Thavamany A/P P. Vengadasalam v Jaya A/P I.N. Gopal (A-02(NCvC)(A)-571-04/2024)

THAVAMANY A/P P. VENGADASALAM

ALUMU A/P VENGADASALAM

KAMALA A/P VENGADASALAM (NO. K/P: 550724-08-5908/ 4816160) … APPELLANTS AND JAYA A/P I.N. GOPAL (NO.K/P : 570923-08-5394/ 5262791) … RESPONDENT [In The Matter of The High Court in Ipoh, Perak Civil Suit No. AA-24NCvC-295-07/2023]

THAVAMANY A/P P. VENGADSALAM (No. K/P: 421220-08-5452 / 4020130) 28/08/2025 09:40:19 A-02(NCvC)(A)-571-04/2024 Kand. 32 S/N 7adpxh8IFkO2rTTk8aPk1A

ALUMU A/P VENGADASALAM (No. K/P: 520505-08-5062 / 7536382)

KAMALA A/P VENGADASALAM (No. K/P: 550724-08-5908 / 4816160) … PLAINTIFFS AND JAYA A/P I.N. GOPAL (No. K/P: 571013-08-5103 / 5249713) … DEFENDANT CORAM: SUPANG LIAN, JCA AZIZUL AZMI BIN ADNAN, JCA ALWI BIN HJ. ABDUL WAHAB, JCA GROUNDS OF JUDGMENT Introduction [1] This appeal arises out of the dismissal of the Appellants/Plaintiffs Originating Summons by the learned Judicial Commissioner (“JC”) of the Ipoh High Court given on 12.3.2024. [2] The Appellants/Plaintiffs Originating Summons is seeking for several declarations and consequential reliefs relating to the ownership of the property i.e. PN 96800; Lot 9913S; No. 787, Jalan Wayang, Buntong, Ipoh (‘the Property”). S/N 7adpxh8IFkO2rTTk8aPk1A [2] Parties are referred to in their capacities as Plaintiffs and Defendant in the High Court. The Background Facts [3] The Property is a single detached house which is an ancestral home purchased by the late Vengadasalam a/l Perumal (“Vengadasalam”) in 1952 and registered in the name of his wife i.e. Papathy Vengadachalam a/p Ndam (“Papathy”). [4] The Plaintiffs claimed that they were the beneficiaries of the estate of Papathy, their late mother who died on 5.4.2005. The 1st Plaintiff i.e. Thavamany a/p Vengadasalam (“Thavamany”) being the eldest sister and the 3rd Plaintiff Kamala a/p Vengadasalam (“Kamala”) is the youngest sister. The 2nd Plaintiff Alumu a/p Vengadasalam is another daughter of Papathy and the sister of the 1st and the 3rd Plaintiffs. [5] Ananthan a/l Vengadasalam (“Ananthan”) is the youngest brother of the Plaintiffs and he died on 27.4.2020. [6] In 1995, when Papathy was still alive, it was agreed by the family members including the Plaintiffs to transfer the Property to Anathan for the purpose of rebuilding of the said Property. [7] Upon Ananthan’s death, his wife i.e. Jaya a/p I.N. Gopal (the Defendant) became the administrator of his estate. The Reliefs Sought by the Appellants/Plaintiffs S/N 7adpxh8IFkO2rTTk8aPk1A [8] The prayers as prayed for by the Plaintiffs in its original form and set out in the Originating Summons are reproduced below:-

Suatu Deklarasi bahawa Hartanah yang dikenali sebagai PN 96800; Lot No.9913S; Bandar Ipoh; Daerah Kinta; Negeri Perak yang beralamat di No.787, Jalan Wayang, Buntong, 30100 Ipoh, Perak (selepas dari ini dirujuk sebagai “Hartanah tersebut”) adalah satu Harta yang dipegang dibawah satu Amanah dan/atau satu Amanah Keluarga.

Suatu Deklarasi bahawa Simati, Ananthan a/l Vengadasalam (No. K/P: 571013-08- 5103 / 5249713) sebelum kematiannya pada tarikh 27-4-2020 memegang Hartanah tersebut di atas dasar Amanah untuk Estet Papathy Vengadachalam a/p Ndam (No. K/P: 230805-08-5368 / 1428169) Simati.

