- 原告和其他人是一块农业地的共同持有人。原告拥有2/3的undivided share(不可分割的地段)，另一个地主则拥有1/3的地段。期间有第三者(亲戚)霸占了该土地长达25年之久，对方从来都没有支付过任何租金。
- This is an appeal by the appellant (the plaintiff) against the decision of the learned Judicial Commissioner who had dismissed with costs the appellant’s originating summons 24 NCVC-536- 03/2013 (the said OS) for an order inter-alia, to compel the respondents (the defendants) to sell their 1/3 share of the property, (the subject matter of the application) to the appellant.
- We had decided unanimously to dismiss the appeal with costs. Our reasons appear below.
- For the purpose of this judgment the appellants and the respondents will be referred to as plaintiff and defendants respectively.
- The plaintiff is a family company and the registered owner of a 2/3 undivided share in Lot 6, Seksyen 87A, Bandar Kuala Lumpur (the said property). As stated earlier the said property is the subject matter of the plaintiff’s application in the High Court.
- Koh Heng Jin @ Koh Heng Leong, is the principal contributory and Managing Director of the plaintiff company.
- The defendants are the administrators of the Estate of Koh Hing @ Koh Heng Teik vide grant of Letter of Administration dated 3.12.1977. Koh Hing @ Koh Heng Teik (deceased) is Koh Heng Jin’s brother.
- The original shareholding of the said property was as follows:-
Koh Heng Jin Holdings Sdn Bhd (plaintif) – 1/3 share
Koh Hooi Chew Realty Sdn Bhd – 1/3 share
Koh Hing @ Koh Heng Teik – 1/3 share
- In October 2009 Koh Hooi Chew Realty Sdn Bhd was wound-up and the liquidators sold Koh Hooi Chew Realty Sdn Bhd’s 1/3 share in the said property by way of public tender. The plaintif was successful in its bid to purchase Kooi Hooi Chew Realty Sdn Bhd’s 1/3 share at the purchase price of RM 1,666,670.00 based on the valuation by the liquidators valuer M/s Rahim & Co. The plaintiff is presently the registered proprietor of 2/3 undivided share of the said property.
- The remaining 1/3 undivided share in the said property forms part of the estate of the deceased. The said 1/3 undivided share is being held by the defendants (as administrators) on behalf of the 7 beneficiaries of the estate of the deceased (including the 1st defendant).
- It is not disputed that the said property is currently occupied by one, Koh Heng Huat without rental being collected for the last 25 years. The said Koh Heng Huat is the brother of Koh Heng Jin @ Koh Heng Leong and is the uncle of the 6 beneficiaries named in the estate of the deceased.
- On 11.12.2012, the plaintiff as the majority 2/3 undivided share owner of the said property sent a notice to the said Koh Heng Huat stating it’s intention to impose rental of RM30,000 per month (RM20,000 for the plaintiff’s 2/3 share) with effect from January 2013 failing which the said Koh Heng Huat was to vacate the property. The said Koh Heng Huat refused to enter into a tenancy agreement with the plaintiff or to vacate the said property with reason that the plaintiff has not obtained consent from the other 1/3 owner i.e. the defendants or the beneficiaries. The plaintiff through their solicitors then wrote to the defendants seeking their consent to create a tenancy and to impose rental on the said Koh Heng Huat, alternatively offering to purchase the defendants’ 1/3 undivided share in the said property but the defendants did not respond to the letter. As the defendants failed to respond within the stipulated time, the plaintiff filed the said OS on 5.3.2013.
