Azizan Md Arshad JC:

GROUNDS OF JUDGMENT

[LAMPIRAN 1]

Introduction

[1]Plaintiff filed suit against Defendants seeking recovery of the 1/2 share in the land identified as Lot No. 1944 and 1945, Geran Mukim No. GM942 and No. GM943, Mukim 17, Daerah Seberang Perai Tengah, Pulau Pinang (collectively known as “GM942 and GM 943” or “Land”) that belonged to the estate of Chong Thoo Fooi (“CTF”) transferred from First(1^st) and Second(2^nd) Defendant to Third Defendant(3^rd). The Land was also previously referred to as Lot 131 before it split into GM942 and GM943.

[2]Plaintiffs commenced this action after discovering that CTF’s interest in the land had been improperly transferred to 3^rd Defendant on 18.03.2014, more than 60 years after the death of CTF. Plaintiff asserted this claim in his capacity as the manager of CTF Properties (“CTF Properties”).

[3]Despite being served with the Writ and Statement of Claim, the 1^st and 2^nd Defendants did not enter any appearances or formally engage in the proceedings. Despite the fact that both the 1^st and 2^nd Defendants had only made irregular appearances in Court, both the 1^st and 2^nd Defendants did not file any Defence. Neither did they give any oral evidence nor subject themselves to cross- examination. The 1^st and 2^nd Defendants are subsequently held liable.

[4]The Court allowed all of the Plaintiff’s claims with costs of RM30.000.00 each to be paid by Defendants to the Plaintiff, subject to allocator, after a 12-day trial in this case. Against this judgment, the 3^rd Defendant appeals. In this judgment, parties are referred to as they were in the High Court.

Cause papers

[5]The following are the main cause papers referred to by the parties in this trial.

(i)Writ Saman [Lampiran 1]

(ii)Penyataan Tuntutan [Lampiran 2]

(iii)Pembelaan dan Tuntutan Balas Defendan Ketiga [Lampiran 12]

(iv)Jawapan kepada Pembelaan [Lampiran 13]

(v)Pembelaan Terpinda dan Tuntutan Balas [Lampiran 16]

(vi)Pindaan Jawapan Kepada Pembelaan Terpinda [Lampiran 17]

(vii)Ikatan Pliding [Lampiran 18]

(viii)Fakta Yang Dipersetujui [Lampiran 23]

(ix)Isu-isu Untuk Dibicarakan [Lampiran 24]

(x)Ringkasan Kes Plaintif [Lampiran 26]

(xi)Ringkasan Kes Defendan [Lampiran 27]

(xii)Isu-isu Untuk Dibicarakan [Lampiran 28]

THE ISSUES TO BE TRIED

Based on the Statement of Issues to be tried by parties, the relevant issues to these proceedings are as follows:-

(i)Whether the Trust Deed dated 1.2.2000, purportedly executed by CTF approximately forty-nine (49) years after his death, is void and unenforceable by reason of forgery and/or fraud;

(ii)Whether the Taiping Court Order obtained by the 1^st Defendant and 2^nd Defendant is void by reason of fraud and ought to be set aside;

(iii)Whether the registration of title of the Land by CTF to the 1^st Defendant and 2^nd Defendant by virtue of the Taiping High Court Order is defeasible and ought to be set aside;

(iv)Whether the registration of the title of the Land from the 1^st and 2^nd Defendants to the 3^rd Defendant is defeasible and ought to be set aside;

(v)Whether the 3^rd Defendant is a purchaser of the Land in good faith and for valuable consideration and had obtained indefeasible title to the Land;

(vi)Whether the good faith on part of the 3^rd Defendant (which is denied) had been negated through the 3^rd Defendant’s knowledge of the suspicious circumstances surrounding the transfer of the title in the Land from CTF to 1^st Defendant and 2^nd Defendant, and/ or through his own carelessness and negligence; and

(vii)Whether the Plaintiff has a caveatable interest on the land by virtue of Section 323 National Land Code 1965.

Background facts

[6]This Court adopts and refers to the facts of the case that are prepared and referred to by both parties as a summary of the background to the facts of this judgment.

[7]The claim was initiated by the Plaintiff for the application that there had been a fraudulent transfer of ownership of the land to the 3^rd Defendant through actions masterminded by the 1^st and the 2^nd Defendants.

[8]By virtue o