The appellant was the elder brother of Soma Sundram a/l Doraiswamy (‘the deceased’) whose widow, the respondent, was the administrator of his estate. During the deceased’s lifetime, the appellant had allegedly lent the deceased monies from time to time and had even paid the redemption sum for a bungalow (‘the bungalow’) that the deceased owned. As the deceased could not repay the advances, he gave the appellant the document of title to the bungalow and executed a power of attorney (‘the PA’) giving the appellant absolute power to sell the bungalow and keep the entire proceeds of sale. Some years after the PA was executed, the appellant realised that the leasehold tenure of the bungalow would expire in about 19 years. The appellant, who was then working overseas, requested the deceased (who was still the registered owner of the bungalow) to renew the lease for another 99 years and, for that purpose, arranged for the title to be handed back to the deceased and for all fees for the lease renewal application to be paid. When he returned to Malaysia, the appellant discovered that the deceased had sold the bungalow for RM1.45m and had credited only RM549,995 into the appellant’s account. The deceased had used the balance of the proceeds of sale to pay off creditors and buy a double-storey terrace house (‘the Sunway property’). The appellant claimed that before his death, the deceased had agreed to sell the Sunway property and use the proceeds to settle the balance RM900,005 he owed the appellant for the sale of the bungalow. The appellant also claimed that when the deceased later suffered a stroke, he sent him to India for medical treatment and paid for all the medical and other expenses involved and when the deceased died there, he had the body flown back to Malaysia for burial and bore all the expenses involved right up to the burial. The appellant sued the respondent qua administrator in the High Court for, inter alia: (a) a declaration that under the PA he was entitled absolutely to the bungalow and the proceeds of its sale; (b) an order that the respondent pay him the balance RM900,005 due to him from the sale of the bungalow; and (c) the sum of RM900,005 to be paid to him out of the proceeds of sale of the Sunway property, together with a further RM141,936.30 he had incurred for medical, funeral and other related expenses for the deceased. The appellant contended that the deceased held the bungalow in trust for him because as from the date of the PA he had possession of the title deed to the property, paid the quit rent and assessment for more than ten years and also paid a substantial sum to have the leasehold tenure renewed. The respondent, on the other hand, denied that any trust relationship was created by the PA. Apart from granting the appellant RM14,950.43 (which was conceded by the respondent) and allowing him to recover the expenses he had incurred for the deceased’s funeral — provided the appellant was able to produce receipts for the same in his name — the High Court dismissed all other claims of the appellant. The court held that the deceased had not committed any breach of trust or fraud in selling the bungalow without informing the appellant; that the PA was revocable in nature and by his actions the deceased had impliedly revoked it; and that there was no evidence of any monies advanced by the appellant to or on behalf of the deceased. The instant appeal was against the High Court’s decision.
Held, allowing the appeal in part:
(1) The High Court’s appreciation of the facts and law was perverse to the appellant considering that the deceased had voluntarily executed the PA giving the proceeds of sale of the bungalow to the appellant. Prima facie, in law and in equity, the deceased had divested himself of his interest in the bungalow to the appellant. The deceased’s role after the execution of the PA was at most that of a constructive trustee. It was undisputed that the appellant had an interest in the proceeds of sale of the bungalow. Consequently, the PA fell within the jurisprudence and parameters of an irrevocable PA. As the power was never revoked during the deceased’s lifetime, the terms stated in the PA stood valid, one of which was that the appellant was entitled to the proceeds of sale of the bungalow (see paras 5 & 23).
(2) Once a valid PA was given, it remained in full force until it was lawfully revoked, ie, the common law principles of revocation by conduct of the donor was not applicable. Section 5 of the Power of Attorney Act 1949 (‘the PA 1949’) set out the procedure for revocation. In the instant case, there was no revocation as per s 5 of the PA 1949. Even on the assumption the PA in the instant case was not irrevocable, the deceased could not have acted in law or in equity against the express terms contained in the PA itself without committing breach of contract, fraudulent breach of trust, etc (see paras 21 & 24).
(3) The respondent’s pleaded defence to the ‘bungalow issue’ (ie: denying the existence of the PA and the appellant’s claim to the bungalow and its sale proceeds and putting the appellant to strict proof thereof) was insufficient to displace the appellant’s claim as the deceased had absolutely given the proceeds of sale to the appellant. In law, the PA corroborated the appellant’s evidence. Very importantly, there was no challenge in the statement of defence to the PA itself. Any reasonable tribunal appraised with the pleadings, evidence and the law would have concluded that the appellant did advance money to the deceased which culminated in the PA and that the PA was irrevocable. In the instant case, only the appellant and the respondent (who had no knowledge of the events) had given evidence. The law only required the appellant to establish his case on a balance of probabilities. The High Court’s evaluation of the facts and law on the ‘bungalow issue’ was misconceived and perverse and required appellate intervention (see paras 30–32).
(4) The appellant’s claim in relation to the ‘bungalow issue’ had merits and was allowed. His other monetary claims, unrelated to the ‘bungalow issue’, concerned a finding of facts in respect of which this court deferred to the findings and conclusion of the trial judge and was not minded to disturb the same. However, it was not proper for the court below to make an order that the burial expenses were allowed provided the appellant produced receipts. Such an order on the facts would not bring finality to the court proceedings. As the record showed evidence of a total expenditure of RM13,261.40 and the documents were not challenged, the claim for that sum was allowed. The amount granted by the High Court was also sustained (see paras 36–38).
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