1. ) Yee Pak Ngee v Yee Kim Lian (JA-22NCvC-97-07/2020)

YEE CHIA CHEK … PLAINTIFFS AND YEE KIM LIAN … DEFENDANT  GROUNDS OF JUDGEMENT  07/06/2024 10:51:24 JA-22NCvC-97-07/2020 Kand. 53 INTRODUCTION [1] This writ action, in essence involves the Plaintiffs’ claim for a declaration that the Defendant held the land under HS(M) 3216 PTD 3730, Mukim Machap, Daerah Kluang, Negeri Johor (“the said land”) for the Second Plaintiff (“2nd Plaintiff”) as a trustee. [2] The Defendant’s counter-claim was for a declaration that the Plaintiffs have been occupying the said land illegally, and for the Plaintiffs to deliver vacant possession of the said land to the Defendant as well as for damages to be ascertained. [3] After considering all the evidences, exhibits presented during the trial and submissions by the Parties, I allowed the Plaintiff’s claim and dismissed the Defendant’s counter claim with no order as to costs. [4] Below are the grounds of my decision. BRIEF BACKGROUND [5] Both Plaintiffs are farmers who were and are still cultivating pineapple plantations in various agricultural lands. Out of all the lands, the Plaintiff’s claim against the Defendant is mainly pertaining to the said land, reason being (as pleaded by the Plaintiffs) that the First Plaintiff (“1st Plaintiff”) and the Defendant had entered into an oral agreement in the year 1994 (the “said oral agreement”), terms of which are as follows:

the Defendant to apply for alienation of the said land when directed by the 1st Plaintiff;

the 1st Plaintiff to bear all the expenses for the alienation application and the process;

the 1st Plaintiff shall pay the premium for the said land;

upon the said land being registered to the Defendant, the Defendant is to hold the said land on trust for the 2nd Plaintiff;

the Defendant was not required to make any payment or expenses relating to the said land or for the cultivation of the pineapple plantation;

the Defendant was not required to cultivate the said land or get involved in the pineapple plantation;

the Defendant to transfer the said land to the 2nd Plaintiff without any consideration as and when directed by the 1st Plaintiff; and

the 1st Plaintiff to bear all the costs and expenses in relation to the transfer of the said land from the Defendant to the 2nd Plaintiff. [6] When the Johor State Government wanted to alienate the said land, the 1st Plaintiff, pursuant to the said oral agreement, directed the Defendant to apply for the alienation and to hold the said land on trust for the 2nd Plaintiff. [7] After Johor State Government approved the said land for alienation to the Defendant, the Defendant started to show her true colours in refusing to comply with the terms of the said oral agreement. One such action was when the Defendant paid the premium of RM2,985.00 for the registration of the said land. The Defendant later sought a declaration that she was not holding the land on trust for the 2nd Plaintiff and her intention was to sell the land in the open market to any third party. [8] Despite the Defendant being registered as the legal owner of the said land, the 2nd Plaintiff still continues to occupy the said land and continues to cultivate the pineapple plantation on the said land. The Plaintiffs claimed that the Defendant has no nexus to the said land as she has not been involved in the pineapple plantation nor does she even know the exact location of the said land. [9] In reply to this, the Defendant’s pleadings were merely to deny the existence of the said oral agreement between the Defendant and the 1st Plaintiff, and that the said land was never held on trust for the 2nd Plaintiff. ISSUES TO BE DETERMINED [10] The Plaintiffs have put in nine (9) issues for this Court to determine. However, based on the evidence presented, I find that only three

main issues need determination as follows:

is there an oral agreement made between the 1st Plaintiff and the Defendant to hold on trust the said land for 2nd Plaintiff;

if the answer is affirmative, whether Defendant has breached the terms of the said agreement; and

if the answer is affirmative, whether the Plaintiffs have and/or will suffer damages/loss. EVALUATION AND FINDINGS BY THE COURT [11] The heart of this matter relies on one question, namely whether there is an existence of an oral agreement made between the 1st Plaintiff and the Defendant to hold the said land on trust for 2nd Plaintiff, and if the answer is in the affirmative, then all the other issues brought up by the parties will have an answer. [12] In order to determine the issue, it is of great importance for this Court to analyze the evidence and exhibit presented by the Parties.

