Hallifni Binti Ali v ZARINA BINTI AZIZ (KA-22NCvC-8-02/2022)

This case concerns a dispute over property ownership, where the Plaintiff seeks to enforce an unfulfilled 1985 trust agreement for the return of a property currently held by the Defendant.

The original Plaintiff was Ali Bin Awang (“Ali”), whose daughter, Hallifni Binti Ali, later took over as Plaintiff after Ali’s death. The Defendant is being sued in her personal capacity and as the representative, administrator, and heir of her deceased husband, Mohd Nordin Bin Shuib (“Mohd Nordin”), as well as the trustee for their minor son, Muhammad Amir Haziq Bin Mohd Nordin.

The case concerns a specific property identified as GM 655, Lot 445, Bandar Pendang (formerly H.S.(M) 24/1982, Plot 20, Mukim Padang Pusing), Daerah Pendang, Kedah, which includes a single-story terraced house at No. 20, Taman Sri Seberang thereon (“the Property”).

In 1985, Ali sold the Property to Mohd Nordin for RM85,000 through a Sale and Purchase Agreement dated 21.05.1985 (“the S&P”). This transaction was reportedly done in order to help Mohd Nordin, S/N S9nfq48vLkm8HrjvQFFe/g who had financial difficulties, obtaining a housing loan by mortgaging the property to the Perbendaharaan Negara (the “National Treasury”).

Following the sale, a Trust Agreement dated 27.11.1985 was signed between Ali and Mohd Nordin (“the Trust Agreement”) which stipulated that Mohd Nordin would hold the Property in trust for Ali and re-transfer it to Ali upon request, once the mortgage with the National Treasury was settled.

The mortgage was settled around December 2010. However, Mohd Nordin failed to re-transfer the Property to Ali before his death on 31.03.2018.

The Defendant, being Mohd Nordin's heir, then applied for a Probate Distribution Order (Borang E) on 05.11.2018, registering herself and her minor son as the new owners of the Property, without acknowledging the Trust Agreement.

Ali was not informed of Mohd Nordin's death and only became aware of the situation after receiving a Notice of Vacant Possession from the Defendant in 2020.

Consequently, the Plaintiff filed this lawsuit to compel the Defendant to transfer the Property back to him.

In the Statement of Claims, The Plaintiff prayed for, among others: a) The Defendant, as the legal heir and representative of the deceased Mohd Nordin Bin Shuib, must fulfil the terms and conditions of the Trust Agreement dated 27.11.1985 to ensure that the Plaintiff is registered as the owner of the Property; b) The Probate Distribution Order (Borang E) dated 05.11.2018 (Case No.: JKPTG/PK/02/11/0154/2018) for the Property must be cancelled; c) The Registrar’s Caveat (Borang HH) on the Property must also be cancelled; d) A further hearing for the distribution of the estate (Borang P) for Mohd Nordin must be initiated and registered by the Defendant within twenty-one (21) days from the date of judgment with the Kedah Land and Mines Office, which should include the Plaintiff as an interested party in the Property to be deliberated, and the S/N S9nfq48vLkm8HrjvQFFe/g Plaintiff's name should be placed as the owner in the new Probate Distribution Order, thus registering the Plaintiff as the new registered owner at the relevant Land Office; e) Alternatively, the Defendant, as the representative and/or legal heir of the deceased Mohd Nordin Bin Shuib, must execute and/or carry out the trust held under the Trust Agreement dated 27.11.1985 (read together with the Agreement dated 21.05.1985) to transfer and subsequently register a new title for the Property (H.S.(M)24/1982, Plot 20, Mukim Padang Pusing, Daerah Pendang, Kedah, including a single-storey terrace house) in the Plaintiff's name as the new registered owner.

The Plaintiff’s Case The Plaintiff's submission focuses on establishing the validity and enforceability of the Trust Agreement concerning the Property, arguing that the Defendant, as the heir, is obligated to transfer the Property to the Plaintiff.

The Plaintiff contended that the Defendant's denials of the Trust Agreement's existence and validity are bare denials unsupported S/N S9nfq48vLkm8HrjvQFFe/g by documentation, especially after the original agreement was presented.

The Plaintiff alleged that the Defendant acted in mala fide by denying to perform the responsibility of her deceased husband's obligations under the trust, despite being informed of it.

The Plaintiff further asserted that the Defendant, as an “immediate owner” who had acquired the title through a defective probate process, and had ignored the Trust Agreement, does not have an indefeasible title under Section 340(2) of the National Land Code (“the NLC”). The Defence and Counterclaims 15. The gist of the Defendant's submission revolves around denying the validity and enforceability of the Plaintiff's claims, particularly concerning the Trust Agreement, and asserting her indefeasible title to the Property. First, the Defendant denied the existence and validity of the Trust Agreement as she contended that Ali did not fully execute his terms of payment, and hence the Trust Agreement cannot be enforced.

