Mat Saad Bin Ahmad v 1. ) Mohamad Sukri Bin Abdullah (KA-22NCvC-2-01/2020)

AND MOHAMAD SUKRI BIN ABDULLAH (NRIC No: 690102-02-5745)

MOHAMAD SUKRI BIN ABDULLAH (NRIC No: 690102-02-5745) (as personal representative to the estate of Dahman bin Haji Mat Akib, the deceased) …DEFENDANTS GROUNDS OF JUDGMENT (After Full Trial) Introduction 1. “Possession is nine-tenths of the law,” the old adage goes — but in the realm of undivided land and co-ownership, that final tenth can be fiercely contested.

The Plaintiff in this case (“Mat Saad bin Ahmad”) claims that his undivided shares entitle him to exclusive possession of a portion of 11/10/2025 23:14:30 KA-22NCvC-2-01/2020 Kand. 92 S/N 3dbnn06HUugv8P9S9qZUw …page 2 the land and alleges that the Defendants have unlawfully interfered with his rights. The Defendants, Mohammad Sukri bin Abdulah, his personal capacity and as one of the beneficiaries of the estate of the late Dahman bin Haji Mat Akib, resist this claim, asserting that the land has long been apportioned among co-owners through mutual understanding.

Against this backdrop, the Court is called to answer several key questions. First, does the Plaintiff’s undivided share confer a right to exclusive possession of any specific portion of the undivided land? Second, can the Plaintiff override the long-standing communal arrangement among co-owners in asserting such a right?

Both the Plaintiff and the Defendants are registered owners of an undivided share of land known as Lot 637, Mukim Ayer Puteh, Paya Saga, Daerah Pendang, Kedah Darul Aman (“the Subject Land”). The Plaintiff possesses 10032/50688 whereas the Defendants own 6384/50688 of the subject land. There are 14 other co-owners who are not parties to this dispute.

It was undisputed that each co-owner held a specified undivided share as show in the Subject Land’s title deed and was delineated physically by the site of each co-owner’s respective residential compound. S/N 3dbnn06HUugv8P9S9qZUw …page 3

On 11 March 1989, the Plaintiff first acquired a 5016/50688 share (“Plot 1”) from previous co-owner, Lin binti Ahmad. About 21 years later, on 27 June 2010, he further acquired another 5016/50688 portion (“Plot 4”) of the Subject Land from Muhamad Rosidi bin Ibrahim bringing it up to a total of 10032/50688. However, the Plaintiff did not take over physical possession of Rosidi’s land at the time. A plan (Exhibit D2) was drawn up by DW-5 to illustrate their respective positions. Although the Plaintiff disputed the plan, there was no real contest or counter-report prepared to prove there was any alternative measurement.

The plot immediately adjacent to the Plaintiff’s Plot 1 is Plot 2, which is a property under the estate of the late Dahman bin Haji Mat Akib. The First Defendant is currently occupying the house built on Plot 2. The First Defendant is also one of the beneficiaries of the estate.

The Plaintiff claimed that the First Defendant had interfered with the process of the Plaintiff’s appointed land surveyor in measuring the area that the Plaintiff is currently in possession of, which purportedly does not involve the Defendants’ share of the subject land, by:

(i). Restricting a land surveyor from the Pendang Land Office from marking boundaries of the Plaintiff’s share of the subject land;

(ii). Erecting fences encroaching and blocking paths leading to the Plaintiff’s share of the subject land; S/N 3dbnn06HUugv8P9S9qZUw …page 4

(iii). Digging a drain encroaching into the Plaintiff’s share of the subject land; and

(iv). Issuing threats to the Plaintiff alleging that the Plaintiff is only mooching off his mother’s share of the subject land.

It was agreed that the interference began from the year 2010. The Plaintiff’s Submission 10. The Plaintiff submitted that his claim does not involve any one undivided share, and the measurement process does not involve the interests of the estate of the deceased’s estate. Further, the Plaintiff contends that the Defendants’ allegation of the subject land being an ancestral home including the Plaintiff’s portion is a ‘cooked-up story’.

On this point, the Plaintiff submitted that the plan drawn up, Exhibit D2, was incorrectly measured and does not reflect the actual measurements and portion of the Plaintiff's and Defendants’ shares.