The said OS
- The plaintiff’s application, by way of OS is for the following orders:-
“(i) that the 1/3 share of Lot 6 Seksyen 87A, Bandar Kuala Lumpur held by the Defendants be sold to the Plaintiff;
(ii) the purchase price shall be RM1,666,670.00;
(iii) the Defendants shall execute and forward the Sale and Purchase Agreement and the Memorandum of Transfer within 21 days of this Order to the Plaintiff’s solicitor failing which the Senior Assistant Registrar of this Honourable Court be authorized to execute the Sale and Purchase Agreement and all other relevant documents necessary to complete the sale of the 1/3 share on behalf of the Defendants; and
(iv) the Defendants shall forward the Letter of Administration of the Estate of KOH HING @ KOH HENG TEIK (deceased) and all other documents to effect the sale within 21 days of this Order to the Plaintiff’s solicitors;
or “Alternatively, the plaintiff sought, inter-alia, these orders-
(i) that the 1/3 of the market price of the said property be determined by Jones Lang Wootton Malaysia (registered valuers) and the valuation as determined shall bind both the Plaintiff and the defendant; and
(ii) the defendants shall execute the Sale and Purchase Agreement and the Memorandum of Transfer within 21 days from date of receipt of the valuation report from the Valuer to the Plaintiff’s solicitor failing which the Senior Assistant Registrar of this Honourable Court be authorized to execute the Sale and Purchase Agreement and all other relevant documents necessary to complete the sale of the 1/3 share on behalf of the Defendants;
(iii) the Defendants shall forward the Letter of Administration of the Estate of KOH HING @ KOH HENG TEIK (deceased) and all other documents to effect the sale within 21 days of from date of receipt of the valuation report from the Valuer;
(iv) the fees and expenses for the appointment of the Valuer shall be borne equally between the Plaintiff and the Defendant;”
- The grounds of the plaintiff’s application are stated to be as follows:-
“(i) the Plaintiff as the 2/3 registered owner of the undivided share in the said property is unable to take control and/or manage the property without the consent of the Defendants being the 1/3 owner;
(ii) the Defendants being Administrators of the Estate have no interest in land but merely as to proceeds of sale of their portion;
(iii) the Plaintiff’s offer to purchase the Defendants’ portion at the market price would fulfil the need of the Defendants to conduct the affairs of the Estate in a fair and judicious manner and to end the Plaintiff’s predicament in this property;
(iv) the land cannot be sub-divided;
(v) the solution offered by the Plaintiff is both just and expedient.”
- The plaintiff purports to make this application under Section 25 read with para 3 of the Schedule (Additional Powers of the High Court) of the Court of Judicature Act 1964 (CJA) and Section 145 and 417 of the National Land Code 1965 (NLC).
- The plaintiff also cited Order 31 Rule 1 of the Rules of the High Court 2012 (RHC) and Section 60(4) of the Probate and Administration Act 1959 in the intitulement of the OS.
The Relationship between the Defendants (as administrators), the Beneficiaries and the Plaintiff
- We would like to state at the outset that we agreed with the submission of learned counsel for the defendants that the plaintiff’s said OS is strictly between the plaintiff and the defendants as co-owners, (not as administrators), therefore the question of whether the defendants have discharged their duties as administrators of the deceased’s estate under the Probate and Administration Act 1959 (the said Act) in particular under Section 68 of the said Act is not relevant to the issue at hand. 被告只是遗产执行人，至于被告有没有有效的执行死者的遗产，原告不得过问，因为原告不是死者的继承人。原告应该告1/3的地主而不是遗产执行人。
- Similarly whether or not the defendants have the requisite power to purchase immoveable property under Section 60 of the said Act is also not relevant to the issue at hand. Whether or not the defendants have discharged their duties as administrators of the deceased’s estate as required of them under the said Act or whether they have acted in breach of their duties as administrators by failing to administer the deceased’s estate speedily and diligently as alleged by the plaintiff, is strictly a matter between the defendants and the beneficiaries of the estate of the deceased.
- The plaintiff is not a beneficiary of the estate of the deceased and has no vested interest in the latter. The plaintiff therefore has no right to interfere in the affairs of the defendants qua administrator and the beneficiaries and raise issues pertaining to the administration of the deceased’s estate.
- In the circumstances the plaintiff cannot invoke Section 60 and 68 of the said Act for the purpose of this application and we therefore agree with learned counsel for the defendants that the plaintiff’s submission on this issue ought to be disregarded.
Section 145 National Land Code
- The provisions relating to partition and the power to terminate the co-proprietorship of land vested in two or more persons is governed by Sections 140- 145 of the NLC. For our purpose the relevant section is Section145 of the NLC.
