JUDGMENT

Yeoh Wee Siam J:

Introduction

[1] This is an appeal by the plaintiff/appellant ("appellant") against the decision of the High Court given on 12 October 2016 which dismissed the appellant's claim against the 1st defendant/1st respondent ("1st respondent") and the 2nd defendant/2nd respondent ("2nd respondent") with costs of RM35,000.00 to the 1st respondent and RM25,000.00 to the 2nd respondent.

Brief Facts

[2]According to the appellant's pleaded case, Bee Fathima, the deceased ("the deceased"), passed away on 23 February 1993 in India leaving behind the appellant and her four siblings one of whom was RKM Sharbudeen a/l RKM Mohamed Abu Backer ("RKM Sharbudeen"), her brother.

[3] RKM Sharbudeen passed away on 13 January 2014 in India leaving behind four children and beneficiaries, one of whom is the 1st respondent, the Administrator of the estate of RKM Sharbudeen.

[4] According to the appellant, the deceased had purchased the property known as Lot No 311, Second Floor, Ampang Park Shopping Centre ("property") from the vendor/developer ("developer"), ie the 2nd respondent, by a Sale and Purchase Agreement ("SPA") dated 21 May 1973 (RR Jld 3 Bhg C pp 247-272), and the full purchase price was paid by the deceased during her life time. Sometime in 2010, the 2nd respondent transferred the Property to RKM Sharbudeen on behalf of the deceased.

[5]The appellant alleged that the 1st respondent deceitfully and fraudulently caused the 2nd respondent to transfer the Property to RKM Sharbudeen by utilising the false Deed of Assignment ("Deed of Assignment") (RR Jld 3 Bhg C pp 280-283) purportedly made by the deceased on 10 December 1992 before a Notary Public in the Tiruvarur District, Tamil Nadu, South India.

[6] As a consequence of the alleged fraud committed by the 1st respondent, the 2nd respondent transferred the Property to RKM Sharbudeen by way of Form 14A dated 26 October 2010 (RR Jld 3 Bhg C pp 310-313) which was registered on 6 December 2010. The 1st respondent and her family have since been occupying the Property.

The Appellant's Claim

[7] The Appellant, in para 13 of her Amended Statement of Claim (KR Jld 1 Bhg A pp 44-50) applied, inter alia, for the following reliefs:

(a) a declaration that the Deed of Assignment dated 10 December 1992 purportedly made between the deceased as Assignor of the one part and RKM Sharbudeen as Assignee of the other part in respect of the Property is invalid, null and void and the same be set aside forthwith;

(b) a declaration that the transfer in Form 14A dated 26 October 2010 (Presentation No: 48216/2010) of the property and the registration thereof from the 2nd respondent, as the developer and registered proprietor of the Property, as transferor, to RKM Sharbudeen, as the transferee, pursuant to the Deed of Assignment is invalid, null and void and the same be set aside forthwith;

(c) an order that the 2nd respondent do execute a transfer in Form 14A of the Property to the appellant in her capacity as the Administratrix of the estate of the deceased pursuant to cl 10(3) of the SPA dated 21 May 1973 made between the 2nd respondent, as the vendor of the one part, and the deceased, as the purchaser of the other part.

Agreed Issues To Be Tried Before The High Court

[8] The learned Judicial Commissioner ("JC") summed up the Agreed Issues for trial before him as follows:

"(i) Whether the Deed of Assignment dated 10 December 1992 was duly executed by Bee Fathima and attested by R.S Rajakumar, advocate and notary practicing (sic) in Tiruvarur, South India.

(ii) Whether s 114(g) of the Evidence Act 1950 ought to be invoked against the 1st Defendant for refusal to produce the original Deed of Assignment for inspection and examination by the expert witness.

(iii) Whether the said Deed of Assignment is invalid for any other reasons.

(iv) Whether the said Deed of Assignment is invalid under s 4A of the Stamp Act, 1949.

(v) If the answer to issue No (i) is in the negative and the rest of the issues are in the affirmative,