Karpaya A/L Maliandy v Kerisnan@Krishnan A/L Malayaandy (B-02(NCVC)(W)-799-07/2020)

For ease of reference, the parties to the present appeal shall be referred to as they were in the High Court.

Muniamah a/p Rengasamy was a Malaysian citizen who had died on 29.07.1999 ("the deceased"). During her lifetime; the deceased owned a piece of land measuring approximately five acres (2.0234 hectares) held under GM 969, No. Lot 1430, Telok Penyamun, Mukim Pasangan, Daerah Kuala Selangor, Negeri Selangor Darul Ehsan ("the said Land") and 22 units of shares in Koperasi Kebangsaan Permodalan Tanah Berhad ("the said Shares").

The deceased died intestate. The deceased was allegedly survived by her three sons, namely the Plaintiff, the Defendant and one Palaniandy. According to the Plaintiff and the Defendant, Palaniandy had died in India.

After the deceased's death, the Defendant, who claimed to be one of the deceased's sons, had lodged a petition dated 08.11.2000 to the Land Administrator for the distribution of the deceased's estate pursuant to section 8 of the Small Estates (Distribution) Act 1955 (Revised 1972) [Act 98] ("SEDA 1955").

On 19.03.2001, the Land Administrator proceeded with the hearing of the Defendant's petition. The Land Administrator who heard the Defendant's petition was Hj. Mohd Yusof bin Mohd Tahar ("SP5"). At the conclusion of the hearing, SP5 ordered the deceased's estate to be distributed solely to the Defendant, as can be seen in Form E dated 19.03.2001 ("the said Order").

The Plaintiff is domiciled in India. He did not attend the hearing of the Defendant's petition before the Land Administrator. It was evident during the trial that the Plaintiff was not notified of the date of the hearing by both the Defendant and the Land Administrator.

Pursuant to the said Order, the said Land has been transmitted to the Defendant on 05.03.2006. The Defendant is currently the sole registered owner of the said Land.

The Plaintiff then initiated this action against the Defendant through his son, Ganesan a/l Karuppiah ("SP3") by way of a Power of Attorney dated 15.09.2016.

In the first instance, the Plaintiff claimed that he is entitled to half of the deceased's estate, which has been wholly obtained by the Defendant allegedly through fraud. In the midst of the trial before the High Court, the status of the Defendant as one of the deceased's sons was disputed by the Plaintiff.

After the sixth witness for the Plaintiff finished giving her evidence, the Plaintiff applied to the High Court to amend his Statement of Claim. The Plaintiff claimed to have only known that the Defendant was not the son of the deceased through a recent search with the National Registration Department ("NRD"). The application was dismissed by the learned trial judge and the Plaintiff appealed to the Court of Appeal. The Court of Appeal allowed the Plaintiff's appeal hence the amendment to the Plaintiff's Statement of Claim was allowed.

