THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 72 ENGLISH

Dr Mahendran A/L V Markandoo v Jegatheeswary A/P Markandoo and 4 Others
Suit Number: Civil Appeal No. W-01(NCVC)(W)-288-08/2017 

Real estate – Transfer of property – Whether the transfer of title of the properties invalid

JUDGMENT

APPEAL

[1] This is an appeal by the Plaintiff (“Appellant”) against the decision of the Kuala Lumpur High Court dated 19.7.2017, given after a full trial, which dismissed the Appellant’s claim for a declaration that the transfer of title of 3 properties to the 1st, 2nd and 3rd Defendants (“the 1st, 2nd and 3rd Respondents” or “the 3 Respondents”) is invalid and void and hence revoked.

BACKGROUND FACTS

[2] The dispute in this case is regarding the transfer of 3 properties that were owned by Sivapackiam a/p Ponnampalam, the mother of the Appellant and the 3 Respondents (“the mother”):

(1) on 13.12.2010 to the 3 Respondents (“the 1st property”);

(2) on 15.12.2010 to the 1st and 2nd Respondents (“the 2nd property”); and

(3) on 1.2.2011 to the 3rd Respondent (“the 3rd property”), (“the 3 properties”).

[3] At the time of transfer of the 1st property, the mother, born on 2.12.1922, was 88 years old. The Appellant’s writ action against the Respondents was filed in August 2015. The mother passed away on 6.6.2016.

[4] According to the Appellant, the 3 properties were only registered in the mother’s name but were purchased by his father. The Appellant is the youngest sibling of the 1st, 2nd and 3rd Respondents in their family of 7 children. The Appellant did not receive any share in the 3 properties.

[5] The Appellant disputed the transfer of the 3 properties and alleged that the mother was not mentally and physically capable at that time. Thus, the Appellant lodged a police report dated 30.10.2013 disputing the mother’s capacity to execute such transfer at a time when she was suffering from dementia and Alzheimer’s disease rendering her incapable.

[6] To date, no one has applied for administration of the estate of the deceased mother.

[7] The 4th and 5th Defendants (“the 4th and 5th Respondents”) were named as nominal defendants in the Court below and did not participate in the trial. They took the position that they will abide by the decision of the High Court.

THE APPELLANT’S CLAIM

[8] In paragraph 17 of the Statement of Claim, the Appellant applies for the following reliefs:

(a) Satu deklarasi bahawa pindahmilik daripada Sivapackiam a/p Ponnampalam kepada Defendan Kedua dan Defendan Ketiga melalui Perserahan No. 133082/10 yang didaftarkan pada 15.12.2010 dan pada mana-mana tarikh berikutnya atas PN 3838, Lot 49, Seksyen 9, Bandar Petaling Jaya, Daerah Kuala Lumpur yang beralamat di No. 8, Jalan 11/4 (Jalan Bukit), Petaling Jaya, Selangor tidak sah dan batal serta “void”;

(b) Satu deklarasi bahawa pindahmilik daripada Sivapackiam a/p Ponnampalam kepada Defendan Pertama, Defendan Kedua dan Defendan Ketiga melalui Perserahan No. 49295/2010 yang didaftarkan pada 13.12.2010 dan pada mana-mana tarikh berikutnya atas Geran 6515, Lot 9951, Mukim Petaling, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan Kuala Lumpur yang beralamat di Lot 991, Jalan Awan Gelugor, Taman Yarl, Kuala Lumpur tidak sah dan batal serta “void”;

(c) Satu deklarasi bahawa pindahmilik daripada Sivapackiam a/p Ponnampalam kepada Defendan Ketiga melalui Perserahan No. 7342/2011 yang didaftarkan pada 1.2.2011 dan pada mana-mana tarikh berikutnya atas H.S.(D) 2221, PT 4832, Bandar Petaling Jaya, Daerah Kuala Lumpur, Negeri Selangor yang beralamat di No. 21, Jalan 11/4 (Off Jalan University), Petaling Jaya, Selangor Darul Ehsan tidak sah dan batal serta “void”;

(d) Bahawa Pejabat Tanah dan Galian Negeri Wilayah Persekutuan Kuala Lumpur diarahkan mendaftarkan kembali nama Sivapackiam a/p Ponnampalam sebagai pemilik berdaftar dan pemilik benefisial yang sah atas tanah-tanah yang dipegang di bawah Geran 6515, Lot 9951, Mukim Petaling, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan Kuala Lumpur yang beralamat di Lot 991, Jalan Awan Gelugor, Taman Yarl, Kuala Lumpur tanpa mengenakan sebarang fi pendaftaran pindah-milik terhadap Sivapackiam a/p Ponnampalam;

