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[2000] Part 3 Case 13 [HCM] |
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www.ipsofactoJ.com/highcourt/index.htm
[2000] Part 3 Case 13 [HCM] |
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HIGH COURT OF MALAYA |
Quah
-
vs -
Ang
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Coram SULONG
MATJERAIE JC |
29
SEPTEMBER 1999 |
Judgment
Sulong
Matjeraie JC
This
is an application by way of an originating summons praying for a declaration
that the plaintiff Quah Eng Hock, a Singaporean, of 170, Upper Bukit Timah
Road, 05-18, Bukit Shopping Centre, Singapore 2158, is the beneficial owner
of ½ title share in one parcel of land under PTD 17349 HS(D) 27240 Mukim
Plentong ( "the said land") currently
registered in the name of the defendant, as a trustee to the plaintiff;
alternatively a declaration be made that the defendant is a trustee for the
plaintiff in respect of ½ title share and interest in the said land
currently registered in the name of the defendant.
This
application is supported by an affidavit affirmed by the plaintiff, Quah Eng
Hock on June 4, 1997 which inter alia states that:-
The
plaintiff bought a house constructed on the said land on March 1, 1988
under his own name ½ title share and interest and the other ½ title
share and interest was in the name of the defendant and this was
accordingly reflected in the issue document of title.
The
plaintiff alleged that he is the beneficial owner of the said land and
further alleged that he has paid all the money for the purchase of the
said land including costs and legal cost as well as the monthly
instalment since 1988 until full payment of loan from Ban Hin Lee Bank.
The
plaintiff alleged that in law the defendant is a trustee in respect of
the ½ share in the said land as the defendant did not give any
consideration in respect of the ½ title share and that the plaintiff
never had any intention to give ½ title share to the defendant as
gift.
The
plaintiff has on numerous occasions requested the defendant to transfer
back to the plaintiff the ½ share in the said land but the defendant
was alleged to have failed or refused to do so.
As
this matter involves the hearing of oral evidence of the plaintiff, pursuant
to Order 32 r 11(1) of the Rules of High Court 1980 this case was moved into
open court.
In
his oral evidence, the plaintiff advanced the following arguments to support
his claim.
The
house located at No 3, Serene Park, Johor Bahru, PTD 17349 HS(D) 27240 Mukim
Plentong and also known as No 3, Serene Park, Johor Bahru was purchased for
RM170,000 in March, 1988. The plaintiff claimed that he paid for the
purchase price and legal costs.
A
bank loan was obtained from Ban Hin Lee Bank for a sum of RM70,000 to help
finance the purchase of the said land. Monthly instalments were paid by the
plaintiff only.
The
registered owners of the said land were and still are Mr. Quah Eng Hock, the
plaintiff (½ share) and the remaining half share is registered under the
name of Ang Hooi Kiam, the defendant.
The
plaintiff in his evidence said he had never intended to give ½ share of
the title in respect of the said land as a gift to the defendant but purely
to make her as a trustee.
Evidence
was also given to this court that the plaintiff came to know the defendant
initially at a nightclub known as Hollywood Night Club at Taman Sentosa,
Johor Bahru where she then worked as a waitress. The plaintiff started to
woo the defendant by drinking liquor together and he "wanted her to be
his lover". She became his lover for about half a year from late 1987
to middle of 1988 and the plaintiff admitted to this court that the
defendant was his mistress.
The
plaintiff told this court that the defendant requested that her name be
included in the title deed. The plaintiff obliged as he wanted to keep the
defendant as his mistress and such inclusion would show he has the means to
maintain and upkeep the defendant. Further by so doing, the plaintiff
claimed that his wife and children will not know that he has a mistress in
Johor Bahru in that he can tell his wife that the defendant has ½ share in
the said land!
The
plaintiff told the court in his evidence that the reason why he purchased
the said land was for his future as he has a lot of children.
He
has settled the bank loan in June, 1996 and hitherto the document of title
in respect of the said land is in his custody.
The
plaintiff also told this court that by the middle of 1988 the defendant went
missing and he asked a friend to look for her in order that he can transfer
back to himself the ½ share and interest in the said land. Up till now he
and his friend have failed to trace the whereabout of the defendant.
The
defendant was never served personally with the originating summons.
