JUDGMENT

Lee Swee Seng JC:

[1] This is a family dispute over a piece of property. The plaintiff is the brother-in-law of the defendant. The defendant had married the plaintiff 's elder brother, one Mr Tamil Das s/o Subramaniam. The defendant's husband had passed away on 26 November 2010. According to the defendant, when her husband was alive, he had purchased two pieces of properties but had them registered in the name of his brother, the plaintiff. The reason was that he had been black-listed by the banks over a default in a hire purchase loan. According to the defendant her husband was the one who had arranged for the purchase of the properties and paid the deposit for the purchase price. A loan was taken and though under the name of the plaintiff, it was the defendant's husband who was making the instalment payments. When he had problems servicing the loan, another brother Anbalagan who was DW3 in the trial, helped out. An irrevocable Power of Attorney was given by the plaintiff to the defendant after the loan was fully repaid. After the husband's death the defendant transferred the property mentioned in the irrevocable Power of Attorney to herself as a Trustee for her son who is still a minor.

[2] The plaintiff cried foul. Briefly his version was that it was he who had purchased the properties. It was he who paid the monthly instalments. He said the Power of Attorney was given to the defendant to help her liaise with the bank for the discharge of charge and to pay assessments annually.

[3] As the two versions are diametrically different, this court must unravel the truth in deciding which of the two versions is consonant and consistent with the truth.

Prayer

[4] The plaintiff had prayed for the following:

1. An order revoking the Power of Attorney duly registered with the Ipoh High court;

2. A declaration that the plaintiff is the duly registered owner of land held under Geran Mukim 2274, Lot 13483, Mukim Sitiawan, Negeri Perak ("the said property");

3. A declaration that the transfer of the said property to the defendant was null and void;

4. An order that the registration of the transfer of the said property in the name of the defendant be declared null and void and be cancelled;

5. Damages and costs.

[5] The defendant prayed for all of the plaintiff 's claims to be dismissed with costs and also counterclaimed for damages including exemplary and aggravated damages for fraudulently claiming the said property to be his when he had full knowledge that he was a trustee only for Tamil Das, his brother and the husband of the defendant.

Parol and Paper Evidence

[6] The evidence before the court was that on 20 November 1992 the plaintiff had entered into a sale and purchase agreement to purchase two pieces of land known as GM2274, Lot 13483 and GM2275 and Lot 13484. The plaintiff's version is that he had paid the deposit for the purchase of the properties and that subsequently a loan was taken from MBf Finance Bhd. However when he was cross-examined, he could not tell the court how much was the loan taken, how much was the instalment per month and how long was the duration of the loan. He did not know when the loan was fully repaid. It is rather strange for a borrower not to be able to remember these basic commitments per month unless of course someone else was paying the instalments and assuming the liability for the loan.

[7] I find that defendant's version having a ring of truth round about it. Her husband, a welder, was interested in the two pieces of properties. He wanted to set up his welding workshop there. He found himself blacklisted because of his previous default in a hire purchase loan. He approached his brother the plaintiff to hold the land on his behalf. He arranged for the loan from MBf Finance Bhd, Sitiawan branch. The defendant testified that her husband paid the deposit for the purchase by selling another piece of land that her late husband owned.

[8] Considering that the plaintiff only worked as a crane operator in Singapore