LIM Han Ming v LIM Han Peng (JA-22NCvC-186-11/2022)

This is a contested probate action concerning the estate of the late Lim Kiang Hiong (hereinafter referred to as "the Deceased"), who passed away intestate on 18 February 2021. The Deceased's wife, Yee Sia Moi, predeceased him on 2 September 2010.

The action was originally commenced as Probate Originating Summons No. : JA-31NCvC-513-11/2021, but was converted to a Writ action pursuant to a Court Order dated 9 November 2022 under Rule 72 of the Rules of Court 2012 (“ROC 2012”) due to the existence of substantial factual disputes requiring determination at trial.

The Plaintiff, Lim Han Ming, is the eldest son of the Deceased. The Defendant, Lim Han Peng, is the second son of the Deceased. The other beneficiaries of the Deceased's estate are Lim Ham Choon (third child) and Lim Siow Hong (fourth child/youngest daughter), both of whom support the Plaintiff's application for sole administratorship.

The trial was conducted over seven days on 13, 14, 15 and 17 October 2025, 27 October 2025 and 4-5 December 2025. Six witnesses testified for the Plaintiff (PW1 to PW6) and two witnesses testified for the Defendant (DW1 and DW2) as follows –

Plaintiff’s witnesses Lim Cho Gong (Deceased’s Sister) PW1 Lim Ham Choon (Third son) PW2 Abdul Jalil bin Mohd Saad (Purchaser) PW3 Lim Siow Hong (Youngest daughter) PW4 Lim Han Ming (Plaintiff/ Eldest son) PW5 Lai Lok Shin (Plaintiff’s wife) PW6

Defendant’s Witnesses Ter Lip Leng (Deceased’s friend) DW1 Lim Han Peng (Second Son) DW2

Parties filed in their written submissions and bundle of authorities and the Court now delivers its decision.

The Plaintiff's case revolved around two main issues –

whether the assets ought to be inserted as parts of the Deceased's estate; and

on his appointment as the sole administrator to the Deceased’s estate.

The four main assets, may be summarised as follows –

Lot Kedai Perling The Plaintiff contends that the Deceased purchased this property from PW2 for RM800,000.00, comprising RM300,000.00 paid through the Plaintiff's company (Excel Solidpac Industries Sdn Bhd) and RM500,000.00 through the Defendant. The Deceased intended the property for his grandson Ryan Lim Jing Xuan (PW2's son) when he attained adulthood. However, the Defendant procured the transfer of the property to his own son, Desmond Lim Di Loong, through misrepresentation to PW2 that the Deceased had ordered such transfer.

Money amounting to RM645,000.00 The Plaintiff contends that between July 2012 and July 2017, the Deceased made multiple loans to the Defendant totalling RM645,000.00 to pay for the Defendant's house at Taman Pulai Indah. The Deceased kept detailed handwritten records and deposit slips evidencing these loans. The Defendant made a partial repayment of RM90,000.00 on 24 October 2016, which constitutes acknowledgment of the debt and creates a fresh accrual of the cause of action under Section 26(2) of the Limitation Act 1953 [Act 254].

Luck Shopping Centre The Plaintiff contends that the Deceased remained a 25% partner in Luck Shopping Centre until his death. The SSM records dated 12 April 2021 confirm the Deceased's continued partnership. When the business was sold in November 2020, the estate is entitled to 25% of the sale proceeds amounting to approximately RM658,690.00.

Titah Development Sdn Bhd Shares The Plaintiff contends that the 5,000 shares in Titah Development Sdn Bhd were an inter vivos gift from the Deceased to the Plaintiff. The shares have been registered in the Plaintiff's name since 11 November 2011 and this was never challenged during the Deceased's lifetime.

The Plaintiff also seeks appointment as sole administrator, supported by three out of four beneficiaries. The Plaintiff submits that the Defendant has a clear conflict of interest given the outstanding claims against him and has demonstrated conduct inconsistent with the duties of an administrator.

The Defendant's case in defence to the Plaintiff’s claim may be summarised as follows –

Lot Kedai Perling The Defendant contends that he purchased this property from PW2 for RM500,000.00 using his own funds. The property was transferred to his son Desmond Lim Di Loong via a Deed of Gift dated 21 September 2016 at PW2's recommendation. Desmond holds indefeasible title under Section 340 of the National Land Code (“NLC”).

Money amounting to RM645,000.00 The Defendant contends that this was an inter vivos gift from the Deceased to assist with his house purchase. The Deceased never demanded repayment. Alternatively, if it was a loan, the amount of RM395,000.00 being payments made before 15 November 2015, is now time-barred under Section 6(1) of Act 254. Meanwhile the remaining RM90,000.00 payment was not a repayment but money requested by the Deceased to purchase a car for Desmond.

Luck Shopping Centre The Defendant contends that the Deceased retired from the partnership on 1 January 2020 and gifted his 25% share to the Defendant. This is reflected in Borang P for assessment year 2020, which shows the Deceased held no partnership share.