Secondly, the Defendant asserted that she and her minor son are the registered and legal owners of the Property, thus her title is protected under Section 340 of the NLC.

The Defendant claimed that Ali was merely a tenant of the Property and was residing there as a renter, not as a beneficial owner. Crucially, the Defendant disputed the Plaintiff's claim of having fully paid the RM85,000 to Mohd Nordin. The Defendant's counterclaim is for the vacant possession of the disputed Property for she argued that her action to claim vacant possession is legitimate and no compensation or damages are due to the Plaintiff.

The following witnesses were called during the trial: a) Hallifni Binti Ali (PW1). She is the daughter of the original Plaintiff, Ali, and replaced him as the Plaintiff after his death on 24.12.2023; b) Rosniza Binti Abu Bakar (PW2). She is the wife of the original Plaintiff, Ali; and S/N S9nfq48vLkm8HrjvQFFe/g c) Zarina Binti Aziz (DW1). She is the Defendant in the case, summoned on her own behalf and as the representative, administrator, and lawful heir of the deceased Mohd Nordin. Issues to be determined by the Court 19. The issues agreed by the counsels before trial are as follows: a) Whether the Trust Agreement exists; b) Whether the Defendant, as the lawful heir of the deceased Mohd Nordin, needs to fulfil the requirements contained in the Trust Agreement; c) Whether Mohd Nordin (the deceased) and the Defendant received money and/or gained benefits and/or profits and/or advantages from the Plaintiff during the material period pleaded in this action, resulting from the referred transactions ; and d) Whether the Defendant and Mohd Nordin (the deceased) are liable to the Plaintiff arising from the dealings and/or transactions carried out concerning the Property.

The Plaintiff's counsel also listed issues related to the Defendant's counterclaim as follows: S/N S9nfq48vLkm8HrjvQFFe/g a) Whether the Plaintiff has an interest in the Property contained in title GM 655, Lot 445, Bandar Pendang; and b) Whether the Defendant's action to claim vacant possession of the Property is valid and/or does not accrue any compensation and/or damages to the Plaintiff. Decision and findings of the Court 21. Having appraised the evidence and all testimonies put forward by all witnesses and having considered the submissions by the learned counsels for both parties, I find that the Plaintiff has successfully established the claim on the balance of probabilities. Herein are my reasons. Existence and validity of the Trust Agreement 22. The Plaintiff's submissions particularly emphasized the existence and validity of the Trust Agreement as a core element of their case.

The Plaintiff argued that the Trust Agreement was proven to be genuine during the trial proceedings. Its authenticity can be evidenced when the original document was produced, it was stamped, and it was prepared by a law firm, Messrs Chin Len S/N S9nfq48vLkm8HrjvQFFe/g Chong & Partners and witnessed by a lawyer (See Bundle C1, pp.2 &3) (Exhibit P1).

This, according to learned counsel for the Plaintiff, fulfilled the requirements for primary evidence under Section 62 of the Evidence Act 1950 (“Evidence Act”), which states that primary evidence means the document itself produced for the inspection of the court.

The Plaintiff’s learned counsel leveraged the case of Nadarajan T Kuppusamy & Anor v Foo Pang Lui & Ors [2020] CLJU 55 to support the admissibility of agreements where originals are produced and the makers have passed away.

In Nadarajan (supra), See Mee Chun J (as she then was) adopted the reasoning in Oriental Bank Bhd v. Uniphoenix Corp Bhd [2005] 7 MLJ 315, to underscore the evidentiary value of primary documents in circumstances where “human memory fails.” The learned judge relied on Oriental (supra) to reinforce the principle that contemporaneous documentary evidence carries greater probative weight than oral recollections.

The Plaintiff also invoked Sections 100 and 103 of the Evidence Act concerning the burden of proof and construction of wills.

Furthermore, the Plaintiff contended that for documents over 20 years old, such as the Trust Agreement, Section 90 of the Evidence Act 1950 creates a presumption of due execution and attestation, especially since its contents were not challenged and it had been carefully kept by the Plaintiff since 1985.

This Court notes that this presumption under section 90 is reinforced by the fact that the Trust Agreement was carefully preserved by the Plaintiff since 1985, as submitted by counsel. The Defendant’s denial was expressly recorded during trial when the document was initially marked only as “ID-P1” following counsel’s objection and the usual exhibit. This demonstrates that the Defendant’s challenge was largely procedural, rather than substantive, as no credible evidence was adduced to impeach the authenticity of the Trust Agreement.

