…..” 225 [20] In support of the Plaintiff’s claim, D1 whose father is Kaly i.e. one of the two original purchasers, affirmed a statutory declaration (Encl 16 11 exhibit C-1) and an affidavit (Encl 20) deposing that Sellan and Kaly were to each get half share from the acquisition from the 1971 Agreement and the transfer that was carried in 1973 which saw the 230 Sellan faction getting 3/20 and the Kaly faction getting 7/20 share to be a mistake and is wrong. D1 also averred that he pays RM40 yearly being the share of the Kaly’s faction to the Plaintiff for the quit rent payable for the said Property. 235 [21] Armed with the aforesaid D1’s admission, the Plaintiff sought judgment in his favour and he cited the following passage from the dissenting judgment of Abdul Hamid Mohamad JCA (as His Lordship then was) in the case of Re Geoffey Robinson QC [2001] 4 MLJ 257 CA at p 263 para F: 240 “In a civil claim, the plaintiff is claiming against the defendant. If the defendant admits the claim, the court is obliged to give judgment for the plaintiff. If the defendant puts up a certain defence, the court only considers that defence. If both parties agree to a certain fact, the court must accept that fact.” 245 [22] With the quit rent being RM160 per year, arithmetically, RM40 works out to be ¼ of the share in the said property (Encl 21 paragraphs 8 to 11) and the proportion of such a contribution further supports the 250 Plaintiff’s claim. 12 [23] In short, the Plaintiff in this action claims for a declaration that by reason of the mistake that took place in 1973 in the transfer exercise, the Sellan group should rightfully be entitled to ¼ undivided share in the said Property and that the three issue documents of titles to the said 255 Property be amended with suitable memorials to reflect this. [24] It is the Plaintiff’s contention that the 1971 Agreement was meant for both Sellan and Kaly to take half share of what they had purchased. The Plaintiff submits that this contractual operation ought to be given 260 effect to and cites section 206 (3) of the NLC which provides that “Nothing in sub-section (1) shall affect the contractual operation of any transaction relating to alienated land or any interest herein.” The other authorities relied upon by the Plaintiff for this principle were: Kimlin Housing Development Sdn [Appointed receiver and manager] [In 265 liquidation] v Bank Bumiputra [M] Bhd & Ors [1997] 3 CLJ 274; [1997] 2 MLJ 805, Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1992] 1 LNS 7; [1993] 1 MLJ 443, Rabiah bt Lip & Ors v Bukit Lenang Development Sdn Bhd and other appeals [2008] 3 CLJ 692; [2008] 5 MLJ 128 and an extract from the book National Land Code – 270 A Commentary-2nd Edition-Judith Sihombing. 13 Rival contentions 275 [25] As can be seen above, D1 supports the Plaintiff’s claim. [26] D12 to D19 being the Muniandy group has shown no interest in the action and have not participated at all in the proceedings. 280 [27] However, D2 to D11 challenged the Plaintiff’s claim on the premise that his claim is too stale with limitation having set in long ago (Encl 12 paragraph 25) and that there was no mistake at all with the transfer having been effected with the services of a lawyer as can be seen in the Transfer Form 14A (Encl 2 paragraph 16 exhibit MA-3). Reliance was 285 placed upon section 9(1) of the Limitation Act which provides that: “No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person.” 290 [28] With the Transfer Form 14A having been executed on 21.4.1972 and the transfers effected to the respective Sellan and Kaly groups on 295 7.8.1973, and this action having been filed on 2019 that is 47 years later, the action ought to be dismissed as it is time barred. 