Tan Kim Chong @ Tan Kim Huat v Kang Choon Keat (PA-22NCvC-73-03/2019)

TAN KIM CHONG @ TAN SIN HUAT (No. KP: 321010-07-5303)

TAN SAI PENG @ TAN KIT HO (No. KP: 461203-08-5617) (Sebagai Pemegang Kuasa Wakil No. 1038/05 yang didaftarkan di Mahkamah Tinggi Taiping pada 6/12/2005)

LEAN MAH HOLDING SDN BHD (No Syarikat 110072-V) …. PLAINTIF-PLAINTIF DAN KANG CHOON KEAT (No. K/P: 371106-08-5579) …. DEFENDAN GROUND OF JUDGEMENT A. INTRODUCTION [1] The Plaintiffs sought an order to terminate the co-proprietorship of a piece of land known as Geran No 177314, Lot 24928, Mukim Parit Buntar, Daerah Krian, Perak (the Land) with an area 129.5-hectare (approx. 320 acres) pursuant to Section 145 of the National Land Code 07/11/2024 16:06:43 PA-22NCvC-73-03/2019 Kand. 92 S/N wAwJhQs2ZU2eixRfeIw3kg (Revised 2020) Act 828 (NLC). On 3.9.2005, all the co-proprietors of the Land, including the Defendant executed a Partition Agreement (the Partition Agreement) whereby all the co-proprietors agreed amongst others the followings: - [a] to terminate the co-proprietorship by partitioning the Land as nearly as may be proportionate to their respective undivided shares based on the present physical occupation of the Land by the co-proprietors. [b] the co-proprietors shall upon execution of the Partition Agreement engage a licence land surveyor to draw up the Draft Plan based on the present physical occupation of the co-proprietors in accordance to their respective undivided shares which shall be identified and confirmed by the co-proprietors. [c] the co-proprietors shall upon the execution of the Partition Agreement confirm and endorse on the Draft Plan of their respective undivided shares based on the present physical occupation and to execute all the relevant documents required by the relevant authorities for submission of partition of the Land to relevant authorities for approval. The co-proprietors unequivocally confirm that they shall respectively accept the area as endorsed by them on the Draft Plan and shall not dispute the area notwithstanding the area on the Draft Plan may differ from the area corresponding to their respective undivided shares [d] the co-proprietors mutually consent and agree that the process of partition shall be completed up to the issuance of S/N wAwJhQs2ZU2eixRfeIw3kg the individual title deeds within 6 years from the date of the Partition Agreement [e] all costs incurred in obtaining and completion of the process of partitioning the Land until the issuance of the individual title of the Land shall be borne by the co-proprietors in apportionment according to their respective shares; [f] the co-proprietors mutually agreed to appoint the 1st and 2nd Plaintiffs as their lawful Attorney for them and to act for them in respect of the partition of the Land to do all the things as listed in Clause 11(a) to 11(k) and the co-proprietors declares that this Power of Attorney is given for the sole purpose of the partition of the Land and shall be irrevocable for the aforesaid purpose; B. BACKGROUND FACTS [2] The 1st and the 2nd Plaintiff are the lawful attorney appointed by the co-proprietors to act for them in respect of the subdivision of the Land and to do manage and to pay all rates, rents dues, charges, assessment and quit rent to the relevant authorities in connection with the process of subdivision of the Land. The 3rd Plaintiff and the Defendant are the registered co-proprietor of the Land. [3] Beginning of year 2002, all the co-proprietors of the said Land, including the Defendant executed a Partition Agreement and dated the same on 3.9.2005 whereby the co-proprietors agreed amongst others the following:- S/N wAwJhQs2ZU2eixRfeIw3kg [a] to terminate the co-proprietorship by partitioning the said Land as nearly as may be proportionate to their respective undivided shares based on the present physical occupation of the said Land by the co-proprietors. [b] the co-proprietors shall upon execution of the Partition Agreement to engaged a licence land surveyor to draw up the Draft Plan based on the present physical occupation of the co-proprietors in accordance to their respective undivided shares which shall be identified and confirmed by the co-proprietors. [c] the co-proprietors shall upon execution of this Partition Agreement confirm and endorse on the Draft Plan of their respective undivided shares based on the present physical occupation and to execute all the relevant documents required by the relevant authorities for submission of partition of the said Land to relevant authorities for approval. The co-proprietors unequivocally confirm that they shall respectively accept the area as endorsed by them on the Draft Plan and shall not dispute the area notwithstanding the area on the Draft Plan may differ from the area corresponding to their respective undivided shares. [d] the co-proprietors mutually consent and agree that the process of partition shall be completed up to the issuance of the individual title deeds within 6 years from the date of this Partition Agreement. [e] all costs incurred in obtaining and completion of the process of partitioning the said Land