Siti Asiah Binti Salleh v Abu Bakar Bin Chu (WA-24NCvC-2597-06/2025)

(D) KN 4372, PT 9153, Geran No. 40648, Mukim Setapak, Daerah Gombak, Negeri Selangor; Dalam perkara Perjanjian Jual Beli di antara UDA Holdings Berhad dengan Siti Asiah Binti Salleh dan Siti Hadigah Binti Salleh bertarikh 01 Ogos 2003; Dalam perkara mengenai Seksyen 145

dan (2) (c) Kanun Tanah Negara 1965; Dalam perkara mengenai Seksyen 25

dan Perenggan 3 Jadual kepada Akta Mahkamah Kehakiman 1964. Dalam perkara mengenai Aturan 31 Kaedah 1, Aturan 31 Kaedah 2, Aturan 13/01/2026 16:24:41 WA-24NCvC-2597-06/2025 Kand. 27 SAMAN PEMULA NO: WA-24NCvC-2597-06/2025 31 Kaedah 4 dan Aturan 7 Kaedah – Kaedah Mahkamah 2012; Dalam perkara mengenai Aturan 92 Kaedah 4 Kaedah – Kaedah Mahkamah 2012. ANTARA SITI ASIAH BINTI SALLEH ...PLAINTIF (No.K/P: 500117-05-5322) ABU BAKAR BIN CHU 13th ...DEFENDAN (No.K/P: 550409-08-5465) [Di saman atas kapasiti sebagai Pentadbir kepada harta pusaka Siti Hadigah Binti Salleh, Si Mati] GROUNDS OF JUDGMENT Introduction [1] The facts of this case are straightforward. The Plaintiff agreed to purchase a shophouse together with her younger sister sometime in year 2003, at a price of RM540,000.00. The sisters agreed to obtain a bank loan of RM405,000.00 to finance their purchase but the Plaintiff forked out RM150,000.00 upfront because her sister could not afford to pay any money then. In other words, the Plaintiff paid the difference between the purchase price and the bank loan to get their purchase of the shophouse moving. [2] With a bank loan of RM405,000.00 released by HSBC Bank Malaysia Bhd, the two sisters completed their purchase and were duly registered as co-proprietors of half (½) share each in the title of the shophouse, which was charged to the said bank. However, the Plaintiff’s younger sister has been using the groundfloor of the shophouse as the premises for her saloon business and letting out the upper floors to several tenants over the years. She used the rentals from the upper floors to pay the loan instalments. In other words, the Plaintiff’s younger sister (and now her husband) has been benefitting from the shophouse while the Plaintiff received nothing so far from her half (½) share. [3] The Plaintiff’s younger sister passed away on 13th June 2021. The Defendant is the husband of the younger sister, and named in this action as the administrator of the younger sister’s Estate. After her demise, her husband (the Defendant) took it for granted that he could continue to collect rent from tenants of the upper floors and to use the ground floor without accounting to the Plaintiff. [4] The Defendant ignored the Plaintiff’s repeated requests for information about the shophouse. Instead of quarrelling with the Defendant, the Plaintiff decided to apply to this Court for an order pursuant to s.145 of the National Land Code 1965 (“NLC 1965”) to terminate the co-proprietorship. Generally, she sought an order for the property to be sold by public auction, and for the sale proceeds to be divided between the Plaintiff and the Defendant after deducting the expenses. [5] After reading the written submissions and hearing learned counsel, I decided that this is an appropriate case for this Court to exercise its discretion under s.145 NLC 1965 to terminate the co-proprietorship as prayed for by the Plaintiff. She had been charitable to her late sister for about 18 years and is under no obligation, be it legal or moral, to be charitable to her brother-in-law (the Defendant) who appears to have taken her kindness for granted. Background Facts [6] The said shophouse sits on land held under Geran No. 40648 Lot No 14548 (formerly known as HS(D)4372 PT 9153) Mukim Setapak, Daerah Gombak, Selangor (“the Shophouse”). [7] As the purchase price was RM540,000.00, the Plaintiff and her late sister Siti Hadigah binti Salleh should have paid out RM270,000.00 each, plus an equal share of the legal fees and disbursements for the purchase. It is undisputed that the Plaintiff forked out RM150,000 upfront – without which they would not have been able to purchase the Shophouse. [8] The balance purchase price was raised by them charging the Shophouse to HSBC Bank Malaysia Berhad to secure a loan of RM405,000.00 for the balance purchase price. The exact amount of the loan, legal fees and disbursements are irrelevant because it is undisputed that the initial part-payment of the purchase price and disbursements were paid by utilising the RM150,000.00 paid out by the Plaintiff and the balance purchase price by using the said bank loan. [9] As mentioned above, the Plaintiff and her sister Siti Hadigah were duly registered as co-proprietors of half (½) share each in the title of the Shophouse. The younger sister Siti Hadigah did not have to pay out much money because she was able to utilise the rentals collected from the tenants of the upper floors to repay the bank loan – which had since been fully repaid. The Shophouse is now free from encumbrances. [10] The amount of rentals collected from the tenants of the upper floors from 2009 to 2019 added up to more than RM270,000 while the amount of rentals collected by the late younger sister (and subsequently by the Defendant) for the periods of November 2003 to December 2008 and January 2020 to May 2025 respectively have not been disclosed by the Defendant. [11] A further fact of relevance is that the late younger sister (and subsequently the Defendant) have been continuously using the ground floor of the Shophouse for their own business all these years, for about 259 months without paying any rent. The Plaintiff’s Application pursuant to s.145 NLC 1965 [12] The Plaintiff’s application is a straightforward