Furthermore, the Plaintiff submitted that the Second Defendant’s capacity as a representative of the deceased's estate was a self-appointed position. In the absence of a letter of administration, he is not entitled to a judgment and does not qualify for the exceptions afforded under the law for commencing an action without first S/N 3dbnn06HUugv8P9S9qZUw …page 5 obtaining a letter of administration.

In addition to the above, the Plaintiff submitted that the First Defendant is not a beneficiary to the estate of the deceased in the absence of a sijil faraid.

Thus, for the above reasons, the Plaintiff claims that the Defendants has no locus or claim against him. The Defendant’s Submission 15. The principle of co-ownership or co-proprietorship is recognised by section 343(1) of the National Land Code which takes form as a tenancy-in-common. Therefore, there can be more than one registered owner in an undivided land where each co-owner holds and is entitled to use and enjoy the entire land and thus cannot be ousted from the land.

Hence, the understanding between co-owners of the subject land where their physical share would be represented by the erected houses and their respective occupied compounds, would be respected and be given effect by the law. Several case laws were cited to support this argument.

Therefore, the Plaintiff’s actions to expand his physical portion from the share he is currently occupying would be in defiance of this form S/N 3dbnn06HUugv8P9S9qZUw …page 6 of communal understanding—an agreement. This would renege their decades-old arrangement and potentially incite unrest and disorder within the hamlet.

The First Defendant also contends that he had exercised lawful measures to prevent the Plaintiff’s encroachment over the Defendants’ share of the subject land. Nevertheless, the elements of private nuisance were not fulfilled as the Plaintiff failed to prove continuous interference as opposed to isolated incidents.

For good measure, the Defendant also submitted that the Plaintiff’s claim for nuisance and defamation is barred by limitation as it occurred 10 years ago. Findings and Decision of the Court 20. At the outset, I note that the Plaintiff had initially pleaded private nuisance and defamation in their Statement of Claims but has abandoned it at the submission stage, as evident in the lack of any submissions on these issues. Also, during the oral clarification session, counsels for the Plaintiff had confirmed that they are not only asking for the right to survey but also to consolidate Plot 1 and Plot 4 into one single lot by moving Plot 4 to the land immediately adjacent to Plot 1.

During trial, the following witnesses were called: – S/N 3dbnn06HUugv8P9S9qZUw …page 7

(i). PW-1: Mat Saad bin Ahmad, the Plaintiff.

(ii). PW-2: Nurul Nasuha binti Mat Saad, fellow resident.

(iii). PW-3: Neamat bin Ali, contractor of the Plaintiff’s residence.

(iv). DW-1: Muhamad Sukri bin Abdullah, the Defendant(s).

(v). DW-2: Che Ah binti Latih, fellow resident.

(vi). DW-3: Eshah binti Sakban, fellow resident.

(vii). DW-4: Che Ah binti Man, fellow resident.

(viii). DW-5: Nur Fatin Syahirah binti Mohamad Sukri, surveyor.

Having read the written submissions for the Plaintiff and the Defendants, and hearing the oral arguments presented together with extensive study of the evidence, I have decided to dismiss the Plaintiff’s claim as a whole and allow the Defendant’s counterclaim. The following are my reasons.

The Plaintiff’s share was correctly identified and measured 23. The crux of the Plaintiff’s claim can be reduced to the Plaintiff believes that his share of the subject land is measurable and efforts to demarcate the share physically by surveyors have been interfered with unlawfully by the Defendants.

Although the agreed ‘Issues to be Tried’ consist of four issues for the Plaintiff and another three for the Defendants (not counting those abandoned by the Plaintiff), these issues revolve mainly concerning whether the Plaintiff has a right to conduct a survey and S/N 3dbnn06HUugv8P9S9qZUw …page 8 demarcate his share of the subject land if properly identified, and if so, to what extent this right has been infringed by the Defendants.

1.1. The Plaintiff’s shares of the subject land were correctly identified and measured 25. A significant part of the trial was taken up to establish whether both shares purchased by the Plaintiff were correctly identified and subsequently correctly measured as agreed by the co-owners.

The Plaintiff’s argument is that the Defendant is already residing within the share belonging to the late Dahman bin Mat Akib and vacant land is plentiful surrounding the plot. Not only that, but the Defendants has also erected a building on the land and hence taken possession of the share. The Plaintiff goes so far as to claim that only the Defendants had any issue with the Plaintiff and bore ill will.

