JUDGMENT

Wilson J:

The defendants, with the exception of the seventh defendant who is dead, are the present trustees of the Sin Sze Si Sze Ya temple in High Street, Kuala Lumpur. Until August 1947, certain Chinese gentlemen, whose names are set out in the plaint, were the surviving trustees and as such, proprietors of the said temple. In 1944, during the Japanese occupation, the surviving trustees were called upon by the Japanese Administration to pay a levy of fifty per cent of the capital assets of the temple. I am satisfied that this claim must be treated as a matter of duress and that the payment of the claim was made under duress. It is common knowledge, a matter of which the Court may, in my opinion, take judicial notice, that failure to comply with the requirements of the Japanese government would almost certainly have resulted in disastrous consequences for those who fail to obey them. The levy was in fact made through the Selangor Overseas Chinese Association and resulted in the temple being indebted to this Association in the sum of about $187,681,26 in November 1944. The surviving trustees thereupon, in order to raise the money to repay the Association, decided to sell a shop known as No 133, High Street, Kuala Lumpur, by tender and they accordingly advertised for tenders' for the purchase of the land and premises comprising the same. The land was comprised in Selangor Certificate of Title No 2747, Allotment No 58 s 30, in the town of Kuala Lumpur, on which are erected a temple and other buildings, among which is the shop house. The plaintiff's tender for the purchase of the shop house was $246,500 and his tender was accepted by the surviving trustees. Thereupon an agreement dated 6 January 1945 was entered into between the plaintiff and the surviving trustees for the sale of the shop to the plaintiff. By this agreement the price was fixed and has been paid. Under the agreement the purchaser undertook, as soon as possible after the execution of the agreement, to apply to the governor of Selangor for approval of the purchase, and if such was refused, the agreement was to become null and void. If the purchase was approved by the governor, and on payment of the balance of the purchase price, an application must be made to the government for the sub-division of the land so that a separate title could be issued by the government before the property was transferred. The surviving trustees agreed and undertook to do all acts and things and execute such documents as might be necessary or required to enable a separate title to be issued in respect of the said property. The surviving trustees did make an application for sub-division on 22 November 1949. This was refused on 9 January 1950. The application was renewed on 4 May 1950 and was again refused on 26 October 1950. Thereupon the plaintiff's solicitors negotiated directly with Government and obtained approval for the sub-division of the land. In these circumstances I am not satisfied that the defendants did all acts and things as might be necessary or required to enable a separate title to be issued in respect of the said property.

However, under the trust deed of the temple the surviving trustees were unable, even with the leave of the Court, to sell the property in dispute. Whether or not the surviving trustees realised in 1944 that they were not able to sell this property I do not know, though the probability is that they did not realise it. The trustees could, of course, come to this Court if they wished to be excused from the consequences of a breach of trust if the agreement was enforceable and had, in fact, been carried out. In fact, it has not been carried out and that is the reason for this case.

The plaintiff, subsequent to the agreement, was permitted to collect the rent from the tenant of the premises and did so until 1 December 1950 when, as a result of a letter, the tenant of the shop house paid rent to the trustees of the temple which he had previously done be