The court ruled that allegations of fraud or misrepresentation must be specifically pleaded and proven, failing which claims regarding property ownership and trust are dismissed.

Noor Ruwena Md Nurdin J:

Introduction

[1] The Plaintiffs and Defendants in this suit had filed their Notice of Appeal to the Court of Appeal on 8 November 2024 and 30 October 2024, respectively, against this Court's decision that was delivered on 10 October 2024 wherein the Court partly allowed the Plaintiffs' claims with costs and dismissed the Defendants' counter-claims with no order as to costs. For ease of reference, the parties will be referred to as they were at trial and this Grounds of Judgment contains my reasons in regard to the decision.

Background

[2] The trial commenced on 28 October 2021 before the previous Judicial Commissioner (as His Lordship then was) where 5 witnesses had been called including both the Plaintiffs. Trial was adjourned where Encl 31 was filed to recall the 1st Defendant to admit his witness statement with a jurat. Encl 31 was allowed on 17 February 2022 with no objection by the Defendants when I took over conduct of the matter. Continued trial was fixed in June and July 2022 but had to be postponed to 13 October 2022 due to unforeseen circumstances. Two more witnesses for the Plaintiffs testified. Later, the trial had to be postponed again and it continued on 13 March 2023 with the evidence of the Plaintiff's eighth witness.

[3] On 22 June 2023 Encl 46 was filed by the Plaintiffs' counsel (Messrs. K. Lakshmidevi & Co) who was then handling the trial. It was an application to discharge herself from further conducting the case. Hearing of Encl 46 was done on 5 July 2023 and the application was allowed. Again, trial had to be postponed to enable the Plaintiffs to appoint a new solicitor to handle their case. Finally, the Plaintiffs appointed the present counsel to continue with their case on 17 July 2023. Another interlocutory application was filed by the Defendants under O 35 r 4 of the Rules of Court 2012 (ROC) to allow the 1st Defendant to be recalled for in regard to his witness statement with jurat, which was also not objected to by the Plaintiffs. The trial finally concluded on 19 February 2024.

[4] A total of 10 witnesses testified for the Plaintiffs while only both Defendants testified in support of their case. The Defendants testified on 8-9 January 2024 and the Court heard oral submissions on 22 July 2024 after the Notes of Evidence and written submissions filed. The order of the witnesses was as follows:

i. SP1 - Thangam A/P Periyasamy (P1);

ii. SP2 - Mohan A/L Pachiappan (P2);

iii. SP3 - Prameswaran A/L Mohan (3rd child Plaintiffs);

iv. SP4 - Ponarasi A/P Mohan (5th child of the Plaintiffs);

v. SP5 - Suresh A/L Mohan (4th child of the Plaintiffs);

vi. SP6 - Mohd Azizal bin Hashim (Contractor);

vii. SP7 - Mohd Faizal Bin Che Ros (Contractor);

viii. SP8 - Muhammad Fazli (Jabatan Perancangan Bandar, Alor Setar);

ix. SP9 - Murugammal A/P Mohan (1st child of the Plaintiffs);

x. SP10 - Masilamani A/L (SP9's husband);

xi. SD1 - Alagukkarasan A/L Mohan (D1); and

xii. SD2 - Kethesvary A/P Gunasegerem (D2).

[5] The dispute related to a property that was purchased by the Plaintiffs as identified in the Hakmilik GRN 192116, Lot No. 334, s 15, Bandar Serdang, Daerah Bandar Baharu, Negeri Kedah Darul Aman (hereinafter referred to as "the Property"). The Property consisted of a low- cost terrace house on a piece of land with a lot size of 115 metres