Siti Haida Binti Ismail v Siti Maznah Binti Yahya (P-02(NCVC)(W)-2089-10/2017)

DALAM MAHKAMAH RAYUAN MALAYSIA 5 (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: P-02(NCVC)(W)-2089-10/2017 ANTARA 10 SITI HAIDA BINTI ISMAIL … PERAYU (NO. K.P: 680330-07-5518) DAN

1. SITI MAZNAH BINTI YAHYA 15 (K.P: 611025-71-5460)

2. ABDUL RAHMAN BIN YAHYA (K.P: 570830-07-5779)

3. SITI ZAUBIDAH BINTI YAHYA (K.P: 601117-71-5004) 20 4. ABDUL RAHIM BIN YAHYA (K.P: 590129-07-5031) Sebagai Pentadbir Bersama harta pusaka … RESPONDEN-Yahya bin Shafii, simati RESPONDEN 25 (Dalam Perkara Guaman Sivil No. PA-22NCVC-90-05/2016 Di Mahkamah Tinggi Malaysia di Pulau Pinang) Antara 30 1. SITI MAZNAH BINTI YAHYA … Plaintif- (K.P: 611025-71-5460) Plaintif 2. ABDUL RAHMAN BIN YAHYA (K.P: 570830-07-5779)

3. SITI ZAUBIDAH BINTI YAHYA 35 (K.P: 601117-71-5004)

4. ABDUL RAHIM BIN YAHYA (K.P: 590129-07-5031) Sebagai Pentadbir Bersama harta pusaka Yahya bin Shafii, simati 40 Dan SITI HAIDA BINTI ISMAIL … Defendan (NO. K.P: 680330-07-5518) 2 CORUM 5 HAMID SULTAN BIN ABU BACKER, JCA ABANG ISKANDAR BIN ABANG HASHIM, JCA KAMALUDIN BIN MD SAID, JCA 10 GROUNDS OF JUDGMENT INTRODUCTION 15 [1] There are two (2) separate appeals filed by the Appellant (Defendant) as follows: -

