Mohd Noor Ahmad JCA:

[1] Three appeals were before us. The first appeal, Civil Appeal No P-02-146-2001, is the appeal by the plaintiff against the decision of the learned judge who allowed the defendant's appeal against the decision of the learned senior assistant registrar who dismissed the defendant's applications for striking out under O 18 r 19 of the Rules of the High 1980. In the second appeal, Civil Appeal No P-02-1032-2001, the plaintiff appealed against the decision of another learned judge who dismissed he plaintiff's application for the extension of a Private Caveat No 2669/98 Jilid 541 Folio 184 lodged by it against 41 lots listed therein (except lot 500, Mukim 16, North East District, Penang and lot 1561, Section 3, Town of Air Itam, Penang) until the final disposal of the third appeal. The third appeal, Civil Appeal No P-02-144-2001 is an appeal by the plaintiff against the decision of the learned judge who dismissed the plaintiff's action in consequence of the decision appealed against in Civil Appeal No P-02-146-2001. We heard the first appeal first. We allowed the appeal. As the result, we also allowed the third appeal. We ordered one set of costs here and in the High Court for the two appeals. We remitted the action to the High Court for full trial. We did not proceed with the second appeal as a fresh caveat had been entered by the plaintiff.

[2] To summarize the undisputed facts.

(1) In 1949, the lands in dispute were held under Grant First Grade Nos. 4661 and 5650 for Lot Nos 1457 and 1835, Mukim 13, North East District, Penang (the said Lands). The registered proprietor was Choong Lye Hock Estate Sdn Bhd (the CLHE), which held 25% for itself and 75% of the said lands for the estate of Chor Bah Say (the deceased). The majority of the deceased's beneficiaries died resulting in the 1st to 6th defendants becoming the beneficiaries of the deceased's estate. Thus, the surviving beneficiaries (Chor Phaik Har and Chor Phaik Sim (the surviving beneficiaries)) were entitled to three quarters (3/4) undivided share in the said lands.

(2) In 1991, the plaintiff intended to buy the said lands from all the beneficiaries of the deceased's estate. However, the surviving beneficiaries refused to sell. They lodged a caveat against the whole of the said lands. Subsequently, on 23 January 1992 two sale and purchase agreements (the 1992 agreements) were executed between the CLHE and all the beneficiaries of the deceased's estate, except the surviving beneficiaries, on one part as vendors and the plaintiff as purchaser for a total consideration of RM32,006,000. At this point of time the administration of the deceased's estate had not been completed. Armed with the 1992 agreements, the plaintiff applied for the removal of the caveat lodged by the surviving beneficiaries. It was allowed. On appeal, the Federal Court in Chor Phaik Har v. Farlim Properties Sdn Bhd, [1997] 3 MLJ 188 allowed the appeal.

(3) On 19 May 1995, the CLHE obtained from the High Court an Order for distribution of the deceased's estate to the respective beneficiaries. The distribution was made accordingly and the administration of the deceased's estate was completed. However, prior to the Order, on 11 January 1995, the CLHE and the beneficiaries to the 1992 agreements terminated the 1992 agreements allegedly on the ground of the plaintiff's failure to furnish the bank guarantees as stipulated therein. Then, on 21 March 1995, the 1st to 6th defendants entered into a sale and purchase agreement with the 7th defendant (the GISB) to sell their respective undivided share of the deceased's estate. On 17 April 1996, the GISB entered a caveat on the said lands. The purchase price had been paid to the defendants (except the 5th defendant) and the memorandum of transfer had been registered (except in respect of the 5th defendant's share).

(4) On 8 May 1995, the plaintiff, by an originating summons, sought, inter alia, for a declaration that the 1992 agreements were