MOHD EZAQ EKMAL BIN MAHAD v 1. ) Ab Karim Bin Dolmat Sebagai Wakil Diri Kepada Harta Pusaka Salehar Binti Selim (MA-21NCvC-29-12/2021)

AB KARIM BIN DOLMAT sebagai wakil diri kepada harta pusaka SALEHAR BINTI SELIM (NO. K/P: 470814-04-5256)

PENTADBIR TANAH DAERAH MELAKA TENGAH ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT A. INTRODUCTION [1] This action concerns the registration of a 7/48 undivided share in agricultural land held under Geran Mukim 635, Lot 1150, Mukim Tangga Batu, Daerah Melaka Tengah, Negeri Melaka in the name of one Salehar Binti Selim, now deceased and represented in this suit by her personal representative as the First Defendant. The land is held under Land Office title and is subject to the National Land Code (Penang and Malacca Titles) Act 1963. [2] The Plaintiff is the son of the late Daliyah Binti Hj Doraman, who at all material times was the registered proprietor of an undivided 1/4 share in the said land. By Form 14A executed on 31 July 2019 and registered through Perserahan No. 0401SC2019005229 on 21 August 2019, the 1/4 share was dealt with as a transfer for the stated consideration of "pemberian kasih sayang ibu kepada anak kandung" a gift made out of natural love and affection from a mother to her own child. [3] The outcome of the registration, however, was not a transfer of the entire 1/4 share to the Plaintiff. Upon registration, the Plaintiff received only 5/48, while 7/48 was registered in the name of Salehar Binti Selim, who is not the natural child of Daliyah but the wife of the First Defendant's representative. [4] The Plaintiff contends that on the face of Form 14A at the time of his signature and that of his late mother, only he was named as transferee, and that the insertion of Salehar's name and the recasting of the fractional shares were procured after attestation without the knowledge or consent of his mother, by means which were unlawful. He seeks, in substance, a declaration that the registration of the 7/48 share in Salehar's name is void and consequential relief to restore that share to him. [5] The First Defendant resists the claim on two principal bases: that the alterations were the product of a legitimate correction explained to and accepted by Daliyah at her home by an officer of the Land Office prior to registration, and that fraud has not been brought home to Salehar on the requisite standard. The Second Defendant maintains that registration was effected in accordance with internal Standard Operating Procedure on the strength of a document which, on its face, bore an official stamp authenticating the impugned alterations. [6] The Plaintiff does not plead, and has expressly disavowed in reply, any allegation of fraud or conspiracy to defraud against the Second Defendant. The case advanced against the Second Defendant is confined to a breach of its statutory duty under the National Land Code in accepting and registering an instrument said to have been materially altered after attestation. That distinction shapes the relief properly available against the Second Defendant and is addressed in due course. [7] The trial proceeded over two sitting days on 14 April 2026 and 20 April 2026. The Plaintiff called himself as the sole witness (SP1). The First Defendant called Ab Karim Bin Dolmat (SD1) witness, Azril Eddyra Bin Moksan (SD3), was called by the First Defendant. The Second Defendant called Nasshur Bin Noordin (SD4), the attesting officer, and Nurul Hayati Binti Munajat (SD5), the registering officer. [8] The real controversy is whether, on the evidence and the law, the Plaintiff has displaced the indefeasibility presumptively attaching to the registered 7/48 share in favour of Salehar under section 340(1) of the National Land Code, and whether such relief as he seeks against either Defendant follows. B. MATERIAL FACTS AND PROCEDURAL HISTORY [9] Save where stated otherwise, the following facts are either admitted on the pleadings, recorded in the agreed bundle of documents, or established without serious dispute on the Notes of Evidence. [10] Daliyah Binti Hj Doraman was the registered proprietor of an undivided 1/4 share in the land in question. The geran extract at Ikatan C confirms her registered share as 1/4 (Notes of Evidence ("NK") pp. 36-37). The contention raised in pleading that her "true" entitlement was 5/48 is, as a matter of register, not borne out by any contemporaneous entry adverse to the 1/4 share. [11] On 31 July 2019, Daliyah and the Plaintiff attended the Pejabat Tanah Daerah Melaka Tengah for the purpose of executing Form 14A. SD4 Nasshur Bin Noordin, then an officer with the Land Office, attested both signatures. The reason for the transfer recorded on page 11 of Form 14A was "pemberian kasih sayang ibu kepada anak kandung". [12] After attestation, the Plaintiff delivered the form to one Aziz Bin Atan, his maternal uncle, for the purpose of stamp duty adjudication at the Inland Revenue Board (LHDN). A letter dated 16 August 2019 from LHDN identifies the transaction as one "antara ibu saya Daliyah Binti Doraman dan saya" between the Plaintiff's mother and the Plaintiff alone. There is no reference, on the face of that letter, to any second transferee. The letter is an official document of an independent statutory body and is contemporaneous with the dealings in question. [13] Registration of the instrument took place on 21 August 2019. Upon registration, the Plaintiff was entered as proprietor of 5/48 and Salehar Binti Selim was entered as proprietor of 7/48 of the previously 1/4 share. The mathematical sum of 5/48 and 7/48 is 12/48, which equals 1/4. That arithmetic identity was admitted by SD3 in cross-examination (NK p.134). [14] The Plaintiff said that he came to know of the entries in favour of Salehar in or about May 2020 (WSP1, J.1.5). He lodged a police report on 24 August 2020. A caveat was entered on 6 September 2021. Daliyah died on 8 November 2020. Salehar died on 15 August 2022. Daliyah lived for some fourteen months after registration and did not in her lifetime commence proceedings or lodge any report of her own. [15] The pages of Form 14A produced in evidence (Ikatan C, pp. 11-14) display patent alterations on page 12. The handwriting in different parts is plainly not the same. The reason for transfer on page 11 was never amended to reflect the addition of a second transferee. A small official stamp ("cop kecil") appears next to the altered share entries, beside which appear initials. SD3 identified the stamp and the initials as his. C. ISSUES FOR DETERMINATION [16] Three principal issues fall for determination, which between them dispose of the claim:

