Pentadbir-Pentadbir Harta Pusaka v Nazaruddin Bin Mohd Shariff @ Masari & 6 Lagi (B-02(NCVC)(W)-24-01/2018)

AHMAD AIDY BIN TALIB (No. KP: 650223-10-5139)

PENTADBIR-PENTADBIR HARTA PUSAKA IMRAN HADZALIE BIN ABDUL HAMID (No. KP: A0999235), SI MATI ... PERAYU-PERAYU

NAZARUDDIN BIN MOHD SHARIFF @ MASARI (No. KP: 560429-10-5039

NAHARUDDIN BIN MHD SHARIFF (No. KP:470603-10-5599)

NORDINAH BINTI MAT SHAHRIP (No. KP: 440502-10-5558)

SHAHARUDIN BIN MOHD SHARIFF (No. KP: 410606-10-5221)

NOREHARIZAN BINTI MASARI (No. KP: 630323-10-5728)

MADARUDDIN BIN MASARI (No. KP: 580418-10-6245) ... RESPONDEN-RESPNDEN [Dalam Mahkamah Tinggi Malaya Di Shah Alam Dalam Negeri Selangor Darul Ehsan, Malaysia Guaman Civil No: 22NCVC-687-12/2015) Antara

NAZARUDDIN BIN MOHD SHARIFF @ MASARI (No. KP: 560429-10-5039

NAHARUDDIN BIN MHD SHARIFF (No. KP: 470603-10-5599)

SHAHARUDIN BIN MOHD SHARIFF (No. KP: 410606-10-5221)

NORDINAH BINTI MAT SHAHRIP (No. KP: 440502-10-5558)

NOREHARIZAN BINTI MASARI (No. KP: 630323-10-5728)

MADARUDDIN BIN MASARI (No. KP: 580418-10-6245) ... PLAINTIF-PLAINTIF Dan

SYAMSER BIN SAAM (No. KP: 511121-71-5147)

PENTADBIR-PENTADBIR HARTA PUSAKA IMRAN HADZALIE BIN ABDUL HAMID (No. KP: A0999235), SI MATI

AHMAD AIDY BIN TALIB (No. KP: 650223-10-5139) ... DEFENDAN-DEFENDAN DIGABUNGKAN DENGAN (Dalam Perkara Mahkamah Tinggi di Shah Alam Dalam Negeri Selangor Darul Ehsan Malaysia Guaman Civil No: BA-22NCVC-355-06/2016)

NAZARUDDIN BIN MOHD SHARIFF @ MASARI (No. KP: 560429-10-5039

NAHARUDDIN BIN MHD SHARIFF (No. KP: 470603-10-5599)

SHAHARUDIN BIN MOHD SHARIFF (No. KP: 410606-10-5221)

NORDINAH BINTI MAT SHAHRIP (No. KP: 440502-10-5558)

NOREHARIZAN BINTI MASARI (No. KP: 630323-10-5728)

MADARUDDIN BIN MASARI (No. KP: 580418-10-6245) ...PLAINTIF-PLAINTIF

SYAMSER BIN SAAM (No. KP: 511121-71-5147)

