SAADIAH BINTI ALI v Affida Binti Ahmad (Pentadbir Harta Pusaka Dan Estet Si Mati Che Mariah Binti Mohd Tahir) (W-02(NCvC)(W)-2146-12/2023)

1.

SAADIAH BINTI MOHD ALI MANA-MANA ORANG YANG MENGHUNI TANAH YANG DIPEGANG BAWAH HAKMILIK HSM 5339 PT 8540 MUKIM BATU, DAERAH KUALA LUMPUR, WILAYAH PERSEKUTUAN KUALA LUMPUR. ... PERAYU-PERAYU DAN AFFIDA BIN AHMAD (Pentadbir Harta Pusaka dan Estet Si Mati Che Mariah binti Mohd Tahir) (NO. K/P: 830810-01-5232) ... RESPONDEN Dalam Perkara Mengenai Mahkamah Tinggi Malaya Di Kuala Lumpur Dalam Negeri Wilayah Persekutuan, Malaysia Guaman Sivil No. WA-22NCvC-166-03/2022 Antara AFFIDA BIN AHMAD (No. K/P: 830810-01-5232) (Pentadbir Harta Pusaka dan Estet Si Mati Che Mariah binti Mohd Tahir) ... PLAINTIF Dan 1.Saadiah binti Mohd Ali 2.Sukur bin Mohd Ali 3.Mohd Yusof bin Mohd Ali 11/09/2025 15:32:11 W-02(NCvC)(W)-2146-12/2023 Kand. 76 S/N pwAhJil59UmP0dPOYnuwRw

4.Mana-Mana Orang yang Menghuni Tanah yang Dipegang Bawah Hakmilik HSM 5339 PT 8540 Mukim Batu, Daerah Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur ... DEFENDAN-DEFENDAN CORAM: AZIZAH BINTI NAWAWI, JCA AZIMAH BINTI OMAR, JCA AHMAD FAIRUZ BIN ZAINOL ABIDIN, JCA GROUNDS OF JUDGMENT INTRODUCTION [1] This is an appeal against the decision of the High Court dated 28.11.2023 wherein the learned Judicial Commissioner allowed the Respondent's claim and dismissed the Appellants' counterclaim. [2] The Respondent is the Administrator of the estate of her late mother, Che Mariah binti Mohd Tahir ("the deceased"), having been appointed through a Grant of Letters of Administration issued by the High Court of Malaya in Kuala Lumpur on 24.5.2017. [3] The Appellants had been occupying land held under Individual Title HSM 5339, PT 8540 Mukim Batu, District of Kuala Lumpur, Federal Territory of Kuala Lumpur ("the land") and had constructed several residential structures thereon. S/N pwAhJil59UmP0dPOYnuwRw THE APPELLANTS' CASE [4] The Appellants contend that they have legal and beneficial interest in the land based on the following assertions:

The late Ali bin Salleh, father of the 1st Appellant, had purchased the land from one Haji Mohd Noor through a Sale and Purchase Agreement dated 2.10.1959 (Exhibit D16) for a consideration of $850.00;

Upon execution of the agreement and receipt of consideration, Haji Mohd Noor allegedly gave vacant possession to Ali bin Salleh while waiting for the registration of transfer of ownership;

After Haji Mohd Noor's death, the land was allegedly transferred to his beneficiary, Mustamam bin Tahir;

Mustamam bin Tahir, through two declarations dated 20.2.1972 (Exhibit D17) and 19.2.2005 (Exhibit D18), allegedly acknowledged Ali bin Salleh's beneficial interest in the land;

