Siti Hawa @ Asiah Binti Yaacob v Baharun Bin Zakaria (DA-22NCvC-47-09/2021)

1.SITI HAWA@ ASIAH BINTI YAACOB (NO. K/P: 481203-03-5124) (NO. K/P: 640821-03-5813) (NO. K/P: 680604-03-5442) (NO. K/P: 700708-03-5565) (NO. K/P: 720521-03-5061) (NO. K/P: 750113-03-5908) (NO. K/P: 750113-03-5844) … THE PLAINTIFFS AND BAHARUN BIN ZAKARIA (NO. K/P: 590607-03-5537) … THE DEFENDANT JUDGMENT 12/03/2025 08:40:43 DA-22NCvC-47-09/2021 Kand. 57 Introduction [1] This action was brought by the plaintiffs who are the heir of the late Adnan bin Husain (“the deceased”) against the defendant to recover ½ undivided share in the land held under GM 1571, Lot 1382 Mukim Kubang Sepat, District of Pasir Mas, Kelantan (the land) which was alleged to have been transferred by the deceased to the defendant by way of fraud and/or misrepresentation and/or undue influence. Factual background [2] The land was previously registered in the following names: i) Adnan bin Husain - ½ undivided share; and ii) Arifin bin Abdul Rahman - ½ undivided share. [3] In April 2020, the deceased and the plaintiffs learnt from one Mohd Nor Ikmal Hafiz Bin Sopie (SP2) that the land was for sale. [4] Based on the information from the SP2, the plaintiffs had enquired with Pasir Mas Land Office and found out that the deceased’s ½ undivided share in the land had been registered in the name of the defendant. Issues to be tried [5] The parties had put forward 9 issues to be tried. However, after setting aside the repetitive and overlapping issues, this Court found only four issues to be tried as follows:

Whether the defendant has committed a fraud and/or misrepresentation on the deceased and on the first plaintiff that the original document of title of the land had been damaged and the defendant had asked the deceased to execute a document of transfer (form 14A - National Land Code) dated 10.7.2019 purportedly to be the application form for the issuance of the substituted document of title.

(ii) Whether the defendant, as a cousin to the deceased, had taken advantage over the old age and poor health conditions of both the deceased and the first plaintiff and had induced him to execute the transfer form dated 10.7.2019 to the defendant.

(iii) Whether the transfer form dated 10.7.2019 that was executed by the deceased at the deceased's home instead of at Kuala Krai Land Office and not in the presence of the Assistant Land Administrator of Kuala Krai, Tengku Kamaruddin bin Tengku Alias was a valid transfer form.