(e) Bahawa Pejabat Tanah dan Galian Negeri Selangor diarahkan mendaftarkan kembali nama Sivapackiam a/p Ponnampalam sebagai pemilik berdaftar dan pemilik benefisial yang sah atas tanah-tanah yang dipegang di bawah PN 3838, Lot 49, Seksyen 9, Bandar Petaling Jaya, Daerah Kuala Lumpur yang beralamat di No. 8, Jalan 11/4 (Jalan Bukit), Petaling Jaya, Selangor Darul Ehsan dan H.S.(D) 2221, PT 4832, Bandar Petaling Jaya, Daerah Kuala Lumpur, Negeri Selangor yang beralamat di No. 21, Jalan 11/4 (Off Jalan University), Petaling Jaya, Selangor Darul Ehsan tanpa mengenakan sebarang fi pendaftaran pindak-milik terhadap Sivapackiam a/p Ponnampalam;

(f) Pendaftar Hakmilik Negeri Wilayah Persekutuan, Kuala Lumpur diperintahkan untuk membatalkan memorial pindah-milik hartanah-hartanah yang dipegang dibawah Geran 6515, Lot 9951, Mukim Petaling, Daerah Kuala Lumpur, Negeri Wilayah Perekutuan Kuala Lumpur yang beralamat di Lot 991, Jalan Awan Gelugor, Taman Yarl, Kuala Lumpur;

(g) Pendaftar Hakmilik Negeri Selangor diperintahkan untuk membatalkan memorial pindah-milik hartanah-hartanah yang dipegang dibawah PN 3838, Lot 49, Seksyen 9, Bandar Petaling Jaya, Daerah Kuala Lumpur yang beralamat di No. 8, Jalan 11/4 (Jalan Bukit), Petaling Jaya, Selangor Darul Ehsan dan H.S.(D) 2221, PT 4832, Bandar Petaling Jaya, Daerah Kuala Lumpur, Negeri Selangor yang beralamat di No. 21, Jalan 11/4 (Off Jalan University), Petaling Jaya, Selangor Darul Ehsan;

(h) satu perintah yang mengarahkan Pendaftar Hakmilik Negeri Wilayah Persekutuan, Kuala Lumpur untuk mengemaskini semua rekod dan dokumen resminya serta mendaftar balik hakmilik hartanah yang dipegang dibawah Geran 6515, Lot 9951, Mukim Petaling, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan Kuala Lumpur yang beralamat di Lot 991, Jalan Awan Gelugor, Taman Yarl, Kuala Lumpur keatas nama Sivapackiam a/p Ponnampalam sebagai pemilik berdaftar yang sah Hartanah tersebut;

(i) satu perintah yang mengarahkan Pendaftar Hakmilik Negeri Selangor untuk mengemaskini semua rekod dan dokumen resminya serta mendaftar balik hakmilik hartanah yang dipegang dibawah PN 3838, Lot 49, Seksyen 9, Bandar Petaling Jaya, Daerah Kuala Lumpur yang beralamat di No. 8, Jalan 11/4 (Jalan Bukit), Petaling Jaya, Selangor Darul Ehsan dan H.S.(D) 2221, PT 4832, Bandar Petaling Jaya, Daerah Kuala Lumpur, Negeri Selangor yang beralamat di No. 21, Jalan 11/4 (Off Jalan University), Petaling Jaya, Selangor Darul Ehsan keatas nama Sivapackiam a/p Ponnampalam sebagai pemilik berdaftar yang sah Hartanah tersebut;

(j) bahawa Defendan Pertama, Defendan Kedua dan Defendan Ketiga hendaklah memberikan milikan kosong Hartanah-hartanah tersebut kepada Sivapackiam a/p Ponnampalam dalam tempoh masa 24 jam dari tarikh keputusan Mahkamah Yang Mulia ini;

(k) bahawa kesemua Defendan-Defendan adalah bertanggungan secara bersama dan/atau berasingan untuk segala kos tindakan ini;

(l) bahawa kesemua Defendan-Defendan adalah bertanggungan secara bersama dan/atau berasingan untuk segala kos peguamcara Plaintif dalam kes ini;

(m) Plaintif juga memohon kepada Mahkamah Yang Mulia supaya Sivapackiam a/p Ponnampalam [No. KP: 221202-10-5038] iaitu ibu kepada Plaintif dan Defendan-Defendan diletakkan di bawah jagaan Mahkamah Yang Mulia ini [wardship]’ dan

(n) Apa-apa relif yang dianggap sesuai dan patut oleh Mahkamah Yang Mulia ini.’

