1. Paramjothi A/P Perumal v Letchimy A/P Samboo (12B-120-05/2015)

KUMARAVEL A/L MARIMUTHU … PERAYU-PERAYU DAN LETCHIMY A/P SAMBOO … RESPONDEN [DALAM MAHKAMAH SESYEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN NO: A52-357-06/2013 ANTARA LETCHIMY A/P SAMBOO … PLAINTIF

KUMARAVEL A/L MARIMUTHU … DEFENDAN-DEFENDAN] 2 GROUND OF JUDGMENT Introduction [1] This appeal arose from the decision of the Sessions Court which dismissed the Appellant’s (Defendant) on 13.5.2015 that allowed the Respondent’s (Plaintiff) claims. [2] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. At times, I refer ‘the 1st and 2nd Defendants’ as ‘the Defendants’ and individually as ‘the 1st Defendant’ and ‘the 2nd Defendant’. [3] I dismiss the appeal with costs. My grounds of judgment follows. Background Facts [4] The essential facts underlying the Plaintiff’s case as elucidated by the learned Session Judge can be summarised as follows:

The Plaintiff is a Malaysian citizen residing at No. A1, Lot 1313, Jalan Pudu 25/127, 40400 Shah Alam, Selangor.

The 1st Defendant is a Malaysian citizen residing at Lot 1313, C2, Jalan Pudu, Batu 8, Bukit Kemuning, 42450 Shah Alam, Selangor. 3

The 2nd Defendant is a Malaysian citizen residing at Lot 1313, C2, Jalan Pudu, Batu 8, Bukit Kemuning, 42450 Shah Alam, Selangor.

The 1st Defendant is the registered proprietor of a piece of property (1/56) described as GM 963 Lot 1313 Mukim Klang as at 11 September 2011 (hereinafter referred to as, “the said Lot”).

The 1st Defendant is the younger sister in law of the Plaintiff, the sister to the Plaintiff’s husband, whose Plaintiff’s husband is Munusamy a/l Perumal.

The Plaintiff claimed that prior to year 1997, the Plaintiff, her husband and the 1st and 2nd Defendant’s families lived in “Kampung Sg. Nipah, Batu Tiga, Shah Alam as one family. They were close and live happily as relatives.

Relying on the undertaking, promise and representation of the 1st and 2nd Defendants, the Plaintiff and her family at the end of year 1996, had cleared the said Lot and as many as twenty (20) lorries had carried out earth filling on the said Lot B2 and C2 (before constructing the House) and the total earth filling cost is RM4,000.00 (RM200.00 per day for each lorry).

In the midst of that, the Plaintiff’s husband named Munusamy a/l Perumai had passed on, on 21.1.1997 leaving the Plaintiff who is a housewife to shoulder all the responsibility in managing the 4 construction of the House at Lot B2 as planned by the Plaintiff, 1st and 2nd Defendants.

The construction works had commenced in the late year 1997 and completed in 1998 and the Plaintiff stated that as a housewife, she had to shoulder the responsibility in managing the construction work of the said House.

The Plaintiff claimed that the 1st Defendant had verbally allowed and consented for the Plaintiff to stay in the said Lot B2 permanently and had asked the Plaintiff to pay for the assessment and utilities bills of the said Lot B2. The Plaintiff claimed that around 2009, the 1st Defendant made the representation and promised with oral guarantee to transfer one per fifty sixth (1/56) part to the Plaintiff that is Lot B2 (the said Lot B2) but the Plaintiff said then need not to as the 1st Defendant had permitted and promised the Plaintiff that the Plaintiff may stay on Lot B2 forever for generations as the Plaintiff had incurred the cost of RM88,000.00 to build the House on Lot B2 and C2.

The Plaintiff claimed that the 1st Defendant promised to the Plaintiff that she may stay till the end of her life and the 1st Defendant will be the trustee for the Plaintiff in respect of Lot B2 as there was no monetary contribution from the 1st Defendant towards the construction costs of the House at Lot B2 and C2. 5

The Plaintiff claimed that the 2nd Defendant is the son of the 1st Defendant who is in possession of all the information and knowledge of the dealings between the Plaintiff and the 1st Defendant where the Plaintiff had used her monies for the construction of the double storey house at the said Lot (the said House).