Titah Development Sdn Bhd Shares The Defendant contends that the Plaintiff held these shares as nominee/trustee for the Deceased, as the Deceased made all payments for the shares. The shares should be distributed to all beneficiaries.

Further, the Defendant also filed a Counterclaim seeking that the following items be added to the Schedule of Assets and Liabilities –

Toyota Corolla Altis 1.8(A) with registration number JHP 1818 (as an asset);

5,000 units of shares in Titah Development Sdn Bhd allegedly held by the Plaintiff as trustee for the Deceased (as an asset);

medical expenses of RM47,950.03 advanced by the Defendant (as a liability);

that the following items be removed from the Schedule of Assets –

25% partnership share in Luck Shopping Centre;

(ii) the alleged loan of RM645,000.00 to the Defendant; and

(iii) Lot Kedai Perling (GRN 283881, Lot 51681, Mukim Pulai);

costs; and

such other reliefs as the Court deems fit.

The Defendant also seeks appointment as co-administrator or sole administrator. He has been managing the estate since the Deceased's death and has the most complete knowledge of estate assets. He relies the decision in Sri Sofiah Moo & Ors v. Syed Gamal Syed Kechik Al-Bukhary [2011] 5 CLJ 744 which clarifies that to Animosity between siblings cannot be grounds for exclusion.

Prior to trial, the parties reached agreement on the following matters –

the Toyota Corolla Altis 1.8(A) with registration number JHP 1818 belonging to the Deceased shall be included in the Schedule of

the medical expenses of RM47,950.03 advanced by the Defendant on behalf of the Deceased shall be included in the Schedule of

accordingly, these items are no longer in dispute and do not require determination by this Court.

At the commencement of the trial, the parties agreed that the following five issues fall for determination by this Court –

whether Lot Kedai Perling (GRN 283881, Lot 51681, Mukim Pulai) forms part of the Deceased's estate;

whether the Defendant is indebted to the Deceased's estate in the sum of RM645,000.00 and if so, whether such claim is barred by

whether the Deceased's 25% share in the proceeds from the sale of Luck Shopping Centre partnership forms part of the estate;

whether the 5,000 units of shares in Titah Development Sdn Bhd registered under the Plaintiff's name form part of the Deceased's estate; and

who should be appointed as administrator of the Deceased's estate - the Plaintiff alone or both parties as co-administrators.

Against these backdrops, the followings are this Court decision and findings.

Before proceeding to the substantive issues, this Court addresses the Defendant's objection to the admission of Enclosures 53, 54 and 71. The Defendant contended these documents were sought to be used only two days before the seventh day of trial. This Court notes that the documents in Enclosure 53 were filed by the Defendant himself on 1 October 2024 pursuant to a Court of Appeal Order dated 28 August

Having filed these documents in compliance with an appellate order, the Defendant cannot now object to their use at trial. The documents have been part of the Court record since October 2024. In any event, this Court’s findings are based primarily on the Defendant's own admissions during cross-examination and the Deceased's handwritten records, not dependent on Enclosures 53, 54 or 71.

Before analysing each issue, this Court makes the following general observation on witness credibility. The Defendant made several significant admissions during cross-examination which contradicted his pleaded case and witness statement. These include: admitting the source of the RM500,000.00 was the Deceased's money; admitting he (not the Deceased) instructed the transfer to Desmond; admitting it was "tidak mungkin" for the Deceased to retire on 1 January 2020; and initially denying then admitting receipt of the RM350,000.00 from the sale of Luck Shopping Centre. These contradictions materially undermine the Defendant's credibility on the core disputed issues. In contrast, the Plaintiff's witnesses were largely consistent in their testimony and the testimony of PW3 (the independent subpoenaed purchaser) was unchallenged.

The evidence establishes the following chronology of ownership – YEAR EVENT 1997 The property was originally purchased by the Deceased for the business of Luck Shopping Centre Sdn Bhd and was registered in the names of his three sons. 2011 PW2 subsequently became the sole registered proprietor for RM328,000.00. 2015-2016 A sale transaction occurred, resulting in PW2 receiving RM800,000.00. 23 August 2016 The property was transferred to Desmond Lim Di Loong via a Deed of Gift citing "love and affection" as consideration.

The central dispute concerns the 2015-2016 transaction. The Plaintiff contends that the Deceased paid RM800,000.00 for the property, specifically RM300,000.00 through Excel Solidpac and RM500,000.00 through the Defendant's account. The Defendant contends that he purchased the property for RM500,000.00 from his own funds.

This Court finds the following admissions by the Defendant in cross-examination to be significant –

the Defendant admitted that he could not have afforded to purchase the property in 1997 as he had no money at that time;

the Defendant at the cross examination agreed that the RM500,000.00 used for the cheque payments to PW2 was "wang bapa anda yang telah masukkan ke dalam akaun HLB"; and

the Defendant admitted at the cross examination "Saya yang suruh" regarding the transfer to Desmond, contradicting his claim that the Deceased directed the transfer.

