An appeal to the Court of Appeal was dismissed and leave to appeal to the Federal Court was rejected. Further proceedings in the Syariah Courts were also unsuccessful and the action was dismissed in 2007. The plaintiffs then filed the suit that is the subject matter of these appeals. Proceedings in the courts below [10] In essence, the plaintiffs’ claim is based upon a constructive trust arising from the 1981 Agreement. The plaintiffs also claimed that the sale of the 180 acres of land to Azinal was not bona fide and that the lands belonging to Pasla Holdings were sold below market value to Vision Wagon Sdn Bhd (“Vision Wagon”). In particular, the plaintiffs claimed that with the 1981 Agreement being a trust, they were entitled to the 110,000 shares. Effectively, they claimed that Ammaji and then the 2nd defendant acted in breach of the trust. They claimed that the defendants had converted the plaintiffs’ right, title and interest in the lands in question to their own use and are therefore jointly and severally liable to compensate the plaintiffs for their loss. [11] The High Court, after a trial lasting 21 days at which 13 witnesses gave evidence, found for the plaintiffs. On appeal by the defendants, the Court of Appeal reversed principally on the grounds that there was no constituted trust and that in any event limitation and laches barred the action. The Court also held that the sale to Azinal was bona fide and that there was no undervalue in the subsequent sale to Vision Wagon. The Instant Appeals [12] After due consideration of the submissions of the parties, the leave questions and the proceedings in the courts below, the pivotal issues for our consideration were broadly: firstly, whether the 1981 Agreement constitutes a trust, and secondly, whether the action was barred by limitation and the doctrine of laches and thirdly, whether the subsequent sale of the Pasla Holdings lands were invalid or sold below market value to Vision Wagon. [13] On the pivotal question of whether the 1981 Agreement constituted a trust, there was considerable argument on the proper interpretation of the said 1981 Agreement in the courts below and which continued before us. The starting point over whether an agreement or document creates a trust is the construction of the instrument and the words used by the donor himself. It is an issue of the construction of the so-called trust document and not an issue of fact (see Parmeshiri Devi & Anor v Pure Life Society (1971) 1 MLJ 142). The intention to create a trust must appear sufficiently unequivocal and clear (see Re Kayford Ltd (1975) 1 WLR 279). Whether there was an intention to create a trust turns entirely on the peculiar facts of a case (see Wan Naimah v Wan Mohamad Nawawi [1974] 1 MLJ 41). [14] In the instant case, it is relevant to note that there was no declaration of a trust in respect of the shares of Pasla Holdings (Clause 3) as there was in respect of the shares of A.S. Dawood Sdn Bhd (Clause 1). In Clause 1, Dawood expressly declared that in respect of A.S. Dawood Sdn Bhd, pending such transfer, Dawood “shall hold the business in trust for the transferee”. There is no such corresponding declaration of a trust in Clause 3 over any of the proposed additional allotments of shares in Pasla Holdings to the children of the 4 families. [15] This is consistent with the conduct of Dawood after the 1981 Agreement was effected. The intention of Dawood to transfer his shares to the plaintiffs was far from certain. He could have easily signed share transfer forms in favour of any of the plaintiffs but he did not do so. Instead, the transfer forms were signed in favour of Ammaji. Significantly, none of the named parties, apart from the 2nd defendant, were appointed directors for some 8 years prior to Dawood’s demise. This was again contrary to what was stated in the 1981 Agreement. In fact, yearly meetings of Pasla Holdings were held and yet none of the children mentioned in the 1981 Agreement were appointed as directors. It is also worth noting that Dawood, far from confirming the 1981 Agreement, was instead very active in the business of Pasla Holdings and continued to decide on matters on his own. He was instrumental in entering into the joint venture with Azinal as well as transactions with regard to the sale of Pasla Holdings’ lands. [16] As no steps were taken by Dawood to implement the so-called promise of the additional allotment of shares to his children, it seemed to us that at best, it was an incompletely constituted trust as no consideration was paid for the promises. As noted by the Court of Appeal, this was merely a comfort agreement to keep the peace within the families. [17] In Lee Eng Teh & Ors v Teh Thiang Seong & Ors [1967] 1 MLJ 42, Gill J held that a gratuitous promise made by a businessman to donate a piece of land to a school was unenforceable as an incomplete gift with the following observation (at p 44): “The next question to be considered is whether the promise made by the first defendant constituted a trust which is enforceable. Whether a trust is enforceable or not depends upon whether it is completely or an incompletely constituted trust. A trust is said to be completely constituted when the trust property has been vested in trustees for the benefit of the beneficiaries: until that has been done the trust is incompletely constituted. The distinction between completely and incompletely constituted trusts is of importance principally with regard to the question of consideration. In other words, the question to be considered is whether valuable consideration was given for the creation of the trust. If valuable consideration is given in