Ghantimathy A/P Kannapiran v Annammah A/P Ponnusamy (BA-22NCvC-227-06/2023)

The subject matter of this claim involves a property held under Mukim Grant 1779, Lot 6001, Mukim Sabak, District of Sabak Bernam, in the State of Selangor Darul Ehsan Property registered proprietor of the Property is Kannapiran A/L Seenivasaram, who passed away intestate on 8 August 2019 Deceased The Plaintiff is one of the lawful children of the Deceased and and the lawful widow of the Deceased. 21/08/2025 09:50:16

By a Power of Attorney dated 5 January Power of Attorney , the Deceased as donor, appointed the Plaintiff and Defendant as his attorneys to manage the Property (Clause 8 of the Power of Attorney), and by the same instrument, purported to also gift it to them in equal shares upon love and affection (Clause 24 of the Power of Attorney).

Disputes arose because the Defendant wanted to take out Letters of Administration vide Suit No.: BA-31NCvC-928- 11/2021 and distribute the Property instead. The Defendant and the Deceased have two (2) other children. Issues for determination 4. The authenticity and formal validity of the Power of Attorney when it was made are not in dispute. It complies with all the requirements of Sections 3 and 4 of the Powers of Attorney Act 1949 and was registered at the Ipoh High Court under Registration No. 44/2009.

The Power of Attorney contains the following salient provisions: It is not expressed to be irrevocable.

The Plaintiff asserts that the Power of Attorney remains valid in law and is capable of being enforced. The Defendant, however, contends that the Power of Attorney became void upon the death of the Deceased. The Defendant further argues that a Power of Attorney is not a testamentary instrument or a valid instrument for effecting the transfer of the Property.

On the day set down for trial, objections were recorded to the request for the conduct of a hybrid trial due to incapacity of a wheelchair bound witness. No prior notice of this request was given to the Defendant. In the context of these potential delay events, this Court reviewed the witness statements filed and queried the relevance of the intended testimonies.

As Order 14A of the Rules of Court 2012 empowers the High Court to determine any question of law or construction of documents arising in any cause or matter at any stage of the proceedings, where to the court such questions are suitable for determination without going through a full trial, this Court on its own motion, proposed that the following questions of law be determined without viva voce evidence: a) Whether the Power of Attorney survived the death of the donor; and b) What is the effect of an incomplete inter vivos gift.

Counsel for both sides concurred that the above questions would be decisive of the matters in issue and agreed to dispense with viva voce evidence and file written submissions instead. Analysis and findings

Sections 5 and 6 of the Powers of Attorney Act 1949 provide as follows:

Every instrument purporting to create a power of attorney of which a true copy or an office copy has been deposited in the office of the Registrar or a Senior Assistant Registrar in accordance with this Act or any law repealed by this Act whether before or after the commencement of this Act, shall, so far as the said instrument is valid and so far as may be compatible with the terms of the instrument, continue in force until notice in writing of the revocation thereof by the donor, or of the renunciation thereof by the donee, has been deposited in every office in which the office copy or true copy thereof has been so deposited, or either the donor or the donee has died or the donee has become of unsound mind, or the donor has been adjudged to be of unsound mind or a receiving order has been made against him in bankruptcy.

(1) If a power of attorney, given for valuable consideration, is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser

the power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power; and

any act done at any time by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened; and

neither the donee of the power, nor the purchaser, shall at any time be prejudicially affected by notice of anything done by the donor of the power, without the concurrence of the donee of the power, or of the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power.

As noted by the Court of Appeal in the case of Sidambaram a/l Torosamy v Lok Bee Yeong (Representative to the estate of Soma Sundram a/l Doraiswamy) [2017] 4 MLJ 570, Section 6 above deals with irrevocable powers of attorney relating to the purchaser of property, and does not displace the common law position that an authority coupled with an interest ng Wilde CJ in Smart v. Sandars [1848] 5 CB 895: consideration whereby an authority is given for the purpose of securing some benefit to the donee of the authority such an

In a nutshell, a power of attorney is valid until it is revoked or renounced or until the donor has died; unless it is given for valuable consideration and expressed to be irrevocable, in which case it survives the death of the donor.

In the case of Tan Chong Keat Sdn Bhd v. Pintar Pintas Sdn Bhd [2005] 2 CLJ 863, the Court of Appeal referred to Halsbury's Laws of England (9th Ed) (at p. 184) and adopted its definition of valuable consideration as follows: Valuable consideration has been defined as some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other at his request. It is not necessary that the promisor should benefit by the consideration. It is sufficient if the promisee does some act from which a third person benefits, and which he would not have done but for the promise.

As to whether love and affection constitutes valuable consideration, this was decided by the Court of Appeal in the case of Nik Rahimi Wan Hassan & Anor v Nik Rahmat Wan Hassan [2015] CLJU 78 Nik Rahim ) where it was also contended that a power of attorney continued to be in force notwithstanding the death of the donor. The Court of Appeal held as follows: In our judgment, it is clear from section 26(a) of the Contracts consideration. Let us examine Section 26(a). It provides:-

An agreement made without consideration is void unless

it is expressed in writing and registered under the law (if any) for the time being in force for the registration of such documents, and is made on account of natural love and affection between parties standing in a near relation to each other. The general rule under our law of contract as provided for by section 26 is that an agreement made without consideration is void. But paragraph (a) of the above section 26 provides one of the exceptions to the general rule in a situation where the agreement is made on account of natural love and affection between parties standing in a near relation to each other. Thus paragraph (a) above provides for an exception in a case of natural love and affection; it does not say that natural love and

Based on the above, it is clear to this Court that the Power of Attorney is neither expressed to be irrevocable nor is it supported by any valuable consideration flowing from the Plaintiff and Defendant or either of them. Consequently, it abates as a Power of Attorney upon the death of the Deceased and ceases to have any effect.

