Lord Russell of Killowen:

The testator John David died in 1920. Probate of his will (executed in 1920) was granted to the executor and trustee thereby appointed (his brother Francis Daniel David who died in 1944). At all material times the sole asset of his estate remaining undistributed was a piece of land comprised in Negeri Sembilan Grant No. 953 of Lot No. 368 Mukim of Rasah ("the said land"). The testator by his will disposed of his estate as follows:

(a) Francis Daniel David - brother 5/16 share.

(b) Benjamin David - brother 4/16

(c) Jacob Joseph - godson and nephew 3/16

(d) R. Sinnappan 1/32

(e) Elizabeth Muttama - sister 1/16

(f) Mary Varnagulasinghe 1/16

(g) Miss Rasamma - housekeeper 3/32

Total = 16/16

Jacob Joseph was also known as Joseph Jacob (or Jacob Joseph) David and is hereafter referred to as "J.J. David" or as "Administrator".

On 22 September 1970, letters of administration to the estate of the testator were granted to J.J. David out of the Registry of the High Court at Seremban, he being a devisee and also a nephew of the testator. J.J. David lived in Sri Lanka and no doubt for that reason the grant was expressed to be to J.J. David "by his attorney Dato Athi Nahappan (Power of Attorney No. 380/1965)."

In connection with that form of grant an elaborate attack was mounted by a lengthy supplemental appellants' case to this board on the standing of a later attorney appointed by J.J. David after he had revoked the power of attorney granted to Nahappan, as later noted. After some examination of the grounds (not suggested in the Courts below) for that attack, their Lordships formed the view that they would not stand up, and Counsel for the appellants withdrew the point.

The assets scheduled to the grant were the said land.

J.J. David on 8 July 1974 revoked the power of attorney to Nahappan, and granted a general power of attorney to E.P.E. Ananda of Seremban ("the Attorney") dated 5 August 1974.

The said land produced no income, and was subject to outgoings such as quit rent, which appear to have been kept down by a charge for RM3,000 to avoid forced sale. In the circumstances the Administrator understandably wished to realise this remaining asset of the estate so that the estate might be distributed and wound up. In the case of an administrator the said land could not be sold save with the permission of an order of the High Court. With a view to obtaining such an order the Administrator by the Attorney executed a contract 2 September 1974, to sell the said land to one Ng Lit Cheng ("Ng") for the sum of RM110,000: on provision in that contract calls for particular notice, save that Ng was to be allowed forthwith to enter on the said land to carry out works of development. Provision was made for a deposit of RM25,000.

On 26 August 1974, the said land was transmitted to J.J. David as personal representative.

On 11 November 1974, the Administrator applied (through the Attorney) by originating summons for an order that the said land be sold to Ng pursuant to the agreement. This summons was ex parte,it being stated that it was not intended to serve it on anyone. The application was supported by an affidavit dated 9 November 1974, affirmed by the Attorney. This stated the beneficial interests constituted by the will that F.D. David (5/16) was believed to have died intestate leaving a named widow and three named sons (including J.J. David): that B. David (4/16) was believed to have died intestate leaving one son B.G.S. David: that Sinnappan (1/32) was believed to have died intestate but his beneficiaries were not known to the Administrator: that Elizabeth Muttama was believed to have died intestate but her beneficiaries were similarly not known: that Mary Varnagulasinghe (1/16) was believed to have died intestate leaving no issue that Mary Rasamma (3/32) was believed to have died intestate leaving no issue. It was pointed out that J.J. David (3/16), the applicant, was the only survivor of those named in the wil