Ong Hock Sim FJ (delivering the judgement of the Court):

This is an appeal from the decision of Syed Agil Barakbah J made on 1 June 1976 at the High Court, Alor Star, allowing, with costs, a claim by the respondent (a) that the appellant as Administratrix of the Estate of Mat bin Jusoh (deceased) hold deceased's share in certain lands as trustee thereof for and on behalf of the respondent and (b) that the respondent is entitled to possession of those portions occupied by him since 1 March 1952 pursuant to an agreement of sale between the respondent as purchaser and the deceased as vendor.

An agreement of sale is set out at pp. 51-52 of the Record. The appellant, while disclaiming knowledge of it, contends that as it is admitted that the respondent at the date of the agreement, was incompetent to contract, having been born on 31 March 1937, it is null and void, and no specific performance based thereon can be decreed. The Privy Council in Mohori Bibee v. Dhumodas Ghose 30 IA 114 ruled that "the (Indian Contracts) Act makes it essential that all contracting parties should be competent to contract" and specifically enacts that a person incompetent to contract by reason of infancy cannot make a contract within the meaning of the Act. Our Contracts Act, 1950 is in pari materia with the Indian Contracts Act (see ss. 10 and 11). The learned Judge accordingly held, following Suraj Narain Dube v. SukhuAheer & Anor. AIR [1928] All 440

the agreement of 1 March 1952 to be void and no specific performance can be ordered on the agreement as an agreement for sale.

However, he went on to hold that the purchase price having been paid in full and the respondent let into possession, a constructive trust had been created and the deceased held the lands in trust for the respondent. With respect, to import a constructive trust in the present instance and grant a declaration that the appellant as Administratrix of Mat bin Jusoh, deceased, held deceased's share as Trustee thereof for and on behalf of respondent and that respondent is entitled to possession of the portions occupied pursuant to the agreement and order such trust to be specifically performed is in effect to enforce an agreement which is void ab initio.

We, therefore, allowed the appeal and set aside the order of the learned Judge. We ordered the appellant to repay the $5,000 purchase price on the respondent's vacating the lands occupied by him, pursuant to s. 66 of the Contracts Act. The deposit to be refunded to the appellant. We made no order as to costs.

Appeal allowed.