until the issuance of the individual title of the said Land shall be borne by the co-S/N wAwJhQs2ZU2eixRfeIw3kg proprietors in apportionment according to their respective shares. [f] the co-proprietors mutually agreed to appoint the 1st and 2nd Plaintiffs as their lawful Attorney for them and to act for them in respect of the partition of the Land to do all the things as listed in clause 11(a) to 11(k) and the co-proprietors declares that this Power of Attorney is given for the sole purpose of the partition of the said Land and shall be irrevocable for the aforesaid purpose; and [g] the term "co-proprietors" in the Partition Agreement shall include the co-proprietors' heir and personal representative. [4] Premised on the Power of Attorney registered in the High Court Taiping on 6.12.2005, the 2nd Plaintiff appointed Messrs. Sow Tung Low (Landmark Taiping Enterprise) as the land surveyor to carry out the necessary survey works, draw up the draft partition plan and submission for approval from the authorities. [5] However, due to several land acquisition exercises carried out by the authorities from the year 2005 until 2014, the partition exercise could not be carried out until the final title of the said Land is issued by the land office. The final title of the Land was issued on 14.11.2016 with a total of 49 co-proprietors and the partition exercise could only be continued after 14.11.2016. S/N wAwJhQs2ZU2eixRfeIw3kg [6] However, before the completion of the partition exercise, Mr Sow Tung Low passed away sometime in year 2012. The 2nd Plaintiff then appointed Sr Gengatharan Mariappan (SP2) as the land surveyor to carry out all the necessary works for the partition exercise. Sometime in April 2017, SP2 completed the survey works and prepared the draft partition plan where total 18 plots were drawn up as nearly as may be to the current occupation of the co-proprietors and in accordance to the co-proprietors' respective registered shares. The Defendant's plot is located at Plot 10. [7] Having the draft Partition Plan completed, the 2nd Plaintiff via Messrs. Toh Theam Hock & Co informed all the co-proprietors to meet at Messrs. Sow Tung Low's office at the end of April 2017 to endorse on the draft Partition Plan for submission of the partition application to the State Authority. [8] The Defendant and/or his representative (SD4) attended the said meeting but was dissatisfied and objected to the draft Partition Plan. The Defendant contended amongst other that the boundary of his land is shared with Plot 11 and the existence of Plot 8A is not within their knowledge. [9] On 14.2.2018, Messrs. Norhisham & Co appointed by the Plaintiffs wrote to the co-proprietors about the completion of the draft Partition Plan and gave a 14 days’ notice to the co-proprietors that they shall be deemed to have agreed to the draft Partition Plan if there is no response from the co-proprietors. After the issuance of the aforesaid Notice, S/N wAwJhQs2ZU2eixRfeIw3kg only the Defendant responded and informed that he did not agree to the draft Partition Plan on the ground mentioned above. [10] In the premise, the 1st and 2nd Plaintiffs in the capacity as the attorney under the Partition Agreement initiated this suit and the 3rd Plaintiff in the capacity as one of the co-proprietors of the Land joint in the present suit as co-plaintiff for an application to terminate the co-proprietorships under section 145 of the NLC. At the time of filing the present suit in year 2018, there are total 50 co-proprietors of the Land. C. ISSUES [11] Based on the pleadings and the submissions by both parties, the followings issues are to be determined: [a] Whether the Partition Agreement dated 3.9.2011 is still subsist, valid and enforceable under the law or alternatively has lapsed and no longer in force. [b] Whether the Draft Plan prepared by Geomas Survey Consultant can be accepted and applicable for the purpose of partitioning the Land. [c] Whether the relief sought by the Plaintiffs are appropriate and sustainable in that the division of the land will not prejudice and affect the Defendant. [d] Whether the Plaintiffs have satisfied the requirement under Section 145 NLC to terminate the co-proprietorship. [e] Whether the Plaintiffs has the locus standi to represent the registered owner of the Land in filing this action. S/N wAwJhQs2ZU2eixRfeIw3kg [12] Firstly, I will address the issue of locus standi and the status of the Partition Agreement. The Defendant contended that the 1st and 2nd Plaintiffs are no longer has the capacity under the Power of Attorney given in the Partition Agreement as the Power of Attorney is no longer valid and enforceable since the Partition Agreement has lapse on the 03.09.2011. Clause 4 of the Partition Agreement provides the partition exercise shall be completed up to the issuance of separate individual titles within 6 years from the date of the agreement, i.e. on or before 2.9.2011. The Defendant contended that there was a delay on the part of the Plaintiffs to submit the Draft Plan which was only submitted on April 2017. [13] In dealing with the delay issue, I am of the view that