JUDGMENTBY: TERRELL, AG CJ

It appears to me that, in the words of Lord Macnaghton in Tailby v The Official Receiver 13 AC 523, "this case is free from difficulty when the facts are understood".

The plaintiff was entitled to certain interests and benefits under the will of Mohamed Salleh Eusoof Angullia deceased (hereinafter called "the testator" who died on the 21st September, 1904. By the terms of the testators will his sons Ahmad Mohamed Salleh Angullia and Eusoof Mohamed Salleh Angullia and his daughter the plaintiff, respondent on this appeal, were, with others, entitled to share in the residue, and by a second codicil to his will the testator settled Eusoofs share on certain protective trusts as to the income during his life, and after his death the capital of the share was to be held upon the following trusts:--

"In Trust for all his (Eusoofs) children who being sons shall attain

the age of twenty-one years or being daughters shall attain that age or

marry in equal shares except that the shares of sons shall be twice as

much as the share of daughters and if there shall be one such child the

whole to be in trust for that one child and if there shall be no child

of the said Eusoof Mohamed Salleh Angullia who being a son shall attain

the age of twenty-one years or being a daughter shall attain that age

or marry then in trust for his heirs according to Mohammedan law

but so that the share of males shall be twice as much the

share of females Provided always that the said Eusoof Mohamed Salleh

Angullia may by deed or will appoint that the whole or any part of the

income of the said share shall after his death be paid to his widow or

widows (if any) during life or for any less period Provided also that

notwithstanding the foregoing trusts the trustees of the said share at

any time or times if they shall in their uncontrolled discretion think

fit so to do transfer or pay the whole or any part of the capital of

the share of the said Eusoof Mohamed Salleh Angullia or the trust funds

representing the same unto the said Eusoof Mohamed Salleh Angullia for

his absolute use or otherwise apply the same for his benefit or they

may with the consent of the said Eusoof Mohamed Salleh Angullia revoke

by deed all or any of the trusts hereinbefore declared and declare any

new or other trusts of or concerning the said share or any part thereof

..."

On the 21st November, 1906, the plaintiff gave a power of attorney to her husband authorising him to borrow money on the security of her interests whether vested or contingent, in possession or expectancy, in the estate of the testator, and on the 31st January, 1907, the plaintiff, by her attorney, executed a mortgage (hereinafter called the mortgage deed) in favour of one R.M.S.M. Komarappa Chetty to secure present and future advances, which, according to the plaintiffs affidavit filed in support of the summons, amounted to $ 11,000.00. Paragraph 2 of the mortgage deed read as follows:--

"The Mortgagor hereby assigns and the surety hereby confirms unto the

Mortgagee (1) All the share and interest of the Mortgagor in the estate

and effects of the said Mohamed Salleh Eusoof Angullia and in the

movable and immovable property subject to the terms of his Will and in

the rents, profits and income thereof and in the proceeds of sale

thereof, (2) And all other if any the share and interest of the

Mortgagor in the estates and effects of the said deceased and that

whether arising under the terms of his Will or otherwise. To hold ..."

The benefit of the mortgage deed subsequently became vested in one Cassim Ajam Piperdy who commenced foreclosure proceedings in Singapore Suit No. 78 of 1909, and on the 31st January, 1910, the Court made a foreclosure order absolute, as a result of which all the share and interest of the

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