Noor Jahan binti Yusoff Khan v 1. ) Amanah Raya Berhad (BA-24NCvC-1257-06/2025)

AMANAH RAYA BERHAD (NO. PENDAFTARAN: 199501015784/344986-V) (Sebagai Pentadbir bagi Harta Pusaka Mohd Johari bin Mohd Akel, Si Mati)

JUITA BINTI MOHD JOHARI (NO. K/P: 771027-14-5740) …DEFENDAN-DEFENDAN

The deceased, Mohd Johari bin Mohd Akel (“Deceased”), owned the three (3) pieces of freehold land referred to in the intitulement of this action (“Lands”). The Second Defendant lodged two (2) private caveats on the Lands, namely: a) Presentation No: 09B4711/2023 on 23-11-2023, which is registered on both the Malay reserved Mukim Setapak land and the Mukim Batu land; and b) Presentation No: 09B4747/2023 on 24-11-2023 on the second Mukim Setapak land of which the Deceased has a 3/32 share (collectively “Private Caveats”).

The Lands remain registered to the Deceased. The 1st Defendant is the Administrator of the estate of the Deceased appointed under Kangar High Court Originating Summons No.: RA-31NCvC-1-02/2025. The 2nd Defendant, who was the Deceased’s daughter, moved for the appointment of the 1st Defendant and listed the Lands as part of the estate of the Deceased.

The Plaintiff, who was the Deceased’s 3rd wife, claimed that the Deceased had executed transfer forms (Form 14A) for the transfer of the Lands to her for love and affection on 27-10- 2023 (“MOTs”) about two (2) weeks before he passed away on 10-11-2023. She filed this Originating Summons to seek the removal of the Private Caveats under section 327 of the National Land Code 1965 (“NLC”), a declaration that the MOTs are valid and an order that the Land Administrator register them under section 417 of the NLC.

Evidently, there are competing claims for the Lands between the Plaintiff and the 2nd Defendant and, all other things being equal, the ranking of the competing equities follows the maxim "qui prior est tempore, potior est jure" (i.e. priority is determined by the order of the creation of interests) or otherwise (Vallipuram Sivaguru v PCRM Palaniappa Chetty Official Administrator as Administrator of the Estate of Gan Inn, Deceased [1937] 1 MLJ 59).

However, all things are not equal, as there are other issues. One of the prayers included in the Originating Summons was a declaration that the Lands do not form part of the Deceased’s estate because of the signed MOTs (“Prayer 4”). The 1st Defendant argued that this turned on whether the Deceased granted a valid hibah or inter vivos gift to the Plaintiff and that this question is properly within the jurisdiction of the Syariah Court to decide, referring to: a) the exclusion of “Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate” in Paragraph (ii) of Article 4(e) of the Federal List (Schedule 9) in the Federal Constitution; and b) the decision of the Federal Court in Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 on a similar question.

The Plaintiff withdrew Prayer 4 at the outset of the hearing in an attempt to avoid the jurisdictional question. However, it would appear that apart from the usual prayers relating to the removal of the Private Caveats, the other remedies sought in the Originating Summons are also premised on the validity of the MOTs as a registrable instrument. They raise the same underlying question of whether the Deceased granted a valid hibah or inter vivos gift to the Plaintiff.

This Court did not ultimately have to decide the question of whether the Civil or Syariah Courts have jurisdiction as there were also factually contentious questions raised around the capacity of the Deceased when he allegedly executed the MOTs on account of the circumstances surrounding these instruments such as the edited dates on one of them, the Deceased’s frailty at the material time and the tremulous signatures attributed to him on the MOTs.

These questions about the capacity of the Deceased to execute the MOTs would also feature if a Civil Court is confronted with the same underlying issue, and it is an eminently unsuitable question for determination via Originating Summons. On this point, this Court did not agree with the Plaintiff’s argument that the Defendants did not adduce sufficient evidence on affidavit to challenge the validity of the MOTs, such as to make it an issue.

In conclusion, this Court made the following determination: a) On the removal of the Private Caveats, the 2nd Defendant has a caveatable interest in the Lands as the daughter and beneficiary of the Deceased claiming a share in the distribution of the Lands by the 1st Defendant, there are serious issues meriting a trial and on a balance of convenience, the status quo should be maintained S/N 33EnEqBpg0W9daWW5rRaqw (Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719). b) On whether the Land Administrator should be ordered to register the MOTs, the underlying issue of whether there is a valid hibah or inter vivos gift cannot be determined by Originating Summons and in the light of the jurisdictional challenge, this Court directed that it should be properly taken up and decided at the appropriate forum.

In the circumstances, this Court dismissed the Originating Summons with costs of RM5,000.00 to each Defendant. Bertarikh : 6 Oktober 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM S/N 33EnEqBpg0W9daWW5rRaqw Peguam bagi Plaintif: Ahmad Termizi bin Abdullah (Messrs Termizi & Co.) Peguam bagi Defendan Pertama: Mohamad Fitri Khalis bin Ahmad (with Khairul Anwar bin Abd. Rahim) (Amanah Raya Berhad) Peguam bagi Defendan Kedua: Rajadevan a/l Vamadevan (Messrs Rajadevan &