PENTADBIR-PENTADBIR HARTA PUSAKA IMRAN HADZALIE BIN ABDUL HAMID (No. KP: A0999235), SI MATI

AHMAD AIDY BIN TALIB (No. KP: 650223-10-5139) ... DEFENDAN-DEFENDAN KORUM ZALEHA YUSOF, HMR YAACOB MD SAM, HMR LAU BEE LAN, HMR GROUNDS OF DECISION [1] This is an appeal by the Appellants against the decision of the learned Judicial Commissioner ('the JC') made on 22/12/2017 allowing the $ 1^{\mathrm{st}} $ to $ 6^{\mathrm{th}} $ Respondents' claim with costs and dismissing the Appellants' Counterclaim. [2] The Appellants are the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants whilst the Respondents are the $ 1^{\mathrm{st}} $ to $ 6^{\mathrm{th}} $ Plaintiffs in the Court below. [3] Having considered the Submissions of the respective Counsel and having perused the Records of Appeal before us, we unanimously allowed the appeal and the Counterclaim of the $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants. We now set out the reasons for our decision. Background Facts [4] The Plaintiffs had commenced 2 separate actions against the Defendants: (i) Suit 22 NCvC-687-12/2015 filed on 22/12/2015 ('Suit 687'); and (ii) Suit BA-22 NCvC -355-06 /2016 on 15/6/2016 ('Suit 355') (6 months later). Both Suits were consolidated for the purpose of the trial. [5] In this appeal the undisputed facts are -

(a) In Suit 687, the land held under GM2282, Lot No. 2226, Mukim Hulu Langat, Tempat Sungai Lui, Daerah Hulu Langat, Negeri Selangor ('Lot 2226') was once owned and registered under one Munah binti Banchi ('Munah');

(b) In Suit 355, the land held under GM1901, Lot No. 2796, Mukim Hulu Langat, Tempat Sungai Sab, Daerah Hulu Langat, Negeri Selangor ('Lot 2796') was once owned and registered under one Malim Mulia bin Raja Suwaran ('Malim'); and

(c) Both the sale and purchase transactions of Lot 2226 and Lot 2796 and the Memorandum of Transfer in respect of both Lots occurred in 1995. [6] The salient chronology of events which are relevant to this appeal as summarised in the Appellants' Executive Summary are as follows:

(a) Sometime in 1995 the $ 2^{nd} $ Plaintiff, Naharuddin bin Mhd Shariff together with the $ 1^{st} $ Defendant, Syamser bin Saam had approached the $ 2^{nd} $ Defendant, Administrators of the Estate of Imran Hadzalie bin Abdul Hamid at his office with the intention to sell Lot 2226 and Lot 2796 to the late Imran Hadzalie and the $ 3^{rd} $ Defendant, Ahmad Aidy bin Talib. The $ 2^{\mathrm{n d}} $ Plaintiff and the $ 1^{\mathrm{s t}} $ Defendant brought along the original documents of titles for Lot 2226 and Lot 2796 and the original Power of Attorney, both registered on 18/8/1995 and handed to the late Imran Hadzalie. The $ 2^{\mathrm{n d}} $ Plaintiff and the $ 1^{\mathrm{s t}} $ Defendant informed the late Imran Hadzalie that the $ 1^{\mathrm{s t}} $ Defendant is Munah's and Malim's grandson making him the rightful beneficiary of Munah and Malim.

(b) On 10/4/1995, acting as the $ 1^{\mathrm{st}} $ Defendant's representative, the $ 2^{\mathrm{nd}} $ Plaintiff had accepted the deposit payment for both Lot 2226 and Lot 2796. Two "Surat Akuan Penerimaan" dated 10/4/1995 were signed by the $ 2^{\mathrm{nd}} $ Plaintiff as acknowledgments and proof of the receipt of the deposit payment for Lot 2226 and Lot 2796 by the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants. The balance of the purchase price was paid directly by the late Imran Hadzalie to the $ 1^{\mathrm{st}} $ Defendant without the involvement of the $ 2^{\mathrm{nd}} $ Plaintiff.

(c) On 10/7/1995, after the purchase price was fully paid to the $ ^{1 \mathrm{st}} $ Defendant, the parties signed the Transfer Form (Form 14A) Lot 2226 and Lot 2796 before the Assistant District Officer as both Lots were Malay Reserve lands.

(d) On 28/7/1995, the Sale and Purchase Agreements for both Lots were signed between the 1 $ ^{st} $ Defendant and the late Imran Hadzalie and the 3 $ ^{rd} $ Defendant.

(e) On 18/8/1995 the Power of Attorney was registered at the "Pejabat Tanah and Daerah Hulu Langat". The Transfer Forms (14A) for Lot 2226 and Lot 2796 were also registered at the same place and the same date.