Whether there is an oral agreement between 1st Plaintiff and the Defendant to hold the said land on trust for 2nd Plaintiff [13] The Plaintiffs and the Defendant had given their version of evidence to prove the contention of the parties on the existence of the said oral agreement. [14] The Plaintiff had pleaded that on or about 1994, 1st Plaintiff and the Defendant had entered into the said oral agreement, terms of which can be seen in the Statement of Claim at paragraph 22 at page 31 of Ikatan Pliding (“IP”) and paragraphs 5(a) to (h) above. [15] The Plaintiffs have called the following witnesses to testify during the trial:

Yee Pak Ngee, 1st Plaintiff (PW1);

Yee Chia Chek, 2nd Plaintiff (PW2);

Yee Chia Mien (PW3), the elder daughter of PW1;

Yee Kah Ling (PW4), the younger daughter of PW1; and

Yee Bee Hin (PW5), the sister of PW1 and the Defendant. [16] As for the Defendant, the Defendant herself testified during trial as the Defendant’s only witness. [17] From the outset, it was the contention of the Plaintiffs that there was indeed an oral agreement made between the 1st Plaintiff and the Defendant on or about 1994, that the Defendant is to hold the said land on trust for the 2nd Plaintiff upon the land being registered to the Defendant. This arrangement was said to be done by the 1st Plaintiff in faith that the Defendant, as the biological sister of the 1st Plaintiff (where both of them were living together) to be the license holder of the said land after his partnership with one late Kong Siew Keon was dissolved. [18] The 1st Plaintiff and 2nd Plaintiff have given evidence through examination-in-chief on the existence of the said oral agreement. This can be seen in PWS1 and PWS2. They had even fortified their position during cross-examination on the existence of the said oral agreement. [19] The Plaintiffs have called witnesses, PW3, PW4 and PW5 to prove the same arrangement was made between PW3, PW4 and the 1st Plaintiff. They will apply for the alienated lands from Johor State Government when instructed by the 1st Plaintiff and will hold the alienated lands on trust for 2nd Plaintiff. All the terms of the oral agreements are the same as the said oral agreement. [20] The evidence of 1st Plaintiff proves that his bona fide intention in honoring the said oral agreement in view of the fact that the Plaintiffs have been cultivating the pineapple plantation since 1970 despite he has assisted the Defendant in regards to the alienation of the said land. [21] PW5 has testified that she is the sister of PW1 and the Defendant. She is working as a farmer and is cultivating pineapples at the neighboring land to the said land. She informed that she has never seen the Defendant in the said land or cultivating at the said land. She knew about the said oral agreement as the 1st Plaintiff and the Defendant have informed her. She also informed that the Defendant told her that the 1st Plaintiff used her name to apply for the alienation of the said land. [22] The Plaintiffs had proven the modus operandi of the 1st Plaintiff in regards to all of the alienated lands by calling all of the relevant witnesses to testify. [23] The 1st Plaintiff’s intention in honoring the agreement was also evident when PW3 and PW4 were given the land HS(M) 2306 PTD 3722 Machap (the 3rd alienated land) and HS(M) PTD 3649 Machap (the 4th alienated land) respectively who in return held the title of the lands on trust for the 2nd Plaintiff for the purpose of cultivation of pineapple plantation on the said lands. Those facts were never disputed throughout this proceeding. [24] From the evidence of Plaintiffs’ witnesses, I find that it is a family arrangement that the 1st Plaintiff has used the names of his family members to apply for the respective alienated lands for the purpose of cultivating pineapples on those lands and hold the respective alienated land on behalf of 2nd Plaintiff as the 2nd Plaintiff was underage at that time. They will transfer those lands to 2nd Plaintiff when instructed by the 1st Plaintiff. [25] On the other hand, the Defendant had first admitted to the existence of the said oral agreement and then denies the existence of the same. This seemed as an voluntary action by the Defendant to admit the existence of the said oral agreement before coming to her senses and changed her answer to the question posed by the Plaintiffs’ solicitor. [26] Further, the Defendant claimed that the said land was never held on trust for the 2nd Plaintiff. The Defendant also submitted that even if at all the oral agreement exists (which is denied by the Defendant), there is no written document or trust deed to support the existence of a trust. Apart from that, the Defendant submitted that there is nothing in the title or the memorandum of transfer to bear out the existence of such trust created in the memorial of registration pursuant to section 344 of the National Land Code 1965 [Act 56]. [27] From the Defendant's evidences given during the trial, it is clear that the Defendant in fact agreed that the 1st Plaintiff and the Defendant did communicate in regards to the application of alienation of the said land back in the year 1994. Nonetheless the Defendant claims that—

