Mohd Noor Ahmad FCJ:

I have had the benefit of reading the draft judgment of my learned brother Mohd. Ghazali Mohd. Yusoff JCA. I am in full agreement with him. However, I would like to add.

The only issue before us is whether the learned judge had under the circumstances exercised his discretion judiciously when he granted the sanction for the sale of the property upon the terms of the agreement, that is to say, at RM1.60 per square foot.

The following facts are beyond dispute and pertinent.

(1) The agreement was valid and binding upon the parties and the trustees had been ordered by the Court of Appeal to specifically perform it. In order to do so, under cl. 8 of the agreement the trustees had to apply to the court for a formal sanction to sell the property. Subsequently, the trustees applied for permission to sell the property to the purchasers at its market value as at the date of the approval by the court or at such other price as the court deems fit and proper.

(2) The value of the property at the date of the agreement (8 January 1979) was RM1.60 per square foot based on a valuation report obtained by the trustees and whereas the compulsory acquisition price was only RM0.60 per square foot. However, the market value of the property around the time when the permission to sell was sought was RM28 million, per valuation report as exhibited. When the agreement was entered into the appellant and the other beneficiaries agreed to sell at RM1.60 per square foot but they do not agree now in view of the current market value of the property.

(3) The reason why the sale and purchase was not performed by the trustees was not related to the consent of the beneficiaries or the value of the property but because of the compulsory acquisition of the property by the State which was released quite some time ago, and thereafter, the reason for the non-performance was due to a wilful refusal to perform the sale and purchase, rather than the non-fulfillment of any condition. In short, the trustees did not apply for the sanction for the last 19 years by reason of refusal to perform.

Premised on the aforesaid facts, the learned judge proceeded to determine whether or not to grant the sanction and at what price. He had meticulously considered those facts, in particular on the market value at the date of the agreement and the acquisition value and had decided as he did. To my mind, as RM1.60 per square foot was reflective of the then market price it is manifestly evident that the trustees had obtained the best price for the beneficiaries of the estate. Therefore, it is not apt to say that the learned judge had acted like a "rubber stamp" when he granted the sanction.

I decline to follow the cases of Yap Yoke Luan & Ors v. Ong Wee Tok & Ors [1983] 2 CLJ 252; [1983] CLJ (Rep) 433, Che Ah and Che Yang Kelsom v. Che Ahmad ; [1941] 10 MLJ (FMSR) 126, and In re the Estate of Tunku Mohmed Jewa ibni Almarhum Sultan Abdul Hamid, deceased ; [1982] 2 MLJ 44. I need not repeat the facts of those cases as they had been elaborated in the judgment of my learned brother. Suffice for me just to restate the principle established in the aforesaid cases. The accepted principles adopted by the courts on an application for leave to sell a deceased estate are (i) the duty of the court is to protect the rights of the beneficiaries and not to consider the interests of the proposed purchaser (ii) in exercising its discretion the court will have to look into the facts and surroundings circumstances of the case, that is to say, whether the proposed sale was favourable to the beneficiaries and whether the administrators had acted with proper prudence in exercising their overriding duty to obtain the best possible price and (iii) the court is concerned that the price is a reasonable one not at the time the offer was made but at the time of hearing of the application. Be that as it may, the facts may vary from case to case and therefore, they can be distinguished, as