Omar Bin Ayub v 1. ) Anuar Bin Ayub (BA-22NCvC-39-02/2020)

ANUAR BIN AYUB (No. K/P : 501101-10-5473 / 2699965)

SITI ZABEDAH BINTI AYUB (No. K/P : 590123-10-5586 / 5571096)

Waris-waris dan/atau pentadbir pesaka kepada ABDUL

Waris-waris dan/atau pentadbir pesaka kepada HASMAH BINTI

SITI RAHMAH BINTI AYOUB (No. K/P : 481113-10-5678/0648449)

FARIDAH BINTI AYUB (No. K/P : 610629-10-5968 / 6299714) …DEFENDAN-DEFENDAN 04/06/2024 10:15:16 BA-22NCvC-39-02/2020 Kand. 100 GROUNDS OF JUDGMENT Introduction [1] The feuding parties are siblings. At the time of filing the suit, all the Defendants were the Plaintiff’s brothers and sisters. Since then, the original 3rd and 4th Defendants have passed away. Their respective estates have been substituted as Defendants. Nonetheless for ease of reference in this judgment, all the original Defendants will be referred to as the Defendants. [2] The Plaintiff is challenging the Defendants’ ownership of four pieces of land transferred to them by their late father. He contends that the transfer was unlawful, and that his late father had intended him to have the lands. Salient facts [3] On 16.1.2993, the late father of the parties, one Abdullah Ayub@ Ayub bin Haji Samad (“deceased”) signed a Power of Attorney (“PA”) appointing the Plaintiff “to be my attorney for me and in my name or otherwise to do all or any of the following things within the State of Selangor in respect of the above land held under HS(M) 88, EMR 3316, EMR 2517, EMR 3345 all in the Mukim of Serendah, in the District Ulu Selangor, Selangor Darul Ehsan…” [4] The lands mentioned therein (“the said lands”) are the subject matter of the instant suit. [5] At the time the deceased executed the PA, he was staying with the Plaintiff. The Plaintiff claims that the deceased had promised the said lands to him on condition that he is cared for by the Plaintiff and that the Plaintiff is to manage the said lands. The deceased was in poor health then and had been with the Plaintiff from 1992. [6] However, sometime at the end of February 1993, the Defendants came to take their father out of the Plaintiff’s house. The Plaintiff claims that the deceased was forcibly removed from his house without his consent. He was not informed as to where the deceased had been brought. From then on, the Plaintiff did not see his father until his death on 6.8.1994. [7] In 2018, when the Plaintiff made inquiries at the land office in Ulu Selangor, he was shocked to learn that the said lands had been transferred to the Defendants. The respective ownership of the said lands are as follows:-

HS(M) 88 -1st Defendant;

(ii) EMR 3345 -2nd and 3rd Defendants;

(iii) EMR 3316 -3rd and 4th Defendants;

(iv) EMR 2517 -5th and 6th Defendant [8] The Plaintiff also discovered that the said lands were transferred by four instruments of transfer (Forms 14A), executed by the deceased in favour of the respective Defendants. Except for the Form 14A in respect of EMR 3345 which was executed on 7.6.1993, the other Forms 14A were executed on 9.3.1993. All the Forms 14A had the thumbprint of the deceased affixed on it which was attested to by the assistant land administrator in the Ulu Selangor land office. [9] The Plaintiff alleges fraud and duress on the part of the Defendants in procuring the transfer of the said lands by the deceased to them. He further claims that as a result of the PA granted to him, which is irrevocable, proprietary estoppel operates and he has an equitable right to the said lands. He now applies to set aside and invalidate the registration of the said lands in the names of the Defendants and to have it registered in his name instead. He further seeks an order of general and exemplary damages against all the Defendants. [10] In defence to the Plaintiff’s claim, the Defendants contend that they have an indefeasible title to the land. The lands were validly transferred to them by the deceased. He willingly executed the instruments of transfer. The Defendants in turn challenge the validity of the PA as the deceased was sickly at the material time of the execution of the PA. In any event, the irrevocable PA cannot operate to invalidate their ownership of the land. [11] The Defendants contend that the Plaintiff had benefited from the estate of the deceased as the property he now resides at 912, Kg Sekolah Sg Choh 48000 Rawang Selangor, is a family house which belonged to the deceased. This property ought to be handed over for distribution as part of the estate of the deceased. At the trial, both counsels confirmed that no letters of administration had been applied for in respect of the estate of the deceased. [12] The Defendants further claim that the Plaintiff had not behaved honourably in the matter of the deceased’s property. Whilst the deceased was staying with the Plaintiff, the latter had wrongly withdrawn monies from the account of the deceased. These monies comprise of Amanah Saham Bumiputera, as well as the monies kept in Bank Simpanan Nasional and Maybank Banking Berhad. The monies ought to have formed part of the estate of the deceased for distribution to the beneficiaries. [13] The Defendants counterclaim in turn against the Plaintiff a declaration that the PA is invalid, an order to return the monies wrongly withdrawn from the accounts of the deceased, an order for the Plaintiff to surrender the family house from September 1994 to be administered as part of the estate of the deceased and loss of rental for occupying the family house from September 1994 until vacant possession is delivered. Similar to the Plaintiff’s relief of damages against them, they also seek an award of general and exemplary damages in their counterclaim. Issues for determination [14] The facts are not complicated and the issues to be determined are fairly confined. In my view, the case is to be decided primarily on the following issues:-