(f) On 23/8/1995, the $ 1^{\mathrm{st}} $ Defendant submitted his Surat Akuan bearing the same date as requested by the Pejabat Tanah.

(g) From 1997 onwards, quit rent for Lot 2226 and Lot 2796 were annually paid by the late Imran Hadzalie and the 3rd Defendant. There were no further dealings with the 2nd Plaintiff and the 1st Defendant. The parties resumed their usual lives and no issues arose on the sale and purchase transactions.

(h) On 30/9/2014, the late Imran Hadzalie passed away.

(i) Sometime in 2015, Lot 2226 and Lot 2796 (only part thereof) were acquired by the Federal Government for the EKVE highway project. Compensation awards were awarded to the $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants as the registered proprietors of both Lots.

(j) In early June 2015, the 1 $ ^{st} $ Plaintiff, Nazaruddin bin Mohd Shariff @ Masari came to the 2 $ ^{nd} $ Defendant's office and requested for the return of Lot 2226. The 1 $ ^{st} $ Plaintiff claimed that he did not know about the Sale and Purchase Agreement of Lot 2226 and the Power of Attorney used for the land transaction was a forged document. The $ 2 ^{n d} $ Defendant refused to entertain the $ 1^{st} $ Plaintiff's claims. No demand was made on Lot 2796 by the $ 1^{st} $ Plaintiff at that time.

(k) On 19/6/2015, the $ 1^{\mathrm{st}} $ Plaintiff then sent "What's App" messages restating the same claims to the $ 2^{\mathrm{nd}} $ Defendant and once again the $ 2^{\mathrm{nd}} $ Defendant refused the claims. In the What's App messages, the $ 1^{\mathrm{st}} $ Plaintiff had admitted that Munah was his stepmother (3 times) and that he does not have any right on Lot 2226 and want to return it to the rightful beneficiary. The $ 2^{\mathrm{nd}} $ Defendant still refused the claims. Nothing was mentioned on Lot 2796.

(m) On 22/12/2015, without any notice of demand sent to the $ 2^{n d} $ and $ 3^{r d} $ Defendants, Suit 687 was filed by the Plaintiffs against the $ 1^{s t} $ , $ 2^{n d} $ and $ 3^{r d} $ Defendants.

(n) On 15/6/2016, without any notice of demand sent to the $ 2^{nd} $ and $ 3^{rd} $ Defendants. Suit 355 was filed by the Plaintiffs against the $ 1^{st} $ , $ 2^{nd} $ and $ 3^{rd} $ Defendants.

(o) On 7/6/2017, the $ ^{2^{nd}} $ Plaintiff passed away. Throughout the commotions made by the $ 1^{st} $ Plaintiff since 2015, the $ 2^{nd} $ Plaintiff had remained silent and did not make any remarks or take any action at all even though he was the one who brought the original documents of titles for Lots 2226 and 2796 and the Power of Attorney related to the 2 Lots for the $ 2^{nd} $ and $ 3^{rd} $ Defendants' view for the purpose of the sale and purchase transactions in 1995. 5 Decision of the High Court [7] The learned JC made the following findings:

(a) Suit 687 and Suit 355 were not time barred and s.29 of the Limitation Act 1953 applied;

(b) Munah and Malim were the Plaintiffs' grandmother and grandfather respectively and thus the Plaintiffs have the locus standi to institute the Suits against the Defendants;

(c) The Power of Attorney stamped on 3/5/1994 is not valid; and

(d) The $ 2^{n d} $ and $ 3^{r d} $ Defendants had conspired to defraud the Plaintiffs. Issues on appeal [8] The grounds of appeal of the $ 2^{n d} $ and $ 3^{r d} $ Defendants briefly are that the learned JC has erred in his findings-

(a) that the Suits were not time barred;

(b) that Munah and Malim were the Plaintiffs' grandmother and grandfather respectively; thus they have locus standi to institute the Suits before the Court;

