Suffian LP (read by Wan Suleiman FJ):

This is a dispute concerning a piece of Malay Reservation Land comprised in Surat Putus No. 5275 in the District of Kota Setar, Kedah.

The agreed facts in the case are short and simple. In 1944 its registered proprietor, one Mahmud bin Samad (a Malay), sold the land to a Siamese lady, Ah Yam d/o Ah Nam @ Nyonya Yam d/o Indin Nom.

On execution of the agreement, possession of the land and of the title deed to the land was given to the purchaser. The purchase price was paid in three instalments.

Subsequently the Siamese lady (now deceased) sold the land to the present plaintiffs who are Malays.

The land is still registered in Mahmud's name. Mahmud has since died.

The present plaintiffs as administrators of the Siamese lady's estate sued the administrator of Mahmud's estate for specific performance.

At the hearing it was decided by Counsel that the sole question to be decided was whether the sale in 1944 by Mahmud to the Siamese lady was enforceable under the provisions of the Kedah Malay Reservation Enactment (No 63), it being understood that if it was not so, then there could not be specific performance in favour of the plaintiffs.

The learned trial Judge held that it was void because of s. 6 of the Enactment.

That section reads as follows:

6. (1) Save as hereinafter provided in this Enactment, where any Reservation land is held under a document of title by a Malay, no right or interest therein shall vest, whether by transfer ... or otherwise, in any person who is not a Malay and where any Reservation land is held under a document of title by a Siamese no right or interest therein shall vest, whether by transfer ... or otherwise, in any person who is not either a Malay or a Siamese.

(2) Any document or agreement purporting to vest in any person any right or interest contrary to the provisions of sub-section (1) shall be void.

His Lordship held that therefore the second sale by the Siamese lady to the plaintiffs is also void although the plaintiffs are also Malays, and dismissed the plaintiffs' claim. The plaintiffs have appealed to us.

It was first argued by Mr. Mayandi on their behalf that the learned Judge's decision is not correct on the following ground: the first sale by Mahmud to the Siamese lady was only voidable at the instance of the vendor, the second sale cannot be void as the land has come back into the hands of a Malay. Every enactment must be looked at in the spirit in which it was enacted. In the case of the Malay Reservation Enactment and in particular its s. 6, the aim was to safeguard Malay ownership of Malay Reservation lands. As the plaintiffs are Malays, the Court should help them and order the land to be vested in them.

Mr. Mayandi relied on a decision of the Court of Appeal in Goh Soon Leong v. The Commissioner of Lands & Ors. [1951] MLJ 201.

Goh Soon Leong's case was not cited before his Lordship. It was said that had it been cited, the learned trial Judge would probably have held that the first sale by Mahmud to the Siamese lay was not absolutely prohibited or necessarily void ab initio and therefore the second sale by the Siamese lady to the plaintiffs who are Malays was valid.

Secondly, it was argued by Mr. Mayandi that the vendor Mahmud, having sold the land and delivered possession to the Siamese lady, is in equity a trustee for her; that as only a transfer to a non-Malay cannot be effected, the subsequent purchaser (being a bona fide Malay purchaser for value without notice) should not be penalised; and that if he had been the first purchaser, this matter would not have come to Court at all.

Thirdly, it was submitted that as far as possible the courts should uphold an agreement of sale, especially to a bona fide purchaser for value without notice.

I am of the opinion that the main issue here is whether or not the first sale by Mahmud to the Siamese lady was void.

The facts in Goh Soon Leong's case were as follows: During the enemy occu