Emi Suhardi Bin Mohd Fadzil v Zainap Binti Abu (KA-22NCvC-18-04/2022)

ZAINAP BINTI ABU

UNKNOWN OCCUPIERS OCCUPYING A PORTION OF THE LAND HELD UNDER GM 57 LOT 1915, MUKIM OF BUKIT LADA, DISTRICT OF POKOK SENA, KEDAH AND A HOUSE ADDRESSED AT NO. 31 KAMPUNG BUKIT LADA, JALAN KAMPUNG PALAS, 06400 POKOK SENA, KEDAH

SHAFFIE BIN MD HASSAN (NRIC NO.: 590320-02-5841) --- THIRD PARTY GROUNDS OF JUDGMENT (After trial) 28/01/2026 23:31:44

This is a legal dispute where the court must decide whether the sanctity of the land register prevails over unregistered family arrangements and unproven assertions of dishonesty.

The dispute involves a piece of agricultural land held under GM 57, Lot 1915, Mukim Bukit Lada, District of Pokok Sena, Kedah (“the Land”). The original owner, Abu Bin Lebai (“Abu”), transferred his 41/53 undivided share of the Land to the Third Party, Shaffie Bin Md Hassan (“Shaffie”), on 16.08.2009.

The Defendants, who are the children of the late Abu, alleged that Shaffie only purchased 1 relong (approximately 0.7 acres) of the Land, while the remaining 1.563 relong (approximately 1.1114 acres) was held on trust by Shaffie for them.

The Plaintiff purchased the Land from the Third Party, Shaffie, through a sale and purchase agreement dated 10.09.2015 (“the SPA”) for a consideration of RM155,000.00. The transfer was executed via Form 14A (the statutory instrument of transfer under the NLC) on 22.09.2015 after full payment was made.

The Plaintiff claimed he purchased the entire interest in the Land from Shaffie. However, the Defendants contended that Shaffie committed fraud and a breach of trust by selling the entire portion, including the area held in trust, to the Plaintiff.

Before the current suit, the Defendants and Shaffie had lodged private caveats on the Land. The Plaintiff filed originating summonses in the High Court to remove these caveats (“the OS Proceedings”). The High Court then ordered the removal of the caveats, following which the Plaintiff was successfully registered as the proprietor of the Land on 08.09.2019.

Despite the Plaintiff being the registered proprietor, and notwithstanding a notice to quit dated 01.01.2020, the Defendants have refused to vacate the Land. In this Suit, the Plaintiff brought this claim to compel the Defendants to deliver vacant possession of the Land. The Plaintiff alleged that the Defendants have prevented him from entering, fencing, or using the Land, and have obstructed him from harvesting fruits from the orchard on the Land. Dissatisfied, the Plaintiff seeks a court order to recover possession of the Land from the Defendants.

On the other hand, the Defendants have filed a counterclaim asserting that they are the beneficial owners of 1.563 relong (approximately 1.1114 acres) of the Land, arguing that Shaffie held this specific portion on trust for them following a restricted sale of undivided shares in 2009. Consequently, they seek an order to set aside the Plaintiff’s registered title to the 41/53 undivided shares pursuant to Section 340(2)(a) of the NLC or, alternatively, a declaration that the Plaintiff holds the portion they occupy under a constructive trust for their benefit.

The Defendants further explained that the necessity for the trust arrangement arose because the 1-relong portion (approximately 0.7 acres) sold to the Third Party was smaller than the 2/5 hectare minimum required for a registered transfer under Section 205(3) of the NLC, thus necessitating a transfer of the entire share to be held partially on trust.

The Defendants have also initiated a claim against the Third Party, praying for full indemnity and compensation for any damages, interest, or costs awarded to the Plaintiff, characterising the vendor as the party responsible for the current dispute.

The Plaintiff contends that he is the registered proprietor of the Land under Section 340(1) of the National Land Code 1965 (“NLC”), conferring upon him statutory immunity and an indefeasible title. The Plaintiff cited Teh Bee v K Marumuthu [1977] 2 MLJ 7 to support its contention on this point.

