Kanahamani A/P Muthusamy v 1. ) Loo Eng Chuan (BA-22NCvC-71-02/2025)

LOO ENG CHUAN (No. K/P: 4802086)

LOO TICK HOCK (Dituntut dibawah kapasiti Sebagai Pentadbir Harta Pusaka Loo Liew (No. K/P: 0533727P] …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction 1. The Plaintiff claims title to a five (5) acres portion of land referred to as Portion 25B. It is said to be a 5,000/25,5125 share in the 28,163/25,5125 undivided share of land held under Geran 26666 Lot 2892, Mukim Kajang, Daerah Hulu Langat (“Land”) registered to Loo Liew (deceased). 09/10/2025 14:43:05 BA-22NCvC-71-02/2025 Kand. 46 S/N b8tsXL4ss0WzQ0Htlznh0w

On 29-8-2025, this Court allowed the Defendants’ application in Enclosure 14 to strike out the suit and dismiss the action, and Enclosure 12 to strike out parts of the Reply on the plea of fraud. Background facts

The Plaintiff is the Administrator of the estate of his late father, Muthusamy a/l Perumal (“Muthusamy”), who passed away on 5-7-1988. The Defendants are the joint administrators of the estate of Loo Liew (deceased) (“Loo Liew”) who passed away on 23-7-1981.

The Land itself is said to be a 236.87700 acres estate land owned by multiple parties and subject to the purview of the Estate Land Board. Confusingly, the land title searches adduced in the affidavits identify the Land as being on two (2) titles: GRN 341561 Lot 5379 (27.05 hectares) and GRN 341560 Lot 5378 (68.82 hectares).

In his claim, the Plaintiff principally seeks a declaration that Muthusamy’s estate is the lawful owner of the 5,000/25,5125 shares of the Land measuring five (5) acres pursuant to an alleged Sale and Purchase Agreement dated 25-7-1968 and Supplementary Agreement dated 31-7-1968 between Muthusamy and Loo Liew (“1968 Agreements”). S/N b8tsXL4ss0WzQ0Htlznh0w

However, the 1968 Agreements were not adduced by the Plaintiff anywhere in the affidavits, and so their parties and terms are not known. Evidentially, the Plaintiffs rely on receipts of payments made to Loo Liew and a firm of solicitors, as well as a signed Memorandum of Transfer in Form 14A dated 31- 1-1989 (the “MOT”) to claim title.

The MOT was furnished by the Defendants, who were previously engaged in litigation with other parties over parts of the Land. The MOT appears to be signed by: a) Muthusamy, Perumal a/l Seerangan, Rajamanickam a/l Adimoolam, Kannaiyah a/l Guruyan, Kiam Seng, Tan Kim Pian, Tan Moor Seng, Yeet Tai @ Siew Yeet Tai (f), Loo Tick Hock and Zriahnan @ Krishnan a/l Arasan as transferees of various shares in the said Land, dated 31-1- 1989 and witnessed by one Vadiveloo s/o Govindasamy; and b) the Defendants, on behalf of Loo Liew as “wakil-wakil mutlaknya,” dated 16-10-1986 and witnessed by Seah Choon Chye.

As it relates to Muthusamy and this action specifically, this Court observed that the MOT refers to an Agreement dated 13- 11-1980 and not the 1968 Agreements, and the signature of Muthusamy was allegedly affixed and witnessed on a date S/N b8tsXL4ss0WzQ0Htlznh0w after he had passed away. This is to say that the facts of this case are fraught with uncertainty. Analysis and Findings 9. The Defendants cited various grounds in support of Enclosure 14, namely res judicata, time-bar and laches. Ultimately, this Court struck out the writ and dismissed the Plaintiffs’ suit because the claim is hopelessly time-barred. There was no need to consider laches as an additional ground.

