In civil cases, the burden of proof lies on the claimant; failure to prove execution of the PA validated fraudulent transfers of property.

Abu Bakar Jais JCA:

Introduction

[1] The dispute in this case is among family members over a piece of land. The High Court decided that the land was lawfully transferred from the appellant to the 1st respondent and thereafter to the 2nd respondent. The appellant appealed against that decision of the High Court.

[2] Among others, the dispute involves an allegation that the instruments used to transfer the land are tainted with fraud and the appellant as the owner of the land had not at any point in time agreed to this transfer of the land.

Background Facts

[3] The appellant is the nephew of the 1st respondent. The 2nd respondent is the sister of the appellant. The 3rd respondent is an advocate and solicitor cum commissioner of oaths.

[4] The disputed land was at all material times, registered under the name of the appellant who got the land from his grandmother, Sinnakah a/p Bommaneikkan ("Sinnakah"). The appellant contended the land was then transferred to the 1st respondent (Sinnakah's daughter) without his knowledge. Having been registered as the owner, the 1st respondent transferred the land to the 2nd respondent after the latter claimed to have bought the same from the former. There is a Power of Attorney ("PA"), attested by the 3rd respondent, which is heavily disputed by the appellant. It is alleged this PA was signed by the appellant in the presence of the 3rd respondent. The appellant alleged that his signature on the PA was forged. This PA purportedly transferred the land from the appellant to the 1st respondent for a consideration of RM 10,000.00. The PA also purportedly allowed the land to be registered under the name of the 1st respondent or anyone the 1st respondent wishes. The PA states as follows:

Bahawa harta ini asalnya adalah milik nenek saya dan sekarang saya serahkan semula kepada emak saudara saya iaitu yang menerima Surat Kuasa Penuh ini dengan bayaran penuh kasih sayang berjumlah RM 10,000.00 sahaja dan telah saya terima sepenuhnya. Maka mulai hari ini harta ini adalah menjadi milik sepenuhnya penerima PA ini dan berhak untuknya memindahmilik harta ini kepada namanya sendiri atau pihak lain tanpa hadir saya sehingga selesai.

[5] The 1st respondent has also made a Statutory Declaration ("SD") before the 3rd respondent. This SD stated that the PA was executed before the 3rd respondent. These PA and SD became part of the instruments for the transfer of the land from the appellant to the 1st respondent and thereafter, the land was transferred from the 1st respondent to the 2nd respondent after payment of RM 150,000.00 was made by the latter.

[6] The appellant sued all the respondents on the basis that he did not at any time sign the PA or agree to the transfer of the land and he did not receive RM 10,000.00 as consideration for the transfer of the land from the 1st respondent. Among others, the appellant raised the allegations of collusion, cheating, irregularities and fraud against all the respondents in respect of the transfer of the land.

The High Court's Decision

[7] The learned trial judge found that the appellant had failed to prove that the PA was executed because of fraud. Further, there were no irregularities, collusion and cheating proven by the appellant against all the respondents. The appellant failed to prove that he did not sign the PA. It was the finding of the learned trial judge that the PA was indeed executed by the appellant. The appellant's signature on the PA was not forged. The appellant had asked DW5 to prepare the PA. The appellant, the 1st and 2nd respondents, DW3 (the appellant's mother) and DW4 (the appellant's brother) had gone to the office of DW5, a petition writer to ask DW5 to prepare the PA. After drafting the same, DW5 then brought all of them to the office of the 3rd respondent. The PA was then signed by the appellant before the 3rd respondent, who attested the PA. Since the PA was executed by the appellant, the transfer of the land to the 1st respondent was valid.

[8] The lea