The deceased Che Mariah binti Mohd Tahir allegedly acknowledged the Appellants' beneficial interest as evidenced by a letter from Messrs Wan Haron & Associates dated 16.1.2012 (Exhibit D19) offering compensation of RM650,000 upon the sale of the land. [5] The Appellants further contend that Lot 4402 mentioned in the purported Sale and Purchase Agreement (Exhibit D16) is the same land as the current land held under HSM 5339 PT 8540, having undergone title changes over time. S/N pwAhJil59UmP0dPOYnuwRw [6] The Appellants argue that the Respondent, as the Administrator of the deceased's estate, is bound by a trust created between the estate and the Appellants. THE RESPONDENT'S CASE [7] The Respondent asserts that the Appellants are mere squatters without any legal rights or interests in the land and have been illegally occupying the land without authorization or permission from the deceased or the Respondent. [8] The Respondent contends that:

The title to the land is registered under the Respondent's name as Administrator of the deceased's estate, and there are no registered interests or encumbrances in favor of the Appellants or Ali bin Salleh;

The documents relied upon by the Appellants (D16, D17, D18, and D19) do not establish any beneficial interest in the land for the

The Appellants have failed to establish any link between Lot 4402 mentioned in Exhibit D16 and the land in issue (HSM 5339 PT 8540);

There is no trust relationship established between the deceased or the Respondent and the Appellants;

Even if the Appellants had any claims (which is denied), such claims would have been barred by limitation. S/N pwAhJil59UmP0dPOYnuwRw ISSUES TO BE DETERMINED [9] The central issues in this appeal are:

Whether the Appellants have beneficial interest in the land;

