Logammah A/P Ramasamy v Darasamy A/L Raju (BA-24NCvC-382-02/2025)

Both parties are co-proprietors of a piece of land registered as No. H.S.(D) 257352, PT 15549, Mukim Damansara, Daerah Petaling, Selangor Darul Ehsan (“Land”).

The Plaintiff owns two-thirds of the Land (“Plaintiff’s Property”) and the Defendant owns one-third of the Land (“Defendant’s Property”).

The Plaintiff contends that due to the Defendant’s abandonment of the matrimonial home and failure to meet obligations, the Defendant’s Property should be transferred to the Plaintiff.

The main issue here is whether the Defendant must transfer the Defendant’s Property to the Plaintiff.

In this case, the Plaintiff has chosen the Originating Summons (“OS”) as the mode of commencing proceedings against the Defendant.

The commencement of proceedings by way of OS is provided under Order 5 rule 4(1) of the Rules of Courts 2012 (“RC 2012”).

Order 5 rule 4(1) of the Rules of Courts 2012 provides: “(1) Proceedings:

in which the sole or principal question at issue is or is likely to be one of the construction of any written law or of any instrument made under any written law, or of any deed, will, contract or other document, or any other question of law; or

in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 81 or for any other reason considers the proceedings are more appropriate to be begun by writ.” (emphasis added)

Under Order 5 rule 4(1)(b) of RC 2012, it would be appropriate to commence proceedings by way of OS if it is unlikely to involve substantial disputes of fact.

The 2024 Edition of the Malaysian Civil Procedure Volume I, also known as the White Book, clearly explains how to commence proceedings by using OS. “5/4/5 Example-In the case of Au Poh Weng Lawrence & Anor v Tan Huay Lian Annie [1972–1974] SLR 365; [1972] 2 MLJ 124 it was held that “It is clear that where contentious issues of fact are likely to be involved an originating summons is not a reasonable mode of commencing proceedings even though O 5 r 4 empowers a plaintiff to institute proceedings either by originating summons or by writ”. So also claims of contentious nature by beneficiaries against trustees, charging breach of trust or default in performance of their duties, while properly constituted if commenced either by writ or originating summons, should normally be commenced by writ (see Re Sir Lindsay Parkinson & Co Ltd.’s Settlement Trusts [1965] 1 All ER 609; [1965] 1 WLR 372, Chad; approved in Au Poh Weng Lawrence & Anor v Tan Huay Lian Annie (above)).” “28/0/3 Proceedings may be begun by originating summons where there is unlikely to be any substantial dispute of facts or where the sole or principal question at issue is or is likely to be one of the construction of any written law or of any instrument made under any written law, or of any deed, will, contract or other document, or any other question of law (Order 5 r 4). Proceedings by which an application is to be made to the court or a judge under any written law shall be begun by originating summons (Order 5 r 3). See further paras 5/1/1 and 7/1.” (emphasis added)

In a nutshell, an OS is used when there is no substantial dispute of fact.

The Plaintiff’s late father purchased the Land and made the Defendant the proprietor of the Defendant’s Property under the condition that the Defendant would take care of the Plaintiff and her family.

The Defendant abandoned the matrimonial home and neglected all his children.

Since the Defendant had left the matrimonial home and failed to provide support, the Defendant’s Property should be transferred to the Plaintiff.

The Defendant received the Defendant’s Property as a gift upon marrying the Plaintiff.

No conditions were imposed on the Defendant concerning the proprietorship of the Defendant’s Property.

Before evaluating the merits of the Plaintiff’s claim, I need to examine the affidavits filed by both parties.

It is crucial to determine if there are substantial disputes of fact that cannot be settled solely by relying on affidavit evidence.

After having perused the affidavits filed by both parties, there are substantial disputes of fact that cannot be resolved solely by relying on the affidavit evidence.

I will elaborate on the substantial disputes of fact in the following paragraphs.

The Plaintiff contended that her late father agreed to make the Defendant a co-proprietor of the Land contingent upon the Defendant caring for her and her family (“Purported Condition”), which the Defendant denied (“First Substantial Dispute Of Fact”).

The First Substantial Dispute Of Fact cannot be resolved solely by way of affidavit evidence because of the following reasons:

vide two letters dated 1 March 2024 (Exh. “L-3” of Encl.6), Parvathi a/p Rajoo and Maramah a/p Rajo, who happen to be the sisters of the Defendant, expressed the following: “Saya menyatakan di sini bahawa bapa Pn. Logoammah A/P Ramasamy (No.K/P:610811-10-6326) telah memberikan 1/3 bahagian ke atas rumah kediaman mereka di H.S(D) 57352, Lot No.PT15549, Mukim Damansara, Daerah Petaling, Negeri Selangor sebab adik saya telah berkahwin dengan Logoammah A/P Ramasamy (No. K/P: 610811-10-6326)”