It is pertinent to observe that the Defendant initially took the position of denying the very existence of the Trust Agreement. This was evident when the document (see C1, pp. 2–3), despite being S/N S9nfq48vLkm8HrjvQFFe/g produced in its original stamped form, was only marked for identification “ID-P1” following objection from the Defendant’s learned counsel, who disputed its existence notwithstanding its physical presentation before the Court.

Subsequently, during arguments on whether “ID-P1” ought to be converted into an “(exhibit P1)”, the Defendant’s counsel persisted in challenging both the existence and validity of the Trust Agreement.

It was contended that the document was incomplete, as the witness appeared uncertain about the first page and the absence of a signature thereon, thereby questioning whether it was a complete instrument. Counsel for the Defendant further argued that the Trust Agreement carried no legal weight as it was never registered at the Land Office or filed in Court.

However, given the extensive cross-examination on its content, the court eventually converted it to Exhibit P1, allowing arguments about its content to be made during submissions.

Later on, the Plaintiff asserted that the Trust Agreement is a valid and binding contract that obligates Mohd Nordin, as the trustee, to hold the Property for Ali and to transfer it back upon request. This obligation is derived from paragraph 1 of the Trust Agreement and aligns with the definition of a "trustee" under Section 2 of the Specific Relief Act 1950.

The Plaintiff cited Section 38 of the Contracts Act 1950, emphasizing that parties must perform their promises, and these promises bind the representatives of the promisors in case of death unless the contract states otherwise. This is particularly relevant as both Ali and Mohd Nordin are now deceased.

The Plaintiff argued that the Defendant, as the heir of Mohd Nordin is bound by the terms of the Trust Agreement and can be compelled to perform it. This is supported by Section 26 of the Specific Relief Act 1950, which allows specific performance to be enforced against a party or "any other person claiming under a party to the contract by a title arising subsequently to the contract".

Having considered the evidence and submissions, I find that the Plaintiff has satisfactorily established the existence and validity of S/N S9nfq48vLkm8HrjvQFFe/g the Trust Agreement. The original stamped document was produced in court and admitted as Exhibit P1. Pursuant to Section 62 of the Evidence Act 1950, this constitutes primary evidence. The authenticity of the document was not impeached through credible evidence, and the Defendant’s challenge was confined to speculative objections about its completeness.

The Defendant’s contention that the absence of a initial on the first page rendered the document incomplete is without merit. The instrument, viewed in its entirety, bore sufficient indicia of authenticity: it was stamped, executed, attested by a solicitor, and preserved in its original form since 1985. Such objections, in my view, fall far short of displacing the presumption of due execution under Section 90 of the Evidence Act for documents more than 20 years old.

Likewise, the submission that the Trust Agreement had no legal effect because it was not registered at the Land Office or filed in court cannot stand. There is no requirement in law that a trust agreement must be registered in order to be valid or enforceable between the parties. Trust obligations arise in equity and are enforceable irrespective of registration.

In the circumstances, I hold that the Trust Agreement is authentic, admissible, and valid. It created binding obligations on Mohd Nordin as trustee, and those obligations continue to subsist against his heir, the Defendant.

The gist of the Plaintiff’s submission is that the transaction in 1985 was never intended to be an outright sale, but rather a trust arrangement under which the late Mohd Nordin held the Property as trustee for the Plaintiff, pursuant to the Trust Agreement. The Defendant, however, disputes this characterisation and maintained that the 1985 transaction was a valid and completed sale and purchase, with Mohd Nordin acquiring full beneficial and legal ownership as the registered proprietor.

The court must therefore determine whether the 1985 arrangement amounted in substance to (i) a trust (express or constructive) in favour of the Plaintiff, or (ii) a completed sale that vested both legal and beneficial title in Mohd Nordin.

The Plaintiff's position is that the initial sale of the Property was not a straightforward transfer of ownership but a temporary measure to S/N S9nfq48vLkm8HrjvQFFe/g secure a loan for Mohd Nordin (or his relative) through Ali's asset, with the express understanding and formal agreement that the Property would revert to Ali upon the fulfilment of the loan obligation.

The Plaintiff’s account is that, in early 1985, Mohd Nordin, approached Ali to borrow a large sum of money. Ali did not have sufficient funds to lend directly. To facilitate this, they agreed on an alternative. First, Ali would sell his house (the Property) to Nordin, who, as a civil servant, could then mortgage the Property to the National Treasury to secure a housing loan. Secondly, Ali would assist Mohd Nordin by making monthly payments for the loan to the National Treasury.