Suatu Deklarasi bahawa Defendan kini, selaku Pentadbir Harta Pusaka kepada Estet Ananthan a/l Vengadasalam (No. K/P: 571013-08-5103 / 5249713) memegang Hartanah tersebut di atas dasar Amanah untuk Estet Papathy Vengadachalam a/p Ndam 230805-08-5368 / 1428169) Simati. S/N 7adpxh8IFkO2rTTk8aPk1A

Suatu Deklarasi bahawa apa jua kepentingan yang dimiliki oleh Simati, Ananthan a/l Vengadasalam (No. K/P: 571013-08-5103/5249713) ke atas Hartanah tersebut adalah hanya terhad kepada sumbangan kewangan (sekiranya ada) yang telah diberikan oleh Ananthan a/l Vengadasalam tersebut untuk pembinaan rumah satu tingkat di atas Hartanah tersebut pada tahun 1995.

Suatu Perintah bahawa keseluruhan jumlah sumbangan kewangan (sekiranya ada) daripada Simati, Ananthan a/l Vengadasalam (No. K/P: 571013-08-5103 / 5249713) untuk pembinaan rumah satu tingkat di atas Hartanah tersebut pada tahun 1995 tersebut hendaklah ditaksir oleh Mahkamah yang mulia dan dibayar daripada Estet Papathy Vengadachalam a/p Ndam 230805-08-5368 / 1428169) kepada Estet Ananthan a/l Vengadasalam (No. K/P: 571013-08-5103 / 5249713).

Suatu Perintah bahawa sejurus selepas pembayaran jumlah sumbangan kewangan S/N 7adpxh8IFkO2rTTk8aPk1A (sekiranya ada) yang ditaksir oleh Mahkamah yang mulia, oleh Estet Papathy Vengadachalam a/p Ndam 230805-08-5368 / 1428169) kepada Estet Ananthan a/l Vengadasalam (No. K/P : 571013-08-5103 / 5249713), Defendan selaku Pentadbir Harta Pusaka kepada Estet Ananthan a/l Vengadasalam hendaklah memindah-milik Hartanah tersebut ke atas nama Ketiga-tiga Plaintif secara bersama ataupun ke atas nama, mana-mana Penama yang dinamakan secara bersama oleh Ketiga-tiga Plaintif tersebut di sini.

Relif-relif lain yang difikirkan adil dan suaimanfaat diperturunkan oleh Mahkamah yang mulia ini.

