Mohd Noor Abdullah J:

The plaintiff is an old man of 82 years of age and is married to the 1st defendant who is 20 years younger. When he was 54 years old he took a second wife. He has 5 daughters with the first all of whom are married and 2 daughters with the second, the younger of whom is still studying at a college. The plaintiff operates a petrol station and a mini market beside it. The 1st defendant and her daughter assist the plaintiff in both operations under the business name of Kim and company. The 2nd wife and her daughters do not participate in the business. The plaintiff's known source of income is from the business. As a supplement to his income he is also a sub-agent of Sabah Sweepstakes lottery tickets which he buys from Golden Enterprise, the authorised agent, and sells or otherwise keeps any unsold tickets.

Sabah Sweepstakes lottery ticket No. 2177908 struck the 1st prize of RM2,000,000 at a draw held at Sandakan on 25 June 1989. The plaintiff claims he bought the ticket, whereas the 1st defendant claims she bought the ticket and the 2nd defendant claims she has a share in the prize money. The RM2 million windfall is deposited in a Fixed Deposit Account and the interest accrued from it is credited in a Savings Account. Both the accounts are operated by the plaintiff, the 1st defendant and the 2nd defendant and the mode of operation is "TWO of THREE" and none of them is mandatory. After a few withdrawals from the Savings Account, the plaintiff can no longer obtain the co-signature of the 1st defendant or the 2nd defendant to withdraw any more money. They refuse to co-operate because the plaintiff "spent all his money for the other woman" so said the 1st wife. He alone cannot withdraw; they choose not to withdraw either but he needs the money more than them, hence this action.

The plaintiff applies for a declaration that the price money belongs to him solely and absolutely and that the defendants are holding the money in trust for him. Conversely the 1st defendant counterclaims that the price money belongs to her wholly and absolutely and that the plaintiff is holding the money in trust for her. Alternatively the defendants counter-claim that the plaintiff has made a gift of 1/3 share each to the defendants and they are entitled to such proportion of the money.

The plaintiff establishes the following evidence to support his claim that he bought the tickets.

1) The cash sale acknowledgement receipt (exh. P1) for the sale of 100 lottery tickets bearing No. 2177900 to 2177999 for RM200 at RM2 per ticket was issued to and in the name of Tan Chong Kiat, the plaintiff.

2) The price winning commission of RM100,000 was paid to the plaintiff by means of Lee Wah Bank cheque No. 349122 which the plaintiff wrote in the cash sale receipt. He also wrote the 1st price winning number 2177908 on the receipt.

3) The plaintiff is a sub-agent who has bought lottery tickets eight times from Golden Enterprise, the authorised agent and the winning ticket is the 6th time. A sub-agent earns a commission and the agent does not sell to any other person except to his sub-agent and that is why the salesman came thrice to sell the tickets at 9.30am, 11am and 12.30pm insisting to see the plaintiff. It is observed that all the cash sale receipts marked as exhs. D5, D6A-B, D11A-E and P16 are issued in the name of Tan Chong Kiat, the plaintiff.

The 1st defendant produces the following evidence to support her claim that she bought the tickets.

1) She bought the tickets with her own money taken out from her purse which was kept in the kitchen and was short of RM50 which she obtained from her daughter Tan Yap Seng. The latter corroborated the 1st defendant's evidence, not only that the 1st defendant used her own money plus her RM50 but that she witnessed the sale transaction.

2) The cash sale receipt was signed by her daughter Tan Yap Seng at the request of the 1st defendant who bought the tickets and paid cash for them. She signe