Ali’s daughter, PW1 testified that her father helped Mohd Nordin by mortgaging the house, and Mohd Nordin took out a government housing loan. She also stated that her father would then make monthly payments to Mohd Nordin. [See NOP, p.23] Kemudian, ayah Puan bayar kepada Bank Bumi pinjaman tersebut RM50,000 daripada duit pinjaman S/N S9nfq48vLkm8HrjvQFFe/g Perbendaharaan Malaysia, Puan setuju. Lepas itu, Puan tak setuju pula dengan kata RM85,000 tak diambil semua. Macam mana itu, boleh Puan jelaskan? Sebab seingat saya, arwah ayah saya pernah bagi tahu, dia kata dia tolong En Mohd Nordin ini dengan cara gadaian rumah itu. Lepas itu En Mohd Nordin buat pinjaman perumahan Kerajaan itu, LPPSA itu. Lepas itu, bulan-bulan dia bayar terus kepada En Nordin. Yang itu saja yang saya tahu. Seingat saya, dah habis tahun kalau tak salah saya, 2010. Habis 2010 itu maksud Puan adakah habis bayaran ayah Puan kepada Nordin atau bayaran Nordin kepada Perbendaharaan? Habis bayaran ayah saya kepada Nordin. Ok. Apa bukti kata habis bayaran? Ada surat pelepasan gadaian.

Once the transaction with the National Treasury was complete and the loan settled, the Property was to be transferred back to Ali. This entire arrangement, according to the Plaintiff, was formalized in the Trust Agreement. The Plaintiff explicitly states this created a resulting trust over the Property.

During trial, PW2 provided further details, stating that Ali helped Mohd Nordin due to Mohd Nordin's financial problems related to a family business run by a relative named En Khairudin. Ali, lacking cash, agreed to mortgage his house through Mohd Nordin's government housing loan, with the understanding that Ali would repay the loan instalments, and the Property would eventually be returned to him. [See NOP, p.61] Baik. Lepas tu Puan juga ada ditanyakan oleh rakan guaman saya berkenaan isu cara bayaran gadaian yang Nordin tu, yang kata En Ali bayar kepada Zarina ataupun Nordin, Nordin bayar kepada LPPSA yang mana benda ni adakah ianya berbentuk sedekah ataupun sebenarnya En Ali pinjam kepada Nordin, yang mana Puan tak berapa nak setuju sebenarnya berkenaan benda ni tapi tolong terang kat Mahkamah macam mana cara rundingan dan juga transaksi sebenarnya yang berlaku dalam isu ni di antara En Ali dengan Nordin. S/N S9nfq48vLkm8HrjvQFFe/g Setahu saya En Ali ni dia nak tolong En Nordin untuk ada masalah kewangan famili. Setahu saya. Lepas tu dia sebagai saudara, dia minta, dia gadaikan rumah untuk arwah Nordin dan Nordin buat pinjaman perumahan ni untuk settle hutang tu. Berkaitan dengan keluarga arwah. Ok. Lepas tu ada juga ditanyakan sama ada rumah tu disewa sebenarnya oleh En Ali. Tak, tak sewa. [Emphasis added]

The initial sale for RM85,000 involved RM55,744.76 being used for the release of an existing mortgage on the Property, with the balance received by Mohd Nordin. The Plaintiff argued there was no documentary evidence that this balance was then given to Ali.

The Plaintiff alleged that Ali consistently made payments to Mohd Nordin until approximately 2010, which was the final payment.

Crucially, the Defendant disputed the Plaintiff’s claim of having fully paid the RM85,000 to Mohd Nordin. This dispute formed a central plank of the defence, as the Defendant maintained that the alleged S/N S9nfq48vLkm8HrjvQFFe/g payments were either incomplete, inconsistent, or insufficient to support the Plaintiff’s version of events.

Having said that, PW2 during trial, clarified that the initial transaction, where Ali sold his house to Nordin for RM85,000 so Nordin could obtain a government loan, was to provide financial assistance to Nordin's uncle, Khairudin, who was facing business problems. Ali, lacking direct funds, used his house as collateral through Nordin's civil servant status.

This explains why the "balance" of the RM85,000 or RM84,300 (after the mortgage release) was not directly given to Ali, as the funds were for the specific purpose of aiding Khairudin, facilitated by Nordin, with Ali committed to making the loan payments/instalments to the National Treasury.

Not only that, the Defendant explicitly alleged that Ali was merely a tenant residing in the Property. She stated that her late husband, Mohd Nordin, had informed her that Ali only lived in the house as a tenant.

