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Small Estates (Distribution) Act 1955 [Act 98]

11A Land Administrator's power to summon and examine witnesses, administer oaths or affirmations and compel production and delivery of documents   cite [+]

(1) The Land Administrator shall, in relation to the hearing of a petition for distribution, have all the powers of a Magistrates' Court in the exercise of its civil jurisdiction for the summoning and examination of witnesses (including any person on whom a notice of the petition is required to be served under section 9), for the administration of oaths or affirmations and for compelling the production and delivery to him of all documents, including issue documents of title and other documents evidencing title.

(2) Every person required to appear before, or to produce or deliver any document to, the Land Administrator under subsection (1) shall be legally bound to do so within the meaning of sections 174 and 175 of the Penal Code [Act 574].

12 Procedure on hearing and the duties of Land Administrator thereon   cite [+]

(1) The Land Administrator shall record in writing the evidence of all witnesses in attendance, and allow cross-examination of any such witnesses by any person present who claims to be interested in the estate or who has been appointed a guardian of any such person under section 10. All such evidence shall be given on oath or affirmation.

(2) The Land Administrator may, in his discretion, examine as a witness any person who appears to him to be capable of giving relevant evidence and shall allow him to be cross-examined by any person present who claims to be interested in the estate or who has been appointed a guardian of any such person under section 10.

(3) The Land Administrator may require the attendance of any penghulu or a Settlement Officer whom he believes to be able to give any material information regarding the deceased or his estate and may examine him as a witness.

(4) The Land Administrator shall call evidence when necessary to ascertain the religious or customary law applicable to the devolution of the estate of the deceased.

(5) The Land Administrator shall ascertain the amounts of the estate duty, if any, the funeral expenses and debts of the deceased, wherever arising.

(6) The Land Administrator shall consider the claims of any alleged purchasers who attend the hearing and shall ascertain and record who, at the date of the hearing, is in actual occupation of any land claimed by an alleged purchaser, the date, as nearly as the evidence admits, when he went into occupation, and who, at the date of lodging the petition, was in possession of the relevant issue document of title.

(7) The Land Administrator shall ascertain, in such manner as may be most appropriate, the law applicable to the devolution of the estate of the deceased, and shall decide who in accordance with that law are the beneficiaries and the proportions of their respective shares and interests.

(8) The Land Administrator may, if he considers it necessary or desirable, adjourn the hearing from time to time and may appoint a different place for any such adjourned hearing.

(9) At any time before the making of a distribution order, the Land Administrator may reopen the hearing for the purpose of taking further evidence on any relevant matter and shall reopen the hearing for such purpose if so directed by the Director of Lands and Mines.

(10) Where the Land Administrator who is conducting or has conducted any hearing of a petition under this section dies, or is unable through illness, transfer or any other cause to exercise his functions under this Act, any other Land Administrator may continue with the hearing or re-hear the whole or part of the evidence already taken or carry out any other functions under this Act in relation to the petition.

13 Order for distribution of small estate   cite [+]

(1) At the conclusion of the hearing, the Land Administrator shall by his order make provision for the payment out of the estate of the estate duty, if any, and of the funeral expenses and debts of the deceased, wherever arising, and for the repayment to any person of any fees paid by that person under this Act and may, if necessary, direct the whole or such part of the estate as he may specify to be sold and the expenses, debts, fees and duty to be paid from the proceeds of the sale and subject thereto and to the following provisions of this section shall distribute the residue of the estate according to their respective shares and interests among the beneficiaries but subject to section 15:

Provided that where there is in force any written law relating to baitulmal, the Land Administrator shall, before distributing any part of the estate of a deceased Muslim, satisfy himself that any share of the estate which is due to the baitulmal has been duly paid or proper provision made for the payment thereof.

(2) The Land Administrator shall by his order direct the share of any infant beneficiary in any immovable property to be registered in the name of a suitable person as trustee and shall enter a caveat to protect his interest during minority.