(iv) Whether the deceased’s ½ undivided share in the land had been sold during his lifetime to the defendant's brother-in-law, Arifin bin Abdul Rahman. [6] Since the first and second issues are inter-related to each other, the Court will consider these two issues together. Summary of the plaintiff's submissions on the first and second issues. [7] The learned counsel for the plaintiff argued, inter alia, that the defendant, as a cousin of the deceased, had somewhere in March 2019 gone to the deceased's house in the absence of the other plaintiffs except the first plaintiff and had committed a fraud and/or misrepresentation to the deceased and the first plaintiff by representing to them that the document of title of the land had been damaged and the defendant had asked the deceased to sign a form purportedly to be an application form for substituting the document of title of the land while knowingly it was, in deed, a transfer form (Form 14A-NLC). [8] The learned counsel for plaintiffs also submitted that at the time of the incident, both the deceased and the 1st plaintiff were not in good health condition as they were suffering from severe diabetes which caused poor eye sight and hearing problem and they were unable to read and write on their own. [9] PW3 in her evidence informed the Court that she knew that the defendant had committed a fraud and misrepresentation on the deceased because the deceased had informed her thru a phone call that the defendant came to the deceased's house and asked him to sign an application form for substituting the document of title of the land. [10] The plaintiffs further relied on the fact that on 20.06.2020 the defendant came to the deceased's house with a lawyer named Azura and one Zaidi and met the deceased together with the 5th plaintiff and his uncle named Azmi Yakob where the defendant requested and/or threatened the deceased not to proceed with any action to recover the land and offered to return the land to the deceased on the condition that the deceased had to pay the current marked value of the land and to bear all the costs of the transfer. [11] PW1 had, on the instructions of the deceased, lodged a police report at Pasir Mas Police Station on 27.06.2020 (P5) pertaining to the transfer of the land from the deceased to the defendant and the discussion that took place at the deceased's house. Summary of the defendant's submissions on the first and second issue. [12] The learned counsel for defendant argued that the defendant had been invited by the deceased to his house to complete the transfer of the land. At the time when the defendant arrived at the deceased's house, only the deceased and the deceased's wife, i.e. the 1st plaintiff, were there. [13] The learned counsel for the defendant also argued that the plaintiffs did not call the 1st plaintiff to testify in Court regarding the actual incident that took place at the deceased's house when the defendant was there. The 1st plaintiff was available and should have been brought to court to give her evidence for the plaintiffs and to testify whether there was any elements of coercion, fraud or undue influence on the part of the defendant. Failure to bring the 1st plaintiff who was the only witness who saw and heard what happened at the house of the deceased shows that the plaintiffs do not have any evidence to prove that the defendant had committed any fraud and/or misrepresenrtation or undue influence on the deceased and the 1st plaintiff. Analysis and finding of the Court on the first and second issues. [14] For the first and second issues, from the evidence of the witnesses and the documents tendered, the Court finds that the following facts are not disputed by both parties:

That at the time when the defendant went to the deceased’s house, only the deceased and the 1st plaintiff were there;

That the transfer form (Form 14A) had been brought by the defendant to the deceased’s house and the deceased had executed the said transfer form at his house and not at Kuala Krai Land Office and it was not executed before Kuala Krai Assistant Land Administrator, Tengku Kamaruddin bin

That no sale and purchase agreement has been entered into between the deceased and the defendant; and

That no payment had been paid by the defendant to the deceased for the transfer of ½ undivided share in the land to the defendant. [15] What was disputed by the parties here was whether the transfer form was signed by the deceased voluntarily or due to fraud and/or misrepresentation and undue influence commited by the defendant. [16] It is a most fundamental principle in a trial that a party making an allegation against the other party must prove his or her allegation. This principle is clearly stated in Sections 101 and 102 of the Evidence Act 1950 which provide as follows: Section 101. Burden of Proof.