exchange for the creation of the trust, it does not matter whether the trust is completely constituted or not, for equity regards as done that which ought to be done and will perfect an imperfect conveyance for value by treating it as a contract to convey. But there is no equity to perfect an imperfect voluntary trust. As was said by Lord Eldon in Ellison Ellison (1802) 6 Ves 656 662 6 RR 19:– ‘I take the distinction to be, that if you want the assistance of the court to constitute a cestui que trust, and the instrument is voluntary, you shall not have that assistance, for the purpose of constituting a cestui que trust, as upon a covenant to transfer stock, if it rests in covenant, and is purely voluntary, this court will not execute that voluntary covenant, but if the party has completely transferred stock, though it is voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by this court’. The general principle applicable has been enunciated by Turner L.J. in Milroy Lord (1862) 4 De GF & J 264; 31 LJ Ch 798, as follows:– ‘In order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may, of course, do his by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual; and will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes …. But, in order to render the settlement binding, one or other of these modes must (as I understood the law of this court) be resorted to, for there is no equity in this court to perfect an imperfect gift’. In the present case, of course, there is no question of any conveyance having been made. In other words, matters did not go so far as to lead up to what might be called an incompletely constituted trust. The first defendant did nothing more than make a gratuitous promise to donate land, so that there was no question of any incompletely constituted trust having arisen. The action against him, therefore, must fail.” [18] In the instant case, the classic principle set out in Milroy v Lord, supra must also apply in that there is no equity to perfect an imperfect gift and the law of trusts cannot be invoked to effectuate an incomplete gift nor can equity assist a volunteer. The rule is that the donor must have done everything according to the nature of the property to transfer the property to the donee and render the settlement binding on him. The policy reason behind this principle is that where no consideration is provided, the donor can always change his/her mind before the gift is perfected. In Milroy v Lord, even the signing by the deceased of a deed in favour of his niece was declared to be an ineffective declaration of trust as the wrong transfer forms were used and the shares did not reach the share register. [19] Now, it was argued by the plaintiffs that the facts and evidence disclosed a constructive trust because the property was acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest and that equity converts him into a trustee. Their case is not that they are beneficiaries under an incomplete express trust which they are now seeking specific enforcement of. Their case is that ab initio the 1981 Agreement constituted a constructive trust of the promise that Dawood made unto Ammaji. In violation of that constructive trust, Ammaji conveyed the subject property to herself with the connivance of the 2nd defendant who was the principal architect and beneficiary of the scheme. By reason of their conduct in all the circumstances of the case, the first to the fourth, and the sixth defendants, were constructive trustees and liable to the plaintiffs upon the proprietary claim brought against them. [20] In this respect, we must respectfully disagree. Unlike the cases cited by the plaintiffs, it must be noted that in our present case, all the children were strangers to the agreement and mere volunteers. The only person who could constitute himself as a trustee under the 1981 Agreement was Dawood himself. He could have either conveyed the shares to the beneficiaries or declare himself a trustee of the shares. He did neither. [21] It would have been a simple matter to effectuate the transfer of the shares by executing the duly completed share transfer forms in favour of the plaintiffs and forwarding the relevant individual share certificates to them. The test of equipping the donee with title documentation so that transfer could be effectuated without recourse to the donor or the test that the donor had done everything at his end to effectuate the transfer is woefully missing in this case. [22] In our view, the test of whether there was in existence a trust in this case is really this. Could the appellants have enforced the 1981 Agreement against Dawood before his demise? The answer must plainly be in the negative. As no consideration was provided, the shares were meant as a gift. As the donor, the shares were for Dawood to deal with and despite the use of the word “forthwith” in the 1981 Agreement, he did nothing to affect the transfer of shares. As a result, we are unable to see how Dawood's conscience was bound and consequently how Ammaji could be termed a constructive trustee. In our considered view, the Court of Appeal was right to come to the conclusion that no trust was created as Dawood did not have any intention to create a trust nor could he be said to have held the shares as trustee for the plaintiffs. [23] We are also constrained to add, with respect, that the questions of law upon which leave to appeal was granted in relation to the issue of trusts are of no consequence and rendered irrelevant or academic by our finding that no such trust existed. Whilst we commend the industry of both counsel in enlightening the Court with the law in this context, we say with