The court ruled that the Plaintiffs failed to prove their claims of forgery and unlawful transfer of property shares, affirming the 3rd Defendant Bank's status as a bona fide subsequent chargee entitled to indefeasibility of title.

A. Introduction

[1] The two Appeals before us concern a claim by two co-beneficiaries ("the Plaintiffs") against another co-beneficiary ("the 1st Defendant of a property left by their deceased father ("the deceased's estate"). The Plaintiffs alleged that the 1st Defendant had unlawfully transferred their collective 2/5th shares (each of the Plaintiffs own 1/5th share) of the deceased's estate's property to her name. It was also alleged that subsequent to the transfer, the 1st Defendant had wrongfully charged the Plaintiffs' shares on the property together with their 1/5th share each on the property to secure a personal loan of RM220,000.00 from the bank ("the 3rd Defendant Bank").

[2] The 2nd Defendant in this action is the Registrar of Titles, Lands and Surveys Department. They were sued as a nominal Defendant for purposes of execution of any consequential orders made by the Court if at the end of the case the Plaintiffs were to succeed in their claim. At the High Court, the learned State Counsel who appeared for the 2nd Defendant had placed on record that they would not be taking part in the trial of the action and would abide by the decision handed down by the Court.

B. Background Facts

[3] For a better understanding of the matter at hand, it is necessary to set out the facts of the case that have led to the present Appeals before us. The Plaintiffs (Fung Shaw Yiew @ Jellfer - 1st Plaintiff) and Fung Siew Fa @ Emily - the 2nd Plaintiff) and the 1st Defendant (Fung Lee Mee @ Jellsie) are siblings. They have two (2) other sisters namely; Fung Lee Lee @ Lily Fung ("Lily") and Fung Siew Yee @ Suzie Fung ("Suzie").

[4] As we have mentioned earlier, the dispute in this matter relates to a property left by the late Fung Sing Wah @ Ah Sing who was the late father of the Plaintiffs, the 1st Defendant as well as Suzie and Lily who were not parties to this suit. Fung Sing Wah @ Ah Sing passed away on 8 November 1991. The property is a double-storey corner commercial shophouse located at Lot 26, Cameron Villa, 3.5 mile, Jalan Penampang situated in the District of Kota Kinabalu and held under Country Lease No 015328471 ("the Property").

[5] By an Order of Succession ("Jadual Tiga") issued by the Mahkamah Anak Negeri Kota Kinabalu under Native Court Case No 192/92 and registered by the Registrar of Titles under Memorial No 10285510, the two Plaintiffs Jellfer and Emily, the 1st Defendant (Jellsie), Lily and Suzie were registered as equal co-owners of 1/5th share each of the Property.

[6] The 3rd Defendant Bank (Public Bank Berhad) is the chargee over the whole of the Property in dispute. The 3rd Defendant Bank was not a party to the dispute between the Plaintiffs and the 1st Defendant, until after conclusion of trial when it was revealed that a charge was subsisting over the Property in favour of the 3rd Defendant Bank.

[7] The learned High Court Judge was of the view that although the Plaintiffs' action was only in respect of their respective 1/5 shares in the Property, since the charge was over the whole of the Property, the rights of the 3rd Defendant Bank were likely to be affected by the outcome of the