Furthermore, both PW2 and the Defendant agreed during cross-examination that there was no love and affection between PW2 and Desmond Lim at the material time. This Court is satisfied that this renders the stated consideration in the Deed of Gift illusory. This finding supports the Plaintiff's contention that the instrument is void or voidable under Section 340(2)(b) of the National Land Code, as the stated consideration does not reflect the true nature of the transaction.

As to the property value, this Court observed that the LHDN stamp duty assessment valued the property at RM800,000.00, which corroborates the Plaintiff's case that the purchase price was RM800,000.00 and not RM500,000.00 as claimed by the Defendant.

On the issue of indefeasibility, this Court is guided by the Federal Court decision in Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1, which established that an immediate transferee to vitiating circumstances under Section 340(2) NLC does not enjoy indefeasible title. The proviso in Section 340(3) NLC only protects subsequent purchasers in good faith and for valuable consideration.

In the present case, Desmond Lim was the immediate transferee under a Deed of Gift with illusory consideration of "love and affection" where it is none existed. Additionally, the Plaintiff contends that the transfer was procured through fraudulent misrepresentation by the Defendant to PW2. The applicable principle in Takako Sakao v. Ng Pek Yuen & Anor [2010] 1 CLJ 381 establishes that where property is paid for by one person but registered in another's name, a resulting trust arises in favour of the payer. The Deceased, having paid RM800,000.00 for the property, is the beneficial owner thereof.

This Court now analyst the applicable limb under Section 340(2) NLC. The Plaintiff contends that the transfer falls within Section 340(2)(b) NLC, which provides that title shall be liable to be set aside where the instrument of dealing was obtained by fraud, misrepresentation, forgery, or where the consideration was insufficient or non-existent. In this Court’s view, two limbs are potentially engaged. First, the Defendant's misrepresentation to PW2 that the Deceased had directed the transfer to Desmond, when in fact the Defendant admitted "saya yang suruh," constitutes misrepresentation. Second, the stated consideration of "love and affection" was illusory given the admitted absence of any such relationship between PW2 and Desmond at the material time. Where consideration is stated but does not in fact exist, the instrument is voidable rather than void, and title may be set aside upon application to the Court. However, as Desmond is not a party to these proceedings, this Court cannot make an order directly affecting his registered title. The appropriate course is to make findings as between the parties before me and to fashion relief accordingly.

However, this Court notes that Desmond Lim is not a party to these proceedings. While this Court can make findings as between the Plaintiff and the Defendant regarding whether the property forms part of the Deceased's estate, any order directly affecting Desmond's registered title may require separate proceedings against him.

On the evidence before this Court, this Court finds on a balance of probabilities that the Deceased paid RM800,000.00 for the property through the Plaintiff's company (RM300,000.00) and through the Defendant (RM500,000.00). The Defendant's admissions that the RM500,000.00 was the Deceased's money and that he and not the Deceased instructed the transfer to Desmond are fatal to his defence. Accordingly, this Court finds that the property or its equivalent value forms part of the Deceased's estate.

However, as the legal title is registered in Desmond's name and he is not a party to these proceedings, this Court is unable to make any order directly affecting his title. The question then arises as to the appropriate relief against the Defendant. This Court finds that the Defendant, having received the Deceased's money (RM500,000.00) and having procured the transfer to his own son through misrepresentation to PW2, is personally liable to account to the estate for the value of the property. This liability arises from the Defendant's breach of the fiduciary duty he owed to the Deceased in handling the Deceased's money and from the principle that a person who wrongfully diverts trust property to a third party is liable to make good the loss. (see : Target Holdings Ltd v Redferns (A Firm) And Another [1996] AC 421, applied by the Court of Appeal in IB Capital Sdn Bhd v Ivory Indah Sdn Bhd & Anor [2022] 1 MLJ 860). The administrator may, if so advised, pursue separate proceedings against Desmond for rectification or cancellation of the register under Section 340 NLC.

For completeness, this Court has also observed that the Defendant submitted that there was a contradiction in PW2's evidence on this property. This Court has observed the followings –

What PW2 Said in His Witness Statement (WSSP2, Q4) – In his witness statement, PW2 stated the following – "Selepas saya telah menerima duit penuh daripada bapa kami, bapa kami tidak ada minta saya untuk tukar nama... Beliau memberitahu dan memesan saya bahawa hakmilik Lot Kedai Perling tersebut tidak perlu dipindahkan kepada beliau kerana beliau ingin menghadiahkan Lot Kedai Perling tersebut kepada anak saya, iaitu Ryan Lim Jing

What PW2 Said in Cross-Examination (Pages 56-57 of Nota Keterangan) – Anda menyatakan bahawa bapa anda ingin menghadiahkan Lot Kedai Perling kepada anak anda Ryan Lim Jing Xuan, anda ada memberitahui Plaintif dan ahli keluarga lain tentang ini pada masa itu? Sebenarnya adalah orang lain yang telah memberitahu saya baru saya tahu perkara ini. So, jadi bukan saya yang memberitahu orang lain. Siapakah yang memberitahu anda? Sebenarnya saya telah diberitahu oleh saudara mara saya termasuk Lim Cho Gong iaitu emak saudara saya, Lim Han Ming, abang saya lagi kakak ipar saya, adik perempuan saya dan juga adik ipar saya. Jadi bapa anda ingin menghadiah hadiah kepada anak anda tetapi beliau tidak memberitahu anda? Ya.

