Sunitha Madhu [Membawa Tindakan Ini Sebagai Pentadbir Sah Harta Pusaka Simati (Madhu A/l K.v. Dharan (No. K/p: 550403-10-6085)] v PALAYAM A/L NAGAPPAN (BA-22NCvC-114-03/2020)

PALAYAM A/L NAGAPPAN (NO. K/P: 490427-10-5237) …DEFENDAN PERTAMA

TERSAIM LALL A/L SADHU RAM (NO. K/P: 491010-72-5755) [yang beramal sebagai Peguambela dan Peguamcara di Tetuan T.Lall and Associates] …DEFENDAN-KEDUA

WONDERFUL CENTURY PROPERTIES SDN BHD (NO. SYARIKAT : 746005-U) …DEFENDAN KETIGA

PENTADBIR TANAH, PEJABAT TANAH & DAERAH PETALING …DEFENDAN KEEMPAT 06/03/2025 09:51:49 BA-22NCvC-114-03/2020 Kand. 214 S/N 8/4j7kfF0EqaoeOe5VnbAQ GROUNDS OF JUDGMENT Introduction [1] The Plaintiff’s case is but another appalling instance of a land owner being dispossessed of his land by the fraudulent actions of third parties. [2] The Plaintiff is the administrator of the estate of her late husband, Madhu a/l KV Dharan. She seeks to recover for the estate, a piece of land which was once that of her husband’s, but by a series of transactions, is now registered in the name of the 3rd Defendant. The Plaintiff’s case [3] The Plaintiff is an Indian national. She was married to Madhu a/l KV Dharan (“Madhu”) until his death on 2.4.1998. She is presently residing in India. [4] In 1993, Madhu purchased a piece of land identified as HSM 530 Lot 7501 Mukim Bukit Raja, District of Petaling, now known as PM 1834, Lot 7501, Tempat Bukit Cherakah, Mukim Bukit Raja, Daerah Petaling, Selangor Darul Ehsan (“said land”). The consideration sum was RM 75,000.00. The transfer land was effected and the land registered in the name of Madhu on 9.3.1994. [5] When Madhu passed away, Letters of Administration was granted to the Plaintiff and her mother in law on 16.4.2002. The services of solicitors Messrs A. Gnanarajah & Co., were engaged to obtain the Letters of Administration. However, the Plaintiff’s mother in law S/N 8/4j7kfF0EqaoeOe5VnbAQ passed away shortly thereafter and she then became the sole administrator of Madhu’s estate. [6] The first time the Plaintiff was alerted to something amiss with respect to the land was sometime in 2003. Messrs A. Gnanarajah & Co. was approached by Messrs Chan Yat Hee & Associates who in its letter of 5.8.2003 intimated that there was an interested purchaser for the said land who wished to execute a sale and purchase agreement with Palayam a/l Nagappan, the holder of a Power of Attorney dated 19.4.1996 (“PA”) given by Madhu. However, Messrs A. Gnanarajah & Co. was requested to first confirm the genuineness of the signature of Madhu on the said PA. A copy of the PA was attached to the letter. [7] Messrs A. Gnanarajah & Co. responded on behalf of the Plaintiff vide its letter dated 30.9.2003 to strongly dispute the contents of the PA. Upon the advice of her solicitors, the Plaintiff lodged a caveat on 27.1.2004. No further communication was made thereafter, the interested purchaser having presumably abandoned the intended purchase of the said land. [8] In 2015, the Plaintiff’s son (PW 2) came over from India to conduct a search on the said land at the land office of Petaling. To his shock and dismay he found out that the said land had been transferred to several parties in succession. The Plaintiff allege that the transfers were done through a series of fraudulent and/or negligent acts on the part of the Defendants. S/N 8/4j7kfF0EqaoeOe5VnbAQ [9] In 2017, the Plaintiff and her other son authorized PW2 vide a Power of Attorney dated 21.1.2017 to take all necessary actions in respect of the said land. PW2 then lodged a police report on 24.1.2017 to state that his late father’s land had been fraudulently transferred to third parties. The Plaintiff also did the same shortly thereafter. [10]

the 1st Defendant (“D1”) was granted an irrevocable PA by Madhu on 19.4.1994 to deal with the said land;

using the PA, D1 then sold the said land to one Kannan a/l Periapayan (“Kannan”) for a consideration sum of RM 250,000.00. Parties parties executed a Form 14A dated 6.6.2008 which was prepared and witnessed by Tersaim Lall a/l Sadhu Ram (“D2”). The transfer was registered on 2.9.2008; and