Whether the Defendants have an indefeasible title to the lands, and whether the deceased PA in favour of the Plaintiff suffices to defeat the title; and

(ii) Whether the counterclaim of the Defendants is justified on the evidence Analysis and decision of this court [15] It is trite law that he who asserts a fact bears the burden of proof. (See: sections 101 and 102 of the Evidence Act, 1950 and Letchumanan Chettiar Alagapan (as executor to SL Alamelooo Achi (Deceased) & Anor v Secure Plantation Sdn. Bhd.) [2017] 5 CLJ 418). The principle that the onus is on the Plaintiff to prove his case on a balance of probabilities, is also settled law. The trial and the witnesses [16] The Plaintiff was the only witness for his case. The Defendants had a total of 5 witnesses. The 2nd, 5th and 6th Defendants testified. It was most unfortunate that the original 3rd Defendant (DW1), whilst he was testifying, collapsed in the courtroom. The court was later informed that he had passed away. His widow was the last witness for the defence. Indefeasibility of the Defendants’ title to the said lands [17] The said lands are now registered in the names of the original Defendants. S. 340 of the National Land Code confers indefeasibility of title to the registered proprietor, as stated in the provisions below, Registration to confer indefeasible title or interest, except in certain circumstances

(1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible. [18] However, there are exceptions to the indefeasibility of title as provided for in paragraph (2) reproduced below,

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; or

where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law. [19] The concept of indefeasibility of title is therefore not absolute and can be successfully challenged if a plaintiff can bring his case within one of the vitiating circumstances set out above. (See: Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014]; ; He-Con Sdn Bhd v Bulyah Ishak & Anor [2020] 4 MLJ 662; See Leong Chye @ Sze Leong Chye & Anor v United Overseas Bank (M) Bhd and another appeal [2021] 5 MLJ 759). The circumstances can be summarised as fraud, misrepresentation, forgery, insufficient instrument or unlawful acquisition. [20] Although the Plaintiff alleges that there was fraud and undue influence by Defendants in obtaining the transfer of the lands from the deceased. His basis for so saying was the poor health of the deceased at the material time. Apart from his oral assertion, there is no other proof to substantiate his contention. In the circumstances I do not find any of the vitiating factors in s. 340(2) proven as to render the Defendants’ title defeasible. The effect of the Power of Attorney [21] The PA was expressed to be irrevocable. Clause 24 states “THIS POWER OF ATTORNEY UNDER ALL CIRCUMSTANCES IS IRREVOCABLE.” [22] The Plaintiff advances the argument that in view of the terms of the PA granted him, the Defendants do not have a good title to the said lands. This PA prevails over the instruments of transfer by which they came to be registered proprietors. [23] The Power of Attorney Act 1949 governs the creation of all powers of attorney. Where the instrument creates an irrevocable power of attorney, valuable consideration must be given. The relevant provision is as follows,

Powers of attorney given for valuable consideration

If a power of attorney, given for valuable consideration, is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser-

the power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power; and

any act done at any time by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened; and

neither the donee of the power, nor the purchaser, shall at any time be prejudicially affected by notice of anything done by the donor of the power, without the concurrence of the donee of the power, or of the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power.

