JUDGMENTBY: ALI FJ, SUFFIAN LP

ALI FJ This is an appeal against the dismissal of an action for specific performance of an agreement which is in the following terms:

"I, Fatimah binti Abdullah (i/c K.442506 (AS)) residing at 11/4

milestone Jalan Sungei Korok, Alor Star, made this document for the

custody of Halimah binti Abdul Rahman (i/c K.015860 (KS)) residing at

Langgar 2, Mukim of Langgar, Kota Star as evidence in the future.

There is a piece of Government land which I applied at the Land Office

Kota Star according to LOKS (KS) 392/76 in Mukim of Kubang Rotan in

area 8 relong (eight) for cultivation of padi, I, Fatimah admit to sell

usaha saya on the said land to Halimah binti Abdul Rahman for the sum

of $ 300 (Dollars three hundred only). The said sum mentioned I,

Fatimah admit receiving from Halimah and I have handed possession of

the said land to Halimah for her to enter and cultivate. My agreement

Fatimah with Halimah is that when the Government issue the documents of

title on the said land then at that time, I, Fatimah undertake to

transfer to the name of Halimah binti Abdul Rahman and all expenses

payable at the time I, Fatimah undertake to pay."

"Both of us abovementioned have hereunto affix our respective

signatures hereunder in the presence of witnesses, dated March 2, 1957

(August 1, 1376).

Thumbprint of Sd.

Fatimah bt. Abdullah Md. Isa b. Ibrahim

(Vendor) Witness

(i/c K.407850)

Thumbprint of Witness

Halimah bt. Abdul Rahman Sd.

(Purchaser) Jaafar bin Ilias

(i/c K.178444)"

Sometime in October 1967, i.e. about 10 years after the agreement the vendors application was approved and she was issued with the necessary document of title. By a notice dated June, 1968 the purchaser, Halimah, asked the vendor, Fatimah, to complete the agreement which was refused. Hence the appellants action for specific performance.

It was common ground that the purchaser had paid $ 300 towards purchase price and that at all material times she has been in occupation of the land.

The vendor, Fatimah, in answer to the purchasers statement of claim pleaded various grounds in support of her contention that the agreement is void. In paragraph 2 of her defence statement she pleaded uncertainty which, however, was not argued or considered at the trial. In paragraph 3 she pleaded that since at the time of the agreement the land was State land she had no locus standi in respect of the land. In other words, the agreement is void because she had no title. This was argued at the hearing but was not considered by the learned trial judge. In any case I can see no merit in the argument in view of what is stated by S.K. Das in his book on the Torrens System in Malaya. On page 358 the learned author wrote:

"... If a vendor having neither a title nor the power to obtain a title

contracts to sell land and subsequently before the date fixed for

completion he acquires power to call for title the purchaser can force

him to complete. The fact that at the date of the contract the vendor

had neither title nor power to call for title is of itself no answer to

a suit for specific performance by either party: Brickles v Shell

[1916] 2 AC 599."

In my view section 33(a) of the Contracts Act, 1950 also answers the question. It provides:

"Contingent contracts to do or not to do anything if an uncertain

future event happens cannot be enforced by law unless and until that

event has happened."

A clear implication of the provision is that a contract such as in the instant case is enforceable in law.

In dismissing the claim the learned trial judge said in his judgment that the agreement is void because of section 24 of the Contracts Act which provides, inter alia, as follows:

"The consideration or object of an agreement is lawful, unless--

(a) it is forbidden by law;

(b) it is of such a

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