whether fraud within the meaning of section 340(2)(a) of the National Land Code has been brought home to Salehar Binti Selim on the requisite civil standard;

whether, on the facts established on the Notes of Evidence, the instrument registered on 21 August 2019 is "insufficient or void" within the meaning of section 340(2)(b) of the National Land Code, so as to defeat the title taken by Salehar; and

whether the Second Defendant breached its statutory duty under Part Thirteen of the National Land Code in accepting and registering the instrument, and what relief in consequence is appropriate. [17] A subsidiary issue raised on the pleadings whether the true share of Daliyah ought to have been 5/48 rather than 1/4 is dealt with within Issue (b) since it bears on whether any genuine "correction" of the register was warranted on the facts. D. STATUTORY AND LEGAL FRAMEWORK

Form, execution and attestation of instruments of dealing [18] Section 207 of the National Land Code requires every dealing capable of registration to be effected by an instrument in the prescribed form. A transfer of a registered share is effected through Form 14A. Section 210 requires the instrument to be executed by the persons concerned. Section 211 requires execution to be attested by a person of the class specified in the Fifth Schedule, which for Malacca and Penang land includes the Pentadbir Tanah, the Penolong Pentadbir Tanah, or an officer of the Pejabat Tanah authorised in that behalf. [19] The plain object of attestation under section 211, read with the Fifth Schedule, is to assure the registering authority that the persons named as parties did themselves execute the instrument as drawn and in the form presented. It follows necessarily that an instrument materially altered after attestation, in respect of essential terms such as the identity of a transferee or the share transferred, is no longer the instrument that was attested. Such an alteration removes the attesting officer's assurance from the matter altered.

(ii) Fitness for registration and the registering authority [20] Sections 297 to 301 of the National Land Code structure the registration process. By section 301, an instrument is fit for registration only if, among other matters, it complies with the provisions of Part Thirteen as to execution and attestation. The registering officer must direct her mind to whether those conditions are satisfied. The duty is not discharged merely by the visual presence of a stamp on a page. Section 301 is the gateway provision. Where its conditions are not met, the instrument is not fit for registration and ought not to be registered.

(iii) Correction of errors by the Registrar [21] Section 380 confers a power to correct errors in documents of title or instruments. The power is qualified. Subsection (2) provides that, in respect of land held under Land Office title (which includes Land Office title under the National Land Code (Penang and Malacca Titles) Act 1963), the section 380 power is not exercisable save with the prior approval of the State Director of Lands and Mines. [22] In Mohammad Bin Buyong v Pemungut Hasil Tanah Gombak & Ors [1982] 2 MLJ 53 (FC), the Federal Court warned against construing section 380 as a general power conferring an unqualified authority on the Registrar to correct or cancel entries which strike at the root of indefeasibility. The corrective power is a narrow administrative power and is not a substitute for the controlled procedures by which substantive interests in registered land are altered.