On 12 September, 2011, the 1st Defendant had colluded with the 2nd Defendant, transferred the title of the Lot with the House from the 1st Defendant to the 2nd Defendant who is the son of the 1st Defendant, without the Plaintiff’s knowledge and with the intention to defraud and/or cheat the Plaintiff. Following from the said transfer, the 2nd Defendant had taken out a summons against the Plaintiff to evict her from the said Lot B2.

On 1.4.2013, the 2nd Defendant evicted the Plaintiff from Lot B2 and ignored the undertaking given by the 1st Defendant to the Plaintiff, which took place during the discussion in constructing the semi-detached House on the Lot B2. As a result of the said eviction, the Plaintiff had incurred moving out cost of RM600 being the transportation by using lorries from Lot B2 to another place on the said day and had to pay for labour charges of RM210.00 for seven workers. The Plaintiff avers that by evicting the Plaintiff from the said Lot B2, the 1st and 2nd Defendants have breached their contractual obligation and also have breached the trust. 6

Specifically, the Plaintiff claims that by evicting the Plaintiff from Lot B2 (page 11 of Appeal Record), the 1st and 2nd Defendants have: a) Breached the oral agreement allowing the Plaintiff to stay in the said Lot B2; b) Both the 1st and 2nd Defendants had cunningly colluded and had committed conspiracy to the detriment of the Plaintiff as their victim; c) Breach of fiduciary duty; d) Breach of duty of constructive trust; e) Breach of fraudulent trust;

The Plaintiff claimed that she suffered losses amounting to RM198, 410.00 which are particularised in her Statement of Claim (paragraph 23 of Statement of Claim, page 12 of Appeal Record) and through her solicitor’s letter, demanded on 17.5.2013 from the 1st and 2nd Defendants and to date the 1st and 2nd Defendants failed and/ or refused to pay the Plaintiff.

Notwithstanding, on 13.5.2015, the Learned Judge of Sessions Court, Shah Alam had granted Judgment against the 1st and 2nd Defendants. The 1st and 2nd Defendants not satisfied with the Judgment dated 13.5.2015, filed a Notice of Appeal dated 18.5.2015 against the Judgment in this High Court. 7

On 21.6.2016, the 2nd Defendant was declared a bankrupt upon the application made by the Plaintiff at High Court Shah Alam vide Bankruptcy suit No.: 29NCC-6442-07/2015. Defendants’ case [5] The learned counsel for the 2nd Defendant’s advanced several grounds as stated in the Memorandum of Appeal contained at pages 98-104 of the Appeal Record, however, averred that only one ground of appeal will be submitted as its main ground. The main ground of appeal is whether the Session Judge in granting the Plaintiff the Judgment on 13.5.2015, was proper and in accordance with the law, as to whether it could be entered against a person who have allegedly made representation, undertaking an oral guarantee when the person was only 11 years old. [6] The Defendants’ counsel argued that the Judgment dated 13.5.2015 granted against the 2nd Defendant was void ab initio as the representation, undertaking and oral guarantee allegedly made by the 2nd Defendant in 1996 was when he was 11 years old. [7] To support the averment, the Defendants’ counsel submitted relying on the laws, firstly on section 11 of Contracts Act 1950 which states that, “Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contraction by any law to which he is subject.” 8 The Defendants’ counsel relied on the Age of Majority Act 1971 where section 2 enacts that the minority of all males and females shall cease and determine within Malaysia at the age of 18 years as the age of majority. [8] The Defendants’ counsel relied on the case Ng Mei Kheng v JB Securities Sdn Bhd [1998] MLJU 75 which referred to section 11 of Contracts Act 1950 and section 2 of Age of Majority Act 1971 and the Federal Court case of Leha Binte Jusoh v Awang Johari Bin Hashim [1978] 1 MLJ 202 and the Privy Council case of Tan Hee Juan By His Next Friend Tan See Bok v Teh Boon Keat and Lai Soon [1934] The Malayan Law Journal [Vol. III]. Plaintiff’s case [9] The learned counsel for the Plaintiff submitted three areas centered to the main ground of appeal as to whether the claim against the 2nd Defendant could be enforced. The Plaintiff’s counsel submitted that it is trite law that the Court should be slow to disturb the findings of fact of the trial judge based on the authority of Samar binte Mansor v Mustafa Kamarul Ariffin [1974] 2 MLJ 713. [10] The counsel for the Plaintiff argued that this Court does not assist the Defendants who come before this Court with unclean hands and pointed to the case submitted by the Defendants, Singma Sawmill Co. Sdn Bhd v Aisan Holdings (Industrialised Buildings) Sdn Bhd (1980) 1 MLJ 21 where the Federal Court held that the courts do not assist a person who 9 comes with unclean hands. The Plaintiff’s counsel submitted the background of Plaintiff’s claim where prior to 1997, the 1st and 2nd Defendants sought the Plaintiff’s and Plaintiff’s husband’s financial assistance to build the House where in return the Defendants made representation and promised and guaranteed that the Plaintiff and her family shall live and owned part of Lot B2 of the House. [11] The Plaintiff’s counsel submitted that the 1st Defendant had permitted and allowed the Plaintiff verbally to live for generations and directed the Plaintiff to pay the levy and utility bills for lot B2 which strengthened the Plaintiff’s claim on the Lot B2 in equity. The Plaintiff’s counsel relied on the case of Sivapragasam Nagamany v Amaravathy V Nadesaon & Anor [2001] 8 CLJ 706 which decided that, “(1) To say that an oral agreement cannot be enforced is a totally misconceived proposition of law. Quite clearly an oral agreement comes within the short compass of an Order 81(1) a Rules of High Court 1980 so long as the agreement is not nebulous in terms of its subject matter, price or condition.