(3) If the Land Administrator finds that the deceased was a trustee for any person of any land held in the name of the deceased though not registered as such, he shall unless in any case he thinks it proper to refer to the Court order the trust property to be transmitted to a new trustee or to the beneficiary as he shall think fit but without prejudice to any registered rights or interests in the land of any creditor of the deceased or any person deriving title through the deceased.

(4) If the nature of the case so requires, the Land Administrator shall, instead of or in addition to making a distribution order, grant letters of administration to such person as he shall think fit, subject to such security as he may require and may in his discretion dispense with security. The letters of administration shall be subject to such limitations as the Land Administrator may think fit to specify in the grant.

(5) If the Land Administrator finds that any person has proved his claim to be a purchaser within the meaning of section 2 of any land registered in the name of the deceased, he shall, by his order, transmit the land to the purchaser, subject to such conditions as to the payment of any outstanding balance of the purchase money or otherwise as he may think fit to impose.

(6) If in the opinion of the Land Administrator any person claiming to be a purchaser of any land registered in the name of the deceased is not such a purchaser but is entitled to any sum as compensation or relief out of the estate of the deceased, he shall record a finding to that effect and shall provide in the order for the payment of that sum to that person as a debt of the
deceased.

(7) If it appears that the estate is or is likely to be insolvent, the Land Administrator shall grant letters of administration to some fit persons on behalf of the general body of creditors or else order the estate to be administered in bankruptcy by the Director General of Insolvency.

13A Direction or declaration by the Corporation in respect of movable property   cite [+]

Where any movable property comprised in a small estate has been administered by the Corporation, the Land Administrator shall accept any direction or declaration made by the Corporation in relation to the property.

14 Determination of collateral disputes   cite [+]

(1) If in the course of the hearing it is certified by the Land Administrator to be necessary or desirable in the interests of justice that any collateral dispute should be decided before a distribution order is made, the Land Administrator may defer the making of any distribution order in respect of the estate or of that part of the estate which in his opinion is or may be affected directly or indirectly by the determination of that dispute and shall thereupon cause the dispute to be determined in accordance with this section.

(2) For the purposes of this section, a "collateral dispute" means a dispute as to whether-

(a) any property movable or immovable or any right or interest in any such property forms part of the estate of the deceased;

(b) any person is entitled beneficially to any property movable or immovable or any right or interest in any such property which the deceased at the time of his death held or was
entitled to hold as a trustee and not beneficially;

(c) any debt or liquidated sum in money is payable to any person claiming the same out of the assets of the deceased or any debt or liquidated sum in money is due or payable by any person to the estate of the deceased; and

(d) any share or any right or interest in any share of a beneficiary in the estate of the deceased has been assigned to or vested in any other person, whether a beneficiary or not.


(3) In the case of any collateral dispute, the Land Administrator shall, after ensuring that all necessary parties are before him or have had sufficient opportunity to attend, proceed to hear and determine the dispute and may make such order thereon as may be just.

(4)-(7) (Deleted by Act A702).

(8) Subject to any regulations made under section 30, sections 9, 10, 11 and 12, with such modifications as may be necessary, shall apply to the hearing and determination of collateral disputes by Land Administrators under this section.

(9) Any order made by a Land Administrator under this section shall have the same force and effect and shall be enforceable in the same manner as if it had been made by a court but there shall be no appeal from such an order except under section 29.

(10) The Land Administrator shall, when necessary, give effect by his distribution order to any order made by him under this section.

15 Powers of the Land Administrator in distributing the estate   cite [+]

(1) Where the Land Administrator is satisfied that all the beneficiaries of the estate being of full age and capacity have agreed between themselves as to the manner in which the estate should be distributed, the Land Administrator may, after recording in the distribution order the terms of the agreement, and the assent of the parties thereto, distribute the estate in the manner provided for by the agreement unless it shall appear to the Land Administrator to be unjust or inequitable so to do.

(2) Where any such agreement has been entered into by all the beneficiaries who are of full age and capacity, the Land Administrator may, if in his opinion it is in the interests of any other beneficiary who is a minor or a person not of full capacity to do so, assent to the agreement on behalf of that minor or person and may thereupon after recording the terms of the agreement and the assent of the parties thereto and of his own assent on the part of the minor or person distribute the estate in the manner provided for by the agreement.

