http://lwb.lawnet.com.sg/legal/lgl/rss/supremecourt/48819.html
Hmm... Istana Tyersall in a legal tussle???!!!! 
"State of Johor and Another v Tunku Alam Shah ibni Tunku Abdul
Rahman and Others
[2005] SGHC 156
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Suit No: OS 1359/2004
Decision Date: 31 Aug 2005
Court: High Court
Coram: Tan Lee Meng J
Counsel: Davinder Singh SC, Cheryl Tan and Tan Kok Peng (Drew and
Napier LLC) for the plaintiffs, Lim Chor Pee and Sarah Tan (Chor
Pee and Partners) for the first defendant, Timothy Tan Thye Hoe and
Jeya Putra (AsiaLegal LLC) for the second to fifth defendants
Judgment
31 August 2005
Judgment reserved.
Tan Lee Meng J:
1 The dispute between the parties, which has its roots in a will
made by the late Sultan Abu Bakar of Johor on 14 April 1895,
concerns competing claims to the compensation of $25m awarded by
the Collector of Land Revenue for the compulsory acquisition of Lot
1049 of Mukim 2 (Tyersall). This property, on which stands an old
palace built by the testator more than a century ago, is situated
at 2 Cluny Road, Singapore.
2 The first plaintiff is the State of Johor. The second plaintiff,
Duli Yang Maha Mulia Sultan Johor Sultan Iskandar, the present
ruler of Johor, is a great-grandson of Sultan Abu Bakar.
3 The first defendant, Tunku Alam Shah ibni Tunku Abdul Rahman
(TAS), is a great-great-grandson of Sultan Abu Bakar.
4 The second to fifth defendants are a group of claimants led by
the second defendant, Ungku Sulaiman bin Abdul Majid, who is a
descendant of Sultan Abu Bakars sister, Ungku Khadijah binti
Temenggong Ibrahim.
5 The sixth defendant, Ungku Rosiah binte Abdul Rahman, did not
file any affidavit in support of her case and has not participated
in these proceedings after filing her memorandum of appearance in
February 2005.
Background
6 The relevant facts are as follows. On or about 14 April 1895, the
then Sultan of Johor, Sultan Abu Bakar, executed a will. The
material part of the will concerning Tyersall is in the following
terms:
My royal son Tunku Ibrahim
shall be my successor as Ruler and
possessor of the State of Johore and all its dependencies
And for
his use and possession as Sovereign Ruler, I surrender to him all
such properties, things, and objects as are said to be State
heritage or belongings or which I by my own will, and pleasure have
declared and constituted as the property of the State and Country,
namely, my Istana together with all its gardens
all state
buildings in Johore Bharu
the crown, and all the paraphernalia
and things all complete as used in the State Ceremonials
And
similarly as State property I leave and deliver to my royal son the
Istana and lands, and grounds and garden named Tyersall, situated
in the Island of Singapore in the district of Tanglin together with
all house furnitures appurtenances and decorations all complete as
it is now for his use
[emphasis added]
7 Sultan Abu Bakar died on 4 June 1895. His executor, Dato Jaafar
bin Hadj Mohamed, died a year later. Twenty-eight years later, on
15 June 1923, Dato Mustapha bin Jaffar (Dato Mustapha) obtained
from the Supreme Court of the Straits Settlements letters of
administration de bonis non with will annexed for the estate of
Sultan Abu Bakar.
8 Tunku Ibrahim (hereinafter referred to as Sultan Ibrahim)
became Sultan after his fathers death. More than 40 years after
his fathers death, Dato Mustapha finally conveyed Tyersall to him
as State property and upon the terms and conditions set forth in
Sultan Abu Bakars will. Sultan Ibrahim, who was the ruler of
Johor for more than 60 years, passed away on 8 May 1959. Letters of
administration were granted to his widow, Sultanah Marcella, and
his son, Tungku Temenggong Ahmad, on 23 September 1959, and these
were resealed in the High Court in Singapore in January 1965. By an
indenture dated 17 May 1971, Sultanah Marcella and Tungku
Temenggong Ahmad appointed Tan Sri Dato Abdul Hamid bin Mustafa and
Dato Abdullah bin Mohamed as trustees of Sultan Abu Bakars will in
so far as it related to Tyersall. The indenture provided that
Sultan Ibrahims interest in Tyersall would vest in the trustees as
joint tenants subject to the provisions of Sultan Abu Bakars will.
Both the trustees have since passed away and no new trustees were
appointed to replace them. Sultanah Marcella Ibrahim and Tunku
Temenggong Ahmad have also passed away.