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. [17] In this case, the 1st plaintiff was the only witness who was present and witnessed what had actually happened at the deceased's house when the defendant brought the transfer form (Form 14A) for the deceased’s execution. There was no doubt that the 1st plaintiff was an important witness who could give a true and entire account of what really transpired during the meeting. However, the 1st plaintiff was not called to testify. There was no reason given by PW1 and PW3 as to why their mother, the 1st plaintiff, did not come forward to testify at the trial. [18] The 5th plaintiff (PW1) testified that in April 2020, he found out that the land had been registered in the defendant's name upon enquiry made at Pasir Mas Land Office based on the information he received from Mohd Nor Ikmal Hafiz Bin Sopie (PW2). [19] It was not disputed that PW1 was not present at the deceased’s house at the time when the form 14A was executed by the deceased. Therefore, the testimony of PW1 in his witness statement particularly in respect to the allegation of fraud and/or misrepresentation or undue influence, was only his assumptions or conjectures that is inadmissible as evidence in this trial. [20] The 7th plaintiff (PW3) came and testified at this trial. Like PW1, PW3 was also not present at the deceased's house at the time when the deceased executed the Form 14A. [21] The evidence of PW3 was mainly about her belief that the deceased's signature on the Form 14A was obtained by fraud and/or misrepresentation or undue influence because the deceased had never informed her that he wanted to sell or transfer the land to anyone including the defendant. PW3 also concluded that the defendant had deceived the deceased because the deceased had called and informed her that the defendant came to the deceased's house and asked the deceased to sign an application form for substituting the document of title. The testimony of PW3 was also nothing more than her own assumptions and conjectures. [22] PW1 had lodged a police report (exh. P5) on the instruction of the deceased in respect of the incident but there was nothing mentioned in the Police Report that the defendant had misrepresented or deceived the deceased into signing the said Form 14A. [23] The defendant, on the other hand, testified that he went to the deceased's house upon invitation by the deceased to settle the transfer of the ownership of the land. The defendant clearly admitted that he went to the deceased's house with a form 14A and the deceased then had voluntarily signed the said form at his house. [24] During cross examination, the defendant admitted that no sale and purchase agreement had been entered into between him and the deceased and no payment had been made by him to the deceased regarding the transfer of ½ undivided share in the land to him. Based on the defendant's witness statement, the deceased’s ½ undivided share in the land had already been sold by the deceased to the defendant's brother-in-law, the late Arifin bin Abdul Rahman in 1960s. The ½ undivided share of the deceased in the land should have been transferred to Arifin bin Abdul Rahman but it could not be done due to the fact that the land was still registered in the name of the deceased's mother and Arifin's mother as trustee. Accoding to the defendant, Arifin bin Abdul Rahman gave his consent and instructed the deceased to transfer the ½ undivided share in the land directly to the defendant. [25] On the issue of failure of the 1st plaintiff to testify, the Court referred to the case of Takako Sakao v. Ng Pek Yuen & Anor [2009] 3 MLRA 74 where the Federal Court held as follows: “[4] In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. … ” “[5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant’s contribution to the purchase price as well as the existence and the terms of mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference. [26] In the case of Jalani Mohamed & Anor v. Shahrom Abdullah & Anor [2024] 4 CLJ 871, the Court of Appeal held as follows: “[62] We are however, inclined to agree with te contention of the plaintiffs that the high court had erred in not invoking s. 114(g) of the Evidence Act 1950 when the second Defendant had failed to produce and call the solicitor, MYC as a witness who would have full knowledge on matters concerning the transaction,...” [27] Therefore, in respect of the first and second issues, based on the available evidence and without the testimony of the 1st plaintiff, this Court is not satisfied that the defendant had committed any fraud and/or misrepresentation and undue influence on the deceased that caused him to sign or execute the Form 14A in favour of the defendant. [28] Accordingly, this Court finds that, on the balance of probabilities, the plaintiffs have failed to prove any fraud and/or misrepresentation and/or undue influence by the defendant in obtaining the execution of the transfer form (Form 14A) from the deceased. Summary of the plaintiff's submission on the third issue. [29] On this third issue, the learned cousel for plaintiffs submitted that the deceased had executed the Form 14A at the deceased's house and not at the land office and also not in the presence of a land administrator. Therefore, the execution of the form 14A was invalid and contrary to the provisions of Section 211 (1) and paragraph 3 of the Fifth Schedule of the National Land Code since the land was a Malay Reserve land. Summary of the defendant's submissions on the third issue. [30] The defendant's learned counsel argued that the transfer form is valid even though it was not signed at the Kuala Krai Land Office before the Assistant Land Administrator of Kuala Krai. In other words, the transfer