Azmi LP:

The plaintiff is the administrator of the estate of his mother, Haji Munah binte Lebai Karim, deceased and brought this suit against the two defendants:

(i) For a declaration that the transfer of the three pieces of lands comprised in SPK Nos. 3163, 3165 and 3166 Mukim of Padang Hang District of Kota Star by the first defendant to the second defendant under Transfer Presentation No. 298/ 27.2.1378 (11 September 1958) Land Office, Kota Star be null and void.

(ii)That the first defendant do specifically perform the verbal agreement by transferring the said three pieces of lands comprised in SPK No. 3163, 3165 and 3166 Mukim of Padang Hang, Kota Star to the plaintiff as the Administrator of the Estate of Haji Munah binti Lebai Karim deceased for $600.

To appreciate fully the grounds of decision of the learned trial Judge, it is in my view necessary to set out the plaintiff's statement of claim in full and the relevant paragraphs read as follows:- "The said Haji Munah binti Lebai Karim (hereinafter referred to as the deceased) was the administratrix of the estate of Harun bin Haji Mohamed Saman deceased and as such Administratrix agreed to sell:

(1)the piece of land comprised in SPK 3163 Mukim of Padang Hang, Kota Star, Kedah;

(2)the piece of land comprised n SPK 3165 Mukim of Padang Hang, Kota Star, Kedah;

(3)the piece of land comprised in SPK 3166 Mukim of Padang Hang, Kota Star, Kedah, (hereinafter referred to as the three pieces of lands) to the first defendant at the price of $600 upon the condition that the first defendant should resell the said three pieces of lands to the deceased for the same consideration.

(4)The first defendant agreed to the said condition.

(5)It was a term of the said agreement of sale that in the meanwhile and before retransfer the deceased was to remain in occupation of the said land quatenant and pay rents therefor.

(6)Upon the said agreement being reached, the deceased on the 16 Jamdilawal 1357 corresponding to the 25 July 1937 obtained an order of the High Court Div II at Land Office, Kota Star for the said sale.

(7)In pursuance of the said order, the said lands were transferred to the one Defendant.

(8)At all relevant times the deceased and after her death the plaintiff has remained in occupation of the said land.

(9)On 6 October 1956, the plaintiff obtained an from the second defendant who at all relevant times was the duly constituted attorney of the first defendant.

(10) Despite such acknowledgment and in fraud of the plaintiff the second defendant on the 10 September 1958 obtained a transfer of the said three pieces of lands from the first defendant to himself for a purported consideration of $14,000.

Particulars of Fraud

(i) Both defendants know that the said three pieces of lands were transferred to the first defendant subject to the agreement to re-transfer the same.

(ii) Both defendants knew that they had given the further acknowledgment in writing of 6 October 1956.

(11)After the padi harvest of 1958, the plaintiff offered to pay back the sum of $600 and sought a re-transfer of the said lands but both the defendants refused and still so refuse.

The first defendant in his statement of defence and counter-claim, while admitting that he purchased two pieces of the land mentioned by the plaintiff for which he paid $450, denied that there was any agreement whatsoever to resell the said two pieces of land to the deceased. He also stated that he appointed the second defendant as his lawful attorney to deal with all his lands. He also admitted that on 28 March 1956 he purchased the third piece of land from a third party and that also in September 1958 sold all the three pieces to the second defendant. He counterclaimed for arrears of rent due by the plaintiff in reference to the land.

The second defendant denied knowledge of all the material alleged in the statement of claim paras. 3 to 8. He admitted, however, that by a power of attorney dated 17 March 1956