The compulsory acquisition of Tyersall
9 On 30 November 1990, a Notice of Acquisition of Tyersall,
pursuant to s 10 of the Land Acquisition Act (Cap 152, 1985 Rev
Ed), was published in the Government Gazette. On 2 March 1991, the
Collector of Land Revenue (the Collector) held an inquiry to
determine the appropriate amount of compensation for the
acquisition of Tyersall and to apportion the compensation among all
the persons with an interest in the said property. The inquiry was
adjourned a number of times and many years passed without the
matter being resolved.
10 On 28 April 2004, the Collector placed an advertisement in the
The Straits Times to state that the inquiry would resume on 20 May
2004. The Collector required all claims and statements of interest
with respect to Tyersall to be submitted by 27 May 2004. On 1 June
2004, the sum of $25m was awarded as compensation for the
compulsory acquisition of Tyersall. On 9 June 2004, the Collector
obtained an order of court to pay the said compensation into court
because there was a dispute as to the title to receive the
compensation.
The plaintiffs originating summons
11 On 14 October 2004, the plaintiffs filed the present Originating
Summons, seeking, inter alia, an order that the compensation in
question be paid out to the second plaintiff or alternatively to
the first plaintiff. The plaintiffs applied for the
following:
1. (a) A declaration that the Second Plaintiff is lawfully entitled
to receive the compensation sum of Singapore Dollars Twenty-Five
Million (S$25,000,000.00) awarded by the Collector of Land Revenue,
Singapore pursuant to Section 10 of the Land Acquisition Act (Cap
152, 1985 Rev Ed) (the Act) which was paid into Court by the
Collector of Land Revenue pursuant to Section 40(2) of the Act and
an Order of Court dated 9 June 2004 in Originating Summons 719 of
2004/Q in relation to the compulsory acquisition of land known as
Lot 1049 Mukim 2, together with interest thereon under Section 41
of the Act.
(b) In the event that this Honourable Court grants the declaration
under prayer 1(a) above, an order that the sum which was paid into
Court by the Collector of Land Revenue pursuant to Section 40(2) of
the Act and the Order of Court dated 9 June 2004 in Originating
Summons 719 of 2004/Q be paid out to the Second Plaintiff.
2. (a) Alternatively, a declaration that the First Plaintiff is
lawfully entitled to receive the compensation sum of Singapore
Dollars Twenty-Five Million (S$25,000,000.00) awarded by the
Collector of Land Revenue, Singapore pursuant to Section 10 of the
Act which was paid into Court by the Collector of Land Revenue
pursuant to Section 40(2) of the Act and an Order of Court dated 9
June 2004 in Originating Summons 719 of 2004/Q in relation to the
compulsory acquisition of land known as Lot 1049 Mukim 2, together
with interest thereon under Section 41 of the Act.
(b) In the event that this Honourable Court grants the declaration
under prayer 2(a) above, an order that the sum which was paid into
Court by the Collector of Land Revenue pursuant to Section 40(2) of
the Act and an Order of Court dated 9 June 2004 in Originating
Summons 719 of 2004/Q be paid out to the First Plaintiff.
3. A declaration that the Defendants are not persons interested
for the purposes of Section 23 of the Act and are therefore not
entitled to appeal to the Appeals Board as constituted under
section 19 of the Act.
4. That the costs of and occasioned by this Summons be paid by the
Defendants to the Plaintiffs.
12 The plaintiffs case is that by constituting Tyersall as State
property in his will, Sultan Abu Bakar had intended that the said
property was to pass with the throne of Johor upon the death of a
reigning ruler and that it should not devolve to the estate of any
ruler upon his death. On this basis, the compensation of $25m
should be paid to the present Sultan of Johor. The first
plaintiffs position was summarised by the Johor State Secretary,
Dato Haji Mohd Razali bin Mahusin, in para 35 of his affidavit as
follows:
The First Plaintiff has always recognized that while the Land was
declared as State property by the late Sultan Abu Bakar under the
terms of the Will, it belonged beneficially to the ruling Sultan.
For this reason, the First Plaintiff has joined itself as a party
to these proceedings in support of the application for the payment
of the Compensation to the Second Plaintiff as the ruling Sultan of
the State of Johor as at the date of the compulsory
acquisition.
13 Both the plaintiffs also asserted that the only other party with
a conceivable claim to Tyersall was the State of Johor since
Tyersall was constituted as State property by Sultan Abu Bakar.
They thus contended in the alternative that the compensation for
the acquisition of Tyersall should be paid to the State of
Johor.
TASs counter-notice
14 TAS, who claims a share of the compensation awarded for the
acquisition of Tyersall on the ground that he is one of the
beneficiaries of the estate of Sultan Ibrahim, did not accept that
Tyersall became State property as a result of Sultan Abu Bakars
will. The essence of TASs case is that the bequest of Tyersall by
Sultan Abu Bakar was invalid because it contravened Muslim
law.
