Mahadev Shankar J:

This is an application for the removal of a private caveat lodged by the respondent against the land held under Certificate of Title HS(D) 16394 Lot 8912 (the said land) owned by one Lim Gee Mooi (the owner).

The said land was charged by the owner to the Pacific Bank Berhad on 28 June 1984.

On 18 May 1989 the owner borrowed RM38,000 from the respondent. This money the respondent obtained by way of a loan from his own banker Malayan Banking Berhad. The respondent charged his own land to Malayan Banking Berhad as collateral for the loan.

By way of security for this loan of RM38,000 the owner executed a special power of attorney in favour of the respondent. This power of attorney was given for the valuable consideration represented by the loan of RM38,000 aforesaid and the instrument specifies that it was made irrevocable. Clause (1) of this power empowered the respondent to transfer, sell, charge, lease or otherwise deal with the said land. Clause (5) provided that the power shall become effective on 1 April 1990 in the event that the owner fails to repay the said-loan of RM38,000 taken by the respondent from Malayan Banking Berhad and the interest thereon. Clause (8) of the power specifically permitted the respondent to lodge a private caveat against the said subject to the existing charge in favour of Pacific Bank Berhad. The owner signed, sealed and delivered this power in the presence of an advocate & solicitor who attested the document as required by law. The power was then duly stamped. Immediately after the execution of this power of attorney the respondent applied to the Registrar of Titles to lodge a private caveat against the said land. The application to lodge the caveat was accompanied by a statutory declaration affirmed by the respondent. The special power of attorney aforesaid was attached to the statutory declaration. The caveat was registered on 26 May 1989.

At the time of registration of the caveat the power of attorney had not yet been deposited with the High Court. But then s. 4(4) of the powers of attorney ordinance no. 64 of 1949 (the ordinance) provides that the requirement of a deposit of the power of attorney which is stipulated in s. 4(1) shall not apply to instruments executed and used for the sole purpose of carrying out transactions in the office of the Registrar of Titles provided they are attested in accordance with any law for the time being enforced regarding the attestation of such instruments.

Consequently it appears to me that nothing turns on the point that the power of attorney had not been deposited on the date when the caveat was lodged. In any event the power was deposited with the High Court on 9 November 1989. I have pointed out in United Malayan Banking Corporation Berhad v. The Official Receiver and Liquidator of Soon Hup Seng Sdn. Bhd. (In Liquidation) & Anor. [1986] 1 MLJ 75 at p. 81 that the ordinance does not provide a time limit for depositing the instrument.

At the risk of emphasising the obvious, the effect of the respondent's caveat was to give notice to the world that the owner of the said land had divested herself of any power to deal with the land by giving the special power of attorney to the respondent.

Nevertheless, on 1 June 1989 the owner entered into a written agreement with the two applicants above-named whereby she contracted to sell the said land and the applicants agreed to purchase the same from her free of all encumbrances for RM85,000. A sum of RM35,000 was paid by the applicants to the owner and the remaining balance of RM50,000 was to be released by the applicants' end financiers subsequently. Not only did the owner and the applicant execute an agreement but also on 27 June 1989 the owner executed a formal document of transfer in the form required by the National Land Code.

On 3 October 1989 the applicants lodged their own private caveat on the presentation No. 12159/89 Jilid 158 Folio 94 (the applicants' private caveat) to protect