Professional Documents
Culture Documents
ANTARA
DAN
3. ROSLAN MAULUD
(NO. K/P: 500618-10-5439)
(atas Kapasiti individu & selaku
Pentadbir Bersama harta Pusaka Kamin Bin Khatib)
… RESPONDEN-
RESPONDEN
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Dan
Dan
Dan
Dan
Dan
Dan
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Dan
Dan
Dan
Dan
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Dan
Dan
Dan
ANTARA
2. ROZIDIN MASARI
(No. K/P: 591017-10-5069)
(selaku Pentadbir Harta Pusaka arwah Masri Bin Khatib)
… PLAINTIF-
PLAINTIF
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DAN
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Continental Court Sdn Bhd v. Fan Fong Hee & Ors [2013] 1 LNS 275
HC (refd)
Hassan Bin Seman & Ors v. Jusoh Bin Awang Chik [1981] 1 LNS 15
FC (refd)
Latifah Mat Zin v. Rosmawati Sharibun & Anor [2007] 1 CLJ Sya 1
(refd)
Ong Yok Chu & Anor v. Yong Teck Fong & Anor [1960] 1 LNS 84 HC
(refd)
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CORAM
GROUNDS OF JUDGMENT
Introduction
[1] There were two appeals fixed before this Court. Both appeals
were filed by the Appellants and they are as follows -
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[5] By way of an Order dated 7.1.2019, the High Court had allowed
the Second and Third Respondents to intervene as Second and
Third Defendants in the OS 439.
[6] At the High Court, the learned judge had acknowledged that
both OS 305 and OS 439 were filed for the same purpose related
to the land acquisition and award which has to be deposited to
the Court through Court’s order in Originating Summons No.
BA-24-64-01/2016 (“OS 64”). Therefore, both OS 305 and OS
439 were heard together. The extracts from the grounds of
judgment are as follow:-
[9] SP305 dan SP439 difailkan di atas perkara dan tujuan yang
sama. Kedua-duanya berhubung dengan pemilikan tanah
tersebut dan wang pampasan yang didepositkan ke dalam akaun
mahkamah melalui SP64.”
[8] The trial at the High Court was by way of affidavits evidence.
The Appellants’ Affidavit in Support of OS 439 was affirmed by
Nazaruddin Bin Mohd Shariff @ Masari on 16.4.2018 and the
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[9] Having analysed the affidavits evidence before the Court and
heard submissions from the Appellants and the Respondents
during the trial, the learned judge dismissed the Appellants’ OS
305 and OS 439 with Costs of RM5,000.00 to be paid to the
First Respondent and RM2,500.00 to be paid to the Second and
Third Respondents subject to allocatur fee.
The Appeal
[10] Both Appeal 87 and Appeal 91 came before us. We had read the
records of appeal. The Appellants have set out various grounds
in their memorandum of appeal dated 22.4.2019. The Appellants
and the Respondents had made their oral submissions and also
relying on their written submissions. We had considered their
able submissions.
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they had never applied for. The facts were distorted. The learned
judge also stated that the Court by letter dated 12.4.2018 (see exhibit
marked “MF-5” at page 1394 of Rekod Rayuan Bahagian C (Jilid 7)
had informed the Appellants’ solicitor about the mistake and that the
Order could not be enforced. The Appellants’ solicitor was required to
file a new Order. Extracts from the Shah Alam High Court letter dated
12.4.2018 is produced in verbatim as follows:-
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[14] Further, the learned judge found that the Appellants’ solicitor
had used OS 1371 Order to support their claim in OS 305. In
other words, if the above instructions were followed or later
acknowledged by the Appellants’ solicitor after filing OS 305 on
21.3.2018, the declaration sought to declare MBK as the
registered owner of Lot 864 would not arise. In effect the OS
305 is supported by the incorrect Order which is yet to be
corrected as directed by the Court.
[15] The learned judge also found that in OS 439, though it never
directly mentioned about the said OS 1371 Order, but the fact
remains that the declaration sought is the same i.e. for
declaration that MBK is the registered owner of Lot 864. In
other words, had the Appellants’ solicitor followed or
appreciated the Court’s letter dated 12.4.2018 (Exhibit “MF-5”),
the declaration sought is also non-starter or the issue of res
judicata as grounded by the Appellants does not arise because
when OS 439 was filed on 19.4.2018 the Appellants would have
knowledge or known that the OS 1371 Order contains mistake
that must be corrected.
[16] We investigated this matter and found the learned judge did not
make a wrong finding over this matter.
