Landmark ruling gives hope to heirs fighting fraud
03/05/2007 NST By V.
Anbalagan
(From left) Federal Court judges Datuk S. Augustine Paul and Datuk Abdul
Hamid Mohamad sat with Datuk Arifin Zakaria, who wrote the judgment, to hear
the Abu Bakar Sulaiman case.
PUTRAJAYA: Sometime in 1990, four siblings discovered
that a 1.5- acre parcel of land registered under the name of their late
grandfather had been transferred to night-market trader Rosman Roslan.
Fraud, they claimed.
Rosman had destroyed fruit trees, demolished an ancestral home, built six
houses and collected rent from tenants.
Kassim Arshad and his sisters, Siti Zabedah, Rashidah and Salihar lodged a
police report.
They then sought a court declaration that Rosman’s transaction with their
grandfather, Abu Bakar Sulaiman, over the land in Kuang near Rawang,
Selangor, was illegal.
They named Rosman and the Gombak district land administrator as defendants
in their suit filed in 1996.
Five years later, the Shah Alam High Court ruled that the transfer of the
land to Rosman was unlawful and ordered that the title revert to Abu Bakar.
Rosman appealed, and in 2003 the Court of Appeal set aside the High Court
ruling and held that the title was vested on him.
The appellate court said the siblings were mere beneficiaries and had no
locus standi to start an action to regain the land without first obtaining
the Letter of Administration.
This was because the appellate court was bound by six earlier Federal Court
rulings on similar matters.
The siblings then appealed to the apex court. By then Kassim had passed away
and he was substituted by his son, Al Rashidy, as his personal
representative.
Last Friday, in a landmark ruling, the highest court in the land gave hope
to countless beneficiaries wanting to protect their inheritances.
Departing from its earlier decisions, it allowed the siblings’s appeal,
ordering that the land title be transferred to Abu Bakar.
Federal Court judge Datuk Arifin Zakaria, who wrote the judgment, said the
siblings wanted to regain the land from Rosman who, they alleged,
fraudulently transferred the property.
"The land is liable to be sold by the respondent (Rosman) to a third party.
In that event, the land may be lost forever," he said.
This, he said, became more urgent in view of the decision of the Federal
Court in Adorna Properties vs Boonsom Boonyanit, which conferred immediate
indefeasible title to an innocent purchaser.
The judge said there existed special circumstances for the beneficiaries to
commence action against Rosman to protect and preserve an asset of the
estate.
"We also hold that the beneficiaries have an equitable interest in the
estate of the deceased (their grandfather) to entitle them to seek a
declaratory judgment," he said in the unanimous decision.
Arifin said these reasons were sufficient for the siblings to have locus
standi.
Judges Datuk Abdul Hamid Mohamad and Datuk S. Augustine Paul sat with Arifin
to hear the appeal.
Counsel Murad Ali Abdullah, who appeared for the siblings, said this ruling
had widened the scope of aggrieved parties to protect their land rights from
fraud.
"Previously, only those with Letters of Administration or registered
property owners could come to court to defend their rights to property. Now
beneficiaries, under special circumstances, can also seek a remedy." |