On the facts, the Plaintiff complained that Muthusamy’s 5,000/255125 share of the Land was not transferred despite full payment of the purchase consideration under the 1968 Agreements. By the Plaintiff’s own affidavit, Muthusamy realised this sometime in 1980 as he took steps then, as evidenced by the following contemporaneous documents:

Correspondence from Messrs Seah Choon Chye to Messrs Vadiveloo & Co. regarding the omission of Muthusamy as a transferee in an earlier Memorandum of Transfer and enclosing a fresh form transfer. The transfer refers to an Agreement dated 13-11-1980 between Loo Liew and Sachinathan s/o Retnam in respect of the transfer of 22 acres of Geran 26666, Lot 2892, Mukim Kajang; S/N b8tsXL4ss0WzQ0Htlznh0w

Correspondence from Messrs Seah Choon Chye to Muthusamy to seek payment of agreed additional price, arrears of quit rent, stamp duty, subdivision and solicitors’ charges; and

Receipts in favour of Muthusamy issued by Loo Liew for payment of balance of purchase price of agreement of five

acres at Jendram Division of Hopeful Estate and quit rent; and by Seah Choon Chye, being payment of fees and disbursements in respect of “the transfer of Portion 25B (5 acres) of CT12493 Lot 2892 Mukim Kajang” [similar receipts were issued in favour of a Madam Tailamai d/o Pettan, understood to be Muthusamy’s wife].

As a matter of law, section 9(1) of the Limitation Act 1953 provides that no action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued. Taking the Plaintiff’s case at its highest without the benefit of sight of the terms of the 1968 Agreements, the statutory time limit of 12 years would have set in upon full payment of consideration circa 1980s (the last receipt produced is dated 12-5-1980).

Confronted with the plea of time-bar, the Plaintiff pleaded fraud in the Reply to rely on the postponement of limitation under section 29 of the Limitation Act 1953. The Plaintiff argued that as Administrator of Muthusamy’s estate, he only discovered S/N b8tsXL4ss0WzQ0Htlznh0w the fraud in 2014, whereupon he lodged a private caveat. The Court found this argument untenable for the following reasons: a) The Plaintiff does not have a cause of action independent of Muthusamy’s before he passed away, and Muthusamy’s knowledge of any alleged fraud by Loo Liew must be imputed to the Plaintiff; b) Section 29 of the Limitation Act 1953 allows for the postponement of limitation in case of fraud, but the period of limitation begins to run when the fraud could with reasonable diligence have been discovered; c) Since the plea of fraud in the Reply is particularised simply as the non-transfer of land after receipt of payment, there is no question of any concealment of the right of action by fraud since Muthusamy took steps to effect the transfer in 1980s; and d) As conceded, Muthusamy did not follow up with the solicitors and passed away in 1988. The Plaintiff could have also discovered that Muthusamy did not have title to any part of the Land with reasonable diligence in exercising his function as Administrator of his estate. S/N b8tsXL4ss0WzQ0Htlznh0w

Furthermore, the Plaintiff only sought to set up a case of fraud in its Reply to defeat the plea of limitation, and this is the basis for Enclosure 12, the Defendant’s application to strike out those parts of the Reply. Without the need to delve into whether what is particularised amounts to fraud at all, this Court allowed Enclosure 12 because a Reply cannot be used to raise a new ground or claim not raised in the Statement of Claim (Superintendent of Land and Survey Kuching & Anor v Bisi Jinggot & Ors[2025] 8 CLJ 418).

In any case, this decision on Enclosure 12 did not materially impact the Court’s decision on the statutory time bar. Finality of decision, but not res judicata

Res judicata was a ground cited by the Defendants for striking out that did not resonate with this Court. The Defendants contended that this action is res judicata because the MOT was already considered in Shah Alam High Court Originating Summons No.: MT1-24-312-1998 (“OS 312”) and determined to be invalid, and a further attempt to re-visit it in Shah Alam High Court Suit No.: BA-22NCvC-300-06/2018 (“Suit 300”) had failed.

The issue however, is that both OS 312 and Suit 300 were filed by a different set of plaintiffs against the Defendants to compel the Defendants to transfer shares in the Land to them i.e. some S/N b8tsXL4ss0WzQ0Htlznh0w of the transferees named in the MOT. Muthusamy did not participate in those proceedings.

The High Court in OS 312 noted that there were numerous agreements with intermediaries over the years that the Defendants say they were not privy to. The agreements apparently trace back to an agreement dated 1-6-1968 between Loo Liew and Sachinathan a/l Retnam. OS 312 was dismissed on 20-3-2002 on numerous grounds, among them: a) The plaintiffs had apparently executed agreements for sale with vendors who were not registered proprietors but who seem to have derived their alleged rights from a Sale and Purchase Agreement dated 13-11-1980 between Loo Liew and one Sachinathan a/l Retnam, which agreement no one has seen. b) The capacity and authority of the transferors to sign the MOT as attorneys of Loo Liew were suspect as no power of attorney was in evidence and the Court did not recognize the term “wakil-wakil mutlak” used by the Defendants c) The MOT was unstamped and incomplete because signatures of the transferees were not properly attested; and S/N b8tsXL4ss0WzQ0Htlznh0w d) There was contravention of section 214A of the National Land Code Act 56 (“NLC”) that required the Estate Land Board for the transfer.