(iv) Indefeasibility and its statutory exceptions [23] Section 340(1) confers indefeasibility on registered title. Section 340(2) sets out exceptions, of which two are material to this case: "(2) The title or interest of any such person or body shall not be indefeasible —

in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

where registration was obtained by forgery, or by means of an insufficient or void instrument; ..." [24] In Tan Ying Hong v Tan Sian San & Ors [2010] 1 MLRA 1 (FC), the Federal Court restored the doctrine of deferred indefeasibility in Malaysia. An immediate transferee under a void instrument does not acquire indefeasible title. The protection of section 340(1) is enjoyed only by a subsequent bona fide purchaser. That principle applies four-square in the present case, since Salehar took, if at all, as immediate transferee, the dealing not having passed to any further party before her death.

Standard of proof for fraud in civil proceedings [25] The standard of proof for fraud in a civil proceeding must be addressed at the outset. The First Defendant placed reliance upon Yong Tim v Hoo Kok Chong & Anor [2005] 3 CLJ 229 and Asean Security Paper Mills Sdn Bhd v CGU Insurance Bhd [2007] 2 MLJ 301 (Federal Court) for the proposition that fraud, even in civil proceedings, must be proved "beyond reasonable doubt". [26] That proposition no longer represents the law of Malaysia. In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLRA 191 (FC), the Federal Court departed from its earlier decision in Asean Security Paper Mills and held that fraud, when alleged in civil proceedings, is to be proved on the balance of probabilities. The criminal standard of proof beyond reasonable doubt no longer applies in civil litigation merely because the allegation pleaded is fraud. That settled position binds this Court. [27] The decision in Letchumanan Chettiar Alagappan @ L Allagappan & Anor v Secure Plantation Sdn Bhd [2017] 3 MLRA 501 (Federal Court) reaffirmed that fraud must be specifically pleaded and distinctly proved, and that suspicion alone is insufficient. It did not, and could not, revive the criminal standard.