Kos tindakan ini hendaklah ditanggung masing-masing oleh Estet Papathy Vengadachalam a/p Ndam dan Estet Ananthan a/l Vengadasalam. The Appellants/Plaintiffs submissions [9] The transfer of the Property into the late Ananthan’s name was done purely to enable him to secure a bank loan in the sum of RM57,000.00 from Maybank to rebuild the house as he was the S/N 7adpxh8IFkO2rTTk8aPk1A most eligible at the material time due to his age and employment status. [10] The said Property was transferred in Ananthan’s name without any consideration whatsoever and neither was it done on the basis of love and affection. [11] The Plaintiffs argue that Ananthan held the Property purely as a bare trustee or under a family trust for the benefit of all the children in the family, as well as their respective offspring and descendants. The late Ananthan is not an absolute owner. [12] The Plaintiffs’ averments are contained in their affidavits in support of their action against the Defendant. [13] Papathy lived in this Property for 10 years after the re-construction of the same in 1995 until she passed away in 2005. Thavamany lived in the said Property from 1953 until 1974 for a period of approximately 22 years. During that entire duration and thereafter, Thavamany as the eldest child, amongst others, financially supported her mother Papathy, towards payment of all maintenance of the said Property including the assessment rates and all the related costs thereto. Kamala was born in the said Property in 1955 and all four of her children were also born in the said Property. Kamala and her four children still reside in the sadid Property together with Kamala’s grandchildren until now. [14] Ananthan never came back to reside in the said Property at any time from January 1994 onwards as at all material times after January S/N 7adpxh8IFkO2rTTk8aPk1A 1994 he resided in another property at Cherry Park, Ipoh for a period of 26 years until his passing on in 2020. [15] At all material times, Ananthan was aware of the total understanding and the mutual arrangement that was in place between him and all his sisters, as well as with their mother, Papathy. It was for that reason that the Plaintiffs never raised the issue of their interest in the Property with Ananthan. [16] Apart from repaying the RM57,000.00 loan, Ananthan made no other financial contributions towards rebuilding or maintaining the Property. All other costs were borne by Papathy and her daughters the Plaintiffs. Receipts and documents were in Papathy’s name, reinforcing that beneficial ownership rested with the family [17] The Plaintiffs assert that a trust, albeit a family trust can arise either expressly or impliedly and merely because a trust is not evidently registered on the title deed does not mean that there is no trust in place. [18] It is evidently clear form the affidavits evidence that the said Property does not form part of Ananthan’s estate and as it is ancestral property, it must be returned to its rightful owners. Respondent/Defendant’s submissions [19] The Defendant asserts that the transfer of the Property from Papathy to Ananthan was effected during their lifetimes via Form 14A, and constituted a valid inter vivos gift made voluntarily. S/N 7adpxh8IFkO2rTTk8aPk1A [20] The Defendant further asserts that there is no indication in the transfer form or the title deed or any other documents related to the said Property that the transfer of the Property from Papathy to Ananthan was made on the basis of trust. Once transferred, the Property is no longer forms part of Papathy’s estate but rather the estate of Ananthan. [21] Papathy never expressed any intention to create a trust. At the time when she acquired the Property in 1952, some of the alleged beneficiaries were not yet born. The purported beneficiary shares were never defined, and even the Plaintiffs have given inconsistent accounts of who would benefit. [22] On 2.7.2021, the Defendant obtained a Court’s Order granting permission to transfer the said Property to the lawful beneficiary of the estate of Ananthan i.e. the Defendant. However, Defendant was unable to execute the Court’s order due to the subsisting caveat (the 1st caveat) entered by Kamala, the 3rd Plaintiff (see the Court’s order dated 2.7.2021 at pages 47–49 of the Appeal Record, Volume 28). [23] On 14.1.2021, the High Court allowed the Defendant’s application to revoke the 1st caveat on the ground that the 3rd Plaintiff had no trust over the Property and held that the property constituted a gift from the late Papathy to the late Ananthan (see the Court’s Order dated 14.1.2022 and the Grounds of Judgment of the High Court found at pages 50–68 of the Appeal Record, Volume 28). S/N 7adpxh8IFkO2rTTk8aPk1A [24] Following the cancellation of the 1st caveat lodged by the 3rd Plaintiff, the 1st Plaintiff subsequently entered a 2nd caveat over the same Property, relying on the same grounds and documents. [25] The Defendant, in turn, filed an application to revoke the 2nd caveat entered by the 1st Plaintiff. Whilst the matter is pending hearing, the Plaintiffs filed this current Originating Summons on the same issue, namely the issue of trust property. The Defendant contends that the issues raised in the Plaintiffs’ Originating Summons which is now under appeal are the same issues as those raised in the hearing of the Defendant’s application to revoke the 1st and the 2nd