Zainun Ali JCA:

[1] In this appeal, the appellant failed in the court below in the reliefs sought inter alia, that he is the beneficial and equitable owner of two properties ie, property No: 37 Jalan Serigala, Johor Bahru which is a single story shop house and property No: 21 Jalan Balau, Johor Bahru a double storey bungalow (hereinafter referred to as the 'subject properties'). The learned trial judge dismissed the appellant's claim. His Lordship found that the appellant's mother (the 'deceased') did not hold the above properties on trust in the appellant's favour; that the appellant's income made it impossible for him to have afforded the properties concerned, thus he could not have paid for them; that in fact the deceased was the legal and beneficial owner of the said properties.

The Appellant's Case

[2] It is the appellant's case that he utilized his own savings and income to purchase the following properties, namely:

(i) A property held under Grant 23385 Lot 9372 together with a double storey bungalow known as No: 21, Jalan Balau, Johor Bahru for $74,000 by agreement of sale and purchase dated 16 April 1978 ('the Jalan Balau bungalow'); and

(ii) The property held under HS(D) 26817 PT TLO 2990 Johor Bahru together with a single storey shop-house known as No: 37 Jalan Serigala, Johor Bahru for $84,000 by sale and purchase agreement dated 22 August 1979 ('the shop-house').

[3] The appellant claimed that he purchased the subject properties but had them registered in his mother's name (the deceased) upon his father's request. The appellant claimed that the deceased held the properties in trust for him and would have them transferred to him on demand. The appellant had filed a suit against the deceased to recover the subject properties. The deceased passed away on 5 October 1992 and by order of court of 20 January 1993, the respondent (the appellant's younger brother) who was the executor of the deceased's estate, was substituted to carry on proceedings on behalf of the deceased's estate.

[4] The appellant sought several reliefs in the court below. He sought the following declarations:

(i) that the deceased held both the said properties in trust for him;

(ii) that he is the beneficial owner of the said properties;

(iii) that the deceased is a constructive and/or resulting trustee in respect of the said properties for him; and

(iv) that the deceased is presumed to him as 'trustee de son tort' of the said properties.

[5] The appellant also prayed, for the following orders:

(a) that the respondent execute a valid and registrable instrument of trust of the shop-house to the appellant; and

(b) that the respondent do quit and deliver vacant possession of the shop-house to the appellant, notwithstanding that the shop-house has been sold by the deceased by sale and purchase agreement dated 4 July 1990 to one Harry Roy Nanda who is not a party to the proceedings.

[6] The appellant's case is that the entire purchase price of the said subject properties came from account No. 03-035-712 with the Hongkong and Shanghai Banking Corporation. This account is in the joint names of the appellant and his father, Choong Ah Kow ('the joint account'). The appellant claimed that his father's contribution towards the said joint account was minimal, because due to his meager salary and financial commitment to his family, nothing much was left by his father by way of savings in the joint account. On the other hand, the appellant claimed that from the very first day of his working life with a Singapore company, he had deposited all his income into this joint account. He claimed that he did not withdraw any monies from the said joint account for household and personal expenses. That together with his salary and travelling allowances and claims his portion in the joint account was substantial enough for him to have purchased the subject properties.

[7] The appellant gave details of his purchases of the subject properties in this manner:

The Bungalo