Ismail Khan J:

This is an application by the plaintiffs by an originating summons for a declaration that (1) they are the beneficial owners of all that piece of land situate at Ayer Panas in Malacca marked Lot No. 21 containing an area of 9 acres 3 roods 18 poles comprised in and held under statutory land grant No. 33015 dated 5 April 1938; (2) an order for the transfer by the defendants of a half undivided share in the said land to the plaintiffs.

It is alleged by the plaintiffs that the defendants had sold them the whole of the said land but owing to a mistake only a half undivided share in the land was conveyed to them under the deed of conveyance. The defendants by their affidavit said that they sold only a half undivided share in the land as stated in the deed of conveyance and not the whole of the land.

Mr Sault for the plaintiffs argued that as the defendants had sold the whole of the land but had conveyed only a half share thereof to the plaintiffs the defendants were the trustees of the remaining undivided share for the plaintiffs, and that he could avail himself of the procedure set out in O. 55 r. 3(1).

Mr Karam Singh for the defendants objected that an origi