The Defendants brought DW-5 to testify the position of each co-owner’s share in relation to the subject land. A drawing was produced and admitted as Exhibit D2 (Encl. 55) which is reproduced below for ease of reference. S/N 3dbnn06HUugv8P9S9qZUw …page 9

The drawing marks the ownership of each numbered portion, which is reduced in the table below for ease of reference. S/N 3dbnn06HUugv8P9S9qZUw …page 10 Plot No Owner 1 Mat Saad bin Ahmad 2 Dahman Haji Mat Akib’s Estate (the Defendants) 3 Mohamad Sukri b. Abdullah 4 Mat Saad bin Ahmad (previously, Muhamad Roshidi b. Ibrahim) 5 Siti Mariam bt Man 6 Halimah bt Saidin 7 Basiroh bt Hamid Puteh bt Baharom Mohd Basirudin Mohd Basri 8 Che Ah bt Latih 9 Aziz bin Ahmad Eshah bt Sakban Tesa bt Sakban 10 Jeriah binti Hashim 11 Che Rokiah Saidin 12 Aishah Saidin 13 Nurafniza bt Arif 14 Tom Ahmad 29. During testimony, DW-5 described in detail the lengths taken to measure the land as follows:

(i). He obtained the subject land’s bearings and location coordinates from the Department of Survey and Mapping’s S/N 3dbnn06HUugv8P9S9qZUw …page 11 records;

(ii). through the aid of computer-aided drawing software, he divided the land according to their shares with reference to the plans annexed in the land titles;

(iii). He measured the land in situ with the aid of a GPS system; and

(iv). He consulted with the residents on the location of each owner’s plots. The Plaintiff was apparently also notified of DW- 5’s measurement exercise but did not attend the residents’ consultation.

During the trial, the Plaintiff did not call their supposed surveyor to challenge DW-5’s survey drawing for reasons only known to them. As the only surveyor called to give testimony, DW-5’s testimony can be considered an expert opinion, and in the absence of any counter-opinion, I am inclined to accept the measurements as illustrated. I also find the explanation by DW-5 and the method adopted by DW- 5 convincing and sound. I also duly take note that it is undisputed that shares of each co-owner are derived from the agreement of all co-owners and marked by the presence of house erected for each co-owner, or resident, in this case.

The pieces of land in dispute are those within plots numbered 1, 2 S/N 3dbnn06HUugv8P9S9qZUw …page 12 and 4. The Plaintiff claims that Plot 2 as his own as he believes it belonged to Rosidi, whereas the Defendants argue that Plot 2 belongs to the estate of Dahman, the deceased and Plot 4 was the piece the Plaintiff purchased from Rosidi. The Plaintiff further claimed that Plot 2 does not have any landmarks or erected buildings to denote that the piece was occupied. Therefore, the Plaintiff is free to claim the unused land as part of his share. The Plaintiff went on to show that Plot 2 was a vacant land and has never been claimed possession, despite every other plot has been claimed through a residential building.

However, testimonies from DW-3 and DW-4—both long-time residents—showed that it is known within the community that Plot 2 belongs to at least the estate of the late Dahman Haji Mat Akib whereas Plot 4 belonged to Rosidi. This Plot 4 was later purchased by the Plaintiff. These testimonies were unchallenged during cross-examination. Both witnesses agree that the First Defendant had taken residence at Plot 2, as it was vested on him through inheritance.

The Plaintiff witnesses, PW-2 and PW-3, on the other hand, offered no reprise to their argument. PW-2 was called to challenge testimony from DW-5 but was unable to show credentials to prove her expertise in surveying. PW-3 was called to testify the ownership of Plot 2 but was unable to prove his familiarity with the subject land and the location of plots belonging to other co-owners. S/N 3dbnn06HUugv8P9S9qZUw …page 13

The only contention from the Plaintiff was that the First Defendant had no locus to represent the estate as he did not possess a letter of administration. This would be dealt with in the coming subsection. That aside, I find that the Plaintiff’s and Defendants’ shares of the subject land have been correctly identified as Plot 1 and 4 (for the Plaintiff), and Plot 2 (for the Defendants) all of which are accurately measured according to their respective shares.