14 [29] D2 to D11 also submitted that the Plaintiff’s action is barred by reason of laches and acquiescence given the Plaintiff’s inaction for so 300 many years or in other words, there was no reasonable diligence at all on the part of the Plaintiff. Similarly as the Plaintiff’s action is for an equitable remedy in the form of a declaration, the Court ought not to exercise its discretion in favour of an applicant such as the Plaintiff who is guilty of delay, laches and acquiescence, see Syarikat Showkat 305 Industries & Realities Bhd v Gergaji Development Sdn Bhd [2018] 1 LNS 1584; [2018] MLJU 1486 CA and Rahamah Bt Gujing @ Ibrahim & Ors v Liew Vui Yin & Ors (Government of the state of Sabah, third party) [2008] 1 LNS 520; [2009] 7 MLJ 213 where a delay of three years was held to be sufficiently fatal to refuse relief and in this case, 310 the delay is 47 years. [30] With the parties and their respective shareholding having been registered, D2 to D11 submit that the title they have acquired is indefeasible citing section 340 of the NLC and Adorna Properties Sdn 315 Bhd v Boonsom Boonyanit @ Sun Yok Eng [2001] 2 CLJ 133; [2001] 1 MLJ 241 FC. [31] D2 to D11 avers that nowhere is it set out (Encl 14 paragraph 6) that Sellan and Kaly were to each get half share each under the said 320 15 1971 Agreement. They pointed out that the Plaintiff himself executed the Transfer Form 14A on 21.4.1972 (Encl 14 paragraph 15). [32] D2 to D11 also pointed out that (Encl 14 paragraph 27) the Plaintiff was 37 years old and a teacher at the time the Transfer Form 14A 325 (Encl 2 exhibit MA-3) was executed and that Sellan himself, who was one of the original [two] purchasers had executed the Transfer Form 14A with him agreeing that his share was 1/20 and that of the Plaintiff, 1/20 as well. The Plaintiff cannot be allowed to plead that he was not aware or that he was in ignorance of the mistake when limitation has set in. In 330 Jeyasurian a/l Periasamy v Periasamy a/l Vellasamy [2016] 1 LNS 1151; [2017] 1 MLJ 638, the Court of Appeal held that it is highly improbable that a man who is 72 years old who grew up in Malaysia throughout his life cannot understand Bahasa Melayu and that a reasonable person would not have proceeded with the transaction if he 335 did not understand the contents. Court’s analysis and findings D2 to D11 340 [33] In dealing with the Plaintiff’s claim as against D2 to D11, right at the outset, the Court is mindful that this is an action commenced by 16 Originating Summons. Evidence was by way of affidavits. Where there is a serious dispute of facts, the Court has the discretion to order the proceedings to be continued as if begun by writ and for the 345 determination of the disputed facts to be by oral evidence: Husli Mok v Jundar Realty Development Sdn Bhd & Anor [2014] 2 CLJ 205 CA. [34] On the facts that obtain in this case, the Court was of the opinion the critical issue was a simple matter of construction of the 1971 350 Agreement against the contemporaneous documentary evidence which was the Transfer Form 14A. [35] Whilst the 1971 Agreement was silent on the share that Sellan was to take, the following undisputed facts drove the Court to the conclusion 355 that it was inherently probable that the Sellan group was to take only 3/20 undivided share: i) the names of Sellan who was one of the original [two] purchasers and the Plaintiff himself appear on the Transfer 360 Form 14A and there is no dispute at all that they signed this form which was stamped; ii) the Transfer Form 14A (Encl 2 exhibit MA-3) sets out explicitly that each party was to take 1/20 share; 17 iii) this Transfer Form 14A carries an execution date of 21.4.1972 365 which is very close in time to the 1971 Agreement which was dated 24.7.1971; in other words it is a contemporaneous document worthy of high probative value; iv) the Transfer Form 14A is very much closer in time compared to the other piece of document that the Plaintiff wishes to rely 370 upon, that is, the quit rent receipt of 2019 (Encl 2 exhibit MA-6) and with time required for the purchasers to effect payment and the transfer form executed by Sellan and the Plaintiff himself, then 37 years old at the time, the Transfer Form 14A which was executed in 1972 would be a much stronger piece of admission 375 evidence compared to the belated D1’s statutory declaration made in August 2018 (Encl 16 exhibit C-1) and affidavit made in November 2019 (Encl 20); v) the Transfer Form 14A was duly attested by an Advocate & Solicitor who would have explained the contents to the parties 380 who executed the document; and vi) since the transfer of the respective shares on 7.8.1973 with the Sellan group getting 3/20 share and the Kaly group getting 7/20 share, the parties were content for 46 years. 