Mohd Ghazali Yusoff JCA:

[1] These two appeals, namely, Civil Appeal No: W-02-1022-05 and Civil Appeal No: W-02-1023-05 (hereafter referred to as the first and second appeals respectively) arose out of the same suit, ie, High Court Kuala Lumpur Civil Suit No: D3-22-4404-1998 and were heard together at the request of all parties.

[2] The plaintiffs in the Court below (the respondents in both appeals) are the children and also the administrators of the estate of Tunku Mansur bin Tunku Yaacob, deceased (hereafter referred to as "the deceased"). Tay Choo Foo @ Tay Chiew Foo, the 1st defendant in the Court below (the appellant in the first appeal) and the 3rd defendant in the Court below (the first appellant in the second appeal) are husband and wife respectively and the 4th and 5th defendants in the Court below (the second and third appellants in the second appeal) are their daughters.

[3] The 2nd defendant, ie, Harrisons Holding (Malaysia) Berhad (hereafter referred to as "HHMB") is a locally incorporated public company and was listed on the local bourse on 25 October 1999. HHMB is not a party to these appeals. HHMB was formerly known as Jantoco Trading Sdn Bhd, viz, a private limited company (hereafter referred to as "Jantoco" whenever applicable). It changed its name to Harrisons Holdings (Malaysia) Sdn Bhd and later to Harrisons Holdings (Malaysia) Berhad, viz, HHMB when it became a public limited company. Except for HHMB, we will refer to the parties as they were in the Court below.

[4] The plaintiffs action was originally instituted against the 1st defendant for the return of 1.2 million HHMB shares (hereafter referred to as "the said shares") which were earlier registered in the name of the deceased and subsequently transferred to the 1st defendant.

[5] HHMB is presently the 100% registered proprietor of the following companies:-

(i) Harrisons & Crosfield (Malaysia) Sdn Bhd (now known as Harrisons Trading (Peninsular) Sdn Bhd);

(ii) Harrisons & Crosfield (Sabah) Sdn Bhd (now known as Harrisons Trading (Sabah) Sdn Bhd);

(hereafter collectively referred to as "the H&C subsidiaries").

[6] It would be appropriate to mention here that on the day the suit was filed, ie, 27 November 1998 the plaintiffs simultaneously filed an application (encl (3)) for, inter alia, an interlocutory order that the 1st defendant be restrained from selling, transferring, assigning, charging or howsoever dealing with the said shares until the trial of this action or until further order When the application came up for hearing, the 1st defendant offered an undertaking on the following terms which was recorded by the Court (encl (17)) and it read as follows:-

UPON the consent of the plaintiffs to withdraw the Summons in Chambers dated 27th November 1998 with no order as to costs, AND without any admission to liability by the first defendant and without prejudice to any defence of the first defendant in this action, the first defendant hereby undertakes not to dispose off any of the shares which are the subject matter of this action until the date of the trial herein AND will not take the dividend declared under warrant No: 98/5 at the same time AND FURTHER that the first defendant agrees that the dividend be deposited in an interest bearing fixed deposit account until the date of the trial of this action.

[7] Whilst the suit was pending hearing, HHMB carried out a bonus issue as a consequence of which an additional HHMB shares were issued to the 1st defendant by virtue of him being the registered holder of the said shares. The bonus issue resulted in the 1st defendants shareholding to increase from 1.2 million shares to a total of 4,580,600 shares.

[8] Subsequently, on or about 28 April 2000 the 1st defendant transferred 4 million shares to the 3rd defendant, ie, his wife. On or about 11 December 2000, the 3rd defendant transferred 1 million shares to the 4th defendant. About two weeks later, on or about 26 December 2000 the 3rd defendant further transferre