JUDGMENTBY: SYED AGIL BARAKBAH SCJ

(delivering the Judgment of the Court): This appeal involved a claim by the appellant (plaintiff in the Court below) against the respondent (defendant in the Court below) over a piece of land held under Q.T. (R) 24 Lot No. 27 Section 14, Bentong, Pahang with house No. 27 thereon registered in the name of the respondent on the grounds that the said property belonged to the appellants husband and should be transferred to his estate on his death. As the widow of the deceased, she sought a declaration that she was entitled to a share in the said property. The respondent is the wife of one David Yong, the son of the deceased and the stepson of the appellant. He was responsible for transferring the said property to his wife instead of including it in the estate of his deceased father. His contention was that he had bought the property from the former registered owner. The respondent filed a counterclaim against the appellant for damages for wrongfully caveating the said property. The learned trial Judge dismissed the appellants claim with costs and also the respondents counterclaim with costs. Both parties appealed. We allowed the appellants appeal with costs but dismissed the respondents cross-appeal with costs. We now give our reasons for doing so.

According to the salient facts, the deceased was a housing developer running his business under the name of Ban Hua Development Co. at No. 28 & 30, Jalan Sungai Besi, Kuala Lumpur. He had a nephew named Paw Ching Yew ("Paw") a businessman residing at Port Dickson, Negeri Sembilan who purchased Lot 27 from another developer through his introduction and became the first registered owner thereof. In the year 1968 an Indian friend named Ponnu who had retired from the government service requested the deceased to build a house for him on Lot No. 32, Section 14 Q.T. (R) 62, Bentong which Ponnu had purchased. Lot 32 was adjacent to Lot 27. The agreement between them was that the deceased allowed Ponnu to occupy the house on Lot 27 while Ponnus house on Lot 32 was being constructed. Since the said property was registered in the name of Paw, an agreement was executed on June 22, 1968 between the three, viz., Paw as the assignor, Ponnu as the assignee and the deceased as the "Builder" and on certain payments to be made by Ponnu to Paw and the deceased, Paw assigned all his beneficial interest in Lot 27 to Ponnu (AB.1 on pages 164 to 166 of Appeal Record; called "the first agreement"). It appeared that the purpose of executing the agreement was to enable Ponnu to occupy the house on the said Lot until the house on Lot 32 was completed and Ponnu could then exchange the former with Lot 32. Subsequently on January 7, 1969 the deceased in the name of his company executed another agreement with Ponnu for the construction of house Type B5A on Lot No. 32 (called "the second agreement). When the house on the said Lot was completed, the deceased and his wife, the appellant occupied it with their children and Ponnu continued occupying Lot 27. On January 2, 1971 the deceased and Paw executed an agreement in Chinese whereby Paw sold Lot 27 to the deceased at a price of $ 22,000/- (called "the third agreement"). Later, on Ponnus request the deceased agreed to have the lots exchanged by cross-transfer, i.e., Lot 27 to Ponnu and Lot 32 to himself but before it was done the deceased passed away on September 5, 1976 after being involved in a road accident. In the appeal before us two main issues were argued. First, whether Lot 27 was bought by the deceased from Paw and whether on his death it should form part of his estate. Secondly, whether the transfer of the said Lot to the respondent was fraudulent.

In the first place, the learned trial Judge having considered the first agreement concluded that Paw had no more title in the property to pass to the deceased and the alleged sale to the deceased in 1971 (referring to the third agreement) could not be valid. In the result,