Rajesweri Pathmarani A/P Paranthaman v 1. ) Vithiapathy A/L B.Subramaniam (BA-22NCvC-464-09/2018)

SIVA SHANKAR A/L ARUNASALAM … DEFENDANTS JUDGEMENT [1] The following is the Court’s decision at the end of a full trial between the parties. Trial commenced on 13.02.2023 and was swiftly concluded on 15.03.2023. During the trial, a total of four (4) witnesses gave evidence i.e. one (1) for the Plaintiff and three (3) for the Defendants. 15/11/2023 14:39:17 BA-22NCvC-464-09/2018 Kand. 121 [2] Having gone through the pleadings of all parties, the evidence adduced at the trial both oral and documentary, and upon reviewing the submissions of counsel, this Court on 18.08.2023 allowed the Plaintiff’s claim. [3] The Defendants have since lodged an appeal against the above decision by way of a Notice of Appeal dated 17.09.2023 to the Court of Appeal. The following are my grounds of judgment in relation to the said appeal. Brief Facts [4] The Plaintiff is the widow of the late B. Subramanian A/L Kuppusamy (Deceased) who passed away on 25.02.2012. [5] On 15.11.2016, the Plaintiff lodged a private caveat on each of the following properties which were belong to the Deceased: i. G.M 314, Lot 1251, Mukim & Daerah Rompin, Negeri Pahang Darul Makmur (“Land No. 1”); ii. H.S (M) 1487, P.T 677, Mukim Pontian, Daerah Rompin, Negeri Pahang Darul Makmur (‘Land No. 2’); and iii. G.M. 2052, Lot 5510, Mukim Cukai, Daerah Kemaman, Negeri Terengganu Darul Iman (‘Land No. 3’). [6] The properties were caveated on the basis that the Plaintiff is the lawful wife of the Deceased and intended to apply to administer them as part of the estate of the Deceased. Regrettably, due to financial constraint at the material time, the Plaintiff was unable to appoint any solicitor for purposes of applying for the grant of letters of administration. [7] Circa March and August 2018, the Plaintiff received a notice from the Pejabat Tanah Kemaman dan Pejabat Tanah Rompin informing of the 1st Defendant’s application to remove the private caveat on Lands Nos. 1 and 3. This led the Plaintiff to seek the advice of Tetuan Nagarajan Peri & Co, who then became the Plaintiff’s solicitors. (Note: The 1st Defendant will hereinafter be referred to as “D1”) [8] As a result of an online search carried out by the Plaintiff’s solicitors through the EFS system, the Plaintiff discovered that D1 had on 13.06.2016 obtained a Grant of Probate vide Shah Alam High Court OS No. BA-32NCVC-325-05/2016. [9] The Plaintiff also discovered that under the application for grant of probate, D1 had furnished the Court with a purported Will by the Deceased dated 10.06.2009 under which the Deceased had bequeath the three (3) properties (as listed in paragraph [5] above) upon the event of his death. [10] The Plaintiff alleges that the Grant of Probate was obtained by fraud based on the following reasons: i. the Plaintiff was the legal wife of the Deceased and that she was living with the Deceased at all material time in which the Plaintiff did not leave any will to any person during his lifetime; and ii. the purported signature of the Plaintiff in the purported Will is a forgery which can be proven by comparing the same with the signature of the Deceased in documents such as his passport and marriage certificate which are in the Plaintiff’s possession. [11] The Plaintiff thereafter commenced the present suit to set aside the Grant of Probate obtained by D1. At the same time, the Plaintiff also applied for an order against D1’s application to set aside the private caveat lodged by the Plaintiff on Land Nos. 1 and 3. [12] Sometime in Nov 2020, the Plaintiff’s solicitors carried out a land search on the properties concerned. Based on the search results, the Plaintiff inter alia discovered that: i. the properties were now registered under the name of D1 pursuant to the Grant of Probate dated 13.06.2016; and ii. Land No. 3 was sold to an individual by the name of Siva Shankar a/l Arunasalam. In this regard the Form 14A was witnessed by D1’s solicitor, Mr. Gerard Lazarus a/l Percy John Lazarus and that the transfer was effected on 04.12.2018. [13] This led to the Plaintiff filing an application to amend the Statement of Claim in this present suit for purposes of adding Siva Shankar a/l Arunasalam as the 2nd Defendant (hereinafter referred to as “D2”) and to seek an order to set aside the transfer of Land No. 3 by D1 to D2. The 1st Defendant’s case [14] Despite filing his Defence and appearing as a witness for D2, D1 did not take part in the rest of the proceedings before this Court nor the trial. [15] In summary, D1’s defence is as follow:

(i) that the Plaintiff, who is his step mother knew of the existence of the Will dated 10.6.2009;

(v) the Plaintiff’s allegation that the Will was obtained by fraud and forgery of the Deceased’s signature is not supported by any concrete evidence; and

The results of the land search did not show the existence of any caveat and shows that D1 is the owner of the land; iii. D1 had informed him that he is the owner of Land No. 3 and had the authority to sell the land to D2; iv. There was nothing the sale & purchase agreement between him and D1 to suggest that Land No. 3 (hereinafter referred to as “the Land”) belongs to a third party when D2 inspected the Land; v. For purposes of acquiring the Land, D2 took a loan of RM280,000.00 from Public Bank Berhad. In turn, the Land is now charged to the said bank wherein D2 has been repaying the loan since 2018 via monthly instalments; and vi. As he is bona fide purchaser of the Land in accordance with the laws of Malaysia, he had an indefeasible title over the land. [17] In his written submissions dated 17.4.2023, D2 contended as follows: a. the Plaintiff had failed to establish that the D1 had committed fraud as she had failed to call the witnesses to the execution of the Will of the Deceased dated 10.06.2009 namely: Meenachi a/p Krishnan and Lalitha a/p Krishnasamy. The Plaintiff also failed to subpoena D1. Instead, it was D2 who called D1 to testify. Adverse inference should therefore be drawn against the Plaintiff for the failure to call these witnesses to testify. b. The suit by the Plaintiff was an afterthought as she had only lodged the caveat on the properties after the Grant of Probate was issued to D1; c. The Plaintiff failed to call any expert witness to testify that the signature of the Deceased on the Will is a forgery; and d. D2 is a bona fide purchaser for valuable consideration in the sum of RM480,000.00 and has acquired an indefeasible title over Land No. 3 pursuant to Section 340(2) of the National Land Code (hereinafter referred to as “NLC”). Issues to be tried between the Plaintiff and 2nd Defendant [18] For purposes of the trial, both parties have formulated the following issues to be tried: A. Whether the Will dated 10.06.2009 which was used by D1 to obtain the said Grant of Probate is valid? B. Whether the Grant of Probate obtained by D1 vide OS No. BA- 32NCVC-325-05/2016 is valid and binding? C. Whether D2 is a bona fide purchaser for Land No. 3? D. Whether the transfer of Land No. 3 from D1 to D2 is valid in law or ought to be set aside? E. Whether D2 had taken a loan of RM280,000.00 to acquire Land No. 3? F. Whether Land No. 3 is still charged to Public Bank Berhad? G. Whether Land No. 3 was owned by the Deceased before his demise? The law [19] It is trite law that the burden of proof in a civil case lies on the plaintiff. In order to do so, the plaintiff must prove his case against the defendant based on the standard of a balance of probabilities (and not on a standard of beyond reasonable doubt that is required in criminal cases). Unless and until, the plaintiff is successful in doing so, there is no requirement for the court concerned to evaluate the defendant’s case. [20] This principle was well enunciated in the case of Selvaduray v Chinniah [1939] MLJ 253 where the decision of Terrell AG CJ is re-produced below. “In my opinion this line of reasoning cannot be supported. In a case such as the present the position has been clearly stated in the judgment of Brett M. R. in Abrath v North Eastern Railway Co 11 QBD page 440 at p 452:– "But then it is contended (I think fallaciously), that if the plaintiff has given prima facie evidence, which, unless it be answered, will entitle him to have the question decided in his favour, the burden of proof is shifted on to the defendant as to the decision of the question itself. This contention seems to be the real ground of the decision in the Queen's Bench Division. I cannot assent to it. It seems to me that the propositions ought to be stated thus: the plaintiff may give prima facie evidence which, unless it be answered either by contradictory evidence or by the evidence of additional facts, ought to lead the jury to find the question in his favour: the defendant may give evidence either by contradicting the plaintiff's evidence or by proving other facts: the jury have to consider upon the