Two months after Kannan was registered as the proprietor, he executed a Form 14A in favour of Precious Nest Sdn Bhd on 30.10.2008. The consideration sum stated in the Form 14A was RM 550,000.00. Precious Nest Sdn Bhd S/N 8/4j7kfF0EqaoeOe5VnbAQ subsequently underwent a name change to that of D3. In respect of this transfer, Kannan was represented by D2. The transfer to D3 was registered on 28.11.2008. [12] The Plaintiff contends that all the Defendants had a role and contributed to the estate of Madhu being defrauded of the said land. [13] The genesis of the fraud was the PA, the document which allowed D1 to deal with the said land unlawfully, and which led to subsequent transactions, ending with the registration of the said land in the name of D3. The PA purportedly granted to D1 by Madhu was not a genuine document. The signature was not that of Madhu’s. It was clearly forged. [14] From the outset, there was clear evidence of fraud on the part of D1. The IC no. of Madhu on the PA stated as 4771658 did not match the IC number stated on the Form 14A transferring the said land to Kannan in 2008. On the Form 14A, a new IC number of Madhu, 560312-10-5303 was stated. Upon checking with Jabatan Pendaftaran Negara, it was confirmed that such this number did not correlate with Madhu’s old IC no. It was in fact a non-existent IC no. Madhu’s new IC number in place of his old one was 550403- 10-6085. [15] As for the Plaintiff’s case against D2, it is founded on both fraud and negligence. In the sale by D1 to Kannan, D2 played an active role in the preparation of the Form 14A for their execution. At the S/N 8/4j7kfF0EqaoeOe5VnbAQ very least, he failed to exercise due care in attending to the Form 14A used to effect the transfer to Kannan. [16] In the subsequent transfer from Kannan to D3, he was privy to the fraud. As a solicitor for Kannan in the subsequent sale to D3, he could not have been ignorant of the fact that Kannan sold the land barely 4 months after he bought from the Madhu. The said land was also sold to D3 at a price more than twice that which Kannan initially paid for. [17] The Plaintiff contends that D3 was not an innocent party when it purchased the land from Kannan. Instead, it knowingly participated in a conspiratorial arrangement with D1 and D2 to acquire Madhu’s land. In the circumstances, the mere fact of registration in its name does not confer indefeasibility. The provisions of s.340 of National Land Code are relied on in support of her case. [18] As for D4, the Plaintiff alleges negligence and breach of statutory duty in his functions under the National Land Code. A search on the title showed 2 entries relating to the notice of intended removal of the Plaintiff’s caveat endorsed on 7.7.2006 and 30.7.2008 respectively. The Plaintiff was not notified about such intention. In addition, D4 as the authority responsible in examining documents presented for registration, failed to ensure the authenticity of the documents involved in the transfer from Madhu to Kannan, and thereafter from Kannan to D3. D4’s failure resulted in the said land being registered in D3’s name. S/N 8/4j7kfF0EqaoeOe5VnbAQ [19] The failure of D4 in its statutory duty is made even more apparent as at all material times the original title to the said land was with Messrs A. Gnanarajah & Co. The title was given to the solicitor’s firm to list out particulars of Madhu’s assets for the purpose of applying for the letters of administration. In the absence of the original title, the transfers to Kannan and D3 was contributed to by the breach of duty on the part of D4. [20] The Plaintiff now applies to set aside the transfer of the said to the 3rd Defendant on the grounds that its title is not indefeasible by virtue of the fraud perpetrated that led to the registration of the said land in its name. As the administrator of the Madhu’s estate, she seeks to set aside the registration and have the land transferred to the estate of Madhu. [21] As against all the defendants, the Plaintiff seeks damages occasioned by the wrongdoing of these parties. The Defence case [22] D1 did not enter any defence. It was only at the trial that it came to light D1 had passed away on 15.4.2022. However, from the time the suit was filed, D1 took no steps to defend the action upon being served with the cause papers. [23] D2 denies the allegations of negligence and fraud on his part. He claims that his role in the Form 14A involving the transfer from Madhu to Kannan using the PA granted to D1, was merely to witness the signature of both on the Form 14A. As for the cause of S/N 8/4j7kfF0EqaoeOe5VnbAQ action in negligence, D2 contends that no duty of care was owed to the Plaintiff she was not his client. [24] As for D3, 3 main issues were raised in defence. Firstly, there is no credible evidence that it was a party to the fraud alleged by the Plaintiff. Secondly, it contends that the Plaintiff ought to have challenged the validity of the PA, which she did not. Had she attempted, she would not have succeeded as the challenged would be time barred in any event. She had knowledge of questionable PA in 2003. Having filed the suit only in 2020, limitation would have defeated her challenge. Thirdly, and more importantly, D3 was a subsequent purchaser when it purchased the land from Kannan. Notwithstanding any defectiveness in Kannan’s title, it is entitled to rely on the proviso in s. 340(3) of the National Land Code as it was a bona fide purchaser who bought the land in good faith and for valuable consideration. [25] The defence of D4 is that it had performed its duties according to the requirements of the National Land Code (“NLC”). In receiving the documents presented for registration, its duty was merely to determine if such documents were fit for registration as required by s. 294 and s.297 of the NLC. The PA was registered with the land office on 7.7.2006. Therefore, when the Form 14A from Madhu to Kannan was presented for registration, the documents were in order as transfers with the use of Powers of Attorney are allowed. Similarly in registering the transfer from Kannan to Precious Nest Sdn Bhd (the precursor of D3), the documents were in order. There was nothing to arouse the suspicion of the land office. S/N 8/4j7kfF0EqaoeOe5VnbAQ Issues for determination [26] From the factual matrix and the various position taken by the respective parties, the application of s. 340 of the NLC comes into play. Consequently, the following issues of fact and law arise for determination:-

whether the PA was forged, which would then determine the liability of D1;

(ii) whether D2 was a party to the fraud and also negligent in the execution of his duties in the transfers from Madhu to Kannan and thereafter from Kannan to D3;

(iii) whether Kannan’s title was defeasible by virtue of s. 340(2) of the NLC;

(iv) whether D3 was a subsequent purchaser and entitled to the protection conferred by the proviso to s. 340(3) of the NLC;

whether D4 was in breach of its statutory duties and common law duties; and

(vi) the appropriate reliefs consequent upon a finding of liability against the defendants. S/N 8/4j7kfF0EqaoeOe5VnbAQ Analysis and decision of this court [27] In weighing the evidence two principles were considered. The first is with respect to the burden of proof. It is trite law that a plaintiff bears the burden of proof on a balance of probabilities. This principle was well enunciated in the Federal Court case of Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697). If on the evidence, the Plaintiff succeeds in establishing a prima facie case, the burden then shifts to the Defendants to rebut the case against them by credible evidence in an attempt to tilt the balance in their favour. [28] The second principle to bear in mind is that the standard of proof for fraud and forgery in a civil case has now been conclusively settled by the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1. It is on a balance of probabilities. Whether the PA was forged and the liability of D1 [29] The indisputable evidence is that D1 used the PA to effect the transfer of Madhu’s land to Kannan. The Plaintiff contends that Madhu did not execute any PA and the PA was forged. [30] The validity of the PA then becomes a vital issue that calls for a specific finding to be made by this court. I find it to be forged for the following reasons. S/N 8/4j7kfF0EqaoeOe5VnbAQ [31] In support of her claim of forgery, the Plaintiff adduced evidence of Madhu’s signature. The signature of Madhu in the Form 14A evidencing the purchase of the said land from one Kathamuthu a/l Velayutham way back in 1993, was referred to. Madhu’s signature therein was compared to Madhu’s purported signature on the PA. [32] A visual examination of the Madhu’s signature on the 1993 Form 14A shows it to be distinctly different from the one on the PA. I am of the view that the court is entitled to undertake a comparison of both signatures to conclude whether the signature on the PA is genuine or otherwise. [33] On this issue, I find much guidance from the judgment of Gopal Sri Ram JCA (as he then was) in Siaw Kim Seong v Siew Swee Yin