The appeal to the Court of Appeal against the above decision was withdrawn. The plaintiffs in OS 312 later filed Suit 300 against the Defendants, allegedly after the parties agreed to apply for the Estate Land Board’s approval to transfer the Land. That action was struck out on grounds of res judicata and the appeal to the Court of Appeal against that striking out was also dismissed.

This Court rejected res judicata as a ground for striking out this action as the decision in OS 312 does not bind Muthusamy and his privies since they were not a party to that action. Res judicata binds only those who had the opportunity to be heard in the earlier case and their privies with a common legal interest. As explained by the Court of Appeal in Tanalachimy a/p Thoraisamy & Ors v Jayapalasingam a/l Kandiah & Ors (sued as liquidators of the Great Alonioners Trading Corp Bhd) and Another Appeal [2014] 4 MLJ 85 (“Tanalachimy”): “[43] On the issue of whether the present plaintiffs are ‘privies‘ or have a ‘privity in interest’ with the plaintiffs in the origination summons action, the cases have not adopted a very wide concept for these terms. S/N b8tsXL4ss0WzQ0Htlznh0w …There has to be ‘a sufficient degree of identification between the two parties (per Megarry VC in Gleeson).”

In Tanalachimy, the Court of Appeal also set out this useful reminder: “Res judicata is essentially an equitable doctrine founded on considerations of public policy. ‘In modern terms, it is against public policy, and oppressive to the individual, to re-agitate disputes which have been litigated to a conclusion.’ (Spenser Bower, Turner & Handley, Res Judicata, p 4) There could be situations when an overly rigid adherence to the doctrine can lead to oppression to a party, in which event it may be inequitable to apply it unquestioningly”

Even taking a broad view of issue estoppel as a species of res judicata, caution must be exercised before shutting out a party from putting forward his case on the grounds of issue estoppel. The Court should be quite satisfied that there is no real or practical difference between the issues to be litigated in the new action and that already decided, and the evidence which may properly be called on those issues in the new action (North West Water Ltd. V. Binnie & Partners (a firm) [1990] 3 All ER 547).

In this case, although the substance of the claims by different groups of plaintiffs who signed the same MOT may be identical, the source of their rights ultimately derives from their S/N b8tsXL4ss0WzQ0Htlznh0w respective sale and purchase agreements and how they bind Loo Liew’s estate, if at all. The MOT is but one piece of evidence, and its materiality to prove the existence of proprietary rights may vary.

In the upshot, this Court took the view that the invalidity of the MOT as a registrable instrument as determined in OS 312, and the non-transferability of the parts of the Land as a matter of law, may not need to be re-litigated because there are prior decisions that are persuasive or which bind the Court on the doctrine of stare decisis. However, that would not justify shutting the Plaintiff from putting forward his entire case on grounds of res judicata.

As noted, apart from the validity of the MOT, OS 312 also decided on the applicability of section 214A of the NLC to the Land. In fact, the primary relief sought by the Plaintiff is to register the transfer of an undivided part of the Land to the Plaintiff, which is impossible to effect in law according to section 214. Being estate land, there is a further complication of getting approval of the Estate Land Board to subdivide the Land as required by section 214A of the NLC. However, these only concern the question of remedies.

For completeness, it is also noted that the Plaintiff has previously filed a suit against the Defendants in the Sessions Court vide Suit No: BA-A52NCVC-11/2019. It was allegedly struck out, the appeal to the High Court against that decision S/N b8tsXL4ss0WzQ0Htlznh0w failed, and the appeal to the Court of Appeal was withdrawn. This Court will not comment as none of the papers from these proceedings are before this Court, and the Defendant did not rely on this set of proceedings to argue its case of res judicata. Conclusions 26. For the reasons set out above, both Enclosures 12 and 14 were allowed with costs of RM5,000.00 for each enclosure. Bertarikh : 9 Oktober 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Plaintif: Revathi a/p Kannan (Messrs Revathi & Partners) Peguam bagi pihak Defendan: Nini Shirma binti Rahmat (Messrs Abdul Razak Muhidin & Associates) S/N b8tsXL4ss0WzQ0Htlznh0w