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1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN GUAMAN SIVIL NO: BA-22NCvC-136-03/2021 BETWEEN PLAINTIFF VADIVELU A/L THANKAVELOO (NO. K/P: 530813-10-5167) AND DEFENDANT RAJKUMAR A/L BALAKRISHNAN (AS ADMINISTRATOR OF THE ESTATE OF DECEASED BALAKRISHNAN A/L APPASAMY) 23/04/2024 00:25:39 BA-22NCvC-136-03/2021 Kand. 46 JUDGMENT Preface [1] This case had proceeded to trial. Claim by the plaintiff is for this court to declare that he is the lawful beneficial owner of the undivided 1/8 share - ½ share of the ¼ share, in the land held as title No. Geran Mukim 4543 Mukim Kapar, Klang. [2] Land has been registered in the name of Balakrishnan a/l Appasamy, now deceased. He was the defendant’s father. Evidentially, the title deed of the land shows the undivided share of a quarter belongs to the deceased and there are other co-owners. [3] As administrator of the estate of the deceased, the defendant also administers the said land on which is situated a dwelling house, occupied by the plaintiff. He claims that the plaintiff has not the right of beneficial ownership of that part of the land on which his house is situated. He expects the plaintiff to give up and leave the property so that the said land in its entirety be sold to a third party. [4] The plaintiff has refused to do so, as he claims that it was the deceased who had allocated his share of the property for a valuable consideration of RM1000 at that point of time. The deceased and the plaintiff are no strangers, as the deceased was married to the plaintiff’s sister. Thus, the defendant is also not a stranger to the plaintiff as they are related. [5] The sore point in this case is of course that the deceased is not available to testify on the conveyance of the plaintiff’s share in his property for a valuable consideration. This conveyance was apparently unknown to the defendant. But it is known by the solicitor, PW1 who had executed the conveyance between the deceased and plaintiff. Both the solicitor and plaintiff had testified in this court during the trial as PW1 and PW2. The bane to the entire episode was that at the material time when the land was registered, it was in the name of the deceased and that the deceased will hold ½ share of the ¼ share in trust for the plaintiff, simply because he was at that point of time a minor of sixteen years old. [6] In terms of the law of evidence, in the absence of the deceased, circumstantial evidence led by the plaintiff would be pivotal in this case. It being in the form of oral evidence by the plaintiff pursuant to section 60 (1) (c) of the Evidence Act 1950 (EA/Act 56) supported by the deed of trust as proof of the conveyance of his part of the property, as well as an irrevocable power of attorney granted to him by the deceased. These salient documents were tendered in court as proof vide exhibit P1, P3 and P2, by the solicitor PW1 supported by the plaintiff who had testified as PW2. Such proof conforms with section 60 (3) EA which provides that where oral evidence refers to the existence of condition of any material thing including a document, the document can be produced as evidence. In law, it tantamount to be real evidence. Moreover, the solicitor who had prepared P1, P3 and P2 for execution by the deceased is also admitted in court as evidence pursuant to section 61and 62 EA. For the record, P1 and P3 are the same document. P1 is part of the Common Bundle of Documents at its Part B, whereas P3 was tendered in court distinctly as the original copy found by PW1 later. Claim by plaintiff [7] His claim for a declaration in this court hinges on the following proof: • The land on which he has built a house to live, was jointly purchased with the deceased, on the understanding it was on an equal share basis. • So, he is the joint purchaser of the ¼ share together with the deceased in equal share. • He had paid an amount of RM1000 in cash to the deceased for the said property. Purchase value of the said land in the year 1969 was RM1800. • By virtue of that, he is allowed with no objection from the deceased to build his house on his share of the property at the back portion of the land, which is to remain as his permanent abode. • He was also allowed right of way to his house on the said land by the deceased. • To reiterate his portion is the ½ share of the ¼ share of the said land. • In the year 1972, the deceased had built his wooden house and in the same year, the plaintiff had built his half brick and plank house which was lived in by him, his father and siblings. This fact was also confirmed by PW3, the plaintiff’s brother. Inferentially, the plaintiff would not have pursued to build his house, if not for the permission granted by the deceased, who was his brother in law. • Confirming his share of the property is a deed of trust which was executed by the deceased on 26.8.2002, tendered in court as exhibit P1 as well as P3. • The said deed of trust declares and confirms that the holding of the ½ share in the ¼ share is in trust for the plaintiff. • Therefore, the plaintiff is a beneficiary of the said trust. • Additionally, the deceased had also executed an Irrevocable Power of Attorney (PA) on 26.8.2002, tendered as proof P2, appointing the plaintiff as lawful attorney to deal with the ½ share of the ¼ share, as he deems fit. • Execution of the deed of trust P1, P3 and the power of attorney P2 was confirmed by PW1 who had testified certainly that it did take place and he was the solicitor in attendance who had prepared and attested P1, P3 and P2. • The uncontroverted testimony of PW1 that it was the deceased who had instructed him to prepare the deed of trust and power of attorney in the presence of the plaintiff. PW1 had also testified