LOGAMMAH A/P RAMASAMY v DARASAMY A/L RAJU

Case Significance

Illustrates that a claim to compel transfer of a co-owner's share that turns on disputed facts, such as an alleged condition imposed by a deceased purchaser, is unsuitable for an originating summons and must be tried on oral evidence.

This High Court decision at Shah Alam concerns whether a dispute over the transfer of a co-owner's share in land could properly be resolved by originating summons. The plaintiff and the defendant were co-proprietors of a parcel of land in Mukim Damansara, the plaintiff holding a two-thirds share and the defendant a one-third share. The plaintiff's case was that her late father had purchased the land in the names of both the plaintiff and the defendant, purportedly on the condition that the defendant would take care of the plaintiff and her family, and that because the defendant had abandoned the matrimonial home and failed to meet his obligations, his one-third share should be transferred to her. The main issue was whether the defendant could be compelled to transfer his share. The court examined the appropriateness of the originating summons procedure under Order 5 rule 4(1) of the Rules of Court 2012, which is suited to cases where the principal question is the construction of a written instrument or a point of law, rather than one turning on contested facts. Drawing on the reasoning in Dharmaraj Keresan v Subramaniam, the court held that the many issues raised in the affidavits, including the existence and terms of the alleged condition imposed by the late father and the defendant's alleged conduct, gave rise to substantial disputes of fact that could not be resolved on affidavit evidence alone. It noted that several persons supporting the plaintiff were ready to testify, and that resolving the truthfulness of the competing accounts required viva voce evidence at a full trial where witnesses could be examined. Concluding that the originating summons was not the appropriate mode, the court dismissed the originating summons with costs of RM5,000. The judgment illustrates that a claim to compel the transfer of a co-owner's share that depends on disputed facts should not be pursued by originating summons.