Gopal Sri Ram JCA:

[1] Otaheitte Estate which is now known as Ayer Itam Estate is a well-known piece of property in Penang. It has a long history. And there has been much litigation about it.

[2] The story began as long ago as 1941. On August 26 of that year, an agreement was entered into between Chor Bah Say (whom we shall, throughout this judgment, refer to as "the deceased"), and the first respondent company, which we shall, refer to hereafter as "the company". No one knows what that agreement was about. It has not surfaced. According to the affidavit of one Robert Choong Ewe Jin, a director of the company, affirmed on 4 April 1968 and filed in another suit (Civil Suit No: 64 of 1968), that document cannot be located.

[3] Then, on 24 October 1941, an Indenture was made between one William Stewart and the company ("the Stewart Indenture'), under which William Stewart conveyed to the company all those heriditaments which comprised Otaheitte Estate for a consideration of RM140,000. The Stewart Indenture was duly presented to the relevant registering authority under the provisions of the relevant legislation that governed immovable property in Penang at that time. The company is therefore the registered proprietor of Otaheitte Estate.

[4] On 4 January 1943 another agreement ("the 1943 agreement") was entered into between the company and the deceased. It is actually dated 4 January 2603, that is to say, according to the calendar of Imperial Japan, to whose occupation this country was then subjected. It is a most important document to the present appeal: for upon its terms turns the whole argument of the appellants who are the personal representatives an some of the beneficiaries of the deceased's estate. We therefore reproduce its text in full.

[5] This agreement is made 4 January 2603 between Chor Bah Say of 159, Kimberly Street, Penang, trader of the one part and Choong Lye Hock Estates Ltd, whose registered office is situate at 59, Beach Street, Penang hereinafter called the company of the other part.

[6] Witnesseth as follows:

1. In consideration of the company paying to the said Chor Bah Say the sum of dollars: Fifty five thousand for payment to Khor Boon Hun for purchase or the surrender of the existing lease or leases on or over Otaheitte Estate now held by the said Khor Boon Hun to the company, such purchase being made at the request of the said Chor Bah Say, and the said Chor Bah Say and the company hereby agree as hereinafter mentioned.

2. The agreement dated 26 August 1941 and made between the company of the one and the said Chor Bah Say of the said Otaheitte Estate to the said Chor Bah Say is hereby cancelled and is of no further effect.

3. The said Chor Bah Say shall without remuneration be in management of the said Otaheitte Estate and shall collect all the income rents and profits thereof and account for same to the company whenever required to do so.

4. The said Chor Bah Say shall sell such part or parts of the said Otaheitte Estate as he shall deem fit but he must first obtain the written consent of the company for each such sale, the company to be at liberty to refuse such consent if they consider the price or prices inadequate.

5. All moneys to be obtained from the sale or sales of part or all of the said Otaheitte Estate shall be paid to the company and shall be applied together with the nett incomes rents and profits thereof to payment of:

(a) All moneys paid by the company for the purchase of the said Otaheitte Estate and interest thereon at the rate of RM1/50 per centum per mensem down to date hereof to be added as capitalised interest.

(b) Interest on all the moneys stated in (a) above and all moneys paid for the purchase or surrender of all existing leases on the said Otaheitte Estate from date hereof and from date of payment at the rate of -/75 cents per centum per mensem and also all expenses whatever incurred in the purchase of the said Estate.

(c) All moneys paid by the said Chor Bah Say and all reasonable