Gill (Malaya) CJ:

This appeal arises from an action in the Sessions Court at Kuala Lumpur between the appellant, Kalimuthu alias Papa d/o Marimuthu, as plaintiff and the respondent, S Kandiah, as defendant. The plaintiff's claim against the defendant was for recovery of vacant possession of house known as No. 36A- 2. Jalan Langgok, Bukit Setapak, Kuala Lumpur.

The house in question was built in 1954 or 1955 by the defendant's father, M Subramaniam, at his own expense on a portion of the land held under Certificate of Title No. 4284 for Lot 2 s. 6, Setapak, Kuala Lumpur with the consent and approval of one Maros bin Malim Suleiman who was the then owner of the land, apparently on the understanding that Subramaniam was to pay Maros a monthly sum of $28 by way of ground rent and assessment. Maros died in or about the year 1956, whereupon Subramaniam continued to pay ground rent and assessment to Ahmad bin Maros, a son and one of the next-of-kin of Maros.

By an agreement dated 14 February Ahmad, as one of the beneficiaries of his father's estate, agreed to sell to Subramaniam for $3,700 the portion of the land, measuring 45 feet by 50 feet, on which the house stands, a sum of $1,850 having been paid to him on the signing of the agreement. The terms and conditions of the agreement were that, on letters of administration of his father's estate being granted to him and upon payment to him of the balance purchase price of $1,850 Ahmad was to deliver to Subramaniam a valid and registrable transfer in respect of the land, and that in the event of his being unable to transfer the land or the land being requisitioned by the Government the sum of $1,850 advanced under the agreement was to become repayable on demand.

Subramaniam died intestate on 17 February 1962 and a grant of Letters of Administration of his estate was issued by the High Court at Kuala Lumpur to the defendant as the natural and lawful son and next-of-kin of the said intestate. The defendant had moved into the house as soon as his father died in 1962 and he has lived there ever since. Neither his father nor he took any steps to obtain specific performance of the agreement dated 14 February 1958 against Ahmad.

Ahmad presumably obtained Letters of Administration to his father's estate because an undivided 4/5th share in CT 4284 was transmitted to him as representative. The remaining 1/5th share belonged to someone else. Various transfers of the land were then made to the plaintiff, the first of such transfers being on 24 July 1961 and the last on 16 March 1973 when the plaintiff became the sole registered proprietor of the whole land.

On 30 December 1964 the plaintiff wrote a letter to the defendant informing him that she had purchased the land from Ahmad some years back and asking him to pay her as from 1 January 1965 the amounts of assessment and rental which he had been paying to Ahmad. It is clear, however, that at that stage what the plaintiff had was an undivided share in the land, possibly Ahmad's share. On 18 February 1965 the defendant's solicitors wrote to the plaintiff asking her to let them know the date on which she had purchased the land from Ahmad, the amount of assessment and the area of land for which their client was obliged to pay, and what rental their client was being asked to pay because no such sum was paid by him before to her predecessor. On 22 January 1965 the plaintiff's solicitor wrote to the defendant's solicitors to say that the request was for the payment of only the ground rent of $28 per month which their client had been paying to Ahmad prior to 1965.

On 27 February 1965 the defendant's solicitors wrote to the plaintiff's solicitors to ask whether the plaintiff had any authority from the other co-owners to collect the rent. On 1 March 1965 the plaintiff's solicitor wrote to the defendant's solicitors as follows:

I am in receipt of your letter of the 27th ultimo and have been instructed that rent had all along been collect