application to terminate the co-proprietorship of the Shophouse. There is nothing complicated as she is not making any claim for an acount of rentals collected by her late sister nor by the sister’s husband (the Defendant). [13] The Plaintiff avers that she had requested a statement of account from the Defendant regarding rentals collected, a copy of the Tenancy Agreements for the upper floors, etcetera, but her requests were ignored by the Defendant. Repeated reminders were sent by her solicitors but were all ignored by the Defendant. The Defendant’s Position [14] The Defendant has averred that his wife (the younger sister of the Plaintiff) “bore about 87% of the acquisition and ownership costs over two decades”. [15] He further contends that the Plaintiff is holding her share in the Shophouse on “resulting (or alternatively constructive) trust” for his late wife’s estate. Analysis of the Facts and Law [16] With respect, the Defendant has conveniently overlooked to mention that his late wife was using the ground floor of the Shophouse as her business premises without paying any rent to the Plaintiff all these years. In other words, the Plaintiff’s late sister and subsequently the sister’s husband (the Defendant) have been using the ground floor for over 259 months. If one is to assume that the rent for the ground floor of the Shophouse is only RM1,800 per month, the amount of rent payable would work out to about RM466,000.00. This means that had the Shophouse being let out to a tenant, the Plaintiff could have collected about RM233,00.00 rent from her half (½) share of the Shophouse. She had been gracious not to ask her late sister to pay her rent. [17] As the purchase price was RM540,000.00, the Plaintiff and her late sister Siti Hadigah binti Salleh should have paid out RM270,000.00 each, plus an equal share of the legal fees and disbursements for the purchase. Having paid out RM150,000.00 upfront, the balance purchase price payable by the Plaintiff her half (½) share of the Shophouse would have been only RM120,000.00. This means that her share of rentals (estimated at RM233,000.00) from just the ground floor alone would have been more than sufficient to pay off her “balance share of purchase price” of RM120,000.00. Even if, for discussion sake, the monthly rent for the ground floor is, say only RM1,000.00 (instead of RM1,800.00), the Plaintiff would also have collected more than enough over 259 months to pay out RM120,000.00. [18] It is pertinent to note that the late younger sister could not afford to pay any partial payment of the purchase price for the Shophouse in 2003 – which led her to approach her elder sister (the Plaintiff) to jointly purchase the Shophouse. The late younger sister was using the ground floor free of charge for decades and using the rentals from the upper floors of the Shophouse to pay the bank instalments. In other words, the late younger sister had paid out only a nominal amount all these years, perhaps for the quit rent (cukai tanah) and cukai harta (assessments) payable only once a year, and benefitting from using the ground floor as her personal business premises. [19] Further, after the loan to HSBC Bank Bhd was fully repaid, the late younger sister collected, and after death, her husband (the Defendant) has been collecting the rentals from the upper floors and keeping the money without accounting to the Plaintiff. Instead of accounting to his sister-in-law (the Plaintiff), the Defendant had the audacity to ignore her requests for information about rentals collected and the tenancy agreements. The evidence adduced in the Plaintiff’s affidavit – which was unrebutted – shows that the Defendant continued to ignore the Plaintiff’s requests even after she was compelled to instruct solicitors to write to him. [20] Given the facts as analysed above, especially that the Plaintiff has received nothing for more than 21 years while her younger sister (and subsequently the Defendant) has been enjoying the benefits of possessing the Shophouse and utilising the upper floors rentals to repay the bank loan, it is my judgment that there is absolutely no factual basis for the Defendant to allege that his late wife (the Plaintiff’s younger sister) “bore about 87% of the acquisition and ownership costs over two decades”. With respect, it was unconscionable for the Defendant to make such an allegation. [21] Thus, the Defendant’s assertion of “resulting (or alternatively constructive) trust” must be firmly rejected. This Court finds that there is no such trust. The Plaintiff and her late younger sister’s share in the Shophouse are respectively half (½) share each – as recorded in the Register Document of Title of the Shophouse. This is consonant with s.343(1)(a) NLC 1965 which states that the shares of co-proprietors in land shall be deemed to be equal unless different proportions are specified in the memorial of registration endorsed on the title. [22] In fact, the Defendant ought to be grateful that the Plaintiff is not suing for an account and payment of rentals collected by the late younger sister (and by the Defendant after her death), especially for the period after the bank loan had been fully paid off by utilising rentals from the upper floors of the Shophouse. The Plaintiff is simply going under s.145 NLC 1965 which empowers this Court to order a termination of co-proprietorship based on half (½) share each as recorded in the Register Document of Title of the Shophouse. [23] S.145(1) NLC 1965 empowers this Court to make any order as it may think just for the purpose of enabling the co-proprietorship to be terminated. It reads as follows: “(1) Where, in the case of any land vested in co-proprietors—

