Howes J:

[1] Prior to August 1932 the plaintiff was the registered proprietor of four pieces of land under EMR Saiong Nos 4,910, 4,917, 4,834 and 4,833.

[2] On 29 August 1932 the second defendant, Bahadur Singh purporting to sign as attorney for the plaintiff, transferred these lands to the first defendant, Kehar Singh (whose attorney the second defendant also was at that time) for an alleged consideration of $3,000. In fact, no money passed. Bahadur Singh therefore signed the transfer in a dual capacity, viz., as attorney for both transferor and transferee, and in due course Kehar Singh was registered as, and is still on the register as proprietor of these lands.

[3] The plaintiff now seeks: (1) a declaration that the above transfer to Kehar Singh was void; (2) an order to rectify the register and that the plaintiff be registered as the proprietor; (3) a declaration that the lands are not liable to be sold by the second defendant in exercise of his purported lien; (4) an order that the sale of the lands in pursuance of the decree in Civil Suit 153/34 be cancelled; (5) further relief; (6) costs.

[4] The claim is based on s 42(iii) of the Land Code which reads: "If the registration of any proprietor, chargee or lessee has been obtained by forgery or by means of an insufficient or void instrument such registration shall be void."

[5] The plaintiff's case is that when, on 29 August 1932, Bahadur Singh executed the transfer, Bahadur Singh was not his attorney, and therefore had no power to transfer the lands to Kehar Singh; and consequently the registration was obtained by means of an insufficient or void instrument, and was therefore void.

[6] This is the substance of the plaintiff's claim.

[7] This case is interwoven with Civil Suit 149/34, in which the second defendant Bahadur Singh was the plaintiff, and the present plaintiff was principal defendant. In that case, Bahadur Singh sued as holder in due course on a promissory note, made in the name of Puran Singh "by his attorney Kehar Singh" and in respect of which other EMR's were deposited as collateral security by Kehar Singh, and in which Bahadur Singh claimed a declaration of lien. Puran Singh therein, through Kehar Singh his attorney, counterclaimed; and in his counterclaim pleaded that Bahadur Singh was his attorney from 18 October 1928, to 30 May 1934,during which period (it was stated) Bahadur Singh managed Puran Singh's moneylending business and rubber estates, and Puran Singh claimed an account of such management.

[8] Civil Suit 149 of 1934 was tried by me and both the claim and counterclaim were dismissed on 29 May 1935.

[9] It is beyond doubt that from the 1 October 1923, Kehar Singh was by virtue of a Power of Attorney No 67/23, Kuala Kangsar (Exh 9), the properly constituted attorney of Puran Singh until that power of attorney was revoked by Puran Singh by letter dated 11 May 1935 (Exh 26) on which date Puran Singh appointed his present attorney, Bishen Singh, by Power of Attorney No 41/35 Kuala Kangsar (Exh 23).

[10] It was by virtue of the Power of Attorney No 67/23 that the present plaintiff, through Kehar Singh, defended Civil Suit 149/34, and filed the above quoted counterclaim. In that case, and in the present, right up to the close of the defendant's case (the defendants began), it was the contention of Bahadur Singh that Puran Singh was either non-existent, and that the name was only an alias of Kehar Singh, or that he was merely a nominee of Kehar Singh and was not his brother. Also, that the person who appeared as plaintiff in this case was not Puran Singh, the former registered proprietor of the lands in question.

[11] However, Mr Woods for the second defendant ultimately admitted, for the purpose of this case, and this case only, that the person who appeared as plaintiff is Puran Singh, and is the brother of Kehar Singh.

[12] By virtue of Power of Attorney No 67/23, Kuala Kangsar, Kehar Singh in the name of Puran Singh, on 23 September 1936, by Power of Att