one must consider the circumstances contributing to such situation and whether such delay was purposely caused by or resulting from the default of the Plaintiffs in performing their obligation to partition the Land within the 6 years’ period. It was not disputed that the Draft Plan was completed only in April 2017 which is after the 6 years’ period. [14] From the evidence, the application to partition the Land was made after the Partition Agreement was signed. Premised on the Power of Attorney given by the co-proprietors under the Partition Agreement, the 2nd Plaintiff appointed Messrs. Sow Tung Low (Landmark Taiping Enterprise) as the land surveyor to carry out the necessary and submission for approval from the Authorities. It was then submitted to the State Authority but was rejected due to the land acquisition's exercise unto the Land carried out from the year 2005 until 2014. The partition exercise then could not be carried out until the final title of the S/N wAwJhQs2ZU2eixRfeIw3kg Land is issued by the Land Office. The final title of the Land was only issued on 14.11.2016. Hence, the partition exercise could only be continued after 14.11.2016. In pursuant to the issuance of the final title, there are total 49 co-proprietors of the Land. Following the demise of Mr Sow Tung Low, the 2nd Plaintiff appoints Sr Gengatharan Mariappan (PW2) as the land surveyor who completed the work sometime in April 2017 with the Draft Plan ready for submission to the State Authority. However, the Draft Plan could not be submitted because it was objected by the Defendant. [15] Having evaluated those unforeseen circumstances, it is prudent and reasonable, for me to come to a conclusion that even there was a delay but such delay was beyond the control of the Plaintiffs. From the evidence it reveals that the Plaintiffs have taken reasonable actions to submit the Draft Plan. Further, I am also of the view that the time was no longer the essence of the Partition Agreement since there was a clear indication through the conduct of the co-proprietors including the Defendant who continue without any objection in paying the quit rent to the Plaintiff even after the expiration of 6 years. [16] It is noted here that the majority of the co-proprietors agreed to terminate the co-proprietorship by partition the Land. None of co-proprietors who executed the Partition Agreement including the Defendant had rescinded the Partition Agreement or had given any notice to the Plaintiffs to fix a reasonable time to partition the land. Thus, in the absence of rescission or termination of the Partition Agreement by any of the co-proprietors, all the co-proprietors including the Defendant, their heirs and their personal representative are bound by the terms and S/N wAwJhQs2ZU2eixRfeIw3kg conditions of the Partition Agreement. Thus the Defendant through his conduct in not taking any action with respect to the Partition Agreement is now estopped from changing his stand to partition the Land. [17] As to this issue, I find that the Power of Attorney and the Partition Agreement is still valid, enforceable and binding to all parties including the Defendant. Therefore, the 1st and 2nd Plaintiffs having the irrevocable Power of Attorney have the locus standi to institute the present suit. As to the 3rd Plaintiff who is one of the co-proprietor of the Land is also entitled and has the locus to apply under Section 141A NLC and 142 NLC before making an application under 145 NLC to terminate the co-proprietorship of the Land. [18] Now I will deal with the remaining issues. The issue whether the Draft Plan prepared by Geomas Survey Consultant can be accepted and applicable for the purpose of partitioning the Land. The Defendant by the evidence of DW3 despite of agreeing to the Partition Agreement but has strongly objected to the Draft Plan prepared by PW2 on the ground that Draft Plan was not based on the present physical occupation. According to the Defendant, his plot (Plot 10) has become smaller of its original size as compared to the present and is shared with Plot 11 with the existence of Plot 8A. This has led the Defendant to appoint his own surveyor DW2 (Tetuan Ukur Rentas (Utara) Sdn. Bhd) to carry out the measurement and marking of the Defendant's portion on 15.12.2018 based on the existing physical position. The marking dated 23.12.2018 shows that the boundary currently owned by the Defendant is different from the Draft Plan supplied by the Plaintiffs. S/N wAwJhQs2ZU2eixRfeIw3kg [19] It is undisputed that the Land has become smaller from its original size after few times of land acquisition by the State Authority. In 1993, the size of the said Land was 130.5 hectare (322.4655 acres), became 130.1 hectars (321.4841 acres) in 2009 and now become 129.5 hectars (320 acres) after the final title issued on 14.11.2016. Hence, the land size of all the co-proprietors have become smaller compare to their land size in 1993. [20] PW2 in his evidence during the examination testified that there was a different in the calculation of the Defendant’s plot: “Q17. Kenapa terdapat perbezaan tersebut? A17. lni adalah kerana:-