The undivided land is subject to co-proprietorship rules 35. Having established that Plot 2 belongs to the Defendants, it appears now that the Plaintiff’s claim is that it could not have been the case that Plot 4 belonged to Rosidi and that this Court should swap the ownerships of Plot 2 and Plot 4. In usual circumstances involving a divided land, this would have been a frivolous claim, but such is a normal occurrence it seems when it involves an undivided land under a co-proprietorship. Therefore, the crucial question is whether the law allows for such an arrangement?

In answering this question, sections 342 and 343 of the National Land Code provide us with clear point of reference. These 2 sections are reproduced below for ease of reference: 342 Meaning of co-proprietorship, and when it arises

In this Act “co-proprietorship” means the holding of alienated land by two or more persons or bodies in undivided shares.

All alienated land vested in two or more persons or bodies S/N 3dbnn06HUugv8P9S9qZUw …page 14 shall be held by them as co-proprietors unless, pursuant to section 344 or 346, or the corresponding provisions of any previous land law, they are registered as trustees or representatives. 343 Incidents of co-proprietorship

Where any land is vested in two or more persons or bodies as co-proprietors—

their shares therein shall be deemed to be equal unless different proportions are specified in the memorial of registration;

they may at any time apply for the partition of the land under Chapter 2 of Part Nine, but, so long as their co-proprietorship continues, shall each be entitled to possession and enjoyment of the whole; and

on the death of any of them or, in the case of a body, its dissolution, the share to which he or it was formerly entitled shall not pass to the other or others, but shall devolve upon his personal representatives or, as the case may be, be disposed of in the like manner as its other assets.

Both the Plaintiff and Defendants agree to the fact that the subject land is undivided and thus fulfils the definition in section 342(1). Therefore, section 343(1)(a) comes into effect, providing that shares of co-owners are equal unless a specific proportion is mentioned during its registration. The section essentially codifies co-ownership, or co-proprietorship as it is formally known, and the principle of tenancy-in-common. This principle was discussed in the decision of Salleh Abas FCJ (as he then was) in the case of Tam Kam Cheong v Stephen Leong Kon Sang & Anor [1980] 1 MLJ 36 at p. 41: If one applies the concept of tenancy-in-common to this case, one will find that whilst the respondents' and the appellant's undivided shares are in different proportions, i.e. 2/7 and 5/7, respectively, hold the property by unity of possession and S/N 3dbnn06HUugv8P9S9qZUw …page 15 therefore occupy it promiscuously.

Later in the same page and the next at p. 42, Salleh Abas FCJ clearly set out that each co-owner share exact same rights as any other co-owner. Thus, the destruction of one co-owner’s property on or otherwise causes impediments on another co-owner to enjoy the undivided land, becomes actionable to achieve a remedy to restore his right. As co-owners, neither party has a better right than the other. Thus the destruction of part of the property, in this case, the sealing and demolition of staircase by the appellant would enable the respondents to ground an action against him. It makes no difference that the registration of their title as co-proprietors only took place on January 29, 1971, whilst the staircase was sealed six months earlier, because from the dates of their respective occupation of the building to the date of the registration the respondents and the appellant were already owners of the building, whatever the nature of their interests may be. We, therefore, agree with the submission of counsel for the respondents that even from the point of view of tenancy-in-common, the appellant cannot succeed in this appeal.

This line of reasoning was followed by a relatively recent decision by Hamid Sultan Abu Backer JC (as he then was) in the case of Law King Po & Ors v Sacofa Sdn Bhd & Ors [2008] MLJU 41. Thus, the principle of tenancy-in-common is not only good in law but is a codified principle within the National Land Code.

An arrangement between co-owners to claim exclusive ownership on a specific portion of undivided land is no stranger to our legal history. This is evident in the decision of Ong J (later CJM) in the S/N 3dbnn06HUugv8P9S9qZUw …page 16 case of Murugappa Chettiar v Chinniah [1962] 1 MLJ 95 where, upon finding the plaintiff had agreed that the defendant would have the front portion of the land on which a house was erected, the court decided the plaintiff could not subsequently go back on his words at p. 99: I accordingly find as a fact that the defendant had built his house on the faith of an agreement with the plaintiff for partitioning of the land so that each party should be sole owner of the portion under his own exclusive occupation. Such an, agreement affords a complete answer to the plaintiff's claim.

