Nam Ah Tee @ Nam Ting Kuang v 1. ) Nam Yaw Shuang (JB-22NCvC-2-01/2022)

NAM YAW SHUANG (No. K/P: 820129-01-5881)

YAP AH SEY (No. K/P: 530919-01-5872) … DEFENDAN-DEFENDAN CORAM: SURIA KUMAR A/L DURAIRAJ JOHNSON PAUL JUDGE  GROUNDS OF JUDGEMENT  INTRODUCTION [1] This matter concerns yet another family dispute over properties. 13/06/2025 15:12:23 JB-22NCvC-2-01/2022 Kand. 62 S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 2 [2] The dispute ended up with all family members testifying as witnesses in Court. One is on the Plaintiff’s side and two others are on the Defendants’ side. There were two teams in the family. BACKGROUND FACTS [3] The Plaintiff and the 2nd Defendant are husband and wife. They have four children. The 1st Defendant is the eldest son. Their two

other sons are Nam Yuh Qing, Nam Yong Seng and the daughter is Nam Wan Li. [4] In 1996, the Plaintiff established a company called Maju Jaya Foam Sdn Bhd. This company was primarily involved in the business of manufacturing mattresses, pillows, cushions and other related products. It was a family business. [5] The 1st Defendant was involved in this family business since his schooling days. The 2nd Defendant was also involved in the family business and assisted in the production line of the said company. [6] Maju Jaya Foam Sdn Bhd was subsequently wound up. Another company called Environment Support Sdn Bhd (“ESSB”) was set up in 2002 to take over the family business. [7] Before the dispute between the parties, the Plaintiff owned the following properties at one point in time: -

A plantation land held under No. Hakmilik GM 2723, No. Lot 3855, di Mukim Linau, Daerah Batu Pahat, Johor, (“Lot 3855”); S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 3

(ii) ½ share in the plantation land held under No. Hakmilik GM 6535, No. Lot 5864, di Mukim Tanjong Sembrong, Daerah Batu Pahat, Johor (“Lot 5864”);

(iii) ½ share in the residential property held under Geran 586117, No. Lot 53841, di Mukim Simpang Kanan, Daerah Batu Pahat, Johor (previously held under H.S.(D) 59541, No. PT PTD 53934, Mukim Simpang Kanan, Negeri Johor (“House No.11”);

(iv) An ancestral land held under Geran 390930, No. PT Lot 51242, Mukim Simpang Kanan, Daerah Batu Pahat, Negeri Johor with a factory erected thereon (“Lot 51242”);

½ share in the plantation land held under HSM 919A, MLO 198, Mukim Linau, Kg. Parit Buloh, Daerah Batu Pahat, Johor (“MLO 198”);