(vi) Proof of fraud by circumstantial evidence [28] It is well recognised that direct evidence of fraud is rarely available and that fraud may be established by circumstantial evidence. In Lai Fee & Anor v Wong Yu Vee & Ors [2023] 3 MLRA 495, the appellate court reaffirmed that fraudulent intent is a question of fact which may be inferred from surrounding circumstances and from the parties' conduct after the event. In Rajamani Meyappa Chettiar v Eng Beng Development Sdn Bhd & Ors [2015] MLRHU 74 (High Court), the Court (citing with approval Sumitomo Bank Ltd v Kartika Ratna Thahir [1993] 1 SLR 735 and Ng Pak Cheong v Global Insurance Co Sdn Bhd [1994] 3 AMR 50 per Mohamed Dzaiddin J) accepted that the law of evidence does not require every step in the allegation of fraud to be proved by live and admissible evidence, and that fraud may be inferred in an appropriate case. [29] A related question, on which the parties' authorities ranged more widely than is strictly necessary, concerns the evidential significance of a police report in support of an allegation of civil fraud. The position is settled. A police report is not substantive proof of the facts which it asserts; it may, however, be used for corroboration under section 157 of the Evidence Act 1950, and for contradiction under section 145, of the maker's testimony at trial. That is the orthodox treatment of police reports, of which Tan Cheng Kooi & Anor v Public Prosecutor [1972] 2 MLJ 115 is part of the underlying line of authority on first information reports. The associated proposition, that the absence of a contemporaneous police report may reduce a pleading of fraud to a bare allegation, as observed in Chong Wan Ping & Anor v Shamshudeen Hj Mohd Yunus [2009] 1 LNS 834, does not arise on the facts. The Plaintiff lodged a police report on 24 August 2020. Its timing is what it is. Whether the report is read as supporting the Plaintiff's account that he discovered the impugned registration in or about May 2020, or as evidence of his reaction to that discovery, it does not identify the person who procured the post-attestation alterations. That is the question on which the inference of personal fraud against Salehar stands or falls, and it is answered in the paragraphs that follow on the substantive evidence rather than on the existence or absence of the report. Issue 1: Whether fraud has been brought home to Salehar Binti Selim [30] Fraud, for the purposes of section 340(2)(a), must be brought home to the registered proprietor or her privy. The conduct relied upon must rise above the level of inference drawn from circumstance to the level of probability that the registered proprietor was a party or privy to it. [31] The Plaintiff's direct evidence on this issue is, on his own admission, limited. He did not see Salehar write her name on Form 14A (NK p. 7). He did not see her insert the 7/48 fraction (NK p. 8). He did not see her place a signature or any stamp. He does not know who, in fact, made the amendments on page 12 (NK p. 8). When his statement that the First Defendant had "changed or tampered with" Form 14A was put to him in cross-examination, he accepted that the statement was, in substance, inferential (NK p. 9), before seeking to reframe it as a deduction from the observed addition of Salehar's name. No handwriting expert was called. No forensic examination of the document was tendered. [32] The Court does not, on that account, foreclose the inferential route. Following Lai Fee, Rajamani Meyappa Chettiar, and the authorities there cited, the Court has examined whether the totality of circumstances drives one, on the balance of probabilities, to a finding of fraud against Salehar personally or against her privy. Those circumstances include: (i) the LHDN letter referring only to Daliyah and the Plaintiff; (ii) the patent inconsistency on the face of the form between the unamended page 11 (love and affection from mother to son) and the amended page 12 (two transferees, one not being Daliyah's child); (iii) the differing handwriting on the form; (iv) the absence of any re-attestation; and (v) the fact that Salehar was the immediate beneficiary of the alterations. [33] Notwithstanding the considerable weight which those circumstances carry on the wider question to which the Court turns in Issue 2, they do not, on the present record, identify Salehar as the person who procured the alterations. The acts physically done on the form the writing in of Salehar's name, the entry of 7/48, and the placement of the small stamp were not done by Salehar but by personnel within the Pejabat Tanah. There is no evidence that Salehar instructed any officer of the Pejabat Tanah, or any clerk or agent, to make the alterations. There is no evidence that she attended the Pejabat Tanah between attestation and registration. Salehar is the person who benefited from the alterations. Beneficiary status is a strong evidential pointer, but it is not, of itself, equivalent to proof of personal complicity in the procurement of the alterations. [34] It follows that fraud within section 340(2)(a) has not been brought home to Salehar on the balance of probabilities. The Court therefore declines to make a finding of personal fraud against the deceased Salehar Binti Selim. That conclusion, however, is not dispositive of the case, since section 340(2)(b) operates independently of the fraud inquiry and depends on the lawful sufficiency of the instrument itself. Issue 2: Whether the instrument was insufficient or void within section 340(2)(b) [35] This is the dispositive issue. The analysis turns upon three matters which are unambiguous on the Notes of Evidence: (i) the state of the form at attestation; (ii) the nature and timing of the alterations; and (iii) the legal characterisation of the alterations under sections 211 and 380 of the National Land Code. [36] (i) State of the form at attestation. The attesting officer, SD4 Nasshur, gave evidence that at the time he attested execution on 31 July 2019, the persons before him were Daliyah and the Plaintiff. The reason for transfer he understood was love and affection from mother to son. When he was asked, on questions from the Court, whether the name of Salehar Binti Selim appeared on page 12 at the time of his attestation, he answered: "la tidak ada, yang ada saya sahaja Mohd Ezaq menerima pindah milik ini." (NK p.166) [37] The Court asked the question again to confirm the answer: "So the name Salehar was not there at the time of attested?" Answer: "Betul, semasa itu saya tengok ini sahaja." (NK pp. 166-167) [38] That evidence is direct, from the attesting officer himself, and is the highest evidence available on the question. It is corroborated independently by the LHDN adjudication letter dated 16 August 2019, which refers to the transaction as one between Daliyah and the Plaintiff alone and makes no reference to Salehar. The LHDN letter is a contemporaneous official document generated some sixteen days after attestation and five days before registration. If Salehar had been on the form at the point it was submitted for adjudication, her name would, in the ordinary course, have been recorded. It was not. As against contemporaneous documentary evidence of that character, oral testimony introduced years after the event must be evaluated with corresponding circumspection. [39] The Court accepts SD4's evidence on this point. Nothing in the cross-examination undermined it. The First Defendant did not produce any document, register entry, or witness contradicting it. The Court therefore finds, as a fact, that at the time of attestation on 31 July 2019, the instrument named only the Plaintiff as transferee, and the share to be transferred was the entirety of Daliyah's registered 1/4 undivided