Finally, the mere fact that a person, who is living in the property undertook repairs and renovations for her own benefit, is not enough to establish a right over the property. In the present case, the 1st Wife's evidence that she had incurred expenses in renovating and maintaining the No. 129 Property is a bare assertion in the absence of proof of such expenses. Even if she did carry out such renovations and maintenance, it was done for her own benefit and she had personally enjoyed the benefits of such renovations." (emphasis added) [19] In short, based on the above, the learned trial judge, in dismissing the Defendant's claim that the said Property is a matrimonial asset of the deceased and DW3, found that-a. the deceased's first wife, DW3, was not a litigant to the present case; b. the Defendant has no locus standi to claim that the said Property is a matrimonial asset; c. the Defendant did not pray for a declaration that the said Property is a matrimonial asset of the deceased and DW3; d. the Defendant did not plead that the deceased was holding half of his shares in the said Property for DW3; and e. DW3's evidence that she had incurred expenses in renovating and maintaining the said Property was a bare assertion in the absence of proof of such expenses. [20] We agree with the findings of the learned trial judge above for the following reasons. [21] First and foremost, regarding the Defendant's locus standi, we agree with the trial judge that the Defendant lacks standing to claim the said Property as a matrimonial asset of his parents, as he does not have direct or personal legal rights over it. [22] In the Supreme Court case of Government of Malaysia v Lim Kit Siang United Engineers (M) Berhad v Lim Kit Siang [1988] 2 MLJ 12, Abdul Hamid CJ Malaya (as he then was) held as follows: "Locus standi' is generally understood to mean the right of a party to appear and be heard by a tribunal. A litigant is said to have locus standi, in effect standing to sue in a court of law, if that court recognises his or her ability to institute and maintain proceedings before it. The question of standing is thus separate and distinct from questions of the substantive merits and the legal capacity of the plaintiff. It follows, therefore, that a litigant may lack standing to bring a case which would succeed if brought by the right litigant." (emphasis added) [23] Secondly, we are of the view that the appropriate party to assert a claim that any property constitutes a matrimonial asset should be the spouses themselves, given their direct and legal rights over such property. Therefore, we hold that DW3 is the proper party to assert her claim that the said Property is a matrimonial asset. Nonetheless, it is pertinent to note that DW3 is not a litigant nor a party to this proceeding. [24] Since DW3 is neither a litigant nor a party to this case, the Court lacks jurisdiction over her. It is well-established that the Court's authority extends only to individuals properly brought before it. Therefore, the Court can only issue judgments or orders regarding questions or issues that involve the parties properly brought before the Court. [25] In Kheng Chwee Lian v Wong Tak Thong [1983] 2 MLJ 320, Seah FJ (as he then was), while delivering the judgment of the Federal Court, said: "In our judgment, the court below has no jurisdiction inherent or otherwise, over any person other than those properly brought before it, as parties or as persons treated as if they were parties under statutory provisions (Brydges v Brydges & Wood; Re Shephard and Coleman). The terms 'judgment' and 'order' in the widest sense may be said to include any decision given by a court on a question or questions at issue between the parties to a proceeding properly before the court (see para 501 of Halsbury's Laws of England (4th ed) Vol 26 at p 237)." (emphasis added) [26] In other words, it is a general rule that no order may be made against a non-party. However, there are two exceptions to this rule. The first is in cases of injunctions, and the second is when the excluded party is the alter ego of the person already before the court. None of which are applicable to the facts in the present case. [27] Gopal Sri Ram JCA (as he then was) speaking for this court in Re Thien Kon Thai [2008] 6 MLJ 278, held as follows: "We accept that it is a general rule that no order may be made against a non party. However there are two exceptions to this rule. The first are injunctions. An injunction is not only binding upon the person to whom it is directed. It also binds his agents or servants although they are not parties to the suit. It binds every person who has notice of it. The second exception is where the party complaining of being excluded is really the alter ego of the person already impleaded and before the court. Jones v Lipman (1962) 1 Ch D 442 provides an excellent example. There a defendant who had agreed to sell his land to the plaintiff transferred it to a company of which he and a clerk of his solicitors were sole shareholders and directors. Russell J (later Lord Russell of Killowen) had no hesitation in decreeing specific performance against the limited company. He described the company as a sham or a cloak." (emphasis