(vi) A double-storey shop lot held under GRN 58889, Lot 21159, Mukim Simpang Kanan, Daerah Batu Pahat, Johor (“Lot 21159”) (“referred to as the six (6) properties”) [8] Plaintiff also owned a 1/3 share in another property held under Geran 586119, No. Lot 53843, Mukim Simpang Kanan, Daerah Batu Pahat, Johor (“Rumah No. 9”). This property was sold on 18.04.2013 and the Plaintiff’s share of the sale proceeds was paid to the 1st Defendant. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 4 [9] House No. 11 was sold to one Tan We Hao and the sale proceeds were paid to the 1st Defendant and not to the Plaintiff. [10] The Plaintiff had prepared his Last Will and Testament on 12 April 2005, leaving his properties in equal shares to his four children. [11] Sometime in 2013, the Plaintiff transferred his ownership in the above six (6) properties to the 1st Defendant and for one of these properties, his ownership was also transferred to the 2nd Defendant. At the same time, the Plaintiff also handed over the management of the family business company to the 1st Defendant. [12] The 1st Defendant was therefore entrusted with the control and finances of the family business and income from the properties to provide for the family. [13] The evidence also reveals that the Plaintiff thereafter was no longer involved in the family business and received love and affection monetary contributions towards his living sustenance from the 1st Defendant. [14] However, it is unclear from the evidence what the exact sum is, whether it was from time to time or monthly and the duration Plaintiff received the contribution. [15] Thereafter Plaintiff did not raise any grievances until sometime in August 2020, when the Plaintiff together with his son, Nam Yuh Qing, visited Sin Hoon Huat, the company managing the oil palm plantation on Lot 5864 and demanded that the future proceeds of the palm oil be paid to the Plaintiff from then onwards. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 5 [16] Thereafter, the Plaintiff instructed his solicitors to conduct land searches on the title to the above properties. Upon finding that the Plaintiff’s ownership of the six (6) properties was transferred to the 1st Defendant and one property included the 2nd Defendant’s name, Plaintiff instructed his solicitors to send a notice of demand dated 12.8.2021 to the Defendants requesting them to return his properties or to pay him compensation. In the alternative, Plaintiff sought damages equivalent to the market value of the said properties from the Defendants. [17] The Defendants replied through their solicitors’ letter dated 6.9.2021 by stating that the Plaintiff had consented to the transfer of the properties and furnished copies of the transfer form (Form 14A) executed by the Plaintiff as proof. [18] The consideration in the transfer form (Form 14A) was stated either as for love and affection from the father to the son or from the husband to the wife. [19] The Plaintiff lodged a police report on 24.12.2021 complaining that the above properties were transferred fraudulently without his knowledge and consent. [20] Thereafter the Plaintiff commenced this suit to recover his abovementioned six (6) properties, his ½ share from the sale proceeds for house No. 11, his 1/3 share from the sale proceeds for house No. 9 and rental proceeds for Lot 3855 and Lot 51242. [21] The Plaintiff and Defendants testified during the trial. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 6 [22] The Plaintiff called his other son, Nam Yuh Qing and the solicitor who prepared the will as his witnesses. [23] Whereas the Defendants called the other two siblings, the clerk from the solicitors’ firm who had attended to the Plaintiff’s execution of the transfer forms and other related documents, the solicitor who attested to the Plaintiff’s signature on the transfer forms, the wife of the 1st Defendant to produce the CCTV recording of the conversations between the Plaintiff and his son and a certified Chinese Interpreter who transcribed the said conversations from the CCTV recording into Teochew dialect. ANALYSIS AND FINDING [24] The Plaintiff pleaded three issues to vitiate the transfer forms executed by him. [25] Firstly, he is an illiterate person and could not possibly have understood the language on the transfer forms. Thus, he relies on the application of the doctrine of “non-est factum”. [26] In support of this plea, the Plaintiff relies on the decision in Kiong Man v. Kishen [1963] CLJU 60 and the Court of Appeal’s case of Darshan Singh Hullan & Anor v. Rangasamy Kailasam & Anor [2012] CLJU 957, which cited the decision in Kiong Man with approval. [27] In Darshan Singh Hullan (supra), the Court of Appeal held as follows: - S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 7 “[30] The burden to prove a plea of non est factum is on the plaintiff; and it must be strictly proved. [31] In Gallie v. Lee and Another [1969] 1 Al l ER 1062 Lord Russel LJ of the English Court of Appeal said that proof of a plea of non est factum requires a strong and clear evidence. It must also be shown that the document the plaintiff signed is of a different character or nature from the one that the plaintiff intended to execute. It also appears from the judgment of Lord Salmon LJ in the same case that, to establish the plea of non est factum, a plaintiff must show that had he or she known the true character and class of the document that he signs he or she would not have executed it and that neither a mistaken belief as to the reason for executing the document nor the identity of the parties named in the document could amount to a mistake as to the character or class of a document for the purpose of a plea of non est factum. [32] In Saunders (Executrix of the estate of Rose Maud Gallie (deceased) v. Anglia Building Society (formerly Northampton Town and County Building Society) [1970] 3 Al l ER 961 HL, it was said that though the plea is not confined to the blind and illiterate, a plea of non est factum can rarely be established by a person of full capacity; and any extension of the scope of the plea would be kept within narrow limits. [33] The above principles have been followed by our courts: Kiong Man v. Kishen [1963] 1 LNS 60; [1971] 1 MLJ 54 and Li I Tat Credit & Mortgage Sdn Bhd v. Tang Liing Kang [1988] 3 MLJ 104” [28] Learned counsel for the Plaintiff submits that based on Plaintiff’s (PW1) evidence, Plaintiff would not have executed the transfer forms if he knew the real purpose and character of the documents. He further submits that the Plaintiff was under the impression that the documents prepared by his wife and son, the Defendants and S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 8 brought to him for execution by the solicitors’ firm were concerning the company documents and income tax. [29] Plaintiff further submits that he never had instructed Messrs Hong & Fong and the lawyer, Puan Nurmahani Binti Rais, to handle the conveyance for the transfer of his properties. [30] Hence, according to learned counsel for the Plaintiff, the Plaintiff never knew the real purpose and character of the documents. Therefore, the Plaintiff has succeeded in proving the plea in non-est factum. [31] Learned counsel for the Plaintiff further submits that as the plea in non-est factum has been successfully established, therefore, based on the Court of Appeal case of Lin Wen-Chih & Anor v. Mycom Berhad [2013] 1 LNS 1231, the transfer forms executed by the Plaintiff are void ab initio. In Lin Wen-Chih (supra), it was decided as follows: - “[22] non est factum is Latin for “it is not my deed”. A successful plea of non est factum makes the contract or document signed void ab initio. A plea of non est factum means that they signed the two documents by mistake. Mistake, however, is not so much because one does not know the contents of the documents that one is signing, but that it was or turned out to be of a character entirely different from what is thought to be signed. This may be illustrated by Chin Leong Soon & Ors v. Len Chee Omnibus Co Ltd & Anor [1969] CLJU 28; [1969] 1 LNS 28 FC where Suffian Ag LP (as he then was) said: “Her claim is clearly based on the doctrine of non est factum, which means that if a person, owing to an error, S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 9 executes a legal document which is of an entirely different character from that which he intended to sign, he is entitled to found his claim on it or to plead it as a defence if he is sued on the document....” [32] Secondly, the Plaintiff raises the point that the transfers of his property to the 1st Defendant were done fraudulently without his knowledge and consent. According to the Plaintiff, this is because the 1st Defendant and 2nd Defendant abused the trust which he had placed in them as his wife and son. [33] In support of this contention, the Plaintiff testified that he had entrusted the 1st Defendant to manage all his properties including collecting of the rental income and oil palm income, giving the 1st Defendant access to the documents of title to the properties that was kept in safety box in the company, allowing the 1st Defendant to be in control of the finances of the family business and also the income from the Plaintiff’s properties. [34] According to the Plaintiff, the 1st Defendant abused the trust and fraudulently made the arrangements to transfer the Plaintiff’s six (6) properties into the names of the 1st Defendant and one property also included the name of the 2nd Defendant without his consent and knowledge by appointing Messrs. Hong & Fong to carry out the conveyances of the properties. [35] Plaintiff submits that the fact that the Defendants did not appoint his solicitors, Messrs. Keah & Choo, instead corroborates that they had fraudulently made the arrangements to transfer the Plaintiff’s six (6). S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 10 [36] The Plaintiff further testified that as the company director, he was required to sign documents to be filed with the Companies Commission Malaysia. He further said that the 1st Defendant would hand over these documents to the 2nd Defendant to be given to him for signing. Since they were his son and wife, he trusted them fully and always signed the documents that were brought to him. The Plaintiff alleges that the Defendants had deceived him by slipping the transfer forms together with the company documents to obtain his signatures. [37] In support of this issue, learned counsel for the Plaintiff also highlighted the inconsistencies in the Defendants’ witnesses’ testimony which corroborates the fact that the Defendants abused the trust and fraudulently made the arrangements to transfer the Plaintiff’s properties into the names of the 1st Defendant and one property included the 2nd Defendant’s name. [38] Firstly, he highlighted the inconsistencies from the evidence of DW7, DW4 and DW2 concerning the incident surrounding the execution and attestation of the transfer forms. [39] Secondly, he highlighted the evasive nature of DW2, the Plaintiff’s wife during her cross-examination and her conflicting evidence on her knowledge of the existence and contents of the Plaintiff’s will. [40] Finally, he submitted that the 1st Defendant is not a truthful witness based on his testimony concerning the RM600,000.00 dividend payment, about the custody of the title deed of the properties and on whether encumbrance existed on Lot 3855, Lot 5864, Lot 51242, MLO 198, Lot 21159 in the year 2013. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 11 [41] The Court notes that the Plaintiff had failed to plead the issue concerning the dividend payment in the sum of RM600,000.00 and therefore he is estopped from raising this issue. [42] On what amounts to fraud, the Plaintiff relied on the Federal Court’s decision in Letchumanan Chettiar Alagappan @ L. Allagappan & Anor v Secure Plantation Sdn Bhd [2017] 3 MLRA 501. Whereas on the standard of proof of fraud, the Plaintiff relied on the Federal Court’s decision in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 which held the standard to be on the balance of probabilities. [43] On the last issue, the Plaintiff also submits that the attesting lawyer, Puan Normahani, had never met nor taken any instructions from the Plaintiff concerning the preparation, execution and witnessing of the transfer forms. Thus, this was in breach of what is required under section 211 of the NLC (Revised 2020). This section provides as following: - “211 Attestation of instruments of dealing