utmost respect that most of the cases cited offered no assistance to us in determining the pivotal question as they were mostly irrelevant or distinguishable on the facts. [24] As such, we do not find it necessary to deal with all the cases and the relevant questions of law except to state that the principle in Milroy v Lord applies to the facts in the present case and the case of Pennington v Waine [2002] 1 WLR 2075 and others cited by the plaintiffs were peculiar to their own facts. These other cases were concerned with the question of whether the legal owner of shares had made a valid gift of them. For example, in Pennington, the share transfer forms were signed by the donor for the transfer of 400 shares to her nephew before she died. Pennington, who represented the company’s auditors, overlooked the registration of the shares. The Court of Appeal held that the donor’s intention was so clear that it would be unconscionable for her to deny the gift. Further, and this appeared to be significant, there was detrimental reliance by the nephew as he assumed the onerous duties of a director with his consent to accept the shares. [25] In any event, it is pertinent to note that the Court of Appeal in Pennington accepted the principle that equity will not assist a volunteer. So, in the case of an imperfect gift to a volunteer, the court will not regard it as a declaration of trust. This is precisely the status of the parties and their rights in the instant case – and which is a far cry from the facts which were present in Pennington. This principle was more recently reiterated by the UK Court of Appeal in Zeital and another v Kaye and others, [2010] EWCA Civ 159 where it was accepted that the donee of shares “will only become their legal owner upon being later registered as a member, a matter commonly outside the donor's control; and until such registration, the donor will remain the legal owner. But once the donor has done all in his own power to transfer the shares, he will be regarded as holding the legal title to them upon trust for the donee, who will thereupon become their beneficial owner.” (at para [40]). [26] In view of our finding that there was no trust, the next question of whether the claim was barred by limitation or the doctrine of laches becomes moot. So, we do not propose to deal with the submissions on this issue except to say that, in any event, we agree with the decision of the Court of Appeal and the reasons provided for finding that limitation has set in and that the doctrine of laches acted against the plaintiffs in the instant case. In particular, we note that the claim in present case is not for the recovery of trust property but a monetary equivalent of the shares. Also, a strong case for laches was made out when the action was only brought many years later when all the witnesses to the 1981 Agreement had passed away. [27] We come now to the issue of the sale of the Pasla Holdings land to Azinal. The events involving the sale transactions can be garnered from the judgments of the courts below. In 1986, an agreement was reached between Dawood and Tan Sri Azman Hashim (“TS Azman”), who were friends and business partners, to sell Pasla Holdings’ land in Labu to Azinal. A joint venture agreement dated 6 January 1984 had earlier been entered into between Pasla Holdings and Azinal to develop the said lands but the venture never took off. The defendants contended that the purchase price was RM 5.6 million as evidenced by a letter of offer from TS Azman dated 27 August 1986 which Dawood accepted. The letter also enclosed a cheque for RM 4.5 million as part-payment of the purchase price with the balance to be paid within 3 years and Dawood acknowledged the payment. [28] However, a formal agreement was signed only after Dawood’s demise. So, on 18 June 1991 after an Extraordinary General Meeting of Pasla Holdings held on 4 June 1991, chaired by the 2nd defendant, it was unanimously resolved that Pasla Holdings’ directors enter into the formal agreement. The balance of RM 1.1 million had been paid, according to Azinal, in staggered payments, on 22 September 1989 (RM 250,000.00), 12 October 1990 (RM 400,000.00), 25 July 1991 (RM 200,000.00) and the final balance of RM 327,709.88 (inclusive of interest) on 18 October 1995 after payment of real property gains tax. [29] Subsequently in 2012, Vision Wagon expressed an interest to purchase the whole of the Pasla Holdings lands in Labu which included the 180 acres sold to Azinal via the 1991 Agreement. This was formalised into a sale and purchase agreement dated 3 December 2012 for a consideration of RM61,972,993.21. Both Pasla Holdings and Azinal agreed to go ahead with the sale to Vision Wagon pursuant to the earlier mentioned joint venture agreement. At that point in time, Azinal was not the registered owner of the said Labu land which they bought because they only received the original title deeds from Pasla Holdings in December 2009. The memorandum of transfer had been rejected by the Land Office on 18 March 2010 because the parties failed to get the approval for the sale from the Estate Land Board. Further, there was also an order issued by the Syariah High Court on 7 October 1999 prohibiting any dealings with the land which order was only lifted on 16 August 2007. [30] The sale to Vision Wagon of the said Labu lands was sanctioned by a resolution passed by Pasla Holdings in an Extraordinary General Meeting held on 10 September 2012 for not less than RM 45 million or RM 2.65 per square feet. This was followed by another resolution by Pasla Holdings’ Board of Directors for the same sale but for RM 61,972,993.20 or at RM3.60 per square