S. Alagappan A/L N.N.S.Sathappa Chettiar v Loke Gim Tay (PA-22NCvC-160-10/2018)

LOKE GIM TAY

UNITED OVERSEAS BANK MALAYSIA BERHAD

SIVARUBAN A/L SIVASUBRAMANIAM

TETUAN SS. RUBAN & ASSOCIATES) SENATHIPATHI S/O OM PERIYAVAR (NO. PASPORT: K8415932) … DEFENDAN-DEFENDAN JUDGMENT (POST TRIAL) 05/02/2026 17:26:49 PA-22NCvC-160-10/2018 Kand. 360 S/N XexrFho4q06wsrfwfHLMoQ Page 2 of 50

The Plaintiff (P): S. Alagappan a/l N.N.S. Sathappa Chettiar is the registered owner of the subject property. He has been the owner since 1976.

In 2015, P discovered that his property was registered in the 1st Defendant’s (D1’s) name, and charged to D1’s financier: the 2nd Defendant bank (D2).

The 3rd Defendant (D3) is the Penang state land registrar, who registered the title transfer from P to D1 and D2’s charge over the property.

The 4th Defendant (D4) is the advocate and solicitor who purported to have acted for P in the transfer (sale). The 5th Defendant (D5) is the donee (holder) of the power of attorney purportedly given to him by P. D5 signed, on P’s behalf, all the documents that P was required to sign to effect the property transfer to D1.

P sued the Defendants to recover his ownership and title to the property. Should the reliefs and remedies that he seeks be given to him? S/N XexrFho4q06wsrfwfHLMoQ Page 3 of 50

The trial was conducted over 34 days. P called three witnesses—P himself (PW1), his son A.L. Sathu (PW2), and P’s expert witness, a forensic document examiner: Tay Eue Kam (PW3). The Defendants called eight witnesses—D1 himself (DW1), D1’s solicitor: Ong Swee Lee (DW2), D1’s expert witness, a document examiner: Wong Kong Yong (DW3), D2’s witnesses: Chow Tak Thye (DW4) and Phua Boon Ching (DW5), D3’s witness: Mazlina binti Haja Mydin (DW6), D4 himself (DW7), and D5’s witness: Kalidas Komarawelo (DW8).

P seeks reliefs and remedies that include—a declaration that the Irrevocable Power of Attorney dated 14.8.2013 (IPA), which was used to effect the transfer of title, is a forged document and consequently null and void, an Order setting aside the registration of the transfer of the property known as Geran No. 12545, Lot No. 1123, Section 16, Bandar Georgetown, Pulau Pinang (Property) in D1’s favour, as well as consequential orders against the other Defendants.

P, an Indian national residing in Karaikudi, India, claims to be the registered owner of the Property, which was registered in his name on 19.5.1976. P alleges that his signature on the IPA, purportedly appointing D5 as his attorney, was forged. P further alleges that based on this forged IPA, D5 executed a Sale and Purchase Agreement dated 5.2.2014 (SPA) to sell the Property to D1 for the purchase price of RM4.2 million. S/N XexrFho4q06wsrfwfHLMoQ Page 4 of 50 PERTINENT ASSERTED FACTS—CHRONOLOGY

In 1976 (on 19.5.1976), the Property was registered in the name of S. Alagappan a/l N.N.S. Sathappa Chettiar, an Indian passport bearer, for a consideration of RM14,000.00.

In 2013, D4, D5 and others visited P at his home in Karaikudi, India, purportedly to discuss the sale of the Property. P's evidence is that he did not agree to sell and did not execute any power of attorney.

On 14.8.2013, the IPA was purportedly executed between P (as donor) and D5 (as donee). The IPA was authenticated before M.M. Pandi, a Notary Public in India.

On 18.9.2013, the IPA was registered with D3 and with the Penang High Court (bearing Registration No. 10630/2013).

Three months later (on 27.12.2013), a second Irrevocable Power of Attorney between P and Kalidas Komarawelo (DW8) was filed with D3. This second IPA was never used to transfer the Property.

On 5.2.2014, the SPA was executed where D5, purporting to act as P’s attorney, sold the Property to D1 for RM4.2 million. D4's firm, Messrs S.S. Ruban & Associates, purportedly acted S/N XexrFho4q06wsrfwfHLMoQ Page 5 of 50 as P’s solicitors. D1 was represented by DW2 from Messrs Raziah & Partners.

On 21.4.2014, during the registration process, a Statutory Declaration purportedly signed by P, and witnessed by one VR Kumar, was procured. A Letter of Undertaking dated the same date: 21.4.2014 (LOU), purportedly signed by P, was provided to D2.

On 25.4.2014, D3 registered the transfer of the Property to D1. On the same date, D1 executed a charge in favour of D2 for a facility of RM2.73 million to part-finance the purchase. The full purchase price was released to D4's firm as stakeholder.

On 31.7.2015, following investigations, D3 endorsed a Registrar's caveat over the Property. D3's letter dated 5.8.2015 stated that the Registrar's caveat was entered because elements of fraud were found in the transfer of the Property ("setelah didapati ada unsur-unsur penipuan dalam urusan pindahmilik hartanah tersebut berdasarkan satu siasatan yang telah dibuat dengan kehadiran tuan punya tanah").

On 16.5.2016, P's solicitors issued letters of demand to D1 and D2. D2 responded by producing the LOU, which P denied signing.

In October 2018, P filed this suit. S/N XexrFho4q06wsrfwfHLMoQ Page 6 of 50

The parties went to trial with these agreed issues to be tried—

Whether the IPA is a forged document, and if so, is null and void and not enforceable;

Whether P is the same person as S. Alagappan a/l N.N.S. Sathappa Chettiar (with Indian Passport No. E0358524);

Whether the registration of the Property in D1’s name confers on D1 an indefeasible title over the Property pursuant to section 340 of the National Land Code 1965 (NLC);

Whether D2 is a subsequent bona fide purchaser for value, and if so, whether D2 is protected pursuant to section 340(3) of the NLC. THE LAW Burden and Standard of Proof

The burden of proof rests on P to establish his case on a balance of probabilities. Section 101 of the Evidence Act 1950 provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. In other words, the party that asserts a fact must prove that fact.

Where fraud and forgery are alleged, the standard remains proof on the balance of probabilities.

Section 340 of the NLC governs indefeasibility of title. Section 340(1) provides that a registered title is indefeasible. Section 340(2) sets out exceptions—the title may be set aside if it is obtained through fraud, misrepresentation, forgery, or an insufficient or void instrument. Section 340(3) provides that where the title is defeasible under the exceptions set out in Section 340(2), it is liable to be set aside in the hands of any subsequent transferee. But any title or interest acquired by any subsequent purchaser in good faith and for valuable consideration is protected.

The pertinent parts of section 340 of the NLC are set out below for reference— Section 340. Registration to confer indefeasible title or interest, except in certain circumstances.

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.

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.

Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in sub-section (2) –

it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and

any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested: Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser… [emphases are mine]

The Federal Court in Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1 (FC); [2010] 1 AMR 557; [2010] 2 CLJ 269; [2010] 1 MLRA 1, conclusively settled the law regarding the distinction between immediate purchasers and subsequent purchasers. Arifin Zakaria CJM (as he was then) held: It is clear to us that s 340(2)(a) and (b) refers to the immediate transferee and s 340(3) and its proviso refers to the subsequent transferee. In our judgment an immediate transferee is one who S/N XexrFho4q06wsrfwfHLMoQ Page 9 of 50 transacts directly with the registered proprietor while a subsequent transferee is one who transacts with the immediate transferee. Once the transfer to the immediate transferee is vitiated by fraud or misrepresentation, then that title is defeasible and it automatically follows that they are liable to be set aside. [emphases are mine]

Then the Federal Court in See Leong Chye @ Sze Leong Chye & Anor v. United Overseas Bank (M) Bhd [2021] 5 MLJ 759 (FC); [2021] 6 CLJ 650; [2021] 4 MLRA 304; [2021] AMEJ 0587, clarified the operation of Section 340 at paragraphs [67] - [68]: [67] The question of whether a title or interest in land is defeasible or indefeasible is a question of mixed fact and law. In our view, the answer to this question depends on whether the purchaser is an immediate or subsequent purchaser. This is a question of fact which turns on the particular circumstances of each case. If the purchaser is an immediate purchaser, then the law applicable to that purchaser's title or interest is sub-s 340(2) of the NLC. Accordingly, the immediate purchaser's title or interest is not indefeasible. His title or interest in the land may be set aside by the rightful owner of the land if it was obtained through any one of the vitiating factors listed under sub-s 340(2) of the NLC—fraud, misrepresentation, forgery, insufficient or void instrument. The fact that the immediate purchaser may have acquired his title or interest in good faith and for valuable consideration is irrelevant and of no avail... [68] If, however, the facts show that the purchaser is a subsequent purchaser, then the law applicable is the proviso to sub-s 340(3) of the NLC. This means that a subsequent purchaser's title or S/N XexrFho4q06wsrfwfHLMoQ Page 10 of 50 interest in the land is also not indefeasible if it can be shown that he was not a purchaser in good faith and for valuable consideration; put another way, if the subsequent purchaser is not a bona fide purchaser for value, then his title or interest in the land may be set aside. If however, the subsequent purchaser is a purchaser in good faith and for valuable consideration, then his title or interest in the land will become indefeasible under the proviso to sub-s 340(3) of the NLC... [emphases are mine]

Put differently, for an immediate purchaser, good faith and valuable consideration are irrelevant once forgery is established. For a subsequent purchaser, good faith and valuable consideration are determinative—only a bona fide purchaser for valuable consideration is protected. ISSUE 1: IS THE IPA A FORGED DOCUMENT? P's submissions

P submits that the IPA is a forged document. P relies on the expert forensic document examination report prepared by PW3 (Madam Tay Eue Kam). She concluded that the writer of the specimen signatures (S1 to S36) and the requested specimen documents (SR-1 to SR-20) did not write the questioned signatures in the IPA (Q1) and the LOU (Q2). PW3 identified significant habitual and consistent differences in form, movement, and spatial arrangement between the specimen signatures and the questioned signatures, as well as features associated with forgery, such as pen-lifts, hesitation, and lack of S/N XexrFho4q06wsrfwfHLMoQ Page 11 of 50 fluency. P also relies on the corroborative evidence of PW2, P's son, who confirmed that the signatures on Q1 and Q2 were not his father's. D1, D4 and D5's submissions

D1, D4 and D5 submit that P failed to discharge the burden of proof. They challenged PW3's expertise and methodology, relying on the review, opinion and commentary prepared by DW3 (Mr Wong Kong Yong), a government gazetted document examiner. DW3 identified deficiencies in PW3's report and questioned the authenticity of the specimen and requested signatures provided for comparison. My findings

I find that P has established on the balance of probabilities that the IPA is a forged document.

First—PW3 holds a Bachelor of Science degree in Mathematics, and a Master's in Forensic Science from Universiti Sains Malaysia. She completed the training course in Questioned Handwriting and Document Examination with Reed Write Handwriting Expert in Hawaii, USA. The training consisted of 26 lessons and exams over 18 months, covering various aspects of questioned document examination. PW3 also underwent apprenticeship training under William Pang, a Forensic Handwriting and Questioned Document Examiner S/N XexrFho4q06wsrfwfHLMoQ Page 12 of 50 from Singapore, from 2013 to 2019. She has been working in the field of documents, handwriting and signature analysis since

And she has testified as an expert witness in ten instances as at the date of her report.

One of the bases that D1, D4 and D5 challenge PW3's expertise is that her mentor, William Pang, is a graphologist rather than a forensic document examiner. But PW3 obtained a Master's degree in Forensic Science, specifically focusing on handwriting examination. Further, the weight to be given to expert evidence is a matter for the court to determine based on the cogency of the expert's reasoning and the quality of the underlying analysis.

D1, D4 and D5 also highlight that PW3's evidence has been rejected by courts in previous cases. But the fact that an expert's evidence has been rejected in previous cases does not automatically render that expert's evidence unreliable in the present case. Each case must be evaluated on its own merits, based on the methodology employed and the cogency of the opinion.

I have examined PW3's Forensic Document Examination Report dated 8.11.2022. The report sets out the documents examined, the methodology employed, detailed observations of similarities and differences, and conclusions. PW3 examined the questioned signature on the IPA (Q1) and the LOU (Q2) against 36 specimen signatures (S1 – S36) and 20 requested S/N XexrFho4q06wsrfwfHLMoQ Page 13 of 50 specimen signatures (SR1 – SR20) of P’s. PW3 concluded that P did not write the questioned signatures.

PW3 examined Q1 and Q2 at D2's office for two hours and took scans and microscopic images. Even though D1, D4 and D5 argue that this methodology is not ideal—saying that PW3 should have conducted a full three-dimensional examination of the original documents throughout her analysis—I find that it does not fatally undermine her findings where those findings are corroborated by other evidence.

PW3's report identifies several features in Q1 and Q2 that she characterises as indicators of forgery: pen-lifts where they should not be, hesitation, lack of fluency, and differences in form, movement, and spatial arrangement between the questioned and specimen signatures. Specifically, PW3 found significant habitual and consistent differences in the questioned signatures that were beyond natural variations. I accept PW3’s expert evidence.

Second—DW3 (the expert Wong Kong Yong), on the other hand, did not conduct his own independent analysis of Q1 and Q2. DW3’s role was to review and critique PW3's report rather than to conduct an independent examination of the questioned documents. DW3 did not examine the original questioned documents or conduct his own comparison of the questioned signatures with the specimen signatures. DW3's criticisms were S/N XexrFho4q06wsrfwfHLMoQ Page 14 of 50 largely directed at PW3's methodology and qualifications rather than addressing the substantive question of whether the signatures were forged.