Every execution by a natural person of any instrument effecting any dealing under this Act shall be attested in accordance with the following provisions of this section by one of the officers or other persons specified in that behalf in the Fifth Schedule: Provided that this requirement shall not apply to the execution of any such instrument by—

the State Director;

(ii) the Registrar; S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 12

(iii) any Land Administrator; or

(iv) any officer of the Court.

The attestation clause to be used in any case shall be that shown in Form 13B; and the position thereof in the instrument shall be immediately after the execution to which it relates.

The officer or other person attesting any execution pursuant to this section shall sign the attestation clause and, if he has a seal of office, authenticate his signature with that seal.” [44] In support of this point, the Plaintiff relied on the High Court decision in Muhammad Ezannie Noorazman v. Maria Abdullah & Ors [2024] 10 CLJ 611, which held as follows: - “[10] Furthermore, both the first and second defendants have admitted during cross-examination that the second defendant did not witness the deceased’s signature on the memorandum of transfer, despite attesting to the same. This non-compliance with s. 211 of the NLC renders the attestation clause false and the memorandum of transfer an insufficient instrument for the transfer of the Changkat Kiara property. The first and second defendants' argument that the inaccurate attestation does not invalidate the memorandum of transfer, relied on the case of Hari Ram (supra). However, that case is distinguishable. In Hari Ram (supra), the person whose signature was alleged to have been improperly attested was a party to the suit and could corroborate his signature. In the present case, the deceased is deceased, and there is no direct evidence from him to corroborate the execution of the memorandum of transfer.” [45] Hence, the Plaintiff submit that the memorandum of transfer is an insufficient instrument to transfer the Plaintiff’s properties since the S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 13 attestation clause is false and relies on the Court of Appeal’s decision in Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944: - “[66] Under s. 340(2)(b), the title or interest of any person for the time being registered as proprietor of any alienated land shall not be indefeasible where the registration was obtained by means of an insufficient or void instrument. [67] In Tenure and Land Dealings in the Malay States by David SY Wong, at p. 364 the author explained the phrase insufficient or void instrument for the purpose of s. 340(2)(b) of the NLC as follows: (iv) Insufficient or void instrument Section 340(2)(b) also provides that a registered title is defeasible where registration was obtained by means of an insufficient or void instrument. Unlike forgery, the expression insufficient or void instrument is so wide as to defy comprehensive enumeration of the circumstances in which a purportedly executed instrument of dealing may be regarded by the court as insufficient or void. Some general observations may indicate how wide its domain may be. The reference to the insufficiency and voidness of an instrument could pertain to all sorts of circumstances and matters relating to the execution of the instrument. executed in pursuance of a contract of dealing, the invalidity of contract (i.e. where the contract is void) would plainly entail that the instrument is void accordingly. The instrument may also be ìnsufficient or void for reasons relating to the capacity of the parties concerned, or by reason of some formal defect or irregularity. In addition, non-compliance with relevant statutory requirements may also result in the instrument being regarded as insufficient or void.” [46] Learned counsel for the Plaintiff also cited the Federal Court’s decision in Kamarulzaman Omar & ors Yakub Husin & Ors [2014] 2 MLRA 432 on the interpretation of section 340 NLC (Revised 2020). S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 14 [47] On the other hand, the Defendants contend that the Plaintiff had transferred the properties voluntarily to the 1st Defendant for love and affection and without any conditions. [48] According to the Defendants, the events that led the Plaintiff to do so were when the Plaintiff became demoralised and depressed due to his investment failure and the business of Environment Support Sdn. Bhd took a downturn. This was also when the Plaintiff asked his children to look for a livelihood elsewhere. [49] The Plaintiff was persuaded by the family to retire from the family business. The Defendants then decided that the 1st Defendant who had experience in the family business, should take over and steer the management of Environment Support Sdn. Bhd. to rescue the company. [50] The 1st Defendant’s (DW4) evidence is that upon taking over the management of the company, the 1st Defendant took the responsibility of providing for the family’s monthly expenses in the region of RM8,000.00 to RM10,000.00 by giving it to the Plaintiff and the 2nd Defendant. [51] The 1st Defendant (DW4) also further testified that he gave the Plaintiff RM3,000.00 to RM10,000.00 as a love and affection contribution from time to time. [52] The Plaintiff’s other son (DW1) testified that the Plaintiff received RM3,000.00 to RM10,000.00 and his daughter (DW5) testified that the Plaintiff demanded between RM3,000.00 to RM5,000.00 and even between RM8,000.00 to RM10,000.00. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 15 [53] Whereas the 2nd Defendant (DW2) testified that each time the Plaintiff took RM3,000.00 to RM10,000.00 from the 1st Defendant. [54] The 1st Defendant (DW4) and his siblings, DW1 and DW5 testified that after the Plaintiff had a fall in 2018, he started demanding RM3,000.00 to RM10,000.00 per week. [55] Lastly, the 1st Defendant (DW1) testified that from 2020 to 2021, the Plaintiff demanded RM10,000.00 per week and the minimum he gave the Plaintiff was between RM3,000.00 to RM5,000.00. He told the Plaintiff that this was the sum he could pay but the Plaintiff responded by saying that he would not accept anything below RM10,000.00. [56] On the other hand, the Plaintiff (PW1) testified that he had asked the 1st Defendant (DW4) for RM10,000.00 in 2020 but only received RM3,000.00. [57] Next, the 2nd Defendant told the 1st Defendant to stop giving the Plaintiff this contribution sometime during the imposition of the Movement Control Order in March 2020. [58] According to the Defendants, upon transfer of the properties from the Plaintiff, the 1st Defendant sold some of the properties which were not generating any income. The 1st Defendant also mortgaged some property to obtain funds for Environment Support Sdn. Bhd. [59] The crux of the evidence from the 1st Defendant’s other siblings, DW1 (Nam Yong Seng) and DW5 (Nam Wan Li), to a large extent, corroborates the Defendant’s version above. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 16 [60] Defendants submit that after the 1st Defendant had taken over the management of Plaintiff’s properties and the company in 2013, there were no grievances from Plaintiff until March 2020. [61] This was when the 2nd Defendant told the 1st Defendant to stop giving the Plaintiff his monthly contributions for fear of the Plaintiff being manipulated by sweet promises made by bad people and the 1st Defendant would have to bear the responsibility to bear the Plaintiff’s debt once again as which happened before in the year 2010. [62] The Defendants submit that only from then onwards did the Plaintiff start his antics hoping that the Defendants would give in and submit to him for the contributions which were stopped by scolding the Defendants frequently. [63] Further, sometime in 04.08.2020, the Plaintiff requested Sin Soon Huat, the company managing the plantation on Lot 5864 to forward the revenue from the oil palm plantation to him from then onwards. However, the 1st Defendant after knowing of the Plaintiff’s said request, told Sin Hoon Huat not to do so. [64] The Defendants submit that the Plaintiff is fully aware and has knowledge that he had voluntarily transferred the properties to the Defendants. Furthermore, the Plaintiff also knows that house No. 9, in which he has a 1/3 share was sold in 2013. [65] The Defendants submit that the Plaintiff understood the transfer forms that he executed because it was explained to him by the S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 17 conveyancing clerk from (DW6) from Messrs Hong & Fong, who had explained the same in Mandarin. [66] DW7, the solicitor from Messrs Hong & Fong, confirmed in her testimony that she had instructed her conveyancing clerk (DW6) to explain to the Plaintiff, Defendants and the purchasers of house No. 9 (Lot 53843) the transfer forms and the sale and purchase agreements in Mandarin. [67] Learned counsel for the Defendants submit that the Plaintiff is estopped from raising the plea in non-est factum since it is not pleaded. In support of his contention, he relies on the decision in Janagi v Ong Boon Kiat [1971] 2 MLJ 196 and He-Con Sdn Bhd v Bulyah bt Ishak & Anor (as administrators for the estate of Nor Zainir bin Rahmat, the deceased) and another appeal [2020] 4 MLJ 693. [68] I am not in agreement with the learned counsel for the Defendants’ contention. I find the Plaintiff in paragraphs 16, 18 and 19 has pleaded the material facts to raise the issue concerning the plea in non-est factum. [69] Learned counsel for the Defendants also submits in the alternative that, although the transfer forms were in Malay, the Plaintiff is bound by the transfer forms executed by him based on the decision by the Court of Appeal in Lim Peng Hock & Anor v Chuah Peng San & Anor [2021] MLJU 192 which held as follows: - “non est factum [59] As a whole, by pleading fraud over the transactions including non est factum, the 1st plaintiff tries to show that he was ignorant of S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 18 what he had signed ie. sale & purchase agreement, receipt for deposit, statutory declarations, transfer form 14A etc. He pleaded he believed they were security documents and he did not know the content thereof or he signed the blank documents/papers. [61] In the case of Lim Wen Chih & Anor v. Mycom Berhad [2014] 3 MLJ 691, the Court of Appeal held …………………. [62] The Court of Appeal further held that the principle, a person is bound by his contract regardless that he is ignorant of the language it is written in, is well established citing Subramaniam v. Retnam [1966] 1 MLJ 172; [1965] 1 LNS 169 which referred to Ismail bin Savoosah & Ors v. Hajee Ismail [1889] 4 Ky 453 at p 458 where Wood AG CJ said: “It was argued that the defendant being ignorant of the English language he is to be excused on that account from the performance of his contract, but it is to my mind clear that in the common principles which govern the law of contract, the person who contracts by a written document, whether or not he understands the language in which it is written, is bound, in the absence of fraud or misrepresentation, by the terms of that contract, as to which proposition no objection was authoritatively sustained … [24] Deliberating upon the above and the facts before the court, we agree with the learned judicial commissioner, that the appellants were not novice businessmen and would not have signed the documents without careful consideration. To put it directly, the appellants were not ‘hillbillies’, but businessmen of considerable acumen as their assets suggest, they would be so unlikely as to be unbelievable to have signed any document in a foreign country without knowing what it is that they were signing”. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 19 [63] Finally it was also held that a person who signs a document and parts with it so that it may come into other hands, has a responsibility, that of a normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor (Saunders v. Anglia Building Society [1971] AC 1004) [64] In the present case, we are satisfied that non est factum rules cannot apply to the 1st plaintiff for the following reasons: - i) Some of the documents signed by 1st plaintiff are in Bahasa Malaysia which 1st plaintiff admitted he understand, i.e receipt for deposit of RM70,000 (exhibit D20), transfer form 14A (exhibit D37) thumbprinted by 1st plaintiff on 10.1.2011, statutory declaration affirmed on 3.12.2012 (exhibit D35). ii) 1st plaintiff is the big time pilling contractor with the yearly revenue of a few millions as shown in the company search of KHL Piling & Construction Sdn. Bhd (CCB Part (2), pg 320- 325 or Rekod Rayuan, Bhg C, Jilid 1, pg 407- 412) to which he is the major shareholder cum director.

