1. ) Kaveryamma A/P Perumal v 1. ) Manogar A/L Perumal (JB-22NCvC-78-12/2019)

KAVERYAMMA A/P PERUMAL

MOHAN A/L PERUMAL

NAGAMMAH A/P PERUMAL

SAROJAH A/P PERUMAL

TAMILSELVAM A/L PERUMAL

MALAYANDI A/L PERUMAL (NO. K/P: 671212-01-5325) ... PLAINTIFFS

MANOGAR A/L PERUMAL

PANCHAVARNAM A/P PERUMAL (NO. K/P: 620803-01-5802) ... DEFENDANTS CORAM: SURIA KUMAR A/L DURAIRAJ JOHNSON PAUL JUDICIAL COMMISSIONER 17/05/2023 08:58:27 JB-22NCvC-78-12/2019 Kand. 50 S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 2  JUDGEMENT  BACKGROUND FACTS [1] The Plaintiffs and Defendants are siblings. They are the children of Perumal s/o Malayandy and Lachumey d/o Sinnaman. [2] The parties to this suit in order of their date of birth are as follows:- No. Name Parties Date of Birth a. Manogar a/l Perumal 1st Defendant 04.12.1956 b. Kaveryamma a/p Perumal 1st Plaintiff 18.12.1958 c. Mohan a/l Perumal 2nd Plaintiff 05.01.1960 d. Nagammah a/p Perumal 3rd Plaintiff 15.04.1961 e. Panchavarnam a/p Perumal 2nd Defendant 03.08.1962 f. Sarojah a/p Perumal 4th Plaintiff 16.01.1964 g. Tamilselvam a/l Perumal 5th Plaintiff 26.01.1966 h. Malayandi a/l Perumal 6th Plaintiff 12.12.1967 [3] Their father passed away in the year 2006 and their mother passed away in the year 2010. [4] The subject matter of dispute is a single storey terrace house held under HS(M) 1973, Lot PTD 1451, Mukim Chaah, District of Labis, Johor together the address known as No. 7, Jalan Meranti, Taman Sri Chaah, Segamat, Johor (hereinafter referred to as “the said property”). S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 3 [5] The Plaintiffs’ claim is that their late parents purchased the said property from Segamat Realty Sdn Bhd at the purchase price of RM50,000.00. The Plaintiffs contend that the purchase price was paid from their late parents income, EPF savings and contributions from all of them except for the 1st and 2nd Defendants. [6] In view of the fact that the late parents were not citizens of Malaysia and holding red identity card, the parents sought the consent of the brother of their late mother, one Andiappan a/l Manappan to purchase the property under his and the 1st Defendant name. Both agreed to become the trustees for the entire siblings which led to the transfer of the said properties onto their names for purpose of obtaining a loan from OCBC Bank. [7] The said property was charged to OCBC Bank vide presentation No. 5/1987 on 07.01.1987 (hereinafter referred to as “the 1st charge”). [8] The 1st charge was discharged on 24.08.2001. [9] In the year 2001, 5th Plaintiff requested their late mother that he required a loan of RM40,000.00 to carry out renovation works in respect of a property he bought at that material time. He notified their late mother that he needed to apply for a loan from the bank and therefore he required the Issue Document of Title to the said property to be charged again for the loan sum. [10] Although initially their mother did not agree with the idea for the said property to be charged for the second time, however after much convincing by some of the Plaintiffs, their mother then agreed for the said property to be charged for the second time after emphasising S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 4 to the 1st Defendant that he has to transfer the property to his siblings in equal share upon settlement of the loan. [11] Thereafter, Andiappan a/l Manappan’s name was removed as the co-owner leaving the 1st Defendant as the sole owner and the property was charged to OCBC Bank again for the 2nd time for a loan sum of RM40,000.00 for the benefit of the 5th Plaintiff and Overdraft Facility of RM10,000.00 to be used by the 1st Defendant (hereinafter referred to as “the 2nd charge”). [12] According to the Plaintiffs, prayers were carried out for their late parents at the said property and during that time, discussions were held between the siblings with regards to the interest of the siblings in the said property. However, from 2018 onwards, 1st Defendant no longer allowed them to carry out the said prayers from the said property. [13] Sometime towards the end of 2018, it came to the Plaintiffs’ knowledge that the 1st Defendant offered the property for sale in the market. [14] The said property is still currently charged to OCBC Bank and the 2nd charge has yet to be discharged. PLAINTIFFS CONTENTION [15] Plaintiffs contend that at all material times, it was their parents and not the 1st Defendant who purchased the property and since they were red colour identity card holders i.e. not being citizens, therefore the purchase was carried