Murugappan Tamil Selvi v Mogana A/P Sivaraman (BA-22NCvC-344-09/2021)

MURUGAPPAN TAMIL SELVI (No. K/P: 600119-71-5222) …DEFENDAN PERTAMA 20/04/2026 15:04:28

M.R ALAGU GANESHAN A/L MURUGAPPAN (No. K/P: 830621-14-5249) …DEFENDAN KEDUA (dalam Tuntutan Balas) GROUNDS OF JUDGMENT

This is an action commenced by the Plaintiff, Murugappan Tamil Selvi, against the Defendant, Mogana a/p Sivaraman, for the recovery of RM1,200,000.00 (the RM1.2 million), which the Plaintiff claimed was placed as a fixed deposit (FD) in the Defendant's name as a short-term conditional loan to facilitate the Defendant's housing loan application. The Defendant denied this and asserted that the RM1.2 million was an outright gift made out of love and affection.

The Defendant, who is the ex-daughter-in-law of the Plaintiff and the former wife of Alagu Ganeshan (the Second Defendant in the Counterclaim), has also filed a Counterclaim against the Plaintiff (as the First Defendant in the Counterclaim) and the Second Defendant in the Counterclaim, alleging, inter alia, unjust enrichment and collateral abuse of process. Both the Plaintiff and the Second Defendant in the Counterclaim elected S/N Zrz5CdxI80mXhV1p686pmQ to submit "No Case to Answer" at the close of the Defendant's case.

For ease of reference, throughout these grounds, the Plaintiff in the main suit is referred to as the Plaintiff, the Defendant in the main suit as the Defendant, and the Second Defendant in the counterclaim as the Second Defendant.

The Plaintiff is the mother of the Second Defendant. The Defendant, a Malaysian, married the Second Defendant on 28 March 2012. In 2016, the Plaintiff, the Defendant, and the Second Defendant were living together in the Plaintiff's house.

On 23 July 2016, the Defendant paid a booking deposit of RM5,000.00 for a condominium unit at D'Sands Residence (B2- 10-5), Jalan Kampung Pasir, Kuala Lumpur, with a purchase price of RM913,207.00. The Defendant's income and savings were insufficient to qualify for the required housing loan. The bank advised her to demonstrate substantial funds in a deposit to support her application.

Between August and September 2016, the Plaintiff gave the Defendant approximately RM35,000.00 to settle the Defendant's outstanding PTPTN, LHDN, and other debts. It is common ground that this sum was a gift.

In mid-September 2016, the Defendant requested that the Plaintiff place RM1,000,000.00 in a fixed deposit account to support her housing loan application, promising to return the funds once the loan was approved. On 14 September 2016, RM1,000,000.00 was placed in a joint FD account in the names of the Defendant and Surentra (PW1) (also referred to as Suren during the trial).

On 5 October 2016, the Defendant signed the RHB Bank housing loan application for RM852,938.00. In mid-October 2016, the Defendant informed the Plaintiff that the bank required the FD to be in her sole name. Accordingly, on 24 October 2016, RM1,000,000.00 was transferred from the joint FD to a sole FD in the Defendant's name. The Defendant also requested an additional top-up of RM200,000.00. On 27 October 2016, the Plaintiff deposited a further RM200,000.00, bringing the total FD to RM1.2 million.

On 30 October 2016, the RHB Bank housing loan application was rejected. Despite this, the Defendant did not refund the RM1.2 million to the Plaintiff.

In December 2016, while the Plaintiff was in India, the Defendant and the Second Defendant moved out of the Plaintiff's house.

On 20 December 2016, the Defendant attended the bank to uplift the FD. Bank officers initially refused and informed the S/N Zrz5CdxI80mXhV1p686pmQ Plaintiff, who made multiple phone calls to the Defendant. The Defendant then contacted her solicitor, who spoke to the bank officers, after which the RM1.2 million was uplifted.