In another decision quoted by both parties, GP De Silva & Ors v Chua Yam Thong [1962] 1 MLJ 236, the allegation by the defendant was that there was an agreement by the co-owners to a certain portion of the land. Suffian J (later LP) at p. 237 clearly articulated the principle of co-proprietorship as to its application in an agreement between co-proprietors, whether in mistake or in fact: The law on the first issue, as I understand it from section 44(i) of the Land Code, Cap. 138, is that the co-proprietor are entitled to the land in undivided shares in the proportions specified on the register. As land includes “things attached to the earth”, section 2, this means that they are also entitled to the fruits of the houses built by the defendant, in undivided shares in the proportions specified on the register. But if in fact it is true, as the defendant alleges, that when he bought the land in 1951 the then co-proprietors agreed that he should get Portion A, then the other co-proprietors are no longer entitled to any interest in Portion A or in any of the houses built on it.

It is evident that the courts have recognised any arrangements between co-owners in an undivided land through principle of equity. This was pronounced clearly in the case of Lye Kim Hiang & Ors v S/N 3dbnn06HUugv8P9S9qZUw …page 17 Tan Ah Kaw & Ors [2007] 1 MLJ 116; [2006] 4 CLJ 767. In this case, it was not disputed that although the subject land was not partitioned, a plan was drawn up showing the lot of land held by each purchaser. Further, the boundaries between each of the lots of the several co-proprietors as shown on the map were strictly adhered to. The decision of Gopal Sri Ram JCA (as he then was) recognised the arrangement of parties as they have behaved in such a way to recognise each other’s rights to their respective portions on the subject land at p. 120: The position in this case is clear enough. The evidence on record reveals that the parties to these proceedings behaved towards each other over a considerable period of time, some 30 years or more in such a way as to recognise each other’s rights to their respective portions on the subject land.

For that reason, His Lordship Gopal Sri Ram JCA at p. 121 found that it was inherently unfair and must be determined by principles ‘substantially equitable’ to affect the arrangements of the co-proprietors on new owners of the undivided land: Applying well established principles to the peculiar facts of this case, it is crystal clear that it would be unfair or unjust to allow the defendants to go back on the common underlying assumption on which they and the plaintiffs have acted upon over all these years. The defendants therefore cannot say that they are not parties to the said agreement and are consequently bound by it or by the plan. They cannot be allowed to assert their legal rights as registered co-proprietors of undivided shares in the subject land because it would be unjust for them to do so.

Based on the authorities discussed earlier, it would be apparent that any arrangements by the co-owners of the subject land should be S/N 3dbnn06HUugv8P9S9qZUw …page 18 respected by this Court and be taken into effect by any newcomers or subsequent owners, including the Plaintiff.

2.1. The Plaintiff’s claim would breach co-owners’ communal agreement 45. The history of the subject land stretches well over 60 years. It is evident through testimonies of DW-3 and DW-4 that a co-owner’s portion is delineated by the houses erected as well as the plants and trees surrounding. It is also a communal understanding that no co-owner is allowed to erect a house next to another co-owners. As discussed in the earlier section of this judgment, DW-3 and DW-4 had both testified that the co-owners acknowledged and recognised that Plot 2 belonged to the Defendants, whether in person or through the estate of Dahman Haji Mat Akib and that Plot 1 and Plot 4 are the plots of the Plaintiff.

If this Court were to allow and effectuate the Plaintiff’s claim that his portion of the land was located next to Plot 1 and not in Plot 4, the effects would have been catastrophic as was described by DW-5: Dan En. Azman kalaulah, kalaulah keluasan petak no.4 ini iaitu 0.133 hektar kalau dicampur dengan keluasan petak no.1 dan disukat, diukur daripada petak no.1 ke belah kanan, keluasan tu sampai kat mana? Boleh sampai kat mana? Dia akan menghabiskan petak no.2 ini, boleh menghabiskan hampir 90 peratus. Kawasan Dahman plot 2 tu akan dapat kepada plot kepada Mat Saad. S/N 3dbnn06HUugv8P9S9qZUw …page 19 So akan sampai kira-kira 90 peratus petak no.2 lah? SD5 90 peratus. Ya. Kalau sukat ke belah kanan? Betul. Kalaulah kita sukat petak no.4, keluasan petak no.4 campur dengan keluasan petak no.1 dari petak no.1 ke bahagian atas. Kalau kita sukat ke bahagian atas, keluasan boleh sampai ke bahagian mana? Dia akan pergi ke petak no.13 dan 14.