(iii) He is not hillbilly but seasoned businessman with vast experienced at the age of 50 plus just impossible to sign blank documents/papers, Statutory Declarations, Transfer Form 14A, receipts, sale & purchase agreement, etc without knowing the content thereof or a least put an enquiries of so many documents that he admitted he had signed not on one occasion but over a period of times.” [70] In a nutshell, the Defendants’ defence is that the Plaintiff has commenced this action hoping that the Defendants will give in and submit to his demand for his contributions, which he was receiving before March 2020 and was stopped. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 20 [71] I now come to my findings. It’s my finding that upon evaluating the evidence adduced by the Plaintiff, he did nothing concerning the transfer forms he executed in 2013 until 12.08.2021, when he instructed his solicitors to issue a notice of demand disputing the transfers. [72] The evidence adduced by the Defendants reveals that the execution of the transfer forms was attended to by a conveyancing clerk (DW6) from Messrs Hong & Fong, who had explained the same in Mandarin to the Plaintiff. [73] If the Plaintiff had any queries, he could have then asked DW6 about the contents of the transfer forms and the effect of signing them or brought them to his solicitors to be explained to him. [74] There was nothing to stop the Plaintiff from appointing his solicitor, Messrs Keah & Choo, to advise him regarding the conveyance and to attend to his wishes and instructions on how to entrust the management of his properties and the family business company to the 1st Defendant. [75] In the circumstances, the fact that the 1st Defendant had appointed Messrs. Helen & Fong to attend to the conveyance is of no relevance to the issues at hand and does not support the Plaintiff. [76] The evidence adduced by the Plaintiff reveals that he was once an established businessman and had set up companies. The Plaintiff also bought several properties. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 21 [77] In the circumstances, surely the Plaintiff would have signed many documents relating to his company and business, sale and purchase agreements, transfer forms and other documents relating to the conveyance of property. [78] The Plaintiff also signed the Sale and Purchase Agreement to sell his 1/3 share in House No. 9 in 2013. He did not dispute this fact. Further, he did not demand his share of the sale proceeds then. Neither did he demand his ½ share from the sale proceeds for house No. 11. [79] Further, it’s my finding that from the Plaintiff’s evidence, he did not dispute his signatures on the memorandum of transfers. On the contrary, the Plaintiff confirmed in his evidence that the signatures and the initials on the memorandum of transfers and the Sale and Purchase Agreement belonged to him. He only disputes that he did not know the documents he signed were transfer forms, as he was under the impression he was signing company documents or income tax documents. [80] The transcript of the Plaintiff’s conversation with his other son, Nam Yuh Qing in the CCTV recording implies that the Plaintiff knew what documents he was signing. [81] Learned counsel for the Defendants submitted that the test for the admissibility of this sort of recording was set out in Mohd Ali Jaafar v Public Prosecutor 1984 MLJ 210, and the Defendant has met the requirements. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 22 [82] Both these transcripts were marked as P2B and P2C. In my opinion, based on the test laid down in Mohd Ali Jaafar (supra), these transcripts are admissible in evidence for the following reasons: -