Kedudukan tanah fizikal yang digunakan oleh defendan seperti yang ternyata dalam pelan Ukur Rentas adalah berkeluasan lebih kurang 29.20 hektar atau 291986 m2, atau 72.1532 ekar.

Tetapi menurut syer tak bahagi defendan yang tercatat dalam hakmilik Tanah tersebut, defendan mempunyai lebih kurang 25.2458 hektar (129.5 x 32429/166398) dan/atau lebih kurang 62.382 ekar sahaja.

la jelas menunjukkan bahawa defendan telah mengunakan tanah lebih daripada syer tak bahagi beliau, iaitu lebih daripada lebih kurang 4 hektar dan/atau 10 ekar.

Oleh itu, kedudukan tanah fizikal defendan yang dilukis oleh Ukur Rentas tidak mungkin boleh diterimapakai bagi tujuan cadangan pecah bahagian Tanah mengikut syer pemilik-pemilik bersama masing-masing.

Sekiranya ia dilukis dengan menurut kedudukan tanah fizikal defendan yang dinyatakan dalam pelan Ukur Rentas tersebut, maka keluasan tanah yang akan diagihkan kepada pemilik-pemilik bersama yang lain akan menjadi lebih kecil daripada bahagian sebenarnya dimiliki mereka. lni tidak boleh dilaksanakan dan adalah salah di sisi undang-undang. S/N wAwJhQs2ZU2eixRfeIw3kg

Dengan merujuk kepada pelan Ukur Rentas, ia telah membuktikan Plot 10 dalam Pelan tersebut merupakan satu cadangan yang mengikut seberapa yang boleh kepada kedudukan tanah fizikal yang digunakan oleh defendan tetapi ia tidak boleh melebihi syer dan keluasan tanah yang dimiliki oleh beliau seperti yang tercatat dalam hakmilik kekal Tanah tersebut.” [21] The Defendant own surveyor, DW2, confirmed that the total land occupied by the Defendant is 29.2 hectare (equal to 291986 square meter or 72.1512 acres) which is in excess of 10 acres from his registered shares of 62.3834 acres. DW2 also agreed that the Defendant has overused the excess land which had encroached onto the land area of the co-proprietors of Plot 8(A) until to this date. [22] Having appraised the evidence, I am in agreement with PW2 with regard to the measurement of the Defendant’s share is only 62.3834 acres and the Defendant at no material time rebutt the said figure. I have no doubt that the Defendant never owned 72.15 acres of the Land and he had overused the Land area in excess of 10 acres. In my view, the Draft Plan revealed the best possible plan that the co-proprietor including the Defendant could have in determining the respective area owned by them. The application for partitioning has to follow the registered shares in the grant and not by physical occupancy. [23] To my mind, the main reason behind the Defendant objection as to Draft Plan was with the aim of to continue unjustly occupying the extra 10 acres at the expense of other co-proprietor whom as at 28.9.2021, there are total 54 co-proprietors of the Land. S/N wAwJhQs2ZU2eixRfeIw3kg [24] Having said the above, the Court was left with no alternative but to decide this matter on merits in accordance with the provision of the law under Section 145 (1) NLC that provides power of Court to facilitate termination of co-proprietorship. "Section 145.

Where, in the case of any land vested in co-proprietors:

any of the co-proprietors will neither join in, nor consent to the making of, an application for partition under this Chapter, or

by reason of the operation of paragraph (f) of sub-section (1) of section 136 (as applied by section 141), partition of the land between all of the co-proprietors is incapable of being approved under this Chapter, the Court, subject to and in accordance with the provisions of any law for the time being in force relating to civil procedure, may, on the application of any of the co-proprietors, make such order as it may think just for the purpose of enabling the co-proprietorship to be terminated.