However, PW2 rejected the suggestion that Ali was merely renting the house, testifying clearly: [See NOP, p.61] Setahu saya En Ali ni dia nak tolong En Nordin untuk ada masalah kewangan famili. Setahu saya. Lepas tu dia sebagai saudara, dia minta, dia gadaikan rumah untuk arwah Nordin dan Nordin buat pinjaman perumahan ni untuk settle hutang tu. Berkaitan dengan keluarga arwah. Ok. Lepas tu ada juga ditanyakan sama ada rumah tu disewa sebenarnya oleh En Ali. Tak, tak sewa. Apa yang Puan boleh katakan selanjutnya? Rumah tu bukan sewa, rumah tu ayah saya dulu ada buat projek perumahan, lepas tu dapat rumah tu ayah saya, orang kata, ayah saya tu memang pemilik rumah tu. Pemilik rumah tu, lepas tu sebab tolong tu ayah saya gadaikan rumah tu untuk arwah Nordin sebab nak tolong Nordin dalam masalah kewangan. [Emphasis added]

The Defendant's response further attempted to undermine the claims of consistency, completion, and documentary proof of these payments.

First, the Defendant presented a table of payments from the Plaintiff's own evidence (checks and slips) showing dates ranging from 1997 to 2000, with varying amounts, rather than consistent monthly payments up to 2010.

In conjunction to this, both PW1 and PW2 explained during trial that while the agreed monthly payment for the LPPSA loan was RM444.97, there were instances where Ali paid different amounts because Nordin or his family members (including Zarina, the Defendant) would request additional funds for various needs like children's schooling. These additional sums were given by Ali as part of his ongoing financial assistance. This accounted for the varying amounts and the overall higher total of funds provided.

During cross-examination, PW2 testified that there were no working papers, receipts, or letters to prove full payment because the S/N S9nfq48vLkm8HrjvQFFe/g cupboard storing them was damaged by termites, and her stepchildren discarded the damaged documents.

PW2, while affirming her husband made monthly payments to Mohd Nordin to cover Mohd Nordin's salary deductions, also explained that payments varied from the agreed RM 444.97 because Nordin's family sometimes “needed money” for other reasons, such as children's schooling, and Ali would provide these varying amounts as aid.

Second, the Defendant further highlighted that Ali's own 1996 affidavit (for an earlier caveat application) stated that the “money that needs to be paid has not yet been settled”. This directly contradicted the Plaintiff's claim that payments were settled in 2010 and that Ali was only waiting for the Property transfer. The Defendant also noted that Ali's second affidavit, claiming completion, was made in 2019, after Nordin's death and almost a decade after the alleged final payment in 2010.

In reply, the Plaintiff explained that the statement in Ali’s 1996 affidavit, that “money not yet settled”, was merely a reflection of the status of payments at that point in time, when instalments were still S/N S9nfq48vLkm8HrjvQFFe/g ongoing. It did not negate the existence or validity of the Trust Agreement. I find this explaination reasonable bearing in mind it was affirmed in 1996 and cannot be used to indicate the status of full payment in 2010.

The Plaintiff clarified that payments continued to be made until around 2010, and therefore the 1996 affidavit must be understood in its proper temporal context as a snapshot of an arrangement still in progress, not as a final account. Again, this is sound.

The Plaintiff further submitted that Ali’s later affidavit in 2019, which stated that the payments had been completed, was entirely consistent with the fact that the loan instalments had continued for many years after 1996 and were eventually settled in full. Again, I fins this 2019 affidavit collaborate the entire incident.

The Plaintiff also provided explanations during trial (see NOP, p.43) for the delay in filing the 2019 affidavit, such as not being informed of Nordin's death and a preference for amicable settlement, which indirectly supports the consistency of Ali's position over time.

Having carefully weighed the evidence and submissions, I find that the 1985 transaction was never intended as an outright sale but was, in substance, a trust arrangement. The Plaintiff’s explanation of the transaction as a means to facilitate Mohd Nordin’s government housing loan is more consistent with the contemporaneous evidence and circumstances, the testimony of PW1 and PW2, and the existence of the Trust Agreement.

The Defendant’s arguments, premised on incomplete payment, alleged tenancy, and reliance on Ali’s 1996 affidavit, are unpersuasive. The 1996 affidavit merely reflected the interim status of instalments at that time, and the Defendant’s denial of the trust arrangement is weakened by her lack of personal knowledge of the 1985 events and the inconsistencies in her testimony. I therefore hold that the 1985 arrangement created an enforceable trust in favour of the Plaintiff, and not a completed sale conferring beneficial ownership on Mohd Nordin. The Defendant’s Mala Fide and Bare Denials 67. The Plaintiff submitted that the Defendant’s conduct throughout the proceedings reflected mala fides. In particular, it was argued that the Defendant had failed to disclose the Trust Agreement during the S/N S9nfq48vLkm8HrjvQFFe/g pusaka distribution of Mohd Nordin’s estate in 2018, thereby suppressing a material fact that would have altered the distribution outcome.