The sum of RM1.2 million was credited in two entries, RM1,002,542.65 and RM200,504.29, to the Defendant's CIMB Islamic Account No. 8600479292, each bearing the remark "for loan purposes."

On 20 December 2016, three transfers moved RM1.2 million from the Defendant’s CIMB Islamic Account No. 8600479292 into the Defendant's CIMB savings account No. 7054891582.

No bank statements for savings account No. 7054891582 were produced by the Defendant for December 2016 or any subsequent month. The only documented outflow linked to the RM1.2 million is a cash deposit of RM25,000.00 to a company called "Pro Clean" on 30 December 2016.

The Plaintiff lodged a police report on 27 December 2016 regarding the withdrawal of the RM1.2 million FD.

In 2017, before and after Suren's wedding, the Plaintiff and Suren asked the Defendant to return the RM1.2 million. The Defendant represented that the Second Defendant had taken the money. Accepting this explanation, the Plaintiff, who was then not on speaking terms with the Second Defendant, did not pursue the Second Defendant directly.

In 2020, the Defendant and the Second Defendant separated. The Plaintiff subsequently reconciled with the Second Defendant and discovered that the RM1.2 million had never been in the Second Defendant's hands. The Plaintiff's solicitors issued a Letter of Demand on 30 March 2021. The Defendant's solicitors replied on 6 April 2021, notably the same solicitor who had advised the Defendant during the uplift, without asserting that the RM1.2 million was a gift.

This suit was filed on 3 September 2021. The Defendant and the Second Defendant were divorced by a High Court Order on 25 November 2021. Despite having filed this civil suit and claiming that the Second Defendant had taken the RM1.2 million, the Defendant made no claims against him in the divorce proceedings. The Defendant re-amended her defence and added a Counterclaim on 26 January 2022.

The parties were represented by counsel throughout the trial. Four witnesses gave evidence:

For the Plaintiff-

PW1 - Surentra A/L Murugappan (Suren), the Plaintiff's son.

(ii) PW2 - the Plaintiff herself, testified through a Tamil interpreter.

For the Defendant-

DW1 - Saraswathy a/p Sivaraman, the Defendant's sister.

(ii) DW2 - the Defendant herself. THE ISSUES

The sole issue in the main suit is:

Whether the RM1.2 million was deposited in the Defendant's name as an outright gift or as a short-term conditional loan to facilitate the Defendant's housing loan application.

Three issues arise on the Counterclaim:

Whether the Plaintiff's claim constitutes mala fide or collateral abuse of process;

Whether the Second Defendant in the Counterclaim received the RM1.2 million from the Defendant and/or was unjustly enriched; and

Whether any money spent by the Second Defendant belongs to the Plaintiff. ANALYSIS OF THE EVIDENCE AND FINDINGS OF THE COURT Was the RM1.2 million a Gift or a Loan?

It is undeniable that the burden of proving that the RM1.2 million was a gift lies with the Defendant.

This is the central question. Having considered all the evidence before me, I find that the RM1.2 million was not a gift but a short-term conditional loan, repayable upon the Defendant's receipt of approval for a housing loan.

The Plaintiff's evidence that the money was placed solely to support the housing loan application, with an understanding that it would be returned once the loan was approved, is consistent across the pleadings, her witness statement, and her oral testimony.

Although the Plaintiff, a lay person, testified through a Tamil interpreter and used the vernacular term "amanahkan" (implying entrustment), I find that this reflects the conditional nature of the arrangement, not an attempt to introduce an unpleaded trust. Her evidence on this point was not shaken on cross-examination.

PW1's evidence corroborates the Plaintiff's account in all material respects: he confirmed that the RM1.2 million originated with the Plaintiff, was placed solely to secure the housing loan, and was always intended to be repaid to the Plaintiff upon approval.

Turning to the substantive question, I find the Defendant's gift narrative does not withstand scrutiny when tested against the contemporaneous documents and the inherent probabilities.