The Defendants premised that to allow the Plaintiff’s claim could potentially encourage other co-owners to expand their physical portions by acquiring another’s undivided share then claim the right to expand it. In the case between the Plaintiff and the Defendants, the effect would be taking up 90% of Plot 2 or taking up Plot 13 and 14 if it were to be measured vertically—hence demolishing the Defendants’ ancestral home. Notwithstanding their description on the chaos the Plaintiff’s claim would cause, I agree with the Defendants that this goes against the agreement between the co-owners. It is already established that this Court should effectuate any agreement between the co-proprietors of an undivided land if were already well rooted within them. This is exactly the practice and the arrangement in our present case.

Therefore, I cannot allow the Plaintiff’s claim seeing it clearly contravenes the agreement between co-proprietors on the plot locations and demarcation of the subject land. The Defendants have S/N 3dbnn06HUugv8P9S9qZUw …page 20 shown that the ancestral home and land squarely situate within the portions of Plot 2, and that Plot 4 is the portion belonging to Rosidi from whom the Plaintiff purchased. The Plaintiff is bound to these allocations as it is a form of communal agreement, uniquely recognised to be valid arrangements in an undivided land.

It is pertinent for me to note the principle of caveat emptor also applies to this case. Under cross-examination, the Plaintiff admitted that when he purchased Rosidi’s portion, he did not enquire with Rosidi which physical portion of the subject land belongs to him: Dan En. Mat Saad, bila kamu dapatkan pindahmilik bahagian Muhamad Rosidi sebanyak 5016/50688? Bila kamu dapatkan bahagian Muhamad Rosidi?

Ok, bahagian Muhamad Rosidi tu, sebelum kamu dapatkan pindahmilik bahagian dia, tapak kawasan Muhamad Rosidi kat mana? Atas Lot

Boleh kamu tunjukkan? SP1 Semasa saya beli dekat Muhamad Rosidi dia pun tak bagitau kat saya, kata dia cuma dia ada nama dalam geran. [refer Encl. 68, p. 19 – 20]

For the Plaintiff to come to court and claim that he wishes to swap Plot 4 for Plot 2 because he believed that was his correct portion only shows that the Plaintiff came with unclean hands. The Plaintiff was wholly aware that Plot 2 belonged to the Defendants but came to court to asset that he is able to reverse his mistake for not S/N 3dbnn06HUugv8P9S9qZUw …page 21 confirming with Rosidi which plot of land he would have purchased. It is unsustainable that the Plaintiff should claim property belonging to the Defendants but portraying as his and that he should be given a second shot to rectify the mistake.

2.2. The Defendants possess locus standi to contest 51. As mentioned earlier, the Plaintiff had also contested the locus standi of both the Defendants. It was alleged that the First Defendant had appointed himself as a personal representative of the estate of Dahman Haji Mat Akib, and therefore, in the absence of a letter of administration (LA), he is not entitled to any judgment. It was further submitted that the deceased had passed more than 20 years ago, and the only valid form of documentation is a private caveat dated 17 August 2010. Thus, it is further argued that the Defendants had never proven themselves as valid beneficiaries of the estate.

In reply, the Defendants argued that the contest was out of necessity to protect and preserve their right to the portion of the subject land, and that principles of the law allowed for beneficiaries to do so in the absence of LA. Although both parties referred to Al Rashidy bin Kassim & Ors v Rosman bin Roslan [2007] 4 MLJ 297, I find the decision S. Nantha Balan JCA in Lai Woo Giap v Rosli Zakaria & Anor [2020] 7 CLJ 477; [2020] MLJU 558 of most helpful: [70] In this case, the respondents had pleaded (para. 3 of the SOC) that they are the granchildren and lawful beneficiaries of S/N 3dbnn06HUugv8P9S9qZUw …page 22 Oomar. That would entitle them to an equity in the estate of Oomar. Thus, we have no doubt that in this case the absence of LA should not be an obstruction to the beneficiaries of the estate of Oomar to take legal steps to protect the subject land which has been proven (and which the appelant accepts) to have fraudently transferred to the appellant.