The Plaintiff’s counsel also highlighted that the Defendant advanced inconsistent positions, at times portraying Ali as a tenant, while at the same time admitting under cross-examination that she had never collected rent from him after Mohd Nordin’s death. These contradictions, the Plaintiff contended, revealed that the Defendant’s case rested on bare or empty denials rather than substantive evidence.

The Defendant maintained that she acted in good faith and had no obligation to disclose the alleged trust since she was unaware of any such agreement. She emphasised that, as Mohd Nordin’s lawful widow and beneficiary, she was entitled to inherit his estate in accordance with the pusaka order. As for the alleged tenancy, the Defendant reiterated that her understanding was that Ali had remained in occupation without ownership, though she conceded no rental payments were ever demanded or collected.

The Plaintiff rebutted this by highlighting the Defendant’s testimony during trial that she was unaware of the 1985 sale transaction because she married Nordin in December 1988. The Plaintiff used this to argue that the Defendant’s denials regarding the Trust Agreement and the contractual obligations were mere bare denials, lacking direct knowledge and factual basis.

The court is of the view that the Defendant’s failure to disclose the Trust Agreement in the pusaka proceedings amounted to suppression of a material fact, undermining the validity of her registration as proprietor. Her contradictory testimony regarding tenancy, coupled with her admission that she never collected rent from Ali after Nordin’s death, is inconsistent with her assertion of beneficial ownership.

Moreover, the Defendant had no personal knowledge of the 1985 arrangement, having only married Nordin in 1988, and her denials carry little probative weight. I therefore hold that the Defendant’s case on this issue rests on bare denials, which further erodes her credibility and support the Plaintiff’s claim.

Having determined that the 1985 arrangement was in substance a trust and that the Plaintiff’s account of the payments is more credible, the court must next consider whether, in any event, the Defendant’s reliance on her legal title can prevail in light of equitable principles. This brings the court to the issue of constructive trust, namely whether, even if the Trust Agreement were set aside, the Defendant holds the Property on trust in equity for the estate of Ali.

The Plaintiff submitted that even if the court were to find that the Trust Agreement did not amount to an express trust, the circumstances gave rise to a constructive trust in equity. Relying on authorities such as Takako Sakao v Ng Pek Yuan & Anor [2010] 1 CLJ 381 and Wan Naimah v Wan Mohamad Nawawi [1972] CLJU 164, the Plaintiff argued that equity will not permit a registered proprietor to retain property where it would be unconscionable to deny another’s beneficial interest.

The Plaintiff contended that Mohd Nordin held the Property not for his own benefit, but pursuant to an arrangement with Ali, who provided the financial consideration.

It was further submitted that upon the death of Mohd Nordin, his obligations as trustee devolved onto his heir, the Defendant, under s.26 of the Specific Relief Act 1950, which provides that obligations of a trustee are binding on legal representatives. The Defendant, having inherited the property through pusaka distribution, is therefore bound to honour her late husband’s obligations as trustee.

To rebut, the Defendant argued that no constructive trust could arise on the facts of this case, as the Plaintiff failed to strictly prove an intention to create a trust at the time of the transaction. Reliance was placed on Kaliammah a/p Muthu v Valee a/p Karuppen [2017] 1 LNS 1310, where the Hasnah Mohammed Hashim JCA (now CJM) held that a trust requires clear and convincing proof.

In other words, the Defendant maintained that the transfer in 1985 was a genuine sale, and that Mohd Nordin, as registered proprietor, acquired both legal and beneficial ownership.

The Defendant also submitted that she was protected by s.340 of the National Land Code, which confers indefeasible title upon a registered proprietor. As heir under inheritance proceedings, she claimed the benefit of indefeasibility, and denied that any equitable obligation could override her registered title.

On this, I am in agreement with the Plaintiff that the Defendant had misconceived the law. Indefeasibility of title under the NLC protects the legal estate but does not absolve a trustee, or his heir, from equitable obligations. S.26 Specific Relief Act 1950 expressly provides that the obligations of a trustee are enforceable against his legal representatives. Further, the facts here support a constructive trust, since it would be unconscionable to allow the Defendant to benefit from property purchased with the Plaintiff’s funds under an arrangement formalised by the Trust Agreement.