Under paragraph 18 of the Plaintiff's Amended Statement of Claim, the Plaintiff claimed for the following reliefs and we quote: "a) deklarasi bahawa Plaintif merupakan waris yang sah kepada Si Mati (Muniamah a/p Rengasamy) yang berhak untuk keseluruhan bahagian Harta Pusaka Si Mati; b) deklarasi bahawa Perintah Bagi Pembahagian ke atas Guaman Pembahagian No. HPKS283/2000 Tahun 2000 dalam Akta Harta Pusaka Kecil (Pembahagian) 1955 yang dikeluarkan oleh Pentadbir Tanah, Pejabat Tanah Daerah Kuala Selangor pada 19hb Mac 2001 adalah diperolehi secara tidak teratur, tidak sah dan patut diketepikan; c) perintah bahawa turun milik harta pesaka bagi Hartanah tersebut yang dikenali sebagai GM969, No. Lot 1430 Telok Penyamun, Mukim Pasangan, Daerah Kuala Selangor, Negeri Selangor Darul Ehsan kepada Defendan melalui Nombor Perserahan 189/2006 yang didaftarkan pada 5hb Mac 2006 dibatalkan oleh Pentadbir Tanah, Pejabat Tanah Daerah Kuala Selangor; d) perintah bahawa Pentadbir Tanah, Pejabat Tanah Daerah Kuala Selangor mendaftarkan keseluruhan hartanah yang dikenali sebagai GM969, No. Lot 1430 Telok Penyamun, Mukim Pasangan, Daerah Kuala Selangor, Negeri Selangor Darul Ehsan kepada Plaintiff; e) perintah bahawa dalam masa empat belas (14) hari daripada tarikh perintah ini diberikan, Defendan melaksanakan segala dokumen yang dibekalkan oleh peguamcara Plaintif iaitu Tetuan Noraizah Bahari & Associates berkenaan dengan pendaftaran Hartanah tersebut yang dikenali sebagai GM969, No. Lot 1430 Telok Penyamun, Mukim Pasangan, Daerah Kuala Selangor, Negeri Selangor Darul Ehsan (secara sama rata) dan jika gagal, Timbalan Pendaftar Mahkamah Tinggi diberi kuasa untuk menandatangani semua dokumen berkenaan bagi pihak Defendan; f) perintah bahawa kesemua kaveat persendirian dan/atau kaveat pendaftar (sekiranya ada), kecuali kaveat persendirian yang dimasukkan oleh Penerima Kuasa, dibatalkan oleh Pentadbir/Pendaftar Tanah Daerah Kuala Selangor; g) suatu injunksi diberikan oleh Mahkamah Yang Mulia ini bahawa Defendan menyerahkan Suratan Hakmilik Asal Hartanah tersebut kepada Mahkamah Yang Mulia ini sehingga pelupusan kes ini; h) peguamcara Plaintif, Tetuan Noraizah Bahari & Associates bertanggungjawab memegang salinan asal suratan hakmilik bagi Hartanah tersebut untuk menguruskan pendaftaran Plaintif sebagai pemilik keseluruhan bahagian Hartanah tersebut; i) perintah bahawa Defendan mengembalikan keseluruhan Saham tersebut yang berada dalam milikan Defendan dan Plaintif berhak untuk mendapatkan keseluruhan bahagian daripada hasil jualan Saham tersebut sekiranya Saham tersebut telah dijual oleh Defendan; j) gantirugi sebanyak RM412,000.00; k) faedah pada kadar 5% setahun ke atas jumlah RM412,000.00 dari tarikh Writ Saman ini sehingga penyelesaian penuh; I) bahawa kos tindakan dan kos-kos berkaitan ini dibayar oleh Defendan kepada Plaintif; dan m) sebarang relif yang Mahkamah yang Mulia ini anggap patut dan sesuai untuk diberikan."

The matter went for a full trial before the High Court. Seven witnesses gave evidence for the Plaintiff and three witnesses gave evidence for the Defendant. On 08.07.2020, after full trial, the learned trial judge dismissed the Plaintiff's claim with costs of RM 40,000.00. Dissatisfied, the Plaintiff filed this appeal against the said decision. The Law on Appellate Intervention

Steve Shim CJ (Sabah & Sarawak) in delivering the judgment of the Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2005] 2 MLJ 1; [2004] 4 CLJ 309 held: "In our view, the Court of Appeal in citing these cases had clearly borne in mind the central feature of appellate intervention ie, to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase "insufficient judicial appreciation of evidence" merely related to such a process. This is reflected in the Court of Appeal's restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention ie, that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established plainly wrong test." (emphasis added)

In another Federal Court case of UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785; [2010] MLJU 2225, Raus Sharif FCJ, in delivering the judgment of the court held: "[26] Thus, the prime issue in respect of Questions 1 to 3 is whether the Court of Appeal had erred in interfering with the findings of facts of the trial judge. It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. (See Chow Yee Wah & Anor v. Choo Ah Pat [1978] 1 LNS 32; Watt or Thomas v. Thomas [1947] AC 484; and Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309)." (emphasis added)

On a similar note, the Federal Court in Tengku Dato' Ibrahim Petra Tengku Indra Petra v. Petra Perdana Bhd & Another Appeal [2018] 2 CLJ 641 per Azahar Mohamed FCJ held: [94] The law is clear and well-settled in that the principle on which an appellate court could interfere with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1, UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785, In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911; and Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453). This court has said this before, and we adhere to it now. Having regard to the above principle, we find that in the present case the Court of Appeal made no findings that the High Court had gone plainly wrong, let alone that on a reconsideration." (own emphasis added)

Bearing in mind the above position of the law, we now turn to consider the issues raised by both parties to the present appeal. Issues

The issues raised by the Plaintiff in the present appeal can be summarised as follows:

1. whether the learned trial judge had erred both in law and in fact when he did not admit the Defendant's Certificate of Birth issued by the NRD ("ID22") and convert it into court exhibit P22; and

2. whether the learned trial judge had erred both in law and in fact when he found that the said Order was not obtained through fraud and therefore not liable to be set aside. Analysis and Findings First Issue: Admissibility of the Defendant's Certificate of Birth (ID22)

With regard to this issue, the Plaintiff submitted that the learned trial judge had erred both in law and in fact when he did not admit ID22 as a court exhibit and convert the same into exhibit P22.