(ii) Civil Appeal No: P-02(NCVC)-2089-10/2017] against the 30 decision by the Learned High Judge on 18-9-2017 in respect of the compensation monies from the acquisition of 161 square meters of the land in the sum of RM500,613.00 3 deposited at the High Court at Penang under Originating 5 Summons No: 24NCVC-1068-11/2014 ordered to be released to the Plaintiffs (hereinafter referred to as “appeal on money 2089) [2] Both the appeals are heard together. 10 [3] The Plaintiffs institute a suit under Civil Suit PA-22NCvC-90- 05/2016 as Co-Administrators/Administratrix to their father’s estate i.e. Yahya bin Shafii, deceased (hereinafter referred to as “the said deceased”). 15 [4] The suit is to recover property known as Lot 1131, Mukim 11, Daerah Barat Daya, Negeri Pulau Pinang held under GM 789 (hereinafter referred to as “the said land”) which was in the name of the deceased and transferred to the Defendant by the said 20 deceased during his lifetime. [5] Plaintiffs also filed the application for release of the compensation money held under 24NCVC-1068-11/2014. 25 [6] The Learned Judge allowed the claim by the Plaintiffs to declare the transfer of the said land from the deceased to the Defendant via Form 14A of the National Land Code dated 14.7.2014 which was registered on 11.8.2014 under Presentation No. 705SC2014001785 at Pejabat Pentadbir Tanah Daerah Pulau 30 4 Pinang as null and void and the said land was ordered to be 5 reverted to the deceased name and/or to the estates of the deceased (Judgment at page 15-17 of RR Jilid 1(Bahagian A). [7] The Learned Judge also allowed the claim by the Plaintiffs to declare that the Defendant does not have any interest over the 10 compensation sum of RM 500,613.00 deposited in the High Court under Originating Summon No: 24 NCVC-1068-11/2014 related to the acquisition of part of the said land registered under the deceased name during the material time and ordered that the compensation sum to be released to the Plaintiffs as the 15 Administrator of the estates of the deceased (Judgment at page 12-13 of RR Jilid 1(Bahagian A). BACKGROUND FACTS 20 [8] The Plaintiffs are the children of the deceased who passed away on 31-10-2014 at the age of 80 years. The deceased had stayed with the 1st Plaintiff for 5-6 years after he was diagnosed with kidney failure and having to rely on dialysis treatment 3 times a week. 1st Plaintiff together with the rest of the Plaintiffs took care 25 of their father. He then stayed at No. 70 Lorong Mahsuri 10 Bayan Baru which was still nearby the 1st Plaintiff’s house. Later he moved out and stayed at a condominium known as “D’ Piazza” nearby the 1st Plaintiff. His 3rd wife was sometimes away and the 5 Plaintiffs took care of him in ensuring he has food, medicine and 5 taken for treatment. [9] The deceased having to be served in the British military was fixed with his ways and insisted to stay alone. However, he could not be left alone due to his health and mental condition at that 10 time. The Plaintiffs jointly looked over his welfare and his needs. [10] The 1st Plaintiff being a Matron at the Hospital would care for her father in ensuring his wellbeing. The 1st Plaintiff juggled between her time at work and caring for her father and her own family on 15 top of being a single mother. The 1st Plaintiff took care of his meals, medicines and also the constant dialysis treatment i.e. times a week, with a duration of 4 hours each treatment. She also handled all the deceased’s banking needs, financial issues and his assets. The relationship between the 1st Plaintiff and the 20 deceased was very close. They met so frequently, as she had to take care of him. At the time the deceased was under her care, he was doing fine. All his medical and dialysis treatments were arranged for him by the 1st plaintiff. 25 [11] The 2nd Plaintiff is a Pharmacist and he is a Lecturer at Pusrawi International College of Medical Sciences. He resides at Kuala Lumpur. He visits his father at weekends and during holidays and was in constant contact by the telephone. During festival celebrations the whole family would meet and celebrate the 30 6 occasion with him. In short every time they met it appears it is a 5 celebration day. [12] The 3rd Plaintiff is housewife residing in Selangor and have a good relationship with the deceased. She frequently bought things for the deceased during his lifetime. She visited the 10 deceased once a week or during holidays. [13] The 4th Plaintiff is a Teacher and resides in Kangar. He visited his father every last week of every month and during festival holiday. He always took his father out to eat special food that his father 15 craved for. [14] The Defendant was staying near the deceased condominium and was the deceased’s neighbor. She took care of the deceased by, amongst others, handling his day to day affairs, cleaning and 20 maintaining his home, driving him to the Hospital for his dialysis treatments and managing his daily diet as well as his medication. She also helped him in collecting rents for the deceased due from the deceased’s properties. 25 [15] On 1.6.2014, the Defendant contended that the deceased transferred RM 30,000.00 to the Defendant’s daughter. He asked the Defendant to hold the money and told her that she would need the money later. The deceased also asked her not to use the money or tell anyone about the same. 30 7 [16] On 14.7.2014, the deceased asked the Defendant to take him to 5 the Pejabat Daerah dan Tanah Barat Daya where he requested for a copy of the issue document of title for the said Land. Upon receiving the same, the deceased informed the Defendant that he wanted to transfer the said Land to her. 10 [17] The Defendant gave evidence that whilst she initially refused to accept the transfer of the said land to her, the deceased insisted on the same and had asked her to fill in the Form 14A with the help and assistance of the employees at the Land Office. Having done so, both the Defendant and the deceased had affixed their 15 respective thumb prints on the form in front of the Penolong Pentadbir Tanah, Daerah Barat Daya, En. Mohamad Rozee bin Nordin (SD1). The Defendant submitted the duly executed Form 14A for adjudication and was informed via letter dated 5.8.2014 that stamp duty for the instrument of transfer was RM 33,510.00. 20 The Defendant contended that the deceased asked her to use the RM 30,000.00 which was previously given to her and to make up the difference on her own. After the stamp duty and registration for Form 14A were paid on 11.8.2014, the Defendant became the duly registered proprietor of the said Land. 25 [18] On 20.8.2014, the hearing of the acquisition of the Land pursuant to s. 12 of the Land Acquisition Act 1960 was held but was adjourned to 3.9.2014. The Pentadbir Tanah dan Daerah Barat Daya was unable to decide whether the deceased was entitled to 30 the compensation monies amounting to RM 511,613.00. 8 Consequently, the Pentadbir Tanah dan Daerah Barat Daya 5 deposited the compensation monies into the High Court under Civil Suit No. 24 NCVC-1068-11/2014. [19] The deceased passed away on 31.10.2014. On 12.12.2014, the Defendant via Borang N pursuant to s. 38 of the Land Acquisition 10 Act 1960 filed a land reference application to the High Court to determine who is entitled to the compensation monies. Borang K was issued and registered on 16.5.2016 on the Land Title. [20] The Plaintiffs took legal action against the Defendant on 15 23.3.2016 seeking the following orders: -

