Kumaradevan Rajadevan v Jeevamalar A/P Kumarasubramaniam (WA-24NCvC-5294-11/2023)

(ii) above, the senior assistant registrar to sign all the said documents on behalf of the Defendant; iv) All the proceeds from the sale of the said property be divided equally and be paid to both the Plaintiff and Defendant; v) In the alternative, that the Defendant be ordered to buy the Plaintiff’s ½ share of the said property at the latest market price and / or based on the latest valuation report; vi) Any other order deemed just and reasonable by this Honourable Court; and vii) The costs of this application to be paid by the Defendant to the Plaintiff. CAUSE PAPERS [3] The cause papers filed in this Suit are-

The Originating Summons (Enclosure 1)

The Affidavit in Support affirmed by Kumaradevan

The Affidavit in Reply affirmed by Jeevamalar a/p

The Affidavit in Reply affirmed by Kumaradevan Rajadevan on 10.1.2023 (Enclosure 8) BRIEF FACTS [4] In Enclosure 1, the Plaintiff stated the following reasons for the application. [5] The Plaintiff and the Defendant are joint owners of the Property. The Defendant is the Plaintiff’s mother. [6] In February 2023, the Defendant informed the Plaintiff that she had found a purchaser for the Property, and on 04-04-2023, the Plaintiff received a letter from the Defendant’s lawyer, asking the Plaintiff to give the Plaintiff’s rights over the Property to the Defendant. [7] When the Plaintiff failed, the Defendant began an action against the Plaintiff, for an Order for Sale, through Originating Summons WA- 24NCVC-1663-05.2023 (1st OS). However, when the Plaintiff and the Defendant were in the midst of settlement negotiations, the Defendant withdrew the said suit. [8] On 17-10-2023 via a telephone conversation, the Plaintiff asked the Defendant if the Defendant was willing to sell the Property. The Defendant said that she was unwilling to do so. The Plaintiff then told the Defendant that the Plaintiff wanted to sell it, but the Defendant still refused to agree to the sale of the said property. [9] As such, the Plaintiff and Defendant are unable to continue to own the Property as joint owners. [10] The Plaintiff also stated in paragraph 5 of Enclosure 2, that the relationship between the Plaintiff and Defendant had irretrievably broken down in 2017. PLAINTIFF’S CONTENTION [11] The Plaintiff contended that there are two (2) grounds that the order for Sale is ‘necessary or expedient’. That the relationship between the parties has reached an impasse and has irretrievably broken down, and the Defendant has been treating the Property as her own property not a joint property. [12] The Plaintiff and the Defendant have equal shares in the Property, but, the Defendant has and is enjoying the sole possession and use of the Property. [13] The Plaintiff further contended that the relationship between the Plaintiff and the Defendant has broken down and it is impracticable to maintain as co-proprietors. [14] The Plaintiff also contended that it is not practical for the land to be partitioned due to excessive costs, issues with obtaining approval, and Property will become unreasonably small as there is also a double storey house erected on the Property. DEFENDANT’S CONTENTION [15] The Defendant contended that Enclosure 1 should not be granted on the following grounds-

There is no valid cause of action for this Court to grant an order for sale;

There are no valid grounds in existence at this time which justifies the granting of an order for sale;

The Property is registered in the joint names of the Plaintiff and the Defendant and therefore is not a property which falls under Section 145 of the NLC. [16] The Defendant also contended that the Plaintiff acted mala fide in bringing this Suit and that the Property is subject to matrimonial property at the Family Court under divorce proceedings between the Defendant and her husband (the Plaintiff’s father). ANALYSIS AND FINDINGS Section 145 of the National Land Code [17] The Defendant contended that this Suit does not come under the provision of section 145 of the NLC as the Plaintiff and the Defendant are not co-proprietors. [18] This Court finds that this contention cannot stand as the facts are crystal clear that both the Plaintiff and Defendant are co-proprietors. The Plaintiff in his Affidavit at Enclosure 2, has exhibited a copy of the registered title, showing that he and the Defendant are the co-proprietors of the Property. As such, in line with section 340(1) of the NLC, this Court finds that it is indisputable that the Plaintiff is the registered proprietor of the half share of the Property. [19] In this regard, the case of Faridah bt Md Lazim v Edham bin Abd Ghani [2021] MLJU 588, cited the learned author Judith Sihombing "National Land Code A Commentary" at p. 837- "The holding of alienated land in 'undivided shares' means that a co-owner owns a share in the land of a particular quantum but that his share has not been cut off from the shares of his other co-owners. All the co-owners are entitled to share in the possession of the land and any profits associated with the use of the land, but at no time may an individual co-owner point to a particular part of the land and identify that part as his." [20] Section145 of the National Land Code (NLC) 1965 provides that- "Section 145. Power of Court to facilitate termination of co-proprietorship.

