Manivanna Meyyappa v 1. ) 1. Teh Koy Tiang @ Teh Kooi Tean (PA-22NCVC-67-04/2016)

This is a dispute over the sale of three pieces of land with buildings thereon that were subsequently compulsorily acquired by the State.

The Plaintiff is an individual suing the First to Fifth Defendants as representative and administrator de bonis non of the estate of Kannappan @ Chinna Karuppan @ Chinna Karuppan Chettiar s/o Ramasamy Chettiar (“Estate of Kannappan”) pursuant to Penang High Court Order dated 20 October 2014.

The First to Fourth Defendants are individuals and are defending the Plaintiff’s claim as devotees and trustees of the Kwang Tung & Teng Chow Tok Pek Kong Chinese temple at Bayan Lepas, Penang as well as trustees of the Pertubuhan Penganut Dewa Tok Pek Kong Kwang Tung dan Teng Chow (No. Pertubuhan PPM- 007-07-14081995) (“Society”) after it was duly registered pursuant to the Societies Act 1966. 4

The Fifth Defendant is defending the Plaintiff’s claim as representative and office bearer of the Society.

By counterclaim, the First to Fifth Defendants are reciprocally suing the Plaintiff as representative and administrator de bonis non of the Estate of Kannappan, the Land Administrator, Daerah Barat Daya Pulau Pinang and the Plaintiff personally as defendants respectively.

The disputes between the parties concern the ownership of 2/3 undivided shares of 3 pieces of land known as Lot 48, Lot 1002 and Lot 1006, Mukim 12, Daerah Barat Daya, Pulau Pinang (individually “Lot 48”, “Lot 1002” or “Lot 1006” respectively and collectively “Properties”) and the consequential entitlements as the result of acquisition of the Properties by the State Government.

The Plaintiff claimed the following against the First to Fifth Defendants based principally on deceit and fraud in the Re-re-amended statement of claim in this suit:

A declaratory order that the Plaintiff as administrator of the Estate of Kannappan is a trustee for the estate of the 5 deceased and registered and beneficial owner of the first property and second property known as 2/3 Lot 1002 GM 767 and 2/3 Lot 1006 GM 817, Mukim 12, Daerah Barat Daya, Pulau Pinang;

A declaratory order that the registration of the land held under 2/3 Lot 1002 GM 767 and 2/3 Lot 1006 GM 817, Mukim 12, Daerah Barat Daya, Pulau Pinang in the name of the First to Fourth Defendants are invalid and void;

A Court Order directing the Land Administrator Pulau Pinang to cancel the names of the First to Fourth Defendants in the documents of title for the part of the 2/3 Lot 1006 that has not been acquired from the records of the land registry and substitute the Plaintiff as the trustee for the estate of the deceased within (7) days from the date of this Order;

The compensation sum of RM409,670.00 for the acquisition of the Property for 2/3 Lot 1002 and 2/3 Lot 1006 be paid to the Plaintiff as the administrator of the estate of the deceased; 6

Exemplary and general damages to be assessed and paid by the First to Fifth Defendants to the Plaintiff for fraud and deceit as well as conspiracy to defraud;

Costs; and

Such further or other relief as deem fit and proper by this Honourable Court.

By Counterclaim, the First to Fifth Defendants claimed the following against the defendants therein based principally on fraud, negligence or mala fide conduct in their Re-re amended defence and counterclaim in this suit:

A declaration that Kannappan @ Chinna Karuppan @ Chinna Karuppan Chettiar s/o Ramasamy Chettiar as administrator with ‘liberty to sell’ holds 2/3 of Lot 48, Bandar Bayan Lepas, Daerah Barat Daya, Pulau Pinang held under grant 43804 in trust for the Defendants;

A declaration that the compensation sum of RM1,736,338.00 for the acquisition of 2/3 of Lot 48, Bandar Bayan Lepas, 7 Daerah Barat Daya, Pulau Pinang held under Grant 43804 is owned by the Defendants;

An Order that the Plaintiff and the Land Adminstrator, Daerah Barat Daya jointly or severally pay the compensation sum of RM1,736,338.00 to the Defendants within seven (7) days from the date of this Order;

Interest at the rate of 5% per annum on RM1,736,338.00 from the date of judgment till full realization;

General damages to be assessed against the Plaintiff and the Land Administrator Daerah Barat Daya and paid to the

Interest at the rate of 5% on the general damages from the date of filing of the writ till full realization;

Costs; and

Such further or other relief as deem fit and proper by this Honourable Court. 8

The pleadings were amended thrice and eventually the trial of this suit took 7 days on 29 and 30 November 2017, 6 February 2018, 27, 28, 29 and 30 March 2018.

The trial documents are contained in bundles A to K that included the documentary evidence. Tab A Item 8 in bundle F were consented to carry status A which meant its authenticity is undisputed and the contents admitted. The documentary evidence in the bundles B, C, D (items 1, 2, 3, 5, 6, 9, 10, 16 ,17, 18 , 19 and 20 only), E, F (save for Tab A) and G (item 3 only) were consented to carry status B where their authenticity are undisputed but contents not admitted. During the course of the trial, exhibits P1 to D10 were also admitted in evidence. In addition after considering the submissions of the parties, I admit the letter of Messrs. Annamalai & Co dated 24 January 1994 in evidence pursuant to s. 73A (1) and (2) of the Evidence Act 1950 by reason that the maker thereof is dead and I also rely on ss. and 90 of the Evidence Act 1950 as interpreted in Khoo Kay Aun (selaku pegawai awam dan mendakwa bagi Swee Thong Tong 9 Khoo Kongsi) v Kow Liew Hin (sebagai wasi bagi wasiat Koe Choon Keng, si mati) [2016] MLJU 1774 in respect of the latter. It is provided in ss. 32 and 90 of the Evidence Act 1950 as follows: “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is a relevant fact 10 Such a statement is relevant whether the person who made it was or was not at the time when it was made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question; 11 12 Illustrations A dies of injuries in a transaction in the course of which she was ravished. The question is whether she was ravished by B; or 13 The question is whether A was killed by B under circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that on a given day he attended A's mother and delivered her of a son, is a relevant fact. A statement in the diary of a deceased advocate regularly kept in the course of business that on a given day the advocate attended A at a place mentioned in Kuala Lumpur for the purpose of conferring with him upon specified business is a relevant fact. 14 A letter written by a deceased member of a merchant's firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Penang harbour is a relevant fact. A letter from A's deceased agent to B, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact. The statement of a deceased clergyman that he married them under circumstances that the celebration would be a crime is relevant. 15 The fact that a letter written by him is dated on that day is relevant. A protest made by the captain, whose attendance cannot be procured, is a relevant fact. A statement by A, a deceased Penghulu of the Mukim, that the road was public is a relevant fact. A statement of the price made by a deceased broker in the ordinary course of his business is a relevant fact. 16 A statement by A that B was his son is a relevant fact. A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact. An entry in a memorandum book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact.

