Thevanthran A/L Shanmugam v 1. ) Darshinee A/P Shanmugam (WA-22NCvC-199-03/2021)

DARSHINEE A/P SHANMUGAM

SEGANI A/P GOVINDASAMY (NO. K/P: 590811-10-5950/5587263) ...DEFENDAN-DEFENDAN

This is a civil action commenced by the Plaintiff, Thevanthran A/L Shanmugam, seeking declaratory and consequential reliefs in respect of a property known as HSM 017787, PT 20506, Taman Sri Andalas, Mukim Klang, Selangor ("the Property"). The Plaintiff alleges that the Property was held on trust for him by his late father, Shanmugam A/L Muniasamy ("the Deceased"), notwithstanding that the Deceased remained the registered proprietor until his death on 5 February 2018.

The Defendants are the Deceased's surviving spouse, Segani A/P Govindasamy (2nd Defendant), and their daughter, Darshinee A/P Shanmugam (1st Defendant), who is also the executrix under the Deceased's Will dated 30 December 2014. Under the Will, the Property was bequeathed equally to both Defendants.

The Plaintiff contends that the Will does not apply to the Property because the Deceased was merely a trustee, not the beneficial owner. The Defendants deny the existence of any trust, assert their rights as beneficiaries under the Will, and counterclaim for declarations and repayment of the RHB loan.

A full trial was conducted on 29-30.9.2025 and 13.11.2025, during which the Plaintiff testified as PW1, while the Defendants testified as DW1 and DW2 respectively.

The Plaintiff filed an Amended Writ and Amended Statement of Claim dated 16.4.2021, seeking (among others): . A declaration that the Property was held on trust for him; O. A declaration that the Property does not form part of the Deceased's estate; o An order compelling transfer of the Property to him; O Alternatively, an order compelling the Defendants to purchase the Property at market value.

The Defendants filed a Defence and Counterclaim, denying the trust and asserting that: o The Plaintiff took an RHB loan primarily for his own benefit (to settle his study loan); The Deceased never promised to transfer the Property; The Plaintiff has no beneficial interest; O. The Plaintiff should instead repay all outstanding sums on the RHB loan.

The Deceased purchased and owned the Property, which served as the family home for the Defendants and the Plaintiff during his youth. In 2009, the Deceased faced financial difficulties and was unable to service the HSBC housing loan.

The Plaintiff, who had recently returned from the United Kingdom after completing his studies, obtained an RHB refinancing loan in his own name amounting to RM141,625.80. The RHB loan proceeds were used to: - Redeem the HSBC loan on the Property (approximately RM44,000+); - Settle the Plaintiff's Standard Chartered study loan (approximately RM83,000+).

The Plaintiff asserts that the Deceased requested him to take the RHB loan and promised to transfer the Property to him once the loan was fully paid, thereby creating a verbal trust.

Whereas the Defendants deny any such promise. They maintain that: - The Plaintiff took the RHB loan primarily to settle his own study loan; - The Deceased never declared any trust; - The Property was rightfully included in the estate and bequeathed under the Will.

After the Deceased's death, the 1st Defendant obtained Grant of Probate on 24.9.2020. The Plaintiff did not file any caveat, citation, or challenge to the Will or the probate proceedings.

Negotiations occurred between the Plaintiff and the Defendants' solicitor, Messrs Francis Brigged & Co, regarding the possibility of the Defendants purchasing the Property from the Plaintiff. These negotiations ultimately collapsed, leading to the present suit.

The Plaintiff's case is built on the assertion that the Property was never intended to form part of the Deceased's estate but was instead held on trust by the Deceased for the Plaintiff. According to the Plaintiff, the trust arose in 2009, when the Deceased was facing severe financial difficulties and was unable to service the HSBC housing loan.

The Plaintiff testified that the Deceased approached him for assistance, explaining that the Property was at risk of foreclosure. The Deceased allegedly requested that the Plaintiff obtain a refinancing loan in his own name, promising that the Property would be transferred to the Plaintiff once the loan was fully settled.

The Plaintiff further stated that he agreed to assist only because of this promise, and because the Deceased had earlier failed to honour his commitment to fund the Plaintiff's legal studies in the United Kingdom. The Plaintiff claimed that he had been forced to take a Standard Chartered study loan of RM100,000.00 due to the 2nd Defendant's alleged interference in the Deceased's finances.

The Plaintiff asserted that he regularly remitted funds from the UK to Malaysia for the purpose of servicing the study loan, but that the Deceased and the 2nd Defendant misused the funds, resulting in arrears and a demand letter from Standard Chartered.

This, according to the Plaintiff, formed the backdrop of mistrust and financial strain leading to the 2009 refinancing arrangement.

The Defendants' case is that no trust ever existed, whether express, resulting or constructive. They maintain that the property was always the Deceased's absolute asset, and that the Plaintiff's claim is a belated fabrication designed to seize the Property after the Deceased's death.

The Defendants assert that the Plaintiff's involvement with the RHB refinancing loan was not an act of benevolence, nor was it premised on any promise by the Deceased. Instead, they contend that the Plaintiff sought the refinancing for his own benefit, namely, to obtain funds to settle his personal Standard Chartered study loan, which he had failed to service.