caveat. [26] The Defendant also submits that the 3rd Plaintiff occupies the Property merely as a tenant at will and has no proprietary interest, having made no rental payment for the occupation of the same. [27] The Plaintiffs waited for more than 25 years to file the action against the Defendant after the death of Ananthan. Relying on Tan Keng Yong v Tan Hwa Ling [2022] 2 MLJ 853, the Defendant submits that such prolonged inaction amounts to acquiescence, barring equitable relief. [28] Caveats lodged by the 1st and 3rd Plaintiffs are based on the same trust allegations already rejected in earlier High Court proceedings. Defendant contends that the Plaintiffs took no legal action following the entry of the 1st caveat in 2014. It was only when the Defendant sought to administer her late husband's estate that the Plaintiffs belatedly raised issues concerning their alleged rights as beneficiaries. S/N 7adpxh8IFkO2rTTk8aPk1A [29] The Defendant contends that the Plaintiffs relied solely on the testimony of Manickam Ramasamy, who is both the husband of the 1st Plaintiff and the father of the learned counsel representing the Plaintiffs raising legitimate concerns of bias. It was argued that Manickam’s evidence regarding the preparation of Form 14A is hearsay, internally inconsistent, and contradicted by contemporaneous documentary records as the Plaintiffs failed to call the officer from the land office whom Manickam claimed to have purportedly consulted, thereby inviting an adverse inference under section 114(g) of the Evidence Act 1950. High Court’s findings [30] The learned JC held in the absence of clear statements or concrete declaration of trust in transfer documents particularly the Form 14 supports the contention that the late Ananthan did not hold the Property as a trustee. [31] The learned JC rejected the Plaintiffs’ case and held that the 1995 transfer of the Property from the late Papathy to her son the late Ananthan was an outright inter vivos gift; that there was no valid express trust; and, that the Plaintiffs’ claim was in any event barred by laches. [32] Further, the learned JC was of the view that the same issue as regards to whether the Property is held on trust was already decided previously in the earlier proceeding i.e. Suit No. AA- 24NCVC-192-07/2021 where the Court held: S/N 7adpxh8IFkO2rTTk8aPk1A "[24] Whilst there is certainty of the subject-matter in the form of the said Property, there was no evidence to show that the mother had transferred the said Property to the deceased to be held on trust and from the Defendant's affidavits (Enclosures 4, 6 and 8), it can be seen that she has taken a fluid position as to who were to be the beneficiaries of the alleged trust and in what proportions. In her 17 April 2014 statutory declaration (Enclosure 4 pdf 15 of 19), she deposed it was for her and three other sisters, whereas in iher 24 September 2020 statutory declaration she deposed the trust was for her, all her sisters and her late husband who had contributed towards the construction of the said house. Yet, in her Affidavit (Enclosure 6, para 29.2) she averred that she has five other sisters (emphasis added). [25] It is indisputable that there was no mention at all in the said instrument of dealing, the transfer form (Form 14A as stipulated in the First Schedule of the NLC) that the said Property was to be transferred by the mother to her son to be held on trust. [26] In my considered view the transfer by the mother to her son, the deceased, in 1995 tantamounts to an outright gift inter vivas." [33] The learned JC also blamed the Plaintiffs for the delay in bringing the action against the Defendant when the Plaintiffs had already known of the alleged transfer since 1995. [34] The transfer of Property from the late Papathy to the late Ananthan is a voluntary act by the late Papathy while both were alive and S/N 7adpxh8IFkO2rTTk8aPk1A as narrated by Manickam Ramasamy in his testimony that the execution was witnessed by the Land Administrator. [35] The beneficiaries under the estate of Ananthan is prejudiced as well as placed in a predicament as they have no personal knowledge of what transpired in 1995. [36] The learned JC concluded that the Plaintiffs ought to have brought this action when Ananthan was still alive and not waited after his passing on. He held that: [14] …To enforce the Plaintiffs' right after such long delay, does prompt this court to decide with caution. Therefore, without clear intention of creation of trust, I am fortified to hold this is an intervivos gift through outright transfer from Papathy to Ananthan. [37] Regarding the testimony of the Plaintiffs’ only witness i.e. Manickam Ramasamy (the 1st Plaintiff’s husband), the learned JC relied on the passage in the judgment of the Federal Court in Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229, where the Court reckons that it is better to trust what witnesses did at the time of the event rather than their subsequent recollection of event. More so when the witness has his own reasons for saying something different later on. He quotes: "Nevertheless the learned trial judge himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent's S/N 7adpxh8IFkO2rTTk8aPk1A oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case". The appeal [38] Before us, the Plaintiffs raised 5 principal grounds to attack the decision of the learned JC as follows:

That the learned JC had misdirected himself on all prevailing facts and applicable law when he dismissed the Plaintiffs’ Originating Summons in its entirety;

(ii) That the learned JC had misdirected himself on all prevailing facts and applicable Law when he failed to take into account all relevant considerations in arriving at his Decision dated 12.3.2024;

(iii) That the learned JC had misdirected himself on all prevailing facts and applicable law when he dismissed all the Plaintiffs’ prayers, for declaratory relief nor alternative relief; S/N 7adpxh8IFkO2rTTk8aPk1A

(iv) That the learned JC failed to make accurate factual observations from all the exhibited documents as well as oral evidence, when delivering his decision by;

dismissing all the Plaintiffs’ prayers.

failing to evaluate the entire antecedent background facts.

deciding that the Plaintiffs were not entitled to any declaratory relief whatsoever despite the testimony of the sole Plaintiffs’ witness whose testimony was not challenged materially in any manner whatsoever.

failing to decide that the subject property was essentially trust property held by the deceased Ananthan for his family members, principally his sisters i.e. the Plaintiffs

failing to decide in the alternative that the deceased Ananthan’s interest in the subject property was limited to his financial contribution only and not on the subject property per se.

failing to take into consideration the unchallenged financial contribution by the Plaintiffs to the subject property from the year 1966 until Ananthan’s demise in 2020. S/N 7adpxh8IFkO2rTTk8aPk1A

failing to give sufficient weight to the uncontroverted testimony of the sole witness of the Plaintiffs.

failing to give any weight to the Defendant’s own contention (through her solicitor) that the background facts in this matter is not in dispute. [v] That the learned JC applied the wrong principles of law in arriving at his Decision dated 12.3.2024;

by basing his present decision on an earlier withdrawal of caveat decision whereas this decision was an action seeking for Declaratory Reliefs.

by deciding that the transfer of the subject property had been an inter-vivos gift when the said findings were unsupported factually.

by arriving at his decision based on the principles of laches whereas the factual antecedents did not support it.

by deciding erroneously to treat the uncontroverted contemporary evidence of the Plaintiffs’ sole witness with caution.

by failing to apply the relevant applicable legal principles, which were overwhelmingly in favour of the Plaintiffs. S/N 7adpxh8IFkO2rTTk8aPk1A Our Findings [39] Having considered the submissions and the documentary evidence, we find that the central issue for our determination is whether the Property in dispute which was transferred by the late Papathy to her son the late Ananthan in 1995 was held on trust for the benefit of all the siblings or whether it was an outright inter vivos gift. [40] The Plaintiffs contend that the transfer was effected solely to facilitate a bank loan to rebuild the family home and that Ananthan agreed to hold the property for the benefit of his sisters, the Plaintiffs herein and their descendants. The Plaintiffs rely on the family history, asserted the financial contributions made by them and their continued occupation as well as the evidence of one Manickam Ramasamy, the Plaintiffs’ sole witness who testified that the transfer of the Property was made on the advice of the land office for securing the loan financing. [41] The Defendant, the widow and the administratrix of Ananthan’s estate asserts that the transfer was absolute and so the Property forms part of Ananthan’s estate. It was further submitted that the Appellants have failed to establish the requisites of a valid trust. [42] We find that although the subject matter of the Property was ascertained, there was no certainty of the intention to create a trust at the time of transfer. Such intention must be made clear by way of express words which the Plaintiffs had failed to prove to support their contention that the transfer of the said Property from the late Papathy to the late Ananthan was made on trust for the benefits of S/N 7adpxh8IFkO2rTTk8aPk1A the Plaintiffs’ family and their offspring as beneficiaries (Shahmi Anand B Shah v Balendran & Ors v Susilah Devi A/P S Vallipuram (2010) 4 MLJ 64). [43] Based on the facts before us there was no trust deed whether in written or oral form. In our view, the Plaintiffs have not satisfied the requirements of three certainties as advocated by the Supreme Court in the case of Yeong Ah Chee v Lee Chong Hai & Anor and Other Appeals [1994] 2 MLJ 614 which held that: “The 3 essentials of a valid trust are (a), certainty of words (b), certainty of subject and (c), certainty of object. Looking at the 7 trust deeds except for that in Civil Appeal No 5, there is certainty of words and also there is certainty of object, ie the names of beneficiaries but there is no certainty of subject ie trust property, viz the lands because the beneficial ownership of the lands passed to the purchasers of those subsidiary agreements of sale and purchase in 1969 when the sale of these lands took place, ie before the trust deeds were executed. The Lee brothers named as the trustees of these trust deeds were also the settlors of the trusts created by those trust deeds. It is a rule that a settlor must vest the trust property (subject) in the trustee completely, please see Milory v. Lord [1862]. How could the settlors, (the Lee brothers), vest the lands in themselves as trustees when, at the time of signing the trust deeds, they were not owners of the lands both in law and equity as well? Please see Lysaght.” [44] In the recent case decided by this Court in Ong Kong Beng & Anor v Ong Kong Leong & Ors [2022] 3 MLJ 536 where the Court held: "(1) The three elements necessary to constitute a trust in law were certainty of intention, certainty of object and certainty of subject S/N 7adpxh8IFkO2rTTk8aPk1A matter. In the instant case, there was no document evidencing a trust, nor any registration of a trust pursuant to s 344 of the National Land Code (see paras 154-155).