(n)A sues B for a libel expressed in a printed caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. 17 The remarks of a crowd of spectators on these points may be proved. Where any document purporting or proved to be twenty years old is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of that document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation - Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if 18 the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81. Illustrations I am aware that the Plaintiff had pointed out that the signature on the letter isn’t similar with the signature of SP Annamalai seen on the memorandum of transfer (form 14A) of Lot 1002 and Lot 1006. 19 Nonetheless I do not think that the dissimilarity is fatal because I take judicial notice that letters emanating from solicitors firm are not uncommonly signed by an authorized person including a clerk especially in conveyancing matters. I am also satisfied that the photocopy of the letter which was produced at trial is an adequate reproduction of the original because it would otherwise cause undue delay in the proceedings to trace the original that was produced in excess of 25 years ago. Additionally, I further admit the certified true copy of the memorandum of transfer (form 14A) dated 27 February 1997 in evidence relying on the same aforesaid provisions of the Evidence Act 1950. I am cognisant that the Plaintiff contended that Veerappa was already dead at the aforesaid date but the beneficiaries of the Estate of Kannappan had acknowledged to the contrary in the recitals of a power of attorney dated 19 April 2008 appointing Rajasekharan s/o Ramasamy their donee. Besides, it is also established conveyancing practice that the memorandum of transfer may be signed in escrow and presented to the land office for registration at a later point in time as provided in s. 292(4) of the National Land Code 1965. 20

The witnesses who testified at the trial are as follows: (i.) Renganathan Chettiar (“PW1”); (ii.) Manivannan Meyyappa (“PW2”); (iii.) Teh Koy Tiang (“DW1”); (iv.) Nur Khairunisa binti Ahmad Kamal (“DW2”); (v.) Mohd Fariz bin Osman (“DW3”); (vi.) Bun Liang (“DW4”); and (vii.) Mohd Khairuddin bin Nusi (“DW5”).

After the close of trial, the parties filed their respective written submissions and after having read them, I heard oral submissions of counsel on 6 June 2018. Thereafter upon deliberation of the case, I was troubled by an un-pleaded (but nonetheless briefly alluded to by the Plaintiff in his closing submissions) fundamental core issue to the parties which in my opinion substantially 21 underpinned the whole suit. As a matter of justice, this must in my opinion be dealt with irrespective of whether it has been pleaded or raised during the trial. Just as in Mayland Lending Sdn Bhd v Rossmaizati bt Mohamad & Anor [2014] 7 MLJ 216, I therefore wrote to the parties on 12 June 2018 to request for further submissions on this issue and the parties save for the Second Defendant in the Counterclaim responded with their further written submissions.

Kannappan @ Chinna Karuppan @ Chinna Karuppan Chettiar s/o Ramasamy Chettiar (“Kannappan”) was a beneficial owner of the Properties which belonged to his father Ramasamy Chettiar @ KR.RM. Ramasamy Chettiar s/o Karuppan Chettiar (“Ramasamy”) who died on 18 June 1948.

Kannappan died on 16 May 1976 and the beneficiaries of the Estate of Kannappan are his sons Subbiah Chettiar s/o Sinakaruppan Chettiar (“Subbiah Chettiar”) and Renganathan Chettiar @ S.K.R. Renganathan @ Sinnakaruppan Chettiar Renganathan s/o Sinnakaruppan Chettiar (“Renganathan 22 Chettiar”) as well as Ganambal Achi deceased, Kannappan’s widow.

By way of Penang High Court Petition no. 220 of 1979, letters of administration of the Estate of Kannappan were granted to Veerappa Chettiar s/o Kannapa Chettiar (“Veerappa”) on 6 November 1985. In addition, the beneficiaries of the Estate of Kannappan by a power of attorney dated 14 March 1983 (“First Power of Attorney”) also appointed Veerappa as their donee to deal with the Properties and matters related thereto.

On the application of Veerappa by way of Penang High Court Originating Summons no. 24-290-93, the Court on 19 July 1993 sanctioned the sale of the Properties to the First to Fourth Defendants as trustees for the Kwang Tung & Teng Chow Tok Pek Kong, Bayan Lepas, Pulau Pinang.

Consequently, the land title of 2/3 of the undivided shares both in Lot 1002 and Lot 1006 were registered in the names of the First to Fourth Defendants as trustees. However the land title of 2/3 of the undivided shares in Lot 48 remained registered in the name of Kannappan as administrator and liberty to sell. 23

By a power of attorney dated 19 April 2008 (“Second Power of Attorney”), Subbiah Chettiar and Renganathan Chettiar as beneficiaries of the Estate of Kannappan appointed Rajasekharan s/o Ramasamy as their donee to deal with various aspects of the Estate of Kannappan including the Properties. Subsequently by another power of attorney dated 14 December 2013 (“Third Power of Attorney”), Subbiah Chettiar and Renganathan Chettiar as beneficiaries of the Estate of Kannappan appointed the Plaintiff to administer and manage the Properties including to recover Lot 1002 and Lot 1006 from the First to Fifth Defendants.

On 6 March 2014, the State Director Penang notified by gazette of the intended acquisition of the Properties for the public purpose of a project to upgrade the Federal Road (FT006) from Teluk Kumbar to Penang International Airport. In consequence thereof, there was a land enquiry held for Lot 1002 and Lot 1006 as well as another land enquiry held for Lot 48. Prior to the holding of the land enquiries, the Plaintiff lodged a private caveat against 2/3 of the undivided shares in Lot 1002 and Lot 1006 that were registered in the names of the First to Fourth Defendants as trustees and the First to Fourth Defendants also lodged a private caveat against the 24 undivided shares in Lot 48 that was registered in the name of Kannappan as administrator and liberty to sell.

After the holding of the aforesaid land enquiries, the compensation sum of RM1,849,763.00 in respect of Lot 48 was paid into Court by the Second Defendant in the Counterclaim pursuant to Penang High Court Originating Summons no. 24NCVC-825-09/2014 (“OS”). In addition, the compensation sum of RM409,670.15 was paid by Second Defendant in the Counterclaim in respect of Lot 1002 and Lot 1006 into Court as well.

On 20 March 2015, the Plaintiff filed his intervention application in the OS proceedings and the Court consequently on 1 July 2015 ordered that the compensation sum of RM1,849,763.00 be paid out by the Court to the Plaintiff.

The First to Fifth Defendants only on 10 October 2016 filed their intervention application in the OS proceedings. Todate, the compensation sum of RM409,670.15 in respect of Lot 1002 and Lot 1006 still remained kept in Court. 25

From the pleadings, statement of issues to be tried and the closing submissions of the parties, the broad principal issues for determination in respect of the Plaintiff’s claim and the First to Firth Defendants’ counterclaim put forth may be collated as follows: (i.) Whether there was a sale of the 2/3 undivided shares in Lot 48, Lot 1002 and Lot 1006 by the Estate of Kannappan to the First to Fourth Defendants as trustees of the Society in 1993 at the consideration of RM100,000.00?; (ii.) Whether the First to Fourth Defendants were capable in law to purchase 2/3 undivided shares in Lot 48, Lot 1002 and Lot 1006 from the Estate of Kannappan as trustees of the Society that wasn’t in 1993 registered under the Societies Act 1966?; (iii.) Whether the transfer and eventual registration of Lot 1002 and Lot 1006 in the names of the First to Fourth Defendants as trustees of the Society in 1997 was invalid by reason that 26 the donee of the power of attorney of the administrator of the Estate of Kannappan who executed the instruments of transfer was already dead?; (iv.) Whether the Land Administrator on 14 May 2014 made an award in respect of the compensation for Lot 48 in favour of the Estate of Kannappan?; (v.) Whether the Plaintiff as the administrator of the of the Estate of Kannappan had in July 2015 lawfully received the pay out of the compensation sum of RM1,849,763.00 in respect of Lot 48 from the Court?; (vi.) Whether the First Defendant and Third Defendant in the Counterclaim are liable to the First to Fifth Defendants for fraud?; (vii.) Whether the First to Fifth Defendants’ claim against the First Defendant and Third Defendant in their Counterclaim are statute barred?; and 27 (viii.) Whether the Second Defendant in the Counterclaim is liable to the First to Fifth Defendants in negligence or mala fide conduct?