First, the Plaintiff drew a clear and credible distinction between the RM35,000.00, explicitly described and treated as a gift to clear the Defendant’s debts, and the RM1.2 million, which was treated as a temporary, purpose-specific placement. If the RM1.2 million were also a gift, there is no logical explanation for the Plaintiff to have carefully labelled one sum a gift while remaining silent about the characterisation of the much larger sum.

Second, the transaction’s overall structure is inconsistent with a free gift. The money was deposited step by step in response to specific banking requirements: first, a joint FD, then a sole FD, then a top-up. Each step was driven by the stated need to satisfy the bank’s conditions for the housing loan. Gifts are not structured around banking requirements. This arrangement bears every hallmark of temporary, conditional bridging finance.

Third, perhaps the most powerful point, the two credit entries into the Defendant's CIMB Islamic account on 20 December 2016 both bear the remark "for loan purposes." This is a contemporaneous banking record, created at the time of the very transaction in question. No evidence was adduced to explain or contradict this remark. A person receiving an outright gift would not record it as "for loan purposes"; a person receiving money conditional on a loan application would.

Fourth, the Defendant herself admitted, under cross-examination, that she transferred RM1.2 million from her CIMB Islamic account to her savings account, i.e., RM500,000.00 on 20 December 2016, RM550,000.00 on 21 December 2016, and RM150,000.00 on 28 December 2016, because her husband feared the Plaintiff would ask for the money back. This is a direct and fatal admission. A donee who holds money as an unconditional gift has no reason whatsoever to move it urgently out of fear that the donor will seek its return. This admission alone fundamentally undermines the gift case.

Fifth, the Defendant further admitted, under cross-examination, that she had expected the Plaintiff and Suren to seek a refund, and that she was aware from the outset that the Plaintiff regarded the money as something to be returned. This is the opposite of a completed gift.

Sixth, bank officers refused to release the FD without speaking to the Plaintiff, treating the Plaintiff, not the Defendant, as the S/N Zrz5CdxI80mXhV1p686pmQ true beneficial owner. The bank's conduct is entirely consistent with the Plaintiff's account that the money belonged to her and was conditionally deposited.

Seventh, the Defendant's own solicitor's reply to the Letter of Demand dated 6 April 2021, signed by the very same solicitor who had assisted the Defendant in uplifting the FD on 20 December 2016, made no mention of any gift. Had the money truly been given as a gift out of love and affection, one would expect any solicitor's reply to an RM1.2 million demand to immediately assert that fact. The silence on this point speaks volumes.

Lastly, in the divorce proceedings between the Defendant and the Second Defendant, which concluded on 25 November 2021, the Defendant made no claim against the Second Defendant for the RM1.2 million she alleged he had taken. This is remarkable. If the money was hers as a gift and the Second Defendant had wrongfully taken it, there was every opportunity and incentive to seek its return in those proceedings. The failure to do so is irreconcilable with her account of events.

In sharp contrast, the Plaintiff's account is internally consistent throughout, from the pleadings, through the Plaintiff’s written witness statement, to her oral testimony under cross-examination. She consistently maintained that: (a) the RM35,000.00 was a gift; (b) the RM1.2 million was placed on a conditional basis, to be returned once the loan was approved; S/N Zrz5CdxI80mXhV1p686pmQ and (c) once the loan was rejected, she expected and demanded its return.

PW1's evidence corroborates the Plaintiff's account in all material respects. He was present, aware of the arrangement, and his account is consistent with the Plaintiff’s. The Defendant contended that PW1 is a partisan witness who benefits from the discord with the Second Defendant. Even if I treat his evidence with some caution on account of his familial interest, it is independently corroborated by the contemporaneous documents, which are the most reliable evidence before this Court.

When two irreconcilable versions are presented, the Court must critically assess sworn evidence against contemporaneous documentary evidence to determine which version is inherently probable. Oral evidence must not be preferred to contemporaneous documents without good reason.

