Moor J:

In the year 1325 AH (= AD 1907) the Ruler of Trengganu granted certain lands (known later as the Chemuak Concession) to Tengku Abu Bakar bin Almarhum Tengku Abdul Jam and his wife Tengku Khadijah binte Almarhum Sultan Ahmad as owners and to their i "woris2 keturunan zuriat kedua-nya" for ever.In the year 1341 AH (= AD 1923) the two grantees surrendered the land back to the Government of Trengganu in consideration of $12,000 and a pension to themselves and their "waris2 keturunan zuriat kedua-nya" for ever.The words of limitation are, therefore, the same in each deed.It is common ground that there was no issue of the marriage of Tengku Abu Bakar and Tengku Khadijah; but that there are other descendants of Tengku Abu Bakar claiming through his two daughters by another wife.In these circumstances, the two original grantees being now dead (Tengku Abu Bakar in 1933 and Tengku Khadijah in 1938) the Government of Trengganu contends that it is no longer under an obligation to pay the pension referred to in the deed dated 21 July 1923 on the ground that although there do exist descendants of Tengku Abu Bakar, to wit, the respondents, none of them is a descendant of Tengku Khadijah.The respondents contend that the words of limitation merely mean "descendants of either of them" and that they are therefore entitled to receive the pension, being descendants of Tengku Abu Bakar.In my view the construction placed on these words of limitation by the respondents is correct, and the one sought for by the Government of Trengganu incorrect.For these reasons:-

(a) it follows from Exh. P2 that in the year 1923, when the pension was first granted, Tengku Khadijah was 68 years old.She would therefore almost certainly be incapable of bearing a child.It seems to me incredible that the parties could have entered into a solemn deed the essence of which was based on the happening of an impossible event.If the then Government intended to restrict the grant of the pension in the sense now suggested, any reference to descendants of this marriage was redundant and nonsensical; there could be no such descendants. A pension "for life" would have met the case; yet it speaks of "in perpetuity".

(b) but as reference to descendants was made, it is necessary to look for such sensible meaning as the words are capable of bearing.In my view the meaning advanced by the respondents is the only sensible one.

(c) if it is sought to suggest that the words in question were inserted in the deed of 21 July 1923 by oversight or 'per incuriam' then the answer is that that line of approach to a problem of construction is a dangerous one - judgment of Lord Macmillan in Commissioner of Stamps v. Oei Tjong Swan, [1933] MLJ 107 at p. 109; [1933] SSLR 436; [1933] AC 378.

(d) the words of limitation in the two deeds (the grant of the land and the grant of the pension) are identical, and were no doubt meant to mean the same in each case.If the Government of Trengganu is correct in its view of the meaning of these words, then it follows that in effect the Ruler in the year 1907 was granting out land for an estate which in English Law would be called an estate in tail special; and touching which the old common law had been effected by the Statute De Donis Conditionalibus (Halsbury's Laws of England, (Hailsham) Vol. 27 p. 668). No reason could be advanced by Counsel for the Government as to why in the year 1907 AD a Mohammedan Ruler in a Mohammedan Malay State should be creating estates in land of such striking resemblance to a totally foreign land system grown up in feudal times.On the other hand, I was assured that these words were then common form in Trengganu for grants of land; and indeed Exh. Dl dated 1324 AH (= 1906 AD) is an example.It seems to me highly improbable that the Ruler of Trengganu was habitually indulging in the creation of estates in tail special or that that was the policy of the then Government in alienating State land.Moreover, the land grant was mad