- Section 145 of the NLC confers power on the court to terminate a co-proprietorship in the two situations set out in Section145 (1) states as follows:
“Where, in the case of any land vested in co-proprietors:-
(a) any of the co-proprietors will neither join in, nor consent to the making of, an application for partition under this Chapter, or
(b) by reason of the operation of paragraph (f) of sub-section (1) of Section 136 (as applied by section 141), partition of the land between all of the co-proprietors is incapable of being approved under this Chapter,
the Court, subject to and in accordance with the provisions of any law for the time being in force relating to civil procedure, may, on the application of any of the co-proprietors, make such order as it may think just for the purpose of enabling the co-proprietorship to be terminated.
Section 136(1)(f) of the NLC stipulates the minimum area of any sub-divisional portion in the case of land subject to the category of agriculture or for agricultural purpose which shall be not less than two-fifths of a hectare and in any other case not less than the minimum area for land of the class or description in question as determined by the planning authority for the area in which the land is situated.
Section 141 of the NLC provides that no partition shall be approved by the State Director or the Land Administrator as the case may be unless the conditions specified in s. 136(1) of the NLC are mutatis mutandis satisfied.
- On this issue, it was the defendants’ submission that as the power of the court to terminate the co-proprietorship under Section 145 of the NLC only arises if any of the co-proprietors refuses join in or to consent to an application for partition, no such issue arises here as the plaintiff had never requested the defendants to consent to the partitioning of the property. The plaintiff did not adduce any evidence by way of correspondence between the parties or of any meeting or discussion to prove that such request for partition was made to the defendants. 原告如果要引用145条文申请取消共同拥有同一个地契，逼使被告卖掉他们的11/3，他必须先证明他曾经跟其他地主讨论有关土地分割事宜但是其他地主不给予同意或合作。
- We agreed with the submission of learned counsel for the defendants that the plaintiff’s reliance on s. 145 of the NLC to terminate the co- proprietorship is misconceived as:
(i) firstly, there is no evidence of any request by the plaintiff to the defendants for the said property to be partitioned let alone evidence of any refusal by the defendants to consent to the partition; and
(ii) secondly, there was also no evidence either by way of an affidavit or a letter from the State Director or the Land, as the case may be, or from the planning authority of the area in which the said property is situated confirming that the area of the proposed sub-divisional portion will be less than the minimum area prescribed under s. 136(1)(f) of the NLC.
- In the absence of any such evidence, the conditions under which the court can exercise its power to terminate the co-proprietorship under Section 145(1) of the NLC and to make consequential orders, inter-alia, that the said property be sold (Section 145(2) NLC) have not been satisfied.
Section 25(2) of the CJA read with paragraph 3 of the Schedule and Order 31 Rule 1 of the RHC
- In our view the main issue before the court is whether the court has the power to order the said property to be sold to the plaintiff under Section 25(2) of the CJA read with paragraph 3 of the Schedule and Order 31 Rule 1 of the RHC.
- Section 25 (2) of the CJA reads as follows:-
“Without prejudice to the generality of section (1) the High Court shall have additional powers set out in the schedule.”
Paragraph 3 of the Schedule stipulates as follows:-
“Partition of land. 3. Power to direct a sale instead of partition in any action for partition of land; and in any cause or matter relating to land, where it appears necessary or expedient, to order the land or any part thereof to be sold, and to give all necessary and consequential directions.”
- The plaintiff however referred to the phrase “and in any cause or matter relating to land” in paragraph 3 of the Schedule (the said paragraph 3) and argued that the phrase confers power on the court to order the sale of land in any cause or matter relating to land in any action apart from an action for partition of land. In other words, the power of the court to order such sale is not restricted only to any action for partition of land but also in any cause or matter relating to land, if the court deems it necessary or expedient to do so. The phrase in any cause or matter relating to land is a stand alone provision.
- Therefore even if the present case does not fall within the circumstances prescribed under Section 145 (1) of the NLC for the court to exercise its power under the said subsection to terminate the co-proprietorship and order the defendants share of the said property to be sold to the plaintiff, the court still have the power under the said paragraph 3 to make such order if the court finds it necessary or expedient to do so. As for the requirement under the proviso to Section 25(2) of the CJA, that the additional power under the schedule shall be exercised only in accordance with any written law or rules of court relating to the same, learned counsel for the plaintiff referred to O.31 r.1 of the RHC, as decided in Yong Hing Seong v Yong Teik Seong  6 MLJ 38, KK Kumaran v TS Sambanthanmurthi  3 MLJ 30 and Malayan Banking Berhad v Zahari bin Ahmad.
