His Lordship on 27 February 2015 dis-
missed both Suits with costs.
[15] On appeal by the Plaintiffs in Civil Appeal no. P-02 (NCVC)(W)-564-04/2015, the Court of Appeal on 9
September 2016 allowed the appeal by setting aside the aforesaid judgment dated 27 February 2015 to be
re-tried with expert witnesses called.
[16] The Suits consequently came back before me and at case management, the parties agreed to be bound
by the earlier findings of Nantha Balan J on the issues raised by the parties except for the sole principal is-
sue of whether the gift of the Land by Ibrahim to this children as joint tenants is subject to Islamic law (known
then as Mohammedan law) and accordingly repugnant thereto.
[17] On this premise, I also allowed the intervention of the Third Defendant in both Suits to safeguard its in-
terests in the Related Suit.
[18] The trial was accordingly reconvened on 15 February 2017 and 11 August 2017 and a sole expert wit-
ness on Islamic/Mohammedan law Associate Professor Dr. Jasni bin Sulong ("Dr. Jasni[#65533]?) of the
School of Humanities Universiti Sains Malaysia was called by the First and Second Defendants to give ex-
pert evidence. I am satisfied that Dr. Jasni who holds Bachelor (with first class honours), Master and Doctor
of Philosophy degrees in Syariah from the Universiti Malaya is amply qualified and experienced to provide
his opinion on this issue. The expert evidence of Dr. Jasni is contained in his affidavits affirmed on 13 Janu-
6

ary 2017 and 24 July 2017 filed pursuant to Order 40A of the Rules of Court 2012 that was tested under
cross examination by counsel for the Plaintiffs at the trial on 15 February 2017 and 11 August 2017.
[19] I also received written submissions and thereafter heard oral clarification from counsel on 26 April 2017,
30 September 2017 and 17 October 2017.
[20] After having duly deliberated on them, I hereby furnish below my decision on the issue together with
supporting grounds thereof.

Contentions of the Parties

[21] The Plaintiffs contended that Mohammedan law applied to the gift that is evidenced by the Deed. Gen-
erally the gift offended Mohammedan law because the nature of the gift itself is neither so recognised nor
accepted as hibah. They pointed out that there are similarities as well as differences between the Moham-
medan concept of hibah ruqba as advanced by the Defendants in justification of the validity of the gift and
the English common law concept of joint tenancy.
[22] According to the Plaintiffs, a joint tenancy under common law is created by the act of a person by way of
a grant, devise or disseisin. Hibah ruqba is however by nature strictly a gift. Hibah ruqba is an arrangement
between donor and donee but not between donees if there is more than one donee. In a hibah ruqba, the
donor says to the donee: "If you die before me, the gifted property reverts to me and if I die before you, the
property would be yours and your heirs.[#65533]? Upon the death of the donor or the donee and one or the
other takes the property absolutely, the hibah ruqba is completed.
[23] Pursuant to the Deed, the Plaintiffs thus submitted that there was at its best a hibah ruqba between
Ibrahim and his children. It could not be amongst his children because there was no express hibah ruqba
likewise inter se. The Plaintiffs therefore contended that there was no evidence of hibah ruqba between
them. That notwithstanding, the Plaintiffs further submitted that any hibah ruqba may nonetheless be sev-
ered by any one of them disposing their interest. Hence if there was indeed a hibah ruqba between the sis-
ters, Aishah had severed the joint tenancy by selling her interests in the Land to the Plaintiffs. In this respect,
the Plaintiffs relied on the Singapore case of Jack Chia - MPH Limited v. Malayan Credit Limited [1984] 1
CLJ 401 where the Court of Appeal comprising of Wee Chong Jin CJ, T. Kulasekaran J and Lai Kew Chai J
held as follows:

"Under Singapore law a joint tenancy can be severed at law so as to create a tenancy in common. This was the posi-
tion in England before the Law of Property Act 1925 (15 Geo. 5 e. 20) In Williams v. Hensman [1861] (1 John & H 546)
Sir W. Page Wood V.C., at p. 557 said:
A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating
upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship
only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each
one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund - losing, of course, at the
same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the
third place, there may be severance by any course of dealing sufficient to intimate that the interests of all were mutually
treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any
express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only
behind the backs of the other persons interested.[#65533]?

[24] The Plaintiffs finally submitted that the hibah ruqba between Ibrahim and his children, if any, is re-
pugnant to Mohammedan law because there was the element of uncertainty (gharar) and this was why Za-
karia Sam J (now JCA) avoided the joint tenancy arrangement in Salmah bt Omar & Ors v. Ahmad Rosli bin
Aziz (administrator of the estate of Osman bin Mohamed, deceased) & Anor [2012] 3 MLJ 567. His Lordship
held as follows:

"[37] There is also an element of chance in joint tenancy where it is a gamble as to which owner predecease the others
before the final survivor becomes the sole owner. This is the basis of gambling and it is prohibited in Islam.[#65533]?
7

[25] Consequently, the Plaintiffs contended that the gift is void under Mohammedan law.
[26] On the other side, the First and Second Defendants contended that by the Deed, Ibrahim made an
inter vivos gift of the Land to his children the beneficiaries. Whilst Ibrahim was still alive, he held the Land as
trustee during his lifetime for the benefit of the minor children. In other words, Ibrahim had done everything
he could to divest himself of ownership of the Land by making an express trust and declaring himself as trus-
tee. Since the Deed was registered pursuant to the law that was in force at the time, it was therefore an inter
vivos gift under common law that neither concerned nor attracted Mohammedan law. They referred and re-
lied on the case of Re Man Bin Mihat, Decd. [1965] MLJ 1 where Suffian J (later LP) held as follows:

"Muslim law rigidly prescribes the share of every heir and no alteration of these shares may be made by will, for a be-
quest to an heir requires the consent of all co-heirs and a bequest to strangers may not take effect beyond 1/3 of the
testator's estate, but there are no restrictions beyond these two limitations. So it is lawful for a Muslim to alter the pre-
scribed shares of his heirs by disposing outright during his lifetime part or the whole of his property to a favoured wife,
either directly by way of a gift inter vivos or indirectly through trustees. If there is no legal objection to a Muslim altering
his heir's share by himself during his lifetime making a gift through trustees to a favoured wife, in my judgment equally
there should be no objection in principle to the validity of a similar gift made not by himself but by statute.
Indeed it is quite common for a Muslim to buy land for his minor children and have himself registered in the Land Office
records as trustee, though the effect would be to augment the share received by those children in his property after his
death. During his lifetime the land is trust property and his death does not alter its character, for thereafter the land re-
mains trust property and his administrator holds it for the purposes of the trust. In my judgment the statutory trust cre-
ated in favour of the wife in the instant case also retains its character as a trust after his death, and for so long as any
object of the trust remains unperformed the trust cannot be defeated and may, if necessary, be enforced by the wid-
ow.[#65533]?

[27] Accordingly the First and Second Defendants submitted that the gift by Ibrahim to his children is there-
fore good by virtue of the common law that continued to be given effect statutorily by the National Land Code
(Penang and Malacca Titles) Act 1963.
[28] The First and Second Defendants further submitted that even if the gift is subject to Mohammedan
law, the gift is nonetheless a valid hibah ruqba. A hibah is described in the treatise Muslim law: The Personal
Laws of Muslims in India and Pakistan (N M Triphati Private Limited 4th Ed.) by Faizbadurddin Tyabji as fol-
lows:

"The legal effect of hibah is that the immediate and absolute ownership of the subject of the hibah is transferred to the
donee; where the property is purported to be transferred by way of hibah with conditions or restrictions as to its use, or
disposal, or alienation, the conditions or restrictions may be void... A ruqba means a hibah (or gift or the absolute own-
ership of some specified property) with a condition that if the donee survives the donor, the subject of the hibah shall
belong absolutely to the donee.[#65533]?

Although the First and Second Defendants conceded that the hibah ruqba gift which created the joint tenan-
cy may severed by way of revocation as asserted by the Plaintiffs based on the opinion of Qowl Qadim of
Syafie, the First and Second Defendants however submitted that both Aishah and Khatijah did not revoke
their interests as joint tenants at the material time when they reached adolescence.
[29] The First and Second Defendants also contended notwithstanding that the element of uncertainty (gha-
rar) may prohibit and avoid certain hibah ruqba transactions but there are nonetheless exceptions depending
upon whether the prohibition is major or minor. They submitted that the chance or uncertainty involved here
is minor because it entailed a gift from parent to children.
[30] Finally the First and Second Defendants pointed out that the Courts in other Asian jurisdictions have
nonetheless held that an inter vivos joint tenancy gift of real property by Muslims is valid as seen in the Sin-
gapore Court of Appeal case of Shafeeg bin Salim Talib and another v. Fatimah bte Abud bin Talib and oth-
ers [2010] SGCA 11 as well as the Indian cases of Mohamed Jusab Abdulla v. Fatamabai Jusab Abdulla
8

AIR (35) 1948 Bombay 53 and Azizunissa Abdurrahman Kadri v. Jamila Abdul Hussein Sheik (deceased by
her LRs) & Ors [2007] NOC 2238 Bom LR 769.

Findings of the Court

[31] I will firstly deal with the applicability of Mohammedan law at the point when the Deed was executed
and perfected in 1940. The Plaintiffs referred to the following proposition on reception of English law by Za-
karia Sam J (now JCA) in Salmah bt Omar & Ors v. Ahmad Rosli bin Aziz (administrator of the estate of Os-
man bin Mohamed, deceased) & Anor (supra) with emphasis added by me:

"[16] Principles of common law and equity were formally introduced in Penang by the first charter of justice in
1807 with the proviso that 'as far as local circumstances will admit'. The British did not apply English law in
this country without modification, they stressed 'the need to respect the customary law of the non-British
Asian inhabitants who professing different religions, and using and having different religions and using and
having different manners, habits, customs, and persuasion, had settled there' - see Judith Sihombing's Na-
tional Land Code A Commentary at p 3. See also Yeap Cheah Neo and others v Ong Cheng Neo (1875) LR 6 PC
381 at p 392.
[17] English principles were not used when they would not be applicable to the local inhabitants and would cause un-
fairness and injustice. As observed by Lord Russell of Killowen in Khoo Hooi Leong v Khoo Chong Yeok [1930] AC
346 at p 355, that:
The modifications of the law of England which obtain in the colony in the application of that law to the various alien rac-
es established there, arise from the necessity of preventing the injustice or oppression which would ensue if that law
were applied to alien races unmodified. That was the view expressed by Sir Peter Maxwell CJ in Choa Choon Neo v
Spottiswoode ; and this Board in Yeap Cheah Neo v Ong Cheng Neo , stated that in Sir Peter Maxwell's judgment.
'The rules of English law and the degree in which, in cases of this kind, regard should be had to the habits and usages
of the various people residing in the colony are correctly stated'.
[18] This principle was given statutory force in the proviso to s 3 of the Civil Law Act 1956 which provides that:
The said common law, rules of equity and statutes of general application shall be applied so far only as the circum-
stances of the States of Malaysia and their respective inhabitants permit and subject to such qualification as local cir-
cumstances render necessary.[#65533]?

The Plaintiffs also referred to the book Principles of Malaysia Land Law (LexisNexis) by Ainul, Sharifah,
Bashiran, Fauziah, Nor Aishah, Azlinor and Ratna that:

"Historical records show that the principles of Islamic law and adat were already present in some of the State
laws of the time, even before the arrival of the English traders. These were the Malacca Laws of 1523, The Pa-
hang Laws of 1596, The Kedah Laws of 1605, The Johor Laws of 1789, The Perak Code and the Ninety-Nine
Laws of Perak 1765. The Malay States were full sovereign States having their own systems of law and admin-
istration. As such the words of Sir Montaque Smith that when Penang was first ceded by the Sultan of Kedah
there was no trace of any laws having been established there needs to be further examined in the new light.
The truth of the matter was that before the arrival of the English traders, the Malay peninsula (as Malaysia was
then known) was already governed by Islamic law fused with local custom in respect of wide range of matters
affecting the entire spectrum of the life of the local inhabitants.[#65533]?

[32] The Defendants referred to the Annotated Statutes on the National Land Code (Penang and Malac-
ca Titles) Act 1963 (Issue 71 by LexisNexis) that provides as follows with emphasis added by me:

"Early Land law in Penang


Background and the deed system
Penang island was originally part of the state of Kedah, which was ruled by a Muslim Sultan. It was occupied by the
East India Company, a representative of the British Crown in the region, through negotiations between the Sultan of
9

Kedah and Francis Light in 1786 (the negotiations concerned the Sultan seeking military assistance from the British
Government to protect the state from any attacks by the Siamese). The Sultan finally gave the Island of Penang and
Province Wellesley to the British Government through three Charters of Justice.
It has been said that there was no evidence of any law prevailing in Penang at the time the British arrived. Sal-
leh Buang was of the view that Islamic law and Malay custom was in practice in Penang at that time. However,
see Judith Sihombing National Land Code, A Commentary (2nd Edition, 1992) where it was stated that there is
no trace of any law prevailing in Penang prior to the occupation by the East India Company, although the same
author states in 8 Halsbury Laws of Malaysia Land (2003 Reissue) (Original Title Scheme) [150:050] that: '[i]n
1786 the population of the island was sparse, and it is assumed that if any law applied to the occupation of
land that law was Malay customary law'
According to the British, there was no formal land law in the state of Penang at the time the East India Company occu-
pied the state. In Ong Cheng Neo -v- Yeap Cheah Neo (1872) Kyshe 326, the Privy Council was of the view that: 'In
either view, the law of England must be taken to be the governing law, so far as it is applicable to the circumstances of
the place court held that the island was wholly inhabited when the British arrived, thus the English law should be appli-
cable.[#65533]?
"(3) Effect on Customary Land:
The Act also make provision for customary land which was owned pursuant to Adat Naning, a modification of
Adat Perpateh customary tenure, to be entered in a special Mukim Register referred to as the Malacca Cus-
tomary Land Register. Sections 94-109A of the Act provide for dealings as well as continued recognition and preser-
vation of customary lands in Malacca. Titles in continuation (subject to the provisions of National Land Code 1965 (Act
56 of 1965) ((1) 3 Lands)) are to be issued to land held under the Malacca Customary Land Register. These provisions
are applicable only in the state of Malacca and not to the state of Penang. This is due to historical reasons whereby
there was customary land tenure in existence when the colonial masters came to Malacca, unlike Penang which was
said to be an uninhabited island when the British arrived: see Ong Cheng New -v- Yeap Cheah Neo (1872) Kyshe 326.
See also 8 Halsbury's Laws of Malaysia Land (2003 Reissue) (Original Title Scheme) [150.537].[#65533]?

[33] I find the narrative in Salmah bt Omar & Ors v. Ahmad Rosli bin Aziz (administrator of the estate of Os-
man bin Mohamed, deceased) & Anor (supra) as well as commentary in the Annotated Statutes helpful.
They are not contradictory. I gather that upon initial arrival of the British, the island of Penang was uninhabit-
ed and thus English law was wholly applicable. However as the island became inhabited and populated over
time, the application of English law became subject to appropriate modification to cater for the customs of the
alien races including the Muslims that began to occupy the island in the early years of British Malaya. This is
made clear by the Privy Council in Khoo Hooi Leong v. Khoo Chong Yeok [1930] AC 346.
[34] However by 1940, the States in Malaya were firmly under British rule particularly in the Straits Set-
tlements such as Penang that apply mostly English law. There were many ordinances then already in force
as Laws of the Straits Settlements 1936. For purposes of the Suits, the relevant ordinances are in my view
as follows:

(i. S.S. Cap. 42 Civil Law Ordinance;


(ii. S.S. Cap. 57 Mohammedans Ordinance;
(iii. S.S. Cap.118 Conveyancing and Law of Property Ordinance; and
(iv. S.S. Cap. 121 Registration of Deeds Ordinance.

[35] The relevant provision pursuant to the Civil Law Ordinance is s. 5(2) that reads:

"5. Law of England to be observed in all commercial matters


(2) Nothing herein shall be taken to introduce into the Colony any part of the law of England relating to the tenure or
conveyance, or assurance of, or succession to, any immovable property, or any estate, right or interest there-
to.[#65533]?

[36] The Conveyancing and Law of Property Ordinance provides in s. 58(1) as follows:

"58. Effect of covenant with two or more jointly


10

(1) A covenant, and a contract under seal, and a bond or obligation, made with two or more jointly, to pay money or
make a conveyance, or to do any other act, to do them for their benefit, shall be deemed to include, and shall by virtue
of this Ordinance, imply, an obligation to do the act to, or for the benefit of, the survivor or the survivors of them, and to,
or the benefit of, any other person to whom the right to sue on the covenant, contract, bond or obligation de-
volves.[#65533]?

[37] Now as to the Mohammedan Ordinance, it is provided in the preamble as follows:

"To consolidate and amend the law relating to Mohammedans, and to provide for the registration of marriages and di-
vorces among Mohammedans.[#65533]?

[38] It is further provided as follows in s. 26 of Part III of the Mohammedan Ordinance in relation to
property:

"26. Modification of law

(1) The modifications of the laws of property to be recognized in the case of Mohammedan marriages
shall be as enacted in this Ordinance.
(2) Mohammedan law in the absence of special contract between the parties shall be recognised by the
Courts of the Colony only so far as expressly enacted in this Ordinance.
(3) Nothing in this Ordinance contained shall be held to prevent any Mohammedan person directing by
his or her will that his or her estate and effects shall be administered according to Mohammedan
law.[#65533]?

[39] Upon my careful reading of the Deed, I am of the view that Ibrahim purchased the Land and at that
same time conveyed the Land to his children Mohamed Ismail, Aishah and Khatijah as joint tenants after his
demise. During Ibrahim's lifetime, the Land was held by him as trustee for the children. Put simply, it is a vol-
untary inter vivos gift coupled with a trust for the benefit of his minor children jointly held under joint tenancy
("Conveyance[#65533]?). The three children of Ibrahim took absolute possession of the Land after his death.
After the death of the eldest son Mohammed Ismail, the Land was registered in both Aishah and Khatijahs'
name as joint tenants as evidenced by the endorsement in the Interim Register dated 27 June 1977. Subse-
quently after Aishah's death, the Land became finally registered in Khatijah's name with 1/1 share as evi-
denced by the issued document of title dated 19 July 2012. It is provided in s. 47(1) of the National Land
Code (Penang and Malacca Titles) Act 1963 as follows:

"47. Estates in absolute possession

(1) (1) Where a pre-existing estate in absolute possession in any holding is vested-
(a) in any person, such person shall, subject to paragraphs (b) and (c), be registered in the Inter-
im Register as the proprietor thereof;
(b) in two or more persons as tenants in common, such persons shall be registered in the Interim
Register as proprietors of undivided shares therein, proportionate to the pre-existing interest
of each such person;
(c) in two or more persons as joint tenants, such persons shall be registered in the Interim Regis-
ter as co-proprietors thereof, "with a right of survivorship[#65533]?.[#65533]?

[40] From my review of the provisions in the Mohammedan Ordinance that had codified customary law appli-
cable to the Muslims, it is plain to me that Mohammedan law did not apply to the Conveyance and I so find
and hold accordingly. I find that at the time Mohammedan law only applied to property relating to Moham-
medan marriage and intestacy. I am fortified by the aforequoted judgment of Suffian J (later LP) in Re Man
Bin Mihat, Decd. (supra) where settled property held in trust was found not to be subjected to Mohammed-
an law too.
11

[41] In the circumstances, I therefore find that the Conveyance was at the time solely governed by Eng-
lish law based on the Conveyancing and Law of Property Ordinance and Registration of Deeds Ordinance.
Accordingly and in the light of s. 5(2) of the Civil Law Ordinance, I further hold that the English common law
principle of alienation rei praefertur juri accresendi on severance of joint tenancy relied by the Plaintiffs is
inapplicable because this principle wasn't embodied in the aforesaid Ordinances. This position remains unal-
tered by their successor statutes, to wit: the National Land Code 1965 and National Land Code (Penang and
Malacca Titles) Act 1963 as well as s. 6 of the Civil Law Act 1956 that reads:

"6. Immovable property


Nothing in this Part shall be taken to introduce into Malaysia or any of the States comprised therein any part of the law
of England relating to the tenure or conveyance or assurance of or succession to any immovable property or any es-
tate, right or interest therein.[#65533]?

[42] I now move to consider briefly the effect of Mohammedan law on the Conveyance albeit it is strictly
speaking unnecessary since I have held that Mohammedan law is inapplicable thereto.
[43] The Defendants in gist submitted that the Conveyance is a hibah ruqba relying on the expert opinion
of Dr. Jasni who opined as follows:

"Ownership of property is a right recognised in Islam and ought to be enjoyed by every Muslim. In the case of joint
ownership, it always refers to the concept of sharikah or shirkah, where more than one person share ownership upon a
property as co-owner. However the kind of sharikah is varied upon structure of the sharing, which is based on either,
an agreement in establishing a shirkah or in the form of acquisition such as a gift... Meanwhile if a property is trans-
ferred to one or more by form of gift (hibah), the property is belonging to the donee or donees. Normally, a gift (hibah)
in Islam is referring to a deed that purported to transfer a property from donor to donee without any reward or condition.
This kind of gift was permitted in Islamic law by following the rule and principle, such as gift should be transfer during
life time and it cannot be withdrawn except from parent to their children. The donee can hold it exclusively as a sole
owner (if alone), or together with co-owner in form of Arabic partial share (shirkah) or undivided share (musha). The
word musha is derived from Arabic word which literally means "confusion[#65533]?, and in this case, means undivided
share or part in joint property. According to Hanafiyyah, a gift of undivided share by one co-heir to the other is valid. In
shariah, this kind of gift is known as hibah and hibah is considered completed once the donee received the given prop-
erty (qabd)...
However in the case of conditional gift, Islamic jurist have different views on its validity. There are long discussion
about conditional gift in shariah under the topic of umra and ruqba. To make it short, there are conflict sources in Islam-
ic jurisprudence (dalil) about umra and ruqba, whereby there are dalil which authorized them, as well as dalil that in
contrary. Umra means a gift during the life of the donee or donor with a condition that the property is returned after the
death of the hibah recipient. Meanwhile ruqba on the other hand, is a gift which puts death of either the hibah provider
or recipient as the condition of hibah ownership to the living party. In other words, ruqba means each of the co-joint an-
ticipates and waits for the death of another co-joint so that the donated item would come back to him.
Based on the above explanation, it seems that the concept of joint tenancy is identical to hibah ruqba. The word hibah,
means gift and word ruqba, means survivorship (the donated item would come back to the co-joint who sur-
vives)...[#65533]?

[44] As to whether a gift conditional upon it being held on joint tenancy as is the case of the Conveyance
offending Islamic law, Dr. Jasni opined as follows:

"Even though Muslim jurists have been conflicted in authorizing the hibah ruqba (joint tenancy) but in term of hibah/gift
per se, they predominantly are of the view on permitting the gift once method of the hibah is fulfilled.
In Islamic law also, in a special case such as to benefit some heirs or to prevent any harm to the asset, as long, as
there are opinion among opinions of Muslim scholars that permitting the act, the act is still considered to have some le-
gal authorizations. So do the joint tenants or hibah ruqba, there are views among Islamic jurists who authorized the
method of gift, among other opinions, even though they are from minority views at that time but the views have their
own stands. It was recorded from al-Sayuti, the wisdom in forbidding ruqba (condition) among majority of Muslim jurists
was based on the fact that a hibah is not revocable after a gift is solemnized. Therefore, it is contradict to the concept
of hibah/gift if the donor puts a condition to own the gift back after the donee's death. However, the case is dissimilar in
the gift from parent to their children, as Syariah underlines that it is revocable. Therefore, the point of forbidding the
condition is in line with Syariah and therefore, the hibah ruqba should be authorized...
12

The tendency that authorizes joint tenants among Muslim in Malaysia had happened a long time ago in India, where a
gift by one co-heir to the other (in the form of joint tenancy) was valid and authorized by the Privy Council.[#65533]?

[45] In respect of the element of uncertainty inherent in the Conveyance, Dr. Jasni opined as follows:

"The element of uncertainty (gharar) in this case is very minor, that is, it is unclear who will become the last own-
er/survivor between Aishah and Khatijah to own the property. However, it was certain that the whole property will be
owned only by the generation of Mohamed Ibrahim if one of them died...
Even though the hibah will deprive other heirs from inheritance, but the legality of hibah standing as an alternative plan
of estate preparation among Muslim heirs. In this case, there is no issue of depriving other heirs from inheritance as
Aishah is unaided without husband and son. Furthermore Khatijah is her only heir. Therefore, under joint tenancy, her
property will be survived by Khatijah (the whole) instead of under inheritance, her property will be inherited by Khatijah
(half), and the other (1/2) half goes to Baitulmal...
Yes, there is an element of chance in joint tenancy. However, the form of chance can be divided into two, either exces-
sive chance/gamble or only minor. In Islam, gambling is forbidden if it was put on luck and fortune per se. However, if
the gambling was put on effort such as in doing business, one may take risk either to gain profit or lost, the kind of risk
undertaking is permitted.
In the case of joint tenancy, I see that the gambling on who will succeed to own the property is not an ultimate issue,
but the goal is more on to safeguard the well being of beneficiaries of family assets. The risk that takes place in the
survivorship is in the mode of minor risk (gharar yasir) and not the excessive (gharar fahish). Islamic law permits gharar
yasir in transaction but not an excessive. Generally, a form of gambling/chance always exists in Muslim transaction, for
instance, the condition of fruit that we buy, etc, as well as we don't know the time we will die.
Therefore in the case of joint tenancy among siblings, yes there is a point of chance, but only to be a minor gharar.
Moreover, the holding was made during young age and for their benefit in order to safeguard the property from being
vested into Baitumal (public treasury).[#65533]?

[46] I find the views of Dr. Jasni rational and cogent. The Plaintiffs did not call another expert on Islamic law
with contrary views. Dr. Jasni was also unshaken under cross-examination and he held steadfastly to his
opinion with convincing explanation particularly on the inapplicability of the element of uncertainty (gharar) to
the facts herein. In the circumstances, there is no reason for me not to accept Dr. Jasni's opinion in entirety.
[47] I further hold that the case of Salmah bt Omar & Ors v. Ahmad Rosli bin Aziz (administrator of the estate
of Osman bin Mohamed, deceased) & Anor (supra) that was heavily relied upon by the Plaintiffs distinguish-
able in that it did not concern an inter vivos gift and/or trust. It is also primarily a dispute arising from intesta-
cy of both joint tenants that arguably attracted the application of Islamic law.
[48] As to severance of the hibah ruqba based on the opinion of Qowl Qadim of Syafie as further submitted
by the Plaintiffs, there was however no evidence adduced by the Plaintiffs that Aishah took action to sever it
when she reached adolescence. In this regard, Dr. Jasni made in clear at the trial that any act of severance
has to be done overtly when Ibrahim's children reached adolescence.
[49] I therefore find and hold that the Conveyance as well as the joint tenancy that was created are neither
avoided nor defeated by Mohammedan law even if that applies to the transaction.

Summary and conclusion

[50] Following the consent of the parties as set out in paragraph 15 above, I hold the following as previ-
ously found by Nantha Balan J in respect of the other issues to be determined:

(i. As to the severance of the joint tenancy (and in addition to my finding in paragraph 40 that the
English law principle of severance of joint tenancy is inapplicable under Malaysian land law),
the unilateral act of Aishah entering into sale and purchase agreements with the Plaintiffs did
not amount to severance because she did not take formal steps to divest and sever her inter-
ests from the joint tenancy by the act of partition of the Land and thereafter registration in the
names of the Plaintiffs' of their portions of the Land. Furthermore there was no consent to the
13

same by Khatijah. There were also no records that the Director of Land and Mines recognised
that severance of the joint tenancy had been made to the title of the Land.
(ii. Both Suits are not time barred as the result of s. 9 of the Limitation Act 1953 by reason that
the right to commence the actions by the Plaintiffs accrued when there is a threat to infringe
their rights following Ng Moh v. Tan Bok Kim [1969] 1 MLJ 46, Tan Swee Lan v. Engku Nik
binti Engku Muda [1973] 2 MLJ 187 and Saw Gaik Beow v. Cheong Yew Weng [1989] 3 MLJ
301. The threat of infringement to the Plaintiffs' rights were only communicated to them via
Khatijah's solicitor's letter of demand dated 23 March 2012 and the subsequent initiation of the
Suits were well within the limitation period.
(iii. The sale and purchase agreements entered between the Plaintiffs and Aishah are not capable
of being effected under the National Land Code 1965 by reason that ss. 205(1) and 214(1)
(a) and (b) thereof do not permit the transfer of a part of any undivided share in the Land. Fur-
thermore, Aishah's undivided interest has now been assimilated and merged into a single inter-
est owned by Khatijah as the sole survivor under the joint tenancy.

[51] I find and hold that Mohammedan law does not apply to the Conveyance and even if Mohammedan law
applies, the Conveyance being a hibah ruqba does not contravene Mohammedan law.
[52] In the circumstances, it is clear that the Plaintiffs' claims against the First Defendant are unsustainable.
However as for the Second Defendant, the sale of part of the undivided share of the Land could not be ef-
fected; the agreement between the Plaintiffs and Aishah in respect of the purchase of that portion of the
Land is thus void. Consequently by reason of s. 66 of the Contracts Act 1950, the estate of Aishah as rep-
resented by the Second Defendant has to restore the benefit or advantage received from the Plaintiffs: see
Menaka v. Lum Kum Chum [1977] 1 MLJ 91.
[53] For the reason as adumbrated above, I therefore hold that the Plaintiffs' claim in both Suits for specific
performance, declarations, injunction and damages in addition to or in lieu of specific performance, etc. are
untenable in law. That notwithstanding, I hold that the Plaintiffs may however claim from the Second Defend-
ant only for the restoration of the benefits and advantage received, other wise to make compensation for it.
[54] The Plaintiffs' claims in Suit 1 against the First Defendant are therefore dismissed but I enter judgment
for the Plaintiffs in Suit 1 against the Second Defendant for the restoration of benefits or advantage received,
otherwise to compensate the Plaintiffs to be assessed by the Registrar. Likewise the Plaintiffs' claims in Suit
2 against the First Defendant are dismissed but I also enter judgment for the Plaintiffs in Suit 2 against the
Second Defendant for the restoration of benefits or advantage received, otherwise to compensate the Plain-
tiffs to be assessed by the Registrar.
[55] In the circumstances herein where there is partial success on both sides, I order that each party shall
bear his/her/its own costs.
14

Malayan Law Journal Unreported/2017/Volume/Low Chai Hing v Low Thiam Kien & Anor - [2017] MLJU
2348 - 8 February 2017

[2017] MLJU 2348

Low Chai Hing v Low Thiam Kien & Anor


HIGH COURT (KUALA LUMPUR)
SU GEOK YIAM J
CIVIL SUIT NO 22NCVC-497-10 OF 2014
8 February 2017

Malliga a/p GV Sumathri (Ramanathan s/o Chinnadurai with her) (Malliga & Assoc) for the plaintiff.

Yokinee a/p AT Selvam (Zuwita Kamaruzaman with her) (Yokinee Selvam) for the defendants.

Su Geok Yiam J:

GROUNDS OF JUDGMENT

Plaintiff's suit
[1] On 29.10.2014, the plaintiff filed, through Messrs. Malliga & Associates ("the plaintiff's solicitors"), a writ
of summons dated 29.10.2014 ("the writ") together with a statement of claim, dated 28.10.2014 ("the state-
ment of claim"), enclosure (1), against the defendants to seek for the following reliefs:

(1) The cancellation of the Letters of Administration ("Ls.A."), which were applied for by, issued to
and extracted by the defendants together with the defendants' mother, namely, Lim Hek, since
deceased;
(2) The issue of fresh Ls.A. with the addition of the name of the plaintiff as one of the Administra-
tors of the Estate of his late father, Low Pow Siong, deceased;
(3) A share in the Estate of his late father, Low Pow Siong, deceased;
(4) Damages for the loss of the plaintiff's share in all the movable and immovable properties of the
Estate of his late father, Low Pow Siong, which have been sold by the defendants as the Ad-
ministrators of the Estate of his late father, Low Pow Siong; and
(5) Cost of the action.
[2] Subsequently, the plaintiff amended the statement of claim vide an Order of Court dated 27.07.2015.
[3] On 04.08.2015, the plaintiff filed his amended statement of claim redated 27.07.2015 ("the amended
statement of claim"), enclosure (58).
[4] The amendments were for three purposes.
[5] The first purpose was to insert in the existing paragraph 8, which pleads fraud and deception on the part
of the defendants in, deliberately, leaving out his name as a beneficiary of the Estate of Low Pow Siong, de-
ceased, an additional sentence and 7 new sub-paragraphs, viz (a) to (g) to plead the particulars of fraud by
concealment of the plaintiff's right as a lawful beneficiary of the Estate of Low Pow Siong, deceased, by the
defendants.
[6] The 7 new sub-paragraphs (a) to (g) to the existing paragraph 8 states as follows:

(a) The plaintiff is the child and lawful beneficiary of Low Pow Siong;
(b) Every time the plaintiff tried to ask the defendants about the property of his late father, Low
Pow Siong, the defendants informed the plaintiff that no Letters of Administration were applied
15

for due to a lack of funds with the objective of keeping the plaintiff away from the Estate of his
late father;
(c) The defendants did not include the plaintiff's name in the List of Beneficiaries of the Estate of
his late father at the time they filed the application for Letters of Administration vide the Petition
No.: 775-1978 at the Kuala Lumpur High Court in 1978 ("the petition") for the Letters of Admin-
istration. The plaintiff was not aware of the petition and he was also not informed of the petition;
(d) The defendants had, deliberately, concealed the plaintiff's right to the Estate of his late father at
the time of the filing of the petition and at the time of the hearing of the petition in the Kuala
Lumpur High Court in order to deny the plaintiff his right to the Estate of his late father;
(e) It was only on 19.08.2014, when the plaintiff was informed by his relative that a piece of land
belonging to his late father, was sold to a third party, and upon the plaintiff making an official
search at the Land Office in respect of that piece of land that the plaintiff found out about the
issue of the Ls.A. to the defendants on 13.10.1980;
(f) Even though the Ls.A. were issued to the defendants on 13.10.1980, the land was only vested
in the names of the defendants on 13.06.2014 at the time of the registration of the transfer of
the land to the third party by the defendants; and
(g) Upon finding out that the Ls.A. had been issued to the defendants, the plaintiff filed an applica-
tion for a citation against the defendants.
[7] The second purpose was to insert a new paragraph 9 to plead the plaintiff's reliance on s. 29 of the Lim-
itation Act 1950.
[8] The third purpose was to renumber the existing paragraphs 9 to 31 as paragraphs 10 to 32.

Parties in the suit


[9] The parties in the suit are as follows:

(1) Low Chai Hing is the plaintiff;


(2) At the time, the plaintiff filed the writ together with the statement of claim, he was aged 63
years, 2 months and 3 days;
(3) The plaintiff claims to be a natural and legitimate son of Low Pow Siong from the latter's mar-
riage to his mother, Lim Hia, since deceased ("the late Lim Hia");
(4) The plaintiff also claims that his mother, the late Lim Hia, was also known as Lim Hek, in her
lifetime;
(5) The plaintiff also claims that he is the brother of the defendants born of the same parents,
namely, Low Pow Siong and the late Lim Hia also known as Lim Hek;
(6) Low Thiam Kien and Low Thiam Chin @ Teh Wong Jooi are the 1st and 2nd defendants;
(7) The 1st and 2nd defendants were sued by the plaintiff in their capacities as the Administrators of
the Estate of their late Low Pow Siong;
(8) Both the defendants dispute that the plaintiff is their brother and/or the legitimate son of their
late father, Low Pow Siong, and that the plaintiff was born during the latter's marriage to their
mother, Lim Hek, since deceased ("the late Lim Hek") as alleged by the plaintiff; and
(9) Both the defendants dispute that their mother, the late Lim Hek, was also known as Lim Hia as
alleged by the plaintiff.

Plaintiff's pleaded claim


[10] In the amended statement of claim, the plaintiff pleads, inter alia, as follows:

(1) He is a Malaysian citizen and he has an address (for service) at No. 20, Kampung Manickam,
Bangi 43000 Kajang, Selangor;
(2) He is the eldest natural son of Low Pow Siong, who passed away intestate on 01.02.1978 ("the
late Low Pow Siong") leaving behind 12 beneficiaries to his Estate;
(3) The 12 beneficiaries are Lim Hia, who was also known as Lim Hek, Low Pow Siong's widow
aged 47 years, and their 11 children, of whom he is the first born aged 29 years, whilst the rest
of his siblings are Low Tiam Chin @ Teh Wong Jooi, viz the 2nd defendant, aged 26 years, Low
16

Thiam Kien, viz the 1st defendant, aged 19 years, Low Tiam Seng aged 16 years, Low Thiam
Chai aged 15 years, Low Thiam Siew aged 13 years, Low Thiam Han aged 12 years, Low Yip
Jun aged 9 years, Low Thiam Hoe aged 21 years, Low Geok Choon aged 9 years, and Low
Swee Bee aged 8 years, respectively, ("his siblings");
(4) Even though he is one of the 12 beneficiaries of the Estate of the late Low Pow Siong, the de-
fendants did not inform him when they applied in the year 1978 vide the petition for letters of
administration for Low Pow Siong's Estate and in the petition his name was also not included in
the List of Beneficiaries of the late Low Pow Siong's Estate;
(5) A few years after the demise of Low Pow Siong, his mother, Lim Hia, also known as Lim Hek,
also passed away and the defendants administered the properties belonging to their late father,
which formed part of Low Pow Siong's Estate, without his knowledge;
(6) His birth certificate No. B 148128 was registered on 04.09.1951 in the Selangor Registration
Area and he is a beneficiary of his late father's Estate;
(7) From the time he was born on 26.08.1951, he had lived with his parents, viz his late father, Low
Pow Siong, and his late mother, Lim Hia, also known as Lim Hek, in the same house and after
his younger siblings were born, they also lived in the same house;
(8) He had studied until Standard 6 and upon leaving school and during the lifetime of his father,
he had looked after his father's properties, which comprised oil palm plantations and rubber es-
tates, and which were situated in Bangi;
(9) At the time of the demise of his father, he was already married and he lived in a separate
house from his father;
(10) The house in which he lived in was next to the house of his father;
(11) At the time of his father's demise, two of his younger siblings were already working but the rest
of his younger siblings were still schooling;
(12) Hence, he had to shoulder the financial burden of the family with a lot of financial assistance
from his grandmother;
(13) After the demise of his mother, Lim Hia, his younger siblings were taken care of by his grand-
mother;
(14) Since he was the one who was taking care of his father's landed properties, he knew that his
father owned 5 landed properties during his lifetime, which were held under the following titles:
(a) EMR 3872 Lot 2894 Mukim of Kajang;
(b) EMR 8481 Lot 1767 Mukim of Kajang (1/2 share);
(c) EMR 4077 Lot 3624 Mukim of Kajang (1/2 share);
(d) EMR 7561 Lot 5637 Mukim of Kajang (1/2 share); and
(e) EMR 4461 Lot 967 Mukim of Kajang (Trust Property);

(15) He had made enquiries at the Land Office as to whether letters of administration had been is-
sued in respect of his late father's 5 landed properties;
(16) He was advised by a clerk at the Land Office to lodge private caveats on the titles to the 5
landed properties, in order to protect his interests in them, as a beneficiary of his late father's
Estate;
(17) Hence, in the year 2000, he had lodged private caveats on the titles to the 5 landed properties,
which are stated in the List of Assets in the Ls.A., in order to protect his interests in the 5 land-
ed properties, as a beneficiary of his late father's Estate;
(18) However, he was not informed by the Land Office that the duration of the validity of each of the
private caveats lodged by him was only 6 years and that he had to extend the validity period of
each of the private caveats lodged by him before the expiry of the 6 years' period, in order to
protect his interests in the 5 landed properties after the 6 years' period;
(19) When the defendants applied for letters of administration, without legal representation, at the
Kuala Lumpur High Court vide Petition No.: 31-775-1978 ("the petition"), they never consulted
or briefed him even though they are his siblings;
(20) After his father's demise, he had asked the defendants concerning the obtaining of the letters of
administration for the Estate of his father but they told him that they had no financial resources
to apply for them;
17

(21) It was only on 19.08.2014 that the plaintiff discovered that the defendants had applied for and
also obtained the Ls.A. dated 13.10.1980 for Low Pow Siong's Estate;
(22) Hence, in applying for and obtaining the Ls.A. for the Estate of his late father, at the Kuala
Lumpur High Court vide the petition, the defendants had excluded his legitimate interest in the
Estate of his late father;
(23) Therefore, the defendants have committed fraud or fraud by concealment against him because
when they applied for the Ls.A., they neither informed him nor included his name in the List of
Beneficiaries of the Estate of his late father;
(24) He only came to know about the issuance of the Letters of Administration of the Estate of his
late father to the defendants, on 19.08.2014, when he conducted an official search at the Land
Office in respect of a property belonging to his late father;
(25) This is because even though the defendants had obtained the Ls.A. in the year 1980, their
names were not registered in any of the titles to the 5 landed properties as the Administrators
of his late father's Estate;
(26) He had instructed his solicitors, viz Messrs. Malliga & Associates, to make a search at the Land
Office in respect of a property belonging to his late father after his cousin, namely, Low Soon
Hin, informed him that his late father's property had been put up for sale and that he (Low Soon
Hin) together with the defendants had sold a piece of property belonging to his late father to a
third party;
(27) The purpose of the search was to find out whether the property concerned was still registered
in the name of his late father;
(28) His solicitors made a private search and they informed him that the property was still registered
in the name of his late father (1/2 share) and Low Soon Hin (1/2 share) and that a private ca-
veat had been lodged on the title to the property by one S. Selvam a/l Samikannu;
(29) His solicitors also advised him to lodge a private caveat on his late father's ½ share in the
property concerned, which he did, vide Perserahan No. 2805/2014, after he was informed by
his solicitors that on 13.10.1980, the defendants have obtained the Ls.A. to his late father's Es-
tate;
(30) On 23.04.2014, he also lodged a police report;
(31) On 28.04.2014, the private caveat lodged by him was registered by the Land Office;
(32) However, upon making a private search on the property concerned on 19.08.2014, he discov-
ered that on 13.06.2014, the defendants had, fraudulently, withdrawn the private caveat lodged
by him with the assistance of a legal firm; vested the ½ share in the property concerned in the
name of the defendants as the Administrators of his late father's Estate; and transferred his late
father's ½ share in the property concerned to Selvam a/l Samukannu;
(33) Hence, his solicitors filed a citation at the Kuala Lumpur High Court under the petition to seek
an order for the revocation of the Ls.A. dated 13.10.1980 and an order to declare the Ls.A. null
and void;
(34) The Deputy Registrar of the Kuala Lumpur High Court has allowed the plaintiff's application and
the defendants have been directed to deposit the Ls.A. at the Kuala Lumpur High Court for
revocation; and
(35) Thereafter, on 29.10.2014, the plaintiff filed the writ together with the statement of claim (which
was, subsequently, amended) to claim for the reliefs in paragraph 31 (which was, subsequent-
ly, renumbered paragraph 32), which have been reproduced earlier in this Judgment.

Defendants' appearance
[11] On 25.11.2014, the defendants entered their appearance by filing their joint memorandum of appear-
ance dated 20.11.2014, enclosure (8).

Defendants' defence
[12] On 17.12.2014, the defendants filed their statement of defence, dated 17.12.2014 ("the statement of
defence"), enclosure (9).
[13] On 17.12.2015, the defendants obtained the leave of the Court to amend the statement of defence.
18

[14] On 23.12.2015, the defendants filed the amended statement of defence redated 17.12.2015 ("the
amended statement of defence"), enclosure (98).
[15] In the amended statement of defence, the defendants deny and also put the plaintiff on strict proof as
follows:

(1) Their mother, the late Lim Hek, was also known as Lim Hia, as alleged by the plaintiff, at any
point in time;
(2) The plaintiff was the child and/or legitimate child of their late father, Low Pow Siong, during the
latter's marriage to their mother, the late Lim Hek;
(3) The plaintiff is a beneficiary of the Estate of their late father, Low Pow Siong, under the Distri-
bution Act 1958 and his legally entitled to a share in their late father's Estate;
(4) There has been any fraud or fraud by concealment, intentionally or otherwise, whatsoever, of
the purported interest and/or beneficial right of the plaintiff to the Estate of their late father, Low
Pow Siong, by the defendants during the application and hearing of the defendants' petition for
Ls.A., at the Kuala Lumpur High Court, in respect of the Estate of their late father, Low Pow Si-
ong;
(5) The beneficiaries of the Estate of their late father, Low Pow Siong, are as stated in the List of
Beneficiaries in the plaintiff's amended statement of claim as alleged by the plaintiff;
(6) The plaintiff has a right to claim for a beneficial share in the Estate of their late father, Low Pow
Siong;
(7) The plaintiff has a right to claim for a share in the 5 properties belonging to their late father or to
lodge a private caveat on each of the titles to the 5 properties to protect his alleged interest in
them, in particular, via Perserahan No. 2805/2014 for Lot 1767;
(8) The plaintiff had, at any point in time, provided sustenance/ maintainance to them or their sib-
lings, as the children of Low Pow Siong;
(9) The plaintiff's application in the citation, for the revocation of the Ls.A. and a declaration that
the Ls.A. are null and void, has been allowed by the Kuala Lumpur High Court and/or that the
defendants were ordered by the Deputy Registrar of the Kuala Lumpur High Court to deposit
the L.s.A. in the Kuala Lumpur High Court for cancellation; and
(10) All the other averments in the plaintiff's amended statement of claim not specifically traversed
in the amended statement of defence.
[16] The defendants also pleaded, inter alia, as follows:

(1) Their parents were Low Pow Siong and Lim Hek;
(2) On 01.02.1978, Low Pow Siong passed away leaving their mother, Lim Hek;
(3) After the demise of their father, Low Pow Siong, they had, on 22.05.1979, together with their
mother, Lim Hek, who was the lawful widow of Low Pow Siong, applied for and obtained the
Ls.A. for the Estate of Low Pow Siong from the Kuala Lumpur High Court vide Petition No.: 775
of 1978;
(4) On 13.10.1980, they extracted the Ls.A. from the Kuala Lumpur High Court;
(5) The beneficiaries of the Estate of their late father, Low Pow Siong, as stated in the List of
Beneficiaries in the Ls.A. ("the List of Beneficiaries") for the Estate of their late father, Low Pow
Siong, are Lim Hek, since deceased; Low Tiam Chin @ Teh Wong Jooi (the 2nd defendant);
Low Thiam Kien (the 1st defendant); Low Thiam Seng; Low Thiam Chai; Low Thiam Siew; Low
Thiam Han; Low Yip Jun, since deceased; Low Thiam Hoe; Low Geok Choon; and Low Swee
Bee;
(6) The plaintiff had knowledge of the names of the beneficiaries in the List of Beneficiaries and the
grant of the Ls.A. to their late father's Estate in respect of the petition, from as far back as in the
years 2000 to 2001, and the defendants will prove this fact in the full trial (see paragraph 8(e));
(7) The defendants deny the plaintiff's claim as set out in paragraph 32 and sub-paragraphs (a) to
(e) of the amended statement of claim and puts the plaintiff to strict proof (see paragraph 25);
(8) Under s. 38 (1) (a) of the Bankruptcy Act 1967, the plaintiff cannot commence an action with-
out the leave of the Director General of Insolvency as the plaintiff is an undischarged bankrupt
and plaintiff's application for a pro nun tunct sanction from the latter is an afterthought and,
19

hence, the defendants have filed an application to strike out the plaintiff's application for the ci-
tation (on this ground) (see paragraph 26);
(9) Hence, the plaintiff's cause of action is barred by s. 4 and s. 23 of the Limitation Act 1953
from commencing any action to challenge the Ls.A. of their late father's Estate (see paragraph
27); and
(10) The plaintiff is also estopped from commencing any action to challenge the Ls.A. of their late
father's Estate, as the plaintiff is guilty of laches and acquiescence (see paragraph 28).
[17] Therefore, the defendants pray that the plaintiff's action be struck out with cost on a solicitor and client
basis as the plaintiff's action is not only barred by the Limitation Act 1953 but is also misconceived and base-
less.

Plaintiff's reply to the defendants' statement of defence and plaintiff's amended reply to the defend-
ants' amended statement of defence
[18] On 29.12.2014, the plaintiff filed, through his solicitors, his reply dated 24.12.2014, enclosure (12), to the
defendants' statement of defence dated 17.12.2014, enclosure (9).
[19] On 04.01.2016, the plaintiff filed his amended reply redated 04.01.2016 ("the amended reply"), enclo-
sure (99), to the defendants' amended statement of defence, enclosure (98).
[20] In the new paragraph 1 of the amended reply, the plaintiff referred to paragraph 8 (e) of the amended
statement of defence and the plaintiff denies that he had knowledge of the List of Beneficiaries of Low Pow
Siong's Estate since the years 2000 to 2001.
[21] In the new paragraph 2 of the amended reply, the plaintiff referred to paragraph 24 of the amended
statement of defence and the plaintiff admits that the defendants had filed an application to strike out the
plaintiff's application for a citation on the ground that the plaintiff did not obtain the sanction of the Director
General of Insolvency ("the defendants' striking out application"). The defendants'' striking out application
was allowed by the High Court. However, the plaintiff appealed to the Court of Appeal against the decision of
the High Court vide Court of Appeal Civil Appeal No. W-02(IM)0-923-06/2015 and the plaintiff's appeal was,
unanimously, allowed by the Court of Appeal on 18.09.2015;
[22] In the new paragraph 3 of the amended reply, the plaintiff referred to paragraph 25 of the amended
statement of defence, viz that the defendants put the plaintiff to strict proof of the plaintiff's claim as set out in
paragraph 32 and sub-paragraphs 32 (a) to (e) of the plaintiff's amended statement of claim;
[23] In the renumbered paragraph 4 of the amended reply (previously paragraph 1 of the reply), the plaintiff
referred to paragraph 26 of the amended statement of defence and the plaintiff, who is an undischarged
bankrupt, avers that the sanction to commence the writ against the defendants was given to the plaintiff "Pro
nunc tunc", viz, retrospectively, by the Director General of Insolvency, Selangor, pursuant to s. 38(1)(a) of
the Bankruptcy Act 1967 (Revised 1988) (Act 360);
[24] In the renumbered paragraph 5 of the amended reply, the plaintiff referred to paragraph 26 (this could
be a typographical error and the correct reference could be to paragraph 27) of the amended statement of
defence, and the plaintiff denies the averment of the defendants therein, and the plaintiff avers that the Ls.A.
for the deceased's Estate were obtained by fraud without the knowledge of the plaintiff and, hence, s. 4 and
s. 23 of the Limitation Act 1953 are inapplicable;
[25] In the new paragraph 6 of the amended reply, the plaintiff referred to paragraph 28 of the amended
statement of defence and the plaintiff avers that the plaintiff only became aware of the Ls.A., which were is-
sued to the defendants, in the year 2014 under the petition filed by the defendants and, hence, the plaintiff
denies that he has waived his right/acquiesced and/or is guilty of laches;
[26] In the renumbered paragraph 7 of the amended reply, the plaintiff referred to paragraph 30 of the
amended statement of defence and the plaintiff denies the averment therein and the plaintiff avers that the
Ls.A. for the deceased's Estate were obtained by fraud without the knowledge of the plaintiff and, hence, the
plaintiff relies on s. 29 of the Limitation Act 1953 to commence this action against the defendants;
20

[27] In the renumbered paragraph 8 of the amended reply, the plaintiff denies each and every averment in
the amended statement of defence as if the same had been traversed specifically and seriatim.
[28] Therefore, in the renumbered paragraph 9 of his amended reply, the plaintiff prays that the Court dis-
misses the (amended) statement of defence of the defendants and grant order-in-terms of the plaintiff's
(amended) statement of claim.

Decision of the Court


[29] On 30.11.2016, I dismissed the plaintiff's claim against the Estate of Low Pow Siong, deceased ("the
plaintiff's estate claim") with cost.
[30] On the amount of cost to be ordered against the plaintiff, Mdm. Yokinee a/p A. T. Selvam ("Mdm.
Yokinee"), the learned counsel for the defendants, proposed a sum of RM 350,000.00 based on the following
reasons:

(1) The complexity of the issues, which involved many different laws and also the Federal Consti-
tution;
(2) The number of witnesses called by the parties. The defendants called 11 witnesses, the plaintiff
called 7 witnesses, and both parties called one common witness, who had to be subpoenaed,
viz Mr. Kong Kim Leng (PW5);
(3) The trial took 9 ½ (nine and a half) days to complete; and
(4) The defendants filed 4 (four) Volumes of the Common Bundle of Documents for use in the full
trial.
[31] Mdm. Malliga a/p G. V. Sumathri ("Mdm. Malliga"), the learned counsel for the plaintiff, proposed a sum
of RM 50,000.00 based on the following reasons:

(1) All the witnesses, who were called by the defendants, were the defendants' siblings;
(2) The plaintiff did not call any expert witness;
(3) The contents of all the witness statements for the plaintiff's siblings were the same;
(4) The Court had to consider and decide only 2 issues, viz legitimacy and limitation; and
(5) The trial took only 8 (eight) days and not 9 ½ (nine and a half) days.
[32] In reply, Mdm. Yokinee, the learned counsel for the defendants, corrected herself and said that the trial
took 8 1/2 (eight and a half) days as the trial did not proceed on one of the days. She also submitted as fol-
lows:

(1) 3 (three) of the 7 (seven) witnesses for the plaintiff were outsiders;
(2) The plaintiff has also made a claim of fraud against the defendants;
(3) The claim was lodged almost 35 years after the Letters of Administration were granted to the
defendants for the Estate of Low Pow Siong; and
(4) The caveat entry form had to be obtained through the Assistant District Officer.
[33] Having considered their proposal and counter proposal, I ordered the plaintiff to pay a sum of RM
200,000.00 to the defendants as cost.
[34] I further ordered the Senior Assistant Registrar ("the SAR") to issue the allocatur certificate in accord-
ance with O. 59, r. 7(4) of the RC 2012.
[35] I finally ordered that the allocatur fee must be paid before the fair copy of the Order made that day could
be filed in Court. Mdm. Yokinee then prayed that the plaintiff's daughter be ordered to pay the cost of RM
200,000.00 instead of the plaintiff, who is a bankrupt, as it was the plaintiff's daughter, who had furnished the
security bond for the full trial of the plaintiff's claim against the defendants.
[36] I granted the request of Mdm. Yokinee, the learned counsel for the defendants. Consequently, I ordered
the plaintiff's daughter to pay a sum of RM 200,000.00 to the defendants as the cost of the plaintiff's action.
[37] Being dissatisfied with my decision, on 15.12.2016, the plaintiff filed a notice of appeal to the Court of
Appeal against my decision.
21

Reasons for the decision of the Court


[38] Below are the reasons why I dismissed the plaintiff's estate claim against the defendants with cost.
[39] I agreed with the defendants that the plaintiff has failed to prove his claim against the defendants on a
balance of probabilities. Hence, I ordered the plaintiff's writ of summons dated 29.10.2014 ("the writ") and the
plaintiff's amended statement of claim redated 27.07.2015 ("the amended statement of claim") dismissed
with cost.

The agreed facts


[40] The agreed facts as set out in the Statement of Agreed Facts, enclosure (153), which was filed in ac-
cordance with the pre-trial case management ("PTCM") directions, which were given by the Court for the full
trial and, which was marked "C" by the Court for use in the full trial, are as follows:

(1) Low Pow Siong passed away on 01.02.1978 intestate, viz without leaving a will;
(2) Letters of Administration for the estate of Low Pow Siong, deceased, were extracted on
13.10.1980.

The full trial


[41] The full trial of the plaintiff's action commenced on 28.03.2016. It continued on 29.03.2016, 30.03.2016,
23.05.2016, 24.05.2016, 25.05.2016, 26.05.2016, 27.05.2016 and 10.10.2016. The full trial concluded on
10.10.2016.

Plaintiff's seven (7) witnesses


[42] In the full trial, the parties called eighteen (18) witnesses altogether.
[43] The plaintiff had filed a List of Witnesses with 6 witnesses, enclosure (155), in accordance with PTCM
directions given by the Court, which was marked "J" by the Court for use in the full trial.
[44] However, the plaintiff called seven (7) witnesses because the seventh witness is also a common witness
to the defendants. They are as follows:

(1) Mr. Low Chai Hing, the plaintiff, himself, as PW1;


(2) Puan Norsuraya binti Pinjaman, the Administrative Officer in the Birth, Death and Adoption Di-
vision of the National Registration Department, Putrajaya, Malaysia, as PW2;
(3) PW2 was subpoenaed by the plaintiff to give evidence on the authenticity of two original docu-
ments, allegedly, in the custody of the plaintiff, viz the registration of birth of the plaintiff and the
birth certificate of Low Pow Siong, by answering a List of Questions, enclosure (149), which
was e-filed by Messrs. Malliga & Associates and served on Messrs. Yokinee Selvam and on
the witness together with the subpoena, and marked "L" by the Court for use in the full trial;
(4) En. Azri Effendy bin Abu Sujak, the Assistant District Officer in the Sepang District and Land
Office, who is the Land Administrator of Sepang, as PW3;
(5) PW3 was subpoenaed by the plaintiff to give evidence on the relationship between the plaintiff
and Low Pow Siong by answering a List of Questions, enclosure (151), which was e-filed by
Messrs. Malliga & Associates and served on Messrs. Yokinee Selvam and on the witness to-
gether with the subpoena, and marked "N" by the Court for use in the full trial;
(6) PW3 was subpoenaed by the plaintiff because the Government had acquired a substantial por-
tion of Low Pow Siong's land wherein the plaintiff had represented himself as the son of Low
Pow Siong and submitted the necessary forms and paid the deposit of RM 3,000.00 to the Se-
pang Land Office in the "Opposition Proceedings" and the amount of compensation as stated in
the Award from the "Opposition Proceedings" in 2004, which was received from the Govern-
ment was deposited into Amanah Raya Berhad;
(7) PW3 identified the plaintiff as the only person, who was present during the land acquisition pro-
ceedings. He produced Borang F, which the Court marked as D 30, and Borang E, which the
Court marked as D 31;
22

(8) En. Zulkarnain bin Ahmad, the Administrative Officer from the Citizenship Department of the
Home Affairs Department, Putrajaya, Malaysia, as PW4;
(9) PW4 was subpoenaed by the plaintiff to give evidence on the authenticity of the original certifi-
cate of registration of the plaintiff as a citizen of the Federation of Malaya of a person under the
age of 21 years, allegedly, in the custody of the plaintiff, by answering a List of Questions, en-
closure (148), which was e-filed by Messrs. Malliga & Associates and served on Messrs.
Yokinee Selvam and on the witness together with the subpoena, and marked "O" by the Court
for use in the full trial;
(10) PW4 produced the certified true copy ("CTC") of the certificate of registration of the plaintiff as a
citizen of the Federation of Malaya of a person under the age of 21 years;
(11) PW4 said, inter alia, as follows:
(a) At the time of the application by the father/mother/guardian ('the applicant") for a certifi-
cate of registration as a citizen of the Federation of Malaya of a person below 21 years,
3 documents must be produced. These 3 documents are the person's birth certificate,
the applicant's identity card and the parents' marriage certificate;
(b) Based on the certificate of registration of the plaintiff as a citizen of the Federation of
Malaya, the plaintiff's mother's name is stated as Lim Hia;
(c) Based on the CTC of the certificate of registration of the plaintiff as a citizen of the Fed-
eration of Malaya, the plaintiff's father is Low Pow Siong and the plaintiff's mother is Lim
Hek;
(d) Based on the CTC of the birth certificate of the plaintiff, his mother's name is stated as
Lim Hia;
(e) He is not able to confirm whether based on the records Lim Hia and Lim Hek are the
same person; and
(f) He is also not able to state whether based on the records the plaintiff is a beneficiary of
Low Pow Siong's Estate;

(12) In the course of the full trial, PW4 was also asked to produce a CTC of the certificate of regis-
tration of Low Tiam Hoe as a citizen of the Federation of Malaya of a person under the age of
21 years;
(13) Mr. Kong Kin Long @ Kong Kim Leng, an advocate and solicitor, as PW5;
(14) PW5 was aged 72 years at the time he testified in the full trial;
(15) PW5 was subpoenaed by the plaintiff to give evidence on the relationship between the plaintiff
and the defendants pertaining to letters written by his firm of solicitors, viz Messrs. Kong Kim
Leng & Co., by answering a List of Questions, enclosure (146), which was e-filed by Messrs.
Malliga & Associates and also served on Messrs. Yokinee Selvam and on the witness together
with the subpoena, and marked "P" by the Court for use in the full trial;
(16) In the plaintiff's List of Witnesses, marked "J" by the Court, the Court was also informed by
Messrs. Malliga & Associates that there is a Consent Judgment recorded by the Shah Alam
High Court in the Shah Alam High Court Civil Suit No. 21-NCVC-34-09/2014 dated 29.06.2015
wherein the High Court Judge has directed the purchaser of a property of Low Pow Siong, be-
ing a part of Low Pow Siong's Estate, to deposit into Court a sum of RM 130,000.00, which the
plaintiff claims to be his share of the sale proceeds, pending disposal of the instant suit. In the
event that this Court finds that the plaintiff is a beneficiary of Low Pow Siong's Estate, then the
sum of RM 130,000.00 which has since been deposited into the Shah Alam High Court shall be
released by the Shah Alam High Court to the plaintiff;
(17) This Court was also informed by Messrs. Malliga & Associates in the plaintiff's List of Witness-
es, marked "J" by the Court that Mr. Kong Kin Long @ Kong Kim Leng was named as a party in
the Shah Alam High Court Civil Suit No. 21-NCVC-34-09/2014 as he had acted for the pur-
chaser in the sale and purchase transaction;
(18) PW5 denied any knowledge of a police report (ID (D) 42), which was, allegedly, lodged against
him for fraud or cheating by the plaintiff, who was represented by Messrs. Malliga & Associ-
ates. However, in their letter to PW5 the very next day ("the letter") after the police report was,
allegedly, lodged against him for fraud or cheating by the plaintiff, there was no mention of the
police report (ID (D) 42);
23

(19) PW5 testified that on 11.09.2014, he had acted for the vendors, who are the Administrators of
the Estate of Low Pow Siong, who were represented by Low Thiam Siew, and also the pur-
chaser, namely, one S. Selvam a/l Samikannu, for the sale of a parcel of land known as GM
956 Lot 1767, Mukim Kajang, District of Ulu Langat, Selangor Darul Ehsan, belonging to the
late Low Pow Siong. He had prepared the Sale and Purchase Agreement. He had also attested
the signature of one Low Soon Hin, who was also the co-vendor of the sale of the land to the
purchaser;
(20) PW5 had also prepared a Statutory Declaration ("SD") for Low Thiam Siew on 10.11.2014. He
could not recall whether he had prepared it after the plaintiff filed a suit against him in the Shah
Alam High Court or after he received the letter from Messrs. Malliga & Associates (P33). He did
not inform the Administrators of the SD and the letter. He had merely assisted the vendors' rep-
resentive, viz Low Thiam Siew, to apply to remove the private caveat, which was lodged by the
caveator, viz the plaintiff, by preparing the SD. In the SD, which was affirmed by Low Thiam
Siew, Low Thiam Siew had sworn that the plaintiff had signed Form 19 G in his presence;
(21) PW5 had attested Form 19G, which is the Notice for the withdrawal of the caveat, purportedly,
signed by the plaintiff on the representation of Low Thiam Siew that the Form was duly signed
by the plaintiff. PW5 was sued by the plaintiff in the Shah Alam High Court vide Civil Suit No.
21NCVC-34-09/2014 and both of them entered into a consent Judgment dated 29.06.2015 be-
fore the learned Judge in Chambers. Pursuant to the consent Judgment, the 2 nd defendant de-
posited a sum of RM 130,000.00 into Court. PW5 was represented by Messrs. Ranjit Ooi &
Robert Low. PW5 had written 2 letters dated 18.09.2014 and 02.10.2014, respectively;
(22) Mr. Low Soon Hin, who the plaintiff claims to be his male cousin, as PW6;
(23) PW2 was aged 65 years and about 10 months on 24.05.2016 when he testified in the full trial in
support of the plaintiff's case;
(24) PW6 gave his examination-in-chief in the form of a Witness Statement, enclosure (147), which
was marked P56 by the Court;
(25) In his examination-in-chief, PW6 said, inter alia, that he knows the plaintiff as the plaintiff is his
relative;
(26) PW6 also said that he studied until Form 3 in a Chinese medium school and that the name of
his father is Low Pow Chew;
(27) PW6 also said that the plaintiff is the eldest son of Low Pow Siong and that he knows all the
younger siblings of the plaintiff, who are Low Tiam Chin, Low Thiam Kien, Low Tiam Seng, Low
Thiam Chai, Low Thiam Han, Low Yip Jun, Low Thiam Hoe, Low Geok Choon and Low Swee
Bee;
(28) PW6 also said that the plaintiff lived together with his father, Low Pow Siong, and Low Pow Si-
ong's wife and all the plaintiff's younger siblings in the same house in Kampung Bangi together
with his grandmother, who also lived together with him in his house, which was also in Kam-
pung Bangi, as his grandmother had 2 sons;
(29) PW6 also said that he (PW6) is the plaintiff's male cousin as his (PW6's) father, Low Pow
Chew, and the plaintiff's father, Low Pow Siong, were brothers;
(30) PW6 also said that his father and his uncle, Low Pow Siong, bought many properties, one of
which was known as Geran 956 Lot 1767, Mukim Kajang, Daerah Ulu Langat, in which he was
registered as having a ½ share whilst the other ½ share was registered in the name of Low
Pow Siong;
(31) PW6 also said that the property was sold by the defendants without the assistance of a lawyer
and that he had informed the plaintiff sometime in April of the sale of the property by the de-
fendants;
(32) PW6 also said that he did not know that whether letters of administration were issued after Low
Pow Siong passed away as he did not know about the affairs of Low Pow Siong's family;
(33) In cross-examination, PW6 said the address, viz No. 1, Jalan KP ¾, Taman Kajang Prima,
43000 Kajang, Selangor, as stated in his Witness Statement, which was filed on 18.03.2016,
enclosure (147), and marked P56 by the Court, is not his residential address;
(34) The Court noted that in the plaintiff's List of Witnesses filed on 18.03.2016, enclosure (155) and
marked "J" by the Court, Mr. Low Soon Hin's address is stated as No. 66, Jalan 6, Taman Ma-
ju, Jalan Seminyih, 43000, Kajang, Selangor;
24

(35) In cross-examination, PW6 also said, inter alia, that he was not a retiree as stated in his Wit-
ness Statement but a lorry driver, who delivers gas cylinders. In his cross-examination, he also
produced the original copy of his birth certificate No. 284601, which states that his date of birth
is 06.08.1955 and that his father's name is Law Pow Chew. He also produced a copy of an ex-
tract No. 374898 from the Register of Births, which states that his father's name is Low Pow
Chew;
(36) In re-examination, PW6 said that he was in semi-retirement as he worked only until 12 noon.
He also said that the late Low Pow Siong was reburied elsewhere after the cemetery where he
was originally buried was acquired by the Government. In his further examination-in-chief, he
said that he saw the plaintiff (PW1) at the wake in Low Pow Siong's house when Low Pow Si-
ong passed away; and
(37) Puan Noorhasliza binti Abu Hamid, the Administrative Officer in the National Registration De-
partment in Putrajaya, as PW7;
(38) PW7 was subpoenaed by the plaintiff to give evidence by answering a List of Questions, which
was e-filed by Messrs. Malliga & Associates and served on Messrs. Yokinee Selvam and on
the witness together with the subpoena. She was not cross-examined.

Defendants' twelve (12)witnesses


[45] The defendant had e-filed a List of Witnesses with 14 witnesses, enclosure (129), in accordance with
PTCM directions given by the Court, which was marked "K" by the Court for use in the full trial.
[46] However, the defendant called only twelve (12) witnesses. They are as follows:

(1) En. Khairul Fahmi bin Mahmud, the officer from the Land Office, as DW1;
(2) Mr. Sia Boon Chee, an advocate and solicitor, with Messrs. Sia Boon Chee & Co., as DW2;
(3) As stated in the defendants' List of Witnesses filed on 17.03.2016, enclosure (129), marked "K"
by the Court for use in the full trial, DW2 was subpoenaed by the defendants to tender and give
evidence on 2 sale and purchase agreements both dated 01.12.2013, a letter of authorization
dated 21.11.2014 and an Alliance Islamic Bank cheque bearing No.: 002087 dated 21.11.2014
for a sum of RM 848,234.82;
(4) One of the 2 sale and purchase agreements was for the sale of a property belonging to Low
Pow Siong, viz GM 1244, Lot 967, Mukim Dengkil, Daerah Sepang, Negeri Selangor. It was en-
tered into by the defendants as vendor and BintangDijaya Sdn Bhd (Co. No.: 1002133-H) as
purchaser;
(5) The other sale and purchase agreement was for the sale of a property belonging to Low Pow
Siong (1/2 share) and Low Soon Hin (1/2 share) held under GM 1992, Lot 5637, Mukim
Dengkil, Daerah Sepang, Negeri Selangor. It was entered into by the defendants and Low
Soon Hin, the co-owners, as vendor and BintangDijaya Sdn Bhd (Co. No.: 1002133-H) as pur-
chaser;
(6) The letter of authorization dated 21.11.2014 was for the release to the plaintiff of the proceeds
of sale of the property held under GM 1992, Lot 5637, Mukim Dengkil, Daerah Sepang, Negeri
Selangor, to which Low Soon Hin is entitled;
(7) DW2 was aged 63 years on 25.05.2016, when he gave evidence in the full trial in support of
the defendants' case in the full trial;
(8) Low Thiam Kien, the 1st defendant, who is one of the sons of Low Pow Siong, and who is a
brother of the defendants, as DW3;
(9) Low Tiam Chin @ Teh Wong Jooi, the 2nd defendant, who is an adopted son of Low Pow Si-
ong, and who is an adopted brother of the defendants, as DW4;
(10) Low Thiam Hoe, one of the sons of Low Pow Siong, who is a brother of the defendants as
DW5;
(11) Low Thiam Han, one of the sons of Low Pow Siong, who is a brother of the defendants, as
DW6;
(12) Low Thiam Seng, one of the sons of Low Pow Siong, who is a brother of the defendants, as
DW7;
25

(13) Low Swee Bee, one of the daughters of Low Pow Siong, who is a sister of the defendants, as
DW8;
(14) Low Geok Choon, one of the daughters of Low Pow Siong, who is a sister of the defendants,
as DW9;
(15) Leong Yee Chuan, one of the sons of Low Pow Siong, who is a brother of the defendants, as
DW10;
(16) Low Thiam Siew, one of the sons of Low Pow Siong, who is a brother of the defendants, as
DW11; and
(17) Mr. Kong Kim Leng (PW5).

Plaintiff's 1 (one) issue for the determination of the Court


[47] Pursuant to PTCM directions, the plaintiff framed the following one issue for the determination of the
Court in the plaintiff's Statement of Issue to be tried, enclosure (154), which was e-filed in accordance with
the PTCM directions given by the Court, and marked "D" by the Court for use in the full trial:

(1) Whether the plaintiff is a beneficiary of the Estate of Low Pow Siong, deceased, and if so,
whether he is entitled to a share of the Estate of Low Pow Siong, deceased, under the Distribu-
tion Act 1953?

Defendants' 9 (nine) issues for the determination of the Court (E)


[48] Pursuant to PTCM directions, the defendants framed the following 9 (nine) issues for the determination
of the Court in their Statement of Issues, which was e-filed in accordance with the PTCM directions, enclo-
sure (127) and marked "E" by the Court for use in the full trial:

(1) Whether the plaintiff is a legitimate son of Low Pow Siong, deceased, and Lim Hek and is the
plaintiff entitled to any beneficial rights in the Estate of Low Pow Siong, deceased, under the
Distribution Act 1958?
(2) Whether there is any legal nexus between the Letters of Administration marked "E" by the
Court for use in the full trial for the Estate of Low Pow Siong, deceased, which were obtained
by the defendants vide the Kuala Lumpur High Court Petition No.: 31-775 of 1978 on
22.05.1979 and extracted on 13.10.1980 and the plaintiff?
(3) Whether the defendants had committed fraud on the plaintiff in filing and extracting the Letters
of Administration under Kuala Lumpur High Court Petition No.: 31-775-78 on 13.10.1980 with-
out giving prior notice to the plaintiff?
(4) Whether the plaintiff has the locus standi to file this suit?
(5) Whether the plaintiff's cause of action is time barred by virtue of s. 4 and s. 23 of the Limita-
tion Act 1953?
(6) Whether the defendants had knowledge that the plaintiff is the legitimate son of Low Pow Siong
and Lim Hek, and had, fraudulently, left out the plaintiff's name in the List of Beneficiaries for
the Letters of Administration of Low Pow Siong, deceased, in the Petition No.: 31-775 of 1978?
(7) Whether the plaintiff is estopped by laches and acquiescence;
(8) Whether the plaintiff had certified biological proof of being a natural son of Low Pow Siong (the
deceased) prior to the commencement of this suit?
(9) Whether the defendants had, with intent to defraud the plaintiff of his beneficial rights, con-
cealed the plaintiffs' beneficial rights during the application and hearing of the petition for the
Letters of Administration of the Estate of Low Pow Siong, deceased, at the Kuala Lumpur High
Court?