1st Plaintiff has informed the Defendant in the year 1994 to apply for the alienation of the said land;

no oral agreement made between 1st Plaintiff and the Defendant in the year 1994; and

1st Plaintiff intends to give the said land to the Defendant and not 2nd Plaintiff. [28] The Defendant has admitted that she was not involved in the cultivation of the pineapples on those lands except she was helping her father to work on those lands such as to remove the grass and do some light works, after completed her standard six and for three (3) years. She has stayed with her family at pineapple estates since she was born. [29] Based on the Defendant’s evidence given, it can be inferred that the Defendant knew about the pineapple plantation harvested by the Plaintiffs on the alienated land. The land title produced by the Plaintiff (see pages 3 and 4 of the Common Bundle of Documents, “CBD”) stipulated the express conditions of the said land is to be used for the pineapple plantation. This has proven one of the main terms of the said oral agreement (trust agreement) for the said land to be transferred by the Defendant to the 2nd Plaintiff for the continuation of the pineapple plantation on the said land by the Plaintiffs. [30] I further find that the Defendant knew it is the family business of cultivating pineapples on those lands and the 1st Plaintiff has been a farmer since 1970. The 1st Plaintiff needs more lands to continue their family business. The Defendant also knew that the 1st Plaintiff has used the family members’ name to apply for the alienated lands from Johor State Government [31] The Defendant did not know how to cultivate pineapple and she did not know about the alienation of the said land till she was informed by the 1st Plaintiff in 1994. Therefore, I agree with the contention of the Plaintiffs that the Defendant has no nexus to the said land as she was not involved in the pineapple plantation. [32] Further, the Defendant admitted that she did not know the location of all alienated lands except the land cultivated by her father. She did not know the exact location of the said land even after it was registered under her name on 31.5.2020. It is illogical the Defendant as the owner of the said land did not know the exact location of the said land. The Defendant needs the assistance of the land surveyor to find the location of her land in October 2022. I find the evidence of the Defendant is not credible and raises a doubt as to the truth of her evidence. [33] The Defendant did not know the procedure on how to apply for the alienation of the said land and all the application for alienation of the said land was dealt by the 2nd Plaintiff. The Defendant merely followed the 2nd Plaintiff to the land office to apply for the alienation of the said land. The Defendant informed that she only paid the premium and assessment for the said land. All the expenses in relation to the application for alienation of the said land was paid by the Plaintiffs. Therefore, I find her evidence that the 1st Plaintiff intends to give said land to her as a gift is an afterthought. If what she claimed was true, the 2nd Plaintiff would not have assisted her to apply for the said land and paid for the expenses for the application. Her evidence in fact has strengthen the case of the Plaintiffs’. [34] The Defendant in her statement of witness (DWS1) at paragraph 15 explain the reasons as to why 1st Plaintiff intends to transfer the said land to the Defendant so the Defendant could be the registered owner of the said land—

she believes that the 1st Plaintiff intends to help her to get the said land as she did not possess any land under her name; and

it is for love and consideration because the Defendant had taken care of the Defendant's deceased's mother. [35] I find these 2 statements were not pleaded by the Defendant in her defence dated 17.9.2020 filed by the Defendant. These two reasons raised by the Defendant are the Defendant’s justifications on one of the main issues why the Plaintiffs intended to give to the Defendant without any consideration for the said land. The Defendant had failed to particularize the main and important facts in the defence which the Defendant mainly relies on in this matter. [36] Order 18 Rule 12 of the Rules of Court 2012 provides that— “Particulars of pleading (0. 18, r. 12)

12.

Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words -

particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies; and

where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.”. [Emphasis added] [37] In the case of Janagi v Ong Boon Kiat [1971] 2 MLJ 196 where Sharma J held that— “In disposing of a suit or matter involving the disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance…” [Emphasis added] [38] Applying the principles as decided in the above case, both the reasons given by the Defendant in paragraph 15 of DWS1 should and ought to be disregarded by this Court. By disregarding both the reasons, the Defendant did not have any pleaded defence but only bare denials against the Plaintiffs’ claim. [39] I find that the Defendant’s rebuttal to this was nothing more than bare denial. The Defendant’s defence, be it in her Statement of Defence or in her testimony, was a bare denial and denied any knowledge on the Plaintiffs’ assertions. In addition to that, the Defendant has failed to call any other witnesses but herself, in her defence and her counter-claim. [40] I find on the balance of probabilities, the Plaintiffs has proved the existence of the said oral agreement. Whether a valid trust was created between the Plaintiffs and the Defendant [41] After determining there was an oral agreement between the 1st Plaintiff and the Defendant. The next question I have to decide is whether there are the elements which are necessary to create a valid trust. The legal test and elements which are necessary for determining the existence of a valid trust were formulated by Lord Langdale MR in Knight v Knight (1840) 49 ER 58 (Knight v Knight). The test postulates that all the three ‘Cs’ must be established, namely certainty of intention, certainty of subject matter, and lastly, certainty of object. [42] In Fawziah Holdings Sdn. Bhd. v Metramac Corporation Sdn Bhd & Another Appeal [2006] 1 MLJ 435 where the Court of Appeal referred to Knight v Knight and elaborated on the test as follows: “[60] The law governing the certainty of a trust is that laid down by Lord Langdale MR in the seminal case of Knight v Knight [1840] 49 ER 58. There it was held that for a trust to be certain three requirements must be fulfilled. First, there must be certainty of intention. Second there must be certainty of subject matter: both in terms of the corpus and the beneficial interest. Third, there must be certainty of the objects of the trust. A trust is void if there is uncertainty in any of these three elements.”. [Emphasis added] [43] Applying the principles above, the elements which are necessary to constitute a trust are, certainty of intention, certainty of object and certainty of subject matter. [44] Although the intention of both the parties can be seen after considering the pleading and the testimony of the witnesses during the trial, the only predicament the Plaintiffs were imposed with was that the agreement made between the 1st Plaintiff and the Defendant was not reduced in writing. In view of this, I am vested with another obligation of deciding whether the non-existence of any written agreement would render the trust invalid in view of the Defendant’s contention that there is nothing in the title or the memorandum of transfer to bear out the existence of such trust when section 344 of Act 56 provides for the registration of any trust created in the memorial of registration. [45] In dealing with this issue, I refer to the case of Toolukannaammah @ Mariayee & Ors (As Administrator For Estate of Arumugam A/L Nagappan) v Perumal A/L Nagappan [2018] 10 MLJ 562, where the Court of Appeal held that— “[18] The defendant being the eldest of the siblings, the plaintiffs had no reason to doubt that the defendant would reject the trust status of the said land. Unfortunately, it is only now that the defendant denies the trust over the said land and refuses to transfer the plaintiffs' undivided share into their respective names. This together with the fact that most of the siblings resides and continue to occupy and reside with their respective families on the said land in houses built bv them after the said land was registered in the defendant's name clearly shows and infers the existence of the trust status of the said land. The defendant now denies the said trust and renege on the promise that he is holding the said land in trust for all the siblings. In this respect I was alluded to the case of Wan Naimah v Wan Mohamad Nawawai [1974] 1 MLJ 41 where Suffian CJ delivering the judgment of the Federal Court quoted Romilly MR in Grant v Grant 55 ER 776: Words declaring a trust 'need not be in writing ... they must be clear unequivocal and irrevocable but it is not necessary to use any technical words. It is not necessary to say, 'I hold the property in trust for you', nor is it necessary to say 'I hold the same for your separate use'. Any words that the donor means, at the time he speaks, to divest himself of all beneficial interest in the property are, in my opinion, sufficient for the purpose of creating the trust. I think that is also sufficient for the purpose of showing that the trust has been created, if he afterwards states that he so created the trust, though there were no witness except the donee present at the time the trust was created. [19] The plaintiffs submitted that for the creation of a trust. there is no necessity for there to be an endorsement on the title... … [24] The principle pertaining to the formation of a valid trust may be discerned from the dicta of Richardson Jin Foreman v Hazard [1984) 1 NZLR 586: Property may be impressed with an express trust in one of two ways: either by a declaration of trust which involves a change in equitable ownership but not in legal title, or by a transfer of property to be held in trust by the transferee which involves a change in legal title and usually too in equitable ownership. No particular forms of word is required but in whatever way the intention is expressed the three certainties must be satisfied: certainty of intention to create a trust - that a trust is definitely intended; certainty of the subject-matter of the trust - that specified property is to be bound by the trust; and certainty of object, that is of the persons intended to have the benefit of the trust. In addition, the object of the trust must be lawful and any formalities required by the law.”. [Emphasis added] [46] The facts of the above case are similar to the present case. The Plaintiffs have continue occupying and cultivating pineapples on the said land even after the said land registered in the name of the Defendant. This fact was not disputed by the Defendant. Hence, it can be inferred that the existence of oral trust regarding the said land between the 1st Plaintiff and the Defendant. There is no requirement in law for the said trust to be in writing and for the trust to be endorsed in the title of the said land. [47] Hence, a trust may be in existence if it fulfills the following criteria:

certainty of intention to create a trust;

a trust is definitely intended; and

certainty of the subject-matter of the trust. [48] Further reference is made to the case of Zainab bt Ibrahim v Limah bt Che Mat [2014] 6 MLJ 419 where the Court of Appeal decided that— “We bear in mind that a trust does not arise by written document alone. It may arise orally or may be inferred from the conduct of the parties. This is particularly so of a constructive trust. We bear in mind also that a party is entitled to rely upon a trust being honoured. It is not disputed, in this case, that the plaintiff had remained on the land at all times.”. [Emphasis added] [49] This position is also well reflected in the Federal Court decision in Wan Naimah v Wan Mohamad Nawawai [1974] 1 MLJ 41 where reference was made to the words of Romilly M.R. in Grant v Grant 55 ER 776 as such: “The question here is whether the husband has used words which are equivalent to a declaration of trust. In the first place, these words need not be in writing, that is quite settled by the authorities. They must be clear, unequivocal and irrevocable, but it is not necessary to use any technical words, it is not necessary to say, " I hold the property in trust for you," nor is it necessary to say, " I hold the same for your separate use." Any words that shew that the donor means, at the time he speaks, to divest himself of all beneficial interest in the property are, in my opinion, sufficient for the purpose of creating the trust.”. [Emphasis added] [50] It is an undisputed fact that there is no document such as a trust deed or other legal document or written statement that can be relied upon to prove the existence of a trust over the said land as contended by the Defendant that the oral trust was not registered pursuant to section 344 of Act 56. However, as decided in the case of Grant v Grant (supra) that there is no legal requirement that a trust should be in writing. Be that as it may, the law nevertheless requires clear evidence that the elements for a valid trust exist, namely, certainty of words, certainty of subject and certainty of object. [51] In this present case, although the oral trust was not reduced in writing, I find that the trust was created based on the evidence adduced by the Plaintiffs where the Plaintiffs have occupied and harvested pineapple on all those lands since 1970 and still continuing to occupy the said land even after the said land is registered in the name of the Defendant. [52] I rule that the contention of the Defendant that there is no certainty of the subject matter when the oral trust was created since the said land has not been alienated by the Johor State Government is baseless. The particulars of the said land were clearly stated in the statutory declaration made by Kong Siew Keon on 16 November 1994 (“SD”) (see page 162 of CBD) where Kong Siew Keon has stated that he has voluntarily surrender the said land to the Defendant. The particulars of the Defendant were also mentioned in the said SD. [53] I further rule that although the sales and purchase agreement of the said land between Tan Kim Ang and Kong Siew Keon dated 9.4.1985 (ID11) (see page 160 of CBD), the sales and purchase agreement between Tan Kim Ang and the 1st Plaintiff dated 28.12.1984 (see page 161 of CBD) for the said land are not accepted as exhibits since the makers were not called, the Defendant never deny the meeting between 1st Plaintiff and Kong Siew Keon in 1994 and she knew about the application of the alienation of the said land in 1994. The 1st Plaintiff has explained he has signed two sales and purchase agreement and have paid the purchase price. The evidence of the Defendant corroborates with the evidence of the 1st Plaintiff and the documents produced by the Plaintiffs, in particular the SD. I find that the evidence of the 1st Plaintiff about the meeting with Kong Siew Kean in 1994 to discuss the transfer of the said land is credible and can be accepted by this Court. [54] Furthermore, I find that the Defendant did not take any legal action to evict the Plaintiffs, even after the said land has been registered in her name for approximately two (2) years. She only took action against the Plaintiffs by filing a counter-claim after the Plaintiffs filed their claim against her. [55] I am reminded that this case involves a familial dispute, and hence the witnesses to be called would be the family members of the Plaintiffs and Defendant. The Plaintiffs are not able to call Kong Siew Keon who may have shed some lights on this matter. However, I find there is no reason to doubt the evidence of Plaintiffs which have sufficiently corroborated their versions with the witnesses called by them. In contrast, I find the evidence of the Defendant is contradictory and not consistent with the defence pleaded. Therefore, I find the contention of the Defendant on the corroboration of the evidence by the family members devoid of merits. [56] I further rule that once the said land was registered, the Defendant was holding the said land on trust for the 2nd Plaintiff. The trust was fully constituted when the said land was duly registered into the name of the Defendant. At that moment, the 2nd Plaintiff had a valid beneficial interest in the said land as agreed by the Defendant and the 1st Plaintiff. Whether Plaintiffs are squatters on the said land [57] I now deal with the Defendant’s contention that the Plaintiffs occupied the land without any valid permission from the Johor State Government even before the land was registered in the name of the Defendant and the 1st Plaintiff is a squatter on the said land. Hence the 1st Plaintiff does not have any ownership rights to the said land until it is granted to the Defendant. [58] I acknowledge the position that squatters have no legal right to the land that they occupied, regardless of how long they have been unlawfully occupying the land where this principle is firmly established under section 341 of Act 56 and further supported by the Federal Court’s decision in Sidek Bin Haji Muhamad & 461 Ors v The Government of The State of Perak & Ors [1982] 1 MLJ