(ii) a declaration that the memorandum of Transfer in the form of Form 14A dated 14.7.2014 for the transfer of the whole of the Land is null and void and ineffective;

(iii) damages for fraud, dishonesty and/or breach of trust. [21] It was the Plaintiffs’ pleaded case that the Defendant by manipulating, misconduct, cheating, distorting the facts and 30 exploitation of the deceased’s condition had caused the deceased to affix his thumbprint onto the completed Form 14A of National 9 Land Code 1965 dated 14.7.2014 before the Assistant Land 5 Administrator of the Land Office and registered the Form 14A on 11.9.2014 on the Land title. THE ISSUES BEFORE THE HIGH COURT 10 [22] At the High Court the learned judge set out four (4) broad issues before her as follows: -

1. Whether the Defendant had by way of manipulation, misconduct, undue influence and fraud caused the 15 deceased to transfer the said land and monies to the Defendant or Defendant’s agent;

2. Whether the deceased had mental capacity to affix his thumbprint onto the transfer form dated 14.7.2014;

3. Whether the deceased had mental capacity when he withdrew money from Tabung Haji and Saham Bumiputra Trust account; and 25 4. Whether the ownership of the Defendant to the title in the said land is indefeasible. DECISION OF THE HIGH COURT 30 [23] The learned judge after hearing the evidence of witnesses and documentary evidence and also the submissions of the Plaintiffs 10 and the Defendant made her finding of facts and decided as 5 follows-

(ii) That the facts do not show that the deceased had 15 voluntarily given the Land to the Defendant and that to the contrary, the Defendant had the motive to obtain the RM 500,613.00 as well as the Land for herself to settle her debt (see; page 24 of the grounds of judgment); 20

(iii) That the deceased had affixed his thumbprint to the Form 14A without being aware or knowing the effect of his actions (see; page 24 of the grounds of judgment);

(iv) That it was unreasonable to say that the Defendant had 25 taken advantage by directing the deceased to affix his thumbprint to show that the transfer of the Land was genuine; 11

(vi) That the Defendant had unduly influenced the deceased to transfer the said Land to her name. 10 [24] The Learned Judge allowed the claim by the Plaintiffs in respect of the Land and damages as appears in the Judgment (See:page 15-17 of RR Jilid 1(Bahagian A). 15 1. Adalah diisytiharkan bahawa pemindahan hartanah Yahya bin Shafii, simati iaitu hartanah dan hereditament yang dikenali sebagai Lot 1131, Mukim 11, Daerah Barat Daya, Pulau Pinang yang terkandung di bawah Geran Mukim No. 789 dengan premis yang terdiri di atasnya (selepas ini 20 dirujuk sebagai hartanah tersebut) daripada Yahya bin Sahfii kepada Siti Haida Binti Ismail, Defendan melalui Borang 14A Kanun Tanah Negara bertarikh 14-7-2014 yang telah didaftarkan pada 11-8-2014 di bawah Perserahan No: 0705SC2014001785 di Pejabat Pentadbir Tanah Daerah 25 Pulau Pinang adalah tidak sah dan terbatal;