added) [28] Both cases above were affirmed by the Federal Court in Lim Choon Seng v Lim Poh Kwee [2020] 5 MLJ 587. [29] In a nutshell, we hold that since DW3 was not a litigant or party in this proceeding, the Court cannot deliver any judgment or order in her favour, especially when the claim is to declare that the said Property is a matrimonial asset as between herself and the deceased. [30] Thirdly, on the issue that the Defendant did not pray for a declaration that the said Property is a matrimonial asset, and the deceased was holding half of his shares in the said Property for DW3, the Defendant contended that the Court may allow the Defendant's claim and declare the said Property as a matrimonial asset of the deceased and DW3- a. based on the omnibus prayer stated in paragraph 75(h) of the Defendant's Defence and Counterclaim [see Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v Balakrishnan Kaliannan [2013] 7 CLJ 413 (FC)]; and b. based on the evidence adduced during the hearing, which overcame the defects in the Defendant's pleadings since there was no objection by the Plaintiff, and the Plaintiff was not taken by surprise [see Kondisi Utama Sdn Bhd v Baltic Agencies Pte Ltd and another appeal [2019] 1 MLJ 181 (FC) and Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors (on their behalf and for the 213 subpurchasers of plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals [2015] 1 MLJ 773 (FC)]. [31] We disagree with the learned counsel for the Defendant for the following reasons. [32] In cases such as these, it is crucial to remember the cardinal rule in civil litigation that the parties must strictly abide by their pleadings. [33] The Federal Court in RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v Kwan Chew Holdings Sdn Bhd [2010] 2 MLJ 188, speaking through James Foong FCJ (as he then was), held as follows: "Second, the proposition of the Court of Appeal was not even pleaded by the respondent. The respondent's cause of action against the appellant was for breach of contract. Nowhere in the respondent's pleading, expressly or by implication, can we detect a claim for breach of a joint venture agreement arising out of a fiduciary duty placed upon the appellant in the capacity as principal of an agent. It is a cardinal rule in civil litigation that the parties must abide by their pleadings. This is trite as can be seen from the decision of this court in Menah Sulong v Lim Soo & Anor [1983] 1 CLJ 26 where Ong Hock Thye CJ said: I think it is necessary in this case to emphasise once again that the courts should give their decision in strict compliance with the pleadings. As Lord Radcliffe said in Esso Petroleum Co Ltd & Anor v Southport Corporation [1956] 2 WLR 81 at p 91: If an appellate court is to treat reliance as pedantry or mere formalism I do not see what part they play in our trial system. In fact, the Court of Appeal itself has reiterated this in Amanah Butler (M) Sdn Bhd v Yike Chee Wah [1997] 1 MLJ 750; [1997] 2 CLJ 79 where Gopal Sri Ram JCA (as he then was) said: It is trite law that a party is bound by its pleadings. On this, we would like to add that it is not the duty of the court to invent or create a cause of action or a defence under the guise of doing justice for the parties lest it be accused of being biased towards one against the other. The parties should know best as to what they want and it is not for the court to pursue a cavalier approach to solving their dispute by inventing or creating cause or causes of action which were not pleaded in the first place. Such activism by the court must be discouraged otherwise the court would be accused of making laws rather than applying them to a given set of facts." (emphasis added) [34] Similarly, David Wong Dak Wah JCA (as he then was) speaking for this court in Pasupathy a/l Kanagasaby v Masterskill (M) Sdn Bhd & Anor and another appeal [2017] MLJU 129 held as follows: [30] The law on pleadings is simply that parties are bound by them. That is trite (see Amanah Butler (M) Sdn Bhd v Chee Wah (1997) 2 CLJ 79). What that means is that parties in an adversarial system are duty bound, may it be through their legal advisers or otherwise, to frame their causes of action or defences as best they can to advance their causes. The Court is nothing but a neutral umpire in that it will only resolve disputes as framed by the parties themselves. Thus, the Court is not at liberty to fashion a cause of action or a defence in the name of doing "justice" to the case. Noble as that idea may be, such activism may put the Court in a position where the losing party may get a perception of bias in the judicial process. Such perception must not exist at all. In any event, under the present regime of procedural rules of active case management prior to trial by the Court, the parties' legal advisers have no excuse not to put "all their cards on the table" so to speak so that no one is caught by surprise as to what are the issues in dispute. The only exception to what we have said would be, in our view, that there appears quite succinctly ex facie illegality on the facts presented to the Court. That said, we now look at how our apex Courts have treated the omnibus prayer." (emphasis added) [35] Now, in