out under the name of their mother’s S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 5 brother, Andiappan a/l Manappan and the 1st Defendant. This was also done with the intention to secure a loan for the purchase of the property. [16] According to the Plaintiffs, although the purchase was by their parents, but for the aforesaid reason, the property was transferred to the name of Andiappan a/l Manappan and the 1st Defendant in equal shares with the understanding, agreement and undertaking that they are holding the said property in trust for all the siblings i.e. Plaintiffs and Defendants in equal share. [17] The Plaintiffs further contend that even after Andiappan’s name was removed as a co-owner and the said property was transferred solely onto the 1st Defendant’s name for purposes of applying for a second loan needed by the 5th Plaintiff, 1st Defendant continued to hold the property in trust for all the siblings i.e. Plaintiffs and Defendants in equal share. [18] However sometime at the end of 2018, it came to the knowledge of the Plaintiffs that the 1st Defendant was attempting to sell the said property contrary to his duty to hold the same in trust for the benefit of all the siblings. [19] This prompted the Plaintiffs to commence this action against the 1st Defendant for the following reliefs: - a. For a declaration that the 1st Defendant is holding the said property as a trustee for the Plaintiffs and Defendants in equal shares; S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 6 b. An order that Messrs. Bala Gopal & Associates, Advocates and Solicitors, of No. 13A, Jalan Banda Kaba, 75100 Melaka be empowered to obtain the redemption statement and to take actions to discharge the charge under presentation no. 470/2001 to OCBC Bank Malaysia Berhad and to receive the Original Issue Document of Title and the duplicate charge and the discharge of charge duly completed and signed by OCBC Bank Malaysia Berhad and to register the discharge of charge at the land office; c. An order that the 1st Defendant sign the Form 14A National Land Code and the relevant documents to transfer the said land to the Plaintiffs and Defendants in equal shares and surrender the transfer form to the solicitors within 30 days from the date of order to be made herein for the purpose of adjudication of the stamp duties and the payment of stamp duties and the registration of transfer in favour of the Plaintiffs and the Defendants in equal shares; d. In the event, the 1st Defendant fails to sign the transfer form, the Registrar of the Court be empowered to sign the transfer form on behalf of the 1st Defendant; e. Costs; f. Such further or other relief as the case may require. S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 7 DEFENDANT’S CONTENTION [20] The 1st Defendant is the eldest son of the family and started his career with “Kementerian Perdagangan” as an enforcement officer with an income of RM1,000.00 per month in Taiping, Perak. [21] In the year 1982, 1st Defendant purchased the said property with the deposit of RM1,000.00 paid to Segamat Realty Sdn Bhd at the purchase price of RM54,000.00 and applied for a loan to OCBC Bank, Segamat for the sum RM48,000.00 [22] In view of the the 1st Defendant just started to work, his salary was insufficient to secure the loan and requested his uncle Andiappan a/l Manappan who was working as a foreman at a factory in Chaah, Labis, Johor with an income of RM700.00 per month to be the co-borrower for the said loan of RM48,000.00. The repayment was RM360.00 per month for a period of 15 years. Although Andiappan’s name was used to secure the loan but he did not contribute any payment for the purchase of the property. [23] The 1st Defendant also obtained a loan of RM5,000.00 from the Government Officer’s Corporative Taiping Berhad to pay towards part payment of the purchase price and thereafter he paid back this loan via monthly instalments. [24] In the year 1985, the 1st Defendant was transferred to Sabah and he posted the monthly instalments to his sister, the 2nd Defendant who assisted him in making instalment payments to the bank. S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 8 [25] In the year 1986, the late parents came and stayed at the said property. [26] In short 1st Defendant contends that he purchased and paid for the said property, it belongs to him solely and is not held in trust for his siblings. ISSUES TO BE DETERMINED [27] From the perusal of the pleadings, evidence lead at the trial and written submissions of the parties, the following issues needs to be determined.