Apart from the issues for determination set out by the parties as listed in paragraph 23 above, I think it is apt that I foremost deal with the issue that I have posed to the parties alluded in paragraph 12 above. The issue which is discerned from the documentary evidence adduced as well as the testimony of PW1 is whether the Properties belonged and vested in the Estate of Kannappan that were capable of sale and eventual transfer to the First to Fourth Defendants as trustees of the Society in 1993 and 1997 respectively. This is to me the mother of all the other above-listed issues.

The crucial evidence is found in the recitals of the Second Power of Attorney which are reproduced with emphasis added by me: 28 “WHEREAS : Ramasamy Chettiar s/o Karuppan Chettiar domiciled in India died testate at Devakottai, Ramnad District, Tamil Nadu, South India on the 24th day of January, 1949 (hereinafter referred to as “the Testator”) and was at the date of his death the owner of all that 4/6th share of and in each of the following three (3) pieces of lands: situate in the Mukim 12, Daerah Barat Daya, Negeri Pulau Pinang, West Malaysia containing an area of 297 square feet; Pinang, West Malaysia containing an area of 14,354 square feet; and situate in Daerah Barat Daya, Bandar Bayan Lepas, 29 Negeri Pulau Pinang, West Malaysia, containing an area of 10,631 square feet, together with the premises erected thereon and known as No.461 and No.630, Main Road, Bayan Lepas, 11900 Penang, West Malaysia. (hereinafter collectively referred as “the said lands”) Chettiar alias M.P.S.KR.RM. Sinnakaruppan Chetiar alias Sinnakaruppan Chettiar son of Ramasamy Chettiar (hereinafter referred to as “the said Kannappan alias Chinna Karuppan Chettiar”), the Executor of his said Will. CHETTIAR was married to one GANAMBAL ACHI daughter 30 of Renganathan Chettiar, (hereinafter referred to as “the said Ganambal Achi”.) KARUPPAN CHETTIAR; Deed of Release executed prior to 9-6-1948 by the said Karuppan Chetty; and 31 maintenance of PAGAMBARIAL ACHI, the Testator’s wife, during her lifetime and (ii) her funeral expenses. KANNAPPAN alias CHINNA KARUPPAN CHETTIAR and the relevant Grant of Probate was issued to him and the exact dates of the granting and the issue thereof respectively of the said Probate will have to be ascertained from the relevant Court records. CHETTIAR as the Executor of the Will of the Testator, having no power of sale under the said Will, obtained an Order from the High Court at Penang granting him leave to sell all those several lands and premises belonging to the Estate of the Testator (which included the said three (3) pieces of lands described in Recital No. (1) above) and the said Order of Court was registered in the Land Registry, Penang as No.973/200 on the 27th day of January,1958. 32 CHETTIAR, the Executor of the said will of the Testator and one of the beneficiaries thereunder, died intestate in India on 16th day of May, 1976, without having wholly administered the Estate of the Testator. The said KANNAPPAN alias CHINNA KARUPPAN CHETTIAR died as aforesaid leaving the three (3) of us:

9.1 The said Ganambal Achi, widow of the said KANNAPPAN alias CHINNA KARUPPAN CHETTIAR, died interstate in 2000. CHINNA KARUPPAN CHETTIAR as aforesaid, the Grant 33 of the Probate of the said will of the Testator issued to him as aforementioned ceased to have any effect and/or became inoperative. Attorney to one VEERAPPA CHETTIAR s/o KANNAPPAN CHETTIAR (hereinafter referred to as the said VEERAPPA CHETTIAR), a former permanent resident of Malaysia holding a Red NRIC no.7614517 and then residing at No.14, Penang Street, Penang, West Malaysia, appointing him our Attorney for the purposes of obtaining the Grant of Letters of Administration to the Estate of the KANNAPPAN alias CHINNA KARUPPAN CHETTIAR, deceased for our use and benefit until we could apply for and obtain the relevant Grant of Letters of Administration in our favour, and the said Power 34 of Attorney was registered in the High Court at Penang as No.210 of 1977 on the 22nd of April 1977. Estate of the said KANNAPPAN alias CHINNA KARUPPAN CHETTIAR, deceased from the High Court at Penang on the 6th Day of November, 1979 and the relevant Grant of Letters of Administration was issued to him as our lawful Attorney on the 18th day of December, 1985 in Petition No.220 of 1979. Office, Kuala Lumpur, Malaysia, and annexed to the said Grant of Letters of Administration is: Deceased’s beneficial share in the Estate of M.P.S. KR.RM. Ramasamy Chettiar alias KR.RM. Ramasamy Chettiar s/o Karuppan Chettiar, deceased comprising business known as KR.RM. Firm, 1244, Main Road, Bayan Lepas, Penang” as per schedule “A”. 35 Bayan Lepas, Penang which includes the 4/6th share of and in each of the said three (3) pieces of lands described in Recital (1) above. Attorney pursuant to another Power of Attorney purportedly granted by us to him on the 14th day of March, 1993 and registered in the High Court at Penang as No.898/83, wrongfully and/or unlawfully, on the 12th day of February, 1993, entered into a purported Sale and Purchase Agreement, purportedly for and on our behalf and in our names as the Vendors, for the purported sale of the said lands, with purported Purchasers namely:- No.18, Jalan Pantai Jerjak 1, Sungai Nibong, 11900 Penang. Lebuh Mahsuri, Sungai Nibong Kechil, 11900 Penang; and 36 12, Sepuluh Kongsi, Bayan Lepas, Penang; and Kampung Binjai, Bayan Lepas, 11950 Penang, as the trustees for Kwang Tong & Teng Chow Tok Pek Kong, Bayan Lepas, Penang for the purported sale of the said 4/6th share of and in each of the said three (3) pieces of lands (together with the houses erected thereon) described in Recital No.(1) above, at the total price of RM 100,000.00 subject to, inter alia, (i) an Order of Court approving the sale and (ii) marketable and registrable title and upon the terms and conditions contained in the said purported Sale and Purchase Agreement. Chettiar purportedly acting as our Attorney for the purported sale of the said lands, as aforesaid, made an application in our names as the Applicants therein to the High Court at Penang by way of Originating Summons No. 24-290-1993 37 and obtained an Order on the 19th day of July, 1993 as follows:- It is hereby Ordered that the abovenamed Applicants as holders of Grant of Letters of Administration and beneficiaries of the Estate of Kannappan @ Chinna Karuppan @ Chinna Karuppan Chettiar s/o Ramasamy Chettiar deceased be at liberty to sell and transefer 2/3rd share in land known as Lot No. 48, Bandar Bayan Lepas, Daerah Barat Daya, Pulau Pinang and Lots 1002 and 1006 MK. 12 Bandar Bayan Lepas, Daerah Barat Daya, Pulau Pinang, together with houses Nos. 461 and 630, Jalan Raya, Bayan Lepas, erected thereon to (i) Teh Koy Tiang @ The Kooi Tean (ii) Ong Hee Boon (iii) Lim Ah Moy and (iv) Lee Jin Chaw as trustees of Kwang Tung & Teng Chow Tok Pek Kong, Bayan Lepas, Pulau Pinang, pursuant to the terms and conditions of Sale and Purchase Agreement dated 12.2.1993.

The said Veerappa Chettiar purportedly acting as our Attorney and pursuant to the said purported Sale and Purchase Agreement dated the 12th day of February, 1993 38 and the purported Order of Court dated the 19th day of July, 1993 executed three (3) separate purported Memorandum of Transfer in respect of each of the said three (3) pieces of lands, for the respective consideration of RM 5,000.00, RM 55,000.00 and RM 40,000.00 and all the said Memoranda of Transfers were prepared and attested by Mr. SP. Annamalai, Advocate & Solicitor, Penang (since deceased). The exact date of execution thereof is not presently available.

