30 NOVEMBER 1981

Yusof Abdul Rashid J

One Krishnan s/o Pachar died intestate leaving behind and surviving the defendants, who were the widow and son of the deceased, and some other minor children as beneficiaries who were entitled to the intestate estate. A piece of land held under E. Lease 122, Lot 2134 in the Mukim of Rengam Kluang forms part of the intestate estate. On July 20, 1980, the defendants entered into a sale agreement with the plaintiff in relation to the said land subject to the defendants applying for Letters of Administration and leave of the Court to effect the transfer of the said land. In the event that the defendants were unable to take out the Letters of Administration or that should they fail to obtain the requisite leave from the court, they were to return the sum of $4,250/- which had been paid by the plaintiff to them. A further sum of $2,750/- was due to the defendants on the execution of the transfer of the said land.

On the failure of the defendants, having been requested to do so on several occasions, to apply for Letters of Administration, the plaintiff took out an action in court for an order to compel the defendants to do so. In effect, the plaintiff demanded that the defendants should discharge their obligations under the contract of sale. It is to be noted that the plaintiff did not apply for an order that the defendants shall execute a transfer before first obtaining the Letters of Administration and the requisite leave of the court to sell. In my view this is a case where the right of the plaintiff rests in contract and a case based on defendants' contractualobligations founded on a promise to do an act. The only issues before me were that first, was there a promise which is enforceable in law for the defendants to apply for Letters of Administration in respect of the estate of the deceased Krishnan s/o Pachar and secondly, did the defendants enter into contract, undertaking to apply for leave of the court, having been duly granted Letters of Administration, to effect the transfer of the said land.

When the agreement was executed on July 20, 1980 the parties were fully aware that the defendants were bare beneficiaries of the estate of the deceased Krishnan s/o Pachar and that the defendants had yet to be granted Letters of Administration. They were conscious that Letters of Administration had to be obtained and on being so granted there was a further need to obtain permission of the court to effect the sale. Since the terms of the agreement were concisely expressed, it is convenient to state in full Clauses 1 - 4 of the said agreement:

"1. In consideration of a sum of Ringgit Four Thousand Two Hundred and Fifty ($4,250.00) only paid by the Second Party [the plaintiff] to the First Party [the defendants] (which sum the First Party hereby acknowledges) the First Party agrees to sell and the Second Party agrees to purchase the said land upon the terms and conditions set out hereto.

2. The First Party shall make the necessary Application for the Letters of Administration of the estate of the said deceased [Krishnan s/o Pachar] and also whatever necessary application that may be deemed fit and necessary to transfer the said land to the Second Party.

3. Upon the First Party hereof having complied as per Clause 2 of this Agreement, the First Party shall execute the instrument of transfer in favour of the Second Party, and upon which the Second Party also pay the balance sum of $2,750.00 to the First Party.

4. In the event the First Party is unable to obtain the Letters of Administration and the necessary Order of the Court to sell the said land to the Second Party the First Party shall refund the sum of $4,250.00 to the Second Party."

It is clear that the defendants had entered into an agreement to sell the said land subject to their obtaining Letters of Administration and the leave of the court to sell. However, the plaintiff was not seeking to enforce their primary rights under th