Besides, I find the Defendant’s reliance on Kaliammah (supra) was misplaced, as that case concerned the absence of a trust instrument, whereas in our present case there was a duly executed agreement supplemented by consistent conduct.

The Trust Agreement created binding obligations on Mohd Nordin, and these obligations, by operation of s.26 Specific Relief Act 1950, devolved onto the Defendant as his heir. The Defendant cannot escape liability by relying on the protection of indefeasible title under s.340 NLC. While that provision secures legal ownership, it does not extinguish equitable rights arising under a trust.

Therefore, in addressing this alternative argument, I am satisfied that even if the court were to treat the trust agreement as ineffective, the surrounding circumstances establish a constructive trust. The Property was acquired pursuant to an arrangement financed by Ali, and it would be unconscionable to allow the Defendant to retain the benefit of the property in disregard of that arrangement.

Accordingly, I hold that the Defendant, as heir of Mohd Nordin, is bound by the trust obligations, whether express or constructive, and must give effect to the Plaintiff’s equitable interest. S/N S9nfq48vLkm8HrjvQFFe/g Indefeasibility of title

The Plaintiff submitted that the Defendant cannot rely on the doctrine of indefeasibility under s.340 of the National Land Code (NLC). The Defendant’s title was not obtained through a direct transfer from the Plaintiff, but via pusaka (inheritance) proceedings, which were defective because they ignored the subsisting of the Trust Agreement. The Plaintiff Counsel stressed that a trust obligation constitutes a registrable interest that survives against the legal estate, and a pusaka order obtained without disclosure of such obligation cannot confer any indefeasible title.

The Plaintiff further cited Kamarulzaman Omar & Ors v. Yakub Husin & Ors [2014] 1 CLJ 987 and Mohamad Sukri Salleh v Mohammed Fathi Abd Fahim [2014] CLJU 1224 to argue that a person who acquires title through a defective or void instrument, even as an “immediate owner,” does not enjoy the shield of indefeasibility.

The Defendant alleged that as the registered proprietor by way of lawful inheritance, she enjoys the protection of s.340 NLC. It was argued that registration pursuant to a pusaka certificate constitutes S/N S9nfq48vLkm8HrjvQFFe/g a valid instrument of transfer, and unless the Plaintiff could prove fraud, forgery, or illegality, the Defendant’s title cannot be impeached. The Defendant maintained that she was a bona fide recipient of her late husband’s estate, and that the trust document could not override the statutory protection afforded to registered proprietors.

In reply, emphasised that the Defendant misconstrued the concept of indefeasibility. The pusaka distribution was itself defective, as it failed to consider the subsisting trust obligations of Mohd Nordin. The omission amounted to misrepresentation, rendering the Defendant’s registration susceptible to challenge under s.340(2) NLC. The Plaintiff’s learned counsel also pointed out that the Defendant herself conceded that the trust was not raised in the pusaka proceedings, and therefore her title cannot be said to be unimpeachable.

I find that the Defendant’s reliance on s.340 NLC is again misplaced. While it is true that registration ordinarily confers indefeasibility of title, such protection is not absolute. Section 340(2) expressly provides that indefeasibility does not extend to S/N S9nfq48vLkm8HrjvQFFe/g cases where registration is obtained through a void or defective instrument, or by misrepresentation.

In this case, the Defendant’s title was derived from pusaka proceedings in which the Trust Agreement was not disclosed. That omission was material, as it deprived the tribunal of the opportunity to consider an existing equitable obligation. Accordingly, the resulting registration is tainted and cannot confer indefeasibility.

I therefore hold that the Defendant’s title is defeasible, and that her registration as proprietor does not extinguish the Plaintiff’s equitable interest under the trust. Other issue 92. The Defendant also raised the issue of limitation, primarily by questioning the timeliness of the Plaintiff's actions, particularly regarding the private caveats and the initiation of the lawsuit.

The Defendant explicitly questioned why the second private caveat was only entered on 7.1.2020, almost 10 years after Mohd Nordin had completed paying his instalments to the Federal Treasury (referring to the release of the charge dated 9.12.2010).

The Defendant pointed out that the Plaintiff could have initiated the action while Mohd Nordin was still alive.

The Plaintiff argued that the statute of limitations was not a relevant issue in the case for several reasons. First, the Plaintiff strongly asserted that the issue of the statute of limitations was never pleaded by the Defendant in their pleadings.

It is apt to note the cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to introduce unpleaded facts and issues. This was supported by references to Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944 and Faradisse High Sdn Bhd v. Koperasi Polis Diraja Malaysia Berhad [2024] MLRHU 837.

