Arifin Zakaria FCJ:

[1] This appeal came before us on a single question of law which reads as follows:

Whether the Joint Venture Agreement dated 5 October 1992 entered into by the Appellant (of the one part) and by the Second and Sixth Respondents (of the other part) before the grant of letters of administration and before Distribution Order is made is a valid and enforceable agreement and binding on all the Respondents once the letters of administration are issued and Distribution Order is made and the parties to the Joint Venture Agreement are in a position to specifically perform the Joint Venture Agreement.

[2] After having heard arguments of counsel for the parties we adjourned the matter for our consideration and we now give our decision and reasons for the same.

The Background Facts

[3] The claim by the appellant (plaintiff in the court below) arose out of the agreement dated 5 October 1992 (the agreement) purportedly entered into by the Estate of Ujagar Singh s/o Bhagat Singh (deceased) (the Estate) of the one part and the appellant on the other part. The agreement relates to the development of 2 pieces of land namely, EMR 4092 lot 2767 and EMR 4093 Lot 2768, Mukim Setapak, Wilayah Persekutuan Kuala Lumpur. The joint-venture involved the construction of four 10-storey blocks of twenty residential units in each block and two 15-storey blocks with thirty residential units in each block. The Estate will be entitled to 45 units which are referred to in the agreement as "the Owner's Entitlement" while the balance to be allotted to the appellant as "the Developer's Premises". The agreement was entered into by Harinder Singh s/o Ujagar Singh, the son of the deceased, and Kishen Kaur d/o Mihan Singh, the widow of the deceased, the 2nd and 6th respondents respectively. The question is in what capacity did they execute the agreement? It is not in dispute that at the date of the execution of the agreement, letters of administration of the Estate had not been issued. It was only granted on 4 January 1994 and extracted on 12 May 1994. The 2nd respondent was made the sole administrator of the Estate. The beneficiaries refused to proceed with the agreement and hence this action.

[4] The appellant filed this suit against the administrator of the Estate and eight others, who are the beneficiaries of the Estate in which the appellant prayed for the following orders:

(i) An order that the defendants do apply to the High court Kuala Lumpur for permission of the court to transfer the said land mentioned in the Joint Venture Agreement dated 5 October 1992 between Estate of Ujagar Singh s/o Bhagat Singh (hereinafter called 'the owner') and Futuristic Builders Sdn Bhd (hereinafter called 'the developer') and that the Defendants apply for leave of the said court to have the said lands transferred to the plaintiff and that the Defendant shall make such application to the court within one (1) month from the date of this Order;

(ii) Specific performance of the Joint Venture Agreement dated 5 October 1992;

(iii) An Order and/or a Declaration that all the relevant documents are to be drawn within two (2) weeks from the date of the order by the High court by the defendant's solicitors, Messrs Inderjit Singh and/or any other solicitors to effect the transfer of the said lands held under EMR NO 4092 Lot No 2767 and EMR NO 4092 Lot 2768 both in the Mukim of Setapak, District of Wilayah Persekutuan measuring approximately 1 acre 3 rood 357 poles (collectively called 'the said lands') to the plaintiff and if the defendants neglect or refuse or are out of jurisdiction, the Senior Assistant Registrar of the High court Kuala Lumpur be directed to execute the same on behalf of the defendants;

(iv) All necessary and consequential Orders and Directions as the Honourable court may deem fit to provide;

(v) Damages for breach of contract in addition to specific performance, and the 'said Lands' to be valued by a licensed valuer to be appointed by the Plaintiff whose