Applying the principles in ING Insurance Bhd v Rathinasamy Kasinathan [2018] 10 CLJ 488 (CA) and Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 (FC), I considered the contemporaneous documentary record, i.e. the FD advices, the "for loan purposes" bank entries, the police report of 27 December 2016, and the silence in the solicitor's reply on the question of a gift, to the Defendant's subsequent oral account. Plausibility should never be mistaken for veracity.

I find the Plaintiff's version consistent with all contemporaneous documents. The Defendant's version requires the Court to accept that large sums moved without a single cheque, transfer slip or bank statement, a proposition I find inherently improbable and legally unsustainable.

The Defendant produced no bank statements for savings account No. 7054891582, into which the RM1.2 million was transferred between 20 December 2016 andj 28 December 2016.

The only documented outflow is RM25,000.00 to Pro Clean. The Defendant's account of dissipating the RM1.2 million in December 2016 to the Second Defendant or to various friends and relatives is entirely unsupported by any documentary trail.

The Court may draw an adverse inference against a party who withholds evidence within its power and control that, if produced, would be unfavourable to that party. This inference applies where the Defendant has conspicuously failed to produce bank statements for her own savings account No. 7054891582, which, had they been produced, would be expected to shed light on what happened to the RM1.2 million.

Therefore, I draw an adverse inference under Section 114, illustration (g), of the Evidence Act 1950 against the Defendant for failing to produce her own bank records.

Accordingly, on a balance of probabilities, I find that the RM1.2 million was a short-term conditional loan to the Defendant, to be repaid to the Plaintiff once the housing loan was approved or no longer required for that purpose. It was not a gift.

At the close of the Defendant's case, the Plaintiff and the Second Defendant submitted that the Counterclaim discloses no case to answer. The Second Defendant elected not to call any evidence, taking the position that the Defendant's case, even if accepted at its highest, is legally and factually insufficient to sustain the Counterclaim.

The Court adopts the settled principles governing a no-case submission in civil proceedings, as authoritatively stated by the Federal Court in Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 2 CLJ 1037 and reinforced by the Court of Appeal in Worldwide Platinum Records Sdn Bhd v Tan Sew Cheng [2025] 2 CLJ 406. The applicable principles are as follows:

Where a defendant submits no case to answer, the Court must put counsel to his election. If counsel elects not to call evidence, he stands or falls by his submissions.

For the purpose of the no-case test, all evidence adduced by the claimant is presumed true and taken at face value.

An adverse inference may be drawn against a party who fails to call witnesses where circumstances warrant.

However, and this is critical, even where evidence is presumed true, and an adverse inference is drawn, the legal burden of proof remains at all times with the party asserting the claim, on a balance of probabilities. The opposing party’s election not to call evidence does not relieve the claimant of the burden of discharging that burden. As affirmed in Syarikat Kemajuan Timbermine, the mere fact that evidence is unopposed does not automatically mean the burden of proof has been discharged.

The Court applies both limbs of the no-case test to the Defendant's Counterclaim.

The Face-Value Test - accepting the entirety of the Defendant's evidence at its highest and presuming it true, the Court finds as follows:

(i)

There is no admissible evidence that the sum of RM 2 million was ever disbursed to the Second S/N Zrz5CdxI80mXhV1p686pmQ Defendant or to any third party, except for a single payment of RM 25,000.00 to Pro Clean.

(ii) The Defendant's pleaded causes of action accordingly fail in law, as the foundational factual premise of the Counterclaim, namely that the monies were paid out as alleged, has not been established even on a face-value basis.

The Reliability Test - the Court further finds that the Defendant's evidence is so unsatisfactory and unreliable that the burden of proof has not been discharged.

Material bank statements are missing from the record, leaving critical alleged transactions unverified.

(ii) The amounts purportedly paid out are entirely unsupported by any documentary evidence.

(iii) Significantly, the Defendant's own witness (DW1) conceded under cross-examination that there was no proof in respect of the alleged disbursements.

