Gopal Sri Ram JCA:

This is the judgment of the court.

Two questions arise in this appeal. One is a question of fact and the other a question of law. The factual matrix from which these questions arise fall within a small compass. For convenience, we will refer to the parties in accordance with the title assigned to them in the court below. This is the plaintiff's appeal.

The Facts And Issues

The plaintiff and the defendant are brothers. The defendant is the registered proprietor of a piece of land which was acquired by way of two separate transactions. In the first transaction the plaintiff purchased a 1/2 undivided share in the land under an agreement dated 25 February 1975. The price was RM21,654. About a year later, the remaining half was purchased for RM24,000. No written agreement was prepared for this second transaction. The land was then registered in the defendant's name. However, in or around October 1980, upon the plaintiff's request the defendant transferred the 1/2 share of the said land to the plaintiff while the other (1/2) undivided share remained in the defendant's name. Later the plaintiff has by a notice in writing dated 17 October 1995 to the defendant's solicitors demanded the retransfer of the remaining half (1/2) undivided share still in the defendant's name to the plaintiff's name, but the defendant refused. He claimed that he paid RM24,000 under the second transaction and was therefore both legal and beneficial owner of the remaining (1/2) undivided share in the land. The plaintiff then commenced proceedings to recover the 1/2 undivided share of the land from the defendant.

The plaintiff's case is that he provided the whole of the purchase price for the land. His reason for having the land registered in his brother's name appeared for the first time during his evidence in chief. This is what he said:

I wanted my brother's name because I had some money in Singapore and brought it back to Malaysia and I was not sure of the tax position in Malaysia. So I wanted to use his name.

I was worried about being taxed - about losing the property. I told the lawyer Lek Yan to put the Defendant's name on the property.

I told the lawyer that I want my brother's name to be in the title and to hold it for me first - later I will take it from him.

I told the Defendant about putting the property in his name. I told Lek Yan I was not sure about the tax position in Malaysia - that's why I want the Defendant's name to be in the title first.

The defendant did not pursue this point with any vigour in the cross - examination of the plaintiff. His pleaded case is that he provided part of the purchase price and that is the case he pursued throughout the trial. He did not at anytime amend his pleadings to raise an alternative case of illegality.

The Factual Question

So, the first question - the question of fact - is whether it was the plaintiff who had paid the entire price or whether the defendant had contributed an equal share. It is a straightforward question. The High Court resolved it in the defendant's favour. Was it right in doing this? Learned counsel for the plaintiff submitted that it was not. Learned counsel for the defendant submitted that it was. With respect, we agree with plaintiff's counsel.

The best evidence to prove who had paid the whole of the purchase price was that of the vendor. And his evidence, unshaken under cross - examination is that he had dealt entirely with the plaintiff and that it was the plaintiff who had paid the price at each of the two stages. There was absolutely not a shred of documentary evidence put in by the defendant to show that he had paid any part of the purchase price. His answers given at the trial would not, when objectively viewed, inspire any confidence in his testimony in any reasonable tribunal of fact. Indeed, the evidence before the High Court was to the effect that the defendant was not in a financial position to have paid the purchase price of RM24,000 under the sec