Advertisements by way of substituted service in respect of the notice of
proceeding - were made in Sin Chew Jit Poh on May 28, 1998, October 9, 1998
and January 13, 1999, but the address of the defendant used then was at
10-C, Clove Hall Road, 10050 Pulau Pinang. As will be seen below the
defendant was never at this address on the dates of the publication.
Learned counsel Mr. KF Hua ably submitted that where a real or personal property is vested in a purchaser jointly with others or in another or other persons alone, a resulting trust will be presumed in favour of the person who is proved to have paid the purchase money. The learned counsel quoted the case of Chua Cheow Tien v Chua Geok Eng [1968] 2 MLJ 180 High Court Singapore decision where the learned Chua J said at p 185-
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The settled law is that if A buys property in the name of B, who is no relative, B is held to be trustee of the property for A but if B is a child or a wife of A no such trust is presumed and the law presumes that the legal and beneficial ownership is in the child or the wife so that the onus is on those who seek to rebut the presumption and establish an absolute trust for the father. |
This
case which is on the presumption of advancement was referred to in the
Malaysian case of Sabrina Loo Cheng Suan v Eugene Khoo Oon Jin [1995]
1 CLJ 875.
Learned
counsel for the plaintiff submitted further that declaration of trust need
not be in writing and may be made informally, provided words are clear and
unequivocal, see Federal Court decision in Wan Naimah v Wan Mohamad
Nawawai [1974] 1 MLJ 41 and Grant v Grant 55 ER776.
The
general principles governing such trust have been well expounded in numerous
English cases.
The
learned counsel also submitted to this court the decision of the Singapore's
Court of Appeal in the case of Neo Tai Kim v Foo Stie Wah [1982] 1
MLJ 170 and their High Court's decision in Toon Boon Lee v Yeo Ah Beng
[1986] 2 MLJ 276.
The
issue as suggested by the learned counsel was whether at the time of the
purchase, there was a resulting trust in favour of the plaintiff; who, as
alleged by the counsel has paid all the repayment.
Turning
to the National Land Code, it was the contention of the learned counsel that
this court has the power to grant the declaration under s 340(4)(a) and (b).
Further, part thirty-one of the National Land Code provides for the
jurisdiction of the court under the National Land Code and in particular s
417 thereof. His Lordship Justice Vincent Ng has said that the plaintiff
need only prove, by adducing facts or circumstances, on the balance of
probabilities that the property was held in trust in his favour, see Sabrina
Loo Cheng Suan v Eugene Khoo Oon Jin (supra) at p 884, paragraph
(f).
THE
LAW
The
court is in substantial agreement with the learned counsel on his submission
on the law in respect of resulting trust.
The
doctrine of presumption of advancement is however a rebuttable presumption
and can be rebutted if the defendant can show the acts and circumstances
prevailing before and at the time of the acquisition and transfer of the
said land, that there was between the defendant and the plaintiff a common
intention that it was to be otherwise.
In respect of words declaring trust, Romilly, MR. in Grant v Grant (supra) said, (words)
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"need not be in writing... " They must be clear, unequivocal and irrevocable, but it is not necessary to use any technical words, it is not necessary to say "I hold the property in trust for you", nor is it necessary to say, "I hold the same for your separate use". Any words that the donor means, at the time he speaks, to divest himself of all beneficial interest in the property are, in my opinion, sufficient for the purpose of creating the trust. I think that it is also sufficient for the purpose of shewing that the trust has been created, if he afterwards states that he has so created the trust, though there was no witness except the donee present at the time the trust was created. (p 777) |
This
has been accepted as a principle by the Federal Court of Malaysia in Wan
Naimah v Wan Mohamad Nawawai (supra).