evidence given upon both sides, whether they are satisfied in favour of the plaintiff with respect to the question which he calls upon them to answer; if they are, they must find for the plaintiff; but if upon consideration of the facts they come clearly to the opinion that the question ought to be answered against the plaintiff, they must find for the defendant. Then comes this difficulty–suppose that the jury, after considering the evidence, are left in real doubt as to which way they are to answer the question put to them on behalf of the plaintiff: in that case also the burden of proof lies upon the plaintiff, and if the defendant has been able by the additional facts which he has adduced to bring the minds of the whole jury to a real state of doubt, the plaintiff has failed to satisfy the burden of proof which lies upon him". Applying the principles laid down by the Court of Appeal in the above case, it is clear that the onus is on the plaintiff to prove his case. After the conclusion of the whole case there must be some preponderance in his favour. It may be true that the plaintiff established a prima facie case, but at the conclusion of the trial the learned Judge has found that the position was exactly even, i.e. that any preponderance in the plaintiff's favour had disappeared. That being the case the plaintiff must necessarily fail, as he has not discharged the onus which is upon him. No doubt the defendant would equally have failed if he had been the claimant and had tried to establish, as a substantive part of his case, the alternative version which he tried to prove in answer to that of the plaintiff. But as he was not the claimant, that consideration is quite immaterial. It is quite sufficient for his purpose if he can satisfy the Court that the plaintiff has not established his case and the learned Judge has so found.”. Court’s Analysis and Findings [21] Having reviewed the evidence adduced, my findings on issues E, F and G is summarized below: a. D2 had indeed taken a loan for the sum of RM280,000.00 to part finance the purchase of Land No. 3; b. Land No. 3 is still charged to Public Bank Berhad; and c. Land No. 3 did belong to the Deceased prior to his demise. [22] Be that as it may, the above issues do not decide the outcome of this suit. Needless to say, it is the rest of the issues formulated which requires a careful scrutiny and determination. A. Whether the Will dated 10.06.2009 which was used by the 1st Defendant to obtain the said Grant of Probate is valid? [23] With the Plaintiff’s cause of action against D1 being predominantly based on fraud, it is incumbent on me to remind myself and the parties hereto that the standard of proof in a case involving civil fraud is on the balance of probabilities and not beyond reasonable doubt as held by the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 where the Federal Court decision is re-produced below: - “[47] In view of the positions of the law in the respective common law jurisdictions as summarised above, we agree with both learned counsel for the parties in this appeal that the position of the law on the standard of proof for fraud in civil claims in this country is far from satisfactory. With respect, there is merit in the submission of learned counsel for the defendant that the adoption of the criminal standard of proof for fraud in civil claims is due to the misinterpretation or even a blind adoption of the judgment of Lord Atkin in Narayanan Chettyar v Official Assignee of the High Court, Rangoon. [48] As such, in our judgment the time has come to realign the position of the law in this country on the standard of proof for fraud in civil claims. While learned counsel for the defendant seemed to favour the adoption of the Singapore position, learned counsel for the plaintiff urged us to adopt the principle in In re B (Children). [49] With respect, we are inclined to agree with learned counsel for the plaintiff that the correct principle to apply is as explained in In re B (Children). It is this: that at law there are only two standards of proof, namely, beyond reasonable doubt for criminal cases while it is on the balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. And ‘Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts’. [24] I now summarise the evidence adduced by the Plaintiff in support of their case:

(i) the Deceased had at all material time from the date of his marriage in 1997 until his demise in 2012 lived with the Plaintiff. During this entire period, there was no Will executed nor prepared by the Deceased;

(v) a comparison of the Deceased’s signature in the purported Will and that contained in Borang Daftar Perkahwinan dated 20.04.1997, the Surat Latihan Siraksha Marine dated 25.07.2006 and Passport No. A17359443 lends support to the Plaintiff’s contention that the Grant of Probate was obtained by fraud. [25] In this regard, despite SP1 not being a handwriting expert, her evidence on the signature of her husband cannot be ignored in toto. I opine so as Section 47 of the Evidence Act 1950 does provide that the opinion of a person acquainted with the handwriting of the person who is supposed to have been written or signed a document, is a relevant fact. In the course of her marriage with the Deceased, it would only be natural for SP1 to have become acquainted with the signature of her late husband. [26] In the case of Chee Shet Khan @ Chu Set Kom v Golden Elate Sdn Bhd [2019] MLJU 1987 at para 35), the Court stated as follows: “[35] In order for the Court to form an opinion as to the person by whom any document was written or signed, s.47 of the Evidence Act 1950 came into assistance that the opinion of any person acquainted with the handwriting of the person by whom it was supposed to have been written or signed, that it was or was not written or signed by that person is a relevant fact. In this respect, both PW4 and PW5 who were the sons of the Plaintiff aged 32 and 25 years old respectively testified that they were very familiar and acquainted with the Plaintiff’s signature and handwriting as the Plaintiff used the same signature to sign in their school records book and in their sibling’s records book too (pp 21-57 of Bundle C) around the year from 1998 to 2003…….These evidence by PW4, PW5 and PW2 of the Plaintiff’s signatures and they were different from the purported signatures in the PA and S&P are relevant fact pursuant to s.47 of the Evidence Act 1950.” [27] My perusal of the documents relied upon by the Plaintiff in support of her contention that the signature of the Deceased in the Will is not that of the Deceased i.e. the Borang Daftar Perkahwinan dated 29.04.1997, the Surat Latihan Siraksha Marine dated 25.07.2006 and Passport No. A17359443, finds that there is a striking difference in the signature which can be seen easily through naked eye. The signature of the Deceased in these three (3) documents relied by the Plaintiff are so similar like a reproduction, unlike the Deceased’s signature in the purported Will. (See Syed Abu Bakar bin Ahmad v Public Prosecutor [1984] 2 MLJ 19) [28] As there is no direct evidence to proof that the Deceased did not signed the Will, this Court is entitled to rely on circumstantial evidence to ascertain whether the signatures in the Will is that of the deceased (See in Dato Mokhtar Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232) Based on the cumulative evidence given by SP1 and the documents relied by her, it is my considered view that the Plaintiff have succeeded in proving on a balance of probability that the alleged signature of the Deceased on the Will dated 10.06.2009 is not his. Accordingly, it is now incumbent upon me to consider D1’s evidence to counter the case put forward by the Plaintiff. [29] D1’s testimony can be summarized as follows: a. He received a call from one Ravi Moorthy of Messrs Ravi Moorthy, Noriza, Malar & Partner, a legal firm in Kuantan informing that his late father had left a will; b. Ravi Moorthy also told him that the Deceased had left the grant for the Deceased’s house with the legal firm and that D1 can collect the documents upon his return from UK; c. Upon D1’s return to UK, he contacted the legal firm to collect the documents. This time around, the firm refused to handover the documents to D1 prompting D1 to appoint Mr. Gerard Lazarus, advocate and solicitor to act on D1’ behalf; d. Mr. Gerard Lazarus, successfully obtained the Will and other documents from the Kuantan legal firm. He then filed an application for Grant of Probate for D1 and obtained the same on 13.06.2016; e. In so far as the current proceeding is concerned, D1 has no knowledge of it as everything was done by Mr. Gerard Lazarus who was both ‘a father and friend’ to him; and f. He also had no knowledge of the cause papers, defence and the affidavits affirmed by him as he is residing in UK. [30] It is pertinent to note that Mr. Gerard Lazarus had applied to discharge himself from acting for D1 vide Enc. 32. This application was dismissed by YA Dato Julie Lack. Upon Mr. Gerard Lazarus’s demise sometime in November 2020, D1 did not appoint any other advocate and solicitor to take over. Court’s Analysis [31] As D1 is seeking to rely on the fact that the Deceased had signed the Will, it is in D1’s utmost interest to defend his position by calling the necessary witnesses namely:

(i) Mr. Ravi Moorthy of Messrs Ravi Moorthy, Noriza, Malar & Partner;

(i) In his examination in chief, SD1 testified that D2 did not pay any deposit to D1. During cross examination however, SD1 then said that D2 had paid D1 a sum of RM30,000-00 in cash as deposit;

(i) the inconsistencies regarding the payment of the differential sum between the loan of RM280,000-00 and the purchase price of RM280,000-00 as listed paragraph [41] above was just too glaring to be ignored;

(i) that D1 pay to the Plaintiff a sum of RM30,000-00; and