Whether purchase of the said property was made by parents of the Plaintiffs and Defendants using the name of Andiappan a/l Manappan and 1st Defendant.

(ii) If the purchase of the said property was indeed made by parents, whether Andiappan a/l Manappan and 1st Defendant agreed to hold the said property in trust for the Plaintiffs and Defendants in equal share and agreed to transfer it to the Plaintiffs and Defendants upon settlement of the loan from OCBC Bank.

(iii) Whether upon Andiappan a/l Manappan transferring his ½ share to the 1st Defendant, 1st Defendant continued holding the said property in trust for the Plaintiffs and Defendants in equal share and agreed to transfer it to the Plaintiffs and Defendants upon settlement of the second loan from OCBC Bank. S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 9

(iv) Whether Plaintiffs have locus standi to commence this action or the action has to be commenced by the estate of their late parents.

Whether Plaintiffs action is barred by the doctrine of laches. LAW RELATING TO TRUST [28] Principles of law on a whether a trust exist was clearly set out by His Lordship KK Wong J (as he then was) in Musfirah Nabila Musa v. Radziah Mohd Nor & Anor [2019] 1 LNS 2095 wherein His Lordship referred extensively to authorities surrounding this area of the law. [29] According to His Lordship: “[10] The requirements for a valid express private trust have been explained in Jemix Co Ltd & Anor v. Jemix Heat Treatment (M) Sdn Bhd & Ors [2019] 1 LNS 155; [2019] 2 MLRH 276, at [31] and [32], as follows: “[31] In the Supreme Court case of Yeong Ah Chee @ Yan Hon Wah v. Lee Chong Hai & Anor and other appeals [1994] 3 CLJ 20, at 26, Peh Swee Chin SCJ has decided that the three “essentials” of an express trust (3 Certainties) are as follows:

certainty of settlor’s intention to create a trust (1st Certainty); S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 10

certainty of subject matter (property) of the trust (2nd Certainty); and

certainty of object or beneficiary of the trust (3rd Certainty). [32] My understanding of the relevant cases regarding the 3 Certainties is as follows:

the 1st Certainty may be proven by –

a written agreement or document. In Geh Cheng Hooi & Ors v. Equipment Dynamics Sdn Bhd and other appeals [1991] 1 CLJ Rep 133; [1991] 1 MLJ 293, at 300, Gunn Chit Tuan SCJ (as he then was) in the Supreme Court implied a trust even though the agreements in question did not contain an express provision regarding the trust;

oral evidence - please see the decision of Suffian CJ (Malaya) (as he then was) in the Federal Court case of Wan Naimah v. Wan Mohamad Nawawai [1972] 1 LNS 164; [1974] 1 MLJ 41, at 41-42; S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 11

conduct of the relevant parties - please refer to the Court of Appeal's judgment delivered by Gopal Sri Ram JCA (as he then was) in ESPL (M) Sdn Bhd v. Radio & General Engineering Sdn Bhd [2004] 4 CLJ 674, at 687;

the relationship between the parties - Geh Cheng Hooi, at p. 300; and/or

all the surrounding circumstances of the case - ESPL, at p. 686 and 687;

the Court may infer the existence of the 1st Certainty based on the matters stated in the above sub-paragraphs (1)(a) to (e) - please see the judgment of Singapore’s Court of Appeal delivered by Sundaresh Menon CJ in Guy Neale & Ors v. Nine Squares Pty Ltd [2015] 1 SLR 1097, at paragraph 58;

so long as the 1st Certainty is proven or inferred by the Court –

the creation of an express trust does not require the execution of a trust deed. A declaration of an express trust may be made informally - Wan Naimah, at p. 41; and S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 12

an express trust may arise even if there is no use of the word “trust”, “confidence” or the like - please see the judgment of Megarry J (as he then was) in the English High Court case of Re Kayford Ltd [1975] 1 All ER 604, at 607. Re Kayford Ltd has been cited with approval by Zainon Ali JCA (as she then was) in the Court of Appeal in Qimonda Malaysia Sdn Bhd (in liquidation) v. Sediabena Sdn Bhd & Anor [2011] 8 CLJ 269; [2012] 3 MLJ 422, at paragraph 14;

regarding the 2nd Certainty, I refer to Guy Neale, at paragraph 59, as follows – “... The trust must define with sufficient certainty the assets which are to be held on trust and the kind of interest that the beneficiaries are to take in them. The definition will be sufficiently certain if it enables the trustee or the court to execute the trust according to the settlor’s intention (see Snell’s Equity ([50] supra) at para 22-016)." (emphasis added); and S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 13

