Afzal Nizaam Bin Mohd Firdawos [Selaku Pentadbir Harta Pusaka Mohd Firdawos Bin Shaharudin, (No. K/p: 530423-10-5647), Si Mati] v Pustaka Alif Shafri Bin Shaharuddin (No. K/p: 660427-10-7709) (Si Mati) [Melalui Pentadbirnya, Herlina Binti Yaacob]

Case Significance

Illustrates proof of a constructive trust over land from recorded family dealings and the three certainties, and the effect of a subsisting order of distribution on the relief that can be granted.

This High Court decision at Shah Alam determines a dispute between the estates of two deceased brothers over the beneficial ownership of a piece of land. The claim was brought by the administrator of one deceased brother’s estate against the administrator of the other brother’s estate, seeking declarations that the surviving-registered brother had held half of the land on trust, and orders that the land be sold with part of the proceeds paid over, or alternatively that the half-share be transferred to the claimant estate. The core question was whether a constructive trust — an "amanah konstruktif" (constructive trust) — arose over half the land in favour of the deceased brother whose estate brought the claim, notwithstanding an existing order of distribution. The Court examined the three certainties required to establish a trust, drawing on Ong Kong Beng v Ong Kong Leong, and relied in particular on a recorded family conversation. From the transcript, and the evidence of the wife, the child and the solicitor who had managed the land, the Court found a clear intention on the part of the now-deceased registered brother to hand over half of the proceeds of sale to his late brother, and it was satisfied that the subject matter and the object of the trust were likewise certain. It therefore held, on the balance of probabilities, that the registered brother held half of the land on trust for his brother, and allowed part of the claim, granting the declarations of trust. Because the order of distribution remained in force, however, the Court declined to order the title transferred to the claimant estate; and because a caveat restricted dealings in the land, it allowed the defendant’s counterclaim for removal of that caveat. Per Noor Hayati binti Haji Mat J, damages were left to assessment if pursued, and costs of RM20,000 were awarded. The judgment illustrates proof of a constructive trust from family dealings alongside a subsisting order of distribution.