interest. The entries naming Salehar Binti Selim and recasting the shares as 7/48 and 5/48 were introduced after attestation. [40] (ii) Nature and timing of the alterations. The alterations are not minor scrivener's corrections. They added a new transferee, replaced a single 1/4 share with two separate fractional shares for two different persons, and effected a substantive reallocation of beneficial interest. The change is plainly material in the sense that it altered the very identity of the parties to the dealing and reduced the share otherwise destined for the only attested transferee. [41] The defence put forward in submissions that these alterations were not "gelap" or surreptitious because they were ratified by Daliyah at her home through SD3 must be tested against SD3's evidence as it actually stands on the Notes of Evidence, not in the form in which it was retrospectively reorganised in submissions. SD3 said that he attended Daliyah's temporary residence at one Puan Jamilah's home, that he showed her amendments which were already on the form by then, and that she said she was aware of and agreed to them (NK pp. 113-114, 122-123). He himself, however, could not identify who originally introduced the amendments (NK p. 108). [42] Three further difficulties attach to SD3's account. First, when invited to explain why the reason for transfer on page 11 was left unamended despite the addition of a second transferee, SD3 conceded that the form was not "consistent" and that he could not say why no corresponding correction was made on page 11 (NK pp.142-143). Second, when asked whether the recipient is "the anak kandung" referred to on page 11, SD3 said he did not know who Daliyah's natural child was (NK pp.141, 144). Third, the handwriting on the form is plainly not uniform (NK pp.145-146), and SD3 could not say who wrote which entry. [43] An instrument purportedly transferring land "as a gift of love and affection from a mother to her own child", but which on its face transfers a part of the share to a person who is not the mother's child, contains an internal contradiction on its face. The patent inconsistency is not a stylistic infelicity but goes to the very basis of the transaction. It is the kind of defect which ought to have arrested the registering officer and required inquiry. None was made. [44] (iii) Legal characterisation under sections 211 and 380. Two consequences in law follow from the foregoing findings. [45] First, under section 211 read with the Fifth Schedule, the attestation by SD4 attached to the form as it stood at the moment of attestation — with only the Plaintiff as transferee. The instrument as later registered, with Salehar named and the shares recast, was not the instrument that had been attested. Where material alterations are made to an attested instrument, the only lawful course is re-attestation. That much is confirmed by SD4 himself, who said, when asked whether amendments of this kind could be made after his attestation: "Tidak boleh. ... Borang tersebut seharusnya dikembalikan kepada saya untuk buat penyaksian semula." (NK pp. 155-156) [46] There is no evidence on the Notes that any such re-attestation took place. The form bears no second attestation. The instrument as registered is, in this respect, materially out of compliance with section 211 and the Fifth Schedule. [47] Second, the defence sought, through SD3, to characterise the post-attestation alterations as an administrative "correction" made by an officer of the Pejabat Tanah. Two answers may be given. The first is evidential: there is no contemporaneous administrative record of any decision to correct, no measurement note, no recorded approval, no Correction Note-Book entry of the kind contemplated by section 380(4). The Plaintiff put this directly: "adakah Kerani tunjukkan kira-kira dia itu kepada Encik?" and the answer was that the calculation was "tidak ditulis di dalam nota ataupun apa" (NK p.134). [48] The second answer is legal: even assuming SD3 sincerely intended his attendance at Daliyah's home as an exercise of corrective power, he had no authority to exercise that power. The land is Land Office title. By section 380(2) of the National Land Code, the corrective power is not exercisable in respect of Land Office title except with the prior approval of the State Director of Lands and Mines. SD3 was an Assistant District Officer in the Registration Section of the Pejabat Tanah. He was not the State Director. He gave no evidence of having obtained the State Director's prior approval. No such approval is in evidence. [49] In any event, as the Federal Court in Mohammad Bin Buyong (supra) warned, section 380 is not a vehicle for altering substantive interests in registered land at the level of identity of proprietor or quantum of share. It is, at best, a power to correct ministerial errors. The reallocation of beneficial interest from one person to two persons, including a person who is not Daliyah's natural child, is not within its compass. [50] It follows that the alterations made between attestation and registration cannot, on the law and on the evidence, be sustained as the lawful correction of an attested instrument. They were either an unauthorised emendation of an attested instrument, or an unauthorised exercise of section 380, or both. By either route, the instrument upon which registration was procured is, in respect of those alterations, an insufficient instrument within section 340(2)(b). [51] The submission that Daliyah was nevertheless content with the result, and that her contentment cures the defect, does not assist. Section 340(2)(b) speaks to the integrity of the instrument by which registration is procured. It does not speak to the inward attitude of the transferor. Even on the most generous reading of SD3's evidence, what was secured (if anything) was an oral acquiescence by an elderly and unwell transferor to alterations already made on the form, in the absence of any independent witness, of any documentary record, and of any compliance with the statutory mechanism for amendment of an attested instrument. That falls well short of restoring lawful form to the instrument. [52] Three further matters press in the same direction. First, the LHDN letter, an independent contemporaneous document, recorded only the Plaintiff as transferee. The First Defendant offered no explanation for that asymmetry. As against the contemporaneous documentary record, the oral account of an unrecorded subsequent home visit cannot prevail. Second, the "miscalculation" theory advanced through SD3 is internally incoherent. As SD3 himself accepted in cross-examination, 7/48 plus 5/48 equals 12/48, which is precisely 1/4 (NK p.134). The post-attestation alterations therefore preserved the aggregate share whilst rearranging its allocation. That arithmetic identity is incompatible with the asserted purpose of correcting an over-registered share, and is consistent only with a reallocation rather than a correction. Third, the failure to call the uncle, Aziz Bin Atan who, on the evidence of the Plaintiff and SD2 alike, was the courier of the instrument between attestation, LHDN, and Pejabat Tanah is a matter to which the Court is entitled to attach some weight under section 114(g) of the Evidence Act 1950. Aziz Bin Atan was equally available to either party. His absence supports rather than detracts from the inference that, at the points after attestation when the instrument passed through his hands, only the Plaintiff was named upon it. [53] On the totality of the evidence, the Court is satisfied, on the balance of probabilities, that the instrument by which the 7/48 share was registered in the name of Salehar Binti Selim is, within section 340(2)(b) of the National Land Code, an insufficient