Second, the Plaintiff contended that the cause of action only began when Ali (the original Plaintiff) made a clear request for the Property transfer, as stipulated in Paragraph 1 of the Trust Agreement. This request was made through a Reply to the Notice of Demand dated 11.11.2020, or alternatively, on the date the Writ of Summons for the current action was filed.

Even if the statute of limitations were to be considered, the Plaintiff argued that the action was still within the permissible time frame. The Plaintiff highlighted that Mohd Nordin passed away on 31.03.2018.

Furthermore, the Defendant only began to encroach upon the Plaintiff's rights in 2020, specifically through a letter dated 01.01.2020 and a Notice of Vacant Possession dated 02.11.2020. Applying Section 10(1) of the Limitation Act 1953, which states that the right of action accrues from the date of dispossession or discontinuance of possession, the Plaintiff maintained that the claim was timely.

The Plaintiff also stated that Ali only became aware of Mohd Nordin's death years after it occurred. This further supports the argument that the time limit should not be strictly calculated from the date of death.

Having considered the parties’ submissions, I find no merit in the Defendant’s reliance on limitation. The point was never pleaded in the Statement of Defence, and it is trite that parties are bound by their pleadings. A defendant cannot, at the stage of submission, S/N S9nfq48vLkm8HrjvQFFe/g introduce a limitation defence which was not raised in the pleadings. On this basis alone, the objection must fail.

For the completeness of discussion, I am satisfied that the Plaintiff’s action was commenced within time. The evidence shows that the Defendant only began to deny the Plaintiff’s rights in 2020, through the letter dated 1.1.2020 and the Notice of Vacant Possession dated 2.11.2020. By virtue of Section 10(1) of the Limitation Act 1953, the cause of action accrued at the point of dispossession or discontinuance of possession, and not earlier. The suit, having been filed shortly thereafter, was well within the prescribed limitation period.

I therefore hold that the defence of limitation is unsustainable and is rejected.

Conclusion The Trust Agreement is authentic, valid, and enforceable. The Defendant, as heir and legal representative of Mohd Nordin, is bound by the obligations contained therein, both under the express terms of the agreement and under the principles of constructive trust in equity.

The Defendant’s reliance on bare denials, alleged tenancy arrangements, and indefeasibility of title cannot prevail in the face of a duly executed the Trust Agreement and the equitable principles that bind her as heir. The plea of limitation is also unsustainable, both for want of pleading and on the facts of this case.

The Defendant’s counterclaim, being wholly dependent on her assertion of absolute ownership and tenancy arrangement, likewise fails and is dismissed with costs.

Accordingly, this court makes the following orders: a) that the Trust Agreement dated 27.11.1985 is valid and binding, and that the Defendant holds the Property described therein as trustee for the estate of the late Ali Bin Awang; b) that the Defendant shall, within ninety (90) days from the date of this judgment, execute all necessary documents and do all acts required to transfer the Property into the name of the Plaintiff, as representative of the estate of Ali Bin Awang; c) in the event the Defendant fails, refuses, or neglects to execute the necessary transfer documents within the time specified, the S/N S9nfq48vLkm8HrjvQFFe/g Registrar of this court is authorised to sign and complete the requisite documents in place of the Defendant; d) that cost of this action is to be paid by the Defendant to the Plaintiff; and e) the parties shall have liberty to apply to this court for any further directions required to give effect to the above orders. Dated: 14th October, 2025 -------------------------------------------------------------------- DR. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA ALOR SETAR Solicitors : Mohd Amirul Bin Ramli For The Plaintiff Messrs. Mohd Amirul Ramli & Co. Advocates And Solicitors Solicitors : Nor Hafiza Binti Alias For The Defendant Sharihah Thauhirah Osman & Associates Advocates And Solicitors S/N S9nfq48vLkm8HrjvQFFe/g Table of Authorities Cases Chong Yaw Ming v Hew Ah Fatt [2021] CLJU 819 Faradisse High Sdn Bhd v Koperasi Polis [2024] MLRHU 837 Kamarulzaman Omar v Yakub Husin [2014] 1 CLJ 987 Lim Yew Jin v Adderina Kharudin [2024] MLRHU 376 Mohamad Sukri Salleh v Mohammed Fathi Abd Fahim [2014] CLJU 1224 Nadarajan T Kuppusamy & Anor v Foo Pang Lui & Ors [2020] CLJU 55 Protasco Bhd v Tey Por Yee [2021] 9 CLJ 349 Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 See Leong Chye v United Overseas Bank (Malaysia) Bhd [2021] 6 CLJ Takako Sakao v Ng Pek Yuen [2010] 1 CLJ Wan Naimah v Wan Mohamad Nawawai [1972] CLJU 164