JUDGMENT

Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] This morning we have before us a motion for extension of time to file a record of appeal herein. Having regard to the urgency of the matter; the subject matter being a private caveat subsisting against the title to land; this court directed the motion for extension of time to be treated as the appeal proper with the consent of both parties of the appeal. Compliance with the Rules of the Court of Appeal 1994 was dispensed with.

[3] The facts relevant to this appeal are as follows. Pua Gen Choo (f) (now deceased) was at all material times the registered proprietor of the property held under Grant 1365 for Lot no 3975, in the Mukim of Jalan Bakri Daerah Muar, Johor ("the subject property"). She had borrowed money from a bank. She had charged the title to the subject property in the bank's favour to secure the loan made to her. Later, she defaulted in repaying the loan. The bank then took steps to apply for an order for sale from the Land Administrator. The Land Administrator made an order for the sale of the subject property at public auction. It is common ground that the property was auctioned and that a successful bid was made at that auction. Now the person who made the successful bid was one Kerk Chee Kian, the director of the appellant before us. Later still, the full purchase price was paid by the appellant and a certificate issued to it pursuant to provisions of s. 265(4) of the National Land Code 1965 ("the Code"). In the meantime, the respondent claiming to be the purchaser of the subject property entered a private caveat against its title. The appellant company then applied under s. 327 of the Code to have that caveat removed. It failed. It then appealed to this court against the decision of the High Court.

[4] In opposing this appeal learned counsel for the respondent has raised two main grounds. The first is that the caveat must remain because the order for sale made by the Land Administrator was challenged under separate proceedings instituted in December 2006. Now, the short answer to that argument is that the respondent's caveat is not based on the ground now advanced before us. If you look at the Form 19B employed by the respondent to enter his caveat you will find that he relies on the sale and purchase agreement he entered into with Hau Sok Ngo (f) a beneficiary of the deceased's estate. The caveat is not grounded on the fact that the order for sale is invalid. In Luggage Distributors Sdn Bhd v. Tan Hor Teng [1995] 2 CLJ 713, this Court held that a caveator is bound by the grounds he or she sets out in the application in Form 19B for the entry of the caveat. It was also held that if the grounds disclosed in Form 19B do not disclose a caveatable interest, then cadit quaestio.

[5] In the present case the sale and purchase agreement on which the respondent relies to sustain his caveat in truth and fact confers no interest of title on him. The vendor with whom he made the contract was not the registered proprietor of the land. She accordingly had no title to pass. Further as observed by the then Federal Court in Doshi v. Yeoh Tiong Lay ; [1975] 1 MLJ 85 the mere payment of the deposit for purchase of a property does not render a purchaser a bona fide acquirer of the property. It is to be noted that in Doshi, Gill CJ (Malaya) relied on Morland v. Hales and Somerville [1911] 30 NZLR 201 as authority when he said this:

It is said that the respondent cannot claim to be a purchaser for value without notice because he had not paid the full purchase price. The authority relied on for this assertion is the New Zealand case of Morland v. Hales and Somerville [1911] 30 NZLR 201 in which it was said that Somerville could not claim as purchaser for value without notice, as his contract had not yet been completed by payment of the purchase price and the conveyance of the legal estate.

[6] There is a further point here. It is conceded by learned counsel for the respon