instrument. Salehar was the immediate transferee. By force of Tan Ying Hong v Tan Sian San (supra), no indefeasibility attaches in her favour. Her title to the 7/48 share is liable to be set aside. Issue 3: Breach of statutory duty by the Second Defendant [54] The case against the Second Defendant requires careful separation of what is pleaded from what is not. The Plaintiff does not plead fraud or conspiracy to defraud against the Second Defendant. The claim, as confirmed in the Plaintiff's reply submission, is one of breach of statutory duty under Part Thirteen of the National Land Code in accepting and registering an instrument which on its face was not fit for registration. That distinction governs the relief properly available. [55] The Second Defendant's evidence was given through SD5 Nurul Hayati, the registering officer. SD5's position was that the instrument appeared, when it reached her, complete and regular, that the amendments were already in place by then, that the alterations bore a small official stamp, and that registration accordingly proceeded in accordance with the Pejabat Tanah's Standard Operating Procedure (NK pp. 174- 178). [56] Three observations follow. First, those parts of SD5's witness statement which characterised the instrument as "disahkan secara sah" and "boleh didaftarkan secara sah" were ruled inadmissible as opinion on legality and bear no probative value on the legal status of the instrument (NK pp.179-180). That ruling stands. [57] Second, the duty of the registering officer is fixed by statute and is not exhausted by visual confirmation that the form is endorsed with a stamp. Section 301 requires the registering officer to direct her mind to whether the instrument complies with the provisions of Part Thirteen, which includes the requirements of section 211 as to attestation. The presence on the face of the form of (a) plainly different handwriting between entries; (b) cancellations without accompanying initials at every site of cancellation; (c) a patent inconsistency between the stated reason for transfer on page 11 (a gift to a child) and the named transferees on page 12 (two persons of whom one is not the transferor's child); and (d) the absence of any second attestation reflecting the material reallocation each of those, and certainly all of them taken together, were indicators that the instrument might not satisfy the requirements of Part Thirteen. They called for inquiry before registration. The presence of a small office stamp endorsing alterations cannot, in law, substitute for compliance with the formal requirements of execution and attestation. If it could, the statutory scheme of execution and attestation would be capable of being defeated by an administrative imprimatur and section 301 would lose its substantive content. [58] SD5 herself accepted that no inquiry was made (NK p.175). She did not refer the matter to a senior officer. She accepted the document on the strength of the stamp. By that course of conduct, the Second Defendant fell short of the standard required by section 301. The Court finds that the Second Defendant breached its statutory duty under section 301 of the National Land Code in registering the instrument without satisfying itself that the requirements of Part Thirteen had been met. [59] Third, that finding of breach of statutory duty is not to be confused with a finding of personal misconduct against SD5 in the sense of bad faith or fraud. There is no evidence of either, and none is pleaded. SD5 acted in good faith on what she understood to be office practice. The Court does not accept, however, that office practice can lower the standard fixed by statute. It is the statute, not the Standard Operating Procedure, that defines the registering officer's duty. [60] The relief that follows from this finding is corrective rather than compensatory. The Plaintiff does not seek damages against the Second Defendant. He seeks orders directing the cancellation of the impugned registration and the registration of the 7/48 share in his own name, with appropriate consequential directions concerning the document of title. Those orders flow naturally from the conclusion that the registration was procured by an insufficient instrument, and they are the orders which would in any event lie within this Court's jurisdiction to direct rectification of the register. The Second Defendant is bound, by virtue of its statutory functions, to give effect to those orders. Issue 4: Consequential matters — the 1/4 share and the question of "miscalculation" [61] The First Defendant's suggestion that Daliyah was, in truth, entitled only to a 5/48 share by reason of some "miscalculation" in the original geran requires brief separate treatment. The register shows 1/4. That registered share was, on the unchallenged documentary evidence, the share standing in Daliyah's name on 31 July 2019. No application under section 380 was ever recorded. No State Director's approval was ever obtained. No surveyor's report or recalculation document was produced (NK pp. 134-135). SD3's description of a rough measurement performed with a tape at the site, in the absence of any contemporaneous note, does not establish that Daliyah was over-registered. [62] The arithmetic ground relied on that 5/48 plus 7/48 "restores" the 1/4 is simply that the two new fractions add to 12/48 which is the same as 1/4. That arithmetic does not justify the substitution of two transferees for one. It merely demonstrates that the post-attestation alterations preserved the aggregate share whilst altering its allocation. The point is not whether 5/48 and 7/48 sum to 1/4; the point is whether 7/48 of that 1/4 lawfully passed to Salehar. For the reasons given in Issue 2, it did not. [63] It follows, for completeness, that Daliyah's share for the purposes of these proceedings stands as the registered 1/4. The subsidiary issue raised on the pleadings is determined accordingly. F. CONCLUSION [64] The conclusion to which the law and the evidence drive this Court may be stated shortly. The instrument by which Salehar Binti Selim came to be registered as proprietor of a 7/48 share in the land was not the instrument that had been attested by the attesting officer of the Pejabat Tanah. It had been materially altered, after attestation and after stamp duty adjudication, in respect of the very identity of one of its transferees and the allocation of the shares. The alterations were not the product of any lawful exercise of statutory power. They did not comply with section 211. They were not authorised under section 380. The internal contradiction on the face of the instrument was never resolved. Such an instrument is insufficient within section 340(2)(b). [65] Personal fraud has not been brought home to Salehar Binti Selim on the requisite standard. The case is instead decided on the wider statutory ground in section 340(2)(b), under which Salehar took as immediate transferee under an insufficient instrument and acquired no indefeasible title by force of the doctrine in Tan Ying Hong v Tan Sian San. Her registration is liable to be set aside, and the entry standing in her estate is liable to correction in favour of the Plaintiff. [66] The Second Defendant breached its statutory duty under section 301 of the National Land Code in registering an instrument which, on its face and in law, was not fit for registration. That breach is, however, free of any element of bad faith or fraud, and no damages are sought against the Second Defendant. The relief that follows is corrective and lies within this Court's jurisdiction to direct rectification of the register, which the Second Defendant is bound to give effect to. G. ORDERS OF THE COURT [67] Accordingly, the Court orders as follows:

It is declared that the registration of the 7/48 undivided share in Geran Mukim 635, Lot 1150, Mukim Tangga Batu, Daerah Melaka Tengah, Negeri Melaka in the name of Salehar Binti Selim through Perserahan No. 0401SC2019005229 dated 21 August 2019 is invalid by reason of having been procured by an insufficient instrument within the meaning of section 340(2)(b) of the National Land Code;

It is declared that the Plaintiff is, by virtue of the Form 14A executed on 31 July 2019 as attested, the person entitled to be registered as proprietor of the said 7/48 undivided share in addition to the 5/48 already standing in his name, such that he is entitled to be registered as proprietor of an aggregate 1/4 undivided share previously standing in the name of his late mother Daliyah Binti Hj Doraman;

The Second Defendant shall, within thirty (30) days of the date of this Order, cancel the registration of the 7/48 share in the name of Salehar Binti Selim effected through Perserahan No. 0401SC2019005229, and shall register the said 7/48 share in the name of the Plaintiff;

If the original document of title is not produced to the Second Defendant within fourteen (14) days of a written demand made by the Second Defendant upon the First Defendant pursuant to section 166(1)(c) of the National Land Code, the Second Defendant shall be at liberty to proceed under section 168, and to issue a duplicate document of title under section 175, of the National Land Code;

The Plaintiff's prayer for general damages against the First Defendant is dismissed, the relief properly available being the corrective relief granted in paragraphs (a) to (d) above;

It is declared that the Second Defendant breached its statutory duty under section 301 of the National Land Code in accepting and registering an instrument which, on its face and in law, was not fit for registration; no order for damages is made against the Second Defendant, none having been sought, and its duty is discharged by giving effect to the orders at paragraphs (c) and (d);