The Defendants emphasise that the Plaintiff's study loan was entirely his own responsibility, guaranteed not by the Deceased but by the Plaintiff's two uncles. They deny any involvement in the loan arrangement and reject the Plaintiff's allegation that the 2nd Defendant misused funds or interfered with the Plaintiff's education.

Sections 101-103 of the Evidence Act 1950 place the burden on the Plaintiff to prove the trust he alleges. The Federal Court in Johara bte Abdul Kadir Marican v Lawrence Lam Kwok Fou [1980] 1 MLRA 385: "[14] He thought, relying on Sime Darby & Co v. Official Assignee AIR [1928] PC 77 and Abrath v. NE Railway Co (1883) 11 QBD 440, per Brett MR at p 452 that it was all a matter of proof and that until and unless the plaintiff had discharged the onus on her to prove her case on a balance of probabilities the burden did not shift to the defendant and no matter if the defendant's case was completely unbelievable, the claim against him must in this circumstance be dismissed. [15] With respect, we agree with this judicial approach. We ourselves have in Wong Chong Chow v. Pan-Malaysian Cement Works Berhad [1980] 1 MLRA 675; [1980] 2 MLJ 75 considered that difficult questions of fact could often be resolved by considering the burden of proof."

A trust requires certainty of intention, certainty of subject matter, and certainty of objects. In Yeong Ah Chee v Lee Chong Hai [1994] & Anor & Other Appeal (1994)1 MLRA 226, held: [27] The 3 essentials of a valid trust are (a), certainty of words (b), certainty of subject and (c), certainty of object"

Thus, in the instant case, the Plaintiff must prove these elements affirmatively. ANALYSIS Whether a trust existed

The Plaintiff produced no written declaration of trust, no memorandum, no letter, no SMS, no WhatsApp, no email, and no contemporaneous note from the Deceased acknowledging that the Property was ever intended to be held on trust for him.

This absence is striking given the seriousness of the alleged arrangement and the Plaintiff's claim that the Deceased "guaranteed" the Property to him.

The Plaintiff's own evidence confirms that the alleged trust was entirely oral, vague and undated. Under cross-examination, when pressed to identify the time and circumstances of the alleged declaration, the Plaintiff conceded: MM: No, no. When, tell us the time? When exactly the trust PW1: It was around 2009, he was verbally telling me that before you undertake the RHB loan, you help me with this one and then, eventually this house is going to be yours. That's what he told me. So, I acted upon his promise.

This lack of specificity is fatal. A trust over land requires certainty of intention and the Plaintiff could not identify when, where, or in what exact words the Deceased allegedly created the trust.

The Plaintiff's narrative is further undermined by the absence of any contemporaneous conduct consistent with a trust. Despite claiming that the Deceased promised the Property to him: The Plaintiff's own conduct throughout the material period is wholly inconsistent with that of a person asserting or believing himself to be the beneficial owner of the Property. In particular:

At no time did the Plaintiff seek or obtain any written acknowledgment from the Deceased confirming the existence of the alleged trust or any intention to divest beneficial ownership in his favour.

The Plaintiff did not insist upon, request, or pursue any transfer of title to himself at the time the RHB refinancing was undertaken, notwithstanding his assertion that the refinancing formed the very basis of the alleged trust arrangement.

The Plaintiff failed to lodge any private caveat or other protective entry on the title to safeguard the purported beneficial interest he now claims, whether during the Deceased's lifetime or after his passing.

The Plaintiff did not communicate to any third party including the RHB Bank, solicitors involved in the refinancing or probate process, or any relative or independent witness that he was the beneficial owner of the Property or that the Deceased was holding it on trust for him.

The Deceased executed a formal Will dated 30.12.2014, five years after the alleged trust. The contents of the Deceased's Wasiat bertarikh 30.12.2014, as exhibited in the Joint Bundle (encl.22, pp. 83-85), provide the clearest and most authoritative evidence of his testamentary intention. In particular:

The Deceased expressly appointed the 1st Defendant as the sole executrix of his estate, thereby entrusting her with full authority to administer and distribute his assets in accordance with the Will. This appointment is wholly inconsistent with the Plaintiff's allegation that the Deceased intended the Property to devolve beneficially upon him.

The Will unequivocally bequeaths the Property to the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Defendants in equal shares, identifying them as the intended beneficiaries of the Property. This express disposition leaves no room for any inference that the Deceased regarded the Plaintiff as having any beneficial entitlement.

The Will contains no reference whatsoever to the Plaintiff as a beneficiary of the Property, nor does it identify him as having any special entitlement, priority, or interest in respect of the Property. The omission is significant given the Plaintiff's assertion that the Property was allegedly promised to him as "contra payment" for refinancing arrangements.

The Will contains no mention of any trust, constructive or otherwise, nor any obligation imposed upon the executrix or beneficiaries to transfer the Property to the Plaintiff. There is no clause, recital, or expression in the Will suggesting that the Deceased considered himself a trustee of the Property for the Plaintiff's benefit.

This Will is the clearest and most authoritative evidence of the Deceased's intention. The Deceased's conduct in executing the Wasiat bertarikh 30.12.2014 is wholly inconsistent with the Plaintiff's allegation that the Property was intended to be held on trust for him. In particular:

The Deceased deliberately executed a formal Will which is directly contrary to the Plaintiff's asserted beneficial entitlement. The Will contains a complete testamentary scheme that leaves no room for the existence of any prior trust in favour of the Plaintiff.

