Gnasegaran A/l Palani v Ramesh @ Muthu A/l Nallayan (WA-22NCvC-522-09/2023)

GNASEGARAN A/L PALANI [NRIC No: 581013-06-5021]

PALANISAMY A/L MARAPPAN [NIRIC No: 530319-06-5075]

ARUMUGAM A/L MUTHUSAMY [NRIC No: 620116-06-5437] … PLAINTIFFS AND RAMESH @ MUTHU A/L NALLAYAN [NRIC No: 740726-06-5393] … DEFENDANT GROUNDS OF JUDGMENT Enc 11 – Defendant’s application to strike out the Plaintiffs’ claim [1] The Plaintiffs filed this suit to seek orders of grave nature from this Court. They sought a declaration that the will of one Nallayan a/l Ramasamy, their friend who was the father of the Defendant, (the 20/05/2024 08:54:43 WA-22NCvC-522-09/2023 Kand. 62 S/N uVyf0xiFXkK8B6aesVPsIg Deceased) is null and void. Consequent to that, they sought the following orders amongst others, which this Court listed in a more comprehensible fashion as follows:

The Deceased did not have locus standi and the right to will 5/6 of the shop lot under the title PN49472 Lot 21604, Mukim Setapak, Kuala Lumpur (the property);

The sale and purchase agreement dated 13.3.1996 between the Deceased and the Plaintiffs (the agreement) that documented the Plaintiffs’ sale of their respective 1/6 share in the property to the Deceased was void, unenforceable, and had lapsed in 1996;

The Deceased only held 1/6 of the property;

The Plaintiffs respectively hold 1/6 of the property;

The list of assets and liabilities of the Deceased’s estate submitted by the Defendant in Suit WA-32NCvC-856-05/2017 (the Grant of Probate proceedings) was not in order and void, misleading which the Plaintiffs are still contesting;

The Grant of Probate accorded to the Defendant on 21.6.2017 (the Grant of Probate) be cancelled with immediate effect;

In the interim that the Defendant is suspended and prevented from utilising the Grant of Probate in any dealings until the disposal of this suit; S/N uVyf0xiFXkK8B6aesVPsIg

In the interim that the Defendant is prevented from initiating any other legal proceedings in relation to the property until the disposal of this suit;

In the interim that the Defendant is prevented from enforcing all the terms of the court order of 14.6.2021 that the Court had granted in his favour in Civil Suit No. WA-22NCvC-585- 09/2018 (Suit 585) against the Plaintiffs until the final disposal of this suit;

That the Plaintiffs are allowed the liberty to refer to documents, exhibits in previous court proceedings pertaining to the property –

High Court Case No: S2-22-948-2008 (R Sivam’s Suit 948);

(ii) Court of Appeal No: W-02-2412-10/2012 (Marappan’s Appeal 2412);

(iii) The Grant of Probate proceedings;

(iv) Suit 585;

Court of Appeal No: W-02(NCvC)(W)-1326-07/2021 (Marappan’s Appeal 1326).

That the Plaintiffs are given the liberty to invite the attention of the Court of Appeal in Appeal 1326 to Enc 13 (the Citation Application) and the Plaintiffs’ statement of claim in this suit as additional evidence under s7 Rules of the Court of Appeal 1994 and s69 of the Courts of Judicature Act 1964; S/N uVyf0xiFXkK8B6aesVPsIg

That the Plaintiffs and other beneficiaries of the property be given the liberty to sell the property at the current market value and proceeds divided amongst them after the deduction of the costs and expenses;

In the interim that the Defendant surrender the original Grant of Probate to court;

That the Defendant is prevented from referring to the oral or written deposition of Marappan a/l Muthusamy (Marappan) against the Plainitff’s;