Liberty to apply is granted for the purpose of giving effect to the foregoing orders. H. COSTS [i] The question of costs requires separate consideration. The ordinary rule in this jurisdiction, expressed in Order 59 rule 3(2) of the Rules of Court 2012, is that costs follow the event. That rule, however, is not absolute. It is a starting point and not a rule of law. The discretion conferred by Order 59 rule 2(2) is a broad one, and it has long been recognised that the Court may, for sufficient reason disclosed on the record, depart from the ordinary rule. The exercise of the discretion must be principled, not arbitrary, and must rest on factors disclosed on the record and articulated in the judgment. [ii] Approaching the matter in that way, the Court considers that there is sufficient reason here to depart from the ordinary rule as between the Plaintiff and the First Defendant. The reasons are cumulative, and the Court relies on them in combination. [iii] First, the First Defendant is sued in a representative, not a personal, capacity. He stands before the Court as the personal representative of the estate of his late wife, Salehar Binti Selim. The proceedings inevitably required him to defend the estate's position. The role of a personal representative in litigation of this character is one which the law has long treated with a measure of indulgence, since the representative does not himself stand to gain from the cause but holds the contested interest for the benefit of those entitled in due administration. To impose the full incidence of party-and-party costs upon an estate, in circumstances where the representative has acted in good faith and within the scope of his duty to defend the estate's registered interest, is a step the Court should be slow to take in the absence of misconduct in the conduct of the defence. No such misconduct is alleged or found here. [iv] Second, and significantly, the Court has expressly declined to find personal fraud against the late Salehar Binti Selim. The case has not been decided on section 340(2)(a) of the National Land Code. It has been decided on the narrower and structurally different ground in section 340(2)(b), namely that the instrument by which the 7/48 share came to be registered was insufficient. The wrongdoing identified in the judgment lies in the post-attestation alterations made within the Pejabat Tanah, in respect of which no act of Salehar has been proved. To impose costs in the conventional manner against the estate of a person against whom no personal fault has been found, in litigation whose moving wrong was the unauthorised conduct of officers outside the estate's control, would attribute to the estate a culpability that this judgment expressly disclaims. [v] Third, the Plaintiff's substantive relief is fully secured by the orders directed at the Second Defendant. The register stands to be rectified. The 7/48 share is restored to the Plaintiff. The Plaintiff is, by virtue of those orders, made whole in the only way that matters to him on his pleaded case. The denial of costs against the First Defendant deprives the Plaintiff of nothing of substance. It does no more than ensure that the estate which, on the Court's findings, was an instrument rather than the architect of the irregularity, does not bear an additional pecuniary burden. [vi] Fourth, the dispute is, in its essential character, an intrafamily dispute over inherited land. The relations between the parties are close kin relations, as the evidence of SD2 disclosed. The Courts have on many occasions recognised that family disputes over inherited land are a special category in which the imposition of costs may exacerbate, rather than resolve, the rupture between members of an extended family. Where, as here, the proceedings have been pursued bona fide on either side, and where the result restores to the successful party precisely the share to which he is in law entitled, the Court is justified in declining to add to the burden of an estate that will, in due course, devolve upon other members of the same family. [vii] Fifth, the position of the Second Defendant is materially different. The Second Defendant is a public authority. It registered an instrument which, on the Court's findings, was not fit for registration. That is a breach of statutory duty, though not one attended by bad faith or fraud. As against a public authority found to have breached its statutory duty, the question of costs would ordinarily fall to be considered separately. The Court has determined, for reasons earlier set out, that no order as to costs is appropriate as between the Plaintiff and the Second Defendant, the breach having been committed in good faith on a misapprehension of the office's Standard Operating Procedure, and the Second Defendant being the entity through which the corrective relief is to be effected. [viii] None of these reasons would, taken singly, necessarily justify a departure from the ordinary rule. Taken together, they constitute, in the Court's judgment, sufficient reason to make no order as to costs as between any of the parties. The exercise of the discretion is, in the end, a matter of judgment as to where the justice of the case lies. The Court is satisfied that, in the particular circumstances of this case, the justice of the matter is met by leaving each party to bear its own costs. (MELAKA) Lawyer For Plaintiff : Encik Bala Gopal Tetuan Bala Gopal & Associates Peguambela dan Peguamcara No. 13-A, Jalan Banda Kaba, 75000 Melaka. Lawyer For Defendant : (i) Encik Vinson Tay Tetuan Gan Rao & Chuah Peguambela dan Peguamcara G-17, Jalan PM 13, Plaza Mahkota, Banda Hilir, 75000 Melaka. (Defendan Pertama)

(ii) Puan Anis Wahidah binti Mohamad Penolong Penasihat Undang-Undang Pejabat Penasihat Undang-Undang Negeri Melaka, Aras 1, Blok Laksamana, Seri Negeri, Ayer Keroh, 75450 Melaka. (Defendan Kedua)