that explanation on the content of the documents was both in the Tamil and National Language and the deceased had acknowledged and understood it, before executing the said documents. The deceased had signed it in English alphabets. • Argument advanced by the defendant, that the documents executed do not contain a jurat clause to denote that its content was not properly interpreted to the deceased in the Tamil language which he understands, is displaced by not only the testimonial evidence of PW1 but also the undenied fact that the deceased had gone to see PW1 in order for the documents to be prepared and executed. Thus, the deceased was fully aware of its preparation and execution. Testimony to this was the plaintiff, who had testified as PW2. • Following to that fortification of his right to the land, the plaintiff has been in occupation of the house situated on the said land since the year 1972, not on the entire land but ½ share of the ¼ share which is still registered in the name of the deceased. • As alluded to above, existence of the conveyance is also supported by the fact that there exists a familial relationship between the plaintiff and deceased. Dispute by the defendant [8] He has refuted the plaintiff’s claim by denying that there was a joint purchase of the said property by his father, the deceased and the plaintiff. But there was no denial that the house lived in by the plaintiff on the said land was built by him, albeit on a temporary basis. [9] His refutation was supported by production of another power of attorney, as exhibit D4, this time dated much later on 27.11.2013, via his solicitor DW3. It was tendered to prove that the deceased had granted power of attorney to the defendant to deal with the impugned property at his own discretion. It was also tendered as proof, for this court to take note that the deceased had never intended to grant plaintiff the power of attorney to deal with the said ¼ share of the land. [10] By way of oral testimony, the defendant had testified it was the plaintiff who had cajoled the deceased to allow him to build a house on the land and live in it as he has no house of his own, since he was asked to leave his rented premises. [11] Concomitantly, he had testified that it was the plaintiff who had insisted to be in occupation on the said land, and it was not his father’s intention (now deceased) for ownership of the impugned land by the deceased to be shared equally with the plaintiff. [12] Further, he had proceeded to testify that there was no proof that the plaintiff had invested his monies to purchase his share on the impugned land, thus disputing the cash payment of RM1000 to the deceased. [13] The applicable rule of evidence is clear in this realm, since the defendant is asserting the above, it is his evidential burden to prove to this court on a balance of probabilities that such was the scenario which is incongruent with the claim by plaintiff. Only then, it would sync with the rule of law in section 101 EA which renders that whoever desires to obtain judgment based on certain facts must prove them and bears the burden of proof in relation to those facts. Therefore, the burden is on the defendant to adduce evidence and to prevent the plaintiff from proving his case on a balance of probabilities, by either demonstrating to this court that his case is on equal probabilities with that of the plaintiff or the case of plaintiff is less probable. (See: Miller v Minister of Pensions (1947) 2 AER 372 (KB)). Duty of this court [14] Rooted on the available evidence on record, both oral and documentary, it is for me to decide if the plaintiff has proven his case on a balance of probabilities. As the defendant has his own version, it is also for me to decide if that version has been proven by him on a balance of probabilities, in order to displace the claim by plaintiff. [15] Obviously, the claim by plaintiff and version of the defendant are diametrically opposite. By way of resolution, the contemporaneous documentary proof available in the case has to be evaluated in order to determine if the proof rendered by either party tilts in favor of one of them. The deceased who was the executor of P1 (also P3) and P2, is unable to offer testimonial evidence, as he is dead and gone but the plaintiff and his witness PW1 were able to offer testimonial evidence on the execution of those vital documents. [16] In that respect, the rule of law is again paramount, by which the contemporaneous documentary proof proffered in this case are of high probative value, simply because it was executed very soon after the transaction involving the impugned land. That per se is central on its reliability as evidence, opposed to the oral testimony by defendant and his witnesses, showing allegiance to another power of attorney D4, executed much later in time, purportedly granted to him by the deceased, also on the instruction of the deceased. D4 is not only by its character non-contemporaneous, as it was done way beyond the year 1972 but it was also executed just one month before the deceased had died in the year 2013. [17] Circumstantially, this court has to consider and evaluate the contemporaneous documentary proof P1, P3 and P2 tendered by the plaintiff, which is supported by his oral testimony and his witness, rendering it to be the best form of corroboration, as it was concomitant with the time of transaction. On the importance of contemporaneous documentary proof, I can do no more but to cite principles of law distilled from decided case authorities. It was entirely anchored on the common feature prevailing in those cases and in the present case, which is, the conflicting evidence between plaintiff and defendant. Resolving the inconsistency is not by merely accepting