Hastings J:

The facts and arguments appear sufficiently from the judgment.

The facts of this case are that on 25 September 1944 one Saiyed Mahamud bin Saiyed Pandak who died on 11 July 1949 sold a registered share in the land held under Perak Grant for Land No: 15596 to the plaintiff for the sum of $2,250.The purchase price was paid in Japanese currency, the transfer was executed by both parties before the Collector of Land Revenue at Kuala Kangsar and handed to the plaintiff by the transferor together with the title to the land.This title is still in the possession of the plaintiff.This transfer was not presented at the Land Office during the occupation period.It was not presented in fact until 25 October 1949 that is to say, until after the death of the transferor.Whether it could have been presented during the Moratorium period depends on whether it was a dealing within the meaning of cl 8 of the Moratorium Proclamation.In my opinion it was not since this dealing had taken place during the occupation period. I am fortified in this view by the wording of s. 24 of the Titles to Land (Occupation Period) Ordinance, No. 39 of 1949, which directs the Registrar to register documents executed during the occupation period which have been presented since the expiration of such period.If such documents could not be presented it is difficult to understand what this can apply to. I do not, however, regard this as a matter of any importance as the question for decision would arise if the transferor had died at any time subsequent to the execution of the transfer.The facts in this case together with the provisions of the Land Code call for a decision on a question of general importance in Registration Law.

By the provisions of s. 85(ii) of the Land Code, Cap. 138,

The death of any person prior to the presentation of any instrument executed by him shall prevail so as to prohibit the registration of such instrument, and such instrument if registered shall be void.

I have searched the textbooks dealing with land registration under the Torrens System, namely, "Registration of Titles to Land throughout the Empire" by James Edward Hogg, the same author's "Deeds Registration in Australia", "The Australian Land Titles (Torrens System)" by Donald Kerr and "The Transfer of Land" by J H Dallas Wiseman, a book dealing with the laws of Victoria, and it is clear to me that this provision is something peculiar to the law of this country.The usual principle of Land Registration Law is that the death of a party to an instrument does not prevent the registration of that instrument.This is in accordance with the ordinary principle of Conveyancing Law. I do not know why this provision was introduced but since it is there it is necessary to give effect to it. Further, there was no such provision in the land legislation of this country prior to 1926 and it must be presumed that this change was intended to have some effect.If, as the plaintiff contends, the only result of this change in the law was to compel the transferee to bring a suit to acquire a new transfer which he could present for registration and so to place himself in the same position as he could have been in before the alteration of the law, it appears to be difficult to understand why this legislation should have enacted the change.

The plaintiff claims against the administrator of the transferor specific performance of the agreement of 25 September 1944, or in the alternative the return of the $2,250 paid. I shall deal with the latter claim later in this judgment.The stress of the plaintiff's claim was for specific performance.The Counsel for the plaintiff claimed that the Court should make an order directing the administrator to apply to the Court for leave to sell the land and for an order, I presume assuming that the leave was granted, that he should execute a new registrable transfer of the land.

It appears to me apart from any other consideration that there must be a difficulty in p