Syed Agil Barakbah SCJ:

The appeal before us is against the decision of the learned Judge of the High Court, Kuala Lumpur, dismissing the plaintiff/appellant's motion for the removal of a private caveat entered by the defendant/respondent against the land held under HS (M) 764, P.T. NO. 4956, Mukim of Cheras, in the state of Selangor (hereinafter called "The Said Land"). The application was made under s. 327 of the National Land Code on the ground that the respondent has no title or interest that would entitle him to caveat the said land. Leave to appeal against the decision was granted by the learned Judge.

The respondent filed a motion before us for extension of time to file a cross-appeal against the decision of the learned Judge who dismissed his preliminary objection on points of law. The points of law raised in the respondent's affidavit in support of the motion for leave need not be considered separately because they refer ultimately to the same issue in this appeal, viz. whether respondent has a caveatable interest in the said land. We decided to proceed with the appeal and directed the Counsel for the respondent, i.e., the caveator, to submit first.

The relevant facts of the case according to the affidavits of the appellant and that of her father were that the respondent and the appellant are brother and sister and both are directors and shareholders of a family company known as King's Agencies Sdn. Bhd. with two other brothers as directors. The company functions as a real estate agent. Their father from time to time provided financial assistance to the company in the form of loan advances. Some time in the early part of January 1983, negotiations and discussions started for the purchase of the said land and a house standing thereon. Finally, the appellant decided to purchase the property through the Agencies at a price of RM95,000. A sum of RM28,500 was advanced by her father and handed to the respondent by cash and cheques and the balance of RM66,500 was raised by a loan from the Development & Commercial Bank (D & C Bank) by charging the said land with the Bank as security. The title deed to the said land was registered in the name of the appellant on 17 February 1984 and the housing loan from the bank was also taken in her name. She also executed the charge documents as chargor on the same day. The respondent stood as guarantor. As she was then living in Ipoh, she requested her brother to manage the property by collecting rents and paying whatever expenses connected therewith. On 21 November 1984, she appointed the respondent as her power of attorney registered on 29 November 1984 as P/A No. 17095/84. On 16 January 1985, the respondent lodged a private caveat on The Said Land under s. 323 of the National Land Code. The statutory declaration supporting the respondent's application for lodging for lodging the caveat at para. 4 states:

STATUTORY DECLARATION

Jeswant Sing s/o Bakhtar Sing (I.C.No. 78762261 of No. 16,5L/4, Petaling Jaya, Selangor, do solemnly and sincerely declare that:

1. ...

2. ...

3. ...

4. The said property was registered in the name of the registered proprietors who are also directors and shareholders of the company as trustees of the company's beneficial interest in and title to the property.

5. ...

6. ...

About six months later on 1 July 1985, the appellant revoked the power of attorney by executing a deed of revocation, a copy of which was handed to the respondent with a covering letter (see pp. 62 to 64, Vol. 3 record of appeal). Further correspondence ensued requesting the respondent to remove the caveat, but to no avail.

The respondent in his affidavit stated that he caveated The said land in his capacity as director and agent of the company in order to protect and give notice of the beneficial and equitable interest of the company in the said land. Furthermore, although the title deed was registered in the appellant's name, the said land was purchased from the company's own funds ge