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 Fact of the case
FACT OF THE CASE

S Alameloo Achi alias Sona Lena Alamelo Achi (‘the deceased’) was the registered
owner of a plot of land situated in Bandar Kulim. The first appellant was the
executor of the will of the deceased, while the second appellant was the lawful
attorney of the first appellant. On September 4, 2009, Kalidas signed a contract
with the respondent to sell the land. The memorandum of transfer of the land
executed by Kalidas was brought for registration after the respondent had paid the
contractual deposit and the difference between the remaining purchase price and
the loan payment. However, the instrument was rejected for registration by the
registrar of titles by due to of the report of fraud by the second appellant. In
response, the respondent filed an action for specific performance of the SPA and
for damages against the appellants. The first appellant then filed a separate action
against Kalidas to cancel the impugned PA on grounds that the impugned PA was
forged, and because the memorandum of transfer of the land was rejected for
registration by the registrar of titles by reason of the report of fraud by the second
appellant.
LEGAL ISSUE

1. Whether respondent acquired indefeasible title to property

2. Whether impugned PA valid because of its registration
3. Whether title of respondent obtained by void instrument
4. Whether appellants had burden of proving fraud
Cause of action

- The memorandum of transfer of the land was rejected for registration by the registrar of
titles by reason of the report of fraud by the second appellant.

Applicable Law in the case Ground of Judgment

- Ss 3 and 4 of the Powers of Attorney Act 1949 - Validity of power of attorney
(‘the PAA’) - Form of authentication
- Section 85 of the Evidence Act 1950 (‘EA’) - Standard of proof on the balance of
- Section 101 of the Evidence Act 1950 probabilities
- Section 340 of the National Land Code (‘the
NLC’)
- Section 340(2)(b) of the National Land Code
- Section 340(2)(c) of the National Land Code

Judgment
The Federal Court held that the trial judge was erred
in holding that the impugned power of attorney was
valid because of its registration. It was clear that the
impugned power of attorney, had not complied with
Section 3 of the Power of Attorney Act 1949. As the
impugned power of attorney lacked the required
form of authentication, it had no validity even if the
alleged signature of the first appellant on the
impugned power of attorney were genuine. The
learned judge also dismiss the claim of the
respondent against the appellants. The court also
order the Registrar of Titles to cancel the title of the
respondent as proprietor of the said land and restore
the deceased as proprietor.
Opinion
The Federal Court has made a decision that is
balanced and in line with the standard of
proof on the balance of probabilities. Because
from the very beginning the impugned PA was
not valid, even though the sign of the
respondent was genuine, the impact of
Section 3 of the PAA was applied. In my view,
the respondent is a bona fide purchaser,
however because the respondent is not a
subsequent purchaser, thee shield of
indefeasibility cannot be raised in the end.
Fact of the case

Rozdenil bin Toni (the plaintiff) was the executor of his deceased parents' estate, which
comprised a plot of land in Cheras ,Kuala Lumpur. The plaintiff's elder brother, the second
defendant, sold and transferred the property to Low Huat Cheng and Tan Goat Eng (the third
and fourth defendants) in an illegitimate and illegal manner. The property was sold to the fifth
defendant by the third and fourth defendants, who were not aware of the fake.
The property was subsequently charged to HSBC Bank (the ‘sixth defendant') as collateral for a
loan given to the fifth defendant. The sixth defendant had foreclosed on the property after the
fifth defendant failed to repay the debt. Following that, the property was auctioned off to
Kotanaz Sdn Bhd (‘the seventh defendant,' as the current registered owner). The plaintiff
discovered that the second defendant had unlawfully transferred the property to the third and
fourth defendants. Consequently, the plaintiff commenced an action against the Pengarah
Tanah dan Galian Wilayah Persekutuan (‘the first defendant’) and the second to seventh
defendants. s. The plaintiff’s claim against the defendants was anchored on two distinct causes
of action, namely a statutory claim under s 340 of the National Land Code (‘the NLC’),
whereby the plaintiff was essentially seeking an order to cancel all the dealings pertaining to
the property and to have the ownership of the property reverted back to the estate
Legal Issue

• Whether indefeasibility deferred or immediate

• Whether transfer liable to be set aside at instance of registered proprietor
• Whether High Court and Court of Appeal erred in declaring transfer of
property from original owners to immediate purchasers was void
• Whether in lieu of retransfer of property a claim in damages available to
plaintiff as true owner of property under Section 340 of the National Land
Code
• Whether claim under Section 340 an action in rem
• Whether High Court and Court of Appeal erred in holding that immediate
purchasers were statutorily bound to pay damages because they were in no
position to return property to plaintiff
Cause of action - The plaintiff's elder brother (the "second defendant") sold and transferred the property
to the third and fourth defendants in an unauthorized and illegal manner, using a forged instrument. The
plaintiff then , commenced an action against the Pengarah Tanah dan Galian Wilayah Persekutuan
(‘the first defendant’) and the second to seventh defendants.

• Applicable Legislations • Ground of judgment

- Land Titles Act [SG] -
- National Land Code 1965 ss 340
340(1), (2), (2)(b), (3),
- Form 14A
- Case of Tan Ying Hong v Tan Sian
San & Ors [2010] 2 MLJ 1