An expert witness has a duty to assist the court by providing an independent and objective opinion. DW3's mere critique without substantive counter-analysis is of little or limited assistance.

Third—in Tung Kean Hin & Anor (as executor for the estate of Tung Leong Geok, deceased) v Yuen Heng Phong (as administrator for the estate of See Ngan Sang @ Lee Ngan Sang) [2019] 2 MLJ 334 (CA); [2019] 9 CLJ 493; [2019] 3 MLRA 580; [2018] AMEJ 1658, at paragraph 57—it was held that the court is not bound by expert opinion but may form its own view. And under Section 73 of the Evidence Act 1950, the court may compare disputed signatures with admitted or proved signatures.

I conducted a visual examination of the questioned signatures in Q1 and Q2 alongside the specimen signatures S1 to S36 and the requested specimen signatures SR-1 to SR-20. I observe marked differences in the general form and flow of the signatures. Even to the untrained eye, the signatures appear distinctly different in their overall gestalt (form, pattern). My visual comparison aligns with PW3's findings.

Fourth—D1, D4 and D5's arguments that PW3 did not provide sufficient quantitative data or did not adequately consider factors such as age, injury, illness, and medication are noted. However, PW3 was aware of P's age, and no evidence was presented that P suffered from any injury, illness, or was on medication that would affect his signature at the relevant time in 2013 - 2014. The specimen signatures S1 to S36 were collected from various documents over a period of years, providing a range of natural variation in P's signature. The requested specimens: SR-1 to SR-20, were written by P, witnessed by AV Rajendran, an Advocate and Notary Public in India, and by PW2. D1, D4 and D5 did not call AV Rajendran to challenge the authenticity of these requested specimens.

Fifth—PW3's expert findings are corroborated by PW2's testimony that the signatures on Q1 and Q2 were not his father's. PW2 was cross-examined and remained consistent. D1, D4 and D5 argue that PW2 is an interested witness whose evidence should be treated with caution. However, as established by the Federal Court in Teoh Kiang Hong v. Theow Say Kow @ Teoh Kiang Seng, Henry & Other Appeals [2025] 1 MLJ 813 (FC); [2025] 2 AMR 381; [2025] 2 CLJ 683; [2025] 2 MLRA 504, at paragraphs 112 - 125—all persons are competent to testify, and there is no legal presumption that disqualifies a person merely because of a familial relationship. PW2's evidence is entitled to some weight.

Sixth—I also consider the broader circumstantial evidence. The entry of the Registrar's caveat by D3 following investigations, with an official letter stating that "unsur-unsur penipuan" (elements of fraud) were discovered, is significant. Whilst D1, D4 and D5 argue that the Registrar's caveat was entered due to issues with other powers of attorney involving DW8 on unrelated properties, DW6 (D3's witness) verified under cross-examination that there were concerns about the transaction involving the Property.

Seventh—I note the evidence concerning the second IPA dated 15.12.2013, purportedly given by P to DW8 (Kalidas). This second IPA, with substantially similar terms to the first, was registered with D3 on 27.12.2013. The existence of two powers of attorney given by the same donor to different donees within a short span of time for the same property is, I find, irregular and suspicious. Neither D4 nor D5 provide any credible explanation for this.

Eighth—I also place some weight on the evidence regarding the forged passport. P produced his actual Indian Passport (No. J7700302). I am compelled to accept P’s passport as genuine. He travelled from India and entered Malaysia with it.

The culpable Defendants filed with D3 a copy of a passport purportedly belonging to P (No. E0358524). When these two documents are compared, there are material discrepancies, S/N XexrFho4q06wsrfwfHLMoQ Page 17 of 50 including differences in format, font, layout, photograph appearance, and content.

The evidence of the forged passport is significant. It demonstrates that forged documents were deliberately created and filed with D3 to facilitate the fraudulent transfer. If the culpable Defendants were willing to forge a passport, it stands to reason that they would also be willing to forge the IPA and the LOU.

Ninth—I also find it significant that the December 2013 Statutory Declarations (dated 3.12.2013 and 24.12.2013), allegedly made by Nachiappan K.N. Nachiappan, confirming receipt of the sale proceeds, were made before the SPA was even executed in February 2014 (on 5.2.2014), and before the transfer was registered in April 2014 (on 25.4.2014). I find it incredible that Nachiappan confirmed receipt of proceeds from a sale that had not yet been completed. Moreover, Nachiappan was not called as a witness to testify regarding these alleged payments.

Tenth—P testified that he did not receive any payment of money for the purported sale of the Property. D4 (Sivaruban) testified that he transferred, by cheque, RM4.1 million to DW8 (Kalidas) by cheque. DW8 testified that he made payments to P through Nachiappan. There is also oral evidence that D5 (Senathipathi) paid some cash to Nachiappan.

However, I was looking for D1, D4 and D5 to produce supporting documentary evidence of these purported payments of money from one person to another, such as bank transactional documents (withdrawals made, deposits made), or cover letters or emails (since D4 is a practising lawyer who was purportedly acting as P's solicitor), or acknowledgements of receipt of these monies. There was none. There is no documentary evidence to prove the facts of these alleged payments of money from one person to another.

I therefore accept P’s evidence that P did not receive any proceeds from the purported sale. The culpable Defendants produced no credible evidence to show that the purchase price was paid to P. D4 received the money into his client account, but there is no evidence that he paid it to P. The testimony from DW8 regarding payment through Nachiappan is vague and uncorroborated.

Eleventh—there is, in evidence, a Statutory Declaration filed with D3, in the process of the transfer of title, to resolve the registered owner’s name discrepancy. It was worded entirely in Bahasa Malaysia. P is supposed to have signed this Statutory Declaration. But P is an Indian national who testifies that he does not understand or speak Bahasa Malaysia. There is no translation clause in the Statutory Declaration. This Statutory Declaration was allegedly witnessed by V.R. Kumar, a Notary Public in Chennai, India. V.R. Kumar is not called as a witness. S/N XexrFho4q06wsrfwfHLMoQ Page 19 of 50 If P had truly signed this Statutory Declaration, V.R. Kumar could testify to that fact and explain how P signed a document in a language he does not understand. The failure to call V.R. Kumar further points to the perpetration of a fraud on P.

Twelveth—the Defendants rely on the presumption under section 85 of the Evidence Act 1950 that a power of attorney which is authenticated by a Notary Public is deemed to be properly and validly executed. However, this presumption is rebuttable. The presumption does not prevent the court from examining the underlying evidence to determine whether the document is in fact forged. Section 85 merely creates an evidential presumption to facilitate proof in the absence of contrary evidence. In this case, there is substantial evidence to rebut the presumption.

Thirteenth—D1, D4 and D5 rely on the case of Guan Teik Sdn Bhd v. Hj Mohd Noor Hj Yakob & Ors [2000] 4 AMR 4062 (CA); [2000] 4 CLJ 324; [2000] 1 MLRA 617 —for the proposition that where there are conflicting versions, the more probable version should be accepted. I accept this principle. However, applying it to the present facts, the more probable version is that the IPA was forged, not that P cordially executed it.

