Mohd Ghazali Yusoff JCA:

The respondents (the plaintiffs in the court below) are the administrators of the estate of Yakoob bin Mohamed Seeni, deceased ( & quot;the deceased & quot;) who died on 10 July 1993. They are the sons of the deceased. The appellant (the defendant in the court below) is the younger brother of the deceased.

The dispute between the respondents and the appellant revolves around a piece of land comprised in Grant No. 9691, Lot 734, Section 3 Bandar Jelutong, Daerah Timur Laut, Pulau Pinang together with a house erected thereon and known as No. 31, Lebuhraya Jelutong, Pulau Pinang ( & quot;the said property & quot;). The registered owners of the said property are the deceased and the appellant in equal shares.

By this writ action, filed on 25 February 1997, the respondents sought for a declaration that the appellant has no beneficial interest in the said property but held his half-share on a resulting trust for the benefit of the deceased during his lifetime until his death on 10 July 1993 and thereafter for the benefit of his estate. They also sought for an order that the appellant transfer his half-share in the said property to them.

The respondents' claim was pursued on the basis that the deceased had purchased the said property and had paid for it in full himself and that the same was also registered in the name of the appellant solely to enable the deceased to obtain a loan from Malaya Borneo Building Society Ltd ( & quot;MBBS & quot;). The sale and purchase agreement was dated 15 August 1963.

It was the respondents' case that the deceased contracted to purchase the said property for RM17,000 and had paid a sum of RM4,500 towards the purchase price. In order to finance the balance of the purchase price the deceased approached MBBS for a loan and was advised that the loan would be granted if a joint application was made by two individuals with sufficient incomes to qualify for the loan. As such, the deceased obtained the consent of the appellant to register the said property in the latter's name as co-proprietor and subsequently submitted a joint application to MBBS for a loan of RM11,600. The loan was approved and subsequently the said property was registered in the names of the deceased and the appellant as co-proprietors. The said property was charged to MBBS as security for the loan. The respondents claimed that it was the deceased who repaid the loan by monthly instalments and upon full payment, the charge was discharged.

The appellant opposed the claim and in his defence contended he had also contributed towards the purchase monies for his half-share. He claimed he paid the deposit of RM500 towards the purchase of the said property and the balance was jointly paid by the deceased and him including the MBBS loan of RM11,600. He also made a payment of RM5,851 to redeem the said property from MBBS.

At the end of the trial, the learned judge ordered a division of the said property in two shares of 3/4 in favour of the estate and 1/4 share in favour of the appellant and ordered that each party was to bear its own costs. Against that decision the appellant appealed. The respondents cross-appealed.

In his grounds of decision, the learned judge noted that the receipt for the payment of the deposit towards the purchase of the said property was issued in the name of the deceased and one Bukhari, who is the brother of the deceased and the appellant but the other relevant documents such as the title, the sale and purchase agreement, the loan application and most of the receipts towards the repayment of the loan were issued in the names of the deceased and the appellant.

At the trial, the deceased's widow testified that the appellant's name was used for the purpose of obtaining the loan. She later stated that Bukhari's name was used to obtain the loan. She insisted that it was the deceased who made all the payments towards the purchase of the said property. The 2nd respondent, who was yet to be bor