PW5's Testimony during cross examination (Page 13 of Nota Keterangan) – Lim Ham Choon pun ada diberitahu dan dipesan sehingga bapa anda meninggal dunia? PW5 : Yang ini saya tidak tahu.

PW6's Testimony during cross examination – Adakah Lim Han Choon yang memberitahui anda bahawa bapa mertua anda ingin menghadiahkan Lot Kedai Perling kepada anak Lim Han Choon? Bukan Lim Han Choon yang memberitahu saya. Siapakah ahli-ahli keluarga tersebut? Lim Cho Gong, Lim Han Ming dan saya. Lim Han Choon tahu ke tidak? Saya tidak pasti.

In summary, PW2 stated in his witness statement (WSSP2, Answer 4) that the deceased directly told him about the intention to gift Lot Kedai Perling to Ryan, but in cross-examination admitted that he was told by other family members including Lim Cho Gong, Lim Han Ming, his sister-in-law, his younger sister and his brother-in-law, and that the deceased never directly told him. SP5 and SP6 also testified that they did not know whether PW2 was told by the deceased.

This Court finds that this contradiction is not material to the Court's findings on Lot Kedai Perling as the said findings are based primarily on the Defendant's own admissions that he received the sum of RM500,000.00 from the deceased to be paid to PW2 and the undisputed fact that the transfer of Lot Kedai Perling to Desmond was effected via love and affection ("kasih sayang") without any sale and purchase agreement. The absence of any sale and purchase agreement, coupled with the Defendant's inability to satisfactorily explain the source of the RM500,000.00 purportedly used to purchase Lot Kedai Perling, supports the Plaintiff's case that the monies came from the deceased and not from the Defendant himself".

The Defendant submitted that the alleged misrepresentation went undetected for approximately four and a half years while the Deceased was still alive, and that this prolonged silence renders the Plaintiff's case implausible. This Court does not find this submission compelling. The evidence establishes that PW2 believed the transfer to Desmond had been carried out on the Deceased's instructions. PW1 testified that she assumed the Deceased would inform his children in his own time. PW5 testified that he did not know when Ryan Lim would attain the age of eighteen. PW6 testified that Ryan was studying overseas during the material period. In these circumstances, the family members had no reason to question the transfer until after the Deceased's death in February 2021, when discussions about the estate revealed the true position. The silence is therefore explained by the family's reasonable assumption that the transfer was in accordance with the Deceased's wishes and does not undermine the Plaintiff's case. Issue (b) : The RM645,000.00 Debt

It is undisputed that the Deceased paid RM645,000.00 from his HLB flexi-loan account (Account No : 07000181355) to the Defendant between 5 July 2012 and 20 July 2017 for the Defendant's house at Taman Pulai Indah. The dispute is whether this was a loan or an inter vivos gift.

The Plaintiff relies on the Deceased's meticulous handwritten records (Exhibit P1, Bundle A pages 259-418), which specifically record each payment under a page titled "Taman Pulai Indah House Lim Han Peng". The Plaintiff argues that such detailed record-keeping is inconsistent with a gift.

The Defendant relies on the presumption of advancement applicable to transfers from father to son, as articulated in Takako Sakao v. Ng Pek Yuen & Anor [2010] 1 CLJ 381. The Defendant also relies on the fact that the Deceased never demanded repayment during his lifetime.

This Court finds that a critical piece of evidence is the payment of RM90,000.00 by the Defendant to the Deceased on 24 October 2016, which is recorded in the Deceased's records. The Plaintiff characterises this as a partial repayment of the loan. The Defendant's explanation, raised only during re-examination, is that this was money for the Deceased to purchase a car for Desmond who was getting his driving license.

This Court finds the Defendant's explanation for the RM90,000.00 payment to be an afterthought. This explanation was not pleaded, not in the Defendant's witness statement, and not put to any of the Plaintiff's witnesses during cross-examination. The late raising of this alternative explanation significantly undermines its credibility.