The Deceased expressly appointed the $ 1^{\mathrm{st}} $ Defendant as the executrix of his estate, thereby vesting in her the legal authority to administer and distribute the Property. Such an appointment is inconsistent with any intention that the Property was already beneficially owned by the Plaintiff.

The Deceased bequeathed the Property entirely to the Defendants, identifying them as the sole beneficiaries of the Property in equal shares. This express disposition is fundamentally incompatible with the Plaintiff's claim that the Deceased had divested beneficial ownership to him during his lifetime.

The Defendants' evidence is that the Deceased never informed them of any trust. DW2, who lived with the Deceased for 35 years, testified: "Sepanjang saya hidup dengan Si Mati, Si Mati tidak pernah menyatakan bahawa hartanah tersebut akan diberikan kepada Plaintif."

This is consistent with the Will and inconsistent with the Plaintiff's allegation.

Upon careful evaluation of the oral testimony and the extensive cross-examination of the Plaintiff (PW1), the Court finds that the Plaintiff's narrative suffers from material inconsistencies, chronological impossibilities, and internal contradictions that substantially undermine its reliability. Several aspects of the Plaintiff's evidence were demonstrably incompatible with the documentary record and with his own prior assertions:

Chronological inconsistency regarding alleged misuse of funds

The Plaintiff testified that he was "shocked" in 2004 upon receiving a letter of demand from Standard Chartered and discovering that the Deceased and the 2nd Defendant had allegedly misused monies he remitted from the United Kingdom.

However, under cross-examination, the Plaintiff conceded that the remittance slips he relied upon (B1, pp. 20-25) were from 2006, two years after the alleged "shock". MM: But look at B1 again. So, your story doesn't tally. Look at page 20 to 25 and what was the letter that you're referring to? That you were shocked that your father cheated you? Is it at page 74? Is it page 74 and 75? Is this page 74 and 75 that shocked you that your father has not being paying the money that you have been sending? PW1: Ya, correct. MM: So, I put it to you, Mr Thevanthran, you are lying because this letter is 2004. You are sending your money to your father in 2006. So, you clearly lying Mr Thevanthran that your father had cheated you. You are saying that the money you sent on pages 20-25, But you are referring this one, but I referring to the money I'd sent earlier in 2004. MM: So, where is the evidence that you send the money because here, just now you agreed, this the money that you send and you were shocked after receiving a letter in 2004. Now, doesn't tally. You received a letter in 2004, the money you were sent only in 2006 but your pleading at 8.11 is something else. Agree or disagree? At 8.11. And then you say "plaintiff terpaksa balik ke Malaysia dalam masa yang singkat untuk mengendalikan isu surat amaran dan kemasukan bayaran". So, do you agree that what you have pleaded, what are the documents doesn't tally. Agree or disagree? I just want to know agree or disagree before I submit. Agree? PW1:Agree.

When confronted with this discrepancy, the Plaintiff ultimately agreed that his pleaded narrative did not tally with the documentary timeline. This inconsistency goes to the heart of his credibility.

Admission that he could have paid Standard Chartered directly

The Plaintiff admitted that he could have made direct payments to Standard Chartered from the UK, thereby avoiding the alleged risk of misuse by the Deceased or DW2. When asked why he continued remitting funds to the Deceased despite claiming to have discovered misuse in 2004, the Plaintiff was unable to provide a coherent explanation. This undermines the plausibility of his allegation that he entrusted the Deceased with funds for loan repayment.

Admission that the bulk of the RHB loan was used for his own benefit

The Plaintiff further admitted that from the RHB refinancing loan of RM141,625.80, only RM44,589.41 was applied towards redeeming the Deceased's HSBC housing loan, while the remaining RM83,000+ was used to settle the Plaintiff's own Standard Chartered study loan.

When pressed, the Plaintiff acknowledged that he personally took and utilised this RM83,000. This admission contradicts his assertion that the refinancing was undertaken primarily for the Deceased's benefit or as part of a trust arrangement.

(d)No written demand for alleged misuse of funds

The Plaintiff also conceded that he never issued any written demand, letter, or formal complaint to the Deceased or DW2 regarding the alleged misuse of funds. Despite claiming that substantial sums were misappropriated, he did not lodge a police report, initiate civil proceedings, or even send a solicitor's letter.

His explanation that "family cannot send demand letters" was unconvincing, particularly given that he was legally represented at the time and had engaged solicitors (Arifin & Partners; Francis Brigged & Co) for other matters.

Failure to call corroborative witnesses

The Plaintiff alleged that his two uncles were guarantors for the Standard Chartered loan and were aware of the alleged misuse of funds. However, he did not call either of them as witnesses. Nor did he call the solicitor (Mr Francis) whose emails he relied upon. The absence of corroboration further weakens his narrative.

In light of these contradictions, omissions, and admissions, the Court finds that the Plaintiff's testimony is unreliable, self-serving, and unsupported by independent evidence. His narrative appears to have been reconstructed to fit the claim rather than grounded in contemporaneous fact. The Court therefore places little weight on the Plaintiff's oral assertions regarding the alleged trust.

The Court observes that the Plaintiff took no steps whatsoever whether during the Deceased's lifetime or after his passing to assert or protect the beneficial interest he now claims. His complete inaction over a prolonged period is wholly inconsistent with the conduct of a person who genuinely believed he was the beneficial owner of the Property. Plaintiff took no procedural steps under probate law.