The CCTV recording was played in Court.

(ii) DW3, who had access to the CCTV recording (P2A), identified the persons in the recording to be the Plaintiff and Nam Yuh Qing.

(iii) DW3 identified the conversations between the Plaintiff and Nam Yuh Qing.

(iv) DW3 also gave an account of the conversation which was about the signing of the transfer forms.

Both the Plaintiff (PW1) and his other son, Nam Yuh Qing (PW2) confirmed that they were the ones seen in the CCTV recording.

(vi) Lastly, a transcription of the conversation by a certified Chinese Interpreter (DW8) into Teo Chew dialect was produced in Court. [83] I am convinced that the above evidence is sufficient to show the accuracy of the recording as per the test laid down in Mohd Ali Jaafar v Public Prosecutor [1998] 4 MLJ 210. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 23 [84] In the foregoing, the Plaintiff failed to establish the plea of non-est factum to vitiate the transfer forms signed by him based on this ground. [85] Next, the evidence adduced shows that the Plaintiff upon transferring the properties to the 1st Defendant in 2013, was not in any gainful employment or running any business and receiving income. [86] So, how then was he surviving or sustaining himself without any income? [87] The irresistible conclusion that can be drawn from the facts of this case is that, although the transfer of the Plaintiff’s six (6) properties to the 1st Defendant and the inclusion of the 2nd Defendant’s name in one of these properties was purportedly for love and affection, the truth of the matter is that it must have been in consideration of a monetary contribution to the Plaintiff ranging from RM 3,000.00 to RM 10,000.00 from income of the family business taken over by the 1st Defendant, income from the six properties transferred to the 1st Defendant and the sale proceeds of the Plaintiff’s share in two properties. [88] The Defendants had termed this contribution to the Plaintiff as for love and affection. However, there is no clear evidence forthcoming from the parties and their witnesses whether the contribution was made monthly or from time to time by the 1st Defendant. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 24 [89] It’s my finding that Plaintiff, Defendants and their witnesses have not been forthcoming and evasive on the details of these contributions and the exact sum. [90] The contribution must have been such that it had induced the Plaintiff to part with his properties to the Defendants and for the 1st Defendant to manage the properties and the company. [91] However, it is rather unfortunate that this family arrangement or understanding between the parties was never reduced to writing but was just based on understanding and trust due to family ties. [92] In conclusion, it can be inferred that the Plaintiff’s grievance concerning the transfer of properties started in March 2020 when the 2nd Defendant told the 1st Defendant to stop giving the Plaintiff his monthly contributions. [93] The 2nd Defendant as the wife of the Plaintiff seemed to have played a pivotal role in stopping the contributions to the Plaintiff. [94] I find both Defendants not to be truthful from their demeanour and evasiveness in answering the questions during cross-examination concerning the contributions to be paid to the Plaintiff in consideration of the Plaintiff entrusting the management of his properties and the family business company to the 1st Defendant. [95] The 2nd Defendant had ignored the fact that it was the Plaintiff who had purchased these properties by working hard and establishing himself as a successful businessman. It seems as though no love was lost between the 2nd Defendant and the Plaintiff. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 25 [96] Both Defendants had reneged on their promise to the Plaintiff that he would receive love and affection contributions for his expenses and sustenance in consideration of the Plaintiff entrusting the management of his properties and the family business company to the 1st Defendant. This would include the sale proceeds from House No. 9 and 11. [97] Surely, the Plaintiff at that stage of his life would not have transferred all his property and handed his business to the 1st Defendant alone during his lifetime without any consideration, given that he no longer has any other source of income. There must have been some consideration for him to do so, and it cannot be for the benefit and enjoyment of the Defendants alone. From the evidence, I cannot exclude the possibility of the parties acknowledging the consideration to be for love and affection for the sake of convenience as something which was not the truth. [98] Learned counsel for the Defendants had fiercely cross-examined the Plaintiff repeatedly on the Defendants’ stand that the transfers were made by the Plaintiff voluntarily based on love and affection for the Defendants. However, the proviso to section 92 of the Evidence Act 1950 clearly permits the admission of evidence relating to want or failure of consideration. [99] Furthermore, an inference can be drawn from the evidence that the 2nd Defendant being the Plaintiff’s wife must have played an important role by assuming the role of the head of the family when the Plaintiff became demoralised or depressed due to his investment failure and company business taking a downturn in persuading the Plaintiff to allow the 1st Defendant to take over the S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 26 family business and to transfer his properties to the Defendants. Therefore, it cannot be ruled out that for this reason, the consideration is stated for love and affection. [100] In Lin Ah Moy v Lee Cheng Hor & Ors [1969] CLJU 96 a case concerning the transfer of shares devised by an elder brother under the guise of a family arrangement to defraud his brothers of their shares and the transfer of his own shares being the cover and inducement for his brother’s transfers, the Federal Court agreed what was stated by the trial judge, Chang Ming Tat J as follows: - “I frankly find the evidence of the sale both in 1954 and 1959 unconvincing and incredible. One does not normally sell a goose that lays golden eggs for a little more than the price of a goose.” [101] However, the Plaintiff’s pleaded case herein is not based on the existence of a resulting trust in his favour for the transfers of the six