(3) Where two or more beneficiaries are entitled to share in any land comprised in the estate, the Land Administrator may, at his discretion, having regard to the interests of those concerned and the interests of good cultivation-

(a) allocate separate lots to individual beneficiaries;

(b) allocate separate lots to two or more beneficiaries as co-proprietors or tenants in common in undivided shares; or

(c) subject to any other written law restricting the subdivision of land, order any lot to be subdivided by survey into parcels proportionate to the shares of the beneficiaries concerned, fixing a time within which they are to deposit the appropriate survey fees in the Land Office and providing that in default of such deposit the land be registered in the names of those beneficiaries as co-proprietors or tenants in common in undivided shares.


(4) The Land Administrator, at his discretion, in order to prevent the excessive subdivision of land or the holding of small lots of land in common by numerous persons or in complicated fractional interests-

(a) where the share of a beneficiary is small, may order the land or any part thereof allocated to any other beneficiary or a specified interest therein to be charged to the beneficiary for amount of his share, together with interest at such rate as may be just, not exceeding five per centum per annum, in lieu of allocating to him a proprietary interest;

(b) where the value of any interest or share in land or lot allocated to a beneficiary is less than the value of the share in the estate to which the beneficiary is entitled, may direct that the difference in value be made up to him in money by the other beneficiaries in such proportion as is equitable and may order, if necessary, that any such payment and interest thereon at such rate as may be just, not exceeding five per centum per annum, be secured by a charge upon any share or shares of those other beneficiaries;

(bb) may order that the undivided distributive share of any beneficiary in any land or lot be allocated to another beneficiary and that such other beneficiary pay to the first-mentioned beneficiary such sum of money as may be determined by the Land Administrator to be the value of such undivided distributive share:

Provided that no order shall be made under this paragraph unless the Land Administrator has first informed the beneficiaries concerned of the terms of his proposed order under this paragraph and the second-mentioned beneficiary has deposited with the Land Administrator the sum of money proposed to be determined by the Land Administrator as the value of the distributive share of the first-mentioned beneficiary;

(c) may order the land or any part of it to be sold in such manner as may be prescribed; or

(d) may order the land or any part of it to be sold by tender among the beneficiaries in such manner as may be prescribed, but subject to a reserve price determined by the Land Administrator which shall not be less than the market value of the land, or part of the land, at the date of the tender.


(5) In the exercise of any discretion under this section, the Land Administrator shall take into consideration the matters set forth in the First Schedule.

(5A) Where two or more beneficiaries are entitled to a share in any movable property comprised in the estate, the Land Administrator may, at his discretion, having regard to the interest of those concerned, order the property to be sold in such manner as may be prescribed.

(6) No distribution order made in accordance with subsections (3), (4), (5) and (5A) shall have effect where any beneficiary affected thereby is a native, unless every such beneficiary being of full age and capacity shall have assented thereto, and where any beneficiary is a minor or a person not of full capacity, the assent shall have been given on his behalf by a guardian appointed under section 10.

16 Procedure after hearing   cite [+]

(1) The distribution order shall be drawn up forthwith by the Land Administrator and shall lie in his office for the period within which notice of appeal may be given and, if notice of appeal under section 29 has been given, shall continue to lie in the office until the appeal has been withdrawn or decided, and shall if necessary, be amended or redrawn to conform with the decision on appeal. The Land Administrator shall then arrange for the order so far as it relates to land to be registered as may be necessary and shall act under subsection (3) where applicable.

(2) The Land Administrator making a distribution order may sign and enter any caveat required to be registered with the order, whether in his own or any other registry or office.

(3) Where a sum of money in the possession of the Land Administrator is payable to any person under or by virtue of a distribution order, the Land Administrator shall deposit such sum of money with the *Corporation if-

(a) the whereabouts of such person are not known;

(b) such person refuses to accept payment of such sum of money;

(c) such person lacks legal capacity; or

(d) for any other reason it is not practicable to pay such sum of money to such person.


