Lord Denning:

The judgment of the Board was delivered by,-

This is an action brought by a father against his son. It concerns a piece of land in the Mukim of Si Rusa in the State of Negri Sembilan. It is 40 acres two roods and 30 poles in extent: and it is cultivated with rubber. The land is registered in the name of the son but the father claims that the son holds it as trustee for him. It is hereinafter called the "40 acres".

The father bought these 40 acres as long ago as 1934. He bought them at a public auction for $8,081. But he already owned 99 acres of rubber land. So that if his two holdings were added together his total holding would be 139 acres. This was undesirable from his point of view because of the Rubber Regulations (No 17 1934). These regulations were passed so as to control the production of rubber. They drew a distinction between holdings of less than 100 acres and holdings of more than 100 acres. If a man held more than 100 acres, the permissible production was assessed by an Assessment Committee.

If he held less than 100 acres, it was assessed by the local District Officer. In order to avoid these regulations, the father decided to put the 40 acres into his son's name so that his rubber land was ostensibly held by two different persons, neither of whom held a holding exceeding 100 acres. "I had no intention," he said, "of making a present to my son. The sole object was to avoid having to disclose that I held more than 100 acres of rubber land."

Accordingly on 27 February 1935 the father and son executed a memorandum of transfer whereby the father transferred the 40 acres to the son. In this memorandum the father acknowledged that the son had paid him $7,000 for these 40 acres. But in fact, as the Judge found, the son paid nothing: and this was accepted before their Lordships. On 8 March 1935 the transfer was duly registered in the Register of Titles and a certificate of title was in due course issued certifying that the son was the proprietor of the 40 acres. This certificate remained in the father's possession, and he paid all the costs of the transfer.

Ever since the transfer the father has received all the income from the 40 acres and has paid all the wages and assessments. The son has received no part of the income and has paid none of the expenses. There was nothing in writing to account for this. The father said in evidence: "I had no trust deed because it was my own son. My son was 22 years old. He was fully aware of the reason. He knew he held in trust."

In 1950 the father agreed to sell the 40 acres to someone else and asked the son to execute a power of attorney so as to enable him to transfer the land to the purchaser. The sonrefused. Whereupon on 21 November 1950 the father brought this action in the High Court at Seremban against the son claiming that the son was a trustee of the 40 acres holding it on trust for the father. The son resisted the claim. In his defence on 3 April 1951 he said (quite wrongly, as the Judge found), that he purchased the land from the father for $7,000 and he counterclaimed for an account of profits from 27 February 1935 onwards.

It was over 7 years before the action came for trial: and then there was an unfortunate episode. The hearing was fixed for 30 June 1958. The son had retained leading Counsel but he fell ill. The son, by his lawyer and in person, applied for an adjournment but this was refused because it was not a sudden illness and steps should have been taken earlier to secure proper representation. Thereupon both the son's lawyer and the son himself left the Court and the case proceeded in their absence. The son complained of this to the Court of Appeal but they rejected his complaint on this score and it was not pursued before their Lordships. The refusal of an adjournment was essentially a matter within the discretion of the trial Judge and no sufficient ground was shown for upsetting his discretion.

Before their Lordships Counsel for t