By reason of the matters aforesaid and/or due to other reasons unknown to us, the said Order of Court and/or the said Memoranda of Transfers have not yet been registered and/or could not be registered in the Land Registry at Penang.

The said Teh Koy Tiang @ Teh Kooi Tean, one of the said purported purchasers of the said 4/6th share of and in the said three (3) pieces of lands described in Recital No. (1) above has caused a Private Caveat to be lodged and registered against the title to the said lands on the 4th day of March,1994, vide Jilid No. 373 Folio No.69, to bind the said lands. 39

The said Sinnakaruppan Chettiar Renganathan also cause Private Caveats to be lodged and registered against the titles to the said lands on the 13th day of July, 1994 and 23rd day of May, 2000 and 2nd day of April,2008.

The said Veerappa Chettiar s/o Kannappan Chettiar died at Devakottai, Tamil Nadu, South India on the day of 1st August, 1996, and as a result thereof the said Grant of Letters of Administration issued to him as mentioned in Recital No.12 above has become inorperative.

We, the said (1) SUBBIAH CHETTIAR son of the late Sinnakaruppan Chettiar and (2) S.KR. RENGANATHAN CHETTIAR alias S.KR. RENGANATHAN alias SINNAKARUPPAN CHETTIAR RENGANATHAN son of the late Sinnakaruppan Chettiar, the donors abovenamed, are desirous of applying for and obtaining from the High Court in

the Grant of Letters of Administration De Bonis Non with the Will annexed, to the Estate of the Testator; 40

the Grant of Letters of Administration to the Estate of the said Umayal Achi, deceased;

the Grant of Letters of Administration De Bonis Non or other appropriate or relevant Grant of Letters of Administration to the Estate of the said KANNAPPAN alias CHINNA KARUPPAN CHETTIAR, deceased;

the Grant of Letters of Administration to the Estate of the said Ganambal Achi, deceased, with the view to taking all necessary appropriate and relevant steps or proceedings in Court, inter alia, to declare the said purported Power of Attorney dated 14.3.1993, as illegal, null and void and or of no effect and also to set aside :-

the said purported Sale and Purchase Agreement dated 12.2.1993;

the said purported Order of Court dated 19.7.1993;

the said purported Memoranda of Transfers; and 41

the purported Purchaser’s said Private Caveat, or other Caveats lodged on the said lands, and further to recover all the assets including the said lands belonging to the Estate of the Testator and/or all the assets belonging to the Estate of the said KANNAPPAN alias CHINNA KARUPPAN CHETTIAR, deceased.

Being ourselves unable to leave the Republic of India, and or proceed to Malaysia, we are desirous of appointing an Attorney to act for us in Malaysia as our Attorney in this behalf.”

This is corroborated by the land search on the registered title of Lot 48 which states the registered owner, amongst others, is Kannappan @ Chinna Karuppan @ Chinna Karuppan Chettiar s/o Ramasamy Chettiar sebagai Pentadbir dan ‘Liberty to Sell, 2/3 bhgn.’

It is therefore plain to me that at all material times of the sale of the Properties by Veerappa to the First to Fourth Defendants as 42 trustees for the Society, the Properties actually belonged to the estate of Ramasamy and not the Estate of Kannappan. This is because the registered titles in the Properties were vested in the administrator of the estate of Ramasamy. The estate of Ramasamy has 2 beneficiaries, to wit, Kannappan and Umayal Achi.

In Subramaniam NS Durai v Sandrakasan Retnasamy & Ors [2005] 3 CLJ 539 CA, Gopal Sri Ram JCA (later FCJ) held as follows: “The learned judge's finding that since the 1st defendant had no interest in the land he was incapable of passing any to the appellant is, in my judgment a correct direction of law. It finds support from the decision of the Supreme Court in M & J Frozen Foods Sdn Bhd v. Siland Sdn Bhd [1994] 2 CLJ 14. There is a passage in the judgment of Wan Yahya SCJ in that case which is directly applicable to the present appeal: A purchaser of land might fail to obtain a good title in two distinct ways. Firstly, if the title of the vendor is bad. 43 Secondly, even if the vendor has a good title, there might be some invalidating defects in the conveyance or transaction in which the purchaser attempted to obtain the title. These transactions might be void or voidable for a variety of reasons. In the case of a defect in the vendor's title, the common law rule, is that no person can give a better title than he had - nemo dat quod non habet. There are, however, important exceptions to this rule, in particular the qualification made under the proviso to s. 340(3) of our National Land Code 1965 where a bona fide purchaser for value without notice of the defeasible nature of the vendor's title acquires an immediate indefeasible title. In the case where the vendor's title is good but the instrument which was used by a purchaser for registration is void or voidable, the effect on such registration will only confer on the person in whose name the land is registered, what is usually referred to as deferred indefeasibility, - see Gibbs v. Messer [1891] AC

Under this principle, the registration of the insufficient or void instrument can be set aside. (emphasis added. ) Applying the nemo dat rule, the 1st defendant had nothing and could therefore pass nothing to the appellant. The 44 appellant may have obtained good title if he had been a bona fide purchaser of the subject land. But he was found - and in my view, correctly found - by the learned judge not to be a bona fide purchaser. So, as a matter of law, the learned judge was right in setting aside the transfer to the appellant. ... So, in my judgment, s. 340 should be read as follows. The title of a registered proprietor is indefeasible and good against the whole world. But it is not indefeasible in cases where it has been obtained by fraud, forgery, by means of an insufficient or void instrument, or by the exercise of a power purportedly conferred by written law. If a title is acquired by any of these means, then the title of the acquirer is liable to be set aside in the hands of the acquirer and all those to whom he transfers the land except a bona fide purchaser for valuable consideration. However, the fact that the title of a registered proprietor is indefeasible does not prevent the land from being forfeited or sold under a statutory power. Neither does it prevent the title being defeated by operation of law. 45 It is on this basis that Wan Yahya SCJ held, in M&J Frozen Foods Sdn Bhd v. Siland Sdn Bhd, citing Gibbs v. Messer as authority, that an acquirer who obtains his title by means of a void or voidable instrument obtains deferred indefeasibility.”

Consequently and since the title in respect of the Properties is that of Kannappan as administrator with liberty to sell for the estate of Ramasamy and not that of the Estate of Kannappan, the vendor to wit Veerappa as administrator of the Estate of Kannappan did not therefore have good title to the Properties to sell to the First to Fourth Defendants as trustees of the Society. In other words, the Estate of Kannappan had no title to the Properties to pass on to the First to Fourth Defendants as trustees applying the nemo dat rule. Since Kannapan who was the administrator of the estate of Ramasamy had died without completing the administration of the estate, hence only the administrator de bonis non of the estate of Ramasamy has the right and capacity to sell the Properties. At all material times, Veerappa is the administrator of the Estate of Kannappan but not the administrator de bonis non of the estate of Ramasamy. 46

However as held in Subramaniam NS Durai v Sandrakasan Retnasamy & Ors (supra), the First to Fourth Defendants as trustees would nonetheless enjoy immediate indefeasibility of the registered title to any of the Properties that were transferred by virtue of s. 340(3) of the National Land Code 1965 only if they were bona fide purchasers for value without notice.