The gist of the Plaintiff’s submission is that the register is conclusive, and the court should not entertain the Defendants’ claims unless they can strictly prove one of the statutory exceptions (fraud, forgery, or void instrument) under Section 340(2) of the NLC.

Even if the title of the Third Party, Shaffie, was defective, the Plaintiff argued that he is protected by the proviso to Section 340(3) of the NLC. The Plaintiff claims to be a subsequent purchaser who paid full consideration of RM155,000.00 in good faith and without notice of any adverse claims. Relying on Tan Ying Hong v Tan Sian San [2010] 1 MLRA 1, the Plaintiff argued that the doctrine of deferred indefeasibility protects him.

The Plaintiff further averred that the Defendants possess no recognisable interest in the Land because the High Court had already ordered the removal of the Defendants' private caveats in the OS Proceedings. The Plaintiff submitted that the removal of these caveats constitutes a judicial finding that the Defendants hold no valid interest capable of protection, and they are barred by res judicata and issue estoppel from re-litigating this point.

The Plaintiff contended that the Defendants' pleadings are fatally deficient since they failed to plead fraud specifically against the Plaintiff. The allegations of fraud were directed solely at the Third Party, Shaffie. Secondly, the Defendants failed to plead that the transfer instrument (Form 14A) was void or insufficient; therefore, they cannot argue issues that were not pleaded (see Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 16).

The Plaintiff rebuts the validity of the Letter of Consent dated 16.09.2015 (see Common Bundle of Documents, pp.25 & 26) (Encl.71) used by the Defendants to claim a trust. The Plaintiff argued that the SPA between the Plaintiff and the Third Party, Shaffie, was executed on 10.09.2015, before the Letter of Consent. Therefore, beneficial ownership had already passed to the Plaintiff before the Third Party, Shaffie, purportedly created the trust for the Defendants. The Plaintiff relied heavily on IB Capital Sdn Bhd v Ivory Indah Sdn Bhd & Anor [2022] 1 MLJ 860 to support its submission on this point.

The Third Party, Shaffie, had no capacity to create such a trust (Nemo dat quod non habet). In other words, the Plaintiff’s equitable interest was first in time and prevails over the Defendants' alleged interest.

Relying on the curtain and mirror principles under the Torrens system, the Plaintiff argued he was under no duty to look behind the register or investigate private, unregistered arrangements (such as the alleged trust) when the title was clean at the time of purchase.

The Defendants assert that they are the beneficial owners of a portion of the Land measuring approximately 1.563 relong (approximately 1.1114 acres), which they claim was held on trust for them by Shaffie. They contend that while the original owner (their late father) transferred his shares to the Third Party, it was intended that the Third Party would hold the specific portion occupied by the family on trust.

To support the existence of this trust and the burden of proving it, the Defendants rely on Heng Gek Kiau v Goh Koon Suan [2007] 2 MLRA 454, arguing that the court should look at all circumstances to arrive at the purchaser's real intention. Furthermore, they cite Paul Leong Kong Wai v James Joseph Dillon & Anor [2025] 5 MLRH 702 to argue that a trust can be implied from the circumstances and correspondence even in the absence of an express clause, particularly where a fiduciary relationship exists.

The Defendants further submitted that the Third Party, Shaffie, committed fraud and breach of trust by selling the entire 41/53 undivided shares to the Plaintiff, including the portion held on trust. They argue that under Section 340(2)(a) of the NLC, the Plaintiff’s title is defeasible because he is an immediate purchaser to a transaction tainted by fraud, not a subsequent purchaser. Relying on Low Huat Cheng & Anor v Rozdenil Toni & Another Appeal [2016] 6 MLRA 79 and Kamarulzaman bin Omar & Ors v Yakub bin Husin & Ors [2014] 2 MLRA 432, the Defendants contended that an immediate purchaser does not enjoy the shield of indefeasibility under the proviso to Section 340(3) of the NLC, even if they acted in good faith, that protection is reserved only for subsequent purchasers.

Regarding the allegation of fraud, they cite Assets Co Ltd v Mere Roihi [1905] AC 176 to define fraud as actual dishonesty and Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLRA 191 to establish that the standard of proof for fraud in civil proceedings is on the balance of probabilities.