however, in a letter dated 1 March 2024 (Exh. “L-3” of Encl.6), Munusamay a/l Govindasamy said otherwise: “…Akan tetapi, simati telah mengenakan syarat bahawa 1/3 bahagian hanya kekal milik menantunya Darasamay A/L Raju (No.K/P:5614497) sekiranya dia menjaga anaknya dengan baik dan hubungan perkahwinan mereka kekal selama-lamanya. Saya adalah saksi utama dalam urusan tersebut …”

it is imperative to note that all the above statements derived from three letters dated 1 March 2024 produced by the Plaintiff in

based on the above statements, there are now two different positions taken by the Plaintiff:

according to Parvathi and Maramah, the Defendant received the Defendant’s Property as a gift from the Plaintiff’s late father when the Plaintiff married the Defendant. Nothing was mentioned about the Purported

(ii) however, according to Plaintiff and Munusamay a/l Govindasamy, the Plaintiff’s late father imposed the Purported Condition on the Defendant;

the above substantial disputes of fact arose from the Plaintiff’s own documents;

the issue of whether the Plaintiff’s late father imposed the Purported Condition on the Defendant can only be resolved by way of viva voce (examination in chief, cross-examination and re-examination);

as for Munusamay a/l Govindasamy, he has expressed his willingness to testify in court. “Ini adalah keterangan saya secara surat dan saya sedia datang ke Mahkamah jika Darasamay A/L Raju (No. KP: 5614497) membawa kes ke atas harta tanah ini.”

The Plaintiff contended that the Defendant had agreed to transfer the Defendant’s Property to the Plaintiff on the condition that the Plaintiff would agree to divorce him.

In paragraph 7 of Enclosure 3, the Plaintiff asserted that a divorce petition had been filed, and she agreed to the petition on the condition that the Defendant would transfer the Defendant’s Property to her. She said this: “Semasa pendengaran kes tersebut, saya bersama 4 orang anak, ada hadir ke Mahkamah. Pada masa itu, saya memaklumkan bahawa saya bersetuju dengan permohonan penceraian tersebut dengan syarat Responden harus melepaskan hak ke atas hartanah ini sebab Responden tidak menyumbang apa-apa wang dan segala harga belian ditanggung oleh bapa saya. … Manakala anak-anak saya juga telah menyaksikan pendengaran tersebut. Akan tetapi tiada Perintah penceraian diserahkan kepada saya sehingga kini”

The Plaintiff also emphasised that her children witnessed the oral agreement reached between the Plaintiff and the Defendant, whereby the Defendant’s Property would be transferred to the Plaintiff, contingent upon them getting divorced.

The Defendant denied being divorced by the Plaintiff and maintained that he is still married to the Plaintiff. To fortify his stand, the Defendant produced an extraction of marriage register no.179193 dated 30 May 2025 issued by the Registrar of Marriages (Exh.“DR-1” of Encl. 5) (“Second Substantial Dispute Of Fact”).

Contrary to what the Defendant said earlier, in a joint statutory declaration dated 7 March 2024, Leximy a/p Darasamy, Thenmoli a/p Darasamy, and Veeramal a/p Darasamy (the children of the Plaintiff & Defendant) stated that their parents were already divorced: “(5) Pada tahun 2006, bapa kami telah ceraikan Ibu kami dimana kami semua pergi ke Mahkamah Tinggi Shah Alam untuk menyokong tuntutan ibu kami. Ibu kami hanya ceraikan bapa kami setelah bapa kami lepaskan hak ke atas rumah kami. Ini kerana rumah kami telah dibeli oleh datuk kami dan kami terus tinggal disini.

Maka bapa kami tiada hak ke atas rumah kami dan kami akan ke Mahkamah jika bapa kami secara salah menuntut hak ke atas rumah milik ibu kami.” 11 27. The above joint statement was supported by two other similar statements issued by Parvathi a/p Rajoo and Maramah a/p Rajo, the Defendant’s sisters, in two separate letters dated 1 March 2024 (Exh. “L-3” of Encl.6). They said this: “Adik saya telah bercerai dengan Logoammah A/P Ramasamy (No.K/P:610811-10-6326) dan sekian lama tinggal bersama dengan isteri kedua.”

However, after the Defendant filed his affidavit in reply in Enclosure 5, the Plaintiff took a different stand in Enclosure 6 by saying that they were still married: “Saya rasa Responden yang takut pada tuntutan saya, telah batal penceraian tanpa pengetahuan saya. Saya amat hairan, Responden tidak ceraikan saya tapi berkahwin lain…”

In the absence of Decree Nisi and Decree Absolute, the issues of whether both parties remain married and whether there was an agreement to transfer the Defendant’s Property subject to divorce are substantial disputes of fact, as they relate to the Purported Condition.