support of his contention, the Defendant relied on the case of Ritz Garden Hotel (supra). In this case, the plaintiff sought the rescission of the sale and purchase agreement pertaining to a parcel of land, the forfeiture of the deposit paid, rectification of the land register and damages. The High Court dismissed the plaintiff's claims, finding that the plaintiff had failed to establish his case. Nonetheless, the High Court ordered the defendant to pay the remaining balance of the purchase price to the plaintiff since the land had been transferred to the defendant. The plaintiff appealed this decision to the Court of Appeal, where, on appeal, the issue was restricted to the question of interest on the judgment sum. The Court of Appeal awarded interest on the judgment sum to the plaintiff. Subsequently, the defendant appealed to the Federal Court, challenging the Court of Appeal's decision to award interest, claiming that the plaintiff's claim did not involve the recovery of debt or damages. [36] The Federal Court, through Hassan Lah FCJ (as he then was), had this to say: [20] In her judgment the learned trial judge ordered the defendant to pay the remainder of the purchase price that was RM750,000 within a reasonable time after and upon a removal of all the caveats lodged in respect of the land. In my view, on the facts of this case, the sum of RM750,000 was a debt owed by the defendant to the plaintiff in the form of the balance purchase price of the land. [21] With respect I am unable to agree with the contention by the defendant that the proceedings tried in the High Court was not for the recovery of any debt or damages, as the remedies sought by the plaintiff were for rescission of the agreement, for the deposit of RM250,000 to be forfeited, for rectification of the land register and for damages. It is to be noted that in prayer (G) of his statement of claim the plaintiff prayed for "Lain-lain dan/atau apa-apa relif dan/atau perintah berlainan atau berlanjutan yang Mahkamah Yang Mulia ini fikirkan suai dan manfaat" "Any other or further relief or order which this Honourable Court deems fit)". This omnibus prayer must not be treated as a mere ornament to pleadings devoid of any meaning (see Lim Eng Kay v. Jaafar Mohamed Said [1982] CLJ 298;; [1982] CLJ (Rep) 190;; [1982] 2 MLJ 156. In Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771;; [1996] 1 MLJ 261 Gopal Sri Ram JCA at pp. 814-815 (CLJ); p. 301 (MLJ) said: In his statement of claim, the appellant has also prayed for 'further or other relief as this Honourable court thinks fit.' In Lim Eng Kay v. Jaafar bin Mohamed Said [1982] 2 MLJ 156 at p.160, a prayer in a statement of claim read 'Any other relief which this Honourable court deems fit to grant.' Salleh Abas FJ (as he then was) said that this prayer 'must not be treated as a mere ornament to pleadings devoid of any meaning'. I am of the view that the same may be said of the like prayer in the present case. This court should, in my judgment, award the appellant such relief as is appropriate in the circumstances of the case. [22] In my view, when the learned trial judge ordered the defendant to pay the plaintiff the balance purchase price of RM750,000 she had in her mind this omnibus prayer in the plaintiff's statement of claim. She was entitled to do so on the facts of this case as the land had been transferred to the defendant. In Guna Sittampalam (supra) Gunn Chit Tuan J at p. 592 (CLJ); pp. 169 and 170 (MLJ) had this to say: The House of Lords has held that the words 'any debt or damages' in s. 3(1) of the UK Law Reform (Miscellaneous Provisions) Act 1934 'are very wide, so that they cover any sum of money which is recoverable by one party from another, either at common law or in equity or under a statute' (such as the UK Law Reform (Frustrated Contracts) Act 1943 in that case: see BP Exploration Co (Libya) Ltd v. Hunt (No 2)14). As s. 11 of our Civil Law Act 1956 is in pari materia with the said s. 3(1) of the UK Law Reform (Miscellaneous Provisions) Act 1934, the words 'any debt or damages' in s. 11 of our Civil Law Act 1956 should also be construed to cover any sum of money which is recoverable by one party from another." (emphasis added) [37] In summary, the core issue in Ritz Garden Hotel (supra) is whether the remaining balance of the purchase price, as ordered by the High Court to be paid by the defendant to the plaintiff, should be classified as a debt or damages. From this classification, the issue of whether interest should be awarded to the plaintiff on the judgment sum naturally follows. There is therefore no inconsistency between the relief expressly prayed for and the general prayer for further relief. [38] We are guided by what has been said by Gopal Sri Ram JCA (as he then was) speaking for this court in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261, as follows: "In his statement of claim, the appellant has also prayed for 'further or other relief as this Honourable court thinks fit.' In Lim Eng Kay v Jaafar bin Mohamed Said [1982] 2 MLJ 156 at p 160, a prayer in a statement of claim read 'Any other relief which this Honourable court deems fit to grant'. Salleh Abas FJ (as he then was) said that this prayer 'must