& Anor [2009] 1 MLJ 349 at 355 where he held, But in this case you do not have to be an expert to see for yourself that the signature supposed to be of the plaintiff appearing on the memorandum of transfer and the assignment do not match even upon a cursory visual examination. In fact the signature said to be that of the plaintiff on the assignment is manifestly different from that appearing on the memorandum of transfer. And both signatures are wholly different from the plaintiff’s admitted signature appearing on the agreement he had with Chung. In our judgment, the learned judge could have — and on the facts of this case he should have — acted under s 73(1) of the Evidence Act 1950 and made the comparison himself. That section provides: 73(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the S/N 8/4j7kfF0EqaoeOe5VnbAQ satisfaction of the court to have been written or made by that person, may be compared by a witness or by the court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. Had the judge undertaken such an examination he would have concluded, even without the aid of an expert, that the signatures appearing on the assignment and the transfer were plain and undisguised forgeries. And, in the present instance, he was clearly assisted by the evidence of the expert in coming to a conclusion on this part of the case. As observed by RR Jain J in Satish Jayantilal Shah v Pankaj Mashruwala [1996] Cri LJ 3099: It is true that the court cannot be an expert and base its conclusions merely on comparison of signatures by itself. But it can definitely compare the signatures in light of other admitted evidence on record. In this case, I have gone through the judgement and nothing can be found that the court by becoming an expert and comparing signatures has arrived at any particular conclusion. The court has not made any observation like an expert’s opinion. The court has not at all based its finding on such evidence and, therefore, this contention has also no force in the eyes of law. Under the law the court has power to compare signatures/handwriting, strengthening its finding based on other cogent material and evidence on record. Therefore, there is nothing wrong if handwritings are compared to strength its finding. So, in the present case, the judge ought to have acted on the totality of the evidence relating to the issue of forgery and then compared the signatures. Had he done so, he would — as any reasonable tribunal similarly circumstanced would — have come to the conclusion that the instrument of transfer was a forgery. S/N 8/4j7kfF0EqaoeOe5VnbAQ [34] D3 contends that evidence of handwriting must be adduced by an expert. In the absence of expert evidence on the matter as in this case, the Plaintiff’s allegation of forgery is not proved. [35] In my view, whilst an expert’s evidence would be useful in matters relating to the authenticity of the signature, his opinion evidence merely serves to assist the court in forming its opinion on disputed issues. It is to be used by the court for the purpose of assisting rather than compelling the formulation of judgments. His findings and his basis in arriving at this conclusion must still be evaluated to determine its probative value. Ultimately the court is to come to its own opinion (See: Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212, Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61). [36] Therefore the fact that no expert evidence was called does disentitle the court from arriving at an opinion on the authenticity of the signature. [37] In defence of the allegation of forgery, D3 pleads and takes the position that the PA is valid. (See: paragraph 9.5 of the Defence). It is trite law that the burden of proof lies on the person who asserts the existence of a fact. (section 101 of the Evidence Act 1950). Apart from the assertion in the pleading, there was no evidence put forth by D3 in support of its contention that the PA is genuine. [38] The authentication of the PA was before a Commissioner for Oaths, one Saidina Amin b. Haji Hussin. On the face of it, it would appear to have complied with the provisions of s.3 of the Powers S/N 8/4j7kfF0EqaoeOe5VnbAQ of Attorney Act, 1949. Therefore, to prove its validity, the evidence of Saidina Amin would have been of assistance especially on the matter of Madhu’s signature. It is apparent that no attempts were made to call the said Commissioner for Oaths as he was not even in the list of witnesses to be called for the trial. [39] Apart from finding that Madhu’s signature on the Form 14A and the PA is noticeably different by comparing both signatures, I have also considered the oral testimony of the Plaintiff that she was certain that the signature on the PA was not that of Madhu’s. The Plaintiff testified that she was familiar with her husband’s signature. She was shown the PA which appears in the Bundle of Documents marked as B2 (13-17). She stated emphatically that it was not his signature. [40] Having observed her in the course of giving evidence, I have no reason to doubt the credibility of her evidence on the matter. [41] The fact of forgery is also fortified by other questionable evidence surrounding the creation of the PA. [42] A power of attorney is only valid after it is deposited in court. Until it is deposited in the manner provided for in the Powers of Attorney Act 1949, the donee cannot act as the attorney in respect of the matters stipulated in the power of attorney instrument. Section 4 provides, S/N 8/4j7kfF0EqaoeOe5VnbAQ Deposit of power of attorney

(1) Except as hereinafter provided no instrument purporting to create a power of attorney shall, after the commencement of this Act, have any validity to create such power within *Peninsular Malaysia until—

a true copy of the said instrument duly compared therewith and marked by the Senior Assistant Registrar with the words “true copy”; or

