JUDGMENT

KC Vohrah J:

This suit was filed in the High Court in Kuala Lumpur in 1979 and on the application of the plaintiff was transferred to the Temerloh High Court where it was registered in 1985.

Slightly more than 6 decades ago, in 1924, two plots of land, now amalgamated into one, were transferred to one "Lee Yeak." The transferor in both cases was Goh Ching. One of the main questions now is whether she transferred both the lots to her husband, Lee Chan, or to their son, Lee Teow Kee.

Goh Ching is now dead. And so too are her husband Lee Chan and their son Lee Teow Kee. The plaintiff asserts that Lee Chan was known as "Lee Yeak" or "Lee Aik" and that the amalgamated property was therefore Lee Chan's. The defendant disputes that and says that Lee Teow Kee, his father, was known as "Lee Yeak" or "Lee Aik".

Lee Chan died intestate in 1931. When letters of administration in respect of this estate were granted to his widow Goh Ching and their son Lee Teow Kee, this amalgamated property, EMR 1315. Lot 1522 in the Mukim of Mentakab, District of Temerloh, did not appear in the list as one of the assets of Lee Chan's estate.

In respect of this the plaintiff pleads in para. 5 of this statement of claim.

For reasons unknown to the plaintiff, the said land was not included in the list of assets of the estate of the said Lee Chan, deceased.

It will be noted that no fraud was pleaded in relation to the administrators, Goh Ching or Lee Teow Kee. And in this context it is to be remembered that Goh Ching who co-administered the estate of Lee Chan was the person who transferred the disputed land in 1924.

In 1952 Lee Teow Kee died. And this land, EMR 1315 Lot 1522, was instead included as an asset of his estate.

The plaintiff, one of the sons of Lee Chan, asserts that the said property was Lee Chan's. While he does not allege fraud on the part of Lee Teow Kee he alleges fraud on the part of the defendant, one of the sons of Lee Teow Kee and sues him in his capacity as administrator of the estate of Lee Teow Kee.

The petition for Grant of Letters of Administration in respect of Lee Teow Kee's estate was made in 27 April 1953. The plaintiff however filed this suit some 26½ years later on 27 October 1979 in the Kuala Lumpur High Court and alleges in para. 11 of his statement of claim that he was away from the country from 1949 when he left for China for further education until he was permitted to enter Malaysia (in 1979) for the purpose of the suit. He pleads that he was ignorant of the alleged wrongful act of the defendant.

He seeks a declaration that the said land forms part of the estate of his father Lee Chan and he wants, inter alia, an account of all the moneys received by the defendant or by any person on behalf of the estate of the defendant's father in respect of the land.

The defendant denies the allegation of fraud. He states that his father Lee Teow Kee was known as "Lee Yeak" and "Lee Aik" and the said property was his father's and that it was properly included in the list of the assets of his estate. The defendant pleads in the alternative that the plaintiff's cause of action is time barred by virtue of the Limitation Act 1953.

Identity

I shall deal with the allegation of fraud later. For the moment there is need to deal with the main factual issue in this case, whether the name "Lee Yeak" as appears in the 2 memoranda of transfer executed (shown at PBD 20 and 22 respectively) is the alias of Lee Chan or of Lee Teow Kee.

The plaintiff was a child of 6 years old when his father, Lee Chan, died. He had to rely, inter alia, on the evidence of PW2, Lim Thian Soon, the son-in-law of Lee Chan that Lee Chan was also known as "Lee Aik". PW2 however said that he had heard from his mother-in-law, Goh Ching, that his father-in-law had that alias. PW2 admitted that at the time of his marriage his father-in-law had already passed away. And Goh Ching his mother-in-law naturally was not available as a witness as she had passed away, according