Based on the above, this Court is satisfied that the Defendant has failed to discharge the burden of proof on the balance of probabilities in respect of the Counterclaim. The evidence S/N Zrz5CdxI80mXhV1p686pmQ adduced is both legally insufficient under the face-value test and factually unreliable under the reliability test.

Accordingly, the Court finds that there is no case to answer on the Defendant's Counterclaim. The submission is upheld, and the Counterclaim is hereby dismissed.

The Defendant's Counterclaim alleged that the Plaintiff brought this suit to "punish" her as the ex-daughter-in-law.

This Court is guided by the principles laid down by the Court of Appeal in Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340, which set out the essential elements of the tort of collateral abuse of process.

In summary, a claimant must establish that: (i) the impugned process was initiated; (ii) the dominant purpose of initiating that process was collateral, namely for a purpose other than obtaining genuine redress contemplated by the law; and (iii) the claimant suffered damage as a consequence. Importantly, the Court of Appeal made it clear that proof of malice or that the proceedings terminated in the claimant’s favour is not a requirement.

These principles form the applicable legal framework for determining whether the impugned proceedings amount to an abuse of the Court’s process.

Applying the said test, the Plaintiff's claim is a bona fide attempt to recover a sum of money, which, as I have found, was a loan that was not repaid. There is no evidence that the dominant purpose of the Plaintiff's suit is collateral. The Defendant has failed to establish any of the required elements of the tort. Accordingly, this head of the Counterclaim is dismissed.

This Court considered the Defendant’s Counterclaim in unjust enrichment, brought against both the Plaintiff and the Second Defendant. The governing principles are set out by the Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 [FC], where it was made clear that a claim in unjust enrichment is restitutionary in nature and requires the satisfaction of four essential elements, namely: (i) that the defendant has been enriched; (ii) that such enrichment was at the claimant’s expense; (iii) that the enrichment is unjust; and

(iv) that there is no applicable defence. Importantly, the remedy is directed at reversing a gain obtained by the defendant, not at compensating the claimant for any loss suffered.

Applying those principles, this Court finds that the Defendant’s counterclaim is misconceived and unsupported by the S/N Zrz5CdxI80mXhV1p686pmQ evidence. Even taking the Defendant’s pleaded case at its highest, the necessary evidential foundation to establish unjust enrichment was lacking. In particular, the Defendant failed to show that the Plaintiff was enriched at the Defendant’s expense. On the evidence before this Court, the undisputed position was that the RM1.2 million originated with the Plaintiff. Accordingly, any alleged enrichment arising from that sum would, if at all, be at the Plaintiff’s expense, not at the Defendant’s.

This Court also finds that the Defendant failed to apply the test in Dream Property correctly. The Federal Court made clear that unjust enrichment concerns restitutionary recovery, namely the reversal of a gain received by one party at another’s expense. In the present case, the Defendant did not establish, by credible evidence, any gain obtained by the Plaintiff at the Defendant’s expense. Instead, the evidence pointed in the opposite direction, namely that the sum in question came from the Plaintiff and that the Defendant gained at the Plaintiff’s expense.

Further, the documentary evidence did not support the factual basis of the Counterclaim. There were no material bank statements or primary documents establishing the alleged disbursement of RM1.2 million from the Defendant’s accounts in December 2016, save for the solitary and admitted payment of RM25,000.00 to Pro Clean. Beyond that, the alleged money trail was unsupported by contemporaneous records. The tables S/N Zrz5CdxI80mXhV1p686pmQ relied on by the Defendant were not, without more, sufficient proof of the alleged transfers. There was likewise no credible documentary nexus linking the monies allegedly held by the Defendant to the Second Defendant.

In those circumstances, this Court is not satisfied that the essential elements of unjust enrichment have been established. There was no proof that the Plaintiff and the Second Defendant had been enriched at the Defendant’s expense, no satisfactory evidence that any such enrichment was unjust, and no reliable factual basis upon which the Counterclaim could stand. The Defendant’s Counterclaim in unjust enrichment, therefore, failed.