Additionally, the Defendants argue that the Plaintiff and his agent, SP1, acted dishonestly and had knowledge of the Defendants' occupation, thereby making the Plaintiff a constructive trustee to prevent unjust enrichment. They point to the fact that the Plaintiff’s agent admitted knowing of the house on the Land and that the price stated in Form 14A was lower than the actual price to evade taxes. Citing Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn Bhd [2017] 5 MLRA 633, the Defendants argue that a constructive trust arises by operation of law when it would be unconscionable for the registered proprietor to assert his own beneficial interest while denying the rightful interest of another. Decision and Findings of the Court 24. Based on the submissions by the parties, evidence and testimonies of all witnesses, this court decides in favour of the Plaintiff for the recovery of the Land and an order for vacant possession, finding that the Plaintiff is the lawful registered proprietor with an indefeasible title under Section 340(1) of the NLC.

In contrast, the Defendants had failed to prove any statutory exception to indefeasibility or the existence of a valid trust, a failure further underscored by the adverse inference drawn against them for withholding material witnesses from the court. Herein are my reasons, which I have structured into separate issues.

In limine, it is necessary for this court to address the position of the Third Party, Shaffie. The Third Party was brought into this proceeding by the Defendants, who sought indemnity against him for any liability owed to the Plaintiff.

The record shows that on the first day of trial, on 20.08.2025, the Third Party was represented by counsel, Mr Padmanathan. However, on the second day of trial, on 21.08.2025, both the Third Party and his counsel failed to appear. The court was informed by the Defendants’ counsel that the Third Party’s counsel had communicated via telephone his intention to simply "close the Third-Party case" without calling any witnesses or leading any evidence.

Despite this absence and failure to adduce evidence, the Third Party’s counsel subsequently filed his written submissions (Encl. 101). The court is of the view that this course of action is legally untenable. It is a trite law that submissions must be based on evidence adduced at trial. As the Third Party failed to take the stand to rebut the allegations of fraud or to support any defence, his written submissions are bereft of probative value.

The only conclusion this court can draw from the Third Party’s conduct, specifically his failure to attend trial and his abrupt instruction to close his case, is that the Third Party is not interested in the outcome of this dispute. Indeed, neither the third party nor his solicitor ever attended court during the decision of this case.

Consequently, the battle in this suit remains exclusively between the Plaintiff and the Defendants. Since the Third Party has effectively abandoned his participation, this Court rules that, except for the order as to costs which the court shall address at the end of this judgment, whatever specific orders or reliefs prayed for by the Defendants against the Third Party are matters that will need to be dealt with by way of a separate action. B. Whether the Plaintiff’s registered title is indefeasible under Section 340(1) of the NLC, or whether it is liable to be set aside under the exceptions in Section 340(2)

The starting point for any dispute involving registered land in Malaysia is the concept of indefeasibility of title as codified in Section 340 of the NLC. It is a cardinal principle of the Torrens system that the register is conclusive evidence that title is vested in the registered proprietor. This court refers to the then Federal Court decision in Teh Bee (supra), where Ajaib Singh J ruled at p. 10 that under the Torrens system, the register is everything.

Consequently, it would be erroneous to allow an investigation into the right of a person to appear upon the register when they hold a certificate of title, unless specific statutory exceptions apply.

It is trite law that Section 340(1) of the NLC confers immediate indefeasibility upon registration. This means that the Plaintiff, being the registered proprietor of the Land, is immune from adverse claims unless his title is rendered defeasible by one of the specific vitiating circumstances set out in Section 340(2) of the NLC. i. The Plaintiff’s Status as an Immediate Purchaser 34. The distinction between an immediate purchaser and a subsequent purchaser is critical in determining the correct legal standard for indefeasibility under Section 340 of the NLC. The Federal Court in Tan Ying Hong (supra) established the doctrine of deferred indefeasibility. Under this doctrine, the statutory shield of indefeasibility provided by the proviso to Section 340(3) of the NLC, which protects a title acquired in good faith and for valuable consideration, is available only to a subsequent purchaser, not to an immediate purchaser.

In the present case, the Plaintiff purchased the Land directly from the registered proprietor, the Third Party. There were no intermediate transfers. The court is therefore in agreement with the Defendants' submission that the Plaintiff is an immediate purchaser.