where the original instrument is deposited in the registry of the Supreme Court in Singapore, an office copy of such instrument, has been deposited in the office of a Senior Assistant Registrar [43] Although the PA was purportedly signed by Madhu on 19.4.1996, it was not stamped and deposited in court until 18.4.2001. It is surprising that D1 would have allowed such a considerable length of time to elapse after Madhu allegedly executed the PA. [44] The PA was to nominate and appoint D1 as Madhu’s attorney. Having been given power by Madhu to act for him, D1 took some his time to perfect the authorization by depositing in court some 5 years later. I do not think it to be a mere coincidence that it was deposited in court on a date after Madhu’s death. It would not be far-fetched to infer that it was done to overcome any obstacle which may be caused by D1’s use of the forged PA. [45] D1 executed the Form 14A as the attorney of Madhu in the sale of the said land to Kannan. In stating the particulars of Madhu therein, Madhu’s IC no. was stated as 560312-10-5303. I take judicial S/N 8/4j7kfF0EqaoeOe5VnbAQ notice that new IC nos. given by the National Registration Department are stated in this manner. However, on the PA, only Madhu’s old IC no. of 4771658 was stated. As the holder of the PA, the particulars as to the vendor on Form 14A must have come from D1. [46] After this suit was filed, the Plaintiff’s solicitors wrote to the National Registration Department to enquire about the new IC no. The department responded to state that “berdasarkan rekod di Jabatan Pendaftaran Negara, kad pengenalan bernombor 560312-10-5303 atas nama Madhu a/l K.V Dharan adalah tidak wujud dan tidak pernah dikeluarkan oleh JPN.” An officer of the department (PW4) was called to testify for the Plaintiff. He categorically stated in his evidence that the said number was non-existent and was never issued to anyone. The records of the department showed the new IC no. of Madhu to replace his old IC no. of 4771658, was 550403- 10-6058. This is different from what was stated in the Form 14A. [47] Upon considering the totality of the evidence relating to the PA and the circumstances in which the PA was used, I have serious doubts as to the authenticity of it. It can only lead to one conclusion, that it was not executed by Madhu, but was forged. [48] Consequently, I find that D1 was complicit to the fraudulent transfer to Kannan, using a forged PA. S/N 8/4j7kfF0EqaoeOe5VnbAQ Whether fraud and negligence is established against D2 [49] The Plaintiff contends that D2 was both negligent and a party to the fraud in handling the transfers from Madhu to Kannan and subsequently from Kannan to D3. D2 is an advocate and solicitor practicing under the name of Tetuan T. Lall & Associates. I find the contention to have merit on the evidence. [50] I shall deal with the transfer from Madhu to Kannan first. D2’s signature appears on the Form 14A dated 6.6.2008. In testifying in his case, D2 explained that his role in the transfer of the said land was merely to witness to the signature of D1 and the thumbprint of Kannan. He did not prepare the Form 14A as it was already prepared when it was brought to him by D1. D1 came to his office bearing the PA and the Form 14A. Kannan was also present at the material time. [51] He stated that he checked the IC of both D1 and Kannan before attesting to the signature and thumb print respectively. Apart from the act of attestation, he had no other role in the Form 14A. [52] The denial of D2 in any role in the Form 14A other than to attest the signature and thumbprint is but an attempt to disavow any part played in the preparation of the Form 14A. I find his denial flies in the face of the documentary evidence. [53] (B2-18) is Form A as provided for in the 14th Schedule in the NLC, used in the presentation of the Form 14A for registration. The document adduced by the land office show that on 2.9.2008, Form S/N 8/4j7kfF0EqaoeOe5VnbAQ 14A was presented by the firm of T. Lall & Associates at the Petaling Land Office vide presentation no. 5749/2008. [54] However, D2 flatly denied any knowledge as to Form 14A. There is no conceivable reason to present the Form 14A if he was merely performing the function of witnessing a signature and thumbprint. I In the face of this documentary evidence, his denial of any knowledge as to the presentation of Form 14A at the land office cannot be believed. He was more involved in the preparation of Form 14A than he made himself out to be. [55] In cross, he was questioned as to several initials and the rubber stamp of T. Lall & Associates appearing on the Form 14A at various parts therein. The first initial was found at the amendment to Madhu’s name. When asked as to the amendment, he recalled it was D1 who made the amendment. The amendment was made when he found Madhu’s name on the PA did not match that stated in the Form 14A. On being questioned further, he admitted having initialed and appended the rubber stamp to the amendment. I find that it made no sense for D2 to initial the amendment unless he personally corrected the name of Madhu. [56] To further test his veracity, the Plaintiff’s counsel questioned him on the initials and rubber stamp of his firm which also appear on another portion of Form 14A stating the particulars of the title to the said land. He denied any knowledge of the initials and rubber stamp. However, when pressed further, he stated that he was not able to remember. He even went so far as to suggest that somebody could have made a rubber stamp of his firm, and S/N 8/4j7kfF0EqaoeOe5VnbAQ stamped the Form 14A. I find his evidence both incredulous and unbelievable. There is no plausible explanation for the initials and rubber stamp of D2’s firm to be there other than it was affixed by him. Again, I find his role in the Form 14A was more than to merely witness D1’s signature and Kannan’s thumb print. [57] D2’s evidence in court was also unsatisfactory in other aspects. In cross examination, he stated that he his firm did not open a file as his role was merely to attest the signature and thumb print of D1 and Kannan. He changed his version subsequently when he was questioned as to the police investigation involving said land. He eventually conceded that he had an office file containing a copy of the PA which he handed over to the police. [58] D2 also stated that he checked Madhu’s name as stated in the PA and the Form 14A. Having done so it is impossible not to have spotted a glaring discrepancy in the IC no. It could not have missed his attention that the IC no. of Madhu in both documents did not match. Unlike the amendment to Madhu’s name, no attempts to amend the IC no. were made. I can only surmise that D2 was either willfully blind or negligent in failing to note what was glaringly obvious. In any event, this failure on his part facilitated the fraudulent transfer by D1 to Kannan, and the registration in Kannan’s name. [59] Soon after Kannan became the registered proprietor of the said land, he sold the land to D3. D2 acted for Kannan in respect of this sale. In relating his role in the subsequent sale, I find his evidence defies belief. S/N 8/4j7kfF0EqaoeOe5VnbAQ [60] There is an obvious lack of suspicion as to the subsequent sale. The fact that Kannan entered into another sale soon after he acquired the said land for an amount more than twice he paid for, ought to be red flags to a conveyancing lawyer. The brief period of ownership and the haste in which the said land ought to have raised some suspicion as to the genuineness of the Kannan’s purchase from Madhu. [61] The only inference that can account for the unusual circumstances is that D2 had knowledge of the fraudulent transactions. Not only was he aware of the fraud, the evidence showed he knowingly facilitated the fraud. His evidence in defence is but a poor attempt at making a case of a routine sale and purchase of property. [62] In defence of the suit against him, it was submitted that the cause of action premised on negligence is without merit as D2 owed no duty of care to the Plaintiff. Citing authorities on this point, D2 contends that the duty of care is owed by a solicitor towards his client only. The Plaintiff was not his client at the material time. [63] The submission of counsel may well warrant further consideration if the suit is one wholly founded on negligence. However, the Plaintiff’s suit against D2 is premised on both negligence and fraud. Having made a finding as to fraud, the argument as to whether a duty of care exists on the part of D2 is unnecessary to be considered. S/N 8/4j7kfF0EqaoeOe5VnbAQ whether the title of D3 is indefeasible [64] At the material time when Kannan sold the said land to D3, he was 94 years of age. There is no cogent evidence as to his existence safe for D2’s evidence that he was present to execute both Forms 14A. Upon the purchase from Madhu and the registration to his name, Kannan proceeded the said land to sell to D3. [65] D3 relies heavily on the fact of the subsequent purchase from Kannan, and the provisions of s. 340 of the NLC, in particular the proviso to s. 340(3). [66] Before I proceed to discuss the application of the relevant provisions to the factual matrix here, it would be pertinent to set out the basic principles in relation thereto first. [67] S. 340 of the National Land Code confers indefeasibility of title to a registered proprietor, as stated in the provisions below, Registration to confer indefeasible title or interest, except in certain circumstances