properties. In Lin Ah Moy (supra), The Federal Court, speaking through Gill FJ, stated that a transfer without consideration creates a rebuttable presumption of a resulting trust. Hence, this Court is precluded from deciding on this point unlike in Lin Ah Moy (supra), where a resulting trust was pleaded. [102] Neither is the Plaintiff claiming for the monetary contributions which he was receiving from the 1st Defendant and which were stopped in March 2020. [103] In the foregoing, on the evidence, it is my finding that transfers were not obtained by way of fraudulent misrepresentation. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 27 [104] Finally, on the issue concerning the transfer forms being insufficient under section 340(2)(b) NLC (Revised 2020) due to false attestation by the solicitor (DW7), in my judgement, the Plaintiff did not specifically plead this issue. The Plaintiff only pleaded that the transfer forms were not witnessed by the solicitor (DW7). As such, I am of the view that the Plaintiff is not entitled to raise this issue. [105] In any event, it’s my finding that based on the facts in this case which confirms that the Plaintiff had executed the transfer forms before Messrs Hong & Fong’s conveyancing clerk (DW6) and confirms that the signatures in the transfer forms are his and does not dispute it, the subsequent attestation by DW7 is only a mere irregularity. [106] In arriving at this conclusion, I rely on the case of Re Joseph De Cruz James & Anor; Margaret Rose v Manomani Kandiah [1973] 2 MLJ 117, it was held: - “Section 211 of the National Land Code which deals with the attestation of the instruments of dealing primarily provides matters relating to persons qualified to attest, type of attestation clause to be used and the signature of the person attesting. Failure, if any, to comply with the section of the nature revealed from the circumstances of this particular case is, I think, something that affects the form and not the substance. I would regard it as a mere irregularity and not an illegality. It is necessary for me to emphasize that there is no allegation that the deceased had not properly executed the instrument of transfer and there is absolutely nothing to show that he had not intended to execute a transfer to Manomani as trustee. The evidence on this point is, I think, overwhelming. Mr. E. J. Lawrence drew up the deed of trust at the request and instructions of the deceased S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 28 and the deed was executed in his presence by both the deceased and the respondent. Clause 2 of the deed specifically provided that the donor shall soon after the execution of the trust deed execute a transfer in the name of the trustee who shall hold the property in her capacity as trustee. I am therefore firmly of the view that mere irregularity in regard to attestation devoid of any intention on either the transferor or the transferee to deceive or perpetuate any fraud and, furthermore, considering the fact that the instrument executed had in every respect conformed with and truly set out the intention of the parties, there is indeed no ground whatever to say that the instrument is not a fit instrument for registration and is therefore void or insufficient. As for the allegation of fraud no particulars of fraud have been set out and there is, to my mind, absolutely no evidence to support that allegation.” [emphasis added] [107] Further, in the case of Wee Huay Fong v Pentadbir Tanah, Klang & Anor [2002] 3 MLJ 572, it was held as follows: - “Secondly, the applicant has alleged that the charge document in Form 16A of the NLC is void on the ground of non-attestation and falsified attestation. The applicant alleges that the charge was not executed before the attesting solicitor, one Mr Wan Soo Khuan. On this issue, I find that the applicant as the chargor has never alleged not signing the charge document. Her only contention was that it was not signed before the attesting solicitor. The attestation clause in Form 13B of the NLC serves to confirm and verify that the signatory to the charge was in fact the chargor. The purpose of s 211 of the NLC with regard to attestation of instruments of dealing, is to prevent forgery of the charge document. If the chargor herself does not deny signing the said charge document, the purpose of requiring S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 29 the attestation has been served, ie it is confirmed that the chargor is in fact the person who executed the charge. I am of the view in interpreting the provision of a statute, the court should look to the purpose of the act, ie the mischief it is intended to address (see Citibank v Mohamad Khalid Farzalur Rahaman & Ors [2000] 4 MLJ 96). Here, the mischief is forgery. Section 211 of the NLC seeks to prevent forgery by ensuring that an attesting witness certifies that the person executing the charge is in fact the chargor. If, as in this case, the chargor does not dispute the fact that she is the person who executed the charge, this mischief has been addressed. The purpose of s 211 of the NLC has been met. Therefore, there is no breach of s 211 of the NLC. The said charge is therefore not a void instrument, and once registered become indefeasible by virtue of s 340(1) of the NLC. On the present facts, the form of the charge complies with the requirements of the NLC. The solicitor attested that the charger executed the charge before him. This, the chargor says is untrue. Even if it is in fact untrue, it only goes to show that the circumstances in which the said charge was executed was untrue. However, what remained true are the contents of the charge and that the chargor did in fact execute the said charge. Surely, this cannot render the charge void or insufficient.” [emphasis added] [108] The decision in Wee Huay Fong above (supra) was followed in a recent decision of Ali Reza Ziba Halat Monfared v Chew Ben Ben & Ors [2024] 7 MLJ 774 by the High Court which held as follows: - “In this regard, relevant guidance can be gleaned from the case of Wee Huay Fong v Pentadbir Tanah, Klang & Anor [2002] 3 MLJ 572, where Zulkefli J (as His Lordship then was) considered that the mischief of Section 211 was to prevent forgery. That is to say, if the person executing the instrument was in fact genuinely that particular S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 30 person, even though the instrument was not attested as prescribed by law, there is no breach of s 211 of the NLC and the instrument is not a void instrument, and once registered, it becomes indefeasible. Although Wee Huay Fong concerns primarily with Form 16A, I agree with the defendants that the ratio must apply by analogy to uphold the validity of Form 14A in this action.” [emphasis added] [109] Lastly, in Masterskill v Kamacahaya Development Sdn. Bhd. & Ors [2012] CLJU 1360, Her Ladyship Lau Bee Lan J (as she then was) held as follows: - “6. Although in exh.KP-3 the attestation clause was not complied with, I am of the view that in this instance the person who signed the said caveat on behalf of the Plaintiff never disputed there was a forgery and neither did the Defendants. Hence the purpose of s. 211 has been met and there is no breach of s. 211 of the NLC. I am incline to agree with the Plaintiff that the issue of the authenticity of the signature of the Plaintiff’s representative who executed Form 19B for the purpose of applying for a private caveat to be entered against the said land was never an issue.