The meaning of bona fide purchaser or commonly known as the good faith purchaser had been considered by the Court of Appeal in State Tailor Sdn Bhd v Nallapan [2005] 2 MLJ 589. In that case, Richard Malanjum JCA (now CJ (Sabah and Sarawak)) held as follows with emphasis added by me: “The term 'bona fide purchaser' has been used in a host of cases. Simply put it means a buyer in good faith. And the basic element of good faith is the absence of fraud, deceit or dishonesty and the knowledge or means of knowledge of such at the time of entry of the transaction. But the overriding consideration is the 'Particular circumstance of each case'...” 47 Furthermore, in another Court of Appeal case of Au Meng Nam & Anor v Ung Yak Chew & Ors [2007] 4 CLJ 526, Raus Shariff JCA (now CJ) held as follows with emphasis also added by me: “Had the learned trial judge taken the above facts and circumstances into consideration, he cannot possibly conclude that the 1st defendant was a bona fide purchaser for valuable consideration, so as to be protected under s. 340(3) of the Code. To me, the 1st defendant had acted hastily. He concluded the sale without any proper investigation into the title or the persons claiming to be proprietors. No doubt he had every right to take advantage of the low price that was offered to him but he took the risk. When he embarked into such risk, it cannot be at the expense of the plaintiffs. This is because while he had a choice, the plaintiffs had none. In fact, the plaintiffs were helpless. The plaintiffs could not do anything to prevent the fraud. Even locking the title in a safe would not had help the plaintiffs. In such circumstances the court must not favour the 1st defendant, over the plaintiffs. To do so, would be doing injustice to the plaintiffs. 48 Further, had the evidence adduced in this case been properly considered and assessed by the learned trial judge, a reasonable inference would be that the 1st defendant knew at the time he bought the said land, the purchase price was below the market value. But he wanted to take advantage of the low price. He did a fast track to complete the purchase. In doing so he disregarded his obligations to investigate the alleged proprietors and the genuineness of the documents. My respectful view is that a purchaser in good faith does not include a purchaser who is careless or who had been negligent. In Oliver v. Hinton [1899] Chancery Division 264 Lindley MR said: To allow a purchaser who acts with such gross carelessness to deprive a prior innocent mortgage of her priority would be the greatest injustice. So too here. The 1st defendant is under the obligation to investigate properly all matters relating to the sale of the said land and not to just blindly accept what was claimed by the 'vendors' as correct and genuine. When he failed to take the ordinary precautions which ought to 49 be taken in such a matter he is not entitled to the protection of the court.”

Besides Veerappa who was represented by his solicitor Messrs. Annamalai & Co, the First to Fourth Defendants were also represented by their solicitor Messrs. Lee Kok Liang & Co at the material time of the sale of all the Properties and the subsequent transfer and registration of Lot 1002 and Lot 1006 in favour of the First to Fourth Defendants as trustees. Consequently, it was incumbent upon the solicitor of the First to Fourth Defendants to carry out a land search and investigate into the title of the Properties as part and parcel of normal conveyancing practice. In my opinion, a cursory perusal of the registered title by a solicitor would have plainly revealed that the Properties did not then belong to and vest in the Estate of Kannappan. They could not be sold by Veerappa who had neither authority nor capacity to sell them. Thus it was gross negligence on the part of both Messrs. Annamalai & Co as well as Messrs. Lee Kok Liang & Co for failing to detect the defect in title. It is something too obvious to have been missed out. All the parties involved were most likely simply too keen to close the deal regardless. I have however in Bank of Nova Scotia Bhd v Saunah Kasni & Ors [2016] 1 CLJ 505 held 50 that solicitor’s negligence would be imputed on to the client. As the result, the First to Fourth Defendants as trustees here must accordingly be treated as purchasers who were negligent or careless and therefore did not enjoy the protection accorded by s. 340(3) of the National Land Code 1965. In short, the First to Fourth Defendants registered titles as trustees in Lot 1002 and Lot 1006 are defeasible and I am constrained to hereby declare them defeated.

I am cognisant that the Defendants strenuously contended that this mother issue was not pleaded by any of the parties and must therefore be discarded. The Defendants referred to the case of Pacific Forest Industries Sdn Bhd & Anor v Lim Wen-Chih & Anor [2009] 6 CLJ 430 FC where Zaki Tun Azmi CJ held as follows with emphasis added by me: “[13] More important and related to the first question is the issue of whether the Court of Appeal was right in invoking a principle of law which was never pleaded or argued at the court below or even before it as a ground for arriving at its decision. "Frustration" was never pleaded or argued at any 51 stage from the High Court to the Court of Appeal. (See Veronica Lee Ha Ling & 15 Ors v. Maxisegar [2009] 6 CLJ 232). [14] The nature of our system is adversarial. This means that the judge has to listen to submissions or cases put by each party to an action. He then decides the case based on evidence and submissions put by both parties. In a criminal case, the prosecution has to prove their case beyond reasonable doubt while the defence's burden is merely to raise a doubt. In civil cases however, the burden placed on both parties is equally balanced. The successful party is the one that is able to prove to the court on the balance of probability that his case is more probable. That is on facts. The claimant has to plead his case in the statement of claim while the defendant pleads in his statement of defence. In short, both parties are aware of the other party's case. In fact, both parties would know the facts but also the documents, if any, that are going to be relied upon by his opposite party. 52 [15] The facts pleaded will inadvertently be related to the legal principles that the party will be relying upon. It is not for the court to decide on what principle a party should plead. It should be left to the parties to identify it themselves. (See Tan Kong Min v. Malaysia National Insurance Sdn. Bhd.[3],Hock Hua Bank (Sabah) Bhd. v. Yong Liuk Thin & Ors[4] and Janagi v. Ong Boon Kiat[5]). [16] The court also decides a case after considering the evidence adduced by each party and documents produced by them. Neither party should be taken by surprise. Even in respect of law, whether it is the court at first instance or the appellate court, judges rely heavily on the submissions put forward by the respective counsel. A good counsel is one who produces authorities to support the statement of law he is relying upon. The authorities can be in the form of reported judgments, text books or even published law articles. In fact, according to etiquette, he is supposed to even bring to the attention of the court authorities which favour his opponent's case. Of course in such an instance, he would then distinguish the facts of the case before the court to the case in the authority. It is therefore dangerous and totally 53 unadvisable, for the court, on its own accord, to consider any point without reliance on any pleadings or submission by counsel appearing before them. If the learned judge thinks there are any points which are relevant to the case before him and which was not raised by either party, it is his duty to highlight that to the parties before him. He must then give an opportunity for both parties to further submit on that particular point[6]. There have been instances where a judge may already form some opinion on certain issues, legal or otherwise, but after hearing submissions and views expressed by a party, he may conclude differently. [17] The effect of a judge making a decision on an issue not based on the pleadings and without hearing the parties on that particular issue would be in breach of the latin maxim audi alteram partem, which literally means, to hear the other side, a basic principle of natural justice. [18] In the instant appeal, the case was pleaded on a breach of contract and the 1st defendant's defence was that the plaintiffs had only ordered one shipment, three shipments 54 short of the terms of the agreement, although the 1st defendant was ready and willing to supply the timber products. The reply contended otherwise. There was nothing mentioned in the pleadings which could be related to frustration. [19] It is trite that in pleading frustration, particulars which give rise to frustration must be provided specifically in the pleadings.[7] The parties in this case had not pleaded or submitted that the contract in question had been frustrated. Thus, the defendants were highly prejudiced when the Court of Appeal decided on the issue of frustration.” In addition reliance was also made by the Defendants on the case of Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2010] 10 CLJ 112 CA where Mohamad Ariff Yusof JCA held as follows: “[25] As evident from the passage above, not only are the immediate litigants bound by the rules of pleadings, so is the court. 55 The Court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the duty or function of the Court to enter into any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realm of speculation... (Esso Petroleum Co Ltd v. Southport Corporation[1956] A.C. 218).” as well as the case of Ketua Pengarah Jabatan Kerja Raya v Strongkota Development Sdn Bhd & Another Appeal [2016] 3 CLJ 741 CA where Abang Iskandar JCA held as follows: “[16] From the submissions of the learned counsel for the appellants, it was clear that the main thrust of this appeal had centred upon whether the trial judge had correctly adjudged this case according to the parameters as set out by the parties well before trial. This set parameters could be seen from what was pleaded in the pleadings of parties. The 56 statement of claim would set out the cause or causes of action of the plaintiff against the defendant. The statement of defence would, of necessity, set out basically what the answer to that claim would be. By the close of pleadings, parties would know exactly what is being claimed by the plaintiff and what the answer to that claim would be. Pleadings therefore prevents surprises during trial as both parties are sure and certain as to what they are supposed to do in terms of establishing their respective positions in court. There is no element of trial by ambush where a party would be taken by surprise by the other party introducing evidence outside the contemplation of what had been the pleaded cause or causes of action or of defence. It is trite law that parties to a suit are bound by what have been pleaded in their respective pleadings. To further refine the dispute, parties would normally agree with each other as to what are the issues to be tried. Although the pleadings would expressly bind parties, it has the effect of also limiting the power of the adjudicating court, in that the decision of the court, at the end of the trial of the suit, must be in consonance with what had been pleaded by the parties. The reliefs granted by the court must therefore be tailor-made, so 57 to speak, to fit into what had been agreed by the plaintiff as per his statement of claim, in particular based on his cause of action. In other words, if the cause of action had been premised upon the negligent act of the defendant, then once proven by evidence to be so, the court must then proceed to grant the damages to compensate for the losses suffered by the plaintiff as a result of the negligent conduct of the defendant. It would be amiss if the court were to give relief to the plaintiff against the defendant, for a cause of action which was not pleaded, even remotely, in the plaintiff's statement of claim. As such, pleadings have the effect of not only binding the parties, inter se, but it also operates to ensure that the court only grants the reliefs that have been prayed for as pleaded as forming the plaintiff's causes or causes of action. There may be exceptions to this rule of thumb, but only rarely will the courts depart from this crucial rule of civil litigation.”