not be treated as a mere ornament to pleadings devoid of any meaning'. I am of the view that the same may be said of the like prayer in the present case. This court should, in my judgment, award the appellant such relief as is appropriate in the circumstances of the case. In arriving at this conclusion, I have not overlooked the decision in Mokhtar v Arumugam [1959] MLJ 232 CA, where the following statement of principle from the judgment of Fry J in Cargill v Bower (1878) 10 Ch D 502 at p 508 was applied: You cannot, under a general prayer for further relief, obtain any relief inconsistent with that relief which is expressly asked for. As it happens, there is, in the present case, no inconsistency between the relief which I propose to award to the appellant and the other relief he has expressly claimed. For that reason, I abstain from deciding this case upon my own view of the wider role which, I believe, courts should play in moulding relief to suit the justice of a particular case, especially in the field of public law." (emphasis added) [39] Turning to the facts in the present case, it is patently clear in the Defendant's Defence and Counterclaim that the Defendant is praying for a declaration that the said Property is wholly held on trust by the deceased as a trustee for and on behalf of the Defendant, DW3 and Ooi Ai Lin. For this claim to succeed, the Defendant would have to show the existence of such a trust. [40] On the other hand, the Defendant is now submitting that the said Property is a matrimonial asset of the deceased and DW3. For this claim to succeed, it must be shown that the deceased does not hold any legal or beneficial interest over the said Property, either wholly or partly, to be able to bequeath the said Property, by reason of the said Property being a matrimonial asset of the deceased and DW3. [41] It is clear to us that the latter is distinctly different from the former. There is, therefore, an inconsistency between the relief expressly prayed for and the general prayer for further relief. We are of the view that the Defendant's omnibus prayer should not be allowed for the above reasons. [42] Furthermore, for the exact reasons above, we are of the view that the Defendant could not overcome the defects in the pleadings through the evidence adduced during the trial, since it is a radical departure from the Defendant's pleadings. [43] In Kondisi Utama (supra) relied on by the Defendant, it was held by the Federal Court as follows: "UNPLEADED CLAIMS [123] We deal now with issue of Baltic's claims not being pleaded in its amended statement of claim. [124] We have carefully examined Baltic's amended statement of claim. There can be no doubt that Baltic's complaint is essentially that both EPIC and Kondisi had caused Baltic to believe that it was being engaged to perform the works and had caused Baltic to take steps and to spend time and to incur expenses in the attempt to obtain Sical Portofino, and when that was unsuccessful to obtain a replacement dredger and other vessels. When Baltic succeeded in obtaining the necessary vessels, EPIC and Kondisi had sidelined Baltic and shut it out completely from the works. The specific pleaded reliefs notwithstanding, in our view neither EPIC nor Kondisi was under any misapprehension that that was the complaint against them. [125] This court in the case of Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals [2015] 1 MLJ 773; [2015] 1 CLJ 719 held that evidence adduced during the hearing can overcome the defects in pleadings as long as the other party is not taken by surprise, especially if the evidence was given without any objection by the other party. The court referred to the judgment of the Supreme Court in the case of Superintendent Of Lands And Surveys (4th Div) & Anor v Hamit bin Matusin & Ors [1994] 3 MLJ 185; [1994] 3 CLJ 567. In that case, Peh Swee Chin SCJ, delivering the judgment of the Supreme Court said, at p 190 (MLJ); p 572 (CLJ): As was stated by the Federal Court in Ang Koon Kau & Anor v Lau Piang Ngong [1984] 2 MLJ 277 (FC) at p 278: Evidence given at the trial can therefore in appropriate circumstances overcome defects in the pleadings where the net result of such evidence is to prevent the other side from being taken by surprise. There is however, at least one important exception to such curing of defect of pleading by evidence departing from such pleading without objection then and there to such evidence. The exception is when such evidence represents a radical departure from the pleading, and is not just a variation, modification or development of what has been alleged in the pleading in question, please see Waghorn v George Wimpey & Co Ltd [1969] I WLR 1764, which gave rise to the proposition, which was approved by Ang Koon Kau & Anor v Lau Piang Ngong and John Stein & Co Ltd v O'Hanlon [1965] AC 890. [126] As we have shown above, EPIC and Kondisi were certainly not taken by surprise by and did not object to the evidence given by witnesses for Baltic. Evidence was led during cross-examination of their own witnesses which supported Baltic's position. [127] We are therefore of the view that what Baltic lacked in pleading was more than made up for by the evidence before the High