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Dalam Mahkamah Rayuan Malaysia (Bidangkuasa Rayuan)

Rayuan Sivil No: J-02-3114 Tahun 2009

Antara 1. Hussin bin Syed Mohamed

Sebagai Wakil Harta Pusaka Syed Mohamed b. Syed Alwi Si Mati

2. Syed Hassan bin Syed Alwee 3. Syed Hussein bin Syed Alwee 4. Sharifah Zaharah bte Alwee 5. Syed Jaafar bin Syed Hassan

Sebagai Wakil Harta Pusaka Sharifah Yun bte Alwi Al-Attas Si Mati

Dilantik Untuk Mewakili Harta Pusaka - Perayu- Syed Hamid bin Syed Alwee Si Mati Perayu

dan

1. Shariffah Badariah bt. Alwi Al-Attas 2. Shariffah Fatimah bt. Alwi Al-Attas 3. Syed Salim bin Syed Alwee 4. Zainah Al-Attas Sdn. Bhd. - Responden-

(No. Syarikat 19880-X) Responden

Disatu Dengan

Rayuan Sivil No: J-02-3112 Tahun 2009

Dan

Rayuan Sivil No: J-02-3113 Tahun 2009

(Dalam Perkara Mengenai Guaman Sivil No. 22-411-2002 dalam Mahkamah Tinggi di Johor Bahru

Antara

1. Hussin bin Syed Mohamed Sebagai Wakil Harta Pusaka

Syed Mohamed b. Syed Alwi Si Mati 2. Syed Hassan bin Syed Alwee

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3. Syed Hussein bin Syed Alwee 4. Sharifah Zaharah bte Alwee 5. Syed Jaafar bin Syed Hassan

Sebagai Wakil Harta Pusaka Sharifah Yun bte Alwi Al-Attas Si Mati

Dilantik Untuk Mewakili Harta Pusaka - Plaintif- Syed Hamid bin Syed Alwee Si Mati Plaintif

dan

1. Shariffah Badariah bt. Alwi Al-Attas 2. Shariffah Fatimah bt. Alwi Al-Attas 3. Syed Salim bin Syed Alwee Zainah Al-Attas Sdn. Bhd. - Defendan-

(No. Syarikat 19880-X) Defendan

Disatu Dengan

Guaman Sivil No: 22-412 Tahun 2002

Dan

Guaman Sivil No: 22-413 Tahun 2002

CORAM:

Zainun binti Ali, JCA (now FCJ) Sulaiman bin Daud, JCA (as he then was)

Ramly bin Hj. Ali, JCA

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JUDGMENT OF THE COURT

1. In this triple suits involving the same parties who are related

to each other, the High Court after a full trial, dismissed the

Plaintiffs (Appellants) three actions with costs. However

Defendants counter claim in Suit 413 was allowed with

costs. Hence these appeals before us.

The Background Facts

2. The Plaintiffs and the individual Defendants are siblings.

Zainah Al Attas Sdn. Bhd. (ZASB) is their family company.

3. Syed Hamid, deceased (Hamid) was their eldest surviving

heir sibling of the Plaintiffs and the Defendants prior to his

demise on 24.4.2000.

4. Prior to Hamids demise Hamid was living under the care of

the Defendants. During Hamids lifetime monies in the

aggregate of RM1.125m were withdrawn from his account

with Lembaga Urusan dan Tabung Haji (LUTH). Hamid

also transferred 146,503 shares in ZASB and 28,001 shares

in Ladang Badariah Sdn. Bhd. (LBSB) to Shariffah

Badariah.

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5. In addition Hamid also made a gift of his one-half share of

landed properties held under Lots 7346 and 7347 (the

Properties) to Shariffah Badariah and Shariffah Nor. The

Plaintiffs filed 3 (three) separate suits disputing the validity of

the aforesaid transactions; the suits were subsequently

consolidated. The Plaintiffs claims are as follows:-

i) Suit No. 22.411.2002 (Suit 411) Rayuan no. W-02-3114-09

A declaration that the 0wrongfully misappropriated sum

of RM1,125,000.00 of the moneys/property of Hamid

belongs to the Estate of Hamid and was impressed

with a trust and other ancillary reliefs.

ii) Suit No. 22.412.2002 (Suit 412) Rayuan no. W-02-3113-09

A declaration that the Defendants restore the said land

to the Estate of Hamid

iii) Suit No. 22.413.2002 (Suit 413) Rayuan no. W-02-3112-09

A declaration that the one half-share of the Properties

is the Estate of Hamid and ancillary reliefs.