General damages. [2] Clearly, the dispute centres around ownership of shares in the property. Premised on the previous decisions by the courts, the Defendant was set in his position that the Deceased rightfully owned 5/6 share in the property, which he had willed to the Defendant. This was affirmed by the Grant of Probate proceedings and the order by the High Court to issue the Defendant the Grant of Probate. The Defendant contended the Plaintiffs had sold their shares to the Deceased on 13.3.1996 vide the agreement. The Defendant further alleged the Plaintiffs' claim is time-barred and amounted to re-litigation of issues already decided in previous suits. This Court was implored to hold that this suit is a double claim pointing out to another suit filed by the Plaintiffs against Marappan vide WA-22NCvC- 329-05/2021 (Suit 329) which is scheduled for trial in December 2024. The Defendant accused the Plaintiffs of ‘finding a way to re-hear the issues which have already been decided by the above courts as the S/N uVyf0xiFXkK8B6aesVPsIg Plaintiffs did not appeal, strike out or intervene the previous proceedings. The Defendant pleads res judicata.” [3] For ease of understanding the contentions of all the parties, the historical factual matrix must be considered. This Court scoured through the pleadings, the affidavits and the submissions to ensure the issues were fully considered. • 1993: Back in the beginning of that year, the Deceased, together with the Plaintiffs, one Subramaniam a/l Etti Kavundar (Subramaniam) and one Marappan planned to buy the property. • 2.3.1993: All the six above decided to buy the property for RM188,000. Each paid RM13,034 which amounted to RM78,204 and the balance of RM109,796 was financed by a banking facility of which the Deceased and Subramaniam were the guarantors. Marappan executed the sale and purchase agreement for the property which named Marappan as the purchaser. • 7.6.1993: Marappan executed a trust deed that confirmed he was trustee to the other five’s beneficial interest of 1/6 share respectively in the property. • 1994: the property was rented out to a third party. Marappan received all the rental proceeds. S/N uVyf0xiFXkK8B6aesVPsIg • 13.3.1996: Marappan had failed to share the rental proceeds with the other five beneficiaries (the Deceased, the Plaintiffs and Subramaniam) since 1994. Due to Marappan having breached clause 8 of the trust deed, the Plaintiffs and Subramaniam sold their respective 1/6 share in the property to the Deceased. The agreement documented that the Plaintiffs and Subramaniam had sold their respective 1/6 share in the property for RM30,000 (total RM120,000). With the payment from the Deceased, he then became the beneficial owner of 5/6 of the property. • 5.12.1996: As Marappan had still failed/reluctant to share the rental proceeds and account for it, the Deceased through his solicitor Messrs. Ti Chin Lee demanded from Marappan to disclose the accounts of the receipt of the rental proceeds generated by the property as per clause 7 of the trust deed. • 2000: All the while there had been no response from Marappan with regard to the demand. The Deceased then initiated Suit No. D2-22-1669-2000 (Suit 1669) for a court order that Marappan pay the Deceased’s portion of the rental proceeds and account thereof. • 18.1.2000: The Deceased sold his 5/6 share in the property to his son-in-law R Sivam a/l Ramasamy (R Sivam) for a consideration of RM400,000 which was forwarded by R Sivam. S/N uVyf0xiFXkK8B6aesVPsIg • 2002: The Deceased was adjudicated a bankrupt but had obtained sanction from the Insolvency Department to pursue Suit 1669 against Marappan. • 5.3.2004: Subramaniam executed a statutory declaration that affirmed he and the Plaintiffs had decided to sell their respective 1/6 share in the property to the Deceased who had offered a higher consideration price than Marappan. It was averred that on 13.3.1996 they had executed the agreement and that the Deceased had fully settled all the payments to him and the Plaintiffs. • 8.3.2004: The Second Defendant executed a statutory declaration that affirmed the same fact. • 25.7.2006: Marappan agreed to resolve Suit 1669 via an out of court settlement where a settlement agreement documented Marappan’s agreement to transfer his 1/6 share in the property and the Deceased’s share of 5/6 in the property to R Sivam. Marappan had also agreed to refer to a certified valuer to value the property. With the settlement agreement executed, the Deceased had withdrawn Suit 1669 with liberty to file afresh. • Marappan had failed to execute any of the obligations that he had agreed to as per the settlement agreement which then became frustrated. S/N uVyf0xiFXkK8B6aesVPsIg • 2008: R Sivam initiated a civil action against Marappan to claim the property vide Suit No S2-22-948-2008 (R Sivam’s Suit 948). • 18.7.2011: Subramaniam and the Second Plaintiff executed statutory declarations that affirmed they had sold their respective 1/6 share in the property to the Deceased. • 10.8.2011: The First Plaintiff executed a statutory declaration affirming the same facts – that he had sold his 1/6 share in the property to the Deceased in 1996. • 2012: At the trial of R Sivam’s Suit 948 Marappan admitted that 5/6 share in the property was the Deceased’s. The First and Third Plaintiffs too testified and gave evidence that they had sold their respective 1/6 share in the property to the Deceased for the sum of RM30,000, and that they had executed the agreement. The written statements adduced by all the Plaintiffs confirmed the fact they had sold his 1/6 share in the property to the Deceased. • 25.9.2012: The High Court had allowed R Sivam’s claim against Marappan. An appeal was lodged to the Court of Appeal by Marappan against the judgment in R Sivam’s Suit 948 which is Marappan’s Appeal 2412. • 26.6.2013: The Court of Appeal decided Marappan’s Appeal 2412 that the failure to call the solicitor Ti Chin Lee as witness to prove the documents (share and purchase agreement between the Deceased and R Sivam dated S/N uVyf0xiFXkK8B6aesVPsIg