of ownership in form 14A was valid and could be signed by the owner and the beneficiary at any place including at the house of the deceased or at the office of the solicitor appointed by the parties as long as both parties had agreed to the transfer and the deceased as the owner of the land had received the consideration for the land from the defendant. Hence, the transfer of the land had been made by the deceased on his own freewill without any coercion, fraud and misrepresentation by the defendant. [31] The defendant's counsel also submitted that the Form 14A was valid as it had been attested by the Assistant Land Administrator, Tengku Kamarudin bin Tengku Alias. Analysis and finding of the Court on the third issue. [32] It is pertinent for this Court to peruse the provisions of Section 211(1) and paragraph 3 of the Fifth Schedule of the National Land Code which provides as follows: Section 211. Attestation of instruments of dealing. of the offiers or other persons specified in that behalf in the Fifth Schedule: Paragraph 3 of the Fifth Schedule of the National Land Code provides: “Subject to paragraph 4, every execution by a natural person of any instrument affecting any dealing under this Act in respect of any of the following lands shall be attested by a Land Administrator: Emphasis added. [33] In this case, as mentioned earlier, the fact that the transfer form (Form 14A) was signed by the deceased at the deceased's house and not at Kuala Krai Land Office nor in the presence of the Assistant Land Administrator named Tengku Kamarudin bin Tengku Alias was not disputed by any party. This is clear from the defendant's own testimony when cross-examined and when referred to Form 14A (exhibit P6): “Betul, inilah borang yang saya bagi kepada si mati untuk dia tandatangan.” Next, the Defendant said: “Selepas saya dapatkan tandatangan Arwah Adnan di rumahnya, saya bagi borang ini kepada peguam saya.” Further, the Defendant said: “Setuju, borang ini tidak ditandatangani oleh Arwah Adnan di hadapan Tengku Kamarudin, Pentadbir Tanah Kuala Krai.” Emphasis added. [34] From the above excerpt of the defendant's testimony, it is clear that the Form 14A was indeed signed by the deceased at his house and not at the Kuala Krai Land Office or in the presence of the Kuala Krai Assistant Land Administrator, i.e. Tengku Kamarudin bin Tengku Alias. This is the finding of fact by this Court regarding the execution and attestation of Form 14A. [35] Any party who wishes this Court to believe that the Form 14A had been signed before the Assistant Land Administrator must produce the Assistant Land Administrator, i.e. Tengku Kamarudin bin Tengku Alias as a witness and testify to the effect. [36] Based on the provisions of Section 211(1) and paragraph 3 of the Fifth Schedule of the National Land Code, apparently form 14A is a document required by law to be attested within the meaning of Section 68 of the Evidence Act 1950 that provides as follows: “If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purposeof proving its execution, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence.” [37] The defendant did not call Tengku Kamarudin bin Tengku Alias to give evidence on the execution and attestation of form 14A. No account had been given as to his whereabout and whether or not he was capable of giving evidence. [38] After making the above finding of fact, this Court will now examine the legal position and validity of the execution and attestation of the Form 14A. Section 211 (1) of the National Land Code as stated above clearly requires that the attestation of any form (instrument) of a land transaction must be made or witnessed by the persons specified in the Fifth Schedule of the National Land Code. [39] In the exhibit P3 (issued document of title) Geran Mukim 1571, Lot 1382 Mukim Kubang Sepat, District of Pasir Mas, Kelantan (the land) there is an inscription “DI DALAM KAWASAN RIZAB MELAYU”. Therefore, the provision of Paragraph 3 of the Fifth Schedule of the National Land Code is applicable as to the execution and attestation of form 14A in this case. [40] The word used in Section 211(1) relating to the attestation of an instrument or form in respect of any dealing is "shall" which indicates that it is a mandatory provision. [41] Similarly, the provision of Paragraph 3 of the Fifth Schedule of the National Land Code also states "shall be attested by a Land Administrator". This is also a mandatory provision. [42] Based on the provisions of Paragraph 3 of the Fifth Schedule, the place where a form or instrument of dealing is signed either at home or at the land office or elsewhere is immaterial. What is important that the form or instrument of dealings must be signed in the presence of and attested by a land administrator. There is also no specific requirement that a form or instrument of dealings must be attested by a land administrator for a particular district in which the land is located. Therefore, the attestation of a form or instrument of dealing for any Malay Reserve Land in the states as specified in Paragraph 3 (1) to (4) of the Fifth Schedule of the National Land Code, may be made or witnessed or attested by any land administrator in any state specified in Paragraph 3 (1) to (4) of the Fifth Schedule. For example, as in this case, Malay Reserve land in the District of Pasir Mas could be attested by Kuala Krai Land Administrator or any other land administrator in any other district or even in any other state. [43] Apart from the issue of attestation and execution of Form 14A above, this Court, upon perusing the Form 14A, found that on page 1 of the Form 14A, in paragraph (b), as a consideration for the transfer of land, it was stated as follows: “(b) sebagai balasan: Jualbeli”.