(c) that the Plaintiffs had discharged the burden of proof that the Power of Attorney granted to the $ 1^{\mathrm{st}} $ Defendant was fraudulent and invalid;

(d) that the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants conspired to defraud the Plaintiffs;

(e) when he made his judgment on unpleaded facts and issues; and

(f) in dismissing the $ 2^{\mathrm{n d}} $ and $ 3^{\mathrm{r d}} $ Defendants' Counterclaim. [9] Learned Counsel for the $ 2^{n d} $ and $ 3^{r d} $ Defendants took the position (i) if the Court finds in favour of the $ 2^{n d} $ and $ 3^{r d} $ Defendants on any one of the grounds of appeal in para (a), (b), (d) read together with (e), the appeal ought to be allowed; and

(i) Preparing and presenting as valid a Power of Attorney purportedly granted by Munah Binti Banchi made on 10.01.1995 with the full knowledge that at that material time Munah binti Banchi was no longer alive; and

(i) The $ 1^{\mathrm{st}} $ Defendant held out himself as the lawful representative of the decease, Munah binti Banchi vide a Power of Attorney dated 18.81995.

1 it is in mixed English and Malay language;

2 there are no other identification details of the donors except their names;

3 the PA is printed in Malaysia;

4 one Zaitun Nahar the attesting witness had attested based on information given to him by himself; and

5 the other attestation part was "Seen" by the Vice Consul." [23] It is trite law that parties are bound by their pleadings and it is a time honoured principle adhered to by the Courts to ensure parties are certain of what issues they are grappling with. The importance of particulars and the sufficiency of the particularisation of the particulars in cases involving fraud and conspiracy cannot be gainsaid as held by this Court in Maheswari Eliathamby & Anor v Koperasi Serbaguna Kebangsaan Bhd [2018] 1 LNS 1211 at paras 36 to 37 and CIMB Bank Bhd v. Veeran Ayasamy (Wakil Diri Kepada Letchimi Muthusamy, Si Mati) [2015] 7 CLJ 289 at 296 [19] to [22]. Counsel for the $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants submitted that the findings of the learned JC on the "disquieting features" are on a description of the Power of Attorney itself, the physical features when one looked at it. We are compelled to agree with learned Counsel's submission that this consideration did not fall within the pleaded case of the Plaintiffs given that their only complaint on the face of the Power of Attorney is that the Power of Attorney was executed prior or after or was given after the Memorandums of Transfer were entered into. In this regard we are of the considered view that the submission of the Plaintiffs on the fact that the original Power of Attorney and its attestation thereof was considered by the learned JC is immaterial given that this is an unpleaded issue. [24] One other factor which the learned JC looked at is the payment of 10% deposit wherein His Lordship stated among others, "The 2nd Defendant admitted that they had only paid the 10% deposit but the transfers were effected on 18.8.1995 without full payment being made." Counsel for the 2nd and 3rd Defendants candidly submitted that "it seems that His Lordship found that there is some concession in the evidence" and that if the Court was seeking for physical proof of payment like transfer of funds, cheque or telegraphic transfer, he conceded there is no such evidence. [25] We are satisfied that there is contemporaneous documentary evidence in the form of Memorandums of Transfer (Form 14A) which respectively showed that the following payments were remitted:

(a) for Lot 2226- "(a) Sebagai balasan jumlah wang sebanyak RM153,270.00 ringgit yang dengan ini saya mengaku telah terima;