one version against the other but to weigh the evidence tendered with all other surrounding factors and also to evaluate it against the contemporaneous documentary proof tendered in the case and ultimately to weigh it on a balance of probabilities. [18] Only then, I would be in a better position to arrive at a proper finding of fact, as the contemporaneous documentary proof has the effect of establishing the truth of the facts and version advanced by each party. (See: Tindok Besar Estate Sdn Bhd v Tinjar & Co (1979) 2 MLJ 229). Thus, notwithstanding the conflicting testimonial evidence by the plaintiff and defendant, documents P1, P3 and P2 produced by the plaintiff as proof supports his case in toto. [19] To repeat on the importance of contemporary documents, Males LJ in the case of Simetra Global Assets Ltd v Ikon Finance Ltd (2019) EWCA Civ 1413 had offered a complete guidance, when he decided the following at paragraphs 48 and 49: ‘…I would say something about the importance of contemporary documents as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between the parties, but with even greater force to a party's internal documents including emails and instant messaging. Those tend to be the documents where a witness's guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence …’ (Emphasis is mine) [20] Contemporaneous documentary proof in the present case is integral to the evidence before this court and it has rendered support to the fact-finding process. In the case of Onassis and Calogeropoulos v Vergottis (1968) 2 Lloyd’s Rep 403, Lord Pearce said the following in his dissenting speech at page 431: Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. … On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents are admitted or incontrovertible facts and probabilities must play their proper part. The above is truly so for the plaintiff, who with his witnesses had testified in court in order to espouse his claim against the defendant that he is entitled in law to his share in the land on which he had built his house. He wishes to continue living in the said house, since he has the legal right to do so pursuant to P1, P3 and P2 which were executed to his advantage as the beneficiary. With the deed of trust, he does not hold a false view on his right and interest in the property. It is also not an afterthought but rooted on the familial relationship he has with the deceased. Now that the deceased is no more, the defendant has started to rhyme a different tune by springing up D4. It is axiomatic to note that a dead man tells no tales on the transaction he had entered into with the plaintiff. Likewise, the plaintiff too, is not conjuring up a non-existent right or a false claim against the defendant. [21] In view of the conflicting testimony by plaintiff and defendant, reliance has to be on – • the objective facts discerned from the case; • the contemporaneous documents P1, P3 and P2. • plaintiff’s insistence on his right to his share in the property which is supported factually and legally by documentary proof P1, P3 and P2; and • the overall probabilities of the case which serves to be the ultimate factor in order to ascertain the truth that had transpired vis a vis transaction between the plaintiff and deceased. [22] Apparently, the oral testimony of the plaintiff is not aliunde but corroborated in its material particulars by documentary proof P1, P3 and P2 and also by the following incidental acts and conduct which are relevant and admissible evidence pursuant to section 8(2) and 9 EA: • Prior to execution of P1, P3 and P2, the plaintiff has started to live in the house he has built on the impugned land. • The said house, in the absence of refutation, could be implied to have been built by himself with his own expense. • In its entirety, it denotes unencumbered occupation on the impugned land (on the part acquired by him). • The fact that he had paid a cash amount of RM1000 to the deceased as valuable consideration for joint purchase of the impugned land on which his house was built is unrefuted by the defendant via palpable proof. In the absence of proof to the contrary, the testimonial evidence of the plaintiff remains uncontroverted. • His occupation in the house with his family on the impugned land commenced not instantaneously but over a period of time since the year 1972 when he paid for his part of the land and expended monies to build a house for himself and his family. • Moreover, he has been living there when the deceased was still alive, and there is no evidence to show that the deceased had objected to it or later wished to have him evicted from the house and the land on which the house was built. • The documentary proof P1, P3 and P2 supports the plaintiff’s physical occupation on the said land. • Once again in the absence of evidence to the contrary, it could be inferred that he had expended monies to build the said house as his permanent home, starting off as half plank and brick and later to be fully bricks. • Surveying the evidence proffered in the case, there is also no iota of evidence showing that the deceased during his life time, which is before 24.12.2013, had raised objection to the plaintiff occupying the ½ share on the ¼ share which is held on trust for him, and when he proceeded to build his house on his share of the land. That only goes to show consistency of position taken by the deceased with regard to the ½ share of the ¼ share which is only for the benefit of the plaintiff, augmented by the deed of trust, P1 and P3. • It can be surmised, only upon death of the deceased, the defendant began to dispute the right of the plaintiff to his property by seeking to dispose of the entire land of the deceased (his late father) to a third party, thus depriving