385 18 [36] In other words, the Court is satisfied that given the circumstances that obtain in this case, it is implausible, in fact, highly implausible, that the Sellan group would have agreed to take 3/20 share in 1972 or for that matter in 1973 if there was an agreement that Sellan was to take a share equal to that of Kaly under the 1971 Agreement. 390 [37] In disposing of the action in this manner, the Court derived support from the principle laid down by the Privy Council on the treatment of conflict of evidence on affidavits in Eng Mee Yong & Ors v V. Letchumanan [1979] 1 LNS 18 and which was adopted with approval 395 by our Supreme Court in Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 CLJ Rep 14 that: “Although in the normal way it is not appropriate for a Judge to attempt to resolve 400 conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit evidence however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.” 405 [38] In any event, other than the interested party (the Plaintiff), with both Kaly and Sellan having passed away and the transaction having taken place so long ago with no mention made of any other relevant witness who may still be around to give any viva voce evidence, or any 410 19 other evidence available, having a trial would not serve much, if any, useful purpose. [39] With the Court having rejected the theory advanced by the Plaintiff in his action that contractually the Sellan group was to get half of the said 415 Property acquired by Kaly and Sellan, the reliance upon the provisions of section 343 NLC and the authorities of Mohamed Moidu Bin Mohamed & Anor v Hassan Bin Kadir & Ors (supra) and Gurdial Singh a/l Sohan Singh v Nanak Singh a/l Sohan Singh (supra) were wholly misplaced. 420 [40] For the sake of completeness, even if the Sellan group was to get half share of the said Property purchased under the 1971 Agreement, the Court agrees with the submissions put up by D2 to D11 that the 425 Plaintiff by reason of lack of reasonable diligence cannot rely upon the concept of mistake under section 29 of the Limitation Act to suspend the operation of limitation and by reason thereto, the Plaintiff’s claim is clearly and hopelessly time barred. In a similar vein, the cases of Credit Corporation (M) Sdn Bhd v Fong Tak Sin [1991] 1 CLJ Rep 430 69; [1991] 1 MLJ 409 SC, Fairchild Semiconductor (M) Sdn Bhd v Towam Sdn Bhd 2017] 1 LNS 1608; [2017] MLJU 1665 HC did not 20 assist the Plaintiff at all. In fact, the principle in the Supreme Court authority of Credit Corporation (M) Sdn Bhd (supra) held that the provision of section 29 to suspend time was to protect a plaintiff who 435 was ignorant of his right of action in the special case of fraudulent concealment (emphasis added) and there was no such allegation at all. Whilst it may sound repetitive, both Sellan and the Plaintiff were themselves the parties who executed the Transfer Form 14A in 1972. 440 [41] By reason of the Court’s findings, the other authorities relied upon by the Plaintiff as against D2 to D11, namely, Kimlin Housing Development Sdn [Appointed receiver and manager] [In liquidation], Templeton, Rabiah bt Lip & Ors v Bukit Lenang Development Sdn Bhd and other appeals and the extract from the 445 book National Land Code – A Commentary-2nd Edition-Judith Sihombing would all be irrelevant. D1 450 [42] As against D1, whilst it may sound inconsistent, unlike D2 to D11 who had successfully challenged the Plaintiff’s claim, D1 has admitted the Plaintiff’s claim and relief ought to be given to the Plaintiff as against D1. For the avoidance of doubt, the Court does not find his admission to 21 be binding on D2 to D11 as the Court found his story to be implausible 455 and against contemporary documents. [43] However, the Court, guided by the principle quoted by the Plaintiff from the dissenting judgment of Abdul Hamid Mohamad JCA (as His Lordship then was) in the case of Re Geoffey Robinson QC (supra) 460 and that the Court has the power to formulate the relief to be given (see Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff Bin Shah Mohd & Ors and other appeals [1997] 2 CLJ 6 CA), allowed the Plaintiff’s claim only as against the shareholding registered under the name of D1 in the said Property, with the proportion to be assessed, if 465 necessary. In amplification, the Court imposed a constructive trust upon D1 wherein he is to hold such shares from his own personal shareholding which he had admitted ought to be transferred to the Plaintiff. 