Where, in the case of any land vested in co-proprietors:

any of the co-proprietors will neither join in, nor consent to the making of, an application for partition under this Chapter, or

by reason of the operation of paragraph (f) of sub-section (1) of s 136 (as applied by s 141), partition of the land between all of the co-proprietors is incapable of being approved under this Chapter, the Court, subject to and in accordance with the provisions of any law for the time being in force relating to civil procedure, may, on the application of any of the co-proprietors, make such order as it may think just for the purpose of enabling the co-proprietorship to be terminated.

Without prejudice to the generality of the power conferred by subsection (1), the Court may on any application under that subsection order:

that, subject to the making between the co-proprietors of such payments as the Court may consider equitable having regard to the comparative values of the individual portions thereby proposed, any application for partition made by one or more of the co-proprietors in the terms specified in the order shall be deemed for the purposes of this Chapter to have been made by them all;

that the undivided share of any of the co-proprietors be transferred on the terms specified in the order to the other co-proprietors, or to any of them; or

that the land be sold." [21] In Ong Chin Hai & Anor v Ong Hoo See & Ors [2022] 5 MLJ 690; [2022] 6 MLRA 515 (CA), the Court of Appeal held that- “(1) The plaintiffs were not barred from applying to terminate their co-proprietorship under s 145(1) of the NLC, which stated that "any of the co-proprietors may apply for the co-proprietorship in the land to be terminated". There was also no requirement under the NLC for the co-proprietor who wished to terminate his co-proprietorship on the land to show that he had applied for the land to be partitioned, but the application was rejected before he could come to court under s 145 of NLC. Therefore, the contention of the 3rd and 4th defendants that the plaintiffs' application under s 145 of the NLC was premature was without merit. (paras 21, 22 & 25) [22] Further, Ong Chin Hai (supra) elaborated- [21] We are of the considered view that the plaintiffs were not barred from applying to terminate their co-proprietorship under s 145(1) of the NLC 1965, which states that "any of the co-proprietors" may apply for the co-proprietorship in the land to be terminated. Therefore, we do not agree with the 3rd and 4th defendants that the plaintiffs must show that they had requested for the said Property to be partitioned and the defendants did not consent to it, before s 145 of NLC 1965 could be invoked. [22] There was also no requirement under NLC 1965 for the co-proprietor who wished to terminate his co-proprietorship on the land to show that he had applied for the land to be partitioned, but the application was rejected before he could come to court under s 145 of NLC 1965. [23] We refer to the case of Datin Sohaila Adorn v. Einstein Tay [2016] MLRAU 243 (CA), in which Zaharah Ibrahim JCA (as Her Ladyship then was) in delivering the judgment of the Court of Appeal held as follows: "[35] Section 141A as introduced into the NLC, and which became the subject of the difference of views in the High Court cases referred to above, allowed a co-proprietor or co-proprietors holding the major share in the land to apply to partition the land, notwithstanding the requirement in s 141 of the NLC. That application would still be subject to the provisions of s 142, particularly subsections (3) and (4) of s 142, of the NLC. [36] It must be noted that no consequential amendment was made to s 145 of the NLC. In other words, Parliament saw it fit to retain the existing avenue for co-proprietors, including one holding a major share in the land held under such co-proprietorship, to apply to the High Court for termination of such co-proprietorship. [37] We therefore agree with the view of the learned High Court Judge in the case of Ku Yan Ku Abdullah:

that s 141A did not compel a co-proprietor holding the major share in a piece of land to apply to the land administrator for approval to partition the land;