The Plaintiff conceded this much, but submitted that Clause 24 of the Power of Attorney is nevertheless compelling evidence of inter vivos gift of the Property and relied on what it characterised as an equitable exception in Strong v Bird (1874) LR 18 Eq 315 to give effect to an incomplete gift. This is contention addressed in the next section.

To close off this point, the Plaintiff in its principal submissions also argued that Clause 24 of the Power of Attorney is evidence of an agreement in writing, enforceable as a contract by virtue of Section 26(a) of the Contracts Act 1950, illustration (b) of which reads as follows: A, for natural love and affection, promises to give his son, B, RM1,000. A puts his promise to B into writing and registers it under a law for the time being in force for the registration of such documents. This is a contract.

According to the Plaintiff, all the elements of an enforceable contract are present i.e. the Power of Attorney is: a) in writing; b) registered under section 4 of the Powers of Attorney Act 1949; and c) made on account of natural love and affection between a father/husband and child/wife i.e. parties standing in a near relation to each other.

As observed, illustration (b) in section 26 of the Contracts Act 1950 seems to recognise gifts as contracts, but only insofar as it relates to the element of consideration. This Court is of the view that Clause 24 of the Power of Attorney cannot be specifically enforced as a contract because Section 26(a) of the Contracts Act 1950 does not obviate the need for all the other elements of a contract to be proved. An uncommunicated promise is by itself, an unaccepted offer or proposal which, by Section 6(d) of the Contracts Act 1950, is also revoked on death.

In this case, it was further drawn up as a clause in a registered power of attorney and there is no reason why the Court should not treat Clause 24 as revoked along with the rest of the Power of Attorney by operation of law when the Deceased died. This conclusion also brings the operation of Section 26(a) of the Contracts Act 1950 in line with the fact that the Power of Attorney is a document without testamentary effect and established principles in equity with regards to gifts as explained below.

It is well-established in equity and the Plaintiff accepts that if a regarded as incomplete or imperfect and the Court has no equitable jurisdiction to enforce or complete the gift. The Federal Court in Abdul Ravuff Datuk AS Dawood & Ors v Dr Abdul Rahiman Datuk AS Dawood and other appeals [2022] 5 CLJ 829 held: In the instant case, the classic principle set out in Milroy Lord, supra must also apply in that there is no equity to perfect an imperfect gift and the law of trusts cannot be invoked to effectuate an incomplete gift nor can equity assist a volunteer. The rule is that the donor must have done everything according to the nature of the property to transfer the property to the done and render the settlement binding on him. The policy reason behind this principle is that where no consideration is provided, the donor can always change his/her mind before the gift is perfected See also Ngan & Ngan Holdings Sdn Bhd & Anor v Central Mercantile Corporation (M) Sdn Bhd [2010] 3 CLJ 818.

The Plaintiff contended that Strong v Bird stands for the proposition that an imperfect gift may be perfected by relying on one of the following grounds:

the intended recipient is appointed as the donor's executor; or

t to make the gift continued until death. and that in this case, immediate gift of the Property to the Plaintiff and Defendant in Clause 24 of the Power of Attorney, was a clear donative intent which remained unchanged until his death.

disjunctive reading of the factors in Strong v Bird that perfected the gift in that case. A gift up to the time of death does not, without the donee also becoming the , perfect an imperfect gift. This would subvert the very principle that there is no equity to perfect an imperfect inter vivos gift.

In Strong v Bird, the Defendant owed the testatrix, his stepmother, a sum of money which was set off against an amount for board that she paid him monthly. At some point, she forgave the debt ( ) and to reflect that intention, she paid the Defendant the full amount for board without set off until her death. The Release was the purported gift.

There being no consideration or a sealed deed for the Release, it was an imperfect gift and the Defendant was not legally released from the debt. However, the Court held in Strong v Bird that because the testatrix had named the Defendant as executor of her will, this appointment was a legal act which released the debt obligation as he was deemed in equity to have repaid it and had become a trustee of the repaid debt. It was a case of fortuitous vesting of an otherwise incomplete gift.

The Court in Strong v Bird additionally f full payment to the Defendant for board until her death proved her continuing intention to forgive the debt i.e. that the original intended gift had not been revoked, which is also a necessary element for the fortuitous vesting of the gift.

In this present case, the alleged gift of the Property was clearly imperfect as the Deceased never executed the transfer forms necessary under the National Land Code to effect the transfer of the Property to the Plaintiff and the Defendant. In our Torrens system, conveyance of title is essential to perfect a gift of immovable property. Proof of a trust in the disposition of such property might also suffice, but no such case was pleaded here.

As it stands, Clause 24 of the Power of Attorney is merely a written promise or an unfulfilled intention to give the Property to the Plaintiff and the Defendant. Quite apart from the fact that the Power of Attorney and all the rights and powers therein had abated upon the death of the Deceased, there is no basis for this Court, in exercise of its equitable jurisdiction, to perfect the imperfect gift.

In conclusion, the answers to the questions posed for determination are as follows: a) Whether the Power of Attorney survived the death of the donor Answer: No. b) What is the effect of an incomplete inter vivos gift Answer: It has no effect in this case.

costs of RM20,000.00. Bertarikh : 20 Ogos 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Plaintif: Karnan a/l Rajanthiran Messrs Saibullah M V Nathan & Co. Peguam bagi pihak Defendan: Swinder Singh (with Ashrul Haikal) Messrs Kiranjit Randhawa & Co.