15 On 15 February 2005, TAS filed a counter-notice, in which he
sought the following relief:
(a) a declaration that prior to the death of Sultan Abu Bakar of
Johor on 4 June 1895, Sultan Abu Bakar was the absolute ruler of
Johor, and the immovable properties situated in Johor and
Singapore, vested in his name, belonged to him absolutely as legal
owner; and
(b) an order that the proceeds of the award of the Collector paid
into the court pursuant to the Order of Court dated 9 June 2004
(see [10] above) made in Originating Summons No 719 of 2004, be
paid to the Public Trustee for distribution to the beneficiaries of
the estate of Sultan Ibrahim in accordance with the Inheritance
Certificate dated 21 October 2004 relating to the estate of Sultan
Ibrahim and issued by the Syariah Court of Singapore.
Position of the other defendants
16 At the hearing of the present Originating Summons on 2 May 2005,
the court was informed that in order to save time and costs, the
second, third, fourth and fifth defendants would not take an active
part in the proceedings and would await a ruling with respect to
the plaintiffs prayers before deciding on their next course of
action.
17 As for the sixth defendant, she informed the plaintiffs
solicitors, Drew & Napier LLC, in a letter dated 19 February
2005, that she was not interested in Tysersall and would not be
making any claim in respect of the said property. She did not
appear at the hearing of the Originating Summons.
18 In view of the positions adopted by the second to sixth
defendants, only the plaintiffs and the first defendant, TAS,
presented arguments to the court at the hearing of the Originating
Summons.
Validity of the bequest as governed by the lex situs
19 As the crux of TASs case is that Sultan Abu Bakars will is
governed by Muslim law, I will first consider whether this
assertion is correct.
20 In truth, TASs case as to why Muslim law applies to Sultan Abu
Bakars will is rather confusing. At first, he asserted that Muslim
law was applicable because Johor law was applicable. In contrast,
his counsel, Mr Lim Chor Pee, conceded at the hearing that the
validity of the will was governed by the lex situs although he
added that the Muslim law of inheritance was still relevant because
it was part of the lex situs. Both assertions will be
considered.
21 To support his assertion that Johor law is applicable to the
bequest of Tyersall by Sultan Abu Bakar, TAS relied on the view of
Mr Pawancheek bin Marican, the author of a book on Islamic
Inheritance Laws in Malaysia, who stated in para 25 of his
affidavit filed on 7 January 2005 as follows:
As the law applicable in Johore at the material time governing the
estates of Muslims was the Muslim law of succession and
inheritance, the Will of Sultan Abu Bakar must be decided in
accordance with Islamic law.
22 Mr Pawancheek next explained in para 30 of his affidavit the
restrictions imposed by Muslim law on the disposal of a testators
property as follows:
Muslim law imposes two principal restrictions upon testamentary
power. The first rule is that the testator cannot make a bequest in
favour of a legal heir unless the other legal heirs give their
consent. The second restriction is that the testament is invalid if
the testator purports to bequeath more than a third of his
estate.
23 TAS also relied on the opinion of Dr Suwaid bin Tapah, an
Associate Professor at the Academy of Islamic Studies, University
of Malaya, who, like Mr Pawancheek, concluded that Muslim law
governed Sultan Abu Bakars will.
24 Neither Mr Pawancheek nor Dr Suwaid considered the effect of the
laws of the colony of Singapore prevailing in 1895 before
concluding that Muslim law was applicable to the will. Under
English law, as applied in the colony of Singapore, the effect of a
bequest of immovable property is governed exclusively by the lex
situs and not by the lex domicile. Whether a testator has the
capacity to make a will and whether the will complies with relevant
formal requirements are governed by the lex situs. Choice of law
rules are also governed by the lex situs.
25 The relevance of the lex situs has been confirmed in innumerable
English cases. In In re Miller [1914] 1 Ch 511, the testator, who
made a will in a Scottish form, devised lands in England and
Scotland under terms which would have created estates with
different legal consequences depending on whether the law of
England or of Scotland was applicable. Warrington J held that the
incidents of the estate which could be created in English land had
to be determined by the law of the country where the land was
situated and not by the law of the country where the testator was
domiciled.
26 In the colony of Singapore, the relevance of the lex situs was
conclusively settled by the Straits Settlements Court of Appeal in
Sheriffa Fatimah binte Aboobakar bin Mahomed Al Mashoor v Syed
Allowee (1883) 2 Kyshe (Eccles) 31 (the Sheriffa Fatimah case),
which pre-dates Sultan Abu Bakars will. The facts in this case,
which concerned the disposition by will of immovable property in
Singapore, will be discussed later on in this judgment. All that
needs to be noted at this juncture is that Wood J said at 33 that
it was clear law, that the incidents to real estate, the right of
alienating and limiting it, and the course of succession, depend
entirely upon the law of the country where the estate is situated.