6.1. I draw support for this proposition in the case of Wee Huay Fong v. Pentadbir Tanah, Klang & Anor [2002] 6 CLJ 512, where the High Court held that s. 211 of the NLC seeks to prevent forgery by ensuring the attesting witness certifies that the person executing the charge is in fact the chargor. If the chargor does not dispute the fact that he/she is the person who executed the charge, the mischief has been addressed.” [emphasis added] S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 31 [110] In the circumstances, it’s my finding that the transfer forms are not insufficient instruments under section 340(2)(b) NLC (Revised 2020). [111] I wish to emphasise that my above finding on the point concerning the validity of the transfer forms (Form 14A) is based on the facts in the present case and not of general application. [112] In the foregoing, I conclude that the Plaintiff has failed to prove his claim to recover the six (6) properties and the proceeds from the sale of the two (2) properties on the balance of probabilities. Henceforth, he also failed to prove his claim for the loss of rental for Lots 3855, 51242 and the claim for damages. [113] The Plaintiff’s remedy against the Defendants or the 1st Defendant would be a claim for his contributions which were promised to be paid to him based on the family arrangement or understanding between him and the Defendants. This of course, will be subject to proof by the Plaintiff.

[114] In the foregoing, the Plaintiff’s claim against the Defendants is dismissed. [115] I exercise my discretion and hereby order each party to bear their respective costs since this matter involves a dispute between immediate family members and based on the facts of this case. S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 32 Dated this 9th May 2025 at Muar in the State of Johor. t.t. SURIA KUMAR DJ PAUL Judge High Court of Malaya Muar Johore Darul Ta’zim Counsels: For the Plaintiff : Teoh Tiong Jin with Law Cheun Yao For the Defendants : Stanislaus A/L J. Vincent Cross with Koh Sze Jie, Kor Weizhen and Amirul bin Rafie Solicitors: For the Plaintiff Messrs Tham Teoh & Partners Advocates & Solicitors Suite 15-03A, Level 15, Menara MBMR No. 1, Jalan Syed Putra 58000 Kuala Lumpur [Ref. No. : LITI.20211034.NCY] S/N ufnc4H8nTkChyzjq7KXpw May 9, 2025 33 For the Defendants Messrs Koh & Teh Law Chamber Advocates & Solicitors No. 23-2, Kuchai Entrepreneurs Park Jalan Kuchai Maju 5 Jalan Kuchai Lama 58200 Kuala Lumpur [Ref. No. : KTLC/KSJ/LIT/NYS/111/22] Hearing Date : 28th March 2023, 10th April 2023, 29th May 2023, 16th May 2024, 10th June 2024, 21st August 2024, 22nd August 2024, 1st October 2024, 2nd October 2024, 3rd October 2024, 14th October 2024, 18th November 2024, 24th January 2025 Decision Date : 9th May 2025 S/N ufnc4H8nTkChyzjq7KXpw