that s 141A was merely a permissive section; and

that a co-proprietor having the major share in a piece of land is not barred from applying to the High Court under subsection 145(1) to have the co-proprietorship terminated and the land partitioned on the general ground that a co-proprietor will not join in nor consent to the making of an application for partition. [38] Section 141A of the NLC was further amended in 2008 by the National Land Code (Amendment) Act 2008 (which came into force in Johor on 0110112009). [39] After the 2008 amendment to s 141A, any co-proprietor may apply to the State Director or the Land Administrator for partition of the land if "other co-proprietors neither join in nor consent to the making of the application ". [40] Even though the amended s 141A contains a similar condition as the condition in para 145(1)(a) (namely, the absence of participation or consent by any of the co-proprietors) for the making of an application for partition or termination of co-proprietorship, no amendment was made to s 145 by Parliament. [41] It must also be borne in mind that the National Land Code (Amendment) Act 2008 also amended s 141 as well as ss 142 and 143A to enable agricultural land to be subdivided even though it is less than 215 of a hectare in area. Yet para 145(1)(b) of the NLC was left untouched. A court order under para 145(1)(b) was previously the only way a co-proprietor could have agricultural land involving or resulting in areas of less than 215 of a hectare partitioned. [42] In our view, with the amendment to s 141A a coproprietor, even a co-proprietor holding a minor share in land held under co - proprietorship, has an option of either applying under s 141A or under 145 of the NLC for approval to partition the land held under such co-proprietorship. [43] In our considered opinion, the view of the learned High Court Judge in the case of Ku Yan bte Ku Abdullah holds true also (by virtue of the amended s 141A), for a person holding a minor share in the land. In other words, there is no requirement under the NLC that a co-proprietor must first make an application under ss 141A and 142 of the NLC before he can make an application under s 145 of the NLC." [23] The Plaintiff has made it clear that the relationship between the parties has broken down since 2017. The last occasion that they met in person was in 2018 as stated in Enclosure 2. [24] Accordingly, this Court finds that the Plaintiff has the right to commence this Suit under section 145 of the NLC. The Plaintiff is entitled to apply for termination of the co-proprietorship under section 145(1) of the NLC, which provides that "any of the co-proprietors may apply for the co-proprietorship in the land to be terminated". Further, there is no requirement under the NLC for the co-proprietor who wished to terminate the co-proprietorship to show that the application for partitioned has been applied, and that the application was rejected, before he could come to court under section 145 of the NLC. Order for Sale [25] Order 31 of the Rules of Court 2012 (ROC 2012) provides- “1. Power to order sale of immovable property (O. 31 r. 1) Where in any cause or matter relating to any immovable property it appears necessary or expedient for the purposes of the cause or matter that the property or any part thereof should be sold, the Court may order that property or part to be sold, and any party bound by the order and in possession of that property or part, or in receipt of the rents and profits thereof, may be compelled to deliver up such possession or receipt to the purchaser or to such other person as the Court may direct.” [26] Apparently, the two (2) requirements under O.31 of ROC 2012 are-

it must be necessary or expedient for the court to make the order, and

the order must be related to a cause or matter each will be dealt with in turn. [27] In this regard, Ong Chin Hai (supra) held-