DECISION OF THE HIGH COURT

[9] In his brief Decision, the learned High Court Judge (“Judge”), when dismissing the Appellant’s claim, found that-

(1) the transfer documents for the 3 properties were not forged;

(2) the mother had the capacity to sign the transfer documents;

(3) the Appellant failed to prove conspiracy by the 1st, 2nd and 3rd Respondents to cause the transfer of the 3 properties.

OUR DECISION

[10] On 21.11.2017, after having heard the submissions of learned Counsels, and having perused the Record of Appeal, we found merits in the appeal. We were satisfied that there were appealable errors which warranted our appellate intervention.

[11] Accordingly, we allowed the Appellant’s appeal as in paragraph 17 pg 50 of the Record of Appeal Vol A, in prayers (a), (b), (c), (d), (e), (f), (g), (h) and (i). Regarding prayers (d) and (e), we made the order that the registration of the said transfers would be subject to fees. Regarding prayer (j) for vacant possession within 24 hours, we made no order. The administrator of the estate of the deceased mother has to be appointed and parties have to do the necessary. We ordered costs of RM20,000.00 for here and below, subject to payment of the allocator fee. The deposit is to be refunded to the Appellant.

GROUNDS FOR DECISION

[12] The main thrust of the Defence of the 3 Respondents is that fraud, forgery and conspiracy have not been proved by the Appellant. There is also no proof that the mother had no mental capacity to execute the 3 transfers. In any event, the execution of the transfer of the 3 properties was witnessed and attested by an Advocate and Solicitor by the name of Vickneswary a/p S. Manikam (DW4).

[13] On the whole, we observe that the Judge in his Decision did not deal with or consider the specific and material parts of the evidence adduced before him. Nonetheless, upon a thorough scrutiny of the Record of Appeal before us, we found as follows:

The 3 Respondents were not charged for forgery

[14] Despite the fact that the Appellant had lodged a police report and the Investigating Officer, Nurul Zafran bin Kamarulzaman (PW4), had made investigations into the matter, there was no conclusion made by the Chemist Department of forgery of the mother’s signature in the transfer forms for the 3 properties. Neither was there any concrete evidence of conspiracy by the 3 Respondents to cause the transfer of the 3 properties to themselves respectively. According to PW4, none of the 3 Respondents were charged in Court for forgery.

The mother’s mental condition

[15] Thus, the only remaining issue to be determined is whether the mother had the mental capacity to execute the transfer forms for the 3 properties. We note the submissions of the 3 Respondents that the mother could issue cheques that were cleared by the banks. This was admitted by the Appellant in his cross-examination. In addition, the Respondents contend:

(a) that the mother had the mental capacity to affirm on 8.1.2010 her affidavit in reply (“AIR”) to the Appellant’s caveat proceedings taken against the mother in Originating Summons No. S21-323-2009 (RCBD-1 Tab 16). The AIR was attested by DW4, as the mother’s solicitor;

(b) the transfers of the 3 properties by the mother were duly attested by DW4, and witnessed by the 2nd and 3rd Respondents. DW4, in her Witness Statement in Court (RCBD-1 Jld.1 Tab 14) confirmed the same.

[16] The Appellant contends that DW4 lacks credibility as a witness. She informed the Court that she had retired. The Appellant submits that in fact DW4 had lied to the Court because as can be seen from the Court of Appeal Judgment dated 10.8.2015 in Civil Appeal No. W-02-360-2013 (“COA Judgment on DW4’s appeal”) which was exhibited in the Affidavit in Support of the Appellant for his Notice of Motion (“NOM”) in enclosure 18 to adduce fresh evidence. The NOM was withdrawn by the Appellant at the outset of the hearing when this Court indicated to both parties that the Court can take judicial notice of any Judgment which is already in the public domain. We note that in the COA Judgment on DW4’s appeal, it is stated as a fact that DW4 was struck off from the roll of Advocates and Solicitors of the High Court of Malaya through the order of the Disciplinary Board (“DB”) of the Bar Council on 10.9.2011 for attesting a deceased’s signature on a will in November 2004. The Disciplinary Committee (“DC”), in its report to the DB, had found that the respondent (Pathmawathi a/p A. Iyampillai) had proven her complaint against the appellant in that case (DW4 in the present case) “beyond reasonable doubt that the deceased did not sign the will and therefore, the appellant had lied when she said that she saw the deceased sign the will”. The DC found that DW4 was guilty of serious misconduct under the Legal Profession Act 1976. The Court of Appeal had affirmed the decision of the High Court which dismissed DW4’s appeal against the decision of the DB.