(1) 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. [68] However, there are exceptions to the indefeasibility of title is provided for in paragraph (2) reproduced below, S/N 8/4j7kfF0EqaoeOe5VnbAQ

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. [69] Thus, the concept of indefeasibility of title is therefore not absolute and can be successfully challenged if a plaintiff can bring his case within one of the vitiating circumstances set out above. (See: Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014]; ; He-Con Sdn Bhd v Bulyah Ishak & Anor [2020] 4 MLJ 662; See Leong Chye @ Sze Leong Chye & Anor v United Overseas Bank (M) Bhd and another appeal [2021] 5 MLJ 759). The circumstances can be summarised as fraud, misrepresentation, forgery, insufficient instrument or unlawful acquisition. [70] From the findings stated in the earlier portion of this judgment, it must be concluded that although Kannan became the registered proprietor on 2.9.2008, his title is not indefeasible as the registration was obtained through a forged PA, thus triggering the application of s. 340(2)(b). S/N 8/4j7kfF0EqaoeOe5VnbAQ [71] The fact that an immediate purchaser may have acquired the title in good faith and for valuable consideration is irrelevant if any of the above circumstances is shown to exist. This principle of deferred indefeasibility applicable in Malaysia has now been affirmed by the Federal Court case of Tan Ying Hon v Tan Sian San & Ors [2010] 2 MLJ 1. [72] However, a subsequent purchaser who acquires a defeasible title in good faith and who gives valuable consideration for the title may yet gain the protection of the proviso to s. 340(3), the provision of which reads,

Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in subsection (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 subsection 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. [73] It leaves me now to examine D3’s position bearing in mind the statutory provisions and the decided authorities. S/N 8/4j7kfF0EqaoeOe5VnbAQ [74] As Kannan’s title is defeasible, the title gained by D3 thereafter is also liable to set aside by virtue of s.340(3) unless he can show that he acquired the said land in good faith and for valuable consideration. The law applicable is the proviso to s.340(3). (See: T Sivam a/l Tharamalingam (as representative/administrator for the estate of Nagamuthu a/l Periasamy, deceased) v Public Bank Bhd [2018] 5 MLJ 711 FC). This is the position taken by D3; that notwithstanding the defectiveness of Kannan’s title The registration in its name is immune from attack as it is entitled to the protection afforded by the proviso. [75] In Setiakon Engineering Sdn Bhd. v Mak Yan Tai & Anor [2024] 5 MLJ 460, the Federal Court held, [107] To reiterate, where it involves the purchase of land by a subsequent purchaser, it is only where the title to the land had been acquired in good faith and for valuable consideration that the shield of indefeasibility is accorded to the title. Otherwise the default position under s 340(3) remains that the title is defeasible and liable to be set aside in the hands of the subsequent purchaser. [108] The quantum of proof required of the subsequent purchaser to discharge his burden of proving good faith and for valuable consideration in the purchase of the land is proof on the balance of probabilities (as opposed to the heavier burden of proving a case beyond reasonable doubt). Lord Denning in the oft-cited quote in Miller v Minister of Pensions [1947] 2 All ER 372 explained the requirement in the following terms: If the evidence is such that the tribunal can say ‘we think it is more probable than not’ the burden is discharged but if the probabilities are equal, it is not. (Emphasis added. S/N 8/4j7kfF0EqaoeOe5VnbAQ [76] To reiterate, the 2 essential ingredients D3 is required to prove is that it had acted in good faith and had given valuable consideration for the said land. If it fails, then its title can be impeached and that is what the Plaintiff seeks to do in this case. [77] The onus to prove that one is a purchaser in good faith lies on the person asserting it. (See: Teoh Kim Heng v Tan Ong Ban [2014] 6 MLJ 289 CA, Yap Ham Seow v Fatimawati bt Ismail & Ors [2014] 1 MLJ 645). [78] As to what constitutes good faith, it was enunciated in the Federal Court case of T Sivam a/l Tharamalingam (supra) as follows, As we have seen earlier, the meaning of ‘good faith’ is a matter of importance in this case. What does the term mean? ‘Good faith’ is a weighty phrase. It implies, according to Concise Oxford English Dictionary (11th Ed) honesty or sincerity of intention. According to the authors of NS Bindra’s Interpretation of Statutes (10th Ed) p 1636, ‘good faith’ includes due inquiry and implies not only an upright mental attitude, and clear conscience of a person, but also the doing of an act, showing that ordinary prudence has been exercised according to the standards of a reasonable person. According to the authors, ‘good faith’ contemplates an honest effort to ascertain the facts upon which exercise of the power must rest; it must, therefore, be summed up as ‘an honest determination from ascertained facts’. …. [46] In our opinion, the existence of good faith or otherwise would depend on the particular facts of each case; it is a question of fact in each case for the court to determine on the evidence. The overriding consideration is ‘the particular circumstances of each case’ (see Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen & Ors [2018] 5 MLJ 711 at 729 [1998] 1 MLJ 465 and State Tailor Sdn Bhd v Nallapan [2005] S/N 8/4j7kfF0EqaoeOe5VnbAQ 2 MLJ 589). This was shown in a number of cases by which justice was done in a range of factual circumstances. [48] … a purchaser who is not guilty of any fraud but who has knowledge that his predecessor’s title or interest is tainted with fraud is not entitled to the benefit of the proviso under s 340(3). In the circumstance of that case, it was held that mere knowledge of the fraud would suffice to negate good faith. … [50] … the law recognises and enforces an overriding rule that in making and carrying out conveyancing transaction that commonly deals with a number of transactions and dealings to transfer real property, parties should act in good faith. Good faith, therefore, does not simply mean absence of fraud, deceit or dishonesty; it also requires acting honestly, reasonably or fairly (see Stuart v Kingston [1923] HCA 17; [1923] 32 CLR 309 and Pekan Nenas Industries Sdn Bhd). The elements of good faith are not closed; it must in all cases depend upon the circumstances. It is not enough for a purchaser to merely show absence of fraud, deceit or dishonesty; knowledge of a dispute as to the ownership of property and knowledge of fraud allegation, for example, could vitiate good faith. [79] In Au Meng Nam & Anor v Ung Yak Chew & Ors [2007] 5 MLJ 136 where in holding that a purchaser in good faith did not include a purchaser who was careless or who had been negligent, Raus Sharif JCA (as His Lordship then was) the element of good faith was explained: Further, had the evidence adduced in this case been properly considered and assessed by the learned trial judge, a reasonable inference would be that the first defendant knew at the time he bought the said land, the purchase price was below the market value. But he S/N 8/4j7kfF0EqaoeOe5VnbAQ wanted to take advantage of the low price. He did a fast track to complete the purchase. In doing so he disregarded his obligations to investigate the alleged proprietors and the genuineness of the documents. My respectful view is that a purchaser in good faith does not include a purchaser who is careless or who had been negligent. In Oliver v Hinton [1899] Ch D 264 Lindley MR said: To allow a purchaser who acts with such gross carelessness to deprive a prior innocent mortgagee of her priority would be the greatest injustice. So too here. The first defendant is under the obligation to investigate properly all matters relating to the sale of the said land and not to just blindly accept what was claimed by the ‘vendors’ as correct and genuine. When he failed to take the ordinary precautions which ought to be taken in such a matter he is not entitled to the protection of the court. [80] On the evidence, I do not find D3 to have discharged the burden of proving on a balance of probabilities that its case falls within the proviso to s. 340 (3). My reasons for so finding are as follows. [81] There are features in the transaction from Kannan to D3 which raises doubts as to the bona fides of the purchase by D3. A director of D3 (DW2) testified on its behalf. He stated that he instructed his solicitor to conduct a search on 11.9.2008 on the title prior to the purchase. The search document was adduced in evidence. [82] The