JUDGMENT

Syed Agil Barakbah FJ:

This case involves the purchase of land belonging to the estate of Ong Sing Keng who died intestate (hereinafter called "the deceased"). The first and second respondents are the administrators having been granted Letters of Administration on 23 November 1946 and extracted on 9 July 1947 vide petition No. 105 of 1946. The twelve beneficiaries to the estate are the third to the fourteenth respondents. The estate comprises of two adjoining lots totalling slightly over 122 acres of which about 40 acres are under rubber and the rest being vacant land. It was registered in the name of the deceased under Pahang Certificates of Title Nos. 348 and 349 for lots Nos. 842 and 843 both situated in the Mukim of Triang (hereinafter referred to as "the said land"). On 15 March 1973 the administrators executed a written agreement for the sale of the said land with the appellants who agreed to purchase it free from all encumbrances subject to Court approval as specified in Clause 2 of the agreement. Under Clause 3 the administrators in their capacity as the vendors undertook to apply to the relevant High Court for leave to sell and transfer the said land to the appellants not later than 180 days from the date of the execution of the agreement. On the execution of the agreement the appellants paid the sum of RM45,000 by way of deposit and the receipt thereof was acknowledged by the administrators. It was also agreed vide Clause 6 that in the event that leave of Court was not obtained the administrators would refund the said deposit.

There was no dispute that the administrators failed to apply for leave as undertaken by them in Clause 2. The reason as stated in their affidavit dated 8 December 1981 (p. 8 of the Appeal Record) was because they could not obtain the consent from all the beneficiaries and prior to and at the time of signing the agreement they had only consulted and obtained the consent of only four of the beneficiaries. Subsequently three of them withdrew thus leaving only one who consented. As a result of their inaction the appellants filed Civil Suit No. 847 of 1975 against the administrators and on 4 December 1981 obtained an order from the High Court, Kuala Lumpur ordering the administrators to apply to the relevant High Court for leave to sell and transfer the said land within 14 days from the date of the order failing which the appellants were empowered to apply on their behalf. In compliance with the said order the administrators filed Originating Summons No. 135 of 1981 in the High Court Seremban on 10 December 1981. The beneficiaries were cited as the respondents. Subsequently the appellants on 1 March 1982 successfully applied to be added as the interveners in the originating summons. The summons was heard by the learned Judge who dismissed the application with costs. The appellants being dissatisfied with the said decision have now appealed to this Court.

It should be noted that even though the agreement was conditional upon leave of Court being obtained the respondents were allowed vacant possession of the said land on the execution of the agreement (Clause 13). They cleared the land for the purpose of housing development and also lodged a caveat. They were also responsible for the payment of quit rents for the year 1973 vide Clause 7 and continued to pay the same for the following years as they remained in occupation of the said land. The appellants claimed to have expended RM7,615.40 in the payments of quit rents and assessments up to the year 1981. They conceded however of having the rubber tapped and earning some income but had to stop on finding it was uneconomical due to the trees being old. No mention was made as to the period that the rubber was tapped and as to the income derived therefrom.

The beneficiaries on the other hand filed affidavits opposing the application for leave to sell the said land to the appellants pursuant to the said agreement. The main grounds are firstly, that none