2. Hartanah tersebut dan/atau premis tersebut di atas dikembalikan (reverted) kepada nama Yahya bin Shafii, simati dan/atau aset Yahya bin Shafii, simati; 30 12

3. Pentadbir Tanah Daerah Barat Daya, Pulau Pinang 5 dan/atau mana-mana pihak berkuasa yang berkaitan diarahkan dan hendaklah mengambil segala langkah-langkah yang diperlukan untuk memberi kesan kepada Perintah ini; 10 4. Penolong Kanan Pendaftar Mahkamah Tinggi adalah dikuasakan untuk menandatangani segala dokumen-dokumen dan/atau mengeluarkan segala surat yang diperlukan untuk memberi kesan kepada Perintah di sini. 15 5. Satu injuksi menahan Defendan, perkhidmatan dan/atau ejennya daripada memajak, mencagar, menyewa, menjual atau dengan apacara pun melupuskan premis dan hartanah tersebut yang ketika ini adalah di bawah nama Defendan sehingga muktamad bicara penuh guaman sibil di sini.

6. Defendan hendaklah dalam tempoh empat belas (14) hari dari tarikh perintah dibuat memberi suatu akaun semua wang-wang dan benefit yang diterima oleh Defendan, perkhidmatan dan/atau ejennya daripada apa-apa urusan 25 atas hartanah tersebut dan/atau akaun di tabung Haji;

7. Defendan hendaklah dalam tempoh empat belas (14) hari dari tarikh perintah dibuat memberi suatu akaun semua wang-wang dan benefit yang diterima oleh Defendan 30 13 daripada apa-apa urusan atas hartanah tersebut dan/atau 5 akaun di Amanah Saham Berhad;

8. Ganti rugi Am hendaklah ditaksir oleh Timbalan Pendaftar/Penolong Kanan Pendaftar Mahkamah Yang Mulia ini.

9. Defendan membayar faedah pada kadar 4% setahun ke atas ganti rugi am yang dibenarkan oleh Mahkamah Yang Mulia ini dikira dari tarikh pemfailkan guaman sivil di sini sehingga tarikh realisasi;

10. Defendan membayar kos sebanyak RM50,000.00 kepada peguam Plaintif-Plaintif; [25] The Learned Judge also granted an order that the compensation 20 sum be released to the Plaintiffs as appears in the Judgment (See; page 12-13 of RR Jilid 1(Bahagian A).

1. Adalah diisytiharkan bahawa Defendan tiada sebarang kepentingan ke atas wang pampasan sebanyak RM 25 500,613.00 yang didepositkan di Mahkamah di bawah Saman Pemula No: 24 NCVC-1068-11/2014 mengenai pengambilan sebanyak 161 meter persegi hartanah yang dikenali sebagai Lot 1131, GM 789 Mukim 11, Daerah Barat Daya, Pulau Pinang beserta sebuah premis yang terdiri di 30 14 atasnya yang didaftarkan atas nama Yahya bin Shafii pada 5 masa matan;

2. Wang pampasan RM 500,613.00 yang didepositkan di Mahkamah di bawah Saman pemula No: 24 NCVC-1068- 11/2014 bagi pengambilan sebanyak 161 meter persegi 10 hartanah yang dikenali sebagai Lot 1131, GM 789 Mukim 11, Daerah Barat Daya, Pulau Pinang beserta sebuah premis yang terdiiri di atasnya dilepaskan/diberikan kepada Plaintif-Plaintif sebagai Pentadbir Harta Pusaka Yahya bin Shafii berdasarkan kepentingan berdaftar Yahya bi Shafii, si 15 mati tersebut pada masa matan;

