Vincent Ng Kim Khoay J:

[1] In her divorce petition herein the petitioner had prayed for an order under s 76 of the Law Reform (Marriage and Divorce) Act 1976 (the Act), that the respondent do transfer his half undivided share of the matrimonial home bearing address no 41, Changkat Tembaga, Island Park, Penang (the said property) to her; the other half (1/2) undivided share of the title in the said property being already in her name.

[2] The respondent has, in his answer, prayed that the said property be sold and the proceeds of the sale be divided in the proportion of 70% for himself and 30% for the petitioner.

[3] The background of the case can be gleaned from the statement of agreed facts filed in Court. Briefly, the facts are as follows:

[4] The petitioner and the respondent were married on 29 April 1975. Differences arose in the marriage and the parties were legally separated under an order for judicial separation dated 26 February 1979, on the grounds of the respondent's adultery. A divorce decree nisi was later granted by the High Court on 21 June 1990 under this petition and was made final and absolute on 21 September 1990.

[5] The said property was purchased by the respondent in December 1973 for a total purchase price of RM47,000. Subsequently on 3 February 1975, the respondent included the petitioner's name as co-owner jointly with him. The respondent then arranged for a loan of RM31,000 on the security of a legal charge over the said property in favour of Peninsula Finance Berhad and made the monthly repayments (mortgage instalments) towards its redemption. There was no serious challenge to the respondent's contention that he had, in addition to the initial down payments and the monthly mortgage instalment payments totalling RM55,603.86, expended a sum of RM20,458.98 on legal fees and assessments, fixtures and improvements and assorted movables. It is not disputed that the petitioner had since 1980 paid quit rents and assessments for the said property and had, in August 1990 - that is, after the said divorce decree nisi of 21 June 1990 - expended a sum of RM47,094.06 towards the redemption of the said property following action by Peninsula Mortgage Berhad to auction off the said property.

[6] It is common ground that the petitioner is a teacher, drawing a monthly salary of RM 1,660 while the respondent is a race horse commentator on an income of RM5,250 per mensem. And also, the petitioner together with the child of the marriage has been in sole occupation of the said property since late 1977, and the child of the marriage is no longer a minor, having reached the age of majority in December 1994.

[7] When dealing with an application under s 76 of the Act it is essential for this Court to make a finding of fact on the question of whether the said property was acquired by the petitioner and the respondent during the marriage by their joint efforts, and if so, to apply s 76(1) and (2); or the said property was acquired by the respondent during the marriage by his sole effort, and if so, to apply s 76(3) and (4) of the Act.

[8] At the hearing before me, the petitioner maintained that she had made certain mortgage instalment payments in cash on the said property covered by the ten receipts shown as Exhibits "AB 440" to "AB 450" (item 10 in petitioner's bundle of documents) which were in her custody. She said that as she did not operate a current account in any bank, the mortgage instalments were paid by cheques drawn against the respondent's account, and though the receipts were in his name, they were in her custody because she had repaid him on those payments. She said that she had reimbursed the respondent on the said instalments in cash within a few weeks of each payment. This was denied by the respondent who testified that all the said ten installments were paid by him from his own funds and resources.

[9] After carefully considering the oral evidence of both parties, the affidavits and the various exhibits in the tw