On resulting trust, Halsbury's Laws of England, 4th Edn, Vol 48 paragraph 597 says as follows:-
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A resulting trust is a trust arising by operation of law: |
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(1) |
Where an intention to put property into trust is sufficiently expressed or indicated, but the actual trust either is not declared in whole or in part or fails in whole or in part; or |
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(2) |
Where property is purchased in the name or placed in the possession of a person ostensibly for his own use, but really in order to effect a particular purpose which fails; or |
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(3) |
Where property is purchased in the name or placed in the possession of a person without any intimation that he is to hold it in trust, but the retention of the beneficial interest by the purchaser or disposer is presumed to have been intended. |
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In all these cases, except where the failure of a declared trust arises from the illegality of the object, and the trustee relies on the maxim in pari delicto potior est conditio possedentis, the beneficial interest in the property, so far as not applicable to any sufficiently expressed or indicated beneficiary or object, results or reverts to the disposer or purchaser of the property or, in the case of his previous death, to his representatives. |
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The
facts of this case do not unfortunately appear to be as straight forward as
suggested by the learned counsel for the plaintiff. While the authorities
produced tend to show both parties were present at the trial, in this
instant case the defendant could not be located or traced. Attempts were
made to serve the necessary papers on her but all failed.
As
the actual address of the defendant could not be established a search was
made at the National Registration Department Malaysia (Identity Card
Division) to get her latest address. A reply from National Registration
Department came through their letter dated October 27, 1998 (Encl 14) that
the address of the defendant as at March 4, 1994 was at 1B-10-2, Taman
Kilangin, Jalan Sungai, 10150 Georgetown, Pulau Pinang. The defendant's
identity card has yet to be replaced and still bear the old number. She has
not notified the authority on any change of address. There is nothing in
their record to suggest the defendant has passed away either.
Attempts
were also made by Encik Dzulkifli Haji Ahmad, a process server attached
to High Court, Penang to serve a notice of appointment to hear originating
summons onto the defendant at the address provided by the National
Registration Department. In his affidavit filed in this court (Encl 17) it
was stated therein that he attempted service on December 9 and 17, 1998 at
the house IB-10-2, Taman Kilangin, Jalan Sungai, 10150 Georgetown, Penang
and found that the door was closed and locked and upon further check he
discovered that the said house has been sold to another individual (duly
named in the affidavit). This is an important factor here as whereas in
other cases as well as the authorities quoted both parties were not only
present but represented by counsel as well. In this case the defendant was
neither represented nor present. As such there was no one to argue her case
and to confirm or deny the assertions and allegations made by the plaintiff.
As
the defendant could not be reached, numerous questions have remained
unanswered. However the onus is on the plaintiff to show that the defendant
was his trustee and has no beneficial interest on the said land.
What
is the right of a mistress in a situation like this instant case? Why was
the said land registered in two names; that of the plaintiff and defendant
as co-owners? Why was it not in the name of the defendant alone for
instance?
Lord
Denning MR. in the Court of Appeal case of Benard v Josephs [1982] 1
Ch D 391 at 399 said that the rights of a mistress is the same as that of a
wife, to engaged couples and maybe to other relationship too. He quoted a
case decided earlier in Cooke v Head [1972] 1 WLR 518. Would the
defendant who, as admitted by the applicant was his mistress, be entitled to
half of the said land?
This
court must ascertain, from all the evidence brought before it, whether the
parties in fact reached an agreement or had a common intention. It is the
duty of this court to declare the existing right of the parties. In the
absence of evidence to the contrary, the beneficial interest follows the
legal title.
In determining whether or not there was such a common intention regard can be had to the conduct of the parties. To establish this intention, there must be some evidence which points to its existence. Viscount Dilhorne in Gissing v Gissing [1971] AC 886 at p 900 said:
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I agree with my noble and learned friend Lord Diplock that a claim to a beneficial interest in land made by a person in whom the legal estate is not vested and whether made by a stranger, a spouse or a former spouse must depend for its success on establishing that it is held on a trust to give effect to the beneficial interest of the claimant as a cestui que trust. |
While
evidence was led and produced to court on the payment of the loan through
monthly instalments allegedly made by the applicant to Ban Hin Lee Bank, no
evidence was brought before this court as to who paid for the difference
between the purchase price and the loan amount.
The
total cost of the said land (including the house) was RM170,000 - see Exh
QEH-2 of End 2. The bank loan was RM70,000. Who paid the amount of
RM100,000? How was the said amount paid? As the amount is substantial it
becomes an important aspect of this case.
The
plaintiff only made a bare assertion that he had paid for the purchase of
the said land including costs and legal cost. It is possible that the
defendant may have paid it? As no evidence was ever produced it remains
unanswered.
