Terrell A-G CJ:

The Court of Appeal consisting of Terrell A-G CJ (SS), Poyser CJ (FMS) and Gordon-Smith JA allowed the appeal.

The following written judgment was subsequently delivered by the President of Court.

It appears to me that, in the words of Lord Macnaghton in Tailby v. The Official Receiver, 13 AC 523 "this case is free from difficulty when the facts are understood.

The plaintiff was entitled to certain interests and benefits under the will of Mohamed Salleh Eusoof Angullia deceased (hereinafter called "the testator") who died on 21 September 1904. By the terms of the testator's will his sons Ahmad Mohamed Salleh Angullia and Eusoof Mohamed Salleh Angullia and his daughter the plaintiff, respondent on this appeal, were, with others, entitled to share in the residue, and by a second codicil to his will the testator settled Eusoof's share on certain protective trusts as to the income during his life, and after his death the capital of the share was to be held upon the following trusts:

In Trust for all his (Eusoof's) children who being sons shall attain the age of twenty-one years or being daughters shall attain that age or marry in equal shares except that the shares of sons shall be twice as much as the share of daughters and if there shall be one such child the whole to be in trust for that one child and if there shall be no child of the said Eusoof Mohamed Salleh Angullia who being a son shall attain the age of twenty-one years or being a daughter shall attain that age or marry then in trust for his heirs according to Mohammedan law but so that the share of males shall be twice as much the share of females provided always that the said Eusoof Mohamed Salleh Angullia may by deed or will appoint that the whole or any part of the income of the said share shall after his death be paid to his widow or widows (if any) during life or for any less period Provided also that notwithstanding the foregoing trusts the trustees of the said share at any time or times if they shall in their uncontrolled discretion think fit so to do transfer or pay the whole or any part of the capital of the share of the said Eusoof Mohamed Salleh Angullia or the trust funds representing the same unto the said Eusoof Mohamed Salleh Angullia for his absolute use or otherwise apply the same for his benefit or they may with the consent of the said Eusoof Mohamed Salleh Angullia revoke by deed all or any of the trusts hereinbefore declared and declare any new or other trusts of or concerning the said share or any part thereof ...

On 21 November 1906 the plaintiff gave a power of attorney to her husband authorising him to borrow money on the security of her interests whether vested or contingent, in possession or expectancy, in the estate of the testator, and on 31 January 1907 the plaintiff, by her attorney, executed a mortgage (hereinafter called the mortgage deed) in favour of one RMSM Komarappa Chetty to secure present and future advances, which, according to the plaintiff's affidavit filed in support of the summons, amounted to $11,000. Paragraph 2 of the mortgage deed read as follows:

The Mortgagor hereby assigns and the surety hereby confirms unto the Mortgagee (1) All the share and interest of the Mortgagor in the estate and effects of the said Mohamed Salleh Eusoof Angullia and in the movable and immovable property subject to the terms of his Will and in the rents, profits and income thereof and in the proceeds of sale thereof, (2) And all other if any the share and interest of the Mortgagor in the estates and effects of the said deceased and that whether arising under the terms of his Will or otherwise. To hold ...

The benefit of the mortgage deed subsequently became vested in one Cassim Ajam Piperdy who commenced foreclosure proceedings in Singapore SuitNo. 78 of 1909 and on 31 January 1910 the Court made a foreclosure order absolute, as a result of which all the share and interest of the plaintiff in the estate of the testat