the plaintiff of his peaceful occupation and enjoyment of his share of the impugned land, held by the deceased as trustee in his favor. • There is a greater degree of probability for the transaction between plaintiff and defendant to have taken place over the denial by defendant. • There is also no room for the plaintiff to have conjured up his right to own and occupy his share of the impugned land, as his relationship with the deceased was rooted on familial ties which has in fact spurred the transaction in issue. • In the year 2002 when the deceased was still alive, P1, P3 and P2 were executed. Its preparation and execution are not conjured up. The transaction is both credible and reliable in view of the testimony by the plaintiff, supported by his solicitor PW1, who is learned in the law. He had assisted the parties in the preparation and execution of those documents. There is no reason for this court to disbelieve him and the plaintiff. As alluded to above, their testimony does not exist independently but supported by documentary proof. SP1 who had facilitated the conveyance transaction had categorically narrated what took place during the preparation and execution of P1, P3 and P2, and at all times certain that the plaintiff was the beneficiary. • It is also a fact that the plaintiff has lived in his house built by him on the impugned land since 1972. His occupation and right to enjoyment of his part of the impugned land, arises by virtue of the trust and attorney relationship he has been placed in by the deceased, which has remained unencumbered until calling of shots by the defendant to have the entire land disposed off for a gain to a third party. • That has brought about this civil action against the defendant in order to validate and fortify his right to the property. • As a precautionary measure sanctioned by the law, he had lodged a private caveat on 18.6.2012 on the ¼ share, the moment his consent was sought by the defendant to sell his share to a third party. The said caveat would not have been lodged by the plaintiff, if not for him having caveatable interest on the said property. His caveatable interest is supported by the statutory declaration he had made to the Land Office, citing and exhibiting the deed of trust dated 26.8.2002. In its original form it reads as: Melalui Perjanjian Amanah bertarikh 26.8.2002, pemilik berdaftar tersebut memegang bahagian kepentinganya atas tanah tersebut secara amanah bagi kepentingan dan kegunaan saya … • Thus far, there is no evidence siding with the defendant that he has taken legal steps to remove the entry of the said caveat. That per se implies, the defendant has recognized the plaintiff’s right to his share on the impugned land which is fortified by the deed of trust in his favor (P1, P3) and power of attorney (P2) granted to him. • There is also no action by the defendant to nullify the deed of trust, thus enabling it to stay as valid and enforceable. Even by going along with the version of defendant that the deceased had only come to know of the said deed in the year 2012, there has been no attempt by the defendant to revoke and cancel the completely constituted trust created vide deed P1 and P3. • In sum total, the validity of P1, P3 and P2 and its binding effect on the defendant as administrator of the estate of the deceased prevails over the oral and non-contemporaneous documentary proof (D4) advanced by the defendant. • Cumulatively, these uncontroverted facts render the claim by plaintiff to be highly probable, when it is put correctly into the scales when weighing the case in its entirety. Equity favors the plaintiff [23] Tilting the balance of probabilities further in favor of the plaintiff is equity and equitable or proprietary estoppel protecting his right to his share in the impugned land, both as to ownership and continued occupation in his house built on the said land. He has not only contributed monetarily to the deceased for acquisition of his share on the impugned land but has also been occupying the house he has built on the said land with his family. [24] Equitable interest in land law in our jurisdiction refers to a legal right or interest in a property that is recognized and protected by equity, which is premised on fairness and justice. It was decided long ago in the case of Wilkins v Kannamal (1951) MLJ 99, that the Torrens system is a system of conveyancing and it does not abrogate the rules of equity. Further, it was decided by the court that it has inherent jurisdiction to do justice between the parties by applying equity and in this way the court is entitled to exercise its jurisdiction in personam to insist upon proper conduct in accordance with equitable principles and norm compatible with the Malaysian Torrens system. [25] On the same, when applying equity to the Malaysian land law, the Privy Council decision in the case of Siew Soon Wah v Yong Tong Hong (1973) 1 MLJ 133 favors the plaintiff. It recognizes the application of proprietary estoppel as settled law in our jurisdiction. Briefly, in that case, the father of the landlords agreed to let certain premises to the tenant in consideration not only of rent but also of a lump sum payment. After the transfer of the reversion to the landlords, they sought to eject the tenant. Apart from holding that the lease was not void for uncertainty, the Privy Council went on to hold that there arose in the tenant’s favor an equity or equitable estoppel protecting the occupation because the tenant had paid the lump sum and rent thereafter in accordance with his lease. [26] The doctrine of proprietary estoppel is now firmly entrenched in the Malaysian Torrens system, as observed by the High Court in the case of Bhagwan Singh & Co Sdn Bhd v Hock Hin Bros Sdn Bhd