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[22] Based on the above facts, it was rightly said that the incorrect
Order could not be enforced or used to support the Appellants’
applications in another proceedings. It was correctly submitted
by the First Respondent that the Appellants did not come to
Court with clean hands. The case of Continental Court Sdn Bhd
v. Fan Fong Hee & Ors [2013] 1 LNS 275 was referred to which
held that:
“95. The court was also satisfied that the plaintiff did not
come to court with clean hands.
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[23] Be that as it may, the learned judge had dealt and considered the
Appellants’ OS 305 and 439. In trying to obtain the declarations
sought that Masri Bin Khatib is the Owner of the Lot 864, the
Appellants established their case by relying on the documents as
follows -
[24] Before going further into this matter, the facts of the case can be
seen as follows -
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iv. Kamin Bin Khatib died in the year 1948 and Masri Bin
Khatib died on 23.3.1988.
v. The disputed subject matter Lot 864 had never been passed
down intervivos and/or bequeathed by will to either of the
Sultan Palembang’s sons.
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[26] This Court took judicial notice that if the deceased was a
Muslim, the rightful beneficiaries as stated under faraid are the
father, mother, wife, husband, sons, daughters, etc. In Arabic,
the Islamic law of succession is known as ‘al-faraid’, which
literally means fixed portions. Technically, the term denotes the
quantum of shares allotted to the legal heirs as determined by
the Shariah.
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[29] The Respondents’s case is that Masri Bin Khatib was never an
owner of the said land but was the Administrator of the said
land.
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[32] Based on the reasons stated above, the learned judge made his
finding that the issue of ownership of the said land is still a live
issue which must be finally determined by the Court. The
learned judge agreed that the decision taken by the First
Respondent to deposit the land acquisition award into Court via
OS 64 is correct. The application is supported by the Affidavit
in Support affirmed by Penolong Pentadbir Tanah Daerah Hulu
Langat, Jurita Binti Juhari on 19.7.2016 (see Exhibit “NZ-13” at
pages 290-293 of Rekod Rayuan Bahagian C (Jilid 2)). The
Appellants’ OS 305 and OS 439 was held to be without basis for
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[35] The Federal Court case of Hasan Bin Seman & Ors v. Jusoh Bin
Awang Chik [1982] 1 MLJ 66 at Pages 67 held that :-
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[36] Even if this is not the case, we did enquire from the Appellants
as alluded to earlier whether there is Faraid Certificate granted
to Masri Bin Khatib as the sole heir and beneficiary to the estate
of Sultan Palembang. There is no such evidence before us.
Whether Masri Bin Khatib is the only lawful heir to Sultan
Palembang is to be determined by the Syariah Court. As such, it
would be inappropriate for this court to issue any such
declaratory order. Without the Faraid Certificate which we
insisted, Grant of Letters of Administration dated 11.11.1957
validly shows that Masri Bin Khatib is the Administrator of the
property of his deceased father Sultan Palembang Bin Raja
Acheh @ Haji Ismail Bin Raja Acheh who died in 1942 as stated
in the said Letters of Administration and not the owner of the
property.
[37] In Latifah Mat Zin v. Rosmawati Sharibun & Anor [2007] 1 CLJ
Sya 1; [2007] 5 MLJ 119, at paragraph 56, it was said amongst
others that when the letter of administration is obtained, the
administrator is appointed, and in case of an estate of a muslim,
the administrator will obtain a ‘Sijil Faraid ‘ from the Shariah
Court which state who are the beneficiaries and their respective
shares, in accordance with Islamic Law. If the estate consists of
immovable property, another application is made to the civil
High Court for a vesting order. All that the civil High Court
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[39] Based on the reasons stated above, the learned judge made his
finding that the issue of ownership of the said land is still a live
issue which must be finally determined by the Court. It is also
within the learned judge’s knowledge from the record that the
Second and Third Respondents had filed Suit 327 (see Exhibit
“MF-3” at pages 1222- 1282 of Rekod Rayuan Bahagian C (jilid
7) for the Court to determine the issue of ownership of the said
land and an order to set aside OS 1371 Order on ground that it
was obtain by fraud, wrong and misconceived.
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[42] In the case of Ong Yok Chu & Anor v. Yong Teck Fong & Anor
[1960]1 MLJ 292, at pg. 293], Ismail Khan J held that:
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[44] The learned judge had correctly dismissed both OS 439 and OS
305 We were satisfied that there is no appealable error in the
judgement for this Court to interfere. The Appellants’ appeal is
bereft of any merit.
Decision
(KAMALUDIN MD SAID)
Judge
Court Of Appeal Malaysia
Putrajaya
COUNSEL:
For the appellants - Afifi Ahmad, Ismail Yahya & Mohd Fakhzan
Mohd Noor; M/s Fakhzan Azlina & Associates
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