Chang Min Tat J:

This is an application to determine (1) whether the lands held under EMR Nos 266, 298, 490 and 491 for Lot Nos. 420, 387, 888 and 353 in the Mukim of Kamunting registered in the name of the applicant belong to her, the applicant, and (2) whether the respondents who are the trustees under the will of the testator are entitled to receive any sum in excess of the authorised remuneration of rupees 1,500 per annum given under the will.

The applicant is the younger of the two widows of the testator and one of the beneficiaries of his estate. By his will made on 10 December 1963 the testator appointed the respondents the executors of his will. He died on 4 January 1964 without having revoked or altered his will. The executors were duly granted probate. In the list of the assets of the testator, they had included the said four pieces of lands. The pieces of lands stand registered in the name of the applicant. It would appear that these pieces of lands were bought by the testator and originally registered in his name before being subsequently, sometime in 1954, registered in the name of the applicant, his second wife. This was the allegation of the respondents. The applicant had not refuted this allegation nor advanced any explanation how the lands became registered in her name. I must accept therefore as proved or agreed that the lands were transferred by the testator to the applicant.

What the consideration for the transfer was I was also not told. Was it for the love and affection the testator bore to his second wife, the applicant, or was it for valuable consideration in the sense of money paid and received? The relevant transfer forms had not been shown to me and the consideration stated therein was not made known to me. However, the respondent fairly admitted in their affidavit in reply that according to the account books of the testator in his firm, EMR Nos 480 and 491 were recorded as having been purchased from the testator for $1,717.50 and EMR Nos 266 and 298 for $8,000. The account books apparently did not show to whom the lands were sold and from whom the money was received but the dates of the entries were about the times when the lands were transferred to the applicant. However, the respondents did not feel justified in making nor did they make any claim that such money had, in fact, not been paid.

Now the titles to the lands are registered in the name of the applicant and the burden of defeating her title by proving that she holds at all times the said lands on a resulting trust for the testator and after his death for his estate lies clearly on the respondents. What they had done so far was merely to claim that the lands belonged to the estate. They were moved to make this claim by the instructions of the testator's first wife and founded their claim on a portion of the Will.

This portion was a recital in the will and reads as follows:-

Whereas I am possessed of properties in India, namely, rice mills, shares in the Joint-stock companies, government documents (or Government Loan Bonds), wet and dry lands (or agricultural lands), houses, vacant land (or ground set apart for building) and the debts due to me. The insurance policies are in my name. I have movable and immovable properties and shares in Malaysia. Other than these, the immovable properties in Malaysia and the life insurance policies that are in India which are still in the name of my younger wife (or my second wife) Suntharavalli Achi (or Sundaravalli Achi). The properties hereinbefore mentioned and the life insurance policies which are being bought and paid from my assets with absolute ownership rights and debited accordingly into my accounts."

There is no other reference in the will to the lands, and the lands if they belong to the estate fall into residue. It was the contention of the respondents that the testator's claim of ownership in his will together with the admitted fact that at the time of his will and his death the