This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act. [24] For a valid irrevocable power of attorney under s 6, it must be given for valuable consideration. However, if there is no valuable consideration, it may be still valid under section 7 provided there is a fixed period of time stated for its applicability. Where neither of these conditions are met, then the court in Affluent Freight Sdn Bhd v Sumathi A/P K. Appukuttan Pillai & Anor [2001] MLJU 635 has ruled it to be ineffective as follows, Validity of the Power of Attorney There is also an issue on the validity of the Power of Attorney which has to be addressed in this case. The Applicant claims to be the Attorney of the First Respondent (“the Donor”) by virtue of a Power of Attorney purportedly dated 18.7.97. I am of the view that the said Power of Attorney (“PA”) is void, invalid and of no effect on the following grounds:-

The PA falls foul of S. 6 of the Power of Attorney Act 1949 (Act 424) in that it is expressed to be irrevocable even though no valuable consideration has been given by the Applicant (the donee).

The PA falls foul of S. 7 of the Power of Attorney Act 1949 (Act 424) in that being a PA which no valuable consideration has been given, it is expressed to be irrevocable without any fixed period of time being stated therein for its applicability. [25] In the instant case, as there is no mention of the period of applicability of the PA, the question of invoking section 7 does not arise. That leaves the question of valuable consideration as stipulated under section 6, to be considered. [26] In Haji Fauzi Bin Hj. A. Hamid v Kenangan Erat Sdn Bhd [2005] MLJU 455, the High Court held, Upon a proper construction of s. 6(l)(a), I am of the view that valuable consideration is an essential element in order to sustain the irrevocability of a power of attorney and that this valuable consideration must be expressly stated in specific particulars either in the power of attorney itself or the affidavit in support for the purposes of the ex parte originating summons. [27] The question as to what is considered valuable consideration was answered in Tan Chong Keat Sdn Bhd v Pintar Pintas Sdn Bhd [2005] 4 MLJ 201, where the Court of Appeal referred to Halsbury’s Laws of England (9th Ed) (at p 184) and adopted its definition as follows: Valuable consideration has been defined as some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other at his request. It is not necessary that the promisor should benefit by the consideration. It is sufficient if the promisee does some act from which a third person benefits, and which he would not have done but for the promise. [28] It is significant that the PA relied on by the Plaintiff makes no mention of any consideration, notwithstanding that it was stated to be irrevocable. The Plaintiff claims that the PA was given him in return for taking care of the deceased. Apart from this vague allegation, no further evidence was adduced on the alleged consideration. I am not persuaded that firstly, the care rendered by the Plaintiff qualifies as valuable consideration within the meaning enunciated in the cases. Taking of care an aged and sickly parent is the duty of any filial child. As there is no mention of any consideration in the PA, it must therefore be taken to have been given without consideration. [29] In Peringkat Istimewa Sdn Bhd v Pua Kim An & Ors [2016] MLJU 1263, the High Court commented that the mere fact that the PA was expressed as irrevocable does not make it so. [30] Shortly after the grant of the PA and after he was removed from the Plaintiff’s house, the deceased transferred his lands to the Defendants. The Plaintiff’s contention that the deceased cannot do so as the PA granted him is irrevocable, is misconceived. Firstly, it has been earlier established that the PA is void and ineffective as it is without valuable consideration. Secondly, the Plaintiff did not exercise any of the powers under the PA notwithstanding that there were a total of 23 acts which the PA empowered the Plaintiff to perform. In respect of the said lands in particular, the Plaintiff was allowed to lease, let, sell, charge any of the said lands. Thirdly, and more importantly, even if the PA is valid, there is no legal impediment to the deceased to exercise any of the acts stated in the PA. [31] The authorities have laid down the principle that the relationship of a donor and donee under a power of attorney is that of a principal and agent. (See: Affluent Freight Sdn. Bhd. v Sumathi K Appukuttan Pillai & Anor. [2001] 8 CLJ 71, Ahmad bin Salleh & Ors v Rawang Hills Resort Sdn. Bhd. [1995] 3 MLJ 211). [32] In view of this relationship, the High Court in Tai Swee Kian v Tay Boo Thiah @ Tai Boo Ting & Ors [2011] MLJU 1013 held that there is no question of the donor parting completely with his powers to deal with the property wholly to the donee. It held as follows, … It follows from the foregoing that the relationship between the Plaintiff and D1 is that of agent and principal. The PA in the instant case does not provide that D1, the donor, shall have no power to carry out any of the acts specified in the PA on her own. More specifically, I agree with learned counsel for D2 that the PA does not state that only the Plaintiff, as donee has the sole authority to deal with the subject shares to the exclusion of D1. Applying general principles, the delegation of a power of sale does not preclude or prohibit the principal from exercising the power of sale, unless the PA expressly provides that the donor has divested completely all rights of sale to the donee. I am fortified in so concluding by the case of In re Craven's Estate, Lloyd's Bank v Cockburn (No. 1) [1937] 1 CH 423:- "...The position of the donee of the power of attorney is merely to act as agent for the principal and there is nothing to prevent the principal dealing with the property notwithstanding it, and in my judgment, the mere giving of the power of attorney to the donee is not such a parting with dominion as is required to constitute a valid donation mortis causa. If, therefore, the validity of this donation rested solely on the power of attorney I should have come to the conclusion that it was not valid. (emphasis mine). And further on:- " So far as the power of attorney alone is concerned I think that there is no real difference between the law of Monaco and the law of this country. In both cases the donee of the power is a mere agent and there is no question of the donor of the power parting with dominion to the agent at all although the agent is clothed with the authority to deal with the property so far as the power permits, in the same way as the principal could have dealt with it..." (emphasis mine). [33] The above authorities therefore puts paid to the Plaintiff’s contention that the transfer by the deceased is invalid on the ground he has granted the PA to the Plaintiff. [34] The Plaintiff relies on the principle of proprietary estoppel to contend that the lands ought to be his. Several cases on the principle were cited in support. Having read the cases referred, I fail to see the application of the principle to the factual matrix in this case. [35] I must also add that the transfer of the said lands was made in

