Mohd.Ghazali bin Mohd.Yusoff JC:

This is an application by the plaintiff made by way of summons-in-chambers for a declaration that the charges purportedly created over 29 pieces of land is null and void, illegal and of no effect.The plaintiff had earlier filed a writ against the defendant on 13 December 1990 and has claimed the same relief in her statement of claim.

The facts of the case are as follows:

The plaintiff is the widow and personal representative of one Hj Hassan Hj Arshad, who died on 26 November 1985 intestate (hereafter referred to as "the deceased") and the defendant is Bank Bumiputra Malaysia Berhad, Batu Pahat Johore.

Prior to his death the deceased was the registered proprietor of 2 adjoining pieces of land situated in the mukim of Perserai in the state of Johor.The deceased was also the registered co-proprietor with three other persons, namely, Ibrahim bin Abdul Karim, Abd Hamid bin Busu and Shadan bin Mohd.Rahim (hereinafter referred to as "the said three persons"), in equal shares, in 21 adjoining pieces of land and each of the said three persons were also the registered proprietors of 2 other adjoining pieces of land each.All in all, the above said pieces of land totalled 29 pieces and are all situated in the same mukim (hereinafter referred to as "the said lands").

On 11 April 1981 the said three persons executed a power of attorney nominating and appointing the deceased "to be our Attorney for us and in our names or otherwise to do all or any of the following things within Malaysia in respect of the properties as described on schedule below", that is the said lands, which incidentally included the two pieces of land over which the deceased was the sole registered proprietor.The said power of attorney was witnessed by a solicitor and was duly deposited in the High Court in Muar on 4 May 1981.

Clauses 1 and 2 of the said power of attorney which are relevant for the purpose of this action reads:

1. And whereas for the better and more effective completion of the presence we are desirous of appointing an Attorney in respect of the Twenty-Nine (29) pieces of land as described in the Schedule annexed hereto to do all or any part of the acts or things hereinafter mentioned on his Attorney.

2. To give, sign and execute a proper transfer or other formal assurance of the Twenty-Nine (29) pieces of land as described in the schedule annexed hereto in the name of all of us as the Vendors or transferors to the Purchasers as Transferees or to any of the Purchasers' Nominee or Nominees and to register or cause to be registered such transfer or other formal assurance in the Office of the Commissioner of Lands and Mines, Johore Bahru or the Collector of Land Revenue, Batu Pahat Johore.

On 13 September 1982 the deceased for and on behalf of himself and the said three persons entered into a joint-venture agreement with a company called Za & Za's Bina Sdn. Bhd. (hereafter referred to as "the company") to develop the said lands into a housing estate.The company applied to the defendant for financial assistance to develop the said lands and as the deceased was the holder of the power of attorney, the company requested the deceased to execute third party charges over the said lands.

Consequently, two legal charges were executed by the deceased in favour of the defendant which created third party charges for the benefit of the said company, dated 23 May 1983 and 17 January 1984 respectively, as consideration for loans extended by the defendant to the company; the relevant charge documents were prepared by the defendant's solicitors.

Unfortunately, the housing estate did not materialise and the company was subsequently wound up by the High Court in Kuala Lumpur in 1987.

On 13 December 1990 the plaintiff, as representative of the deceased, filed this action by way of writ of summons, contending that the said power of attorney:

(a) did not empower the deceased to create a legal charge against the various titles;

(b) that