Mohd Shawal Bin Ibrahim v 1. ) Qaiser Harta Pmc Sdn. Bhd. (WA-12BNCvC-45-04/2024)

QAISER HARTA PMC SDN. BHD.

MD ZIN BIN BAD HAMID [(NO. K/P: 550616-04-5079) di tuntut sebagai Pentadbir kepada harta pusaka

MOHD YUSOF BIN IBRAHIM (NO. K/P: 420809-10-5247) …RESPONDEN-RESPONDEN [Dalam Perkara Mengenai Guaman Di Mahkamah Sesyen Di Kuala Lumpur Guaman Sivil No: WA-A52-128-11/2021] ANTARA MOHD SHAWAL BIN IBRAHIM (NO. K/P: 401113-10-5229) …PLAINTIF DAN 1. QAISER HARTA PMC SDN. BHD. 07/07/2025 16:44:31 WA-12BNCvC-45-04/2024 Kand. 38 S/N 9quziD1g90219XlKkbM/g

MD ZIN BIN BAD HAMID [(NO. K/P: 550616-04-5079) di tuntut sebagai Pentadbir kepada harta pusaka

MOHD YUSOF BIN IBRAHIM (NO. K/P: 420809-10-5247) …DEFENDAN-DEFENDAN (Yang diputuskan oleh Hakim Mahkamah Sesyen Puan Yasmin Abdul Razak pada 15 Mac 2024 di Mahkamah Sesyen Kuala Lumpur, secara atas talian melalui pertukaran emel) GROUNDS OF JUDGMENT Introduction [1] As in most family disputes, the family dispute in this case too is about money. The Appellant had filed a claim at the Sessions Court against his brother-in-law (sued in his capacity as the administrator of the Estate of the Appellant’s sister) and a younger brother, naming them as the 2nd and 3rd Defendants respectively (the 2nd and 3rd Respondents in this appeal). His claim against them is based on his assertion of being the sole owner of buildings that were erected on a plot of land shared with them and other siblings. The learned Sessions Court judge dismissed the Appellant/Plaintiff’s claim after a full trial. Being dissatisfied, he filed this appeal. [2] As I could find no appealable error in the judgment of the learned Sessions Court judge – which was justified with clear and sound grounds S/N 9quziD1g90219XlKkbM/g – I decided that this Court ought to dismiss the Appellant’s appeal. My reasons are as set out below. Background Facts [3] The Plaintiff’s late mother was the owner of 21/70 undivided share in land held under Geran Mukim 2449, Lot 30195 (formerly Geran Mukim 809, Lot 1332) in Gombak Malay Reservation, Mukim Setapak, Daerah Kuala Lumpur ("the said Land"). [4] The Plaintiff’s late mother had 7 children, namely the Plaintiff Mohd Shawal, the 2nd Defendant Sharifah, the 3rd Defendant Mohd Yusof, Halima, Hatija, Abdul Karim and Salasiah. After her demise, her 21/70 undivided share in the said Land was distributed to her 7 children in equal shares, i.e. 3/70 share each. [5] It is undisputed that at the time of transfer of the undivided 21/70 share in the said Land to effect the distribution, the 3rd Defendant Mohd Yusof and Hatija were not present to receive the transfer. Thus, 9/70 share was transferred to Halima to hold 3/70 for herself, 3/70 share on trust for the 3rd Defendant Mohd Yusof and 3/70 share on trust for Hatija. The Plaintiff Mohd Shawal, the 2nd Defendant Sharifah, Abdul Karim and Salasiah all received the transfer of their respective 3/70 share of the said Land which they inherited from their late mother. [6] There is no issue about the share of land that the 7 siblings respectively owned in the said Land. The family dispute arose because the Plaintiff is alleging that all the buildings, erected on the land which they inherited from their late mother, belonged to him alone. S/N 9quziD1g90219XlKkbM/g [7] Sometime in year 2014, a development company by the name of Qaiser Harta PMC Sdn Bhd (the 1st Respondent/Defendant) approached all the co-proprietors of the said Land to enter into a joint-venture with it and Syarikat Perumahan Negara Berhad (“SPNB”) to develop the said Land. [8] All the co-proprietors of the said Land, i.e. the Plaintiff, his 6 siblings and other co-proprietors, agreed to enter into the proposed joint-venture, and they jointly gave a Power of Attorney to the 1st Respondent/Defendant on 26th November 2014. A Joint Venture Agreement was subsequently entered into by the 1st Respondent/Defendant with a subsidiary of SPNB on 4th March 2015. [9] In respect of the buildings which the 1st Respondent/Defendant regarded as belonging to the Appellant/Plaintiff and his siblings i.e. the 21/70 share of the said Land, the 1st Respondent/Defendant agreed to pay them a total sum of RM621,600, which was divided by 7, resulting in a sum of RM88,800 being paid to each of the 7 siblings. [10] Thereafter, for the implementation of the joint venture, the 1st Defendant proceeded to demolish those buildings and had entered the said Land to develop it in accordance with their joint-venture agreement. [11] The dispute in this case arose when the Appellant/Plaintiff asserts that all those buildings belonged solely to him, and he demanded payment of RM88,800 from each of his 6 siblings. 4 of his siblings, namely Halima, Hatija, Abdul Karim and Salasiah acceded to his demand while the 2nd Defendant Sharifah (and her husband who is now the administrator of her Estate) and the 3rd Defendant Mohd Yusof take the position that there is S/N 9quziD1g90219XlKkbM/g no legal basis for the Plaintiff to make such a demand. In their Statement of Defence, they put the Plaintiff to strict proof of his claim against them. [12] The trial at the Sessions Court proceeded only against the 2nd and 3rd Defendants because the 1st Defendant was by then in liquidation. The Plaintiff’s Claim [13] As mentioned above, the Appellant/Plaintiff asserts that all those buildings belonged solely to him, and he demanded payment of RM88,800 from each of his 6 siblings. He is suing the 2nd Defendant (administrator of the Estate of Sharifah) and the 3rd Defendant Mohd Yusof to claim RM88,800 from each of them. [14] The Appellant/Plaintiff takes the stand that those buildings were erected on the part of the said Land that was his 3/70 share, and therefore belonged solely to him. He alleged that he paid for the construction and maintenance of those buildings. He also alleged that his late father gave the main house to him. The Finding of Facts made by the Trial Judge [15] In her Grounds of Judgment, the learned Sessions Court judge who heard the trial did deal with the averments pleaded by the Appellant/Plaintiff. The critical findings are recorded in paras [25] and [26] of her Grounds, as shown in the screenshots below: S/N 9quziD1g90219XlKkbM/g Analysis of the Evidence and Law [16] As stated in the last line of para [25] of her Grounds quoted above, the learned Sessions Court judge found that there was in fact no evidence S/N 9quziD1g90219XlKkbM/g that those buildings were erected on the part of the said Land belonging to the Plaintiff and his siblings. The law on this issue – based on our National Land Code – is unambiguous. Co-proprietors of undivided shares in a plot of land respectively owns a fraction of the land. Even though the analogy used by Malik Ishak J (as he then was) in Chan Kok Thin v. Chan Yock Cher [2000] 1 LNS 301 was to illustrate that a shareholder cannot claim any part of a company’s assets as belonging to him, the rationale of that analogy is equally applicable to explain why a co-proprietor of undivided shares in a plot of land cannot claim – in the absence of a contract between the co-proprietors – a specific part of the land to be his part of the land. I respectfully quote Malik Ishak J’s words: “Even though the value of a company’s assets reflects the value of the shares held by the shareholders, not a single shareholder can point to the assets of a company and say: “This part of the assets is mine.” It is analogous to owning a share of water in a bucket. Even a person who owns 90% of the water cannot point at the bucket and say: “This part of the water is mine.” It is impossible to do so, not until after distribution when the water in the bucket is measured and nine-tenth poured into a separate bucket.” [17] In the context of undivided shares in a plot of land, unless partitioning of land that is co-owned by several co-proprietors is performed, with the issuance of separate individual titles which state their respective name on the documents of title, none of the co-proprietors is entitled to point his finger at a part of the undivided land and lay claim to that part as his – unless there is a contract between the co-proprietors with a view to partitioning of the land. Section 140(1)(a) National Land Code 1965 provides the legal mechanism for the co-proprietors to apply S/N 9quziD1g90219XlKkbM/g for partitioning of their land. The keywords in Section 140(1)(a) are “two or more persons as co-proprietors may, by agreement”. It reads: “(1) Any alienated land which is held under Registry or Land Office title by two or more persons as co-proprietors may, by agreement between those persons and with the approval under this Chapter of the State Director or Land Administrator, as provided by subsection (2), be partitioned—