in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

where registration was obtained by forgery, or by means of an insufficient or void instrument; or

where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law. [47] Section 340(3) of the National Land Code talks about the effect of an insufficient or void instrument. The provision stipulates as follows: “(3) Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in sub section (2) -

it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and

any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested.” [48] Therefore, for the third issue, this Court found that the transfer form (Form 14A) that was executed by the deceased at his house and not in the presence of a land administrator, was executed in contravention of the provisions of Section 211(1) and Paragraph 3 of the Fifth Schedule of the National Land Code. Therefore, it was a void instrument within the meaning of Section 340(2)(b) of the National Land Code. [49] In the case of Toh Huat Khay v. Lim A Chang [2009] 4 MLRA 397, the Federal Court held as follows; “The transfer of the said land by TKC to the defendant was in breach of the provision of the NLC..... The registration of transfer of ownership to the defendant was not indefeasible since registration thereof had been obtained by means of a void instrument pursuant to s 340(2)(b) NLC. [50] In the case of Jalani Mohamed (supra), the Court of Appeal held as follows: “[101] ... The relevant form 14A is not complete in the sense envisage by ss 207 and 215. This would tantamount to the form 14A being an insufficient instrument which renders the transfer void and the title registered in favour of the Second Defendant - an immediate purchaser - not indefeasible under s. 340(2)(b) of the NLC. [51] Since the said form 14A was a void instrument, the registration of transfer made pursuant to it was also a void registration and should be set aside under Section 340(3)(b) of the National Land Code. Summary of the plaintiff's submission on the fourth issue. [52] Regarding the fourth issue, the plaintiffs' learned counsel submitted that the defendant had failed, not only to produce any documentary evidence to show the existance of a sale and purchase agreement between the deceased and the defendant's brother-in-law, the late Arifin bin Abdul Rahman in relation to the land, but the defendant had also failed to call any witness to support his assertion. [53] The evidence of SD2 did not lend support for the defendant’s contention as obviously she had no knowledge regarding the sale and purchase of the land between the deceased and her late husband i.e. Arifin bin Abdul Rahman because at that time, she had not yet married to him. Summary of the defendant's submissions on the fourth issue. [54] On this fourth issue, the defendant's learned counsel has argued that the deceased during his lifetime, in 1960s, had indeed sold his ½ undivided share in the land to the defendant's brother-in-law, the late Arifin bin Abdul Rahman. The sale of the deceased's ½ undivided share in the land was also agreed by Arifin's mother, Halimah bt. Daud and the deceased's mother, Mek Kelthum Bt. Pit who were both trustee for their respective son at that time. Analysis and finding of the Court on the fourth issue. [55] It is the defendant's defence that the deceased’s ½ undivided share in the land had been sold to the late Arifin bin Abdul Rahman. [56] The late Arifin bin Abdul Rahman was said to have instructed the deceased to transfer his ½ undivided share in the land to the defendant as the late Arifin bin Abdul Rahman wanted to give that ½ undivided share in the land to the defendant (his brother-in-law). [57] Ostensibly from the defendant’s statement of defence, there were 2 transactions involved in the said land. Firstly, the sale and purchase of ½ undivided share between the deceased and the late Arifin bin Abdul Rahman and secondly the gift from the late Arifin bin Abdul Rahman to the defendant. [58] The Court found that apart from oral testimony of the defendant and SD2, there was no other witnesses or documentary evidence produced in court to support the defendant’s defence. [59] The sale and purchase transaction between the deceased and the late Arifin bin Abdul Rahman was said to