[17] In the present case, the Appellant testified that the mother was a home maker and had studied only in the Tamil language. She could not understand and speak and write in English except to sign her name. Despite the fact that the mother did not understand any other language other than Tamil, we note that in the mother’s AIR, which is in the Malay language, to oppose the Appellant’s caveat proceedings, DW4 had attested to the statement therein at the signing page before the Commissioner of Oaths that the mother had affirmed the AIR through DW4’s translation. In our view, this is highly irregular. Clearly, DW4 had attested the mother’s AIR with her signature as an Advocate and Solicitor. However, there is no evidence that DW4 is a qualified translator. Nowhere in the mother’s AIR is there a jurat to confirm that the contents of the AIR have been translated to the mother and that she understood the contents fully.

[18] Similarly, other than DW4’s testimony in Court that all the forms for the transfer the 3 properties had been executed by the mother “wilfully and she understood the content of the said Form 14A” (see DW4’s Witness Statement in RCBD-1 Jld 1 Tab 14), there is no other documentary proof to show that the contents of the said Form 14A had been translated to the mother.

[19] In view of the total lack of honesty and credibility of DW4 as is evident from the COA Judgment on DW4’s appeal, in particular regarding her serious misconduct of attesting a deceased’s signature to a will when the deceased did not sign the will, the evidence of DW4 in the present case should be given little or no weight at all. Thus, it is highly doubtful and improbable that the mother had signed the transfer forms for the 3 properties with full mental capacity and understanding due to her mental condition at the material time.

[20] The Respondents contend that there is no evidence that at the time of executing the transfers of the 3 properties the mother had dementia and Alzheimer’s disease.

[21] The Appellant relies on the medical report dated 20.9.2008 of Dr. Sng Kim Hock (“Dr. Sng”), a Consultant Neurologist (PW2) then at Gleneagles Intan Hospital, Kuala Lumpur. In that report (RCBD-1 Jld 1 Tab 18), Dr. Sng stated as follows:

“This is to confirm that Madam Sivapakiam d/o Ponnampalam was admitted to Gleneagles Intan Medial Centre from 4.9.2008 to 19.4.2008 under the care of several doctors for the treatment of basal pneumonia, septic arthritis of the wrist and a confusional state.

Her neurological presentation then was a confusional state with some memory disturbance.

Her findings then was a low sodium (hyponatremia), with values hovering between 128-130mmol/litre.

An earlier MRI Brain done in 2003 showed periventricular hyperintensities.

Diagnosis: 1. Acute Confusional State from Hyponatremia

2. Diffuse Cerebrovascular Ischemia with Dementia

On discharge, she continued her follow-up with Hospital Kuala Lumpur.”

[22] The 3 Respondents submit that Dr. Sng saw the mother in 2008, but not in 2010 and 2011 at the time when the transfers of the 3 Properties were executed by her. In any case, they contend that the mother had “low sodium”, which was why she had to see Dr. Sng.

[23] Though this was not addressed by the Judge, we note that Dr. Sng in his report confirmed that the mother’s “neurological presentation then was a confusional state with some memory disturbance”. His second diagnosis of the mother was “2. Diffuse Cerebrovascular Ischemia with dementia”.

[24] The judge also failed to consider the critical part of Dr. Sng’s oral evidence in Court when he was asked in his examination-in-chief to explain his second diagnosis of “diffused cerebrovascular ischemia with dementia” in layman’s term and what happens when a person has dementia and its long term effects (RCBD-2 pg 185 and 186). This is what Dr. Sng explained:

“Dementia is a condition where the brain, in particular certain aspects of the brain function is affected. Memory is one of the factors that go down. Language is another part that will be affected. That goes with speech (Cognitive or intelligence or decision-making will also be affected). Behavioral changes can also occur and all this will affect the daily living activities. In general, survival is between 7 to 12 years once we make the diagnosis. 12 years for those who are under 70 and about 7 years for those who are above 70. It’s common in the elderly, possibly as high as 20% to 30% in someone in their 80’s.

At the time when I saw her, I believe she was 85 years old, from my calculation. She was born in 1922. I saw her in September 2008.”

[25] When questioned generally about the rate of deterioration of the condition of dementia, Dr. Sng stated, “the elderly patient deteriorates faster generally.”