18.1.200 and the deed of assignment between them of the even date) meant that the sale of the property by the Deceased to R Sivam was not proven. • 2014: As a result of the Court of Appeal’s decision that held that the sale and purchase of the 5/6 share in the property from the Defendant was not valid, R Sivam claimed from the Deceased the purchase moneys paid in 2000 for the property. • 28.10.2014: Marappan wrote to the Insolvency Department confirming that the Deceased was the owner of 5/6 share in the property. Marappan applied that the Insolvency Department assume the 5/6 share in the property as the bankruptcy asset. • 14.10.2015: The Deceased passed away, left a will. • 20.4.2017: The Defendant settled all the liabilities of the Deceased’s estate with the Insolvency Department. • May 2017: The Deceased applied for a Grant of Probate (the Grant of Probate Proceedings) which included the acknowledgment of the validity of the Deceased’s will. • 21.6.2017: The Defendant was granted the Grant of Probate by the High Court for the administration of all and singular of properties of the Deceased’s estate. S/N uVyf0xiFXkK8B6aesVPsIg • 16.8.2017: The Deceased was discharged as a bankrupt following the settlement of all liabilities of the Deceased’s estate by the Defendant. • 23.10.2017: The Defendant through his solicitors demanded that Marappan surrender the original title of the property to enable him to register his 5/6 share in the property. Marappan had failed/reluctant to accede to the demand. • 12.9.2018: The Defendant proceeded to file an action against Marappan for the same vide Suit 585. • 15.10.2018: The High Court allowed for the private caveat lodged by the Defendant on the property to remain until the disposal of Suit 585. • 11.3.2021, 14.3.2021-16.3.2021: Trial of Suit 585. • 8.4.2021: The Plaintiffs issued a letter of demand to Marappan. • 15.4.2021: Marappan’s solicitor responded with information of the status of Suit 585. • 7.5.2021: The Plaintiffs filed a suit against Marappan vide Suit No. WA-22NCvC-329-05/2021 (Suit 329). In the pleadings the Plaintiffs stated that the Deceased had bought their share in the property. However, the reliefs they sought mirror the reliefs sought here. S/N uVyf0xiFXkK8B6aesVPsIg • 12.5.2021: Written submissions were filed for Suit 585. • 24.5.2021: Submissions in reply were filed for Suit 585. • 31.5.2021: Marappan filed his defence to Suit 329. He had admitted to the fact pleaded in the Plaintiffs’ statement of claim that the Deceased had bought their share in the property. Marappan pleaded that he would abide to the judgments and orders of the courts. • 9.6.2021: The Plaintiffs filed their Reply to Marappan’s Reply in Suit 329. • 11.6.2021: Further Submissions/Clarifications were filed in Suit 585. • 14.6.2021: High Court delivered judgment for Suit 585. It allowed the Defendant’s claim against Marappan and declared, amongst others, that Marappan was the trustee of 5/6 share in the property for the Deceased and the Defendant as the beneficiary according to the Deceased’s will was entitled to the said 5/6 share in the property. Marappan’s counterclaim was dismissed. • 9.7.2021: Marappan filed an appeal vide Marappan’s Appeal 1326. Marappan had also filed an application to stay the execution of the High Court Order for Suit 585 citing Suit 329 as his reason. S/N uVyf0xiFXkK8B6aesVPsIg • 28.7.2021: The Defendant filed an application to intervene Suit 329. • 16.8.2021: The Plaintiffs objected to the Defendant’s application to intervene Suit 329. • 17.8.2021: Marappan filed his objection to the Defendant’s application to intervene Suit 329. • 13.9.2021: Marappan filed the Appeal Records to the Court of Appeal for Marappan’s Appeal 1326. • 23.9.2021: The High Court dismissed Marappan’s application for the stay of execution of the Suit 585 judgment. • 28.9.2021: Marappan filed a motion to the Court of Appeal to stay the execution of the Suit 585 judgment. • 6.10.2021: The High Court allowed the Defendant’s application to intervene in Suit 329. • 25.11.2021: The Court of Appeal dismissed Marappan’s motion to stay the execution of Suit 585 judgment. Meanwhile in Suit 329, upon the High Court’s order to allow the Defendant to intervene, the Plaintiffs filed an application to amend the writ. • 6.12.2021: The Defendant objected to the Plaintiff’s application to amend the writ in Suit 329. S/N uVyf0xiFXkK8B6aesVPsIg • 27.1.2022: The High Court allowed the Plaintiffs’ application to amend the writ in Suit 329. • 24.2.2022: The Defendant filed his Defence and Counter Claim in Suit 