JUDGMENT

Alizatul Khair Osman Khairuddin JCA:

Introduction

[1] This was an appeal by the appellant, Wong Chok Chiw (the 1st plaintiff in the High Court) against the decision of the learned Judicial Commissioner ("JC") of the Ipoh High Court whereby the learned JC had allowed the counterclaim of the respondents (the administrators of the estate of Wong Sing Ping, (deceased)) and Teng Lee Beng (the defendants in the High Court) against the appellant and made, among others, the following orders:-

(a) The 1st plaintiff to transfer 1/5 of his 1/2 undivided share of the land held under EMR 8904 Lot No 2450, Mukim Setiawan ("the said land") to Wong Sum Diong and Wong Sung Kuay as the administrators of the estate of Wong Sing Ping (deceased) within 30 days from the date of the order. In the event that the 1st plaintiff fails to effect the said transfer within 30 days from the date of the order, the Senior Assistant Registrar of the High Court shall be empowered to execute the relevant transfer document in place of the 1st plaintiff.

(b) The 1st plaintiff to pay Wong Sum Diong and Wong Sung Kuay as the administrators of the estate of Wong Sing Ping (deceased) costs of RM7,000.00.

[2] This appeal is only concerned with the counterclaim of the 1st and 2nd defendants against the 1st plaintiff.

[3] We heard the appeal wherein at the conclusion of the hearing we unanimously allowed it with costs. We now give our reasons for so deciding. We shall be referring to parties in this judgment in their original capacity in the High Court.

Brief Background

[4] The 1st plaintiff, the late Wong Sing Khong @ Wong Sing Kwong ("the 2nd plaintiff") and the late Wong Sing Ping ("the 1st defendant") are brothers. The 3rd defendant is the brother-in-law of the 1st defendant.

[5] The 1st plaintiff and the late Wong Sing Khong @ Wong Sing Kwong are the registered proprietors of land held under EMR 8904 Lot No 2450, Mukim Setiawan, Daerah Manjung, Negeri Perak ("the said land"). The ½ undivided share of the said land was transferred to the 1st plaintiff by his father for love and affection on 4 December 1990. The 2nd plaintiff had earlier been registered as the owner of ½ undivided share in the said land when it was transferred from one Ling Kah You to him in 1969.

[6] The 1st plaintiff's siblings were unhappy when they discovered that their father had transferred ½ undivided share of the said land to the 1st plaintiff. They voiced their dissatisfaction to their father. A meeting was held between the 1st plaintiff and Wong Sing Ping ("the 1st defendant") together with his two brothers, the late Wong Sing Khong (the 2nd plaintiff) and Ong Teh Looi @ Wong Seng Lay and their father Wong Khoon Sing whereby an agreement was entered into between the 1st plaintiff (as the fist party) and the aforesaid Wong Sing Ping, the late Wong Sing Khong, Ong Teh Looi @ Wong Seng Lay and Wong Khoon Sing (as the second party) on 8 December 1980 ("the said agreement").

[7] The terms of the said agreement, inter alia, were as follows:-

(i) The fist party shall transfer four lots of the said land complete with a building thereon to each of the second party, respectively;

(ii) The fist party shall have no power to sell the four lots without the consent of the second party;

(iii) The second party is entitled to the incomes derived from the said land;

(iv) The fist party shall apply for the conversion and subdivision of the said land at the expense of the fist party; and

(v) In the event the conversion and subdivision are not approved by the relevant authority, the fist party shall produce the letter of rejection and shall transfer the second party's share in the said land to the second party.

[8] On 6 May 2011, the 1st and 2nd plaintiffs fied Civil Suit No: A-02(NCVC) (W)- 294-10-Tahun 2013 (the subject matter of this appeal) against the 1st defendant and the 2nd defendant, seeking inter alia, vacant possession of the said land.

[9] The 2nd plaintiff, however, passed away before the trial commenced. As a