[26] In his re-examination, Dr. Sng further stated:

“... In dementia, if we are referring to Alzheimer’s dementia, it’s a progressive condition over time. It cannot be corrected.” (RCBD-2 pg 198).

[27] According to the Appellant, at the material time, the mother had already been diagnosed with dementia and had lost all her cognitive functions and had visual impairment. There is no way that with her condition, she could have made the decision to transfer the 3 properties. She could not conduct refined movements and had lost her memory and she was unable to do normal functions like eating, toilet functions and bathing. She was also unable to walk and was confined to a wheel chair. At the material time, the mother was staying at the 3rd Respondent’s house. The Appellant was not given access to see his own mother. He could rarely pay her a visit. He made numerous attempts to visit his mother at the 3rd Respondent’s house, but the door was either locked, or the gate was shut closed and his knocking and calling were not answered. The Appellant thinks that the 3 Respondents prevented him from visiting his mother because they were fearful that he might know their plans of transferring the 3 properties without the knowledge of the Appellant and his other siblings. When he saw his mother in 2010, he had to push the gate open to enter the house to see his mother. According to the Appellant, when he saw his mother in 2010, her condition was as follows:

“My mother was in total disarray, she could not speak or communicate, or recognize me and she was having signs late stage Dementia and she was having aphasia which means she was having the disability to speak and her statements were mono syllables and repetitive.”

[28] The 3 Respondents contend that it was never the intention of the mother to give the Appellant any of her properties. The Appellant had agreed in his cross-examination that between the late 1980s and as late as 2010, he was embroiled in litigation with his mother (RR B(1) pg 178). This litigation was initiated by the Appellant in Civil Suit F852/1985 against the mother (RR B(1) pg 150). The mother had subsequently sued the Appellant in Civil Suit F489/1995 (RR B(1) pg 149). Finally in 2009, the Appellant filed the caveat proceedings against the mother regarding the 3rd property. In view of the estranged relationship, the 3 Respondents submit that the mother would not have intended that the Appellant be a beneficiary of the 3 properties. Hence, she had effected that intention by the transfers that she made to the 3 Respondents.

[29] In our opinion, the Judge ought to have considered in depth the totality of the evidence adduced before him. Whilst it is true that the 3 Respondents have not been charged for the offence of forgery, it is important to bear in mind that unlike the standard of proof which is beyond reasonable doubt in a criminal case, in a civil case it is proof on a balance of probabilities.

[30] What is in issue is not the speculation that it was never the intention of the mother of making the Appellant her beneficiary of the 3 properties, but rather whether the mother had the mental capacity, given that the dementia had already set in when Dr. Sng saw her in September 2008, in 2010 and 2011 to execute the transfers of the 3 properties with full understanding, intentionally and voluntarily.

[31] Without the support of credible evidence from DW4, we find that the defence of the 3 Respondents does not have any merit. It is more probable that by the acts of the 3 Respondents, since the mother was staying with the 3rd Respondents, and the 2nd and 3rd Respondents were with the mother when DW4 purportedly attested her signature in the transfer forms, that the mother did not have the full understanding and mental capacity to execute those impugned transfers. While it is true that Dr. Sng last saw the mother in 2008, his evidence of her having dementia then, and that it deteriorates faster in an elderly person should be noted. Thus, it is highly probable that the mother was not able to sign the transfer forms out of her own volition.

[32] Therefore, even though the 3 Respondents claim indefeasibility of title under section 340(1) of the National Land Code 1965 (“NLC”) since the 3 properties have already been registered in their respective names, such title can be rendered defeasible under the exception provided in section 340(2)(b) of the NLC “where registration was obtained by forgery, or by means of an insufficient or void instrument”.

CONCLUSION

[33] On the whole, we find that there was a lack of judicial appreciation of the facts and the law. We are satisfied that the Judge was plainly wrong and there are compelling reasons for us to intervene and set aside the decision and order of the High Court.

Order accordingly.

Dated: 20 February 2018

sgd

YEOH WEE SIAM
Judge
Court of Appeal, Malaysia
Putrajaya

COUNSEL

Solicitors for the Appellant: M. Stanilaus Vethanayagam, Qeemnoor Zahreen Bt Muhamad Noh

Solicitors for the 1st, 2nd and 3rd Respondents: K. Kirubakaran, S. Raven, Mohammad Danial Bin Hazizan

Solicitors for the 4th Respondent: Natra Idris, Senior Federal Counsel, Mentioning on behalf of Solicitors for the 5th Respondent

Legislation referred to:

National Land Code 1965, Sections 340(1), 340(2)(b)

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