(b) for Lot 2796- "(a) Sebagai balasan jumlah wang sebanyak RM144,855.00 ringgit yang dengan ini saya mengaku telah terima;". [26] Further we are satisfied there is evidence that full payment of the purchase price of the 2 Lots have been settled through the testimonies given in cross-examination of (i) Elida binti Kamaluddin (DW3), the advocate and solicitor who prepared the Sale and Purchase Agreements in respect of the 2 Lots and a partner of the Messrs. Elida Imran and Partners; and (ii) Puan Mismarni binti Abu Mansor (DW1), the remaining partner of the firm, the wife of the late Imran Hadzalie who was a partner of the firm prior to his death. Given the lapse of time of about 20 years from the time of the sale and purchase transactions in 1995 to the filing of the 2 Suits in 2015 (Suit 687) and in 2016 (Suit 355), we are of the view that the explanation of Puan Mismarni as to the non availability of documents is reasonable and the $ ^{2^{nd}} $ and $ ^{3^{rd}} $ Defendants could not be faulted for no longer maintaining records 20 years ago as they had no notice that the transactions would become contentious prior to that and given that the limitation period has also lapsed. [27] The Court of Appeal case of Md Hilmi Md Noor & Anor v. Azman Ahmad & Ors. [2016] 7 CLJ 360 was cited by the Counsel for the Plaintiffs to bolster their argument that the learned JC was correct in finding that conspiracy to defraud was proved against the $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants contending there was some similarity in the said case with the appeal before us. In this regard, we agreed with Counsel for the $ 2 ^{n d} $ and $ 3 ^{r d} $ Defendants that Md Hilmi Md Noor's case can be distinguished on the ground that allegations of fraud and conspiracy to defraud are fact sensitive and are dependent on fact findings. Unlike that case, the appeal before us turned on facts which showed that one of the Plaintiffs was present at the time of the sale and purchase transactions i.e. the 2 $ ^{nd} $ Plaintiff and that the finding of the learned JC on conspiracy to defraud was made outside the pleadings. Whether the Plaintiffs' actions were time barred under the Limitation Act [28] In respect of this issue, the learned JC took cognisance of the respective parties' stand as follows:

(a) it was the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants' pleaded case that the Plaintiffs are time barred in that the $ 2^{\mathrm{nd}} $ Plaintiff was aware of the transaction in 1995 and that the action ought to have been filed by 2007 based on s.9 of the Limitation Act; and

(b) the Plaintiffs' case was premised on fraud and/or conspiracy to defraud and they relied on s.29 of the Limitation Act contending that they were not time barred as the limitation period begun to run only when the plaintiff discovered the fraud. [29] The learned JC held the following at para 53 of his Lordship's Grounds of Judgment ('Grounds'): "53] Based on my findings with regard to the validity of the PA and fraud, I have no hesitation to find that both suits are salvaged by section 29 and that the Plaintiffs are not time barred as they were made aware in 2015." [30] The learned JC had earlier in the Grounds held:

(a) "6] It was discovered that the sale of both lots were done by the $ 1^{\mathrm{st}} $ Defendant and the $ 2^{\mathrm{nd}} $ Plaintiff (the late Naharudin)..."; and

(b) "41] The $ 1^{\mathrm{st}} $ Defendant did not defend this action and the $ 2^{\mathrm{nd}} $ Plaintiff had passed away. No other evidence was led except that both of them approached the late Imran and that the $ 1^{\mathrm{st}} $ Defendant entered into the Sale and Purchase Agreements with the late Imran and the $ 3^{\mathrm{rd}} $ Defendant using the forged PA. The allegation of conspiracy between the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Plaintiff are not proven although what the $ 2^{\mathrm{nd}} $ Plaintiff did was questionable. There was nothing to show any knowledge on the part of the $ 1^{\mathrm{st}} $ Plaintiff that he was aware of what the $ 2^{\mathrm{nd}} $ Plaintiff and the $ 1^{\mathrm{st}} $ Defendant did." (Emphasis added) [31] Premised on paras 6 and 41 of the Grounds the learned JC had made initial findings and had acknowledged that the $ 2^{\mathrm{nd}} $ Plaintiff was involved and had direct knowledge of the sale and purchase transactions of Lots 2226 and 2796 in 1995. [32] In fact there were two Akuan Penerimaan Wang for monies received by the $ 2^{nd} $ Plaintiff (on behalf of the $ 1^{st} $ Defendant) in relation to the sale and purchase transactions of Lot 2226 and Lot 2796. These contemporaneous documents dated 10/4/1995 were never challenged during trial confirmed the $ 2^{nd} $ and $ 3^{rd} $ Defendants' contention that the $ 2^{nd} $ Plaintiff had direct knowledge about the transactions. [33] We agreed with the $ 2^{n d} $ and $ 3^{r d} $ Defendants' submission that the learned JC erred when His Lordship had differentiated the standing of the $ 1^{s t} $ and $ 2^{n d} $ Plaintiffs in para 41 of the Grounds instead of considering them as equal and of the same standing because both of them were the Plaintiffs in their actions against the Defendants. The reasons being-