Specific performance is an equitable relief given by the court to enforce against the defendant the duty of doing what he agreed by contract.” [12] In relation to the third area, the counsel for the Plaintiff submitted that there was an undertaking, oral guarantee and representation between the Plaintiff and 1st Defendant that binds in equity the Lot B2 of the 1st and 2nd Defendants. The Plaintiff’s counsel submitted that there is proprietary 10 estoppel and an estoppel characterised as promissory estoppel that binds the Plaintiff and the 1st Defendant against the 2nd Defendant’s said property. [13] The Plaintiff’s counsel submitted that the 1st Defendant made representation, promised and orally guaranteed to transfer 1/56 of 1st Defendant’s property to the Plaintiff so that the Plaintiff can have the interests of Lot B2 which the Plaintiff had said need not to possess as the 1st Defendant had permitted and promised Plaintiff to stay Lot B2 forever and for generations and that the 1st Defendant promised will be the trustee for the Plaintiff for Lot B2. Based on the 1st Defendant’s representation, promise and oral guarantee, it is submitted that the 1st and 2nd Defendants are estopped to deny the Plaintiff’ rights and interests on Lot B2. The Plaintiff’s counsel relied on a number of cases on the doctrine of estoppel. [14] In the case of Kerajaan Malaysia v Mohd Mokhtar Bin Ali [1995] 4 MLJ 601, it is submitted that the principle on estoppel is enunciated, “(2) Estoppel by representation must be founded upon the following conditions:

there must be a representation made with the intention of inducing a person to alter his position or in short there must be a holding out; and