- Order 31 Rule 1 of the RHC is almost identical with the said paragraph 3 and reads thus:
“Where in any cause or matter relating to any immoveable property it appears necessary or expedient for the purpose of the cause or matter that the property or any part thereof should be sold, the court may order that property or part to be sold……”
- We agree that the phrase “in any cause or matter relating to land” in the said paragraph 3 confers power on the court to order the land or any part thereof to be sold, in actions other than for partition of land. However in our view the phrase “and in any cause or matter relating to land” in the said paragraph 3 and “in any cause or matter relating to immoveable property” in Order 31 Rule 1 of the RHC is not applicable in the present case as the said OS is not a cause or matter pertaining to property within the context of Order 31 Rule 1 (per Suriyadi J in Rubyna Kaur a/p Jasbir Singh a/l Harbajan Singh  6 MLJ 753).
- The said OS was filed pursuant to the refusal of the said Koh Heng Huat to accept the plaintiff’s proposal for the creation of a tenancy and the imposition of rental in the sum of the RM30,000, and the subsequent non-response of the defendants to the aforesaid proposal.
- Although the plaintiff’s prayer in the said OS is for an order that the defendants’ 1/3 undivided share in the said property be sold and transferred to the plaintiff under Section 25 of the CJA read together with the said paragraph 3 and Order 31 Rule 1 of the RHC, it can be seen from the exchange of letters between the parties and the said Koh Heng Huat that the real issue here is the issue of rental.
- In Staines v Staines (1886) Ch.D.177, an action was brought by the infant heir-at-law (by a next friend) of an intestate against the widow, who was the administratrix claiming accounts of the personal estate and of the rents and profits of the real estate received by the defendants. When the action came up for hearing the court was asked to make an order for sale of the real estate. It was held by North J that this was not “a cause or matter relating to real estate” within the meaning of the rule and that the court could not make an order for the sale of the real estate.”
Based on the aforesaid case a claim for rental and profits is not a “cause or matter relating to real estate”.
- Thus the plaintiff’s said OS which is essentially a claim for rental as evidenced by the exchange of letters, does not fall within the ambit of “any cause or matter relating to land (or immoveable property as it is worded in Order 31 Rule 1 of the RHC). In fact as submitted by learned counsel for the defendants the plaintiff here is in a worse position compared to Staines v Staines (supra) as the defendants here are not the party owing any rental to the plaintiff.
- The authorities cited by learned counsel for the plaintiff in support of the claim viz, KK Kumaran v TS Sambanthanmurthi (supra)  3 MLJ 309, Koh Boh Huat & 7 Ors v Tan Niam Neo & Anor  1 LNS 177, Tan Kok Chiang v Tan Yaw Ti & Anor  1 LNS 711, Yong Hin Seong & Anor v Yong Teik Seong (supra), Setiawah @ Siti Hawa Abd Talib & 7 Ors v Haji Kamaruddin Haji Abd Talib  1 LNS 41, can be distinguished as in the main disputes is pertaining to the land itself. In the case of Setiawah @ Siti Hawa Abd Talib (supra) it was not disputed that the land could not be partitioned. Hence the applicability of the said paragraph 3 is not an issue.
- In this regard we agreed with the defendants submission that the plaintiff here is using the issue of rent as a camouflage to compel the defendants to sell their 1/3 undivided share in the said property to the plaintiff.
- We accordingly affirm the learned Judicial Commissioner’s decision and dismiss the appeal with costs and order the deposit to be refunded.
Source: Koh Heng Jin Holdings Sdn Bhd v Phuah Beng Chooi @ Koh Kim Kee &Anor  MLJU 1718. Court of Appeal Putrajaya. Alizatul Khair, Abdul Aziz Abdul Rahim and Varghese George Varughese JJCA.
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