[59] However, the facts and circumstances of this present case can be distinguished. There is no legal action taken by the Johor State Government for illegal occupying of those alienated lands including the said land. Therefore, it is not for the Defendant to claim that the Plaintiffs are squatters and therefore have no right to apply for those lands. Those lands have been alienated and registered in the name of the Plaintiffs and their family members. Therefore, the arguments of the Defendant are baseless. [60] It is noteworthy that this case does not involve a complete stranger occupying an unused land, rather it is a familial dispute over a land originally used by both the 1st Plaintiff and the Defendant’s father. The facts presented to this Court indicate that the relationship between the siblings have been decent, or at least cordial, up until this dispute arose. [61] I further find that the cultivation of pineapple plantation on the said land was made only on the reliance of the promise of the trust as contended by the Plaintiffs. This was made in the context of family and not with any contractual intentions. [62] Hence, I am of the view that the elements to constitute trust is fulfilled and hence there exists a valid trust held by the Defendant for the 2nd Plaintiff.

Whether the Defendant has breached the terms of the said oral agreement [63] According to the said oral agreement, the 1st Plaintiff will pay the premium of the said land. The Defendant has complied with the terms of the said oral agreement up till the date where the premium has been paid by the Defendant. [64] The Defendant did not inform the Plaintiffs the letter regarding the approval for the alienation of the said land when she received it and did not inform the Plaintiffs that she has paid the premium of the said land amounting to RM2,895.00. [65] Based on the conduct of the Defendant, I find that the Defendant has changed her mind to breach the said oral agreement by paying the premium. The Defendant intends to swindle the said land and thereafter sell it to any third party.

Whether the Plaintiffs suffered damages/loss due to the breach of the said agreement by the Defendant [66] The next issue to determine whether the Plaintiff has suffered loss. The Plaintiffs’ contended they had suffered damages and loss as a result of the Defendant remaining as a registered owner of the said land. The Plaintiffs have borne the costs of cultivating pineapple on the said land. The Defendant never disputed that she did not incur any expenses for the cultivation of pineapple on the said land. [67] On the other hand, the Defendant’s counsel submitted that the Plaintiffs have not suffered any loss as they continued occupying and harvesting pineapple on the said land and gained profit from the selling of the pineapple. [68] I find the assessment from the Income Tax produced by the Plaintiffs was for the profit gained from year 2015 to 2019 whereas the said land only registered in the name of the Defendant on