Whether the Respondent holds the land on trust for the

Whether the documents relied upon by the Appellants establish any beneficial interest in the land. ANALYSIS AND FINDINGS [10] It is clear in this current appeal, the critical issue is whether the Appellants are able to dislodge the deceased as the registered owner of the land and the Respondent as the Administrator named on the said title. Indefeasibility of Title [11] The cornerstone of the Malaysian land law system is the principle of indefeasibility of title, derived from the Torrens System. This principle, as codified in Sections 89 and 340 of the National Land Code ("NLC"), provides that the register is conclusive evidence of the proprietorship of land and that a registered title confers indefeasible rights upon the registered proprietor, subject only to limited exceptions. [12] In Bayangan Sepadu Sdn Bhd v Jabatan Pengairan dan Saliran Negeri Selangor & Ors [2022] 1 MLJ 701, the Federal Court reiterated the fundamental principles of the Torrens System, namely the mirror principle and the curtain principle. The mirror principle portrays that the S/N pwAhJil59UmP0dPOYnuwRw land title mirrors all relevant and material details about the property, while the curtain principle dispenses with the need to look beyond the register as the land title itself provides all relevant information. [13] The uncontroverted evidence shows that the land is registered under the name of the Respondent as Administrator for the estate of the deceased. This registration, pursuant to Section 89 of the NLC, is conclusive evidence that the title to the land is vested in the Respondent as Administrator. There is no endorsement or memorial on the title indicating any trust in favour of the Appellants or Ali bin Salleh. Indefeasibility of title cannot be challenged except under specific circumstances outlined in section 340(2) of the Code. Exceptions to Indefeasibility Despite the strength of registered titles, the National Land Code (NLC) provides important exceptions. According to Section 340(2), a registered title may lose its indefeasible status in cases involving: a) Fraud b) Misrepresentation c) Forgery d) Unlawful acquisition e) Acquisition through a void instrument [14] These exceptions create a balance between the security of land ownership and protection against improper transactions ( see Setiakon Engineering Sdn Bhd v. Mak Yan Tai & Anor [2024] 8 CLJ 190; [2024] CLJU 1625 FC). S/N pwAhJil59UmP0dPOYnuwRw [15] It was never the case of the Appellants at the Trial Court that there was any of the section 340(2) conditions being present. Their case was simply that they were entitled to the land in question by virtue of the arrangements entered between the elders in their family with those having the right over the said land. [16] Simply put, it was a plain and simple case of them failing to challenge the indefeasibility status of the title. On this point alone, it is sufficient to dismiss this appeal. [17] The High Court was correct in concluding that the deceased's title to the land is indefeasible under Section 341 of the NLC, even against claims of adverse possession. The principle of adverse possession is not recognized in Malaysian land law, and the length of occupation by the Appellants, no matter how long, does not confer upon them any proprietary rights to the land. Reliability and authenticity of documents relied by the Appellants [18] In trying to dislodge the Respondents claim and establish their counterclaim, the Appellants relied on several documents which were produced at trial. The documents were scrutinised by the trial court and it calls for an evaluation the said documents by us in this appeal as well. The documents which were made many years before must be examined carefully. Exhibit D16 (Purported Sale and Purchase Agreement dated 2.10.1959) [19] The purported Sale and Purchase Agreement (Exhibit D16) suffers from significant deficiencies that render it unreliable as evidence of any beneficial interest in the land. S/N pwAhJil59UmP0dPOYnuwRw [20] It is undisputed that Exhibit D16 was marked as a Category C document during trial, signifying that its existence, authenticity, and contents were disputed by the Respondent. The burden therefore rested squarely on the Appellants to prove its authenticity and reliability, which they failed to discharge. [21] The Appellants failed to call any witnesses who could authenticate the document. None of the purported signatories or witnesses to the document were called, nor was any expert testimony provided to verify the thumbprints appearing on the document. [22] It was also clear that the Appellants failed to provide any evidence establishing the chain of custody of this document from 1959 to the present day. While DW1 claimed the document was handed to her by her late father, no corroborative evidence was presented to substantiate this claim. [23] In her findings during the trial, the document, described by the learned Judicial Commissioner as a "small brown piece of paper," bears physical characteristics that raise questions about its authenticity. Its informal nature is inconsistent with the gravity of a land transaction document. [24] The reliability of the document can be further questioned. The content of the document, when properly translated, does