3. Pentadbir Tanah Daerah Barat Daya/Pendaftar hakmilik Tanah, Pulau Pinang memberi kesan dan efek kepada Perintah ini. 20 . THIS APPEAL [26] The Defendant was not happy with the learned judge’s decision and appealed to the Court of Appeal, setting out her grounds of 25 appeal as follows: -

(ii) In allowing the reliefs sought by the Plaintiffs, the learned 10 judge had erred in law and in fact in failing to duly consider, inter alia, the following: -

(iii) The learned judge had erred in law and in fact in deciding that the Plaintiffs are entitled to the compensation monies because Borang D, the Proposal for Acquisition of land, was 25 registered on 18.7.2014 before the Defendant became the registered owner of the Land. OUR DECISION 30 [27] The Defendant had filed her written submission and gave her grounds challenging the learned judge’s decision in the 16 submission. She had also submitted orally. The Plaintiffs had 5 also filed their written submissions opposing the appeal and defending the learned judge’s decision. [28] At the outset, we asked the Defendant’s counsel the pertinent question of whether the transfer of the said Land was valid when 10 the deceased who was suffering Dementia affixed his thumbprint on the completed Form 14A on 14.7.2014. If the deceased did not have the mental capacity to know the effect and consequences of his action, how can the transfer of the Land and RM 30,000.00 to the Defendant be said to be made voluntarily. 15 [29] The Defendant’s counsel was not really answering the question but he submitted that the deceased had mental capacity to affix his thumbprint on the Form 14A and that the deceased knew the effect and consequences of his action. 20 [30] Be that as it may, we had heard counsels’ oral submissions and had read the written submissions and the learned judge’s ground of judgment and the record of appeal. It is our firm finding that the learned judge’s decision does not contain any appealable 25 error for us to intervene. The appellate Court would normally intervene and correct the decision of the lower Court if the decision is perverse or is shown that the impugned decision can be proved be plainly wrong. 17 [31] The jurisdiction of the Court of Appeal to intervene against a 5 decision of the High Court has to rest on settled principles; the court should only upset a decision of the High Court where there is a clear error leading to a perverse finding or resulting in miscarriage of justice, particularly where the lower court has decided on the basis of discretion. 10 (See: Merbok Hilir Bhd v Sheilh Khaled Jassem Mohammad Jassem Al-Thani & Other Appeals [2013] 8 CLJ 309: Sivalingam A/L Periasamy V Periasamy & Anor [1995] 3 MLJ 395). 15 [32] We say this because the evidence led before the High Court shows that the deceased did not have the mental capacity to know the effect and consequences of his action. The evidence revealed that the deceased suffered from dementia among 20 others. [33] There is evidence from 2 doctors before the court as follows-

1. A medical report dated 20.10.2014 from Jabatan Psikiatri 25 dan Kesihatan Mental Hospital Pulau Pinang was produced and marked as exhibit P21. The Plaintiffs procured evidence from Dr Roohana (PW8) (Refer page 1166 – 1168 of RR Jilid 2 F) 30 18

2. The Defendant’s witness SD8 Dr Prem gave evidence 5 before the court without the benefit of examining the deceased nor having seen the full clinical reports. His opinion is based on the medical report by Dr Roohana (PW8). 10 3. Dr Roohana bt. Abdul Hadi, a medical doctor for the past 11 years and has completed psychiatrist training in November 2014 and gazetted as a psychiatrist on 4.10`2016. She was at the Psychiatric Department the whole of 2014. She had testified based on the Medical Report dated 20.10.2014. 15 Extract from the Medical Report. (Refer page 1166 – 1168 of RR Jilid 2F). PW8 testified the following evidence from the Medical Report in summary: - 20

(ii) Based on the history given, suspected that they were presence of undue influence to transfer all his money and properties to the caretaker.