(a) $ 1^{\mathrm{st}} $ Plaintiff (PW1) had clearly admitted that all properties owned by their family were administered by the $ 2^{\mathrm{nd}} $ Plaintiff at all material times and the younger generations in the family have no knowledge concerning their properties and totally relied on the $ 2^{\mathrm{nd}} $ Plaintiff's knowledge on the same; and

(b) thus the learned JC should have accepted the $ 1^{\mathrm{st}} $ Plaintiff's evidence on the Plaintiffs' reliance of the $ 2^{\mathrm{nd}} $ Plaintiff's knowledge and not made his own findings against $ 1^{\mathrm{st}} $ Plaintiff's lack of knowledge of the said transactions. [34] Learned Counsel for the Plaintiffs during oral submission submitted that the there was no proper cross-examination of the Plaintiffs' witnesses. In this regard we find the submission of the Plaintiffs has been debunked when the learned Counsel for the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants' drew our attention to p.336 lines 13 and 22, p.338 line 14, p. 342 line 2, p. 344 lines 4 to 16 of the Notes of Proceeding. We observed that there was vigorous cross-examination of the $ 1^{\mathrm{st}} $ Plaintiff (PW1) by $ 1^{\mathrm{st}} $ Defendant's Counsel on the following Plaintiffs' documents whereby $ 1^{\mathrm{st}} $ Plaintiff agreed that-

(i) Malim Mulia's name did not appear at all on the two(2) Letters of Administration granted to the $ 2^{n d} $ and $ 3^{r d} $ Plaintiffs who are his brothers in relation to the estate of Khatib Besar bin Jainas @ Rava Acheh @ Juacheh ( deceased);

(a) based on proximity of the lands (para 24 of Grounds);

(b) based on the original titles of Lot 2796 and Lot 2226 being in the possession of " either the 2 $ ^{nd} $ Plaintiff or the $ 1^{st} $ Defendant...when they approached the late Imran." (para 25 of Grounds); and

(c) that "Malim and Sultan Palembang bin Raja Acheh alias Haji Ismail bin Raja Acheh @ Khatib Besar bin Jainas @ Rava Acheh @ Juacheh was one and the same person. Hence, Malim was the husband of Munah and the Plaintiffs' grandfather." (para 27 of Grounds). [37] However with respect we find that the learned JC erred when His Lordship drew the wrong conclusions when he failed to consider the fact that-

(a) in the "Harta dan Jadual Menunjukkan Tanggungan Dalam Harta Pusaka Khatib Besar bin Jainas @ Rava Acheh @ Juacheh (Simati)”， although 4 specific lots were mentioned therein but these lots were not Lot 2796 and Lot 2226 or at least Lot 2796 (Malim's land); and