329. Marappan too filed his Amended Defence and Counterclaim against the Plaintiffs and the Defendant in Suit 329. • 11.3.2022: The Plaintiffs filed their respective Reply to the Defence and Defence to the Counterclaim to Marappan and the Defendant. • 24.3.2022: The Defendant filed his Reply to the Plaintiff’s Defence to the Counterclaim in Suit 329. • 25.3.2022: The Defendant filed an application to strike out Marappan’s Counterclaim against him in Suit 329. • 22.4.2022: Marappan filed his affidavit in reply to the Defendant’s said application in Suit 329. • 17.5.2022: The Defendant filed his affidavit in response to Marappan’s affidavit in reply for the Defendant’s said application in Suit 329. • 27.6.2022: The High Court allowed the Defendant’s application and Marappan’s Counterclaim against the Defendant was struck out in Suit 329. S/N uVyf0xiFXkK8B6aesVPsIg • 18.5.2022: Marappan filed an application to the Court of Appeal in Marappan’s Appeal 1326 to adduce new evidence which are the cause papers of Suit 329. • 3.6.2022: The Defendant filed his affidavit to object to Marappan’s said application in Marappan’s Appeal 1326. • 16.6.2022: The Court of Appeal fixed the hearing of Marappan’s Appeal 1326 for 14.8.2024. • 17.6.2022: Marappan replied to the Defendant’s affidavit for his said application in Marappan’s Appeal 1326. • 8.7.2022: Parties filed their respective submissions for Marappan’s application in Marappan’s Appeal 1326. • 19.8.2022: Submissions in reply were filed for Marappan’s application in Marappan’s Appeal 1326. • 9.9.2022: The hearing of Marappan’s application in Marappan’s Appeal 1326 was adjourned by the Court of Appeal on his request. • 23.11.2022: The Plaintiffs filed an application to intervene in Marappan’s Appeal 1326. • 28.11.2022: Marappan’s said application in Marappan's Appeal 1326 was again adjourned by the Court of Appeal due to a public holiday. S/N uVyf0xiFXkK8B6aesVPsIg • 16.6.2023: A ‘Legal Consultant’ tried to resolve the case on a 50:50 basis but was not successful. • 4.9.2023: The Plaintiffs’ filed a Citation in the Grant of Probate proceedings. • 7.9.2023: The Defendant underwent a medical surgery. • 19.9.2023: The First Plaintiff sent an email to the Defendant’s solicitors that attached his letter of 18.9.2023 that stated the Citation document (directing the Defendant to surrender the original Grant of Probate to the Registry of the High Court) was served on him on 7.9.2023. The Defendant (who was undergoing medical surgery on 7.9.2023) denied ever having receipt of such document at all. • 19.9.2023: On the same day this suit was filed by the Plaintiffs against the Defendant. The writ and statement of claim were not served on the Defendant. • 20.9.2023: There seemed to be some mixed up on the legal representations in the citation matter. • 22.9.2023: The Court of Appeal dismissed the Plaintiffs’ application to intervene Marappan’s Appeal 1326 was dismissed with costs. S/N uVyf0xiFXkK8B6aesVPsIg • 26.9.2023: The Citation was served on the Defendant’s solicitors, but it was returned to the sender who was the First Plaintiff. • 4.10.2023: The First Plaintiff received the returned Citation. • 11.10.2023: An Affidavit of Service was filed by the First Plaintiff that stated the Citation was served on the Defendant’s solicitors and mother although the Defendant’s mother had passed away in 2019. • 18.10.2023: The Grant of Probate was surrendered to the Registry of the High Court. [4] Studying the above, the issue that the Deceased owned 5/6 share in the property had already been decided by the courts in R Sivam’s Suit 948, Marappan’s Appeal 2412 and the recent Suit 585. There is no stay of execution of Suit 585 though attempts were made at the High Court and the Court of Appeal. Though the appeal against Suit 585 which is Marappan’s Appeal 1326 is pending before the Court of Appeal that is scheduled for hearing in August 2024, the point is the issue of the ownership of the share in the property have been adjudicated thrice over. [5] The effect and conclusion of the Court of Appeal’s decision when it had allowed Mariappan’s appeal in Mariappan’s Appeal 2412 is that the sale by the Deceased of his 5/6 share in the property to R Sivam was not proven. It was declared that Marappan held 5/6 share in the property in trust for the Deceased. That meant the 5/6 of the property was still the Deceased’s. That led to the initiation of Suit 585 by the Defendant against S/N uVyf0xiFXkK8B6aesVPsIg Mariappan. The High Court decided in favour of the Defendant. After full trial, it was declared that:

Marappan is only a trustee holding 5/6 share in the property for the Deceased;

(ii) The Defendant is the beneficial owner of the 5/6 share in the property;

(iii) Marappan is to surrender the Original Title to the said property to the Defendant within seven days of the date of valuation of the property;

(iv) Marappan is to execute the Memorandum of Transfer form and all other documents to effect the transfer to the Defendant;

The Defendant is to purchase Marappan’s 1/6 share in the property at the price valued by Messrs Khong & Jaafar; and

(vi) Marappan is to pay to the Defendant the rental proceeds for the property duly audited. [6] Although Marappan is appealing against this decision which is scheduled to be heard at the Court of Appeal in Augst 2024 (Mariappan’s Appeal 1326), there is no stay of the execution of the said court’s judge of Suit 585. The Plaintiff’s application to intervene in Mariappan’s Appeal 1326 had been duly considered and rejected by the Court of Appeal. S/N uVyf0xiFXkK8B6aesVPsIg [7] As clear as crystal it is evident that the issue of the Deceased’s ownership of the 5/6 share in the property had been duly ventilated and adjudicated. The solicitor Ti Chin Lee had confirmed the validity of the sale by the Plaintiffs and Subramaniam to the Deceased in 1996. Consideration had been duly paid by the Deceased to the Plaintiffs for their respective 1/6 share in the property. The Plaintiffs themselves had testified in R Sivam’s Suit 948 and had confirmed the same said facts. The Third Plaintiff who is Mariappan’s brother testified that he, the other Plaintiffs and Subramaniam had executed the agreement at the solicitor’s office and that that they have no rights over the property anymore since they had sold their respective 1/6 share in the property to the Deceased. To this Court’s mind, it does not only raise the applicability of the doctrine of res judicata but also the Plaintiffs’ legal footing for this suit. [8] There were also statutory declarations affirmed by the First and Second Plaintiffs and Subramaniam made earlier in 2011 which were made in pursuit of procuring the registration of the Deceased’s 5/6 share in the property which Marappan had repeatedly failed to do. The Defendant implored this Court to hold the Plaintiff’s claim - some three decades later that they were ‘threatened by some gangsters’ to give such evidence, an afterthought and making a mockery of the judicial system by filing this suit. [9] It was emphasised in the Defendant’s submissions that the Plaintiffs were very much aware of Suit 585 where the High Court after a full trial decided that the Deceased is the beneficial owner of the 5/6 share in the property. The Plaintiffs had chosen not to intervene Suit 585 which was filed in 2018. This Court noted that the Plaintiffs had never contested the S/N uVyf0xiFXkK8B6aesVPsIg sale of their 1/6 share in the property since 1996. On the other hand, on numerous occasions they had officially and under oath affirmed that fact. [10] Moreover, there is a letter to the Insolvency Department that bore Marappan’s confirmation 5/6 share of the property was the Deceased’s. Thus, in this Court’s considered view the Plaintiffs’ claims fail and the suit can be struck out at this interlocutory juncture based on several legal reasons:

doctrine of res judicata;

(ii) parties must be bound by the evidence that they had given in court;

(iii) time barred as the alleged transaction was in 19996, the Plaintiffs had notice when the Deceased first legally raised this matter in court when he sued Marappan in 2000;

(iv) the Plaintiffs lacked locus as they are not beneficiaries to the Deceased’s estate;

wrong forum to raise challenges as to the will and grant of probate which should be in the grant of probate proceedings;

(vi) no particular details of fraud in the statement of claim;

(vii) abuse of court process. Doctrine of res judicata [11] The issue of the ownership of the property had been decided a few times over by the courts. Parties must respect such findings and orders by the courts. As it stands now, the Deceased owned 5/6 share in the property. Unless and until that finding is overturned, it must remain. Furthermore, the court has granted the Defendant, the heir and S/N uVyf0xiFXkK8B6aesVPsIg beneficiary to the Deceased’s estate, the Grant of Probate. There is no stay in the execution of the order that favoured the Defendant pertaining the Deceased’s 5/6 share in the property and Marappan’s legal obligation to transfer his share of 1/6 in the property, amongst other orders. The Plaintiffs have full knowledge of this. No conduct ought to be allowed to frustrate the execution of the Defendant under the Grant of Probate. That includes filing such suit as this. [12] The Supreme Court case of Asia Commercial Finance (M) Sdn Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 89; [1995] 1 MLRA 611; [1995] 3 CLJ 783; [1995] 3 AMR 2559 clearly held: “The cause of action espottep prevents reassertion of a cause of action which has been determined in a final judgment by the same parties. On the other hand, the issue estoppel prevents contradiction of the correctness of a final judgment by the same parties in a subsequent proceeding. Further, the parties are also prevented from asserting a cause of action or issue which should have been forward in the earlier action, but was not, whether deliberately of inadvertently. Unlike an ordinary estoppel which should be pleaded, the court has the inherent jurisdiction to dismiss an action by applying the doctrine of res judicata, which is an estoppel based on public policy requires that there should be finality in litigation.” [13] Where the matter has already be litigated – as per the issue of the Deceased’s 5/6 share in the property, then parties and their privies are not permitted to litigate once more as the judgment has become the truth. S/N uVyf0xiFXkK8B6aesVPsIg [14] This principle was demonstrated recently by the Court of Appeal in Frankey Leong Pit Fui v Foong DA Realty Sdn Bhd [2020] 1 LNS 2212 where the appellant was precluded from raising or re-litigating the same or substantially the same or similar causes of action/issues/questions and/or reliefs which were fully litigated and conclusively determined by the High Court in another suit. See also Yow Man Kong @ Senthil Kumar v Ghandirajan a/l Arjunan & Anor [2023] 5 MLJ 64; [2023] 3 CLJ 503. [15] In this case, the doctrine of res judicata applies. The historical matrix sets out repeatedly the fact in issue of this suit that been deliberated and adjudicated by courts before. The suit obviously has not disclosed any reasonable cause of action and ought to be struck out. See Suppuletchimi Karpaya v Palmco Bina Sdn Bhd [1994] 2 CLJ 561. Parties must be bound by their own evidence [16] When the Plaintiffs (and Subramaniam) testified in court proceedings, they took the oath to tell the truth and nothing short of. This must be adhered to strictly as the courts of law depend on the evidence given to conclude the finding of facts. The Plaintiffs had testified that they had sold heir 1/6 share in the property respectively to the Deceased. This Court will not allow any turnaround of the evidence by the Plaintiffs now, as clearly and undoubtedly that