Plaintiff's issue (1): Whether the plaintiff is a beneficiary of the Estate of Low Pow Siong, deceased,
and if so, whether the plaintiff is entitled to a share of the Estate of Low Pow Siong, deceased, under
the Distribution Act 1953?
26

Defendants' issue (1): Whether the plaintiff is a legitimate son of Low Pow Siong, deceased, and Lim
Hek and is the plaintiff entitled to any beneficial rights in the Estate of Low Pow Siong, deceased,
under the Distribution Act 1958?
[49] I considered the plaintiff's issue (1) and the defendants' issue (1) together as both issues are basically
the same.
[50] I noted that the plaintiff is claiming, inter alia, for an order that he be added in the Ls.A. as one of the
Administrators of Low Pow Siong's Estate and for an order that the defendants give to him his rightful share
of Low Pow Siong's Estate under the Distribution Act 1958 on the basis that he is the natural son of Low Pow
Siong and Lim Hia, who the plaintiff alleges, was also known as Lim Hek.

Law on succession in respect of the child of a deceased who dies intestate


[51] The distribution of the immovable property of a person who dies intestate is governed by s. 4 of the
Distribution Act 1958 (Act 300). S. 4(2) of the Distribution Act 1958 states as follows:

"The distribution of the immovable property of a person deceased intestate shall be regulated by this Act wherever he
may have been domiciled at the time of his death."

[52] In order to succeed on his claim, the plaintiff must prove that he is the legitimate son or a legally adopt-
ed son of Low Pow Siong and Lim Hek. In other words, in order to derive a right to make a claim under the
estate of Low Pow Siong, the plaintiff must prove that he was either born during the subsistence of the mar-
riage of Low Pow Siong and Lim Hek or he was adopted by Low Pow Siong and Lim Hek under the provi-
sions of the Adoption Act 1952.
[53] This is because s. 3 of the Distribution Act 1958 defines the word "child" to mean a legitimate child of
the deceased but does not include an adopted child unless the child was adopted under the provisions of the
Adoption Act 1952.
[54] S. 3 of the Distribution Act 1958 states as follows:

" "Child" means a legitimate child and where the deceased is permitted by his personal law a plurality of wives includes
a child by any of such wives, but does not include an adopted child other than a child adopted under the provisions of
the Adoption Act 1952."

[55] On the issue of legitimacy, pursuant to s. 112 of the Evidence Act 1950, the plaintiff bears the burden
of proving that he was born during the continuance of a valid marriage between his mother, Lim Hia, who
was also known as Lim Hek, and his father, Low Pow Siong, or within two hundred and eighty days after its
dissolution, his mother, Lim Hia, who was also known as Lim Hek, remaining unmarried. If he is able to prove
one or the other then it shall be conclusive proof that he is the legitimate son of Low Pow Siong unless the
defendants can prove that Lim Hereinafter, who was also known as Lim Hek, and Low Pow Siong, who were
married to each other, had no access to each other at any time when he could have been begotten. S. 112
of the Evidence Act 1950 states as follows:

"The fact that any person was born during the continuance of a valid marriage between his mother and any man, or
within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that
he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each oth-
er at any time when he could have been begotten".

[56] The Court agreed with the defendants that the plaintiff is no country yokel as the plaintiff was appointed
a Justice of Peace on two previous occasions and he had also engaged solicitors to lodge a private caveat in
2000 (see exhibits P49, P50 and D52, respectively).

Burden of proof
[57] It is trite law that he who asserts must prove.
27

[58] S. 101 of Evidence Act 1950 provides as follows:

"Part III PRODUCTION AND EFFECT OF EVIDENCE


Chapter VII - BURDEN OF PROOF
101. Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the exist-
ence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on
that person.
ILLUSTRATIONS

(a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime.
(b) A desires a court to give judgment that he is entitled to certain land in the possession of B by reason
of facts which he asserts and which B denies to be true.
A must prove the existence of those facts."

[59] The Federal Court in International Times & others v. Leong Ho Yuen [1980] 2 MLJ 86 at 87 held that
the burden of proof as referred to in s. 101 of the Evidence Act 1950 is the burden of establishing a case
and this rests throughout the trial on the party who asserts the affirmation of the issue.
[60] Further, in Tan Kim Khuan vs. Tan Kee Kiat (M) Sdn Bhd [1998] 1 MLJ 697, Augustine Paul J (later
FCJ) held that "if a party on whom the burden lies fails to discharge it, the other party need not call any evi-
dence".
[61] S. 102 of the Evidence Act 1950 provides as follows:

"102. On whom burden of proof lies


The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either
side.
ILLUSTRATIONS

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C,
B's father.
If no evidence were given on either side, B would be entitled to his possession.
Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is
not proved.
Therefore the burden of proof is on B."

[62] In the instant case, since it is the plaintiff's pleaded case that he is the natural child of Low Pow Siong
and Lim Hia, who is also known as Lim Hek; that he is entitled to be added as one of the Administrators of
Low Pow Siong's Estate in the Ls.A.; that he is entitled to a share of Low Pow Siong's Estate under the Dis-
tribution Act 1958; and that the defendants had committed fraud against him, by, deliberately, concealing his
right to the Estate of his late father at the time of the filing of the petition and at the time of the hearing of the
petition in the Kuala Lumpur High Court in order to deny the plaintiff his right to the Estate of his late father,
by virtue of s. 101 and s. 102 of the Evidence Act 1950, the burden is on the plaintiff, to prove his pleaded
case, on a balance of probabilities..
[63] S. 103 of the Evidence Act 1950 provides as follows:
28

"103. Burden of proof as to particular fact


The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless
it is provided by any law that the proof of that fact shall lie on any particular person.
ILLUSTRATIONS

(a) A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove
the admission.
(b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it."

[64] In the instant case, since it is also the plaintiff's pleaded case that he is the eldest natural son of his fa-
ther, Low Pow Siong, and his mother, Lim Hia, who was also known as Lim Hek, and that his mother gave
birth to 11 children during her marriage to his father, Low Pow Siong, by virtue of s. 103 of the Evidence
Act 1950, the plaintiff must prove these facts.
[65] The question, which arises to be considered by the Court, is has the plaintiff discharged his burden of
proof as set out in s. 101 and s. 102 of the Evidence Act 1950 and his burden of proof as to a particular
fact as set out in s. 103 of the Evidence Act 1950? In order to enable the Court to answer this question the
Court has to consider another question, viz what is the plaintiff's proven case?

Plaintiff's submissions on plaintiff's proven case


[66] The Court noted that at the conclusion of the full trial, Mdm. Malliga, the plaintiff's learned counsel, sub-
mitted that the plaintiff's proven case is as follows:

(1) The plaintiff was born on 26.08.1951 and his parents are Low Pow Siong, his father, and Lim
Hia, his mother, who was also known as Lim Hek;
(2) Hence, the plaintiff has proven that he is a beneficiary of the Estate of Low Pow Siong, his fa-
ther;
(3) Even though the plaintiff went to a Chinese primary school, the plaintiff does not know how to
read and write Malay or English;
(4) The plaintiff has been adjudicated a bankrupt in 2010 and has obtained the sanction from the
Director of Insolvency to file and continue this action against the defendants;
(5) Low Pow Siong died intestate on 01.02.1978 leaving behind 12 beneficiaries to his Estate;
(6) On 13.10.1980, Letters of Administration were extracted via Petition No.: 31-755-1978, which
was filed in the Kuala Lumpur High Court;
(7) In their application for Letters of Administration, the defendants did not name the plaintiff as
one of the beneficiaries of the Low Pow Siong's Estate;
(8) The plaintiff produced the following 3 (three) original documents, which were in his possession,
as evidence to show that he is a beneficiary of Low Pow Siong's Estate:
(a) Extract of Certificate of Registration of Birth No: 155615 issued by the National Registra-
tion Department No.: 155615 ("the extract of birth certificate");
(b) Form M Certificate of Registration as a Citizen of the Federation of Malaya of a Person
under the Age of 21 years; and
(c) Plaintiff's marriage certificate.

(9) The officers from the National Registration Department and the Citizenship Department, who
were subpoenaed to attend Court to testify on the authenticity and validity of the said docu-
ments, have said that the 3 documents are authentic;
(10) The defendants have, intentionally, or, fraudulently, excluded the plaintiff's name as the benefi-
ciary of Low Pow Siong's Estate even though the plaintiff has lived with his parents, Low Pow
Siong and Lim Hia, until the plaintiff got married and, thereafter, the plaintiff lived nearby as the
plaintiff worked in his father's rubber small holding;
(11) A few years after the demise of Low Pow Siong, the plaintiff asked his siblings about the distri-
bution of his father's Estate but was informed by the defendants that they are financially tight
and that they did not have the funds to apply for the Letters of Administration;
29

(12) The relationship between the siblings was strained and they did not speak to each other there-
after;
(13) The plaintiff was never informed that the Letters of Administration were extracted by the de-
fendants;
(14) Sometime in the year 2000, the plaintiff with the assistance of the clerk in the Hulu Langat land
office entered private caveats on the properties belonging to Low Pow Siong. A title search in
the year 2000 on the Title Deeds of the properties belonging to Low Pow Siong also showed
that the properties were still registered in the name of Low Pow Siong;
(15) The plaintiff was made to believe that the defendants had not obtained the Letters of Admin-
istration for Low Pow Siong's Estate. At that time, the plaintiff was not aware that the validity of
the private caveats lodged by him was only for a period of 6 years and that he ought to have
applied to extend the 6 years validity period of the private caveats;
(16) The following is a list of the non-movable assets belonging to Low Pow Siong:
(a) EMR 3872, Lot 2894, Mukim of Kajang;
(b) EMR 8481, Lot T 1767, Mukim of Kajang (1/2 share);
(c) EMR 4077, Lot 3624, Mukim of Kajang (1/2 share);
(d) EMR 7561, Lot 5637, Mukim of Kajang (1/2 share); and
(e) EMR 4461, Lot 967, Mukim of Kajang (Hartanah Trust).

(17) Sometime in 2014, the plaintiff having knowledge that his father's property was for sale, he,
promptly, lodged a private caveat on the said land on 28.04.2014 via Perserahan No.
2805/2014 in the Pejabat Tanah of Kajang ('the private caveat");
(18) However, the defendants, fraudulently, removed the private caveat entered by the plaintiff
through the services of a legal firm;
(19) PW5, the solicitor concerned was subpoenaed by the plaintiff to attend Court to testify on the
matter;
(20) Before filing the Writ Summons via Suit No.: 22NCVC-497-10-2014, the plaintiff obtained a cita-
tion which is a pre-requisite to the filing of the suit; and
(21) The plaintiff filed the citation proceedings in the High Court vide Petition No.: 31-775-1978
wherein the Registrar granted the Order to cancel the Letters of Administration issued on
13.10.1980 and for the defendants to surrender the same in the High Court Registry.
[67] Based on the plaintiff's proven case as set out above, Mdm. Malliga submitted that the plaintiff has
proven his claim that he is the natural son of Low Pow Siong on a balance of probabilities. She relied on the
following reasons in her submissions:

(1) The plaintiff has produced 3 (three) documents to prove that he is the eldest natural child and
the eldest natural son of Low Pow Siong and his wife, the late Lim Hia, who was also known as
Lim Hek. The 3 documents are as follows:
(a) The Extract (P2) of his Birth Certificate (ID27), which was issued by the National Regis-
tration Department;
(b) His Form M Certificate of Registration as a citizen of the Federation of Malaya of a per-
son under the age of 21 years (P3); and
(c) His marriage certificate (P6).

(2) The plaintiff's 2nd witness (PW2) gave oral evidence based on documentary evidence to cor-
roborate the plaintiff's evidence. PW2 gave her evidence based on the information from the da-
ta in the computerized system of the National Registration Department and from the physical
records. In her evidence, she said that based on the data in the computerized system and the
physical records, the father of the plaintiff is Low Pow Siong and the mother of the plaintiff is
Lim Hia as stated in the plaintiff's birth certificate; and
(3) The plaintiff's 3rd witness (PW3) gave evidence to corroborate the plaintiff's evidence that
based on the records of the Registration Department, the plaintiff's mother is Lim Hek as stated
in the plaintiff's certificate of registration as a citizen of the Federation of Malaya and that Low
Thiam Hoe's mother is also Lim Hek as stated in his certificate of registration as a citizen of the
Federation of Malaya.
30

[68] The Court noted that in paras 27 to 30 of the plaintiffs' written submissions, Mdm. Malliga submitted as
follows:

(1) Based on the evidence of PW1 (Low Chai Hing) PW6 (Low Soon Hin) and the undisputable ev-
idence of PW2, (Puan Norsuraya Bt Pinjaman) from Jabatan Pendaftaran Negara, the plaintiff
has proved on the balance of probabilities that he is the natural son of Low Poh Siong (de-
ceased);
(2) (PW1) relies on his birth certificate (Exhibit P 26) which was tendered through (PW2) Puan
Norsuraya Bt Pinjaman who had authority to give evidence on behalf of Jabatan Pendaftaran
Negara;
(3) The birth certificate shows that Low Chai Hing was born on 26.08.1951 and his natural parents
are Low Pow Siong and Lim Hia at Batu 25 ½, Bangi Road, Bangi Ulu Langat. The top right
corner of the Birth Certificate shows that the birth was registered at Balai polis Bangi, Ulu Lan-
gat by Low Poh Siong himself personally;
(4) PW2's evidence confirmed the contents of the birth certificate referred to above; and
(5) In Selvarajoo A/l Palaniappa Pillai v. Paramasivam A/L Palaniappa Piollai [2013] 5 MLJ 748, a
decision of the Shah Alam High Court, Prasad Abraham J, (as His Lordship then was) held, in-
ter alia, that the evidence adduced in that case, such as the plaintiff's birth certificate clearly
cited the deceased as his father.
[69] Mdm. Malliga cited the following cases on the presumption of marrige in support of her submissions that
based on the evidence of the plaintiff and his witnesses, the Court can make a presumption of marriage in
favour of the plaintiff:

(1) Badri Prasad, Petitioner v Dy Director of Consolidation and others, Respondents AIR
1978 S.C. 1557;
(2) Pazpena De Vire vs Pazpena De Vire [2001] 1 FLR 460;
(3) Ong Cheng Neo v. Yeap Cheah Neo & Ors. [1872] 1 Ky 326, 328-330;
(4) Selvarajoo A/l Palaniappa Pillai v. Paramasivam A/L Palaniappa Piollai [2013] 5 MLJ 748 (a
decision of the Shah Alam High Court); and
(5) International Times & Ors vs Leong Ho Yuen [1980] 1 MLJ 86.
[70] Therefore, Mdm. Malliga prays on behalf of the plaintiff that the Court allows the plaintiff's claim for the
following reliefs, as set out in paragraph 32 of the plaintiff's amended statement of claim:

(a) The Letters of Administration dated 13.10.1980 obtained vide Petition No.: 31-775-1978 issued
by the Kuala Lumpur High Court to be cancelled;
(b) Costs of this action to be borne by the defendants;
(c) Damages for the loss of the plaintiff's share in all the immovable properties of the deceased
sold by the defendants;
(d) Damages for the loss of the plaintiff's share in all the movable properties of the deceased sold
by the defendants;
(e) Fresh Letters of Administration to be extracted naming the plaintiff in the list of beneficiaries
and/or as one of the co-Administrators of the estate of Low Pow Siong (deceased); and
(f) Further or other reliefs deemed fit and fair by the Court.

Defendants' submissions on the 1st and 2nd defendant's proven case and on the plaintiff's proven
case
[71] At the conclusion of the trial, Mdm. Yokinee, the learned counsel for the defendants, submitted that the
plaintiff's suit ought to be dismissed with cost based on the following reasons:

(1) It was filed by the plaintiff, as a, whimsical, afterthought and without legal basis to, unjustly, en-
rich himself from a civil action which he has nothing to lose if the suit is struck out;
(2) This is because the plaintiff is an undischarged bankrupt and the plaintiff was also an undis-
charged bankrupt prior to the filing of this civil suit and he is still an undischarged bankrupt on
31

the dates of the full trial and even during the clarification of the submissions of the parties after
the conclusion of the full trial;
(3) The plaintiff failed to prove his claim on the balance of probabilities as he did not call independ-
ent witnesses to testify that he is the legitimate son of Low Pow Siong and Lim Hia or the legit-
imate son of Low Pow Siong and Lim Hia or that Lim Hia and Lim Hek are the same person;
(4) The cases relied upon by the plaintiff on the presumption of marriage are inapplicable to the in-
stant case as they are distinguishable from the facts of the instant case;
(5) This is because the evidence, which was adduced by the plaintiff through his witnesses includ-
ing himself, is different from that in the cases cited and relied on by him; and
(6) Therefore, the Court ought not to invoke a presumption of a valid marriage between Low Pow
Siong and Lim Hia or Low Pow Siong and Lim Hek at the time of the birth of the plaintiff, as
submitted by Mdm. Malliga.
[72] Mdm. Yokinee submitted that the 1st and 2nd defendants' proven case is as follows:

(1) The defendants have no knowledge that the plaintiff is the natural son of Low Pow Siong with
Lim Hia or with Lim Hek or that Lim Hia and Lim Hek are the same person;
(2) Hence, there was never a need for them to inform the plaintiff before they filed the petition to-
gether with their late mother, Lim Hek, to obtain the Ls.A.;
(3) Be that as it may, the plaintiff had knowledge of the names of the beneficiaries in the List of
Beneficiaries and the grant of the Ls.A. to their late father's Estate in respect of the petition,
from as far back as in the years 2000 to 2001, when the plaintiff lodged two private caveats on
27.10.2000 in respect of Low Pow Siong's share in two of the properties as stated in the List of
Assets in the Ls.A.;
(4) The two properties are held under the following titles:
(i) GM 958, Lot No.: 1767, Mukim Kajang, Daerah Hulu Langat Bangi, under Perserahan
No.: 4894/2000 Jilid 186 Folio 16; and
(ii) GM 1134, Lot No.: 2894, Mukim Dengkil, Daerah Sepang, under Perserahan No.:
1110/2000 Jilid 23 Folio 5563;

(5) Hence, the plaintiff's action is time barred under s. 4 and s. 23 of the Limitation Act 1953
and s. 29 of the Limitation Act 1953 is inapplicable;
(6) The plaintiff has failed to prove fraud or concealment by fraud on the defendants' part as there
was no nexus between the plaintiff and the defendants so as to cast an obligation on the part of
the defendants to notify the plaintiff of their intention to file the petition for letters of administra-
tion to their late father's Estate;
(7) The defendants and their younger siblings deny that the plaintiff was living in the same house
as them at any point in time or that the plaintiff is their brother;
(8) During their parents' lifetimes, none of their parents ever informed them that the plaintiff was
their brother;
(9) Suddenly, out of the blue, the plaintiff files the citation to claim that he is their eldest brother,
born to Lim Hek, by virtue of her marriage to their father, Low Pow Siong, and that he is claim-
ing for a share in their late father's Estate as one of the beneficiaries; and
(10) That was why they had filed the application in enclosure (119) for the plaintiff to undergo DNA
testing to show that he is their biological brother but he refused to do so and their application
was dismissed with cost by this Court.
[73] Mdm. Yokinee cited the following cases in support of her submissions that the plaintiff has failed to
prove on a balance of probabilities that there was a valid marriage or even a marriage between Low Pow
Siong and Lim Hia or between Low Pow Siong and Lim Hek at the time of the plaintiff's birth so as to render
the plaintiff a legitimate son of Low Pow Siong and Lim Hia or Low Pow Siong and Lim Hek and, hence, the
plaintiff has failed to prove, on a balance of probabilities that he is entitled to a share in the Estate of Low
Pow Siong:

(1) Ambank (M)Sdn Bhd V Abdul Aziz Hassan & Ors (2010) 7 CLJ 663;
32

(2) Asari @ Asha'ari Bin Mohd Amin V Zainal Abindin Bin Mohamed Husain [2012] MLJU 227;
and
(3) Shanmugam S/O Kanapathy v Pappah D/O Chinniah Nadar [1994] 2 CLJ 267.
[74] The Court noted as follows:

(1) In Ambank (M)Sdn Bhd V Abdul Aziz Hassan & Ors (2010) 7 CLJ 663, the Court held as fol-
lows:

" Section 29 could be resorted to in cases where the cause of action is premised upon fraud or a mis-
take or is concealed by fraud. According to His Lordship Justice Abd Malik for a Plaintiff to succeed
under section 29 of the Act the Plaintiff must plead one of these elements of fraud or a mistake or
concealment by fraud in the pleadings. The Plaintiffs in the case at hand had not pleaded that their
case was premised under one of the instances mentioned earlier. Therefore the Plaintiff could not rely
on section 29 of the Act for purposes of postponement of the limitation period as had been submitted
by the learned Counsel for the Plaintiffs. Further the proviso to section 29 of the Act provides that the
period of limitation shall not begin to run until the Plaintiff has discovered the fraud or mistake, as the
case may be or could with reasonable diligence have discovered.
The learned Counsel for the Plaintiffs had attempted to submit that the Defendant had concealed the
fraud in this case with regard to the withdrawal of the monies in the account. Hence the Plaintiffs could
rely on the provision of section 22 and 29 of the Act to defeat the defence of limitation raised by the
Defendant. Section 29 of the Act only allows for postponement of limitation until discovery of the
cause of action in cases founded on fraud or mistake or concealed by fraud. Despite having submitted
that section 29 of the Act could be relied by the Plaintiff, the Plaintiffs however had not raised this is-
sue in their SOC. There was no facts pleaded pertaining to the alleged fraud or what is the fraud con-
cealed and or what fraud had been applied by the Defendant to conceal it. It is trite law that the Plain-
tiffs are bound by the four corners of their pleadings and ought not to be allowed to submit on matters
not expressly provided in their pleadings. As the law on this area is so clear. I would not delve on the
basic principles of pleadings as these had been well illustrated in a number of authorities, among oth-
er; RHB Bank Bhd v Kwan Chew Holdings Sdn Bhd (2010) 1 CLJ 665 (FC); Menah Sulong v Lim Soo
& Anor [1983] 1 CLJ 26; Esso Petroleum Co Ltd v Southport Corporation [1956] 2 WLR 81, 91;
Amanah Butler (M) Sdn Bhd v Yike Chee Wah [1997] 2 CLJ 79."

(2) In Asari @ Asha'ari Bin Mohd Amin V Zainal Abindin Bin Mohamed Husain [2012] MLJU 227,
the Court held as follows on the plaintiff's causes of action based on conspiracy to defraud,
fraudulent misrepresentation and fraud:

".....Conspiracy to Defraud
[31] The allegation of conspiracy to defraud with the intention to injure was as stated in paragraph 14
of the ASOC. In order to establish a conspiracy to defraud to injure, the plaintiff must establish that
"there must be an agreement or 'combination' of two or more with the common intention to effect an
unlawful purpose or to do a lawful act by unlawful means resulting in damage to the Plaintiff (see Bev-
erages Holdings Sdn Bhd & Ors v. Kickapoo (Malaysia) Sdn Bhd [2008] 4 CLJ 20 and Industrial Con-
crete Products Bhd v. Concrete Engineering Products Bhd & Other Suits [2001] 8 CLJ 262). The
plaintiff must not only prove that there was an agreement but must also prove the overt acts which had
been alleged to have been done by the parties to the conspiracy which had caused injury and damage
to the Plaintiff (see Seah Sinag Mong v. Ong Ban Chai [1998] 1 CLJ Supp 295).
Fraudulent Misrepresentation
[32] At paragraphs 9, 10, 11, 13 & 14 of the ASOC the Plaintiff had pleaded that misrepresentation
had been perpetrated against him which had resulted in the land being transferred to the Defendant.
What is misrepresentation had been illustrated by His Lordship Abdul Malik bin Ishak J in Lee Cheong
Fah v. Soo Man Yoh [1996] CLJ 356 as follows:

".....there are two types of misrepresentation, namely (a) innocent misrepresentation


and (b) fraudulent misrepresentation. An innocent misrepresentation is false but
made by the representor with reasonable grounds for believing it to be true at the
time when it was made and at the time when the contract was entered into. The usual
remedy for an innocent representation would be rescission of contract. On the other
hand, fraudulent misrepresentation is said to be a false representation made know-
ingly or without believing its truth, or recklessly, carelessly whether it is true or false.
The fraud element that creeps in is certainly actionable in tort for deceit, whilst the
contract element allows for repudiation (where the contract is executed)....... Or for
33

damages (where the contract is said to be executed) Under s. 340 (2) (a) of the
NLC misrepresentation is a separate ground of defeasibility from fraud....... Thus, it is
correct statement to say that all cases of fraudulent misrepresentation must neces-
sarily include recklessness. In my judgment, the misrepresentation as adverted to in
s. 340 (2) (a) of the NLC must refer to fraudulent misrepresentation and not inno-
cent misrepresentation. It is common ground to regard innocent misrepresentation as
being the result of an honest mistake"

(see Loke Yew v. Port Swettenham Rubber Co Ltd [1913] AC 491; Datuk Jaginder Singh & Ors v.
Tara Rajaratnam [1983] 1 LNS 21;; [1983] 2 MLJ 196).
[33] Based on the above it is clear that misrepresentation as adverted to in section 340 (2) (a) of the
National Land Code 1965 ('Act 65') ('NLC') refers to fraudulent misrepresentation and is a species of
fraud.
[34] Sections 340 of the ('NLC'), provides that the title or interest of any person or body who are be-
ing registered as the proprietor of any land, lease, charge or easement shall be indefeasible unless if it
is proved that:
(i) The registration was effected by fraud or misrepresentation to which the person or body in
whose name the title or interest is registered, or any agent of the person or body in whose
name the title or interest is registered was a party or privy to the fraud or misrepresentation;
or
(ii) If the registration was obtained by forgery, or by means of and insufficient or void instrument;
or
(iii) If the title or interest was unlawfully acquired by the person or body in whose name the title or
interest is registered in the purported exercise of the power conferred by any written law.
[35] The NLC does not provide the interpretation of the word of fraud and or define what conduct may
constitute fraud. The judicial interpretation of fraud which has been consistently followed and adopted
by our courts could be found in the case of Assets Co v Mere Roihi [1905] 1 AC 176 where at page
210 it said:

"in Waimaha Sawmilling Co. Ltd v. Waione Co. Ltd [1926] AC 101 at p. 106
Lord Buckmaster observed as follows:
If the design object of a transfer be to cheat a man of a known existing right,
that is fraudulent, and so also fraud may be established by a deliberate and
dishonest trick causing interest not to be registered and thus fraudulently
keeping the register clear....."

[36] Fraud which is envisaged by section 340 of the NLC is "actual fraud or dishonesty of
some sort, not what is called constructive or equitable fraud "(see Privy Council case of As-
sets Co. v. Mere Roihi [1905] 1 Ac 176 per Lord Lindley).
Fraud
[37] The law on fraud is well settled. This had been well illustrated in the case of PJTV Den-
son (M) Sdn Bhd & Ors v. Roxy (Malaysia) Sdn Bhd 1 LNS 55; [1980] 2 MLJ 136 which
states:

"As it stands the registered title of the said land in the hands of the second
and third appellants is indefeasible. The concept of indefeasibility of title is
so deeply embedded in our law that it seems almost trite to restate it. There-
fore the registration of the transfer of the said land under the National Land
Code defeats all prior unregistered interests in land unless the party who ac-
quires the registered title has been guilty of fraud (see section 340(2) (a) of
the National Land Code).....
Whether fraud exists is a question of fact, to be decided upon the circum-
stances of each particular case. Decided cases are only illustrative of fraud.
Fraud must mean 'actual fraud, i.e. dishonesty of some sort' for which the
registered proprietor is a party or privy. 'Fraud is the same in all courts, but
such expressions as "constructive fraud" are...inaccurate: but "fraud"
...implies a willful act, on the part of one, whereby another is sought to de-
prived, by unjustifiable means, of what he is entitled. '(Per Romilly M.R. in
Green v Nixon). (7) Thus in Waimiha Sawmilling Co. Ltd v. Waione Timber
Company Ltd it was said that 'if the designed object of transfer be to cheat a
man of a known existing right, that is fraudulent..."
34

(Tai Lee Finance Co. Sdn Bhd v. Official Assignee & Ors [1983] 1 MLJ page 81, Datuk
Jagindar Singh & Ors v. Tara Rajaratnam [1983] 2 MLJ 196).
[38] The case of Hock Hua Bank (Sabah) Berhad v. Lam Tat Ming & Ors [1995] 1 LNS 80
states as follows:

"To sum up, fraud implies some base conduct and moral turpitude and a
person is taken to have acted fraudulently or with intent to defraud if he acts
with the intention that some person be deceived and by means of such de-
ception that either an advantage should accrue to him or injury, loss or det-
riment should befall some other person. That is what is known, as "fraud" or
fraudulently. Further we agree that fraud whether in civil or criminal proceed-
ings must be proved beyond reasonable doubt and cannot be based on sus-
picion or conjecture."

[39] In the Supreme Court case of Chu Choon Moi V Nga Siew Tin [1986] 1 MLJ 34 at page
38 [on page 36 of TAB 17 in the Defendants' Bundle of Authorities] held as follows:

"We agree that fraud whether made in civil or criminal proceeding must be
proved beyond reasonable doubt and cannot be based on suspicion and
conjecture. Proof beyond reasonable doubt does not mean proof beyond the
shadow of doubt. The degree of proof need to reach certainty but it must car-
ry a high degree of probability. What it means is that the evidence adduced
is such that the court or a prudent man considers its existence probably in
the circumstances of the case."

(3) In Shanmugam S/O Kanapathy v Pappah D/O Chinniah Nadar [1994] 2 CLJ 267, the plaintiff
had filed for a declaration to be recognized in law as the only legitimate child of the deceased.
In that case, the Court held as follows:

"[3] In order to establish his right to succeed to the estate of the deceased the plaintiff must prove not
only that he is the son of the deceased but also that he is the legitimate son of the deceased and the
said Amirtham Ammal. The plaintiff was in no position to testify that he was born or conceived during
his mother's marriage to the deceased without infringing the hearsay rule. Therefore although the
plaintiff has established that he was the son of the deceased he failed to establish that he was a legit-
imate son of the deceased. Having regard to the provisions of the Distribution Act 1960 (Revised
1980) the plaintiff therefore as no right to succeed to the estate of the deceased."

[75] Therefore, Mdm. Yokinee prays on behalf of the defendants that the Court dismisses the plaintiff's claim
with cost.

Findings of the Court


[76] The Court noted that the plaintiff did not call any independent witness to testify that he is the natural son
of Low Pow Siong and Lim Hia, who he alleges, is also known as Lim Hek. The defendants allege that their
mother was never known as Lim Hia.
[77] The Court also noted that the plaintiff gave evidence on his own behalf as PW1. He relied on his own
evidence in his examination-in-chief as contained in his Witness Statement (P20) and his Supplementary
Witness Statement (P20A). He also relied on his evidence in his re-examination. He also relied on the evi-
dence in the examination-in-chief of his cousin, namely, Low Soon Hin (PW6), as contained in the latter's
Witness Statement and in his re-examination. The plaintiff also relied on three pieces of documentary evi-
dence (P2, P3 and P6) and the oral and documentary evidence of his 6 other witnesses (PW2 to PW7).
[78] The plaintiff (PW1) gave his evidence in his examination-in-chief in the form of a Witness Statement,
enclosure (150), which the Court marked as P20, and a Supplementary Witness Statement, which the Court
marked as P20A.
[79] PW1 was aged 65 years at the time he testified in Court in the full trial.
35

[80] I noted that nowhere in his Witness Statement and his Supplementary Witness Statement did PW1 state
that he is the legitimate son of Low Pow Siong and Lim Hek. I also noted that none of the plaintiff's other wit-
nesses gave evidence that the plaintiff is the legitimate son of Low Pow Siong and Lim Hek.
[81] I noted that the plaintiff has claimed that his mother, Lim Hia, was also known as Lim Hek because the
name of his mother as stated in the certificate of registration of the plaintiff as a citizen of the Federation of
Malaya, which was issued on 03.12.1962, is Lim Hek whereas in his birth certificate, which was issued on
04.09.1951, the name of his mother is stated as Lim Hia.
[82] What is significant is that there is no independent evidence that Lim Hek was aware that she was
named in the certificate of registration of the plaintiff as a citizen of the Federation of Malaya as the mother of
the plaintiff. Although the plaintiff has said that his mother Lim Hek had accompanied him to the Registration
Department for the issue of the certificate of registration of the plaintiff as a citizen of the Federation of Ma-
laya on that day.
[83] PW1 also informed the Court that as an undischarged bankrupt, he was allowed by the Insolvency De-
partment to operate a savings account in a bank into which he could deposit monies, which he received from
others without the need to inform the Insolvency Department of the monies deposited into his account, even
though the amount of the monies received by him on any occasion may be substantial. He produced his
Bank Savings Pass Book, which was marked P51 by the Court. However, I noted that he did not call any one
from the Insolvency Department to testify to corroborate his evidence to that effect.
[84] I noted that in cross-examination, the plaintiff said that on 12 October 2000, he was already aware that
the land was caveated by the Administrators of the Estate of Low Pow Siong.
[85] Below are my findings.
[86] I found that the evidence of the plaintiff that he is the natural son of Low Pow Siong and Lim Hia, also
known as Lim Hek, who were married to each other at the time of his birth, and that he is their eldest son and
that the defendants and the rest of the beneficiaries in the List of Beneficiaries in the Ls.A., excluding Lim
Hek, are his younger siblings born of the same parents, is most probably the self-serving evidence of the
plaintiff in order to unjustly enrich himself by making an unlawful claim for a share in Low Pow Siong's Estate,
to which he is not legally entitled, for reasons best known to himself. That explains why it has taken the plain-
tiff some 34 years after the demise of Low Pow Siong on 01.02.1978 to launch a claim for a share of Low
Pow Siong's Estate.
[87] My reasons are as follows:

(1) The plaintiff, for reasons, best known to himself, did not produce the original copy of his birth
certificate;
(2) Apart from the three documents produced and relied upon by the plaintiff, the plaintiff did not
produce any other document to show that he was born to Lim Hia or Lim Hek or that Lim Hia
and Lim Hek are one and the same person;
(3) Based on the plaintiff's birth certificate, it is stated that the plaintiff was born to Low Pow Siong
and Lim Hia on 26.08.1951;
(4) There is no document which shows that Low Pow Siong and Lim Hia were married when the
plaintiff was born;
(5) There is no independent witness, who has testified that Low Pow Siong and Lim Hia were mar-
ried when the plaintiff was born or that Lim Hek and Lim Hia were the same person;
(6) Hence, the Court could not rule out the possibility that the officer or clerk at the Citizenship De-
partment could have made a mistake when entering the name of Lim Hek as the mother of the
plaintiff as Low Pow Siong had also brought along his son from his marriage with Lim Hek, viz
Low Thiam Hoe, to have the latter registered and issued with a certificate of registration as a
citizen of the Federation of Malaya of a person below the age of 21 years on the same day and
it might have served Low Pow Siong's purpose to use Lim Hek's name as the mother of the
plaintiff so as to obtain citizenship of the Federation of Malaya by registration for the plaintiff;
(7) This is because based on PW4's evidence, it is clear that there are 3 documents, which were
required for an application for a certificate of registration as a citizen of the Federation of Ma-
36

laya of a person below the age of 21 years, viz the person's birth certificate, the applicant's
identity card and the parents' marriage certificate;
(8) I am of the view that had the officer or clerk at the Citizenship Department not made the error,
he or she would have entered the name of Lim Hia as the name of the mother of the plaintiff in-
stead of the name of Lim Hek as the mother of the plaintiff because the name of the plaintiff's
mother as stated in the plaintiff's birth certificate is Lim Hia and not Lim Hek;
(9) If what the plaintiff said about his birth certificate and his certificate of registration as a citizen of
the Federation of Malaya of a person below the age of 21 years being kept by his grandmother
is true, then it would mean that Lim Hek, most probably never knew that her name was used as
the name of the plaintiff's mother in the plaintiff's certificate of registration as a citizen of the
Federation of Malaya of a person below the age of 21 years;
(10) If what the plaintiff claims, viz that he is the natural son of Low Pow Siong and Lim Hia, also
known as Lim Hek is true, it means that at the time of his birth, his father was aged 29 years
old whilst his mother, Lim Hia, also known as Lim Hek, was aged 20 years since Low Pow Si-
ong was aged 56 years old at the time of his demise on 01.02.1978 and Lim Hek was aged 47
years old as stated in the List of Beneficiaries in the Ls.A.;
(11) It would also mean that at the time she and the defendants made a joint application for the
Ls.A. On 22.09.1979, Lim Hek was aged 48 years and on 13.10.1980, when the Ls.A. were ex-
tracted by the 3 of them, viz Lim Hek and the two defendants, Lim Hek was aged 49 years;
(12) Yet, it is very strange that the plaintiff, who professes to be the first born legitimate child of Low
Pow Siong and Lim Hek and on top of it a son, who had, allegedly, taken care of Low Pow Si-
ong's properties and shouldered the financial burden of his, alleged, 9 other younger siblings,
with considerable financial assistance from his grandmother, could not remember the date of
Lim Hek's demise and the date of his grandmother's demise and, most importantly, was not
consulted or informed by Lim Hek concerning the distribution of Low Pow Siong's Estate before
the petition for the letters of administration was filed in the Kuala Lumpur High Court or invited
by her to join her in filing the petition for the letters of administration for Low Pow Siong's Es-
tate, before the petition for the letters of administration was filed in the Kuala Lumpur High
Court;
(13) I took judicial notice that it is common knowledge that in a Chinese Hokkien family, the legiti-
mate first born son is very highly regarded by the parents and the younger siblings and he is
required to play a very important role, especially, in the funeral rites of his parents. Yet, based
on the evidence adduced by the plaintiff and also his witness (PW6), during their cross-
examination by Mdm Yokinee the defendants' learned counsel, although the plaintiff attended
the funerals of his parents, firstly, of his, alleged, father, Low Pow Siong, and, subsequently, of
his, alleged, mother, Lim Hek, the plaintiff did not participate in either of the funeral rites, let
alone to lead his, alleged, younger siblings in both the funeral rites;
(14) It is also very strange that the plaintiff as the, alleged, natural and/or legitimate eldest son of
Low Pow Siong and Lim Hek, never asked Lim Hek about the distribution of Low Pow Siong's
Estate after his father's demise;
(15) Instead he said he asked his, alleged, younger siblings about the matter but this is denied by
his, alleged, younger siblings;
(16) One would have thought that since he was the "man" of the family after the demise of his father
that the most reasonable step for him to take would be to consult his mother Lim Hek as to the
direction which he is to take concerning the distribution of his father's Estate unless his claim
that Lim Hek was his mother is untrue;
(17) This is because PW1 said that he went to a Chinese school where he studied from Standard 1
to Standard 6. He said he left school after completing Standard 6 because he was not interest-
ed in studying and his father, Low Pow Siong, assigned him to look after the oil palm planta-
tions and the rubber estates which his father owned. He also said he took over as the driver of
a school bus which his father operated prior to his demise;
(18) However, the plaintiff did not produce any contemporaneous documents or call any independ-
ent witness or an elder from Low Pow Siong's family to corroborate his evidence to that effect;
(19) If the truth is that Lim Hek never considered the plaintiff to be her natural son, let alone her le-
gitimate son, she would naturally not confide in him or involve him in the distribution of her hus-
37

band's, Low Pow Siong's Estate, as she would regard him as an outsider, who has no busi-
ness, whatsoever, to be involved in the affairs of her family, which to her would comprise her
children, who were born to her during her marriage to Low Pow Siong and whose names she
has included in the petition for the letters of administration for Low Pow Siong's Estate;
(20) If what the plaintiff has alleged is true, viz that he lived with Low Pow Siong and Lim Hek and
his grandmother in the same house after he was born to Low Pow Siong and Lim Hek during
their marriage and his other siblings in the same house before he got married in 1977, his fa-
ther, Low Pow Siong, and his mother, Lim Hek, would have most probably either bought him a
house or built him a house but based on his own evidence, he said he built his own house;
(21) There is also no evidence from him that he had ever shown any of the defendants his birth cer-
tificate, in which the name of his father is stated as Low Pow Siong or his certificate of registra-
tion as a citizen of the Federation of Malaya, in which the name of his father is stated as Low
Pow Siong and the name of his mother is stated as Lim Hek;
(22) PW1 also said he was appointed a Justice of Peace in 1993. He produced his authority card,
which was issued on 13.07.1993 by the Selangor State Secretary. It showed that he was ap-
pointed a Justice of Peace pursuant to "ceraian 98, Undang-Undang Mahkamah Nombor 43
tahun 1948" in and for the whole state of Selangor. His authority card was marked P49 by the
Court, as there was no objection from the defendants;
(23) If what the plaintiff claimed is true, viz that he did not know that his mother, Lim Hia also known
as Lim Hek, had applied for and obtained the Ls.A. on 13.10.1980 and that his siblings had told
him that they lacked the financial resources to file for letters of administration to the Estate of
his late father, Low Pow Siong, the plaintiff could have himself applied for them in 1993 since
he was appointed a Justice of Peace;
(24) PW1 also informed the Court that he was appointed a Justice of the Peace because he was
doing some works for the Selangor Sultan. Hence, if what he told the Court was true, he would
have the financial means to file the petition for the letters of administration to his late father's
Estate, if his, alleged, younger siblings, allegedly, lacked the financial means to do so but this
was not done by the plaintiff;
(25) PW1 said he was again appointed a Justice of Peace in 2005. He also produced his authority
card, which was issued on 18.03.2005 by the Selangor State Secretary. It showed that he was
appointed a Justice of Peace pursuant to subsection 98 (2) of the Subordinate Courts Act 1948
in and for the whole state of Selangor. His authority card was marked P50 by the Court, as
there was no objection from the defendants;
(26) However, the Court noted that again the plaintiff did not do anything even though there was his
own evidence, which he had given in cross-examination that in 2000, he became aware that
Ls.A. had been issued to the defendants for the distribution of his late father's Estate;
(27) The Court also noted that the plaintiff attempted, albeit, unsuccessfully, to explain away this
piece of evidence by stating that he did not understand written Malay and that his previous so-
licitors, viz Messrs. Elida, Imran & Partners, who he had engaged to file the application for the
lodgment of his private caveat over the title to the property, which was held under EMR No.:
8481, No.: Survey 1767, did not explain to him the contents of his statutory declaration and the
contents of his application in the Form 19B both of which stated that he was given to under-
stand that the letters of administration for the property concerned had been issued by the High
Court but his name as a beneficiary of his father's Estate was not included in the Ls.A.;
(28) Hence, I drew an adverse inference against the plaintiff that if Mismarni binti Abu Mansor, the
advocate and solicitor from Messrs. Elida, Imran & Partners, who had attested his signature in
the Form 19B for the lodgement of his private caveat, and Hj. Kamaluddin B. Sulaiman, the
Commissioner of Oaths, before whom, his statutory declaration was sworn, had been called as
a witness by the plaintiff, the evidence, which Mismarni binti Abu Mansor and Hj. Kamaluddin
B. Sulaiman would have given would have been unfavourable to the plaintiff and that that was
why he had opted not to call them as his witnesses to corroborate his evidence that he did not
understand the contents of the two documents as he did not understand written Malay and the
contents were not explained to him in a language that he could understand;
(29) The Court did not find the plaintiff to be a truthful witness. On the contrary, the Court found that
he was determined not to produce the best evidence before the Court to prove his claim and
38

that he preferred to rely on a single piece of circumstantial and indirect evidence to prove his
claim that Lim Hek had given birth to him whilst she was married to Low Pow Siong even
though he was aware that his oral evidence and the single piece of circumstantial and indirect
evidence were not only inconsistent but also inherently incredible and that it was more probable
that he had waited for all of his significant elders to pass on before filing the citation against the
defendants for the revocation of the Ls.A. in order that they could not be called upon to testify
against him in support of the defendants' amended statement of case;
(30) The Court also did not believe him when he said that even though he went to Chinese primary
school, he does not know how to read and write Malay. This is because he could not have
been appointed a Justice of the Peace by the Selangor State Secretary on two occasions if he
did not know how to read and write Malay and he did not call anyone from the Selangor State
Secretary's Office to testify in support of his evidence that he does not know how to read and
write Malay;
(31) PW1 said that his relationship with his, alleged, younger siblings, allegedly, born of the same
parents, viz Low Pow Siong and Lim Hek, was strained after he asked them about whether
they had applied for letters of administration for his late father's Estate and they did not speak
to each other thereafter but there was no reason given, let alone a satisfactory reason, as to
what had caused the strain in the, alleged, relationship. Hence, the Court was more inclined to
disbelieve him and to hold that there was never such a sibling relationship between the plaintiff
and the beneficiaries in the List of Beneficiaries in the Ls.A. as alleged by the plaintiff;
(32) The Court also noted that prior to the full trial of the plaintiff's action the defendants had, as a
precautionary measure, applied, through their solicitors, Messrs. Yokinee Selvam & Solicitors,
vide a notice of application, enclosure (74), for an order of the Court to compel the plaintiff to
undergo DNA testing to determine whether the plaintiff and the 1st defendant and the 1st de-
fendants' younger siblings, except for the 2 nd defendant, who was adopted by Low Pow Siong
and Lim Hek, share similar DNA as a way of showing that Lim Hek had given birth to him (the
plaintiff) while she was married to Low Pow Siong;
(33) However, I recalled that I was surprised when the plaintiff, vigorously, opposed and resisted the
application. Due to the plaintiff's, vigorous, opposition and resistance to enclosure (74), Ros-
naini binti Saub J had dismissed the defendants' application with cost since the burden in this
action to prove the plaintiff's claim was on the plaintiff and it was not on the defendants and the
evidential burden would only shift to the defendants to prove to the contrary if the plaintiff suc-
ceeded in proving his case against the defendants;
(34) I did inform the plaintiff that the burden in this action was on him to prove his claim and I did
ask Mdm. Malliga, the plaintiff's learned counsel, why the plaintiff was opposing and resisting
enclosure (74) if he was certain that he was born by Lim Hek from her marriage to Low Pow
Siong just like the 1st defendant and his younger siblings except for the 2 nd defendant, who was
adopted by Low Pow Siong and Lim Hek. This was because I was of the view that a positive
match of his DNA with the DNA of the 1st defendant and the 1st defendant's younger siblings
would support and corroborate his pleaded case that he was the legitimate son of Low Pow Si-
ong born of Lim Hek from her marriage with Low Pow Siong;
(35) Mdm. Malliga, the plaintiff's learned counsel, informed the Court that the plaintiff was of the
view that the DNA testing was unnecessary since he had the birth certificate in which his father
is named as Low Pow Siong and his mother is named as Lim Hia and the certificate of registra-
tion as a citizen of the Federation of Malaya in which the name of his father is stated as Low
Pow Siong and the name of his mother is stated as Lim Hek and that the plaintiff's contention is
that his mother, Lim Hia is also known as Lim Hek, viz that Lim Hia and Lim Hek are one and
the same person; and
(36) Hence, I drew an adverse inference against the plaintiff for his refusal to undergo the DNA test-
ing to ascertain whether he is most likely to be the biological son of Low Pow Siong and Lim
Hek and whether he and the 1st defendant and the 1st defendant's 8 other siblings, excluding
the 2nd defendant, who was adopted, are most likely to be the biological children of Low Pow
Siong and Lim Hek.
[88] The Court also noted that PW1 said that he was adjudicated a bankrupt in the year 2010, that he did not
obtain the sanction of the Director General of Insolvency before he filed this action against the defendants.
39

[89] However, he also said that after he commenced this action against the defendants, he had obtained the
sanction of the Director General of Insolvency, which was stated to be with retrospective effect, viz to take
effect prior to the date of the filing of the plaintiff's action on 29.10.2014, even though the sanction was is-
sued by the Director General of Insolvency after the plaintiff had filed this action.
[90] Since, the Court of Appeal has allowed the plaintiff's appeal against my decision concerning the invalidi-
ty of the sanction, which was issued by the Director General of Insolvency after the plaintiff had filed this ac-
tion, I am bound by the decision of the Court of Appeal based on the doctrine of stare decisis (see Miliangos
v George Frank (Textiles) Ltd [1976] AC 443, HL, and my decision in YB Teresa Kok Suh Sim v The Minis-
ter Of Home Affairs, Malaysia (YB Dato' Seri Syed Hamid Syed Jaafar Albar) & Ors [2016] 3 MLRH 19).
[91] The Court noted that the words used in the plaintiff's statement of claim to refer to himself are "waris
Kadim" (in Malay) of Low Pow Siong, which mean inheritor of the same descent to property or heir of the
same descent to property (in English) of Low Pow Siong.
[92] I was of the respectful view that the 5 cases which were cited by Mdm. Malliga in support of her submis-
sion that the Court ought to presume that Low Pow Siong and Lim Hia, also known as Lim Hek were married
during the birth of the plaintiff are not applicable to the facts of the instant case. My reasons are as follows:
[93] In Badri Prasad, Petitioner v Dy Director of Consolidation and others, Respondents AIR 1978
1557, the Indian Supreme Court held as follows:

"For around 50 years, a man and a woman, as the facts in this case unfold, lived as husband and wife, an adventurist
challenge to the factum of marriage between the two, by the Petitioner in this special leave petition, has been negatived
by the High Court. A strong presumption arises in favour of wedlock where the parties have lived together for a long
spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive
the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. In this view, the contention
of Shri Garg, for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its cer-
emonial process by examining the priest or other witnesses, deserves no consideration. If man and woman who live as
husband and wife in society are compelled to prove, half a century later by eye witness evidence that they were validly
married, few will succeed. The contention deserves to be negatived and we do so without hesitation. The special leave
petitions are dismissed."

[94] However, in the instant case, there was no evidence forthcoming from Low Pow Siong and Lim Hia, who
are both deceased, that Lim Hia is also known as Lim Hek.
[95] In Pazpena De Vire v Pazpena De Vire [2001] 1 FLR 460, the Uruguayan High Court held as follows:

"The Law of Presumption of Marriage at Para 9 states as follows:-


This is a case where there is no direct evidence of marriage ceremony having taken place. In every matrimony cause it
is a prerequisite to obtaining a decree that a marriage is proved. Ordinarily, proof of marriage certificate is sufficient to
satisfy the court. Here the marriage certificate is challenged as a forgery. But it has long been the position in English
Law that the absence of a valid marriage certificate is not fatal to the proceedings. Even where there is no direct evi-
dence of formal registration, the law does not presume against the existence of a valid marriage.

[96] However, in the instant case, there was no evidence forthcoming from Lim Hia, who is deceased, that
she had established a valid marriage to Low Pow Siong and that during her valid marriage to Low Pow Si-
ong, she had given birth to the plaintiff.
[97] In Ong Cheng Neo v. Yeap Cheah Neo & Ors [1872] 1 Ky 326, 328-330), where there was evidence
that the marriage has subsisted for decades, Hackett J held as follows:

"When the status of marriage, has subsisted for more than half a century, and children have been born who always
held in the family, the position of legitimate members of that family, it appears to me, that it would be most dangerous
to hold that status does not in reality exist, except on the clearest and strongest evidence. In the present case, I do not
think such evidence has been produced, and I therefore, feel bound"
40

[98] However, in the instant case, the fact of a marriage between Low Pow Siong and Lim Hia was not
proved by witnesses. There was also no evidence that after the death of Low Pow Siong, the plaintiff's moth-
er, Lim Hia, was regarded as the wife of Low Pow Siong by all her relations and friends.
[99] The facts of the case in Selvarajoo A/l Palaniappa Pillai v. Paramasivam A/L Palaniappa Pillai [2013] 5
MLJ 748, are as follows from the "Headnotes":

"Facts of the case:


The Plaintiff filed the present suit challenging the will propounded by the defendant. The Defendant in turn counter
claimed by challenging the locus of the Plaintiff to bring this action on the grounds that the law of distribution did not
recognize the plaintiff as his birth status was illegitimate. According to the defendant, the deceased had not entered in-
to a customary marriage with the Plaintiff's mother. However Plaintiff maintained that he was the lawful son of the de-
ceased. The Plaintiff submitted that the deceased, his two wives, the Plaintiff and his brother had lived together in the
family home and were regarded by all and sundry as one family."

[100] The Shah Alam High Court made an order in favour of the plaintiff and dismissed the defendant's coun-
terclaim with no order as to costs. In doing so, Prasad Abraham J (as His Lordship then was) held as follows
under "Held":

(1) Although there was no clear direct evidence of Veeramah and the deceased having entered in-
to a ceremony of marriage the presumption of marriage was not so easily repelled because the
evidence pointed to the deceased and Veeramah being regarded as and passing off as hus-
band and wife for almost forty years. Further the Plaintiff and his siblings as well as the defend-
ant and his brother were brought up in the family home (See para 5(a))
(2) The evidence adduced in the present case, such as the plaintiff's birth certificate that clearly
cited the deceased as his father; ...
(3) The power to remove in law the status of legitimacy of the Plaintiff and the reality that the same
blood runs through the veins of the plaintiff and the defendants should be exercised only in the
most drastic cases. The present case was not one in which the power should be exercised. As
such the plaintiff was the legitimate son of the deceased."
[101] In that case, the learned Judge referred to s. 50 and s. 112 of the Evidence Act 1950 and to the
book "Evidence Practice and Procedure", 4th Edition and he said as follows:

"Section 50: Opinion on relationship when relevant

(1) When the court has to form an opinion as to the relationship of one person to another, the opinion ex-
pressed by conduct as to the existence of such relationship of any person who as a member of the
family or otherwise has special means of knowledge on the subject is relevant fact.
Illustrations
(a) The question is whether A and B were married
The fact that they were usually received and treated by their friends as husband and wife is
relevant
(b) The question is whether A was a legitimate son of B.
The question is whether A was a legitimate child of B.
The fact that A was always treated as such by members of the family is relevant."

[102] However, in the instant case, there was no evidence forthcoming from Lim Hia that she was the wife of
Low Pow Siong when she gave birth to the plaintiff or that she was also known as Lim Hek.
[103] In Ong Cheng Neo v. Yeap Cheah Neo & Ors, supra, the issue was whether Cheah Tuan Neo was a
concubine to one Ong Sye. The Court held as follows:
41

"It is admitted that the Plaintiff and the testatrix were children of the same mother Cheah Tuan Neo, and the question at
issue is whether Cheah Tuan Neo was married to Ong Sye, the father of the Plaintiff or whether she was only his con-
cubine."

[104] In that case, the Court held that the evidence in support of the marriage is of two kinds, viz the first is
the evidence of persons, who state that they were present at the marriage ceremony, and secondly, the evi-
dence of reputation. In that case, the Court said as follows:

"Now in deciding the question of marriage or no marriage, in a case where there is evidence that the parties have
passed as man and wife for many years, it must be remembered that it does not merely depend on the greater or less-
er weight of the evidence on one side, or on the other, or in the balance of evidence as to particular facts. In the case of
marriage, there is always a presumption in its favour. Sempter preumtor pro matrimonio."

[105] However, in the instant case, the defendants do not admit that the plaintiff is their natural brother. The
defendants also do not admit that their mother, Lim Hek, was also known as Lim Hia.
[106] In International Times & Ors vs Leong Ho Yuen [1980] 1 MLJ 86. Salleh Abas F.J, who delivered the
judgment of the Federal Court, held as follows:

"It is settled law, however, that where a man and a woman have cohabited continuously for a number of years the law
presumes in favour of marriage and against concubinage unless there is strong and distinct evidence to repel the pre-
sumption ..."

[107] However, in the instant case, there was no independent evidence that Low Pow Siong and Lim Hek
had cohabited continuously for a number of years as husband and wife and that Lim Hek gave birth to the
plaintiff during such co-habitation. Therefore, based on the reasons as set out above, I was of the respectful
view that the plaintiff has failed to prove that he is a natural and/or legitimate son of Low Pow Siong and Lim
Hek and that he is entitled to any beneficial rights in the Estate of Low Pow Siong, deceased, under the Dis-
tribution Act 1958.
[108] Based on the reasons as set out above, I was also of the view that the plaintiff has failed to prove that
he is a beneficiary of the Estate of Low Pow Siong, deceased, and I was of the view that, therefore, the plain-
tiff is not entitled to a share of the Estate of Low Pow Siong, deceased, under the Distribution Act 1953.

Defendants' issue (2): Whether there is any legal nexus between the plaintiff and the Letters of Ad-
ministration marked "E" by the Court for use in the full trial for the Estate of Low Pow Siong, de-
ceased, which were obtained by the defendants vide the Kuala Lumpur High Court Petition No.: 31-
775 of 1978 on 22.05.1979 and extracted on 13.10.1980 and the plaintiff?
[109] I found that the defendants' issue (2) ought to be answered in the negative based on my findings and
the reasons for my findings for the plaintiff's issue (1) and the defendants' issue (1).

Defendants' issue (3): Whether the defendants had committed fraud on the plaintiff in filing and ex-
tracting the Letters of Administration under Kuala Lumpur High Court Petition No.: 31-775-78 on
13.10.1980 without giving prior notice to the plaintiff?
[110] I agreed with the defendants that the defendants' issue (3) ought to be answered in the negative in fa-
vour of the defendants based on my findings and the reasons for my findings for the plaintiff's issue (1) and
the defendants' issue (1) and the evidence adduced by the plaintiff and the defendants before the Court. I
found the evidence of the defendants (DW3 and DW4) on issue (3) to be inherently credible and most prob-
ably true. I found that there was no reason for the defendants to inform the plaintiff of the filing and the ex-
traction of the Letters of Administration under Kuala Lumpur High Court Petition No.: 31-775-78 on
13.10.1980 as there was no legal nexus between the plaintiff and the Letters of Administration marked "E" by
the Court.

Defendants' issue (4): Whether the plaintiff has the locus standi to file this suit?
42

[111] I found that the defendants' issue (4) ought to be answered in the affirmative in favour of the plaintiff
based on the three documents relied upon by the plaintiff to prove his claim against the defendants but
whether the plaintiff can succeed in this suit at the conclusion of the full trial is another matter because both
the burden of proof and the onus of proof are on the plaintiff.

Defendants' issue (5): Whether the plaintiff's cause of action is time barred by virtue of s. 4 and s. 23
of the Limitation Act 1953?
[112] I agreed with the defendants that the defendants' issue (5) ought to be answered in the affirmative in
favour of the defendants based on my findings and the reasons for my findings for the plaintiff's issue (1) and
the defendants' issue (1) and the evidence adduced by the plaintiff and the defendants before the Court.

Defendants' issue (6): Whether the defendants had knowledge that the plaintiff is the legitimate son
of Low Pow Siong and Lim Hek, and had, fraudulently, left out the plaintiff's name in the List of Bene-
ficiaries for the Letters of Administration of Low Pow Siong, deceased, in the Petition No.: 31-775 of
1978?
[113] Based on the findings of the Court for the plaintiff's issue (1) and the defendants' issue (1) and the rea-
sons for the findings of the Court as set out above for the 2 issues, I agreed with the defendants that the de-
fendants' issue (6) ought to be answered in the negative in favour of the defendants.

Defendants' issue (7): Whether the plaintiff is estopped by laches and acquiescence?
[114] I agreed with the defendants that the defendants' issue (7) ought to be answered in the affirmative in
favour of the defendants based on my findings and the reasons for my findings for the plaintiff's issue (1) and
the defendants' issue (1) and the evidence adduced by the plaintiff and the defendants before the Court.

Defendants' issue (8): Whether the plaintiff had certified biological proof of being a natural son of
Low Pow Siong (the deceased) prior to the commencement of this suit?
[115] I agreed with the defendants that the defendants' issue (8) ought to be answered in the negative in fa-
vour of the defendants based on the evidence adduced by the plaintiff and the defendants before the Court
and the affidavit evidence, which was adduced before the Court by the parties for enclosure (119).

Defendants' issue (9): Whether the defendants had, with intent to defraud the plaintiff of his benefi-
cial rights, concealed the plaintiffs' beneficial rights during the application and hearing of the petition
for the Letters of Administration of the Estate of Low Pow Siong, deceased, at the Kuala Lumpur
High Court?
[116] I agreed with the defendants that the defendants' issue (8) ought to be answered in the negative in fa-
vour of the defendants based on the my findings and the reasons for my findings for the plaintiff's issue (1)
and the defendants' issue (1) and the evidence adduced by the plaintiff and the defendants before the Court
and the reasons for the Court's findings for issue (3).

Conclusion
[117] In the premises, the Court dismissed the plaintiff's suit and claim with cost of RM 200,000.00.
43

Malayan Law Journal Reports/2013/Volume 5/Selvarajoo a/l Palaniappa Pillai v Paramasivam a/l Palaniappa
Pillai - [2013] 5 MLJ 748 - 17 May 2013

13 pages

[2013] 5 MLJ 748

Selvarajoo a/l Palaniappa Pillai v Paramasivam a/l Palaniappa Pillai


HIGH COURT (SHAH ALAM)
PRASAD ABRAHAM J
SUIT NO 22NCVC-504-04 OF 2012
17 May 2013

Succession -- Probate -- Grant of probate -- Plaintiff challenged veracity of will after defendant obtained grant
of probate -- Whether plaintiff had locus standi to commence action -- Presumption of marriage -- Whether
deceased and plaintiff's mother were married -- Whether plaintiff legitimate son of deceased -- Testamentary
capacity -- Whether deceased had testamentary capacity to execute will -- Whether plaintiff raised suspicious
circumstances that cast doubt on testamentary capacity of deceased

In the late 1940s the late Palaniappa Pillai s/o Periayah ('the deceased') came to this country from India and
lived in a house in Rawang, Selangor ('the family home') with his two wives, Veeramah and Sinnamal, who
were both sisters. The deceased had four chidren with Veeramah, namely the plaintiff and his three brothers.
The deceased was also reputed to have two wives in India, who were allegedly dead. The defendant and his
brother claimed to be his children by his first wife. Upon the death of the deceased, the defendant obtained a
grant of probate based on the last will and testament of the deceased ('the will'). The plaintiff challenged the
veracity of the will. The plaintiff contended that the will could not have been executed by the deceased as he
was seriously ill at the material time. The plaintiff filed the present suit challenging the will propounded by the
defendant. The defendant, in turn counterclaimed by challenging the locus of the plaintiff to bring this action
on the grounds that the law of distribution did not recognise the plaintiff as his birth status was illegitimate.
According to the defendant, the deceased had not entered into a customary marriage with the plaintiff's
mother, Veeramah, and that Veeramah had in fact entered into a customary marriage with another. Howev-
er, the plaintiff maintained that he was the lawful son of the deceased. The plaintiff submitted that the de-
ceased, his two wives, the plaintiff and his brothers as well as the defendant and his brother had lived to-
gether in the family home and were regarded by all and sundry as one family.

Held, making an order in favour of the plaintiff and dismissing the defendant's counterclaim with no order as
to costs:

(1) Although there was no clear direct evidence of Veeramah and the deceased having entered in-
to a ceremony of marriage, the presumption of marriage was not be so easily repelled because
the evidence pointed to the
5 MLJ 748 at 749
deceased and Veeramah being regarded as and passing off as husband and wife for almost
forty years. Further the plaintiff and his siblings as well as the defendant and his brother were
brought up in the family home (see para 5(a)).
(2) The evidence adduced in the present case, such as the plaintiff's birth certificate that clearly
cited the deceased as his father; the fact that Veeramah participated in the funeral rites of the
deceased when he passed away; and the plaintiff's brother's wedding invitation that was issued
in the name of Veeramah and the deceased supported the presumption of a valid marriage be-
tween Veeramah and the deceased. Further, the conduct of the defendant in allowing the plain-
44

tiff and the family to continue to reside in the family home and act of transferring properties to
the plaintiff was indicative of conduct moved by family ties (see para 5(b) - (e)).
(3) The power to remove in law the status of legitimacy of the plaintiff and the reality that the same
blood runs through the veins of the plaintiff and the defendant should be exercised only in the
most drastic of cases. The present case was not one in which the power should be exercised.
As such, the plaintiff was the legitimate son of the deceased (see para 7).
(4) Although the defendant argued that the deceased had only suffered a minor stroke and was in
full control of his mental faculties when he executed the will, the medical evidence suggested
that the deceased had made little recovery and was very weak and incoherent. In the circum-
stances it was difficult to comprehend how the deceased could have visited the lawyer's office
to prepare the said will. The attesting witnesses to the will were also not called to testify (see
para 10).
(5) The plaintiff had succeeded in raising several suspicious circumstances that cast doubt on the
testamentary capacity of the deceased when he executed the will (see para 11).

Pada akhir tahun 1940-an, mendiang Palaniappa Pillai a/l Periayah ('si mati') datang ke negara ini dari India
dan tinggal di sebuah rumah di Rawang, Selangor ('rumah keluarga tersebut') dengan dua orang isterinya,
Veeramah dan Sinnamal, yang kedua-duanya adik-beradik. Si mati mempunyai empat orang anak dengan
Veeramah, iaitu plaintif dan tiga orang saudara lelakinya. Si mati juga dikatakan mempunyai dua orang lagi
isteri di India, yang didakwa sudah meninggal dunia. Defendan dan saudara lelakinya mendakwa diri mereka
sebagai anak isteri pertama. Dengan kematian si mati, defendan mendapat geran probet berdasarkan wasiat
terakhir si mati ('wasiat'). Plaintif mencabar kebenaran wasiat tersebut. Plaintif menghujahkan bahawa wasiat
tersebut tidak mungkin dilaksanakan oleh si mati kerana dia sakit tenat pada masa material. Plaintif memfail-
kan guaman ini mencabar wasiat yang dikemukakan oleh defendan. Defendan sebaliknya menuntut balas
dengan
5 MLJ 748 at 750
mencabar lokus plaintif untuk membawa tindakan ini atas alasan bahawa undang-undang pembahagian tid-
ak mengiktiraf plaintif kerana status kelahirannya adalah tidak sah. Menurut defendan, si mati tidak
berkahwin secara adat dengan ibu plaintif, Veeramah dan malahan Veeramah telah berkahwin secara adat
dengan orang lain. Walau bagaimanapun, plaintif menghujahkan bahawa dia adalah anak lelaki si mati yang
sah. Plaintif menghujahkan bahawa si mati, kedua-dua isterinya, plaintif dan saudara-saudara lelakinya serta
defendan dan saudara lelakinya tinggal di rumah keluarga tersebut dan dianggap oleh ramai sebagai satu
keluarga.

Diputuskan, perintah memihak plaintif dan menolak tuntutan balas defendan tanpa perintah terhadap kos:

(1) Walaupun tiada keterangan langsung bahawa Veeramah dan si mati telah berkahwin secara
adat, anggapan perkahwinan tidak boleh ditolak dengan mudah kerana keterangan menunjuk-
kan bahawa si mati dan Veeramah dianggap dan dilihat sebagai suami dan isteri selama ham-
pir 40 tahun. Tambahan lagi, plaintif dan adik-beradiknya dan juga defendan serta saudara
lelakinya dibesarkan di rumah keluarga tersebut (lihat perenggan 5(a)).
(2) Keterangan yang dikemukakan dalam kes ini, seperti sijil kelahiran plaintif jelas menyatakan si
mati sebagai ayahnya; fakta bahawa Veeramah terlibat dalam acara pengebumian si mati keti-
ka dia meninggal dunia; dan undangan perkahwinan saudara lelaki plaintif yang dikeluarkan di
bawah nama Veeramah dan si mati menguatkan anggapan perkahwinan yang sah antara
Veeramah dan si mati. Selanjutnya, perlakuan defendan dalam membenarkan plaintif dan
keluarganya untuk terus tinggal di rumah keluarga dan tindakan memindahkan harta-harta
kepada plaintif adalah petunjuk kelakuan yang dijana oleh ikatan kekeluargaan (lihat pereng-
gan 5(b)-(e)).
(3) Kuasa untuk membatalkan status keesahan plaintif dan realiti bahawa darah yang sama men-
galir dalam tubuh plaintif dan defendan boleh dijalankan dalam kes-kes yang amat drastik. Kes
ini bukanlah kes yang mana kuasa tersebut perlu dijalankan. Dengan itu, plaintif adalah anak si
mati yang sah (lihat perenggan 7).
45

(4) Walaupun defendan menghujahkan bahawa si mati hanya mengalami strok kecil dan mempu-
nyai kawalan penuh fakulti mindanya ketika melaksanakan wasiat tersebut, keterangan peru-
batan menunjukkan bahawa si mati telah pulih sedikit dan sangat lemah serta tidak keruan.
Dalam hal keadaan sedemikian, adalah sukar untuk memahami bagaimana si mati boleh ber-
temu dengan peguamnya untuk menyediakan wasiat tersebut. Saksi-saksi pengakusaksian
bagi wasiat tersebut juga tidak dipanggil untuk memberi keterangan (lihat perenggan 10).
5 MLJ 748 at 751
(5) Plaintif berjaya membangkitkan hal-hal keadaan mencurigakan yang menimbulkan keraguan
tentang keupayaan si mati untuk berwasiat semasa dia melaksanakannya (lihat perenggan 11).

Notes
For a case on grant of probate, see 11 Mallal's Digest (4th Ed, 2011 Reissue) para 2533.

Cases referred to
Chua Mui Nee v Palaniappan [1967] 1 MLJ 270, FC (refd)
Kaulsya a/p Pathmanathan & 1 other v Jamuna a/p Narayanan Suit No 22NCVC-1084-11 of 2011 (unreport-
ed) (refd)
Lakshmi Ammal v Algiriswami Chettiar (unreported) (refd)
Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97, CA (refd)
Letchumanan Chettiar v Palaniappa Chettiar [1978] 1 MLJ 120, FC (refd)
Martha Samadhanam David v Sudha AIR 1950 Kant 26; AIR 1950 Mys 26, HC (refd)

Legislation referred to
Civil Law Act 1956
Evidence Act 1950 ss 50, 112
Law Reform (Marriage and Divorce) Act 1976

Murali Achan (K Kulasekar Achan & Associate) for the plaintiff.

Jaspal Singh Mann (Pramjit Kaur and Santhakumari a/p Thangavelu with him) (Man & Associate) for the de-
fendant.

Prasad Abraham J:

[1] This case embarked on a challenge to a will propounded by the defendant, wherein pursuant to a Petition
No 921 of 1978, a grant of probate was issued by the High Court in Kuala Lumpur on 28 November 1978, by
the plaintiff. The defendant challenged the locus of the plaintiff to bring this action as the birth status of the
plaintiff was illegitimate and the law of distribution did not recognise the plaintiff, and with that challenge, the
court had to dwelve into the family history of the plaintiff and the defendant predating back to the 1940s to
properly determine the status of the plaintiff.
[2] The plaintiff contends that the plaintiff is the lawful son of the late Palaniappa Pillai s/o Periayah who was
the Patriach of the family ('Palaniappa'). Palianappa came to this country from India in the 1940s and he
lived in a house in Rawang Selangor at No 3 Lorong Kong Fatt ('the family home'). Palaniappa was reputed
to have had four wives, two of whom lived and died in India. Now
5 MLJ 748 at 752
Palaniappa lived in the family home with Veeramah and Sinnamal who were both sisters and had four chil-
dren with Veeramah. They are Maniam, Sundarajoo, Ravinthran and the plaintiff. The defendant and his
brother Subramaniam were children by his first wife Ramayee Ammal. All these siblings lived with the de-
ceased, Veeramah and Sinnamal in the family home and to all and sundry they were a family.
46

[3] The defendant, contends on the other hand, that this was a pure arrangement of convenience as the de-
ceased had a history of 'girlfriends' and the plaintiff and his siblings were never recognised nor accepted by
the defendant as Veeramah had a thalli tied by one Veralingam and she had made a claim for his pension. In
the light of that, there could not be a customary marriage between the plaintiff's mother and the deceased
and it follows the plaintiff's status was one of illegitimacy.
[4] The court would have to charter unknown waters as all this took place in the 1940s well before the com-
ing into force of the Civil Law Act 1956 and Law Reform (Marriage and Divorce) Act 1976, which recognises
customary marriages.
[5] I refer to the late Augustine Paul's text on Evidence Practise & Procedure (4th Ed) at p 557 on words
where the learned author sets out ss 50 and 112 of the Evidence Act 1950 and I quote:

50 Opinion on relationship when relevant

(1) when the Court has to form an opinion as to the relationship of one person to another, the opinion ex-
pressed by conduct as to the existence of such relationship of any person who as a member of the
family or otherwise has special means of knowledge on the subject is a relevant fact.
(2) Such opinion shall not be sufficient to prove a marriage in prosecutions under section 494, 495 or
498 of the Penal Code.

ILLUSTRATIONS

(a) The question is whether A and B were married.


(b) The question is whether A was a legitimate son of B. The fact that A was always treated as such by
members of the family is relevant.

Evidence of marriage

(a) The evidence of reputation of two persons being husband and wife is evidence of such marriage.
per Hackett J in Ong Cheng Neo v Yeap Cheah (1872) 1 Ky 326, 328-330:

5 MLJ 748 at 753


It is admitted that the Plaintiff and the testatrix were children of the same mother, Cheah Tuan Neo,
and the question at issue is whether Cheah Tuan Neo was married to Ong Sye, the father of the plain-
tiff, or whether she was only his concubine.

