Lord Cross of Chelsea:

(delivering the majority judgement): This is an appeal by the Government of the State of Penang and the Central Electricity Board of the Federation of Malaya the defendants in the action from an order of the Federal Court of Malaysia made on 9 February 1970 allowing the appeal of the plaintiffs from an order of Mr. Gill J made on 19 February 1969 dismissing the action.

The action was started by writ dated 17 April 1962. The first plaintiff Beng Hong Oon is the wife of the second plaintiff Oon Guan Yong. The third and fourth plaintiffs Oon Peh Tchin and Oon Peh Seng are their children. The first plaintiff is the registered owner of the fee simple absolute in possession of land known as lot 275 (3) situate in mukim 14 in the northern district of Province Wellesley and at the date of the issue of the writ the four plaintiffs were the registered owners in undivided sharer of the fee simple absolute in possession of land known as lot 275 (1) lying immediately to the south of lot 275 (3). The plaintiffs claimed that the western boundary of the two lots as conveyed, together with other land, by the East India Company acting on behalf of the Crown to their predecessor in title one Forbes Scott Brown by an indenture dated 10 November 1852 was the line of medium high tide; that since that date a strip of dry land comprising nearly three acres had been formed by the gradual and imperceptible recession of the sea along the western extremity of the two lots; and that that strip of alluvium (now called lot 808) was as to its northern portion part of lot 275 (1) and as to the remainder part of lot 275 (3). The Government of the State of Penang the first defendant to the action claimed the said strip as its property and had by a lease dated 12 August 1959 demised it to the second defendants who were in possession of the land so demised to them. After the issue of the writ but before the action came on for trial the plaintiffs sold lot 275 (1) to purchasers who were not added as parties. The first plaintiff said in evidence that the strip of alluvium adjacent to the lot had been excepted from the sale; but she did not produce the conveyance and Gill J was not satisfied that the alluvium if in fact vested in the plaintiffs had not been conveyed to the purchasers of lot 275 (1). As already stated he dismissed the action but his decision was reversed by the Federal Court (Azmi, Lord President, Suffian and Ali FJJ), which by its order now under appeal declared that the first plaintiff was the owner of the alluvium adjoining lot 275 (3) and the four plaintiffs together the owners of the alluvium adjoining lot 275 (1) and gave the plaintiffs certain consequential relief including an order for possession and an award of mesne profits.

The indenture dated 10 November 1852 the true construction of which is in their Lordships' view the vital question in this case was - so far as material - in the following terms:

... the said East India Company for and in consideration of Companys Rupees four hundred and seventy four, Annas one and Pie six which have been paid to them by the saw Forbes Scott Brown Esquire do in pursuance of Act No IX of 1842, and in virtue of all and every right, title, interest, power and authority whatsoever now vested in the said East India Company, grant, bargain. Sell and release unto the said Forbes Scott Brown Esquire his executors, administrators and assigns, all that piece of land situated in the Division of Bagan Bahroo in the District of Teluk Ayer Tawar in Province Wellesley, bounded and measuring as follows, East by EI Company, and Boontah and Ioosoo's grounds four thousand nine hundred and thirty five feet west by sea beach four thousand and sixty seven feet north by road one thousand nine hundred and four feet south by Pakir and Che Mohamed's lands eight hundred and ninety six feet agreeably to the plan endorsed hereon, certified under the band of I. Moniot Land Surveyor, estimated to co