Gopal Sri Ram FCJ:

[1] The facts that lie at the nub of the dispute in this case are not in dispute. The subject matter is a piece of land. It originally belonged to four persons - Awang bin Bahari, Ali bin Bahari, Morad bin Bahari and Yahya bin Bahari - each of whom held a 1/4 undivided share in it. I will refer to them as the original owners. On 12 April 1948 they entered into an agreement with the appellants' mother (now deceased) under the terms of which they put her in possession of the land for the purpose of cultivating it for a period of three years. The consideration was a sum of 250 rial (Straits Dollars) paid by the mother to the original owners. Possession was to revert to the original owners on re-payment of the 250 rial and the expenses incurred by the mother in cultivating the land. In the event of the original owners' default, they were to sell the land to the appellants' mother at a price to be determined by the parties, credit being given to sum already paid and the monies expended by her. As it transpired, the original owners did not adhere to the terms of the 1948 agreement. Instead, they sold the land to a third party. The land then passed through several hands until the respondent purchased it in November 1997 and had it registered in his name. In May 2000, the appellants enlisted the assistance of one Azmi Ahmad to have the subject land vested in their names. In doing so, they obviously acted on the strength of the 1948 agreement. Later, by means of a forged order of the High Court dated 23 May 2000, the appellants were registered as the proprietors of the subject land. It is not disputed that it was Azmi who produced the forged order and that the appellants were entirely ignorant of the fact that the order was a forgery. When the respondent found herself displaced from the register, she brought proceedings to have herself reinstated as the registered proprietor. The judge before whom the action was tried acted on the agreed facts and the undisputed documents. He quite rightly proceeded under O. 14A to try the question of law, whether the appellants had acquired an indefeasible title despite having got themselves on the register by means of a forgery. After hearing arguments, he found for the respondent.

[2] Before us, the appellants rely on the fact that they acted bona fide as they were ignorant of the forgery. Their counsel argued that by reason of the decision of the Federal Court in Adorna Properties Sdn Bhd v. Boonsom Boonyanit [2001] 2 CLJ 133 they acquired an indefeasible title. The facts of that case are fairly well known. Boonsom Boonyanit was the owner of a valuable piece of land. The issue document of title to it was in her possession. A rogue pretending to be Boonsom applied for and obtained a duplicate title to the land and sold it to Adorna Properties. The transfer was a forgery and hence utterly useless. Yet, the Federal Court held that Adorna obtained an indefeasible title. It did so on the ground that the proviso to s. 340(3) of the National Land Code 1965 ("the Code") applied to s. 340(2)(b) as well. Since Adorna Properties was a bona fide purchaser of the land, it came within the proviso.

[3] Now, this is what the proviso says:-

Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body, claiming through or under such a purchaser.

Notice that the proviso applies only to a "purchaser". That expression is defined by s. 5 of the Code as "a person or body who in good faith and for valuable consideration acquires title to, or any interest in land". Hence, to be a purchaser, one has to acquire title, act in good faith and also provide valuable consideration.

[4] In Midland Bank Trust Co Ltd v. Green [1981] AC 513, the House of Lords had occasion to consider the meaning of the expression "valuable consideration" appearing in s. 20(8) of the Land Charges Act 1925 which