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1963 MarsdenLR 129
Suffian J (delivering oral JUDGMENT):
Tengku Nong now deceased was the daughter of the late His Highness Sultan Ahmad.
After her father's death, she received $1,000 from the plaintiff and on 11 February 1957 signed the agreement Exh. P 1, a translation of which is in the following terms:
12 February Stamp. .50 cts. R 86/57 (Chop Stamp Office) Kuala Trengganu.
Sd xxx
ACKNOWLEDGMENT OF RECEIPT OF MONEY
Executed in Town of Kuala Trengganu on
11 February 1957.
I, Tengku Nong binti Al-marhom Sultan Ahmad, residing at Kampong Gong Kapas, Kuala Trengganu, during sound mind and good health and on my own accord on this day and date of executing this document, acknowledge receipt of one thousand dollars only ($1,000) from Siah binti Abdullah of Kampong Dalam Kota Istana Maziah, Kuala Trengganu.
2. I (Tengku Nong binti Al-marhom Sultan Ahmad), agree that as soon as the estate of my father (Al-marhom Sultan Ahmad) is distributed in the Supreme Court, Kuala Trengganu, in which I am entitled, I will execute in Land Office a transfer of (1) acre of land known as Grant No. 1986, Mukim Bukit Besar, Kuala Trengganu, and I cannot refuse or make default of same.
3. If I fail to transfer 1 acre of the said land to Siah binti Abdullah, she will be entitled to sue me in accordance with the law.
In witness whereof both parties put their hands hereunder in the presence of witnesses.
xxxx
RTP Tengku Nong binti
Al-marhom Sultan Ahmad.
yyyy
RTP of Siah binti Abdullah
i.e. Tr. No. ....... Witnessed by: Sd: xx illegible
Sd: xyxy Tengku Wook Chik.
Petition Writer No. 22/57 Ja'afar bin Ali, Kuala Trengganu. Sd: Ja'afar bin Ali.
The plaintiff asked for specific performance of this agreement. The defendant, Che Osman bin Ali, the administrator of Tengku Nong's estate, in his written defence admitted receipt of the $1,000 but contended that it was a loan, that the land now worth $12,000 to $13,000 per acre had only been charged to the plaintiff and that exh. P 1 was fraudulently executed because it was not read over and explained to Tengku Nong.
The plaintiff gave evidence and in support called two witnesses. After she had closed her case, according to the records, "Che Maidin (for the defendant) admits that (the) $1,000 was given as a loan. Defendant knows nothing about P 1", whereupon the learned Judge without hearing any further evidence gave judgment for the plaintiff for $1,000, each party to pay its own costs.
The learned Judge dismissed the plaintiff's claim for specific performance because
(1) The agreement related to an unspecified portion of the land at present registered in the name of the various beneficiaries of Sultan Ahmad, including Tengku Nong whose registered share was admitted as 12,840,144/57, 551, 472 (which equalled 3 acres), that share was undivided and therefore the agreement was void for uncertainty under s. 30 of the Contracts (Malay States) Ordinance and
(2) The defendant himself admitted it was a loan and this admission was supported by the oral evidence of the plaintiff's second witness.
The plaintiff appeals.
I agree with Inche Hashim, Counsel for the appellant that the learned Judge's decision cannot be upheld.
First, the agreement relates to a specified piece of land and gives a description of it. The only thing is that it does not specify which particular acre forms the subject matter of the transaction, but I do not think that this matters, because it is perfectly lawful and commonplace to buy and sell undivided shares in land. In any event this point was never pleaded by the defendant who was represented.
Secondly, the terms of an agreement having been proved by its production, normally no oral evidence such as that given by the plaintiff's second witness may be admitted to vary or contradict them except where fraud is alleged, as here. That the learned Judge found as a fact that the transaction was a loan shows that in his view fraud on the plaintiff's part the burden of proving whi