Nonetheless, I observed that in Superintendent of Lands and Surveys (4th Division) & Anor v Hamit bin Matusin & Ors [1994] 3 MLJ 185 SC, Peh Swee Chin SCJ held as follows: 58 “The underlying well-known rationale for requiring material facts to be pleaded is to prevent the opposing party from being taken by surprise by evidence which departs from pleaded material facts. However, when evidence represented a departure from the pleadings, it should be objected to when and where it was adduced, and it would be too late when it was only objected to later on, as in the final submission at the close of evidence in the instant appeal.”

In this case before me, there was evidence led at the trial on the Second Power of Attorney particularly on Umayal Achi who is one of the beneficiaries of the Estate of Ramasamy without objection that it was an un-pleaded point or issue. In this respect PW1 was asked as follows: “Q: At page 7, Umayal Achi, how is she related to yourself? Umayal Achi is my grandfather’s adopted daughter. It says here she is the wife of Karuppan Chettiar, the Testator’s first adopted son? 59 Yes. Is she still alive? No. Can you tell when she passed away?

In the premises, I am of the view that the Defendants have waived their right to take objection on this mother issue which is inextricably connected with Umayal Achi notwithstanding that it was an un-pleaded point or issue. This is because the beneficial owners of the estate of Ramasamy who would eventually own the Properties are not only the Estate of Kannappan but also the estate of Umayal Achi. The sale to the Defendants was however for the whole of the Properties and not the beneficial interests of the Estate of Kannappan in part of the Properties. Hence the sale of the Properties by Veerappa to the First to Fourth Defendants as trustees glaringly profited the Estate of Kannappan only but the estate of Umayal Achi had certainly been adversely affected. This 60 is perhaps why this mother issue was never pleaded because the resultant effect would be detrimental to the Plaintiff besides the Defendants as well.

Be that as it may, I am of the view that the facts in the Federal Court case as well as both the Court of Appeal cases relied by the Defendants are distinguishable on their facts principally because the parties therein embarked on an un-pleaded new cause of action. Additionally in the former, the pleading point was taken up for the first time on appeal but not in the Court of first instance. I have nonetheless ensured that the audi alteram partem rule has not been breached here by having invited the parties to address me accordingly. In any event, I noted Abang Iskandar JCA held in Ketua Pengarah Jabatan Kerja Raya v Strongkota Development Sdn Bhd & Another Appeal (supra) that there may be exceptions to this rule of thumb and this case is in my view one of them based on its unique facts and circumstances.

Moving on, the Defendants further contended that the sale was proper and the title in Lot 1002 and Lot 1006 that were subsequently registered in the names of the Defendants as trustees are unchallengeable because the sale was sanctioned by 61 the High Court order dated 19 July 1993. In this respect, the Defendants referred to Wayrex Sdn Bhd & Anor v Lee Ewe Bee & Ors [2012] 1 MLJ 358 CA where KN Segara JCA held as follows: “[13] In the above circumstances, on the indisputable factual matrix relating to the said land presented to the court, the fifth defendant has clearly acquired an indefeasible title to the said land upon the registration of the transfer under s 340 of the National Land Code, read together with s 64(3) of the Probate and Administration Act 1959. ... [19] We are unanimous that the second appellant's title to the said land cannot be set aside because the sale to the appellants was sanctioned by the court on 8 January 1997

mortgage, charge or transfer by sale, gift exchange or otherwise any immovable property situate in any State and for the time being vested in him; or

...”

I have carefully reviewed the Court order dated 19 July 1993. It was made pursuant to an ex-parte application of the beneficiaries of the Estate of Kannappan by Messrs. Annamalai & Co. It was supported by the sole affidavit of Veerappa but the affidavit was not produced at the trial before me. It is therefore uncertain whether there was full and frank disclosure made to Court particularly on the registered ownership of the Properties at the 63 material time. Put simply, I am not satisfied that the Court was wholly apprised of the full facts surrounding the application.

In Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 FC, Mohd Azmi FCJ held as follows with emphasis added by me: “It is of course settled law as laid down by the Federal Court in Hock Hua Bank's case that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. But one special exception to this rule (which was not in issue and therefore not discussed in Hock Hua Bank) is where the final judgment of the High Court could be proved to be null and void on ground of illegality or lack of jurisdiction so as to bring the aggrieved party within the principle laid down by a number of authorities culminating in the Privy Council case of Isaacs v Robertson [1985] AC 97 where Lord Diplock while rejecting the legal aspect of voidness and voidability in the orders made by a court of unlimited jurisdiction, upheld the existence of a category of orders of the court '… which a person affected by the order is entitled to apply to have set 64 aside ex debito justitiae in the exercise of the inherent jurisdiction of the court, without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity, and give to the judge a discretion as to the order he will make'. The Privy Council through Lord Diplock also emphasized that the courts in England have not closed the door as to the type of defects in the final judgment of the court that can be brought into the category that attracts ex debito justitiae the right to have it set aside without going into the appeal procedure, 'save that specifically it includes orders that have been obtained in breach of rules of natural justice'. Similarly in this country, the statement of Abdoolcader J (as he then was) in Eu Finance Bhd v Lim Yoke Foo [1982] 2 MLJ 37 at p 39 provides the correct guideline on the subject: The general rule is that where an order is a nullity, an appeal is somewhat useless as despite any decision on appeal, such an order can be successfully attacked in collateral proceedings; it can be disregarded and impeached in any proceedings, before any court or 65 tribunal and whenever it is relied upon — in other words, it is subject to collateral attack. In collateral proceedings, the court may declare an act that purports to bind to be non-existent. In Harkness v Bells' Asbestos and Engineering Ltd [1967] 2 QB 729, Lord Diplock LJ (now a Law Lord) said (at p 736) that 'it has been long laid down that where an order is a nullity, the person whom the order purports to affect has the option either of ignoring it or of going to the court and asking for it to be set aside'. For my part, I must hasten to add that apart from breach of rules of natural justice, in any attempt to widen the door of the inherent and discretionary jurisdiction of the superior courts to set aside an order of court ex debito justitiae to a category of cases involving orders which contravened 'any written law', the contravention should be one which defies a substantive statutory prohibition so as to render the defective order null and void on ground of illegality or lack of jurisdiction. It should not for instance be applied to a defect in a final order which has contravened a procedural requirement of any written law. The discretion to invoke the inherent jurisdiction 66 should also be exercised judicially in exceptional cases where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice. In all cases, the normal appeal procedure should be adopted to set aside a defective order, unless the aggrieved party could bring himself within the special exception.” This principle has recently been re-affirmed in Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 6 CLJ 673