Consequently, the Plaintiff does not enjoy the protection of the proviso to Section 340(3) of the NLC. His title is legally liable to be set aside if the Defendants can prove that the registration was obtained by one of the vitiating circumstances set out in Section 340(2) of the NLC, namely fraud, forgery, or the use of a void or insufficient instrument. ii. Whether the Instrument of Transfer (Form 14A) was Insufficient or Void 37. The Defendants contend that the Plaintiff’s title is defeasible under Section 340(2)(b) of the NLC because the registration was obtained by means of a void instrument. This argument relies on the admission by the Plaintiff’s agent (SP1) during cross-examination that while the actual purchase price was RM155,000.00, the price stated in the Form 14A was only RM100,000.00. The Defendants submit that this under-declaration was a manipulation to evade higher stamp duty, thereby rendering Form 14A a void instrument.

This court finds this submission untenable in law for two reasons: first, strictly on the pleadings, and second, on the substantive definition of "insufficient or void instrument" under the NLC.

First, the issue of tax avoidance or the invalidity of the instrument due to under-stamping was never pleaded in the Statement of Defence. To allow the Defendants to raise a distinct ground of defeasibility, alleging illegality of the instrument, at the submission stage without having pleaded the material facts, constitutes a trial by ambush. On this preliminary ground alone, the defence fails.

As established in Tan Ah Tong v Parveen Kaur [2009] 5 MLRA 334, allowing the Defendants to raise this issue only during submissions would result in a “trial by ambush”, catching the Plaintiff by surprise.

Second, and more fundamentally, even if this court considers the merit of the argument, the allegation of manipulated stamp duty does not bring the Form 14A within the legal definition of a "void or insufficient instrument" under Section 340(2)(b) of the NLC.

The Federal Court in Kamarulzaman Omar (supra) provided authoritative guidance on this specific ground of defeasibility. In discussing what constitutes an insufficient or void instrument, Jeffery Tan FCJ referred to the Supreme Court decision in M & J Frozen Food Sdn Bhd & Anor v Siland Sdn Bhd & Anor [1994]

The definition of an 'insufficient or void instrument' under Section 340(2)(b) of the NLC must be understood in the context of statutory compliance with the Code itself. In M & J Frozen Food (supra), Wan Yahya SCJ at p.310 held that a failure to comply with the mandatory statutory requirements of the NLC (specifically Sections 258 and 261 in that case) was not a mere irregularity but an 'illegality which strikes at the root' of the transaction, thereby rendering the title obtained defeasible.

By analogy, for the Form 14A in the present case to be deemed 'insufficient or void', there must be a similar failure to comply with the statutory provisions of the NLC regarding the instrument's execution or form. An allegation regarding the valuation declared for stamp duty purposes under a separate statute, the Stamp Act 1949, does not constitute a failure of statutory compliance under the NLC that would render the instrument 'insufficient' or 'void' to pass title.

In Kamarulzaman (supra), the court affirmed that an instrument is "insufficient or void" where there is non-compliance with the statutory strictures of the NLC itself, such as failure to comply with Section 258 (formalities of execution) or Section 261 (requirements for attestation), or where the act of the Registrar in issuing the title was ultra vires the statutory provisions.

The term "insufficient" refers to the form and validity of the instrument as required by the NLC for registration. It does not extend to collateral issues regarding the quantum of stamp duty paid under the Stamp Act 1949. While the under-declaration of value may attract penalties from the Collector of Stamp Duties or affect the admissibility of the document in evidence until the duty is paid (a defect which is curable, as observed in Chai Shan Foo v Tai Ooi Cheng [2021] 1 LNS 2706 & Malayan Banking Bhd v Agencies Service Bureau Sdn Bhd & Ors [1982] 1 MLJ 198 and the same has been addressed when this Court impounded the document), it does not render the instrument void for the purpose of transferring title under the NLC.

There is no evidence before this Court that the Form 14A in this transaction failed to comply with the execution or attestation requirements of the NLC, nor was there evidence that the Registrar acted ultra vires in registering the transfer.