In Lai Woo Giap, His Lordship S. Nantha Balan JCA did not hesitate to decide that a beneficiary is entitled to take legal steps to protect the subject land even in the absence of LA. Although the case involves fraud and the actions were to prevent fraud, I am satisfied that a consequence of similar gravity would occur if the Defendants did not and is not allowed to challenge the Plaintiff’s case here. In short, the Defendants would have unjustly lost the entitled portion of Plot 2 if this suit was not contested.

With respect to the First Defendant’s status as a beneficiary, the Plaintiff disputed his recognition as a formal beneficiary under a sijil faraid within the context of the LA proceedings. It remains undisputed that the First Defendant is a descendant of Dahman Haji Mat Akib and is therefore factually a beneficiary of the estate. The formal distribution process is still ongoing and complicated by disputes among the beneficiaries. As a resident of Plot 2, the First Defendant seeks to assert his claim over that plot.

For this reason, I am unable to accept the Plaintiff’s reasoning that a judgment could not be made in favour of the Defendants for this mere technicality. The Defendants’ involvement in this case is to to preserve the status quo and the ownership of the estate in the Subject Land and not for the sole benefit of the First Defendant. S/N 3dbnn06HUugv8P9S9qZUw …page 23 Conclusion 56. Upon a full evaluation of the evidence and the applicable law, it is clear to me that the Plaintiff has failed to prove his claim. His assertion of exclusive rights over Plot 2 is contrary to the established communal allocation and, if upheld, would disrupt the balance of co‑ownership that has been observed for many years.

The Court affirms that the Defendants possess the locus standi to defend their interests and to maintain the integrity of the estate in the Subject Land. Accordingly, the Plaintiff’s claim is dismissed in its entirety, while the Defendants’ counterclaim is allowed. It is hereby ordered:

(i). that the measurement of the Plaintiff’s physical portion shall be made according to the original physical portions belonging to Lin bin Ahmad and Muhamad Roshidi bin Rahim i.e. Plots 1 and 4 respectively.

(ii). that the measurement of the Dahman bin Haji Mat Akib’s physical portion shall be made according to the original physical portions.

(iii). that the measurement of the Defendant’s physical portion shall be made according to the original physical portions belonging to Tom binti Ahmad and Endut bin Abdul Hamid. S/N 3dbnn06HUugv8P9S9qZUw …page 24

(iv). that the Plaintiff, his agents and/or representatives cease disturbing, threatening, or intimidating or provoking the Defendants and members of his family and their peace.

(v). costs of RM25,000 is to be paid by the Plaintiff to both the Defendants. Dated: 11th October, 2025 ..................................................................................... Dr. John Lee Kien How @ Mohd Johan Lee Judge High Court Malaya Alor Setar For the Plaintiff: R.S. Maniam and Nadarajan Arumugam Messrs. R.S. Maniam & Co. Advocates & Solicitors For the Defendants: Noorlaili Aziz and Ang Khoon Cheong Messrs. Laili & Co Advocates & Solicitors S/N 3dbnn06HUugv8P9S9qZUw …page 25 Index of Authorities Statutes Sections 342 and 343 of the National Land Code ................................. 13 Cases Al Rashidy bin Kassim & Ors v Rosman bin Roslan [2007] 4 MLJ 297 . 21 GP De Silva & Ors v Chua Yam Thong [1962] 1 MLJ 236 .................... 16 Lai Woo Giap v Rosli Zakaria & Anor [2020] 7 CLJ 477; [2020] MLJU 558 ..................................................................................................... 22 Law King Po & Ors v Sacofa Sdn Bhd & Ors [2008] MLJU 41 .............. 15 Lye Kim Hiang & Ors v Tan Ah Kaw & Ors [2007] 1 MLJ 116; [2006] 4 CLJ 767 ............................................................................................. 17 Murugappa Chettiar v Chinniah [1962] 1 MLJ 95 .................................. 15 Tam Kam Cheong v Stephen Leong Kon Sang & Anor [1980] 1 MLJ 36 ........................................................................................................... 14 S/N 3dbnn06HUugv8P9S9qZUw