More fundamentally, this Court observes a logical contradiction in the Defendant's position. The Defendant's primary defence is that the RM645,000.00 was a gift. However, the Defendant also raises a limitation defence under Section 6(1) of Act 254. The limitation defence under Section 6(1) Act 254 applies to contractual claims, including claims for repayment of loans. By raising the limitation defence, the Defendant implicitly acknowledges that this was a loan and not a gift. A gift, if valid, would not be subject to a limitation period for recovery because there is no debt to recover. This internal contradiction in the Defendant's case is fatal. The Defendant cannot simultaneously maintain that the money was a gift (which creates no debt) whilst also asserting that any claim for recovery is time-barred under Act 254 (which presupposes the existence of a debt). The two positions are mutually exclusive. This Court finds that by raising the limitation defence, the Defendant has implicitly conceded the loan character of the transaction.

On the evidence before this Court, this Court finds that the presumption of advancement is rebutted by the following factors –

the Deceased's meticulous record-keeping of every payment with dates and amounts, which is inconsistent with a gift;

the RM90,000.00 payment from the Defendant to the Deceased in October 2016, which this Court finds to be a partial repayment; and

the Defendant's own reliance on the limitation defence, which presupposes a debt relationship.

This Court has considered the testimony of DW1, an independent witness, who testified that the Deceased told him the Pulai Indah House was a gift to the Defendant (WSSD-1, Q&A 4). While DW1's testimony is noted, this Court is unable to accord it significant weight for the following reasons. First, DW1's evidence is oral testimony of an alleged statement by the Deceased, which must be weighed against the Deceased's own contemporaneous documentary records - the meticulous handwritten entries recording each payment with dates and amounts. Where there is a conflict between contemporaneous documentary evidence and oral testimony of what someone allegedly said, the documentary evidence is generally to be preferred (see : Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229). Second, DW1 was not privy to the financial arrangements between the Deceased and the Defendant, and his testimony merely recounts what the Deceased allegedly told him without knowledge of the underlying transaction. Third, even accepting that the Deceased may have described the house as being "for" the Defendant, this does not negate the loan character of the monies advanced. A father may lend money to a son to purchase a house that is intended for the son's use. The loan and the intended benefit are not mutually exclusive.

On the limitation issue, the Plaintiff relies on Section 26(2) Act 254, which provides that where a person liable for a debt makes a payment in respect thereof, the right of action shall be deemed to have accrued on the date of payment. The RM90,000.00 payment on 24 October 2016 constitutes acknowledgment. The Originating Summons was filed on 15 November 2021, which is within six years of 24 October 2016. Accordingly, this Court finds that the limitation defence fails.

This Court therefore finds that the Defendant is indebted to the Deceased's estate in the sum of RM555,000.00 (being RM645,000.00 less the partial repayment of RM90,000.00). Issue (c) : Luck Shopping Centre (25% Partnership Share)

Based to the evidence, Luck Shopping Centre was a partnership operating a supermarket at Taman Pulai Indah. The Deceased was a registered partner holding 25% of the partnership. The business was sold in November 2020.

The Defendant contends that the Deceased retired from the partnership on 1 January 2020 and gifted his 25% share to the Defendant. This is supposedly reflected in Borang P for assessment year 2020, prepared by Tetuan LK Chai & Associates.

However, the following evidence undermines the Defendant's case –

the SSM business profile search dated 12 April 2021 (after the Deceased's death) still shows the Deceased as a 25% partner. No withdrawal form or transfer documentation was produced by the

the legal effect of the SSM registration is governed by Section 6(1) of the Registration of Businesses Act 1956 [Act 197], which provides that when a person is recorded in the register as an associate of a business, it shall be evidence against him or any person claiming through or under him that he was such an associate, unless it is proved that such person was not at any material time such an associate and that he was recorded as such through a bona fide mistake, or without his knowledge and in fraud of him. Further, Section 6(4) Act 197 provides that a certificate of registration shall be prima facie evidence of the truth of the facts stated therein. The Defendant has not alleged, let alone proved, that the Deceased's registration as partner was through any bona fide mistake or without the Deceased's knowledge. Accordingly, the burden on the Defendant to rebut the SSM registration has not been discharged;

the Defendant admitted in cross-examination that it was "tidak mungkin" (impossible) for the Deceased to transfer his partnership share on 1 January 2020 because the Deceased had fallen and was hospitalised at the end of 2019, was discharged on 7 December 2019 with a blood clot in the brain and his first outing was only on 11 January 2020 for a wedding dinner;

Borang P was prepared on 15 September 2021, after the Deceased's death and the Defendant admitted instructing the tax agent to insert the retirement date of 1 January 2020; and

PW3, the subpoenaed purchaser of the business, testified that he paid approximately RM350,000.00 in cash for stocks and fittings. This testimony was unchallenged. The Defendant initially denied receiving this sum in his pleadings (paragraph 13 of the Amended Defence) but later admitted it during cross-examination. This contradiction undermines the Defendant's credibility. Furthermore, this RM350,000.00 was not accounted for in the partnership accounts, raising concerns about the accuracy of the accounts submitted to LHDN.