The trial judge believed and relied heavily on Ong Sr's evidence that it was his intention that the lands be shared by all his ten sons. But mere intention alone was insufficient to create a valid trust.

There was no evidence that when he transferred the lands to the appellants in 1980, Ong Sr made any declaration of trust, ie, that he told the appellants at the time of the transfer that the lands were to be held on trust for the benefit of all his sons. Ong Sr's acts and omissions, both express and by inference, over a substantial period of almost 33 years in fact showed that the lands were, and were meant to be, gifted absolutely to the appellants (see paras 193 & 199).

It was the respondents' burden to prove that Ong Sr at the time of the 1980 transfer had uttered clear, unequivocal and irrevocable words to the appellants which were necessary to create a trust on the original land. The evidence instead showed Ong Sr as saying that 'so long as I was alive, the lands would be held by me absolutely and any transfers to my sons would only have taken place after my death'. The appellants rightly described this as a testamentary disposition which did not fulfill the requirements of s 5 of the Wills Act 1959. In any event, it was inconsistent with the creation of an inter vivos trust. It was therefore clear that there was no certainty of words and no declaration of a trust (see paras 190-191)." [45] The Plaintiffs in their affidavit had failed to adduce evidence that the late Papathy had stated in clear terms that the Property was transferred to her son the late Ananthan on trust. Neither did the S/N 7adpxh8IFkO2rTTk8aPk1A instrument of transfer (Form 14A) as well as the issue document of title itself expressly stated that the transfer was made to the late Ananthan on trust. [46] The burden lies on the Plaintiffs to establish the three certainties required for the creation of a valid trust, namely certainty of words, certainty of subject matter, and certainty of objects. On the evidence, there was no contemporaneous written or oral declaration by Papathy indicating any intention to create a trust, and Form 14A, which effected the transfer, was silent on any trust arrangement. Further, there were uncertainty as to who the alleged beneficiaries were and in what proportions they were entitled to under the purported trust. [47] In the absence of any express declaration of trust or words indicative of a trust relationship in the instrument of transfer i.e. Form 14A and on the issue document of title, we agree with the finding of facts made by the learned JC that the transfer of the Property from the late Papathy to her son, the late Ananthan was an absolute inter vivos gift. [48] This conclusion is fortified by the undisputed factual matrix that the transfer was effected during the lifetimes of both Papathy as transferor and Ananthan as transferee. The transfer was duly formalised through the execution of Form 14A, which serves as conclusive evidence of the voluntary and unconditional nature of the disposition. S/N 7adpxh8IFkO2rTTk8aPk1A [49] Upon accepting and duly registering the Property in his name, Ananthan proceeded to secure financing from Maybank for the purpose of reconstructing the Property, an act consistent with the exercise of full ownership rights. From the date of transfer in 1995 until his passing in 2020, Ananthan remained the registered proprietor of the Property. Throughout this 25-year period, there was no challenge mounted by the Plaintiffs against Ananthan’s ownership. The Plaintiffs’ prolonged silence and inaction, despite the public and formal nature of the registration and subsequent dealings with the Property, weigh heavily against any assertion of a competing beneficial interest. Such delay is not merely evidentiary, it engages equitable considerations, including acquiescence and laches, which further undermine the Plaintiffs’ claim. [50] Thus, we find no error in the learned JC’s consideration of the doctrine of laches and treated the unreasonable delay as a bar to the Plaintiffs’ claim. The Court of Appeal in Tan Keng Yong @ Tan Keng Hong & Anor v. Tan Hwa Ling @Tan