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."