not support the Appellants' contention. Rather than evidencing a sale of land to Ali bin Salleh, it appears to document Haji Mohd Noor's receipt of money from Ali bin Salleh for Haji Mohd Noor's own intended purchase of land under grant Lot 4402. S/N pwAhJil59UmP0dPOYnuwRw [25] Critically, the document lacks the signature of Ali bin Salleh, bearing only the thumbprint of "Haji Noor" and a witness. This undermines the claim that it represents a bilateral agreement between the parties. [26] These deficiencies, viewed collectively, cast serious doubt on both the authenticity and the probative value of Exhibit D16. The learned Judicial Commissioner was correct in questioning the document's reliability and concluding that it did not establish any rights in favor of the Appellants. Exhibit D17 (Declaration Letter dated 20.2.1972) [27] The Declaration Letter (Exhibit D17) purportedly from Mustamam bin Tahir is equally questionable. It purports to confer rights to Ali bin Salleh the right to reside on a portion of Lot 48506. The Appellants failed to call any witnesses who could authenticate this document. The purported representative who signed on behalf of Mustamam bin Tahir was not identified, nor called as a witness. Similarly, the advocate and solicitor named "Tunku Zuhri" who allegedly witnessed the document was not called to testify. [28] From the records of proceedings, the explanation provided by DW1 for not calling these witnesses was inadequate. She merely stated that she was advised by her solicitors that Tunku Zuhri was no longer in practice and could not be located. No evidence of any attempts to locate these individuals was presented. [29] To support their claim that witnesses could not be located, the Appellants produced search extracts from the Malaysian Bar Directory and Commissioner for Oaths Directory (Exhibits D25 and D26). However, S/N pwAhJil59UmP0dPOYnuwRw these documents provided no specific information about the individuals in question and did not demonstrate any diligent search efforts. [30] There was also non-compliance with statutory requirements. Exhibit D17 fails to comply with the requirements of the Statutory Declarations Act 1960 (SDA) where section 2 of the SDA requires that a declaration must be affirmed personally and signed personally by the person making the declaration. Exhibit D17 was signed by an unidentified representative, not by Mustamam bin Tahir himself. [31] These deficiencies do not support the Appellants’ claim of any beneficial interest in the land. Exhibit D18 (Statutory Declaration dated 19.2.2005) [32] The Statutory Declaration (Exhibit D18) purportedly made by Mustamam bin Tahir in 2005 suffers from similar deficiencies. This was the document relied upon by the Appellants to show Mustamam bin Tahir to conform the contents of D17. It also purported to correct the lot number to Lot 35464. There was a failure to call the Commissioner for Oaths Haji Kamaluddin bin Sulaiman, who allegedly attested to the declaration. No adequate explanation was provided for this failure. [33] Similar to D16, no evidence was presented to authenticate the signature of Mustamam bin Tahir on the document. The Respondent, while acknowledging that Mustamam bin Tahir was her uncle, did not confirm the authenticity of his signature on the document. [34] The learned Judicial Commissioner was correct in concluding that Exhibit D18 was unreliable and did not support the Appellants' claim of beneficial interest in the land. S/N pwAhJil59UmP0dPOYnuwRw Exhibit D19 (Letter from Messrs Wan Haron & Associates dated 16.1.2012) [35] The letter from Messrs Wan Haron & Associates (Exhibit D19) also fails to establish any beneficial interest of the Appellants in the land. This letter was relied on by the Appellant to show that there was acceptance on the part of the deceased to acknowledge the Appellants as having rights over the land. [36] Just like the other documents, the Appellants failed to call the relevant witnesses. In trying to introduce D19, no representatives from Messrs Wan Haron & Associates were called to authenticate the letter and explain its context. Similarly, they failed to call Mohd Zin bin Badar, who is mentioned in the letter as the source of information. The consequence of this failure renders the content of the letter based on information allegedly provided by a third party (Mohd Zin bin Badar) and not by the deceased herself. This renders the letter hearsay and of limited probative value. [37] Even if taken at face value, the letter does not acknowledge any beneficial interest of the Appellants in the land. It merely proposes a contingent compensation arrangement for squatters to vacate the land, conditional upon the removal of DW1's caveat. The further devaluation of the document was evident when DW1 admitted in evidence that she did not comply with the conditions set out in the letter, such as removing her caveat and vacating the land. This non-compliance renders any proposal in the letter ineffective. S/N pwAhJil59UmP0dPOYnuwRw [38] These deficiencies render Exhibit D19 unreliable as evidence of any acknowledgment by the deceased of the Appellants' alleged beneficial interest in the land. Documents IDD-14 and IDD-15 [39] The Appellants also relied on two documents marked as ID (for identification only):