the 3rd Certainty is fulfilled if a beneficiary of an express trust has been ascertained or is capable of ascertainment - please see the judgment of Jenkins LJ (as he then was) in the English Court of Appeal in Inland Revenue Commissioners v. Broadway Cottages Trust [1955] Ch 20, at 31. Broadway Cottages Trust has been applied by Winslow J in the Singapore High Court case of Re Chionh Ke Hu Deceased [1964] 1 LNS 168; [1964] 1 MLJ 270, at 273.” (emphasis added) [30] The authorities referred to in Musfirah Nabila Musa (supra), establish that the three certainties can be inferred from the conduct of the relevant parties, relationship between the parties and surrounding circumstances of the case. [31] As for the standard of proof, I am mindful that the standard is a higher one since the policy of law is that no person’s property should be burdened with the interest of another in the absence of clearest proof. [32] In ESPL (M) Sdn Bhd v. Radio & General Engineering Sdn Bhd [2004] 4 CLJ 674, it was held by Gopal Sri Ram JCA (as he then was) :- “There is one other point. In his written outline of submission, learned counsel for the plaintiff has argued that it is for the S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 14 defendant to prove beyond a reasonable doubt that a trust exists. In support he relies on the decision of the Court of Appeal of the Federated Malay States in Hameeda Bee v. Mrs. P Seenivasagam [1950] MLJ 267. The actual ratio of that case is accurately summed up in the headnote of the report, namely, “that clear and unequivocal language must be used to establish a trust”. However, in his brief judgment Pretheroe Ag CJ, quoted the following passage from the judgment of Viscount Cave LC in Po Kin & Anor v. Po Shein AIR [1926] PC 77: But on the other side there are also some most important facts. To begin with, and this no doubt is the most important of all, all this property stood in the name of the deceased; and on some of the documents it is stated that the deceased (apparently the deceased in person) paid the money. Of course, the burden is on the appellant to displace the natural inference to be drawn from that fact. The burden is no doubt a difficult one to discharge, because in all these benamidar transactions the very object of the parties is secrecy; but still the person who alleges that property conveyed to another belongs to him must prove his allegation and prove it beyond reasonable doubt. It is apparent from that passage that the learned Lord Chancellor was merely referring to a set of circumstances where a plaintiff claims to be the true owner of property registered in the name of the defendant and apparently paid for by the defendant. In our judgment, that passage S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 15 has no relevance whatsoever to the facts of the present instance. Further, we do not think by the phrase “beyond reasonable doubt” the Lord Chancellor was imposing the criminal standard of proof in those circumstances. He was merely emphasising the high degree of proof demanded by the circumstances postulated by him.” [emphasis added] Please also see Perman Sdn Bhd & Ors v. European Commodities Sdn Bhd & Anor [2005] 4 CLJ 750. ANALYSIS AND FINDING Issues No (i), (ii) and (iii) [33] The facts and evidence for issues (i), (ii) and (iii) are intertwined and can be dealt together. [34] Evidence lead by the Plaintiffs’ shows that the property was purchased by their parents from a Developer known as, Segamat Realty Sdn. Bhd. sometime in 1986. It was purchased using their parents’ earnings and savings in EPF together with contributions from the Plaintiffs to their parents towards payment of the monthly loan instalment. Plaintiffs contend Defendants did not contribute towards purchase of the said property. [35] Andiappan a/l Manappan (PW2), brother of the Plaintiffs’ mother testified that in 1986, his sister Lachumey d/o Sinnaman and her husband Perumal s/o Malayandy had a discussion with him with regards to purchase of residential house in Taman Sri Chaah, S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 16 Segamat, Johor at a purchase price of RM50,000.00 from a developer. PW2 further testified that since both Letchumey and Perumal were red identity card holders, therefore they were unable to purchase it under their name. According to PW2, his sister then asked him whether he is agreeable if the purchase is made using his name and in the name of their eldest son i.e. 1st Defendant with the intention the property is to be transferred to all her children at a later date. [36] According to PW2’s testimony, his sister told him that the purchase price will be paid from her savings with her husband, contributions from the children, withdrawals made by both of them from EPF savings and also by obtaining a bank loan. PW2 further testified that the repayment of the monthly loan sum will be from the Plaintiffs parents’ earnings and contributions from the Plaintiffs earnings. [37] The property they purchased is known as No. 7, Jalan Meranti, Taman Sri Chaah, Segamat, Johor. [38] PW2 also testified that his sister and her husband managed to make part payment towards the purchase price of the property from their savings and monies withdrawn from EPF. [39] Letters from EPF addressed to Segamat Realty Sdn Bhd and enclosing warrant for payments in favour of the said developer was produced by the Plaintiffs and marked as exhibits P1 (a & b). These letters were carbon copied to their parents respectively. [40] Exhibit P1 (a) shows that their mother Lachumey d/o Sinnaman had withdrawn RM6,309.26 being payment for “Skim Perumahan: S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 17 Taman Sri Chaah Fasa II”. Whereas Exhibit P1 (b) shows that their father Perumal s/o Malayandy had withdrawn RM11,023.00 being payment for “Pemaju Perumahan: “Segamat Realty Sdn Bhd”. [41] Title details stated in both this letter are not the title details for the said property. According to the 6th Plaintiff (PW7), there is an error and they were unable to seek for clarification from the developer since the developer no longer exists. Plaintiffs submit that their parents only purchased one property and therefore the withdrawals mentioned in both these letters refers to the same property known as No. 7, Jalan Meranti, Taman Sri Chaah, Segamat, Johor which their parents had purchased. [42] EPF statements in support of their parents’ withdrawals to pay towards the purchase price to Segamat Realty Sdn Bhd produced and marked as Exhibits P1 (c & d). [43] An officer from EPF (PW1) was called by the Plaintiffs to confirm issuance by EPF of both letters marked as Exhibit P1 (a & b) to Segamat Realty Sdn Bhd and the statement evidencing withdrawals made by their parents marked as Exhibits P1 (c & d). [44] In total, a sum of RM17,332.26 was withdrawn by their parents from EPF