Ong (Malaya) CJ:

I have had the advantage of reading the judgments of Gill and Ali FJJ and agree that the appeals be allowed with costs.

JUDGMENT

Gill FJ:

The parties to these two appeals were parties to proceedings which began as a probate action being Probate SuitNo. 3 of 1969, in the High Court at Kuala Lumpur. In that suit as originally constituted, the plaintiff was Tong Chong Fah, the appellant in Civil AppealNo. 41 of 1970, and the defendants were Chin Ah Kwi(f) alias Chin Foong Ooi(f), the respondent in each of the two appeals, and Tong Lee Hwa and Tong Young Fah, the appellants in Civil AppealNo. 40 of 1970. By an order of Court dated 13 October 1969, made on the application by way of a summons for direction of Chin Ah Kwi(f) as the first defendant, the suit was given an alternative title with Chin Ah Kwi(f) as the plaintiff and Tong Chong Fah, Tong Lee Hwa and Tong Young Fah as the defendants. That order, however, was never extracted, and throughout the proceedings and in the order made on the final disposal of the suit, Tong Chong Fah was referred to as the plaintiff, Chin Ah Kwi(f) as the first defendant, Tong Lee Hwa as the second defendant and Tong Young Fah as the third defendant.

The probate action arose from the existence of three, or possibly four, wills alleged to have been executed by one Chi Liung deceased shortly before her death. Mdm Chi Liung presumably was the founder of a company known as Chi Liung & Son Ltd (hereinafter called "the company") of which she was the governing director until the date of her death, but as on that date she held only 30 out of the 3,000 shares issued by the company. Out of the remaining 2,970 shares, Tong Chong Fah had 900 shares, Tong Lee Hwa 600 shares and Tong Young Fah also 600 shares. In other words, the present appellants between themselves owned 2,100 shares out of a total of 3,000 shares in the company.

The suit came up for hearing before Chang Min Tat J After four days' hearing the parties agreed to settle their dispute on terms which were incorporated in an order of Court dated 15 December 1969. The order provided that the estate of Chi Liung deceased be administered as on an intestacy, that the terms of settlement agreed to between the parties and annexed as a schedule thereto be made a rule of Court, that there be no order as to costs save insofar as was necessary to give effect to the said terms of settlement, and that all parties do have liberty to apply. Clause 1 of the schedule to the order provided for the estate to be administered by the plaintiff and the second defendant as the first in order of entitlement, and the provisions as regards costs were contained in cl 12 of the schedule.

The other clauses in the schedule to the order related to matters which went beyond the ambit of the original dispute and could not have been enforced in the original action. To take only those clauses which are relevant for the purpose of these two appeals, cl 3 provided that the first defendant was to have an option to purchase the shares in the company of the persons named therein at the stated price of $2,000 per share, on the undertaking by the plaintiff and the second defendant that the debts of the company will not at the date of the completion of such sale exceed $3 million.. The shares which the first defendant had the option to buy were the 2,100 shares belonging to the appellants, 150 shares belonging to each of the estates of Fun Siew and Tong Poh Hwa deceased and 60 shares each of Tong Hui Peng and Tong Hui See, thus making a total of 2,520, which meant that she had to raise a sum of more than $5 million if she was to be able to exercise the option. Clause 4 of the agreement provided that the completion of purchase as contemplated by cl 3 was to take place on 29 February 1970, time being of the essence. In default of completion of such purchase by the first defendant by the due date, the plaintiff and the second defendant were entitled to buy from t