Exhibit IDD-14 (Letter to Jabatan Penilaian dated 16.10.1989): [40] The Appellants failed to prove that this letter was issued by the deceased. PW1 testified that the signature on the letter was not that of her mother, and the Appellants failed to adduce any evidence to the contrary. The Appellants also failed to call Encik Zainal Abidin Osman from Jabatan Penilaian or anyone from that department to establish the existence and authenticity of the letter.

Exhibit IDD-15 (Proposed Plan for Subdivision): [41] The documents suffer from some basic critical information such as the date and signature of any party, including the deceased, the Appellants, or any official from the Town Planning Department. [42] DW1 admitted in evidence that there was no evidence to show that the plan was prepared on the instructions of the deceased. She also admitted that information about the plan was conveyed to her by a third party (Mat Zin) and not by the deceased, rendering her testimony about the document hearsay. [43] The learned Judicial Commissioner was correct in declining to place any weight on these ID documents, and the failure of the Appellants to S/N pwAhJil59UmP0dPOYnuwRw properly authenticate them. It is trite law that a document that is marked as ID cannot be part of evidence to be considered by a court. Conclusion on Documentary Evidence [44] The documents relied upon by the Appellants, viewed individually and collectively, fail to establish any beneficial interest in the land. The serious deficiencies in authentication, the failure to call material witnesses, the inconsistencies in content, and the references to different land parcels all undermine the reliability of these documents. [45] The learned Judicial Commissioner's finding that these documents were "inconsistent and unreliable" was well-founded on the evidence. There is no basis for this Court to disturb that finding on appeal. [46] In light of the principle of indefeasibility of title under the National Land Code, and the Respondent's status as the registered proprietor of the land, the Appellants' unauthenticated and unreliable documentary evidence falls far short of establishing any basis to defeat the Respondent's title. The documents have not established the Appellants' beneficial interest on the land. Whether a trust had been created [47] Section 344 of the NLC provides for the registration of trusts in the memorial of the title. There is no such registration of any trust in favour of the Appellants or Ali bin Salleh on the title of the land. [48] This court in Ong Kong Beng & Anor v. Ong Kong Leong & 3 Ors [2021] CLJU 2651; [2022] 3 AMR 839 reiterated that it is a settled principle of law that for a valid trust to exist, three essential elements must S/N pwAhJil59UmP0dPOYnuwRw be present: certainty of intention, certainty of object, and certainty of subject matter. A trust does not need to be documented formally or in writing to be legally valid, though clear evidence of these three elements is required (see Ong Kong Beng & Anor v. Ong Kong Leong & 3 Ors [2021] CLJU 2651; [2022] 3 AMR 839 CA). [49] Where there is nothing on the title or memorandum of transfer to bear out the existence of a trust, and no written document or trust deed to support the existence of a trust, the indefeasibility of title should not be undermined by mere suggestions of a trust. (see Low Tin Yong v Low Yong Thuan [2016] 5 CLJ 217 CA). [50] In Low Tin Yong (supra) this court made an observation on the scenario which is almost similar to the facts in this current appeal. It held: "[50] As stated at the outset, even if the lower standard were applied, we were of the view that the threshold was not met to warrant an inference that a trust subsisted on a consideration of the totality of the evidence. We were clear that if the evidence as a whole had been evaluated fully and cumulatively, the only tenable result or determination that would ensue would be that no such trust subsisted in favour of the siblings as a whole. [51] Firstly, there is nothing on the title or the memorandum of transfer to bear out the existence of such a trust. Section 344 of the National Land Code ('the NLC') provides for the registration of any trust created in the memorial of registration. In short, the title does not reflect that the appellant holds the said land on trust as a trustee. There is no endorsement with the word 'trustee' on the title S/N pwAhJil59UmP0dPOYnuwRw deed to the said land to evidence the existence of a valid trust in favour of the siblings. [52] There is no written document or trust deed to support the existence of a trust. Neither was there any attempt by the respondent or his other siblings to protect their alleged interest in the land by the entry of a caveat until 2013, some fifty years after the transfer of the land to the appellant. It is inconceivable that there would be no claim to the property during the entirety of this period, if indeed such a trust subsisted. The indefeasibility of title enjoyed by the appellant ought not to be undermined by the mere suggestion, some fifty years later, of the nebulous existence of a trust." [51] From the above a beneficial interest claim can be defeated when: i. The absence of trust indications on title deeds or transfer documents ii. Lack of registration under section 344 of the National Land Code iii. No written documentation supporting the trust's existence iv. No timely protection of alleged interests (such as through caveats) [52] When these elements are missing, courts are unlikely to recognize claims of trust against a registered landowner's indefeasible title, particularly when such claims are made after significant time has elapsed since the