The evidence in support of the marriage is of two kinds - first, the evidence of persons who state they were present at
the marriage ceremony; and secondly, evidence of reputation. Upon the first point several aged Chinese were called,
who stated that they were present at the marriage of Cheah Tuan Neo to Ong Sye, about sixty years ago, and that they
were always regarded as husband and wife, and as such were received in society. Many other witnesses were called
by the Plaintiff to prove reputation and, indeed, all the witnesses as well as those for the defendant, as for the Plaintiff
[with the exception of Khoo Seng Hap whose evidence was unsupported] concurred in saying that Cheah Tuan Neo
was always treated with the respect due to a married woman, and was regarded as such. It also appeared in evidence
that after the death of Cheah Tuan Neo, the Plaintiff applied for letters of administration to her estate, and that, upon
the hearing of the petition, the testatrix as the eldest daughter of the deceased, appeared, and herself applied for let-
ters, but that she subsequently waived her claim in favour of the Plaintiff, thus implicitly acknowledging her legitimacy.
The Plaintiff also proved that the testatrix had procured a tombstone from Chine for her mother's grave, on which were
inscribed the words - 'Cheah Tuan Neo, her tombstone, son: Oh Kok Jean; daughters: Ong Yeo Neo, Ong Urn Neo and
Ong Cheng Neo', but there was no mention made of husband. It is stated that it is unusual to put the husband's 'seh'
or tribe on the wife's tombstone, and the omission of it in the present case is accounted for as follows:

'Koh Teng Choon, the Chinese interpreter of the Supreme Court states that when a woman has one
husband, the name of the husband is inscribed, but if she has had two husbands, the name of the last
husband is placed, if there is an agreement between the parties interested, but that if they do not
agree, then the name of neither husband is placed. On the whole, I think, that if any inference is to be
drawn from the inscription on the tombstone, it is favourable to the legitimacy of the plaintiff, as all the
daughters are described in the same way, and no difference whatever is made between them.
The defendants contended that the evidence of the marriage is insufficient, and they rely on the fol-
lowing circumstances: first, that it is not stated by the witnesses of the marriage that any male relative
gave the woman away; secondly, that Cheah Tuan Neo was taken when dying from the house of
plaintiff to that of Oh Yeo Neo; and lastly, that at the funeral of Cheah Tuan Neo, the seh 'Oh' [that of
the first husband] was inscribed on the lanterns.
47

Now, in deciding the question of marriage or no marriage, in a case where there is evidence that the
parties have passed as man and wife for many years, it must be remembered that it does not merely
depend on the greater or lesser weight of the evidence on one side, or on the other, or in the balance
of evidence as to particular facts. In the case of marriage, there is always a presumption in its favour.
Semper presumtor pro matrimonio. As Lord Lyndhurst observed in Morris v Davies [5 Clark & Fin
163], the presumption of law [in favour of marriage] is not to be lightly repelled. It is not to be broken in
upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it, must be
strong, distinct, satisfactory and conclusive.

5 MLJ 748 at 754


In the Breadalbane case, [LR ISc & Div 182] the connection of the persons whose marriage was in question was in its
origin illicit, and yet the House of Lords held, that after many years cohabitation with the reputation of husband and
wife, it must be presumed that they had been married, although, there was no evidence of an actual marriage. It is true,
this was in Scotland, but there seems no reason why the same principle should not hold good, generally. As Lord
Cranworth observed in that case: 'By the law of England, and I presume of all other Christian countries, when a man
and woman have long lived together as husband and wife, and have been so treated by their friends and neighbours,
there is a prima facie presumption that they really are, and have been what they profess to be. If, after their deaths, a
succession should open to their children any one claiming a share in such succession as a child, would establish a
good prima facie case, by showing that his parents had always passed in society as man and wife, and that the claim-
ant had always passed as their child'.
In the present case we have the fact of the marriage proved by witnesses, and even if the evidence of the performance
of the marriage ceremony be considered not altogether satisfactory, yet there is clear evidence that, after the death of
her first husband, Cheah Tuan Neo, lived with Ong Sye as his wife, and was regarded as such by all her relations and
friends. The only evidence to contradict the evidence of reputations, extending over a period of about sixty years, is
that, of the witness Khoo Seng Hap, who alleges that the deceased Yeo Neo spoke to him in terms of disapproval of
the connection of her mother with Ong Sye, and called it a shameful affair, but as this is unsupported and is incon-
sistent with all the other evidence in the case, I do not consider it as worthy of credit.
The presumption which arises from the evidence of reputation extending over so long a period of time, I do not think is
rebutted by the facts relied upon by the Defendants. The evidence of the meaning and significance of Chinese cus-
toms, [such as carrying lanterns at a funeral] must be much clearer than it has been in the present case to warrant me
in inferring from it the non existence of a previous marriage, in opposition to the strongest evidence from reputation.
When the status of marriage has subsisted for more than half a century, and children have been born who always held
in the family, the position of legitimate members of that family, it appears to me, that it would be most dangerous to
hold that status does not in reality exist, except on the clearest and strongest evidence. In the present case, I do not
think such evidence has been produced, and I, therefore, feel bound to hold, that the plaintiff has established her rights
as one of the next of kin of the testatrix.
(See also R v Govindasamy [1993] 2 MLJ 97 (HC)

This being a criminal case the marriage must be strictly proved and recourse cannot be had to the
presumptions in favour of marriage which the court can rely upon in civil cases such as those in which
the legitimacy of children is in issue. The distinction between the degree of proof of marriage required
in a civil case and that required in a criminal prosecution is exemplified by s 50(2) of the Evidence Or-
dinance which provides that the opinion expressed by conduct of any person who has special means
of knowledge as to the existence of any relationship of one person to another shall not be sufficient to
prove a marriage in prosecutions under s 498 although such opinion is a relevant fact which might
constitute sufficient evidence in a civil matter.
5 MLJ 748 at 755
On a criminal charge the actual celebration of a marriage ceremony must be proved unless the mar-
riage can be established by a certificate of registration and if the ceremony is to be proved at least one
witness must be recalled who can describe it so as to enable the court to determine whether it consti-
tuted a legal marriage, (see Archbold's Criminal Pleadings and Evidence (28th Ed), p 1327).

I also set out s 112 of the Evidence Act 1950 and I quote:

Section 112 Birth during marriage conclusive proof of legitimacy


The fact that any person was born during the continuance of a valid marriage between his mother and any man, or
within two hundred & eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that
he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each oth-
er at any time when he could have been begotten.
48

Opinion evidence as to legitimacy


Section 112 of the Act deals with the presumption as to legitimacy. Illustration (b) of this section
states that when the question is whether A was the legitimate son of B, the fact that A was always
treated as such by members of the family is relevant.
Per Mansfield CJ in the Berkeley Peerage Case (1811) 4 Camp 401, 416:
If the father is proved to have brought up the party as his legitimate son, this amounts to a daily asser-
tion that the son is legitimate.

Let me examine the evidence that is before the court.

(a) although there is no clear direct evidence on any wedding ceremony, that Veeramah and the
deceased went through, they had lived together for almost 40 and had four children together.
The evidence points to them being regarded as husband and wife and have passed off as hus-
band and wife for many years. The presumption of marriage is not to be easily 'repelled'. The
other point to be considered is that the siblings were all brought up in the family home and this
included the defendant and his brother. I refer to the cross-examination of PW1 at pp 62-69 of
the notes of evidence:

Q: Question number 180 to 188 Yang Arif. Why do you say that the deceased treated you and
your siblings as his lawful children? Question number 180.
A: Ever since my father, ever since I was born, he took care of me and I grew up with my father.
He has acknowledged me in the birth certificate, he has put his name in the birth certificate
(01:52:12 inaudible). So I think it's a good reason to say that my father has treated me as a
lawful child.
Q: So in fact you knew for a fact that you and your siblings were not his lawful children.
5 MLJ 748 at 756
A: Disagree.
Q: You've stated that the deceased had treated you and your siblings as lawful children. Am I
right?
A: Yes.
Q: Yes he did not hold on trust or transfer his property to you or your siblings during his lifetime.
What do you have to say about this?
A: The fact that he did not make the trust or transfer doesn't make us unlawful children
Q: No. What do you have to say for that, that he did not actually transfer any properties to you or
your siblings nor did he hold any property for trust?
A: That doesn't make us unlawful children. That's what I'm saying.
Q: Now I refer you to a photograph.

Counsel for defendant


There's two photographs. I will put it as A and B Yang Arif
Q: In Bundle B, in Tab-36 can you tell the Court, the second photograph, that is B, where is the
deceased in the photograph?
A: Third from the back.

Court
Q: From the left?
A: Yes, from the left
Q: Yes. If he has treated you and your siblings as lawful children, yet during the eldest brother's
marriage the deceased chose to stand behind with other relatives.
A: I think it's not necessary to stand beside my mother. And if you see the top photograph my
mother and father.

Court
Q: Where's your mother in this photograph B?
A: My mother is just on the right of my brother Maniam. She is seated just beside Maniam.
Maniam wearing the garland. She is on the right of Maniam.
Q: Now I refer you to the first photograph. According to Hindu customs, how do you get blessing
from your parents?
A: Both of them will blessing.
Q: No, how do you get blessing?
5 MLJ 748 at 757
A: Throw the rice.
49

Counsel for defendant


Below is English one. The card is both in Tamil and in English.
Q: Yang Arif I won't be asking any question on that. Now my question on these photographs. Are
you telling the Court since the deceased was standing there in the photograph and you claim
he was blessing, that therefore you become his lawful son and that you have a right of suc-
cession of his property? Are you saying that?
A: What I'm saying that they are blessing my brother's wedding, they are obviously my mother
and father.
Q: Do you agree that there are others who are also blessing your brother?
A: It's not the photograph
Q: No, do you agree during the marriage that there are others who are blessing your brother?
A: Yes

Counsel for defendant


Yes, question number 176 until 179. Refer to Tab-31 Bundle B
Q: Bundle B, Yang Arif the transfer form. Can you tell the Court the consideration given by you to
the defendant for the transfer of these properties?
A: No consideration

Court
Q: Consideration was kasih sayang?
A: Yes
Q: Kasih sayang between who and who? Between brothers or?
A: Even though it says love and affection, this was given
Q: No just answer me that. Love and affection based on what? Relationship of?
A: Brother
Q: Brothers?
A: Yes

(b) I also took into account the birth certificate of the plaintiff, which clearly cites the deceased as
the father, (bundle B1, p 1);
(c) Veeramah the plaintiff's mother participated in the funeral rites of the deceased when he
passed away on 22 October 1977;
5 MLJ 748 at 758
(d) when the plaintiff's brother was married, the wedding invitation was issued in the name of
Veeramah and the deceased (see bundle B1 Tab 12). All these evidences in my view clearly
support the presumption of a valid marriage between Veeramah and the deceased; and
(e) the conduct of the defendant in allowing the plaintiff and the family to continue to reside in the
family home and the defendant had actually transferred property to the plaintiff is surely indica-
tive of conduct moved by family ties. The court observes that the defendant was coy in giving
direct answers as to transfer of properties to the plaintiff.
[6] The defendant had raised the point that as the deceased had married and had a wife in India in 1942,
when he began to cohabit with Veeramah and therefore, no marriage could be contracted in law as Hindu
customary law does not recognise a polygamous marriage and I was referred to the authority cited by coun-
sel for the defendant namely Kaulsya a/p Pathmanathan & 1 other v Jamuna a/p Narayanan Suit No
22NCVC-1084-11 of 2011 (the defendant's bundle of authorities II) and counsel for the plaintiff cites the fol-
lowing authorities to rebut the contention of the defendant, Martha Samadhanam David v Sudha AIR 1950
Kant 26; AIR 1950 Mys 26 at Tab 2 of the plaintiff's bundle of authorities vol II (PBA II), Lakshmi Ammal v
Algiriswami Chettiar at Tab 3 of PBAII, and Letchumanan Chettiar v Palaniappa Chettiar [1978] 1 MLJ 120 at
Tab 5 ie apart from the provisions of the Evidence Act 1950, which I had alluded to, I refer to the decision at
the Federal Court in case Chua Mui Nee v Palaniappan [1967] 1 MLJ 270, and to the judgment of His Lord-
ship Barakbah LP at p 272 and I quote:

In the present case, as I have said earlier, the question is not whether there had been justae nuptiae justum matrimoni-
um but whether there had been a marriage. At the time the marriage was celebrated between the deceased and the
appellant, Hindu law and custom permitted polygamous marriages in India but then the question arose as to whether
the consent of the first wife must be obtained before the second marriage could take place. According to Gupta's Hindu
Law (2nd Ed), p 900:
50

It has been held that a Hindu may marry again though he has a wife or wives living without his wife's
consent and although no justification, such as the sterility of the wife, exists, unless custom prevents
such marriage without such consent. In such a case her consent must be obtained and other condi-
tions if any required must be fulfilled.

[7] I might add as a postscript to this point, the power to remove in law the status of legitimacy of the plaintiff
and the reality that the same blood runs through the veins of the plaintiff and the defendant should be exer-
cised only in the most drastic of cases. This is certainly not one of them. I therefore rule the plaintiff is the
legitimate son of the deceased.
5 MLJ 748 at 759
[8] I now turn to the question of the validity of the will allegedly executed by the deceased. The alleged last
will and testament of the deceased is found in Annexure 26, bundle B ie the said will. The plaintiff contends
that the said will could not have been executed by the deceased as he was seriously ill at the material time,
and the veracity of the will is challenged. I quote the holding of the Court of Appeal in Lee Ing Chin @ Lee
Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 at p 98 where it was held:

(1) Where the validity of a will was challenged, the burden of proving testamentary capacity and due execution is on the
propounder of the will as is the burden of dispelling any suspicious circumstances that may surround the making of the
will. That burden may be discharged by showing that the testator, being of competent mind, had his will read over to
him or that the testator knew and approved of the contents of the will. The onus of establishing any extraneous vitiating
element such as undue influence, fraud or forgery lay on those who challenged the will, in this case, the plaintiffs (see
pp 113G, 116B).

[9] I now embark to evaluate the evidence before the court before the said will was executed to ascertain
whether the deceased had testamentary capacity to execute the said will.
[10] The defendant contends that the deceased albeit had suffered a minor stroke at the time but was in full
control of his mental faculties and understood fully what he was signing. However, the medical evidence
suggests otherwise. I refer to tab 22-24 of bundle B. These reports show the deceased had made little re-
covery and was very weak and incoherent under these circumstances. I find it hard to comprehend how the
deceased in that condition could have visited the lawyer's office to prepare the said will. None of the attesting
witnesses to the said will were called to testify and neither was Subramaniam the brother of the defendant
who purportedly accompanied the deceased to the lawyer's office although my attention was drawn to the
fact that he was present in court throughout proceedings. The plaintiff's counsel also points to the fact that
tab 25 of bundle B shows a power of attorney purportedly signed by the deceased and two weeks later, the
deceased thumbprints his alleged signature to the said will once again the solicitor who attested the power of
attorney were not called to testify.
[11] It is my judgment that the plaintiff has succeeded in raising several suspicious circumstances that cast
doubt on the testamentary capacity of the deceased when he executed the said will. If the said will stands,
then defendant is a sole beneficiary to the plantation to the exclusion of all his siblings, whereas if the estate
of the deceased was to be administered, then all siblings would be entitled to their share of the deceased's
estate according to the law.
5 MLJ 748 at 760
[12] For the aforesaid reasons, I made the following orders:

(a) OIT of para 34(a)-(c) only; and


(b) the counterclaim of the defendant is dismissed with no order as to costs.

Order made in favour of plaintiff and defendant's counterclaim dismissed with no order as to costs.

Reported by Kohila Nesan


51

Malayan Law Journal Reports/2013/Volume 4/Code Focus Sdn Bhd v Tan Chee Hoe & Sons Sdn Bhd -
[2013] 4 MLJ 59 - 24 September 2012

23 pages

[2013] 4 MLJ 59

Code Focus Sdn Bhd v Tan Chee Hoe & Sons Sdn Bhd
COURT OF APPEAL (PUTRAJAYA)
ABDUL MALIK ISHAK, AZHAR MA'AH AND CLEMENT SKINNER JJCA
CIVIL APPEAL NO W-02-1062 OF 2010
24 September 2012

Contract -- Breach -- Sale of land -- Sale and purchase agreement -- Failure to comply with conditions prec-
edent and failure to deliver vacant possession of land -- Whether plaintiff had waived requirement that de-
fendant should obtain approval of its shareholders for sale of shares to plaintiff -- Whether plaintiff's failure to
pay balance of purchase price entitled defendant to terminate SPA -- Whether defendant's failure to deliver
vacant possession of land made SPA voidable at plaintiff's option -- Whether deposit should be refunded to
plaintiff -- Whether plaintiff entitled to damages

The plaintiff and the defendant entered into an agreement ('the SPA') whereby the defendant agreed to sell
and the plaintiff agreed to purchase 931,002 of the shares of Choo Hoe Sdn Bhd ('CHSB') at the purchase
price of RM16m. Although the SPA was ostensibly for the sale and purchase of the entire share holding of
CHSB to the plaintiff, the true nature of the transaction was in reality for the sale and purchase of a piece of
land (the land), which CHSB owned. The SPA was subject to two conditions precedent, namely the approval
of the FIC within 75 days from the date of the SPA and the approval of the defendant's shareholders in an
EGM for the sale of the shares to the plaintiff. Upon execution of the SPA, the plaintiff had paid to the de-
fendant a deposit of RM1.6m or 10% of the purchase price. It was a term of the SPA that the defendant
should deliver vacant possession of the land to the plaintiff on the completion date and that time would be
the essence of the SPA. However, when the plaintiff discovered various encroachments on the land and also
the fact that a tenanted car park remained in operation on the land, it put the defendant on notice with regard
to the encroachments on the land and requested the date for completion of the SPA to be extended until
such time as the defendant was able to deliver vacant possession of the land. When the defendant allegedly
failed or neglected to remove the encroachments or prepare the land for delivery of vacant possession on
the completion date, the plaintiff commenced an action against the defendant for the return of the deposit
monies amounting to RM1.6m that it had paid to the defendant, damages, interests and costs. The plaintiff
averred that in addition to its failure to remove the encroachments on the land, the defendant had also failed
to fulfill the conditions precedent in the SPA. According to the defendant all the encroachments on the land
had been removed except for the car park operation
4 MLJ 59 at 60
that would cease by the completion date. Alternatively the defendant submitted that the obligation to deliver
vacant possession of the land constituted a mere warranty and that the breach of that warranty did not entitle
the plaintiff to delay the payment of the balance of the purchase price to the defendant. The defendant thus
argued that since the plaintiff had failed to pay the balance of the purchase price it was entitled to terminate
the contract pursuant to the SPA and that the plaintiff would forfeit the deposit it had paid. The High Court
judge dismissed the plaintiff's claim with costs and hence the present appeal. In this appeal the plaintiff main-
tained that the defendant was in breach of the SPA by its failure to comply with the conditions precedent in
the SPA and in failing to deliver vacant possession of the land. The defendant contended that the conditions
precedent were inapplicable and superceded by the plaintiff's letter, which purported to waive the require-
ment that the defendant should obtain the approval of the defendant's shareholders in an EGM approving the
sale of the shares to the plaintiff.
52

Held, allowing the appeal with costs of RM50,000:

(1) The plaintiff's letter purportedly waiving the requirement for the approval of the defendant's
shareholders in an EGM for the sale of the shares to the plaintiff was ineffective and void by vir-
tue of s 132C of the Companies Act 1965 ('the CA'). As provided in s 132C of the CA, manda-
tory legislative requirements could not be waived by agreement of the parties. Thus the condi-
tions precedent had to be complied with. Bereft of that compliance the SPA became voidable at
the option of the plaintiff and the plaintiff was entitled to the refund of the deposit and to obtain
damages in the ordinary way (see paras 32-33 & 36).
(2) The clauses in the SPA showed that the contractual obligations of the parties were reciprocal.
On the completion date, the plaintiff was to pay the balance of the purchase price while the de-
fendant was to deliver vacant possession of the land. The reciprocal nature of the contractual
obligations of the parties attracted the provisions of ss 52, 53 and 55 of the Contracts Act
1950 ('the Act'). Upon applying Illustration (a) to s 53 of the Act and the fact that the real nature
of the transaction concerned a sale and purchase of the land, the obligation to deliver vacant
possession had to be performed before the obligation to pay the balance of the purchase price.
Further, by virtue of Illustration (a) to s 52 of the Act, the plaintiff would not be required to pay
the balance of the purchase price on the completion date because on that date, the defendant
was unable to deliver vacant possession of the land. By virtue of s 55 of the Act the plaintiff
was also entitled to withhold payment of the balance of the purchase price until the encroach-
ments had been cleared from the land (see paras 41-42, 46-48).
(3) The evidence revealed that there were various encroachments on the land
4 MLJ 59 at 61
and that no notice had been served on the car park operator operating on the land. Events
showed that the defendant had not delivered vacant possession on the completion date and
that the balance of the purchase price was not paid on the completion date. The fact that the
SPA stipulated that time was of the essence would activate s 56 of the Act, which provided
that when time is of the essence and the contractual obligation is not performed on the stipulat-
ed time frame, the contract is voidable at the option of the promisee. Thus, the failure of the de-
fendant to deliver vacant possession of the land to the plaintiff on the completion date, made
the SPA voidable at the plaintiff's option (see paras 50, 54-55).
(4) The defendant's inability to deliver vacant possession of the land was a fundamental breach,
which went to the root of the contract. This coupled with the voidability of the SPA at the in-
stance of the plaintiff should be construed against the defendant. Consequently, it was uncon-
scionable to allow the defendant to retain the deposit. It was just and reasonable for the deposit
to be refunded to the plaintiff (see para 66).
(5) The defendant was also ordered to pay the plaintiff damages to be assessed by the Registrar
of the High Court together with interest or in lieu of assessment, the sum of RM3.2m as agreed
liquidated damages (see para 68).

Plaintif dan defendan telah memeterai satu perjanjian ('PJB') di mana defendan bersetuju untuk menjual dan
plaintif bersetuju untuk membeli 931,002 saham-saham Choo Hoe Sdn Bhd ('CHSB') pada harga belian
RM16 juta. Walaupun PJB itu kononnya untuk jualan dan belian keseluruhan pegangan saham CHSB kepa-
da plaintif, sifat sebenar urus niaga tersebut ialah untuk jualan dan belian sebidang tanah ('tanah') yang di-
miliki CHSB. PJB tersebut tertakluk kepada dua syarat-syarat terdahulu, iaitu kelulusan FIC dalam jangka
masa 75 hari daripada tarikh PJB dan kelulusan pemegang-pemegang saham defendan di dalam mesyuarat
agung luar biasa ('MAL') untuk belian saham-saham kepada plaintif. Selepas PJB dimeterai, plaintif telah
membayar kepada defendan deposit RM1.6 juta atau 10% daripada harga belian. Salah satu syarat di dalam
PJB ialah defendan seharusnya menyerahkan milikan kosong tanah tersebut kepada plaintif pada tarikh siap
dan bahawa masa merupakan inti pati PJB. Walau bagaimanapun, apabila plaintif mendapati pelbagai pen-
cerobohan berlaku ke atas tanah tersebut dan juga fakta bahawa tempat letak kereta yang disewa masih lagi
beroperasi di atas tanah tersebut, plaintif memberikan notis kepada defendan mengenai pencerobohan-
pencerobohan ke atas tanah dan meminta tarikh siap PJB dilanjutkan sehingga masa di mana defendan
boleh menyerahkan milikan kosong tanah tersebut. Apabila defendan dikatakan gagal atau mengabaikan
untuk menghapuskan pencerobohan-pencerobohan atau menyediakan tanah
53

4 MLJ 59 at 62
tersebut untuk penyerahan milikan kosong pada tarikh siap, plaintif memulakan tindakan terhadap defendan
untuk memulangkan duit deposit berjumlah RM1.6 juta yang dibayar kepada defendan, ganti rugi, faedah-
faedah dan kos-kos. Plaintif berhujah bahawa sebagai tambahan kepada kegagalan defendan untuk
menghapuskan pencerobohan-pencerobohan ke atas tanah tersebut, defendan juga gagal untuk memenuhi
syarat-syarat terdahulu dalam PJB. Menurut defendan, kesemua pencerobohan ke atas tanah telah diha-
puskan kecuali operasi tempat letak kereta yang akan dihentikan pada tarikh siap. Secara alternatif, de-
fendan berhujah bahawa kewajipan untuk menyerahkan milikan kosong tanah merupakan satu jaminan se-
mata-mata dan bahawa pelanggaran jaminan tersebut tidak memberikan hak kepada plaintif untuk me-
nangguhkan bayaran baki harga belian kepada defendan. Defendan dengan ini menghujah bahawa me-
mandangkan plaintif gagal untuk membayar baki harga belian maka defendan berhak untuk menamatkan
kontrak menurut PJB dan bahawa plaintif akan kehilangan deposit yang dibayar olehnya. Hakim Mahkamah
Tinggi mengetepikan tuntutan plaintif dengan kos dan oleh itu rayuan ini dibuat. Dalam rayuan ini, plaintif
mengekalkan bahawa defendan telah melanggar PJB dengan kegagalannya untuk mematuhi syarat-syarat
terdahulu dalam PJB dan kegagalan untuk menyerahkan milikan kosong tanah tersebut. Defendan
menghujah bahawa syarat-syarat terdahulu tidak terpakai dan digantikan dengan surat plaintif yang ber-
tujuan untuk mengetepikan keperluan bahawa defendan seharusnya mendapatkan kelulusan pemegang-
pemegang saham defendan dalam MAL yang membenarkan jualan saham-saham kepada plaintif.

Diputuskan, membenarkan rayuan dengan kos RM50,000:

(1) Surat plaintif yang bertujuan mengetepikan keperluan untuk kelulusan pemegang saham-
pemegang saham defendan dalam MAL untuk jualan saham-saham kepada plaintif adalah tid-
ak berkesan dan terbatal menurut s 132CAkta Syarikat 1965 ('AS'). Seperti yang diperuntukkan
di dalam s 132C AS, keperluan perundangan mandatori tidak boleh diketepikan melalui perjan-
jian pihak-pihak. Oleh itu, syarat-syarat terdahulu perlu dipatuhi. Kegagalan mematuhi PJB
menjadikannya boleh dibatalkan atas pilihan plaintif dan plaintif berhak untuk pemulangan
semula deposit dan mendapatkan ganti rugi mengikut cara biasa (lihat perenggan 32-33, 36).
(2) Klausa-klausa dalam PJB menunjukkan bahawa kewajipan kontrak antara pihak-pihak bersifat
dua hala. Pada tarikh penyempurnaan, plaintif perlu membayar baki harga belian manakala de-
fendan perlu menyerahkan milikan kosong tanah. Sifat dua hala kewajipan kontrak pihak-pihak
menarik peruntukan-peruntukan ss 52, 53 dan 55Akta Kontrak 1950 ('Akta'). Selepas
mengguna pakai Ilustrasi (a) kepada s 53 Akta dan fakta bahawa sifat sebenar transaksi ada-
lah mengenai jualan dan
4 MLJ 59 at 63
belian tanah, kewajipan untuk menyerahkan milikan kosong perlu dilakukan sebelum kewajipan
membayar baki harga belian. Seterusnya, menurut Ilustrasi (a) kepada s 52 Akta, plaintif tidak
perlu membayar baki harga belian pada tarikh penyempurnaan kerana pada tarikh tersebut,
defendan tidak dapat menyerahkan milikan kosong tanah. Menurut s 55 Akta, plaintif juga ber-
hak untuk menahan bayaran baki harga belian sehingga pencerobohan-pencerobohan diha-
puskan daripada tanah tersebut (lihat perenggan 41-42, 46-48).
(3) Keterangan menunjukkan bahawa terdapat pelbagai pencerobohan ke atas tanah dan bahawa
tiada notis diberikan kepada pengendali tempat letak kereta yang beroperasi di atas tanah ter-
sebut. Peristiwa-peristiwa menunjukkan bahawa defendan tidak menyerahkan milikan kosong
pada tarikh penyempurnaan dan bahawa baki harga belian tidak dibayar pada tarikh penyem-
purnaan. Fakta bahawa PJB memperuntukkan masa merupakan intipati akan mengaktifkan s
56 Akta, yang menyatakan bahawa apabila masa merupakan satu inti pati dan kewajipan kon-
trak tidak dijalankan dalam jangka masa yang diperuntukkan, kontrak tersebut boleh dibatalkan
atas pilihan penerima janji. Oleh itu, kegagalan defendan untuk menyerahkan milikan kosong
tanah kepada plaintif pada tarikh penyempurnaan, menjadikan PJB boleh dibatalkan atas pili-
han plaintif (lihat perenggan 50, 54-55).
(4) Kegagalan defendan untuk menyerahkan milikan kosong tanah merupakan pelanggaran uta-
ma, yang merupakan akar umbi kontrak. Ini ditambah pula dengan PJB yang boleh dibatalkan
atas pilihan plaintif ditafsirkan terhadap defendan. Sehubungan dengan ini, adalah tidak
54

sepatutnya defendan dibenarkan untuk menyimpan deposit tersebut. Adalah adil dan munasa-
bah untuk deposit tersebut dipulangkan semula kepada plaintif (lihat perenggan 66).
(5) Defendan juga diarahkan untuk membayar ganti rugi kepada plaintif untuk dinilai oleh Pen-
daftar Mahkamah Tinggi bersama dengan faedah atau sebagai ganti taksiran, sejumlah RM3.2
juta sebagai ganti rugi jumlah tertentu yang dipersetujui (lihat perenggan 68).

Notes
For a case on sale of land, see 3(2) Mallal's Digest (4th Ed, 2011 Reissue) para 3174.

Cases referred to
Abdul Rahim bin Syed Mohd v Ramakrishnan Kandasamy (Wan Ahmad Azlan bin Wan Majid & Anor, inter-
veners) and another action [1996] 3 MLJ 385, HC (refd)
Aberfoyle Plantations Ltd v Khaw Bian Cheng [1960] 1 MLJ 47, PC (refd)
Bowtell v Goldsbrough, Mort & Co Ltd (1906) 3 CLR 444 (refd)
4 MLJ 59 at 64
Caltex Oil (Malaya) Ltd v Ho Lai Yoke & Anor [1964] 1 MLJ 76 (refd)
Central Malaysia Development Co Ltd v Chin Pak Chin [1967] 2 MLJ 174 (refd)
Chase Perdana Bhd v Md Afendi bin Hamdan [2009] 6 MLJ 783, FC (refd)
Chee Ah Yew v Tuan Man, Tuan Lebeh, Haji Lateh bin Haji Salleh [1923] 5 FMS LR 36, SC (refd)
Choa Choon Neoh v Spottiswoode (1869) 1 Kyshe's Report 216 (refd)
Cipta Cermat Sdn Bhd v Perbandaran Kemajuan Negeri Kedah [2007] 2 MLJ 746, CA (refd)
Cumberland Consolidated Holdings Ltd v Ireland [1946] 1 All ER 284, CA (refd)
In the Goods of Abdullah (1835) 2 Ky Ec 8 (refd)
K Umar Kandha Rajah v EL Magness [1985] 1 MLJ 116; [1984] 1 CLJ (Rep) 416, FC (refd)
Kang Yoon Mook Xavier v Insun Development Sdn Bhd [1995] 2 MLJ 91, HC (refd)
Kanwar Bhan-Sukha v Ganpat [1926] 94 IC 304 (refd)
Keng Soon Finance Bhd v MK Retnam Holdings Sdn Bhd & Anor [1989] 1 MLJ 457; [1989] 4 PCC 757 (PC)
(refd)
Kimlin Housing Development Sdn Bhd (appointed receiver and manager) (in liquidation) v Bank Bumiputra
(M) Bhd & Ors [1997] 2 MLJ 805, SC (refd)
Lim Kim Swee v Tan Meng San [1960] 1 MLJ 262, CA (refd)
Muralidhar Chatterjee v International Film Co Ltd AIR 1943 PC 34, HC (refd)
National Land Finance Co-operative Society Ltd v Sharidal Sdn Bhd [1983] 2 MLJ 211, FC (refd)
Omar bin Mat Ziki v Mokhtar bin Amin [1996] 2 MLJ 687, HC (refd)
Perri v Coolangatta Investments Pty Ltd (1982) 41 ALR 441, HC (refd)
Property & Bloodstock Ltd v Emerton, Bush And Another v Property & Bloodstock Ltd And Others [1968] Ch
94, CA (refd)
Shigenori Ono v Thong Foo Ching & Ors [1992] 1 MLJ 117, HC (refd)
Sri Kelangkota-Rakan Engineering JV Sdn Bhd & Anor v Arab-Malaysian Prima Realty Sdn Bhd & Ors
[2003] 3 MLJ 257, FC (refd)
Tan Meng San v Lim Kim Swee [1962] 1 MLJ 174, CA (refd)
55

Tan Tien Choy v Kiaw Aik Hang Co Ltd [1966] 1 MLJ 102, FC (refd)
Tsang Yee Kwan v Majlis Perbandaran Batu Pahat [2011] 8 CLJ 913, CA (refd)
Van Buskirk v Kuhns (1913) 164 Cal 472 (refd)
Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381, PC (refd)

Legislation referred to
Civil Law Act 1956 s3
Companies Act 1965 s 132C
Contracts Act 1950 ss 52 Illustration (a), 53 Illustration (a), 54, 55, 56

Appeal from: Civil Suit No D9(D1)(D6)-22-135 of 2002 (High Court, Kuala Lumpur)

4 MLJ 59 at 65

Jeremy Lee (AI Nathan with him) (AI Nathan) for the plaintiff appellant.

SK Sivam (PG Lim & Co) for the defendant respondent.

Abdul Malik Ishak JCA (delivering judgment of the court):

INTRODUCTION
[1] We will refer the parties like what they were referred to at the High Court. Thus, Code Focus Sdn Bhd will
be referred to as the plaintiff while Tan Chee Hoe & Sons Sdn Bhd will be referred to as the defendant.
[2] The plaintiff is a company incorporated in Malaysia under the Companies Act 1965 with a business ad-
dress at Suite 8-3B, Bangunan Lim, No 803-817, Batu 4 1/4, Jalan Ipoh, 51200 Kuala Lumpur.
[3] The defendant, on the other hand, is a company incorporated in Malaysia under the Companies Act 1965
with an address at No 1 & 1A, Jalan Ipoh Kecil, 50350 Kuala Lumpur.
[4] After a full trial, the learned High Court judge dismissed the plaintiff's claims with costs. Aggrieved, the
plaintiff filed an appeal to this court.

THE SALIENT FACTS


[5] By an agreement dated 10 November 1995 ('the SPA'), the defendant agreed to sell and the plaintiff
agreed to purchase 931,002 ordinary shares of RM1 each representing 100% of the issued and paid-up
capital of Choo Hoe Sdn Bhd at the sale consideration of RM16m ('the purchase price'). The plaintiff agreed
to purchase the equity of Choo Hoe Sdn Bhd for the simple reason that the plaintiff was interested in a piece
of freehold land owned by Choo Hoe Sdn Bhd. The freehold land measured one acre, zero rood and 24.5
pole held under CT No 12920, Lot 92, Section 46, Bandar and Wilayah Persekutuan ('the land').
[6] Inter alia, the following terms and conditions were stipulated in the SPA:

(a) that upon execution of the SPA, a total sum of RM1,600,000 shall be paid by the plaintiff to the
defendant as 'deposit' representing 10% of the purchase price (see cl 2.2(a)-(b) of the SPA);
(b) that the balance of the purchase price amounting to RM14,400,000 was to be paid by the plain-
tiff to the defendant on or before 9 February 1996 ('the completion date') (see cl 2.2(c) of the
SPA);
4 MLJ 59 at 66
(c) that the completion of the SPA was subject to two conditions precedent, namely:
(i) approval of the foreign investment committee ('the FIC approval') within 75 days from the
date of the SPA; and
56

(ii) approval of the defendant's shareholders in an extraordinary general meeting ('EGM')


approving the sale of the shares to the plaintiff (see cl 3.5 of the SPA);

(d) that the defendant shall deliver vacant possession of the land to the plaintiff on the completion
date (see Recital I and cl 8.1(21)(d) of the SPA);
(e) that the defendant shall refund the deposit free of interest to the plaintiff in the event the FIC
approval is not obtained (see cl 3.4 of the SPA);
(f) that the defendant warrants, represents and undertakes with the plaintiff that:
(i) neither the defendant nor Choo Hoe Sdn Bhd have created any mortgages, charges,
liens, encumbrances or granted any equities or options or otherwise dispose off the land
or any part thereof (see cl 8.1(21)(b) of the SPA); and
(ii) there are no squatters occupying any part of the land and that the defendant shall at its
own costs and expenses evict all the squatters thereto and pay all compensation thereof
and/or terminate the existing month-to-month tenancy and forthwith deliver vacant pos-
session of the land to the plaintiff on the completion date (see cl 8.1(21)(d) of the SPA);

(g) that in the event the plaintiff fails, refuses or neglects to pay the balance of the purchase price
on or before the completion date, the SPA shall automatically terminate and the defendant is
entitled, inter alia, to absolutely forfeit the deposit; and
(h) that time, wherever mentioned, shall be the essence of the SPA (see cl 12.11 of the SPA).
[7] Sometime in January 1996, the plaintiff came to know that there were several encroachments on the land
and the plaintiff itemised the particulars of those encroachments in this manner:

(a) that the rear portion of the three timber buildings erected on the neighbour's land at the western
boundary encroached into the land between the region of two-ten feet;
(b) that various fixtures enabling activities like cooking, clothes washing and
4 MLJ 59 at 67
drying and the rearing of chickens and ducks in relation to the extended timber structure on the
western boundary of the neighbour's land encroached into the land;
(c) that the corner of a squatter building, which was used as a grocery store, encroached into the
land by approximately five feet; and
(d) that the tenanted car park remained in operation on the land.
[8] By way of a letter dated 5 February 1996, the plaintiff's solicitors wrote to the defendant's solicitors and
put the defendant on notice in regard to the encroachments on the land and requested that the date for com-
pletion of the SPA be extended until such time as the defendant is able to deliver vacant possession of the
land.
[9] In breach of the SPA, the plaintiff averred that the defendant failed, neglected and/or refused to remove
the encroachments or prepare the land for delivery of vacant possession on or before the completion date to
the plaintiff.
[10] And in breach of the SPA, the encroachments remained on the land as at the completion date and the
defendant failed to deliver vacant possession of the land to the plaintiff.
[11] Again, in breach of the SPA, the defendant failed, refused and/or neglected to fulfill the conditions prec-
edent in the SPA as at the completion date when:

(a) the defendant failed to apply and/or obtain the FIC approval in accordance with cll 3.1-3.3 of
the SPA; and
(b) when the defendant failed to obtain the approval of its shareholders in an EGM approving the
sale of the shares to the plaintiff pursuant to cl 3.5 of the SPA.
[12] It was the stand of the plaintiff that the defendant had wrongfully terminated the SPA and without lawful
authority and in breach of the SPA, forfeited the deposit on the ground that the plaintiff has failed to pay the
balance of the purchase price on the completion date.
57

[13] It was said that the plaintiff was at all material times ready, willing and able to honour its obligations un-
der the SPA subject to the SPA becoming unconditional and that the defendant was able to deliver vacant
possession of the land to the plaintiff.
4 MLJ 59 at 68
[14] For these varied reasons, the plaintiff sought from the defendant the following prayers:

(a) the return of the deposit sum of RM1,600,000 paid by the plaintiff to the defendant;
(b) damages;
(c) interest at the rate of 8%pa from 10 February 1996 till the date of full settlement;
(d) costs; and
(e) such further or other relief as the court deems fit and proper.
[15] It was the stand of the defendant that all the encroachments outlined in the surveryor's report had been
removed on 8 February 1996 except the car park operation that would cease by the completion date.
[16] In regard to the intrusion of the wooden structure comprising the grocery store of approximately two feet,
it was the stand of the defendant that this two feet intrusion would be removed on or about 11 February
1996.
[17] The stand of the defendant was that it was ready and willing to deliver vacant possession of the land to
the plaintiff on the completion date.
[18] According to the defendant, the obligation to deliver vacant possession of the land to the plaintiff consti-
tuted a mere warranty and the breach of that warranty entitled the plaintiff to claim for damages and not to
delay or hold back payment of the balance of the purchase price to the defendant. And since time was of the
essence, and if the plaintiff failed to pay the balance of the price by 5pm on the completion date, the defend-
ant was entitled to terminate the contract pursuant to cl 11A of the SPA.

ANALYSIS
[19] The 'real nature' of signing the SPA must be ascertained in order to determine 'the true rights and inter-
ests of the parties'. This was the view of Wylie CJ (Borneo) in Tan Tien Choy v Kiaw Aik Hang Co Ltd [1966]
1 MLJ 102 (FC), at p 104:

The court must take into account the real nature of this agreement to determine the true rights and interests of the par-
ties.

[20] Abdul Malek Ahmad FCJ (later PCA) writing for the Federal Court in Sri Kelangkota-Rakan Engineering
JV Sdn Bhd & Anor v Arab-Malaysian Prima
4 MLJ 59 at 69
Realty Sdn Bhd & Ors [2003] 3 MLJ 257, quoted the following passage from the Court of Appeal at p 269E
as follows:
Parties to a transaction may disguise its true nature and purport by whatever means available to them. Yet, the court
will tear away the disguise and reveal to the world at large the true arrangement arrived at between the parties. It is im-
portant for reasons of public policy that the court is seised of this power. Were it not so, the law would be lending its aid
to enforce pretended and not real obligations.

[21] In the same vein, Gopal Sri Ram JCA (later FCJ) writing a separate judgment in Cipta Cermat Sdn Bhd
v Perbandaran Kemajuan Negeri Kedah [2007] 2 MLJ 746 (CA), at p 755, had this to say:
(18) It is a guideline to contractual interpretation that a court is not confined to look only at the formal contract. It is enti-
tled to take into account the circumstances surrounding the making of the contract, including the factual matrix that
forms the background to the contract (see Keng Huat Film Co Sdn Bhd v Makhanlal (Properties) Pte Ltd [1984] 1 MLJ
243). Essentially the approach is objective. The court is not concerned with the subjective intention of the parties. It is
their imputed intention that is relevant. Lord Clyde in Bank of Credit and Commerce International SA v Munawar Ali put
the approach in this way:
58

The knowledge reasonably available to them (the parties to contract) must include matters of law as
well as matters of fact. The problem is not resolved by asking the parties what they thought they in-
tended. It is the imputed intention of the parties that the court is concerned to ascertain. The parties
may well have never applied their minds to the particular eventuality which has subsequently arisen,
so that they may never in fact had any conscious intention in relation to that eventuality. It is an objec-
tive approach which is required and a solution should be found which is both reasonable and realistic.
The meaning of the agreement is to be discovered from the words which they have used read in the
context of the circumstances in which they made the agreement.

[22] The factual matrix narrated in the early part of this judgment showed that although the SPA was osten-
sibly for the sale and purchase of the entire share holding of Choo Hoe Sdn Bhd, the true nature of the
transaction was in reality for the sale and purchase of the land.
[23] It must be recalled to mind that the defendant wholly owned Choo Hoe Sdn Bhd and the latter is the reg-
istered owner of the land. One person by the name of Mr Lim Beng ('PW1') was interested in purchasing the
land for himself or his nominee. He initially via his company known as Lim Beng & Brothers Sdn Bhd offered
by letter dated 5 July 1995 (marked as exh 'P1' as seen at pp 692-693 of the appeal record at Jilid 4, Baha-
gian 'C') to purchase from the defendant the entire shareholding in Choo Hoe Sdn Bhd for RM16m so that
Lim Beng & Brothers Sdn Bhd will become the owner of the land.
4 MLJ 59 at 70
[24] For this purpose, Mr Lim Beng (PW1) paid RM160,000 being 1% of the purchase price on 26 July 1995
(marked as exh 'P4' as seen at p 696 of the appeal record at Jilid 4, Bahagian 'C') and he also caused a ca-
veat to be entered on the land.
[25] Now, for fear of repetition, the SPA was signed on 10 November 1995 and a further sum of
RM1,440,000 was paid by the plaintiff. This sum together with the sum of RM160,000 totalled RM1,600,000
and this formed 10% of the purchase price and it represented the 'deposit'.
[26] On the date when the SPA was signed, the solicitors for Lim Beng & Brothers Sdn Bhd informed the
defendant that the purchaser of the shares was to be substituted by a company known as Code Focus Sdn
Bhd -- the plaintiff herein. And this was also the finding of the High Court at p 18 of the appeal record at Jilid
1, Bahagian 'A' at para 11 which reads as follows:
It appears from the evidence and documents tendered that it was at this meeting that the defendant came to know that
Code Focus Sdn Bhd (the plaintiff) would now substitute for Lim Beng & Brothers as the purchaser. The SPA was
amended accordingly.

[27] The two conditions precedent in the SPA must be highlighted. Firstly, it concerned the approval of the
FIC within 75 days from the date of the SPA. Secondly, it concerned the approval of the defendant's share-
holders in an EGM for the sale of the shares to the plaintiff.
[28] At common law, bearing in mind that it has been introduced in Malaysia by cases such as Yeap Cheah
Neo v Ong Cheng Neo (1875) LR 6 PC 381; In the Goods of Abdullah (1835) 2 Ky Ec 8; Choa Choon Neoh
v Spottiswoode (1869) 1 Kyshe's Report 216; and s 3 of the Civil Law Act 1956 (Revised 1972), the con-
cept of a condition precedent agreement has been considered by the courts in England (Chitty on Contracts,
Vol 1, (30th Ed), General Principles at p 228; and Cheshire, Fifoot and Furmston's Law of Contract, Singa-
pore and Malaysian Edition, Andrew Phang Boon Leong at pp 248-253) and Malaysia. Two basic legal prop-
ositions in regard to a condition precedent agreement may be advanced:

(a) a condition precedent agreement for the sale and purchase of a piece of land is a valid agree-
ment. If the conditions are satisfied, then there is a sale of the piece of land. However, if the
conditions are not satisfied, then there is no valid sale of the land. This means that there is no
valid contract when the conditions precedent remain unfulfilled. And there is no sale or transfer
of the land by the parties. See Property & Bloodstock Ltd v Emerton, Bush And Another v
Property & Bloodstock Ltd And Others [1968] Ch 94 (CA); Perri v Coolangatta Investments Pty
Ltd (1982) 41
4 MLJ 59 at 71
59

ALR 441; Visu Sinnadurai, The Sale and Purchase of Real Property in Malaysia at pp 50-62;
and Anson's Law of Contract (28th Ed), at pp 116-118); and
(b) a condition precedent agreement for the sale and purchase of a piece of land is not a valid
agreement if the conditions precedent cannot be fulfilled by the parties. Put in another way,
there is no contract at all if the conditions precedent cannot be fulfilled by the parties (see Aber-
foyle Plantations Ltd v Khaw Bian Cheng [1960] 1 MLJ 47 (PC) which was followed by National
Land Finance Co-operative Society Ltd v Sharidal Sdn Bhd [1983] 2 MLJ 211 (FC)).
[29] In simple language, a condition precedent is a condition in the contract which must be performed before
a liability arises. And a condition precedent must be averred and proved by the plaintiff (Van Buskirk v Kuhns
(1913) 164 Cal 472).
[30] Now, on behalf of the defendant, it was argued that the conditions precedent were inapplicable and
superceded by the plaintiff's letter dated 10 November 1995 and marked as exh 'P5' as seen at p 718 of the
appeal record at Jilid 4, Bahagian 'C'. Inter alia, exh 'P5' stated that 'clauses 3.1, 3.2, 3.3, 3.4, 3.5 and 3.6 of
the sale and purchase agreement shall no longer apply'.
[31] For the plaintiff, it was argued that the plaintiff's letter in exh 'P5' was ineffective to waive compliance
with cll 3.1-3.6 of the SPA because on the date of the signing of the SPA, which was on 10 November 1995,
the plaintiff was not incorporated as yet and therefore the late Mr Lim Beng (PW1) or for that matter anyone
else could not have bound the plaintiff to this letter.
[32] It was also argued, on behalf of the plaintiff, that the plaintiff's letter in exh 'P5' purported to waive the
requirement that the defendant should obtain the approval of the defendant's shareholders in an EGM ap-
proving the sale of the shares to the plaintiff. And this, according to the plaintiff, was impermissible by virtue
of s 132C of the Companies Act 1965 which enacts as follows:
Approval of company required for disposal by directors of company's undertaking or properly

(1) Notwithstanding anything in the memorandum or articles of association of the company, the directors
shall not carry into effect any arrangement or transaction for --
(a) the acquisition of an undertaking or property of a substantial value; or
4 MLJ 59 at 72
(b) the disposal of a substantial portion of the company's undertaking or property,
unless the arrangement or transaction has been approved by the company in a general meet-
ing.

(2) The Court may, on the application of any member of the company, restrain the directors from entering
into a transaction in contravention of subsection (1).
(3) Where an arrangement or transaction is carried into effect in contravention of subsection (1), the ar-
rangement or transaction shall be void except in favour of any person dealing with the company for
valuable consideration and without actual notice of the contravention.
(4) This section shall not apply to proposals for disposing of the whole or substantially the whole of the
company's undertaking or property made by a receiver and manager of any part of the undertaking or
property of the company appointed under a power contained in any instrument or by a Court or a liq-
uidator of a company appointed in a voluntary winding up.
(5) Any director who contravenes the provision of this section shall be guilty of an offence against this Act.
Penalty: Imprisonment for five years or thirty thousand ringgit or both
(6) In this section, 'director' includes the chief executive officer, the chief operating officer, the chief finan-
cial controller or any other person primarily resposible for the operations or financial management of a
company, by whatever name called.

[33] In our judgment, the plaintiff's letter in exh 'P5' referred to as the 'side letter' by learned counsel on both
sides is void by virtue of s 132C of the Companies Act 1965 and the mandatory statutory requirement of
this section cannot be waived by agreement of the parties (Kimlin Housing Development Sdn Bhd (appointed
receiver and manager) (in liquidation) v Bank Bumiputra (M) Bhd & Ors [1997] 2 MLJ 805 (SC)).
[34] Waiver of legislative requirements by way of exh 'P5' will not be entertained by this court. In the same
vein, the Federal Court in Chase Perdana Bhd v Md Afendi bin Hamdan [2009] 6 MLJ 783, at pp 790-791 of
the report had this to say:
60

(17) Counsel for the appellant submitted that the Court of Appeal had erred in the above conclusion. It is his submis-
sion that parties to an agreement cannot waive statutory requirements. The MOF's approval is required under the Se-
curities Industries Act 1983 (then in force) and the 1987 Regulations whilst the FIC's condition is only a policy of the
government and not backed by any written law. I find that this is the correct statement of the law.
4 MLJ 59 at 73
(18) The law on this is quite established. Once it is enacted by legislation that parties are required to comply with any
provision, parties must comply with such provision. It is not for any person to waive legislative requirements by an
agreement unless the legislation allows it to be done. Legislation enacts laws which in its opinion are for the benefit of
the public. It is not for the courts, or anybody for that matter, to say that it need not be followed. This was clearly ex-
pressed in Surajmull Nargoremull v Triton Insurance Company Limited [1924] LR 52 IA 126 at p 128 where Lord
Sumner held as follows:

No court can enforce as valid that which competent enactments have declared shall not be valid, nor
is obedience to such an enactment a thing from which a court can be dispensed by the consent of the
parties, or by a failure to plead or to argue the point at the outset: Nixon v Albion Marine Insurance Co
[1867] LR 2 Ex 338. The enactment is prohibitory. It is not confined to affording a party a protection, of
which he may avail himself or not as he pleases. It is not framed solely for the protection of the reve-
nue and to be enforced solely at the instance of the revenue officials, nor is the prohibition limited to
cases for which a penalty is exigible. The expression of an agreement for sea-insurance, otherwise
than in a policy, is a thing forbidden in the public interest, and the statutory insistence on a policy is no
mere collateral requirement or a prescription of the proper way of making such an agreement To allow
the suit to proceed in defiance of s 7 would defeat the provisions of the law laid down therein.

(19) The leading Malaysian authority regarding the fulfillment of conditions in a contract is the decision of Lord Jenkins
in Aberfoyle Plantations Ltd v Khaw Bian Cheng [1960] 1 MLJ 47 where it was held by the Privy Council that parties
must fulfill the conditions stipulated in the agreement. It was thus made plain beyond argument that the fulfillment of a
condition precedent in a contract of sale is binding upon the parties. See also Waman Shriniwas Kini v Ratilal
Bhagwandas and Co AIR 1959 SC 689 and Dhanukdhari Singh & Anor v Nathima Sahu & Ors [1970] 11 Cal WN 848.

[35] The effect of the plaintiff's letter in exh 'P5' is this. That it is ineffective and void.
[36] And that cll 3.1-3.6 of the SPA are operative and the conditions precedent must be complied with. Bereft
of that compliance, the SPA becomes voidable at the option of the plaintiff and the plaintiff is entitled to the
refund of the 'deposit' and to obtain damages in the ordinary way.
[37] Now, preamble (1) to the SPA reads as follows:
Upon the execution of this Agreement, the vendor and/or the company shall serve notice on the tenant operating a car
park on the said property and as at the date of the completion of this Agreement, the vendor shall deliver vacant pos-
session of the said property to the purchaser.

4 MLJ 59 at 74
[38] The 'vendor' refers to the defendant while the 'purchaser' refers to the plaintiff. It is always ideal to refer
to the preamble of a contract. It assists in ascertaining the meaning to the contract. It is akin to referring to
the long title of an Act which would assist in ascertaining the meaning behind the law as stated by Griffith CJ
in Bowtell v Goldsbrough, Mort & Co Ltd (1906) 3 CLR 444 at p 451.
[39] The purchase price of the land, the 'deposit' and the balance of the purchase price have been alluded to
earlier. By virtue of cl 2.2(c) of the SPA, the balance of the purchase price was to be paid within three
months and that would be by 9 February 1996. The completion date too has been decided. While cl
8.1(21)(d) of the SPA stipulates that:
There are no squatters occupying any part of the said property and the vendor (referring to the defendant) shall at its
own costs and expense evict all such squatters and pay all compensation thereof and/or terminate the existing month-
to-month tenancy and forthwith deliver vacant possession of the said property to the company (referring to the plaintiff)
on the completion date.

[40] We will proceed further and make reference to the other clauses in the SPA. Clause 11A of the SPA
states that if the plaintiff does not pay the balance of the purchase price by 9 February 1996, the SPA shall
automatically terminate and the defendant shall absolutely forfeit the 'deposit'. And cl 12.11 of the SPA cate-
gorically states that 'time wherever mentioned shall be of the essence'.
61

[41] Now, the clauses in the SPA showed that the contractual obligations of the parties are reciprocal. On the
completion date, the plaintiff was to pay the balance of the purchase price while the defendant was to deliver
vacant possession of the land. It is said that their obligations are simultaneous.
[42] In our judgment, the reciprocal nature of the parties contractual obligations attract the provisions of ss
52- 53 and 55 of the Contracts Act 1950. Section 52 of the Contracts Act 1950 stipulates that when a
contract consists of reciprocal promises which are to be simultaneously performed, the promisor need not
perform his promise unless the promisee is ready and willing to perform his promise. For s 52 of the Con-
tracts Act 1950 to apply, the parties must have made promises that are to be performed simultaneously. See
Chee Ah Yew v Tuan Man, Tuan Lebeh, Haji Lateh bin Haji Salleh [1923] 5 FMS LR 36 (SC); Central Malay-
sia Development Co Ltd v Chin Pak Chin [1967] 2 MLJ 174; Kanwar Bhan-Sukha v Ganpat [1926] 94 IC 304;
Caltex Oil (Malaya) Ltd v Ho Lai Yoke & Anor [1964] 1 MLJ 76; Abdul Rahim bin Syed Mohd v
4 MLJ 59 at 75
Ramakrishnan Kandasamy (Wan Ahmad Azlan bin Wan Majid & Anor, interveners) and another action
[1996] 3 MLJ 385; and Shigenori Ono v Thong Foo Ching & Ors [1992] 1 MLJ 117.
[43] Section 53 of the Contracts Act 1950 states that where the order in which reciprocal promises are to
be performed is expressly fixed by the contract, they shall be performed in that order; and, where the order is
not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction
requires (Omar bin Mat Ziki v Mokhtar bin Amin [1996] 2 MLJ 687; Lim Kim Swee v Tan Meng San [1960] 1
MLJ 262 (CA); and Tan Meng San v Lim Kim Swee [1962] 1 MLJ 174 (CA)).
[44] In a situation where one party prevents the other from performing his promise, under s 54 of the Con-
tracts Act 1950, the said contract becomes voidable at the option of the party that is prevented from perform-
ing the contract. In such a situation, the party may rescind the contract under s 54 of the Contracts Act
1950 (Muralidhar Chatterjee v International Film Co Ltd AIR 1943 PC 34).
[45] The Privy Council in Keng Soon Finance Bhd v MK Retnam Holdings Sdn Bhd & Anor [1989] 1 MLJ
457; [1989] 4 PCC 757 (PC), held that s 55 of the Contracts Act 1950 imported the common law principles
of dependent and independent covenants into our country.
[46] Applying Illustration (a) to s 53 of the Contracts Act 1950 and the fact that the 'real nature' of the
transaction concerned a sale and purchase of the land, the obligation to deliver vacant possession must first
be performed before the obligation to pay the balance of the purchase price can be insisted upon.
[47] And by virtue of Illustration (a) to s 52 of the Contracts Act 1950, the plaintiff need not pay the balance
of the purchase price on the completion date because on that date, the defendant could not deliver vacant
possession of the land.
[48] Furthermore, by virtue of s 55 of the Contracts Act 1950, the plaintiff was entitled to withhold the pay-
ment of the balance of the purchase price until the encroachments had been cleared from the land (Cipta
Cermat Sdn Bhd v Perbandaran Kemajuan Negeri Kedah at pp 756-757, the judgment of Zulkefli Makinuddin
JCA (now Chief Judge Malaya)).
[49] It is germane, at this juncture, to refer to the speech of Gill J (as he then was) in the case of Central Ma-
laysia Development Co Ltd v Chin Pak Chin at p 176 of the report:
4 MLJ 59 at 76
To my mind, it is clear from a reading of the agreement as a whole that the reciprocal promises by the parties were to
be performed simultaneously. In the circumstances the contention on behalf of the plaintiff that section 52 of the Con-
tracts (Malay States) Ordinance, 1950 applies must prevail. Section 52 reads as follows:

When a contract consists of reciprocal promises to be simultaneously performed, no promisor need


perform his promise unless the promisee is ready and willing to perform his reciprocal promise.

In the present case the plaintiffs had the money so as to be able to perform his part of the bargain. They had deposited
their money with their solicitors and their solicitors had notified the defendant's solicitors accordingly and asked if the
defendant was in a position to perform his part of the bargain. As I have stated above, the defendant was in no position
to give vacant possession on 31st July, 1965, which on a reading of the agreement as a whole was clearly the date for
the completion of the sale, nor was he in a position to execute a valid transfer which could be registered under the pro-
visions of section 110 of the Land Code (F.M.S. Cap. 138). The fact that it was possible to register a transfer under the
62

provisions of section 232 of the Land Code was beside the point. The defendant had in fact twice asked for extension
of time to complete the sale. He was therefore clearly in breach of the contract and the plaintiffs had the right to repudi-
ate. As stated in Halsbury (3rd Edition) Volume 34, page 324, paragraph 550, the purchaser has the right to repudiate
the contract immediately upon the failure of the vendor to perform something which goes to the root of the contract.
The inability of the defendant to give vacant possession by itself was something which went to the root of the contract
in the present case. The plaintiffs therefore were perfectly entitled to repudiate the contract and they are clearly entitled
to have their money back.

[50] Proceeding ahead, it cannot be denied that there were various encroachments on the land. There was
also a car park operating on the land. The evidence also revealed that no notice was served to the car park
operator as required under preamble (1) to the SPA. However, there was evidence that the car park operator
was verbally notified to leave the land by the completion date.
[51] By letter dated 5 February 1996, the plaintiff's then solicitors wrote to the defendant's solicitors and in-
formed them that there were various encroachments on the land and that the defendant was not in a position
to give vacant possession on the completion date. The defendant was invited to extend time for completion
to a date when the defendant was in a position to deliver vacant possession.
[52] By letter dated 9 February 1996, the defendant's solicitors wrote to the plaintiff's then solicitors and stat-
ed that all the encroachments and intrusions have been removed by 8 February 1996 with the exception of
an intrusion of about two feet and this intrusion would be removed on 11 February 1996. In regard to the car
park operations, it was stated that it would cease by the completion date. This letter also stated that the re-
quirement that the defendant
4 MLJ 59 at 77
shall deliver vacant possession was only a warranty and not a condition of the SPA and therefore, if
breached, the plaintiff was only entitled to damages. This letter also stated that the balance of the purchase
price must be paid on the completion date, because time was of the essence.
[53] Events showed that the defendant did not deliver vacant possession on the completion date and the
balance of the purchase price was also not paid on the completion date.
[54] Clause 12.11 of the SPA stipulates that time is of the essence. That being the case, we will activate s
56 of the Contracts Act 1950. This section states that when time is of the essence and the contractual obli-
gation is not performed on the stipulated time frame, the contract is voidable at the option of the promisee.
[55] As alluded to earlier, the defendant's contractual obligation under the SPA was to deliver vacant pos-
session on the completion date because time was of the essence and an essential condition of the SPA. And
the failure of the defendant to deliver vacant possession of the land to the plaintiff on the completion date,
made the SPA voidable at the plaintiff's option. In similar vein, Abdul Malik bin Ishak J (now JCA) in Kang
Yoon Mook Xavier v Insun Development Sdn Bhd [1995] 2 MLJ 91, aptly said at pp 95-96 of the report:
Since time is the essence of the S & P agreement, it is appropriate, at this juncture, to refer to s 56(1) of the Contracts
Act 1950 which enacts, inter alia, that where time is the essence of the contract, failure to perform within the stipulated
time will entitle the injured party to avoid the contract. But the injured party has the right to elect not to avoid the con-
tract but to insist on performance and sue for damages. Lord Hailsham pointed out in Linggi Plantations Ltd v
Jagatheesan [1972] 1 MLJ 89 that s 56(1) of the Contracts Act 1950 should be read closely with s 65 of the Contracts
Act 1950 which provides for the consequences of rescission of a voidable contract. Lord Diplock in Eng Mee Yong &
Ors v Letchumanan [1979] 2 MLJ 212, in considering the effect of the failure to perform within a specified date, said
succinctly (at p 218):

... Time being of the essence of the provisions in the sale agreement for payment of the purchase
price, the failure of the caveator to pay on the due date was a breach of condition which the caveatees
were entitled to elect to treat as bringing the contract to an end ...

Halbury's Laws of England (4th Ed) para 538 at p 370 sets out the general rule that:

Where one party to a contract has committed a serious breach by a defective performance or by re-
pudiating his obligations under the contract, the innocent party will have the right to rescind the con-
tract; that is to treat himself as discharged from the obligation to tender further performance, and sue
for damages for any loss he may have suffered as a result of the breach. The breach
4 MLJ 59 at 78
63

itself does not terminate the contract, the innocent party having the right to elect to treat the contract
as continuing or to terminate it by rescission.

Mustill LJ in Lombard North Central Plc v Butterworth [1987] QB 527 at p 535; [1957] 1 All ER 267 at pp 271-272;
[1987] 2 WLR at p 13, in the same vein said this:

A stipulation that time is of the essence, in relation to a particular contractual term, denotes that timely
performance is a condition of the contract. The consequence is that delay in performance is treated as
going to the root of the contract, without regard to the magnitude of the breach ... It follows that where
a promisor fails to give timely performance of an obligation in respect of which time is expressly stated
to be of the essence, the injured party may elect to terminate and recover damages in respect of the
promisor's outstanding obligations, without regard to the magnitude of the breach.

Applying the above principles to the present case, as time was provided to be of the essence of the S & P agreement,
the stipulated time period within which the said house had to be delivered to the plaintiff became an essential condition
of the S & P agreement. The failure of the defendant to fulfil this condition would entitle the plaintiff to have an option of
treating the S & P agreement either: (a) as having been repudiated and sue for damages; or (b) as still continuing. The
plaintiff rightly exercised his option to proceed under (a).
In my judgment, the plaintiff is entitled to terminate the S & P agreement and obtain the 10% of the purchase price; this
course of action would place the plaintiff in a position like as though he did not enter into the S & P agreement at all. By
virtue of s 56 of the Contracts Act 1950, the S & P agreement is said to be voidable at the option of the plaintiff
(promisee), if the intention of the parties was to make time the essence of the S & P agreement, but if it were other-
wise, the plaintiff (promisee) is entitled to compensation from the defendant (promisor) for any loss occasioned to the
plaintiff by the defendant's failure to deliver the said house on or before 18 August 1988. In my judgment, time was the
essence of the contract here, and as such, the contract between the parties was voidable. Since on the due date, that
was on 18 August 1988, there was a failure on the defendant's part to deliver the said house, the plaintiff in law had the
option of either to continue with the contract or to rescind it (see Chye Fook & Anor v Teh Teng Seng Realty Sdn Bhd
[1989] 1 MLJ 308 and Tan Yang Long & Anor v Newacres Sdn Bhd [1992] 1 MLJ 289).

[56] Now, based on the evidence led by both parties before the High Court, there were uncertainties as to
whether the land was cleared of all encroachments and intrusions on the completion date. Furthermore, the
extent of the encroachments or intrusions cannot be ascertained. And whether the car park operations have
ceased on 9 February 1996 cannot be ascertained.
[57] But what was certain was this. That on 9 February 1996, there was at the very least an intrusion which
the defendant represented that it will be cleared on 11 February 1996. And that the car park operator said
that he would cease
4 MLJ 59 at 79
operation when required to do so and that would be on 9 February 1996. In short, to put it mildly, the car park
operator was still operating the car park on the land on 9 February 1996.
[58] The defendant was magnanimous and conceded that by looking at the four photographs placed together
at p 983 of the appeal record at Jilid 6 of Bahagian 'C', it showed profusions from the wooden structures and
materials that were simply left or placed on the land. In the same breath, the defendant said that the same
could be easily removed.
[59] The defendant also conceded at p 1004 of the appeal record at Jilid 6 of Bahagian 'C' that the car park
operators' shed on the land together with the car park entrance and the open shed beyond the entrance
could be pulled down or removed.
[60] At this juncture, it is instructive to refer to the decision of Lord Greene MR in Cumberland Consolidated
Holdings Ltd v Ireland [1946] 1 All ER 284 (CA), particularly at p 287, where His Lordship aptly said:
If there had been no abandonment, and the property in the rubbish had remained in the vendor after completion, there
would, in our opinion, have been a breach of the undertaking to give vacant possession. Subject to the rule de minimis,
a vendor who leaves property of his own on the premises on completion cannot, in our opinion, be said to give vacant
possession, since by doing so he is claiming a right to use the premises for his own purposes, sc, as a place of deposit
for his own goods inconsistent with the right which the purchaser has on completion to undisturbed enjoyment. Counsel
for the appellant endeavoured to escape from this difficulty by relying on the abandonment which he said necessarily
negatived any such claim by the appellant; once he abandoned the rubbish it could not be said that he was using the
property as a place for deposit for his chattels, since ex hypothesi the rubbish was no longer his. But if we are right in
our view that by abandoning the rubbish the appellant committed a breach of trust, can he be allowed to allege his own
breach of trust as a defence to the present action? To allow him to do so would lead to serious injustice, and in our
64

opinion, he is precluded from raising this point. In fact he is in a dilemma; for he must be claiming the right either to
keep property of his own on the premises, or to use the premises as a place on which to deposit rubbish which he de-
sires to abandon. In either case his action is inconsistent with the respondents' rights.
But there is, we think, a quite different ground upon which the judgment under appeal can be supported. The phrase
'vacant possession' is no doubt generally used in order to make it clear that what is being sold is not an interest in a re-
version. But it is not confined to this. Occupation by a person having no claim of right prevents the giving of 'vacant
possession', and it is the duty of the vendor to eject such a person before completion: see Royal Bristol Permanent So-
ciety v Bomash (1887) 35 Ch D 390 40 Digest 187 1562; 56 LJ Ch 840; 57 LT 179; and Engell v Fitch [1869] LR 4 QB
659, 40 Digest 263, 2284, 10 B&S 738, 38 LJQB 304. The reason for this, it appears to us, is that the right to actual un-
impeded physical enjoyment is
4 MLJ 59 at 80
comprised in the right to vacant possession. We cannot see why the existence of a physical impediment to such en-
joyment to which the purchaser does not expressly or impliedly consent to submit should stand in a different position to
an impediment caused by the presence of a trespasser. It is true that in each case the purchaser obtains the right to
possession in law, notwithstanding the presence of the impediment. But it appears to us that what he bargains for is not
merely the right in law, but the power in fact to exercise the right. When we speak of a physical impediment we do not
mean that any physical impediment will do. It must be an impediment which substantially prevents or interferes with the
enjoyment of the right of possession of a substantial part of the property. Such cases will be rare, and can only arise in
exceptional circumstances, and there would normally be (what there is not here) waiver or acceptance of the position
by the purchaser. The facts as found by the county court judge are of a very exceptional nature, since the presence of
the rubbish which the purchaser never bought and to whose presence he never submitted did in fact make it impossible
for him to use a substantial part of the property which he had bought.

[61] Likewise here, with two feet intrusions and wooden structures and materials still on the land on the
completion date, the defendant could not be said to have been able to deliver vacant possession to the plain-
tiff. It was for this reason that the plaintiff invited the defendant to extend time for completion but the defend-
ant refused.
[62] To compound the matter further, the car park operator was still operating on the land on the completion
date. This meant that the plaintiff would not be able to enjoy the right to possession of the land without inter-
ference from the car park operators. The defendant had a duty to eject the car park operator before the com-
pletion date.
[63] The averments in the statement of claim alluded to encroachments on the land and the particulars gave
the details of those encroachments. It is analogous to trespass. Abdul Malik bin Ishak JCA writing for the
Court of Appeal in Tsang Yee Kwan v Majlis Perbandaran Batu Pahat [2011] 8 CLJ 913 had this to say about
trespass at p 921 of the report:
(22) In legal jargon, an intrusion by one person upon land in the possession of another is said to be trespass. Accord-
ing to Coleridge CJ in Ellis v The Loftus Iron Company (1874) LR 10 CP at p 12 that, '... if the defendant place a part of
his foot on the plaintiff's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it.'
(23) And any invasion of land, however minute and whether it causes damage or not, is a trespass. Thus, it is trespass
to place anything on or in land in the possession of another.

4 MLJ 59 at 81
[64] Continuing on the same page and spilling over to p 922 of the report, His Lordship had this to say:
(26) It must be emphasised that in an action for trespass, it is not necessary that there should have been any actual
damage (Stoke-on-Trent City Council v W&J Wass Ltd [1988] 1 WLR 1406, CA, at 1411, per Nourse LJ). A trespass is
committed and it is so committed notwithstanding the trifling nature of the trespass. It is no defence to say in an action
for trespass that the trespass is of a trifling nature (Yelloly v Morley (1910) 27 TLR 20).

[65] Mr Lim Beng (PW1) testified and at pp 127-128 of the appeal record at Jilid 2 of Bahagian 'B', the evi-
dence revealed that the plaintiff was a cash buyer and was at all material times ready, willing and able to
complete the purchase by paying the balance of the purchase price. It is crystal clear that the plaintiff did not
need any financing and no loan was involved.
[66] The fundamental breach by the defendant which went to the root of the contract in not delivering vacant
possession of the land on the completion date coupled with the voidability of the SPA at the instance of the
plaintiff, must be construed against the defendant and, consequently, it was unconscionable to allow the de-
fendant to retain the deposit. See the decision of Syed Agil Barakbah FCJ writing for the Federal Court in the
65

case of K Umar Kandha Rajah v EL Magness [1985] 1 MLJ 116; [1984] 1 CLJ (Rep) 416, at p 420. In our
judgment, it is just and reasonable for the deposit to be refunded to the plaintiff.
[67] For these varied reasons, we unanimously allowed the appeal of the plaintiff with costs of RM50,000
here and below. The deposit of RM1,600,000 together with interest at the rate of 8%pa calculated from 10
February 1996 to the date of full settlement to be paid by the defendant to the plaintiff.
[68] We made a further order that the defendant to pay the plaintiff damages to be assessed by the registrar
of the High Court together with interest at the rate of 8%pa calculated from 10 February 1996 to the date of
full settlement or in lieu of assessment, the sum of RM3.2m as agreed liquidated damages, which was stipu-
lated in cl 11B of the SPA to be paid by the defendant to the plaintiff.

Appeal allowed with costs of RM50,000.

Reported by Kohila Nesan


66

Malayan Law Journal Reports/2012/Volume 3/Salmah bt Omar & Ors v Ahmad Rosli bin Aziz (administrator
of the estate of Osman bin Mohamed, deceased) & Anor - [2012] 3 MLJ 567 - 15 August 2011

14 pages

[2012] 3 MLJ 567

Salmah bt Omar & Ors v Ahmad Rosli bin Aziz (administrator of the estate of Osman
bin Mohamed, deceased) & Anor
HIGH COURT (PULAU PINANG)
ZAKARIA SAM J
CIVIL SUIT NO 22-318 OF 1998
15 August 2011

Civil Procedure -- Action -- Disposal of action without trial -- Disposal of case on point of law -- Whether doc-
trine of right of survivorship for property held under joint tenancy could be applied to Muslims -- Rules of the
High Court 1980 O 14A

Land Law -- Ownership -- Claim for -- Conveyance showed that deceased brothers held land as joint tenants
-- Whether doctrine of right of survivorship for property held under joint tenancy applied to Muslims -- Wheth-
er joint tenancy recognised in Islamic law -- Whether right of survivorship in conflict with Islamic law --
Whether right of survivorship should be applied with modifications -- Civil Law Act 1956 s 6

Osman bin Mohamed ('Osman') and Omar bin Mohamed ('Omar'), two Malay Muslim brothers acquired a
piece of land situated in Pulau Pinang ('the land'). The conveyance drawn up by the lawyer who acted for the
brothers indicated that Osman and Omar held the land as joint tenants. On 1 March 1960, Omar died intes-
tate leaving six children and a wife as beneficiaries to his estate under Islamic law. On 22 February 1962,
Osman died with no issue but leaving his wife and his siblings as his beneficiaries under Islamic law. An en-
try made in 1974 in the folio of the interim register showed that Osman was the sole owner of the land. The
register also reflected that on 14 February 1976, when Siti Zauyah bt Mohamad ('Siti') was granted letters of
administration to the estate of Osman, the land was transferred to her name as administrator. Upon Siti's
death, the first defendant was granted letters of administration and he then held the land as administrator.
Thereafter the first defendant entered into a sale and purchase agreement to sell the land for a consideration
of RM3,583,946.08. The plaintiffs, Omar's six children, claimed that joint tenancy was not recognised in Is-
lamic law and that Osman and Omar held the land as joint owners with equal shares. The plaintiffs then insti-
tuted the present action wherein they sought, inter alia, a declaration that Omar and Osman were registered
owners of the land and an order for the land titles register to be rectified so as to reflect that Osman and
Omar were joint owners with equal shares in the land. The first defendant argued that since Osman and
Omar held the land as joint tenants the right of survivorship would apply such that when Omar died Osman
automatically became the owner of the property, as
3 MLJ 567 at 568
reflected in the interim register. The parties agreed that the sole issue for consideration in this case was the
issue of law as to whether the doctrine of right of survivorship for property held under joint tenancy applied to
Muslims.

