Komathy a/p Tharmaraj v Tharmaraj a/l Pakirisamy

Appellant(s): Komathy A/P Tharmaraj

Respondent(s): Tharmaraj A/L Pakirisamy

Pencelah: Hong Leong Bank Berhad

• YA Datuk S. Nantha Balan A/L E.S. Moorthy
• YA Datuk Wong Kian Kheong
• YA Dato' Ahmad Kamal Bin Md. Shahid

• The dispute arose from a property initially owned by the original proprietor (father) which he agreed to use as security for a loan for the first defendant (his daughter), on the express condition that he remained the registered proprietor.
• The original proprietor, with limited literacy in English and Bahasa Malaysia, was allegedly deceived by the first defendant and the second defendant (her lawyer) into signing documents he believed were for a charge, but which were actually for an absolute transfer of the property to the first defendant.
• Upon discovering the absolute transfer and subsequent charge of the property to the intervener bank, the original proprietor initiated legal action to set aside the transfer and charge, which the High Court allowed, leading to this appeal by the first defendant.

• Whether the High Court erred in finding that the first and second defendants committed fraud and fraudulent misrepresentation in procuring the transfer of the property from the original proprietor.
• Whether the first defendant's registered title to the property was defeasible under Section 340(2)(a) of the National Land Code (NLC) due to her being a party or privy to fraud or misrepresentation.
• Whether the intervener bank's registered charge over the property was also defeasible, given the vitiating factors affecting the first defendant's title, and whether the bank qualified for protection as a subsequent purchaser.

• The Court of Appeal dismissed the appeal, affirming the High Court's findings that the first and second defendants had committed fraud and fraudulent misrepresentation against the original proprietor.
• The Court held that the first defendant's title was defeasible under Section 340(2)(a) NLC because she was privy to the fraud, and the second defendant was complicit in deceiving the original proprietor.
• The Court further ruled that the intervener bank's charge was also defeasible, as it was an immediate purchaser whose interest was derived from a defeasible title, reiterating the principle from *He-Con Sdn Bhd v Bulyah Ishak & Anor*.