Based on the notes of evidence, ID22 was introduced by the Plaintiff through Puan Farihah binti Othman, an Assistant Registration Officer from the NRD, Putrajaya ("SP7"). It can be seen from the notes of evidence that the Defendant had objected to the admission of ID22, and the learned trial judge had ordered for further submission on its admissibility. Be that as it may, the issue on the admissibility of ID22 was not addressed by the learned trial judge in his grounds of judgment. There was also no record to show that ID22 has been admitted as a court exhibit and converted to P22. As such, ID22 remains as an ID document.

It has been a long-established practice of the Malaysian courts that a document marked as ID is a document which has been put for identification purposes only. As such, an ID document is not considered as a properly admitted exhibit and does not form part of the evidence for the court's consideration. It naturally follows that any evidence or testimony with regard to the said ID document shall not be relied upon by the court and ought to be disregarded as well (see Shanta a/p Manickam (suing for herself and her children being the dependants of the deceased Letchumanan a/l Subramaniam) v. Teik Joo Chan Sdn Bhd & Anor [2015] 8 CLJ 611; [2015] 11 MLJ 721 (HC), Henry Devarajah Anthony James v. Petrozchem Oilfield Services Sdn Bhd [2017] 1 LNS 2141 (HC), PP v. Datuk Haji Harun Haji Idris & Ors [1977] 1 LNS 92; [1977] 1 MLJ 180 (HC) and Associated Pan Malaysia Cement Sdn Bhd v. Westwood Development Sdn Bhd [2013] 10 CLJ 95 (HC)).

ID22 is the Defendant's Certificate of Birth which was issued by the NRD upon application made by the Plaintiff. The Births and Deaths Registration Act 1957 (Revised - 1983) [Act 299] ("BDRA 1957") generally allows for any person to apply for a certificate of birth pertaining to any entry in the register upon payment of the prescribed fee. Section 32(1) of the BDRA 1957 reads: "Any person may apply from the Superintendent-Registrar on the prescribed form a Certificate of Birth, Certificate of Death or Certificate of Presumed Death pertaining to any entry in the register on payment of such fees as may be prescribed." (emphasis added)

As stated in ID22, the date of the extraction of ID22 was 30.10.2018. ID22 was duly certified by the Registrar-General of Births and Deaths as a true extract from the Register of Births. ID22 thus satisfies the statutory requirement under section 32(2) of the BDRA 1957, which reads: "Every Certificate of Birth, Certificate of Death or Certificate of Presumed Death shall be certified under the hand of the Registrar or the Registrar-General or the Superintendent-Registrar having the custody of the register." (emphasis added)

Upon being duly certified under section 32(2) of the BDRA 1957, ID22 is deemed under the law to be a certified copy, notwithstanding that it may be photographically reproduced or in a form different than which the original entry was made. Section 33(3) of the BDRA 1957 states: "For the purposes of this section a Certificate of Birth, Certificate of Death or Certificate of Presumed Death shall be deemed to be a certified copy if it purports to have been certified in accordance with subsection 32(2) notwithstanding that it may be—

(a) photographically reproduced; or

(b) an extract of the information contained in the register in a form prescribed which form may be different from that in which the original entry was made." (emphasis added)

Therefore, ID22 which has been duly certified under section 32(2) of the BDRA 1957, shall be received as evidence of such facts and particulars relating to such birth without further or other proof. Section 33(1) of the BDRA 1957 provides that: "Subject to the provisions of this section an entry or a Certificate of Birth, Certificate of Death or Certificate of Presumed Death relating thereto purporting to have been duly certified under subsection 32(2) shall be received without further or other proof as evidence of such facts and particulars relating to such birth, death or presumed death as are or were at the time of the making of such entry required by law to be set forth in such entry or certificate." (emphasis added)

The application of section 33(1) is subject to the fulfilment of any of the provisos under section 33(2) of the BDRA 1957, which reads:

(a) the entry purports to be signed by some person professing to be the informant and to be such a person as might be required by law at the date of the entry to give to the Registrar information concerning that birth or death; or

(b) the entry is an entry of a birth which is signed by a person professing to be a Superintendent-Registrar, or which purports to have been made with the authority of the Registrar-General; or

(c) the entry is an entry of a death which purports to have been made upon a certificate from a Coroner or Magistrate; or (ca) the entry is an entry of presumed death which has been made upon receiving an order from a Court; or

(d) the entry purports to have been made in pursuance of any written law relating to the registration of births and deaths at sea or on board an aircraft, or

(e) the entry is—

(i) an entry in any register, book of record or document recording particulars of births and deaths which has been kept or preserved under or in accordance with the provisions of any former written law relating to the registration of births and deaths; and

The word "or" appearing in section 33(2) of the BDRA 1957 denotes that those words have to be read disjunctively (see Tenaga Nasional Bhd v. Pearl Island Resort Development Sdn Bhd [2017] 9 CLJ 185 (FC) and See Choo v. Suruhanjaya Sekuriti [2005] 2 CLJ 20 (CA)).

In addition to the above, ID22 contains relevant facts which purportedly support the Plaintiff's assertion that the Defendant was not the son of the deceased. The admissibility of non-judicial public documents is governed by, inter alia, section 35 of the Evidence Act 1950 [Act 56] ("EA 1950"), which states: "An entry in any public or other official book, register or record, stating a fact in issue and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which the book, register or record is kept, is itself a relevant fact." (emphasis added)

We find that ID22 in the present case satisfies both the provision under section 32(2)(b) and 32(1) of the BDRA 1957. ID22 is also relevant to address the issue of whether the Defendant is the son of the deceased pursuant to section 35 of the EA 1950. Therefore, we find that ID22 is relevant and admissible as evidence of such facts and particulars relating to the Defendant's birth.

On the other hand, the Defendant contended that the Plaintiff's reliance on ID22 cannot be accepted by the court since the BDRA 1957 is not applicable to the facts in the present case. According to the Defendant, the entry of the Defendant's birth was made in 1943, prior to the commencement of the BDRA 1957.

We disagree with the Defendant's contention for the foregoing reasons.

The BDRA 1957 first came into force on 01.08.1958 through Ordinance No. 61 of 1957 and was later revised in 1983. There were laws on registration of births and deaths prior to the coming into operation of the BDRA 1957, which have been repealed therefrom. The repealed laws are listed in the Schedule to the BDRA 1957 which includes the Births and Deaths Registration Enactment (F.M.S. Cap. 190) which was in force prior to the BDRA 1957. The information given and the registration of the Defendant's birth was made in 1943, at the time when the Births and Deaths Registration Enactment (F.M.S. Cap. 190) was in force.

It is therefore important to look into any savings or transitional provision in the BDRA 1957 to address this issue. The savings provision under section 41(1) of the BDRA 1957 states that: "Any certificate issued or any notice or information given or any order, regulation or return made or any registration effected or other thing done under or in accordance with any former written law relating to the registration of births and deaths shall if in force at the commencement of this Act, continue in force, and shall have effect as if the same had been issued, given, made effected or done under the corresponding provision of this Act." (emphasis added)

In light of the above, we are of the view that the information given and the registration of the Defendant's birth continue to be in force as if they had been given or registered in accordance with the BDRA 1957. It is pertinent to note that ID22 was issued based on the Register of Births, which contained the said information and registration. ID22 was also issued and extracted on 30.10.2018 under the provisions of the BDRA 1957. Therefore, we are of the considered view that the provisions under the BDRA 1957 are applicable to ID22.

Next, it was further contended by the Defendant that by virtue of section 33(2)(a) and section 7(2) of the BDRA 1957, the Plaintiff bears the burden to produce an entry signed by one Chinaya a/l Ranggasamy (the informer of the Defendant's birth as can be seen in ID22) and to show whether he was legally entitled to produce the information of the Defendant's birth for registration.

With regard to this contention, we have already mentioned before that ID22 has already satisfied the requirements on its admissibility and it should have been admitted as evidence based on section 32(2)(b) and 32(1) of the BDRA 1957 above. Thus, there is no further need for the Plaintiff to produce an entry signed by the informer of the Defendant's birth. Therefore, we disagree with the Defendant's contention on this issue.

