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2025 MarsdenLR 3132
HIGH COURT MALAYA KUALA LUMPUR
KISHOR SHRI KISHINCHAND – Appellant
Versus
SRI KELADI SDN BHD – Respondent
[Civil Suit No: WA-22NCvC-276-04/2019]
The court found that the plaintiff proved ownership of property through substantial evidence despite the absence of original documents, affirming the role of administrators in seeking equitable relief on behalf of estates.
Headnote:(A) Companies Act 1965 - Section 226(3) - Legal and beneficial ownership of property - Plaintiff sought declaration as lawful owner of property belonged to late wife, claiming documents destroyed in a fire - Liquidators denied claim, seeking proof of ownership - Court directed liquidators to execute transfer documents - Court affirmed plaintiff's right as administrator of estate. (Paras 28, 11, 12, 26, 24)
Facts of the case:
The plaintiff, as the administrator of his late wife's estate, claimed ownership of property in Bukit OUG Condominium, asserting his late wife's purchase of the property. However, the sale and purchase documents were lost in a fire. The defendant's liquidators contested this, requiring evidence of ownership.
Findings of Court:
The plaintiff established a prima facie case that the property was purchased by his late wife, supported by testimony and documents, shifting the burden to the defendant to disprove the claim.
Issues: The key issues included whether the plaintiff's evidence sufficiently proved ownership of the property and whether he had locus standi to claim on behalf of the estate.
Ratio Decidendi: The court determined that the overwhelming evidence from the plaintiff supported his claim, and exceptional circumstances warranted the exercise of the court's equitable jurisdiction to grant relief to the plaintiff as administrator, preserving the rights of the beneficiaries.
Result: Judgment in favor of the plaintiff, declaring him the rightful owner and directing liquidators to transfer the property.
| Table of Content |
|---|
| 1. ownership and responsibility of property. (Para 1 , 2 , 3 , 4) |
| 2. commencement and process of legal action. (Para 5 , 6) |
| 3. challenges in establishing ownership. (Para 7 , 8 , 9) |
| 4. evidence supporting ownership claims. (Para 10 , 11 , 12) |
| 5. assessment of evidence credibility. (Para 13 , 14 , 16 , 17 , 18 , 19 , 20) |
| 6. arguments on entitled ownership. (Para 21 , 22) |
| 7. equitable relief considerations. (Para 23 , 24 , 25) |
| 8. court's discretion in granting relief. (Para 26 , 27) |
| 9. final judgment and orders issued. (Para 28) |
Introduction
[1] The plaintiff is suing the defendant for a declaration that he is the lawful and beneficial owner of the property carrying a postal address of C3-31 (2-3-1), Block 2, Bukit OUG Condominium, 58200 Kuala Lumpur ("hereinafter referred to as the said Property") and consequential reliefs that:
(i) the defendant executes a transfer form in Form 14A and all related documents to transfer the said Property to the plaintiff;
(ii) the defendant is to release the issued strata title to the said Property and all such documents as are necessary to effect the transfer of the said Property at the land office at the plaintiff's costs;
(iii) the plaintiff be awarded the costs of this action.
Parties
[2] The plaintiff is a Malaysian citizen of full age and residing at Lot 1152, Jalan KK5/5, Bandar Baru, Kubang Kerian, 16150 Kota Bharu, Kelantan.
[3] The defendant is the developer of the housing project known as "Bukit OUG Condominium" which includes the said Property. It was ordered to be wound up pursuant to a Court Order made on 16 November 2005 and has gone into liquidation. By way of a Court Order dated 13 April 2018, the plaintiff was given liberty to initiate proceedings against the defendant pursuant to s 226(3) of the Companies Act 1965 .
[4] The claim by the plaintiff is defended by the two liquidators of the defendant. They denied that the plaintiff is entitled to the said Property and put the plaintiff to strict proof that the plaintiff is entitled to the said Property.
Trial
[5] The plaintiff's action was initiated by way of Originating Summons filed on 29 April 2019. After an exchange of affidavits, on 2 May 2019, the Court directed for the action to be converted to a Writ action. A Writ and a Statement of Claim were both filed on 29 May 2019. There followed the COVID-19 pandemic which delayed the progress of this action.
[6] The trial of this action commenced on 5 September 2024 and concluded on 26 March 2025 with two witnesses produced by the plaintiff and only one by the defendant. The trial was unfortunately prolonged due to a number of adjournments brought about due to the earlier learned counsel for the plaintiff suffering from one medical mishap or another. This led to the Court directing that any further adjournment on such a ground would not be allowed, and that the plaintiff was to ensure that another counsel is to be ready to proceed with the trial.
Background
[7] Both the plaintiff and defendant were not able to produce the sale and purchase agreement to the said Property for the following reasons.
[8] The plaintiff asserted that the said Property was purchased in the name of his late wife, Meena a/p Ishwardas Dayalani, who passed away on 15 March 1995. Due to a fire which broke out in his office where the sale and purchase and related documents were stored, all of the documents were destroyed in June 2004. A police report on the fire was lodged on 28 June 2004.
[9] On the other hand, the liquidators, after having been appointed on 7 September 2006 claimed that they could not recover the files of the individual claimants and purchasers of the units in the said Project as well as the Master Register of the Purchasers of these units.
Court's Analysis and Findings
[10] After the death of the plaintiff's wife, Letters of Administration ("LA") to his wife's estate were granted to the plaintiff on 6 August 1995. In the list of assets annexed to the LA (IDB pp 6-19) is an item descri