Held, allowing the plaintiffs' claim with costs to be taxed:

(1) In Islam, ownership could not be uncertain, limited in point of time or not heritable. A Muslim did
not have the legal capacity to impose a condition that limited ownership on an uncertain event
and this was a violation of Quranic injunction and the hadith. The doctrine of the right of survi-
vorship could not be applied to Muslim inhabitants in the straits settlement where their personal
67

law did not allow for creation of ownership limited in time. It would have been unfair that the is-
sues of Omar as his Quranic heirs should be deprived of their legitimate right to his share of the
property all because of the alien practice of joint tenancy. Further, the proviso to s 6 of the Civil
Law Act 1956 also clearly indicated that the principle of the right of survivorship would only be
applied with modifications as were necessary to prevent it from operating unjustly and oppres-
sively (see paras 13, 19-21 & 23).
(2) There was also an element of chance in joint tenancy in that it was a gamble as to which owner
predeceased the others before the final survivor became the sole owner. This was the basis of
gambling and it was prohibited in Islam (see para 37).
(3) In Shariah, a Muslim's wealth, upon his demise should be distributed among the heirs accord-
ing to the laws of Allah SWT ie the faraid. Be that as it may, since Omar had signed the con-
veyance, this court found that Omar had bequeathed one-third of his property to Osman. As
such, it was ordered that two-thirds of Osman's shares in the land be returned to Omar's heirs
according to faraid (see paras 40-41).

Osman bin Mohamed ('Osman') dan Omar bin Mohamed ('Omar'), dua orang adik beradik Melayu beragama
Islam memperoleh sebidang tanah yang terletak di Pulau Pinang ('tanah tersebut'). Pemindahhakkan dibuat
oleh peguam yang bertindak bagi pihak adik-beradik tersebut menyatakan bahawa Osman dan Omar me-
megang tanah tersebut sebagai penyewa bersama. Pada 1 Mac 1960, Omar meninggal dunia tanpa wasiat
meninggalkan enam orang anak dan seorang isteri sebagai benefisiari kepada harta pusakanya di bawah
undang-undang Islam. Pada 22 Februari 1962, Osman meninggal dunia tanpa anak tetapi meninggalkan
isterinya dan adik beradiknya sebagai benefisiari di bawah undang-undang Islam. Satu pemasukan dibuat
pada 1974 di dalam folio daftar sementara menunjukkan bahawa Osman merupakan pemilik tunggal tanah
tersebut. Daftar tersebut juga menunjukkan bahawa pada 14 Februari 1976, apabila Siti Zauyah bt Moham-
ad ('Siti') diberikan
3 MLJ 567 at 569
surat-surat pentadbiran kepada harta pusaka Osman, tanah tersebut telah dipindah milik kepada namanya
sebagai pentadbir. Selepas kematian Siti, defendan pertama diberikan surat-surat pentadbiran dan dia
kemudian memegang tanah tersebut sebagai pentadbir. Kemudian defendan pertama memasuki perjanjian
jual beli untuk menjual tanah tersebut bagi balasan sebanyak RM3,583,946.08. Plaintif-plaintif, enam orang
anak Omar, menuntut bahawa penyewaan bersama tidak diakui di bawah undang-undang Islam dan baha-
wa Osman dan Omar memegang tanah tersebut sebagai pemilik bersama dengan bahagian sama rata.
Plaintif-plaintif kemudian memulakan tindakan ini di mana mereka memohon, antara lain, satu deklarasi ba-
hawa Omar dan Osman adalah pemilik berdaftar tanah tersebut dan satu perintah untuk daftar hak milik
tanah dibetulkan untuk menunjukkan bahawa Osman dan Omar adalah pemilik bersama dengan bahagian
sama rata di dalam tanah tersebut. Defendan pertama menghujah bahawa oleh sebab Osman dan Omar
memegang tanah tersebut sebagai penyewa bersama, hak kemandirian (right of survivorship) akan berap-
likasi di mana apabila Omar meninggal dunia Osman secara automatik menjadi pemilik tanah tersebut, sep-
erti yang terdapat di dalam daftar sementara. Pihak-pihak bersetuju bahawa satu-satunya isu untuk diper-
timbangkan di dalam kes ini adalah isu undang-undang, sama ada doktrin hak kemandirian bagi hartanah
yang dipegang di bawah penyewaan bersama beraplikasi kepada orang Islam.

Diputuskan, membenarkan tuntutan plaintif-plaintif dengan kos untuk ditetapkan:

(1) Dalam Islam, hak milik tidak boleh menjadi tidak tentu, terhad kepada tempoh atau tidak boleh
diwarisi. Seorang yang beragama Islam tidak mempunyai kapasiti dari segi undang-undang un-
tuk meletakkan syarat bahawa hak milik terhad bagi kejadian yang tidak tertentu dan ini adalah
percanggahan injunksi al-Quran dan hadith. Doktrin hak kemandirian tidak boleh beraplikasi
kepada orang Islam di negeri-negeri selat di mana undang-undang peribadi mereka tidak
membenarkan pengwujudan pemilikan yang terhad tempohnya. Ia akan menjadi tidak adil bagi
waris-waris Omar sebagai waris dalam al-Quran akan kehilangan hak sah mereka kepada ba-
hagian hartanah hanya kerana amalan tidak biasa penyewaan bersama. Selanjutnya, proviso
kepada s 6 Akta Undang-Undang Sivil 1956 secara jelas menunjukkan bahawa prinsip hak
68

kemandirian hanya akan beraplikasi dengan perubahan setakat yang perlu untuk mengha-
langnya daripada bertindak secara tidak adil dan menindas (lihat perenggan 13, 19-21 & 23).
(2) Terdapat juga unsur nasib dalam penyewaan bersama yang merupakan perjudian di mana
pemilik yang meninggal dunia sebelum yang satu lagi, orang terakhir yang masih hidup men-
jadi pemilik mutlak. Ini adalah asas perjudian dan ia adalah dilarang dalam Islam (lihat pereng-
gan 33).
3 MLJ 567 at 570
(3) Dalam Syariah, harta benda seorang Islam, selepas kematiannya sepatutnya diagihkan antara
waris-warisnya menurut undang-undang Allah SWT iaitu faraid. Walau bagaimanapun, oleh
sebab Omar telah menandatangani pemindahhakkan, mahkamah ini mendapati Omar telah
mewariskan satu pertiga hartanahnya kepada Osman. Oleh demikian, diperintahkan bahawa
dua pertiga daripada bahagian Osman di dalam tanah tersebut dipulangkan kepada waris-
waris Omar menurut faraid (lihat perenggan 40-41).

Notes
For cases on claim for ownership, see 8(2) Mallal's Digest (4th Ed, 2011 Reissue) paras 3889-3897.
For cases on disposal of action without trial, see 2(1) Mallal's Digest(4th Ed, 2010 Reissue) paras 139-168.

Cases referred to
Azizunissa Abdurrahman Kadri v Jamila Abdul Hussein Shaikh (deceased by her LRs) & Ors 2007 NOC
2238 (Bom); 2007 (4) Bom CR 769, HC (refd)
Haji Taib v Ismail [1971] 2 MLJ 36 (refd)
Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346, PC (refd)
Leonard v Nachiappa Chetty (1923) 4 FMSLR 265, HC (refd)
Malayan Banking Bhd v Ya'kup bin Oje & Anor [2007] 6 MLJ 389; [2007] 5 CLJ 311, HC (refd)
Mohamed Jusab Abdulla v Fatamabai Jusab Abdulla AIR (35) 1948 Bombay 53, SC (refd)
Sardar Nawazish Ali Khan v Sardar Ali Raza Khan 1948 75 LR IA 62, SC (refd)
Shafeeg bin Salim Talib and another v Fatimah Bte Abud bin Talib and others [2010] 2 SLR 1123; [2010]
SGCA 11, CA (refd)
TM Feroze Khan & Ors v Meera Hussain bin TM Mohamed Mydin [2006] 5 MLJ 217; [2006] 5 AMR 31, FC
(distd)
Tan Chew Hoe Neo v Chee Swee Cheng & Ors [1926] SSLR 60 (refd)
Yeap Cheah Neo and others v Ong Cheng Neo (1875) LR 6 PC 381 (refd)

Legislation referred to
Civil Law Act 1956 ss 3, 6
Land Titles Act 1994 [SG]
National Land Code
Rules of the High Court 1980 O 14A

Fathima bt Mohd Idris (Idris & Associates) for the plaintiff.

Ajmer Singh Sandhu (Joshua Narendran with him) (Ajmer, Sandhu & Ong) for the first defendant.

Mohd Ilmani bin Ahmad (Senior Federal Counsel, Penang State Legal Advisor Office) for the second de-
fendant.
69

3 MLJ 567 at 571

Zakaria Sam J:

THE CLAIM
[1] The plaintiff took out this suit for the following prayers:

(a) a declaration that the entry in the folio of the interim register showing that Osman bin Mohamed
as the registered owner of the land contained in Geran Mukim 1168 and known as Lot 7576,
Mukim 12, Daerah Barat Daya, Permatang Damar Laut, Pulau Pinang ('the said land') is null
and void;
(b) a declaration that Omar bin Mohamed and Osman bin Mohamed are the registered owners of
the said land; and
(c) to rectify the registrar to register Osman bin Mohamed ('deceased') and Omar bin Mohamed
('deceased') as joint owners with equal shares in the said land and to cancel the entries of Zau-
yah bt Mohamed and Ahmad Rosli bin Aziz as administrators pursuant to Presentation No
204A/98 Vol 2 Vol 60 in the Penang Land Office records in respect of the said land.

AGREED FACTS
[2] Parties have agreed to the following facts:

(a) by an indenture dated 23 April 1954 Osman bin Mohamed ('Osman') and his elder brother
Omar bin Mohamed ('Omar') in consideration of the sum of RM1,700 paid to the vendors ac-
quired all the land known as Lot 167 (2) Mukim 12, Daerah Barat Daya, Pulau Pinang com-
prised in Geran No 2416;
(b) the replacement title for the said land is Lot No 7576, Mukim 12 Permatang Damar Laut, Dae-
rah Barat Daya, Pulau Pinang comprised in Geran Mukim No GM 1168;
(c) both Osman and Omar were Malay Muslims of the Shafie mazhab;
(d) Omar died intestate aged 51 years on 1 March 1960 leaving behind seven children who are the
plaintiffs, and a wife as beneficiaries to his estate under Islamic law. At the time of his death the
plaintiffs were aged 21, 19, 14, 11, nine, seven, and six years old respectively;
(e) Osman died intestate aged 45 years on 22 February 1962 leaving behind his siblings and a
wife as his beneficiaries under Islamic law namely Bakar bin Mohamed, Nah bt Mohamed,
Aishah bt Mohamed, Sun bt
3 MLJ 567 at 572
Mohamed, Itam bt Mohamed, Siti Zauyah bt Mohamed, Che Yah bt Mohamed and Siti Rokiah
bt Mohamed;
(f) Osman and his wife did not have any children;
(g) in around 1974 the Director of Land Titles Penang entered Osman's name as the sole owner of
the said land in the interim register;
(h) on 14 February 1976 letters of administration to the estate of Osman was given to Zauyah bt
Mohamed and the said land was transferred to her name as administrator on 10 February
1977;
(i) after Siti Zauyah bt Mohamed's death, letters of administration was granted to the first defend-
ant and he held the said land as the administrator;
(j) by a sale and purchase agreement dated 24 December 1996, the first defendant as the admin-
istrator sold the said land to Zantalite Enterprise (M) Sdn Bhd for a consideration of
RM3,583,946.08;
(k) on 9 June 1997 and 30 May 1998 the sixth and seventh plaintiff had filed private caveats
against the said land. On 27 May 1998 the plaintiffs instituted this suit; and
(l) on 19 January 2000 this High Court ordered that the balance consideration for Lot 7575 Geran
Mukim No 1168 for the sum of RM3,225,551.47 is to be kept by Messrs Ajmer Singh Sandhu &
Ong as stakeholders until the final disposal of this suit.
70

AGREED ISSUE
[3] Parties have agreed for the court to decide under O 14A of the Rules of the High Court 1980 on the
following issue of law:

Whether the doctrine of right of survivorship under English common law for property held under joint tenancy applies in
this case.

THE PLAINTIFF'S SUBMISSION


[4] The plaintiffs' submissions are as follows:

(a) joint tenancy is not recognised in Islamic law since ownership is heritable and unrestricted in
point of time;
(b) English common law was introduced with the provisio that it would only be applicable as long
as it does not bring about injustice or oppression; and
(c) equity vies joint tenancy as odious and will find ways to treat it as a
3 MLJ 567 at 573
tenancy in common.

THE DEFENDANT'S SUBMISSION


[5] The defendant's submissions are as follows:

(a) The principle of joint tenancy is embodied in various Ordinances and the National Land Code
(Penang and Malacca Titles) Act 1963 and hence that is the authority for joint tenancy and not
the common law;
(b) statue law overrides Islamic law and they rely on the case of Shafeeg bin Salim Talib and An-
other v Fatimah Bte Abud Talib and Others [2010] SGCA 11; and
(c) joint tenancy is not in conflict with Islamic law.

WHAT IS JOINT TENANCY


[6] Joint tenancy is a form of vesting title to property owned by two or more persons, in equal interest, sub-
ject to the right of survivorship in the surviving joint tenant(s). Title must have been acquired at the same
time, by the same conveyance, and the document must expressly declare the intention to create joint tenan-
cy estate.
[7] The right of survivorship means that when one of the co-owners dies, the surviving co-owner automatical-
ly becomes the owner of the asset regardless of the terms of the deceased party's will. This implies that with
the right of survivorship, any property owned by the deceased will be passed to the survivor by virtue of the
way the property is owned and not under the terms of a will.

EQUITY AND JOINT TENANCY


[8] Equity disapproves joint tenancy as equity is more concerned to achieve fairness. Megarry and Wade in
their book The Law of Real Property (5th Ed), 1984 explains at p 419. 'The right of survivorship of a joint ten-
ancy is often unsuitable for beneficial owners because it introduces an element of chance'. Equity sought to
avoid 'the gamble of the tontine' that comes with the doctrine of survivorship.
[9] In the case of Tan Chew Hoe Neo v Chee Swee Cheng & Ors [1926] SSLR 60 at p 97 Reay J, explained
how equity viewed joint tenancy:

I cannot refrain from some comment, however short and inadequate, on the drawbacks of the English common law rule
regarding joint tenancies. this has its roots in the feudal system of land tenure, and the courts of equity have from very
early days in case after case attempted to relieve unfortunate sufferers from its unfair
3 MLJ 567 at 574
71

results. 'A joint tenancy', said Lord Cowper, 'is a thing odious in 'Equity', and if it is odious in England, what term is to be
applied to it here in dealing with asiatics? A solicitor in this country who advises or assists a client to become a joint
tenant, except as bare trustee, is accepting a very grave responsibility.

ISLAMIC LAW ON JOINT TENANCY AND THE RIGHT OF SURVIVORSHIP


[10] There is no joint tenancy in Islamic law, which considers ownership as a group of rights which by its def-
inition is heritable and unrestricted in point of time. The notion of limited duration cannot be attached to own-
ership. Under Islamic law, the owner of property cannot limit his ownership to the duration of his life. Such a
condition would be void, and the property would go to his heirs upon his death -- see Muslim Law, The Per-
sonal Law of Muslims In India And Pakistan by Faiz Badruddin Tyabji, 1968 in (4th Ed), at pp 448-450.
[11] On the question of restricting ownership by reference to time, the Privy Council in Sardar Nawazish Ali
Khan v Sardar Ali Raza Khan 1948 75 LR IA 62 at p 77 explained:

In general, Muslim law draws no distinction between real and personal property, and their Lordships know of no author-
itative work on Muslim law ... and no decision of this Board which affirms that Muslim law recognises the splitting up of
ownership of land into estates, distinguished in point of quality like legal and equitable estates, or in point of duration
like estate in fee simple, in tail, for life, or in remainder. What Muslim law does recognise and insist on, is the distinction
between the corpus of property itself (ayn) and the usufruct in the property (manafi). Over the corpus of property the
law recognises only absolute dominion, heritable, and unrestricted in point of time; and where a gift of the corpus seeks
to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests lim-
ited in point of time can be created in the usufruct of the property, and the dominion over the corpus takes effect sub-
ject to any such limited interests.

[12] According to Mulla Principles of Mahomedan Law by M Hidayatullah (19th Ed), 1990 at p 26.
There is no joint tenancy in Mahomedan law and the heirs are only tenants-in-common.

APPLICATION OF LAW TO THE FACTS HERE


[13] In this case the conveyance was executed by Omar and Osman, two Muslim brothers. They are bound
by the teachings of the al-Quran and hadith. In Islam ownership cannot be uncertain, limited in point of time
and not
3 MLJ 567 at 575
heritable. A Muslim does not have the legal capacity to impose condition limiting ownership on an uncertain
event, this is a violation of Quranic injunction and the hadith.
[14] The conveyance was drawn up by a lawyer trained in English law. Nothing on the face of the document
indicates that the effect of joint tenancy was explained to Omar and Osman. There was no evidence that
both of them could read or understand English. Neither was there evidence that the said documents were
explained to them in Bahasa Malaysia, the language they both understand.
[15] Once again I turn to Reay JC who has taken pains in reminding practitioners on the need to understand
local conditions when applying English law. In Leonard v Nachiappa Chetty (1923) 4 FMSLR 265 at pp 267-
268 the learned judge said:

Counsel for the plaintiff relied chiefly on the English law. Counsel for the defendant not only argued entirely on English
law, but stated that he did not know what the local procedure was. This places me in a difficult position. A whole chap-
ter of the Civil Procedure Code is devoted to the subject ... and that is the law which I am bound to apply. Before reli-
ance can be placed on English decisions, particularly decisions on points of procedure, it is necessary in the first in-
stance to examine carefully our local law and to ascertain what it is and in what respect it resembles or differs from the
English law. This seems a self-evident proposition, but it is nevertheless too often overlooked by counsel.

RECEPTION OF ENGLISH LAW


[16] Principles of common law and equity were formally introduced in Penang by the first charter of justice in
1807 with the proviso that 'as far as local circumstances will admit'. The British did not apply English law in
72

this country without modification, they stressed 'the need to respect the customary law of the non-British
Asian inhabitants who professing different religions, and using and having different religions and using and
having different manners, habits, customs, and persuasion, had settled there' -- see Judith Sihombing's Na-
tional Land Code A Commentary at p 3. See also Yeap Cheah Neo and others v Ong Cheng Neo (1875) LR
6 PC 381 at p 392.
[17] English principles were not used when they would not be applicable to the local inhabitants and would
cause unfairness and injustice. As observed by Lord Russell of Killowen in Khoo Hooi Leong v Khoo Chong
Yeok [1930] AC 346 at p 355, that:

3 MLJ 567 at 576


The modifications of the law of England which obtain in the colony in the application of that law to the various alien rac-
es established there, arise from the necessity of preventing the injustice or oppression which would ensue if that law
were applied to alien races unmodified. That was the view expressed by Sir Peter Maxwell CJ in Choa Choon Neo v
Spottiswoode; and this Board in Yeap Cheah Neo v Ong Cheng Neo, stated that in Sir Peter Maxwell's judgment. 'The
rules of English law and the degree in which, in cases of this kind, regard should be had to the habits and usages of the
various people residing in the colony are correctly stated'.

[18] This principle was given statutory force in the proviso to s 3 of the Civil Law Act 1956 which provides
that:
The said common law, rules of equity and statutes of general application shall be applied so far only as the circum-
stances of the States of Malaysia and their respective inhabitants permit and subject to such qualification as local cir-
cumstances render necessary.

[19] In the light of this, I am persuaded to hold that the doctrine of right of survivorship cannot be applied to
Muslim inhabitants in the straits settlement where their personal law does not allow for creation of ownership
limited in time. Omar and Osman would not have had the legal capacity to impose such a condition limiting
ownership on an uncertain event.
[20] It would have been very unfair that the issues of Omar as his Quranic heirs be deprived of their legiti-
mate right to his share of the property all because of the alien practice of joint tenancy.
[21] My attention is also drawn to the proviso to s 6 of the Civil Law Ordinance No IV of 1878 and s 6 of the
Civil Law Ordinance No VIII of 1909 applicable in the straits settlement which reads:
Provided that nothing herein contained shall be taken to introduce into this Colony any part of the law of England relat-
ing to the tenure or conveyance, or assurance of, or succession to, any land or other immoveable property, or any es-
tate, right or interest thereon.

[22] This same proviso is now found in s 6 of the Civil Law Act 1956. In Haji Taib v Ismail [1971] 2 MLJ 36,
Syed Agil Barakbah J (as he then was) expressed that (at p 38):
The provision of s 6 clearly prohibits the introduction into the Federation or any States comprised therein of any part of
the law of England relating to tenure. Tenure means the mode of holding or occupying land or the manner of posses-
sion.

[23] This to me, clearly indicates that the principle of right of survivorship
3 MLJ 567 at 577
would only be applied over here with modifications as are necessary toprevent it from operating unjustly and
oppressively.

THE DEFENDANT'S CONTENTION


[24] The first defendant contends that the principle of right of survivorship has statutory force and is not
based on common law and that statute will override Islamic law.
[25] But it has to be pointed out that parties have agreed that the point for determination in this case is
'whether the doctrine of right of survivorship under English common law for property held under joint tenancy
applies in this case', and that is what I have to decide upon.
73

[26] The first defendant has named various ordinances that is, the Boundaries Ordinance 1884, the Crown
Lands Ordinance No II 1886, the Conveyancing Ordinance No IV of 1886, the Registration of Deeds Ordi-
nance No XIII of 1886, Conveyancing and Law of Property Ordinance 1886 and the National Land Code
(Penang and Malacca Titles) Act 1963 (which is also being relied by the second defendant).
[27] However all these ordinances and the act they have quoted dealt with registration of deeds, conveyanc-
ing, survey etc they did not codify the law on joint tenancy.
[28] This was not the case in Shafeeg's case relied upon by the first defendant.
[29] In Shafeeg's case the conveyance was registered under the Land Titles Act 1994 of Singapore, which
incorporated the English doctrine of survivorship. It provides for change of ownership when one tenant pre-
deceases the other. There is no such equivalent in our statutory law for this.
[30] The first defendant have also referred to the case of TM Feroze Khan & Ors v Meera Hussain bin TM
Mohamed Mydin [2006] 5 MLJ 217; [2006] 5 AMR 31. However this case can be distinguished from the pre-
sent case. In TM Feroze Khan the National Land Code had provisions on trust whereas the case at hand is
about joint tenancy which is not recognised under the Land Code except in the case of trustees.
[31] One has to bear in mind that in the case of TM Feroze the Court of Appeal had found that there was
properly constituted hibah there.
[32] Now, the first defendant have referred to two Indian cases, ie Mohamed
3 MLJ 567 at 578
Jusab Abdulla v Fatamabai Jusab Abdulla AIR (35) 1948 Bombay 53 and Azizunissa Abdurrahman Kadri v
Jamila Abdul Hussein Shaikh (deceased by her LRs) & Ors 2007 NOC 2238 (Bom); 2007 (4) Bom LR 769 to
support their contention that joint tenancy is not in conflict with Islamic law.
[33] Mohamed Jusab was followed in Azizunissa's case. In Mohamed Jusab's case the court had rhetorically
asked 'is there anything in Mohamedan law which is repugnant to the creation of a grant of joint tenancy if
the parties so desire it?' The court then answered saying it could find nothing repugnant but had failed to
consider the gharar (uncertainty) element in joint tenancy. The court failed to consider the element of chance
in joint tenancy where it is a gamble as to which owner predeceases the other's before the final survivor be-
comes the sole owner. This is the basis of gambling and it is prohibited in Islam. The court also failed to con-
sider that the shariah only recognise absolute dominion over corpus of the property, heritable, and unre-
stricted in point of time. This would be contrary to joint tenancy since the dominion is of limited duration and a
person cannot will his right to the property under a will.
[34] As explained by Hamid Sultan Abu Backer JC, in Malayan Banking Bhd v Ya'kup Oje & Anor [2007] 6
MLJ 389 at p 400; [2007] 5 CLJ 311 at p 325:

Islamic law of commercial transaction fundamentally is rooted on the premise of total eradication ofriba and gharar (un-
certainty).

[35] This aspect of Islamic law was not considered in Jusab's case.
[36] The prohibition against joint tenancy is also clearly explained in the article Joint Tenancy with the Right
of Survivorship and Syariah: A Brief Discussion by the Islamic Banking and Finance Institute Malaysia's, The
4E Journal January 2006 (at pp 47-48) where it was explained as follows:
The joint tenancy is the concept of joint ownership of uncertainty itself since the fundamental nature of the ownership of
joint tenants' property is communal ownership. Each joint tenant has an interest in the whole but does not enjoy an ex-
clusive right to any part thereof. In other words, the interest of joint tenants is unspecified. This is the strongest reason
for its prohibition, since as what was elaborated before, the essence of joint tenancy is unity of ownership.
From the aforementioned feature of joint tenancy, it is clear that the main criterion for condemnation of the contract of
joint tenancy under syariah is the involvement of gharar. The occurrence of gharar in the contract of joint tenancy is
due to the Jahalah element. From fiqh perspective, the word jahalah is used to connote lack of knowledge. This implies
that contracting under conditions of uncertainty is not permissible.
3 MLJ 567 at 579
74

The contract of conventional joint tenancy involves the jahalah element in the sense that no such tenant can claim that
he or she has a definite portion of share,say one-third or one-fourth in the asset. There is no clear indication in the
agreement of who owns how much of the property ...
Another concern with the concept of joint tenancy from the syariah point of view is the issue of the survivorship princi-
ple. Based on the current practice (which is based on common law), in the event of death of one joint tenant, the whole
property will immediately be vested to the surviving tenants ...
In joint tenancy, according to the rules of inheritance, the estate and wealth of the deceased will be distributed amongst
the heirs, whereas in syariah, a Muslim's wealth, upon deceased, should be distributed among the heirs according to
the laws of Allah S.W.T. It is obligatory for every Muslim to follow the laws ofmirath (inheritance) or wasiyyah (will). To
give all the leftover wealth to the particular surviving heirs without the proper and full consent of all the remaining heirs
is not permitted.
The same applies to case of wassiyyah, it is allowed if one wishes to make a wasiyyah for a non-relative, or charity, but
only up to one-third of one's total wealth. The remaining two-third is to be distributed amongst the heirs according to the
fixed portion as prescribed by Allah S.W.T. If one does not make a bequest, then all of the estate will be divided among
the surviving heirs. As it readily apparent from a brief discussion of the syariah standpoints towards the conventional
joint tenancy with the right of survivorship described above, the current practice of joint ownership does not lend itself
well to Islamic principles.

[37] There is an also element of chance in joint tenancy where it is a gamble as to which owner predecease
the others before the final survivor becomes the sole owner. This is the basis of gambling and it is prohibited
in Islam.
[38] As acknowledged in Sardar Nawazish's case at p 50, the Prophet was not in favour of unlimited testa-
mentary power. In our case, the predicament of Omar's children is best reflected by the advice of the Prophet
to his follower: 'You may leave a third of your property by a will but third part, to be disposed of by will, is a
great portion; and it is better you should leave your heirs rich than in a state of poverty, which might oblige
them to beg of others'. According to another of his sayings: 'God has allotted to every heir his particular right'.
[39] The decision in Sardar Nawazish's case was given by the Privy Council where the confusion about the
principle of ownership of property was clarified whereby it recognised that 'Muslim law admits only ownership
unlimited in duration, but recognises interests of limited duration in the use of property'. Unfortunately this
authority was not referred to in Jusab's case and I find it of no persuasive value.
[40] In Shariah, a Muslim's wealth, upon his demise, should be distributed
3 MLJ 567 at 580
among the heirs according to the laws of Allah SWT ie the faraid. It is obligatory for every Muslim to follow
the laws of inheritance or will. Even to give all the leftover wealth to the particular heir without the proper and
full consent of all the remaining heirs is not permitted.

CONCLUSION
[41] Be that as it may, since Omar had signed the conveyance, I take it that Omar had bequested one third
of his property to Osman. For that reason I ordered two third of his shares in the land to be returned to
Omar's heirs according to faraid.
[42] For the above reasons I allowed the plaintiffs' claim accordingly with costs to be taxed unless agreed.

Plaintiffs' claim allowed with costs to be taxed.

Reported by Kohila Nesan


75

Malayan Law Journal Reports/1983/Volume 1b/SITI BINTI YATIM LWN MOHAMED NOR BIN BUJALI
[DIALIHBAHASA DARI 6 FMSLR 135 OLEH ABDULLAH BIN ABU BAKAR, BA (AL-AZHAR), LL M
(SHEFFIELD), PENSYARAH DI FAKULTI UNDANG-UNDANG, UNIVERSITI MALAYA] - [1983] 1b MLJ 34 -
16 May 1928

1 page

[1983] 1b MLJ 34

SITI BINTI YATIM LWN MOHAMED NOR BIN BUJALI [DIALIHBAHASA DARI 6 FMSLR
135 OLEH ABDULLAH BIN ABU BAKAR, BA (AL-AZHAR), LL M (SHEFFIELD), PEN-
SYARAH DI FAKULTI UNDANG-UNDANG, UNIVERSITI MALAYA]
MAHKAMAH TINGGI SEREMBAN KES SIVIL
BURTON H
NO 4/1928
16 May 1928

Undang undang Islam -- Sahnya wasiat -- Kesan wasiat kepada waris

Diputuskan bahawa wasiat seseorang Islam yang mengutamakan seorang waris dengan memberinya satu
bahagian terbesar dari harta pesaka melebihi kadar yang dibenarkan oleh Undang-Undang Islam adalah
tidak sah tanpa kerelaan waris-waris lain.

Yong Sze Lin bagi pihak plaintiff.

Jeff bagi pihak defenden.

Fakta-faktanya jelas daripada keputusan.

BURTON H

Pihak menuntut dalarn kes ini adalah janda Bujai bin Datoh Rajah alias Bujai bin Datoh Metsah yang
meninggal dunia di Kuala Sawah pada 20hb Februari, 1924, dengan meninggalkan satu wasiat dalam mana
ia telah berwasiat kesemua hartanya diberikannya kepada anaknya Mohamed Nor bin Bujai, yang menjadi
pihak kenatuntut dalam kes ini, hanya tertakluk kepada pemegangannya ke atas 3 keping tanah sebagai
amanah untuk anak saudara kepada pembuat wasiat, Abu Hassan.
Selain daripada Abu Hassan, yang bukan menjadi pihak dalam kes ini, wari-wari si mati ialah Siti, sebagai
pihak menuntut, balunya, dan Mohammed Nor pihak kenatuntut, anaknya. Pihak menuntut dan pihak ke-
natuntut kedua-dua bersetuju mengenai pemberian pesaka kepada Abu Hassan.
Saya tidak ragu tentang wasiat itu kerana ia dibuat menepati keinginan almarhum Bujai. Ia telah digubal oleh
Encik Jeff atas arahan si mati yang diterima daripadanya pada masa-masa akhir sakitnya dan adalah jelas
bahawa tujuan ia membuat wasiat ini adalah bertujuan menyekat isterinya dari mendapat apa-apa bahagian
dalam hartanya kerana ia berpendapat isterinya telah diberi cukup haknya. Pendapat ini diperkukuhkan
dengan ada keengganan Kadhi untuk menjadi saksi kepada wasiat itu dengan alasan ianya bertentangan
dengan undang-undang Islam dan saya menolak keterangan Ali yang menyebut tujuan pembuat wasiat han-
ya sekadar menyerahkan pentadbiran harta itu kepada anaknya.
Mohamed Nor memohon probet (pengesahan) wasiat itu dan ini telah dibuat pada 10hb Jun 1924 dan
dikeluarkan pada 27hb Oktober, 1925, kelewatan berlaku berpunca dari kesukaran mengeluarkan wang un-
76

tuk menjelaskan bayaran cukai mati. Pihak kenatuntut kemudiannya telah memindahkan kepada Abu Has-
san tanah yang telah dipusakakan kepadanya secara wasiat.
Tidak dipertikaikan bahawa wasiat ini adalah bercanggah dengan Undang-Undang Islam. Ini ditetapkan dari
kes Shaik Abdul Latif lwn Shaik Elias Bux (1 FMS Rep 204) di mana Hakim perbicaraan (Innes, J.C.) memu-
tuskan wasiat Shaikh Babu Bux adalah bercanggah dengan Undang-Undang Islam di mana ia telah cuba
menghadiahkan satu kadar lebih daripada 1/3 hartanya yang ada pada masa ia mati. Tidak ragu-ragu lagi
bahawa ini adalah Undang-Undang Islam dalam negeri ini dan ia mesti diberi kesan, kecuali waris-waris ber-
setuju kepada perubahan dari peraturan itu.
Hakim yang arif telah meneruskan untuk menyelesaikan perkara fakta dan kemudian menyebut: Masih ter-
dapat di sana satu perkara yang perlu dipertimbangkan. Adakah wasiat Bujai semuanya tidak sah, atau ian-
ya tidak sah setakat yang melebihi kuasa-kuasa wasiat almarhum si mati? Dengan perkataan lain adakah
pihak menuntut berhak mendapat satu perlapan bahagian daripada kesemua harta atau satu perlapan da-
ripada 2/3 harta yang tinggal. Jelaslah untuk memberi jawapan kepada soalan ini, Undang-Undang Islamlah
-- bukannya Undang-Undang Inggeris -- yang harus digunakan. ( Lihat Ong Cheng Neo lwn Yap Kwan Seng
tambahan kepada 1 SSLR 1). Dalam perkara ini kes-kes India adalah jelas. Dalam kes Fahmida Khanum
lwn Jafri Khanum (1908) 30 All 153, diputuskan bahawa sesuatu wasiat di mana pembuat wasiat itu cuba
mewasiatkan semua hartanya kepada seorang anak perempuannya sahaja dan tidak memberi apa-apa har-
ta kepada anak-anak perempuan lain adalah tidak sah; dan dalam kes Bafatum lwn Bilaite Khanum (1903)
30 Cal 683, diputuskan bahawa mengikut undang-undang Islam satu pemberian melalui wasiat untuk
seorang waris adalah tidak sah tanpa persetujuan wari-wari lain. Berdasar kepada kes-kes ini adalah jelas
wasiat yang dibuat oleh Bujai tidak sad. Kes setempat yang tunggal dalam perkara ini ialah Shaikh Abdul
Latiflwn. Shaikh Elias Bux dan walaupun laporan tentang perkara ini tidak lengkap, kerana perkara yang di-
pertikaikan di hadapan Mahkamah
1983 1B MLJ 34 at 35
Rayuan ialah masalah domisil, keputusan Hakim perbicaraan tidak bercanggah dengan pandangan ini,
sungguh-pun dipersoalkan oleh Mr. Jeff. Hakim itu berpendapat (dalam muka 223) "pada pandangan saya
ada beberapa sebab untuk memutuskan bahawa sahnya wasiat seorang Islam yang berdomisil di negeri-
negeri Melayu Bersekutu ialah dengan mengikut Undang-Undang Islam dan apabila wasiat di dalam kes ini
dipertimbangkan mengikut kehendak-kehendak undang-undang itu ia mestilah diputuskan sebagai tidak ber-
jalan kuatkuasa dalam masalah harta benda yang diwasiatkan kepada anak angkat kepada pembuat wasiat
melebihi 1/3 daripada harta yang dibolehkannya memberi secara wasiat kepada seseorang asing (bukan
wari) dan juga tidak berjalan kuatkuasa kerana ia menghalang dua saudara lelaki dan satu saudara per-
empuan kepada pembuat wasiat daripada mendapat bahagian mereka yang sah sebagai wari-wari." Dalam
Undang-Undang Islam seorang anak angkat tidak dikira sebagai seorang waris, jadi ia dikira sebagai
seorang asing (bukan waris). Dalam kes Muhammad Allahdad Khan lwn Muhammad Ismail Khan 10 All 289,
Mahmood H. berpendapat "Tidak terdapat dalam undang-undang Islam persamaan dengan sistem Roman
dan Hindu tentang anak angkat, yang menerima satu taraf yang tidak ada hubungan kepada kerabat atau
keturunan yang sebenar." Hasil yang boleh diambil daripada kes-kes ini adalah jelas iaitu satu-satu wasiat
yang cuba mengutamakan seorang waris daripada waris lain dengan pemberian satu bahagian yang lebih
besar daripada bahagian yang ia berhak mendapatnya mengikut undang-undang Islam, adalah tidak sah
berhubung dengan pemberian itu. Jadi, wasiat Bujai yang mengutamakan anaknya dengan mengenepi kan
hak isterinya adalah tidak sah.

Perintah berikutan.
77

Malayan Law Journal Reports/1966/Volume 1/RE LEE MOEY CHYE, DECD - [1966] 1 MLJ 131 - 31 October
1965

3 pages

[1966] 1 MLJ 131

RE LEE MOEY CHYE, DECD


OCJ JB
AZMI J
ORIGINATING SUMMONS NO 62 OF 1965
31 October 1965

Wills -- Trusts -- Whether void as infringing the rule against perpetuities or for uncertainty -- Trust impractica-
ble of performance

In this case the testator after making some bequests directed in his will as follows:- "The remaining fifteen
shares and the money in cash under my name shall be reserved as the ancestral property of my family. The
money in cash must be remitted back to the fatherland (China) in order to form ancestral property. If and
when my property is disposed of (sold), the value thereof must be remitted back to the fatherland (China) in
order to form ancestral property".
The plaintiffs sought by originating summons a declaration that upon the true construction of the clause, the
trust declared was (a) invalid as infringing the rule against perpetuities; (b) void for uncertainty; or (c) failed
by reason that the trust declared therein is impracticable of performance.

Held:

(1) as the trust was to be carried out in a foreign country namely China, the objection that the trust
in this case was invalid according to the law in Singapore as infringing the rules against perpe-
tuities was immaterial and it must therefore fail;
(2) the trust in this case was not void for uncertainty because the objects of the trust and the per-
sons to be benefited by the trust were expressly designated;
(3) it was impracticable to send money to China because of exchange control restrictions and
therefore the trust failed on the ground that it was impracticable of performance;
(4) the residuary estate should devolve as upon an intestacy and there should be an inquiry as to
who should benefit under that intestacy.

Cases referred to
Choa Choon Neo Spottiswoode 1896 1 Ky 216
Yeap Cheah Neo Ong Cheng Neo (1875) LR 6 PC 381
Ng Eng Kiat v Goh Lai Mui & others [1940] MLJ 145
Duncan Lawson LR 41 ChD 394 at p 396
Fordyce Bridges (1847) 1 HL Cas 1

ORIGINATING SUMMONS
78

K C Chan for the plaintiffs.

YR Jumabhoy for the defendants.

AZMI J

This is an application by way of an originating summons for a declaration that upon the true construction of a
clause in the will of Lee Moey Chye also spelt as Lee Bou Chai, the trust declared under the clause is:

(a) invalid as infringing the rules against perpetuities; or


(b) void for uncertainty; or
(c) fails by reason that the trust declared therein is impracticable of performance.
The clause in question reads as follows:

"The remaining fifteen shares and the money in cash under my name shall be reserved as the ancestral property of my
family. The money in cash must be remitted back to the fatherland (China) in order to form ancestral property. If and
when my property is disposed of (sold), the value thereof must be remitted back to the fatherland (China) in order to
form ancestral property."

The facts are as follows. The deceased, Lee Moey Chye, left some property which consisted wholly of rubber
land and he also left a will.
Under that will the testator divided his rubber land into 25 shares out of which he bequeathed 10 shares to
certain named persons,
1966 1 MLJ 131 at 132
and the remaining 15 shares and any money in cash be reserved as the ancestral property of his family. He
also directed that the 15 shares be sold and remitted to China for the same purpose.
The rubber land comprised of 43/60 undivided shares held under Johore Grant No. 496.
The land was subsequently divided and six fresh titles were issued by the Government, one of them is Jo-
hore Certificate of Title No. 6951. An order of court was subsequently obtained for the sale of the land held
under this title. It was sold for $81,081. Out of this sum $48,059,40 has been deposited in court as a sum
equivalent to 15 out of 25 shares of the whole estate, and it is in reference to this money that this application
is made.
It would be seen that although under the will the deceased left 15 out of 25 shares to be held for the purpose
of this trust, there was a direction by him that these 15 shares be sold.
I will now refer to the first ground under which Mr. Chart asked me to declare that the trust was invalid as
infringing the rule against perpetuities.
In support Mr. Chan cited me: (i) Choa Choon Neo Spottiswoode (1896) 1 Ky 216 and (ii) Yeap Cheah Neo
Ong Cheng Neo (1875) LR 6 PC 381.
It is not disputed that the English law known as the rule against perpetuities is the law of this country.
In the case of Choa Choon Neo, the deceased devised certain houses and land in Singapore and Malacca
and also his residuary estate and directed that the rent and profits of this land should be expended on certain
ceremonies called "sinchew". It was held that that direction is void as being in perpetuity and not in charity.
Mr. Jumabhoy, however, cited me the case of Ng Eng Kiat Goh Lai Mui & Ors [1940] MLJ 145 In this case a
Chinese testator, by one of the trusts in his will, directed his executors to apply 2/9th of the net proceeds of
all his estate (except property in China) for the purchase of immovable property in China, such property to
descend to the testator's male descendants according to the law of China; and the income thereof to be ap-
plied for the worship of the testator's "sinchew" and those of his ancestors.
The learned Chief Justice Murison in his judgment at page 145 said as follows:
79

"It is clear that the rule of perpetuities is part of the law of this Colony (Singapore) and it is clear too that this gift, if it
concerned property in the Colony, would be bad as infringing that rule (Choa Choon Neo v. Spottiswoode approved in
Yeap Cheah Neo v. Ong Cheng Neo.) But these and similar cases all refer to a trust impressed upon property which is
situated in England or in territory which is governed by the English law. In the present case we have a gift of money by
a will for the purchase of land in China, the land to be conveyed to the male descendants of the deceased, and the in-
come of the property to be applied by such male descendants to the ceremony of 'sinchew' for the benefit of the testa-
tor. The trust is impressed upon property which is situated in China. And it appears that the law in such a case is differ-
ent. In Fordyce v. Bridges it was decided that if a testator bequeaths personal estate upon trust to invest it in the pur-
chase of land in a foreign country, to be settled to limitations permitted by the law ... the fact that they are illegal by the
law of England is immaterial. This case so far as I know is good law still and it is not disputed that the limitations in
question are good in China."

In reply to that Mr. Chan referred me to Duncan Lawson LR 41 ChD 394 at p 396 He read to me the follow-
ing passage from the judgment of Kay J. at page 396:
"He gave all his real and personal property to trustees, with power to convert, and directed them to pay certain pecuni-
ary legacies to charities in England and Scotland. And he disposed of the ultimate residue of his trust estate, on failure
of his issue, among certain specified charities.
The validity of these gifts, so far as they are payable out of the proceeds of English freehold or leasehold property,
must depend on the lex loci rei sitae, which in England renders charitable gifts by will of real or leasehold property void
... The gifts of residue, so far as they failed, would be undisposed of and devolve as upon an intestacy."

And again at page 397:


"There is no doubt as to the devolution of the English freeholds so far as undisposed of by the will. These, or the pro-
ceeds of any converted under the will, would descend as real estate, and would belong to the testator's heir-at-law at
the time of his death, assuming that the testator had acquired them as a purchaser and not by inheritance: see 3 & 4
Will. 4, c. 106."

As I understand from Mr. Chan, he said that this was authority for saying that since the deceased in the pre-
sent case left land, therefore the rule against perpetuities should apply, and that in the case of Fordyce
Bridges (1847) 1 HL Cas 1, which was followed by Murison C.J., the testator left personal estate and not
land. In the case of Duncan v. Lawson the question was how leaseholds in England belonging to a domiciled
Scotchman should devolve. Kay J. held in that case that the leaseholds devolved upon persons entitled un-
der the English Statute of Distributions.
In my own view Duncan v. Lawson is merely authority for saying that leaseholds in England, belonging to a
domiciled Scotchman, devolve, in the case of his intestacy, upon the persons entitled according to the Eng-
lish Statute of Distributions, although the learned judge did express the view that freeholds, so far as undis-
posed of by the will, or the proceeds of any converted under the will, would descend as real estate. This
view, if correct at all, does not say that any trust in reference to such proceeds of sale should be subject to
the rule against perpetuities.
In the case of Fordyce v. Bridges it is true that the deceased testator left personal property
1966 1 MLJ 131 at 133
for the purpose of his testamentary dispositions. The judgment of the court reads as follows:
"The rules acted upon by the courts in this country with respect to testamentary dispositions tending to perpetuities re-
late to this country only. What the law of Scotland may be upon such a subject the courts of this country have no judi-
cial knowledge, nor will they, I apprehend, inquire: the fund being to be administered in a foreign country is payable
here though the purpose to which it is to be applied would have been illegal if the administration of the fund had been
to take place in this country. This is exemplified by the well-established rule in cases of bequests within the Statutes of
Mortmain. A charity legacy void in this country under the Statutes of Mortmain is good and payable here if for a charity
in Scotland. It is true that Scotland is in terms excluded from the operation of the statutes but that exclusion would be
useless and inoperative, if the legacy would have been void, though to be administered in Scotland, merely because it
would have been void if administered in England; and it would still be so, not by the effect of the statutes but by the rule
of law; but such is not the law, and I think that the objection raised, upon the ground of perpetuity, cannot be main-
tained."

As I understand the judgment, the reason that court held the view was that the fund was to be administered
according to the law of Scotland where the rule against perpetuity is unknown. It would appear to me per-
80

sonally, therefore, that it does not matter whether the property left is money or proceeds of sale of land in the
country where the law against perpetuity applies. Unfortunately, it is not very clear from the judgment of
Murison C.J., whether the testator left a wholly personal estate or partly personal and partly immovable
property. In the judgment I found the following words:
"By his will the testator directed his executors to realise all his estate except his property in China and after payment of
his debts, legacies and funeral expenses to divide the residue into nine equal shares ..."

It would appear to me that from these words that some of the property could have been immovable property.
In other words, when Murison C.J. decided the case, it was not considered relevant as to whether the prop-
erty left by the deceased was movable or immovable.
For the above reasons I would say that the principle laid down in Fordyce v. Bridges and followed by Murison
C.J. in the local case should apply in the present case. In other words, the objection that the trust in this case
is invalid as infringing the rule against perpetuties must fail.
As to (b) - that the trust is void for uncertainty. In the clause under dispute the relevant words are "The re-
maining fifteen shares and the money in cash under my name shall be reserved as the ancestral property ...
If and when my property is disposed of (sold), the value thereof must be remitted back to the fatherland (Chi-
na) in order to form ancestral property." In this matter Mr. Jumabhoy said the court should take judicial notice
of the meaning of the words "ancestral property" and the purpose of such property.
Mr. Chan, on the other hand, says these words are very vague, e.g. it is not clear whether the deceased in-
tended that the house or land or shares in companies or padi land was intended to be purchased in China
and to form the ancestral property. He referred me to para. 1399 at page 835 of Vol. 38 of Halsbury's Laws
of England (Third Edition). That paragraph says as follows:
"The objects of persons to be benefited by a trust must be expressly designated, or so defined that they are capable of
being ascertained, except where the trust is for charitable purposes. Otherwise the trust is void for uncertainty, and
there is a resulting trust."

In Ng Eng Kiat's case there was a direction that the property was to descend to the testator's male descend-
ants and there was a further direction that the income was to be applied for the worship of the testator's
"sinchew". In other words, the objects of the trust and persons to be benefited by the trust were expressly
designated.
For this reason I think the trust fails.
The next objection was that the trust failed by reason that it is impracticable of performance. Mr. Chan said
that his firm had written to the Foreign Exchange Control Department on the 22nd April, 1965, and in that
letter gave the relevant facts of the case, including the fact that about $48,000 had been paid into the court,
and inquired from the Controller of Foreign Exchange whether or not as from 22nd January, 1946, or De-
cember, 1964, large sums of money could or could not be sent to China for the purpose stated in the de-
ceased's will. In reply the deputy controller said as follows:
"As China is outside the Sterling Area, remittances to China would have required the prior permission of the Exchange
Control as from either of the two dates stated. It is unlikely that permission would have been given for large sums of
money to be transferred to China to purchase properties to form an 'ancestral property'."

So that Mr. Chan says in view of this restriction it is not practicable to carry out the wishes of the testator.
In reply Mr. Jumabhoy said that the deputy controller's statement cannot be regarded as sufficient to show
that it is impracticable to send money to China The trustees should have applied for permission to transmit
the money to China, either in a lump sum or in instalments, and only if permission was refused could it be
said that it is impracticable to carry out the direction of the testator.
In my view that statement by the deputy controller is sufficient to show that no permission would be given
even if asked for. I do not think that the problem could be solved by asking for permission to remit the money
in instalments
1966 1 MLJ 131 at 134
81

since the purpose for which they are to be made would still be for the purpose of purchasing properties to
form an "ancestral property". I would, therefore, say that the objection on this ground would succeed.
In consequence I would, therefore, declare that the residuary estate should devolve as upon an intestacy
and that, as suggested by Mr. Toh, there should be an inquiry as to who should benefit under that intestacy.

Order accordingly.

Solicitors: Braddell Bros; Mallal & Namazie.


82

Malayan Law Journal Reports/1965/Volume 1/RE LEE GEE CHONG DECEASED; TAY GEOK YAP & ORS
v TAN LIAN CHEOW - [1965] 1 MLJ 102 - 19 October 1964

14 pages

[1965] 1 MLJ 102

RE LEE GEE CHONG DECEASED; TAY GEOK YAP & ORS v TAN LIAN CHEOW
FEDERAL COURT
WEE CHONG JIN CJ (SINGAPORE), WYLIE CJ (BORNEO) AND TAN AH TAH FJ

19 October 1964

Husband and Wife -- Chinese Customary Law -- Marriage -- Legal requirements for marriage with a t'sip --
Consensual marriage -- Proof of performance or celebration in accordance with Chinese customs and rites
unnecessary -- Chinese divorce

Precedent -- Decision of Singapore Court of Appeal -- Whether binding on Federal Court -- Whether decision
given per incuriam -- Malaysia Act 1963, s 88(3)

Costs -- Trustees seeking second opinion -- Exceptional circumstances

The deceased, a Chinese, died intestate on or about April 25, 1960, domiciled in Singapore. The principal
wife, Tay Geok Yap, filed a petition for letters of administration of the deceased's estate and against this peti-
tion, Ng Yin Yeok filed a caveat claiming an interest in the estate as lawful widow of the deceased. A deed of
agreement was subsequently entered into between the principal wife and Ng Yin Yeok and on the February
20, 1961, the court ordered that the deed of agreement be approved and that letters of administration be
granted to Tay Geok Yap and Lee Boon Leong, the deceased's son by her. On October 13, 1961, the re-
spondent, Tan Lian Cheow, claiming to be one of the lawful widows of the deceased filed a notice of motion
for revocation of the grant. The matter was ordered to proceed as an action and Ambrose J. held:

(a) to prove a Chinese secondary marriage it is only necessary to prove a common intention to
form a permanent union as husband and secondary wife and the formation of the union by the
man taking the woman as his secondary wife and the woman taking the man as her husband;
(b) in this case the evidence showed that the deceased and Tan Lian Cheow intended to form a
permanent union as husband and secondary wife and that they formed the union in accordance
with their intention on December 19, 1957;
(c) the law of Singapore is that a Chinese secondary marriage could be dissolved by the husband
by unilaterally repudiating his secondary wife, if she has been disobedient to him or to his prin-
cipal wife or has been guilty of immoral conduct, and by notifying the dissolution to his near rel-
atives or his clansmen;
(d) in this case the deceased had no grounds for
1965 1 MLJ 102 at 103
divorcing Tan Lian Cheow and he did not in fact divorce her.
The questions of law raised on appeal were whether (i) the trial judge was wrong in law in regard to what
must be proved to establish a Chinese secondary marriage; (ii) the Singapore Court of Appeal wrongly inter-
preted the law in their decision in Re Lee Siew Kow deceased [1952] MLJ 184 which could not stand with the
Privy Council case of Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346.

Held:
83

(1) the trial judge correctly set out the law to be applied to the case; and there was ample evidence
on which he could reach the conclusion which he did;
(2) by virtue of section 88(3) of the Malaysia Act the Federal Court must be regarded as being one
and the same as the former Singapore Court of Appeal and the decision in Lee Siew Kow's
[1952] MLJ 184 case is binding on the court unless applying the principles in Young v Bristol
Aeroplane Co Ltd [1944] 1 KB 718 it can be shown that (a) the decision though not expressly
overruled, cannot, in the opinion of the court stand with a decision of the Privy Council or (b)
the decision was given per incuriam in that it acted in ignorance of a decision of the Privy
Council which would have affected its decision had its attention been so drawn. In this case
there was nothing in the judgment in Khoo Hooi Leong v. Khoo Chong Yeok which was incon-
sistent with the Lee Siew Kow case and the decision in the latter case was not given per incuri-
am;
(3) unless it can be shown that there are exceptional circumstances for a trustee or trustees to
seek a second opinion from the courts, where litigation is concerned, the unsuccessful appel-
lant must pay the costs, i.e., the usual consequences will follow from an unsuccessful appeal.

Cases referred to
Cheang Thye Pin v Tan Ah Loy [1920] AC 369
Re Lee Choon Guan, deceased [1935] MLJ 78
Re Tay Geok Teat deceased; Sunny Tay v Seow See Neo [1934] MLJ 83
Ngai Lau Shia v Low Chee Neo (1915) 14 SSLR 35
Cheang Thye Pin v Tan Ah Loy (1916) 14 SSLR 79
Re Yeow Kian Kee, deceased Er Gek Cheng v Ho Ying Seng [1949] MLJ 171
Re Lee Siew Kow deceased [1952] MLJ 184
Re Choo Eng Choon, deceased (Six Widows' Case) (1908) 12 SSLR 120
Woon Ngee Yew v Ng Yoon Thai [1941] MLJ 32
Re Sim Siew Guan, deceased [1932] MLJ 95
R v Willans (1859) 3 Ky 16
Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718
Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346
Moore v Hewall [1947] 2 All ER 270
R v Northumberland & Compensation Appeal Tribunal [1951] 1 All ER 268
Re Ho Khian Chong [1963] MLJ 316

FEDERAL COURT

MB Brash and M Karthigesu for the appellants.

JF McWilliams and Tan Teck Chuan for the respondent.

AMBROSE J

In the court below the following judgment was delivered by-


84

The issue in this probate action was whether the plaintiff, Tan Lian Cheow, is one of the lawful widows of Lee
Gee Chong, deceased.
The history of the litigation is as follows. Lee Gee Chong died intestate on or about the 25th April, 1960,
domiciled in Singapore. His principal wife, Tay Geok Yap, flied a petition for letters of administration of the
deceased's estate on the 17th May, 1960. Against this petition a caveat was filed by Ng Yin Yeok claiming an
interest in the estate as a lawful widow of the deceased and as lawful guardian of her three children by him.
On the 30th September, 1960, it was ordered that pleadings be delivered and the matter proceed as an ac-
tion between Tay Geok Yap as plaintiff and Ng Yin Yeok as defendant. By a deed of agreement dated the
13th February, 1961, provision was made for the compromise of the proceedings and of the claims of Ng Yin
Yeok and her three children against the deceased's estate. On the 20th February, 1961, the court ordered
that the deed of agreement be approved and that letters of administration be granted to Tay Geok Yap and
Lee Boon Leong, the deceased's son by her.
On the 13th October, 1961, Tan Lian Cheow, claiming to be one of the lawful widows of the deceased, filed a
notice of motion for revocation of the grant. The application was heard on the 23rd October, 1961, when the
court ordered that the above issue be tried, that pleadings be delivered, and that the matter proceed as an
action between Tan Lian Cheow as plaintiff and Tay Geok Yap and Lee Boon Leong as first defendants and
Ng Yin Yeok as second defendant.
The first question raised by the issue in the action was a question of law: what had to be proved to prove a
Chinese secondary marriage? It was held by the Privy Council in Cheang Thye Pin v Tan Ah Loy [1920] AC
369, that, although some sort of ceremony is usual when a secondary wife is taken, a ceremony is not es-
sential to constitute a secondary wife. The judgment of the Privy Council was delivered by Viscount Finlay,
who said at page 376:

"All the judges of the appeal court held that a ceremony, though usual, was not essential to constitute a secondary wife.
The view taken by them on this point is entirely consistent with the Six Widows' Case 12 SSLR 120 209, and with the
view of the majority of the Court of Appeal in Ngai Lau Shia v. Low Chee Neo decided at Singapore in January, 1916,
and reported in an appendix to the record in the present case (subsequently reported in 14 SSLR 35). Their Lordships
see no ground for differing from the conclusion arrived at upon this point in the court below".
1965 1 MLJ 102 at 104

Counsel for the defendants contended that it was necessary to prove three elements to prove a Chinese
secondary marriage:

(1) long continued cohabitation;


(2) a common intention to form a permanent union as husband and secondary wife;
(3) reputation of marriage, of which recognition by the alleged husband's family is the most usual
and strongest evidence.
Counsel relied on the judgment of Terrell J. in Re Lee Choon Guan, deceased [1935] MLJ 78. In that case
the learned judge referred to his own judgment in Re Tay Geok Teat, deceased; Sunny Tay v Seow See Neo
[1934] MLJ 83, and said that there he reviewed the authorities and extracted from them an indication that, in
cases where it is sought to establish a Chinese secondary marriage, the evidence must establish an inten-
tion to effect a permanent union, and that there must be satisfactory evidence of the recognition of the mar-
riage. In Re Lee Choon Guan, deceased, Terrell J. while dealing with the evidence as to reputation of mar-
riage and recognition, referred to the evidence given by Dr. Tyau, the Consul-General for China, as to the
custom in China as regards recognition. Dr. Tyau's evidence, which the learned judge apparently took into
consideration. was to this effect:
"If she (i.e. the plaintiff) was kept without the knowledge of the family, (i.e. of the alleged husband) she would not be a
concubine (i.e. secondary wife)"

The learned judge appears to have erred in assuming that customs observed among Chinese families living
in China were observed among Chinese families living in the Straits Settlements. If Terrell J. took the view
that under the law of the Straits Settlements a Woman who claims to be the secondary wife of a man has to
prove recognition of the alleged secondary marriage by the man's family, I must say, with the greatest re-
85

spect to the learned judge, that, in my opinion, that view is erroneous. I do not think that that view has been
followed in any other case. Even in the case of Re Lee Choon Guan, deceased, it is important to note that
counsel for the 5th defendant did not go so far as to submit that recognition of the alleged secondary mar-
riage by the alleged husband's family is an essential element for establishing a Chinese secondary marriage;
he merely submitted that it is the most usual and strongest evidence of reputation of marriage. And the con-
tention of counsel for the defendants in the case before me is identical with the submission of counsel in the
case before Terrell J.
I must now deal with the contention of counsel for the defendants. It is clear that to constitute a Chinese sec-
ondary marriage there must be a common intention to form a permanent union as husband and secondary
wife. But, in my opinion, long continued cohabitation and reputation of marriage are not essential for consti-
tuting a secondary marriage. I would go further and say that these two elements are not essential for proving
a secondary marriage. All that can be said is that the court will, upon proper evidence, presume a secondary
marriage from cohabitation and repute. That was the principle followed by the Court of Appeal in Ngai Lau
Shia v Low Chee Neo (1915) 14 SSLR 35, and also in Cheang Thye Pin v Tan Ah Loy (1916) 14 SSLR 79,
and the Privy Council in Cheang Thye Pin v Tan Ah Loy [1920] AC 369.
Counsel for the plaintiff submitted that the law of Singapore merely requires a consensual marriage for the
acquisition of the status of a secondary wife. He relied on Re Yeow Kian Kee, deceased; Er Gek Cheng v Ho
Ying Seng [1949] MLJ 171 where Murray-Aynsley C.J. said:
"The legal requirements for marriage with a t'sai (principal wife) or a t'sip (secondary wife) are, I think, the same. This
means that the law of this Colony (Singapore) merely ".
"With these simple legal requirements the difficulties that have troubled the courts have been merely questions of evi-
dence. The burden of proof is upon whoever alleges the status of t'sip to have existed. What must be proved in order to
discharge that burden? In most cases there is some sort of a ceremony, and there is recognition of the t'sip as a mem-
ber of the husband's family. But this is evidentiary only. It is not essential to the acquisition of the status of t'sip.
A formal contract in writing would be conclusive. If the parties were to live as such publicly so as to acquire the reputa-
tion of being man and t'sip that would also be evidence that the status had been acquired. On the other hand, I do not
consider that mere cohabitation for a considerable period would by itself be sufficient evidence".

Counsel for the plaintiff also relied on Re Lee Siew Kow deceased [1952] MLJ 184. There the Singapore
Court of Appeal consisting of Murray-Aynsley C.J., Mathew C.J. (Federation of Malaya) and Brown J. ac-
cepted the above exposition of the law. Mathew C.J. said:
"the learned Chief Justice has set out with great clarity the law of the Colony (Singapore) on the subject of the acquisi-
tion of the status of a t'sip or secondary wife, and has removed certain obscurities which clouded earlier decisions. He
has laid down that for the legal requirements of a marriage with a t'sip the law of the Colony merely requires a consen-
sual marriage and that the requirements of a ceremony, of a formal contract and of repute of marriage are evidentiary
only and not essential to the acquisition of the status of a t'sip. With this exposition of the law I am in complete agree-
ment".

It is to be stressed that Murray-Aynsley C.J. said in Re Yeow Kian Kee deceased, that recognition of the t'sip
as a member of the husband's family is not essential to acquisition of the status of a t'sip. He said (at page
174):
"In these circumstances, is there enough evidence
1965 1 MLJ 102 at 105
for me to assume that the deceased had given the plaintiff the status of a t'sip? I think that it is certain that he could
have done so, even if he kept the relationship a secret".

It is also to be stressed that Mathew C.J. said in Re Lee Siew Kow deceased, that he was in complete
agreement with the exposition of the law by Murray-Aynsley C.J. in Re Yeow Kian Kee deceased. It must be
added that Brown J. stated in Re Lee Siew Kow deceased:
"the absence of such recognition (that is by the alleged husband's principal wife and family) does not of necessity dis-
prove the marriage. A clandestine marriage which is unknown to the family is legally possible, though it may be hard to
prove".
86

On the authorities cited by counsel for the plaintiff, the conclusion I came to as regards the question what
had to be proved to prove a Chinese secondary marriage was this: it is only necessary to prove (1) a com-
mon intention to form a permanent union as husband and secondary wife and (2) the formation of the union
by the man taking the woman as his secondary wife and the woman taking the man as her husband.
The second question I had to consider was a question of fact: did the plaintiff, Tan Lian Cheow, become a
secondary wife of Lee Gee Chong? The plaintiff started to work as a waitress in a restaurant in the New
World Park in 1950. She was then 16 years old. Lee Gee Chong, whom I will call Lee, used to dine at the
restaurant from time to time with his maternal uncle, Lim Joo Him, whom I will call Lim, and some of his
friends. The plaintiff used to wait upon them. Lee was attracted by her and, according to his friend, Gan Si-
ong Hiok, was impressed by her obedience and honesty. In or about 1954 the plaintiff left the restaurant to
work as a waitress in a coffee-shop in the New World Park, which was subsequently frequented by Lee ac-
companied by Lim and Lee's friends.
In 1957, Lee told Lim to ask the plaintiff's mother, Siah Swee Eng, whether she would let the plaintiff marry
Lee as his third wife. Lim did so. She said that Lim was joking. Lee then asked Lim to arrange a meeting with
the plaintiff's mother at a restaurant in Orchard Road. The meeting was arranged and took place in August or
September, 1957. At that meeting Lee asked her if she had made up her mind regarding the marriage pro-
posed by Lim. She told Lee that as he already had two wives he must have courage to marry her daughter.
He told her not to worry about his two wives, and said that he would buy a house for her daughter where she
could live separately from them. She said she would have to discuss the matter with her daughter. She did
so subsequently and her daughter said she would be happy to marry Lee.
Two or three days later, the plaintiff's mother went with Lim to the same restaurant and met Lee. She ac-
cepted Lee's proposal. Lee asked her how much she wanted for dowry. She left it to him and he fixed it at
$3,000. She said that he must buy a house for her daughter, and he agreed to do so. He gave her $200 to
buy sweets for the plaintiff and also to get an astrologer to cast a horoscope to find auspicious dates for the
betrothal and the marriage. She asked him for the date of his birth. He said that was 47 years old and that he
was born in the year of the pig.
A horoscope was subsequently cast. This fixed the 22nd and 28th days of the 10th moon as auspicious
dates for the betrothal and marriage respectively.
The 22nd day of the 10th moon was the 13th December, 1957. On that day Lim went to the plaintiff's moth-
er's house at 101 Syed Alwi Road, taking betrothal gifts from Lee consisting of two pairs of wedding candles
and a diamond ring worth $1,000, which was specially bought by Lee on the 2nd November, 1957, for the
betrothal. Lim also took with him two copies of a Chinese document made on red paper, which Lim, acting on
Lee's instructions, had previously got a letter-writer to make from a draft in Chinese which Lee had drawn up.
The candles were burned at the family altar as part of the betrothal ceremony. Lim was given cakes, sweets
and a ring to be delivered to Lee. Lim left the house, leaving the two copies of the Chinese document to be
signed by the plaintiff's father, Tan Tien Hoa, the plaintiff and the plaintiff's paternal uncle, Tan Seng Liew.
The two copies were signed by all three of them in the evening. Lim returned at 7 p.m. and took the plaintiff,
her mother and her paternal uncle to Lee's house at No. 140- D Ford Avenue off Holland Road. Lee said that
after the marriage the plaintiff would live in that house. Both signed copies of the Chinese document were
handed to Lee. He returned one, Ex. P. 25, to the plaintiff's mother.
On the 19th December, 1957, which was the 28th day of the 10th moon, the plaintiff and her mother went to
the plaintiff's grandmother's house at Loyang. There a marriage ceremony was performed. The plaintiff wore
a wedding-gown. Joss-sticks, joss-paper and candles were burned. Fruits and sweets were placed on the
family altar. The plaintiff and her mother and grandparents prayed and worshipped before the family altar.
There was a marriage feast. The plaintiff and her mother left before the feast and reached 140- D Ford Ave-
nue before noon. Lim received them. Lee came at 1 p.m. and left at 1.30 p.m. with Lim. The plaintiff went
with her mother and had a photograph taken of
1965 1 MLJ 102 at 106
herself in her wedding-gown. Lee and Lim returned at 6 p.m. The plaintiff's mother who had received $1,000
towards the dowry earlier received four cheques for the balance of $2,000 and returned home in Lee's car.
The plaintiff slept with Lee that night.
87

In my opinion it is clear that the plaintiff intended to form a permanent union with Lee as husband and sec-
ondary wife. She testified that she would not have agreed to live with Lee without being married to him. Did
Lee intend to form a permanent union with the plaintiff as husband and secondary wife? When he sent Lim to
see the plaintiff's mother he instructed Lim to ask her if she would let the plaintiff marry him as his third wife.
That was the evidence of Lim and also the evidence of the plaintiff's mother. I saw no reason to disbelieve
either of them. When Lee discussed the matter with the plaintiff's mother at their first meeting he asked her if
she had made up her mind regarding the marriage proposed by him. At their second meeting when she ac-
cepted the proposal Lee asked her how much she wanted for dowry. If he was only intending to make the
plaintiff a mere mistress it would have been odd to speak of a dowry. Furthermore, payment by Lee for a
horoscope to find auspicious dates for betrothal and marriage suggests to my mind very strongly that Lee
was thinking of taking a third wife and not a mere mistress. The Chinese document which was drafted by Lee
and handed to Lim with instructions to have it drawn up by a Chinese letter-writer is an important document
and throws light on Lee's intention. It reads as follows:
PLEDGE
Maker/s of this pledge, TAN TIEN HOA and SIAH SWEE ENG, have a daughter, TAN LIAN CHEOW, 24 years of age,
and hereby willingly accept betrothal money $3,000 for marrying (her) to LEE GEE CHONG as a concubine. Hence-
forth, all the affairs of TAN LIAN CHEOW will have nothing to do with the parents, and there shall be no interference
under pretext. This document is specially made. No demur shall ever be raised.
Maker/s of pledge: (Signed) TAN TIEN HOA
Daughter: (Signed) TAN LIAN CHEOW
Witness: (Signed) TAN SENG LIEW
MADE ON 13TH DAY OF DECEMBER, 1957.
LIVING TOGETHER FOR A HUNDRED YEARS.