It
is worthy to note also that paragraph 6 of Encl (2) - affidavit supporting
the originating summon - alleged that on numerous occasions the plaintiff
requested the defendant to come and transfer ½ share and interests in the
said land to the plaintiff. The defendant failed and refused to do so. But
in the witness box the plaintiff said through his friend, he searched for
the defendant but was unsuccessful and he does not know where the defendant
is now. The defendant appears to have "vanished" and is it
accurate to say that he (the plaintiff) has requested the defendant to
transfer, as alleged in his affidavit, when her whereabout is unknown?
Further
it did not escape the attention of this court that while the plaintiff said
he had never intended to give ½ share title and interest in the said land
to the defendant, the plaintiff also wanted the defendant to be his lover
and admitted to this court that the defendant was his mistress.
Evidence
was also given in court that it was the defendant who requested the
plaintiff to include her name in the land title. This was done as the
plaintiff did not want his wife children to know that he has a mistress at
Johor Bahru. The plaintiff further admitted his second reason for including
the defendant's name in the land title of the said land was to show to the
defendant that he has the means to upkeep and maintain the defendant as a
mistress.
All
these seem to contradict the plaintiff's assertion that he has never
intended to give ½ share in the said land but purely to make her as a
trustee and that he purchased the said land for his future as he has a lot
of children.
Regretfully
all these are not persuasive at all though the standard of proof is only on
the balance of probabilities. There is unfortunately no clear and
unchallenged evidence to suggest the common intention of both parties that
the defendant be made a trustee to hold ½ share interest and title in the
said land for the benefit of the plaintiff. The contrary however appear to
be true.
Another
argument advanced by the learned counsel for the plaintiff was the power
conferred by s 340(4)(a) and (b) of the National Land Code 1965 (NLC) and
the general authority of the court under s 417 thereof.
However,
it must be pointed here that in the absence of any of the vitiating factors
laid down ins 340 of the NLC, a title once registered is indefeasible, see, Teh
Bee v K Maruthamuthu [1977] 2 MLJ 7, Federal Court. It is in fact the
registration and not its antecedents which vests and divests title, per
Lord Wilberforce in Alan Frederick Frazer v Douglas Hamilton Walker
[1967] 1 AC 569 quoted by Ali Ag CJ (Malaya) (as his Lordship was then) in Teh
Bee v K Maruthamuthu (supra). It is the view of this court
that the concept of indefeasibility of title cannot simply be dislodged by a
mere bare assertion of trust, the creation of which has not been proven to
be clear, unequivocal and irrevocable. It is simply not safe to do so.
The
rights of the parties must be judged on general principles applicable in any
court of law when considering questions of title to property.
Unfortunately
the conduct of the plaintiff in this application was quite insufficient to
support his contention and prayers and this court is unable on the evidence
before it to draw any fair and reasonable conclusion that there was any
common intention that the defendant was a trustee holding ½ title share
and interest in the said land for the benefit of the plaintiff.
In
the circumstances, this court has no other alternative but to dismiss the
application in Encl (3).
Cases
Gissing v Gissing [1971] AC 886;
Alan Frederick Frazer v Douglas Hamilton Walker [1967] 1 AC 569; Bernard v
Josephs [1982] 1 Ch D 391; Chua Cheow Tien v Chua Geok Eng [1968] 2
MLJ 180; Cooke v Head [1972] 1 WLR 518; Grant v Grant 55 ER 776; Neo Tai Kirn v
Foo Stie Wah [1982] 1 MLJ 170; Sabrina Loo Cheng Suan v Eugene Khoo Oon Jin
[1995] 1 CLJ 875; Teh Bee v K Maruthamuthu [1977] 2 MLJ 7; Toon Boon Lee v Yeo
Ah Beng [1986] 2 MLJ 276; Wan Naimah v Wan Mohamad Nawawai [1974] 1 MLJ 41.
Legislations
National
Land Code 1965: s. 340(4)(a), (b), s. 417
Rules
of the High Court 1980: Ord. 32 r11(1)
Authors
and other references
Halsbury's
Laws of England, 4th Edn, Vol 48
Representation
Hua
Kia Fook (KF Hua & Partners) for Plaintiff
Notes:-
This decision is also reported at [2000] 2 AMR 2300
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