Furthermore, as envisaged by Eusoff Chin CJ in Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & Ors [1997] 2 MLRA 202, internal company irregularities do not automatically render an instrument “void” for the purposes of defeating a registered title under Section 340(2) unless actual fraud against the claimant is proven. Applying Pekan Nenas, this stamp duty discrepancy is a collateral regulatory irregularity (a revenue matter). Just as the internal board irregularities in Pekan Nenas (supra) were insufficient to defeat the title of a purchaser who paid value, a revenue irregularity under the Stamp Act 1949 does not render the instrument void for the purpose of transferring title under the NLC.

Moreover, the law is trite regarding the admissibility of instruments that are not duly stamped. Under Section 52(1) of the Stamp Act 1949, no instrument chargeable with duty shall be admitted in evidence unless it is duly stamped. In the present case, it was revealed during the trial that Form 14A was stamped for a value of RM100,000.00, whereas the actual purchase price was RM155,000.00. Consequently, the instrument was effectively under-stamped. However, as this Court observed in Chai Shan Foo v Tai Ooi Cheng [2021] 1 LNS 2706, the operation of the Stamp Act does not cease at inadmissibility.

This court is guided by the Federal Court decision in Malayan Banking Bhd v Agencies Service Bureau Sdn Bhd & Ors [1982] 1 MLJ 198, where Salleh Abas FJ held that the court is under an obligation to impound unstamped documents and to admit them on payment of the stamping duty or penalty. As noted in Chai Shan Foo (supra), it is the duty of the court, upon knowledge of such unstamped or under-stamped documents, to impound them pursuant to Section 51 of the Stamp Act 1949 and order the stamp duty and penalty to be collected.

Hence, pursuant to Section 51 of the Stamp Act 1949 and consistent with the approach in Chai Shan Foo (supra), this court had impounded the instrument of transfer (Form 14A) and forwarded the same to the stamp office to assess the total stamp duty to be up-stamped together with the necessary penalty. By doing so, the court ensured that government revenue was collected as required by law, while simultaneously allowing Form 14A to be treated as valid evidence. This ensures that the substantive decision on land ownership is determined on its merits, rather than derailed by a technical revenue issue.

It is apt to stress here that, although the Plaintiff is an immediate purchaser and his title is theoretically vulnerable under Section 340(2), the Defendants have failed to discharge the burden of proving that the registration was obtained by fraud or by means of a void instrument. While an immediate purchaser lacks the 'deferred indefeasibility' shield of the proviso to Section 340(3), they retain the primary protection of Section 340(1) unless the specific vitiating elements of Section 340(2)—fraud or a void instrument—are strictly proven against them. The discrepancy in the declared price for stamp duty purposes is a revenue matter and does not satisfy the threshold of ‘insufficient or void instrument’.

Accordingly, the exceptions to indefeasibility in Section 340(2) of the NLC have not been established. The Plaintiff’s title, therefore, remains indefeasible by virtue of Section 340(1) of the NLC. iii. Whether the Plaintiff or his agent (SP1) committed fraud or acted dishonestly 54. The crux of the Defendants’ case is that the title is defeasible under Section 340(2)(a) because the transfer was obtained through fraud or misrepresentation to which the Plaintiff (or his agent) was a party or privy. They alleged that the Third Party fraudulently sold the portion held on trust, and the Plaintiff was complicit.

To succeed in this defence, the burden lies on the Defendants to prove fraud. The standard of proof for fraud in civil proceedings is on the balance of probabilities. This court is guided by the Federal Court's decision in Sinnaiyah & Sons Sdn Bhd (supra), where Richard Malanjum CJSS (later CJ) established at para [52] that “…in a civil claim, even when fraud is alleged, the civil standard of proof, that is, on the balance of probabilities, should apply”.

However, even under this standard, the allegation must be strictly proven and not based on mere suspicion or conjecture. The definition of “fraud” in this context refers to “actual fraud, i.e., dishonesty of some sort,” and not merely constructive or equitable fraud. This principle was affirmed in Tai Lee Finance Co Sdn Bhd v The Official Assignee of The Property of Ngan Kim Yong & Ors [1982] 1 MLRA 391.