This document says that the plaintiff's father and mother willingly accept $3,000 as betrothal money for mar-
rying Tan Lian Cheow to Lee Gee Chong as a concubine. It must be stated here that "concubinage is recog-
nized as a legal institution under Chinese law conferring upon the t'sip (i.e. the concubine) a legal status of a
permanent nature": per Braddell J. in the Six Widows' Case (1908) 12 SSLR 120 at page 209. That was also
the view of Hyndman-Jones C.J. in the same case at page 187. What does the word "concubine" mean in
the document? In a monogamous society the word means a woman who cohabits with a man without being
his wife, that is, a kept mistress. In a polygamous society, the word means a "secondary wife" having a sta-
tus inferior to that of a principal wife but superior to that of a mistress who has no status at all. The word
"concubine" in the document therefore means a secondary wife. The document shows clearly that it was
Lee's intention to form a permanent union with the plaintiff as husband and secondary wife.
It was argued by counsel for the defendants that because Lee did not attend the marriage ceremony he did
not intend to form a permanent union with the plaintiff as husband and secondary wife. There is no sub-
stance in this argument because the custom in China used to be that the man did not attend the ceremony
for taking a secondary wife: see Cheang Thye Pin v Tan Ah Loy [1920] AC 369 at page 375.
It was argued by counsel for the defendants that because Lee did not allow himself to be photographed with
the plaintiff on the 19th December, 1957, he did not intend to form a permanent union with the plaintiff as
husband and secondary wife. It seemed to me that the true explanation of this was that he was trying to keep
his marriage with the plaintiff secret to avoid trouble with his second wife. Lee disclosed his intention to marry
a third wife to his servant Lim Kim Song who was also known as Kow Kai shortly before the 19th December,
1957. He was employed at Ford Avenue to look after three terrace houses and three flats. Lee instructed him
to spruce up 140- D Ford Avenue and buy furniture as Lee's third wife would be coming to live there.
It was suggested by counsel for the defendants that Lee had some kind of association with the plaintiff even
prior to the unilateral marriage ceremony. It seemed to me, whatever that association was, it did not prevent
Lee from making the plaintiff his third wife if he wished to do so.
I was satisfied that Lee intended to form a permanent union with the plaintiff as husband and secondary wife;
and that Lee and the plaintiff formed the union in accordance with their intention on the 19th December,
1957.
88

The plaintiff lived at No. 140- D Ford Avenue with a female servant from that day until the 7th moon, 1958.
Lee visited her twice or thrice a week after his work and stayed till about 1 or 2 a.m. He gave her $400 per
month for household expenses and $500 per month for personal expenses. About a month after the mar-
riage Lee went to Hongkong with his second wife, Ng
1965 1 MLJ 102 at 107
Yin Yeok, after making provision for the maintenance of the plaintiff. He returned after two months and re-
sumed his visits.
One day in the 7th moon, 1958, (that is between 15th August and 12th September) Lee's servant, Kow Kia,
saw Lee's second wife coming to Ford Avenue about 7 p.m. Lee had told Kow Kia that he married the plain-
tiff as his third wife without his second wife's knowledge; that if the second wife came to the house there
would be a fight; and that he should warn the plaintiff if he should ever see the second wife coming to the
house. In accordance with this instruction, Kow Kia warned the plaintiff about the arrival of the second wife.
Lee was there and advised the plaintiff to go to Kow Kai's quarters to avoid meeting the second wife. She did
so. The second wife entered the plaintiff's house, looked for the plaintiff and left after failing to find her.
The same evening Lee sent the plaintiff to her mother's house fearing further trouble from his second wife.
Three or four days later Kow Kia told the plaintiff that Lee had found accommodation for her in Lloyd House
at Lloyd Road and wanted her to move into Lloyd House the following day. The plaintiff collected her belong-
ings from the house in Ford Avenue and moved into Lloyd House accordingly. Lee visited her at Lloyd House
from time to time and took her to the house in Ford Avenue where she would stay till midnight. Lee would
then send her back to Lloyd House.
The second wife came to know that the plaintiff was living in Lloyd House and visited Lloyd House at the end
of 1958 when the plaintiff was not in. The second wife visited Lloyd House again subsequently when the
plaintiff was in. The plaintiff told Lee about the visit. Lee told her that the second wife wanted the plaintiff to
move into the second wife's house. The plaintiff said she would not dare to live with the second wife. Lee
advised the plaintiff to live with her mother for the time being. She visited her mother on the 15th day of Chi-
nese New Year, 1959, (that is 22nd February, 1959). When she returned the next day she found that the air-
conditioner and other things had been removed in her absence. It seemed to me highly probable that this
was done on Lee's instructions under pressure from his second wife. The plaintiff was thus forced to leave
Lloyd House to live with her mother.
Lee bought a piece of land in the plaintiff's name at St. Michael's Road on the 9th January, 1958. On the
25th February, 1958, the plaintiff entered into an agreement with the Nan Yang Realty Co. for the construc-
tion of a house on the land for the price of $16,800. Lee had provided her with funds for the cost of the land
and some of the instalments. When the plaintiff went to live with her mother she received demands for pay-
ment of further instalments. Lee also failed to pay maintenance for a month. So the plaintiff and her mother
went to see Lee at his biscuit factory. Lee told her mother that it was a place of business and if she had any-
thing to say she could send Lim Joo Him to see him. Then the plaintiff's mother got in touch with Lim and he
told the plaintiff that Lee had said that his second wife wanted the plaintiff to live with her. The plaintiff told
Lim that she would not dare to live with the second wife. The plaintiff then went to the Legal Aid Department
on the 17th March, 1959, where she was told she was not entitled to legal aid.
Gan Siong Hiok, who was one of Lee's close friends, came to hear about the plaintiff's visit to the Legal Aid
Department, and feeling sorry for Lee went to see him about it. Lee told him that he had married the plaintiff
and that the reason why he did not let his friends know about the marriage was that he wanted to keep it a
secret from his first and second wives. Lee also said that the plaintiff and her mother had come to his biscuit
factory and that their visit to the factory made him very angry because it gave publicity to his secret marriage
with the plaintiff. Lee added that the plaintiff could not stay at Lloyd House as the second wife had come to
know that she was staying there and that he advised her to stay with her mother for the time being. Lee did
not say that he had cast off the plaintiff.
Shortly afterwards the plaintiff was invited by Lee through his relative Sze Koh to see Lee at the Southern
Restaurant. The plaintiff met Lee there. He said that his second wife had come to know about the house in
St. Michael's Road and that she could not live in that house. He advised her to mortgage the house to a
bank. He told her that he had purchased a house in Johore Bahru for his second wife and that he would get
another house for her after the second wife had moved to Johore Bahru. He advised her to be patient and
89

live with her mother for the time being. He gave her $400 for maintenance on that day. She took Lee's advice
and subsequently mortgaged the house to a bank to pay the amount claimed by Nan Yang Realty Co.
It was suggested by counsel for the defendants that Lee's failure to pay the balance of the purchase price of
the house clearly indicated that he had no intention to form a permanent union with the plaintiff as husband
and secondary wife. In view of the evidence to the contrary, I was unable to accept counsel's suggestion. I
formed the opinion that Lee was trying to meet his second wife's wishes as far as possible.
It was also suggested by counsel for the
1965 1 MLJ 102 at 108
defendants that Lee severed all relations with the plaintiff towards the end of 1958; and that such severance
about a year after the marriage indicated that there was no intention on the part of Lee to form a permanent
union with the plaintiff as husband and secondary wife. I found that Lee did not sever all relations with the
plaintiff towards the end of 1958 or even after her visit to Lee's biscuit factory in March, 1959. After seeing
Lee at the Southern Restaurant in March, 1959, she saw him there on two subsequent occasions. Lee con-
tinued to pay her maintenance. In the 8th moon, 1959, (that is 3rd September to 1st October) she saw Lee at
his request at 140- D Ford Avenue. He told her that he found it difficult to come out as he was being shad-
owed by his second wife all the time. She had sexual relations with him there on that and subsequent occa-
sions. She saw Lee for the last time in the first moon, 1960, (that is 28th January to 26th February). Sze Koh
brought her maintenance in October, 1959. After that Kow Kia did so, the last occasion being the 2nd moon,
1960, (that is, 27th February to 26th March).
It was finally suggested by counsel for the defendants that the fact that the plaintiff took a long time to put
forward her claim to be one of the lawful widows of Lee indicated that she was not really a secondary wife of
his. In view of the evidence to the contrary I was unable to accept counsel's suggestion.
The third question I had to consider was a question of law: whether a Chinese secondary marriage could be
dissolved by the unilateral repudiation of the secondary wife by the husband. Counsel for the defendants
contended that a Chinese husband can discard his secondary wife at will. The authority he cited for this
proposition was Woon Ngee Yew v Ng Yoon Thai [1941] MLJ 32, and he relied on the following passage
from the judgment of Terrell J.A. at page 40:
"The conception of the marriage found among the Chinese so far as concerns secondary wives or t'sips was something
very different. In Imperial China a t'sip had practically no status. According to Dyer Ball, Things Chinese, page 213, she
could be dismissed and left destitute. Her position was a little better if she had borne a son, as then apparently she
could not be divorced without cause. These, however, are matters of mere historical interest, as the experts are agreed
that in Malaya the position of a t'sip approximates more closely to that of a principal wife or t'sai. What, however, is
quite clear is that divorce was at the will of the husband and still is so".

It must be pointed out that the learned judge does not stop there. He continues:
"Among the Chinese resident in Malaya, however, such divorce must not be merely capricious but should be justified
by such definite causes as desertion or misconduct".

I must also refer to Re Sim Siew Guan deceased [1932] MLJ 95, where Shaw C.J. accepted and acted upon
the evidence given by the Consul-General of China as to Chinese custom: this was to the effect that divorce
was at the will of the husband, who was entitled to divorce his secondary wife if she was disobedient to him-
self or his principal wife, if she did not conform to the household regulations, or was guilty of immoral con-
duct, and that the husband should notify the dissolution to his near relatives or his clansmen.
In my opinion, the law of Singapore is that a Chinese secondary marriage could be dissolved by the husband
by unilaterally repudiating the secondary wife, if she has been disobedient to him or to his principal wife, or
has been guilty of immoral conduct, and by notifying the dissolution to his near relatives or his clansmen.
The last question I had to decide was whether Lee divorced the plaintiff in accordance with Chinese custom.
The defence adduced evidence as to the incident at the biscuit factory when Lee was angry with the plaintiff
and her mother for coming to the factory. Lee Kim Yen, a salesgirl at the factory, said that the plaintiff's
mother asked Lee why he did not go for such a long time and that Lee said "Forget about it. There is nothing
else to talk about", and drove them out of the office. In the light of the evidence adduced by the plaintiff and
particularly that given by Gan Siong Hiok, which is set out above and which I accepted, I did not regard Lee's
90

words as an indication that he cast off the plaintiff on that or any earlier occasion. Counsel for the defendants
invited the court to infer from the fact that the plaintiff did not attend the funeral that she knew that Lee had
cast her off. The plaintiff's explanation for not attending the funeral was that she was very upset on hearing of
Lee's death. It seemed to me probable also that she did not want to meet the second wife at the funeral be-
cause she was afraid that the second wife might start a row with her. In any event I accepted the plaintiff's
evidence that she wore the mourning sign and ceased to wear red clothes after Lee's death; and that she
went to the place where Lee was buried three months after the burial to perform certain rites. In view of the
plaintiff's own evidence as to her meetings with Lee after the incident at the factory, which is set out above
and which I accepted, I rejected the suggestion that the plaintiff knew that Lee had cast her off.
There was no evidence or even suggestion that the plaintiff had been disobedient to Lee or guilty of immoral
conduct. The question of disobedience to Lee's principal wife did not arise as the plaintiff never lived in the
principal wife's house and in fact was never introduced to her. I decided that Lee had no grounds for divorc-
ing the plaintiff, that he did not divorce her, and
1965 1 MLJ 102 at 109
that he did not even cast her off as suggested by counsel for the defendants.
For the above reasons I came to the conclusion that the plaintiff is one of the lawful widows of Lee Gee
Chong, deceased. And I ordered that paragraph 4 of the order of court dated the 20th February, 1961, be
amended to read "That letters of administration of the estate of Lee Gee Chong, deceased, be granted to the
said Tay Geok Yap and the said Lee Boon Leong and to Tan Lian Cheow".

WEE CHONG JIN CJ (SINGAPORE)

This is an appeal from the judgment of Ambrose J. of the High Court in Singapore. The learned trial judge
held that the respondent Tan Lian Cheow was a secondary wife and accordingly a lawful widow of Lee Gee
Chong deceased. Against this decision the appellants, to whom letters of administration of the estate of the
deceased have been granted, now appeal.
Lee Gee Chong, the deceased, died intestate on or about the 25th April 1960. He was a Chinese domiciled
in Singapore. After his death, his principal wife Tay Geok Yap one of the appellants, filed a petition for letters
of administration of his estate on the 17th May 1960. Against this petition a caveat was filed by Ng Yin Yeok
another appellant claiming an interest in the estate as a lawful widow of the deceased and as lawful guardian
of her three children by him. By a deed of agreement dated 13th February 1961 the High Court ordered that
the deed of agreement be approved and that letters of administration be granted to Tay Geok Yap and Lee
Boon Leong, the deceased's son by her.
On 13th October 1961 the respondent claiming to be one of the lawful widows of the deceased moved the
High Court to revoke the grant of letters of administration and as a result of this application the matter pro-
ceeded as an action between the respondent as plaintiff and the appellants as defendants and was heard by
Ambrose J. who held that the respondent was a secondary wife of the deceased. The trial judge found on the
evidence before him that the deceased and the respondent intended to form a permanent union as husband
and secondary wife and that they formed the union in accordance with their intention on the 19th December
1957. Having found these facts on the evidence he came to the conclusion that the respondent had success-
fully proved that she was according to the law in Singapore a secondary wife of the deceased. The trial
judge's view of the law is set out in this passage in his judgment:-

"On the authorities cited by counsel for the plaintiff, the conclusion I came to as regards the question what had to be
proved to prove a Chinese secondary marriage was this: it is only necessary to prove (1) a common intention to form a
permanent union as husband and secondary wife and (2) the formation of the union by the man taking the woman as
his secondary wife and the woman taking the man as her husband."

The authorities cited by counsel for the plaintiff and accepted by Ambrose J. are Re Yeow Kian Kee de-
ceased, Er Gek Cheng v Ho Ying Seng [1949] MLJ 171 and Re Lee Stew Kow, deceased [1952] MLJ 184.
In Re Yeow Kian Kee deceased, Er Gek Cheng v. Ho Ying Seng supra the issue before the then Chief Jus-
tice of Singapore was whether the plaintiff Er Gek Cheng was a secondary wife or t'sip of Yeow Kian Kee
91

deceased. In his judgment, before dealing with the evidence before him he dealt with the law applicable to
the matter before him.
At page 172 he said:-
"The legal requirements for marriage with a t'sai and a t'sip are, I think, the same. This means that the law of this Colo-
ny merely requires a consensual marriage, that is, an agreement to form a relationship that comes within the English
definition of marriage. It is no longer any part of that conception that such a relationship must be life-long. It merely
means one of indefinite duration as distinct from one for a definite period as is allowed among Moslems."

Again at page 173 he said:-


"In the case of Chinese marriages, in most cases, the ceremonies regarded as essential at the time of the Six Widows
Case (1908) 12 SSLR 120 have disappeared and there remains a simple form of consensual marriage, quite in con-
formity with the requirements of the Canon Law.
Therefore, if we adopt this conception we have a rational doctrine which can be applied in all cases which have not
been especially provided for by statute.
With these simple legal requirements the difficulties that have troubled the courts have been merely questions of evi-
dence. The burden of proof is upon whoever alleges the status of t'sip to have existed. What must be proved in order to
discharge that burden? In most cases there is some sort of a ceremony, and there is recognition of the t'sip as a mem-
ber of the husband's family. But this is evidentiary only. It is not essential to the acquisition of the statue of t'sip. A for-
mal contract in writing would be conclusive. If the parties were to live as such publicly so as to acquire the reputation of
being man and t'sip that would also be evidence that the status had been acquired. On the other hand, I do not consid-
er that mere cohabitation for a considerable period would by itself be sufficient evidence."

Lastly after reviewing the evidence he said at page 174:-


"After considerable hesitation I come to the conclusion that the plaintiff had acquired the status of a t'sip, as it has been
declared by courts composed of lawyers versed in English ideas. This conception is now part of the law of the Colony.
It is now too late to reopen what has been decided in the Six Widows Case and subsequently and to reduce the matter
to one of Chinese custom".

I have set out at length parts of the judgment of Murray-Aynsley C.J. to show that in my view, although he
has not expressly referred to
1965 1 MLJ 102 at 110
the many earlier cases on the question in issue, he has considered them and to show that in his opinion for
a woman to acquire the status of a secondary wife, the law of Singapore merely requires a consensual mar-
riage, that is, an agreement to form a relationship that comes within the English definition of marriage.
In Re Lee Siew Kow, cases supra, the Singapore Court of Appeal was comprised of Murray-Aynsley C.J.
(Singapore), Mathew C.J. (Federation of Malaya) and Brown J. Mathew C.J. and Brown J. both expressly
approved the decision of Murray-Aynsley C.J. in Er Gek Cheng v. Ho Ying Seng supra. Mathew C.J. at page
185 said:-
"In his judgment in Er Gek Cheng v. Ho Ying Seng, the learned Chief Justice has set out with great clarity the law of the
Colony on the subject of the acquisition of the status of a t'sip or secondary wife, and has removed certain obscurities
which clouded earlier decisions. He has laid down that for the legal requirements of a marriage with a t'sip the law of
the Colony merely requires a consensual marriage and that the requirements of a ceremony, of a formal contract and
of repute of marriage are evidentiary only and not essential to the acquisition of the status of a t'sip. With this exposition
of the law I am in complete agreement.'

Brown J. at page 186 said:-


"I can see nothing in that decision which is at variance with the later decision in Er Gek Cheng v. Ho Ying Seng. And I
think that upon the authorities the law can now be regarded as settled that in order to establish a claim to be a second-
ary wife a consensual marriage must be proved. The means by which the mutual consent to marry is to be proved is a
matter of evidence in each case".

Before us it was argued that Ambrose J. was wrong in law with regard to what must be proved to establish a
Chinese secondary marriage. It was urged that upon all the relevant authorities beginning from the judgment
of Sir Peter Maxwell when he was Recorder of Penang in the case of Reg v Willans (1859) 3 Ky 16 in 1859
92

down to the present day it was necessary to prove not only (1) a common intention to form a permanent un-
ion as husband and secondary wife and (2) the formation of the union by each taking the other as husband
or secondary wife as the case may be but also (3) that the taking of the woman as secondary wife must be in
accordance with proved Chinese customs.
At this stage it would be convenient to deal with a point raised during the course of the argument namely
whether the decision in the Re Lee Siew Kow, deceased supra, is binding on this court. Counsel for the ap-
pellants has conceded, and in my view rightly so, that by virtue of section 88(3) of the Malaysia Act the Fed-
eral Court must be regarded as being one and the same court as the former Singapore Court of Appeal and
that the decision in the Lee Siew Kow case is binding on this court unless, applying the principles laid down
in Young v Bristol Aeroplane Co Ltd supra it can be shown that (1) the decision, though not expressly over-
ruled, cannot, in the opinion of this court, stand with a decision of the Privy Counsel or (2) the decision was
given per incuriam in that it acted in ignorance of a decision of the Privy Council which would have affected
its decision had its attention been so drawn.
As regards the second principle counsel for the appellants urged upon us that two decisions of the Privy
Council, which would have affected the decision of the Singapore Court of Appeal, were not brought to its
attention in the Lee Siew Kow case. The two Privy Council cases are Cheang Thye Phin v Tan Ah Loy supra
and Khoo Hooi Leong v Khoo Chong Yeok supra. The arguments of counsel are not reported in the only law
report in which this case is reported and though it is correct to say that none of the three considered judg-
ments refer to the two decisions of the Privy Council, it is in my view apparent from all the three judgments,
all of which dealt with and considered the judgment of Terrell J. in Re Lee Choon Guan deceased [1935]
MLJ 78, in which he referred to both the Privy Council decisions, that not only was their attention drawn to
both decisions but they must have considered these two authorities in the light of the point raised before
them.
As regards the first principle the contention of counsel for the appellants is that the decision in Lee Siew
Kow's case cannot stand with the decision in the case of Khoo Hooi Leong v. Khoo Chong Yeok supra.
In Khoo Hooi Leong v. Khoo Chong Yeok supra, the registrar certified, as the result of an inquiry before him
as to whether one Khoo Hun Tee was a legitimate son of one Khoo Thean Tek, that Khoo Hun Tee was a
legitimate son. On appeal Sproule J. reversed that finding and the appellate court affirmed the decision of
Sproule J. The Privy Council upheld the decision of the appellate court.
The relevant facts in that case briefly were as follows:-
Khoo Thean Tek was a Chinese domiciled in Penang who had in addition to a principal wife one or more
secondary wives. During some period of time he formed some kind of association with a woman named Pet-
ronella, who as a result of this association gave birth to Khoo Hun Tee on 22nd January 1854. Petronella
was an Eurasian the daughter of Felix Baptist and from birth till death was a Roman Catholic by religion. On
19th April 1847 she was married at a Catholic Church to Richard Gaudoin. On 13th March 1857 Khoo Hun
Tee was baptised at a Catholic Church, being described in the register
1965 1 MLJ 102 at 111
as "Edward Baptist, illegitimate son of Petronella Baptist about 4 years old". It is common ground that Khoo
Thean Tek was the father of Khoo Hun Tee. In 1861 Petronella was married in Church to one Henry Cor-
nelius and in the marriage register she is described as widow of Richard Gaudoin. Nothing is known as to
where or when Richard Gaudoin died.
The registrar found that Petronella was a lawful secondary wife of Khoo Thean Tek and that therefore Khoo
Hun Tee was a legitimate son. He also found that even if Petronella was not a lawful secondary wife, yet
Khoo Hun Tee had been legitimate by subsequent recognition. The Privy Council held that even if (contrary
to the usual presumption) it were assumed that at the time when Khoo Hun Tee was conceived Richard
Gaudoin was in fact dead, so that Petronella was soluta or free to marry, nevertheless the evidence estab-
lishes nothing that is inconsistent but much that is only consistent with the view that the association between
Petronella and the settler was merely of a temporary or casual character and that there was no evidence that
the parties intended their union to be permanent in its nature so that upon the evidence it was impossible to
find that Petronella was a lawful secondary wife of Khoo Thean Tek.
93

The Privy Council also held as regards legitimation by subsequent recognition that, although it was rightly
conceded that the evidence of recognition would be sufficient to establish legitimation by subsequent recog-
nition under Chinese custom, this custom was not part of the law operative in the Colony on the ground that
no hardship much less injustice or oppression need result from a refusal to admit a modification of the Eng-
lish law in its application to the Chinese here so as to treat an illegitimate natural son as legitimated by sub-
sequent recognition. Lord Russell of Killowen who delivered the judgment of the Board said (pages 355--6):-
"Sproule J. (and Stevens J. in the appellate court) held that the Chinese custom of legitimation of a natural son by sub-
sequent recognition was not part of the law operative in the Colony. Their Lordships agree with that view.
The modifications of the law of England which obtain in the Colony in the application of that law to the various alien
races established there, arise from the necessity of preventing the injustice or oppression which would ensue if that law
were applied to alien races unmodified. That was the view expressed by Sir Peter Maxwell C.J. in Choa Choon Neo v
Spottiswoode 1 Kyshe 216; and this Board, in Yeap Cheah Neo v Ong Cheng Neo LR 6 PC 381 396, stated that in Sir
Peter Maxwell's judgment 'the rules of English law, and the degree in which, in cases of this kind, regard should be had
to the habits and usages of the various people residing in the Colony are correctly stated.'
From the above mentioned necessity arises the recognition by the courts of the Colony of polygamous marriages
among the Chinese, and, as a logical consequence, the recognition of the legitimacy of the offspring (whether male or
female) of such marriages.
Their Lordships, however, are unable to find any grounds which would justify such a modification of English law as to
treat an illegitimate natural son as legitimated by the mere fact of subsequent recognition. Legitimation of a child,
whose parents are not husband and wife, is unknown and repugnant to the common law of England, and no hardship
(much less injustice or oppression) need result from a refusal to admit a modification in this respect of the English law
in its application to Chinese."

This judgment clearly lays down that the true principle upon which our courts have for almost a century con-
sistently recognised the custom among the Chinese here of polygamous marriages is to prevent the injustice
or oppression which would result from a failure to do so.
Counsel for the appellants contended before us that from the above principle it follows that a woman who
claims to be a lawful secondary wife of a Chinese must inter alia prove that the marriage was performed or
celebrated in accordance with the customs and rites of the Chinese inhabitants here because unless so cel-
ebrated, to refuse to recognise such a marriage would cause no injustice or oppression. This contention I am
unable to accept.
It seems to me on the issue of whether Petronella had been in fact a secondary wife of Khoo Thean Tek, the
Privy Counsel found that the evidence did not justify any such finding and if any principles can be extracted
from the judgment of the Board it seems to me they are first, that the parties to such a union must intend
their union to be permanent in its nature and secondly, that no form of marriage ceremony is necessary for
creating the position or status of a secondary wife. This second principle accords with the decision of the
Privy Council in Cheang Thye Phin v Tan Ah Loy [1920] AC 369 where Lord Finlay who delivered the judg-
ment of the Board said:-
"There is nothing in the Six Widows' Case justifying the proposition that the court decided that a ceremony was essen-
tial".

Later on in dealing with the evidence as to whether there was in fact a ceremony Lord Finlay said:-
"The learned registrar ... finds there was no ceremony ... All the judges of the Court of Appeal held that a ceremony
though usual was not essential to constitute a secondary wife. The view taken by them on this point is entirely con-
sistent with the Six Widows' Case. ..."

It seems to me to follow that if no form of ceremony is necessary to create the status of a secondary wife, the
proposition put forward that the law requires proof that the marriage was performed or celebrated in accord-
ance with Chinese customs and rites cannot stand.
Apart from the doctrine of precedent, I am
1965 1 MLJ 102 at 112
in entire agreement with the passages in the judgments of Murray-Aynsley C.J. in the case of Er Gek Cheng
v Ho Ying Seng [1949] MLJ 171 and of Mathew C.J. in the Lee Siew Kow case which I have earlier set out
94

and it follows in my opinion that the learned judge correctly sets out the law as regards what must be proved
to establish a Chinese secondary marriage.
It may well be that the consequences which were held by our courts to follow when a woman successfully
establishes that she has acquired that status may not have accorded with the consequences which follow in
China when a woman acquires the status of a 't'sip' i.e. a secondary wife in China but those consequences
flow from the fact that the law applicable here is the law of England modified only to the extent necessary to
prevent injustice or oppression to the local inhabitants here and those consequences have obtained ever
since our courts have held polygamous unions among the Chinese here are valid marriages.
With regard to the facts, it seems to me as the trial judge has correctly set out the law to be applied, that he
was entitled to and indeed bound to find as he did, once he believed and accepted the evidence of the re-
spondent, her mother and the deceased's uncle. Indeed at the trial, on the issue of whether there was a valid
marriage as a secondary wife, the record discloses that the appellants led no evidence but relied entirely on
their counsel's submission on the law.
Counsel for the appellants urged before us that the evidence does not justify the finding that the deceased
intended to enter into a permanent union with the respondent. For the reasons set out in the judgment of
Wylie C.J. which I have had the advantage of perusing, I am of the opinion that there was ample evidence to
justify this finding.
For these reasons, I would dismiss this appeal with costs.

WYLIE CJ (BORNEO)

It is convenient to deal first with the questions of law raised in this appeal and this can be done without refer-
ence to the facts of the case.
The questions of law raised by the appellant were two:-

(1) That the trial judge wrongly interpreted the law in regard to what must be proved to establish a
Chinese secondary marriage.
(2) That the Singapore Court of Appeal wrongly interpreted the law in their decision in re Lee Siew
Kow, deceased (7) and that this court is not bound to follow that decision as it was given per
incuriam.
As to whether this court is bound by that decision, counsel referred to Young v Bristol Aeroplane Co Ltd
[1944] 1 KB 718, Moore v Hewitt [1947] 2 All ER 270 and R v Northumberland and Compensation Appeal
Tribunal [1951] 1 All ER 268. It was submitted that there had not been brought to the attention of the court in
Lee Siew Kow's case [1920] AC 369 the decision of the Privy Council in Cheang Thye Pin v Tan Ah Loy
[1920] AC 369 and in Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346. This, it was said, follows from
the fact that these two Privy Council judgments were not referred to in the judgments of the Court of Appeal.
It has to be observed that the arguments of counsel are not reported and, therefore, it is not known from the
report what authorities were brought to the attention of the court by counsel. However, one of counsel's ar-
guments (it appears to involve the only question of law raised in that case) was that the decision in Re Lee
Choon Guan, deceased [1935] MLJ 78 was erroneous, and all three judges refer to that judgment. That
judgment in turn refers to both the Privy Council decisions. It is clear that the judgment in Lee Choon Guan
must have been fully dealt with in argument and have been considered again by all three judges in consider-
able detail before giving their considered judgments. Judgment had been reserved. In those circumstances,
it is not reasonable to assume that these decisions were not brought to the attention of the judges. A mere
perusal of the judgment in Lee Choon Guan refers the reader to these authorities. Accordingly, in my judg-
ment the general principle applies that a court is bound by its own decision, until that decision is upset by a
court whose decisions are binding on the first court. It was conceded that, by virtue of section 88(3) of the
Malaysia Act, the Federal Court must be regarded as in the same position as the Court of Appeal of Singa-
pore in applying this principle to this decision. Accordingly, in my judgment, this court is bound by the deci-
sion in Re Lee Siew Kow, deceased [1952] MLJ 184.
95

It is also to be noted that the state of the law has been the same for some fifteen years. In Singapore, where
the population is some eighty per cent of Chinese origin, there must have been a considerable number of
instances during those years where people have been guided by this state of the law in disposing of matters
concerning Chinese secondary marriages, including some very important related matters such as the status
of children and distribution of estates. See, for instance, In Re Ho Khian Cheong, deceased [1963] MLJ 316.
This is, in my judgment, an added reason for the conclusion that this court should feel itself bound by the
decision in Lee Siew Kow's case [1920] AC 369.
I should add that, although I have felt bound to follow this decision for the reasons I have given, I must not be
understood to disagree with that decision. However, having regard to the reasons I have given, I do not con-
sider it necessary to set out my views on this aspect, beyond
1965 1 MLJ 102 at 113
recording that I find nothing in the two Privy Council decisions that is inconsistent with the decision of the
Court of Appeal. Indeed, in Tan Ah Loy's case [1920] AC 369 the Privy Council refers to the evidence in
general as establishing that Tan Ah Loy was a secondary wife and nowhere is there any suggestion that any
particular part of that evidence dealt with any feature that had of necessity to be established as a matter of
Chinese custom or of law. In Khoo Hooi Leong's case [1934] MLJ 83 it was held merely that the evidence in
general did not establish that relationship. There is no suggestion that this was because some particular, and
essential, feature had not been established, except for the comment that the intention established appeared
to be an intention to enter into a relationship that was temporary only, and not of a permanent nature. This
comment tends to support, rather than conflict with, the judgments of the Chief Justice and Court of Appeal
of Singapore as to what is required.
Of course, this court is not bound by previous decisions on questions of fact. And the question whether a
certain usage exists is a question of fact, although the court will not require evidence to be called after the
usage has been recognised by the courts to a sufficient extent. It is also open to the parties to call evidence
that the usage is now different from what was established in earlier cases. That course was not followed by
either party in the present case.
In my judgment, this course is no longer open in regard to contracting a Chinese secondary marriage in Sin-
gapore. The decision in Lee Siew Kow's case [1952] MLJ 184 confirmed an earlier decision by the Chief Jus-
tice of Singapore in Er Gek Cheng v Ho Ying Seng [1949] MLJ 171, and, in the latter case, the Chief Justice
made it clear that he was making a decision as to what was now part of the law of Singapore. At page 172
he said:-

"The legal requirements for marriage with a t'sai and a t'sip are, I think, the same. This means that the law of this Colo-
ny merely requires a consensual marriage, that is, an agreement to form a relationship that comes within the English
definition of marriage. It is no longer any part of that conception that such a relationship must be life-long. It merely
means one of indefinite duration as distinct from one for a definite period, as is allowed among Moslems."

And again, in his conclusion after reviewing the evidence, he sums up at page 174 in these words:-
"After considerable hesitation I come to the conclusion that the plaintiff had acquired the status of a t'sip: as it has been
declared by courts composed of lawyers versed in English ideas. This conception is now part of the law of the Colony.
It is now too late to reopen what has been decided in the Six Widows Case and subsequently and to reduce the matter
to one of Chinese custom."

There are other passages in his judgment which show that he considers the matter to be one of law and no
longer merely a question of Chinese custom.
In Lee Siew Kow's case, the remaining two members of the court expressly affirmed their approval of this
earlier decision as to the law by the Chief Justice of Singapore, who was the third member of the court.
Mathew C.J. says at page 185:-
"He (i.e. the Chief Justice of Singapore) has laid down that for the legal requirements of a marriage with a t'sip the law
of the Colony merely requires a consensual marriage and that the requirements of a ceremony, of a formal contract
and of repute of marriage are evidentiary only and not essential to the acquisition of the status of a t'sip. With this ex-
position of the law I am in complete agreement."
96

And per Brown J. at page 186 after referring to the earlier decision:-
"And I think that upon the authorities the law can now be regarded as settled that in order to establish a claim to be a
secondary wife a consensual marriage must be proved. The means by which the mutual consent to marry is to be
proved is a matter of evidence in each case."

The headnotes to these two cases correctly record what was stated in the judgments as to the law of Singa-
pore. In my judgment, therefore, this aspect of the subject - that is, what must be proved to establish a Chi-
nese secondary marriage - is no longer a question of usage. However, even if it still is, it was for the appel-
lant to show by evidence that the usage had changed since those decisions and, as I have said, this course
was not followed.
As to whether the trial judge wrongly interpreted the law, counsel contended that the conclusion arrived at by
the learned judge on the law was erroneous. That conclusion was as follows:-
"On the authorities cited by counsel for the plaintiff, the conclusion I came to as regards the question what had to be
proved to prove a Chinese secondary marriage was this: it is only necessary to prove (1) a common intention to form a
permanent union as husband and secondary wife and (2) the formation of the union by the man taking the woman as
his secondary wife and the woman taking the man as her husband."

This conclusion is arrived at after a review of Er Gek Cheng's case [1949] MLJ 171 and Lee Siew Kow's case
[1952] MLJ 184 and after reviewing the decision in Lee Choon Guan [1935] MLJ 78 and deciding that it is not
essential to prove long cohabitation and reputation of marriage in order to establish a Chinese secondary
marriage.
The argument that this conclusion was wrong was really based in turn on the contention that the decisions in
Er Gek Cheng's case and Lee Siew Kow's case were erroneous. I have already given my reasons why I feel
bound to follow the latter decision and there is thus
1965 1 MLJ 102 at 114
nothing more to be said on the questions of law raised.
As to the facts, it was contended that there were several features of the evidence (as set out in the second
ground of appeal) that the trial judge failed to consider or from which he failed to draw the proper inferences.
A number of these points the judge clearly took into consideration and the others cannot, in my judgment,
entitle a Court of Appeal on the facts of this case to reverse his decision on what is essentially a question of
fact. It is necessary to bear in mind that the judge specifically states that he saw no reason to disbelieve the
evidence of the plaintiff's mother and of Lim Joo Lim, the deceased's uncle. From that evidence he found, as
he was clearly entitled to find, several most important facts bearing on deceased's intentions with regard to
the relationship between himself and the respondent. These findings can be summarised as follows:-

(1) The deceased sent his uncle to respondent's mother to seek the mother's consent to his marry-
ing the respondent.
(2) When deceased and the mother first met, it was marriage that was discussed.
(3) At a subsequent meeting between them dowry was discussed.
(4) Deceased co-operated in arrangements for, and actually paid for, a horoscope to find auspi-
cious dates for betrothal and marriage.
(5) Deceased drafted a document which, on deceased's instructions, Lim caused to be typed and
signed in duplicate by respondent, her mother and a witness. This document is clearly an ac-
knowledgment that respondent was to be married to deceased as a secondary wife. Deceased
kept one copy of this document and the respondent's mother the other copy.
(6) Deceased disclosed to his servant that the person who was coming to live in one of deceased's
flats was his third wife.
(7) Later, when there was trouble between deceased and respondent, deceased told one of his
close friends that he had married respondent.
While it is true that deceased never introduced respondent into his own family, there was ample in the evi-
dence of deceased's uncle, his servant and his friend to support the respondent's explanation that this was
97

because deceased wished to keep his third marriage secret from his first and second wives. Indeed, no other
conclusion seems reasonable on all the evidence.
In my judgment, once the evidence of the respondent and her mother and deceased's uncle is accepted
there can be no other conclusion but that these parties intended to enter into a Chinese secondary marriage
and did in fact do so.
For these reasons, I would dismiss this appeal with costs.

TAN AH TAH FJ

This is an appeal from a judgment of Ambrose J. whereby it was held that the respondent was a secondary
wife of Lee Gee Chong who died in April 1960 and that she is therefore now one of his lawful widows. In the
course of his judgment the learned judge stated his view of the law on the issue before him in the following
words:-

"On the authorities cited by counsel for the plaintiff, the conclusion I came to as regards the question what had to be
proved to prove a Chinese secondary marriage was this: it is only necessary to prove (1) a common intention to form a
permanent union as husband and secondary wife and (2) the formation of the union by the man taking the woman as
his secondary wife and the woman taking the man as her husband."

The authorities relied upon by the learned judge were Re Yeow Kian Kee, deceased, Er Gek Cheng v Ho
Ying Seng [1949] MLJ 171 and Re Lee Siew Kow, deceased [1952] MLJ 184.
The case of Re Yeow Kian Kee, deceased, Er Gek Cheng v. Ho Ying Seng supra, was heard in the High
Court of Singapore before Murray-Aynsley C.J. who is the course of his judgment said, at page 172:-
"The legal requirements for marriage with a t'sai and a t'sip are, I think, the same. This means that the law of this Colo-
ny merely requires a consensual marriage, that is, an agreement to form a relationship that comes within the English
definition of marriage. It is no longer any part of that conception that such a relationship must be life-long. It merely
means one of indefinite duration as distinct from one for a definite period as is allowed among Moslems."

At page 173 of the same report, there appears the following passage:-
"In the case of Chinese marriages, in most cases, the ceremonies regarded as essential at the time of the Six Widows
Case have disappeared and there remains a simple form of consensual marriage, quite in conformity with the require-
ments of the Canon Law.
Therefore, if we adopt this conception we have a rational doctrine which can be applied in all cases which have not
been especially provided for by statute.
With these simple legal requirements the difficulties that have troubled the courts have been merely questions of evi-
dence. The burden of proof is upon whoever alleges the status of t'sip to have existed. What must be proved in order to
discharge that burden? In most cases there is some sort of a ceremony, and there is recognition of the t'sip as a mem-
ber of the husband's family. But this is evidentiary only. It is not essential to the acquisition of the status of t'sip. A for-
mal contract in writing would be conclusive. If the parties were to live as such publicly so as to acquire the reputation of
being man and t'sip that would also be evidence that the status had been acquired. On the other, hand, I do not con-
sider that mere cohabitation for a considerable period would by itself be sufficient evidence."

Re Lee Siew Kow, cases supra, was heard by the Singapore Court of Appeal, the members of the court be-
ing Murray-Aynsley C.J. (Singapore), Mathews C.J. (Federation of Malaya) and Brown J. The case of Er Gek
Cheng v. Ho Ying Seng supra was referred to and the decision of Murray-Aynsley C.J. in that case was ap-
proved by Mathew C.J. and Brown J. Mathew C.J. said, at page 185:-
1965 1 MLJ 102 at 115
"In his judgment in Er Gek Cheng v. Ho Ying Seng, the learned Chief Justice has set out with great clarity the law of the
Colony on the subject of the acquisition of the status of a t'sip or secondary wife, and has removed certain obscurities
which clouded earlier decisions. He has laid down that for the legal requirements of a marriage with a t'sip the law of
the Colony merely requires a consensual marriage and that the requirements of a ceremony, of a formal contract and
of repute of marriage are evidentiary only and not essential to the acquisition of the status of a t'sip. With this exposition
of the law I am in complete agreement."
98

Brown J. said, at page 186:-


"I can see nothing in that decision which is at variance with the later decision in Er Gek Cheng v. Ho Ying Seng And I
think that upon the authorities the law can now be regarded as settled that in order to establish a claim to be a second-
ary wife a consensual marriage must be proved. The means by which the mutual consent to marry is to be proved is a
matter of evidence in each case."

It was contended by counsel for the appellants that the principles relating to Chinese secondary marriages
were not correctly stated in Re Yeow Kian Kee, deceased, Er Gek Cheng v. Ho Ying Seng supra, and Re
Lee Siew Kow, cases supra, and that the learned trial judge, in relying upon those authorities, had according-
ly taken an erroneous view of the law. This argument naturally gave rise to the question whether the decision
in Re Lee Siew Kow, cases supra, which, as I have said, was heard by the Singapore Court of Appeal is
binding on this court.
Counsel for the appellants conceded, and in my view properly conceded, that in considering this question,
having regard to the provisions of section 88(3) of the Malaysia Act, 1963, the Singapore Court of Appeal
must be regarded as being in effect one and the same court as this court.
However, counsel for the appellants went on to cite Young v Bristol Aeroplane Co, Ltd [1944] 1 KB 718 and,
in reliance on the principles enunciated in that case, submitted that this court should refuse to follow the de-
cision in Re Lee Siew Kow, cases supra, for two reasons, the first being that the decision cannot stand with
the decision of the Privy Council in the case of Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346 and the
second being that the decision in Re Lee Siew Kow, cases supra, was given per incuriam.
As to the first of these two reasons, it is to be observed that the decision in Khoo Hooi Leong v. Khoo Chong
Yeok supra, was given prior to and not subsequent to the decision in Re Lee Siew Kow, cases supra. In any
event, the judgment of the Privy Council in Khoo Hooi Leong v. Khoo Chong Yeok shows that the Board
were not so much concerned with a marriage ceremony or ceremonies as with other facts and circumstances
which indicated whether or not the man Khoo Thean Tek and the woman Petronella intended their union to
be permanent in its nature. I can find nothing in the judgment which is inconsistent with the decision in Re
Lee Siew Kow, cases supra.
With regard to the second reason put forward by counsel for the appellants, this depends upon the fact that
two decisions of the Privy Council, namely Cheang Thye Phin v Tan Ah Loy [1920] AC 369 and Khoo Hooi
Leong v. Khoo Chong Yeok supra, were not referred to in any of the three judgments in Re Lee Siew Kow,
cases supra. It should be noted, however, that each of the three judgments deals with the case of Re Lee
Choon Guan, deceased [1935] MLJ 78, which had been cited to the courts and must have been discussed
during the hearing. The two Privy Council decisions are referred to in the judgment in Re Lee Choon Guam,
deceased supra and must have been brought to the attention of the three judges. In my opinion, it cannot be
said that the decision in Re Lee Siew Kow, cases supra, was given per incuriam.
It follows from the foregoing that in my judgment this court is bound by the decision in Re Lee Siew Kow,
cases supra. Indeed, I would go further and state that I agree with the principles relating to Chinese second-
ary marriages set out in the judgment of Mathew C.J. in that case and also with the judgment of Murray-
Aynsley C.J. in Er Gek Cheng v. Ho Ying Seng supra.
As to the law, therefore, the learned trial judge has in my opinion correctly stated the principles to be applied
to the case. With regard to the facts, he has stated that he believed and accepted the evidence of the re-
spondent, her mother and the deceased's uncle. In my opinion there was ample evidence on which he could
reach the conclusion, which he did, that the respondent is one of the lawful widows of the deceased.
I would dismiss this appeal with costs.

WEE CHONG JIN CJ (SINGAPORE)

delivering oral judgment on the question of costs: On the question of costs we think on the authorities the
position is clear. Unless it can be shown that there are exceptional circumstances for a trustee or trustees to
seek a second opinion from the courts, where litigation is concerned, the unsuccessful appellant must pay
the costs, that is to say, the usual consequences will follow from an unsuccessful appeal.
99

That being so the order which all three of us made in our judgments that the appeal is dismissed with costs
will stand and that means, if it needs any clarification, that the appellants must pay the costs to be taxed be-
tween party and
1965 1 MLJ 102 at 116
party and that the unsuccessful trustees the first appellants in this case are not entitled to their costs out of
the estate.

Appeal dismissed.

Solicitors: Laycock & Ong; Allen & Gledhill.

From the above judgment the defendants appealed to the Federal Court.
100

Malayan Law Journal Reports/1961/Volume 1/RE LOH TOH MET, DECD KONG LAI FONG & ORS v LOH
PENG HENG - [1961] 1 MLJ 234 - 20 May 1961

15 pages

[1961] 1 MLJ 234

RE LOH TOH MET, DECD KONG LAI FONG & ORS v LOH PENG HENG
CA JB
THOMSON CJ HILL JA AND RIGBY J
FM CIVIL APPEALS NOS 23, 24, & 26 OF 1960
20 May 1961

Chinese customary marriage -- Chinese permitted by his personal law a plurality of wives -- Recognition of
Chinese polygamous marriages -- Whether Chinese Christian can enter into a polygamous union in accord-
ance with his personal law -- Christian Marriage Ordinance, Straits Settlements -- Christian Marriage Enact-
ment, Johore

These appeals concern the distribution of the estate of one Loh Toh Met who died at Johore Bahru on July
21, 1958. The deceased was survived by three women whom he married in accordance with Chinese cus-
tom, seven children born in wedlock, four adopted children and his father. The deceased died intestate dom-
iciled in Johore. The trial Judge held that the deceased was a person professing the Christian religion and
that as he had not married the women in accordance with the provisions of the Christian Marriage Ordinance
of the Straits Settlements and of the Christian Marriage Enactment of Johore, each of three purported mar-
riages was void and therefore none of the women nor any of the natural or adopted children was entitled to
any share in the distribution of the estate. He held that the father of the deceased alone was entitled to suc-
ceed to the estate. The children and the three widows appealed.

Held:

(1) Chinese polygamous marriages are lawful and a Chinese can contract a valid polygamous
marriage;
(2) even if a Chinese is a Christian he can choose whether to contract a monogamous marriage or
a polygamous marriage;
(3) in this case the evidence does not show that the deceased was a person professing the Chris-
tian religion at the time of any of his marriages;
(4) the deceased was a person permitted by his personal law a plurality of wives and he validly en-
tered into contracts of marriage to the three women who are therefore to be regarded as his
widows and their children born during wedlock as his legitimate natural children.
(5) as the adopted children were not adopted under the provisions of the Adoption Ordinance,
1952, they were not entitled to any share in the estate of the deceased.

Cases referred to
Abd-ul-Messih v Farra 13 App Cas 431 437
Lao Leong An Leic 418
Choo Eng Choon, Choo Ang Chee v Neo Chan Neo & Ors 12 SSLR 120
Cheang Thye Phin v Tan Ah Loy [1920] AC 369 373
Yap Kwee Ying v Lai Kim Foh [1950] MLJ 35
101

Reg v Willans Leic 66; 3 Ky 16


In the Goods of Abdullah 2 Ky 8
Chu Siang Long Leic 460
Dalrymple v Dalrymple 2 Hagg Con 59
Ruding v Smith 2 Hagg Con 371
Warrender v Warrender (1835) 2 Cl & F 488
Srini Vasan v Srini Vasan [1946] P 67 70
Chulas & Kachee v Kolson Leic 462
Hawah v Daud Leic 253
Goodman's Trusts 17 Ch D 266
Choa Choon Neoh v Spottiswoode 1 Ky 216
Ong Cheng Neo v Yeap Cheah Neo LR 6 PC 361 ; 1 Ky 326 on appeal to Privy Council 1 Ky 337
Khoo Tiang Bee v Tan Beng Gwat 1 Ky 413
Khoo Hooi Leong v Khoo Hean Kwee [1926] AC 529
Khoo Thean Tek's Settlements [1928] SSLR 178 on appeal; [1929] SSLR 50
Khoo Hooi Leong v Khoo Chong Yeok [1930] SSLR 127; [1930] AC 346
Yap Tham Thai v Low Hup Neo (1919) 1 FMSLR 383
Hyde v Hyde (1866) LR 1 P & D 130
Bethell v Hildyard 38 Ch D 220
Brook v Brook (1861) 9 HLC 193 207
Dorothy Yee [1956] MLJ 257
In re Henry Lee Fow Lee [1953] MLJ 106
Chia Teck Leong & Ors v Estate and Trust Agencies (1927) Ltd [1939] MLJ 118
Chetti v Chetti [1909] P 67
Anwarduddin [1917] 1 KB 634
Kolandaivelu v Dequidt ILR 40 Mad 1030
Maha Ram v Emperor AIR 1918 All 168
Queen-Empress v Paul (1897) 20 Mad 12
Lopez v Lopez ILR 12 Cal 706
Saldanha v Saldanha ILR 54 Bomb 288
De Wilton v Montefiore [1900] 2 Ch 481

CIVIL APPEAL
[#65533]

R Murugason for appellants in Civil Appeal No 23/60.

Philip Hoalim (Sr) for appellant in Civil Appeal No 24/60.


102

M Karthigesu for appellant in Civil Appeal No 26/60.

MB Brash for natural children in all appeals.

NA Mallal and YR Jumabhoy for respondent.

THOMSON CJ

These appeals concern the distribution of the estate of one Loh Toh Met who died at Johore Bahru on 21st
July, 1958.
The deceased was survived by three women with each of whom he had entered into a relationship of a con-
nubial nature in accordance with Chinese custom which for convenience I shall call a Chinese marriage.
These were Madam Kong with whom the Chinese marriage was contracted in Singapore in 1932, Madam
Yong with whom the Chinese marriage was contracted in Johore in 1940 and Madam Chan with whom the
Chinese marriage was contracted in Johore some time between 1953 and the death of the deceased. All of
these women are parties to the present proceedings. The deceased was also survived by his father Loh
Peng Heng who is also a party to the proceedings and by eleven children. Of these, six named Anthony,
Philomena, Charlie, Daniel, Emmanuel and Rosa are the natural children of the deceased by Madam Yong,
all born in wedlock, one by name Francis is the natural son of the deceased by Madam Chan, born in wed-
lock, and four by name Mary, Lucy. Annie and Bartholomew were adopted by the deceased and one or other
of his wives at various times.
The deceased died intestate, and it is common ground that at the time of his death his domicile was in the
State of Johore. The distribution of the whole of his estate, movable and immovable, thus falls to be distrib-
uted in accordance with the provisions of the Distribution
1961 1 MLJ 234 at 235
Ordinance (No.1 of 1958) which came into force on 1st May, 1958.
By section 6(1)(ii) and (iii) of that Ordinance where a man dies intestate leaving a wife and issue, 1/3 of
the estate goes to the surviving wife and the balance goes to the issue to be held on the statutory trusts set
out in section 7. By Section 3 "issue" is defined as including children and the descendants of deceased chil-
dren and the definition of "children" includes legitimate children and, by reason of section 29 of the Adop-
tion Ordinance, 1952, children adopted under the provisions of that Ordinance but excludes children adopted
otherwise than under the provisions of that Ordinance. By section 6(2) if the intestate "be permitted by his
personal law a plurality of wives" and leaves surviving him more wives than one these wives are to share
among themselves equally the widow's share as defined by section 6(1)(ii). By section 6(1)(iv) where the in-
testate leaves no widow and no issue then the estate goes in the first place to any surviving parent or par-
ents.
After the death of Loh Toh Met, Madam Kong and Madam Chan applied for Letters of Administration to his
estate and in their petition set out themselves, Madam Yong, all the natural children and all the adopted chil-
dren who have been enumerated as being at the time of his death the only next-of-kin of the deceased. They
did not, however, differentiate between the adopted children and the natural children. Madam Yong lodged a
caveat to the petition and an order was then made that an issue be tried "to determine as to who are the
next-of-kin and issue who are entitled as beneficiaries" in the estate of the deceased. Madam Yong then filed
a defence which was to the effect that although Madam Kong and herself had been wives of the deceased
Madam Chan had not been his wife and that certain of the children were not natural children but adopted
children.
At a later stage Loh Peng Heng, the father of the deceased, also filed a caveat and on being joined as a
second defendant in the probate suit pleaded in effect that none of the widows was a lawful widow and none
of the children were legitimate children on the ground that the deceased was a person professing the Chris-
tian religion and had not married Madam Kong in accordance with the Christian Marriage Ordinance of the
then Straits Settlements and had not married Madam Yong or Madam Chan in accordance with the Christian
Marriage Enactment of the State of Johore.
103

In the event Neal J. held that all three women became the wives of the deceased according to Chinese cus-
tom and were thus his widows according to that custom, that the children Mary, Lucy, Annie and Bartholo-
mew had been adopted by the deceased according to Chinese custom but had not been adopted in accord-
ance with the provisions of the Adoption Ordinance and that the children Francis, Anthony, Philomena, Char-
lie, Daniel, Emmanuel and Rosa were the natural children of the deceased by Madam Yong and Madam
Chan. He went on, however, to hold that the deceased at all material times was a person professing the
Christian religion, that he had not married Madam Kong in accordance with the provisions of the Christian
Marriage Ordinance of the Straits Settlements and had not married Madam Yong or Madam Chan in accord-
ance with the Christian Marriage Enactment of Johore, that accordingly each of these three purported mar-
riages was void and therefore none of these women nor any of the natural or adopted children was entitled to
any share in the distribution of the estate. On that he held that the person entitled to succeed to the estate
was the father Loh Peng Heng. He accordingly declared that Loh Peng Heng, the father of the deceased,
was alone entitled to succeed to the estate and ordered that Letters of Administration be granted to him.
Against that judgment the children and the three widows have all appealed, and the main ground of their ap-
peal is, briefly, that the three Chinese marriages were all valid.
As regards the adopted children, their case stands on a different footing from that of the natural children and
it will clear away a question that does not affect the main issue before us if I say at this stage that in my view
any appeal by them must in any event fail. Regardless of the question of the validity of the marriages it is
quite clear from the wording of the Distribution Ordinance that an adopted child can have no part in the suc-
cession of his adoptive parents unless he has been adopted in accordance with the provisions of the Adop-
tion Ordinance, 1952, and none of the adopted children in the present case can claim to have been so
adopted. It is true that one of these children who was de facto adopted was registered under the Registra-
tion of Adoptions Ordinance, 1952. That however, is beside the point because registration of a de facto
adoption under that Ordinance of itself confers no succession rights.
Coming now to the question of the marriages, the Distribution Ordinance provides, as did the now repealed
Distribution Enactment of the State of Johore, that if a person dying intestate is "permitted by his personal
law a plurality of wives" and leaves surviving him more wives than one then all the wives who do survive him
are entitled to share equally in the widow's third share of the estate.
The logical approach, therefore, to the present appeals is to inquire in the first place whether the personal
law of the deceased permitted him a plurality of wives. Then we must inquire whether he was a person who
professed the Christian religion and if he was whether that fact operated in any way so as to altar his per-
sonal law or so as to render void his marriages with Madam Kong, Madam Yong and Madam Chan by rea-
son of anything contained in the relevant statutes relating to Christian Marriage.
1961 1 MLJ 234 at 236
Whatever may have been the position in the middle ages, in the modern world, and in particular in the eyes
of the law of England, a man's personal law relating to status and the legal consequences which flow from
status depends upon his place of domicile. As was said by Lord Watson in the case of Abd-ul-Messih v Farra
13 App Cas 431 437:--

"It is a settled rule of English law that civil status, with its attendant rights and disabilities, depends, not upon nationality,
but upon domicil alone; and, consequently, that the law of the testator's domicil must govern in all questions arising as
to his testacy or intestacy, or as to the rights of persons who claim his succession ab intestato."

In certain cases, however, the law of the place of domicile may allow a different personal law to different
classes of persons. In India, for example, an individual's personal law generally speaking depends on the
religious society within the political society to which he belongs, the microcosm within the microcosm.
At this stage it will be desirable to state certain historical considerations.
The East India Company acquired Penang by treaty from the Ruler of Kedah in 1786 and governed it as part
of the Presidency of Fort William until 1805 when it was formed into a separate Presidency. In 1824 the
Company acquired Singapore by treaty from the Ruler of Johore, by a treaty of the same year Malacca was
ceded by Holland to the British Crown and in the following year both Singapore and Malacca were annexed
104

to Penang by Act of Parliament (6 Geo. IV, c. 85, s.21) as one Indian Presidency. In 1830 this separate Pres-
idency was abolished and the three Settlements became subordinate to the Presidency of Fort William. As
part of India they became vested in the British Crown by virtue of the Government of India Act, 1858, and by
the Government of the Straits Settlements Act, 1866, which came into force on 1st April, 1867, they were
constituted a separate Crown Colony. In 1945 Penang and Malacca were separated from Singapore and
became with the peninsular Malay States the Malayan Union which became in 1948 the Federation of Ma-
laya and in 1957 Persekutuan Tanah Melayu.
The question of what is and has been at various times the lex loci in all these various political units is not free
from difficulty and to some extent is of academic interest only.
The Malay States are inhabited by people who, at any rate since the fifteenth century, are of the Muslim reli-
gion and their law is the Mohammedan Law modified to some extent by Malay 'adat though in the latter part
of the nineteenth century and in the present century great inroads have been made in that by the reception of
English law.
Since the so-called "First Charter" of 1807 (Letters Patent of 25th March, 1807) the lex loci of Penang has
been the English Law and this has been the case in Malacca since the cession of 1824 and in Singapore at
any rate since the "Second Charter" (Letters Patent of 27th March, 1826).
In all these political units, however, there have been for many years many people, notably Chinese, Indian
and British, both English and Scots, who while they have made their homes there and acquired domicile
there in the modern legal sense have retained much of the way of living and conduct which they or their an-
cestors brought from the lands of their origin. And from a time which in many cases is impossible of exact
determination the Courts have decided questions of status and certain questions such as questions of distri-
bution of estates which are connected with status not in accordance with the lex loci but in accordance with
what was thought to be the law of the place from which persons of the same sort as the person concerned
had come.
In particular, and in accordance with that general policy, the Courts have consistently recognized among in-
habitants of Chinese origin the custom whereby a man could enter into a permanent conjugal relationship
with a principal spouse called a "t'sai" and then during the existence of that relationship enter into equally
permanent relationships with other women known as "t'sip". The Courts have held that though the status of
the "t'sai" and the "t'sip" may not be in all respects the same yet each has a definite legal status and that the
children of their unions have the status of legitimacy. In particular as regards distribution in the case of intes-
tacy the law has been interpreted to give the female partners to such unions equal rights in the widow's
share and to treat all the natural children as children of their common father. That custom may or may not
accord with the modern law of China, or indeed with anything that ever has been the law of China, but it is a
custom which the Courts have for many years recognized.
In the Straits Settlements the custom was first definitely recognised in 1867 in the case of Lao Leong An Leic
418. In the historical "Six Widows' Case" ( Choo Eng Choon, Choo Ang Chee v Neo Chan Neo & ors 12
SSLR 120), it was discussed at great length and upheld. On more than one occasion it has been upheld by
the Privy Council as in the case of Cheang They Phin v Tan Ah Loy [1920] AC 369 373 where it was said by
Viscount Finlay:--
"With regard to Chinese settled in Penang, the Supreme Court recognizes and applies the Chinese law of marriage. It
is not disputed that this law admits of polygamy. By a local ordinance the Statute of Distributions has been applied to
Chinese successions, and the Courts have treated all the widows of the deceased as entitled among them to the wid-
ows' share under the statute."

So far, I do not think I have said anything that is any way controversial as regards the present case, or in-
deed at all, but it is now of importance to enquire on what grounds the Courts have countenanced this partic-
ular Chinese custom.
1961 1 MLJ 234 at 237
So far as the State of Johore is concerned there is a great lack of formal authority. Indeed the only reported
case is the comparatively recent one of Yap Kwee Ying v Lai Kim Foh [1950] MLJ 35 in which Laville J., a
105

Judge of very long experience in Johore, accepted the practice as something so well settled as to call for no
discussion.
It is a matter of history that in Johore in the nineteenth century the immigrant community of people of Chi-
nese origin was growing and it was probably a matter of convenience rather than of anything else to recog-
nise their customs. There was the example of what was happening in the neighbouring island of Singapore,
with which in spite of political separation the State was still connected by strong social and economic links,
and in the neighbouring Malay States in at least one of which the Ruler bad expressly recognised the posi-
tion of the Chinese (see Perak Order-in-Council No. 23 of 1893). Fundamentally, too, it must be remarked
that the Roman or English conception of legalistic sovereignty with its at times apparent lack of tolerance of
other laws is very much a modern importation in Asia and that it is the tolerance of an age that is passing
that illuminates Articles LVII and LVIII of the First Part of the Law of the Constitution of the State of Johore of
1895.
The English translation of these Articles is as follows:--
"LVII. What is called the 'Religion of the State' for this Territory and State of Johore is the Muslim Religion, and such
being the case, the Muslim Religion shall continuously and for ever be, and be acknowledged to be, and spoken of as,
the 'State Religion'; that is to say, on no account may any other religion be made or spoken of as the religion of the
country, although all other religions are allowed, and are always understood as proper to be allowed, to be practised in
peace and harmony by the people professing them in all and every part of the Territory and Dependencies of the State
of Johore.
LVIII. All the laws and customs of the country shall be carried out and exercised with justice and fairness by all the
Courts of Justice and by all Officers and Servants of the State between all the people of the country and the aliens who
sojourn and reside under its protection, whether for a season or for a lengthened period, that is to say, without their en-
tertaining in the least degree more sympathy or regard or partiality towards those who profess the religion of the coun-
try, namely the Muslim Religion, or making any difference between those who are the subjects of the State and those
who are not."

The point is, perhaps, not of great importance but it should be observed that the foregoing extracts are from
an English translation of a document issued in the Malay language by a Malay Ruler who was a Muslim. The
word in the original which is here translated as "religion" is "igama" and it is difficult to suppose that a liberty
to "practise" a different religion from that of Islam was not intended to include a licence to conform to those
rules of the nature of personal law which a Muslim, but not necessarily a non-Muslim, would assume to be
dictated by his religion. It is difficult, too, to resist the conclusion that the word "igama" is the same as the
Sanskrit "agama" and it is to be observed that the late Sir Monier Monier-Williams in his Sanskrit-English Dic-
tionary gives as one of the meanings of that word "a traditional doctrine or precept" and says it is so used in
the laws of Manu and in Maha Bharata.
As regards the Straits Settlements, there is a great deal more material available.
The legal position in the early days of Penang is described in the historic judgment of Sir Benson Maxwell,
the learned author of "Maxwell on Statutes", in the case of Reg v Willans Leic 66; 3 Ky 16.
When Light and his East India Company Marines occupied Penang on the cession of 1786 the island was
uninhabited. That is perhaps not altogether true historically but it was the assumption on which the later
Charters proceeded and on that assumption there was at the time of the occupation no existing lex loci. The
Marines came not as settlers but as a garrison. "The bulk of the first settlers were Chinese, Malays and Chu-
lias, who, obviously, could not establish their respective laws in a British possession as the lex or the leges
loci; and the few Englishmen who established themselves here at the foundation of the Settlement, came,
not as men assuming the dominion of a desert land, and settling on it as a matter of right, but as strangers
permitted as a matter of favour, to dwell in a country belonging to a quasi foreign power, with the government
of which they had no concern." (p. 68).
"Whatever," continued Sir Benson (at p. 70), "ought, de jure, to have been the law of the land when the colo-
ny was founded, it is clear beyond all doubt, that for the first twenty years and upwards of its history, no body
of known law was in fact recognised as the law of the place. As to the law of England, so far was it from be-
ing regarded as the lex loci, that it was hardly recognised even as the personal law of its English inhabitants."
106

It is not necessary to relate in detail the somewhat stormy legal history of these first twenty years of the new
Settlement as described in the Historical Introduction to Kyshe's Reports beyond observing that a series of
Magistrates were appointed and that the law was administered generally in accordance with the following
passage of a report by the Duke of Wellington (then Colonel Wellesley) who visited the island in 1797:--[ 1
Ky ix ].
"As the inhabitants consist of people of different nations and of different Provinces of those nations, it is advisable to
leave them under the direction of the headman of each Province, and to interfere as little as possible in the regulations
which may be established by each for the government of his own countrymen. It may, however, be necessary in order
to insure the general tranquillity, to have one European Magistrate, who might be at the head of the magistracy of the
Island. He should inform himself of the methods of proceeding, and of the laws which bind the Chinese and the Malays,
and in cases where either or both are parties, proceed according to the laws of universal and natural justice."
1961 1 MLJ 234 at 238

That era came to an end with the First Charter which was granted to the East India Company by George III in
1807. It recited that the Company had obtained Prince of Wales Island by cession from a native prince, that
when such cession was made the island was wholly uninhabited but that the Company had since built a fort
and town, and that "many of our subjects and many Chinese, Malays, Indians, and other persons professing
different religions, and having different manners, habits, customs, and persuasions" had settled there. It
made provision for the government of the island and for the administration of justice and, in particular, estab-
lished a Court of Judicature which was to exercise all the jurisdiction of the English Courts of law and equity
"as far as circumstances will admit" and which was also to exercise jurisdiction as an Ecclesiastical Court "so
far as the several religions, manners, and customs of the inhabitants ... will admit."
This Charter was replaced by the Second Charter of 1826 which extended the territorial jurisdiction of the
Court to cover Singapore and Malacca and this in its turn was replaced by the Third Charter of 1855 which
enabled the Court to be divided into two divisions, at Penang and Singapore. In all three Charters, however,
the provisions as to the nature of the jurisdiction of the Court were substantially the same.
Such was the origin of the jurisdiction of what through a series of statutes which it is not necessary to set out
in detail here became the Supreme Court of the Straits Settlements and then this Court, at any rate in so far
as it exercises jurisdiction in Penang and Malacca, and of the present Supreme Court of Singapore.
I pause here to observe that while the Charters clearly proceed on the assumption that the original settlers
were "our subjects" and Chinese, Malays and Indians they make no attempt to define what they mean by
Chinese, Malays and Indians. "Our subjects" must, ex hypothesi, be taken as meaning persons who were
British subjects before they settled on the island but Chinese, Malays and Indians while not defined are
clearly regarded as classes of persons differentiated from British subjects and each from the other by reason
of their "professing different religions and having different manners, habits, customs and persuasions." These
qualities are in effect treated as each included in a single category or combination of qualities which is the
attribute of Chinese or Malays or Indians as the case may be and it would therefore seem that the question
of whether a particular individual is a Chinese or a Malay or an Indian depends not so much on whether or
not he as an individual possesses one or more of the combined qualities as on whether or not he is a mem-
ber of a class of persons who as a class possess the combination of qualities as a whole. The relevance of
that observation will be seen later.
Coming now to the question of law and the way in which the Court regarded the provisions of the Charters so
far as they affected the customs and usages of the various classes of people who lived within its jurisdiction,
the first case which calls for mention is that of the goods of Abdullah 2 Ky 8 which was decided ill 1835 by Sir
Benjamin Malkin, who was later to become Chief Justice of Calcutta. That was a case in which the Court re-
fused to accept the restrictions placed by the Mohammedan Law upon the power of testing of a Mohammed-
an. Counsel had contended for all interpretation of the Charter that would give to all the inhabitants the full
benefit of their own laws, religions and customs. Sir Benjamin Malkin refused to accept this view and held
that the Charter had introduced the law of England. But, he said:--
"The Charter seems to have intended to give a certain degree of protection and indulgence to the various natives re-
sorting here; not very clearly defined, yet perhaps, easily enough applied in particular cases, but not generally, to sanc-
tion or recognise their law."
107

In the case of Chu Siang Long Leic 460, which was decided in 1843, Sir William Norris referred to the obser-
vations of Sir Benjamin Malkin which have been quoted and said, perhaps with a certain lack of consistency,
that he had himself "adhered in practice to the same principles, frequently directing the two or three widows
of a Mohammedan intestate to rank as one widow, and their several children as one family, in the distribution
of the estate."
The next case that calls for consideration is the case of Reg. v. Willans supra, the date of which is 1859. The
subject matter of that case was unimportant and related to some misconduct on the part of a labourer. In his
judgment, however, portions of which have already been quoted in discussing the early legal history of Pe-
nang, the learned Recorder stated his views on the general question of the reception of the English law and
its adaptability to meet the customs of the inhabitants and these views are of the utmost importance because
it is in the light of them that, in my view, we must consider the later local cases which will be mentioned and it
is these views which in the light of the later decisions of the Privy Council must be accepted as the true foun-
dation of the present state of the law relating to non-Christian marriages.
Sir Benson started from Sir Benjamin Malkin's statement in the case of Abdullah supra, that "the introduction
of the King's Charter into these Settlements had introduced the existing law of England ... and had abrogated
any law previously existing." He accepted that statement as binding on him but as Sir Benjamin had said that
statement was subject to exceptions which he did not define it was desirable to consider what such excep-
tions or qualifications might be.
He discussed the earlier history of the Settlement and observed (p. 73) that "it must be presumed that the
Charter of 1807 was
1961 1 MLJ 234 at 239
granted with a full knowledge of this state of things, and was intentionally adapted to it." "The question, to
what extent English law became the law of the land is, then, a question of construction rather than of general
legal principle, or at least of the one as well as of the other."
He went on:--
"Now, the Charter does not declare, totisdem verbis, that that law (i.e. the English law) shall be the territorial law of the
Island; but all its leading provisions manifestly require that justice shall be administered according to it, and it alone."

He concluded that in effect the Charter provided for "the exclusion of native law" (p. 76) and after a long ex-
amination of local circumstances observed (p. 81):--
"It does not seem to me, then, that the Charter has in any respect modified the law of England by any exceptional ad-
aptation of it to the religions and usages of the East."

He had, however, already observed (p. 80):--


"The law of England, wheresoever administered, respects, either ex comitate, or ex debito justitiae, the religions and
usages of strange sects and nations to the extent to which the Charter requires that hey shall be respected."

He later elaborated this passage in connection with marriage by referring to Lord Stowell's views as set out in
the cases of Dalrymple v Dalrymple 2 Hagg Con 59 and Ruding v Smith 2 Hagg Con 371 and Lord Brough-
am's views as set out in the case of Warrender v Warrender (1835) 2 Cl & F 488.
The foregoing is but a bare and unsatisfactory summary of a judgment which has been for over a century
and will long continue to be a monument to the learning and erudition of a very great lawyer. The point, how-
ever, which I would emphasise here is that in Sir Benson's view the recognition of such institutions as polyg-
amy and of property rights that might be said to flow from it did not derive from the express provisions of the
Charters as to the religions, customs and manners of the people concerned but from the law of England itself
and its inherent adaptability to usages far different from those prevailing in England. This conception was
reiterated almost a century later in the perhaps old-fashioned words of Barnard J., in the case of Srini Vasan
v Srini Vasan [1946] P 67 70:--
"To deny recognition of a Hindu marriage for the purpose in hand would, in my opinion, be to fly in the face of common
sense, good manners and the ordered system of tolerance on which the Empire is based;"
108

Sir Benson elaborated his views as to the adaptability of the English law some eight years later in the case of
Chulas & Kachee v Kolson Leic 462 which was concerned with a plea of coverture set up by a Mohammedan
woman. There he said:--
"The question how far the general rules of the law of England are applicable to races having religious and social institu-
tions differing from our own, is of occasional recurrence in this Court, and it is seldom free from difficulty. It has been
repeatedly laid down as the doctrine of our law that its rules are not applicable to such races, when intolerable injustice
and oppression would be the consequence of their application ... where our law is wholly unsuited to the condition of
the alien races living under it, their own laws and usages must be applied to them on the same principles and with the
same limitations as foreign law is applied by our Courts to foreigners and foreign transactions. They must be regarded
as persons having foreign domiciles, and governed for many purposes by this law, and as if they were residing among
us temporarily."

I now pass to two cases in which Sir Benson dealt with Mohammedan and Chinese marriages.
The case of Hawah v Daud Leic 253, which was decided in 1865, was concerned with the property rights of
a Malay wife and there Sir Benson said regarding Mohammedan marriages:--
"To call such precarious unions by the same name as our own marriages was, perhaps, to give one name to very dif-
ferent things. But still, that the Mohammedan marriage was a good marriage in the eye of our law seemed incontesta-
ble; at all events it could not be contested here without bastardising the mass of the population."

Then in the case of the goods of Lao Leong An supra, decided in 1867, the claim of a Chinese secondary
wife to share with the principal wife the property of her husband who had died intestate was upheld.
"I had to consider this question some years ago in Penang and ... I was of opinion that a second or inferior Chinese
wife was to all intents and purposes a lawful spouse and was entitled to share with the first or superior wife in the prop-
erty of her deceased husband; and it may be as well if I state now the grounds of my opinion. It may seem difficult to
apply the English statute of distributions where polygamy is a recognised institution; but this difficulty was long ago
solved in this Settlement by holding that where a Mohammedan died intestate leaving two or more wives, they were en-
titled to share equally among themselves the share which the statute of distributions allots to the widow of a deceased
person."

His Lordship went on to discuss the difference between the position of a Mohammedan wife and a Chinese
wife and the grounds on which he considered that although the status of a Chinese secondary wife might be
different from that of a Mohammedan wife yet that status was the status of a wife and not of a concubine. He
said it might be true that in China the inferior wives had no share in the succession of a deceased husband.
"But," he concluded (p. 419):--
"This is immaterial for the purpose of the present question. If it were otherwise the first wife would not find it easy, any
more than the second, to establish her right to Letters of Administration. The intestate was domiciled in this Settlement,
and his personal estate must therefore be distributed according to the law of the Settlement. He had, besides, real es-
tate here and this, independently of his domicile, must devolve according to the lex loci.... The rights of his wives there-
fore must be determined by our law and not by that of China."

After the case of Lao Leong An supra, in 1867 the general question of Chinese marriages did not arise again
till 1908 when it was considered in the case of Choo Eng Choon, Choo Ang Chee v. Neo Chan Neo & ors.
(the Six Widows' Case), supra.
1961 1 MLJ 234 at 240
The deceased whose estate was in question in that case was a Chinese of British nationality domiciled in
Singapore. He left six widows whom he had married in accordance with Chinese custom and issue whom he
had had by them and it was held that all these were entitled to share in the succession, the widows being
entitled to share equally the widow's share under the English Statute of Distributions which was then the law
in Singapore.
That was the view of the High Court and of the majority of the Court of Appeal, but the Judges who arrived at
that result were not quite unanimous as to the grounds on which it could be supported.
In the High Court, Law Ag. C.J., referred to the case of Lao Leong An supra, which was decided in 1867 and
what he understood to have been the practice of the Court since the time of that decision. He went on to say
(at p. 152):--
109

"For more than forty years it seems to me the Courts here have been treating Chinese marriages as polygamous, and
though I do not know if the matter has ever been thoroughly argued out before, it is to my mind doubtful whether the
question is any longer an open one, at any rate in a Court of first instance."

Later he considered the terms of the Charter of 1855 which in his view were in force at the material date and
in particular the provision that the Court should have and exercise jurisdiction as an Ecclesiastical Court "so
far as the several religions, manners and customs of the inhabitants of the said Settlements and places will
admit." Here he observed (at p. 158):--
"It seems to me under these words of the Letters Patent the Court in the exercise of its ecclesiastical jurisdiction should
recognise polygamous marriages in the case of any class of inhabitants amongst whom such marriages are shewn to
be in accordance with their own laws, manners and customs."

In the event he came to the very guarded conclusion (p. 161):--


"On the whole, then, I think that on the authorities, either in virtue of the Letters Patent or otherwise, the Court here
must recognise polygamous marriages if such are valid according to the religions and usages of the married parties."

In the Court of Appeal Sercombe Smith J. dissented from this view. He spoke with the authentic voice of the
Barons of Merton and was for having no mucking about with the laws of England. "Nolumus leges Angliae
mutare." His reasoning, however, though of much cogency does not assist greatly in the present case for it
follows a line that has little in common with the previous and subsequent current of thought with which we
are concerned here.
The majority of the Court (Hyndman-Jones C.J., and Braddell J.) took the view that the decision in the case
of Lao Leong An was correct and should be followed but they dissented from the views of Sir Benson Max-
well in the earlier case of Reg. v. Willans. This dissent was expressed at length by Braddell J. Sir Benson
had expressed the opinion that in recognising Chinese marriages the Court had done so not because the
Charter demanded an exceptionally indulgent treatment of the question but because such indulgence was
dictated by a principle inherent in the law of England itself. The view of Braddell J. was as follows (p. 218):--
"Now it may be perfectly true to say that the Charter does no more than adopt a principle in agreement with the law of
England, but it does nevertheless expressly declare that the Court of Judicature shall have and exercise jurisdiction as
an Ecclesiastical Court so far as the several religions and customs of the inhabitants of the Settlements and places will
admit.
I am unable to regard this declaration in the light of being surplusage and intended to effect nothing more than if it
simply declared in general terms that the Court of Judicature should have and exercise jurisdiction as an Ecclesiastical
Court according to the law of England without more."