31.5.2020. The Plaintiffs have continued to occupy and harvest pineapples on the said land and gain profit from the sales of the pineapples. The Plaintiffs have failed to produce any evidence to prove the future loss suffered by the Plaintiffs. Therefore, I disallow damages claimed against the Defendant. Other issues raised [69] The Defendant has raised the issue of indefeasibility of title under section 340 of Act 56 in their submissions. Section 340 of Act 56 will confer indefeasibility of title or interest on a bona fide purchase for valuable consideration. Once the title is registered in the name of the Defendant, it become indefeasible. However, there are exceptions provided under the Act. Therefore, it would be misleading to say the registration of the title is indefeasible. [70] I find this issue of indefeasibility of title was not pleaded by the Defendant in her defence. In order for the Defendant to rely on of indefeasibility of the title, the Defendant must plead that she has paid for the said land and it was not obtained by fraud, misrepresentation, forgery or unlawfully acquired as stated in paragraphs 340(2)(a) till (c) of Act 56. [71] In the present case, there is no evidence produced by the Defendant to prove she has paid for the said land, except she claimed the said land was given to her by the 1st Plaintiff as love and consideration because she has taken care of the Defendant's deceased's mother. As I ruled in paragraph 38 above, this fact has been disregarded by this Court as it was not pleaded in the defence. [72] Thus, this issue is disregarded by this Court and the argument of the Defendant is without basis. CONCLUSION [73] In the upshot, based on all the evidence before this Court, both oral and documentary, and submissions of counsel for both parties, I rule that the Defendant was aware that the Plaintiffs were indeed cultivating the pineapple plantation on the said land, and thus by claiming the said land at this juncture would be tantamount to an unjust enrichment when the Defendant has been indolent about the existence of the said land until it was brought to the knowledge of the Defendant by the Plaintiffs themselves. [74] After having evaluated the totality of the evidence, I find on the balance of probabilities, the Plaintiffs have proven their case against the Defendant. On the other hand, the Defendant has failed to prove her counter-claim against the Plaintiff. [75] In view of the foregoing reasons, I allow the Plaintiffs’ claim as follows:

a declaration that the Defendant holds and has held the said land on trust for the 2nd Plaintiff;

a declaration that the 2nd Plaintiff is the beneficial owner of the said land;

a declaration that the Defendant is the trustee of the said land;

an order that the Defendant is to transfer the said land to the 2nd Plaintiff, failing which the Registrar, High Court Johor Bahru is to execute the Instrument of Transfer (Form 14A) transferring the said land to the 2nd Plaintiff without any consideration and upon the approval from the Johor State

an order for the Land Administrator of Johor and the Registrar to make the necessary memorials and endorsements on the Document of Title and relevant Instrument of Transfer pertaining to the said land to give effect to the Judgment of this Court under section 417 of

an injunction to restrain the Defendant, whether by herself, her servants or agents or howsoever otherwise from transferring or in any way dealing with the said land;

the 1st Plaintiff is to reimburse the amount RM2,895.00 to the Defendant for the premium paid; and

the 1st Plaintiff is to bear the cost and disbursements for the said Transfer of the said land from Defendant to the 2nd Plaintiff. [76] I dismiss the Defendant’s counter-claim. I make no order as to costs. Dated 21 May 2024. Signed by: …………………….. Wong Mee Ling Judicial Commissioner High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor: For the Plaintiffs: Messrs. HT Lim & Partners No. 7A, Jalan Susur Kulai 1 Taman Seraya, Kulai Besar, 81000 Kulai, Johor For the Defendant: Messrs. MC Lai & Co. C-3-6, Kuchai Exchange No. 43, Jalan Kuchai Maju 13 58200 Kuala Lumpur Cases referred to:

Janagi v Ong Boon Kiat [1971] 2 MLJ 196

Knight v Knight (1840) 49 ER 58

Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd &

Toolukannaammah @ Mariayee & Ors (As Administrator For Estate of Arumugam A/L Nagappan) v Perumal A/L Nagappan [2018] 10

Zainab bt Ibrahim v Limah bt Che Mat [2014] 6 MLJ 419

Wan Naimah v Wan Mohamad Nawawai [1974] 1 MLJ 41

Sidek Bin Haji Muhamad & 461 Ors v The Government of The State of Perak & Ors [1982] 1 MLJ 313. Legislation referred to:

National Land Code 1965 [Act 56]

Rules of Court 2012