Mahadev Shankar JCA:

Before the appeal proper was heard, respondents' counsel sought to put in new evidence. The application so dismally failed to meet the test in Ladd v. Marshall that we dismissed it with costs. (See Lam Soon Cannery Co. V. Hooper & Co. [1965] We do not think the factual basis of that application merits any judicial analysis.

The appeal proper is against an order directing the removal of a caveat filed by the appellant. This dispute between the parties is but another chapter in the litigation between members of the Nadchatiram family which has infested our courts.

The caveat was lodged by the appellant on 26 January 1994 against four titles for the land comprised therein in the town of Seremban (the said titles) 2nd Volume Appeal Record p. 275. The ground stated was that the registered owner of the said land was a constructive trustee of the said lands for Nadchatiram Realities (1960) Sdn. Bhd. (in liquidation) of which the appellant is a contributory and further that the appellant had been given the leave of the court to commence an action against the registered owners for a transfer of the said land by the registered owners of the company.

In 1992 the appellant had commenced misfeasance proceedings against Jegadevan Nadchatiram (Jega) under Seremban High Court Originating Summons No. 23-246-92 (the misfeasance proceedings). These proceedings were commenced under s. 305 of the Companies Act 1965 . The subject matter of the exercise was the assets of Nadchatiram Realities (1960) Sdn. Bhd. (hereafter referred to as the company). From the beginning of 1975 till the company was ordered to be wound-up on 5 September 1989, Jega was a director of the company. In the statement of claim dated 24 December 1992 the appellant made very serious allegations against Jega. In effect he was accused of fraudulent conduct by way of breach of trust in the manner he dealt with and disposal of much of the company's assets. We are now here concerned only with the said four titles, and do not propose to talk about the other accusations now. The first respondent Danapakia Devi (Dana) was at all material times the secretary of the company with a liability for the company's assets which was co-extensive with that of Jega.

In para. 7(a) of the statement of claim 2nd Volume Appeal Record p. 317 the appellant pleaded:

7. Whilst the defendant was one of the directors of the said company, the defendant as a director committed by making, authorising, sanctioning or participating the following acts of misfeasance and/or breach of trust and/or duty in relation to the company:

(a) On the 18 March 1975 the defendant and another director executed a Memorandum of Charge in favour of Central Malaysian Finance Berhad as security for obtaining a loan for the sum of $350,000.00 in respect of a piece of land belonging to the said company and held under H.S.(D) 3933 for Lot No: 3682. The said loan of $350,000.00 was obtained solely for the benefit of the defendant and the said loan was converted for personal use of the defendant to purchase in his name and his nominee a piece of land held under Grant for Land No: 10799 for Lot No: 2901 in the Town of Seremban which is now subdivided into four (4) separate lots held under Title No: H.S.(D) 11566 for Lot No: 13497, H.S.(D) 11567 for Lot No: 13498 and H.S.(D) 11568 for Lot No: 13499 all in the Town and District of Seremban in which titles to the land are still registered in the name of the defendant and his nominees, Danapakia Devi d/o of Nadchatiram.

On 5 January 1993 Jega filed a statement of defence in which he responded 2nd Vol. Appeal Record p. 354:

7. Save that the defendant was one of the directors of the company the rest of the allegations contained in para. 7 are denied.

(a) As to subpara (a) of Para 7, the Defendant will contend that the loan was taken in the name of the Defendant by reason of the refusal of the financial institution to lend money to the company. No part of th