The Defendant relies on Michael Sim Hang Chuang v Syarikat Sri Puspa & Ors [2000] 6 MLJ 189 for the proposition that oral notice of retirement under Section 28(1) of the Partnership Act 1961 [Act 135] is sufficient. This Court has considered this authority. In Michael Sim Hang Chuang, the High Court held that where the three partners had discussed and agreed at a meeting that the plaintiff would withdraw from the partnership for a consideration of RM150,000.00, it could be safely inferred that the plaintiff had complied with Section 28(1). However, the High Court also explained that because the consideration was not paid and there was no transfer of the plaintiff's shares to the other partners, the plaintiff remained a registered partner until the date of judgment.

The present case is distinguishable. First, the Defendant has adduced no evidence of any meeting, discussion, or communication, whether oral or written, in which the Deceased expressed an intention to retire from the partnership. Second, and more fundamentally, the Defendant himself admitted in cross-examination that it was "tidak mungkin" (impossible) for the Deceased to transfer his partnership share on 1 January 2020 given the Deceased's medical condition at the material time. This admission is fatal to the Defendant's case on retirement regardless of whether oral notice would otherwise suffice under Section 28(1) Act 135. Third, there is no evidence of any transfer of the Deceased's 25% share to the Defendant or any other partner. In the circumstances, Michael Sim Hang Chuang does not assist the Defendant.

The Defendant contends that the Plaintiff's claim for net current assets and partner drawings was not pleaded, as the Statement of Claim only refers to "25% bahagian daripada hasil jualan perkongsian". This Court is unable to accept this contention. When a partnership is sold or wound up, a partner's entitlement to their share necessarily encompasses all components of the partnership value, including net current assets and the proper accounting of partner drawings. The phrase "hasil jualan perkongsian" (proceeds from the sale of the partnership) is sufficiently broad to include these items. In any event, Order 18 Rule 7 ROC 2012 provides that pleadings must contain material facts, not evidence. The quantification of the Deceased's 25% share is a matter of evidence and calculation, not a material fact requiring specific pleading. The Defendant, being the partner who managed the partnership and received the sale proceeds, was fully aware of the partnership accounts and cannot claim to have been taken by surprise.

The Defendant's admission that it was impossible for the Deceased to transfer his partnership share on 1 January 2020 is fatal to his defence on this issue. This admission, combined with the absence of any documentary evidence of a valid transfer and the continued SSM registration showing the Deceased as partner, leads me to find that the Deceased remained a 25% partner at the time of the business sale.

Based on the balance sheet analysis, the Plaintiff calculates the estate's entitlement at approximately RM658,690.73, comprising net current assets, partner drawings and the RM350,000.00 unaccounted sale proceeds. This Court finds that the estate is entitled to 25% of the partnership value and sale proceeds. Issue (d) : Titah Development Sdn Bhd Shares (5,000 Units)

The 5,000 shares in Titah Development Sdn Bhd have been registered under the Plaintiff's name since 11 November 2011. The Defendant contends that the Plaintiff held these shares as nominee/trustee for the Deceased because the Deceased made all payments for the shares.

This Court relies to the applicable principle in Takako Sakao v. Ng Pek Yuen & Anor [2010] 1 CLJ 381, which establishes that where property is registered in another's name but paid for by the true owner, a resulting trust may arise. However, where the relationship is one giving rise to the presumption of advancement (such as father to son), the presumption of gift applies instead.

This Court notes that the Plaintiff's shares have been registered in his name for over nine years during the Deceased's lifetime without any challenge from the Deceased. The Defendant only raised this issue in his Affidavit in Reply dated 11 August 2022 in OS 513 and notably did not dispute the shares in the solicitors' correspondence of 1 December

The belated nature of this claim, raised only after the commencement of proceedings and not in the initial pre-litigation correspondence, supports the inference that this is an afterthought rather than a genuine belief held at the material time.

This Court also observes an inconsistency in the Defendant's application of legal principles. The Defendant invokes the presumption of advancement in Takako Sakao v. Ng Pek Yuen & Anor [2010] 1 CLJ 381 to support his claim that the RM645,000.00 was a gift from father to son. Yet, for the Titah Development shares, the Defendant argues the opposite - that a resulting trust arises despite the same father-to-son relationship. The Defendant cannot selectively apply the presumption of advancement to benefit his own position whilst denying its application to the Plaintiff in identical circumstances.

However, this Court also notes the Plaintiff's testimony during examination-in-chief where he stated : "Jika Defendan Lim Han Peng mahu masukkan 5000 unit saham... ke dalam harta pusaka bapa saya maka Lim Han Peng perlu memasukkan RM645,000.00 sekali ke dalam harta pusaka". This "trade-off" proposal suggests that the Plaintiff himself may harbour doubts about the shares being absolutely his.