The evidence shows that the Plaintiff did not invoke any of the statutory mechanisms available to a person asserting an adverse interest in an estate. In particular, the Plaintiff did not:

file a citation under the Probate and Administration Act 1959 to compel the production of the Will or to challenge the appointment of the executrix;

file a caveat against the Grant of Probate, despite having notice that the 1st Defendant was applying for Probate;

file a private caveat or registrar's caveat against the Property to protect the alleged beneficial interest;

file any application to revoke, suspend, or challenge the Will or the Grant of Probate;

raise any objection during the Probate proceedings, even though he was aware of the Will and its contents.

These omissions are not minor procedural lapses they go to the heart of the Plaintiff's credibility. A person who genuinely believes that a property is held on trust for him would ordinarily take immediate steps to prevent the legal title from devolving contrary to that alleged trust. The Plaintiff did nothing. Defendants' evidence confirms the Plaintiff's total inaction. DW1 testified unequivocally: "Plaintif tidak pernah mencabar wasiat... tiada sebarang kaveat... tiada permohonan citasi."

This testimony was not challenged in cross-examination and is fully consistent with the documentary record. I agree with the Defendants' written submissions (Encl. 52 & 58) which emphasise that the Plaintiff's silence and inaction persisted for six years after the Will was executed (2014-2020), and even after the Deceased's death in 2018.

The Plaintiff did not take any step to assert his alleged beneficial interest until discussions about the Defendants purchasing the Property from him broke down. Plaintiff's explanation is unsupported and illogical.

In Low Tin Yong @ Low Yong Lian V Low Yong Thuan [2016] 5 MLRA 398 one of the reasons the Court of Appeal rejected the existence of a trust is as follows:- "[51] Firstly, there is nothing on the title or the memorandum of transfer to bear out the existence of such a trust. Section 344 of the National Land Code ("NLC") provides for the registration of any trust created in the memorial of registration. In short, the title does not reflect that the appellant holds the said land on trust as a trustee. There is no endorsement with the word 'trustee' on the title deed to the said land to evident the existence of a valid trust in favour of the siblings. [52] There is no written document or trust deed to support the existence of a trust. Neither was there any attempt by the respondent or his other siblings to protect their alleged interest in the land by the entry of a caveat until 2013, some fifty years after the transfer of the land to the appellant. It is inconceivable that there would be no claim to the property during the entirety of this period, if indeed such a trust subsisted. The indefeasibility of title enjoyed by the appellant ought not to be undermined by the mere suggestion, some fifty years later, of the nebulous existence of a trust (see Yong Wee Ming v. Chin Thian Guan [1983] 1 MLRA 230).”

The Plaintiff's explanation for his failure to challenge the Will or the Grant of Probate is wholly unpersuasive. He asserted that he "allowed" the 1st Defendant to proceed with the Probate application so that she could subsequently purchase the Property from him.

However, this assertion is unsupported by any contemporaneous document, whether in the form of correspondence, instructions to solicitors, or any written communication indicating that Probate was being extracted for the Plaintiff's benefit.

There is no letter, email, or note—either from the Plaintiff or from Messrs Francis Brigged & Co suggesting that the Probate process was undertaken pursuant to any agreement or understanding that the Property belonged beneficially to the Plaintiff.

Further, the Plaintiff's explanation is contradicted by the very emails upon which he relies. The email chain from Messrs Francis Brigged & Co (B3, pp. 6-11) shows only that the 1st Defendant was exploring her options as a beneficiary under the Will, namely, whether to obtain financing to purchase the Property or to sell it on the open market.

The solicitor's statement, "I assume that the reason she went ahead...", is plainly an assumption and not an acknowledgment of any trust. Nothing in the emails suggests that the 1st Defendant accepted that the Plaintiff was the beneficial owner or that Probate was being extracted for his benefit. The Plaintiff's attempt to characterise these emails as evidence of a trust is therefore untenable.

This assumption cannot be elevated into evidence of the Deceased's intention or of any trust. The Plaintiff did not call the solicitor (Mr Francis) as a witness, despite relying heavily on his emails. Under s.114(g) Evidence Act 1950, the Court is entitled to draw an adverse inference that the solicitor's evidence would not have supported the Plaintiff's case.

The Plaintiff's explanation is also inconsistent with his own pleaded case. His Statement of Claim asserts that the Property was already held on trust for him and that he was the beneficial owner.

If that were true, there would be no legal or practical need for the Defendants to "purchase" the Property from him. A beneficiary does not purchase what is already his. The Plaintiff's narrative that Probate was necessary so that the Defendants could buy the Property from him cannot be reconciled with his pleaded position that the Property was already his beneficially. This internal inconsistency further undermines the credibility of his explanation.

The Court further finds that the Plaintiff's prolonged and complete inaction following the execution of the Will in 2014, and continuing well after the Deceased's death in 2018, is fundamentally inconsistent with the conduct of a person who genuinely believed he possessed a beneficial interest in the Property.

A person asserting such an interest would ordinarily take immediate and decisive steps to protect it, particularly where the Will expressly disposes of the Property to other beneficiaries.

