Briggs J:

The facts appear sufficiently from the judgment.

Mohamed bin Abdul Rahman, the second respondent, is registered as the proprietor of Lot No. 945 in the Mukim of Gading Galoh in the Daerah of Pulai Chondong and was so registered in 1946. On 6 August 1946, he entered into a written agreement with the applicant, Haroon bin Guriaman, agreeing to sell this land together with two lots, Nos 472 and 474 in the Mukim of Kerawang, for a sum of $3,000 the receipt of which he acknowledged. He gave a licence to Haroon to go into occupation of the land. He undertook to transfer the land as soon as this became possible on the resumption of normal Land Office work.

On 29 January 1948, Mohamed entered into another written agreement by which he undertook to sell Lot No. 945 in the Mukim of Gading Galoh to Nik Mah, the first respondent, for $935, $800 of which was paid at the time of the agreement; the remaining $135 was to be paid on presentation of the transfer. Completion was to be on the lifting of the Moratorium. He gave a licence to Nik Mah to go into occupation of the land.

On 27 January 1951, Nik Mah signed a plaint in Civil Suit No. 9 of 1951 whereby she claimed against Mohamed specific performance of this agreement. The plaint was filed on 30th January and was served on 18th February on the defendant. He pleaded the earlier agreement, but also admitted the agreement with Nik Mah, and stated that he had entered into it in error without recollecting that the land was included in the earlier agreement. At a later stage he sought to amend this defence so as to plead that he was really the trustee for one Mohamed Rasul, on whose behalf both agreements had been made. The action was heard on 14 March 1951, and I made an Order for specific performance in favour of Nik Mah with costs. The outstanding sum of $135 was to be paid into Court, subject to set-off of the costs, which were subsequently taxed at $101.50. The balance of $33.50 was duly deposited and stands to the credit of the action. Mohamed failed to execute the necessary transfer as ordered, and a transfer was, in accordance with the terms of the Order, executed by the Registrar on his behalf and was presented for registration. No issue document of title was in existence, the land being held on Settlement Index.

After presentation of the transfer and Order of Court of the 14 March 1951, it appeared that on 31 January 1951, Haroon had executed and presented a caveat against Lot No. 945 claiming an interest under the agreement of 1946. The transfer was therefore not registered. Haroon and Mohamed were admittedly very close friends, and although Haroon was normally stationed at Kemaman he was on leave at Kampong Pulai Chondong, where Haroon lives, at the time when the action was filed. I have no doubt whatever that it was common knowledge in that kampong that Nik Mah had, after numerous demands, filed her action against Mohamed and, although there is no direct admission by Mohamed that he knew of the action before he was served, he stated in argument "I said I was served on 27 that may have been when I first heard of the plaint, if the records show I was formally served on 18 February 1951." I think this is a strong indication that Mohamed knew of the existence of the plaint on the day on which it was signed and before it had been filed in Court. Mohamed admits that he told Haroon about the plaint as soon as he himself had heard of it, and that he asked Haroon not to sue him as he hoped to settle with Nik Mah. Haroon swears that he never heard of the existence of the action until after he had put on the caveat. It may be noted that the same petition writer prepared the plaint and the caveat. It was put to Haroon that it was a very remarkable coincidence that, after some five years delay, he should have imposed the caveat at just that moment, when the action was being filed. He fully appreciated the point and had no answer. He made no suggestion that Nik Mah had had