In my opinion, the Court lacked jurisdiction in making the order dated 19 July 1993 because the vendor of the sale neither had the capacity nor right to sell the Properties. In this regard, it is plain that s. 60(4) of the Probate and Administration Act 1959 had been contravened by reason that the Properties sanctioned weren’t vested on the vendor for them to be put for sale. I reiterate that the Properties were at the material time vested in Kannappan as the administrator of the estate of Ramasamy. Therefore the only person who can validly sell those Properties since Kannappan died 67 is the administrator de bonis non of the estate of Ramasamy who has been properly appointed by the Court and the registered title in the Properties thereafter having vested in him. There was no such person in existence when the sale of the Properties were made to the First to Fourth Defendants as trustees. Veerappa is undoubtedly not the person. The case of Wayrex Sdn Bhd & Anor v Lee Ewe Bee & Ors (supra) is in my view hence distinguishable in that the title there was plainly vested upon the personal representative and it wasn’t also defective there. In the premises and in exercise of my inherent jurisdiction pursuant to Order 92 Rule (4) of the Rules of Court 2012, I am again constrained to hereby hold that the Court Order dated 19 July 1993 is void and accordingly set aside.

In short, there is ex-facie illegality in the sense that there were both breaches of nemo dat rule as well as contravention of the Probate and Administration Act 1959. As the result of the void sale of the Properties occasioned by the setting aside of the Court order dated 19 July 1993 discussed above and the defeasibility of the Defendants’ registered title in Lot 1002 and Lot 1006 discussed in paragraph 32 above, the proper relief here is hence restitution. This is governed by s. 66 of the Contracts Act 1950 which reads: 68 “66. Obligation of person who has received advantage under void agreement, or contract becomes void When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.

A pays B RM1,000 in consideration of B's promising to marry C, A's daughter. C is dead at the time of the promise. The agreement is void, but B must repay A the RM1,000.

A contracts with B to deliver to him 250 gantangs of rice before the 1st of May. A delivers 130 gantangs only before that day, and none later. B retains the 130 gantangs after the 1st of May. He is bound to pay A for them.

A, a singer, contracts with B, the manager of a theatre, to sing at his theatre for two nights in every week during the 69 next two months, and B engages to pay her RM100 for each night's performance. On the sixth night A wilfully absents herself from the theatre, and B, in consequence, rescinds the contract. B must pay A for the five nights on which she had sung.

A contracts to sing for B at a concert for RM1,000, which are paid in advance. A is too ill to sing. A is not bound to make compensation to B for the loss of the profits which B would have made if A had been able to sing, but must refund to B the RM1,000 paid in advance.”

In the premises, I will now deal with issue (i) set out in paragraph 23 above to the extent that it is necessary for purposes of restitution. The Plaintiff denied that there was a sale of the Properties to the First to Fourth Defendants as trustees for the Society because there wasn’t any documentary evidence alluded by them to demonstrate there was the sale of the Properties for the consideration of RM100,000.00. In addition, the Plaintiff denied that the Estate of Kannappan received the RM100,000.00. 70

It does not seem to be in dispute that there was no specific sale and purchase agreement drawn up for purposes of the sale of the Properties. This is not by itself fatal and the sale of the Properties may still be proved by other related documentary evidence as well as testamentary evidence of the relevant witnesses. The standard of proof is on the balance of probabilities.

In this regard, I have reviewed the related documentary evidence adduced before me including the Court order dated 19 July 1993, Hock Hua bank cheque dated 8 February 1993 for RM10,000.00, Defendants’ Hock Hua Bank passbook statement showing RM90,000.00 withdrawal and remittance slip dated 27 December 1993, Messrs. Annamalai & Co’s letter dated 24 January 1994, certificate of clearance of real property gains tax and the memorandum of transfer (form 14A) of Lot 1002 and Lot 1006. I have further reviewed the testimony of DW1 who testified on the sale and I am satisfied that he is a truthful witness.

Consequently, I find and hold on the balance of probabilities that there was a concluded sale of the Properties between Veerappa and the First to Fourth Defendants as trustees for the Society for 71 the lump sum consideration of RM100,000.00. I further find and hold that the consideration of RM100,000.00 has been duly paid.

As the result pursuant to s. 66 of the Contracts Act 1950, the Plaintiff must repay this sum of RM100,000.00 in restitution and I so find and hold accordingly.

I will next deal with issue (ii) set out in paragraph 23 above as to the consequences of the purchase of the Properties by the First to Fourth Defendants as trustees for the Society which wasn’t in 1993 registered under the Societies Act 1966. The Plaintiff basically contended that the sale transaction is void for illegality because of the non registration of the Society in attempt to avoid the sale and defeat the registered title of Lot 1002 and Lot 1006 in the name of the First to Fourth Defendants as trustees for the Society. However in light of my findings in paragraph 40 above, it is strictly speaking unnecessary to determine this issue in the context of the original plea of the Plaintiff but may be still be relevant as to whether the Society is nonetheless entitled to receive the sum of RM100,000.00 in restitution. 72

According to the Plaintiff, there was contravention of s. 41(1)(b) of the Societies Act 1966 and accordingly the contract for sale of the Properties is void pursuant to s. 24(a), (b) and (e) of the Contracts Act 1950. The Plaintiff referred to numerous cases on the effect to the contract entered in contravention of statute particularly Lu Su Tsoon Timber Depot v Southern Estate Sdn Bhd [1971] 2 MLJ 161 FC. However none of them dealt with a contract made by an unregistered society particularly a temple worshipping association.

The Defendants submitted that there is no necessity for an institution established for religious purposes to be registered as a society pursuant to Article 11 of the Federal Constitution which stipulates: “11. Freedom of religion

Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.

No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own. 73

Every religious group has the right –

to manage its own religious affairs;

to establish and maintain institutions for religious or charitable purposes; and

to acquire and own property and hold and administer it in accordance with law.

State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.

This Article does not authorise any act contrary to any general law relating to public order, public health or morality.” The Defendants submitted it has been specifically provided in Article 11(3) that a religious group has the right to establish and maintain institutions for religious purpose and to acquire and own 74 property. In this regard, the right to manage a religious group’s own religious affairs and to establish institutions for religious and charitable purposes are without restriction. However the right to acquire and own property shall be in accordance with law which meant the National Land Code 1965.

On my reading of the Article 11 of the Federal Constitution, I am in agreement with the submission of the Defendants that there is the unfettered right and freedom of a religious group to practise religion. There is hence no necessity for the group to be registered and regulated as a society under the Societies Act 1966. If a particular religious group wishes to regulate themselves, this may be done by statute instead such as the Roman Catholic Bishops (Incorporation) Act 1957 as an illustration.