the person to whom the representation was made must have relied on it to alter his position or in short there must be reliance. The representation, which may be either by conduct or statement, must be clear and unambiguous and intended to be acted upon.” 11 [15] The Plaintiff’s counsel also pointed to the testimony of the Plaintiff which proves to show that the Plaintiff had incurred all the expenses where the money received and spent on the House was from her late husband’s savings, insurance and bank account. [16] It was also submitted that the age of the 2nd Defendant is irrelevant as the trial judge had considered all facts and evidence in finding and deciding that the 1st Defendant had represented, promised and guaranteed the Plaintiff to which the Plaintiff had relied and used her money and energy to build the House and therefore the 1st and 2nd Defendants should be estopped from evicting the Plaintiff. It is submitted that as the Plaintiff had been evicted from the House, she is entitled to compensation and damages based on equity or estoppel based on equity. APPEAL [17] After perusing the Appeal Record, the written judgment of the Session Judge and considering the written and oral submissions of the learned counsels for the Defendants and the Plaintiff, I dismissed the appeal with costs. This suit was brought by the Plaintiff who bears the burden to prove following section 101 of Evidence Act 1950 and the Federal Court case of Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure plantation Sdn Bhd [2017] 4 MLJ 697. [18] The heart of the matter is whether there arose equity or proprietary estoppel for the Plaintiff to have the equitable rights on the said Lot B2. This 12 is considering the Plaintiff’s claims and the representation, promise and oral guarantee made by the 1st Defendant and the 2nd Defendant who, the latter, was 11 years old at the time. [19] Based on the material facts, the Plaintiff had borne the expenses to build the House on Lot B2 and C2. It was not disputed that the Plaintiff had to bear the cost of building the House and paid for the levy and utility bills of the House. This is further corroborated by the copies of receipts and utility bills made by the Plaintiff. [20] I cannot deny that the evidence adduced overridingly shows that the Plaintiff had relied on the representation, promise and oral guarantee of the 1st Defendant where the Plaintiff incurred all the expenses to build the House and paid the utility bills while living on Lot B2. By relying on the representation, promise and guarantee of the 1st Defendant, the Plaintiff spent her late husband’s money to build the House on Lot B2 owned by 1st Defendant which could have been built on her own piece of land. [21] The money spent by the Plaintiff was the money received from her late husband’s KWSP, Indah Water Konsortium, Perkeso and United Oriental Insurance Berhad and the Plaintiff called her witnesses from the said organizations (page 265 of Appeal Record (1)) to testify and all the material documents including proof by recipients were exhibited at the trial. [22] Furthermore, the 1st and 2nd Defendants did not evict the Plaintiff prior to year 2011 until the 2nd Defendant filed the originating summons of 13

24.10.2011 to evict the Plaintiff. This Court is of the view that the reliance of the Plaintiff on the representation, promise and guarantee made by the 1st Defendant is within the knowledge of the 2nd Defendant who is also the material witness for the 1st Defendant. It is this Court’s observation that from the time the representation, promise and guarantee made by the 1st Defendant up till 24.10.2011 upon the 2nd Defendant reaching the majority age of 18 years old, the 2nd Defendant had all along knew of the Plaintiff’s reliance and interests on Lot B2. [23] In addition, upon careful perusal of the Notes of Evidence, there was discrepancy found in the oral evidence of the Defendants’ witnesses as to the money claimed obtained from the bank but they were not sure of the month and no documentary evidence to prove the Defendants as recipient could be produced at the trial (pages 705, 707 and 710 of Appeal Record