That a decision of the Straits Settlements Court of Appeal is
binding on the High Court was reiterated by the Court of Appeal in
Ng Sui Nam v Butterworth & Co (Publishers) Ltd [1987] SLR 66.
In view of this, it is clear that the law of Johor does not govern
the validity of Sultan Abu Bakars will.
Whether Muslim law was part of the lex situs in 1895
27 I will next consider Mr Lims assertion that while the validity
of Sultan Abu Bakars will is governed by the lex situs, Muslim law
is applicable to the will because it is part of the lex situs. In
his written submissions, he summarised his clients position as
follows:
(a) Whether the will is interpreted according to Johor law or
Singapore law, it must be interpreted according to Muslim law as
the testator was a Muslim.
(b) The testator was not above Muslim law even if he was a
sovereign.
(c) If a Muslim testator makes a bequest of his property (in Johor
or Singapore) to his eldest son that contravenes Muslim law, that
bequest is invalid.
(d) In considering the will of a Muslim, whether domiciled in Johor
or Singapore, the court cannot simply ignore Muslim law.
28 Mr Lim cited a number of Malaysian cases to support his
assertions. Regrettably, these Malaysian cases are not relevant for
whatever may have been the position of Muslims in the Malay states
in the 19th century, the position of Muslims in the Straits
Settlements, of which the colony of Singapore was a part, must be
viewed in the context of the Second Charter of Justice 1826, which
set up the Court of Judicature of Prince of Wales Island, Singapore
and Malacca, and required the Court of Judicature to give and pass
judgment according to Justice and Right. In Regina v Willans
(185
3 Kyshe 16 at 2526, Sir Peter Benson Maxwell R
explained the implications of the phrase Justice and Right in the
following oft-cited terms:
Now the Charter does not declare, totidem verbis, that [the law of
England] 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.
[A] direction in an
English Charter to decide according to justice and right, without
expressly stating by what body of known law they shall be
dispensed, and so to decide in a Country which has not already an
established body of law, is plainly a direction to decide according
to the law of England.
29 Admittedly, the law of England was taken to be the governing
law, so far as it is applicable to the circumstances of the place:
see Ong Cheng Neo v Yeap Cheah Neo (1872) 1 Kyshe 326 at 344.
However, the fact that English law may be adapted to the
circumstances of a particular colony is not a carte blanche for
applying all aspects of native law. Indeed, in In the Goods of
Abdullah (1835) 2 Kyshe (Eccles) 8, Malkin R rejected counsels
suggestion that the Second Charter of Justice should be interpreted
so as to give the inhabitants of the colonies the full benefit of
their own laws, religions and customs. He said (at 10) that the
introduction of the Kings Charter into these Settlements had
introduced the existing Law of England
and had abrogated any law
previously existing. Note should also be taken of Regina v Willans
where Maxwell R took the view that the Second Charter of Justice
provided for the exclusion of native law and that it did not seem
that the Charter had in any respect modified the law of England by
any exceptional adaptation of it to the religions and usages of the
East.
30 The courts were very clear as to when English law might be
adapted to local circumstances. In Khoo Hooi Leong v Khoo Chong
Yeok [1930] AC 346 at 355, Lord Russell of Killowen explained that
[t]he 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. It is for this reason that Chinese and
Malay polygamous marriages were recognised in the Straits
Settlements: see, for instance, In the Matter of the Estate of Choo
Eng Choon (1911) 12 SSLR 120; In the Goods of Lao Leong An (1867) 1
SSLR 1 and Cheang Thye Phin v Tan Ah Loy [1920] AC 369. In Re Loh
Toh Met, Decd [1961] MLJ 234 at 242, Thomson CJ reiterated that
such marriages were recognised not by reason of the religious
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.
31 As far as English law on the validity of wills is concerned, the
courts did not find it unjust to apply it to everyone in the
Straits Settlements. In the Sheriffa Fatimah case ([25] supra), a
Muslim merchant, who owned immovable property in Singapore,
executed a will in Arabia that was in conformity with the laws of
Singapore but was contrary to Muslim law, which was applicable in
Arabia, where he was domiciled. After his death, the plaintiff
sought to set aside his will on the ground that its provisions were
contrary to Muslim law. The Court of Appeal of the Straits
Settlements, which affirmed the decision of the court below, held
that the will was valid. Ford Ag CJ stated at 33 that the
plaintiff cannot invoke her rights under the Mahomedan Law of a
foreign state, to limit the devolution of land in these
Settlements, made within the limits allowed, and under the forms
required by its laws, which in this particular are identical with
those of England. As has been mentioned earlier on, this decision
of the Straits Settlements Court of Appeal is binding on the High
Court.