He then proceeded to examine the question in the light of the wording of the Charter and by a process of
reasoning, with which assuming the correctness of the premises I would with respect express myself as in
entire agreement, arrived at the same result as that at which Sir Benson had arrived starting from altogether
different premises.
There thus arose a difference of opinion that was not to be settled for another twenty years. It was agreed,
except by Sercombe Smith J., that Chinese customary marriages, though polygamous, were valid and gave
succession rights both to the wives and to the issue. On the one hand, however, it was said that the recogni-
tion of this principle flowed from the inherent nature of the English law. This of course had much in common
with the views expressed by James and Cotton L.JJ., in the case of Goodman's Trusts 17 Ch D 266. On the
other hand it was said that the recognition flowed not from the law of England but from an exception to that
law created by the express words of the Charter.
On the first occasion after the Six Widows' Case when the matter came before the Privy Council the differ-
ence was not resolved.
In the case of Cheang Thye Phin v. Tan Ah Loy supra, the Privy Council, in 1919, held in effect that the Six
Widows' Case was rightly decided but their Lordships did not discuss the course of reasoning which led the
majority of the Court of Appeal to their decision. The correctness or otherwise of that course of reasoning
110

was not settled until what is known as the Petronella litigation some years later. Before, however, coming to
the Petronella cases it is necessary to go back for some years before the Six Widows' Case.
In the year 1869 Sir Benson Maxwell had held, in the case of Choa Choon Neoh v Spottiswoode 1 Ky 216,
that the English statutes relating to superstitious uses and to mortmain were not part of the law of the Set-
tlements but that the rule against perpetuities was to be considered part of it. In the course of his judgment
he made the following observations (at p. 221):--
"In this Colony, so much of the law of England as was in existence when it was imported here, and as is
1961 1 MLJ 234 at 241
of general (and not merely local) policy, and adapted to the condition and wants of the inhabitants, is the law of the
land; and further, that law is subject, in its application to the various alien races established here, to such modifications
as are necessary to prevent it from operating unjustly and oppressively on them. Thus in questions of marriage and di-
vorce, it would be impossible to apply our law to Mohammedans, Hindoos, and Buddhists, without the most absurd and
intolerable consequences, and it is therefore held inapplicable to them."

Some three years later that decision was followed by Hackett J., in the case of Ong Cheng Neo v Yeap
Cheah Neo & ors LR 6 PC 361 ; 1 Ky 326 on appeal to Privy Council 1 Ky 337. In that case there was an
unsuccessful appeal to the Privy Council. In the course of their judgment ( per Sir Montague Smith) their
Lordships considered the terms of the Charters and concluded ( 1 Ky 343-4; LR 6 PC 393):--
"With reference to this history, it is really immaterial to consider whether ... Penang, should be regarded as ceded or
newly-settled territory, for there is no trace of any laws having been established there before it was acquired by the
East India Company. In either view the law of England must be taken to be the governing law, so far as it is applicable
to the circumstances of the place, and modified in its application by these circumstances. This would be the case in a
country newly settled by subjects of the British Crown; and, in their Lordships' view, the charters referred to, if they are
to be regarded as having introduced the law of England into the colony, contain in the words 'as far as circumstances
will admit', the same qualification. In applying this general principle, it has been held that statutes relating to matters
and exigencies peculiar to the local condition of England, and which are not adapted to the circumstances of a particu-
lar colony, do not become a part of its law, although the general law of England may be introduced into it."

They then went on to agree with what had been decided by Sir Benson Maxwell in the case of Choa Choon
Neoh v. Spottiswoode supra and said (at p. 396) that it appeared to them that in that judgment "the rules of
English law and the degree in which in cases of this kind, regard should be had to the habits and usages of
the various people residing in the colony are correctly stated."
As was, however, pointed out by Sir Theodore Ford some five years later in 1877 in the case of Khoo Tiang
Bee v Tan Beng Gwatt 1 Ky 413 this judgment left open and did not finally settle the question as to the true
ground on which the usages of the inhabitants were to be accepted. What he said was this (p. 415):--
"Whether modifications in favour of the habits and usages of foreign races dwelling here are to flow from the express
provisions to that end in the Charter itself, or to follow as the sequence of the introduction of English law under the
principle of comity, as laid down in Regina v. Willans, was not a question directly before their Lordships, and I gather
from the language of their judgment (p. 393) that their Lordships considered such modifications might not only flow
from the language of the Charter, but even a third source, viz., that principle of law which attached to subjects of the
British Crown settling in a new country such modifications in the law of their original domicile as the circumstances of
the place required."

He then proceeded to decide the actual question before him and held that the adopted son of a Chinese in-
testate had no right to share in the intestate's estate.
As has been pointed out the decision of the Court of Appeal in the Six Widows' Case was based on the ex-
press provisions of the Charters and, as has been pointed out, the question of whether they were right as to
the effect of the Charters was not finally decided until the end of the protracted Petronella litigation.
The facts of these cases, so far as they are relevant to that purpose, are no longer in dispute. Briefly they
were as follows.
Petronella Baptist (later Gaudoin, later Cornelius, later Phipps) was a Eurasian woman domiciled in Penang
who throughout her life was a Roman Catholic. In 1847 she was married by a form of Christian marriage to
one Gaudoin. About 1853, while Gaudoin was still alive, she formed some sort of association with one Khoo
Thean Tek, a Chinese domiciled in Penang who already had a Chinese principal wife and also had second-
111

ary wives. As a result she gave birth in 1854 to a son Khoo Hun Tee of whom Khoo Thean Tek was the fa-
ther. Petronella's association with Khoo Thean Tek probably came to an end in 1855 and certainly ended
before 1861 when, Gaudoin being dead, she married one Cornelius. Later Khoo Hun Tee who was her son
by Khoo Thean Tek had a son and Khoo Thean Tek himself died in 1890 leaving a very large estate on a
number of settlements in the administration of which the question arose as to whether Khoo Hun Tee was
one of his legitimate sons.
The proceedings commenced in 1923, after the death of Khoo Hun Tee, by an originating summons in which
Sproule J. directed an enquiry on a number of matters including the question of whether Khoo Hun Tee was
a legitimate son of Khoo Thean Tek. That order was varied by the Court of Appeal but not in any way that
affected the question of the legitimacy or the enquiry as to it. On the enquiry being held the Registrar certified
that Khoo Hun Tee was not a legitimate son of Khoo Thean Tek. Against that finding Khoo Hooi Leong, one
of the sons of Khoo Hun Tee, appealed and his appeal eventually came to the Privy Council ( Khoo Hooi
Leong v Khoo Hean Kwee [1926] AC 529).
The Privy Council took the view that ultimately the appellant's rights depended on the question of his father's
legitimacy and that in its turn depended mainly on the question of whether or not his paternal grandmother
(Petronella) became the secondary wife or "t'sip" of his grandfather. They took the view that, for reasons with
which we are not concerned here, he had not had a proper chance of laying his case before the Courts and
that the matter should be sent back for the enquiry as to his legitimacy to proceed.
The enquiry proceeded and the Registrar found that Khoo Hun Tee was a legitimate son of Khoo Thean Tek.
That finding was considered by Sproule J., in the case of Khoo Thean Tek's Settlements [1928] SSLR 178
on appeal; [1929] SSLR 50.
1961 1 MLJ 234 at 242
The Registrar had found that Petronella was a lawful secondary wife of Khoo Thean Tek but that even if she
were not Khoo Hun Tee had been legitimised by subsequent recognition by his father and his father's family.
With the first of these conclusions Sproule J., disagreed on the ground that at the material times Petronella
was not soluta because she was married to Gaudoin and her marriage with him had not been dissolved.
With regard to the Registrar's second conclusion, which was to the effect that Khoo Hun Tee had been legit-
imised by subsequent recognition, Sproule J. thought that on the evidence before him as to Chinese custom
such recognition would have been sufficient in China to confer the status of legitimacy. He was of the opin-
ion, however, that the question had been long concluded by the views of Sir Benson Maxwell in the case of
Reg. v. Willans supra. On this he said, and his words are of importance (at p. 184):--
"The learned Recorder found, then, that the Charter in no respect modified the law of England by any exceptional ad-
aptation of it to the religions and usages of the East. A Chinese marriage, celebrated according to the religious cere-
monies of the parties, is valid here, not because the Charter makes it so, but because the law of England recognizes it.
The general rule of English law is that the validity of a marriage is to be determined by the law of the place where it is
celebrated. Where the law of the place is inapplicable to the parties, by reason of peculiarities of religious opinions and
usages, then the validity of the marriage depends on whether it was performed according to the rites of their own reli-
gion or custom."

He then referred to Sir Benson's views on the subject of adoption and the rights of adopted children among
the Chinese and said that it had been settled law since his day "that adopted sons of Chinese have no status
of legitimacy in these Settlements and take no share in the intestate estate of their adoptive father, although
in China and by Chinese custom they are given the same status as natural and lawful sons." He did not refer
to the views on the question expressed by Sir Theodore Ford in the case of Khoo Tiang Bee v Tan Beng
Gwatt supra, although that case was relied on later in the Court of Appeal by Stevens J., but he finally dis-
posed of the question of legitimation by subsequent recognition as follows (p. 186):--
"That is a conception unknown to the common law of England. It is also necessarily subversive of the policy of that law,
since, when examined closely, it would enable legitimization, merely by reason of such recognition, of the offspring, for
instance, of one casual act of adultery with a married woman, who was not, and might never thereafter be, soluta. It al-
so offends by reason of the custom being restricted to male children."
112

Khoo Hooi Leong again made the long and expensive journey to the Court of Appeal and to the Privy Council
and again he made it without success. [1930] SSLR 127; [1930] AC 346
Lord Russel of Killowen referred to the judgment of Lord Phillimore in the 1926 appeal in which his Lordship
had spoken of the Six Widows' Case as deciding that a "t'sip" is entitled to take a widow's share in the estate
of her deceased husband, she being equivalent for this purpose to a "t'sai"; and following this doctrine to its
logical conclusion, that the children of a "t'sip" were entitled to inherit equally with the children of a "t'sai" and
said that the judgment in that case had been "inferentially" affirmed by the Board. He had already said that in
the opinion of their Lordships it was impossible to find in the present case that Petronella was a lawful sec-
ondary wife of the appellant's grandfather and he went on to agree with the views of Sproule J., on the ques-
tion of subsequent legitimation by recognition and observed that in any event "by the law operative in the
Colony the adopted son of a Chinese intestate has no right to share in the intestate's estate." He concluded
with the following passage ( [1930] SSLR at p 138):--
"The modifications of the law of England which obtain in the Colony in the application of that law to the various alien
races established there, arise from the necessity of preventing the injustice or oppression which would ensue if that law
were applied to alien races unmodified. That was the view expressed by Sir Peter Maxwell C.J. in Choa Choon Neo v.
Spottiswoode; and this Board, in Yeap Choon Neo v. Ong Cheng Neo, stated that in Sir Peter Maxwell's judgment 'the
rules of English law, and the degree in which, in cases of this kind, regard should be had to the habits and usages of
the various people residing in the Colony are correctly stated.'
From the above mentioned necessity arises the recognition by the Courts of the Colony of polygamous marriages
among the Chinese, and, as a logical consequence, the recognition of the legitimacy of the offspring (whether male or
female) of such marriages.
Their Lordships, however, are unable to find any grounds which would justify such a modification of English law as to
treat an illegitimate natural son as legitimated by the mere fact of subsequent recognition. Legitimation of a child,
whose parents are not husband and wife, is unknown and repugnant to the common law of England, and no hardship
(much less injustice or oppression) need result from a refusal to admit a modification in this respect of the English law
in its application to Chinese."

Thus the controversy of almost a century was resolved. In particular, the conclusion of the Six Widows' Case
in favour of the lawfulness of polygamous Chinese marriages was approved but the reasoning which led to
that conclusion was disapproved. Such marriages were recognised as lawful not because of any exception to
the general law of England created by the express words of the Charters but because that law itself de-
mands its own modification so as to prevent "the injustice or oppression which would ensue if that law were
applied to alien races unmodified." In other words the English law is to be modified not by reason of the reli-
gious beliefs of any particular individual but because it would be unjust to apply it to him in this country as a
member of the race to which he belongs.
Now, this result may present difficulties particularly from the point of view of scientific jurisprudence. It may
produce the apparent consequence that in certain cases a man's personal law is to derive not from his own
domicile
1961 1 MLJ 234 at 243
but from the domicile of his ancestors. It may be in some apparent conflict with the view expressed in the
case of Abd-ul-Messih v Farra supra, that a similar indulgence was extended to certain castes and creeds in
India because their rules and customs "are an integral part of the municipal law." It may have produced ap-
parent anomalies of the sort described in the earlier Federated Malay States case of Yap Tham Thai v Low
Hup Neo (1919) 1 FMSLR 383. It may well be that at any rate until fairly recently the law of China gave no
widow any specific share in the corpus of the estate of her deceased husband but only gave her a right of
maintenance by the sons.
All that is beside the point. The result is there and must be accepted and I do not think it is an unfair gloss
upon it to say that if irrespective of their individual religious beliefs a Chinese man and one or more Chinese
women were to enter into connubial associations in accordance with the customs of their race and proceed
to beget children relying on a century's recognition by the Courts of the lawfulness of such associations and
of the rights of the female spouses and the offspring to share in the succession to the husband and father,
where he has not seen fit to make some other post mortem provision by will, then if the law were to refuse to
recognise such associations there would be both injustice and oppression. And this is a consequence which
the law will refuse to bring about.
113

All marriage arises from a contract to enter into the marital association but the consequences which arise
once that association is entered into are determined by the law and not by any independent stipulations by
the parties. When a Chinese man enters into such a relationship in accordance with Chinese custom he
must be held to have intended all the consequences of such an engagement and in particular if he makes no
attempt to deal with his succession by will then he must be presumed to have intended that his estate will be
distributed as his connubial partner or partners would have anticipated it would be distributed, that is to say
in accordance with such of the provisions of the law relating to the distribution of intestate estates as are ap-
plicable where there has been such a relationship. If the Courts did not give effect to that, again injustice and
oppression would be the result.
Having arrived at that point it becomes necessary to approach the question of whether the freedom of a Chi-
nese man to enter into such associations which will have such consequences is in any way affected by the
statute law relating to Christian marriage if he is a person professing the Christian religion.
Before approaching that question I would with great respect, but with some force, dissent from the finding of
Neal J., that in the present case the deceased was at any material time a person professing the Christian
religion.
The deceased married Madam Kong in Singapore in 1932. He married Madam Yong in Johore in 1939 and
he married Madam Chan in Johore in 1954. I do not think it is in dispute at this stage that in each case the
requirements of Chinese custom were complied with and the union was in the eyes of Chinese custom a val-
id polygamous marriage. It was argued, however, that at the times at which the deceased entered into each
of these unions he was a person professing the Christian religion, although rather curiously no attention has
been paid to the fact that Madam Yong stated in her affidavit that at the time of her marriage she was a
member of the Church of England and since the death of the deceased had become a member of the Ro-
man Catholic Church and so there were extremely strong grounds for saying that at the time of her marriage,
whatever was the position regarding the deceased, she was a person professing the Christian religion.
Neal J. based his finding that the deceased was a person professing the Christian religion on the uncontra-
dicted evidence that he was baptised as a Roman Catholic and conformed to the observances of the Roman
Catholic Church regularly until he attained the age of about 23, that is about 3 years before contracting his
union with Madam Kong. Thereafter he attended the Roman Catholic Church only on occasions of religious
festivals such as Christmas, Easter and All Souls' Day. His children, at least those by Madam Yong, who it is
to be remembered is and was herself a Christian, were baptised in the Roman Catholic faith. In the room
occupied by him and Madam Yong there was an altar on which religious statues were displayed. All his mo-
tor-cars bore emblems of St. Christopher and while his body was awaiting burial prayers were said over it by
Roman Catholic priests. There was, too, evidence of a rosary, which may or may not have been his property,
being put in his coffin prior to burial. On the other hand there was evidence that a priest refused to allow his
dead body to be brought into the Roman Catholic Church at the place where he died.
Now all these things may or may not amount to professing the Christian religion, although when it is remem-
bered that at any rate during the later years of his life he was living in contemporaneous connubiality with
three different women, the fact of his profession might not have been so readily accepted by His Holiness the
Pope or His Grace the Archbishop of Canterbury as it was accepted by the learned trial Judge. For myself I
would content myself with observing that I do not think the evidence did make out a profession of the Chris-
tian religion and I must record my dissent on the point from the opinion of the learned trial Judge in case it
should be said at any future stage that there had been concurrent findings of fact upon the point. After all,
Christ Himself said, and surely on such a point His voice should be treated as of some authority even in a
Court of Law, "by
1961 1 MLJ 234 at 244
their fruits ye shall know them" (Matthew VII, 20).
There may, of course, be some question as to whether historically speaking the practice of polygamy is nec-
essarily inconsistent with the profession of the Christian religion. There may be room for doubt as to the atti-
tude of the early Church and we are told as a matter of history that Luther and Melanchthon, who at any rate
regarded themselves as Christians, expressed approval of the conduct of Philip the Magnanimous, the land-
grave of Hesse, in taking a second wife though they made it clear that they expressed their approval as
friends and not as doctors of theology. As, however, the present deceased in fact had his religious instruction
114

from the Roman Catholic Church in the twentieth century it is highly improbable that he nourished any histor-
ical or philosophical doubts on the question and for myself I would content myself with observing that I do not
think the evidence made out that at the time of any of his marriages he was a person professing the Christian
religion.
The two statutes upon which the deceased's father relies to bastardise his son's children and to denigrate
the women whom his son took as his wives are the Christian Marriage Ordinance of the Straits Settlements
(Cap. 82 in the 1936 Consolidation) and the Christian Marriage Enactment of the State of Johore. Both of
these statutes have now been repealed and replaced by later legislation. The provisions of both statutes are
in all material respects the same, the Johore Enactment being clearly an importation from the Straits Settle-
ments law to meet local needs. In the circumstances it will be sufficient to deal with the Straits Settlements
Ordinance only observing that what is said regarding its interpretation is equally applicable to the Johore En-
actment.
It must be remembered that until 1st April, 1867, which was the date on which the Government of the Straits
Settlements Act, 1866, came into force, the Straits Settlements were legally part of India.
In India, prior to 1818, there was no statute law relating to the solemnisation of Christian marriages. Such
marriages were, in fact, generally solemnised by clergymen of various Christian denominations and so far as
clergymen of the established Church of England were concerned no doubt would seem to have arisen at any
time as to the validity of marriages solemnised by them.
The Indian Marriage Act of 1818 (58 Geo. III c. 84) only dealt with the solemnisation of marriages by Minis-
ters of the Church of Scotland who were East India Company chaplains. It was followed by the Indian Mar-
riage Act of 1851 (14 & 15 Vict. c. 40). That Act applied to India provisions similar to those enacted for Eng-
land in the Marriage Act of 1823. It provided for the solemnisation of marriages between "persons professing
the Christian religion" by Registrars to be appointed by the Government, but did not deal with marriages per-
formed by Ministers of Religion. The necessary local legislation to give effect to this Act was enacted by Indi-
an Act No. V of 1852. This legislation was supplemented so as to govern the solemnisation of marriages by
Ministers of Religion by Act No. XXV of 1864 which was replaced by Act No. V of 1865, section 9 of which
provided that marriages between persons professing the Christian religion solemnised otherwise than in ac-
cordance with its provisions should be null and void.
In India all the previous Acts were replaced by the Christian Marriage Act of 1872 (No. XV of 1872) and in
the Straits Settlements they were repealed and replaced by the Christian Marriage Ordinance of 1898 which
became Cap. 82 in the 1936 Consolidation.
The title of the Ordinance states that it is "to consolidate the law relating to Christian Marriage." The Ordi-
nance contains elaborate provisions for the solemnisation of marriages by Christian Ministers of Religion of
various denominations in accordance with the rituals of their respective Churches and by Marriage Regis-
trars to be appointed by the Governor. It deals with such matters as the production of any necessary con-
sents, the giving and publication of notices, the times and places at which marriages may be solemnised and
the form of their solemnisation when performed by the Registrar. Section 3 provides that "every marriage
between persons, one or both of whom is or are a Christian or Christians" (that is by the definition section
'persons professing the Christian religion') which is solemnised otherwise than in accordance with the provi-
sions of the Ordinance "shall be void." The only other provision that calls for mention here is that of section
71, which reads as follows:--
"Nothing in this Ordinance shall be deemed to validate any marriage which the personal law applicable to either of the
parties forbids him or her to enter into."

Before proceeding to a closer examination of the Ordinance it will be well to recollect certain matters of gen-
eral principle in relation to the law regarding marriage.
Marriage is a union of a man and a woman which the law recognises but different laws recognise different
forms of union and the same law may recognise different forms of union which have different legal conse-
quences and different durations. There is Christian or monogamous marriage defined in the classical words
of Lord Penzance in the case of Hyde v Hyde (1866) LR 1 P & D 130 "as the voluntary union for life of one
man and one woman to the exclusion of all others." There is the Chinese polygamous marriage as recog-
115

nised by the law in this country where the union is voluntary and is normally for life but which so far as the
man is concerned does not exclude other unions. As was pointed out by Lord Brougham in the case of War-
render v Warrender supra, a Christian or monogamous marriage and a polygamous marriage as recognised
in
1961 1 MLJ 234 at 245
countries where polygamy is lawful are entirely different things. Much the same thing was said by Stirling J.,
in the case of Bothell v Hildyard 38 Ch D 220 where he was concerned with a potentially polygamous mar-
riage contracted by a man domiciled in England with a locally domiciled woman in a place where polyga-
mous marriages were recognised. He said that such a marriage was "essentially different from that which
bears the same name in Christendom" and went on to hold that it was not a valid Christian marriage in the
eyes of the law of England. He did not, however, say that the polygamous marriage was invalid as such but
declared there was no valid subsisting marriage on the ground that the husband was domiciled in England
and was therefore incapable of contracting such a marriage. As was said by Lord Phillimore in the first Pet-
ronella case (at p. 543) a Chinese customary marriage is "a special kind of union."
Again, we must always recognise the distinction between those portions of the law which relate to what might
be called the essence of the marriage, such matters as capacity to enter into it and the legal consequences
which flow from it, and on the other hand those portions of the law which govern the forms of entering into it.
This distinction is illustrated in the following passage from the judgment of Lord Campbell in Brook v Brook
(1861) 9 HLC 193 207:--
"But while the forms of entering into the contract of marriage are to be regulated by the lex loci contractus, the law of
the country in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country
in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated.
Although the forms of celebrating the foreign marriage may be different from those required by the law of the country of
domicile, the marriage may be good everywhere. But if the contract of marriage is such, in essentials, as to be contrary
to the law of the country of domicile, and it is declared void by that law, it is to be regarded as void in the country of
domicile, though not contrary to the law of the country in which it was celebrated."

In other words the law of the marriage is one thing and the law governing its solemnisation is another thing
and a different thing.
Returning now to the Straits Settlements Christian Marriage Ordinance, this purports to consolidate the law
relating to Christian marriage and in my view for reasons which were stated at length in the case of Dorothy
Yee [1956] MLJ 257, which was a case relating to the jurisdiction of the Court in divorce, the Christian mar-
riage in question means monogamous marriage. The Ordinance deals not with marriage in general but only
with the single definite type of relationship which can be described as Christian or monogamous marriage. It
has nothing to do with any other type of relationship which is known by another name. It has nothing whatso-
ever to do with the Muslim type of polygamous marriage nor with the Chinese type of polygamous marriage.
It deals with monogamous marriage and monogamous marriage only.
Again it is to be observed that, although the Ordinance purports to deal with Christian marriages, the mar-
riages of which it regulates the solemnisation are not confined in terms to marriages between persons who
are Christians in the ordinary sense of persons accepting the theological beliefs and the moral precepts gen-
erally associated with Jesus Christ. It is true that, in practice, parties would not have their marriages solem-
nised under the Ordinance unless they accepted so much of the modern Christian teaching as says that mar-
riage is essentially monogamous. Nevertheless it is clear that there is nothing whatsoever in the Ordinance
to prevent two atheists or two Jews having their marriages solemnised under it by a Registrar.
Again it is to be observed that from beginning to end there is not a word in the Ordinance which relates to
what may be called the substantive law of marriage. There is not a word in it which relates to capacity. If an
enquirer wishes to know, for example, what are the prohibited degrees of consanguinity or what is the mini-
mum age for marriage he must look for the answer elsewhere. The only criminal sanction for bigamy, the
essence of which in this country is the contracting of a marriage which is void by reason of the existence of a
previous marriage, is to be found not in the Ordinance but in the Penal Code. Indeed the Ordinance dis-
claims in gremio any intention that it should affect the substantive law for section 71 says that nothing in it is
to be deemed to validate any marriage which the personal law applicable to either of the parties forbids him
or her to enter into.
116

If the parties are forbidden to enter into any particular marriage by the law to which they are subject, which in
that connection is the law of their domicile, as for example where they are within the prohibited degrees of
relationship, compliance with the provisions of the Ordinance as to the form of solemnisation of the marriage
will not serve to make it valid.
Yet again Part VII (sections 53 to 63) creates a great number of criminal offences and an examination of
these shows that everyone of them is in some way connected with the previous provisions relating to the
solemnisation of marriage.
From the foregoing it is clear that the whole object, purpose and scope of the Ordinance is to provide a code
of law governing the solemnisation of Christian or monogamous marriages and the true effect of section 3 is
clearly to avoid as such any purported Christian or monogamous marriage not solemnised in accordance
with the provisions of the Code. It has nothing whatsoever to do with such matters as capacity to marry nor,
what is more important for the purposes of the present case, does it affect in any way the capacity of any
individual, which he otherwise enjoys, to enter into a marital relationship of some other sort. In particular,
coming back to what has been said regarding Chinese
1961 1 MLJ 234 at 246
polygamous marriages, it would in my view be impossible to read into the Ordinance anything which would
forbid a Chinese to enter into the type of matrimonial relationship which, as has been seen, is open to the
members of the community to which he belongs. Still less is there to be read into it anything that would inval-
idate any such relationship when freely and voluntarily and properly entered into.
I am, of course, well aware that this is contrary to the view of Sir Charles Murray-Aynsley in the case of In re
Henry Lee Fow Lee [1953] MLJ 106 where he held that where a woman had gone through a form of mar-
riage with a Chinese man domiciled in Singapore who was a Christian otherwise than in accordance with the
Ordinance the marriage was invalid. Reluctant as I am to differ from a Judge whose reputation stands so
high in our legal history. I feel compelled to do so and I am bound to observe that in the first place his Lord-
ship gave no reasons for his opinion and in the second place it would appear that in the case the question
was not very thoroughly discussed.
On the other hand, I am fortified in my own view by other sources of authority.
In the first place there is the following passage from the judgment of Lord Phillimore in the first Petronella
case, supra (p. 543). At this stage of the Petronella litigation it had been thought that if Petronella was in fact
a Christian that fact would render her incapable of becoming a second and secondary wife of a Chinese. But
said Lord Phillimore:--
"Their Lordships think that this view requires reconsideration. To begin with, as counsel for the appellant pointed out,
the fact that the woman was a Christian at the date of the deed does not make it certain that she was one when the
child was procreated. But there are other considerations. The learned Judges seem to have taken the view that as the
lady was a Christian the Chinese law of marriage would not apply, and that as the union was polygamous the Christian
Marriage Act would not apply.
But it is to be remembered that this is a special kind of union. As the Supreme Court decided, and as this Board decid-
ed in the case already mentioned, there need be no ceremony. If consent is enough it is not easy to see why a Chris-
tian woman should be held incapable of consent. True her religion forbids a polygamous union but it also prohibits illicit
cohabitation. No question of the law of the Straits Settlements as to Christian marriages arises.
If the woman be free to contract marriage, soluta, and the man according to his personal law is also free, solutus, and
the particular class of marriage or union is in the abstract recognised by the law of the land, it may well be that the reli-
gious obstacle is no bar."

That passage, of course, is spoken obiter and it is not clear whether his Lordship when he spoke of the
"Christian Marriage Act" had in mind the Indian Act of 1865, the Indian Act of 1872 or the Straits Settlements
Ordinance of 1898. Clearly, of course, none of these statutes was in force at the date of Petronella's alleged
marriage, which was about 1853. But even if his Lordship was mistaken on this point that consideration does
not detract from the value of his opinion.
Then there is the case of Chia Teck Leong & Ors v Estate and Trust Agencies (1927) Ltd [1939] MLJ 118. In
that case Horne J. was concerned with the validity of the marriage of a Eurasian Roman Catholic woman
who became the secondary wife of a Chinese domiciled in Singapore in 1889 when the Indian Marriage Act
117

of 1865 was in force. That Act was similar to the later Indian Act of 1872 and the Straits Settlements Ordi-
nance of 1898 and provided in terms (section 9) that marriages between persons professing the Christian
religion solemnised otherwise than in accordance with its provisions should be null and void. Horne J. upheld
the validity of the alleged marriage. He referred to the English cases of Chetti v Chetti [1909] P 67 and An-
warduddin [1917] 1 KB 634 and pointed out that in England there is nothing to prevent a person whose reli-
gion permits or involves polygamy entering into a monogamous marriage in England to which the incidents of
a monogamous marriage necessarily attach. In the event he arrived at the following conclusion:--
"This is a country of mixed population and marriages between persons not of the same race are certainly not rare
events. Can it be said that the Indian Marriage Act renders such a union, if one party is a Christian, null and void unless
in the form provided by the Act? To do so would necessitate giving a very extended meaning to the word 'marriage'. I
do not think it would be right to give a universal meaning to the word 'marriage' so as to include within it a status based
on polygamy, especially in an enactment dealing with form and registration of Christian marriages, when under the lo-
cal law both polygamous and monogamous marriages may be valid for the purpose of establishing the legitimacy of
offspring and the consequent rights of succession to property. All that the Act or the Ordinance, in my opinion, provides
is that if the parties desire that their union shall afterwards be recognized as a valid Christian marriage, so that their
matrimonial rights and the legitimacy of their offspring may be decided according to that law, they must have their con-
tract solemnised in the proper form before the persons designated by the Act or Ordinance and registered in accord-
ance therewith."

Finally, there are certain decisions of the Indian Courts which are of value because the statute which we are
considering comes from India and because in that country questions of personal law are of very great im-
portance. As Sir Henry Mayne has said ("Hindu Law and Usage", 9th Edn., at p. 54): "In India there is no lex
loci, every person being governed by the law of the personal status." It is true that in that country there has
been comparatively little litigation involving the interpretation of the Christian Marriage Act but such litigation
as there has been shewn a considerable unanimity of judicial opinion except on the point which does not
concern us greatly here, as to how far a person can by changing his religion change his status and so
change the personal law to which he is subject.
In the Madras case of Kolandaivelu v Dequidt ILR 40 Mad 1030 the actual question for decision was whether
a Hindu by religion who performed a marriage according to the Hindu mode between two persons one of
whom was a Christian committed the abetment of an offence under section 68 of the Indian Act (corre-
sponding to section
1961 1 MLJ 234 at 247
55 of the Straits Settlements Ordinance) which, makes it an offence to solemnise or profess to solemnise a
marriage contrary to the provisions of the Act. The Court followed previous decisions of the Madras Court
and answered the question in the affirmative. In doing so, they observed (at p. 1039): "The general effect of
the Act is ... to require that every marriage where one of the parties is a Christian, must as a condition of va-
lidity be solemnised in one of the prescribed forms." They went on, however, to observe, although the logical
sequence is not easily observable: "The Act however is only concerned with the forms in which the marriage
is to be solemnised, and does not deal with objections to the validity of the marriage."
That case was later discussed and certain of its conclusions (which do not affect the present case) dissented
from by Walsh J., in the later Allahabad case of Maha Ram v Emperor AIR 1918 All 168.
In that case the appellants had also been convicted for offences in contravention of section 68 of the Indian
Act. The alleged offences arose out of the marriage of a young man who was said to be a Christian which
had been solemnised according to the rites of a non-Christian sect. In quashing the convictions Knox J.
based himself on the ground that the young man in the case was not a "person professing the Christian reli-
gion."
Walsh J. agreed that the young man was not a "person professing the Christian religion." He went on, how-
ever, to examine the scope and object of the Act. He examined the legislative history of the subject and said
that that history showed that "doubts had arisen as to the validity of certain marriages" and that the Act was
clearly intended "to facilitate such marriages and to validate them and at the same time to guard them by
strict requirements." He went on to observe (p. 172):--
"The object of the Act is not to prevent people marrying as they wish, but to enable them to protect themselves and
their posterity by a lawful and binding marriage if they wish to be married as Christians. The act is to be called the Indi-
an Christian Marriage Act, and in my opinion, it deals with Christian marriages and Christian marriages alone. In future
such marriages can only be lawfully effected under this Act. If they are not solemnized by one of the persons described
118

in section 5. they are made void by section 4. The Act does not prohibit even a professing Christian from marrying oth-
erwise than under the Act if he wishes to do so. We therefore start with this that there is no express prohibition prevent-
ing a professing Christian from doing violence to his faith and marrying a non-Christian by a non-Christian ceremony.
His marriage may not be valid by English law as a Christian marriage in India, but it is not forbidden to him."

He found support for this view in an analysis of Part 7 of the Act which deals with penalties and showed that
such penalties were directed against acts done in pretended pursuance of the Act in relation to a purported
marriage "which probably would, and certainly might, render the whole proceeding invalid." On this basis he
proceeded to express disagreement with much of the reasoning in the two Madras leading cases of Queen-
Empress v Paul (1897) 20 Mad 12 and Kolandaivelu supra.
The Calcutta case of Lopez v Lopez ILR 12 Cal 706 was not directly concerned with the interpretation of the
Indian Marriage Acts but with the validity of a marriage between a man and his deceased wife's sister, both
parties being Roman Catholics domiciled in India, and it was held that the prohibited degrees for the parties
were not the degrees prohibited by the law of England but those prohibited by the customary law of the class
to which they belonged, which was the law of the Roman Catholic Church as applied in India. The Court
made it clear, however, that that result did not depend in any way on the provisions of the legislation relating
to the solemnisation of Christian marriages in India of which they examined the history at length. With regard
to the Act of 1865 they said (at p. 728):--
"This Act had certainly no tendency to impose the English law on persons not previously subject to it; the object was to
avoid doing so."

And again with regard to the Act of 1872 they said (at p. 729):--
"There can be no doubt as to the object of the changes made by this Act; the object clearly was to secure that there
should be nothing in the rules as to the celebration of Christian marriage tending to indicate, or suggest, that any par-
ticular rule as to prohibited degrees applied to any particular marriage."

Then there is the Bombay case of Saldanha v Saldanha ILR 54 Bomb 288 where it was held that a marriage
between two Roman Catholics domiciled in India which was solemnised by a Registrar of Marriages in ac-
cordance with the provisions of the Act of 1872 was valid. With regard to the Act, Blackwell J. said (at p.
303):--
"The whole scheme of the Act of 1872, in my judgment, indicates that it is an Act dealing with the forms of solemnisa-
tion of marriage."

He then went on to refer to the passages from the Madras case of Kolandaivelu and the Calcutta case of
Lopez which have already been quoted. Kemp J. observed (at p. 316):--
"The Act itself was not concerned with anything but the form of solemnisation. This is clear from the preamble."

We thus have expressions of judicial opinion from each of the four largest jurisdictions in India that the Indian
Act of 1872 was concerned, and concerned only with the forms of celebration of marriage and the effect of
that opinion can best be expressed in certain words of Stirling J., in the English case of De Wilton v Mon-
tefiore [1900] 2 Ch 481.
In that case it was held that a marriage solemnised abroad according to Jewish rites between a niece and
her maternal uncle both being of the Jewish faith but both being British subjects domiciled in England was
invalid in England though valid by the Jewish law. The ground of the decision was that the capacity of the
parties to marry was governed by the law of their domicile which was in England and the
1961 1 MLJ 234 at 248
English law forbade such a marriage. An argument, however, had been advanced in favour of the marriage
to the effect that it was valid by reason of the saving provisions in the Marriage Acts of 1836 and 1840 per-
mitting persons professing the Jewish religion to "continue to contract and solemnise marriage according to
the usages ... of the said persons." This argument was rejected and Stirling J. said on the point (at p. 492):--
"Both these statutes (like 26 Geo. 2, c. 33) deal with the formalities of marriage, and an enactment with respect to ca-
pacity is, prima facie at least, beyond the purview of them."
119

All the foregoing considerations compel me to the conclusion that the deceased Loh Toh Met was a person
who was "permitted by his personal law a plurality of wives." It is not in dispute that in accordance with the
capacity he thus enjoyed he entered into relations with Madam Kong, Madam Yong and Madam Chan by
virtue of which these ladies became his wives and, in my view, are now entitled to be regarded as his wid-
ows. It follows, too, that the children born during wedlock of which he is the father and of which Madam Yong
and Madam Chan are the respective mothers are his legitimate natural children.
In these circumstances I would allow the appeal so far as the widows and natural children are concerned.
In my view the order which should be made is as follows:

(1) Letters of Administration should issue to Madam Kong, Madam Yong and Madam Chan jointly;
(2) There should be a declaration that Madam Kong, Madam Yong and Madam Chan are the law-
ful widows of the deceased, that the children Francis, Anthony, Philomena, Charlie, Daniel,
Emmanuel and Rosa are the natural children of the deceased born in wedlock and that these
persons and these persons alone are the persons entitled to succeed to the estate as provided
by the Distribution Ordinance.
As regards costs, I think the respondent Loh Peng Heng should pay the taxed costs of all parties incurred
after the date on which he filed his caveat, and that all costs other than those of and to be borne by Loh
Peng Heng should be taxed on a solicitor and client basis and be paid out of the estate.

HILL JA

I agree with the learned Chief Justice that these appeals should be allowed and that the following order be
made:--

(1) Letters of Administration should issue to Madam Kong, Madam Yong and Madam Chan jointly;
(2) There should be a declaration that Madam Kong, Madam Yong and Madam Chan are the law-
ful widows of the deceased, that the children Francis, Anthony, Philomena, Charlie, Daniel,
Emmanuel and Rosa are the natural children of the deceased born in wedlock and that these
persons and these persons alone are the persons entitled to succeed to the estate as provided
by the Distribution Ordinance.
I also agree that the respondent Loh Peng Heng should pay the taxed costs of all parties incurred after the
date on which he filed his caveat and that all costs other than those of and to be borne by Loh Peng Heng
should be taxed on a solicitor and client basis and be paid out of the estate.
At the conclusion of the hearing of this appeal the Court was unanimously agreed that the appeal should be
allowed, but it was felt that the matter was of such importance that our decisions should be recorded in writ-
ing.
Some months ago, in fact early in December, 1960, I set down my views in a rough draft judgment. In view of
the exhaustive judgment of the learned Chief Justice and of the many decisions on kindred subjects I do not
wish to add unnecessarily to what has been already written, but I feel it is just as well that I should state as
briefly as possible why I am of the opinion, on the facts found by Neal J., that each of the three marriages
was a valid one.
In the first place it is abundantly clear that for many years Chinese polygamous marriages have been recog-
nised in Johore and in Singapore as valid and conferring the status of wife, first or secondary, on the women
with rights of inheritance to them and to their children.
It is perhaps true as Neal J. stated that the Courts have never extended (in so many words) the principle of
customary marriage to cover the case where one of the parties to the marriage was a Christian. But in Doro-
thy Yee case Thomson J. (as he then was) stated:
120

"In the Straits Settlements, however, whatever, may be the position as regards other races, the only conclusion that
can be drawn from the Six Widows Case, supra, which is the classical case on the subject, is that as regards Chinese
the question of personal law is based on race. The Courts in effect have given judicial recognition to certain customs
prevalent or thought to be prevalent among persons of Chinese race irrespective of their domicile or religion. They
have thus set up what might be called a sort of common law as affecting persons of Chinese race and it would seem
that the case is the same in those portions of the present Federation which were not formerly part of the Straits Settle-
ments or, perhaps more accurately, which were part of the former Federated Malay States."

It is a natural corollary of this statement that a Christian Chinese may legally contract a polygamous marriage
if to do so is consistent with his personal law based on race. Neal J. somewhat lightly brushed aside this
opinion with an expression of regret though it was an opinion contained in a carefully reasoned and long-
considered judgment.
As the first plaintiff was married in Singapore and the other two wives in Johore it is necessary to consider
the relevant Christian Marriage laws in existence in the two States at the times of these marriages. They are
Cap. 82 of the Singapore laws and Enactment 53 of
1961 1 MLJ 234 at 249
Johore. For the purposes of this appeal there are no material differences ill these two laws.
The preambles to these laws are respectively "To consolidate the law relating to Christian Marriage" and "To
provide for the Marriage of persons professing the Christian religion" and both laws achieve these objects,
but the preambles would have been more correct, in my opinion, if the word "monogamous" had also been
used.
It seems to me that these two laws in so far as a Christian is concerned lay down a form of solemnization
which must be observed if the marriage is to be monogamous in accordance with the Christian faith and le-
gally recognized as such.
But in Part VI of both these laws there is provision for monogamous marriages by way of a civil ceremony. It
surely follows that if a couple of professed atheists wish their union to be monogamous there is nothing in
these laws that forbids them availing themselves of the civil ceremony and thereby contracting a valid mo-
nogamous marriage.
It is clear beyond doubt that the only valid monogamous marriage a Christian could contract was as provided
for in these two laws, but nowhere in them is a polygamous marriage by a Christian forbidden if his personal
law based on his race recognises polygamy.
If a person is a Christian and at the same time his personal law based on his race recognises polygamous
marriages, surely he is free to choose whether he will contract as a Christian a valid monogamous marriage
or to form a valid polygamous union or unions in accordance with his personal law. If it was the intention in
either of the Christian Marriage laws under consideration to forbid to such a person valid polygamous unions,
that object in my view was not achieved. Nowhere is such a marriage expressly or impliedly forbidden.
I have referred to many of the cases cited by the learned Chief Justice. With the exception of the judgment
by Murray-Aynsley C.J. in Re Henry Lee Fow Lee deceased [1953] MLJ 106 I find in none of them anything
contrary to the opinion I have formed. As no reasons whatever were given for the judgment in the Henry Lee
Fow Lee case, I need say no more than that I disagree with the bare opinion expressed by the learned Chief
Justice.
I therefore hold that the marriages of the deceased Loh Toh Met to the first and second plaintiffs and to the
first defendant were all valid marriages and that the three widows and the natural children of the deceased
by them are entitled to succeed to the estate of the deceased and entitled to their respective shares in his
estate.

RIGBY J

I had myself written a somewhat lengthy judgment in this case. But since doing so I have had the advantage
of reading the judgment of the President of the Court. It expresses so comprehensively and with such clarity
the views that I had already formed that it would be mere useless verbiage for me to add anything further. I
121

am, therefore, content to say that for the reasons so lucidly stated by the President, with which I am in entire
agreement, I would allow this appeal.
I concur in the consequential order proposed by the President at the conclusion of his judgment, and in the
view expressed by him as to the proper order as to costs.

Appeal allowed.

Solicitors: Murugason & Co; Philip Hoalim & Co; Allen & Gledhill; MB Brash; Mallal & Namazie.
122

Malayan Law Journal Reports/1954/Volume 1/SP PONNIAH PILLAY v SENTHAMARAI D/O VELLASAMY -
[1954] 1 MLJ 175 - 20 March 1954

2 pages

[1954] 1 MLJ 175

SP PONNIAH PILLAY v SENTHAMARAI D/O VELLASAMY


OCJ IPOH
BUHAGIAR J
ORIGINATING SUMMONS NO 202 OF 1953
20 March 1954

Guardianship of infant -- Illegitimate child -- Hindu law -- Welfare of infant shall be primary consideration --
Civil Law Enactment, 1937, s 6(1) applied

This was an originating summons in which the applicant applied for the custody of his infant child by the re-
spondent. It appeared that the parties were of Indian nationality, of Hindu religion and that they were not le-
gally married. Counsel for the applicant submitted that the matter in this case shall be governed by Hindu law
and referred to the Hindu law on the subject of the custody of illegitimate children.

Held:

(1) under s. 6(i) of the Civil Law Enactment, English law applied to cases relating to custody and
control of infants but regard is to be had to the religion and customs of the parties, and such
modifications are to be made as are necessary to prevent it from operating unjustly and op-
pressively;
(2) the religion and customs of the parties cannot have the effect of ousting the principles of Eng-
lish law: they can only have the effect of modifying it, in so far only as may be necessary to fit
the circumstances of each case;
(3) according to the authorities on Hindu law it did not appear that the father of an illegitimate child
has an absolute right to the custody of the child, but whatever his rights are, the primary con-
sideration in cases of this nature should be the welfare of the infant;
(4) in this case it is for the welfare of the child that the respondent should have the custody thereof.

Cases referred to
Ong Cheng Neo v Yeap Cheah Neo & Ors LR 6 PC 381; 1 Ky 326
Choa Choon Neoh v Spottiswoode 1 Ky 216
Re Sinyak Rayoon & Anor 4 Ky 329
Mt Parem Kaur & Ors v Banarsi Das 4 Ky 329
Mt Parem Kaur & Ors v Banarsi Das AIR 1934 Lahore 1003
Barbardo v McHugh (1891) AC 388
In re O'Hara (1900) 1 IR 232 239
In re Carrol (1931) 1 KB 317
Ex parte Knee 1 B & PNR 148
123

APPLICATION for custody of infant.

N Sharma for the applicant.

ARH Thomas for the respondent.

BUHAGIAR J

In this Originating Summons adjourned for hearing in open Court SP. Ponniah Pillay is applying for the cus-
tody of his infant child, Murugappan, by the respondent, Senthamarai. It was admitted by the parties that
they are of Indian nationality, of Hindu religion, and that they are not legally married. The affidavits of the ap-
plicant and the respondent show that they lived together from 1948 until the 12th August, 1953; the infant
Murugappan, was born on the 29th March, 1949.
From the evidence on record it appears that for some time the respondent thought that she was lawfully mar-
ried to the applicant according to Hindu rites and customs and that when she realised in August, 1953, that
she was only his mistress she left him, and went to live with her sister, who is married to one Ramaiah and
has three children. Attempts by the Arbitration Board (Indian Section), Social Welfare Department, Teluk An-
son, to bring about a reconciliation were unsuccessful.
Some time in 1951 (about April) the applicant went to India with the respondent and the infant Murugappan.
He was away for about four months; he married in India and returned to Malaya with his wife; there is now a
daughter from this marriage.
The infant has been with the respondent's sister and brother-in-law for 3 or 4 years; the respondent used to
take him to the applicant's house occasionally
1954 1 MLJ 175 at 176
for two days or so and has never been with the applicant for any length of time except for the period of four
months when the applicant was in India in 1951.
The applicant's wife does not seem to have acted favourably towards the infant. The respondent is not doing
any work except helping her sister in house-keeping. Ramaiah is providing food and clothing for the re-
spondent and the infant and has been doing so for the infant during the time that the infant has been with
him and his wife. The infant seems happy in Ramaiah's house and calls Ramaiah "Aya- (father) just as his
own children do. Ramaiah is willing to go on having them in his house and supporting the respondent and
the infant; he says he can afford to do so as his salary is about $460 per mensem and one of his children is
working and earning $100 per mensem.
In his affidavit dated the 2nd November, 1953, in support of the Originating Summons, the applicant states
that the respondent's conduct is very suspicious as she is living alone at Blenham Estate, Bagan Datoh, and
that, from what her sister says, she is arranging to live with another man; that the respondent is neglecting to
look after the infant properly and he heard that he is being underfed; that he is a licensed money-lender, a
man of sound financial standing and a Federal Citizen, and that as he has only one son he is in a position to
maintain him and bring him up as a good citizen.
There is no substance in the allegations about the respondent's conduct and the treatment of the infant; on
the contrary, there is evidence to show that the respondent is living a decent life with her sister and brother-
in-law, that the infant is happy and appears to be well looked after. The respondent is not financially inde-
pendent and there are proceedings pending for maintenance of the child.
Mr. N. Sharma, counsel for the applicant, stated at the hearing that the applicant would agree to put the child
in an educational institution and was prepared to give $200 per mensem towards his education.
With regard to the law, Mr. Sharma submitted that this case is governed by section 6 (1) of the Civil Law
Enactment, 1937 (F.M.S. Enactment No. 3 of 1937) which provides as follows:--
124

"In all cases relating to the custody and control of infants the law to be administered shall be the same as would have
been administered in like cases in England at the commencement of this Enactment regard being had to the religion
and customs of the parties concerned, unless in any case other provision is or shall be made by any written law.-

If I understood Mr. Sharma's arguments correctly, his submission is that in view of the concluding words of
that sub-section the matter in this case should be governed by Hindu Law. I do not consider that the effect of
the words "having regard to the religion and customs of the parties concerned- in section 6(i) of the Civil Law
Enactment, 1937, is to exclude completely the application of English law when such religion and customs are
different from or in conflict with the principles of English law. In my opinion those words have the same effect
as the words "so far as circumstances will admit- used in the Letters Patent of 1826 and 1855 which intro-
duced the Law of England into the Colony of the Straits Settlements. In Ong Cheng Neo v Yeap Cheah Neo
& Ors LR 6 PC 381; 1 Ky 326, the Judicial Committee of the Privy Council approved the expressions used by
Sir Benson Maxwell C.J., in the case of Choa Choon Neoh v Spottiswoode 1 Ky 216, where he said (at p.
221):--
"In this Colony so much of the Law of England as was in existence when it was imported here and is of general (and
not merely of local) policy and adapted to the conditions and wants of the inhabitants, is the law of the land, and further
that law is subject, in its application to the various alien races established here, to such modifications as are necessary
to prevent it from operating unjustly and oppressively on them.-

Adopting these principles, in Re Sinyak Rayoon & Anor 4 Ky 329, Pellereau J., said (at p. 332):--
"I hold in consequence that in the selection of such guardians the Court should apply the law of England, and in doing
so, should consider the circumstances of each case, the interest and welfare of the infants, their treatment, their sex,
their education, the religion of their parents and the rules which, according to that religion, regulate their domestic cus-
toms and relations. Each case must necessarily stand on its own grounds, and it is a beneficial character of the law,
such as I hold it to be, that its elasticity allows the Judge in matters of guardianship to take into account, in the interests
of the infants, the varied circumstances of their position.-

Similarly, under section 6(i) of the Civil Law Enactment, English law applies to cases relating to custody and
control of infants but regard is to be had to the religion and customs of the parties, and such modifications
are to be made "as are necessary to prevent it from operating unjustly and oppressively.- The religion and
customs of the parties cannot have the effect of ousting the principles of English law; they can only have the
effect of modifying it, in so far only as may be necessary to fit the circumstances of each case.
With regard to Hindu Law on the subject of illegitimate children, Counsel for the applicant referred me to Mul-
la's Principles of Hindu Law, 11th Ed p. 615, and to the Indian Case of Mt Parem Kaur & Ors v Banarsi Das
AIR 1934 Lahore 1003. The Hindu Law on this subject is adequately summarised in the following statement
by Mayne on Hindu Law and Usage, 10th Ed. p. 305, para. 235:--
"The mother is the natural guardian of an illegitimate child. But the putative father on whom the obligation to maintain
falls has prima facie the preferential right to the custody. Where the mother has allowed the child to be separated from
her and brought up by the father, or by persons appointed by him, the Court
1954 1 MLJ 175 at 177
will not allow her to enforce her rights, especially if the result would be disadvantageous to the child by depriving it of
the advantages of a higher mode of life and education. Her own continued immorality would of itself be a sufficient rea-
son against handing over to her a child which was otherwise properly provided for.-

It may here be pointed out that the obligation of the putative father to maintain the child arises under section
488 of the Indian Criminal Procedure Code, whose provisions are similar to those in section 3 of the local
Married Women and Children (Maintenance) Ordinance, 1950 (No. 36 of 1950). I mention this because there
are statements in English law books which are taken to be authority for the proposition that in English law the
right of a mother to the custody of her illegitimate child arises out of her obligation to maintain her child --
formerly under the Poor Laws and now under the National Assistance Act, 1948. This is correct only in so far
as the rights of the mother at common law are concerned. Bur as Lord Herschell in Barbardo v McHugh
(1891) AC 388, stated (at p. 398):--
"It is, however, no longer important to inquire what are the rights of the mother in relation to an illegitimate child at
common law. All the Courts are now governed by equitable rules, and empowered to exercise equitable jurisdiction.-
125

The fact, therefore, that under the local law the putative father may be liable to maintain an illegitimate child
does not necessarily give him the right of custody.
In English law the father of an illegitimate child, so long as the child remains illegitimate, is not generally rec-
ognised for civil purposes; he is under no obligation to provide for the child, in the absence of an affiliation
order, unless he had adopted it de facto or obtained an adoption order; unless he has obtained an adoption
order he has no right to the custody of the child, even though he is in a better position to maintain it; the
Court will protect his right whenever he is in lawful custody of the child. ( Halsbury's Laws of England, 3rd Ed.
Vol. 3 at pp. 108, 109). The mother of an illegitimate child has prima facie the right of custody and when
questions on custody arise the wishes of the mother are to be taken into account but the welfare of the infant
is the first and paramount consideration. The principles of law to be used in determining questions of custody
are stated with great clarity by FitzGibbon L.J., in In re O'Hara (1900) 1 IR 232 239, quoted with approval in
In re Carrol (1931) 1 KB 317 as follows:--
"At common Law, the parent has an absolute right to the custody of a child of tender years, unless he or she has for-
feited it by certain sorts of misconduct. Chancery, when a separate tribunal, possessed a jurisdiction different from that
of Queen's Bench, and essentially parental, in the exercise of which the main consideration was the welfare of the
child, and the Court did what, on consideration of all the circumstances, it was judicially satisfied that a wise parent,
acting for the true interests of the child, would or ought to do, even though the natural parent desired and had the
Common Law right to do otherwise, and had not been guilty of misconduct. The Judicature Act has made it the duty of
every Division of the High Court to exercise the Chancery jurisdiction. In exercising the jurisdiction to control or ignore
the parental right the Court must act cautiously, not as if it were a private person acting with regard to his own child,
and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the paren-
tal right should be suspended or superseded.-

In the present case, the child is four years old, well looked after and happy in his surroundings; he does not
know his father, the applicant, as he has not lived with him even when the respondent was with the applicant;
except for the period when the applicant was in India, the child was not with the applicant except for very
short intervals. I think it is also important to point out that the applicant has a wife who, as a step-mother,
cannot give the same affection to the child as the natural mother.
The applicant does not seem to have missed his son in the past; he has not even provided food and clothing
for him. The only factor in favour of the applicant is his financial prosperity; apart, however, from the fact that
the mother is entitled to the custody of her infant child in preference to the father, though from his circum-
stances he may be better able to educate it ( Ex parte Knee 1 B & PNR 148), I do not think that this is suffi-
cient to outweigh the benefits of affection and care of his mother especially at the present tender age of the
child. Adopting the principles of English law, I consider that it is for the welfare of the child that the respond-
ent should have the custody thereof.
According to the authorities on Hindu Law it does not appear that the father of an illegitimate child has an
absolute right to the custody of the child; but whatever his rights are, I think it is a sound principle that the
primary consideration in cases of this nature should be the welfare of the child, and it does seem to me that
English law requires modification to prevent it from operating unjustly or oppressively in this case.
The application should be dismissed with costs.

Application dismissed.

Solicitors: SM Sharma; Lovelace & Hastings.


126

Malayan Law Journal Reports/1953/Volume 1/ISAAC PENHAS v TAN SOO ENG - [1953] 1 MLJ 73 - 17
February 1953

3 pages

[1953] 1 MLJ 73

ISAAC PENHAS v TAN SOO ENG


PRIVY COUNCIL
LORD MERRIMAN, LORD NORMAND, LORD OAKSEY, LORD REID AND LORD ASQUITH OF BISHOP-
STONE)
APPEAL NO 21 OF 1951
17 February 1953

Marriage -- Validity of marriage of a Jew to a non-Christian Chinese lady -- Modified Chinese form of mar-
riage ceremony -- Common Law monogamous marriage -- Intention -- Mixed marriage between domiciled
inhabitants of different religions or races -- Validity of -- Charter of 1826

This was an appeal from a judgment of the Court of Appeal of the Colony of Singapore ( reported in (1950)
MLJ 104) dismissing an appeal by the appellant from a judgment of Mr. Justice Gordon-Smith ( reported in
(1949) MLJ 223) upon the trial of an issue ordered to be tried in a Petition by the respondent for letters of
administration of the estate of Abraham Penhas deceased against which the appellant had entered a caveat.
The said issue was in the following terms: "Whether the petitioner Tan Soo Eng is or is not the lawful widow
of Abraham Penhas and if the answer is in the affirmative when the said Tan Soo Eng married the said
Abraham Penhas-. Both the learned trial Judge and the Court of Appeal decided the said issue in favour of
the respondent, determining that she had been lawfully married to the deceased on or about the 22nd De-
cember, 1937. From their decisions the appellant appealed to the Judicial Committee of the Privy Council.
The principal question to be decided was whether there was in 1937 anything in the religions, manners or
customs of Jews or Chinese domiciled in Singapore which prevented them from contracting a common Law
monogamous marriage.

Held (dismissing the appeal): the Common Law of England was in force in Singapore in 1937 except in so
far as it was inapplicable and except in so far as it was necessary to modify it to prevent hardships upon the
inhabitants who were entitled by the terms of the Charter of 1826 to the exercise of their religious manners
and customs.
Their Lordships agreed with the view expressed by Evans, J. in the Court of Appeal in the present case that
in a country such as Singapore where priests are few and there is no true parochial system, where the vast
majority are not Christians, it is neither convenient nor necessary that two persons such as the respondent
and the deceased should be required to call in an episcopally ordained priest to effect a marriage.
There was no form of a ceremony of marriage in the present case which was applicable to both parties to the
marriage and accordingly they seem to have adopted a composite ceremony, the wife worshipping
1953 1 MLJ 73 at 74
according to her Chinese custom and the husband according to his Jewish custom. Such a ceremony per-
formed in the circumstances already stated was indubitably intended by the parties to constitute a valid mar-
riage, and their Lordships held that the evidence sufficiently proved a Common Law monogamous marriage.

Cases referred to
Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381; SLR Leic 569; 1 Ky 326; 337 (PC)
127

Carolis De Silva v Tim Kim (1902) 9 SSLR App 8


Wolfenden v Wolfenden (1946) P 61; (1945) 2 All ER 539

PRIVY COUNCIL

RJA Temple, QC, Ian Baillieu and H Forbes for the appellant.

P Colin Duncan and AL Gordon for the respondent.

LORD OAKSEY

The judgment of their Lordships was delivered by:--


This is an appeal from a judgment of the Court of Appeal of the Colony of Singapore dated the 24th March
1950, dismissing an Gordon-Smith in the High Court of the Colony of Singapore dated the 13th September,
1949, upon the trial of an issue ordered to be tried in a Petition by the respondent for letters of Administration
of the estate of Abraham Penhas deceased against which the appellant had entered a caveat.
The said issue was in the following terms: "Whether the petitioner Tan Soo Eng is or is not the lawful widow
of Abraham Penhas and if the answer is in the affirmative when the said Tan Soo Eng married the said
Abraham Penhas.- Both the learned trial judge and the Court of Appeal decided the said issue in favour of
the respondent, determining that she had been lawfully married to the deceased on or about the 22nd De-
cember, 1937.
The question to be determined upon this appeal is whether the learned trial Judge and the Court of Appeal
were right in their conclusion that a marriage celebrated in Singapore between a Jew and a non-Christian
Chinese in a modified Chinese form constituted a valid marriage according to the laws of the Colony.
Both the deceased and the respondent were British subjects and were at all material times domiciled and
resident in Singapore. Neither of them was married at the date of the marriage ceremony relied upon by the
respondent in December, 1937. From the date until the deceased was murdered by the Japanese shortly
after the fall of Singapore in February, 1942, the lived together as man and wife and had two children.
The appellant is a brother of the deceased an was the executor of the last will and testament of the de-
ceased which was executed on the 3rd April, 1936. He has nor applied for probate of the said will.
Abraham Penhas the deceased who was born in 1897 was a member of the family firm of Rahamin Penhas
carrying on business in Singapore and in the year 1936 went to England on a world tour. There he met a
Jewess whom he wished to marry but as his father did not consent he returned to Singapore unmarried.
In the following year he employed a Eurasian lady as a go between with a view to marriage and she intro-
duced him to the respondent and her mother. The met in the Botanical Gardens of Singapore and conversed
in Malay. Abraham asked the respondent's mother if she would consent to a marriage between him and the
respondent and the respondent's mother stipulated that it must be a proper wedding. He gave the respond-
ent $500 to establish herself and her mother in a more suitable house than that in which they were then living
and he visited them for a few months at the house they took.
The respondent's evidence continued:--

"One day when he visited me he said that since we were temperamentally compatible we should have an early mar-
riage. I suggested a Church Ceremony. He said such was not possible in the Jewish Synagogue -- because they would
not allow any but Jews to go in. Then I suggested a marriage according to Chinese rites and he asked for details and I
told him -- An appointed day, before friends and relatives as witnesses, and of course my mother would be there.-
* * * * * *
"We decided to have the marriage in my house at Sims Avenue and according to Chinese rites. He was to pay the ex-
penses. The date fixed was in December 1937, 3 or 4 days before Christmas. Friends and relatives gathered together
and deceased came at 11 a.m. with 3 of his friends, to 508 Sims Avenue.
128

One was an old Chinese gentleman and 2 Jews. I don't know their names but could recognize them. I have not seen
them since the marriage. There were 16 or 17 guests, including his 3 guests. The old Chinese gentleman brought by
deceased solemnized the marriage. We stood before him. We worshipped the Heavenly God and I worshipped with
Joss Sticks and he asked us each separately whether we were willing to be man and wife, and we both said Yes.
Deceased put a handkerchief over his head while I worshipped. I bowed twice (curtsied) (stooped) holding joss sticks
(illustration by witness) and worshipped to Heaven.
Deceased told me it was their custom to put a handkerchief on the head.
He raised his right hand the whole time while I was worshipping. I was murmuring a prayer to Heaven for long life.
I could not understand what he was murmuring, it was in his language.
1953 1 MLJ 73 at 75
After worshipping, his two Jewish friends shook hands with me and deceased also shook hands with me and kissed
me. This ceremony was in the outer Hall and we then went into the inner Hall -- My mother was sitting in a Chair.
We both went before her -- I knelt down and deceased bowed, and then offered her a cup of tea -- according to Chi-
nese custom. We had a feast immediately afterwards. After the feast the old Chinese gentleman gave us his blessing
before he left. He came to live with me at Sims Avenue, passing 3 to 4 nights there per week but he came there every
day. After that he permanently resided in Singapore -- but would sometimes go up-country on business but would tell
me so before going. He would write to me when away.-

In cross-examination the respondent said:--


"The meeting in the gardens lasted about hour. Mother was there, Mamma (the go between) and deceased. He pro-
posed a marriage straight away. He asked my mother if she had any objection to his not being a Chinese. My mother's
reply was there was no objection provided there was a proper marriage.-

The respondent's mother also gave evidence and said inter alia:--
"The three of us, deceased, daughter and self, had a discussion about the marriage. Deceased one day, on a visit,
asked my daughter: 'Shall we not be married?' and my daughter said 'at any time'. He said a ceremony could not pos-
sibly be performed in the Synagogue and my daughter said it would have to be according to Chinese custom.
'Abe agreed' and a date was then fixed. He said we could invite our friends and relatives and he would invite his.
He gave $500 for the expenses.
On the wedding day he came with three friends, one an old Chinese gentleman and 2 Jews. Our friends were present
and it took place at Sims Avenue.
When he came, my daughter was upstairs but hearing his voice, she came down and the old Chinese gentleman con-
gratulated her. The 2 Jews smiled and spoke to her in English but I did not understand.
Then he and my daughter stood side by side before the Chinese gentleman and the latter spoke, referring to the auspi-
cious occasion, etc., etc., and finally asked both of them if they were willing to marry each other. Both of them an-
swered: 'Yes.' Then he said: 'You are now husband and wife and I wish you a happy and lifelong union.' -
* * * * * *
"My daughter suggested a ceremony in Church but deceased said a Jew was forbidden to enter. (Interpreter corrects it
and says she says 'a place of worship' and that witness suggested the Synagogue.)
Deceased replied that the Jewish Synagogue his place of worship could not be entered except by Jews. Deceased
said this and my daughter suggested marriage according to Chinese rites. He agreed. I do not remember that she sug-
gested a marriage according to Jewish rites outside a Synagogue. That is all I can remember of the discussion.-

The pastor in charge of the Chinese Christian Church also gave evidence and said that the respondent was
already an attending member of his Church when he took up his duties there in 1939: that he visited her at
her house after meeting her at Church: that he met her husband Abraham Penhas there and was introduced
by him to the respondent as his wife and saw a little girl there whom Abraham introduced as his child and
that he subsequently baptised their second child with their consent.
Upon these facts both Courts in Singapore have held that the respondent was the lawful widow of the de-
ceased Abraham Penhas.
129

The appellant's counsel however contends firstly that the Christian Marriage Ordinance of Singapore 1936
was applicable to the parties and that no marriage was valid unless celebrated in accordance with that Ordi-
nance.
Secondly that the deceased had not the capacity to contract a polygamous marriage; thirdly that the cere-
mony adopted was of such a character that it could give rise only to a polygamous marriage; fourthly that
there is no evidence which justified the inference that there had been a valid Common Law marriage; and
lastly that the equivocal nature of the ceremony and the other evidence did not establish the consensus ad
idem necessary to prove a valid Common Law marriage of a monogamous nature.
Their Lordships do not find it necessary to set out the provisions of the Ordinance of 1936 as they think it
clear that the Ordinance only applies to marriages in which one of the parties is a Christian and it is not sug-
gested that either party to the marriage in question was a Christian at the time. It is clear that at the material
time no ordinance comparable with the Civil Marriage Ordinance of 1940 was in force. Nor do they think it
necessary to deal in detail with the question whether a Jew domiciled in Singapore has capacity to form a
polygamous marriage as to which no evidence was given or with the contention that the ceremony adopted
which was not entirely in accordance with Chinese rites was only consistent with or raised a presumption of a
polygamous marriage.
In the year 1875 their Lordships' Board had occasion to review the history of the Straits Settlements in the
case of Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381 337 (PC) SLR Leic 569 1 Ky 326 and held
that the English Common Law was in force in Singapore in so far as it is applicable, but that the Charter of
1826 provided that the Court of the Colony was to exercise jurisdiction as an Ecclesiastical Court in so far as
the religions manners and customs of the inhabitants will admit.
The principal question to be decided is therefore whether there was in 1937 anything in the religions man-
ners or customs of Jews or Chinese domiciled in Singapore which prevented them from contracting a Com-
mon Law monogamous marriage. No case has been cited which suggests that mixed marriages between
domiciled inhabitants of different religions or races cannot validly be contracted. On the contrary the case
1953 1 MLJ 73 at 76
of Carolis De Silva v Tim Kim (1902) 9 SSLR App 8 is authority that they can and indeed the appellant's
counsel did not contend that such marriages were impossible.
In accordance with these decisions their Lordships hold that the Common Law of England was in force in
Singapore in 1937 except in so far as it was inapplicable and except in so far as it was necessary to modify it
to prevent hardships upon the inhabitants who were entitled by the terms of the Charter to the exercise of
their religions manners and customs.
Their Lordships agree with the view expressed by Mr. Justice Evans in the Court of Appeal in the present
case that in a country such as Singapore where priests are few and there is no true parochial system, where
the vast majority are not Christians, it is neither convenient nor necessary that two persons such as the re-
spondent and the deceased should be required to call in an episcopally ordained priest to effect a marriage.
The case of Wolfenden v Wolfenden (1946) P 61; (1945) 2 All ER 539 and the cases there cited are in point
and were in their Lordships' opinion rightly decided.
There was no form of a ceremony of marriage in the present case which was applicable to both parties to the
marriage and accordingly they seem to have adopted a composite ceremony, the wife worshipping according
to her Chinese custom and the husband according to his Jewish custom.
Such a ceremony performed in the circumstances already stated was indubitably intended by the parties to
constitute a valid marriage. The only question which in their Lordships' view admits of any doubt is the ques-
tion whether the marriage intended by the parties to be constituted by the ceremony was a Common Law
monogamous marriage or a Chinese polygamous marriage.
This question was not raised in the Courts below and no questions were put to the respondent in cross-
examination on the subject. Abraham Penhas was dead and in such circumstances it would, in their Lord-
ships' opinion, be altogether wrong to invalidate a marriage so solemnized followed as it was by years of co-
habitation as man and wife and to bastardize the two children of the marriage, even if the other evidence
were equivocal as to the status intended. But it is not necessary to decide the case on this narrow ground for
their Lordships hold that the evidence as it stands sufficiently proves a Common Law monogamous mar-
130

riage. The wishes expressed by the respondent and her mother for a Church marriage, the reason why a
modified Chinese ceremony was substituted, the presence of Jewish friends at the ceremony, the words
spoken by the Chinese gentleman who performed the ceremony as to a life-long union, the cohabitation as
man and wife followed and continued till the husband's death and the introduction by the deceased to a
Christian pastor of the respondent as his wife and last but not least the baptism of their children as Christians
with the approval of their father all indicate that the spouses intended to contract a Common Law monoga-
mous marriage.
Their Lordships will therefore humbly advise Her Majesty that this appeal ought to be dismissed. The appel-
lant must pay the costs of the appeal.

Appeal dismissed.
131

Malayan Law Journal Reports/1949/Volume 1/IN THE MATTER OF THE TRUSTS OF THE WILL OF
HADJEE HAROUN BIN TAMBY KECHIK (DECEASED) - [1949] 1 MLJ 143 - 21 February 1949

1 page

[1949] 1 MLJ 143

IN THE MATTER OF THE TRUSTS OF THE WILL OF HADJEE HAROUN BIN TAMBY
KECHIK (DECEASED)
ORIG CIVIL JURIS SINGAPORE
GORDON-SMITH, AG CJ
ORIGINATING SUMMONS NO 170 OF 1948
21 February 1949

Will -- Construction -- Rule against Perpetuities -- Wakaff -- Charity -- Evidence Ordinance S 101

Clause 2 of the Will of Hadjee Haroun bin Tamby Kechik (deceased) was as follows:--

"I direct in the cause of God and in the hope of recompense from Him that my houses, Nos. 39, 40 and 41 Klang Road
together with their lands, be made a Wakaff for the benefit of my wife, Inche Mah binti Mahmood and my sons and
daughters, to be shared equally between them. In the event of all of them shall die, the benefit of the Wakaff shall de-
scend to all my male and female grand-children in the male line to be shared equally between them. After them the
benefit of the Wakaff shall pass to the most learned and pious man in this country. This shall go on for ever. I appoint
the said Executors as Trustees of the said Wakaff. After this, my nearest and most intelligent heir shall be the Trustee
of the said Wakaff. This shall go for ever".

An Originating Summons was taken out for the determination of the following questions:--

(1) Whether the trusts relating to the land and houses known as Nos. 39, 40 and 41 Klang Road,
Singapore are void as infringing the rule against perpetuities.
(2) If so whether the said land and houses fall into the residue to be divided according to Clause VI
of the said Will.

Held,

(1) that the gift over after the deaths of the widow, children and grandchildren offends against the
Perpetuity Rule and that such gift is not a charitable gift and is also void for uncertainty and
vagueness;
(2) that the life interest to the widow and children of the testator is good and that upon the determi-
nation of these estates the beneficial interests fall into and form part of the residue of the estate
to be disposed of in accordance with Clause 6 of the Will.

Cases referred to
Ong Cheng Neo v Yeap Cheah Neo 1 Kyshe 344
Chamberlayne v Brockett LR 8 Ch 206
In re Lord Stratheden and Campbell (1894) 3 Ch 265
In the Matter of the Will and Trust Deed of Syed Shaik bin Abdul Rahman Alkaff (unreported) Singapore Civil
Suit No 145 of 1922
Ashabee and others v Mahomed Hashim and another 4 Kyshe 213
132

ORIGINATING SUMMONS

Ahmad bin Ibrahim for the Plaintiff.

BH Chia for the Defendant.

L Rayner (Crown Counsel) for the Attorney-General.

GORDON-SMITH, AG CJ

This Originating Summons involves the interpretation and construction of the Will of Hadjee Haroun bin
Tamby Kechik, deceased, and asks:--

(1) Whether the trusts relating to the land and houses known as Nos. 39, 40 and 41 Klang Road,
Singapore are void as infringing the rules against perpetuities;
(2) If so, whether the said land and houses fall into the residue to be divided according to Clause
VI of the said Will.
The Will in question is dated the 11th December 1903, the Testator died on the following 31st December and
Probate of the Will was granted on the 8th February 1904 to Mohamed bin Tamby Kechik, the deceased's
brother and the Executor and Trustee therein named. The present Plaintiff is a grandchild of the deceased,
and the Defendant obtained a grant of Letters of Administration de bonis non with the Will annexed on the
9th March 1934. In case of any doubts arising and by consent of all parties I appointed the present Defend-
ant Hadjee Hussain bin Hadjee Haroun to be the Executor and Trustee of the Will.
The material and relevant clauses in the Will, read as follows:--

Clause II. "I direct in the cause of God and in the hope of recompense from Him that my houses, Nos.
39, 40 and 41 Klang Road together with their lands, be made a Wakaff for the benefit of my
wife, Inche Mah binti Mahmood and my sons and daughters, to be shared equally between
them. In the event of all of them shall die, the benefit of the Wakaff shall descend to all my
male and female grandchildren in the male line to be shared equally between them. After
them the benefit of the Wakaff shall pass to the most learned and pious man in this country.
This shall go on forever. I appoint the said Executors as Trustees of the said Wakaff. After
this, my nearest and most intelligent heir shall be the Trustee of the said Wakaff. This shall go
on forever."

Clause VI. "The rest and residue of my estate property shall be distributed to my beneficiaries in accord-
ance with the Mohamedan Law. All that has been mentioned in this Will has been uttered by
me personally with clear utterance, and I have hereunto set my hand in the presence of Wit-
nesses."

It is not, and cannot be, disputed that English law applies in the construction of this Will. (See Section 101,
Evidence Ordinance, Cap. 13). It is not and cannot be disputed that the Rule against Perpetuities is also ap-
plicable. (See Ong Cheng Neo v Yeap Cheah Neo 1 Kyshe 344, in the Privy Council) 1 Kyshe 344 Two
points
1949 1 MLJ 143 at 144
therefore arise which in general terms can be stated as follows:--

(a) Does clause two offend against the Perpetuity Rule?