savings towards part payment of the purchase price for the said property. [45] The 1st Defendant (DW2) himself confirmed this fact during his cross-examination as follows: S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 18 “S : Sekarang saya nak tanya satu soalan mengenai bayaran yang hendak dibuat oleh ibu bapa kamu daripada wang simpanan pekerja kepada pemaju. Adakah kamu mempunyai pengetahuan bahawa ibu bapa ada keluarkan wang daripada KWSP untuk bayar kepada pemaju ini? : Dia ada mohon. Saya yang uruskan untuk mohon lepas itu saya dah pergi ke Sabah. : Kamu tahu mereka membuat permohonan untuk membuat pinjaman dari KWSP? : Saya yang cadangkan. ……… : Bagaimanapun saya percaya Encik Manohar tahulah. Ada buat permohonan kepada Kumpulan Wang Pekerja dan Kumpulan Wang Pekerja ada keluarkan bagi ibu. Letchumi tu ibu kan? : : RM6309.26 bayaran dibuat kepada Segamat Reality Sdn Bhd betul. Tengok surat tu betul-betul. Betul? : Betul. …………. S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 19 : Bukan di tengah. Sekarang muka surat 37. Bukan bawah sekali. Tengah-tengah. Tengok tajuk dia. : Pengeluaran. : Dari tajuk itu nama ahli Perumal. Perumal itu bapa bukan? : : Dan jumlah wang yang dikeluarkan adalah 11 000-00? : : Bayaran ini dibuat kepada pemaju? : Ditulis macam tu. : Sekarang ini Kumpulan Wang Simpanan Pekerja telah bayar terus kepada pemaju waran. Dia keluarkan waran untuk beli rumah. Setuju? : Saya setuju sini.” [46] Wherefore based on the available evidence, I am satisfied that the sum RM17,332.26 was indeed paid to the developer Segamat Realty Sdn Bhd by their parents from their EPF savings. [47] Next, Plaintiffs also adduced evidence to show that the balance purchase price was paid by obtaining a loan from OCBC Bank through the testimony of PW2. They produced a copy of the charge (Form 16A) which shows a charge executed in favour of the bank S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 20 by PW2 and the 1st Defendant (DW2) for repayment of loan sum RM34,000.00. [48] All the Plaintiffs testified that they contributed towards purchase of the property except for the 3rd Plaintiff who could not be present in Court to testify. [49] 1st Plaintiff (PW3) testified that she contributed to her parents from her earnings since she started to work at the age of 13 as a maid and as a labourer in an oil palm plantation. PW3 also testified that all her other siblings too contributed monies for the purchase of the property. According to PW3’s testimony, from these contributions, her parents were able to purchase the said property and service the loan instalments. [50] 2nd Plaintiff (PW4) testified that he contributed to his parents from his earnings since he started to work at the age of 13 as a labourer in an oil palm plantation and thereafter when he started to work in Singapore and later as a security guard. PW4 testified that from 1991 to 1992, he contributed towards payment of the loan instalments. PW4 also testified that all his other siblings too contributed monies for the purchase of the property. According to SP4’s testimony, from these contributions, his parents were able to purchase the said property and service the loan instalments. [51] 4th Plaintiff (PW5) testified that she contributed to her parents from her earnings when she was working in Singapore. PW5 also testified that all her other siblings too contributed monies for the purchase of the property. According to PW5’s testimony, from these S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 21 contributions, her parents were able to purchase the said property and service the loan instalments. [52] 5th Plaintiff (PW6) testified that he contributed to his parents from his earnings for purchase the said property and to pay the loan instalments. PW6 started work in Singapore and thereafter as a police officer. PW6 testified that from January, 1990 until the end of 1993, he made monthly loan repayments of RM327.00 to OCBC Bank and thereafter the 6th Plaintiff continued with the instalment payments until full settlement in 2001. [53] 6th Plaintiff (PW7) testified that he contributed to his parents from his earnings for purchase the said property and to pay the loan instalments until they passed away. According to PW7, he started work in Singapore and thereafter as a salesman in Johor Bahru and Segamat. Later on, PW7 qualified as a teacher and was teaching in the Government school. PW7 testified that from April 1994 until May 2000, he paid the monthly loan payments to OCBC Bank in the sum of RM327.00 and on June, 2021, he made full settlement by obtaining a loan from Bank Muamalat, Segamat through his wife who was working as a nurse in Segamat Hospital. [54] I find the evidence of PW2, PW3, PW4, PW5, PW6 and PW7 corroborate each other with regards to the contributions made by all the Plaintiffs towards their parent’s monthly loan payments for the said property. [55] Both Defendants conceded during cross examination that Plaintiffs did contribute their earnings to their parents for their expenses and household expenses. S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 22 [56] All these evidences collectively point to the fact that Plaintiffs were gainfully employed at one-point of time or the other and contributed monies from their earnings to support their parents’ financial commitments towards purchase of the said property. [57] Whereas according to the 1st Defendant (DW2), he is the eldest son and started to work as a Government officer with “Kementerian Perdagangan” with an income of RM1,000.00 per month. [58] 1st Defendant (DW2) testified that in the year 1982, he purchased the said property with a deposit of RM1,000.00 paid to the developer, Segamat Realty Sdn. Bhd. at the purchase price of RM54,000.00 and applied for a loan with OCBC Bank. DW2 further testified that since he just started to work, his salary was insufficient to secure a loan and hence requested his uncle Andiappan a/l Manappan who was working as a foreman at a factory with an income of RM700.00 to be the co-borrower for the loan sum of RM48,000.00. The loan repayment was RM360.00 per month for 15 years. According to DW2, although Andiappan’s name was used but he did not contribute any payment for the purchase of the property. [59] DW2 also testified that he obtained a loan of RM5,000.00 from the Government Officers Corporation Taiping Berhad to pay towards part payment of the purchase price and thereafter settled this loan via monthly instalments. [60] According to DW2, in 1985 when he was transferred to Sabah, the 2nd Defendant assisted him to deposit the monthly instalment payments to the Bank. S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 23 [61] However, DW2 failed to produce a single documentary evidence in support his contention that it was he who paid full purchase price for the property. His explanation was