(iii) For the past 1 week prior to admission, patient was 30 noted to be talking irrelevantly. He was disoriented and can’t recognize his family members and can’t answer to question properly. 19 5

(iv) For the assessment of testamentary capacity:

(ii) He was unaware that he had transferred and with-drew all his properties/money

(iii) He can’t tell the extent of his estate/property 15

(vi) Patient was unable to perform Clock Drawing Test

(vii) He suffers from multifocal infarcts 25

(viii) Diagnosis (Diagnosis): Delirium with underlying Dementia (Alzheimer’s type)

(ix) Patient was discharge from CRW on the 5/9/2014 but readmitted on the 8/9/2014 to CRW for aggressive 30 behavior; had sudden onset of behavioral changes and was rather disturbed at home. He was noted to be talking non-sense, screaming and shouting for no apparent reason and was rather disorientated. 35 PW8 further testified that he sustained a fracture and was bed ridden during that time. 20 [35] Based on the report, Delirium with underlying Dementia 5 (Alzheimer’s type) is a recognized problem in society and persons and professionals who are close to such patient can exploit and take advantage of them. [36] On the contrary, we noted the Defendant had also called on 10 evidence from Dr Prem who testified solely on the statement recorded in the history of presenting complaints in the medical report by Dr Roohana above. The clock drawing test is another form of cognitive assessment 15 but it is not part of the MMSE as it is a separate test. He also testified that a CT had been done by the earlier doctor.

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

(ii) The provisions of Part Fourteen to Seventeen with 25 respect to instruments of the particular class in question;

(1) Section 26 of the Act renders an agreement made 10 without consideration to be valid if it is made on account of natural love and affection between parties standing in a near relation to each other. The words 'near relatives' refer to those who are closely related such as one's parents, brothers or sisters. On the 15 facts, the plaintiffs and defendants did not stand in a near relation to each other. Further, there was no evidence to show that the parties were related. (paras 10 & 14)

(2) Section 26(a) of the Act refers to an agreement in 20 writing and registered under any law. Form 14A is a statutory form under the NLC relating to the dealing of land in Malaysia. On the facts, the Forms 14A must be a fit instrument for registration to enable the transfer of the lands in favour of the first defendant to be valid. 25 Further, s. 301 of the NLC governs as to when an instrument is fit for registration. Since the parties did not stand in a near relationship with each other within the meaning of s. 26(a) of the Act, it follows that the 33 transfer of the lands under the Forms 14A was 5 contrary to s. 26. As such, the Forms 14A were not fit for registration under s. 301(c) of the NLC and were insufficient or void instruments. (paras 11, 12, 14, 15 & 16)

(3) Section 340 of the NLC provides certain circumstance 10 under which a registered title or interest may be defeasible and thereby liable to be set aside. On the facts, the transfer of the ownership of the lands from the plaintiffs to the first defendant was liable to be set aside pursuant to s. 340(2)(b) and (3) of the NLC. 15 (paras 18 & 19) [55] In another case of Tang Meng Hock v Tang Ming Seng [2010] 1 CLJ 208, the Court of Appeal held that- “(2) The issue of consideration can be determined by reference to s. 26(a) of the Contracts Act 1950 which 20 states that an agreement made without consideration is void unless it is expressed in writing and registered, and is made on account of natural love and affection between parties standing in a near relation to each other. (para 18)

(3) It is an established principle that natural love and affection is a good and valid consideration in law. The question of whether there is in fact any natural love and 34 affection may be determined by reference to the 5 evidence and surrounding circumstances. (paras 19 & 20)

(4) The parties are biological brothers and in near relation to each other, being related by actual birth. Furthermore as the family arrangements had been reduced to writing and 10 the agreement was duly stamped under the Stamp Act, ss. 47A(1) and 48, the court had no hesitation in finding that the requirements of s. 26(a) of the Contracts Act 1950 were fulfilled. (para 22)