(2)). The burden to prove by the Plaintiff had been successfully discharged and remained with the Defendants. [24] Indeed the Plaintiff expanded money on the said property of the 1st Defendant which then became the property of the 2nd Defendant under the representation, promise and guarantee by the 1st Defendant that the Plaintiff will be able to live and remain there to which raises an equity. This Court holds the view that the Plaintiff has the right over Lot B2 in equity. [25] The law on equity derived from the English common law can be found on a number of authorities. This Court referred to the Supreme Court case of Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors [1993] 3 MLJ 252 attributed by the Plaintiff’s counsel where it was held 14 that there was an equity or an equitable estoppel protecting the defendant in his occupation for more than 30 years. In Cheng Hang Guan (supra) case, the plaintiffs being farmers and the tenants of the Khoo Kongsi’s land, claimed proprietary estoppel based on the expenditure of money by one of the plaintiffs on the Khoo Kongsi’s land, who is also the trustee, in the expectation or belief, encouraged by the trustee, that the plaintiffs could stay on the land and carry out farming activities as long as they wished, provided that they paid rent (page 406 [1993] 3 MLJ 252, page 55 of Tab 11 of Plaintiff’s Bundle of Authorities). [26] The English cases referred in Cheng Hang Guan & Ors (supra) case, Edgar Joseph Jr, Supreme Court Judge (as he then was) elaborated on the principle of equity and categories of estoppel which includes proprietary estoppel. I will not delve much, suffice to deliberate on one English case with the principles enunciated and as followed by our courts. In the English case of Inwards v Baker [1965] 2 QB 29 where the facts of that case is almost similar to the present case, the English Court of Appeal held that despite the legal title being in the plaintiffs, the son had an equity to remain in the bungalow “as long as he desired to use it as his home”. Judge Dakwerts LJ observed that the equity protects the son so that an injustice may not be perpetrated. [27] In Inwards v Baker (supra) case, Mr Baker allowed his son Jack to build a house on his land where Jack worked on the house with the help of one or two labourers and Mr. Baker helped him with 150 pounds. Upon the completion of the house, Jack lived in the house. Mr. Baker died in 1951 without mentioning the house built by Jack and Mr Baker’s wife was 15 appointed as executrix and her children as trustees. Although the trustees acknowledged Jack’s right to stay in the house, the trustees brought an action to evict Jack. [28] The Court of Appeal in Inwards v Baker (supra) case held that equity on expenditure in the land should not fail merely because of Jack’s interest to be secured was not expressly indicated. It was held that the court must look at the circumstances in order to determine how equity can be satisfied. In the words of Lord Denning MR, “…if the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with an equity…even though there is no binding contract to grant any particular interest to the licensee, nevertheless the court can look at their circumstances and see whether there is an equity arising out of the expenditure of money. All that is necessary is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in the expectation of being allowed to stay there….” [29] Accordingly, this Court may give relief to the person who has incurred the expenditure on another’s land by giving him or her an equitable lien on the property for the expenditure. In a more recent English case of Bradbury v Taylor [2012] EWCA Civ 1208, that case regarding a young couple who had uprooted themselves from Sheffield and moved to Cornwall to look after 16 an elderly relative relying on a promise that the elderly would leave them his house and land. The trial judge was found by the Court of Appeal as not wrong in evaluating that there was representation of detrimental reliance by the young couple. Although the young couple lived rent free in the large house of the elderly who then died of cancer, the move by the young couple and having to live apart and the travelling expenses incurred, all the activities and support by the young couple were taken into consideration by the trial judge. The trial judge remarked that it would be unconscionable for the promise or assurance not to be kept even if there was not initially a legally binding agreement. [30] The principle of proprietary estoppel expounded in the Supreme Court case of Cheng Hang Guan & Ors (supra) held that proprietary estoppel is one of the exceptions to the general rule that a person who spends money on improving the property of another has no right to claim reimbursement or any proprietary interest in the property. [31] Based on the facts and evidence before this Court, rightly, the Defendants are estopped from going against the representation, promise and guarantee orally made to the Plaintiff. This Court finds that the principle on estoppel enunciated in the case of Kerajaan Malaysia v Mohd Mokhtar bin Ali (supra) as attributed by the Plaintiff’s counsel had been satisfied in this instant appeal. [32] This Court viewed that as the Plaintiff had been evicted from the House, the Plaintiff is entitled to compensation based on the principles of equity and proprietary estoppel. This Court also finds that the Session Judge had 17 evaluated all the facts and evidence (pages 85 – 89 and pages 90 – 96 of Appeal Record) and made findings of fact that there was representation made by the 1st Defendant with the intention of inducing the Plaintiff to the extent of altering her position by using all of her late husband’s money due to Plaintiff’s reliance on the 1st Defendant’s representation, promise and oral guarantee. The Session Judge was not wrong in law in disallowing the prayers of the Plaintiff for items (b),(c),(d) and (f) of paragraph 25 of Statement of Claim (page 97 of Appeal Record). In light of the above reasons, I dismiss the appeal with costs. Dated: 30 April 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE 2ND APPELLANT/ 2ND DEFENDANT

NUR SYAFIQAH BINTI ABDULLAH 18 Messrs Rama Velu & Associates Peguambela & Peguamcara Bangunan CIMB, Bilik 203, Tingkat 2, Jalan Besar Jalan Sultan Abdul Samad, 42700 Banting, Selangor Darul Ehsan Tel: 03-3187 2073 Fax: 03-3187 5915 [Ref: RV/BTG/GOPAL] COUNSEL FOR THE RESPONDENT/PLAINTIFF K. KRISHNAN Messrs Krish & Kiew Peguambela & Peguamcara No. 17B (2nd Floor) Jalan Mewah 25/63, Seksyen 25 Taman Sri Muda 40400 Shah Alam SELANGOR DARUL EHSAN Tel: 03-5122 3589 Fax: 03-5122 3745 [Ref: KK/LIT/SAHCT/LETCHIMY SAMBOO]