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6. From 1996 till his demise in 2000, Hamid resided at No. 1,

Jalan Bumiputra, Stulang Laut, Johor Bahru together with

Badariah. Hamid had been a patient of Dato Dr. Lim Kee

Jin (Dr. Lim) since 1992.

7. On 5.1.1998 Dr Lim issued a letter addressed to Messrs.

Mak, Ng, Shao & Kee a firm of solicitors asking that they

assist in drawing up a power of attorney for Hamid. In that

letter Dr. Lim said that Hamid was being treated for cerebral

infracts, hypertension, diabetes mellitus and dementia. Dr.

Lim also said that though Hamid was still mentally

competent, Hamid was nearly wheel chair bound and unable

to walk without help and his mental condition was gradually

deteriorating; so it was important that Hamid appoint

someone, preferably his siblings to act as his attorney under

a power of attorney so that they can withdraw his money to

pay for his medical expenses and in future to employ a maid

for him.

8. Badariah and Syed Salim (Salim) showed Dr. Lims letter to

Mr. Kee Hun Kiet a solicitor of Messrs. Mak, Ng, Shao &

Kee. They discussed the contents of the power of attorney

(PA). After a few meetings, Kee drafted the PA. Kee

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asked Badariah to get Dr. Lim to certify that Hamid was

mentally competent before attending to Hamids execution of

the PA.

9. On 6.2.1998 Kee went to Hamids house for the execution of

the PA. Hamid confirmed to Kee that he wanted the PA to

be prepared because Dr. Lim advised him to do so. Hamid

also confirmed that he wanted Badariah and Sharifah

Fatimah (Fatimah) to be his attorneys. Hamid executed the

PA after Kee had explained the PA to him. The PA was

subsequently registered at the Johor Bahru High Court on

11.2.1998.

10. Hamid had an account with LUTH. Cash withdrawals from

this account were made between 8.5.1998 till 29.2.200. The

cash withdrawals were made by Hamid by affixing his

thumbprint on the cash withdrawal forms. In the ordinary

course of its business LUTHs officers had witnessed

Hamids thumbprint on the cash withdrawal forms before

handing over the money to Hamid. Hamid also withdrew

RM1.033m on 8.6.1998. On that occasion Hamid affixed his

thumbprint on a Borang Pengeluaran Wang to receive the

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money in cheque or bank draft. A bank draft for the said

sum was subsequently issued to Hamid.

11. Hamid also held shares in ZASB and LBSB. On 20.2.1998

Hamid transferred 146,708 shares in ZASB and 28,001

shares in LBSB to Badariah. The share transfer transactions

were attended by DW12 the owner and manager of Protax

Secretarial, a company secretarial firm. Hamid called DW12

on the phone to come over to the house. When DW12 called

at Hamids house Hamid told DW12 that he wanted to

transfer all his shares in ZASB and LBSB to his younger

sister Badariah and then told DW12 to make the necessary

arrangements which were duly effected.

12. On 14.10.1999 Hamid also executed a Suratikatan Hadiah.

According to the Suratikatan Hadiah, Hamid wanted to make

a gift of his one-half share in the Properties to Badariah and

Sharifah Nor (Nor). The Suratikatan Hadiah and the

relevant transfer form (Form 14A) was prepared by Rodziah;

a lawyer. Hamid told Rodziah that he wanted to give the

Properties to his younger sisters. The execution of the

Suraikatan Hadiah by Hamid on 14.10.1999 was witnessed

by DW6 a close friend and neighbour. Hamid told DW6 that

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he wanted to transfer the Properties to his sisters because of

love and affection. DW10 a lawyer attested to Hamids

signature on the Form 14A on 28.10.1999.

13. The transfer could not be registered because of a caveat

lodged by Hassan (2nd Plaintiff) on 24.4.1998. Hassans

caveat was cancelled on 18.2.2000. Notwithstanding this,

the transfer could still not be registered due to the entry of

another caveat by Zaharah on 3.2.2000.

14. The Plaintiffs filed actions against Defendants in the High

Court in 3 (three) separate suits. These cases were

consolidated and heard together.

15. The High Court dismissed with all the 3 (three) cases with

costs. However, only the Defendants counterclaim in Suit

413 was allowed with costs. Hence this appeal.