(b) Is the gift over, that is, after the deaths of the children and grandchildren does the benefit of the
Wakaff pass "to the most learned and pious man in this country", validly, as being good charitable be-
quest.
133

As regards (a) the Rule is that, subject to certain exceptions, no contingent or executory interest in property
can be validly created, unless it must necessarily vest within the maximum period of one or more lives in be-
ing and 21 years afterwards. Consequently a devise or bequest not falling within one of the exceptions is
void if it is to take effect on the happening of an event at some indefinite future time or within a fixed period
exceeding 21 years; for it is not necessary that the period within which the interest is to vest should be lim-
ited with reference to a life.
It is quite clear that the provision for the benefit of the Wakf passing on "to the most learned and pious man
in the country" after the deaths of the sons and daughters of the Testator and also of his grandchildren, of-
fends against the Perpetuity Rule. A gift over to a charity conditional upon a future and uncertain event which
may not happen within the period allowed by the Rule is void Chamberlayne v Brockett LR 8 Ch 206 and In
re Lord Stratheden and Campbell (1894) 3 Ch 265. It follows that the vesting is postponed beyond the Per-
petuity Rule limit, i.e. after the deaths of grandchildren. There are also further reasons for holding that the gift
over is bad. The mere creation of a Wakf does not necessarily imply that the objects intended to be benefit-
ted thereby are charitable objects. Many cases of Wakf dedication that came before me in Palestine could
not, by any stretch of imagination, have been deemed to be dedications for charitable objects. Such fact is
confirmed in the unreported case of Suit No. 145 of 1922 (unreported) Singapore Civil Suit No 145 of 1922
in the Court of Appeal in the Judgments of Whitley J. and Barrett-Lennard J. and by Sheriff J. in Ashabee
and Others v Mahomed Hashim and Another 4 Kyshe 213. Neither is it possible to apply the cy-pres doc-
trine. It is unnecessary, I think, to go into the other various authorities quoted to me as I am quite clearly of
the opinion that the gift over after the deaths of the widow, children and grandchildren offends against the
Perpetuity Rule, and that such gift over is not a charitable gift, and is also bad for uncertainty and vagueness.
The life interest to the widow and children of the Testator is good and upon determination of these estates,
the beneficial interests fall into and form part of the residue of the estate to be disposed of in accordance with
Clause 6 of the Will. There will be an order accordingly and the costs as between solicitor and client of all
parties will come out of the estate.

Order Accordingly.
134

Malayan Law Journal Reports/1949/Volume 1/IN THE ESTATE OF ABRAHAM PENHAS (DECEASED) TAN
SOO ENG (WIDOW) v ISAAC PENHAS - [1949] 1 MLJ 223 - 13 September 1949

5 pages

[1949] 1 MLJ 223

IN THE ESTATE OF ABRAHAM PENHAS (DECEASED) TAN SOO ENG (WIDOW) v


ISAAC PENHAS
ORIGINAL CIVIL JURISDICTION
GORDON-SMITH, J
PROBATE NO 119 OF 1946
13 September 1949

Marriage -- Marriage of Jewish gentleman and Chinese lady -- Consensual Marriage -- Succession

The principal issue in this case was whether the Petitioner Tan Soo Eng is or is not the lawful widow of
Abraham Penhas. The evidence was that the deceased a member of the Jewish faith married the plaintiff
according to Chinese rites and thereafter lived with and had children from her.

Held, that on the facts the parties had entered into a consensual contract of marriage and that as neither
party was incapacitated in law or otherwise from entering into such a contract, the marriage was valid ac-
cording to the law of the Colony.

Cases referred to
Civil Code -- Republic of China at p 254para 980
Dicey -- 5th Edn p 732; R 182; p 641; R 159
Dicey -- 6th Edn p 223/4 and note 57
Best on Evidence 12th Edn at p 309 "So the law ..."
Eversley on Domestic Relations, 5th Edn p 70
Legal Status of the Malay States Braddell, p 165
Local Marriage Ordinances
Harwoods Ordinances SS 1867 - 1877, Vol 1 p 11
Woods Oriental Cases (1867, p 30/31 Chulas v Kolson)
Woods Oriental Cases -- Appendix Choa Choon Neo v Spottiswoode
Code of Jewish Law Cap XLV p 6 and para 3 S 11, S 18, 19
SS Ordinance Cap 82 (Repealed) S 3
SS Ordinance 9 1940 (Civil Ord)
SS Ordinance 10 1940
Brinkley v AG (1890) 15 Probate p 76
Piers v Piers 9 ER 1118 H/N L/C at 1129 2nd para; approved in Sastry Aronegay 6 AC 364 at 372
Vowles v Young 33 ER p 247
135

Lindo v Belisario 161 ER at 535


Goldsmid v Bromer 161 ER p 568
Brook v Brook 11 ER p 1292 p 709
Conway v Beasley 162 ER p 1292 1297
Despatie v Tremley (1921) AC p 702
Sottomayer v de Barros 3 Probate Div at p 5
Sottomayer v de Barros 5 Probate Div 94 -- see p 99/100 and p 101102103
Chetti v Chetti (1909) Probate Div 67
Rex v Hammersmith Regr (1917) 1 KB p 634
Jones v Robinson 161 ER 1146
In re De Wilton (1900) Ch 481 at 488490
Ogden v Ogden (1908) Probate Div 46 at 58/60
Goodman v Goodman (1859) 23 LJ (NS) 745
Regina v Willans 3 Kyshe p 25 last paragraph
Bethell's Case 38 Chancery at p 217234
Petronella Case (1926) AC 543
Petronella Case (1930) AC at 349352
Cheang Thye Phin v Tan Ah Loy (1920) AC p 369
Carolis de Silva v Tim Kim (1905) 9 SSLR at p 812
Kow Heng Chow v Lay Mee Yin (1948) MLJ 157
Meyer v Meyer (1927) SSLR p 1 and 4
Yeap Cheah Neo v Ong Cheng Neo 6 PC p 381 (1875) at 385/6392/3394396397
Choo Eng Choon deceased XIII SSLR (1911) p 120 (Six Widows case) at 153; Law CJ 578/8
160161/2192208209/10212
Cheang Thye Phin v Tan Ah Loy (1920) AC 369 at 374/5376 (approving Six Widows case)
Khoo Hooi Leng v Khoo Hean Kwee (1926) AC 529 at 533537
Khoo Hooi Leng v Khoo Hean Kwee (1930) AC 346
Soon Voon Sen v Ang Kion Hee (1933) SSLR 380 (1924 case)
Tay Geok Teah SSLR 1934 p 88
Chia Teck Leong v Estate Trust Company (1939) SSLR p 94 Horne J at p 104/5106
Rex v Teo Kim Choon (1948) MLJ p 145
Estate of Yeo Kian Kee deceased (1949) MLJ June 1949 p 171 at 172 2nd column

Claude da Silva, NA Mallal and GEN Oehlers for the Plaintiff.

John Laycock and D Murphy for the Defendant.

GORDON-SMITH, J
136

In this Petition for Letters of Administration against which the defendant had entered a caveat, an issue was
ordered to be tried between the petitioner and caveator in the following terms "whether the petitioner Tan
Soo Eng is or is not the lawful widow of Abraham Penhas and if the answer is in the affirmative when the
said Tan Soo Eng married the said Abraham Penhas." It is a brief and easy question to ask but difficult to
answer in view of the facts and circumstances of the case in relation to the law and it is therefore necessary
in the first instance to find what are the definite facts.
Briefly, the plaintiff alleges that she married Abraham Penhas the deceased on or about the 25th December
1937 and subsequently bore him two children. Shortly after the occupation of Singapore by the Japanese in
February 1942 the deceased appears to have been liquidated by the Japanese.
By her petition she asks for Letters of Administration to the estate of the deceased as his lawful widow. A
caveat was entered by the defendant who is a younger brother of the deceased.
Evidence de bene esse on behalf of the defendant, of Wing Commander Rev. S. M. Block, the senior Jewish
Chaplain to the Armed Forces in the Far East was recorded in October 1947. I will refer to this evidence later
together with the other evidence for the defendant.
The evidence for the plaintiff in the main is uncontradicted and cannot be contradicted by the defence be-
cause it is alleged that the deceased's family had no knowledge whatsoever of the plaintiff or of her ever hav-
ing been married to the deceased. The evidence for the plaintiff consists of her own evidence, that of her
mother, Sing Peng Neo, Koh Chay Bo Poh, Ng Ah Kia and other witnesses. The story told by the plaintiff and
her mother is that in September 1937 an introduction was effected between the deceased and themselves
with a view to marriage and this marriage was discussed at a meeting in the Botanical Gardens between
them, when there were present the go-between, the plaintiff, her mother, and the deceased. Apparently sat-
isfactory arrangements were made at this meeting and the deceased gave the plaintiff an envelope contain-
ing $500.00 suggesting that she and her mother looked out for a house as being more suitable than where
they were living at that moment, which was on a second floor over some business premises. Shortly after-
wards the plaintiff and her mother found a suitable house at 508, Sims Avenue, and removed there. The de-
ceased came and visited them there and they got better acquainted and an early marriage was suggested.
The plaintiff suggested a marriage ceremony but the deceased said that this was not possible in the Jewish
Synagogue and on her suggesting a marriage according to Chinese rites and on being supplied with details,
the deceased agreed. A day was appointed and a ceremony took place just before Christmas 1937. Both the
plaintiff and her mother and another guest who were present have described this ceremony in detail. The
deceased had already given the mother $500.00 for the expenses of the wedding and wedding feast. On the
appointed
1949 1 MLJ 223 at 224
day the deceased arrived with two Jewish friends and an old Chinese gentleman. The ceremony consisted
of the bride and bridegroom (the plaintiff and the deceased) standing before the old Chinese gentleman who
made some sort of speech referring to the auspicious occasion and then formally asked them separately
whether they were willing to become man and wife and they both responded in the affirmative. During this
procedure the plaintiff was holding joss-sticks bowing and worshipping. The deceased produced a handker-
chief with which he covered his head, raised his right hand and was murmuring something in his own lan-
guage. After this ceremony the happy couple then paid their respects to and offered the mother a cup of
sweet tea in accordance with the Chinese custom. The two Jewish friends shook hands with the bride and
kissed her. Following on this ceremony the usual wedding feast took place at which there were about 17
guests. The deceased remained the night there, going to business as usual the next morning. According to
the evidence the deceased would spend three or four nights a week at 508 Sims Avenue regularly except
when he was away on business trips and this continued right up to the fall of Singapore in February 1942.
On the 12th September 1938 the first child was born (the girl) the birth being duly registered with the Regis-
trar of Births on the following 8th October. A certified extract of this registration was put in as Exhibit "G"
which records the name of the father as being "Abbey Phang" and the maiden name of the mother "Tan Soo
Eng". The informant was Tan Ah Bah, a neighbour. The father was described as a Ship's Clerk, a Chinese
Hokien born Singapore, nationality British, place of birth being recorded as at 508 Sims Avenue. On the 16th
January 1941 another child was born, this time, a boy, which was duly registered with the Registrar of Births
on the 13th February 1941. A certified extract of this registration was put in as Exhibit "J", the details showing
that the boy was born at the D'Cotta Clinic, 26 Hill Street, the home address of the parents having been giv-
137

en as 508 Sims Avenue. The details are similar except that the country of birth of the father is given as Dutch
East Indies and his nationality as being a Dutch Subject, the name of of the father is similarly given as Abbey
Phang, Trader. There is further evidence of the birth of the girl in that a bill for medical expenses due to the
Tan Dispensary was put in as an exhibit, amounting to two hundred odd dollars. This account is dated the
20th September 1948 and is made out to "Mr. A. Penhas" and a receipt dated the 1st October 1938, Exhibit
"M" for $40.00 on account is similarly made out in the name of Mr. A. Penhas. Similarly there is a receipt
dated the 18th January 1941 for $50.00 for professional services for maternity signed by Dr. D'Cotta. This
receipt is made out in the name of A. B. Phang. There is further confirmatory evidence in the form of a Mu-
nicipal Vaccination Notice, Exhibit "K", dated the 8th October 1938 made out in the name of "Phang" of 508
Sims Avenue and another one, Exhibit "L" dated the 13th February 1941, no name being inserted but the
word "male" is given and the address D'Cotta Clinic, Hill Street, and place of residence (508 Sims Avenue).
In addition the Rev. Chong Shen Chu, Pastor in charge of the Chinese Christian church of 142 Prinsep
Street, Singapore, gave evidence. He first came to Singapore at the end of 1939. The effect of his evidence
is that he came to know the plaintiff, who at times attended his church as a third class member. He described
the first two classes of membership of his congregation as including only baptised Christians professing
Christianity and their children, and the third class as not having been baptised but being "seekers after truth".
He visited the plaintiff at her house after he had met her in his church and made enquiries about her in ac-
cordance with his duties. He stated that he ascertained that she had a daughter who had already been bap-
tised by his predecessor. On his first visit to 508 Sims Avenue about the middle of 1940 he met the plaintiff's
husband there who introduced the plaintiff to him as his wife, and he also saw a little girl whom the deceased
introduced to him as his child. Later on, after the birth of the boy, he suggested to them both that the child
should be baptised and they both agreed, which was done. The father was not present at the baptism but the
mother was. He produced his Register of Baptisms a certified copy of which is put in as Exhibit "U". This
shows the Christian name of the child as "Honglet", the parents' names as Abraham Penhas and Tan Sok
Geck, their respective nationalities, the father "Jew" and the mother "Chinese", date of Baptism 14th Decem-
ber 1941, the address 508 Sims Avenue, Lorong 35, Geylang, and under "remarks", "Tan Sok Geck alias
Tan Soo Eng".
One of the guests at the wedding, Koh Chay Bo Poh, also gave evidence confirming in detail the ceremony
that took place.
A Chinese Amah, Ng Ah Kia, who was employed at Sims Avenue before and after the birth of the boy, also
gave evidence confirming that the plaintiff's husband was a Jew and that he would stay 3 or 4
1949 1 MLJ 223 at 225
nights a week in the house at Sims Avenue. In answer to the Court, she stated "as far as I know he was the
master and I was in his employ and Tan Soo Eng was his wife." Other witnesses gave evidence of the de-
ceased referring to the plantiff as his wife one of whom had also been at a celebration party at the house af-
ter the birth of the boy in January 1941.
As I have said this evidence for the plaintiff was not and could not be contradicted by the defendant and I am
satisfied that the facts as detailed above have been abundantly proved. I was particularly impressed by the
evidence of the old mother, a Chinese lady of over 70, who gave her evidence extremely fairly but, as she
stated, her memory had deteriorated after and in consequence of Japanese occupation. I have no doubt
whatsoever that there were these negotiations for marriage as detailed, that such a marriage took place ac-
cording to Chinese rites as detailed and that the deceased cohabitated and lived with the plaintiff as his wife
and that she bore him two children. The marriage was a happy one and he treated his wife well, paying the
rent of 508 Sims Avenue through the mother and providing his wife with sufficient money for the ordinary
household expenses, up to the date of the occupation of Singapore by the Japanese and his subsequent
liquidation by them.
Numerous letters and postcards from the deceased to the plaintiff were put in as exhibits, extending from the
6th December 1937 at the Runnymede Hotel, Penang, from Medan in 1938, and numerous other places in
the Netherlands East Indies and the Cameron Highlands in Malaya. They were produced with numerous en-
velopes and I have no doubt whatsoever that they were written by the deceased to the plaintiff.
There is also abundant evidence that the deceased introduced the plaintiff as his wife, acknowledged her as
his wife and treated her as such and never attempted to deny his paternity of the two children born to the
plaintiff.
138

The evidence for the defence as regards these facts and circumstances was negative, as the evidence of the
defendant himself and his sister Flora was to the effect that they had never seen nor heard of the plaintiff
prior to these proceedings. Shortly before the fall of Singapore i.e. early in February 1942, the defendant and
his sister Flora managed to get away from Singapore taking their old father with them to India and they did
not return until after the liberation. There were in the family, during the relevant period the father Rahamin
Penhas (since deceased), the deceased Abraham Penhas (born in Baghdad 1897), Flora Penhas born in
Singapore 1905 and the defendant Isaac Penhas born in Singapore 1907. There were three other children
who are dead and with whom we are not concerned. The father migrated to Singapore about the beginning
of this century and established himself very successfully in business. They were all Jews of the Sephardic
branch, and it was claimed that they were very orthodox Jews, the father in particular being very strictly or-
thodox.
In 1936 Abraham the deceased went on a world tour and when in England met a nice Jewish girl whom he
wanted to marry but after seeking his father's permission and the father not being satisfied, such permission
was refused. According to the defendant, his brother the deceased was very much disappointed at his fa-
ther's refusal to consent to his marriage. It was not long after his return that he formed this union with the
plaintiff.
The defendant and his sister both described in detail their family life, the sister in particular being emphatic
that the deceased, except when away on business, never slept away from home and could not have done so
without their knowledge. In cross-examination, she stated that the deceased was always called Abraham in
full by her father and family and that the deceased was never called Abbey by his friends. Yet on numerous
occasions in her evidence she referred to him as Abbey. She described "orthodox" as meaning a Jew who
only eats "kosha food" but she could not say whether the bread they ate at home was prepared by Jews.
Apparently the deceased was interested in racing and he was a member of the Singapore Turf Club. It is on-
ly natural to assume that, under the circumstances, he would not be anxious to advertise the fact of his mar-
riage to a Chinese lady and would be particularly anxious to prevent such news coming to the knowledge of
his father who, I can well believe, would hold very orthodox views on such a misalliance and strongly object
thereto. But I find it extremely difficult to believe that he and his brother and sister lived in quite the subjection
to the old man as they would have me believe, according to their evidence in this respect. After all, the de-
ceased was a successful man of business of 40 who had been on a world tour and who had already deferred
once to his father's wishes in regard to a proposed marriage with one of his own faith, during this world tour.
A lot of the other evidence for the defence was in connection with some efforts by the plaintiff later
1949 1 MLJ 223 at 226
in 1942 to obtain financial assistance from the Japanese Custodian of Property who had, apparently taken
charge of the Penhas business and property.
There is no doubt in my mind that she attempted to obtain such assistance and was assisted to some extent
in her efforts by Chua Lye Swee a past and present employee of the Penhas business and who at the rele-
vant time lived fairly near Sims Avenue. She certainly produced a type-written letter in English, Exhibit D. 1,
to the Custodian in June 1942 to which she had put her thumb impression and a statement was recorded at
the office of the Custodian (Exhibit D. 2) as to the facts and circumstances of her claim to be entitled to some
financial assistance from the proceeds of such property. Who drew up this letter is not very certain. The
plaintiff says that Chua Lye Swee had it prepared for her signature and that he produced it to her after she
had seen him about this relief and that he took her to the Custodian with it. Chua Lye Swee denies all this
entirely and there is a distinct conflict in this respect. In any case, I do not think that what happened in 1942
or 1944 during the Japanese occupation in this respect has any material bearing on the issues before me. I
must say however that I was not at all impressed by this witness Chua Lye Swee nor by his evidence in
many respects. He was an old employee of the deceased and is still employed by the defendant and at the
time he lived near Sims Avenue and although he denied knowing the plaintiff prior to June 1942 he did admit
to knowing the house where she lived and having seen her and the children. The plaintiff said that she had
known him since two years after her marriage to the deceased, and I think that this is probably true and that
being an old employee she applied to him for help in obtaining some financial aid from the Custodian and I
believe that he accompanied her there. However, she does not know English in which language the letter
was typed and I doubt if she appreciated the terms in which the letter was expressed and so long as it was
an application for assistance on the grounds specified, that is all she would care about. In no way is it mate-
139

rial as regards the earlier facts, which as I have said are not controverted by any evidence for the defence
and on which facts I have already expressed my opinion. It remains therefore to apply those facts to the law
of marriage in this Colony.
In this connection, Wing Commander the Rev. S. M. Block, senior Jewish Chaplain in the Forces here, gave
evidence de bene esse, in 1947, in regard to Jewish laws and customs. He stated that he had read the case
of Goldsmid and Bromer 161 ER p 568 and confirmed that the statements therein in regard to Jewish laws
and customs were correct to-day.
He stated that a Jew might not marry a non-Jew under any circumstances and any such marriage was re-
pugnant to Jewish law. That such a marriage before a Marriage Registrar could not be prohibited but could
not be recognised by Jewish law. Jewish law says that civil law must be adhered to and Jewish law does not
interfere with civil status; it is a matter of religion and conscience. Official consent of the family is not normal-
ly necessary for a Jewish wedding.
On re-examination he stated "In deciding the status of a wife, consideration can only be taken of two possibil-
ities, viz., the marriage either fulfils the requirements of the civil marriage laws or the requirements of the law
and customs of the Jews. If there is no civil marriage, then one must look to Jewish laws and customs."
Both the parties to this alleged marriage were domiciled in the Colony at the time, the ceremony took place
here and it is the law of this Colony as to marriage which is applicable. Numerous cases and authorities were
quoted to me by both sides during the course of the argument, a list of which I set out in an Appendix to this
judgment. Many of such cases were as to the validity of marriages between parties who were both of the
same race and religion and of the same domicil and in other cases the parties were of different races, differ-
ent religions and different domicils but it has not been possible to trace a case exactly on all fours with the
present facts and circumstances.
At the conclusion of Mr. Laycock's submissions as to the law applicable I recorded the same verbatim but
those can be more briefly summarized as follows:--

(a) That in the absence of local statutory provisions covering Jewish marriages, the Jewish mar-
riage rites, ceremonies and customs must be considered as having the form of effective law in
this Colony.
(b) That, accordingly the deceased could only contract a lawful marriage here by complying with
such Jewish marriage laws.
(c) That he was personally incapacitated thereby from contracting a valid marriage as alleged.
In support of these submissions, Mr. Laycock quoted at length from the judgment of Sir William Scott in the
cases of Lindo v Belisario 161 ER at 535 and
1949 1 MLJ 223 at 227
Goldsmid v Bromer 161 ER p 568. Both of these cases were decided in the Consistory Court at the end of
the 18th century and in both the cases, the parties were Jews. Detailed evidence was taken as to Jewish
marriage rites and customs and decisions given thereon. They were decided long before Lord Hardwicke's
Marriage Act and there was no civil law then providing for dissolution of marriage and cognate matters.
Mr. Mallal also adopted Lindo v Belisario 161 ER at 535 as supporting the plaintiff's case and I therefore
quote certain passages from the judgment.
At page 535 (Eng. Rep. Vol. 161) Sir William Scott stated:--

The opinions which have divided the world, or writers at least, on this subject, are, generally, two. It is held by some
persons that marriage is a contract merely civil, by others, that it is a sacred, religious, and spiritual contract, and only
so to be considered. The jurisdiction of the Ecclesiastical Court was founded on ideas of this last described nature; but
in a more correct view of this subject, I conceive that neither of these opinions is perfectly accurate. According to juster
notions of the nature of the marriage contract, it is not merely either a civil or religious contract; and, at the present
time, it is not to be considered as originally and simply one or the other. It is a contract according to the law of nature,
antecedent to civil institution, and which may take place to all intents and purposes, wherever two persons of different
sexes engage, by mutual contracts, to live together.
140

But when two persons agree to have that commerce for the procreation and bringing up of children, and for such last-
ing cohabitation, that, in a state of nature, would be a marriage, and in the absence of all civil and religious institutes,
might safely be presumed to be, as it is popularly called, a marriage in the sight of God.
It has been made a question how long the cohabitation must continue by the law of nature, whether to the end of life?
Without pursuing that discussion, it is enough to say that it cannot be a mere casual and temporary commerce, but
must be a contract at least extending to such purposes of a more permanent nature, in the intention of the parties. The
contract, thus formed in the state of nature, is adopted as a contract of the greatest importance in civil institutions, and
it is charged with a vast variety of obligations merely civil. Rights of property are attached to it on very different princi-
ples in different countries. In some there is a communio bonorum. In some each retain their separate property. By our
law it is vested in the husband. Marriage may be good independent of any considerations of property, and the vincu-
lum fidei may well subsist without them.
In most countries it is also clothed with religious rites, even in rude societies, as well as in those which are more distin-
guished for their civil and religious institutions. Yet in many of those societies, as I have had occasion to observe, they
may be irregular, informal, and discountenanced on that account, yet not invalidated. Scotch marriages have been
mentioned. The rule prevailed in all times, as the rule of the canon law, which existed in this country and in Scotland, till
other civil regulations interfered in this country; and it is the rule which prevails in many countries of the world, at this
day, that a mutual engagement, or betrothment, is a good marriage, without consummation, according to the law of na-
ture, and binds the parties accordingly, as the terms of other contracts would do, respecting the engagements which
they purport to describe. If they agree and pledge their troth to resign to each other the use of their persons, for the
purpose of raising a common offspring, by the law of nature that is complete.

In Goldsmid v Bromer 161 ER p 568, again, both the parties to the alleged marriage were Jews and after
evidence had been taken as to the alleged marriage of a young Jewish girl of 16, such marriage was held to
be invalid and void on account of the Jewish law requiring two competent witnesses not having been com-
plied with.
I know of no case, and none was quoted to me, as an authority for saying that in the case of a Jew and non-
Jew contracting a marriage, the marriage laws and customs of the Jews prevail and must be complied with,
nor was any case quoted to me as an authority for saying that a Jew was legally incapacitated from contract-
ing such a marriage by reason of his religion.
As the Rev. Block says, a marriage of a Jew to a non-Jew is repugnant to Jewish law but Jewish law and
customs do not over-ride Civil Law and do not interfere with civil status; "it is a matter of religion and con-
science".
The nearest case to the existing facts which was quoted was that of Carolis de Silva v Tim Kim (1905) 9
SSLR at p 812. This was a case of a Singhalese man and a Chinese woman intending marriage went
through a certain ceremony which, as a Chinese marriage ceremony might have been imperfect, followed by
a feast. They subsequently lived together with the habit and repute of matrimony until the husband's death
and a child was born and registered by the husband as his own. They were both British subjects of different
race and different customs and had been born in different cults. It was held that the marriage was lawful.
Jenkins, J.C., said that registration of the marriage in Ceylon was a matter of local procedure and "as to
whether a Singhalese Buddhist can marry outside Ceylon or not is, I apprehend, merely a question for his
ecclesiastical law, and also immaterial".
Another local case to which I might refer is that of Er Gek Cheng v Ho Ying Seng (1949) MLJ June 1949 p
171 at 172 2nd column decided last June by the learned Chief Justice and although it was a question of the
validity of a marriage between Chinese, some passages in the judgment are relevant. He states:--
"The legal requirements for marriage with a t'sai and t'sip are, I think, the same. This means that the law of this Colony
merely requires a consensual marriage, that is, an agreement to form a relationship that comes within the English defi-
nition of marriage. It is no longer any part of that
1949 1 MLJ 223 at 228
conception that such a relationship must be life-long. It merely means one of indefinite duration as distinct from one for
a definite period as is allowed amongst Moslems.
"The consensual conception of marriage was originally, in my opinion, that of the common law of England, but I shall
now explain how in England the position has been obscured."

His Lordship dealt with historical matters and concludes this part as follows:--
141

"I think that it is only on the basis of consensual marriage that the Courts can have regarded the validity of Jewish mar-
riages before there was any statutory provision for them. This the Courts in England certainly did. They professed to
treat the matter as one of foreign law. But in the case of marriages between British subjects, domiciled in England, this
could not have been the case I think in these cases the observances of rites and ceremonies is merely evidence of in-
tention. As with us, the use of Hindu marriage ceremonies is not a matter of legal requirements, it is merely evidence."

It was not suggested that both the plaintiff and deceased were not domiciled in the Colony and there is
abundant evidence to show that in fact both of them were so domiciled. The law applicable is therefore that
of this Colony.
A contract to marry has been defined ( Halsbury Vol. XVI. p. 552, Sections 813 and 814) as "a contract be-
tween a man and a woman by which they mutually promise to marry one another, the promise of each being
the consideration for the promise of the other". Such contract need not be evidenced in writing nor the mutual
promises be made in express terms. The conduct of the parties may justify the inference of such mutual
promises.
A marriage is valid if each of the parties has according to the law of his or her respective domicil the capacity
to marry and the marriage is celebrated in accordance with the local form or in other recognised form ( Dicey
5th Edn. p. 732. Rule 182).
At the date of this ceremony in 1937 there was no local Ordinance dealing with marriage in force except the
Christian Marriage Ordinance; Chapter 82 which is wholly inapplicable to the present facts and circumstanc-
es, as neither party was a Christian. This Ordinance was repealed by Ordinance 13 of 1940 which came into
force on the 1st January 1941 and the latter relates to the solemnization of Christian marriages by ministers
of religion and their registration. Simultaneously the Civil Marriage Ordinance No. 9 of 1940 was enacted
which provided for the solemnization and registration of monogamous marriages by Registrars of Marriage.
Mohammedan marriages were expressly excluded from the operation of this Ordinance.
It was not suggested that Chinese were not polygamous but it was suggested that Jews are monogamous
but there was no evidence before me to this effect apart from an obiter dicta by Brown, J. in Meyer v Meyer
(1927) SSLR p 1 and 4. It is, I think, not really material but I was always under the impression that amongst
Jews polygamy was permitted, as illustrated in the Old Testament. There are many local cases, approved by
the Privy Council, upholding the validity of marriages between a Chinese husband and a varying number of
t'sips, i.e., secondary wives, although there is a t'sai, i.e. principal wife living at the time. What is clear is that
both parties to the ceremony were non-Christians and that at the relevant date there was no local law dealing
with marriage between non-Christians or for registration of such marriages. Neither is the marriage impugned
on account of either party having been previously married or of having any other spouse, living at the rele-
vant date.
In my opinion the whole matter is one of a consensual marriage, i.e., a matter of contract.
Neither party was incapacitated in law or otherwise from entering into such a contract and there is abundant
evidence to shew not only that such contract was entered into but that the same was fulfilled and carried out
right down to the date of the death of one of the parties.
My answer to the questions raised on the issues is therefore that the petitioner Tan Soo Eng is the lawful
widow of Abraham Penhas and that the said Tan Soo Eng married the said Abraham Penhas on or about the
22nd December 1937.
I have not been specifically asked to decide the question of costs of this issue but I think that, the costs of
this issue should come out of the estate and there will be an order accordingly. I certify for two Counsel on
both sides.

Judgment for the plaintiff.


142
143

Malayan Law Journal Reports/1940/Volume 1/PHAN KIN THIN v PHAN KUON YUNG - [1940] 1 MLJ 44b - 2
October 1939

1 page

[1940] 1 MLJ 44b

PHAN KIN THIN v PHAN KUON YUNG


See also: [1940] 1 MLJ 44

[ORIGINAL CIVIL JURISDICTION] PERAK


MURRAY-AYNSLEY, J
ORIGINATING SUMMONS NO 246 OF 1939
2 October 1939

Will -- construction -- bequest for "Chin Shong" (ancestral worship) -- validity

A bequest for "Chin Shong" (ancestral worship) is a good gift provided that it is so drawn that infringement of
the rule against perpetuities is avoided.
Re Yap Kwan Seng 4 FMSLR 313 referred to and considered.

Cases referred to
Low Cheng Soon & Others v Low Chin Piow & Another 1 MLJ 15
Bourne v Keane 1919 AC 815
Re Yap Kwan Seng 4 FMSLR 313
Yeap Cheah Neo v Ong Cheng Neo LR 6 PC 382
Choa Choon Neoh v Spottiswoode 1 Kyshe 216
West v Shuttleworth 2 M & K 684

ORIGINATING SUMMONS
The principal question propounded before the Court was, whether a gift of shares of a Chinese testator's es-
tate for his father's Chin Shong was a good bequest.

The will took effect as from the date of the death of deceased, which was the 29th January 1929.
On the 29th January 1929, the Perak Order in Council was in full force and effect, and Chinese law and cus-
tom was recognised in the F.M.S. (vide Recognition of Chinese Laws Order in Council No. 23/1893 Voules
Volume 1 page 610).
This Order was repeated by Enactment No. 12/1929, known as The Distribution Enactment 1929, in August
1929.
1940 1 MLJ 44b at 45
Under the terms of the Perak Order-in-Council adoption is recognised, and adopted sons are entitled to the
same legal rights as legitimate sons. And no man may will away his property from his sons. The property
must be divided to a share in the property other than for maintenance and dowry.
144

On an intestacy in this case therefore, the devolution of any property is not governed by the Distribution En-
actment 1929 No. 12/1929, incorporating the English Law on the subject, and should devolve on the two
sons.
As to the gift being void for Superstitious purposes, although I relied on a Judgment of Mr. Justice Terrell in
Singapore Suit No. 699,/1925, Low Cheng Soon & Others v Low Chin Piow & Another 1 MLJ 15, which
quoted no authorities for this decision, I found that I could not overcome the decision in the case of Bourne v
Keane 1919 AC 815, which established that a bequest for masses is not superstitious and is further a chari-
table purpose. No F.M.S. case, or any other Colony case could be found to declare a bequest of this nature
was for a superstitious use.
The case of Re Yap Kwan Seng 4 FMSLR 313, was quoted by me as an authority that the English rule
against Perpetuities applied to the F.M.S. in which Mr. Justice Sproule followed the Colony cases of Yeap
Cheah Neo v Ong Cheng Neo LR 6 PC 382 and Choa Choon Neoh v Spottiswoode 1 Kyshe 216 in holding
that a bequest of this kind is not a charity.
I argued that the case of Yeap Cheah Neo v Ong Cheng Neo LR 6 PC 382 and Choa Choon Neoh v Spot-
tiswoode 1 Kyshe 216 distinguished a case of this kind from the case of Bourne v Keane 1919 AC 815, and
that a distinction is clearly shown that the bequest is not charitable if the object is limited to the benefit of a
particular person or class of persons, but is charitable as in the case of Bourne v Keane 1919 AC 815 if the
object is not so limited.
There could be no question here that the gift not being for charitable purposes, did offend the rule against
perpetuities.

Mervyn Farr for the applicant.

Respondents unrepresented.

MURRAY-AYNSLEY, J

In this case the testator left certain shares of his estate to his father's "Chin Shong." The question arises
whether, this is a good bequest. If not the further question arises as to the destination of the property so be-
queathed.
As regards the bequest to the "Chin Shong" we have the authority of certain cases from the Colony and one
case from the F.M.S.
In the case of Re Yap Kwan Seng 4 FMSLR 313, Sproule, J held that a bequest of this type was a perpetuity
and that the English Rule against Perpetuities applied to the F.M.S. He followed the Colony cases in holding
that a bequest of this kind is not a charity. Yeap Cheah Neo v Ong Cheng Neo LR 6 PC 382 and Choa
Choon Neoh v Spottiswoode 1 Kyshe 216. These cases all avoided declaring that such a purpose was a su-
perstitious use although in the Colony cases West v Shuttleworth 2 M & K 684, was cited in support of the
decisions.
Now the fact that ShuttleworthWest v. Shuttleworth has been overruled in Bourne v Keane 1919 AC 815
was not cited in the case of in Re Yap Kwan Seng 4 FMSLR 313. The case of Bourne v Keane 1919 AC 815
established that a bequest for Masses is not superstitious and further it seems a charitable purpose.
As regards the first point I think it is clear that the Colony cases were not decided on the ground that be-
quests of this kind were superstitious although in one fairly recent case this additional ground was given in
holding such a bequest void. But as regards the question of charitable purpose I think that the local cases
are unaffected. In Choa Choon Neoh v Spottiswoode 1 Kyshe 216 an elaborate description was given by
Maxwell, C.J. of the ceremonies connected with such a bequest as the present one which may be contrasted
with the doctrine of the Mass set out in the judgments in Bourne v Keane 1919 AC 815. I think that a distinc-
tion must be drawn between the purpose of the two observances, that one is limited as to its object to the
benefit of a particular person, the other is not so limited, and this is the difference between what is not and
what is a charitable purpose.
145

The result is that such a bequest is perfectly good like a bequest for the up-keep of a tombstone provided
that the bequest is so drawn that the rule against perpetuities is not infringed, a matter which should not be
beyond the ingenuity of local conveyancers.
I gave my decision on the other points orally at the hearing. I do not think that they give rise to any difficul-
ties.

Order accordingly.
146

Malayan Law Journal Reports/1940/Volume 1/NG ENG KIAT v GOH LAI MUI & OTHERS - [1940] 1 MLJ 181
- 25 February 1926

1 page

[1940] 1 MLJ 181

NG ENG KIAT v GOH LAI MUI & OTHERS


[ORIGINAL CIVIL JURISDICTION] SINGAPORE
MURISON, CJ
SUIT NO 697 OF 1925
25 February 1926

Will -- Rule against perpetuities -- Property situate in another jurisdiction

A Chinese testator died in Singapore in 1917 and his will was proved in the Colony. By one of the trusts or
directions contained in his Will he directed his executors to apply 2/9th of the net proceeds of all his estate
(except property in China) for the purchase of immovable property in China such property to descend to the
testator's male descendants according to the law of China; and the income thereof to be applied for the wor-
ship of the testator's sinchew and those of his ancestors.

Held, that such a gift is not void in the Colony as infringing the rule against perpetuities.
The trust being impressed upon property situated in China and the limitations being permitted by the law of
that country, the fact that such limitations would be illegal by the law of the Colony is immaterial; secus if the
property were situate in the Colony.

Cases referred to
Choa Choon Neo v Spottiswoode (1896) 1 Ky 216
Fordyce v Bridges 2 Ph 497; 17 LJ Eq 185
Freke v Lord Carbery (1873) LR 16 Eq 461
Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381

ADJOURNED SUMMONS

Johannes for Plaintiff.

Aubrey Davies for Defendants.

Campbell for Ng Eng Hoo a party having liberty to attend the proceedings.

MURISON, CJ

The facts and arguments sufficiently appear from the judgment.


This is an adjourned summons for argument upon an issue as to the validity of certain directions contained in
the will of a deceased Chinaman.
147

It appears that one Ng Choon Guan died in Singapore on the 3rd June 1917 and probate of his will dated
29th May 1917 was granted on the 18th June 1917 to three of the executors named therein.
By his will the testator directed his executors to realise all his estate except his property in China and after
payment of his debts legacies and funeral expenses to divide the residue into nine equal shares and he gave
one share thereof to each of his sons Ng Eng Kiat, Ng Eng Chee and Ng Eng Hoo and his grandsons Ng
Teck Urn and Ng Lip Ngak, two shares thereof to his grandson Ng Teck Lip and as to the remaining two
shares the testator directed as follows:-

"I direct my executors to apply the remaining two shares for the purchase of immovable property in my village or else-
where in China and the income arising therefrom shall be applied for the worship of my sinchew and those of my an-
cestors. And I declare that the immovable property so purchased in China shall be descended unto my male descend-
ants according to the laws of China and my executors' duty in respect of the said two shares shall cease on the com-
pletion of the purchase of the immovable property hereinbefore mentioned."

It was ordered upon the 9th November 1925 that the issue should be adjourned for trial in Court as to wheth-
er the directions of the deceased in regard to these two shares were void or not and if so to what person or
class of person the said shares should go.
It was argued by Mr. Johannes for the plaintiff in the original action (Suit No. 697 of 1925, Ng Eng Kiat v.
Gob Lai Mui and 3 others) that the gift was bad as it infringed the rule against perpetuities. It is clear that the
rule of perpetuities is part of the law of this Colony and it is clear too that this gift, if it concerned property in
the Colony, would be bad as infringing that rule (Choa Choon Neo v Spottiswoode (1896) 1 Ky 216 ap-
proved in Yeap Cheah Neo v Ong Cheng Neo (1875) LR 6 PC 381). But these and similar cases all refer to
a trust impressed upon property which is situated in England or in territory which is governed by the English
law. In the present case we have a gift of money by a will for the purchase of land in China, the land to be
conveyed to the male descendants of the deceased, and the income of the property to be applied by such
male descendants to the ceremony of sinchew for the benefit of the testator. The trust is impressed upon
property which is situated in China. And it appears that the law in such a case is different. In Fordyce v
Bridges 2 Ph 497; 17 LJ Eq 185 it was decided that if a testator bequeaths personal estate upon trust to in-
vest it in the purchase of land in a foreign country, to be settled to limitations permitted by the law of that
country, the fact that they are illegal by the law of England is immaterial. This
1940 1 MLJ 181 at 182
case so far as I know is good law still and it is not disputed that the limitations in question are good in China.
The converse of this case appears in the case of Freke v Lord Carbery (1873) LR 16 Eq 461. There a domi-
ciled Irishman directed by will that all his property should be realised and applied to certain trusts which in-
fringed the rule against perpetuities. That rule however is not in force in Ireland but part of the property con-
sisted of a leasehold house in Belgrave Square in London. The rule of perpetuities was held to apply to the
trust impressed upon the London property because it was situated in England.
In my opinion the trust under the will is good and all the executors have to do is to purchase the property in
China and obtain a receipt for it from "the male descendants" of the testator according to the law of China.
The costs of all parties will come out of the estate.

Judgment accordingly.

Johannes & Sammy, Solicitors for the Plaintiff.

AVL Davies & Co, Solicitors for the Defendants.

JG Campbell & Co, Solicitors for Ng Eng Hoo.


148

Malayan Law Journal Reports/1935/Volume 1/MONG BINTE HAJI ABDULLAH (F) v DAING MOKKAH BIN
DAING PALAMAI - [1935] 1 MLJ 147 - 11 April 1935

1 page

[1935] 1 MLJ 147

MONG BINTE HAJI ABDULLAH (F) v DAING MOKKAH BIN DAING PALAMAI
[ORIGINAL CIVIL JURISDICTION] SINGAPORE
TERRELLJ
SUIT NO 255 OF 1934
11 April 1935

Breach of promise of marriage -- Parties both Mohammedans -- Non-application of Mohammedan law

A Mohammedan woman has in the Colony of the Straits Settlements the right to claim in a proper case
against a Mohammedan man for damages for breach of promise of marriage. The several Charters of Jus-
tice only import so much of the native religious manners and customs as is required by the necessity of pre-
venting the injustice or oppression which would ensue if the law of England were applied to alien races un-
modified. In the present case the converse of that proposition would be more correct namely that if the prin-
ciples of English law were not applied, injustice and oppression might result; and therefore the principles of
English law are to be applied in such a case.

Trial of Issues.
In this case the plaintiff sued the defendant for damages for breach of promise of marriage aggravated by
seduction. No special damages were claimed.
The defendant in his defence pleaded that the Court had no jurisdiction to entertain the action and alterna-
tively that the Statement of Claim disclosed no cause of action and also that the plaintiff had suffered no
damage.
An order was thereupon made directing the trial of these issues as preliminary objections.
Vaux and Hashim for the defendant.
Menon for the plaintiff.
Counsel for the defendant advanced no argument in support of the plea that the Court had no jurisdiction but
submitted that the case was one for reference under Section 14 or 15 of Ordinance No. 51 (Arbitration). The
judgment deals with the remainder of the arguments put forward on behalf of the defendant.

TERRELLJ

The plaintiff alleges that the defendant promised to marry her, that relying on such promise she allowed her-
self to be seduced, that she became pregnant of a child which was born in due course and that the defend-
ant now refuses to marry her. The plaintiff was a Mohammedan unmarried woman and the defendant is also
a Mohammedan. All material allegations of fact are put in issue by the defence. but in addition the defendant
alleged in paragraph 2 of the defence that the Court had no jurisdiction to entertain the claim and, alterna-
tively, paragraph 3, that the statement of claim disclosed no cause of action, and paragraph 4 that the plain-
tiff had suffered no damage. As these defences appeared to be in the nature of preliminary objections I di-
rected such issues to be tried first. If the defendant succeeded on any of them further consideration of the
facts would clearly be superfluous. This judgment therefore is confined to the preliminary objections.
149

At the hearing I understood defendant's counsel not to press the submission that the Court had no jurisdic-
tion. He argued, however, that according to Mohammedan Law such an action could not be entertained.
Without referring to the various authorities I am willing to accept Dr. Withers Payne's proposition that accord-
ing to Mohammedan Law sexual connection before marriage is an offence not only against religion but
against the state, and that no Mohammedan Court would grant relief in a civil action for a wrong which is re-
garded in the nature of a crime on the part of both parties to the suit. The first question, however, that arises
is whether Mohammedan Law applies at all and if so to what extent. So far as concerns statute law the ques-
tion is left untouched as Ordinance No. 26 (Mohammedans) is only concerned with Mohammedan women
after marriage.
Apart from statute law it must be remembered that by virtue of the various Charters the English Common
Law regulates the right of all persons in the Straits Settlements whatever their religions "so far as circum-
stances will admit." There is no provision in the Straits Settlements Charters, as there is in some of the Indi-
an Charters, that Mohammedan Law shall be administered for Mohammedans and Hindu Law for Hin-
dus.Nor is the position the same as it is in the Federated Malay States where by virtue of the religion of the
parties Mohammedan Law would be applicable.
The principle as to how far the law of England is to be applied in a case such as this is stated succinctly in
the recent Privy Council case of In re Khoo Thean Tek's Settlements LR 1930 AC p 346 at p 355, where it
was held as follows:-

"The modifications of the law of England which obtain in the Colony in the application of that law to the various alien
races established there arise from the necessity of preventing the injustice or oppression which would ensue if that law
were applied to alien races unmodified."
1935 1 MLJ 147 at 148

The judgment proceeded to reaffirm the view expressed by Sir Benson Maxwell, C.J. in Choa Choon Neoh v
Spottiswoode 1 Kyshe p 216 at p 221 which had already been cited with approval in the Privy Council case
of Yeap Cheah Neo v Ong Cheng Neo LR 6 PC 381 at p 396.The case of Choa Choon Neoh v. Spottis-
woode, was decided in 1869 and dealt in particular with the application of the English rule as to perpetuities,
but in his judgment Sir Benson Maxwell was clearly adopting the more general principles laid down by him in
1858 in the well known case of Regina v Willans 3 Kyshe p 16, where he decided that such native law as
had been recognized up to 1858 had been so recognized not because of the Charters but because of the
general principles of English Law, and that following such principles certain native religions and customs
would have been recognized even if the Charters had been silent on the subject. In the course of his judg-
ment he says "But where the law of the place is inapplicable to the parties by reason of peculiarities of reli-
gious opinions and usages, then from a sort of moral necessity the validity of the marriage depends on
whether it was performed according to the rites of their religion." On the other hand, in the Six Widows case,
Choo Ang Chee v Neo Chan Neo & others 12 SSLR p 120, Sir Thomas Braddell, who was the Judge of first
instance, and Sir W.HyndmanJones in the Court of Appeal, both relied on the particular words of the Charter
which gave the Courts of the Colony jurisdiction in ecclesiastical matters "so far as the several religions,
manners and customs of the inhabitants of the said Settlements and places will admit." Although the Six
Widows Case did not go to the Privy Council, the correctness of the decision has been upheld in subsequent
Privy Council cases (see Cheang Thye Phin v Tan Ah Loy LR 1920 AC p 369 and the first Khoo Thean Tek
case, Khoo Hooi Leong v Khoo Hean Kwee LR 1926 AC p 529).
The decision in the second Khoo Thean Tek case 1930 AC p 346, does not refer to the Charters at all, and it
would appear that the ratio decidendi was the principle enumerated by Sir Benson Maxwell in Reginav. Wil-
lans and adopted by Sproule, J. in the Court of first instance and Stevens, J. in the Court of Appeal. I do not
think, however, that there is any inconsistency between the Privy Council approving the principle laid down
by Sir Benson Maxwell and also approving the argument founded on the particular words in the Charters as
applied to the ecclesiastical jurisdiction of the Courts. It will be noticed that in ecclesiastical matters the Char-
ters refer specifically to native "religions, manners and customs," whereas in civil matters generally the Char-
ters direct the law of England to be applied "so far as circumstances will admit."
There does not appear to be any essential distinction and if the law of England has, to a limited extent and
where justice requires it, given a modified recognition to certain native customs, manners and religions, the
150

Charters have only made explicit what was already implicit. In either case the principle is clear and it is, as
stated by the Privy Council, "the necessity of preventing the injustice or oppression which would ensue if that
law (the law of England) were applied to alien races unmodified."
Applying these principles to the facts of the present case, I am unable to accept the argument that because
the plaintiff would fail in her action if the strict rules of Mohammedan Law were applied, she must also fail
under the application of English law to persons of her religion. One starts with the basis that the plaintiff has
all the rights which she would have under English principles of law and one of such rights is undoubtedly a
right to claim for damages for breach of promise of marriage aggravated by seduction. Can it be said that if
these principles were applied strictly it would result in injustice or oppression? It appears to me that if she
can prove her case the converse proposition would be more correct, namely that injustice and oppression
would result if such principles were not applied. I am quite prepared to listen to argument that the status of a
Mohammedan married woman is different to that of the status of a woman married according to English law
and that accordingly damages cannot be assessed on the same principles, but that would merely affect the
quantum, and not abrogate the right to sue.
I find therefore that the defendant's preliminary objections fail and that the action must proceed on the merits.

Order accordingly.

Solicitor for the Plaintiff- KPK Menon.

Solicitors for the Defendant- Rodyk & Davidson.


151

Malayan Law Journal Reports/1934/Volume 1/AW BOON HAW v CHEAH LOON GHEE - [1934] 1 MLJ 49 -
8 January 1934

[1934] 1 MLJ 49

AW BOON HAW v CHEAH LOON GHEE


[ORIGINAL CIVIL JURISDICTION] SINGAPORE
MILLS, J
CIVIL SUIT NO 888 OF 1933
8 January 1934

Labuan Lands -- Equitable mortgage of land in Labuan by deposit of title deeds

An equitable mortgage of land in Labuan can be validly created by deposit of title deeds.

Motion for Judgment.


The Defendant was the owner of land and buildings in Labuan, holding the same under a Crown Lease for
999 years from the 1st July 1902 which lease was made in that year. In 1929 the Defendant was indebted to
the Plaintiff in the sum of $10,000 for money lent, in respect of which he gave a Promissory Note to the
Plaintiff dated 7th February, 1929. He also on the same day deposited with the Plaintiff the title deeds of his
said lands in Labuan. The deposit was factual and verbal and was unaccompanied by any memo. of deposit.
The Plaintiff sued the Defendant claiming a declaration that by virtue of the deposit of the title deeds the
Plaintiff was an equitable mortgagee of the said lands in Labuan and for an account and for enforcement of
the mortgage by sale or foreclosure and for costs and consequential relief. The Plaintiff duly filed his State-
ment of Claim but the Defendant filed no Defence whereupon the Plaintiff moved for Judgment in default of
defence.

Labuan was ceded to the Crown by the Sultan of Brunei on 18th December, 1846. The cession was con-
firmed by the treaty of 24th May, 1847. On cession the law of England as it then existed must be taken to be
the governing law of Labuan Ong Cheng Neo v Yeap Cheah Neo 6 LRPC at p 393. The law of Labuan now
is therefore the law of England as at the 18th December 1846 with such alterations therein as have since
been made by any Imperial or local Statutes. For the present purpose there is no difference between the law
of England as on the 18th December, 1846 and the 24th May, 1847.
It was settled law in England long before 1846 that an equitable mortgage could be created by deposit of title
deeds [Lord Eldon in Ex parte Wetherell 11 Vesey Jr 398 at p 401 (1805 AD)] As to the alterations made in
law of England as applicable to Labuan since 1846,(i) Labuan Ordinance No. 7 of 1849 provided for registra-
tion of deeds only, not registration of title properly so called (ii) the Labuan Ordinance of the S.S. of 1907
continued in force Labuan Ordinance No. 7 of 1849 but excluded Labuan from operation of the S.S. Regis-
tration of Deeds Ordinance 1886 and the Conveyancing and Law of Property Ordinance 1886 and so did not
alter the then existing position (iii) S.S. Ordinance No. 3 of 1911 continued this position (iv) S.S. Ordinonce
No. 127 of the 1920 Revised Edition did in fact repeal Labuan Ordinance 7 of 1847 but incorporated all its
relevant provisions and made no other material change in the law (v) the 1925 revision of the S.S. Ordinanc-
es made no change in this position.
So that at all material times and in all material questions the law of Labuan was in effect the law of England
as at 1847 plus S.S. Ordinance No. 127 of the 1925 revision.
152

The S.S. Registration of Deeds Ordinance does not invalidate an equitable mortgage by deposit (Ho Hong
Bank Ltd v Teo Chin Chay 1929 SSLR 195 and cases there quoted). The same applies to the provisions for
registration of deeds in Ordinance No. 127. Therefore equitable mortgage by deposit of title deeds can be
validly created over land in Labuan.

Laycock for the Plaintiff:--

C da Silva for the Defendant.

MILLS, J

delivered a short oral Judgment for the Plaintiff for the relief prayed.

Judgment accordingly.

Solicitors for the Plaintiff-- Braddell Brothers.

Solicitor for the Defendant-- Claude da Silva.


153

Malayan Law Journal Reports/1934/Volume 1/IN THE MATTER OF THE TRUSTS OF THE WILL OF TAY
GEOK TEAT DECEASED DATED 16TH DAY OF JULY, 1885; SUNNY TAY ALIAS TAY KIM CHENG ALIAS
SOH KIM CHENG AN INFANT BY O TEI HIS MOTHER AND NEXT FRIEND; SEOW SEE NEO AND CHAN
SENG BEE SUBSTITUTED BY AN ORDER OF COURT DATED THE 17TH DAY OF JULY, 1933, THE,
TRUSTEES OF THE SAID TAY GEOK TEAT DECEASED - [1934] 1 MLJ 83 - 27 February 1932

9 pages

[1934] 1 MLJ 83

IN THE MATTER OF THE TRUSTS OF THE WILL OF TAY GEOK TEAT DECEASED
DATED 16TH DAY OF JULY, 1885; SUNNY TAY ALIAS TAY KIM CHENG ALIAS SOH
KIM CHENG AN INFANT BY O TEI HIS MOTHER AND NEXT FRIEND; SEOW SEE
NEO AND CHAN SENG BEE SUBSTITUTED BY AN ORDER OF COURT DATED THE
17TH DAY OF JULY, 1933, THE, TRUSTEES OF THE SAID TAY GEOK TEAT DE-
CEASED
[APPELLATE JURISDICTION] SINGAPORE
THOMAS, CJ (FMS), GERAHTY & MILLS, JJ
APPEAL NO 11 OF 1933 (Appeal from: ORIGINATING SUMMONS NO 29 OF 1932)
27 February 1932

Chinese Marriage -- Union between a Chinese with a Japanese woman -- presumption from cohabitation and
repute -- legitimation by recognition

A secondary marriage between a Chinese man and a Japanese woman may on proper evidence be pre-
sumed from cohabitation and repute and also from recognition of issues as legitimate children.

[#65533]
AN APPEAL from the Order of Terrell, J. dated the 7th October, 1932.
By Originating Summons dated 13th February, 1932 the plaintiff appellant claimed as a beneficiary and
cestui que trust of and under the Will of Tay Geok Teat deceased for administration of the Estate of the de-
ceased, accounts and other consequential relief. By Clauses 3 and 5 of the Will the testator directed that the
property therein mentioned should upon the happening of certain events be sold and the proceeds divided
equally between the sons of five named sons of his son Tay Kim Tee and the sons of any other sons of Tay
Kim Tee who may be alive at the time of the death of the last survivor of the said five named grandsons. One
of the sons of Tay Kim Tee was Tay Boon Teck and the plaintiff appellant claimed a share in the estate as a
lawful son of Tay Boon Teck. The legitimacy of the plaintiff appellant was disputed and upon the hearing of
the Originating Summons the Court ordered an issue to be tried with pleadings as to whether the plaintiff ap-
pellant was a legitimate son of Tay Boon Teck by his wife O Tei. This issue was tried by Terrell, J. who held
that the plaintiff appellant was not a legitimate son of Tay Boon Teck.

Cobbett (CJ Koh with him) for the plaintiff.

Williamson (S Fung with him) for the 1st Defendant, George Bennett Taye a trustee of the Estate of Tay
Geok Teat Deceased.

Koek for the 2nd Defendant, Ching Keng Lee another trustee.

TERRELL, J
154

This was the trial before me of an issue whether one Sunny Tay was the legitimate son of Tay Boon Teck by
his wife O Tei. There is no dispute that Sunny Tay was the offspring of Tay Boon Teck and O Tei, and the
only question for decision is whether O Tei was the lawful secondary wife of Tay Boon Teck.
There can be no doubt that Sunny Tay and his sister Juliet were fully recognised by Tay Boon Teck as his
children. From the age of 3 and 4 they were maintained in the family house in Alexandra Road until Tay
Boon Teck died. They called Tan Poh Neo, Tay Boon Teck's lawful wife, Ma China, no doubt to distinguish
her from their natural mother who was a Japanese. They also attended their father's funeral dressed in sack-
cloth and Sunny Tay carried a bamboo stick in exactly the same way as their father's son by Tan Poh Neo.
There would be no difficulty on the evidence in finding that Sunny Tay was legitimate if he could lawfully be
legitimised by recognition. In the first Khoo Thean Tek Appeal 1926 AC at page 543, Lord Phillimore sug-
gests that it is a possible jural conception that a child may be legitimate though its parents were not legiti-
mately married. This is apparently a principle which was admitted by the Canon Law which governed West-
ern Europe, and is undoubtedly in accordance with Chinese custom. However, the second Khoo Thean Tek
appeal makes it abundantly clear that although Chinese custom has been followed to the extent of recognis-
ing polygamy the principle of legitimation of children by recognition has never been part of the law applied to
persons of Chinese race in the Straits Settlements. It follows therefore that recognition of the children is not
enough--there must have been a lawful union between the father and mother, and in the second Khoo Thean
Tek Appeal (1930) AC at page 358, the Privy Council go further and say that the mere fact of recognition of a
person as a son does not raise any presumption of marriage between the parents. The question arises there-
fore as to what particular circumstances differentiate the status of a secondary wife from the position of a
kept mistress.
It is possible to extract from the reported cases some indication of the kind of evidence which should satisfy
the Court that the union was such as the law recognises. Proof of a marriage ceremony would no doubt be
conclusive
1934 1 MLJ 83 at 84
but such proof is not always forthcoming, and frequently unsatisfactory. In the Tan Ah Loy case, for in-
stance, the evidence of any ceremonies was disbelieved by the Registrar (see 1920 AC at page 376) though
in that case it was found by the Court of Appeal--and this finding was approved by the Privy Council--that a
ceremony though usual was not essential. It must be remembered, however, that Tan Ah Loy had been living
in Ah Kwee's house since she was ten years old and was so living at the time that Ah Quee and Tan Ah Loy
became husband and wife. It is particularly stated by Earnshaw, J. in the Court of Appeal XIV SSLR at page
90 that in those circumstances there was no necessity for any marriage ceremony according to Chinese cus-
tom. This case is not definitely an authority for the proposition that when a secondary wife is taken from out-
side the household a ceremony is unnecessary. Perhaps a more correct statement of the law would be that if
the evidence of the recognition of the marriage is satisfactory the ostensible relation of the parties should be
referred to a legitimate rather than to an illegitimate origin, Ong Cheng Neo v Yeap Cheah Neo LR 6 PC
page 281, or in other words ceremonies, if and so far as they were necessary, might be presumed. At the
most such ceremonies are only evidence of an intention to effect a permanent union, and if such intention
can be gathered aliunde evidence of a ceremony becomes superfluous. It is to be remarked that in the Six
Widows' Case 12 SSLR at page 128 one Way Kim Feh stated in his evidence "there is no distinction be-
tween a woman taken from a brothel or brought without a ceremony and a woman who goes through a cer-
emony; there is no distinction legally or socially." This evidence was relied on by the learned Chief Justice in
that case and was approved by Deane, J. in the case of Woon Kai Chiang v Yeo Pak Yee & others (1926)
SSLR at page 51
Another element for consideration is the recognition of the children. It is true, as stated above, that in the
second Khoo Thean Tek Appeal the recognition of the children is stated to raise no presumption of marriage
between the parents, but in the Tan Ah Loy case the fact that Tan Ah Loy had three children by Ah Quee
was certainly taken in consideration by Sir John Bucknill who presided over the Court of Appeal in that case
and his reasons were approved by the Privy Council (see 1920 AC at page 377). Again Deane, J. in Woon
Kai Chiang v Yeo Pak Yee & others 1926 SSLR at page 51, whilst stating that his conception of a Chinese
marriage is the permanent union of a man and woman adds that if offspring results that of course accentu-
ates it. I take it, therefore that although the recognition of the children does not raise a presumption of the
155

marriage of the parents, it is certainly an element to be considered in that failure to recognise the children
would be practically conclusive that the parents were not husband and wife.
While it is unnecessary to examine the particular evidence which satisfied the Court in the Six Widows' Case
12 SSLR page 120, the Tan Ah Loy case 1930 AC page 369, and the case of Ngai Lau Shia XIV SSLR page
35, that the status of a secondary wife had been established, it is clear from these cases as also from the
Khoo Thean Tek case 1930 AC page 346 that there must be recognition of such status not only by the par-
ties themselves but by the members of his family and that the union must have an element of permanence.
Except in one or two details the facts of the present case are not really in dispute. I take it to be established
that Boon Teck first met O Tei when she was serving as a waitress at the Toronaya, a Japanese hotel in
Beach Road, Singapore, in 1910. Boon Teck was a volunteer and the hotel was opposite the Volunteer
Headquarters, and Boon Teck and his friends used to visit there frequently and apparently competed for O
Tei's favours. In such competition Boon Teck was successful and later took O Tei away to live with him at his
family house in Alexandra Road where he normally lived with his wife Tan Poh Neo and her children. O Tei
admits that they lived together as man and wife in the Hotel for a month before he took her to Alexandra
Road. O Tei says that there was a marriage ceremony at a Chinese Temple in Pasir Panjang--the only per-
sons present besides Boon Teck and O Tei being O Tei's adopted parents who were Japanese and ran the
Toronaya Hotel. It is not suggested that any members of Boon Teck's family were present at the ceremony. It
appears to me that if there had been a ceremony some members of the husband's family would have been
present. In view of the month's cohabitation in the Toronaya Hotel before O Tei was taken to the family
house I think a ceremony was unlikely and I am quite unable to accept O Tei's uncorroborated testimony on
this point.
O Tei lived in the family house in Alexandra Road with the principal wife Tan Poh Neo for about a year. Then
in August or September 1911 becoming pregnant she entered the General Hospital and her daughter Juliet
was born. She never went back to the family house as her permanent residence. After the birth of Juliet she
went back to the Toronaya Hotel. Boon Teck was at that time the manager of a Malay Opera Company and
his business took him to Penang where he remained some six months leaving his wife and child at the To-
ronaya Hotel. Later he took O Tei to Penang for a few months returning with her to the Toronaya Hotel.
Shortly after this the hotel was sold and O Tei and her adopted parents took a house in Syed Alwi Road,
Boon Teck and the adopted parents sharing the rent.
1934 1 MLJ 83 at 85
Whilst staying here O Tei again became pregnant and Sunny Tay was born. After the birth of her son O Tei
went to live in a Hotel in Selegie Road with her two children. Boon Teck was at this time employed in the
Tramway Company whose offices are close by in Mackenzie Road. It would appear that Boon Teck lived
with O Tei in a room in the hotel in Selegie Road spending his weekends in the family house in Alexandra
Road.
O Tei must have lived in the Selegie Road house from 1912 to 1916 or 1917. In 1915 Boon Teck took the
two children aged 3 and 4 respectively to the family house in Alexandra Road and there they remained till
Boon Teck's death in 1922. O Tei visited them fairly regularly and occasionally stayed a night, or two but she
lived there permanently. From 1916 to 1918 O Tei lived with Boon Teck in various other premises in the
neighbourhood of the Tramway offices but he appears to have ceased cohabiting with her after 1918. O Tei
says that he maintained her until 1921 after which he abandoned her. In 1922 he died but O Tei did not at-
tend the funeral. She did not even hear of his death until some time afterwards. It is to be presumed there-
fore that she had ceased visiting her children in Alexandra Road. Very soon after Boon Teck's death she
lived with Soh Chye Watt whom she married before the District Judge some years later in 1928. Soh Chye
Watt made a home for her and her children and looked after the children's education. Except for a few weeks
immediately after Boon Teck's death his family had nothing more to do with O Tei's children. They never
worshipped at their father's grave; they did not even know where it was.
Now the onus is on the plaintiff to prove that the union between Boon Teck and O Tei was intended to be
permanent, and the fact that such a union was in fact severed before the death of Boon Teck is an important
consideration. It is immaterial to record any finding whether, as the defendants allege, Boon Teck severed
the connection because of O Tei's association with her present husband in 1918 or even earlier, or whether
she had nothing to do with Soh Chye Watt until after Boon Teck's death, as it is admited that for one reason
156

or another the union was in fact severed in 1921. In the Khoo Thean Tek case 1930 AC the following pas-
sage appears at page 353:--

"But even taking the outside limits of its duration--namely between 1848 (when the legitimate daughter was born) and
1861 (when Petronella married Cornelius), their Lordships are of opinion that there is no evidence that the parties in-
tended their union to be permanent in its nature. Moreover, the fact that the association between the parties was in fact
severed affords strong evidence that Petronella was never a t'sip, for according to the evidence of Mr. Beatty the only
expert on Chinese custom who was called a t'sip cannot be put away who has born a son and 'in the Straits Settle-
ments there is no divorce provided for by the laws for the Chinese'".

O Tei's evidence in cross-examination was as follows:--


"He lived with me till 1918 and maintained me till 1921. In 1921 we had a quarrel--it was not in 1920. The quarrel was
because he did not come to see me as often as he used to and was improperly keeping another establishment. I took
no steps to get maintenance from him. Did not report to the Protector of Chinese. He had simply left me and deter-
mined the relationship."

I do not say that it is impossible to suppose a case in which a union may have been intended to be perma-
nent and may have been wrongfully severed by one of the parties, but the mere fact of severance cannot fail
to be of importance where such a step has been accepted without protest by the other party to the union.
The evidence adduced by the plaintiff of O Tei's recognition as Boon Teck's wife falls under two heads, first
her recognition whilst staying in Selegie Road, and secondly her recognition in the family house at Alexandra
Road.
As regards her recognition in Selegie Road, there can be no doubt that Boon Teck introduced O Tei to a Eu-
ropean called Freeman and to an English-speaking Tamil called Andrew as his wife. I think he would natural-
ly do so rather than admit that he was merely keeping a mistress in a Japanese hotel and I do not think that
this evidence is by any means conclusive as to what Boon Teck's real ideas on the subject were. Soh Chye
Watt also states in his evidence that O Tei was looked upon as Boon Teck's wife though she was not intro-
duced to him as such except by a Mr. Pereira who was not called as a witness. The value of his evidence is
considerably diminished by the fact that in 1928 when he was seeking to get married to O Tei before the Dis-
trict Judge he described her in his declaration as a spinster.
The evidence of recognition in the family house rests almost entirely on the evidence of Boon Teck's sister
Tay Tan Neo. Unfortunately I cannot regard her either as an intelligent or satisfactory witness. Though not
old she appeared to be in poor health and complained of giddiness and had frequent recourse to a bottle of
smelling salts. She says that the principal wife, who is now dead, told her that O Tei was the second wife "
bini No. 2" and that O Tei took part in worshipping the ancestors on the appropriate days, but Tay Tan Neo
was married
1934 1 MLJ 83 at 86
and did not live in the house and only visited it occasionally. She was obviously anxious to do her best for O
Tei and her children and I cannot place too much reliance on her evidence. It is also possible that the princi-
pal wife would try to put the best complexion on the affair by suggesting that O Tei was a secondary wife.
Otherwise she would have to admit that her husband was harbouring a kept Japanese mistress under the
same roof as herself. It is a fair inference that as it was, she found the position intolerable and this would ac-
count for the fact that after the first year O Tei no longer resided in the family house.
There is however, one statement in Tay Tan Neo's evidence which I regard as of importance. According to
Chinese custom she called her sister-in-taw Tan Poh Neo 'Ang Soo,' but she called O Tei by her name.
There can be no doubt that if O Tei had been treated as a t'sip she would have called her 'younger sister.'
This is supported by the evidence of O Tei herself. She says that everyone including Boon Teck's younger
brothers Boon Kay and Boon Poh called her O Tei, and not by any name signifying a relationship by mar-
riage. I think this evidence is very strong in favour of the supposition that O Tei was not regarded as a sec-
ondary wife.
There is one other piece of evidence to which I must refer. In 1917 O Tei registered as an alien under the
Registration of Aliens Ordinance 1917. She described herself as living in Selegie Road and being the em-
ployee of Chinese. Although too much reliance need not be placed on this piece of evidence as she was in
157

fact Japanese by birth and dressed as one, and non-registration might have caused difficulty with the au-
thorities enforcing the provisions of the Ordinance during the war, her declaration is entirely inconsistent with
her story that she was living in Selegie Road as the wife of a British-born Chinese.
It would appear that in 1930 O Tei at the instigation of Soh Chye Watt put forward her son's claim to a one-
seventh share in the residuary estate of his great-grandfather Tay Geok Teat deceased. There were discus-
sions between Soh Chye Watt and G. B. Taye, one of the trustees and also a beneficiary in the estate, and
as a result it was arranged that the trustees should admit the plaintiff's claim to a seventh share in the estate,
and G. B. Taye wrote to O Tei to this effect on November 12th, 1930 (Exhibit B). O Tei was, however, re-
quired to give consideration for this admission and on the same day signed a letter, (Exhibit H) addressed to
G. B. Taye's brothers, Tay Boon Kay and Tay Boon Poh, agreeing to pay them 3/7ths of any benefit which
Sunny Tay might get under the Will. G. B. Taye admits that this 3/7ths share was to be divided between his
two brothers and himself. He says they felt sorry for Sunny Tay as they had no doubt that his claim could not
be upheld. They succeeded therefore in giving effect to their generous sentiment without suffering more than
a negligible loss themselves, as their shares of 1/6th each would, after admitting Sunny Tay's claim, be
1/7th--1/7th [#65533] 1/7th i.e. 8/49th instead of 8/48ths. This admirable arrangement would of course have
been at the expense of the other beneficiaries, but as they were widows and infants, they naturally were not
considered. Apparently however, some of these beneficiaries must have raised objections and in November
1931 the trustees ceased paying the allowance which had been part of the arrangement made in November,
1930 and shortly afterwards these proceedings were commenced. I only mention these incidents to dispel
any idea that Sunny Tay's claim was honestly admitted in 1930. All that happened was that certain of the
beneficiaries attempted to make an arrangement behind the backs of the other beneficiaries who were not
consulted. In these proceedings the respondents represent all the beneficiaries interested in the Will, and it is
quite clear that no admission made one of the trustees in 1930 under the circumstances above related can
possibly bind the estate.
On the facts as summarised above I have no doubt that the evidence which has been adduced falls far short
of establishing any intention to contract a permanent union. The evidence indicates that neither Boon Teck
nor O Tei herself ever treated it as such, and the evidence of a reputed marriage is either unsatisfactory or
capable of a different explanation. In the result Sunny Tay has not discharged the onus of proving a lawful
union between O Tei and Boon Teck such as would entitle him to share in his great-grandfather's estate.
The result is in many ways unsatisfactory. So long, however, as the legitimacy of the child must be measured
by the test of whether there was a lawful union between the father and mother --a test entirely foreign to Chi-
nese ideas--cases of hardship must occur as the recognition of the children raises no presumption of a mar-
riage between the parents. It is a situation which can only be remedied by legislation for the purpose of bring-
ing the law more in accordance with Chinese ideas.
On the issue, therefore, it will be declared that Sunny Tay is not a legitimate son of Tay Boon Teck by the
said O Tei.
Judgment accordingly.
Solicitors for the Plaintiff-- Aitken & Ong Siang.
Solicitor for the 1st Defendant-- S Fung.
Solicitors for the 2nd Defendant-- Chart & Eber.
1934 1 MLJ 83 at 87
The plaintiff appealed in forma pauperis. The appeal was heard before Thomas, C. J., (F.M.S.), Gerahty and
Mills, JJ.
Mallal for the Appellant.
K.K. O'Connor for the Respondents.
Mallal for the Appellant. In this case it is not contended that Boon Teck married O Tei as a principal wife, that
is to say, with the accompaniment of the usual Chinese marriage rites. What is contended is that there was a
secondary marriage. For such a marriage no rite or ceremony is necessary [ Choo Ang Chee v Neo Chan
158

Neo & ors (Six Widows' Case) 12 SSLR 120 and Cheang Thye Phin v Tan Ah Loy (1920) AC 369; 14 SSLR
79 ].
Marriage among the Chinese may be inferred from the evidence that the parties intended to live together as
man and wife. The evidence of such marriage can only be the fact of cohabitation coupled with the reputation
of being married. The nature of evidence to prove such marriage would be the same as that required to
prove marriage "by habit and repute" of the English and Scotch laws.
Marriage in this case should be presumed from the fact that--

(1) The parties cohabited together for a period of 11 years.