Siew Leng & Ors [2022] 2 MLJ 853 held: " [94] From the plaintiffs' own testimony, it is clear that P1 and P2 knew about the alleged trust in 1970 and P3 knew later, in 1975. They had been asking for the accounts over the years and did not receive any response from the defendants. They did not take any action whether to file an action or even to lodge a caveat to secured their claim over the disputed properties. Instead, they have waited for about half a century to commence the action against the defendants purportedly on the reason that they were reluctant to act as they were siblings. S/N 7adpxh8IFkO2rTTk8aPk1A [95] The law on the doctrine of laches is well settle. This court in Tung Kean Hin & Anor (as executor for the estate of Tung Leong Geok, deceased) v Yuen Heng Phong (as administrator for the estate of See Ngan Sang @ Lee Ngan Sang) [2019] 2 MLJ 334 had succinctly summarised the doctrine as follows: [37] For laches to be raised, there must be delay amounting to acquiescence (see: Cheah Kim Jong & Anor v Taro Kaur [1989] 3 MLJ 252; [1889] 1 CLJ Rep 378; [1999] 2 CLJ 791; Foo Holdings Sdn Bhd & Anor v Foo Choon Ying @ Foo Chun Yin (executor for the estate of Chen Choi Thai, the deceased) [1913] MLJU 1638; [2013] 1 LNS 908; Archibald v Scully [1861] IX HLC 360)… [38] Edgar Joseph Jr J in the case of Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202; [1989] 1 CLJ 693 explained the doctrine of laches: Laches is an equitable defence implying lapse of time and delay in prosecuting a claim. A court of equity refuses its aid to a stale demand where the plaintiff has slept upon his rights and acquiesced for a great length of time. He is then said to be barred by laches in determining whether there has been such a delay as to amount to aches the court considers whether there has been acquiescence on the plaintiff's part and any change of position that has occurred on the part of the defendant. The doctrine of laches rests on the considerate on that it is unjust to give a plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it or where by his conduct and neglect he has, though not waiving the remedy put the other party in a position in which it would not be reasonable to place him the remedy were afterwards to be asserted: 14 Halsbury's Laws of England (3rd Ed) S/N 7adpxh8IFkO2rTTk8aPk1A paras 1151-1182. Laches has been succinctly described as 'inaction with one eye's open." [51] It is noted that the Defendant places reliance on the earlier proceeding before the High Court involving the same parties, in which the caveat lodged by Kamala, the 3rd Plaintiff, in respect of the Property was ordered to be removed. In that proceeding, the High Court found that the transfer of the Property constituted an outright inter vivos gift, a finding now cited by the Defendant to support her present position. [52] As for the Plaintiffs’ contention that the late Ananthan did not reside in the Property following its reconstruction in 1995 until his passing in 2020, and that Kamala and her family continued to occupy the Property during that period, we do not consider these facts to be determinative of beneficial ownership. The absence of residence by Ananthan does not, in and of itself, negate his intention to treat the Property as his own. On the contrary, Kamala’s continued occupation may be more appropriately characterised as that of a licensee or, at most, a tenant at will, neither of which is sufficient to establish a trust or any proprietary interest in the Property. Conclusion [53] In the upshot, we are of the view that the learned JC was not plainly wrong in his findings of law and facts and does not warrant appellate intervention. S/N 7adpxh8IFkO2rTTk8aPk1A [54] For the above reasons, the appeal is dismissed and the decision of the learned JC is affirmed. [55] We award no order as to costs. Dated this: 19th August 2025 -sgd-ALWI BIN HJ. ABDUL WAHAB JUDGE COURT OF APPEAL Counsel: For the Appellants/Plaintiffs: Vengetraman Manickam Messrs. Jeyaratnam & Co. For the Respondent/Defendant: Farizatul Shima Bt. Abdul Hamid (Nor Hisham B. Sirat with her) Messrs. Shima & Co. S/N 7adpxh8IFkO2rTTk8aPk1A