The Plaintiff took no active steps to recover the lands, until he filed the suit in 2020. 27 years have elapsed since. The issue of limitation could have been raised as actions to recover land must be commenced within 12 years. (See: section 9 of the Limitation Act, 1953). However, as it was not raised in defence, I am not bound to consider it. [36] The Plaintiff’s evidence was that he discovered the transfer only when he went to the land office in 2018. Nonetheless it is significant that notwithstanding the PA given to him in 1993, he did not take any action on it. Had he been convinced of his right to the said lands, he would have acted promptly on his rights after the death of the deceased. I find his inaction from 1994 to 2018 telling, and inconsistent with the actions of one who considers he has a legitimate claim. The counterclaim of the Defendants [37] The Defendants seek a refund of all monies belonging to the deceased which were withdrawn by the Plaintiff. [38] These monies were withdrawn before the deceased passed away. DW1 said in his evidence that the deceased informed him that the monies had been gifted to the Plaintiff. I therefore fail to see how the Defendants can even have a claim on the monies, in view of the deceased’s gift. [39] The second item claimed in the counterclaim is the loss of rental in respect of the house now occupied by the Plaintiff. The rental is claimed from September 1994, presumably as it is the month after the deceased died, until the Plaintiff delivers vacant possession. [40] The claim is premised on the fact that upon the deceased’s death, the house forms part of the estate. As the Plaintiff is still staying in the house, he ought to be made to pay rental on the house until he hands over the house for distribution to the beneficiaries. [41] The Defendants’ claim is misconceived here. Any claim for the benefit of the estate must be made by the legal representatives. As beneficiaries, the Defendants do not have the requisite locus standi to bring an action for damages for the benefit of the estate. (See: Al Rashidy bin Kassim & Ors v Rosman bin Roslan [2007] 4 MLJ 297). [42] As for the order that the PA is invalid, the relief sought has been overtaken by events now that the said lands have been registered in the names of the Defendants. For the above reasons, the Defendants’ counterclaim fails. Conclusion [43] Premised on the above reasons, I find no merits in the suit brought by the Plaintiff and the counterclaim of the Defendants. I therefore dismiss their claims and I make no order as to costs. Dated: 31st May 2024 -sgd- ....………………..….... Alice Loke Yee Ching Judge High Court in Malaya at Shah Alam Counsel for the Plaintiff: Mr. Mohamad Zaidan bin Daud (Mr. Mohd. Khainis bin Yussot and Miss Nur Amalina binti Rashidi) Messrs. Hafizul, Munzeer & Zaidan Counsel Defendant : Mr. Abdul Halim bin Bahari (Mr. Mohamad Aizuddin bin Mohamad Nizam with him)