sometime on 25.12.2018, the 6th Plaintiff brought a lorry to the said property where he is residing and carted away his furniture and documents. This prompted DW2 to lodge a police report regarding the incident but did not produce the police report in Court. [62] If at all DW2’s contention was true, why then the original title deed for the said property was kept by their late mother in her custody upon discharge of the first charge and permission of their late mother was needed when the property was asked to be charged for the second time. [63] Plaintiffs also produced telephone bills (P7) and water bills (P8) bearing the address of the said property. These bills show the account for telephone services registered under Andiappan’s name whereas the account for water supply registered under their late father’s name, Perumal s/o Malayandy. If it was true that the property is owned by the 1st Defendant (SD2), why then the accounts for these utilities not registered under his name. [64] Plaintiffs also produced evidence of quit rent receipts and paid assessment rate bills in the name of Andiappan for the said property instead of the 1st Defendant (DW2) who claims to be owner of the said property. [65] According to the Plaintiffs, all the bills pertaining to the said property under Andiappan’s name was paid by their late parents. S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 24 [66] I find that the oral and documentary evidence adduced by the Plaintiffs points to a strong and irresistible inference that the property was purchased and paid for by their parents with the contribution from the Plaintiffs. [67] As such, Court finds DW2’s version that he solely purchased the property is not probable. [68] I also do not find the 1st Defendant (DW2) to be a credible witness. He was evasive in his testimony during cross examination especially when confronted with the EPF withdrawals made by the parents. On the first day of his cross examination, DW2 agreed the EPF withdrawals were made by his parents to pay the developer, Segamat Realty Sdn Bhd. However, when cross examination continued the following day, DW2 disagreed that Exhibit P1 (a & b) refers to withdrawals made by his parents from their EPF savings to pay the said developer. [69] Likewise, the 2nd Defendant (DW1) is also not a credible witness. From my observation of her demeanour during cross-examination, I found her to be evasive in her answers to the extent of supporting blindly 1st Defendant’s (DW2) version on how he purchased and paid for the said property which is doubtful and less probable. [70] I also find it is hard to believe the 1st Defendant’s (DW2) testimony that he had asked his siblings who were residing at the said property to pay rental in the sum of RM300.00 to RM400.00 monthly which sum was utilised to pay the monthly loan instalments. Firstly, the said rental purportedly charged by the 1st Defendant for a single storey house in a small town like Segamat in mid 1980s is certainly S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 25 a big sum. Secondly, I am doubtful whether Plaintiffs individually could afford to pay the purported rental sum monthly considering they were low income earners and started working mainly as labourers in the oil palm plantation. [71] The 1st Defendant testified that he purchased the said property from Segamat Realty Sdn Bhd for the sum RM54,000.00 and the loan sum from OCBC Bank was RM48,000.00. However, the transfer form executed by Segamat Realty for the sale and transfer of the said property produced by the Plaintiffs shows that purchase price and consideration sum is RM50,000.00 and the Charge Form executed by OCBC Bank shows the loan sum is only RM34,000.00. This is contrary to what 1st Defendant asserts and only corroborates the Plaintiffs version on the purchase price and loan sum. [72] Furthermore, when the Plaintiffs got the news that the 1st Defendant (DW2) was attempting to sell the property sometime at the end of 2018, they instructed their solicitors to send a notice of demand (Exhibit P3) dated 1.4.2019 to the 1st Defendant requesting him to execute a Trust Deed to confirm that he is holding the said property in trust for all the siblings until their respective shares is transferred onto their names. The 1st Defendant failed to respond to the said letter. [73] If the 1st Defendant’s contention that he purchased the property and is not holding the same in trust for his siblings is true, it is reasonable to expect him to promptly make a vigorous denial to the Plaintiffs said notice of demand. However, he failed to do so. In David Wong Hon Leong v. Noorazman Adnan [1995] 4 CLJ 155 His Lordship Gopal Sri Ram (CJA) (as he then was) held as follows : S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 26 “During argument, we registered our surprise at the learned Judge’s reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1986] 1 LNS 42[1987] 2 MLJ 479- 487 : In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff's testimony in support of such promise. Lord Esher M.R., in his judgment, remarked, Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise.’ (Emphasis added). Earlier, in his judgment, he said, ‘Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 27 must answer it if he means to dispute the fact that he did so agree. (The emphasis is ours.)” [74] I am of the view that the 1st Defendant’s failure to respond to the Plaintiff’s solicitors demand only raises an inference that the 1st Defendant knew all the while that the said property is a trust property held for the benefit for all the siblings. [75] Based on the relationship between the parties i.e. Plaintiffs, Defendants and their parents, conduct of the Plaintiffs in making contributions to their parents towards purchase of the property and surrounding circumstances of this case, I find the 1st certainty which is the parents’ (settlors) intention to create a trust in respect of the said property exist. [76] I am of the view that in all likelihood, surely their parents coming from a poor estate background and having gone through hardship in raising their children from meagre income as labourers in the oil palm plantation would have intended the said property being the only property purchased during their lifetime to be given for the benefit of all their children equally. [77] Next, I also find the 2nd certainty which is the subject matter of the trust, the said property exists. [78] Lastly, I find the 3rd certainty, the beneficiaries of the trust being the children of Perumal s/o Malayandy and Lechumey d/o Sinnaman i.e Plaintiffs and Defendants, exists. S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 28 [79] There is an express trust that the said property is to be held by the 1st Defendant in favour of the Plaintiffs and Defendants. [80] To sum up, my views on this case are as follows: -