Taking all the evidence together— P's evidence is that he did not agree to sell the Property and did not execute the IPA, PW3’s expert opinion, my own visual comparison, PW2’s S/N XexrFho4q06wsrfwfHLMoQ Page 20 of 50 testimony, D3 entering the Registrar's caveat, the suspicious circumstances surrounding the second IPA, the absence of evidence of actual payment to the Plaintiff, and the broader contextual evidence—I find, on the balance of probabilities, that the IPA is a forged document. Similarly, the signature on the LOU is also a forgery. P did not execute these documents. ISSUE 2: IS P ONE AND THE SAME PERSON AS S. ALAGAPPAN A/L N.N.S. SATHAPPA CHETTIAR (WITH INDIAN PASSPORT NUMBER E0358524)?

P submits that he is the true and lawful S. Alagappan a/l N.N.S. Sathappa Chettiar, shown on the land title as the registered owner—as evidenced by his current Indian passport bearing number J7700302, his testimony, the testimony of PW2, and the consistency of his account throughout the proceedings. D1, D4 and D5's Submissions

D1, D4 and D5 submit that P is not the true Alagappan but rather an impostor. They also pose an alternative argument, that the plaintiff before the court is Alagappan's step-brother: Narayanan Chettiar. This assertion is based primarily on the testimony of DW8, who identified the person in a video recording as Narayanan Chettiar, not Alagappan.

I find that P is indeed S. Alagappan a/l N.N.S. Sathappa Chettiar, the registered owner of the Property.

First—the allegation that P is an impostor is a serious assertion, which requires cogent and compelling evidence. D1, D4 and D5's case on identity rests largely on DW8's testimony. DW8 testified that he met Alagappan in India in 2013 and that the person signing specimen signatures captured in the video (marked as exhibit P9) was not Alagappan but rather Narayanan Chettiar, Alagappan's step-brother. DW8 claimed that Narayanan had previously impersonated Alagappan in relation to other properties.

But I have serious concerns about the reliability of DW8's evidence. One—DW8 is closely associated with the very transaction that is impugned in this suit. He is the donee of the second IPA, and he was present at the 2013 meeting in India. His involvement gives him a clear interest in the outcome of this case.

Two—DW8 is said to be intricately involved in the passing of money (the sale proceeds) from one person to another. In other words, the subject money passed through his hands. D4 testified that he issued cheques and handed them to DW8.

Three—DW8's background raises questions about his credibility. He was involved in the case of Letchumanan Chettiar Alagappan v. Alagar Chettiar Komaravelu & Ors, which went to the Federal Court, and which involved similar allegations of forged powers of attorney.

Four—DW8's medical condition and his ability to attend court were questionable. He initially indicated an inability to travel due to medical reasons, then appeared via Zoom on 2.7.2024, but with unclear (unacceptable) audio. Whilst illness can affect anyone, the manner in which this unfolded raised questions.

Second—if P were truly an impostor named Narayanan Chettiar, one would expect D1, D4 and D5 to produce the "real" Alagappan to testify. They did not do so. D5, who allegedly obtained the IPA from the "real" Alagappan, also did not testify in person. D5 appeared briefly via Zoom with audio difficulties before his evidence was discontinued.

Under Section 114(g) of the Evidence Act 1950, the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. D1, D4 and D5's failure to produce the "real" Alagappan, if he exists and is a different person from P, gives rise to an adverse inference.

D1, D4 and D5 produced photographs taken in 2013 in India showing a person they claim is the "real" Alagappan meeting with D4, D5, DW8, and others. However, I cannot conclusively determine from these photographs alone whether that person is or is not P. The quality of the photographs, the age of the person, and the passage of time between 2013 and when the trial started in 2023 make such a visual comparison unreliable. Also, P admits to the meeting D4, D5, DW8 and others during the 2013 visit in India, but insists that he did not agree nor consented to the sale.

P has consistently maintained his identity throughout these proceedings. He holds a valid Indian passport. He testified in person before this court. PW2 corroborated his identity. P was able to provide specimen signatures from various documents over many years, showing consistent signature patterns. In contrast, D1, D4 and D5 produced no credible independent evidence to establish that P is an impostor. Their allegation rests entirely on DW8's testimony, whose credibility I find highly questionable for the reasons stated above.

I therefore find that P is S. Alagappan a/l N.N.S. Sathappa Chettiar, the registered owner of the Property. The allegation that P is an impostor named Narayanan Chettiar is not established on the evidence. S/N XexrFho4q06wsrfwfHLMoQ Page 24 of 50 ISSUE 3: DOES D1 HAVE AN INDEFEASIBLE TITLE UNDER SECTION 340 OF THE NLC?

P submits that D1's title is defeasible under section 340(2) of the NLC because it was obtained through forgery. P argues that D1 is an immediate purchaser, not a subsequent purchaser, and therefore cannot claim the protection of indefeasibility of title. P relies on the Federal Court decisions of: (i) Tan Ying Hong (supra); (ii) Letchumanan Chettiar Alagappan @ L Alagappan (as executor to SL Alameloo Achi Alias Sona Lena Alamelo Acho, deceased) & Anor v. Secure Plantation Sdn Bhd [2017] 4 MLJ 697 (FC); [2017] 3 AMR 625; [2017] 5 CLJ 418; [2017] 3 MLRA 501; (iii) See Leong Chye (supra).

D1 submits that its title is indefeasible under Section 340. D1 argues that it is a bona fide purchaser for value, having conducted proper due diligence, paid the full purchase price, and had no knowledge of any fraud. D1 relies on various authorities suggesting that a purchaser who relies on the register and acts in good faith is protected. S/N XexrFho4q06wsrfwfHLMoQ Page 25 of 50 My findings

I find that D1's title is defeasible and should be set aside.

First—D1 is an immediate purchaser. D1 purchased the Property directly from the registered owner (through a purported attorney: D5). There was no intervening transaction. As an immediate purchaser, D1's title is subject to section 340(2) of the NLC.

I have found that the IPA was obtained through forgery. The transfer of the Property to D1 was therefore based on a forged instrument. Under section 340(2), where forgery is established, the title can be set aside. D1's good faith and payment of valuable consideration do not protect him from this consequence.

As propounded by the Federal Court in See Leong Chye (supra), the title or interest in land can be set aside if it was procured through any of the vitiating factors set out in section 340(2)—fraud, misrepresentation, forgery, or an insufficient or void instrument. And it is irrelevant whether the immediate purchaser acquired his title or interest in good faith and for valuable consideration.

Second—D1's argument that it conducted proper due diligence does not assist it. D1 argues that DW2 (D1’s solicitor) conducted title searches and found no encumbrances. The IPA appeared regular on its face, having been authenticated before a Notary Public in India and registered with D3 and the Penang High Court. However, the fundamental defect was that the IPA itself was a forgery—the purported donor never executed it. No amount of due diligence on the face of documents could overcome this fundamental defect.