feet. The sale and purchase agreement in its recital acknowledges that part of the lands have been caveated by Azinal and the amount payable to it for the final and unconditional release and discharge of Azinal's claim as well as the withdrawal of its caveats over the land. A second sale and purchase agreement in their joint names for the said sale was entered on 3 December 2012. [31] Now, the High Court after evaluating the evidence adduced held that there was no genuine sale by Pasla Holdings to Azinal vide the 1991 sale and purchase agreement. The Court went on to hold that the said agreement was a “sham agreement”. On appeal, the Court of Appeal, however, disagreed that it was a sham agreement. The Court took the view that if it were, there would have not been a need to pay real property gains tax of RM 250,525.00 as evidenced by a certificate dated 30 April 1996 issued by the Director-General of Inland Revenue Malaysia which clearly stated not just the amount paid but the disposal date of 18 June 1991. [32] The Court of Appeal further held that it would be wrong to set aside the sale when the sale had been resolved at the Extraordinary General Meeting of 4 June 1991. The Court noted that the 1st plaintiff attended that meeting and he also admitted in cross-examination that he knew beforehand about the sale because Dawood told him about the payment of RM 4.5 million by Azinal. The 3rd plaintiff in his cross-examination also admitted that they all knew about the joint-venture with Azinal even before the winding-up and Syariah Court proceedings. Yet nothing was done by either one of the plaintiffs, jointly or severally, to prosecute their allegation that it was a sham sale in all these years. [33] In this respect, it is our considered view that the Court of Appeal was justified in disagreeing with the High Court’s findings. The High Court’s finding that the consideration of RM5.15 million was never paid by Azinal to Pasla Holdings was clearly unsustainable and against the weight of evidence and contradicted the 1st plaintiff’s own admission as well as the contemporaneous documents adduced at the trial. As for the claim that the sale of the lands was below market value, the plaintiffs, if they felt that the properties were sold below market value, could have quite easily produced a valuation report to show otherwise or even call for a shareholders’ meeting with regard to the purchase price. [34] However, as it turned out, and quite significantly as noted by the Court of Appeal, the plaintiffs never objected at any point of time to the sale or the price prior to the filing of this suit. The High Court had thus erred in law and/or fact when it held that the market value of the lands at around RM6.00 per square feet without reference to any independent valuation report produced to support the price and further, by erroneously relying on a private valuation for the purpose of land acquisition of RM6.00 per square feet which was never accepted by the High Court during the 2010 land acquisition proceedings. [35] It is settled law that an appellate court can reverse a lower court's findings on evidence under the plainly wrong test, if there was no proper judicial appreciation of the evidence by the lower court and where the court had ignored cogent contemporaneous documents. In our view, the instant case revolved not merely on credibility of witnesses but more on agreed issues of law as well as contemporaneous documents. These matters, in our respectful view, were completely overlooked or glossed over by the High Court. In the circumstances, it is our judgment that the Court of Appeal was entitled to reverse the findings of the trial judge and in fact did so on cogent reasons as provided in the grounds of judgment. Conclusion [36] In conclusion, and for the reasons we have provided, we dismiss the appeals and affirm the decision of the Court of Appeal. In particular, we affirm that no trust was created as Dawood did not have any intention to create a trust nor could he be said to have held the shares as trustee for the plaintiffs. This must have been the case as Dawood did not take a single act to effect the transfer of the shares in all the 8 years period prior to his death. There was therefore an imperfect gift only. We also affirm that Ammaji was never a constructive trustee and even if she was, limitation and laches would apply. Finally, no loss was suffered by any of the beneficiaries as the sale to Azinal was not a sham sale and the sale to Vision Wagon was proven to be at market price. [36] As we have dealt with the core issues in this appeal, we find it unnecessary to answer any of the leave questions. Lastly, as was conceded by the parties, and to avoid any further confusion, the plaintiffs are entitled to any profits from the sale of the lands in question up to the extent of their existing shareholding but not to the extra shares which was the subject matter of the instant action. The respondents are entitled to costs for each of their respective Appeals. Dated: 28 April 2022 Signed (HARMINDAR SINGH DHALIWAL) Judge Federal Court of Malaysia Counsel/Solicitors: For the Appellants: Datuk Seri Gopal Sri Ram, Dato’ V Manokaran, Mahkamah Rajenthirakumar Kumar, Austen Pereira and Hiu Yeat Fong (M/s Kumar Associates) For the Respondent in Appeal No: 15-03/2020: K. Terrance and Seen Rui Yong (M/s Kassim Tadin Wai & Co) For the Respondent in Appeal No: 16-03/2020: Dato’ M Pathmanathan, Rutheran Sivagnanam, Shirin Pathmanathan and Chong Yi Zhen (M/s R Sivagnanam & Assoc) For the Respondents in Appeal No: 17-03/2020: Dato’ Dr Cyrus Das, Krishna Dallumah and Yong Yoong Hui (M/s Krishna Dallumah & Indran)