Once admitted, the Defendant's Certificate of Birth serves as strong presumptive evidence before the court that the Defendant is not the son of the deceased. In order to disprove this presumptive evidence, it is insufficient for the Defendant to merely rely on the admissions and assertions of the witnesses during the trial.

On this issue, we approve the judgment of KC Vohrah J (as he then was) in Chua Kim Suan v. Ang Mek Chong [1988] 3 MLJ 231, who observed as follows: "It will be noted that under s 36 of the 1957 Ordinance (and it remains unchanged in the 1957 Act) a penalty was provided, inter alia, for making any false statement for the purpose of registration, for furnishing false information touching on any particulars required by the Act and for making a false entry in a register. To my mind, one can expect that the particulars given to a public officer under the law for the registration of births by an informant, in view of the penalty, would be true. And in addition, the entries in the certificate being a reflection of the entries in the register of birth, there is a presumption of correctness attaching to these entries and it is up to the party disputing the correctness to come up with contrary evidence. Amongst the entries in the certificate of birth are those relating to the date of birth, sex and place of birth of the child, the name of the child's father, the name of the child's mother and her age. Pang Hua's certificate of birth gives the name of his father as 'Tiu Jock Soon', ie, the deceased was his father. The mother's name is given as 'Ang Mok Chang', ie, the defendant is his mother. And the age of the defendant then was given as '42 years'. To my mind, these entries constitute strong presumptive evidence that the deceased and the defendant were parents of Pang Hua and they corroborated the evidence of the defendant that Pang is the child of the deceased and that she gave birth to him. Indeed, these entries show that DW3 and DW4 are not Pang Hua's parents. It would certainly need more than mere assertions by the plaintiff and her witnesses to disprove that Pang Hua is not the child of the deceased and the defendant." (emphasis added)

Therefore, based on all of the above, we agree with the Plaintiff that the Defendant has no interest in the deceased's estate. As such, the Defendant has no locus standi to petition for the distribution of the deceased's estate under section 8 of the SEDA 1955 in the first place.

In a nutshell, there is clearly a misdirection on the part of the learned trial judge in not admitting the Defendant's Certificate of Birth as a court exhibit and converting it from ID22 to P22. In our view, the decision of the learned trial judge, with due respect, was not based on a proper judicial appreciation of evidence and was plainly wrong. In our view, there is no reason for this court not to accept ID22, a document introduced and tendered by an Assistant Registration Officer from the NRD, as a court exhibit. In our view, the misdirection of the trial judge warrants appellate intervention by this court. Second Issue: Fraud

With regard to this issue, the Plaintiff submitted that the learned trial judge had erred both in law and in fact when he found that the said Order was not obtained through fraud and therefore not liable to be set aside.

On the issue of fraud, the learned trial judge in his grounds of judgment, made the following observations: "[27] SP5 yang mendengar permohonan yang dibuat Defendan mempunyai budibicara penuh untuk meneruskan atau menangguhkan perbicaraan kerana Plaintif yang berada di India tidak hadir. SP5 sendiri menyedari kelayakan Plaintif untuk mendapat Bahagian dari harta pusaka ini. Dari keterangan yang dikemukakan adalah jelas SP5 telah membuat keputusan untuk meneruskan perbicaraan dan seterusnya membuat perintah terhadap permohonan yang dibuat oleh Defendan, walaupun Plaintif tidak hadir. Tidak ada keterangan yang jelas yang menunjukkan bahawa keputusan yang dibuat oleh SP5 untuk menurun milik hartanah tersebut kepada Defendan telah dipengaruhi oleh frod yang dilakukan oleh Defendan. Oleh itu saya dapati tidak ada asas untuk membuat deklarasi bahawa perintah tersebut dibuat secara tidak teratur, tidak sah dan patut diketepikan.”