information therein clearly showed Kannan became the registered proprietor on 2.9.2008. It could not have escaped notice that Kannan intended to sell the said land shortly after his name S/N 8/4j7kfF0EqaoeOe5VnbAQ was registered as the proprietor. This ought to have rung alarm bells to DW3 being a director of D3. Surely, he ought to have been put on notice as to the unusual circumstances. The fact that the search was done on 11.9.2008 showed that D3 must have been interested in the purchase of it even prior to 11.9.2008, which is shortly after Kannan became a registered proprietor. [83] It would also appear that D3 was in a haste to purchase the land. The contents of the letter from Anand & Associates dated 15.9.2008 is significant. [84] It reads, S/N 8/4j7kfF0EqaoeOe5VnbAQ [85] The contents put in question the bona fides of D3. Firstly, D3 ignored the brief period of ownership of Kannan. Secondly, the letter stated that RM 7,000.00 had already been paid as earnest S/N 8/4j7kfF0EqaoeOe5VnbAQ deposit. Although no details as to when the payment was made, it was already paid by the time the letter was written. However, when questioned as to this payment by Plaintiff’s counsel, DW2 categorically denied making the payment. His own evidence clearly contradicted his own solicitor’s letter. However, he offered no explanation as to why his solicitor’s letter was worded in that manner. In the light of his own solicitor’s letter, his denial is inexplicable. [86] Counsel for the Plaintiff proffered a reason for the payment of RM 7,000.00 when he cross examined DW2. It was suggested that RM 7,000.00 was in fact payment for the stamp duty incurred for the transfer from D1 to Kannan. The relevant Form 14A shows that stamp duty for RM 7,000.00 was paid. Although the suggestion was denied by DW2, I would not dismiss it entirely as being far-fetched. There appears to be some basis for the possibility. [87] Firstly, I agree with counsel for the Plaintiff that the amount of RM 7,000.00 paid as earnest deposit is an odd figure as it represents 1.272727% of the purchase price of RM 550,000.00. Secondly, the documentary evidence shows that the full purchase price of RM 550,000.00 was paid to D2 by way of 2 cheques of amounts RM 110,000.00 and RM 440,000.00 without taking into account the RM 7,000.00 which had been paid. In the circumstances, it appears to be more than a mere coincidence that the amount for earnest deposit and stamp duty are the same. S/N 8/4j7kfF0EqaoeOe5VnbAQ [88] Although the sale and purchase agreement between Kannan and D3 was only executed on 25.9.2008, the payment of RM 110,000.00 being 20% of the purchase price was paid earlier on 18.9.2008, a week prior. This does not accord with the usual practice involving immovable properties. From D3’s conduct, there appears to me to be a undue speed and haste in attempting to secure the purchase. [89] Whilst giving his testimony, DW2 was asked by the court if he had sight of a copy of the title. He stated affirmatively that he had never seen the title prior to the execution of the agreement nor the Form 14A. His answer was incredulous and not consonant with that of a prudent purchaser. It only served to fortify the inference that there was a lack of bona fides. [90] Upon considering the evidence, I find that the presence of these disquieting features in the transaction involving Kannan and D3, support the inference that the purchase by D3 was not made in good faith. [91] The other requisite D3 is required to prove viz a viz the proviso to s.340(3) is that it gave valuable consideration for the said land. It is not enough to give consideration, it must be adequate and in keeping with the property’s value. [92] The only evidence adduced on the adequacy of the consideration is the oral evidence of DW2. He stated that D3 had purchased similar properties in the vicinity of the said land. However, no further details were given as to the price these properties were S/N 8/4j7kfF0EqaoeOe5VnbAQ purchased. I consider his evidence to be self-serving statements, unsupported with credible evidence. No valuation report was adduced in evidence to convince the court that valuable consideration was furnished. [93] DW3 attempted to support his assertion that RM 550,000.00 was the prevailing market value then by referring to the amount of stamp duty paid. RM 10,500.00 was adjudicated as stamp duty on the purchase price of RM 550,000.00. I am of the view that adjudication of stamp duty alone is not conclusive of the market value of the said land. [94] In the circumstances, I find D3 to have failed to discharge the burden on a balance of probabilities, of proving it is entitled to the shield of indefeasibility pursuant to the proviso in s.340(3). Hence, it cannot get a better title than Kannan’s defeasible title, and its title is liable to be set aside. Liability of D4 [95] The duty imposed on D4 had been succinctly stated in Pendaftar Hakmilik Negeri Selangor v Caesius Development Sdn Bhd & Ors and another appeal [2020] MLJU 25 as follows, As a keeper of all land titles, for a particular State (in this case Selangor) it is reasonable to impose upon the land office, including the 7th defendant, a duty of care towards all land owners, to ensure that the landowners’ interests are well protected and safeguarded. The land office, including the 7th defendant, has to ensure that the law and S/N 8/4j7kfF0EqaoeOe5VnbAQ proceedings are followed strictly, failing which it can cause the landowners losing their lands. [96] The Plaintiff’s case of breach of duties against D4 is that D4 failed to properly ascertain that the instruments presented for transfer were in order prior to registration of the title in the names of Kannan and subsequently, D3. She contend that firstly, D4 ought to have noted that Madhu’s IC in the Form 14A did not match the PA when it presented for registration. Secondly, a computerized title was issued without any notification to Madhu, and thirdly, the caveat entered by her was removed without her knowledge. [97] DW3, the assistant district officer in the Petaling land office testified for D4. I find her evidence was not in the least helpful as she assumed office only in March 2021. [98] There was no credible answer given as to how the transfer from Madh to Kannan could have been registered given the discrepancy in the IC no. It is not sufficient to have the PA registered with the land office and to allow dealings to be registered on the basis of a PA. I am of the view that the whilst it is not possible for the land office to verify the truth of the contents of documents, but where the documents show a discrepancy they are duty bound to enquire further. Anything short of that is negligent. [99] As for the new title, DW2 in her evidence she stated that the records of the land office showed that a computerized title to the said land was issued in place of the old manual title in 2001, with the coming into force of the provisions on computerized system of S/N 8/4j7kfF0EqaoeOe5VnbAQ registration. (See: s. 8(5) and (9)(c) of the Fourteenth Schedule of the NLC). [100] The pertinent provisions are set out below,

