Arifin Zakaria FCJ:

Background

[1] This is an appeal against the decision of the Court of Appeal reversing the decision of the High Court. Leave was granted by this Court on two questions of law which read as follows:

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(1) whether the beneficiaries of the deceased person without first obtaining the Letters of Administration have a locus standi to commence an action to protect and to regain the land which has been fraudulently obtained by an outsider; and

(2) after confirming the finding of fraud, whether the Court can direct the registration of the said land to the party who had committed the fraud.

[2] The subject matter of the dispute is a 1/2 undivided share in a piece of land situated at Batu 17 3/4, Kuang, Rawang, Selangor held under the Issue Document of Title EMR 2900, Lot 2439, Mukim Rawang, Selangor Darul Ehsan (the said land). Hj Abu Bakar bin Hj Sulaiman (deceased) was the registered owner of the said land until it was transferred to Rosman bin Roslan, the respondent in the present case. The validity of the said transfer was challenged by the appellants who alleged that the transfer was obtained by the respondent through fraudulent means.

[3] The appellants claim that they, as the grandchildren of the deceased, are the lawful beneficiaries of the deceased's estate. Having discovered that the respondent had trespassed into the said land they brought this action against the respondent asking the respondent to vacate the said land and for damages.

The Findings Of The High Court

[4] On the evidence before the Court, the High Court found that:

(1) the appellants were the lawful grandchildren of the deceased;

(2) the deceased had passed away in Indonesia in the year 1937;

(3) the respondent by a statutory declaration claimed that the issue document of title of the said land had been lost from his custody;

(4) in view of the fact that the deceased had passed away in 1937 the Power of Attorney (exh D1) dated 4 March 1986 could not have been executed by him; and

(5) the respondent had entered upon the said land and cut fruit trees and demolished the houses on the said land.

[5] On the above premise the learned High Court Judge came to his decision that the appellants had on balance of probabilities proven their case against the respondent and entered judgment in favour of the appellants in terms of prayers (c), (d), (e) and (f) of the claim. The Court also awarded damages and costs in favour of the appellants.

The Findings Of The Court Of Appeal

[6] On appeal to the Court of Appeal, the order of the High Court was set aside and it was ordered that the memorial in the Issue Document of Title and Register Document of Title in favour of the appellants be cancelled and a memorial in favour of the respondent be entered in respect of the said land. It is further ordered that the Registrar of Land Gombak do enter a Registrar's Caveat against the said land under s 320(1)(a) of the National Land Code (the Land Code). The appellants are, however, given the liberty to file a fresh suit against the respondent within 30 days from the date of the order and the Registrar's Caveat shall remain in force until disposal of the suit to be filed by the appellants.

The Issues Before This Court

[7] For completeness, I need to state that the appellants did not commence a fresh suit as suggested by the Court of Appeal but instead filed an appeal against the whole decision of the Court of Appeal. As I said earlier, two issues were framed by the leave Court for our determination as set out in the opening part of this judgment. The Court of Appeal in its judgment delivered by Nik Hashim, JCA (as he then was) allowed the appeal on the ground that the appellants as beneficiaries have no locus standi to bring this action without first obtaining the grant of the letters of administration of the estate of the deceased. He stated that the Court was constrained by the decision of this Court in Deraman & Ors v. Mek Yam, [1977] 1 MLJ 52 to decide otherwise. In that case