Despite having full knowledge of the Will and its contents-as the Plaintiff himself admitted during cross-examination-the Plaintiff took no protective steps whatsoever for a period spanning approximately six years (2014-2020). He did not lodge a private caveat over the Property to preserve the alleged equitable interest.

He did not challenge the Will, despite its express terms contradicting his alleged entitlement. He did not challenge the Grant of Probate, even though the 1 $ ^{st} $ Defendant was appointed as executrix and empowered to deal with the Property.

He did not notify the executrix, the Probate Court, or any solicitor that he claimed a beneficial interest. He did not notify RHB Bank or any financial institution that the Property was allegedly held on trust for him.

The absence of these steps is particularly striking, given the Plaintiff's legal background and his familiarity with legal processes, as evidenced by his own testimony regarding his law studies and his engagement of multiple solicitors (Arifin & Partners; Francis Brigged & Co) for other matters.

A legally-trained individual who genuinely believed he was the beneficial owner would not have remained passive in the face of a Will that expressly excluded him. The Plaintiff's silence persisted even after the Deceased's death in 2018.

A reasonable person who believed he was the beneficial owner would have asserted his interest immediately upon the Deceased's passing, especially when the Property remained registered in the Deceased's name and was subject to testamentary disposition.

Instead, the Plaintiff allowed the Defendants to continue occupying the property without challenge and took no steps to assert any equitable claim.

The Plaintiff only surfaced with his alleged claim in 2021, after discussions with the Defendants regarding a potential sale or buy-back arrangement collapsed. This timing is highly material.

It suggests that the Plaintiff's claim did not arise from any genuine belief in a pre-existing beneficial interest, but rather from dissatisfaction with the breakdown of negotiations and the Defendants' refusal to proceed with a purchase.

The Court accepts the Defendants' submission that the Plaintiff's claim is reactive, opportunistic and an afterthought, rather than a reflection of any genuine trust arrangement. This conclusion is reinforced by DW1's unchallenged testimony: "Plaintif tidak pernah mencabar wasiat... tiada sebarang kaveat... tiada permohonan citasi."

The Plaintiff's attempt to justify his inaction by asserting that he "allowed" the 1st Defendant to obtain Probate so that she could "buy the house from him" is wholly unconvincing.

As elaborated earlier, this explanation is unsupported by any contemporaneous document, contradicted by the emails he relies upon, inconsistent with his own pleaded case and illogical as a matter of probate and land law.

The Plaintiff's complete failure to challenge the Will or the Grant of Probate, coupled with his inability to provide any credible or coherent explanation for this omission, is fundamentally inconsistent with the existence of any trust.

His prolonged inaction over a period of six years is compelling evidence that no trust ever existed, and that the Plaintiff himself did not believe he had any beneficial interest in the Property until much later, when negotiations with the Defendants broke down.

The Court therefore finds that the Plaintiff's conduct is wholly incompatible with the claim he now advances. Plaintiff's Evidence is Internally Inconsistent and Contradicted by Documents

The Court has carefully examined the Plaintiff's testimony, the documentary exhibits, and the extensive cross-examination recorded in the Notes of Evidence. The Plaintiff's narrative concerning the Standard Chartered study loan, the alleged misuse of funds by the Deceased and DW2, and the circumstances surrounding the 2009 refinancing is riddled with material inconsistencies, chronological impossibilities, and internal contradictions. These inconsistencies substantially undermine the credibility of the Plaintiff's account and cast serious doubt on the reliability of his assertions.

Chronological Impossibility and Contradictions Regarding the Standard Chartered Loan The Plaintiff's central narrative is that he was "shocked" in 2004 upon receiving a letter from Standard Chartered indicating arrears, which he attributed to the Deceased and DW2 allegedly misusing funds he had remitted from the United Kingdom. However, under cross-examination, the Plaintiff conceded that the remittance slips he relied upon (B1, pp. 20-25) were from 2006, two years after the alleged "shock". When confronted with this discrepancy, the Plaintiff ultimately agreed that his pleaded narrative did not tally with the documentary timeline. This inconsistency goes to the heart of his credibility.

The Plaintiff further alleged that DW2 had used his remitted funds for "pelaburan" (investment). Yet, when pressed during cross-examination, he admitted that he had no evidence whatsoever to support this serious allegation. The evidence as follows: MM: And then, you are also saying, Yang Arif, at paragraph 8.10, the money that you send for the six (6) months that you showed here, the £60, £60, £60, £160, £110 22 all that, the 2nd defendant used it spend it for the investment purposes. Isn't it? Look at 8.10. You'retelling the court that 2nd defendant used that money that you have sent "untuk membuat pelaburan, pembelanjaan sendiri dan perniagaan tanpa pengetahuan dan tanpa mendapat kebenaran daripada plaintiff". Agree? PW1:Agree. MM: Do you have evidence to prove this?

He conceded that no document, bank statement, or communication substantiated the claim, and that his assertion was based solely on his own suspicion. DW2, for her part, denied the allegation and testified that she had no knowledge of the Plaintiff's remittance arrangements.

The Plaintiff also admitted that he could have made direct payments to Standard Chartered from the UK, thereby avoiding the alleged risk of misuse by the Deceased or DW2.

His explanation that he continued remitting funds to the Deceased despite believing they were being misused was unconvincing and inconsistent with ordinary commercial sense. This admission further weakens the plausibility of his narrative.