(4) Where a sum of money has been deposited with the Corporation under subsection (3), the Corporation shall hold such sum as trustee for the person entitled to it, and may apply the same for the benefit of that person, or may pay the said sum to that person if he makes a claim thereto in writing and the Corporation is satisfied as to his identity, entitlement and legal capacity to receive it.
*NOTE-The original provision which used the words "Official Administrator" is now construed as "Corporation" - see subsection 43(3) of the Public Trust Corporation Act 1995 [Act 532].

17 Subsequent applications   cite [+]

(1) Where it becomes necessary to appoint a new trustee or a new administrator or to make any other or further order or to withdraw a caveat, the party interested may make an application to the Land Administrator in the prescribed form or in any other form which the Land Administrator may permit, and thereupon the Land Administrator shall investigate the matter and cause notice to be given to any other party affected and if the matter is contentious, he shall set it down for hearing in the same manner as a petition for distribution under this Act and after the investigation or hearing, he shall make such order or do any other act as may be necessary to give effect to his decision and if necessary shall arrange for the order so far as it relates to land to be registered as may be necessary.

(2) Where a minor beneficiary has attained majority, the Land Administrator may either withdraw the caveat to enable the trustee to transfer the interest to the beneficiary or make an order transmitting the interest from the trustee to the beneficiary as proprietor and in the latter case, an order withdrawing the caveat may be incorporated in the same instrument as the transmission.

(3) The Land Administrator may for any cause he thinks fit at any time either of his own motion or on the application of any beneficiary or creditor, revoke any grant of administration made by him and may likewise order any administrator to file accounts or to supply such other particulars concerning the administration of the estate as he may require.

18 Duty of Settlement Officer and penghulu   cite [+]

(1) Where a proprietor of any land has died and no proceedings, to the knowledge of a Settlement Officer of the district, or the penghulu of the locality, in which the proprietor's land is situated, have within six months of the date of death been taken to obtain a grant of probate or letters of administration or for distribution under this Act of the estate of the deceased, the said Settlement Officer or the said penghulu shall report the matter to the Land Administrator and the Land Administrator may thereupon direct the Settlement Officer or the penghulu, or some other Settlement Officer of the district or some other penghulu, to lodge a petition for distribution of the estate unless he has reason to believe that the land was not part of a small estate, in which case he shall report the matter to the *Corporation.

(2) No fees under this Act shall be payable by the Settlement Officer or the penghulu upon the lodging of any petition under this section or on any consequent proceedings but at the conclusion of the hearing, the Land Administrator shall assess the fees that would have been payable under this Act if the petition had been lodged by some person other than the Settlement Officer or the penghulu and shall in his distribution order direct that they shall be paid out of the estate.
*NOTE-The original provision which used the words "Official Administrator" is now construed as "Corporation" - see subsection 43(3) of the Public Trust Corporation Act 1995 [Act 532].

19 Reference on point of law or custom   cite [+]

(1) If any difficult point of law or custom arises in any proceedings under this Act, the Land Administrator may-

(a) if the question relates to Islamic law or Malay custom or to native law or custom of Sabah or Sarawak, refer the matter for decision to the Ruler of the State in which his district is situated or to such other person or body of persons as the Ruler may direct; or

(b) if the question relates to any other matter, may state a case for the opinion and directions of the High Court.


(2) Every reference and every statement of case under subsection (1) shall be in writing and shall contain a statement of the facts on which an opinion or decision is required, and the Land Administrator shall give effect to any opinion, decision or directions thereby obtained.

(3) Where any question is referred to the High Court under this section, the reference may be heard and disposed of by a Judge in Chambers.

(4) The High Court shall not give any opinion upon any question referred to it under this section unless all those persons interested in the proceedings who in the opinion of the High Court are likely to be affected by the opinion have had an opportunity to appear and be heard by the Court either in person or by advocate and the costs of any such hearing shall be borne by such persons or by the estate and in such proportion as the Court may direct.


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