The Defendants Case

16. In Suit 411 it is the Defendants case that the monies were

withdrawn by Hamid of his own free will and free of any

undue influence. Hamid had affixed his thumbprint to the

withdrawal forms for the monies which were verified by

LUTHs staff. Hamids subsequent act of giving the money to

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Badariah was a spontaneous act of his own generosity and

by his long-held trust and affection for Badariah. As an

example of Hamids affection for Badariah back in 1985

Hamid had executed a survivorship mandate of his LUTH

account in favour of Badariah. In 1988 Hamid had given

land Lot 91 to Badariah and Shariffah Nor. In 1998 Hamid

had given a mandate to Badariah to operate his Hock Hua

Bank current account. Finally, Hamids actions in removing

Hassans caveat on the Properties on 18.2.2000 was to pave

the way for the intended transfer to Badariah and Nor.

17. In Suit 412 the Defendants contention is that they were

transferred to Badariah on Hamids own free will and

independent thought. The share transfer forms were signed

by Hamid and witnessed by Syed Sulaiman bin Syed Abdul

Kadir. Zulkifli bin Hussein (DW12) called at the house to

attend to the share transfer documentation. Hamid informed

DW12 that he wanted to transfer all his shares in ZASB and

LBSB to Badariah. Hamid also told DW12 to make the

necessary arrangements to give effect to the transfer of the

shares.

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18. In Suit 413 before deciding to make the gift of the

Properties to Badariah and Nor. Hamid had obtained

Rodziahs independent advice. Rodziah then drew up the

Suratikatan Hadiah on Hamids instructions. Hamids

signatures on the Suratikatan Hadiah and Form 14A were

witnessed by Md Nor @ Mohd Noah bin Ahmad (DW6) and

Mohd Aidi bin Mohamad (DW10) respectively. The transfer

could not be effected because of the caveats entered against

the Properties by Syed Hassan (Hassan) and Shariffah

Zaharah (Zaharah). Consequently, the Defendants are

counter-claiming for the removal of the caveats entered

against the Properties, compensation and costs.

19. In respect of all the above transactions it is the Defendants

common stand that the Defendants did not at any time use

the PA or purport to act as attorneys for Hamid under the PA.

The Plaintiffs Case

20. In Suit 411 the Plaintiffs contend that between 8.5.1998 to

29.2.2000 withdrawals in the aggregate sum of RM1.124m

were made from Hamids account with LUTH. The

withdrawals were made fraudulently using Hamids forged

thumbprint. Consequently, the monies were impressed with a

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trust. The monies were utilised to purchase 357,298 shares

ZASB. Hamid was under the Defendants domination due to

this mental and physical incapacities and exploited deceived

by the Defendants into parting with his monies.

21. In Suit 412 the Plaintiffs assert that upon obtaining the PA,

Badariah and Shariffah Fatimah (Fatimah) wrongly

deprived Hamid by having his 146,503 shares in ZASB

transferred and registered in Badariahs name on 20.2.1998.

It is contended that the Defendants forced, misled and

tricked, exploited Hamid who was mentally and physically

infirmed at deaths door to part with his shares in ZASB and

LBSB even though he was under their authority and

guidance as guardians and fiduciaries. The misappropriation

of Hamids shares was a breach of trust and breach of

fiduciary duty causing loss to Hamid and profiting Badariah.

Fatimah assisted Badariah in this fraudulent and dishonest

scheme.

22. In Suit 413 the Plaintiffs contend that in furtherance of a

dishonest and fraudulent scheme the Defendants deprived

Hamid of his one-half share of the Properties. Hamid was

under the Defendants domination in their house due to this

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mental and physical incapacities. Rodziah binti Idris

(Rodziah) who personally handles matters for the

Defendants was also purporting to act for Hamid. Rodziah

had absolute knowledge that Hamid was completely under

the domination of the Defendants and had knowledge of the

PA obtained by Badariah and Fatimah.

23. It is also contended in 3 (three) suits herein, there was a

guardian and ward relationship and fiduciary/trustee

relationship which produce a presumption that the

Defendants are deemed to be in a position to dominate the

will of Hamid as he was completely dependent on them and

vulnerable and are forbidden to exploit his position. When

they accepted the authority and power under the PA, it could

only be used for the benefit of Hamid and not profit

themselves and their faction.

The Judges Finding

24. After having heard all parties, the court finds that:-

(i) The medical evidence has shown that the general

mental condition of Hamid was fair, and satisfactory up

until 29.2.2000. The medical evidence is also

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consistent with the lay evidence of Kee, the solicitor

who attended to the execution of the PA by Hamid;

(ii) the learned High Court Judge also considered the

evidence of Badariah, Salim, Nor and Fatimah.