Plaintiff's Admissions Regarding the RHB Loan

The Plaintiff's own admissions during cross-examination further contradict his assertion that the 2009 refinancing was undertaken "for the Deceased". The Plaintiff acknowledged that: - RM44,589.41 from the RHB loan was used to redeem the Deceased's HSBC housing loan; - RM83,000+ from the same loan was used to settle his own Standard Chartered study loan; - He personally received and utilised the RM83,000+ for his own benefit.

When asked whether he took the RM83,000.00+, the Plaintiff answered in the affirmative. This admission is fatal to his narrative that the refinancing was undertaken primarily to assist the Deceased.

The evidence demonstrates that the majority of the loan proceeds benefited the Plaintiff, not the Deceased. The Plaintiff's attempt to characterise the refinancing as an act of sacrifice for the Deceased is therefore inconsistent with the financial reality. MM: So, you wanted the money, otherwise you redeem the property, so, the payoff RM44,000 for your father is because only then you can get this RM83,000? Am I right? PW1: Can you repeat the question again? MM: To get this money of the RM83,000 or another word,16 the total sums of; total loan sums of RM141,000,you go to redeem the property; you go to payoff RM44,589.41 for you to eligible to get the RM83,000, am I right? PW1: Hrmm. MM: Answer? PW1: Yes. MM: There will be serious consequences because I put it to you, your father only owes HSBC of RM44,589.00. If you really want to save your father, you only pay him 2RM44,589.00. The bulk of RM83,000+, you took it and you did not give a single cent to your father, do you agree or disagree? PW1: I agree. MM: No. That was the only small fraction RM44,000. You took a large sum of money to settle your study loan, agree or disagree? PW1: Agree.

Plaintiff's Pleadings Were Incomplete, Defective, and Contained Afterthoughts

The Court also notes that several material facts relied upon by the Plaintiff were not pleaded in the Statement of Claim. These include: - allegations of misuse of funds by DW2; - allegations that the Deceased "forced" him to take the Standard Chartered loan; - allegations that the Deceased "begged" him to refinance the Property; - allegations of promises made in 2004 and 2009; - allegations of investment misuse.

These matters surfaced only during cross-examination, and in some instances, only after the Defendants confronted the Plaintiff with documentary inconsistencies. The Defendants correctly submitted (Encl. 52 & 58) that these were afterthoughts, introduced belatedly to bolster a weak narrative.

The law is clear that parties are bound by their pleadings, and evidence inconsistent with or outside the pleadings must be disregarded.

Plaintiff Did Not Come to Court With Clean Hands

The Defendants submitted, and the Court accepts, that the Plaintiff did not come to court with clean hands. The Plaintiff's narrative was embellished, internally inconsistent, and unsupported by independent evidence. His allegations of misuse of funds were serious but wholly unsubstantiated.

His explanations for the inconsistencies in his testimony were evasive and unconvincing. His conduct particularly his failure to take any steps to assert his alleged beneficial interest for more than a decade further undermines the credibility of his claim. In Jong Siew Fah V Crystal Realty Sdn Bhd [2006] ILJU 50, the court held: "...Moreover when the claimant comes to this Court, she has to come with clean hands but not to portray a blameless picture by washing off her unclean hands and thereafter passing on the dirt to another."

The Court therefore places little weight on the Plaintiff's oral testimony where it is uncorroborated by contemporaneous documents or contradicted by objective evidence.

Emails with Francis Brigged & Co Do Not Prove a Trust

The Plaintiff placed considerable reliance on a series of emails exchanged with Messrs Francis Brigged & Co (Bundle B3, pp. 611), contending that these communications demonstrate the Defendants' acknowledgment of a trust over the Property.

Having examined the emails in their proper context, the Court finds that they do not support the Plaintiff's case. On the contrary, they undermine it. a. The Solicitor Was Not Called as a Witness

The Plaintiff did not call Mr Francis, the solicitor who authored the emails, to testify. This omission is significant. The Plaintiff relied heavily on the solicitor's statements yet failed to produce him for cross-examination or clarification. The solicitor was the only person capable of explaining: - the basis of his statements, - whether he was acting on instructions from the Defendants, - whether his assumptions were accurate, and - whether he had any knowledge of the alleged trust.

In the absence of his testimony, the Court cannot treat the solicitor's emails as reliable evidence of the Defendants' intentions or of any trust arrangement. b. The Emails Contain Assumptions, Not Evidence

The emails themselves reveal that the solicitor was speculating, not recording instructions. In one email, he expressly stated: "I assume that the reason she went ahead..."

This is plainly an assumption—not a factual assertion, not an instruction from the Defendants, and certainly not an acknowledgment of a trust. The Plaintiff's attempt to elevate this assumption into evidence of a trust is misconceived.

The emails also show that the solicitor was merely advising the 1st Defendant on two possible options available to her as beneficiary under the Will: - to obtain financing to purchase the Property; or - to sell the Property to a third party.

These options are entirely consistent with the $ 1^{\mathrm{st}} $ Defendant's rights as a beneficiary under the Will and wholly inconsistent with the Plaintiff's allegation that the Property was already held on trust for him. c. The Emails Were Written After the Deceased's Death

The emails were exchanged in 2020-2021, long after the Deceased's death in 2018. Communications made after the Deceased's passing cannot possibly prove: - the Deceased's intention during his lifetime, - the existence of any trust, or - any declaration of trust allegedly made in 2004 or 2009.

