Denis Ong JCA:

This is an appeal by the defendants (appellants) in the action against the whole decision of the High Court given on 4 February 1996 in favour of the plaintiff (respondent).

The facts and circumstances giving rise to this action are as follows: the registered proprietor of Lots 23 and 24, Section 3, Village of Brinchang District of Cameron Highlands (hereafter referred to as "Lot 23" and "Lot 24" respectively) was one Lee Chooi Ying (LCY). Both Lots were subject to the same title condition namely, no dealing therewith without first obtaining the written consent of the Ruler-in-Council. On 7 October 1977, LCY entered into a Sale and Purchase Agreement (SPA(1)) with Brijkishore a/l Shuparshad the respondent (BS) and another named Shriniwas a/l Shuparshad (SS) for the sale and purchase of Lot 24 for a consideration of RM45,500; RM5,000 to be deposited forthwith and the balance of RM40,500 to be paid to M/s Yeap & Yeap (advocates & solicitors) as stakeholders not later than 2 April 1978. The date of completion of the sale was of the essence of the contract as stipulated by cl. 10 or sooner if the consent in writing of the Ruler in Council to the transfer was obtained earlier. It was expressly stipulated as a condition in SPA(1) that the agreement therein was subject to the written consent of the Ruler-in-Council for the transfer of Lot 24 to BS and SS and by cl. 3 of

SPA(1), it was the responsibility of LCY to apply for such consent promptly. Under cl. 9, it was provided that SPA(1) shall be determined upon receipt by LCY of the notification of refusal of such consent by the Ruler-in-Council and upon refund by LCY of the RM5,000 deposit to BS and SS. On the same date ie, 7 October 1977, and separately, LCY also entered into another sale and purchase agreement (SPA(2)), this time with Sinnathamby a/l Klondakoundan (SK) the 1st appellant and Mohan a/l Sinnathamby (MS) the 4th appellant for the sale and purchase of Lot 23 for the same amount of consideration ie, RM45,500 and on exactly the same terms and conditions as in SPA(1) including the consent of the Ruler-in-Council to the transfer of Lot 23 to SK and MS. The same firm of advocates and solicitors namely, M/s. Yeap & Yeap acted for both Vendor and Purchasers in SPA(1) and SPA(2) and also as stakeholders.

In accordance with the terms of SPA(2), SK and MS on their own paid to M/s. Yeap & Yeap as stakeholders the full sum of the consideration, initially on 30 September 1977 by way of deposit and subsequently on 18 April 1978 the balance of the purchase price and these payments were received into the client account of M/s. Yeap & Yeap. The professional charges totalling RM139.50 pertaining to SPA(2) were also settled by SK and MS. These payments were documented at pp. 366 to 369 of the Appeal Record. In the case of SPA(1), there was no documentary evidence of such like payments in the Appeal Record although it was not disputed that BS and SS made exactly the same payments to M/s Yeap & Yeap.

On 4 October 1977, M/s. Yeap & Yeap wrote to SK requesting the latter to fill in the particulars of himself and MS required by the application forms for the consent of the Ruler-in-Council. A preliminary drawing for a proposed 5-storey shopping cum hotel building on Lots 23 and 24 was sent under cover of a letter dated 8 April 1978 from M/s. Foo & Yee Jurutera Perunding addressed to the names of both BS and SK for their perusal, comment and early instruction. At the foot of the preliminary drawing was a caption which read thus: "PROPOSED FIVE-STOREYED SHOPPING AND HOTEL

BUILDING ON LOTS NO. 23 AND 24 TOWNSHIP OF TANAH RATA

CAMERON HIGHLANDS FOR M/S.BRIJKISHORE AND K.

SINNATHAMBY" and next to it were the signatures of both BS and SK. Although SK disputed the date of the preliminary drawing which BS asserted was 8 April 1978, it was common ground between them that such drawing was never submitted to the Majlis Daerah before 9 May 1980. On 9 May 1980, the Pengarah Tana