32 A similar approach was adopted in an earlier case in Penang, to
which the Second Charter of Justice 1826 also applied. In that
case, namely In the Goods of Abdullah ([28] supra), the issue
before the court was whether letters of administration that had
been granted to the widow of the deceased, a Muslim, should be
revoked on the ground that the deceased had in fact executed a
will. The widow contended that the will was inoperative because it
was not in accordance with Muslim law. This contention was rejected
by Malkin R, who held that a Muslim could, by will, alienate the
whole of his property even though this contravened Muslim
law.
33 The Straits Settlements cases referred to above dispose of Mr
Lims argument that Muslim law was part of the lex situs in 1895.
All the same, for a more complete picture of the development of the
law in Singapore on wills that are executed by Muslims, a brief
reference ought to be made to the Administration of Muslim Law Act
(Cap 3, 1999 Rev Ed) (AMLA), which now requires a Muslim
domiciled in Singapore to dispose of his property by will in
accordance with the provisions of and subject to the restrictions
imposed by the school of Muslim law professed by him. It is
crucial to note that s 111(2)(c) of the AMLA, which came into force
in 1968, provides that nothing in the Act shall affect the will of
a Muslim dying before 1 July 1968. If Muslim law had governed the
wills of Muslims domiciled in Singapore before the AMLA came into
force, s 111(2)(c) of the Act would not have been necessary. That
the AMLA effected a major change in the law affecting the making
of wills by Muslims was stressed by the then Minister for Culture
and Social Affairs, Mr Othman bin Wok, on 30 December 1965 during
the second reading of the Administration of Muslim Law Bill when he
informed Parliament as follows (see Singapore Parliamentary
Debates, Official Report (30 December 1965) vol 24 at cols
772773):
Part VII deals with property and in the main re-enacts the
provisions of the Muslims Ordinance, 1957. One major change is the
provision that the Muslim law shall apply to dispositions by will
by Muslims. The effect will be that a Muslim can only freely
dispose of one-third of his property by will; the balance must be
distributed to the persons entitled to take [on] intestacy.
[emphasis added]
34 If the relevant provisions of the AMLA are compared with those
of the Muslims Ordinance (No 25 of 1957), the major change
referred to by the Minister becomes very apparent. Unlike the AMLA,
the Muslims Ordinance did not place any restrictions on the making
of wills by Muslims domiciled in Singapore. The Ordinance merely
empowered the court to vary a will to make provision for an heir of
a testator whose will did not make provision or sufficient
provision for that person in accordance with the school of Islam to
which the deceased belonged at the date of his death. The Ordinance
required an heir who wished to apply to the court for such a
variation to do so within six months from the date of extraction of
probate or letters of administration in regard to the testators
estate.
35 To sum up, for reasons already stated, including the fact that
this court is bound by the decision of the Court of Appeal of the
Straits Settlements in the Sheriffa Fatimah case ([25] supra),
Muslim law with respect to the disposition of immovable property by
will was not part of the lex situs in 1895. It follows that Sultan
Abu Bakars will is valid regardless of whether or not it
contravened Muslim law.
Construction of the will
36 The next task of the court is to construe the provisions of
Sultan Abu Bakars will. The main issue before the court concerns
the nature of the bequest of Tyersall to Sultan Ibrahim.
37 The plaintiffs asserted that as Sultan Abu Bakar bequeathed
Tyersall to Sultan Ibrahim as State property, the said property
was bequeathed to the throne of Johor and is not part of Sultan
Ibrahims estate. On the other hand, TAS contended that Sultan
Ibrahim was the absolute beneficial owner of Tyersall in his
personal capacity and that the property devolved to the latters
estate. How TAS could take this position when part of his case is
that Sultan Abu Bakar was not entitled under Muslim law to dispose
of more than a third of his property by will cannot be fathomed,
and especially so since he stated in para 9 of his first affidavit
that he intended to seek a declaration that any bequest by Sultan
Abu Bakar in his Will
to his eldest son
solely to the exclusion
of his other children
is voidable, unless they give their
subsequent consent to the bequest.
38 Although it is often said that the common law requires the
provisions of a will to be construed according to the system of law
intended by the testator and that this is presumably the law of his
domicile, the courts primary task is to ensure that the testators
intentions, as expressed in his will, are not thwarted. The
position is summed up in Cheshire and Norths Private International
Law (Butterworths, 13th Ed, 1999) at p 995, in the following
terms:
The province of construction is to ascertain the expressed
intentions of the testator
[T]he duty of any court, no matter in
which country it may sit, is to give effect to the expressed
intentions and, if these are clear, there can be no occasion to
test the language of the will by reference to any particular legal
system. If, however, the language of the will leaves the intention
doubtful, or if it uses expressions which are ambiguous or
equivocal
a problem of choice of law arises, for it is essential
that the doubtful intention of the testator should be ascertained
by reference to rules of construction obtaining in one particular
system of law. [emphasis added]
39 Sultan Abu Bakars will is very clear and unambiguous. It
reveals that he was fully aware of the concept of State property.