In relation to the application of O 31 r 1 of the ROC, by virtue of the broad definition of the term "cause" or "matter'" to mean any action, suit or other original proceeding between a plaintiff and defendant, and any criminal proceeding, including every proceeding in court not in a cause, this would include the plaintiffs' application in the present case. Under the law, there was no express requirement that there ought to be an existing or separate cause or matter before the court could exercise its power to order for the land to be sold. Based on the facts in the present case, the court agreed with the position taken by the court in Tan Kok Chiang v. Tan Yaw Ti & Anor rather than in Rubyna Kaur Surinder Singh v. Jasbir Singh Harbajan Singh on the requirements for the application of O 31 r 1 of the ROC. (para 36) [28] The case of Ong Chin Hai (supra) elaborated- [35] We agree with the learned JC. We also agree with Rhodzariah Bujang JC (as Her Ladyship then was) in Tan Kok Chiang v. Tan Yaw Ti & Anor [2009] 10 MLRH 127 (HC) who took a different view than His Lordship Suriyadi Halim Omar J. Her Ladyship opined that there is no necessity for there to be an existing court proceeding other than the action filed by the plaintiff for the court to exercise power to order the sale of the land. It was held in the following words: "I am compelled to state the obvious, which is the power to order sale of the land under Item 3 is an additional one conferred to the High Court, the main powers being that provided by s 25 of the CJA which are those vested in the High Court immediately prior to Malaysia Day and such other powers as can be found in any written law. When the written law is silent on the power of the High Court, then it is right that we look into the additional powers conferred by the Schedule to the CJA and as I said earlier it is only the exercise of these powers which must follow any written law or rules of court. Clearly, therefore, O 31 of the RHC 1980 regulates the exercise of the power of sale conferred by item 3 of the Schedule. As for the above mentioned proviso to s 25(2), my interpretation of it is that the exercise of the power to order sale of the land must be done according to any written law or rules of court; not that the power to do so must be provided by written law. I agree with James Foong J (as His Lordship then was,) in KK Kumaran v. TS Sambanthamurthi [1996] 1 MLRH 786; [1996] 3 MLJ 309; [1997] 2 CLJ SUPP 26 that O 31 r 1 of the Rules of the High Court 1980 is the relevant Rules governing the exercise of the power conferred by the said item 3 and it says (as did item 3) that I could order such a sale if it "... appears necessary or expedient...". In arriving at this decision I respectfully declined to follow the decision of Suriyadi Halim Omar J's decision (as His Lordship then was) in Rubyna Kaur Surinder Singh v. Jasbir Singh Harbajan Singh [2003] 3 MLRH 581; [2003] 6 MLJ 753; [2004] 1 CLJ 347; [2003] 6 AMR 566 cited by Ms Stephanie Chin and find support in the decision of Abdul Malik J (as His Lordship then was) in Tong Hin Seong & Anor v. Yong Teik Seong [2003] 5 MLRH 345; [2003] 6 MLJ 38 the facts of which case is not unlike the present one before me. In that case 2 brothers also could not agree on the amount of rentals which one must to pay to the other. Abdul Malik J decided that an order for sale of the land should be made to resolve the impasse between the parties. His Lordship held that he has the power to order the sale based on the provisions of law I quoted earlier and not on any provision of the National Land Code. With respect to the decision in Rubyna's case (supra)I do not think there is a necessity for there to be an existing court proceedings other than the action filed by the plaintiff in order for the court to exercise the power to order the sale." [36] In our view, by virtue of the broad definition of the term "cause" or "matter" to mean any action, suit or other original proceedings between a plaintiff and defendant, and any criminal proceeding, including every proceeding in court not in a cause, which in our view, includes the plaintiffs' application in the present case. Under the law, there is no express requirement that there must be an existing or separate cause or matter before the court can exercise its power to order for the land to be sold. Based on the facts in the present case, we agree with the position taken by the court in Tan Kok Chiang rather than in Rubyna Kaur.”. [29] For ease of reference, section 25 and paragraph 3 of the Schedule to the Courts of Judicature Act (JCA) 1964, provides- “25. Powers of the High Court

Without prejudice to the generality of Article 121 of the Constitution the High Court shall in the exercise of its jurisdiction have all the powers which were vested in it immediately prior to Malaysia Day and such other powers as may be vested in it by any written law in force within its local jurisdiction.

Without prejudice to the generality of subsection (1) the High Court shall have the additional powers set out in the Schedule: Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same.” “Partition of land 3. Power to direct a sale instead of partition in any action for partition of land; and in any cause or matter relating to land, where it appears necessary or expedient, to order the land or any part thereof to be sold, and to give all necessary and consequential directions.” [30] Accordingly, in K K Kumaran v TS Sambanthamurthi [1996] 3 MLJ 309, the Court held- “(1) Section 25(1) of the CJA gives the High Court jurisdiction to deal with all matters conferred by law, including those vested prior to the formation of Malaysia. Section 25(2) of the CJA gives the court additional powers, which include item 3 of the Schedule, which allows the court to direct sale in any cause or matter relating to land. This general power, however, shall be exercised in accordance with any written law or rules of court relating to the same (see p 314B-D).

