ASMAH BINTI MAHFUL v 1. ) HASSAN BIN YUSOF 2. ) Pentadbir Tanah Daerah Hulu Langat

Case Significance

Illustrates when a court will decree specific performance of a family land sale over a defence of non est factum or an alleged failure to pay the deposit, once satisfied that the seller executed the transfer documents with full knowledge of the bargain.

This High Court decision at Shah Alam concerns a dispute among family members over a low-cost house at Kampung Tasek Tambahan in the district of Hulu Langat, and a claim for specific performance of its sale. The property originated with the parties' father, a land settler, and after his death was occupied by the siblings as the need arose; when a government census was taken in 1977, the first defendant was in occupation and was registered as the proprietor. The plaintiff, one of the siblings, occupied the property for some 35 years. In 2013 the first defendant agreed to sell it to the plaintiff for RM40,000: a firm of solicitors prepared a sale and purchase agreement and a Form 14A memorandum of transfer, which the plaintiff and the first defendant executed in June 2013, the plaintiff paying RM2,000 as part of the deposit and later the RM36,000 balance to the solicitors as stakeholders pending registration. The title was subsequently found to be missing, and the transfer was not completed. The first defendant resisted specific performance on the footing that he had not known what he was signing, or that his signature had been obtained by fraud or misrepresentation, and contended that the plaintiff had breached the agreement by not paying the deposit on execution, rendering it void. After a full trial the court was satisfied, on the balance of probabilities, that the first defendant had signed the transfer documents with full knowledge that he was selling the property to the plaintiff for RM40,000, and that he was in breach of the agreement by refusing to take the steps needed to transfer it. It granted a decree of specific performance requiring the first defendant to implement the sale and enable the plaintiff to complete the purchase, and awarded costs of RM10,000 to the plaintiff. The judgment illustrates when a court will decree specific performance of a family land sale over a defence of non est factum or non-payment of the deposit.