(b) whilst Lot 864 referred by His Lordship in para 24 of the Grounds appeared in Schedule II of Form F but Lot 2796 (Malim's land) was not in the said Schedule II. [38] Thus for the foregoing reasons we find there is merit in the $ 2^{\mathrm{n d}} $ and $ 3^{\mathrm{r d}} $ Defendants' submission that the learned JC's findings in para 53 of the Grounds is inconsistent with what His Lordship held earlier in paras 6 and 41 of the Grounds because the Plaintiffs had already come to know and were already aware of those sale and purchase transactions since 1995 and not 20 years later in 2015 as alleged by the Plaintiffs. [39] During oral submission, learned Counsel for the Plaintiffs submitted that they relied on s.29 of the Limitation Act and they only knew of the transfer of the property in 2015 and only discovered when the notice of compensation was issued. Counsel argued that it would not be logical that the Plaintiffs did not want back their lands if they had known of the same earlier. Regarding the 2nd Plaintiff's involvement in the sale and purchase transaction of the 2 Lots, learned Counsel for the Plaintiffs submitted that since the 2nd Plaintiff had passed away, the 2nd Plaintiff's knowledge in 1995 of what was said, what happened, what was done and to what extent cannot bind the rest of the beneficiaries. [40] With respect we are of the view that the submission of the Plaintiffs is flawed. Our reasons are these. There is evidence from the $ 6^{\mathrm{th}} $ Plaintiff, Madaruddin bin Masari (PW2) that the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Plaintiffs, who are his brothers are left to manage the lands. This is not a case where all the beneficiaries are suing to protect their interest in the lands but rather in the High Court six (6) Plaintiffs brought the action against the $ 1^{\mathrm{st}} $ $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants. Only the two (2) Administrators, the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Plaintiffs can represent the beneficiaries and not these 6 Plaintiffs (out of 10 siblings). As Counsel for the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants submitted and which we are constrained to agree, it would have been different if they had sued the $ 2^{\mathrm{nd}} $ Plaintiff, but which was not the case here as the $ 2^{\mathrm{nd}} $ Plaintiff was in the same camp. [41] S.29 of the Limitation Act provides, among others, that "the period of limitation shall not begin to run until the plaintiff has discovered the fraud or mistake, as the case may be, or could with reasonable diligence have discovered it." [42] For the reasons which we have addressed above, since it is our finding the Plaintiffs have not proved their pleaded case of fraud and/or conspiracy to defraud against the Defendants, we are of the considered view there is nothing to justify His Lordship's finding allowing the postponement of the accrual of the limitation period under s.29 of the Limitation Act in both Suits. In other words, the Plaintiffs could not rely on s.29 of the Limitation Act. [43] Even if assuming that s.29 of the Limitation Act applied, the question which arises is whether the rest of the brothers could with reasonable diligence find out from the 2nd Plaintiff whether Lot 2226 and Lot 2976 had been sold. In Lin Kai Wing & Anor v. Lin Kai Lam & Ors [2016] 10 CLJ 77 at 90[51] this Court held that s.29 of the Limitation Act requires the person seeking to fall within its ambit and lengthen the period of limitation to establish that he could not, with reasonable diligence have discovered the fact. The same principle was echoed in another decision of this Court in Abdul Manaf bin Ahmad v. Mohd Kamil Datuk Haji Mohd Kassim [2011] 4 MLJ 346 at pp. 352- 353 para 10. [44] Given that "reasonable diligence" is an essential requirement to be made out in s.29, we agreed with the submission of the $ 2^{n d} $ and $ 3^{r d} $ Defendants' Counsel that the answer would be in the affirmative. This is because given the evidence in paras 6 and 40 above, without a doubt, 5 with reasonable diligence the brothers could have discovered about the sale and purchase transactions from the $ 2 ^{n d} $ Plaintiff. In such circumstances, s.29 of the Limitation Act would not aid the Plaintiffs in lengthening the limitation period. [45] For the reasons above, it is our considered judgment that the Plaintiffs' cause of action was already time barred when Suit 687 and Suit 355 were filed in 2015 and 2016 and ought to have been dismissed on this ground alone. Whether the Plaintiffs have locus standi to initiate the Suits [46] This issue turns on the determination of whether Munah and Malim are the Plaintiffs' grandmother and grandfather respectively. First we shall deal with Munah's Lot 2226. Essentially the Plaintiffs' case is that Munah was Masari's mother and was their grandmother whilst the $ ^{2^{nd}} $ and $ ^{3^{rd}} $ Defendants contended that Munah was the Plaintiffs' stepmother based on the WhatsApp communication between the $ ^{1^{st}} $ Plaintiff and the $ ^{2^{nd}} $ Defendant. [47] The only evidence relied on by the learned JC was the Jabatan Pendaftaran Negara search, exh. P1 wherein His Lordship said- "18] Be that as it may, exhibit P1 is not disputed provides unequivocal evidence that Munah being Masari's mother was therefore the Plaintiffs' grandmother. The $ 2^{n d} $ and $ 3^{r d} $ Defendants did not challenge exhibit P1." [48] On the JPN search, learned Counsel for the Plaintiffs submitted that the $ 2^{n d} $ and $ 3^{r d} $ Defendants did not cross-examine it. This is with respect incorrect. On the same note, we find the learned JC erred in his Lordship's finding with respect to the JPN search on two (2) counts i.e, (i) 5 interpretation of the JPN search; and (ii) the JPN search was unchallenged. [49] The learned JC erred in his finding in respect of the (ii) count because there is evidence on record that at the very outset, the $ 1^{\mathrm{st}} $ Defendant's Counsel took objection to the contents of the JPN search. [50] In respect of the (i) count, the following particulars in the JPN search have been reproduced for comprehension of the reasoning as to why the learned JC erred in his interpretation: [51] Counsel for the $ 2^{n d} $ and $ 3^{r d} $ Defendants submitted that the learned JC erred in his interpretation of the JPN search. We agreed with the submission of Counsel for the $ 2^{n d} $ and $ 3^{r d} $ Defendants in this regard because-