The Plaintiff contended that her late father was coerced into naming the Defendant as a co-proprietor of the Land. The Defendant refuted this claim (“Third Substantial Dispute Of Fact”). This point is also pertinent to the issue of Purported Condition.

Vide the letter dated 1 March 2024 (Exh. “L-3” of Encl.6), Munusamay a/l Govindasamy also said that the Defendant had relinquished his claim over the Defendant’s Property. The Defendant refuted this allegation (“Fourth Substantial Dispute Of Fact”).

The Learned Counsel for the Plaintiff raised the issue of resulting trust for the first time by way of written submission and argued that the Defendant was only holding the Defendant’s Property on trust for and on behalf of the Plaintiff’s late father: “Adalah dihujahkan bahawa pembelian harta tanah oleh lebih orang seperti dalam kes ini lalu mendaftarkan ke atas nama bersama tanpa sebarang pengisytiharan, maka Responden hanya memegang harta ini di bawah prinsip “resulting trust” dan bukan sebagai beneficial yang berhak ke atas harta tanah ini. Pemohon membuktikan bahawa pendaftaran nama Responden sebagai pemilik bersama adalah berdasarkan niat bapanya semata-mata bagi manfaat Pemohon. Niat bapa simati telah dibuktikan melalui keterangan saksi dalam ekshibit L-3 di mana kesemua ahli keluarga Responden sendiri mengetahui Responden adalah seorang yang tidak bertanggungjawab yang menyebabkan bapa Pemohon menurun milik 1/3 bahagian harta tanah tersebut.”

The Defendant denied any condition attached to the Defendant’s Property (“Fifth Substantial Dispute Of Facts”).

It is pertinent to note that ‘resulting trust’ is not mentioned anywhere in the affidavits. This is a submission from the bar by the Learned Counsel for the Plaintiff, and it should not be allowed (Union De Banques Arabes Et Francaises Singapore Branch v. Prodimex

Even if the Purported Condition is considered as a ‘resulting trust’, there is no clear evidence in the affidavits regarding the three elements required to establish a valid trust; certainty of words, certainty of subject and certainty of object (Ong Kong Beng & Anor v Ong Kong Leong & 3 Ors [2021] 3 MLJ 536),

I am of the view that the appropriate way to determine if a valid ‘resulting trust’ exists is to take this issue to a full trial.

Vide the letter dated 1 March 2024 (Exh. “L-3” of Encl.6), Munusamay a/l Govindasamy claimed that the Plaintiff’s late father created a will that bequeathed all of his assets to the Plaintiff (“Will”). This purported Will is mentioned only in Munusamay’s correspondence. A copy of the Will has not been produced here. As of now, the existence of the Will is a mere allegation (“Sixth Substantial Dispute Of Fact”).

I am of the view that OS is not the appropriate mode of proceeding to address all of the foregoing substantial disputes of fact.

The substantial disputes of fact cannot be resolved solely by way of affidavit evidence. They should be resolved through viva voce.

I am also guided by the decision of Noor Ruwena Md Nurdin J in Dharmaraj Keresan @ Krishnan & Ors v. Subramaniam @ Pillai Muthu Karapan & Ors [2025] MLRHU 1658. In that case, Her Ladyship had this to say: “[19] Order 5 r 4(1)(a) of the ROC allows for originating summons to be used where the principal question at issue is the construction of a written documents, such as a written law, instrument made under any written law, any deed, will, contract other document, or where the parties want to raise a question of law to be determined by the court. Nevertheless, in this case, there were many issues raised in the affidavits of the parties and as listed by the Plaintiffs themselves in their submissions. In this Court’s view, it may necessitate a full trial to be held instead where witnesses can be called for examination by the opposing party. The Court would need to assess the truthfulness of witnesses on both sides to determine whether the Plaintiffs claim has been proved on a balance of probabilities: Huslig Mok v. Junda Realty Development Sdn Bhd &Anor [2014] 2 MLRA 630; [2014] 3 MLJ 496; [2014] 2 CLJ 205 CA.” (emphasis added)

It is also pertinent to note that Leximy a/p Darasamy, Thenmoli a/p Darasamy, Veeramal a/p Darasamy, and Munusamay a/l Govindasamy, who support the Plaintiff, are ready to testify in court.

Based on the foregoing reasons, all the substantial disputes of fact and merits of the Plaintiff’s claim should be resolved by way of viva voce.

I therefore dismiss Enclosure 1 with cost of RM5,000.00, subject to payment of allocatur fees. Dated 17 September 2025 SGD HELMI BIN HAMZAH JUDICIAL COMMISSIONER HIGH COURT OF MALAYA AT SHAH ALAM NEGERI SELANGOR Counsel for the Plaintiff : Ms. Kavita Ramachandran (Messrs. R. Kavitha & Co.) Counsel for the Defendant : Ms. K. Bagia Sri Devi Krishnamoorthi (Messrs. The Law Offices Of Sri