On what constitutes fraud, we are guided by the judgment of the Federal Court in Letchumanan Chettiar Alagappan (As Executor To SI Alameloo Achi (Deceased)) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418 where Jeffrey Tan FCJ in delivering the judgment of the court held: [18] What amounts to 'fraud'? "It is not easy to give a definition of what constitutes fraud in the extensive signification in which the term is understood by civil courts of justice. The courts have always avoided hampering themselves by defining or laying down as a general proposition what shall constitute fraud. Fraud is infinite in variety (Reddaway v. Banham [1896] AC 199, 221). The fertility of man's invention in devising new schemes of fraud is so great, that the courts have always declined to define it, or to define undue influence, which is one of the many varieties, reserving to themselves the liberty to deal with it under whatever form it may present itself (Allcard v. Skinner (1887) 36 Ch D 145, 183). Fraud, in the contemplation of a civil court of justice, may be said to include properly all acts, omissions, and concealments which involve a breach of a legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another (Story, Eq Jur 187). All surprise, trick, cunning, dissembling and other unfair way that is used to cheat anyone is considered fraud (Finch 439). Fraud in all cases implies a wilful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to (Green v. Nixon (1857) 23 Beav 530, 535) "(Kerr on Fraud and Mistake 7th edn at p.1). "The concept of fraud is notoriously difficult to define" (Cavell and Anor v. Seaton Insurance Co [2009] EWCA Civ 1363 per Longmore LJ, Mummery and Toulson LJJ in agreement). We would not hazard to define 'fraud'. We would just say that 'fraud' is a generic term which also covers all manner of cheat, deceit and dishonesty. Given its wide meaning, "an action in fraud will usually include a number of distinct causes of action... " and "claims to trace assets in equity or, perhaps, at common law" (Bullen & Leake & Jacobs Precedents of Pleadings 18th edn, vol. 2 at 57-01)." (emphasis added)

With regard to the standard of proof in civil cases, the standard of proof is on the balance of probabilities, even when fraud is the subject in the said civil claim (see Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd [2015] 7 CLJ 584 (FC)).

As can be gleaned from the learned trial judge's grounds of judgment, too much focus was given to the acts of the Land Administrator, i.e. SP5, whereas the allegation of fraud by the Plaintiff in the present case was directed to the specific acts of the Defendant.

Oral and documentary evidence were adduced by the Plaintiff which proved that:

1. the Defendant is not the son of the deceased and he did not disclose his certificate of birth during the hearing before the Land Administrator;

2. the Defendant admitted that he purposefully did not inform either the Plaintiff or the Plaintiff's son, i.e. SP3, about the hearing of the petition before the Land Administrator;

3. during the hearing of the petition, when the Land Administrator stated that the deceased's estate should be divided equally between the Plaintiff and the Defendant, the Defendant specifically requested for the whole of the deceased's estate to be distributed to him;

4. one of the grounds of the Defendant's application was that the Plaintiff had consented to the deceased's estate being distributed solely to the Defendant, which was strenuously denied by the Plaintiff; and

5. the Land Administrator made an order for the Defendant to submit a "Surat Akuan Penolakan Bersumpah" by the Plaintiff before the said Order may be extracted; and

6. the Defendant never complied with the said Order and yet he proceeded with the transmission of the deceased's estate to his name.

When all of the evidence above are viewed in totality, we find that the Defendant had clearly obtained the said Order and subsequently the whole of the deceased's estate through fraudulent acts with the sole purpose of depriving the Plaintiff of what he was duly entitled to.