Third—D1 also argues that payment of the full purchase price to D4's firm (the vendor's solicitors) demonstrates good faith. However, payment of the purchase price does not cure the forgery of the IPA. Moreover, serious questions remain about whether the purchase price was actually received by P. D4 produces Statutory Declarations from Nachiappan stating that payment was received, but Nachiappan did not testify, there is no transactional documentary evidence of the alleged payments, and P denied receiving any payment.

Fourth—the case of Tan Ying Hong (supra) establishes that an immediate purchaser's title obtained through a forged instrument is defeasible regardless of good faith. The Federal Court in that case restored the registered title to the defrauded owners and set aside the transfer to the immediate purchaser. Similarly, in Letchumanan Chettiar (supra), the Federal Court emphasised, at paragraph [43]—that the Torrens system does S/N XexrFho4q06wsrfwfHLMoQ Page 27 of 50 not protect an immediate purchaser who acquires title through forgery or fraud, even if the purchaser acted in good faith.

D1 seeks to distinguish these authorities, arguing that the facts here show good faith and lack of knowledge. However, the authorities are clear: for an immediate purchaser under section 340(2), good faith is irrelevant once forgery is established. The law does not protect an immediate purchaser in these circumstances because to do so would undermine the rights of the true owner who has been defrauded.

Fifth—I have considered whether D1 had any personal knowledge or complicity in the forgery. There is insufficient evidence to find that D1 himself was personally involved in the forgery or had actual knowledge that the IPA was forged. D1 appears to have relied on his solicitors and the various documents that were presented to him. However, as the law makes clear, D1's good faith does not save his title where he is an immediate purchaser, and the title was obtained through forgery.

I am mindful that this is a harsh result for D1, who appears to have paid the purchase price and who may himself have been a victim of the fraud perpetrated by others. However, I am bound to apply the law as laid down by the Federal Court. The policy underlying section 340(2) is clear—where land is transferred through fraud or forgery, the innocent registered owner (in this S/N XexrFho4q06wsrfwfHLMoQ Page 28 of 50 case, P) must be protected, and the loss must fall on the immediate purchaser who dealt with the fraudster, even if the immediate purchaser was himself innocent.

D1's recourse is against D4 and D5 and others involved in the fraud, not against P, who is the true owner and who was defrauded of his property.

I find that D1's title to the Property is therefore defeasible by reason of forgery and a void instrument, and is liable to be set aside. The registration of the transfer is null and void, having been obtained through a forged instrument. ISSUE 4: IS D2 A SUBSEQUENT BONA FIDE PURCHASER FOR VALUE, AND IF SO, IS D2 PROTECTED UNDER SECTION 340(3) OF THE NLC?

P submits that D2 did not act in good faith because it failed to exercise reasonable diligence and prudence. P argues that D2 failed to verify the authenticity of the documents with P (vendor), failed to contact P to verify the sale (particularly as P is a foreigner), and failed to investigate suspicious circumstances. P relies on T. Sivam a/l Tharamalingam v Public Bank Bhd [2018] 5 MLJ 711 (FC); [2018] 4 AMR 321; [2018] 6 CLJ 1; [2018] 4 S/N XexrFho4q06wsrfwfHLMoQ Page 29 of 50 MLRA 583, which held that good faith requires acting honestly, reasonably and fairly.

P also highlights the existence of the LOU (Q2), which created a nexus between P and D2, imposing a duty of care on D2.

D2 submits that it is a subsequent bona fide purchaser for valuable consideration and is therefore protected under section 340(3) of the NLC. D2 emphasises that it was not a party to the fraud, acted in good faith by providing a loan facility to D1, took a registered charge over the Property as security, and was entitled to rely on the register, which showed D1 as the registered owner. D2 relies on the Federal Court decisions in See Leong Chye (above), CIMB Bank Bhd v. AmBank (M) Bhd & Ors [2017] 5 MLJ 142 (FC); [2017] 6 AMR 309; [2017] 9 CLJ 145; [2017] 5 MLRA 1 and Malayan Banking Bhd v. Mohd Affandi bin Ahmad & Anor [2024] 6 MLJ 220 (FC); [2024] 10 CLJ 501; [2025] 1 MLRA 429. My findings

I find that D2 is protected under section 340(3) of the NLC. D2's charge remains valid and enforceable.

First—D2 is a subsequent purchaser. D2 did not purchase the Property. Rather, D2 provided a loan facility to D1 and took a registered charge over the Property as security. The charge was registered after D1 was registered as the owner. D2 is therefore a person who acquired rights from D1 (the immediate purchaser, who obtained title through a forged instrument). As established by the Federal Court in CIMB Bank Bhd (supra) at paragraphs [34] - [35]—a chargee, having acquired an interest in the land, is a purchaser within the meaning of the proviso to section 340(3) NLC.

Second—for D2 to be protected under section 340(3), two conditions must be satisfied: (1) D2 must have provided valuable consideration, and (2) D2 must have acted in good faith. There is no dispute that D2 provided valuable consideration. D2 granted a loan facility of RM2.73 million to D1, which was used to part-finance the purchase of the Property.

The critical question then is whether D2 acted in good faith. Good faith means that D2 had no knowledge of the fraud or forgery and was not put on inquiry such that a reasonable person would have made further investigations.

P argued that D2 failed to exercise proper care and diligence. Specifically, P contended that D2 should have verified the authenticity of the IPA with the Indian Consul General in Chennai. However, I must consider what constitutes reasonable S/N XexrFho4q06wsrfwfHLMoQ Page 31 of 50 diligence in the circumstances. The IPA had been authenticated before a Notary Public in India, registered with the Penang High Court, and filed with D3. D2's solicitors conducted title searches, which showed D1 as the registered owner with no adverse interests noted at the time the loan was approved.

Third—D2 is a financial institution providing loan facilities secured by charges over land. It is entitled to rely on the register, which is the foundation of the Torrens system of land registration. D1 had been registered as the owner, and D2 was entitled to assume that the registration was in order unless there were circumstances that put it on inquiry.

P sought to establish that D2 was put on inquiry by the existence of the LOU (Q2), allegedly signed by P and addressed to D2. However, I have found that the LOU is itself a forgery. D2 therefore did not have actual knowledge of any connection with P. Even if D2 believed the LOU to be genuine, the LOU itself does not contain any red flags that would put a reasonable lender on inquiry as to the authenticity of the underlying transaction. The LOU purported to come from the registered owner (through his attorney).

P's argument that D2 should have verified the IPA with the Indian Consul General imposes an unrealistic burden on lenders. The Torrens system is premised on the reliability of the register. If financial institutions were required to go behind the S/N XexrFho4q06wsrfwfHLMoQ Page 32 of 50 register and conduct independent investigations into foreign powers of attorney that have already been authenticated, registered with the High Court, and filed with the Land Office, it would undermine the certainty and efficiency of the land registration system.