Applying the presumption of advancement (father to son) and considering the prolonged registration under the Plaintiff's name without objection from the Deceased, this Court finds on a balance of probabilities that the shares were an inter vivos gift to the Plaintiff and do not form part of the estate.

For completeness, this Court also considers the Defendant's submission that the Plaintiff allowed the Defendant to continue making payments for the Titah shares for about one year after the deceased died, which allegedly shows the Plaintiff understood the shares were part of the estate. On this, this Court observed the following evidences–

What SP5 (the Plaintiff) Admitted in Cross-Examination – Okay selepas itu transaksi daripada 24.3.2021 sehingga November tahun 2021 adalah bayaran daripada Lim Han Peng, betul? PW5 : Betul. Adalah Defendan yang membuat bayaran selepas bapa anda meninggal dunia. Betul? PW5 : Betul. Anda hanya mula membuat bayaran dalam Februari tahun 2022. Betul? PW5 : Betul. Itu adalah kira-kira setahun selepas bapa anda meninggal dunia. Setuju? PW5 : Betul.

SP5 Denied the Inference – DF: Anda membiarkan Defendan membuat bayaran bagi saham Titah tersebut untuk setahun kerana anda tidak tahu saham tersebut didaftar di bawah nama anda. Setuju? PW5: Tidak betul.

SP5's Explanation in Re-Examination – PW5 : Defendan buat bayaran dengan menggunakan wang adik beradik kami. Saya cakap macam ini adalah kerana Defendan mengutip sewaan bapa saya untuk membuat bayaran ini. Jadi wang ini bukannya wang Defendan. PW5 : Saya tidak tahu kenapa Defendan tolong saya bayarkan yang 5000 unit saham ini. Yang 5000 unit saham ini adalah dibeli oleh bapa saya kepada saya.

SP6's Position during cross examination – Suami anda membiarkan Defendan membuat bayaran bagi saham Titah tersebut kerana anda dan suami anda tidak tahu saham tersebut didaftar di bawah nama beliau, setuju? SP6 : Tidak setuju.

In summary, while the Plaintiff admitted that the Defendant made payments from March 2021 to November 2021, the Plaintiff denied that he 'allowed' this because he did not know the shares were registered in his name. The Plaintiff explained that the Defendant was using money from the deceased's rental collection, not his own money. This Court finds that the Defendant's continued payment of the shares is consistent with his role as the person who assisted the deceased in managing payments and does not support the inference that the shares belong to the estate. The fact that the Defendant continued to make payments using rental monies collected on behalf of the deceased is entirely consistent with his established role as the deceased's helper in financial matters and cannot be construed as the Plaintiff's acknowledgment that the shares form part of the estate.

The Plaintiff seeks appointment as sole administrator, supported by three out of four beneficiaries. The Defendant seeks co-administration or sole administration.

Under Section 30 of the Probate and Administration Act 1959 [Act 97], the Court shall have regard to the rights of all persons interested in the estate. The proviso to Section 30 of Act 97 further provides that where the deceased died wholly intestate, administration shall be granted to persons interested in the residuary estate unless special circumstances dictate otherwise. The general principle, as stated in In the Estate of Ngau Ken Lock (Deceased) (Ngau Voon Kiat, Petitioner) [2002] 4 MLJ 74, is that the Court normally recognises the wishes of the majority of beneficiaries.

Similarly, the Defendant's reliance on The Estate of Tan Sri Datuk Syed Kechick @ Syed Bakar Bin Syed Mohamed (Deceased)[2011] 3 MLJ 665 is misplaced. In that case, the High Court appointed co-administrators where neither party had cross-claims against the other in respect of estate assets. Here, the Defendant is personally a debtor of the estate and has claims of the estate outstanding against him. The conflict is not merely hypothetical but actual and subsisting.

The Defendant relies on Sri Sofiah Moo, where the Court of Appeal held that animosity or acrimony cannot be a good ground for exclusion from co-administration. However, this Court finds that Sri Sofiah Moo is distinguishable on its facts. In that case, the objection to co-administration was based on mere animosity between siblings. In the present case, there are substantial claims by the estate against the Defendant personally, which creates a real and not merely potential conflict of interest.

The present case involves more than mere animosity. The Plaintiff has established substantial claims against the Defendant personally –

the Defendant is indebted to the estate in the sum of RM555,000.00;

the Defendant must account for the estate's 25% share in Luck

the Defendant procured the transfer of Lot Kedai Perling to his son through misrepresentation.

As observed in Long (as administrator of the estate of Rodman deceased) v Rodman and others [2019] EWHC 753 (Ch) – "Where the personal representative is or may be in a position of conflict because of intimated claims against him which need to be investigated, this is a material consideration".

The conflict of interest here is stark. If appointed co-administrator, the Defendant would need to collect from himself the debt of RM555,000.00, account to himself for the partnership proceeds and potentially pursue his own son for the return of Lot Kedai Perling. This creates an untenable situation incompatible with the duties of an administrator.