The said property was purchased by the late parents;

(ii) The late parents intended the said property to be given to the Plaintiffs and Defendants as beneficiaries in equal share;

(iii) Andiappan and the 1st Defendant (DW2) held the property in trust for the benefit of all the siblings with the understanding or agreement or undertaking to transfer the same to the Plaintiffs and the Defendants upon discharge of the first charge;

(iv) Thereafter the 1st Defendant (DW2) continued to hold the said property in trust for the benefit of all the siblings with the understanding or agreement or undertaking to transfer the same to the Plaintiffs and the Defendants upon discharge of the second charge. Issue No (iv) [81] Defendants submit that the Plaintiffs have no locus to commence this action. [82] The basis of their objection is that since Plaintiffs’ contend that the property belongs to their parents and since their parents have S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 29 passed away, therefore they must be clothed with a proper Letter of Administration for the estate of their late parents to bring this action. [83] In support of this argument, learned counsel for the Defendants rely on the following authorities: -

P Govindasamy Pillay & Sons Ltd v Lok Seng Chai & Ors [1961] 1 MLJ 89;

(ii) Dato’ Ramesh a/l Rajaratnam v Datin Zaleha bt Abd Rahman & Ors [2014] 6 MLJ 651;

(iii) Harta Pusaka Dan/Atau Pentadbir Harta Pusaka Muhammad Ilyas Mohd Rashid & Anor V. Miskon Sulaiman & Ors [2018] 1 LNS 1700;

(iv) A Santamil Selvi Alau Malay and Ors v. Dato’ Seri Mohd Najib Tun Abdul Razak and Ors [2015] 4 CLJ 1035;