(2) The parties were reputed to be married and Boon Teck acknowledged O Tei as his wife and
treated her as such.
(3) Boon Teck and his relative treated the plaintiff as his legitimate son.
(4) The plaintiff was brought up in the family house.
In cases of this kind the Courts should be guided in weighing evidence by the following three principles

(1) In cases of pedigree even remote and slight evidence is allowed effect and the Courts are
obliged to depart from the strict rules of evidence, Vowles v Young 13 Ves Jnr 140. This deci-
sion is followed by the Court of Appeal in Scow Beng Hay v Seow Soon Quee 2 Mal LJ p 111
(2) There is a strong legal presumption in favour of marriage, particularly after a long lapse of time
and this presumption can only be met by strong, distinct and satisfactory disproof. It can only
be negatived by disproving every reasonable possibility. Piers v Piers 2 HLC 3319 ER 1118
(3) The law presumes against vice and immorality, and on this ground in favour of marriage and of
legitimacy of children. Best on Evidence p.309
There is evidence of cohabitation from 1910 to 1921, though Boon Teck did not live with O Tei after 1918. It
has been proved that O Tei was introduced as his wife by Boon Teck to his friends. It is also in evidence that
the appellant was recognised as the legitimate son of Boon Teck. Recognition is an important element to be
considered. Section 50 Ordinance No. 53 (Evidence). Ameer Ali on Evidence, pp.466 and 467 note (6). In
Seow Beng Hay v. Scow Soon Quee & anor, expert evidence shows that it is unusual for an illegitimate son
to live in the family house. In the Court of Appeal the President, the learned Chief Justice, accepted that evi-
dence. If there is evidence that the appellant was treated as a legitimate son, it helps the presumption of a
lawful union. Woon Kai Chiang v Yeo Pak Yee & others (1926) SSLR 27 at p 42; Cheang Thye Phin v Tan
Ah Loy (1920) AC 369; Ranjee Khujooroo Nissa v Jehan 3 IA 291.
Counsel then cited a number of English cases, the following among others:--
Campbell v Campbell, (The Breadalbane Case) 1 Scotch & Divorce Appeal Cases 182.
Goodman v Goodman (1859) 28 LJ 745.
Hill v Hibbit (1870) 25 LT 183.
Lyle v Ellwood (1874) LR 19 Eq Cas 98.
Sastry Velaider Aronegary v Sembecutty Vayalie (1881) 6 App Cas 364.
Re Thompson Langham v Thompson (1904) 91 LT 680.
Re Haynes (1906) 94 LJ 431. He also cited Yeap Cheah Neo v Ong Cheng Neo (1875) IR 6 PC 381; Choo
Ang Chee v Neo Chan Neo and ors, (Six Widows' Case) 12 SSLR 120 Ngai Lau Shia v Low Chee Neo 14
SSLR 35 Cheang Thye Phin v Tan Ah Loy & ors 14 SSLR 79; LR (1920) AC 368; Woon Kai Chiang v Yeo
Pak Yee & ors 1926 SSLR 27.
O'Connor for the Respondents. The trial Judge was right in law and in his conclusions on the facts. The onus
of proving his legitimacy was on the appellant and he has failed to discharge that onus.
A Chinese may have t'sips or secondary wives and their children are legitimate. Proof of ceremony is not
necessary. Cheang Thye Phin v Tan Ah Loy 1920 AC 369. Union with a t'sip is regarded in law as of a per-
manent nature and if a marriage with a t'sip is sought to be established it must be shown that the union was
159

intended to be of a permanent character, Khoo Hooi Leong v Choo Yong Kin (1930) AC 346 and Re Khoo
Thean Tek's Settlements (1928) 2 SSLR p 178. The Chinese custom of legitimation of a son by subsequent
recognition is not law in the Straits Settlements. Recognition as a son raises no presumption that the son's
mother was a secondary wife, Khoo Hooi Leong v Choo Yong Kin 1930 AC 346. The case of Seow Beng
Hay v Seow Soon Quee 2 Mal LJ 111 is incorrectly decided in so far as it depends on recognition of the son.
1934 1 MLJ 83 at 88
The law of the Colony is the law of England (as modified to prevent injustice), not the law of Scotland. Scotch
cases have been cited in support of the appellant's case. Such cases ought not to be cited as authorities un-
less it is proved as a fact being foreign law that Scots law is similar to the law of the Colony. Scots law great-
ly differs from the law of the Colony and the Court does not know what the law of Scotland is. In any case a
marriage in Scotland is a monogamous union whereas this is a polygamous union and different considera-
tions would apply.
Habit and repute must be among some body of men or neighbours. Ma Wun Di v Ma Kim (1907) 35 IA 41. In
the present case this has been shown. Caution is necessary in comparing English with Oriental customs.
An appeal Court should not disturb the findings of fact, Khoo Sit Ho v Lim Team Tong 1912 AC 323, S Am-
mal v K Subramaniam (1930) 1 PC 194 and Colonial Securities Trust Co v Massey (8896) 1 KB 38.
He then dealt with the facts and the authorities cited in support of the appellant's case.
Mallal in reply.

MILLS, J

Cur. Ad. Vult.


On the 7th March, 1932 the Chief Justice directed that an issue be tried with pleadings as to whether the
plaintiff Sunny Tay alias Tay Kim Cheng alias Soh Kim Cheng an infant is a legitimate son of Tay Boon Tek
now deceased by his wife the said O Tei.
The issue was tried by Terrell, J., who on 7th October, 1932, decided that Sunny Tay is not a legitimate son
of Tay Boon Tek by the said O Tei.
The present appeal is from that decision of Terrell, J.
The learned trial judge found that such facts as had been proved to his satisfaction, did not raise a presump-
tion of marriage between Tay Boon Tek a Chinese man and O. Tei, a Japanese woman.
I am compelled respectfully to differ from the trial judge's assertion that except in one or two details the facts
of the case are not really in dispute; for instance, O. Tei makes the very important allegation that she and
Tay Boon Tek went through a kind of marriage ceremony, proof of a marriage ceremony would be conclusive
evidence of marriage; it is therefore clear to my mind that this allegation is not a detail and that it is disputed
by the defendants to the issue.
One may summarise the facts which were accepted, or were not rejected by the trial judge, as follows:--

(1) Tay Boon Tek cohabited regularly with O. Tei in the Toronaya Hotel, in the family house of his
family, and in various other places for some eight years during the period 1910--1919: and he
maintained her for a further 3 years, before deserting her.
(2) Tay Boon Tek recognized O Tei's children as his own children, and Sunny Tay was recognized
as a legitimate son by his father's family.
(3) O. Tei lived in the family house for about 12 months during the years 1910 and 1911: Tay Boon
Tek's principal wife was also living there at that time, with her children, including one son: dur-
ing the period 1915--1921 O Tei visited the family house fairly regularly to see her children and
occasionally stayed a night or two.
(4) In 1915 Tay Boon Tek and O. Tei took the children to the family house: the children lived there
until after the death of Tay Boon Tek in 1922: during the period 1915--1922 the principal wife
and her three children, including one son, also lived in the family house.
160

The trial judge held that these facts were not sufficiently cogent to raise a presumption of marriage: with re-
spect, I am compelled to differ.
In the absence of evidence to the contrary, I consider it almost impossible that Tay Boon Tek should take a
mere mistress to live in the family house with his principal wife, especially for so long a period as 12 months;
I do not say it would be quite impossible but it would be a most unreasonable act amounting to an outrage,
and in my view it would be almost impossible that the principal wife or the other members of the family would
tolerate such an outrage; but if they did tolerate it, it is impossible, in my opinion, that they would receive the
mistress' children into the family house (particularly as the principal wife had a son), recognize them as legit-
imate members of the family, and allow the mistress not only to visit them but to stay in the house.
My views on this point are not based on an expert knowledge of Chinese customs and practices, and I
should require such customs and practices to be proved, but they are based on study, observation and expe-
rience of the Chinese mentality and Chinese ideas, and under the circumstances I consider I am justified in
taking judicial cognizance of such ideas.
But the same conclusion may properly be reached, in my opinion, on other grounds: there is no question that
among the civilised peoples of Europe and America, a wife would regard it as intolerable that her husband
should keep a mistress in the same house as herself; I consider that, in default of evidence to the contrary,
the Court is justified in presuming that among the civilized peoples of Asia such a thing would also be re-
garded as intolerable by an only or principal wife.
1934 1 MLJ 83 at 89
In my considered opinion, the facts above enumerated prove, beyond all reasonable doubt, that Tay Boon
Tek took O. Tei as his "ts'ip" or secondary wife and that she was so recognized by members of his family,
including his principal wife.
I now pass to consider whether there is any other evidence to support the presumption of a lawful marriage.
The trial judge decided there was not; he based his decision on his views of the witnesses' credibility, and on
those views I desire to comment.
Before doing so, I wish to make two observations. In the first place, my general impression of the evidence
given by the witnesses for the plaintiff is favourable; here again I differ from the trial judge whose impression
was that it was unfavourable: general impressions, however, are of little value.
In the second place, the trial judge has arrived at several conclusions, which, in my opinion, are not justified
by the evidence.

(1) if there had been a ceremony, some members of the husband's family would have been pre-
sent,
(2) in view of 12 months' cohabitation before O. Tei was taken to the family house, a ceremony
was unlikely,
(3) if O. Tei had been treated as a "ts'ip," Tan Poh Ned would have called her "younger sister,"
(4) O. Tei's children did not know where their father's grave was,
(5) O. Tei ceased to reside in the family house because the principal wife found the position intol-
erable,
(6) the fact that O. Tei described herself as being an employee of Chinese is inconsistent with the
story that she was the wife of a British-born Chinese.
As regards (1), (2) and (3): these conclusions depend on Chinese custom; and there is no proof of any such
custom.
On the subject of a ceremony, one might remark that proof of a ceremony is not essential to establish the
relationship. Cheang Thye Phin v Tan Ah Loy 1920 AC p 369 and even when a ceremony is performed "it is
not a ceremony of marriage; indeed, the man is not usually present when it does take place" (ubi supra at p
375)
It appears to me necessary to emphasize the danger of assuming that customs observed among Chinese
families living in China in pre-republican days are applicable, after the establishment of the republic, to Chi-
161

nese families living in the Straits Settlements; and the danger is accentuated when the persons concerned
are not typical members of a Chinese family; for instance, Tay Boon Tek was a speaker of English and a
volunteer, while O. Tei was a woman of a foreign race. Suppose a Chinese millionaire took a European
woman as a "ts'ip," would his sister call her "younger sister"? I think the Court should not decide such a point
without evidence.
It may be--but I do not say it is--as ridiculous to assert that it is the custom for a husband's sister to address
her brother's foreign "ts'ip" as "younger sister," as to assert that it is the custom for Chinese men to wear
their hair in a "queue."
As to (4): this conclusion is in conflict with the evidence; Sunny Tay, whose evidence is not commented on
adversely by the trial judge, says he knows where his father is buried.
As to (5): there is no evidence of this conclusion; there is nothing to suggest that O. Tei was no longer ac-
ceptable in the house, or that she did not leave it because she preferred to have a house of her own in which
to bring up her family.
As to (6): the mere fact that a woman is employed by Chinese does not prevent her from being the wife of a
British subject; and there is no evidence of any circumstances tending to show it unlikely that a woman em-
ployed by Chinese should be the wife of a British subject, or that the wife of a British subject should work for
Chinese.
I now turn to the subject of the witnesses. The trial judge does not anywhere say that he suspected the accu-
racy of a witness's evidence because of the manner in which that evidence was given; if he had said so, an
Appellate Court would be bound, except in most unusual circumstances, to accept the trial judge's estimate.
As it is, the trial judge's view is based on what the witnesses said, and as the evidence is recorded, the Ap-
pellate Court may, and ought to, sit in judgment on that view.
The trial judge declines to accept the evidence of the following witnesses:--

(1) O. Tei: the trial judge is unable to accept this witness' allegation that there was a ceremony of
marriage; his disbelief is based on his own views regarding Chinese customs: my opinion is
that this basis is insufficient in the in the absence of proof of some customs, and I consider that
the trial judge was not justified in being unable to accept O. Tei.
(2) Soh Chye Watt: the trial judge disbelieves this witness' statement that O. Tei was looked upon
as Tay Boon Tek's wife; his disbelief is based on the allegation that in 1928 the witness de-
scribed her as a "spinster": although the witness has given an explanation of this incident, yet
he has also admitted giving false information to the Registrar of Marriages and to the Convent
authorities and I agree with the trial judge that his evidence cannot be relied on.
1934 1 MLJ 83 at 90
(3) Tay Tan Neo: the trial judge did not regard her as an intelligent or satisfactory witness; he re-
marks that she appeared to be in poor health and complained of giddiness; he says that she
was obviously anxious to do her best for O. Tei: the trial judge does not state in what respect
the witness was unsatisfactory and therefore that point must remain in doubt; in my opinion the
evidence of a witness ought not to be rejected merely because she is unintelligent, in poor
health or giddy: there is no evidence that she was obviously anxious to do her best for O. Tei:
the trial judge accepts one of her statements which he regards as of importance: in view of all
these matters I do not consider that the trial judge was justified in rejecting the evidence of Tay
Tan Neo.
Moreover, there are 2 dead persons whose statements the trial judge disbelieves:--

(a) Tay Boon Tek: the trial judge disbelieves his statement that O. Tei was his wife; the basis of
this disbelief is that Tay Boon Tek would be naturally reluctant to admit he was keeping a mis-
tress: my opinion is that this basis is insufficient, and I consider that the trial judge was not justi-
fied in disbelieving Tay Boon Tek.
(a) Tan Poh Neo, Tay Boon Tek's principal wife: the trial judge disbelieves her statement that O.
Tei was Tay Boon Tek's second wife; his disbelief is based on the possibility that Tan Poh Neo
would suggest that O. Tei was a secondary wife rather than admit that her husband was keep-
162

ing a mistress under the same roof as herself; my opinion is that this basis is insufficient and I
consider that the trial judge was not justified in disbelieving Tan Poh Neo.
In my opinion, the plaintiff has succeeded in proving (i) that Tay Boon Tek and O Tei were parties to a spe-
cies of marriage ceremony, which established their intention to form a permanent union as man and wife,
and (ii) that they cohabited as man and wife.
As regards (i): this is established by the evidence of O. Tei: I see no reason for disbelieving her evidence; the
very fact that the alleged ceremony was of an unusual nature seems to me to render it unlikely that her story
was fabricated: the gift of the photograph by Tay Boon Tek on the morning of the alleged marriage and the
affectionate message written on the back indicate. in my opinion, that Tay Boon Tek regarded O. Tei as
more than a mere mistress.
As regards (ii); this is established by the following evidence:--
O. Tei deposes that they co-habited as man and wife: O. Tei deposes that her adopted mother paid half of
the rent of the house in Syed Alwi Road: it appears to me unlikely that, her adopted mother woull have done
this if Tay Boon Tek was merely keeping O. Tei as a mistress:
O. Tei deposes that after the alleged ceremony she understood herself to be the wife of Tay Boon Tek and
so described herself: this is confirmed by the certificate of registration, wherein she is described in brackets
as "Mrs. Tei";
O. Tei deposes, in effect, that everybody, including Tay Boon Tek's younger brother, knew she was wife of
Tay Boon Tek; Freeman deposes that Tay Boon Tek introduced O. Tei to him and a Chinese man as his
wife; Andrews deposes that Tay Boon Tek introduced O. Tei to him as his wife; Andrews deposes that eve-
ryone in the hotel knew that O. Tei was "Mrs. Boon Tek"; Tay Tan Neo deposes that Tan Poh Neo, Tay Boon
Tek's principal wife, told her that O. Tei was Tay Boon Tek's second wife; Juliet Tay deposes that O. Tei was
treated in the family house as a wife.
The evidence to the contrary is as follows:--

(a) G. B. Taye deposes that he heard no suggestion in 1911 that Tay Boon Tek had taken a sec-
ondary wife; in my opinion little weight is to be given to the evidence of this witness: not only
was he a party to a transaction which the trial judge regards as dishonest, but he himself ad-
mits that he had lost touch with the family in 1911 and continued to be out of touch with the
family between 1911 and 1928;
(b) Seah Cheng Joo deposes that he never heard O. Tei referred to as wife of Tay Boon Tek: this
is a matter of no significance since the witness was not in touch with the family: but the witness
further deposes that in 1915 Tay Boon Tek said he had left his Japanese mistress: now it is
clearly proved that Tay Boon Tek had not left O. Tei in 1915: if O. Tei was the Japanese mis-
tress, the explanation of the discrepancy can only be the subject of surmise: this witness'
statement is certainly significant, but he is prone to jump to conclusions, for instance, in stating
dogmatically "there was no marriage whatever" be makes an assertion which was not
1934 1 MLJ 83 at 91
justified by his knowledge of the family: in my opinion he is a partisan witness and only a fair
amount of weight is to be attached to his evidence;
(c) Cheah Tiong Kim deposes that in 1915 Tay Boon Tek told several friends that he had given up
the Japanese mistress whom he had taken from the Toronaya hotel: I see no reason to disbe-
lieve this witness, and I think considerable weight ought to be attached to his evidence. With
regard to these last two witnesses, it is necessary to point out that neither of them distinctly
identifies O. Tei as the Japanese mistress in question: even Seah Cheng Joo who was a can-
didate for the young lady's favours cannot say more than that he believed O. Tei was the girl;
possibly they are referring to another Japanese girl; it is clear from O. Tei's account of her quar-
rel with Tay Boon Tek in 1918 that he was uxoriously inclined: O. Tei deposes that she does
not know either of these witnesses and that they did not frequently visit her adopted mother's
hotel between 1910 and 1920: my experience of Japanese women is that they are careful to
tell the truth.
163

But, however that may be, the evidence in favour of the conclusion that Tay Boon Tek and O. Tei co-habited
as man and wife is, in my opinion, appreciably more weighty than the evidence contrary to that conclusion:
and therefore I consider that the Court should regard cohabitation as man and wife to be established.
If either a ceremony of marriage, or cohabitation as man and wife, is established, there is further ground for
raising a presumption of marriage.
I am quite unable to agree with the trial judge's conclusion that the evidence indicates that neither Tay Boon
Teck nor O Tei herself ever treated their union as a permanent union.
It was argued before the trial judge and before the Court of Appeal that no presumption of marriage arises; it
was not argued that if any presumption arises, the evidence to the contrary is sufficient to rebut it: in my opin-
ion, such a presumption does arise, and the evidence to the contrary is insufficient to rebut it, but under the
circumstances it is not necessary to consider that evidence in detail.
There are two other points to which reference ought to be made. The first point concerns the question of
recognition of children: in the second Khoo Thean Tek appeal (1930 AC at p 356), the Privy Council says
that the mere fact of recognition of a person as a son cannot raise any presumption of marriage between the
parents: but I do not understand the Privy Council to say that such recognition is not a factor which, taken
into consideration with other factors, may help to raise such a presumption; in my opinion it is such a factor
and ought to be taken into consideration, and I have taken it into consideration in the present case.
The second point concerns the inference to be drawn from the severance of association between the parties.
In the second Khoo Thean Tek appeal (1930 AC at p 353) the Privy Council says, "Moreover, the fact that
the association between the parties was in fact severed affords strong evidence that Petronella was never a
t'sip for according to the evidence of Mr. Beatty (the only expert on Chinese custom who was called) a t'sip
cannot be put away who has born a son and in the Straits Settlements there is no divorce provided for by the
laws for the Chinese."
That finding goes no further than to say that the severance amounts to strong evidence: it does not say that
in every case where there has been severance there cannot have been a marriage. On the same page of the
report appear the following most cogent reasons for finding that in the Petronella case there was no mar-
riage.
"There are many facts in the case which render it most improbable that Petronella occupied the status of a
t'sip or that her association with the settlor was intended to be of a permanent nature. She was a Catholic,
who never definitely abandoned her religion. So far as the evidence goes no association with the settlor is
proved before the date when Khoo Hun Tee was conceived --namely, somewhere about May, 1853. Her ille-
gitimate daughter was born in August, 1856, and baptized within three weeks of birth. Her association with
the settlor must have ceased by that time, and in all probability had ceased before the daughter was con-
ceived, i.e. before November, 1855. The period of association between these two persons may, upon the
evidence, have only lasted between May, 1853 and November, 1855. But even taking the outside limits of its
possible duration--namely, between 1848 (when the legitimate daughter was born) and 1861 (when Petronel-
la married Cornelius), their Lordships are of opinion that there is no evidence that the parties intended their
union to be permanent in its nature." So that in that case there was no evidence that the parties intended that
the union should be permanent and there was strong evidence from the severance that Petronella was never
a "ts'ip."
In the present case the learned trial judge says "I do not say that it is impossible to suppose a case in which
a union may have been intended to be permanent and may have been wrongfully
1934 1 MLJ 83 at 92
severed by one of the parties, but the mere fact of severance cannot fail to be of importance where such a
step has been accepted without protest by the other party to the union." Having regard to all the evidence in
the present case, I am satisfied that there was strong evidence that the parties did intend that their union
should be permanent in its nature and that such evidence is strong enough to refute any deduction which
may be made from the fact that the parties separated some three years prior to the death of Tay Boon Teck.
164

An Appellate Court will hesitate long before it disturbs the findings of a trial judge based on verbal testimony.
But if the Appellate Court is satisfied that the decision of the trial judge is wrong, it is the duty of that Court to
reverse his decision.
In the present case I am satisfied that the decision of the trial judge is wrong: in my opinion, the appeal
should be allowed, and the question whether Sunny Tay is a legitimate son of Tay Boon Teck deceased by
his wife O Tei, should be answered in the affirmative.
As regards costs: I would order that the costs of all parties in both Courts should be taxed as between solici-
tor and client, and paid out of the estate: this involves, so far as the appellant is concerned, a special order
that costs be paid to him under Section 774 of the Civil Proceduro Code.

THOMAS, CJ (FMS)

I concur.

GERAHTY, J

I concur.

Appeal allowed.

Solicitor for the Appellant-- NA Mallal.

Solicitors for the Respondents-- Drew & Napier.


165

Malayan Law Journal Reports/1933/Volume 2/RE SEOW IM SWEE DECEASED; SEOW BENG HAY v
SEOW SOON QUEE & ANOR - [1933] 2 MLJ 111 - 12 January 1933

8 pages

[1933] 2 MLJ 111

RE SEOW IM SWEE DECEASED; SEOW BENG HAY v SEOW SOON QUEE & ANOR
(APPELLATE CIVIL JURISDICTION) SINGAPORE
MURISON CJ, BURTON & WHITLEY JJ
CIVIL APPEAL NO 38 OF 1932
11 JANUARY 1933, 12 January 1933

Chinese marriage -- proof -- presumption -- Ordinance No. 53 (Evidence) Ss. 32 & 50

In the absence of proof of a marriage ceremony the Court can upon proper circumstantial evidence presume
a secondary marriage between a Chinese man and woman.
Ngai Lau Shia v Low Chee Neo 14 SSLR 35 : Cheang Thye Phin v Tan Ah Loy 14 SSLR 79; (1920) AC 369
followed.
In cases of pedigree even remote and slight evidence must be allowed effect. Vowles v Young 13 Ves Jun
140.
A Chinese can contract marriage with a tsip (secondary wife) without having first married a tsai (principal
wife).
Woon Kai Chiang v Yeo Pak Yee (1926) SSLR 27 applied.

Appeal from the order of Terrell, J. dated the 9th August 1932.
The Plaintiff was the son of one Seow Soon Teck who died in 1927. The latter was alleged to be the son of
Seow Swee Peng deceased who was the son of the abovenamed Seow Im Swee deceased under whose
Will the defendants were the trustees. In an Originating Summons taken out by him the plaintiff asked for
construction of the said Will. By his Statement of Claim the plaintiff claimed to be entitled to a share in the
Estate of Seow Im Swee through his father who was a son of Seow Swee Peng deceased by his wife Boon
Neo. The Defendants denied that the plaintiff was the lawful grandson or next of kin of Seow Swee Peng de-
ceased. By the Order of Court dated the 18th March 1932 an issue was directed to be tried as to the legiti-
macy of Seow Soon Teck deceased.
Terrell, J. found that there was insufficient evidence to prove a lawful union between Seow Swee Peng and
Boon Neo.
The relevant facts appear sufficiently from the Judgment of Murison, C.J.
The Plaintiff appealed.

Johannes for the appellant.

Soon Kim for the respondents.

MURISON, CJ
166

This is an appeal against an order made by Terrell J. upon the simple issue whether one Seow Soon Teck
was or was not a legitimate son of one Seow Swee Peng. The learned judge found that he was not.
The order directing the issue was made upon the 18th March, 1932 in an Originating summons, taken out by
Seow Beng Hay on the 4th March, 1932, asking for the construction of the will of one Seow Im Swee, de-
ceased. The latter was the father of one Seow Swee Peng deceased, who is alleged to be the father of Seow
Soon Teck who is the father of the Plaintiff in the issue Seow Beng Hay.
Seow Im Swee died on the 17th October, 1857 leaving a will of which the present trustees, under an order of
Court dated 30th December, 1931 (Originating Summons 192 of 1931) are the first and second defendants
Seow Soon Quee and Tan Teck Chye.
With regard to the will of Seow Im Swee it is necessary only to say that by clause 5 a certain piece of land
was left in perpetuity as a burial ground, and that by clause 11 the residuary estate of the testator was left to
Seow Swee Peng.
On the 4th January, 1932 the Government acquired this land, and the sum of $17,000 representing the
1933 2 MLJ 111 at 112
purchase price was paid to the Trustees' solicitors for the credit of the estate of Seow Im Swee. But by order
of Court dated 18th March, 1932 the gift of the land for a burial ground was held to be invalid, and so the po-
ceeds of the acquisition, this $17.000, fell into the residue of Im Swee's estate.
The order directing the issue to be tried said that the Plaintiff in the originating summons, namely, Seow
Beng Hay should be Plaintiff in the issue, and the trustees of the estate, Seow Soon Quee and Tan Teck
Chye should be defendants in the issue. And pleadings were ordered.
The Statement of Claim alleges that the Plaintiff's grandfather Seow Swee Peng died intestate in 1884 leav-
ing him surviving two sons, Seow Soon Moh and Seow Soon Teck by his wife Boon Neo.
Seow Soon Teck died on the 18th October, 1927 leaving nine children of whom the Plaintiff is the eldest.
In their Defence the defendants deny that the plaintiff was the lawful grandson, or one of the next of kin, of
Seow Swee Peng. They say that Boon Neo was not the lawful wife of Seow Swee Peng.
The trial of the issue followed, the onus being admittedly on the Plaintiff.
To prove his legitimacy the Plaintiff had to show that Swee Peng married Boon Neo as the principal wife or
as a secondary wife and that he, the Plaintiff, was a grandson of such marriage.
The Plaintiff made no attempt to prove that Swee Peng married Boon Neo as a principal wife, that is, with the
accompaniment of the usual Chinese rites and ceremonies. He contends, however, that there was a sec-
ondary marriage between them. For this no rite or ceremony is necessary. (Six Widows' Case (1908) 12
SSLR 120 and Cheang Thye Phin v Tan Ah Loy (1920) AC at pages 209, 369).
There is an obiter dictum in a Judgment of my own to the effect that even if (as is the case) Swee Peng nev-
er married anyone as a principal wife, he could still contract a marriage with a tsip or secondary wife (Woon
Kai Chiang v Yeo Pak Yee and others (1926) SSLR page 27) .
Such a marriage can be proved by oral or circumstantial evidence or both: that is, evidence can be brought
to show that from events which have happened the Court will infer that a secondary marriage must have ex-
isted. The cases relative to this point are conveniently collected in Withers Payne's Law of Administration of
and Succession to Estates, page 24 note (q).
The first point relied upon by the Plaintiff is in connection with the tombstone on the grave of his grandfather
Swee Peng.
The learned trial judge held that this evidence was admissible, and I think this is the case. The judge finds as
a fact, and apparently on good ground, that Seow Soon Teck erected the tombstone; and, as he is dead,
section 32 (6) of Ordinance No. 53 (Evidence) would seem to govern the case and to allow the evidence to
be given. Even if it were not proved who erected the stone, the evidence would still be admissible, for publici-
ty, as it is said, supplies the defect of proof who erected. (Monkton v Attorney General (1831) 39 English Re-
ports 350 at 357, and Davis v Lowndes (1783) 134 English Reports 978 at page 1002).
167

A translation of this inscription on the tombstone is in evidence (exhibit A2). It is as follows:-

"(Here is) the grave of (our) late father Siau Hock Beng (of the Village) of Au-Sua (whose death occurred) In the Impe-
rial Ching Dynasty.
"(On this) Lucky (day) of the third (literally tong) moon in the (Chinese cycle year of Ka-sing (or) the 10th dynastic year
of (the Emperor) Kwang-su, this stone is erected by (his) filial sons Soon Teck (and) Soon Moh and (his adopted chil-
dren Soon Kim, Soon Ting (and) Soon Kheng.
"Translated by
Sd/ Mah Ki Keng
"Sworn interpreter of
"Supreme Court."

It is agreed that Siau Hock Beng is the burial name of Swee Peng. The word "filial" is not so easy. The origi-
nal word is "howlan". The evidence as to the meaning of this word was scanty in the trial Court. The senior
Court interpreter said it meant "filial". One witness, an undertaker, suggested that it might mean "adopted";
he would not say that it meant, in the context, actual sons even though it was followed by a reference to
adopted sons.
In search of further information on the point we called the senior interpreter of the Court, who translated Ex-
hibit A2 mentioned above. He said that by "filial" he meant "dutiful". He said the word carried no distinction in
regard to legitimacy or illegitimacy or adoption and said "As long as the son carries the blood of his father he
can call himself 'howlan.'"
The trial judge points out that as the Plaintiff's father himself put up the stone it is not likely that he would de-
scribe himself in any but the most favourable terms. He concludes that 'howlan' means natural sons; that is, I
suppose, illegitimate sons.
The evidence of the senior interpreter (to whom incidentally I had to explain the difference between the
words "legitimate" and "illegitimate", as he did not know it) and of the undertaker should carry, to my mind,
very little weight. It is, I think, safer to rely upon the admitted two facts. The first of these is that a distinction
on the stone is drawn between "sons" and "adopted sons". As to this the "sons" come first, and it is, I think,
fairly clear that if the sons had been
1933 2 MLJ 111 at 113
illegitimate they could not have been put before adopted sons. Perhaps the safer way to put it would be that
the family would not have allowed the inscripition to remain with these sons' names put first unless they were
in fact legitimate. This brings us to the second fact which is that this inscription has stood for 48 years without
any sign of protest or dissent from any of the family concerned. Now in this case the oral evidence is (as the
trial Judge said) unreliable. It goes back sixty or seventy years. The facts to which I have referred are unde-
niable. In these circumstances the Court can, I think, place more reliance upon them than would have been
the case had the oral evidence provided some reliable proof of a case inconsistent with the inscription. There
is the authority of the Privy Council somewhere, but I cannot at the moment say where it is, for this proposi-
tion.
I conclude, therefore, that so far as the tombstone is concerned the evidence of legitimacy, though by no
means conclusive, is distinctly supported by the inscription upon it. With all due respect I attach more weight
to this point than the learned trial judge did.
The second point relied on by the Plaintiff relates to the recognition by the Seow family of Plaintiff's position
as a legitimate son. Section 50 of Ordinance No. 53 (Evidence) is in point here. Subsection (1) and the Illus-
tration (b) are as follows:-
"When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by con-
duct as to the existence of such relationship of any person who as a member of the family or otherwise has means of
knowledge on the subject, is a relevant fact.
Illustration (b) "The question is whether A was a legitimate son of B. The fact that A. was always treated as such by
members of the family is relevant."
168

It is to be noted, however, that the treatment in question must be treatment as a legitimate son: treatment as
a son is not sufficient.
In support of this argument it is pointed out that Soon Teck when a child was brought up in the family house
of Im Swee in Nankin Street. Thus, the Defendant trustee Teck Chye says:
"Afterwards Seow Swee Peng took him (Soon Teck) to Nankin Street for education. Then Soon Teck lived at Nankin
Street."

and later on he says:


"After Swee Peng's death I saw Boon Neo. I said to her 'Is your son still living in the family house?' She said 'Yes' ".

From this it is argued that Soon Teck must have been a lawful son for a concubine's son would never have
been brought up in the family house. I asked Mr. Johannes, the appellant's counsel, if he had any evidence
to prove that the Chinese custom was in accordance with his arguments, for there was no proof of such cus-
tom on the Record. The adjournment then took place and next day Mr. Johannes said he could not prove
that such was the Chinese custom. I, however, pressed the point and eventually two expert witnesses in
Chinese customs relating to the subject were called. The question to be put to them was agreed by counsel
and was as follows:-

1. Soon Teck, for the purposes of this question, is assumed to be the son of Swee Peng and
Boon Neo.
2. It is conceded that Swee Peng never married Boon Neo as a principal wife.
3. Soon Teck lived for some years in Swee Peng's, his father's house before Swee Peng died,
and also for some years after Swee Peng died.
4. Do these circumstances, by Chinese custom, help in any way the presumption that Swee Peng
at some time or other married Boon Neo as a secondary wife?
The first witness was Mr. S. Q. Wong, a well known and highly respected resident in Singapore. He is a Chi-
nese 46 years of age and was born and has lived all his life in Singapore. He said, in answer, that a Chinese
man can marry a tsip (secondary wife) without having previously married a tsai (principal wife). His opinion
was that the Court could, in the circumstances given, reasonably infer that there had at some time or other
been a secondary marriage between Swee Peng and Boon Neo. He said that there were cases, not many,
where an illegitimate son lives before and after his father's death in the family house, but it was unusual. It
would, however, he thought, be fairly usual for a Chinese taking an illegitimate son, born outside the house,
to live in the family house.
The other witness was Mr. W. G. Stirling who is married to a Chinese lady. He was Assistant Protector of
Chinese in the Straits Settlements Government from December, 1921 till May 1929. He agreed with the first
witness except on one point. He thought that it would only be due to financial circumstances that an illegiti-
mate son, born outside the house, was brought to live in the family house. Such a course would, in his opin-
ion, be unusual.
One has, moreover, in this connection, to remember that it is a settled principle of law in these cases to refer
an alliance between Chinese rather to a legitimate than an illegitimate connection.
I, therefore, accept this expert evidence as establishing the proposition that the Court in this case would be
justified in presuming that there was at some time or other a secondary marriage between Swee Peng and
Boon Neo.
The next point relied upon in the question of family treatment was contained in the evidence of Seah Quee
Neo, an adopted daughter of Swee Peng. She says that at one time she went to Siam with Swee Peng and
her mother. Soon Teck did not go. But
1933 2 MLJ 111 at 114
when Swee Peng died in Siam Soon Teck came to Siam and took Swee Peng's body back to Singapore.
By itself this incident would not prove the Plaintiff's case; but it seems strange that if Soon Teck was merely
the son of a concubine the other admittedly legitimate relatives of Swee Peng, for instance his brother,
169

should stand by while this pious duty was performed by some one who is now contended to be completely
outside the family. In other words, the conduct of the family in this matter appears to me definitely to contrib-
ute something towards the Plaintiff's contention.
The next point in regard to treatment by the family (and incidentally by the Defendant trustee) concerns the
distribution of Im Swee's estate. I have given the facts relative to the $17,000 in Court. It is common ground
in this case that all the beneficiaries and the trustees from the death of Im Swee in 1857 up till March, 1932
thought that his estate was distributable among his next of kin; and Soon Teck was accepted as one of such
next of kin. That is, his legitimacy was not disputed. But in 1932 it was discovered that by clause 11 of Im
Swee's will the residue of Im Swee's estate went to Swee Peng, and on Swee Peng's death therefore to
Soon Teck as the sole next of kin of the sole residuary legatee Swee Peng. It was only then that any record
appears of a claim that Soon Teck was illegitimate. This is shown by Teck Chye's answer on the 10th March
(in his affidavit of that date, paragraph 4) to the Plaintiff's claim for the whole residue as sole representative
of his father. In fact it is proved that before this date Teck Chye as trustee, still thinking that the $17,000 was
divisible between the three surviving next of kin of Im Swee, namely, (1) Tan Poey Neo, wife of Teo Siang
Eng (2) Soon Teck and (3) Seow Sam Neo, actually paid to Tan Poey Neo a sum of $5050 which is said to
represent one-third share of $17,000 less a sum retained for costs. At this point there was no question raised
by anybody as to Soon Teck's legitimacy; otherwise the $17,000 would have been divided into two shares,
not three. But directly Teck Chye, on the discovery of the true construction of the will, claimed the whole res-
idue, the question of legitimacy is immediately raised. See Rajendro v Jogendro 1871 14 Moo IA 67, and
Ameer Ali on Evidence, 7th edition page 467.
In my opinion these circumstances constitute treatment (by the family and by the trustees) of Soon Teck as a
legitimate son of Swee Peng, and they distinctly assist him to establish his claim.
The next point relied on in regard to treatment concerns the funeral of Swee Peng after his body had been
brought back to Singapore. It is common ground that Soon Teck and others were the principal mourners.
Now Swee Peng's brother was alive then, and in Singapore, and in fact at the funeral. There were other rela-
tives and adopted sons present. Ceremonial procedure at a funeral is of much more importance to a Chinese
than it is to an Englishman. And so it seems strange in these circumstances that if Soon Teck were only the
son of a concubine he should be allowed to take a principal part in the funeral ceremonies while relatives of
the full blood and even adopted sons looked on. The readily apparent answer, of course, is (as is shown by
the division of the $17,000 above referred to) that none of the family, nor the defendant trustees, ever
thought of challenging Soon Teck's status as a legitimate son. He would otherwise never have been allowed
to be a principal mourner, nor to have arranged for either the erection of the tombstone or the making of the
inscription on it.
The next matter relied upon by the Plaintiff concerns the alleged cohabitation of Swee Peng and Boon Neo.
This, with repute added, is a ground for inference of marriage between Chinese. The law upon the subject
has been often stated by the Privy Council. I refer to Cheang Thye Phin v Tan Ah Loy (1920) AC at page 375
and Ma Wun Di v Ma Kim 1907 35 Calc 232. In the latter case it was held that the cohabitation must be by
habit and repute and that repute must be among some sort of neighbours or a public, large or small.
The facts relating to cohabitation in this case are, as they all happened some 70 years ago, rather difficult to
ascertain. It is not known when Soon Teck was born (but it must have been about 1864). Swee Peng and
Boon Neo first appear as living with Soon Teck in Bencoolen Street 55 years ago, i.e. in 1877. The evidence
on this point is provided by Soh Lye Neo. The trial judge says one should not rely on this unsupported evi-
dence but he does not reject it as bad evidence. He prefers the evidence of Hoi Neo and (though she is an
interested witness) Hay Luan. They both say Swee Peng never married. I, therefore, do not rely upon co-
habitation in Bencoolen Street.
But in 1881 they appear again as going to Siam together, Soon Teck being left behind in Singapore. This is
admitted. How long they stayed in Siam is fixed by Swee Peng's death there in 1884, for it is in evidence that
Boon Neo survived him; so that anyhow they apparently cohabited during their sojourn in Siam. That would
make a period of some three years. A difficulty here is the gap between 1864, when apparently Soon Teck
was born, and 1877 in which year is the first evidence of Boon Neo's connection with the family.
170

In any event, therefore, it is clear that there was cohabitation for a period of about three years-cohabitation in
a foreign country when Boon Neo went with Seow Swee Peng to Siam. But there appears to be no very reli-
able direct evidence of repute, among neighbours
1933 2 MLJ 111 at 115
or any kind of public, of such cohabitation. All we have is the evidence on the record which the trial judge did
not think much of. Upon the whole I rather doubt if the evidence on this point is sufficient to establish the
Plaintiff's case, although if repute may after seventy years be gathered from what evidence we have, the cir-
cumstances would support the Plaintiff's case.
I ought to refer to the sin-chew tablets. After Swee Peng's death Soon Teck and his uncle and a number of
relatives were all living in the family house. The sin-chew tablets were there. It is argued that if Soon Teck
had been legitimate he would have had his own house and taken them there, and not left them in his uncle's
house. But the family house, I understand, was as much Soon Teck's house as the uncle's home. They all
lived in the house together as the family house. I do not see therefore, how this matter affects the case one
way or the other. I know of no Chinese custom which says that the son of a deceased must have a house of
his own, and not live in a family house, and that the sin-chew tablets must be kept in the son's private house.
I have had some doubt about this case, but with great respect for the judgment of the learned trial judge I am
upon the whole inclined to think that there are certain undeniable circumstances which appear to me to be
inconsistent with the theory of Soon Teck's illegitimacy. These facts concern the treatment of the plaintiff's
father Soon Teck by his family in regard to the conduct of the funeral of Swee Peng and the erection of and
inscription on the tombstone; the circumstances of the distribution of the $17,000; Soon Teck's education
and residence in the family house before and after his father's death; and the transport by Soon Teck of
Swee Peng's body from Siam. In my opinion these facts (and especially the evidence as to residence after
Swee Peng's death as given by Mr. Wong and Stirling) sufficiently support the presumption that Soon Teck
was legitimate son of Swee Peng, and that, therefore, there was a secondary marriage between Swee Peng
and Boon Neo.
I would, therefore, allow the appeal.
As to costs I would allow the trustees their solicitor and client costs here and below as a first charge upon the
estate of Swee Peng, such costs to be paid first out of the shares of those beneficiaries who through the
trustees have opposed the Plaintiff's claim and so far as they are insufficient, out of the Plaintiff's share of
Swee Peng's estate.
The plaintiff then must have his solicitor and client costs out of which is left of the shares of the beneficiaries
(other than himself) of the estate of Swee Peng.

BURTON, J

This appeal is concerned with the simple issue whether Seow Soon Teck was or was not the son of Seow
Swee Peng. Seow Swee Peng died some forty-five years ago, and the oral evidence adduced is obviously
unsatisfactory and of very little value. Much of it is the hearsay evidence of old men and women speaking to
facts which were told them in their youth. As Terrell J. said, "The viva voce evidence on both sides after the
lapse of fifty or sixty years was extremely meagre and unsatisfactory, and I prefer to rest my finding on the
fact that the onus is on the plaintiff to prove a secondary marriage between Seow Swee Peng and Seow
Soon Teck's mother."
Apart however from the oral testimony which Terrell J. seems to have abandoned there are a number of
facts and admissions emerging from the evidence, upon the probative force of which in my view the determi-
nation of this case must depend. In the case of Vowles v Young (1806) 13 Vesey 140 at p 145 Erskine, L.C.
said:-

"The evidence, especially in the case of obscure families, must be very slight; for if the party is legitimate, the question
is never made; nothing is said upon it."

The first piece of evidence is the tombstone of Swee Peng.


171

This contains the inscription as we have it translated:-


"This stone is erected by his filial sons Soon Teck and Soon Moh and his adopted children Soon Kim, Soon
Ting and Soon Kheng." One of the witnesses Tan Swee Tin, the high priest of the Leong San Si temple, who
did not know the family, infers from the tombstone that the two sons are the principal mourners and sons of
the deceased's own blood. The Chinese word used is "How Lan," and that has given some trouble. The in-
terpreter translated it "filial sons" and in evidence before this Court explained that he meant "dutiful sons."
Another witness Chua Hoo Cho, an undertaker, says the words mean "male mourners" and finally summed
up his opinion in the words-
"I am not prepared to say that 'how lan' in this context means actual sons even though it is followed by reference to
adopted sons."

The finding of Terrell J. is, I think, not quite consistent.


In one place he says-
"The conclusion I draw from the above facts is that Seow Soon Teck was either a son legitimate or illegiti-
mate of Seow Swee Peng or an adopted son." and in another place he says:
"It appears to me that in its present context, and as adopted children are specifically referred to, 'how lan' can only
mean natural sons."

This latter inference commends itself to me in preference to the former, but if Terrell J. means the word "Nat-
ural" to be limited to its usual connotation of "illegitimate" I am not prepared to follow him the whole way in
this inference. The proper inference to
1933 2 MLJ 111 at 116
my mind is that 'howlan' must here mean 'sons', but that no definite inference can be drawn as to the legiti-
macy of the sons from the inscription alone.
There is however an indication from the position of the words that the two sons Soon Teck and Soon Moh
were superior in status to adopted sons, because their names are mentioned first and it would be strange to
give illegitimate sons the place of honour on a father's tombstone. It may be that this is discounted by the fact
that Soon Teck put up the memorial himself, but even then it must be remembered that this memorial has
stood for more than forty years, and has been the subject of family worship annually on all Souls' Day. More-
over it was admitted by one of the defendants, Tan Teck Chye, that Siow Eng the brother of Swee Peng
would share the responsibility for setting up the tombstone.
The next fact to be considered is the part taken by Soon Teck in the funeral of Swee Peng. Tan Swee Tin, as
I have said, infers from the tombstone that the two sons were the principal mourners, and as the name of
Soon Teck is first and he was the elder, it follows that he was the principal mourner.
Terrell J. finds-
"I also find that Seow Soon Teck was one of the principal mourners at the funeral."

But Tan Teck Chye, a defendant, admits


"I attended Swee Peng's funeral. Soon Teck was the principal mourner and others."

It appears therefore that Terrell J's finding does not go as far as the evidence. It is also admitted that Siow
Siang Eng, the brother of Swee Peng, was present at the funeral, and it is difficult to believe that if Soon
Teck who was then a lad of twenty was not fully accepted by the family as legitimate, Siang Eng would have
allowed him to be chief mourner.
But Soon Teck did more than attend the funeral as principal mourner. Swee Peng died in Siam. He had lived
long in Siam and Soon Teck had not been with him, but had been living in Singapore. But it was Soon Teck
who was deputed by the family to go to Siam to escort the body of Swee Peng from Siam to Singapore for
burial. It is to my mind highly improbable that if Soon Teck was illegitimate and had been living away from his
father for some time, he would have been chosen for this task. The other son, Soon Moh, was living at the
172

time of the funeral. It is also clear that Soon Teck lived in the family house in Singapore both before and after
his father's death. Tan Teck Chye admits this in his evidence.
"Afterwards Seow Swee Peng took him to Nankin Street for education. Then Soon Teck lived at Nankin Street. Nankin
Street was the family house."

and later,
"After Swee Peng's death I saw Boon Neo. I said to her 'Is your son still living in the family house?' She said
'Yes'. I did not ask her who was supporting her". I found it difficult to believe that Soon Teck would be al-
lowed to live in the family house after the death of Swee Peng, when his mother, Boon Neo was (as Tan
Teck Chye seems here to admit) living elsewhere, unless he was a recognised member of the family; and it
seemed to me that this fact alone was almost enough to dispose of the suggestion that Soon Teck was the
offspring of a casual union with a mistress. But the further evidence called in this Court has confirmed me in
this view. Mr. S. Q. Wong, a well known Straits-born Chinese who has lived in the Colony all his life, stated
that from the fact that Soon Teck lived in the family house both before and after the death of Swee Peng, in
his opinion the Court might reasonably infer that Swee Peng did marry Boon Neo as a tsip. And the other
expert witness Mr. W. G. Stirling agreed with him. I think however that the evidence of these two gentlemen
goes no further than to state that by Chinese custom an illegitimate son is not usually accepted into the fami-
ly house after the death of his father and I understood Mr. Stirling to mean that though such was the general
rule, it might be broken by reason of exceptional circumstances and he instanced poverty. No such excep-
tional circumstances however have been shown to exist in this case. But it is denied that Boon Neo was a
tsip.
In Cheang Thye Phin v Tan Ah Loy (1920) AC 369 the Privy Council have recognised that a Chinaman may
have secondary wives, tsips, whose children are legitimate, and held that no ceremony was necessary to
constitute such a marriage. In Yeap Cheah Neo v Ong Cheng Neo LR 6 PC 381 Sir Montagu Smith in deliv-
ering the judgment of the Privy Council said:
"It is said that, with the Chinese, the difference between the social status of a wife and that of a concubine, and in the
position and treatment of legitimate and illegitimate children is so slight, that what is termed reputation affords no satis-
factory ground for presuming a marriage. But if this be so, which, however, is not very clearly established, their Lord-
ships see no reason, in the absence of satisfactory evidence to the contrary, why the ostensible relations of the parties
should not be referred to a legitimate and correct connection, rather than to an illegitimate and, to say the least, a less
correct one."

The evidence of cohabitation is meagre, But in her affidavit of 17th March 1932 Tan Poey Neo whose evi-
dence Terrell J. found so unsatisfactory that he rejected it in toto, said
1933 2 MLJ 111 at 117
"The said Boon Neo then adopted a baby boy who was named Seow Soon Teck."

and also
"The said Seow Swee Peng was not married, and he had no secondary wife but he kept a mistress known as
Boon Neo..." The statement that Seow Soon Teck was an adopted son is, as I have attempted to show, un-
true, but Tan Poey Neo is a defendant, her interests conflict with the Plaintiff's and I think that it may be legit-
imately inferred from these statements, regarded as admissions, that Swee Peng and Boon Neo were living
together when Soon Teck was a baby boy. Tan Poey Neo is now, as she says, 74 years of age, and she is
speaking of the time of her marriage, so that these statements are probably referable to the early years of
the decade beginning in 1870.
There is also the evidence of Soh Lye Neo, a disinterested witness, that Swee Peng lived with Boon Neo and
Soon Teck and a maidservant in Bencoolen Street. This must have been about 1879. Terrell J. appears to
accept this evidence, although he refuses to draw the inference of marriage from it. And though the dates are
very uncertain, this cohabitation in Bencoolen Street must have been several years after the cohabitation
referred to in Tan Poey Neo's affidavit.
173

About two years later Swee Peng went to live in Bangkok. There is evidence that Boon Neo went to Bangkok
and predeceased him there, and there is evidence that she stayed in Singapore and survived him. It is im-
possible to say which is the truth, and in the result the evidence must be left negative on this point.
That is all the evidence of cohabitation, and it is admittedly meagre, but to my mind it does indicate that Boon
Neo's was a more permanent relationship to Swee Peng than that of a casual mistress. But if this evidence is
taken together with the evidence of the tombstone that Soon Teck was the principal mourner at the funeral of
Swee Peng, that he went alone to Bangkok to fetch the body, and that he was taken to live in the family
house after the death, I think that there is a very strong inference that Soon Teck was regarded by the family
as legitimate, and consequently there is also an equally strong inference that his mother Boon Neo was the
lawful wife of Swee Peng.
I am very strongly confirmed in this view by the affidavit of the defendant Chua Hay Luan sworn on 10th
March 1932. The fund now claimed only recently came into existence. Seow Im Swee's will had provided for
a piece of land to be reserved as a family burial ground. The land was acquired by the Crown in 1931 and
the purchase price $17,000 was paid into Court. The present Trustees then got themselves appointed. The
family was first advised that there was an intestacy as regards this sum of money, and that it was divisible
among the next of kin of Seow Im Swee. The next of kin of Seow Im Swee, apart from Seow Beng Hay the
present Plaintiff, woud be Tan Poey Neo, representing the share of Siang Eng deceased, and Chua Hay Lu-
an and Chua Lek Luan representing the share of Seow San Neo the daughter of Im Swee.
In this affidavit Chua Hay Luan is claiming a share in the fund on the basis of an intestacy, as is clear from
paragraph 7.
"I say that the sum of $17,000 derived from the sale of land...is an intestacy and the said sum should be dis-
tributed among the next of kin of the said Seow Im Swee deceased" In paragraph 4 of the affidavit she says.-
"Seow Swee Peng died living a son Seow Soon Teck" and this affidavit is re-inforced by another sworn on
the same day in which she repeated this statement and also attached a pedigree in which Seow Swee Peng
is marked as "died leaving issue." On the strength of this affidavit she was called by the plaintiff but the evi-
dence she gave in the case was quite different, and the divergence is explained by the change of attitude of
the family. No objection was raised to the plaintiff's claim as long as he was content with a third share on an
intestacy; but the answer to his claim to the whole fund as residue was the allegation of illegitimacy. The affi-
davit of Chua Hay Luan throughout assumes the legitimacy of Soon Teck, and the right of his issue to share
on an intestacy.
A further argument was addressed to us on the facts. The defendant Tan Teck Chye, one of the Trustees,
has already paid $5,050 to his sister Tan Poey Neo. It was argued that this payment represented a one-third
share of the $17,000, less a deduction for costs. But if (as the family alleges) the plaintiff is illegitimate the
sum of $17,000 falls to be divided into two equals parts, one to go to Tan Poey Neo and one to Seow Sam
Neo's daughters. Tan Teck Chye explains the payment.-
"I did that because I was sure that there were no others except Tan Poey Neo and two daughters of Seow Sam Neo."

But if this were the true reason, it is argued, he should have divided the sum of $17,000 into two parts, and
this leaves the sum of $5,050 without an explanation, for if it was an advance of her share, it would more
probably have been $5,000 a round sum.
But I am unable to attach any weight to this argument. The explanation is that she was paid $5,050 because
that is the sum she asked for, and there is no explanation as to why the sum of $1,850 was retained for
costs.
In one case I think that Terrell J. has drawn an inference adverse to the plaintiff without justification. He says;
1933 2 MLJ 111 at 118
"I also find that Seow Swee Peng...although he was the eldest son, the Sin Chew tablets including his own
are kept in the house of his younger brother's family (sc. Siang Eng). The latter fact, which is not disputed, is
an indication, though also not conclusive that the eldest branch had no descendants." This inference clearly
influenced Terrell J's judgment, but I think it is founded on a misapprehension, because Swee Peng died in
Siam and at the time Soon Teck, a boy of twenty, was living with his uncle in the family house in Nankin
174

Street, and, as I have said, he continued after the death of Swee Peng to live in the family house. He had no
house of his own and there was therefore no other possible place for these Sin Chew tablets to go. It is true
that the plaintiff gives a different explanation when he says that the Sin Chew tablets were not put in Soon
Teck's house "because there was no place to pray and he had no money for prayers." But he is obviously
speaking of things which happened before he was born, and in suggesting an explanation which may have
been true later when Soon Teck went to live in a house on the burial ground, but which can have no relation
to the undisputed facts.
On the whole case therefore I conclude that Soon Teck was the legitimate son of Swee Peng, and that he
and his son the present plaintiff have always been treated as legitimate by the family until the commence-
ment of the present proceedings, and I think the marriage of Swee Peng and Boon Neo, even though specif-
ic evidence of it has not survived, may be fairly inferred from the circumstances. Evidence that goes to show
Soon Teck's legitimacy is equally cogent, in my opinion, to show the marriage between Boon Neo and Swee
Peng. If the conflicting oral evidence is discarded, and I understand that Terrell J. did discard it, all the evi-
dence that is left points to the legitimacy of Soon Teck. It may not be very strong, but in the circumstances I
think it is sufficient.
At the best however Boon Neo was only a tsip, and there is no evidence that Swee Peng ever married a tsai.
No point was made of this in argument, and I think it is a fair inference from the case of Woon Kai Chiang v
Yeo Pak Yee (1926) SSLR 27 that a Chinese may contract a legal union with a tsip without marrying a tsai,
for although Brown J. says in his judgment, at p. 47.
"I should perhaps make it clear that I have assumed throughout this judgment that a Chinese cannot take a
secondary wife before he marries a principal wife. If it were possible to hold that he could do so, there would
be no difficulty in view of the decision of the Privy Council in Cheang Thye Phin v Tan Ah Loy (1920) AC 369
in drawing the presumption in the present case..." and Reay J. agrees with him, they nevertheless held that
the union between Woon Hong On and Chan Yat Quan was a valid tsip marriage, and this marriage must
have taken place some seven years before the tsai marriage of Yeo Pok Yee.
I think therefore that this appeal should be allowed.
I agree with the order for costs proposed by Murison C. J.

WHITLEY, J

I have had an opportunity of reading the judgment of the learned Chief Justice with which I am in entire
agreement. I have little to add. Like him I at first felt considerable doubt about the case but I now feel satis-
fied that the cumulative effect of the admitted circumstances which he has analysed in detail is more con-
sistent with the legitimacy than with the illegitimacy of Seow Soon Teck. I agree with the learned trial Judge
that it is unsafe to place much reliance upon oral evidence, necessarily mostly hearsay, as to events which
happened some fifty years ago. Even when not hearsay the evidence consists of the recollections of persons
who were of very tender age at the time of the events which they are trying to recollect. Such circumstantial
evidence as is available accordingly affords much more reliable material upon which to solve the difficult
question which the Court has to decide in this case.
The onus is upon the Plaintiff but in considering whether the evidence which he is able to adduce is sufficient
to discharge that onus it has to be borne in mind as Lord Erskine observed in Vowles v Young 13 Vesey Jun-
ior 140, that in cases of pedigree remote and slight evidence must be allowed effect. That was a case in
which the only point was a question of legitimacy and the following passage from his judgment at page, 143
lays down the principles upon which the Court should act:-

"Courts of Law are obliged in cases of this kind to depart from the ordinary rules of evidence; as it would be impossible
to establish descents according to the strict rules, by which contracts are established and subjects of property regulat-
ed; requiring the facts from the mouth of the witness, who has the knowledge of them. In cases of pedigree therefore
recourse is had to a secondary sort of evidence: the best the nature of the subject will admit; establishing the descent
from the only sources, that can be had."

and again at page 145:-


175

"The evidence, especially in the case of obscure families, must be very slight; for, if the party is legitimate, the question
is never made."

Those observations would seem to apply with at least equal force to a Chinese family in Singapore.
Upon the whole I feel that the evidence more especially the circumstantial evidence is sufficient to establish
the Plaintiff's case and I would allow the appeal.
1933 2 MLJ 111 at 119
I agree with the proposed order as to costs.

Appeal allowed.

Solicitor for Appellant- Johannes & Sammy

Solicitor for Respondent- Kow Soon Kim


176

Malayan Law Journal Reports/1933/Volume 2/THE BRITISH MALAYA TRUSTEE & EXECUTOR CO, LTD
THE PRESENT TRUSTEES OF THE WILL OF KHOO CHENG TEOW DECEASED) v KHOO SENG SENG
(THE ADMINISTRATOR OF THE ESTATE OF KHOO KOK OON DECEASED); IN THE MATTER OF
CERTAIN PARTS OF THE ESTATE OF KHOO CHENG TEOW DEVISED BY HIS WILL DATED THE 19TH
DAY OF DECEMBER 1895 AND IN THE MATTER OF THE CIVIL PROCEDURE CODE SECTION 68 (8) -
[1933] 2 MLJ 119 - 30 December 1932

3 pages

[1933] 2 MLJ 119

THE BRITISH MALAYA TRUSTEE & EXECUTOR CO, LTD THE PRESENT TRUSTEES
OF THE WILL OF KHOO CHENG TEOW DECEASED) v KHOO SENG SENG (THE AD-
MINISTRATOR OF THE ESTATE OF KHOO KOK OON DECEASED); IN THE MATTER
OF CERTAIN PARTS OF THE ESTATE OF KHOO CHENG TEOW DEVISED BY HIS
WILL DATED THE 19TH DAY OF DECEMBER 1895 AND IN THE MATTER OF THE
CIVIL PROCEDURE CODE SECTION 68 (8)
(ORIGINAL CIVIL JURISDICTION) SINGAPORE
TERRELL J
ORIGINATING SUMMONS NO 187 OF 1932
30 December 1932

Trust -- devise -- Sin Chew -- superstitious uses

Gifts for Sin Chew purposes are neither void as being gifts for superstitious uses nor void under the law of
the Straits Settlements. Siow Ah Yen v. Siu Ah Chit, 1 Quarterly Notes No. 4 applied. Bourne v Keane (1919)
AC 815 distinguished.

An Originating Summons asking for the determination of certain questions arising out of the Will of Khoo
Cheng Teow deceased, heard by Terrell, J.
The material question for determination arose under clause 5 of the Will and concerned the devise of No. 56
Church Street Singapore for purposes of maintaining Sin Chew ceremonies. The material parts of Will are
set out in the Judgment.

Charlesworth for the plaintiffs.

Burke for person appointed to represent residuary legatees.

Withers Payne for Khoo Guan Hoe representing next of kin.

TERRELL, J

The Originating Summons concerned two properties No. 56 Church Street and No. 241 Teluk Ayer Street,
Singapore, which passed respectively under clauses 5 and 4 of the Will of Khoo Cheng Teow and are the
only properties now remaining subject to the trusts of the Will.
As regards No. 241 Teluk Ayer Street there is no particular difficulty. Under Clause 4 of the Will the nett rents
were to be divided during the lives of the testator's sons and adopted sons among such of his sons adopted
177

sons as should become literate in China or a graduate of an English, Scottish or Irish University. None of the
testator's sons or adopted sons has so qualified and the only survivors are Khoo Kok Poh and Khoo Kok
Keat. The latter by consent dated the 17th October 1932 and filed in these proceedings has consented to
forego his rights to qualify under that clause, and Khoo Kok Poh has likewise foregone his rights by his affi-
davit filed herein on the 13th October 1932 and by the consent of his counsel at the Bar. The objects of
clause 4 have accordingly come to an end and according to a well accepted rule of law the subject matter of
the devise is caught by the residuary gift. I direct, therefore, that this property be sold with the approbation of
the Court and the proceeds distributed as if it were part of the residue. Any of the beneficiaries are to have
liberty to bid. The trustees will be entitled to a commission of 2 ½ (two and a half) per cent which I allow to
them by virtue of Section 43 of the Trustees Ordinance 1929.
As regards No. 56 Church Street different considerations arise. The devise is "during the lives of Her Majesty
Queen Victoria and her descendants now in being and during the lives and life of the survivors and survivor
of them and during the period of twentyone years after the death of such survivor" to let the premises etc.
and "to apply the balance of such rents from time to time in the performance of the religious ceremonies ac-
cording to the custom of the Chinese called Sin Chew to perpetuate my memory".
It is clear that the devise does not offend the Rule against perpetuities. If the devise is bad it can only be be-
cause the object of the devise is the performance of ceremonies which are to be deemed to be superstitious
and prohibited by law on the ground of public policy or illegality.
The only reported case on the subject is a Malacca case Siow Ah Yen v. Siu Ah Chit decided by McCabe
Reay, J. on May 4th 1927 and reported in No. 4 of Vol. I of the Quarterly Notes of Cases decided in the Su-
preme Court of the Straits Settlements. The report is very short and the learned Judge held that a devise for
21 years for the object inter alia of "the upkeep of the testator's death tablet and the sacrificial offerings to his
soul" did not offend the rule against perpetuities and was not against public policy as a superstitious use. The
learned judge professed to be following the ruling in Yeap Cheah Neo v Ong Cheng Neo LR 6 PC page 381.
The decision in the last named case was that a gift for Sin Chew purposes was bad as offending the rule
against perpetuities and as not being a charity. It cannot be cited as an authority for anything else.
1933 2 MLJ 119 at 120
The question of gifts for Sin Chew purposes has often arisen but in all the other cases to which I have been
referred the gift failed as being contrary to the rule against perpetuities or on the ground of uncertainty, and
the question as to whether it was a superstitious use was never the basis of the decision. For instance, in the
case of Cheng Thye Phin v. Lim Ah Cheng and others, Originating Summons No. 361 of 1912 (Penang), un-
reported, a certain part of the trust fund was bequeathed by clause 12 of the Will to the trustees to be ex-
pended, inter alia, in providing for and performing the proper yearly ceremonies according to Chinese custom
for my deceased ancestors myself and my wives etc." The judgment of Fisher, J. dated the 14th June 1914
declared "that the provision contained in clause 12 of the said Will for the performance of yearly ceremo-
nies...will upon the true construction of the said Will cease and determine upon the happening of the period
of distribution under clause 11 of the said Will and that such provision is not either for uncertainty or as tend-
ing to a perpetuity". If this decision had stood it might have been regarded as an authority that the gift for
ceremonies was not bad as a superstitious use. The matter however, went to appeal and the formal order of
the Court of Appeal declared that there was an intestacy with regard to the income of the two shares be-
queathed for ceremonies. From the written judgments it is clear that the gift was held to be void on the
ground of uncertainty. It is to be remembered that the gift was not attacked on the ground that it was contrary
to public policy as being a gift for superstitious purposes, though both Sir William Hyndman Jones, C.J. and
Sproule, J. point out that in the case of a gift of this kind the Court was under no obligation to assist the testa-
tor's intention by approving a scheme cy-pres. This is in accordance with a well known principle of the Court
of Chancery which will not approve a cy-près scheme except when the object of the gift is charitable and a
gift for Sin Chew purposes has been held not to be charitable (see Choa Choon Neo v. Spottiswoode,
Wood's Or. Cases Appendix at page 6, and Yeap Cheah Neo v Ong Cheng Neo LR VI PC at page 396).
Then again in the case of Originating Summons No. 140 of 1930 (Singapore), in the matter of the Trusts of
Wan Eng Kiat deceased (unreported) Sir William Murison, C.J. held that an ultimate devise in perpetuity of
certain houses for Sin Chew purposes was void for remoteness. The question whether the gift was void as
being a superstitious use was not directly decided, as in that case the gift offended the perpetuity rule. On
178

the question whether the gift was charitable the learned Chief Justice felt himself bound by the decision in
Yeap Cheah Neo v. Ong Cheng Neo cited above.
It was indeed argued in O.S. 140 of 1930 re Wan Eng Kiat deceased that as the rule that Roman Catholic
Masses for the dead were not charitable was based on West v Shuttleworth 2 My & K page 684, and as this
decision had been overruled by Bourne v Keane (1919) AC page 815, a gift for private Masses must now be
treated as a good charitable gift, and that on this principle a gift for Sin Chew purposes must likewise be
treated as a good charitable gift. This argument presupposes two things-(a) that Bourne v. Keane decided
that a gift for Masses was a good charitable gift, and (b) that Sin Chew ceremonies stand on the same foot-
ing as the Sacrament of the Mass. On examination it will be found that neither supposition can be supported.
On page 825 of the report of Bourne v. Keane counsel for the appellant admitted that the question whether a
gift for Masses in England was a good charitable gift had never arisen in England because hitherto these
gifts had been treated as illegal and there could not be a charitable gift for an illegal purpose, and this posi-
tion is recognised in the speech of Lord Buckmaster at page 863.
It may further be remarked that in Bourne v. Keane no question of a perpetuity arose. It was therefore quite
unnecessary for the House of Lords to decide whether the gift was taken out of the perpetuity rule by being a
gift for a charitable purpose. It is true that in Ireland (O'Hanlon v Logue IR 1906 1 Ch page 247) a gift for
Masses for the dead has been held to be a good charitable gift, but it had never been so held in England be-
fore the case of Bourne v. Keane and it was certainly not so decided in that case.
As regards the second supposition, it will I think be found on examination that there is an important distinc-
tion between a gift for Sin Chew purposes and a Mass for the dead. It is unnecessary to investigate the na-
ture of the respective ceremonies in detail. The nature of the Sin Chew ceremonies is fully described by Sir
Benson Maxwell in Choa Choon Neo v. Spottiswoode, Woods' Or. Cases Appendix at pages 4,5 and 6. He
concludes with the following words:

"In the case before me the devise is plainly not charitable; it has not any charitable object whatever whether general or
special in the sense of a benefit to any living being. Its object is solely the benefit of the testator himself, and although
the descendants are supposed incidentally to derive from the performance of the Sin Chew ceremony the advantage of
pleasing God and escaping the danger of being haunted, these advantages are obviously not the object of the testator,
nor, if they were, would they be of such a character as to bring the devise within the designation of charitable, as used
in our Courts in reference to such objects."
1933 2 MLJ 119 at 121

The Sacrament of the Mass, however, though bearing certain superficial resemblances to the Sin Chew cer-
emonies, has certain essential characteristics which sufficiently differentiate the two ceremonies. Its exact
nature was ascertained by evidence in the Irish case of Attorney-General v Delaney IR 10 CL 104, and the
statement in that case was accepted by counsel on both sides in Bourne v Keane (1919) AC page 815, as
being correct. The distinctive nature of the Sacrament of the Mass is well summarised in the judgment of
Holmes, L.J. in the case of O'Hanlon v Logue IR (1906) 1 Ch at page 286 :
"What we can determine with certainty is that it is part of the creed of the most ancient Church in Western Christendom,
of which the testatrix was a member; that the Mass is a true sacrifice offered to God by the priest in the name of the
Church whose minister he is; that every Mass, whether public or private. is believed to bring divine blessing to the
world, and that all the faithful present or absent, alive or dead, participate in those blessings".

It will be seen, therefore, that whereas the Sin Chew ceremonies are only intended to benefit the testator
himself, or the particular deceased persons for whom the ceremonies are performed, the Sacrament of the
Mass is for the benefit of all the members of the Catholic Church past or present.
To summarise the results of the above authorities, I find

(1) that the rule as to perpetuities applies to the Straits Settlements.


(2) that a gift for Sin Chew ceremonies is not a charitable gift and that if it offends the rule against
perpetuities such gift will be held void;
(3) that in England a gift for Masses for the dead is not void as a superstitious use;
179

(4) that it has never yet been decided in England that a gift for Masses for the dead is a good char-
itable gift;
(5) that even if it were to be so decided, that would be no reason for holding that a gift for Sin
Chew purposes is charitable. as the characteristics of the two ceremonies are essentially dif-
ferent;
(6) that there is nothing inconsistent between the Privy Council decision of Yeap Cheah Neo v
Ong Cheng Neo LR VI PC page 396, and the House of Lords decision in Bourne v Keane
(1919) AC page 815.
It remains to consider whether under the law of the Straits Settlements a gift for Sin Chew purposes is void
as being a gift for a superstitious use.
In this connection a dictum contained in the speech of Lord Buckmaster in Bourne v Keane (1919) AC page
863 is singularly appropriate. He says:
"In the present case no general charitable intention is disclosed, the gift is either void or it passes to the persons and
for the purposes defined. There is therefore no equity affecting the gift: if void it must be so by common law or statute."

Now as regards the law to be applied in the Colony there have been various decisions of authority. The posi-
tion is summed up in the following passage from the judgment of the Privy Council in Khoo Hooi Leong v
Khoo Chong Yeok (1930) AC at page 355 :
"The modifications of the law of England which obtain in the Colony in the application of that law to the various alien
races established there, arises from the necessity of preventing the injustice or oppression which would ensue if that
law were applied to alien races unmodified. That was the view expressed by Sir Peter Maxwell C.J. in Choa Choon
Neo v Spottiswoode 1 Kyshe 216 221; and this Board, in Yeap Cheah Neo v Ong Cheng Neo LR 6 PC 381 396, stat-
ed that in Sir Peter Maxwell's judgment the rules of English law, and the degree in which, in cases of this kind, regard
should be had to the habits and usages of the various people residing in the Colony are correctly stated."

As regards statute law, there has never been any ordinance in the Colony declaring Sin Chew ceremonies
illegal. Nor is there any English statute relating to the subject which can be treated as having been imported
into the Colony under the Charters. Before Bourne v. Keane was decided it might indeed have been held that
certain religious ceremonies were to be deemed illegal because of the Act of 23 Henry VIII c. 10 and the Act
of 1 Ed. VI c. 14 (the Chantries Act). It is also true that by the Act of Uniformity, 1 Eliz. c. 2 the celebration of
the Mass was rendered illegal and continued so in England until the Act of 31 Geo. III c. 32 and the Catholic
Emancipation Acts of 1829 and 1832. It has already been decided that the Acts of Henry VIII and Ed. VI are
not law here (Choa Choon Neo v. Spottiswoode, Woods' Or Cases Appendix page 8) and the same reason-
ing would apply to the Act of Uniformity. In any case the Act of Henry VIII was repealed by the Mortmain and
Charitable Uses Act of 1888 and, as stated above, the Act of Uniformity has also been rendered inoperative.
As regards the Chantries Act of Edward VI the decision in Bourne v. Keane shows that this act did not itself
make Masses illegal or provide that property might not thereafter be given for the purpose of procuring
Masses to be said or sung. It merely confiscated property then held for such or similar purposes (see pages
856 and 857 of the report). It is also to be observed that the statutes above referred to are penal statutes and
if they affected anyone their operation must be limited to the members of the Catholic Church. There can be
no possible ground for extending the operation of these statutes to the case of religious ceremonies which
had never been practised in England
1933 2 MLJ 119 at 122
and which therefore cannot have been in the contemplation of the legislatures by which these Acts were
passed. I have no hesitation, therefore, in finding that there is no statute law which rendered the performance
of Sin Chew ceremonies superstitious or void.
As regards the Common Law, it is pointed out by Lord Buckmaster in Bourne v. Keaneat page 863 that it
cannot be successfully contended that a gift to provide Masses for the souls of the dead was at all times con-
trary to the common law. He adds: "The common law of Ireland does not differ from the common law of Eng-
land and Palles, C.B. in a judgment in the case of O'Hanlon v Logue IR (1906) 1 Ch page 247, showed with
great distinctness that in Ireland such a gift is good." If by the common law of England Masses for the dead
were not superstitious or void, there can again be no possible reason for coming to a different conclusion in
the case of gifts for Sin Chew purposes.
180

It is to be observed that in the case of Choa Choon Neo v. Spottiswoode, Woods' Or Cases Appendix, Sir
Peter Maxwell makes it perfectly clear that the only ground on which he held that the bequests in that case
were void was because they offended the rule against perpetuities and were not charitable. On page 8 he
says "On this ground alone, and not because the law condemns as unsound the theological dogma which
such a legacy implies...I should consider a bequest for masses for departed souls void." From these words it
may be inferred that Sir Peter Maxwell would have decided in favour of the gift if it had not offended the rule
against perpetuities.
I have no doubt, therefore, that gifts for Sin Chew purposes are neither superstitious nor void under the law
of the Straits Settlements, and it is satisfactory to note that in the countries upon which England has con-
ferred the boon of her common law, gifts for Masses for the repose of the souls of the donor or of any other
person are held not to be gifts for superstitious uses or void at law.
In the report of Bourne v. Keane Lord Atkinson at page 882 shows that it has been so held in the case of Ire-
land (O'Hanlon v Logue IR (1906), 1 Ch page 247), in the case of Canada (Elmsley v Madden 18 Grant 386),
in the case of New Zealand (Carrigan v Redwood 30 NZLR page 244), in the case of Australia (Nelan v
Downes 23 CLR 546), and in the case of the U.S.A. (Holland v Alcock 108 NY page 312 and in re Schouler
134 Mass page 426) . As regards the Sacrament of the Mass therefore a consistent opinion in favour of the
validity of gifts for such purposes has been held by Courts of the highest authority throughout the British Em-
pire and the United States of America, and it is fitting and proper that the same validity should be accorded to
gifts for the performance of ceremonies which are an essential feature of the religious rites of the Chinese
and which have been observed by them for countless generations before the present Chinese inhabitants of
the Straits Settlements sought the protection of the laws under which they now live.
In the case of No. 56 Church Street, therefore, the trust must continue in accordance with the terms of the
Will until the period of distribution arrives.
The costs of all parties must be taxed as between solicitor and client and paid out of the proceeds of sale of
No. 241 Teluk Ayer Street.

Order accordingly.

Solicitor for the plaintiffs- Allen & Gledhill

Solicitors for person appointed to represent residing legaters- John G Campbell & Co.

Solicitor for Khoo Guan Hoe- Drew & Napier