Therefore, on the balance of probabilities, the Defendant has failed to prove its Counterclaim against the Plaintiff and the Second Defendant. Delay, Laches and Estoppel

The Defendant also raised laches and estoppel for the first time in her submissions, without pleading either in her Re-Amended Defence or her Counterclaim. This alone is sufficient to reject these defences.

In any event, this action was filed on 3 September 2021, well within the six-year limitation period under the Limitation Act 1953, given that the cause of action arose in December 2016. S/N Zrz5CdxI80mXhV1p686pmQ The Plaintiff made repeated oral demands, lodged a police report on 27 December 2016, and pursued the matter continuously. The delay in formalising legal action was attributable to the Defendant's misrepresentation that the Second Defendant had taken the money.

The doctrine of laches requires both inexcusable delay and resulting detriment; neither has been established here (see Lindsay Petroleum Co v Hurd LR 5 PC 239; Yong Nyee Fan & Sons Sdn Bhd v Kim Guan & Co Sdn Bhd [1978] CLJU 244 [FC]).

The Defendant argued that an adverse inference should be drawn against the Plaintiff for failing to call the Second Defendant as a witness. I reject this argument.

An adverse inference under Section 114, illustration (g), of the Evidence Act 1950 may only properly be drawn where the party against whom the inference is sought to operate has first proven its case on a balance of probabilities (Syarikat Kemajuan Timbermine). The Plaintiff's case rests on its own evidential foundation and does not depend on the Second Defendant’s testimony. If any inference is to be drawn, it should be drawn against the Defendant for failing to call the Second S/N Zrz5CdxI80mXhV1p686pmQ Defendant in support of her own Counterclaim, in which she alleged that he received the money.

The Defendant contended that the Plaintiff abandoned her loan case and introduced an unpleaded trust. I reject this contention. The pleadings, witness statements, and oral evidence throughout the trial have consistently advanced a single, coherent case: the RM1.2 million was a short-term, conditional loan, not a gift. The Plaintiff's vernacular expression "amanahkan" (entrustment) is a lay description of the arrangement's temporary and conditional nature, not a legal claim in trust. The Defendant was in no way ambushed and has cross-examined all witnesses on the loan theory. No prejudice arose. This objection is dismissed.

On the totality of the evidence and on the balance of probabilities, I find that the Plaintiff has discharged her burden of proof in the main suit. I further find that the sum of RM1.2 million was a short-term friendly loan, not a gift. The Defendant is therefore liable to repay that sum to the Plaintiff.

Accordingly, the Plaintiff’s claim in the main suit is allowed in the sum of RM900,000.00, as the learned counsel for the S/N Zrz5CdxI80mXhV1p686pmQ Plaintiff agreed that the Plaintiff had conceded, in her witness statement, Q & A 18 at Enclosure 95, the said amount.

On the totality of the evidence and on the balance of probabilities, I find that the Defendant has failed to prove her Counterclaim against the Plaintiff and the Second Defendant.

Therefore, for the reasons stated above, I hereby order that the Plaintiff’s claim against the Defendant be allowed in accordance with paragraph 21 of the Statement of Claim, prayers (a) and (b), for the amount of RM900,000.00. The Defendant’s Counterclaim against the Plaintiff and the Second Defendant is hereby dismissed.

Further, the Defendant is to pay the Plaintiff costs of RM40,000.00 (including those for the counterclaim) and costs of RM7000.00 to the Second Defendant. Dated 20 APRIL 2026 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM S/N Zrz5CdxI80mXhV1p686pmQ To the parties’ solicitors: For the Plaintif : Srividhya Ganapathy with Eisyarmily Akhtar (Messrs Muhendaran Sri) For the First Defendant : Kamaleswari Shanmugam (Messrs Raj & Sach) For the Second Defendant: Sarinah Mustafa with Ambiga Pandian (Messrs Sarinah Mustafa, Ambiga