Deraman & Ors V Mek Yam [1977] 1 MLJ 52. [84] With due respect to the learned counsel for the Defendants, all the above authorities cited by him refers to situations where the estate of a deceased person is suing or being sued. As such these authorities are clearly distinguishable. [85] Whereas in our present case, although the property was purchased by the parents but it was never registered in their name. It was at all times held in trust jointly by Andiappan a/l Manappan (SP1) and the 1st Defendant and thereafter by the 1st Defendant solely for the benefit of the Plaintiffs and Defendants in equal share. As such it is not an estate property of their late parents. S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 30 [86] Plaintiffs being the beneficiaries under the said trust have rightfully commenced this action to recover their respective shares in the said trust property. Issues No. (v) [87] Defendants submit that the Plaintiffs claim is barred by the doctrine of laches but they do not elaborate in their submissions why they say so. [88] In making this submission, learned counsel for Defendants rely in the Court of Appeal’s decision in Tan Keng Yong @ Tan Keng Hong & Anor V. Tan Hwa Ling @ Tan Siew Leng & Ors [2022] 3 MLRA 414. In that case, Court of Appeal found that the doctrine of laches applied to the facts therein and held that the Plaintiffs have slept on their rights and acquiesced for a great length of time. They had slept with one eye open for about half a century and therefore, it is unjust to consider the Plaintiffs’ claim therein for a remedy where they have by their own conduct might fairly be regarded as equivalent to a waiver or an estoppel. [89] However, I am of the view that the doctrine of laches does not apply to the facts in our present case. [90] Firstly, the matter before this Court concerns a trust properly involving family members and will be considered on a different footing and upon a higher threshold analogous to the limitation rules with regards to trust property as decided by His Lordship Harmindar Singh Dhalliwal J (as he then was) Panchanath Ratnavale v. Sandra Segara Mahalingam & Ors [2012] 1 LNS 167 as follows:- S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 31 “Coming back to the instant action, and with these annotations in mind, I have come to the conclusion that the defence of laches cannot succeed for the following reasons. Although the Plaintiffs’ claim of family pressure and insufficient resources as a reason for their sluggishness in pursuing their rights may sound fame, I consider however that matters relating to the administration of an estate and trust property ought to be considered on a different footing and indeed upon a higher threshold analogous to the limitation rules with regards to trust property.” [91] Secondly, the property is still charged to OCBC Bank. It is not free from encumbrance and cannot be transferred to the Plaintiffs as beneficiaries of the trust at the moment. How can the Plaintiffs then demand the 1st Defendant to transfer the said property in equal shares in light of this charge still existing in favour of OCBC Bank. [92] Thirdly, according to the evidence lead by the Plaintiffs, after the passing of their father in 2006 and their mother in 2010 and whenever prayers were held for their parents in the said property, there were discussions amongst the siblings including the Defendants with regards to the interest of all parties in the said property. This fact shows that the Plaintiffs never slept on their right. They were continuously insisting on their interest in the said property with the 1st Defendant who was the eldest in the family. They probably were trying to resolve this amicably with the 1st Defendant. [93] Fourthly, only sometime towards the end of 2018, it came to the knowledge of the Plaintiffs that the 1st Defendant was attempting to S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 32 sell the said property contrary to his duty to hold the same in trust for the benefit of all the siblings. [94] This prompted the Plaintiffs to make a demand vide their solicitors notice of demand dated 1.4.2019 (P3) against the 1st Defendant requesting him whether he is agreeable to amicably execute a Trust Deed confirming that he is holding the said property in trust for all the siblings until their respective shares have been transferred onto their names. [95] As such, based on the above facts, I find that the Plaintiffs over a long period of time were trying amicably to resolve with the 1st Defendant in a family setting to carry out the duty entrusted to him by their late parents which was to have the said property transferred to all of them. They did not sleep on their rights. As such the doctrine of laches does not apply to the facts of this present case. FAILURE TO PLEAD RESULTING TRUST AND CONSTRUCTIVE TRUST [96] Defendants submit that Plaintiffs failed to plead resulting trust and constructive trust without elaborating why it should have been pleaded. No basis for this argument has been put forward by the Defendants. [97] Learned counsel for the Plaintiff submits that it is not necessary to distinguish the trust created as decided by Lord Diplock in Gissing v Gissing (1970) 2 ALL ER 780 as follows : - S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 33 “A resulting, implied or constructive trust - and it is unnecessary for present purposes to distinguish between these three classes of trust - is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired.” [98] In light of my above findings, this argument is misconceived and has to be dismissed. WHETHER 1ST DEFENDANT IS PROTECTED BY THE DOCTRINE OF INDEFEASIBILITY [99] Defendants contend that the 1st Defendants’ title is indefeasible pursuant to Section 340 of the National Land Code 1965 since Plaintiffs failed to adduce any evidence of payment pf the purchase price for the said property. [100] Plaintiffs commenced this action on the premise that the 1st Defendant is holding the said property in trust for them and is under a duty to transfer the same to all of them in equal share upon settlement of the second charge. [101] The Plaintiffs action is not premised on the fact that the 1st Defendant obtained the title to the said property pursuant to any of the circumstances mentioned in Section 340 (2) of the National Land Code 1965 (Revised 2020). S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 34

[102] Based on the foregoing reasons, Plaintiffs have proven their allegations on the existence of a trust in respect of the said property for the benefit of Plaintiffs and Defendants. [103] In the upshot, Plaintiffs’ claim is hereby allowed with cost. Dated this 10th January 2023 at Muar in the State of Johore. t.t. SURIA KUMAR DJ PAUL Judicial Commissioner High Court of Malaya Muar Johor Darul Ta’zim Counsels: For the Plaintiffs : Bala Gopal a/l Kerisnan with Khaw Thian Keat For the Defendants : Maniam K. Marappan Solicitors: For the Plaintiffs Messrs Bala Gopal & Associates Advocates & Solicitors No. 13-A, Jalan Banda Kaba 75100 Melaka [Ref. No. : BG/7038/15/L] S/N cfwhZ2EotEy8ZncsW4ke1g April 13, 2023 35 For the Defendants Messrs Manian K. Marappan & Company Advocates & Solicitors Suite 7.02, Tingkat 7, Wisma Sing Long No.9, Jalan Zabedah 83000 Batu Pahat Johor [Ref. No. : MKM/BP/10050/2019/mayen] Hearing Date : 11th January 2023, 12th January 2023 Decision Date : 13th April 2023 S/N cfwhZ2EotEy8ZncsW4ke1g