This principle is established by the Federal Court in Malayan Banking Bhd v. Mohd Affandi (supra) at paragraphs [104] - [106]. The Federal Court held that the burden of proving valuable consideration does not extend to proving that valuable consideration passed between the immediate purchaser and the vendor. The Federal Court also held that it would impose an unduly heavy burden on financial institutions to go behind every individual sale and purchase transaction to examine and investigate the sale and purchase documentation.

The charge was created in April 2014 (on 25.4.2014). The Registrar's caveat was entered by D3 in July 2015 (on 31.7.2015). And P issued a letter of demand to D2 in May 2016 (on 16.5.2016)—approximately two years after the charge was created. P's subsequent notice does not affect D2's good faith at the time the charge was acquired. As the Federal Court made clear in See Leong Chye (supra), good faith must be assessed at the time the interest was acquired, not based on subsequent events.

Applying these principles, I find that D2 acted in good faith at the time the charge was created and registered. D2 had no actual knowledge of the forgery. D2 was not put on inquiry by any circumstance that would have alerted a reasonable lender to the existence of fraud. D2 was entitled to rely on the register, which showed D1 as the registered owner.

Fourth—I am mindful of the hardship this causes P, who has been fraudulently deprived of his property. However, the law as established by the Federal Court protects bona fide subsequent purchasers for value. The protection afforded to D2 under section 340(3) reflects the policy of the Torrens system to provide certainty of title and to facilitate transactions without imposing unrealistic burdens of investigation on purchasers who deal with registered owners.

The practical effect of my finding is that P's title is restored, but it is subject to D2's charge. If D2 enforces its charge (due to D1's default), P will have a right of recourse against D4 and D5 and others complicit in the fraud to recover his loss. The loss falls on those who perpetrated the fraud, not on the bona fide financial institution that provided loan facilities in reliance on the register.

P's claim against D2 is therefore dismissed. D2's charge dated 25.4.2014 is valid and enforceable under section 340(3) of the

Even as I make this finding in D2’s favour on the facts of this suit, I would like to give the following views. Although D2 here gets the protection under section 340(3) of the NLC, this finding should not be taken as an endorsement of the adequacy of any financial institution’s due diligence procedures. Financial institutions, particularly when dealing with transactions involving foreign vendors, powers of attorney, or other circumstances that carry heightened risks of fraud, should exercise a high degree of diligence. In particular, financial institutions should consider the following measures to strengthen their due diligence procedures to help prevent fraud and help protect innocent property owners (and to help themselves too)—

contacting vendors directly to verify the authenticity of powers of attorney and the vendor's consent to the sale, particularly where the vendor is a foreign national;

requiring direct confirmation from vendors regarding letters of undertaking or other documents purportedly signed by the vendor;

conducting a scrutiny of payment arrangements, particularly where payments are being made to solicitors or agents rather than directly to vendors; S/N XexrFho4q06wsrfwfHLMoQ Page 35 of 50

being alert to red flags such as discrepancies in documents, unusual payment arrangements, or the involvement of multiple powers of attorney for the same property;

implementing robust verification procedures for documents originating from foreign jurisdictions. ADDITIONAL ISSUE: D4’s AND D5’s COMPLICITY AND CULPABILITY D4 and D5's Positions

D4 and D5 maintain that the IPA was genuine and that the transaction was legitimate. D4, as solicitor acting for P (vendor), submits that he performed his professional duties and had no knowledge of any fraud. D5, the purported attorney, did not give substantive evidence, having appeared only briefly via Zoom with unacceptable audio shortcomings.

I find D4 and D5 liable to P for their complicity in the fraudulent deprivation of P's property.

Concerning D5, I find, on the balance of probabilities, that D5 was knowingly involved in the fraud. He is therefore liable to P for the fraudulent sale and transfer of the Property.

First—D5 was the purported attorney under the forged IPA. He knowingly executed the SPA, purportedly acting under the authority of the forged IPA, without any genuine authority from P. He also signed the transfer documents.

Second—D5's failure to attend court in person to give evidence, despite being a key party, is highly suspicious. His brief appearance via Zoom, followed by his absence for the remainder of the trial, suggests an unwillingness to be subjected to rigorous cross-examination.

Third—D5 either knew that the IPA was forged (making him a party to the fraud) or was recklessly indifferent to its authenticity (still making him complicit in the fraud). Either way, D5 is liable to P. D5 had no authority to sell P's property. The purported IPA was a nullity.

Fourth— D5 was present at the meeting at P's house in 2013. If the IPA had genuinely been executed, D5 would have been involved in its signing, its authentication, its registration at the High Court, or its registration with D3. D5 would have known whether P had actually signed the IPA before the Notary Public: S/N XexrFho4q06wsrfwfHLMoQ Page 37 of 50 M.M. Pandi. The fact that M.M. Pandi was not called as a witness strongly suggests that no such execution took place. D5's assertion that he acted pursuant to a valid power of attorney is contradicted by the overwhelming evidence of forgery.

Fifth—D5's allegation that he ensured payment of the proceeds to P is not credible. There is no evidence that P received any payment. The Statutory Declarations allegedly made by Nachiappan were dated before the SPA was even executed. D5 failed to produce any credible evidence of actual payment to the Plaintiff.

Turning to D4, the evidence establishes that D4 played a central role in the fraud. I find, on the balance of probabilities, that D4 was knowingly and actively involved in the fraud. D4 is liable to P for his fraudulent conduct.

First—D4 visited P's house in 2013 together with D5 and others. D4 was introduced as a lawyer who would handle the transaction.

Second— D4 either knew or was wilfully blind to the fact that he had not been appointed by P, and that the documents he was presenting were forged. D4 purported to act as P’s (vendor's) solicitor throughout the transaction, despite never being S/N XexrFho4q06wsrfwfHLMoQ Page 38 of 50 appointed by P. D4 produced no documentary evidence that P had appointed him to act for P to sell the Property.

D4 filed, or participated in the filing of the IPA with D3. D4 prepared or arranged for the preparation of the SPA. D4 procured or was complicit in the procurement of the forged Statutory Declaration in Bahasa Malaysia, purportedly signed by P. D4 procured or was complicit in the procurement of the forged LOU addressed to D2. D4 dealt with D2 and D1’s solicitors throughout the transaction, representing himself as acting for P.

Third— D4’s assertion that he gained no benefit from the transaction is not credible. D4 received up to RM4.2 million into his clients’ account, and there is no evidence that this money was paid to P. He failed to account for these monies to P. Whilst the precise disposition of these funds has not been fully established, the inference is irresistible that D4 benefited from the fraud, either directly or by facilitating the fraud for others.