At best, the emails reflect the $ 1^{\mathrm{st}} $ Defendant's post-death consideration of how to deal with the Property as a beneficiary under the Will. They do not and cannot establish that the Deceased ever intended to divest beneficial ownership to the Plaintiff. d. The Emails Show Negotiations, Not Acknowledgment of a Trust

The Plaintiff argued that the Defendants' willingness to explore purchasing the Property from him was evidence of a trust. The Court rejects this argument. The emails show only: - that the $ 1^{\mathrm{st}} $ Defendant was considering buying the Property to resolve the dispute; - that she sought legal advice on financing; - that she obtained a conditional loan approval; - that the solicitor was preparing a draft SPA.

These are commercial negotiations, not admissions of liability. Parties frequently negotiate to purchase or settle disputed assets without conceding legal entitlement. The Defendants' willingness to explore a purchase does not amount to acknowledgment of a trust.

Indeed, if the Defendants believed the Plaintiff was the beneficial owner, they would have had no need to obtain Probate, secure financing, or prepare an SPA. Their conduct is consistent with their position as beneficiaries under the Will—not with the Plaintiff's alleged trust. e. Adverse Inference Under Section 114(g) Evidence Act 1950

Given the Plaintiff's heavy reliance on the solicitor's emails, his failure to call the solicitor as a witness triggers the operation of s.114(g) Evidence Act 1950. The Court is entitled to infer that the solicitor's evidence, if produced, would not have supported the Plaintiff's case.

The Defendants expressly raised this point in their submissions (Encl. 58), and the Plaintiff offered no satisfactory explanation for the omission.

In OCBC Bank (Malaysia) Bhd V Prolink Marketing Sdn Bhd V Another Appeal [2023] 3 MLRA 589, the Court held:- "[148] In an earlier decision which affirms the proposition that the failure to call an important witness warrants an adverse inference, the Court of Appeal in CGU Insurance Bhd v. Asean Security Paper Mills Sdn Bhd [2006] 1 MLRA 420 stated thus: "[103]...Here is a man who is repeatedly mentioned by more than one witness relating the part he played. The respondent's failure to call him although he was present in court (as may be seen from the notes of evidence) in the circumstances of this case warrants the drawing of an adverse inference under s 114(g) of the Evidence Act 1950. It has been held by the Judicial Committee of the Privy Council in Seth Maganmal v. Darbarilal AIR 1928 PC 39 that an adverse inference may be legitimately drawn against a party who fails: to call as his witness the principal person involved in the transaction, who was in a position to give a first-hand account of the matters in controversy and throw light on them, and who could have refuted on oath the allegations of the other side ...”

The emails relied upon by the Plaintiff do not assist his case. They are plainly post-death communications, reflecting only discussions and proposals between the surviving parties. As they contain no statement from the Deceased and no reference to any pre-existing arrangement, they cannot establish the existence of a trust.

I therefore attach no probative value to these emails for the purposes of determining the Plaintiff's claim.

The Defendants' Counterclaim seeks, inter alia,

a declaration that the Plaintiff has no rights over the Property,

(ii) repayment of all outstanding sums under the RHB loan,

(iii) alternatively, RM150,000 as special damages,

(iv) general damages for emotional distress, and

ancillary reliefs.

Claim for Emotional Distress is Not Recognised in This Context

The Defendants pleaded that they suffered tekanan emosi, stress, and kesusahan due to the Plaintiff's conduct. However, Malaysian civil law does not recognise damages for emotional distress in a property or trust dispute, unless the distress arises from: - harassment, - intimidation, - unlawful threats, or - tortious conduct such as defamation or assault.

No such conduct was pleaded or proven. The Defendants' own evidence (DW1 and DW2) did not establish any actionable wrongdoing by the Plaintiff that could give rise to compensable emotional harm. The claim is therefore legally untenable.

The 7 Months of RHB Payments Were Voluntary and Not Recoverable

The Defendants' claim for reimbursement of the seven months of RHB instalments is wholly unsustainable. The evidence is unequivocal: the payments were made voluntarily, without any legal obligation, and without any inducement, representation, or compulsion from the Plaintiff.

DW1 expressly admitted that the instalments were paid merely out of fear that "the bank would take action", while DW2 conceded that she had no documentary proof of having made any payment at all.

The RHB loan stood solely in the Plaintiff's name, and the Defendants bore no contractual liability to service it. A party who elects to discharge another's debt without obligation cannot later seek reimbursement unless the payment was made under mistake, duress, coercion, or misrepresentation-none of which were pleaded, let alone proven.

On the Defendants' own evidence, the payments were acts of voluntary intervention, not legal necessity. The claim for reimbursement is therefore dismissed in its entirety.

No Evidence of Unjust Enrichment or Coercion

The Defendants further allege that the Plaintiff was "unjustly enriched" by their payments and that he acted oppressively. The Court finds no evidential basis for these assertions.

On the doctrine of unjust enrichment, see the case of Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court held at page 496 that: "...a cause of action in unjust enrichment can give rise to a right to restitution where it can be established that: (a) The Plaintiff must have been enriched; (b) The enrichment must be gained at the defendant's expense; (c) That the retention of the benefit by the plaintiff was unjust; and (d) There must be no defence available to extinguish or reduce the plaintiff's liability to make restitution."