Without prejudice to the generality of the power conferred by sub-section (1), the Court may on any application under that sub-section order:

that, subject to the making between the co-proprietors of such payments as the Court may consider equitable having regard to the comparative values of the individual portions thereby proposed, any application for partition made by one or more of the co-proprietors in the terms specified in the order shall be deemed for the purposes of this Chapter to have been made by them all;

that the undivided share of any of the co-proprietors be transferred on the terms specified in the order to the other co-proprietors, or to any of them; or

that the land be sold." S/N wAwJhQs2ZU2eixRfeIw3kg [25] I am mindful that this Court is empowered with a discretion to order the partition of the Land or to make any order that the Court thinks just for the purpose of enabling the co-proprietorship to be terminated under Section 145 NLC. Such termination is pursuant to Section 145 (1) upon satisfying the requirement of either subsection (a) or subsection (b). Under subsection (a), evidence must be adduced of a request made by Plaintiff to the Defendant for the Land to be partitioned and refusal by the Defendant to consent to partitioning or under subsection (b), evidence must be adduced to show partition of the said Land between all the co-proprietors is incapable of being approved. Hence without production of such evidence, this Court is not seized of the powers under Section 145(1) NLC to terminate the co-proprietorship. [26] This is in consonant with the Court of Appeal in Young Yean Chin & Ors v Quek Yak Kang & Ors [20161 6 CLJ 860 where the Court held that:- "[17] Under s. 145 of the NLC, the court is empowered with a discretion to order the partition of any land owned under a co-proprietorship or to make any order that the court thinks just for the purpose of enabling the co-proprietorship to be terminated. This provision is available to any of the co-proprietors who wanted to terminate the proprietorship but is facing a problem when any of the co-proprietors will neither join in nor consent to the making of the application for partition of jointly owned by them as in the case before us." S/N wAwJhQs2ZU2eixRfeIw3kg [27] In Ong Chin Hai & Anor v Ong Hoo See & Ors [20221 7 CLJ 852 where the Court of Appeal also held that there is no requirement that the applicants must first satisfy the Court that the application for partition had been made and the application was rejected under section 145 NLC. The Court states that: "[14] This provision is available to any of the co-proprietors in a jointly owned land who want to terminate their co-proprietorship if any of the co-proprietors will neither join in nor consent to the making of the application for partition of the land or if the application for the partition of the land is incapable of being approved under ss. 136(1)(f) and 141 of NLC. [15] In such application, the court has the discretion to order the partition of the land or to make any order that the court thinks just to enable the co-proprietorship to be terminated, including to order for the land to be sold. See Young Yean Chin & Ors v. Quek Yak Kang & Ors [2016] 6 CLJ 860 (CA). [21] We are of the considered view that the plaintiffs were not barred from applying to terminate their co-proprietorship under s. 145(1) of the NLC which states that "any of the co-proprietors" may apply for the co-proprietorship in the land to be terminated. Therefore, we do not agree with the third and fourth defendants that the plaintiffs must show that they had requested for the said property to be partitioned and the defendants did not consent to it, before s. 145 of NLC could be invoked. [22] There was also no requirement under NLC for the co-proprietor who wished to terminate his co-proprietorship on the land to show that he had applied for the land to be partitioned, but S/N wAwJhQs2ZU2eixRfeIw3kg the application was rejected before he could come to court under s. 145 of NLC." [28] From the evidence, I am satisfied that the Defendant, as one of the co-proprietors of the Land, has refused to join in nor consented to Plaintiffs’ application for partition of the Land that eventually has rendered it incapable for the partition of land between the co-proprietors to be approved. [29] I also find that the Plaintiffs' application to terminate the co-proprietorship by partitioning the Land is just, fair, equitable and for the benefits of all co-proprietors. From the evidence produced, the Draft Plan was drawn in accordance to all co-proprietors' registered share and the Land is divided to the plots that as nearly as may be to the co-proprietors' current physical occupation. In all fairness all the co-proprietors will have their land size in accordance to their respective shares and as nearly as to their current occupation. [30] I failed to see that the Draft Plan prepared by PW2 is prejudicial to the Defendant or other co-proprietor interest. Other than challenging PW2's Draft Plan, at the very least the Defendant or other co-proprietors should produce any other propose draft partition plan or suggested any other better way of partitioning the Land. S/N wAwJhQs2ZU2eixRfeIw3kg [31] It is my finding that Plaintiffs have fulfilled the necessary criteria and prerequisites as stated in Section 145 NLC. As such, the Plaintiff is entitled to institute these proceedings to terminate the co-proprietorship in respect of the Land and to seek consequential orders from this Court. I therefore allowed the Plaintiffs’ prayer at paragraph 19(a) (b) (c) and (d) as in the Amended Statement of Claim. Costs RM 30,000.00 to be paid by the Defendant to the Plaintiffs. SGD (ROZANA BINTI ALI YUSOFF) Judge High Court of Penang Dated on 7th November 2024. Counsel Chuah Yih Chuan (Messrs Kee & CK Ooi for the Plaintiffs. Khoo Yu Jia (Messrs Ng, Zainurul, Seke & Khoo) for the Defendant. S/N wAwJhQs2ZU2eixRfeIw3kg