Court." (emphasis added) [44] We also agree with the Plaintiff that the stance taken by the Defendant in the present case, as mentioned above, was also inconsistent, and the Defendant was blowing hot and cold. It is trite that a litigant cannot approbate and reprobate. [45] In the case of Express Newspapers Plc v News (UK) Ltd and others [1990] 1 WLR 1320, the doctrine of approbate and reprobate is explained as follows: "There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance. To apply that general doctrine to the present case is, I accept, a novel extension. But, in my judgment, the principle is one of general application and if, as I think, justice so requires, there is no reason why it should not be applied in the present case." (emphasis added) [46] In the case of PB Securities Sdn Bhd v Autoways Holding Bhd [2000] 4 MLJ 417, Shaik Daud JCA (as he then was), speaking for this court, had referred to Halsbury's Law of England on the principles of approbation and reprobation as follows: "... We refer to 16 Halsbury's Law of England (4th Ed) para 1507: Approbation and reprobation. On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions: (1) that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile; and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent." (emphasis added) [47] Accordingly, we find that the Defendant's contention on this issue to be without any merit. [48] Regardless of the above, the learned trial judge went into the merits of this submission. This brings us to the fourth and last contention of the Defendant on this issue. The Defendant submitted that the learned trial judge had erred in failing to consider that DW3 has the right over the said Property because DW3 had incurred expenses in renovating and maintaining the said Property, being their matrimonial asset. [49] At the outset, we are of the view that the Defendant's reliance on section 76 of the Law Reform (Marriage and Divorce) Act 1976 [Act 164] ("LRA 1976") is misconceived since the Court's jurisdiction to order division of matrimonial assets under that provision only arises when granting a decree of divorce or judicial separation. [50] Section 76(1) of LRA 1976 states: "The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale." (emphasis added) [51] This was made clear by the Federal Court in Manokaram a/I Subramaniam v Ranjid Kaur a/p Nata Singh [2008] MLJU 46, when Arifin Zakaria FCJ (as he then was) in delivering the judgment of the Federal Court held as follows: Finally, I must say that this case clearly demonstrates the harsh result arising from the current provisions of s. 76(1) and (3) of the Act. But, as I find the words in s. 76(1) and (3) are clear and explicit, it is our duty to give effect to it; for in that case the words of the statute speaks the intention of the Legislature. (See Warburton v Loveland [1832] 2 D. & Cl. 480 per Tindal CJ at pg. 489). If the result is unfortunate, it is entirely a matter within the power of the Legislature to take the necessary action to remedy the defects of the law as enacted, and it is not for the courts to usurp the function of the Legislature by straining the meaning of the clear terms of the law seeking to evade the consequences which may ensue. That was precisely what was done by Singapore by enacting the new s.112 of the Women's Charter. Reverting to the issue before us, I am of the view that under s. 76(1) and (3) of the Act, the Court's jurisdiction to order division of matrimonial asset is limited to the time when granting a decree of divorce or judicial separation and not at a later stage. As the present application was made subsequent to the decree absolute, therefore, I hold that the Court has no jurisdiction to grant such an order." (emphasis added) [52] Turning to the facts of the present case, since this is not an application for divorce or judicial separation, we are of the view that the considerations before ordering the division of matrimonial assets as stipulated under section 76(2) of the LRA 1976 are not applicable to this case. [53] It is apparent from the evidence in the present case that the deceased and DW3 were married in September 1969. The said Property was purchased by the deceased using his lottery winnings that he gained in 1981. It is also undisputed that DW-3 had not contributed to the purchase price of the said Property. It is sufficiently proven that the said Property was owned by the deceased. [54] The Defendant, on the other hand, claimed that DW3 had a beneficial interest in the said Property, being a matrimonial asset, as the deceased's wife. Allegedly, DW3 had spent money on furnishings and household expenses. The Defendant relied on the Court of Appeal case of Premavathy a/p Balakrishnan v Dr Premalatha a/p Rama Govinda [2020] 2 MLJ 376 to support this contention. [55] Kamaludin Md Said JCA (as he then was), speaking for this Court in Premavathy (supra), held as follows: "... (e) in this case, the matrimonial asset is not subject to division under s 76 of the Law Reform (Marriage and Divorce) Act 1976 on reason that the respondent's marriage with Dr Ganeshwaran were dissolved naturally upon his death ('kes ini tidak melibatkan pembubaran perkahwinan ataupun perpisahan kehakiman');