any of the co-proprietors will neither join in, nor consent to the making of, an application for partition under this Chapter; or

... the Court, subject to and in accordance with the provisions of any law for the time being in force relating to civil procedure, may, on the application of any of the co-proprietors, make such order as it may think just for the purpose of enabling the co-proprietorship to be terminated.” [24] The power to order a sale of the Shophouse for the purpose of enabling the co-proprietorship to be terminated is expressly provided in s.145(2)(c) NLC 1965, which states:

Without prejudice to the generality of the power conferred by subsection (1), the Court may on any application under that subsection order—

...;

...;

that the land be sold.” [25] As for the application of s.145 NLC 1965, I stand guided by the judgment of the Court of Appeal in Ong Chin Hai & Anor v Ong Hoo See & Ors [2022] 5 MLJ 690. Hashim Hamzah JCA made it abundantly clear that s.145 NLC 1965 gives the court a discretion to order a sale of land to terminate co-proprietorship. The relevant passages from Hashim Hamzah JCA’s judgment are as follows: “[14] This provision is available to any of the co-proprietors in a jointly owned land who want to terminate their co-proprietorship if any of the co-proprietors will neither join in nor consent to the making of the application for partition of the land or if the application for the partition of the land is incapable of being approved under ss 136(1)(f) and 141 of the NLC. [15] In such application, the court has the discretion to order the partition of the land or to make any order that the court thinks just to enable the co-proprietorship to be terminated, including to order for the land to be sold (see Young Yean Chin & Ors v Quek Yak Kang & Ors [2016] MLJU 1737; [2016] 6 CLJ 860 (CA)).” [26] In Ong Chin Hai & Anor v Ong Hoo See (supra), Hashim Hamzah JCA in fact went further to point out that even if the requirements under s.145(1) have not been complied with, the court still has the power to direct a sale pursuant to s.25 and para 3 of the Schedule to Courts of Judicature Act 1964. His Lordship opined as follows: “[26] Even if the requirements under s 145(1) of the NLC have not been complied with, the court still has the power to direct a sale instead of partition pursuant to s 25 and para 3 of the Schedule to CJA 1964 and O 31 of the ROC 2012 (see Koh Heng Jin). [27] The court is conferred with additional powers under s 25 and para 3 of the Schedule to CJA 1964 in any cause or matter relating to land, to direct the land to be sold instead of partition, if it appears necessary or expedient to do so. The relevant provision reads: Section 25 Powers of the High Court.

Without prejudice to the generality of Article 121 of the Constitution the High Court shall in the exercise of its jurisdiction have all the powers which were vested in it immediately prior to Malaysia Day and such other powers as may be vested in it by any written law in force within its local jurisdiction.

Without prejudice to the generality of subsection (1) the High Court shall have the additional powers set out in the Schedule: Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same.