The Apex Court in Tai Lee Finance (supra) emphasizes that to prove actual fraud, the party must be shown to be guilty of an act involving “dishonesty, a wilful and conscious disregard [of] the violation of the right of other persons,” referencing the Privy Council case of Waimih Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101.

In the current case, the Defendants argue that the Plaintiff's agent, SP1, knew of the Defendants' occupation of the Land and the existence of the house, yet proceeded with the transfer of the entire land. They submit that this constitutes dishonesty or complicity in the Third Party's alleged breach of trust.

However, the evidence before this court does not support a finding of actual fraud or dishonesty on the part of the Plaintiff or his agent. First, SP1 testified that while he saw a house on the Land, he was given the title by the vendor or the Third Party in this suit, Shaffie, which showed no encumbrances or endorsements regarding any trust or partial interest. [See NOP, p.30] SS Ok, so Encik Anuar memang tahu ada rumah tu atas tanah tersebut la. ANR Tak tahu, saya tahu ada rumah tapi saya tak tahu rumah ada dalam geran.

Secondly, SP1, during cross-examination, testified that the Third Party did not physically demarcate the portion being sold, stating “he just gave me the title”. This indicates that the Plaintiff relied on the register, which showed that the Third Party was the co-proprietor of the whole share. [See NOP, p.40] SS Tak setuju tapi apa yang dikatakan oleh Shaffie betul lah, sebab dia, dia nak jual tu sebahagian sahaja. ANR Dia tak pernah datang untuk tunjuk kat saya tanah yang mana yang di jual ke-dan dia bagi saya geran saja.

Thirdly, the Plaintiff conducted a title search and due diligence before purchase, confirming that the Third Party and Wan Azizan were the registered owners with no restrictions or caveats lodged against the title at the material time (See PWS2, Q&A 23).

As stated earlier, under the curtain and mirror principles of the Torrens system, a purchaser is not required to look behind the register to investigate private, unregistered arrangements. As noted in the Apex Court case of Pushpaleela A/P R Selvarajah & Anor V Rajamani D/O Meyappa Chettiar & Ors [2019] MLJU 134, the system is designed to save persons dealing with registered proprietors from the trouble and expense of going behind the register to investigate the history of the author's title. The Plaintiff was entitled to rely on the clean title presented to him.

Furthermore, the Letter of Consent relied upon by the Defendants to prove the trust is dated 16.09.2015, while the SPA between the Plaintiff and the Third Party was executed on 10.09.2015. Therefore, at the time the Plaintiff acquired his equitable interest in the Land, the document creating the alleged trust for the Defendants did not even exist. The Plaintiff could not have been privy to a fraud involving a document or arrangement created after his purchase.

It is the finding of this Court that the Defendants have failed to adduce sufficient evidence to prove that the Plaintiff or his agent was "party or privy" to any fraud. At most, the evidence suggests the Plaintiff had constructive notice of the occupation. Still, as established in Tai Lee Finance (supra), mere constructive notice is insufficient to defeat a registered title under Section 340(2) of the NLC. Without proof of actual dishonesty or a designed object to cheat the Defendants, the exception in Section 340(2)(a) does not apply.

Consequently, the Plaintiff’s title remains indefeasible under Section 340(1) of the NLC. The Defendants’ claim that the title is defeasible fails, and the register remains conclusive evidence of the Plaintiff’s ownership.

Crucially, the Defendants’ failure to call material witnesses, including D1, Zainap binti Abu, and independent witnesses to the alleged trust, further weakens their allegation of dishonesty.

Therefore, the court finds that the Defendants have failed to prove that the Plaintiff or his agent committed actual fraud or acted with dishonesty. The Plaintiff’s actions were those of a diligent purchaser who relied on the register's clean face and valid court orders. Consequently, the exception under Section 340(2)(a) of the NLC does not apply, and the Plaintiff’s title remains indefeasible. C. Whether the Defendants are barred from raising the trust/ownership issue due to prior proceedings

The Plaintiff contends that the Defendants are barred by the doctrines of res judicata and issue estoppel from re-litigating the existence of a trust over the Land. The Plaintiff highlights that the High Court had twice ordered the removal of private caveats during the OS Proceedings after considering identical affidavits, exhibits, and narratives regarding the alleged family trust.