property transfer. [53] Applying the principles above, the documents relied upon by the Appellants do not establish any express trust. The purported declarations S/N pwAhJil59UmP0dPOYnuwRw (Exhibits D17 and D18) does not appoint the deceased or the Respondent as trustees. [54] The High Court was correct in concluding that there was no trust created in favour of the Appellants. Whether counterclaim barred by limitation [55] While the Appellants argue that limitation does not apply to trust property under Section 22 of the Limitation Act 1953, this exception only applies to actions by a beneficiary against a trustee in cases of fraud or for the recovery of trust property in the possession of the trustee. As established earlier, there was no trust relationship between the deceased or the Respondent and the Appellants. [56] It is our view that limitation has set in and the counterclaim is time barred. Failure to Meet Evidentiary Standards [57] The Appellants' case fundamentally failed to meet the requisite evidentiary standards in several crucial aspects. The Appellants, having asserted beneficial ownership of the land, bore the legal and evidential burden of proving this assertion. They failed to discharge this burden. [58] On the standard of proof, in claiming the existence of a trust, the were required to prove their case to a higher standard than the mere balance of probabilities ( see Low Tin Yong (supra).) [59] Again, much of the evidence presented by the Appellants constituted inadmissible hearsay. DW1's testimony about what she was told by her solicitors regarding the unavailability of witnesses, and about S/N pwAhJil59UmP0dPOYnuwRw what third parties allegedly told her regarding the land transactions, falls into this category. [60] These evidentiary failures are fatal to the Appellants' case. The learned Judicial Commissioner correctly applied the law of evidence in finding that the Appellants had failed to prove their claims. Identity of the disputed land [61] Much emphasis was place by the learned Judicial Commissioner on whether the Appellants were making reference to the correct land when establishing their claim at the Trial Court. She eventually ruled that the Appellants brought evidence in support of a land which was not the subject matter of the claim. [62] Prior to this appeal being heard, this Court allowed the Appellants to adduce fresh evidence which were not obtained during trial. The evidence was in the form of a Letter dated 9.1.2024 issued by the Pejabat Tanah dan Galian Wilayah Persekutuan. The letter clarified that Lot 4402 which was referenced in D16 (the purported Sale and Purchase Agreement) is the subject matter of the current dispute. The differing reference as to the lot numbers came about as a result of subsequent subdivisions on the land. Given the new evidence produced, we accept that the Appellants had rightly mounted claim on the subject matter in dispute and that the finding of the learned Judicial Commissioner was erroneous as she was not privy to the information. No appellate intervention required [63] It is our view that the erroneous finding by the Learned Judicial Commissioner on the identity of the disputed land did not render the S/N pwAhJil59UmP0dPOYnuwRw decision of the learned Judicial Commissioner wholly defective rendering the decision to be set aside. [64] We are of the view that the learned Judicial Commissioner did not commit any appealable errors that merits appellate intervention when the entire reasoning of the learned Judicial Commissioner is taken as a whole. [65] We must take cognisant of the advantage the Trial Court had on being able to hear and observe the demeanour to the witness during trial. The first-hand ability to assess the witnesses “in the heat of the moment” in person is a critical advantage that an appellate court does not enjoy. [66] We are guided by the decision of the Federal Court decision in Ng Hoo Kui & Anor V Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] MLJU 1469 where the Federal Court held that in applying the "plainly wrong" test, a higher court can overturn a lower court's decision if it finds the lower court's factual findings to be demonstrably incorrect or unreasonable. This test essentially means that an appellate court will only interfere with a trial court's decision if it is so clearly wrong that no reasonable judge could have reached that conclusion based on the evidence presented. [67] Applying the "plainly wrong" test, it is our view that the Learned Judicial Commissioner had properly considered all relevant evidence. She did not make any significant errors in interpreting the law, or reached a conclusion that is not supported by the facts on the record. S/N pwAhJil59UmP0dPOYnuwRw CONCLUSION [68] Reverting to the identified issues for determination, we find that the learned Judicial Commissioner rightly found the absence of any beneficial interest proven in favour of the Appellants. She also rightly ruled that there was no trust created and proven in court. We also agree that the documents relied on by the Appellants did not support the claim of the Appellants in their quest to contest the claim of the Respondent at the High Court. [69] For the above reasons, we dismiss the appeal and affirm the decision of the High Court. [70] Costs of RM30,000 is awarded for this appeal and in addition, costs of RM10,000 is awarded for the two motions filed in this court. All costs awarded are subject to allocator fees. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge Court of Appeal Malaysia Dated: 2nd JULY 2025

A. Lourdes Abishegam

Normadiah Binti Mohammad For the Respondent - (K' MURA & CO) Murad Ali Bin Abdullah S/N pwAhJil59UmP0dPOYnuwRw