have had happened in the 1960s. At that time, ½ undivided share in the land was registered and held in the name of the deceased’s mother, Mek Kelthum Bt. Pit, as trustee for and on behalf of the deceased. Whereas, the other ½ undivided share in the land was registered and held in the name of the late Arifin bin Abdul Rahman’s mother, Halimah bt. Daud, also as trustee for and on behalf of the late Arifin bin Abdul Rahman. [60] Based on the identification card numbers of the deceased and the late Arifin bin Abdul Rahman as stated in the document of title of the land, in 1960s (1960-1969) the deceased was between the age of 13 to 22 year old while the late Arifin was between the age of 16 to 25 year old. [61] According to the document of title of the land, the document of title had been registered on 6.6.2017 in the name of the deceased and Arifin bin Abdul Rahman in the proportion of ½ undivided share each. The registered proprietor of the land subsequently changed to the defendant and SD2 in the same proportion. [62] According to the Form 14A, the transfer had been registered on 11.07.2019 at 10.56 am at Pasir Mas Land Office vide transfer presentation no. 2198/2019 where the “whole” land had been transferred to the defendant for the consideration of “sale and purchase”. This transfer of land went against the very evidence of the defendant that he did not purchase nor pay any money to the decease for the land. [63] From the documentary evidence produced in court, at the early 1960s, both the deceased and the late Arifin bin Abdul Rahman were still a minor and they were not eligible to enter into any contract of sale and purchase. [64] According to our Torren System, only registered proprietor is eligible to deal with his/her land. Therefore, the deceased could only deal or enter into contract of sale and purchase of the said land after his name has been registered as the proprietor of the land. There was no record whatsoever to show that in the middle or at the end of 1960s, the deceased had been registered as the proprietor of the land to enable him to deal with the land. [65] Therefore, this Court found that the defendant had failed to discharge the burden of proof pursuant to section 101 and 102 of the Evidence Act 1950 that there was in fact a sale and purchase agreement in respect of the ½ undivided share in the land between the deceased and the late Arifin bin Abdul Rahman and also failed to prove the existance of a gift in respect of ½ undivided share in the land form the late Arifin bin Abdul Rahman to the defendant. [66] Hence, for this fourth issue, this Court found that on the balance of probability, the defendant had failed to proved that the ½ undivided share in the land had been sold by the deceased to the late Arifin bin Abdul Rahman. Conclusion [67] For the reasons above-stated, this Court found that on the balance of probabilities, the plaintiffs had successfully proved part of their claim against the defendant and this Court accordingly orders and declares as follows: a) The registration of transfer vide presentation No. 2198/2019 in respect of the land held under GM1571, Lot 1382 Mukim Kubang Sepat, District of Pasir Mas, Kelantan from the deceased, Adnan Bin Husain to the defendant, Baharun Bin Zakaria is void and shall be set aside pursuant to Section 340(3)(b) of the National Land Code. b) The land administrator of the District of Pasir Mas shall remove the name of the defendant, Baharun bin Zakaria from the register of title and shall re-register the name of the deceased, Adnan bin Husain (No. K/P: 470723-03- 5167/2832036) as the registered proprietor of ½ undivided share in the land. c) The plaintiffs' claim for general damages to be assessed is not allowed; d) The plaintiffs' claim for special damages is not allowed; e) Costs of RM30,000.00 to be paid by the defendant to the plaintiffs (collectively) subject to the allocatur. ………………………………… MOHD ROSLI BIN YUSOFF JUDICIAL COMMISSIONER HIGH COURT (2) KOTA BHARU Plaintiff's Solicitors: Wajdi bin Mohamed, Messrs Wajdi Mohamad & Company, No. 1120-J, Tingkat 1, Wisma Caldon, Jalan Padang Garong, 15000 Kota Bharu, Kelantan. Defendant's Solicitor: Mohd Rafizi bin Abdullah, Messrs Rafizi Abdullah & Co, Lot 474, Kg. Rupek, Tiong, 15100 Kota Bharu, Kelantan.