Azmi (Malaya) CJ:

This is an appeal by the defendant against the judgment of the High Court at Kota Bharu.

The plaintiff among other things, claimed for specific performance of an agreement to transfer a piece of land referred to as a private shop lot forming part of Lot 20 s. 13, Bandar of Kota Bharu, District of Kota Bharu.

The facts of the case may be briefly stated as follows:-

On 19 August 1958 the two parties made an agreement in reference to a piece of land in the Malay Reservation area, the particulars of which were written in a memorandum signed by the defendant. On the signing of the memorandum, the plaintiff paid the defendant $1,500 and the balance of $3,500 was to be paid on the transfer of the land to the plaintiff. At the date of the agreement the land was still held by a Malay. Condition three of the agreement provides that the sale was subject to the approval of the Kelantan government and His Highness the Ruler in Council.

It was, however, admitted by both sides that at the date of the writ (27 July 1965) the title of the land had been registered in the name of the defendant.

At the outset of the trial before the High Court, it was agreed by Counsel that the Court should consider a preliminary point of law which the learned Judge chose to put as follows:-

Is the agreement dated 19 August 1958 null and void under the Malay Reservations Enactment 1930 and if so is the plaintiff entitled to specific performance of the said agreement and for damages for breach."

At the hearing of the appeal, however, Mr. Wrigglesworth, maintained that what was agreed to was that the learned Judge was to decide as a preliminary point simply the question whether the said agreement was null and void as raised by paragraph (3) of the statement of defence. The said para. 3 is as follows:-

The defendant will aver that the alleged agreement is null and void under s. 12 of the Malay Reservations Enactment 1930 of Kelantan as the said land is a Malay Reservation area and comes within the provisions of the said Enactment."

In other words, the second question whether the plaintiff is entitled to specific performance of the said agreement or for damages for breach was still to be considered by the learned judge. Having studied the record we agree this was so.

The learned judge, however, dismissed the preliminary issue. He came to the conclusion that the agreement as he saw it could not be anything more than an agreement to sell subject to the approval of the Kelantan government and His Highness the Ruler in Council and therefore was not null and void.

As admitted in the pleadings of both parties the land is now in the name of the defendant, but we were asked to consider the question of the validity of the agreement as it stood on 19 August 1958 when the land was still held in the name of a Malay. The substantial grounds of appeal are as follows:-

(1) The learned Judge should have held that as the defendant had purported to contract to transfer the right or interest in the land to the plaintiff the agreement of 19 August 1958 was prohibited under s. 7(i) of the Malay Reservations Enactment of Kelantan.

(2) The learned Judge should have held that the said agreement was dealing, disposal or attempt to deal in or dispose of Reservation land contrary to s. 12(i) of the said Enactment.

Mr. Lim Kean Chye for the appellant firstly pointed out to us that the claim by the plaintiff was not for an order that the defendant shall apply to the Ruler in Council for a transfer of the said land to the plaintiff, but was for an order that the defendant transfer to her the said land. That appears to be so according to the pleadings.

He went on further to say that the agreement was an attempt to deal with Reservation land and therefore null and void under s. 12.

Sections 7(i) and 12(i) read as follows:

7(i) "No right or interest of any Malay in Reservation land and no right or interest in such land acquired by virtue of s. 13A by any p