(5) The family arrangements are therefore valid and 15 enforceable. (para 22) [56] The deceased and the Defendant clearly are not standing in near relationship with each other within the meaning in s 26(1) of the Contracts Act. 20 [57] The Form 14A is clearly null and void. The transfer of the Land from the deceased to the Defendant as alluded to earlier was not done in good faith. It is trite that where there is a question as to the good faith of a transaction between parties, one of whom stands to be the other in position of active confidence, the burden 25 of proving the good faith of the transaction is on the party who is in position of active confidence. 35 (See: Khaw Cheng Bok & Anor v Khaw Cheng Poon & Ors 5 [1998] 3 MLJ 457; Tengku Abdullah Ibni Sultan Abu bakar & Ors v Mohd Latiff bin Shah Mohd & Ors and other appeal [1996] 2 MLJ 265; Lim Kim Hua v Ho Chui Lan & Anor [1995] 3 MLJ 165; Loi Hieng Chiong v Kon Gek Shin [1983] 1 MLJ 31). 10 [58] The Defendant and the deceased in this case had known each other for 5 months before the transfer of the property. In the circumstances of the case, it cannot be unreasonable to suspect that the Defendant had actively concealed the material facts and thus committed dishonesty against the Plaintiffs. 15 [59] We agree with the Plaintiffs’ submission that so much precaution is needed to be exercised when dealing with an elderly and sick testator for example where medical advice as to testamentary capacity was enquired. We agreed that in this case, the Attesting 20 Officer and the Land Officer being suspicious over the relationship between the Defendant and the deceased should not have proceeded with the attestation of the Memorandum of Transfer and adjudication and registration thereafter. 25 [60] Apart from this, it was the duty of the Land officer when confronted with the insufficient proof of adoption whilst an 80 years old man unaccompanied with any of his family is present before them at the Land Office to transfer his property worth more than one million ringgit to the Defendant who was only known to 30 36 him only 5 months ago, could have enquired for further evidence 5 for his satisfaction that the transfer was made and registered in accordance with law. Otherwise the transfer is tainted with insufficient capacity to understand and appreciate the effect of the transfer due to his old age and a deteriorating medical condition. 10 [61] Based on the law as it stands, we see nothing in the Defendant’s submissions to support the appeal. The Appeal is doomed to fail because the Forum 14A made between the deceased and his care giver appellant on the consideration of love and affection is void and the transfer runs contrary to Section 26 of the Contracts 15 Act 1950. As such, the transfer was invalid and ought to be set aside in limine. [62] The deceased and the Defendant do not stand in a near relationship to each other. It follows that when the transfer in 20 Form 14A is contrary to s 26 of the Contracts Act 1950, consequently, the Form 14A being instruments of transfer prescribed under the NLC was not fit for registration under para

(3) of s. 340 of the National Land code 1965. CONCLUSION 10 [64] In conclusion, it is our decision that the finding of facts by the learned judge is correct and well substantiated.

1. The learned judge has rightly found that the deceased did 15 not have the mental capacity to know the effect and consequences of his action;

2. The learned judge’s assessment of the evidence that the deceased affixed his thumbprint on the Form 14A without 20 being aware or knowing the effect of his action was also correct;

3. The learned judge has rightly found that the Defendant had taken advantage by directing the deceased to affix his 25 thumbprint to show that the transfer of the land was genuine; 38

4. The learned judge has rightly found that the Form 14A is 5 invalid, void and should be set aside pursuant to section 26

5. The learned judge has rightly found that the Defendant had unduly influenced the deceased to transfer the said Land to 10 her name. [65] Wherefore, it was our unanimous decision that the Defendant’s appeal was hereby dismissed with Costs of RM 10,000.00 subject to allocator fee. Deposit was refunded to be Appellant/Defendant 15 Dated this 3rd August 2018 Signed 20 KAMALUDIN MD. SAID Judge Court of Appeal Malaysia Putrajaya 25 Parties

1. Yap Mong Jay, Choo Jun Lin and Wong Lian Chin for the Appellants 30 (Messrs Tan Shuaib & Co.)

2. KT Raja and Geetar Kaur for the Respondent (Messrs Cheah Kah Peng & Co. and Messrs Getar Kaur & Co.)