Conversion to computer register document of title

The Registrar may on his own accord convert any existing issue document of title without there being an application made under subparagraph (4). …

Upon the conversion of an existing document of title to a computer printed document of title under the preceding subparagraphs, the Registrar shall—

make two copies of the plan from the existing register document of title, where in the case of final title, from the copy as approved by the Director of Survey and Mapping under paragraph 396(1)(e), in Form B1 or B2, as the case may be, and shall be duly authenticated under his hand and seal;

endorse across the face of the existing register document of title to the effect that the title in question has been converted to the computer printed register document of title; and on the making of such endorsement the existing register document of title shall be deemed to have been cancelled

call upon the proprietor to take delivery of the computer printed issue document of title and the plan of the land; provided that where the conversion is effected by the Registrar on his own accord under subparagraph (5), he shall not be obliged to deliver to the proprietor the computer printed issue document of title unless the existing issue document of title is produced to him; and S/N 8/4j7kfF0EqaoeOe5VnbAQ

cancel and destroy the existing document of title when submitted to him. [101] Premised on the above provisions, senior federal counsel submitted that a Registrar of Titles can on his own accord convert a manual title to a computerized one without being obliged to deliver the computerized title to the Plaintiff. This however does not answer the question whether a title was produced to effect the transfer from Madhu to Kannan. DW3 had no answers as there were no records in the file. [102] A presentation of Form 14A for registration must be accompanied by a document of title, be it a manual title or a computerized one. There is also the unanswered question as to whom the title was given to after the registration to Kannan was effected. Again, DW3 could not produce any such records from the land office. [103] PW3 from the firm of A. Gnanarajah & Co, produced the original title in court when she testified. The original title remained with the firm after Madhu died for the preparation of the petition for letters of administration. [104] It is my view, if title had by then been converted to a computerized title, the Registrar is obliged to take precautions to ensure that the manual title is surrendered before allowing any dealing to take place using the computerized title. S/N 8/4j7kfF0EqaoeOe5VnbAQ [105] It is no defence to state that D4 performed his function of registration upon being satisfied that all documents presented were in order. In the light of paucity of documents, there is nothing to support such an assertion. D4’s contention is but a bare defence. This is particularly so where the Plaintiff has succeeded in establishing on the available evidence, there were obvious irregularities that called for an explanation. [106] The defence also relies on s. 22 of the NLC to contend that D4 the performance of his duties under the NLC, is protected. The short answer to this is where he acted in breach of his statutory duty and when negligence is shown on his part while performing his duties, he cannot be said to be held to be acting in good faith. Consequently, he is disqualified from the protection of section 22 of the NLC. (See: Pendaftar Hakmilik Pejabat Pendaftaran Wilayah Persekutuan Kuala Lumpur & Anor v Poh Yang Hong [2016] 6 MLJ 413 FC, Pushpaleela a/p R. Selvarajah & Anor v Rajamani d/o Mengappa Chettiar & Other appeals [2019] CLJ 441 FC). [107] Another failure raised by the Plaintiff is with respect to the removal of her caveat entered on 27.1.2004. A private caveat is valid for 6 years unless it is withdrawn or extended. (See: section 328 of the NLC). [108] However, the title shows 2 endorsements stating “Cadangan Pemotongan Kaveat Persendirian ke atas Kaveat Persendirian atas Tanah No. Pers 194/2004”. These entries correlate to the presentation of the Plaintiff’s caveat which is No. 194/2004. These S/N 8/4j7kfF0EqaoeOe5VnbAQ endorsements must have arisen as a result of an application for removal of caveat. (See: s.326(1A) of NLC). If there is such an application, then the Plaintiff must be served with a notice of intended removal. There is no evidence pertaining to this crucial evidence as DW3 testifed that she was not in possession of such information. As matters stand, there is no credible evidence in rebuttal. [109] In the circumstances, upon considering the available evidence in its entirety, I find the Plaintiff to have succeeded in proving a breach of duty on the part of D4. whether Plaintiff’s action is time-barred [110] For the sake of completeness, I shall deal with one other issue raised in defence by D3. It contends that the Plaintiff ought to have challenged the validity of the PA and had she done so, her case would have been defeated by limitation. I find the argument to be totally devoid of merit. [111] There is no necessity for the Plaintiff to first challenge the validity of the PA. The Plaintiff is seeking to recover Madhu’s land for the benefit of his estate in view of her contention that D3 did not obtain a good title from the defeasible title of Kannan. [112] Section 12 of the Limitation Act 1953 stipulates a period of 12 years to commence action for recovery of land and where fraud is involved, limitation is postponed until the discovery of the fraud by the Plaintiff. It is in evidence that the fraud was discovered in 2015 S/N 8/4j7kfF0EqaoeOe5VnbAQ when the PW2 came to the country to do a search. Therefore, having filed the suit in 2020, she was well within time. Even if the cause of action accrued from the time of registration of title i.e 2.9.2008 in Kannan’s case and 28.11.2008 in D3’s case, the Plaintiff is still within time having filed the suit on 19.3.2020. The appropriate reliefs [113] Premised on my findings as aforesaid, I find the Plaintiff to have succeeded establishing that the title presently registered in the name D3 must be set aside. [114] In addition to the recovery of the land, the Plaintiff also seeks damages against the defendants. The first category of damages the Plaintiff seeks is aggravated damages. Aggravated damages are subject to proof, on the evidence. Aggravated damages are awarded where a defendant’s tortious act was done in a manner which injured the plaintiff’s feelings of pride and dignity, causing humiliation and distress. (See: Rookes v Barnard [1964] AC 1129). [115] There is no such evidence adduced at the trial which would bring the Plaintiff’s case within such a situation. The cases cited to persuade this court to grant aggravated damages do not apply to factual matrix before me. [116] As for general damages, there is no evidence adduced as to the loss occasioned by the wrongful acts of the defendants, especially as the Plaintiff now succeeds in recovering Madhu’s land. S/N 8/4j7kfF0EqaoeOe5VnbAQ Conclusion [117] In the result, and premised on the findings as afore stated, the Plaintiff’s claim is allowed. Consequently I will allow the following reliefs prayed for in the Statement of Claim, subject to some modifications as follows:-

a declaration that the Plaintiff as the administrator of the estate of Madhu a/l K.V Dharan is the proprietor of the land now held under PM 1834, Lot 7501, Tempat Bukit Cherakah, Mukim Bukit Raja, Daerah Petaling, Selangor Darul Ehsan;

(ii) a declaration that the title PM 1834, Lot 7501, Tempat Bukit Cherakah, Mukim Bukit Raja, Daerah Petaling, Selangor Darul Ehsan issued to the 3rd Defendant is null and void;

(iii) a declaration that all interest and right of the 3rd Defendant to land held under PM 1834, Lot 7501, Tempat Bukit Cherakah, Mukim Bukit Raja, Daerah Petaling, Selangor Darul Ehsan be set aside;

(iv) an order that the 4th Defendant do cancel the registration of transfer made vide Presentation No. 5749/2008 and Presentation No. 8286/2008;

an order that the 4th Defendant do register the Plaintiff as the administrator of the estate of Madhu a/l K.V Kannan, as the lawful proprietor of the land held under title PM 1834, Lot 7501, Tempat Bukit Cherakah, Mukim Bukit Raja, Daerah S/N 8/4j7kfF0EqaoeOe5VnbAQ Petaling, Selangor Darul Ehsan within 60 days of the order herein;

(vi) an order that the 3rd Defendant do surrender to the 4th Defendant the document of title to PM 1834, Lot 7501, Tempat Bukit Cherakah, Mukim Bukit Raja, Daerah Petaling, Selangor Darul Ehsan within 14 days of the order herein, failing which the 4th Defendant shall be allowed to take all such necessary steps to give effect to the registration of the transfer to the Plaintiff;

(vii) an order that the 3rd Defendant execute all documents to effect the transfer of the land held under PM 1834, Lot 7501, Tempat Bukit Cherakah, Mukim Bukit Raja, Daerah Petaling, Selangor Darul Ehsan to the Plaintiff and surrender the same to the Plaintiff within 14 days of the order herein, failing which the Registrar of the High Court shall be authorized to do the same on behalf of the 3rd Defendant;

(viii) the 2nd Defendant to pay costs of RM 45,000.00 to the Plaintiff subject to allocatur;

(ix) the 3rd Defendant to pay costs of RM 45,000.00 to the Plaintiff subject to allocatur; and S/N 8/4j7kfF0EqaoeOe5VnbAQ

the 4th Defendant to pay costs of RM 10,000.00 to the Plaintiff subject to allocatur. Dated : 10th February 2025 -sgd- ....………………..….... Alice Loke Yee Ching Judge High Court in Malaya at Shah Alam Counsel for the Plaintiff: Mr M. Manoharan (Ms. Nur Syamimi Adriana binti Shahimi with him) Messrs. M. Manoharan & Co Counsel for 2nd Defendant: Mr. R. Sivanesan Messrs. Mann & Associates Counsel for 3rd Defendant: Mr Gary Au (Mr. Tan Sack Sen and Mr. Ng Qing Rui together with him) Messrs. Yee How & Tan S/N 8/4j7kfF0EqaoeOe5VnbAQ Counsel for 4th Defendant Puan Siti Radziah binti Kamaruddin, Senior Federal Counsel Selangor State Legal Advisor’s Office S/N 8/4j7kfF0EqaoeOe5VnbAQ