Fifth—D4 facilitated the transaction, prepared the documentation, and received the purchase price as stakeholder. D4 produced Statutory Declarations from Nachiappan purporting to confirm that P had received payment. Yet Nachiappan did not testify. S/N XexrFho4q06wsrfwfHLMoQ Page 39 of 50 FURTHER ISSUE: D3’s LIABILITY P's submissions

P sued D3 as the land registration authority. P sought orders setting aside the transfer and requiring D3 to restore P as the registered owner. D3's submissions

D3 submits that it had no involvement in the fraud and merely performed its statutory duties in accordance with the NLC. D3's role was administrative—to register documents presented to it that appear regular on their face. D3 submits that once it discovered elements of fraud following investigations, it appropriately entered a Registrar's caveat. My findings

I find no liability against D3.

First—D3 is the Registrar of Titles and had no involvement in the fraud. Without any evidence to the contrary, its role in this transaction was administrative. D3's role was to register documents presented to it in proper form and in accordance with the requirements of the NLC.

Second—D3 is not required to conduct investigations into the authenticity of signatures or the genuineness of transactions. The IPA appeared regular on its face, having been authenticated before a Notary Public in India. D3 had no means of knowing that the IPA was forged merely by examining the documents presented for registration. It is reasonable to expect that D3 is entitled to rely on these documents in the absence of obvious irregularities.

Third—once D3 conducted investigations and discovered elements of fraud, D3 appropriately entered a Registrar's caveat in July 2015, to protect the integrity of the register, and to protect the interests of all parties, pending resolution of this suit. D3 acted properly in this regard.

I find that D3 should not be held liable for the fraudulent acts of third parties. D3 performed its statutory duties in accordance with the NLC. P's claim against D3 is therefore dismissed. However, D3 is directed to make all necessary entries in the register to give effect to this judgment.

For these reasons, I allow P’s claims against D1, D4 and D5. And I dismiss P’s claims against D2 and D3. I also dismiss D1’s counterclaim against P.

These are the terms of my judgment—

P’s claims against D1, D2 and D5 are allowed. P’s claims against D2 and D3 are dismissed. D1’s counterclaim against P is dismissed.

A declaration that the IPA (dated 14.8.2013) purportedly executed by P, appointing D5 as attorney, is a forged document, and is therefore null and void, and of no effect.

A declaration that the registration of the transfer of the Property: land held under Geran No. 12545, Lot No. 1123, Section 16, Bandar Georgetown, Pulau Pinang, to D1 is null and void, and of no effect.

The registration of the transfer of the Property to D1 is set aside.

The Registrar’s caveat dated 31.7.2015 entered on the Property is to be cancelled.

D3 is directed to cancel the registration of the transfer of the Property to D1, and to restore P as the registered owner.

D4 and D5 are ordered to jointly and severally pay damages to P, the quantum of which is to be assessed by the Court. S/N XexrFho4q06wsrfwfHLMoQ Page 42 of 50

P is ordered to pay to D2 costs of RM140K. The RM10K that P paid into court as security for costs is to be paid to D2 on account of costs.

P is ordered to pay to D3 costs of RM90K. The RM10K that P paid into court as security for costs is to be paid to D3 on account of costs.

D1 is ordered to pay P costs of RM100K for the claim, and RM100K for the counterclaim. The RM100K that P paid into court as security for costs is to be returned to P. (Note: D1 was not found liable for the fraud, but D1 mounted the counterclaim for not just the removal of the Registrar’s caveat, but also for general, aggravated, exemplary damages, as well as an indemnity for D1’s costs and expenses, including solicitor-client costs.)

D4 is ordered to pay P costs of RM150K.

D5 is ordered to pay P costs of RM150K. THE EFFECTS OF THIS JUDGMENT

The practical effect of this judgment is as follows. P's name will be restored to the register as the owner of the Property. However, D2's charge will remain on the title. D2 can enforce its charge against the Property if D1 (the borrower) defaults on S/N XexrFho4q06wsrfwfHLMoQ Page 43 of 50 the loan. D2's recourse is against D1, and over the Property as security. P, as the restored owner, will take the Property subject to D2's charge.

D1 has lost the Property but has recourse against D4, D5 and others involved in the fraud to recover his losses. D1 paid RM4.2 million for the Property, but D4, D5 and others have not accounted for this money to P. D1 could pursue D4, D5 and others to recover his losses.

I recognise that this outcome is unfortunate for both P and D1, both of whom appear to have been victims of a fraud perpetrated primarily by D4, D5 and others. However, I must apply the law as laid down by the Federal Court. Under section 340 of the NLC, as between P (the original owner who was defrauded) and D1 (the immediate purchaser), the loss must fall on the immediate purchaser. D2, as a subsequent purchaser in good faith for value, is protected.

After I pronounced this judgment, P asked for a further order, under the general prayer for “further or other relief”—for D1 to pay the necessary sum of money to redeem the charge (to discharge the charge). And if D1 does not do so within the time limited for doing so, P is to pay the necessary sum of money to S/N XexrFho4q06wsrfwfHLMoQ Page 44 of 50 redeem the charge and is given the liberty to sue D1 as if it were a judgment sum.

P relies on three case law authorities, cited not by P, but by D2. But I have distinguishing views about these three cases. I very briefly summarise my views about these three cases—

Case 1: Yee Poh Nyen v Raji Bin Kasan & Ors [2018] MLJU 1108 (CA); [2018] AMEJ 0959; [2018] CLJU 1185; [2018] 1 MLRAU 293, at paragraph [95]—this case is also a section 340 NLC case. But the judgment for the payment of the redemption sum was pleaded and prayed for. In other words, damages equivalent to the redemption sum were prayed for. In our suit, such a term to pay the redemption sum as damages for the suffered loss was not prayed for by P.

Case 2: Dhanaletchumy a/p P Subramaniam v Rajandran a/l Subramaniam & Ors [2023] 5 CLJ 47 (HC); [2023] MLJU 417; [2023] AMEJ 0393; [2023] MLRHU 317—at paragraph [64]— this case is also a section 340 NLC case. A similar prayer was also prayed for. There was a prayer for the culpable defendants to discharge and redeem the charge over the land.

Case 3: Kasai Reiko v Annie Lor Lee Fong & Ors; Public Bank Bhd (Intervener) [2014] 7 MLJ 652 (HC); [2013] 5 AMR 805; [2014] 3 CLJ 869; [2013] MLRHU 495—this case S/N XexrFho4q06wsrfwfHLMoQ Page 45 of 50 too is a section 340 NLC case. Even with the assistance of counsel, it is not ascertained whether a similar prayer, such as the one we are discussing here, was prayed for in those proceedings. At paragraph [67], it is disclosed that the High Court granted a declaration that the plaintiff there is the owner of the subject property. The current owner, whose title was set aside for fraud, was ordered to redeem the charge because she was found to be culpable for the fraud.