Between 1997 and 1999 Hamid travelled to Kota

Bharu, Rantau Panjang, Kulim and Muar on a number

of occasions. Badariah and Nor in particular helped

look after Hamid; Fatimah looked after Hamid during

the period Hamid was hospitalized in February March

2000;

(iii) there is also the independent corroborative evidence of

third parties: Kee the solicitor who attended to Hamid in

the execution of the PA, Rodziah the solicitor who

prepared the Suratikatan Hadiah, DW6 the friend and

neighbor who attested Hamids signature on the

Suratikatan Hadiah, DW12 who attended to the

transfer of shares and the officers from LUTH who

attended to Hamid for the withdrawals from his account

with LUTH;

(iv) based on the evidence, the High Court Judge made a

finding of facts that Hamid was not in perfect health.

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He was suffering from hypertension, diabetes and a

had mild stroke from which he had recovered. There

was insufficient evidence to justify a finding that Hamid

was in a state of mental incapacity. Hamid was able to

exercise his judgment independently and gave

instructions to do what he wanted;

(v) furthermore, there is no evidence to show that Hamids

physical and or mental condition had deteriorated. In

the light of the evidence the learned High Court judge

is of the view that he was unable to find that Badariah

or any the other Defendants were in a position of active

confidence vis--vis Hamid.

(vi) on the contrary, the medical evidence shows that

Hamids mental deterioration only came about March

2000. For the foregoing reasons the learned High

Court judge finds that Hamid was not physically and/or

mentally incapacitated from 1998 onwards. Hamid

only became physically and mentally incapacitated on

29.2.2000.

(vii) the learned High Court judge also held that there is no

evidence to show that the thumbprints affixed on the

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cash withdrawal forms are forged or that the

withdrawals were made fraudulently. Therefore, the

court finds that the Plaintiffs have failed to prove that

the withdrawals of monies in the aggregate of

RM1.124m were made fraudulently using Hamids

forged thumbprint beyond reasonable doubt;

(viii) the learned High Court judge found that Badariahs

evidence is clear and uncontroverted pertaining to the

transfer of 146,503 shares in ZASB. The explanation

that the value was reflected in the circular resolution,

share transfer forms and audited accounts merely for

stamp duty purpose is plausible. Thus, the learned

High Court judge found that it was unnecessary to

declare the transfer of the shares void as Badariah has

shown to the Courts satisfaction that Hamid had

competent and independent advice in making the gift.

(ix) Based on the above findings, the learned High Court

judge cannot find anything to justify the Plaintiffs claim

and dismissed it with costs. However it allowed the

Defendants counter claim in Suit 413 with costs.

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In the Court of Appeal

25. In view of the protracted issues in these suits the collective

claims of the Plaintiffs were consolidated in the High Court

which meant that before us, the said issues ran into several

reams of documents.

26. However at the outset, Counsel for the Appellant pointed out

that the only point in the defence in all the three suits relates

the issue of Hibah.

27. In fact the issue on Hibah is the lynchpin of the suits i.e.

whether the gifts made by Hamid inter vivos are construed

as Hibah.

28. As a matter of interest, the Respondents had applied to the

Court for a determination whether the transactions made

between Hamid and the Respondents Badariah and Nor in

the formers lifetime, were in the nature of Hibah or gifts inter

vivos. It was a live issue then. However, since the

summons was heard and dismissed on 30.3.2009, and the

trial commenced soon after, that issue was therefore spent

and should not now be resurrected.

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29. As the evidence unfolded before us and as we deliberated

upon them, it was clear to us that the findings of the learned

High Court judge are correct. We see no reason to interfere

with those findings.

30. In the circumstance we find that after having heard parties

and examining the Record of Appeal, in particular the oral

and documentary evidence adduced before the High Court in

respect of all three appeals, we find no basis in disturbing the

findings meticulously made by the learned High Court judge

and we hereby affirm his decision.

31. We dismiss all three appeals with costs.

Costs of RM20,000 to the Appellants here and below.

Deposit to the Respondent on account of cost.

Dated: 10 October 2012

(DATUK ZAINUN ALI) Judge Court of Appeal Malaysia

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Counsel For the Appellant: Thara Singh Sidhu (Nizam Bashir with him) Solicitors For the Appellant: Tetuan Thara Singh Sidhu Counsel For the Respondent: Abd. Hamid Menon (R K Menon) (Adi Radlan with him) Solicitors For the Respondent: Tetuan R R Menon & Co