In the Court of Appeal case of Ahmad Abd Majeed Iwn. Habibah Abdul Majid [2007] 4 CLJ 355, the court has allowed the plaintiff's application to set aside the distribution order on the ground of fraud. Mokhtar Sidin JCA observed that the wilful failure of the defendant to name the plaintiff in the petition for the distribution of the estate, and the concealment of the fact regarding the filing and hearing of the petition from the Plaintiff with the purpose of denying the plaintiff of his rightful interest over the estate, among others, amounted to fraud. In such circumstances, the distribution order is liable to be set aside. In particular, the following passage of the judgment is reproduced below: "[20] Di dalam rayuan ini saya berpendapat bahawa peruntukan s. 29 Akta tersebut tidak terpakai. Pertama, plaintiff bukanlah suatu pihak yang telah dinamakan oleh defendan semasa defendan membuat permohonan untuk pembahagian harta pesaka simati sungguhpun defendan tahu bahawa plaintif adalah waris yang paling berhak ke atas harta pesaka simati. Ini bukanlah satu kesilapan tetapi satu perbuatan yang sengaja dilakukan oleh defendan untuk mengenepikan hak plaintif sebagai seorang waris. Apabila defendan menamakan abang simati sebagai waris dan bukannya plaintif (anak lelaki simati), ini pada pendapat saya adalah satu perbuatan penipuan (fraud) yang sengaja dilakukan oleh defendan untuk mengenepikan hak plaintif ke atas harta pesaka simati. Pada pendapat saya, mengikut hukum syarak apabila simati meninggalkan seorang anak lelaki maka abang atau adik lelaki simati tidak mempunyai apa-apa hak ke atas harta pesaka simati. Di dalam kes ini, bukan sahaja defendan telah melakukan penipuan tetapi juga abang simati yang telah membuat pengakuan yang simati tidak mempunyai anak lelaki dan dia adalah pewaris dan seterusnya dia melepasnya sebagai pewaris. Pentadbir Tanah telah memberikan perintah berasaskan dokumen yang palsu itu. Dengan itu, perintah yang dibuat berasaskan surat-surat palsu tersebut adalah tidak sah dan terbatal. [21] Keduanya, apabila defendan memohon untuk membuat pembahagian harta simati mereka tidak ada memberitahu plaintiff. Defendan tidak menafikan perkara ini tetapi cuba mencari alasan bahawa plaintiff telah mendapat pembahagian harta pesaka arwah bapa mereka. Pada pendapat saya, itu bukanlah satu alasan yang kukuh. Plaintif sememangnya berhak ke atas harta pesaka itu bersama-sama dengan ibunya (simati). Walau apapun, alasan yang telah diberikan oleh responden, ia bukanlah satu sebab untuk tidak memberitahu plaintiff ke atas permohonan pembahagian harta pesaka simati. Ini juga pada pendapat saya satu sebab mengapa Perintah Pembahagian oleh Pentadbir Tanah adalah tidak sah dan terbatal. [22] Ketiga, plaintiff tidak tahu-menahu langsung berkenaan permohonan dan pembahagian harta pesaka simati, sehinggalah beberapa tahun kemudian. Dari keterangan yang ada, defendan sendiri telah menyembunyikan semua itu dari pengetahuan plaintiff. Apabila plaintiff mendapat tahu bahawa pembahagian harta pesaka tersebut telah dibuat beberapa tahun kemudian, tarikh untuk membuat rayuan telah luput. Plaintiff hanya boleh memohon untuk mengenepikan perintah dan ini telah dilakukan oleh plaintiff dengan secepat mungkin apabila mengetahui berkenaan perintah tersebut. Mengikut peruntukan s. 29 Akta tersebut had memfailkan rayuan adalah satu bulan selepas Perintah diberikan iaitu mengikut peruntukan di dalam Kaedah-kaedah Mahkamah Rendah. [23] Keempat, semasa perbicaraan pembahagian harta pesaka simati dijalankan di Pejabat Pentadbir Tanah, plaintiff bukan sahaja tidak hadir tetapi yang paling jelas ia tidak diberitahu langsung berkenaan perbicaraan tersebut. Dengan itu, saya berpendapat s. 29 Akta tersebut tidak terpakai ke atas plaintiff di dalam kes ini." (emphasis added)

Therefore, based on the above, we find that the Plaintiff had successfully proven, on the balance of probabilities, that the said Order and the deceased's estate were obtained through fraud on the part of the Defendant. Therefore, it is only just for the said Order to be set aside. Conclusion

In conclusion, for reasons enumerated above, we have come to a unanimous decision that there is merit in the Plaintiff's appeal. It is hereby ordered as follows:

1. the Plaintiff's (Appellant's) appeal is allowed and the High Court's decision is set aside;

2. the Plaintiff's (Appellant's) reliefs in prayer 18 of the Amended Statement of Claim is allowed;

3. costs of RM50,000.00 here and below to be paid by the Defendant (Respondent) to the Plaintiff (Appellant);

4. security for costs of RM10,000 deposited by the Plaintiff (Appellant) to the Defendant (Respondent) to be released to the Plaintiff (Appellant) within 14 days from the date of this order; and

5. the title of the said Land is to be given to the Plaintiff's (Appellant's) solicitors within 14 days from the date of this order. Dated: 20 October 2021 Solicitors For The Appellant: Ashok K Raman Nair, R. Rajasuriyan, Noraizah Bahari & Shopna Rani Malakar Messrs Noraizah Bahari & Associates 17A, First Floor, Jalan MJ/7 Taman Maju Jaya 46000 Petaling Jaya Selangor Darul Ehsan Solicitors For Respondent: Pramjit Kaur Messrs Mann & Associates No.57-2, Jalan Bandar Rawang 1 Pusat Bandar Seri Rawang 48000 Rawang Selangor Darul Ehsan