This Court further observes that the Defendant's conduct in managing and dealing with the Deceased's estate assets without a grant of administration amounts to intermeddling with the estate. In Kerajaan Malaysia v Yong Siew Choon [2006] 1 MLJ 1, the Federal Court held that a person who inter-meddles with the estate of a deceased person without authority is an executor de son tort and is subject to all the liabilities of an executor or administrator but acquires none of the rights or privileges thereof. The Defendant, having taken possession of estate documents, collected rental income, managed estate properties, dealt with the sale of Luck Shopping Centre and refused to account to the other beneficiaries, has by his conduct assumed the role of administrator without the authority of this Court. This further supports the conclusion that the Defendant is unsuitable for appointment as co-administrator, as one who has inter-meddled without authority and failed to account should not be entrusted with the formal powers of administration.

Furthermore, this Court notes the following conduct by the Defendant which raises concerns about his suitability –

the Defendant retained all estate documents and refused to provide copies to other beneficiaries;

the Defendant changed the automatic gate lock at the Deceased's property without informing other beneficiaries; and

the Defendant proposed excluding the youngest sister (Lim Siow Hong) from the estate distribution, which he admitted was a source of family dispute.

For these reasons, this Court finds that the Plaintiff should be appointed as sole administrator. The Defendant's rights as beneficiary are protected, he remains entitled to his one-quarter share and may pursue legal remedies if the administrator commits any breach of duty.

For the reasons stated above, this Court makes the following findings and orders – Issue (a) : Lot Kedai Perling – This Court finds that the Deceased paid RM800,000.00 for this property. The property or its equivalent market value forms part of the Deceased's estate. Issue (b) : RM645,000.00 – This Court finds that the RM645,000.00 paid by the Deceased to the Defendant was a loan and not a gift. The claim is not barred by Act 254 by virtue of Section 26(2) thereof. The Defendant is indebted to the Deceased's estate in the sum of RM555,000.00 (being RM645,000.00 less partial repayment of RM90,000.00). Issue (c) : Luck Shopping Centre – This Court finds that the Deceased remained a 25% partner at the time of the business sale in November 2020. The Deceased's 25% share in the proceeds from the sale of the partnership forms part of the estate. Issue (d) : Titah Development Shares – This Court finds that the 5,000 shares in Titah Development Sdn Bhd were an inter vivos gift from the Deceased to the Plaintiff. These shares do not form part of the Deceased's estate. Issue (e) : Administrator Appointment – This Court finds that the Plaintiff should be appointed as sole administrator of the Deceased's estate. The Defendant is excluded from co-administration due to the substantial conflict of interest arising from the claims against him personally.

Accordingly, this Court makes the following orders –

Letters of Administration for the estate of Lim Kiang Hiong (Deceased) shall be granted to the Plaintiff, Lim Han Ming [NRIC No. : 650604-01-5890] as sole administrator;

the Defendant shall pay to the estate the sum of RM800,000.00, being the purchase price paid by the Deceased for Lot Kedai Perling, or alternatively the current market value of the property as at the date of this judgment to be determined by a registered valuer agreed upon by the parties or, failing agreement within thirty (30) days, appointed by the Court, whichever is higher. This order is made on the basis that the Defendant is personally liable to account for the value of the property by reason of his breach of fiduciary duty and his wrongful diversion of the Deceased's money to his own son. The administrator shall have liberty to pursue separate proceedings against Desmond Lim Di Loong for rectification or cancellation of the register under Section 340 of the National Land Code if so advised;

The Defendant shall pay to the estate the sum of RM555,000.00;

The Defendant shall account to the estate for 25% of the partnership value and sale proceeds of Luck Shopping Centre, to be calculated in accordance with the partnership accounts and including the RM350,000.00 cash payment for stocks and fittings. For this purpose, the administrator shall, within six (6) months of the grant of Letters of Administration, engage a qualified accountant to verify the partnership accounts and quantify the estate's 25% entitlement. The Defendant shall provide all partnership books, records and bank statements to the administrator within thirty (30) days of the date of this order. Liberty to apply is granted in the event of any dispute arising from the accounting exercise;

The Defendant's Counterclaim is dismissed, save for the matters agreed prior to trial as recorded in paragraph 12 above, namely the inclusion of the Toyota Corolla Altis 1.8(A) JHP 1818 as an asset and the medical expenses of RM47,950.03 as a liability of the estate;

in light of the familial nature of this dispute, each party shall bear their own costs; and

Interest at the rate of 5% per annum on the sums found due from 15 November 2021 (being the date of filing of Originating Summons No : JA-31NCvC-513-11/2021, which was subsequently converted to this Writ action) until full payment. Dated : 30 January 2026 -signed-Dr Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Plaintiff : Pang Kong Seng together with Low Song Kuan : Messrs. K. S. Pang & Co. Solicitor for the Defendant : Chan Kah Yee together with Chu Cia Min : Tetuan Arthur Lee & Company