In our instant case, the Plaintiff did not receive any money from the Defendants. The RHB loan payments were made directly to the bank and the Defendants produced no evidence that the Plaintiff induced, requested or demanded such payments.

DW2 admitted under cross-examination that she had no knowledge of the Plaintiff's financial arrangements and no proof of any coercion or misrepresentation. The Defendants' allegations are therefore unsupported and speculative.

Claim for RM150,000 Special Damages Is Unproven

The Defendants' alternative claim for RM150,000.00 as special damages is equally untenable. Special damages, by settled law, must be specifically pleaded and strictly proven.

With regard to special damages, I gratefully adopt the principles summed up by Syed Agil Barakbah FJ in Ong Ah Long v. Dr S Underwood [1983] 2 CLJ 198; [1983] CLJ (Rep) 300 and summarised as follows:

special damages in contrast to general damages have to be specifically pleaded and strictly proved;

(ii) the reason that special damages have to be specifically pleaded is to put the defendants on their guard and tell them what they have to meet when the case comes on trial (per Cotton LJ in Phillips v. Phillips [1878] 4 QBD 127 at p.139);

(iii) in claims for special damages, the exact loss must be pleaded where the precise amount of damages has become clear before the trial either because it has already occurred and so become crystallised or because it can be measured with complete accuracy; and

(iv) the basic test of whether damage is general or special is whether particularity is necessary or useful to warn the defendant of the type of claim and evidence, or of the specific amount of claim, which he will be confronted with at the trial.

In this case, the Defendants have done neither. Their pleadings contain no particularisation of the alleged loss, no breakdown of the sum claimed, and no supporting documents demonstrating that any such expenditure was incurred.

DW1 and DW2 both conceded under cross-examination, that they possessed no documentary evidence to substantiate the alleged payments, nor any proof linking the figure of RM150,000.00 to any actual loss suffered.

In the absence of proper pleading and strict proof, the claim for special damages cannot stand and is accordingly dismissed.

The Defendants produced no documentary evidence—no receipts, no bank statements, no invoices, no valuation reports to substantiate the alleged RM150,000.00 loss. Their pleadings are bare assertions unsupported by evidence.

The Court agrees with the Plaintiff's submission (Encl. 56 & TAS Reply) that the Counterclaim is vague, unparticularised, and incapable of meeting the strict evidential threshold required for special damages.

Declaratory Relief Sought in the Counterclaim Is Redundant

The Defendants' request for a declaration that the Plaintiff has no rights or interest in the Property is, in substance, unnecessary. By this stage of the Court's analysis, the legal position is already conclusively determined.

The Court has found, on the evidence, that no trust was ever created by the Deceased in favour of the Plaintiff; that the Plaintiff has no beneficial interest in the Property; that the Property forms part of the Deceased's estate and devolves strictly in accordance with the Wasiat bertarikh 30.12.2014; and that the Defendants are the lawful beneficiaries under that Will. These findings collectively and unequivocally establish that the Plaintiff possesses no legal or equitable entitlement to the Property.

In light of these determinations, the declaratory relief sought by the Defendants adds nothing of substantive value. The Court's findings on the main claim already dispose of the Plaintiff's asserted rights in their entirety.

The declaration sought is therefore redundant, as the legal consequences flow directly from the Court's conclusions on the issues of trust, beneficial ownership, and testamentary entitlement. A declaration cannot be granted merely to restate what is already determined by the Court's findings on the main claim.

The Defendants have failed to prove any of the heads of relief sought in the Counterclaim. The claims for emotional distress, financial loss, unjust enrichment, and special damages are unsupported by evidence and unsustainable in law. The declaratory relief sought is unnecessary considering the Court's findings on the main action. Accordingly, the Counterclaim is dismissed.

For the reasons adumbrated above, it is hereby ordered as follows:

The Plaintiff's claim is dismissed in its entirety.

It is declared that the Property forms part of the estate of the Deceased and devolves strictly in accordance with the Wasiat bertarikh 30.12.2014.

It is declared that the 1st and 2nd Defendants are the lawful beneficiaries of the Property pursuant to the said Will.

The Defendants' Counterclaim for emotional distress, financial loss, unjust enrichment, and special damages is dismissed, the same being wholly unsupported by evidence and unsustainable in law.

The Defendants' prayer for a declaration that the Plaintiff has no rights over the Property is declined, such relief being unnecessary in light of the Court's declarations above. C. Costs

Costs of RM10,000.00 are awarded to the Defendants, payable by the Plaintiff.

No order as to costs is made in respect of the Counterclaim. I hereby order so. Date: 28.05.2026 NIXON ANAK KENNEDY KUMBONG Judicial Commissioner High Court of Malaya Kuala Lumpur PARTIES For the Plaintiff: Solicitor: Elaine Foong Hui Ling Messrs Elaine, Yun & Associates 102-B, Jalan SS24/2 Taman Megah 47301 Petaling Jaya Selangor For the Defendant: Solicitor: Manoharan Malayalam / Nur Syamimi Adriana Binti Shaharim Messrs M Manoharan & Co Suite C-5-5, 5th Floor, Tower C, Wisma Goshen, Plaza Pantai, Persiaran Pantai Baharu, 59200 Kuala Lumpur.