would amount to enabling an unjust outcome as they could only be tantamount as afterthoughts by the Plaintiffs. This suit filed by the Plaintiffs could not stand on so many reasons based on their conduct. They had testified but now demonstrated the act of approbate and reprobate. They had full knowledge of all the court proceedings; yet the filed this suit against the Defendant to adjudicate on the same matter contending the opposite of what they had S/N uVyf0xiFXkK8B6aesVPsIg sworn as the truth before. They had filed Suit 329 against Marappan and then a few years later filed this suit which seeks similar duplicitous outcome. See Sarogini Devy Gurusamy Pillay Lwn Neelamagam Kurusamy Pillay [2017] MLRHU 530, Abric Project Management Sdn Bhd v Palmshine Plaza Sdn Bhd [2007] 1 MLRH 454, Kelana Megah Development Sdn Bhd v Kerajaan negeri Johor & Another Appeal [2017] 2 MLRA 452 and Lecone Sdn bhd v Mohamed Kassim Jamaludeen [2021] MLRSU 2. [17] This Court accepts the Defendant’s submissions that s115 Evidence Act 1950 estops the Plaintiffs from pursuing this action. Reproduced here is the legal provision: “When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief he would have acted, neither he nor his representative in interest shall be allowed in any suit of proceedings between himself and that person or his representative in interest to deny the truth of that thing.” [18] This Court finds it utterly reprehensible when parties swear to testify truthfully, only to later recant their statements, claiming they were not truthful. The act of giving evidence before the courts is not merely a formality; it is a solemn duty crucial to the pursuit of justice. Such cavalier attitudes towards truth-telling undermine the very foundation of our legal system. A party cannot be permitted to waver between truth and falsehood, attempting to reap the benefits of their testimony while disavowing its veracity when convenient. This Court will not tolerate such S/N uVyf0xiFXkK8B6aesVPsIg duplicity; to do so would be to condone a flagrant disregard for the principles of honesty and integrity upon which our legal system stands. Time barred [19] The transaction was conducted in 1996. It has been 28 years since. The Plaintiffs cannot claim ignorance of this fact especially so when the Deceased had first legally raised this matter in court when he sued Marappan in 2000. The Plaintiffs had also testified in R Sivam’s Suit 948. They could have informed the court of any allegations pertaining to the transaction with the Deceased then but did not. Decades later, they cannot be allowed to now contend that they had entered that contract under duress/fraud. There was no observation by the court of any semblance of duress/fraud when they testified in court. The Plaintiffs lacked locus standi [20] They are not beneficiaries to the Deceased’s estate. They have not pleaded their locus or interest to accord themselves the position to challenge the validity of the Deceased’s will. This Court had referred to s41 of the Probate and Administration Act 1959 in its consideration: “The Court may, on the application of any person interested, if it appears that there is reason to believe that any will or other testamentary document of a deceased person is in the possession or under the control of any person, or that any person has knowledge of the existence of such a will or document, order that the person do, within a time named, produce the will or document at S/N uVyf0xiFXkK8B6aesVPsIg the Registry, or attend at a time named before a Court, for the purpose of being examined in relation to that document.” [21] The Defendant was granted the Grant of Probate by the High Court in 2017. There were no interventions then by them. The Plaintiffs are not beneficiaries to the Deceased’s estate. They have failed to show that they have the locus standi and/or interest to contest the validity of the will dated 2015 under the hand of the Deceased. See Tan Chin