Even if there is the requirement for registration under the Societies Act 1966, I have earlier held as follows in Mariayee M Krishnan & Ors v National Land Co-operative Ltd & Anor [2015] 4 MLRH 138 affirming the validity of the contracts in respect of the purchase of properties by an unregistered association: 75 “[53] Furthermore, the First Defendant submitted that the Association contravened s 6(2) of the Societies Act 1966 which prescribed that: “Until a local society is registered under this Act, no person shall, without a written permission of the Registrar, organize or take part in any activity of or on behalf of the society, except only to apply to, or correspond with the Registrar.” In short the Association was an unlawful society and any contract concluded by the Association is hence unenforceable as decided in Vethanayagam v Karuppiah & Ors [1968] 1 MLJ 283and SM Ameer Batcha v V. K. Kunjumon [1959] 1 MLJ 59. I observed that in both the cases, the dispute was between the unregistered society and its member(s). It is in my view distinguishable from the dispute herein particularly the role played by the Association. That notwithstanding, the Association here merely comprised of a group of house owners with a singular non perpetual purpose, to wit; to negotiate with the Defendants on the housing relocation scheme. By virtue of the case of Dato Ambiga Sreenavasen & Ors v Menteri Dalam Negeri & 76 Ors [2012] 7 CLJ 43, I acknowledge that the Association would nonetheless in law be treated as an unlawful society under the Societies Act 1966 but the legal consequence would in my view be the attraction of the penalties stipulated in the statute for the actions of the Association…” I wish to also add here that I could not see how the object of purchasing property by an unregistered society to be used as a temple can be considered as illegal in breach of s. 24 of the Contracts Act 1950 as so contended by the Plaintiff.

In the premises, I further hold that the First to Fourth Defendants validly purchased the Properties as trustees for the Society notwithstanding that it wasn’t a registered society back then in 1993.

I have reviewed the other issues (iii) to (viii) listed in paragraph 23 above and find that they are all conditioned upon the supposition that Veerappa had the right and capacity to sell the Properties to the First to Fourth Defendants as trustees. By virtue of my findings in paragraphs 32, 39 and 40 above, they are in my opinion now 77 irrelevant and need not be determined. Besides by making a finding on them at this stage, it may also affect and prejudice the stand that will be taken by the administrator of the estate of Umayal Achi and/or the administrator de bonis non of the estate of Ramasamy in the future consequent to this suit.

Since the Properties have all been compulsorily acquired by the State, the compensation sum must necessarily be made out to the right and proper party to wit the estate of Ramasamy. As far as the Defendants are concerned, they do not have a stake in rem in it by virtue of my above findings but a right in personem in restitution against the Estate of Kannappan for the lump sum of

Moreover, it follows that the Estate of Kannappan must also pay back into Court in restitution the compensation sum of RM1,736,338.00 received pursuant to the OS proceedings. It is beyond the jurisdiction of the Court to deal with it here in this suit and this has necessarily to await the Land Administrator, Daerah Barat Daya Pulau Pinang taking the requisite action in this respect. 78

I acknowledge this is a rather bizarre unexpected outcome beyond the contemplation of the parties at the filing of this suit. In my view, it has however to be so as dictated by justice meted in accordance with the rule of law. In Pasupathy Kanagasaby v Masterskill (M) Sdn Bhd & Anor and Another Appeal [2017] 1 LNS 106 CA, David Wong Dak Wah JCA (now FCJ) held as follows: “[30] The law on pleadings is simply that parties are bound by them. That is trite (see Amanah Butler (M) Sdn Bhd v. Chee Wah [1997] 2 CLJ 79). What that means is that parties in an adversarial system are duty bound, may it be through their legal advisers or otherwise, to frame their causes of action or defences as best they can to advance their causes. The Court is nothing but a neutral umpire in that it will only resolve disputes as framed by the parties themselves. Thus, the Court is not at liberty to fashion a cause of action or a defence in the name of doing “justice” to the case. Noble as that idea may be, such activism may put the Court in a position where the losing party may get a perception of bias 79 in the judicial process. Such perception must not exist at all. In any event, under the present regime of procedural rules of active case management prior to trial by the Court, the parties’ legal advisers have no excuse not to put “all their cards on the table” so to speak so that no one is caught by surprise as to what are the issues in dispute. The only exception to what we have said would be, in our view, that there appears quite succinctly ex facie illegality on the acts presented to the Court. That said, we now look at how our apex Courts have treated the omnibus prayer. [31] In Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v. Balakrishnan Kaliannan [2013] 7 CLJ 413, the Federal Court was called upon to express its view what the “omnibus” prayer entails. It was the contention of the Defendant there that the High Court Judge was wrong to order the Defendant to pay to the Plaintiff the balance of the purchase price when the reliefs sought by the Plaintiff were the rescission of the agreement, for the deposit of RM 250,000 to be forfeited, for rectification of the land register and for damages. 80 [32] The Federal Court, through Hassan Lah FCJ, had this to say: [21] With respect I am unable to agree with the contention by the defendant that the proceedings tried in the High Court was not for the recovery of any debt or damages, as the remedies sought by the plaintiff were for rescission of the agreement, for the deposit of RM 250,000 to be forfeited, for rectification of the land register and for damages. It is to be noted that in prayer (G) of his statement of claim the plaintiff prayed for “Lain-lain dan/atau apa-apa relif dan/atau perintah berlainan atau berlanjutan yang Mahkamah Yang Mulia ini fikirkan suai dan manfaat” “(Any other or further relief or order which this Honourable Court deems fit)”. This omnibus prayer must not be treated as a mere ornament to pleadings devoid of any meaning (see Lim Eng Kay v. Jaafar Mohamed

Said [1982] CLJ 298; [1982] CLJ (Rep) 190; [1982] 2 MLJ In Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771; [1996] 1 MLJ 261 Gopal Sri Ram JCA at pp. 814-815 (CLJ); p.301 (MLJ) said: 81 In his statement of claim, the appellant has also prayed for ‘further or other relief as this Honourable court thinks fit.’ In Lim Eng Kay v. Jaafar bin Mohamed Said [1982] 2 MLJ 156 at p.160, a prayer in a statement of cliam read ‘Any other relief which this Honourable court deems fit to grant.’ Salleh Abas FJ (as he then was) said that this prayer ‘must not be treated as a mere ornament to pleadings devoid of any meaning’. I am of the view that the same may be said of the like prayer in the present case. This court should, in my judgment, award the appellant such relief as is inappropriate in the circumstances of the case. …”

For the foregoing reasons, the original claims and counterclaims as put forth by the parties are dismissed. However I order that the Plaintiff in his representative capacity pays the sum of RM100,000.00 to the Fifth Defendant with 5% interest from the 82 filing of this suit till full realisation based on the residual omnibus prayer in the Counterclaim.

The Plaintiff in his representative capacity shall pay costs of RM18,000.00 to the Defendants. There shall be no order as to costs as between the other parties. Dated this 26 June 2018 t.t LIM CHONG FONG JUDGE HIGH COURT GEORGETOWN PENANG 83 COUNSEL FOR THE PLAINTIFF IN THE ORIGINAL CLAIM AND FIRST AND THIRD DEFENDANTS IN THE COUNTERCLAIM: GANAPATHI RAMASAMY SOLICITORS FOR THE PLAINTIFF IN THE ORIGINAL CLAIM AND FIRST AND THIRD DEFENDANTS IN THE COUNTERCLAIM: AL SABRI & CO COUNSEL FOR THE DEFENDANTS IN THE ORIGINAL CLAIM AND PLAINTIFFS IN THE COUNTERCLAIM: LEE KHAI (TEH CHIEW YIN WITH HIM) SOLICITORS FOR THE DEFENDANTS IN THE ORIGINAL CLAIM PLAINTIFFS IN COUNTERCLAIM: ONG MANECKSHA COUNSEL FOR SECOND DEFENDANT IN COUNTERCLAIM: SITI FATIMAH BINTI TALIB SOLICITORS FOR SECOND DEFENDANT: PEJABAT