(a) the learned JC missed the notation "TIADA REKOD" under the column "Disahkan bahawa carian telah dibuat di dalam daftar dan; "

(b) the learned JC missed the notation "Maklumat Tidak Diperolehi" under the column " Maklumat Dalam Daftar (Jika ada); and

(c) there is evidence in cross-examination given by-

(i) PW2 ( $ 6^{\mathrm{th}} $ Plaintiff) that the particulars under the column "Butir-butir Dikatakan pada Daftar" were filled in by himself and that was the procedure when a search at the JPN was requested; and

(a) The learned JC in his finding had accepted that the $ 2^{\mathrm{nd}} $ Plaintiff has full knowledge and was indeed involved in the sale and purchase transactions since 1995 on both Lot 2226 and Lot 2796.

(b) The learned JC has made finding and accepted that the $ 2^{n d} $ Plaintiff together with the $ 1^{s t} $ Defendant were the ones who had brought the original documents to the $ 2^{n d} $ Defendant in 1995. And yet, the $ 2^{n d} $ Plaintiff was named as one of the Plaintiffs in Suit 687 and Suit 355 filed in 2015 and 2016 respectively.

(c) The $ 2^{n d} $ Plaintiff's actions clearly show that the Plaintiffs have conspired to injure and cause damage to the $ 2^{n d} $ and $ 3^{r d} $ Defendants.

(d) The learned JC had failed to appreciate that the $ 2^{n d} $ and $ 3^{r d} $ Defendants have clearly discharged the burden in proving their Counterclaim that the Plaintiffs did conspire among themselves to injure and cause damage to the $ 2^{n d} $ and $ 3^{r d} $ Defendants. Conclusion [56] For all the foregoing reasons we find there are merits in the appeal which compelled us to exercise our appellate intervention following the Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors. [2004] 4 CLJ 309 which endorsed the view of the Court of Appeal in Lee Ing 5 Chin & Ors. v. Gan Yook Chin & Anor [2003] 2 CLJ 19 and followed in Ho Hup Construction Company Bhd v. Woo Thin Choy [2015] 9 CLJ 706 at 730 [64]. [57] We unanimously made the following Order:

(i) allowed the $ 2^{\mathrm{nd}} $ and $ 3^{\mathrm{rd}} $ Defendants' appeal;