Hock @ Sunny v Chan Teng Yoon & Anort [2022] MLRHU 2559, Kasi Arunachalam Chettiar v Mohandas Ghandhi & Ors [2021] MLRHU 75 and Lau Siang Kok, Lionel v Dalu Cho Kun, Datuk Seri Panglima [2012] MLRHU 729. Wrong forum [22] This suit and this Court are the wrong forum to raise challenges as to the will and grant of probate. Any issues ought to have been ventilated in the grant of probate proceedings. No particular details of fraud in the statement of claim [23] There are no particulars that detailed the fraud allegedly have occurred. Trite law is non-negotiable on this point – the particulars of alleged fraud must be particularised. Failing which the claimant would have no cause of action. Bare averments in the Plaintiffs’ statement of claim fall short of pleading particulars. This means the suit cannot stand. Striking out ought to be granted for want of reasonable cause of action. The decision of the Court of Appeal in Tung Kean Hin & Anor v Yuen Heng Phong [2019] 9 CLJ 493; [2019] 3 MLRA 580 binds this Court, at p512: S/N uVyf0xiFXkK8B6aesVPsIg “A general allegation of fraud is insufficient to mount the averment of fraud. In our judgment, para 28 of the Statement of Claim as pleaded is clearly insufficient on the issue of forgery and/or fraud. Unfortunately, the issue of lack of particulars in the pleadings was not addressed and considered by the learned Judicial Commissioner in his Grounds of Judgment. The non-particularisation of the allegation of fraud by the plaintiff in this case was clearly fatal.” [24] The other cases that illustrate the established legal principle include Wong Yew Kwan v Wong Yu Ke & Anor [2010] 2 CLJ 703; [2008] 3 MLRA 496; [2009] 2 MLJ 672. Abuse of court process [25] Having regard to all the factual matrix and circumstances of this case, this Suit filed amounted to the exploitation of court process to frustrate courts’ findings and orders given. The Plaintiffs’ statement of claim had put the Deceased who had since passed on in 2015 to prove that payments were made by them to the Deceased in the sale of their 1/6 share in the property respectively. This goes against the grain of the first few legal principles long established. A claimant must plead particulars and adduce evidence to court to convince the court on a balance of probabilities his claim. He cannot state bare claim and place the burden to prove his claim to another, in this case a deceased who had long passed away. Premised on this Court’s findings and reasons cited above, this suit ought to be struck for abuse of court process. See Middy Industries Sdn Bhd v Arensi-Marley (M) Sdn Bhd [2013] 3 MLJ 511; [2013] 3 MLRA 114 S/N uVyf0xiFXkK8B6aesVPsIg Order [26] Bound by the reasons above and the application of the law in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Sdn Bhd [1993] 4 CLJ 7, the Defendant’s application under Enc 11 is allowed. The Defendant had cited Suppuletchumi Karpaya v Palmco Bina Sdn Bhd [1994] 2 CLJ 561, Timah Ramlah Binti Dawi & Anor v Sarawak Medical Centre Sdn Bhd [2007] 5 MLRH 488, Syed Omar v Syed Mohamed v Perbadanan Nasional Bhd [2012] CLJ 557, Boo Are Ngor v Chua Mee Liang [2009] 6 CLJ 617 and Pang Fuu Man & 9 Yang Lain Lwn Pentadbir Tanah Daerah Segamat & 6 Yang Lain [2009] CLJU 1387. [27] The Plaintiffs’ suit is hereby struck out. Costs of RM15,000 is awarded to the Defendant, to be paid forthwith. With the collapse of the Plaintiff’s suit, the Defendant’s Counterclaim also fall. As can be seen, the Defendant’s Counterclaim hinged upon the Plaintiff’s claim. In any event, the Defendant had already obtained those reliefs sought for when the High Court had granted the judgment in his favour in Suit 585. DATED 19 APRIL 2024 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA KUALA LUMPUR S/N uVyf0xiFXkK8B6aesVPsIg For the Plaintiffs: Joseph Mathews a/l P.M. Mathews T/n Mathews & Associates For the Defendant: Nilam Bala a/p S Jaganath T/n Noor Nilam & Associates S/N uVyf0xiFXkK8B6aesVPsIg