Mohd Aslam Khan bin Syed Gulam v C Mageswary A/P Chandran & Ors [2019] MLJU 1160

Court: Court of Appeal (Putrajaya)

Judges: Abdul Rahman Sebli, Mary Lim Thiam Suan, Hasnah Hashim JJCA

Date of Judgement: 15 October 2019

Topic: Presumption of Death

1.      Sikandar s/o Fajar Ellahi (‘Sikandar’) was the original owner of a piece of land (‘the land’).

2.     When Sikandar died in 1940, one Merlhat Han (‘Merlhat’) applied for and obtained a grant of letters of administration (‘LA’) of Sikandar’s estate in 1941.

3.     Merlhat then applied for the land to be registered in his name as administrator.  Merlhat died on 4 September 1952 leaving Sikandar’s estate unadministered.

4.     In January 2016, the Appellant, who was Sikandar’s grandson, obtained a grant of LA for Sikandar’s estate based on the grant of LA that Merlhat had obtained in 1941.

5.     On conducting a search at the land office, the Appellant discovered that pursuant to a memorandum of transfer the land was purportedly transferred by Merlhat on 29 May 2001 to one Chandaran a/l Narayanasamy (‘Chandaran’).

6.     Following Chandaran’s death in 2002 the land was transmitted to one Annapoorany a/p Letchumanan and thereafter a 13/15th part of the property was transmitted to the Fifth Respondent while a 2/15th part was transferred to the Sixth Respondent.

7.     The Appellant’s instant action was to set aside all purported interests and ownership of the Respondents (except the Third and Fourth Respondents) over the land on the grounds of fraud, forgery and illegality.

8.     The Appellant contended that since Merlhat died on 4 September 1952, he could not have transferred the land to Chandaran on 29 May 2001.

9.     Furthermore, there was no court order to show that Merlhat, as administrator of Sikandar’s estate, had obtained consent of court to transfer or deal with the property.

10.  Merlhat’s identity card number on the purported instrument of transfer of the land favouring Chandaran was also non-existent.

1.     Whether the presumption of death order issued by High Court was conclusive proof of date of Merlhat’s death?

1.     The Court of Appeal has affirmed in their decision that Merlhat’s death was established through the following documentary evidence:

(a)  the presumption of death order issued by the High Court which states that Merlhat died on 4 September 1952; and

(b)  Merlhat’s death certificate showing that he had passed away since 4 September 1952.

2.     The learned trial judge however ruled that Marlhat’s death had not been proved, for the following reasons:

(a)  the presumption of death order does not prove the date of death

(b)  Merlhat’s death certificate could not be admitted as evidence pursuant to Section 90 of the Evidence Act 1950 (“Act 56”)

3.     However, the Court of Appeal agreed with the counsel for the Appellant that the trial judge had erred in holding that the presumption of death order had no evidential value and did not provide proof that Merlhat died on 4 September 1952.

4.     The Court of Appeal further stated that the learned judge’s reliance on Re Osman bin Bachit [1997] 4 MLJ 445 case is misplaced as in that case the presumption of death order had not been obtained, unlike the present case where the order had been procured.

5.     Besides, it was a case on Section 108 of the Evidence Act 56 that provides-

“When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.”

6.     Contrary to the trial judge’s reading of the case, the Court of Appeal made a finding that the case of Re Osman bin Bachit [1997] 4 MLJ 445 is in fact the authority for saying that the date of death could be proven in an application for the grant of letters of administration.

7.     The Court of Appeal also found that the proper course for the Appellant to adopt would be to apply for letters of administration and prove the death of the deceased in that proceedings.

8.     The Court of Appeal also made a reference to the case of Gulf Business Construction (M) Sdn Bhd v Israq Holding Sdn Bhd [2010] 5 MLJ 34 to iterate that the presumption of death order has not been set aside.  Therefore, it remains a valid and binding order on all parties.  The order provides conclusive proof that Merlhat had died on 4 September 1952.

9.     The Court of Appeal in deciding the case further stated in brief, where when a presumption of death order is granted, it is for the person asserting otherwise should prove that the person is alive.

10.  Based on the Court of Appeal’s findings, the Respondents failed to produce any evidence to prove that Merlhat was still alive in 2001, the year he purportedly transferred the property to Chandaran.

11.  The Court of Appeal made a final judgment that the proof of Merlhat’s death had also been established by the issuance of the grant of letters of administration.  The De Bonis Grant clearly states that Merlhat’s date of death is 4 September 1952.

1.     The presumption of death order issued by the High Court was conclusive proof of death of Merlhat.

1.     When the presumption of death order has been issued by the High Court, it is presumed that the person has died.

2.      The issuance order is a conclusive proof of the person’s death.