1. ) Adderina Binti Kaharudin 2. ) Jihadi Bin Kaharudin v LIM YEW JIN

Case Significance

Affirms that an express trust over land can be established on the documentary and other evidence, and that a party asserting that a dealing in allegedly Malay-reserved land is illegal must adduce cogent evidence both that the land is reserved and that the registered proprietor was not declared a Malay, failing which the public-policy challenge fails.

This Court of Appeal decision concerns a dispute over whether a deceased landowner held four properties on trust for a third party, and affirms the High Court's finding that an express trust existed. The appellants were the son and daughter of the deceased, sued and appealing as the administrators of his estate; the respondent was the individual claiming to be the beneficial owner of the properties, which were registered in the deceased's name in the District of Gombak, Selangor. The respondent had commenced a High Court suit seeking, among other things, a declaration that he was the beneficial owner of the properties by virtue of a deed of trust and an irrevocable power of attorney executed in 2010. The High Court ruled in the respondent's favour, establishing the existence of the trust, and the administrators appealed. The key issues concerned the admissibility and enforceability of the trust documentation, whether there was valuable consideration, and the legality of the trust having regard to the alleged bumiputra or Malay-reserved status of the land. The Court of Appeal, examining the evidence and the relevant provisions of the Evidence Act 1950 and the National Land Code, found that an express trust existed and that the trial judge had been correct in that assessment. On the illegality argument, it held that the relevant Reservation Enactment applied where reservation land was held under a document of title by a person declared to be a Malay, and that since the deceased had not been so declared and the appellants had not adduced sufficient cogent documentary and testamentary evidence that the properties were in fact Malay-reserved land, the contention that the dealing was illegal and void as against public policy could not be sustained. Finding no appealable error warranting appellate intervention, the court unanimously dismissed the appeal, affirmed the High Court's judgment, and ordered the appellants to pay costs of RM25,000 to the respondent, subject to allocatur.