The Plaintiff submits that these judicial findings, which were never appealed, conclusively determined that the Defendants possess no recognisable interest in the Land.

In response, the Defendants argue that the prior High Court orders concerned only caveatable interests and did not constitute a substantive determination on the existence of a trust. Furthermore, the Defendants raise a procedural objection, asserting that the Plaintiff failed to plead res judicata or issue estoppel in his amended Statement of Claim. Relying on Tan Ah Tong (supra), the Defendants argue that parties are strictly bound by their pleadings and the court cannot consider issues not raised therein (See also Bingkul Timber Agencies Sdn Bhd v The Government of the State of Sabah [1995] MLJU 73).

Upon deliberation, the court finds that the Defendants are indeed barred from raising the trust issue in the present suit. The evidence reveals that the Letter of Consent and the testimonies of the same witnesses (Shamsutdin bin Idris and Mohamad Azami bin Awang) were the exact materials previously ventilated and rejected by the High Court in the OS Proceedings. Although the OS Proceeding is summary in nature, the court in those instances specifically scrutinised the Defendants’ assertions of a trust and found them insufficient to support a proprietary claim.

The court further observes that the Defendants' attempt to re-litigate these same facts constitutes an abuse of the court process. While the Defendants argue that the Plaintiff did not explicitly plead the term res judicata, the Plaintiff’s Statement of Claim and the subsequent procedural history clearly put the Defendants on notice that the finality of the prior High Court orders would be a central issue. Allowing the Defendants to repackage the same discredited narrative as a defence in this trial would undermine the integrity of prior judicial decrees and the principle of finality in litigation.

Therefore, as the High Court has already judicially determined that the documents and narratives provided by the Defendants do not confer a valid interest in the Land, and because those rulings were never appealed, the Defendants are estopped from reviving these issues. The Plaintiff's registered title, having already survived these previous legal challenges, remains indefeasible. D. Whether to draw an adverse inference against the Defendants for failing to call material witnesses

The Plaintiff urges this court to invoke the presumption under Section 114(g) of the Evidence Act 1950, which allows a court to presume that evidence which could be, and is not, produced would be unfavourable to the person who withholds it.

The Plaintiff highlights that the Defendants’ own List of Witnesses (Enclosure 73) named five potential witnesses: a) Zainap binti Abu (1st Defendant), b) Sarah Binti Abu (SD1), c) Zakaria bin Abu (3rd Defendant), d) Shamsutdin bin Idris, and e) Mohamad Azami bin Awang.

However, only Sarah Binti Abu (SD1) was produced to testify at trial. The Plaintiff contends that the failure to call the 1st and 3rd Defendants, who are principal parties to the action, and the independent witnesses to the alleged trust negotiation, justifies an inference that their testimony would have damaged the Defence.

In response, the Defendants argue that the invocation of Section 114(g) is unjustified because they did not withhold or suppress evidence; instead, they merely omitted witnesses whose testimony would have duplicated the evidence already given by SD1. Relying on Munusamy Vengadasalam v PP [1986] 1 MLRA 292, they submit that the adverse inference can only be drawn if there is actual suppression of evidence and not merely a failure to obtain it. They further cite Pekan Nenas Industries (supra) to argue that a mere omission to call a witness is insufficient to trigger the presumption.

Upon careful deliberation, this Court finds that an adverse inference must be drawn against the Defendants. While the Defendants argue that calling more witnesses would be duplicative, the court notes that the witnesses not called were material to the core issues of the case.

Zainap binti Abu and Zakaria bin Abu are not just siblings of the deponent; they are the 1st and 3rd Defendants whose proprietary interests and physical occupation are the very subjects of this recovery action. Zainap, as the resident of the house on the Land, was the most natural witness to defend the family’s possession of the house and her own home. Their absence from the witness box deprives the court of first-hand evidence concerning the alleged family arrangement with the Third Party, Shaffie.

Furthermore, the failure to call Shamsutdin bin Idris and Mohamad Azami bin Awang is particularly striking. These individuals were presented as independent witnesses to the negotiations between the Third Party and the Plaintiff's agent, and their affidavits formed the backbone of the Defendants’ previous caveat proceedings. As noted by Siti Norma Yaacob JCA in Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627, the burden of producing material witnesses rests with the party who makes the allegation. Since the Defendants relied on a narrative of a restricted sale and a family trust, it was their duty to call the witnesses who purportedly witnessed those events.