so as to vest in each of them, under a separate title, a portion of the land of an area proportionate as nearly as may be to his undivided share in the whole” [18] Co-proprietors of undivided shares in a plot of land are not without remedies if they are unable to agree between themselves as to how to partition their land. Our Parliamentary draftsmen had, in their wisdom, saw fit to include provisions in the National Land Code for the termination of co-proprietorships when “any of the co-proprietors will neither join in, nor consent to the making of, an application for partition”. These provisions are in s.141A for partition applications to be made to the District Land Administrator and s.145 of the National Land Code 1965 which empowers the High Court to hear their disputes between co-proprietors and issue appropriate orders to resolve their impasse. In other words, prior to entering into the joint-venture with the 1st Respondent/Defendant, the Appellant/Plaintiff (as a co-proprietor of 3/70 share in the said Land) could have applied for partitioning of the said Land to claim that part of the said Land on which those buildings were erected as his. However, he failed to do so. [19] Now, as found by the learned Sessions Court judge in her grounds of judgment, there was no agreement between the co-proprietors of undivided shares in the said Land as to how to partition their land or as to S/N 9quziD1g90219XlKkbM/g S/N 9quziD1g90219XlKkbM/g Counsel for the Appellant: Nurfarah Athirah binti Muhammad Faizal Tan. SOLICITORS FOR THE APPELLANT: MESSRS IBRAHIM & FUAADAH. Advocates & Solicitors No. 12F, Jalan Bidara 8, SU Mall, Saujana Utama 3 47000 SUNGAI BULOH, SELANGOR. Counsel for the Respondents: Ahmad Mukmin Aimi bin Azmi. SOLICITORS FOR THE RESPONDENTS: MESSRS MUKMIN AZMI & CO Advocates & Solicitors No. 11, 1st Floor, Lorong 1, Taman Bukit Mas, 34000 TAIPING, PERAK. S/N 9quziD1g90219XlKkbM/g CASE(S) REFERRED TO:

Chan Kok Thin v. Chan Yock Cher [2000] 1 LNS 301. LEGISLATIONS REFERRED TO:

Section 5 of the National Land Code 1965.

Section 140(1)(a) National Land Code 1965.

Section 141A National Land Code 1965.

Section 145 of the National Land Code 1965. S/N 9quziD1g90219XlKkbM/g