Terrell A-G CJ:

In or about the month of April 1926 the plaintiff and his wife Haji Saida (since deceased) became the registered proprietors of two pieces of land in the town of Kuala Lumpur comprised in Certificates of Title Nos 2114 and 2115, and now held under Selangor Grant Nos 9419 and 9420, that is to say, each of the registered proprietors was entitled to one undivided half-share.

On 27 July 1926 by an Indenture made between the plaintiff of the first part, Haji Saida of the second part, and the defendant (thereafter called the trustee) of the third part, the plaintiff and the said Haji Saida purported to transfer the said two pieces of land to the trustee upon certain trusts for the benefit of the transferors as therein mentioned. One of such trusts was that from and after the death of either of them, the plaintiff and the said Haji Saida, the trustee should stand possessed of the said lands upon trust to convey the whole thereof to the survivor absolutely. This transfer was not in the form required by the Land Code, and was never registered. In factit was incapable of being registered, nor was it implemented by a transfer in the required form. The trustee, however, held the certificates of title until 1934 when the plaintiff and the deceased executed a charge in favour of one Lin Yoke Ching (f) since when the certificates have been in her possession.

In 1935 Haji Saida died, having made a will dated 29 February 1924 whereby she appointed the plaintiff and the defendant her executors and bequeathed the residue of her estate to the plaintiff absolutely, and on 12 April 1935 probate of the said will was granted to the defendant, the plaintiff having renounced.

Shortly afterwards the defendant applied in OS 167/35, to which the plaintiff was respondent, for leave to sell by public auction all or any of the property forming the estate of Haji Saida deceased, and on 25 November 1935 an order was made by the Supreme Court giving leave to sell such property at the prices therein mentioned. Amongst such property was the half-share of the deceased in Selangor Grants 9419 and 9420. The plaintiff apparently took no objection to the order that was made, and did not assert any claim under the Indenture of Settlement, but there was in fact no need for him to do so as he was in any case a residuary legatee under his wife's will.

Early in 1936, however, (Probate Suit 1/36) certain beneficiaries attacked the will as not being in accordance with the provisions of Mohammedan Law. The plaintiff and the defendant were defendants in this Suit, and thereupon the plaintiff immediately asserted his claim to the two pieces of land by writing to the defendant on 23 January 1936 directing him not to put up those particular lands for sale.

On 19 August 1936 an order was made by consent in the Probate suit, and it was declared inter alia that the bequests of the immoveable property of the testatrix were null and void. The appointment of the defendant as executor was not interfered with, but it was ordered that he should hold the residue of the estate upon trust as to half the residue in favour of the plaintiff and as to the remaining half in trust for certain other beneficiaries. In the order the lands in question in this suit were not specifically referred to.

On 22 June 1936 the plaintiff asserted his claim to the half share of Saida in the two pieces of land, and did so on several occasions subsequently. The defendant was, however, advised that he could not transfer such half share to the plaintiff except under the authority of an order of Court, and on 20 December 1937 the plaintiff commenced this action asking for a declaration that he was the owner of the two pieces of land upon the death of Haji Saida and for an order that they be transferred to him.

The defendant was sued as the executor of the will of Haji Saida deceased, and not as trustee under the Indenture of settlement, but the fact that the defendant appears in these