In the same vein, Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd [2017] MLJU 1976 could not be clearer when Azahar Mohamed FCJ (later, CJM) established that the failure to call key witnesses who played a prominent role in the transaction warrants the irresistible inference that their evidence would have been detrimental to the party alleging the fact.

Consequently, this court presumes that if Zakaria, Zainap, Shamsutdin, and Mohamad Azami had been called, their testimony would have revealed inconsistencies and would not have supported the Defendants' claim of a valid trust binding the Land. The defence is thus left with the unsupported testimony of SD1, which is insufficient to rebut the conclusive nature of the register.

Although the judgment is entered against the Defendants, this Court observes from the record the conduct of the Third Party. He was the vendor who created this dispute by selling the Land to the Plaintiff while allegedly promising it to the Defendants. He entered an appearance but abandoned the trial. As the root cause of this litigation lies in the Third Party's conduct, and pursuant to this Court's broad discretion regarding costs, the Court hereby orders that the Third Party shall indemnify the Defendants for all the monetary payments due and payable to the Plaintiff.

In conclusion, the court allows the Plaintiff’s claim and dismisses the Defendants' counterclaim. The following orders are made: a) The Defendants shall deliver vacant possession of the Land and the house at No. 31, Kampung Bukit Lada, to the Plaintiff no later than 31.01.2026; b) No order as to general damages is made against the Defendants; c) Costs in the sum of RM35,000.00 are awarded to the Plaintiff, to be paid directly by the Third Party, Shaffie; and d) Any further disputes or claims regarding indemnity or compensation against the Third Party must be pursued via a separate legal action. Dated: 28th January, 2026 -------------------------------------------------------------------- YA Dr. Hj. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA ALOR SETAR Table of Authorities Cases Assets Co Ltd v Mere Roihi [1905] AC 176 Bingkul Timber Agencies Sdn Bhd v The Government of the State of Sabah [1995] MLJU 73 Chai Shan Foo v Tai Ooi Cheng [2021] 1 LNS 2706 Heng Gek Kiau v Goh Koon Suan [2007] 2 MLRA 454 IB Capital Sdn Bhd v Ivory Indah Sdn Bhd & Anor [2022] 1 MLJ 860 Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627 Solicitor for the Plaintiff : Syed Fakhruzzaman Syed Mansor Messrs. Intan Safinaz & Co. Advocates & Solicitors Solicitors for the Defendants : Siau Suen Miin & Nurul Husna Halim Messrs. Rusni, Zahrah & Associates Solicitors for the Third Party Padmanathan A/L Kumarasamy Messrs. Padmanathan Abdul Halim & Co. Kamarulzaman bin Omar & Ors v Yakub bin Husin & Ors [2014] 2 MLRA 432 Low Huat Cheng & Anor v Rozdenil Toni & Another Appeal [2016] 6 MLRA 79 M & J Frozen Food Sdn Bhd & Anor v Siland Sdn Bhd & Anor [1994] 1 MLJ 294 Malayan Banking Bhd v Agencies Service Bureau Sdn Bhd & Ors [1982] 1 MLJ 198 Munusamy Vengadasalam v PP [1986] 1 MLRA 292 Paul Leong Kong Wai v James Joseph Dillon & Anor [2025] 5 MLRH 702 Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & Ors [1997] 2 MLRA 202 Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn Bhd [2017] 5 MLRA 633 Pushpaleela A/P R Selvarajah & Anor V Rajamani D/O Meyappa Chettiar & Ors [2019] MLJU 134 Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 16 Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLRA 191 Tai Lee Finance Co Sdn Bhd v The Official Assignee of The Property of Ngan Kim Yong & Ors [1982] 1 MLRA 391 Tan Ah Tong v Parveen Kaur [2009] 5 MLRA 334 Tan Ying Hong v Tan Sian San [2010] 1 MLRA 1 Teh Bee v K Marumuthu [1977] 2 MLJ 7 Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd [2017] MLJU 1976 Waimih Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101