Hasan Lah JCA:

Introduction

[1] These 3 appeals were fixed before us on 11 May 2009. The parties agreed that all the 3 appeals be heard together and for the purpose of the appeal case no. 239 would be heard first and should the court agree with the appellant's appeal in this case there would be no necessity to hear the other 2 appeals. In case no. 241, the appellant is the 7th defendant whereas in case no. 266 the appellant is the 3rd defendant.

[2] On 15 May 2009 we unanimously allowed the appeals. We now give the grounds of our decision.

[3] In this judgment the parties are referred to in their respective capacities in the High court.

The Background Facts

[4] This case concerns various parcels of land commonly known as the Ayer Itam Estate, particularly described in Schedule 1 annexed to the Re-Amended Statement of Claim ("the said Lands").

[5] The said Lands were at all material times registered in the name of Choong Lye Hock Estates Sdn. Bhd. ("Choong Lye Hock") who held the said Lands as trustees for the estate of Chor Bah Say @ Chor Bar Say, deceased ("the Estate of Chor Bah Say") as to the 3/4 undivided shares in the said Lands and, as registered and beneficial proprietor as to the remaining 1/4 undivided shares in the said Lands.

[6] The Estate of Chor Bah Say was survived by the Estate of Chor Sin Kheng, the Estate of Chor Paik Guor, the Estate of Chor Sin Tee, the Estate of Chor Phaik See, the Estate of Chor Phaik Suan, the Estate of Oh Kee Lee ("these Beneficiaries"), who are the 1st, 2nd, 4th, 5th and 6th defendants, in the High court and the appellant in case no. 239 and also the Estate of Chor Phaik Hor and the Estate of Chor Phaik Sim.

[7] The said Chor Bah Say @ Chor Bar Say, deceased, died intestate.

[8] By 2 Sale and Purchase Agreements dated 23 January 1992 entered into by these Beneficiaries and Choong Lye Hock as the vendors, and the plaintiff as the purchasers, these Beneficiaries and Choong Lye Hock sold their respective undivided shares to the plaintif ("the Farlim Agreements"). Both the Farlim Agreements are almost identical.

[9] The remaining two beneficiaries of the Estate of Chor Bah Say, Chor Phaik Har and Chor Phaik Sim were named in both the Farlim Agreements but they did not execute both the Farlim

Agreements as they did not agree to the sale of the said Lands to the plaintiff.

[10] The plaintiff had by their letter dated 23 January 1992 invoked clause 23 of both the Farlim Agreements and elected to proceed with both the Farlim Agreements notwithstanding that the said Chor Phaik Har and Chor Phaik Sim did not sign both the Farlim Agreements.

[11] Subsequent to the execution of the Farlim Agreements the plaintiff was notified that Chor Phaik Har had lodged a private caveat against Lot Nos 1457 and 1835 on 26 October 1991. The plaintiff applied to set aside the said caveat on 17 March 1992 vide Originating Summons No. 24-201-1992. On 18 June 1993 the Penang High court ordered the removal of the Private Caveat but it was restored by the Federal court on 5 July 1997.

[12] On 2 March 1993 the plaintiff applied for the approval of the FIC for the purchase of the said Lands and the approval was given on 25 August 1992.

[13] Application for distribution and/or vesting order of the Estate of Chor Bah Say was filed on 12 April 1994 vide Originating Summons No. 24-326-1994 by Choong Lye Hock and 4 defendants. It was allowed by the High court on 19 May 1995 and it was ordered that Choong Lye Hock be at liberty to execute and deliver to the 1st to 6th defendant a valid and registrable transfer of the said land in proportion to their undivided entitlement.

[14] The 1st to the 6th defendants gave notices to the plaintiff between the months of January to April 1995 stating that the plaintiff had failed to take steps to complete the transaction, delayed the completion and thereby was in breach of the fundamental terms of both the Farlim Agreements. They gave the plaintiff one month to remedy the breaches, failing which t