He referred to two categories of State property that were
intended for his successors use and possession as Sovereign
Ruler [emphasis added]. The first category concerned:
all such properties, things, and objects as are said to be State
heritage or belongings
namely, my Istana together with all its
gardens and surroundings and furnitures of every description, kind
and use; all state buildings in Johore Bharu and in any other
dependencies of the State of Johore; the crown, and all the
paraphernalia and things all complete as used in the State
Ceremonials
40 The second category concerned properties that Sultan Abu Bakar
had by [his] own will, and pleasure ... declared and constituted
as the property of the State [emphasis added]. These properties
are by their nature and character not the property of the State.
Tyersall was expressly designated as such a State property. If
Sultan Abu Bakar had intended to bequeath Tyersall to Sultan
Ibrahim as the latters personal property, he would not have used
the words for his use and possession as Sovereign Ruler and
similarly as State property to describe the nature of the
bequest. These critical words put beyond doubt his intention that
Sultan Ibrahim was to hold Tyersall and all other State properties
in his capacity as the sovereign ruler of Johor and not in his
personal capacity. The plaintiffs counsel, Mr Davinder Singh SC,
rightly pointed out that if, as TAS contended, the compensation for
the compulsory acquisition of Tyersall should be distributed to all
the lawful beneficiaries of Sultan Ibrahims estate, then all these
beneficiaries would be entitled to claim an interest in the Istana
and all other state buildings in Johor as well as in the State of
Johors crown, weapons and firearms. This would be absurd and was
not Sultan Abu Bakars intention, as expressed in his will.
41 It is also evident that Sultan Abu Bakars expressed intention
was for Tyersall to become State property after his death because
he drew a distinction between Tyersall and his other private
properties in Singapore. He bequeathed a property known as
Woodneuk, which is adjacent to Tyersall, absolutely to his wife,
Sultanah Khadijah. In his will, he provided as follows:
And I give and bequeath to my wife, Sultana Khadijah
the ground,
house, furniture, and garden situated in the district of Tanglin in
Singapore called Woodneuk
which is near by the Istana
Tyersall.
42 As for his remaining properties in Singapore, he arranged for
them to be divided among his heirs. He provided as follows in his
will:
And with regard to my other lands
and properties in the Island of
Singapore, namely, the land at Teluk Blanga, the godowns in the
Town of Singapore, Cairn Hill Estate, Mount Victoria Estate
and
the land house and garden in Thomson Road, I leave them all under
the superintendence and charge of my said Executor, on behalf and
for the benefit of my heirs whom I shall name each one
separately.
43 For the reasons stated above, I hold that it is absolutely clear
from Sultan Abu Bakars will that he intended that Tyersall would
no longer be private property after his death but would become
State property in the hands of the reigning Sultan of Johor. In
view of this, there is, to use the words of Cheshire and North,
([38] supra), no occasion to test the language of the will by
reference to any particular legal system. There is thus no need to
consider the lex loci for the purpose of construing the words
chosen by Sultan Abu Bakar with respect to the bequest of
Tyersall.
The armchair rule
44 The plaintiffs counsel, Mr Davinder Singh, invited the court to
take into account the so-called armchair rule, which enables the
court to put itself in a testators shoes and consider the
circumstances and knowledge of the testator. In Perrin v Morgan
[1943] AC 399, Lord Romer explained at 420:
[A] will should be so construed as to give effect to the intention
of the testator, such intention being gathered from the language of
the will read in the light of the circumstances in which the will
was made. To understand the language employed the court is
entitled, to use a familiar expression, to sit in the testators
armchair. When seated there, however, the court is not entitled to
make a fresh will for the testator merely because it strongly
suspects that the testator did not mean what he has plainly said
45 It was pointed out that Sultan Abu Bakar was influenced by
English concepts as he was educated in Keasberrys Academy, a
boarding school run by an Englishman, and had frequently travelled
to England and Europe. He retained a firm of solicitors in
Singapore, M/s Rodyk & Davidson, as his personal advisers, and
was advised by English lawyers when he sought to rely on sovereign
immunity after he was sued for breach of promise to marry in
England: see Mighell v Sultan of Johore [1894] 1 QB 149. In A
History of Johore (13651941) (MBRAS Reprint No 6, 2nd Reprint,
1992), R O Winstedt shed some light on how English habits
influenced Sultan Abu Bakar when he stated at pp 135136 as
follows:
Sultan Abu-Bakar played cricket and billiards, kept a stud of
horses and was a lavish host. In 1882 he entertained Prince Albert
Victor and Prince George of Wales. The royal princes found the
huge drawing-room like one of the state-rooms at Windsor and
furnished from London
In the afternoon the Sultan drove a
four-in-hand to the Singapore races, with His Majesty the present
King beside him on the box: the Sultan won four out of five races,
his best horse being an Australian Lord Harry. A few years later
the Sultan entertained the Duke of Sutherland for several days
The Palace Library preserved the Victorian atmosphere, contained
many of Wilkie Collins novels and volumes of Punch and the Art
Journal.
