In this case it is pleaded by the plaintiff that his father Ariffin bin Osman purchased from one Bakar bin Awang Ahmad a third of Bakars undivided share, ie 1/3 of 4461/4609th share of the land held under SP 9920, Lot 355, Mukim Bukit Pinang, Kota Setar, Kedah. The defendants are presently registered as owners of the said share. The plaintiff seeks a declaration that the defendants are bare trustees of the said share and for an order that the defendants do execute a transfer of the said share to him as administrator of the estate of Ariffin bin Osman, deceased.

The land was alleged to have been purchased pursuant to a sale and purchase agreement dated, according to the Muslim calendar, 11 June 1374. This date corresponds with the Gregorian calendar date 3 February 1955.

Both Ariffin bin Osman and Bakar bin Awang Ahmad have died. The plaintiff is the son of Ariffin and the administrator of his estate. The fifth defendant, widow, and the other defendants, the children, of Bakar, are beneficiaries of Bakars estate and are the registered owners of the said share in the land.

The purported sale and purchase agreement was tendered in court. The words Kota Star Stamp Office (in English) are imprinted on two 25 [cent]2 stamps. The date 3.2.55, and, below it, the word PAID (in English) appear as perforations on the said two 25 [cent]2 stamps affixed to the right top side of the document. I have no hesitation in accepting that the document was officially stamped at the Kota Star Stamp Office on 3 February 1955 and I am satisfied that the document has been proved to be more than 20 years old.

Having regard to s 90 of the Evidence Act 1950 the court may presume the genuineness of the signatures of the purported vendor and purchaser and the thumbprint of the purported person who witnessed the execution of the agreement. One would expect such a document to have been in the custody of the plaintiffs father. It was; the plaintiff said that he took it from his fathers belongings. I should be satisfied that the document was executed by the plaintiffs father and the first defendants father as shown in the agreement, considering that the document does appear to have an honest face.

I have to point out, however, that there is one feature in the document which needs further investigation. It relates to the date on which the document was allegedly executed, the same date that it was stamped, ie 3 February 1955. The point is that this date is the very same date on which the alleged vendor of the land, the first defendants father, Bakar bin Awang Ahmad, died. This fact appears as a statement of fact under para 9 of the statement of claim of the plaintiff. What should I make of this? Section 90 of our Evidence Act 1950 is substantially similar to s 90 of the Indian Evidence Act though the presumption therein is in respect of documents 30 years old. If there is a dispute as to the genuineness of such documents (having regard to s 90 of both the Malaysian and Indian Acts) one needs to heed what Madgavkar J said at p 40 in Mansukh Panachand Shah v Trikambhai Icchabhai, after he had referred to the Privy Council case of Shafiqunnissa v Shaban Ali Khan:2 ... it is necessary, therefore, for the courts to consider the evidence external and internal of the document in order to enable them to decide whether in any particular case they should or should not presume proper signature and execution.

As I have stated earlier the document has an honest face and there is only the question of the date. Is it too much of a coincidence that the vendor died on the day that the document was executed? There is, however, no evidence as to the time when Bakar died. And there is nothing to indicate that he could not have signed the document because he had died earlier. On the other hand the evidence shows that the purported purchaser of the land, Ariffin, had the document of title in respect of the land in his possession until he himself died in 1984.