Although there is no written law providing jurisdiction to sell the land in this case, the court could rely on rules of the court, O.31 of the RHC, to exercise its power to order the sale of any land which the court deems necessary and expedient to order so.” (Emphasis Added) [31] Further, in Koh Hop Buat & Ors v Tan Niam Neo & Anor [2007] 1 MLJ 328, the Court held- “..para 3 of the Schedule to the Courts of Judicature Act 1964 sets out the power to direct a sale instead of partition in any action for partition of land; and in any cause or matter relating to land, where it appears necessary or expedient, to order the land or any part thereof to be sold, and to give all necessary and consequential directions (see paras 18 to 20); KK Kumaran v TS Sambanthamurthi [1996] 3 MLJ 309 President Shoes Sdn Bhd v Macci Fashion Centre Sdn Bhd [1998] 1 CLJ 169 and Yong Hin Seong & Anor v Yong Teik Seong [2003] 6 MLJ 38 followed.” [32] Accordingly, in Ong Chin Hai (supra), the Court of Appeal held- “[26] Even if the requirements under s 145(1) of the NLC 1965 have not been complied with, the court still has the power to direct a sale instead of partition pursuant to s 25 and para 3 of the Schedule to CJA 1964 and O 31 of ROC 2012. See Koh Heng Jin (supra). [27] The court is conferred with additional powers under s 25 and para 3 of the Schedule to CJA 1964 in any cause or matter relating to land, to direct the land to be sold instead of partition, if it appears necessary or expedient to do so…” [33] An impasse has been considered as one of the grounds for an Order for Sale under O31 of the ROC 2012 as being ‘necessary or expedient’ as held in the case of Yong Hin Seong & Anor v Yong Teik Seong [2003] 6 MLJ 38- “This was done in the case of KK Kumaran v TS Sambanthamurthi [1996] 3 MLJ 309 and President Shoes Sdn Bhd v Macci Fashion Centre Sdn Bhd [1998] 1 CLJ 169. It will be done in this case. The root words of O.31 of the Rules of the High Court 1980 would be attached to the words 'it appears necessary or expedient'. Those words must be the guiding force before the court makes an order that a particular property or part of it is to be sold… Factually speaking, the impasse between the plaintiffs and the defendant as alluded to earlier made it 'necessary or expedient' for the High Court to order the property to be sold.” [34] Apparently, from the affidavits filed therein, this Court is satisfied that the sale of the Property has become necessary and expedient to resolve the deadlock. Consequently, the most practical method to resolve the impasse between the Plaintiff and the Defendant is by way of a court order for an Order for sale and that the sale to be effected by a public auction (KK Kumaran (supra) and President Shoes Sdn Bhd v Macci Fashion Centre Sdn Bhd [1997] 3 MLRH 737; [1998] 1 CLJ 169). [35] Therefore, this Court finds that Enclosure 1 is in compliance with the said precondition under O31 and is within the ambit of O 31 R1 ROC 2012. Other matters [36] The Defendant contended that there is a matter at the Family Court regarding divorce proceedings between the Defendant and her husband and the Property is the subject of a matrimonial property, thus, cannot be sold off. The Plaintiff denied this. According to the Plaintiff the issue raised at the Family Court was that, since the Defendant is living at the Property, she is not required to pay rent and is living rent-free. This can be seen at the Defendant’s affidavit of Exhibit JS-2 Enclosure 5 as reproduced herein- “Responden pula ada sebuah rumah di No. 34 Jalan Limau Nipis Bangsar Park Kuala Lumpur dimana beliau boleh tinggal dengan selesa tanpa membayar sewa” [37] The Respondent in Enclosure 5, is the Defendant in this Suit. [38] This Court finds that there is no order by the Family Court to restrain the selling of the Property. Further, the Plaintiff as the rightful co-proprietor, does have a right under section 145 of the NLC and O31 ROC 2012, accordingly. [39] On the issue of mala fide, this Court observed that the Defendant’s contention that the Plaintiff’s conduct was mala fide, was because the Plaintiff had applied to strike out the 1st OS. The Defendant was obviously angered by the action of the Plaintiff for his objection to the 1st OS as the Defendant at that time needed money for the care of her brother (now deceased) and alleged that the Plaintiff and her husband had conspired against her. However, this Court does not find that this conduct by the Plaintiff can be regarded as mala fide. Parties in a proceeding have the right to do the necessary for their case and an application to strike out a pleading cannot be regarded as a mala fide conduct. [40] Subsequently, this Court concluded that it is the most practical and just, to allow the cessation of the co-proprietorship by virtue of section145 of the NLC, and that the Property to be sold off by way of a public auction as permitted under O.31 of the ROC 2012 read together with s.25(2) and paragraph 3 of the Schedule of the CJA. CONCLUSION [41] Order in terms of Enclosure 1 with cost. The Defendant is at the liberty to purchase the Property, if she is willing. (YA DR. SUZANA BINTI MUHAMAD SAID) JUDICIAL COMMISSIONER OF THE HIGH COURT NCVC 1 Kuala Lumpur Court. Dated: 4 May 2024 COUNSELS For the Plaintiff Messrs Gunaseelan & Associates Advocates & Solicitors Unit B-2-1, VIVA No.378 Jalan Ipoh 51200 Kuala Lumpur. For the Defendant Messrs N. Saraswathy Devi Advocates & Solicitors No. 47 Jalan Sultan Ismail 50250 Kuala Lumpur Wilayah Persekutuan.