470 [44] The creation of a constructive trust is recognised by law as a device to impose an obligation on a party to hold the property for the benefit of another, see Sabah Development Bank Bhd v Petron Oil (M) Sdn Bhd [2020] 4 CLJ 811 where Nallini Pathmanathan FCJ set out a summary on the law of constructive law which is reproduced below:- 475 22 The Law Relating To Constructive Trusts [89] The leading case authorities of Takako Sakao (which adopted the test in the Paragon Finance ) and Carl Zeiss Stiftung v. Herbert Smith & Co [1969] 2 Ch 276, 300) and Tay Choo Foo v. Tengku Mohd Saad Tengku Mansur & Ors 480 And Another Appeal [2009] 2 CLJ 363 (which relied on, among others, the cases of Hussey v. Palmer [1972] 3 All ER 744 and Westdeutsche Landesbank Girozentrale v. Islington London Borough Council [1996] AC 669) have established that a constructive trust arises by operation of law when the circumstances are such that it would be unconscionable for the owner of the property 485 in dispute to assert his own beneficial interest in the property and deny the beneficial interest of another. As comprehensively expressed in these cases, constructive trust is a remedial device that is imposed by equity to satisfy the demands of justice and good conscience without reference to any express or presumed intention of the parties. 490 D12 to D19 [45] Analogous to the situation for D1, although they have not expressly admitted the Plaintiff’s claim, they have not challenged his 495 claim in this action and it is expressly set out in section 4 of the Limitation Act 1953 (Revised 1981) (Act 254) which is reproduced below, that limitation as a defence has to be expressly pleaded: “Nothing in this Act shall operate as a bar to an action unless this Act has been 500 expressly pleaded as a defence thereto in any case where under any written law relating to civil procedure for the time being in force such a defence is required to be so pleaded.” 505 [46] Wherefore, the Plaintiff’s claim as against D12 to D19 is similarly allowed on terms similar to that for D1 that is they are to each hold a proportion of their shareholding in the said Property on constructive trust 23 for the benefit of the Plaintiff, with the proportion to be assessed, if necessary. 510 CONCLUSION [47] In the circumstances, the Plaintiff’s claim against D2 to D11 was dismissed by the Court with costs of RM20,000 subject to allocatur. The 515 Plaintiff’s claims against D1 and D12 to D19 were allowed only as against their respective shareholding in the said Property with each of them to hold such proportion of each of their individual shareholding in the said Property, to be assessed, if necessary, on trust for the benefit of the Plaintiff and with the Plaintiff not having sought any costs against D1 520 and D12 to D19, no order for costs against them was made. Dated: 12 November 2020 525 (SU TIANG JOO) Judicial Commissioner High Court in Malaya 530 Ipoh, Perak 24 Parties: Counsel for the Plaintiff Ravichandran Selliah with Tan Yee Nee 535 Messrs S. Ravichandaran & Anuar Advocates and Solicitors Ipoh, Perak Counsel for the Defendants 540 Valarmathy Munisamy Messrs Valar & Associates Advocates and Solicitors Klang, Selangor 545 Limitation – disputed transaction made 47 years ago - whether mistake made out to suspend limitation - whether reasonable diligence undertaken 550 Land law-admission by one of several defendants-whether binding on the other defendants – whether Court can grant inconsistent reliefs Trust – non-appearance by several defendants - whether Court can formulate relief and impose constructive trust against them 555