46 Sultan Abu Bakar, who spent long periods in England and died in
London, appeared rather pleased with the warmth with which he was
received by the British royal family. R O Windstedt elaborated on
this at p 136 of his book as follows:
On 2 August 1878, [Sultan Abu Bakar] wrote from 62 Queens Gate
South Kensington, to Colonel Anson at Penang: I intend, if
possible, to visit Paris, Vienna and perhaps Italy.
Her Majesty
the Queen has honored me with an audience, and I have had the
honour of meeting the Prince and Princess of Wales and attending a
State Ball at Buckingham Palace.
For her jubilee in 1887, he had
presented Queen Victoria with a silver model of the Albert
Memorial, which she treasured at Windsor. On 25 February 1891, he
was invited to dine and stay at the Castle
The ruler
dined
seated at the right hand of the Queen, heard Her Majesty propose
his health
and was carried off to another apartment to talk for
hours with her whose words the East held sacred. In March the Queen
wrote in her own hand a letter to the Sultan thanking him for a
walking-stick and signing herself his affectionate friend. In the
summer the Queen sent the Sultan her bust in marble.
47 The plaintiffs contended that having absorbed English culture
and ideas extensively, Sultan Abu Bakar must have wanted Tyersall
to be handed over to his heir in the same manner that Crown
property passes in England. Their counsel, Mr Davinder Singh,
summed up the position in para 112 of his submissions as
follows:
It is clear
that Sultan Abu Bakar was heavily influenced by and
imbibed English concepts and ideas. He incorporated it into almost
every aspect of his life personal and political. Given that
Sultan Abu Bakar frequently used English legal advisers (he
retained Messrs Rodyk & Davidson as his confidential advisers)
and given the terms of the Will, it is extremely likely that the
Will was drafted with the advice of, if not by, someone extremely
knowledgeable in English law.
48 In my view, there is no need to consider the armchair rule for
the simple reason that Sultan Abu Bakars intention with respect to
the bequest of Tyersall was clear. All the same, had it been
necessary, the armchair rule would have supported the assertion
that Tyersall was bequeathed to Sultan Ibrahim as State property
and not to him personally.
Whether the bequest of Tyersall is invalid for any other
reason
49 Whether Sultan Abu Bakars bequest of Tyersall to Sultan Ibrahim
as State property is invalid for any other reason will next be
considered. According to TAS, a bequest of Tyersall to the reigning
Sultan of Johor would be invalid because it infringes the rule
against perpetuities. He also argued that the bequest of Tyersall
to Sultan Ibrahim as State property did not make sense because
the State of Johor did not exist in 1895.
The rule against perpetuities
50 While the rule against perpetuities was applicable in the
Straits Settlements, TASs contention that the bequest of Tyersall
infringed this rule is misconceived. The effect of the rule against
perpetuities is explained in Williams on Wills (Butterworths, 7th
Ed, 1995) vol 1 at p 820 as follows:
The rule is directed to ensure that interests shall vest within the
period allowed by the rule, and if an interest is immediately
vested or must necessarily vest within the period allowed, its
validity cannot be questioned so far as this rule is concerned. An
interest becomes vested when, first, the person or persons or
corporation or body of persons to whom or to which it is limited is
or are ascertained and in existence and capable of taking,
secondly, the quantum of the interest is ascertained, and thirdly,
all other events have happened to enable the interest to come into
possession at once, subject to the determination at any time of the
prior interests.
51 The bequest of Tyersall as State property did not offend the
rule against perpetuities because it is a bequest to a corporation
sole. Blacks Law Dictionary (West Group, 7th Ed, 1999) defines a
corporation sole as follows:
A series of successive persons holding an office; a continuous
legal personality that is attributed to successive holders of
certain monarchical or ecclesiastical positions, such as kings,
bishops, rectors, vicars, and the like. This continuous personality
is viewed, by legal fiction, as having the qualities of a
corporation.
52 It follows that a sovereign in his political capacity is
regarded as immortal. The person who is sovereign may change but
the sovereign is always present. As the beneficial title to
Tyersall vested immediately in the corporation sole, the question
of infringement of the rule against perpetuities does not
arise.
