Gopal Sri Ram JCA:

[1] (delivering the judgment of the court): This appeal is directed against the order of the High court dismissing the appellants' application to remove the respondent's caveats. In brief three grounds are advanced in support of the appeal. We do not think that we will do any injustice to Mr Gomez, counsel for the appellants, if we summarise his submissions as follows:

(a) First, that the learned judge failed to judicially appreciate the facts relevant to the respondent's claim to have a caveat lodged against the lands in question.

(b) Second, that the learned judge misdirected herself as to the proper approach to be adopted when hearing an application of this sort.

(c) Third, that the learned judge did not attach any or any sufficient weight to the delay by the respondent in commencing proceedings to enforce his claim under the caveats.

[2] The facts which form the basis of this appeal are not in serious dispute. According to the respondent, and this is not denied by the appellants, he was until 1975 the registered proprietor of 1/3 undivided share in three pieces of land held under EMR 697 for Lot 1823, EMR 703 for Lot 1829 and EMR 712 for Lot 1838 all situated in the Mukim of Senai/Kulai in the State of Johor ("the subject property"). In that year (1975), he transferred his 1/3 share to his brother, the 1st appellant. According to the respondent, this transfer was done pursuant to an agreement or understanding between the brothers. Under that agreement or understanding, the 1/3 share was to be re-transferred to the respondent after the subject property has been used to raise funds.

[3] Nothing appears to have happened until May 1997. On 3 May 1997 the subject property was transferred to the 2nd appellant. Then on 2 June 1997, the respondent lodged a caveat. Since his counsel Mr Kumareson has resisted this appeal on the basis that the grounds set out by his client in his application in Form 19B are sufficient, it is best that we reproduce the allegations relied upon therein. This is what the statutory declaration dated 31 May 1997 (affirmed by the respondent's solicitor) says in the relevant paragraphs (in the original language used by its deponent and without correction of its linguistic errors):

(3) Whereas by an Agreement and arrangement made in 1975, (hereinafter called "the Agreement") between the previous coproprietor (ie, the Respondent) and the present Proprietor (ie, the 1st Appellant), the previous co-proprietor agreed to transfer 1/3 of his shares to the present Proprietor on condition that the present proprietor could arrange finance facilities by financing the said land to any Finance institution (hereinafter called "the chargee") and the present proprietor shall transfer back the 1/3 of his shares to the previous co-proprietor upon the payment of redemption sum by the previous co-proprietor to the chargee.

(4) Whereas the said land has been charged to Bank Bumiputra Malaysia Berhad Kota Bharu Branch in 1979 for the purpose of securing the overdraft facility of Ringgit Malaysia Three Hundred Thousand Ringgit (RM300,000-00) and the previous co-proprietor had handover RM100,000-00 to the present proprietor In 1991, the previous co-proprietor had on several occasion applied to redeem the said land from the chargee. However the present Proprietor refused to transfer back the 1/3 of the shares despite the agreement and payment of RM100,000-00 and several attempt by the previous co-proprietor to redeem the said land, instead the present proprietor lodge private caveat against the said land.

(5) Whereas in 1997, through the land search made by the previous co-proprietor, the said land has been caveated by SAKAE CORPORATION SDN BHD in consideration of RM65,000-00 paid to the present proprietor for the Development purpose.

(6) By the above reasons, I have advised the previous co-proprietor to lodge a caveat against the said land to protect the interest of the previous co-proprietor pending the legal proc