I will not make such a further order, as requested by P under the “further or other relief” prayer, because—

P did not specifically pray for such an order in his Statement of Claim;

P also did not plead the material facts that surround or support the grant of such an order. And relatedly, P led no evidence to prove the facts that support the grant of such an order;

such an order will affect the rights and obligations between D1 and D2 concerning the charge over the Property;

the principles that guide me from the case law authority of Shirley Kathreyn Yap v Malcolm Thwaites [2016] 5 MLJ 602 (FC); [2016] 5 AMR 666; [2016] 8 CLJ 765; [2016] 6 MLRA 171, at paragraphs [50], [53], [54], [55]—the principle that parties must know what they want; they must specifically pray for what they want; there should be no S/N XexrFho4q06wsrfwfHLMoQ Page 46 of 50 judicial activism to make orders for payments of money, just because it is sought, or just because it is “practical”;

the distinguishing factors about the three cases which P relies on and mentioned above—the relief in question was prayed for in Case 1 and Case 2, and we do not know if it was prayed for in Case 3;

the “omnibus” prayer—for any further or other reliefs— should not be used to grant substantive relief (which should be expressly prayed for); and should not be used to make an order for a relief that substitutes for the remedy of damages. These are the three case law authorities cited for this principle—

Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322 (CA); [2016] 10 CLJ 112; [2014] 1 MLRA 376; [2013] AMEJ 0289, at paragraph [27]—a claim for quantum meruit should be expressly pleaded and prayed for;

(ii) NZ New Image Sdn Bhd v Loh Yok Liang [2016] 9 CLJ 474 (CA); [2016] MLJU 1768; [2016] MLRAU 299, at paragraphs [34] - [37]—there was a claim for the relief of specific performance, but there was no prayer for damages in lieu of specific performance; such an order was not prayed for, hence not granted;

(iii) Perisai Wira Sdn Bhd v Harun Minat Sdn Bhd & Ors [2014] 10 MLJ 809 (HC); [2014] 5 CLJ 88; [2014] AMEJ 0020; [2013] MLRHU 1062, at paragraph [34]— a substantive relief like damages cannot be given S/N XexrFho4q06wsrfwfHLMoQ Page 47 of 50 under the omnibus prayer for “such further or other relief as the Court deems just and proper”. Dated: 3rd February 2026 KENNETH ST JAMES HAKIM MAHKAMAH TINGGI MALAYA GEORGETOWN PULAU PINANG Solicitors for the : M. Mohan Ghandi & Siva Plaintiff Subramaniam Messrs. Mohan Ghandi & Assoc. (Kuala Lumpur) Solicitors for the 1st : Shareen Abdul Manan, Mohd Aslam Defendant Mydin & Mohd Sohail Mohd Aslam Messrs. Presgrave & Matthews (Georgetown) S/N XexrFho4q06wsrfwfHLMoQ Page 48 of 50 Solicitors for the 2nd : KK Chan, Deborah Lui Defendant Messrs. Shook Lin & Bok (Kuala Lumpur) Solicitors for the 3rd : Sharifah Syazwani Defendant Pejabat Penasihat Undang-Undang Negeri Pulau Pinang (Georgetown) Solicitors for the 4th : SS Ruban in person, with Vishnuu Defendant Paramaeswaran as McKenzie friend Solicitors for the 5th : N. Ahilan Defendant Messrs. N. Ahilan & Associates (Penang) Legislation referred to:

Section 340 of the National Land Code 1965.

Section 101 of the Evidence Act 1950.

Section 73 of the Evidence Act 1950.

Section 85 of the Evidence Act 1950.

Section 114(g) of the Evidence Act 1950. S/N XexrFho4q06wsrfwfHLMoQ Page 49 of 50 Cases referred to:

Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1 (FC); [2010] 1 AMR 557; [2010] 2 CLJ 269; [2010] 1 MLRA 1.

See Leong Chye @ Sze Leong Chye & Anor v. United Overseas Bank (M) Bhd [2021] 5 MLJ 759 (FC); [2021] 6 CLJ 650; [2021] 4 MLRA 304.

Tung Kean Hin & Anor (as executor for the estate of Tung Leong Geok, deceased) v Yuen Heng Phong (as administrator for the estate of See Ngan Sang @ Lee Ngan Sang) [2019] 2 MLJ 334 (CA); [2019] 9 CLJ 493; [2019] 3 MLRA 580; [2018]

Teoh Kiang Hong v. Theow Say Kow @Teoh Kiang Seng, Henry & Other Appeals [2025] 1 MLJ 813 (FC); [2025] 2 AMR 381; [2025] 2 CLJ 683; [2025] 2 MLRA 504.

Guan Teik Sdn Bhd v. Hj Mohd Noor Hj Yakob & Ors [2000] 4 AMR 4062 (CA); [2000] 4 CLJ 324; [2000] 1 MLRA 617.

Letchumanan Chettiar Alagappan @ L Alagappan (as executor to SL Alameloo Achi Alias Sona Lena Alamelo Acho, deceased) & Anor v. Secure Plantation Sdn Bhd [2017] 4 MLJ 697 (FC); [2017] 3 AMR 625; [2017] 5 CLJ 418; [2017] 3 MLRA

501.

T. Sivam a/l Tharamalingam v Public Bank Bhd [2018] 5 MLJ 711 (FC); [2018] 4 AMR 321; [2018] 6 CLJ 1; [2018] 4 MLRA

583.

CIMB Bank Bhd v. AmBank (M) Bhd & Ors [2017] 5 MLJ 142 (FC); [2017] 6 AMR 309; [2017] 9 CLJ 145; [2017] 5 MLRA 1.

Malayan Banking Bhd v. Mohd Affandi bin Ahmad & Anor [2024] 6 MLJ 220 (FC); [2024] 10 CLJ 501; [2025] 1 MLRA

429.

Yee Poh Nyen v Raji Bin Kasan & Ors [2018] MLJU 1108 (CA); [2018] AMEJ 0959; [2018] CLJU 1185; [2018] 1 MLRAU 293.

Dhanaletchumy a/p P Subramaniam v Rajandran a/l Subramaniam & Ors [2023] 5 CLJ 47 (HC); [2023] MLJU 417; [2023] AMEJ 0393; [2023] MLRHU 317.

Kasai Reiko v Annie Lor Lee Fong & Ors; Public Bank Bhd (Intervener) [2014] 7 MLJ 652 (HC); [2013] 5 AMR 805; [2014] 3 CLJ 869; [2013] MLRHU 495.

Shirley Kathreyn Yap v Malcolm Thwaites [2016] 5 MLJ 602 (FC); [2016] 5 AMR 666; [2016] 8 CLJ 765; [2016] 6 MLRA

171.

Pembinaan SPK Sdn Bhd v Jalinan Waja Sdn Bhd [2014] 2 MLJ 322 (CA); [2016] 10 CLJ 112; [2014] 1 MLRA 376; [2013]

NZ New Image Sdn Bhd v Loh Yok Liang [2016] 9 CLJ 474 (CA); [2016] MLJU 1768; [2016] MLRAU 299.

Perisai Wira Sdn Bhd v Harun Minat Sdn Bhd & Ors [2014] 10 MLJ 809 (HC); [2014] 5 CLJ 88; [2014] AMEJ 0020; [2013]