Whether Johor was a state in 1895
53 As for TASs assertion that Sultan Abu Bakars bequest of
Tyersall to his successor in his capacity as sovereign ruler of the
State of Johor or to the State of Johor was not valid because the
State of Johor was not in existence in 1895, reliance was placed on
the opinion of a historian, Dato Khoo Kay Kim, who stated as
follows in para 8 of his affidavit:
[T]here was no separate body as the State of Johor that was
distinguishable from the Sultan of Johor before the 1957
Constitution of Malaya (now Malaysia) constituting the Federal
Government and eleven States (Negeri) with their respective
jurisdictions and powers separate from the Rulers.
54 This line of argument is flawed because what is more relevant in
this case is whether or not there is a distinction between the
Sultan of Johors private property and State property. In this
context, it is useful to note that Dato Khoo accepted in para 6 of
his affidavit that in general, it should be possible to find
several examples of Malay rulers in the other Malay kingdoms who
owned private property. In any case, reference should be made to
Mighell v Sultan of Johore ([45] supra). In this case, Sultan Abu
Bakar sought to set aside an order of substituted service of a writ
of summons in an action against him for breach of promise to marry
on the ground that the English court had no jurisdiction over him.
As the answer to the question whether Sultan Abu Bakar was a
sovereign was crucial to the determination of the case, Wright J
requested the Colonial Office to ascertain Sultan Abu Bakars
status. The Colonial Office informed the court that Johor was an
independent state in the Malay Peninsula and that Sultan Abu Bakar
was the sovereign ruler of that territory. It pointed out that he
raised and maintained armed forces on sea and land, organised a
postal system, founded orders of knighthood, conferred titles of
honour and exercised the usual attributes of a sovereign. In view
of this, in the Divisional Court, Wills J had occasion to state at
153:
We are told by that letter that the Sultan, generally speaking,
exercises without question the usual attributes of a sovereign
ruler.
There can be no doubt that he is still an independent
ruling sovereign, and this case must be decided upon exactly the
same considerations as if the ruler of some undoubted great Power
such as the King of Italy, or the President of the French Republic
had been sued in the Courts of this country.
55 The decision of the Divisional Court was affirmed by the Court
of Appeal. It follows that TASs contention that the bequest of
Tyersall in 1895 failed because the State of Johor did not exist at
that time does not rest on a firm foundation.
Miscellaneous points raised by TAS
56 I will now consider some miscellaneous points raised by TAS. To
begin with, in paras 18 and 19 of his first affidavit, he stated as
follows:
The titles also show that the Land or part of it was mortgaged to
third parties to raise loans. These records will show that the Land
was treated as personal property by Sultan Ibrahim and not as State
property.
There are also Deeds of Assignment in 1938 whereby Sultan Ibrahim
purchased the interests of his three sisters in the Land. It is
submitted that if the Land had become State Land in 1895, why was
it necessary for Sultan Ibrahim to purchase the interests of his
sisters in the Land in 1938?
57 What Sultan Ibrahim did in relation to Tyersall is not relevant
for the purpose of construing what the testator intended. It may be
recalled that Tyersall was conveyed to Sultan Ibrahim on 4 August
1934 as State property and upon the terms and conditions set forth
in Sultan Abu Bakars will. In any case, as far as the alleged
mortgage is concerned, the evidence before the court was that
Tyersall is free from encumbrances. As for the deeds of assignment
executed by Sultan Ibrahims sisters in October 1938, it appears
that Sultan Ibrahim arranged for the execution of these deeds out
of an abundance of caution. Apart from furnishing a nominal
consideration of $10, the deeds referred to an alleged
entitlement to certain rights with respect to Tyersall.
58 Finally, the reliance by TAS on the Inheritance Certificate of
the estate of Sultan Ibrahim issued by the Syariah Court of
Singapore on 21 October 2004 merits comment. As I have found that
Tyersall was not a part of Sultan Ibrahims personal estate, the
Inheritance Certificate in question does not concern the
disposition of this property.
Conclusion
59 For reasons already stated, I hold that as Tyersall was
bequeathed by Sultan Abu Bakar to the throne of Johor in 1895, the
second plaintiff is, as the reigning Sultan, entitled to receive
the compensation sum of $25m awarded by the Collector for the
compulsory acquisition of Tyersall. I thus order that the
compensation sum paid into court by the Collector, together with
any interest under s 41 of the Land Acquisition Act, be paid to the
second plaintiff.
60 In view of my decision on the validity of the bequest of
Tyersall, it follows that the defendants are not persons
interested for the purposes of s 23 of the Land Acquisition Act
and have no standing to appeal to the Appeals Board constituted
under s 19 of the said Act.
Costs
61 As far as the dispute between the plaintiffs and the first
defendant is concerned, the plaintiffs are entitled to
costs."
Can anyone give a summary of what happened?