Augustine Paul FCJ:

[1] This appeal raises for consideration the nature and effect of a provision in an agreement for the sale of land which requires the "formal sanction" of the court to sell the property.

[2] The questions of law formulated for our determination are as follows:

1. Whether the principle applicable to the sale of immovable trust property as stated in the Federal court case of Yap Yoke Luan & Ors v. Ong Wee Tok, [1984] 1 MLJ 23; [1983] CLJ (Rep) 433, viz the court in deciding whether the best possible price had been obtained for the Estate, "the court is concerned that the price is a reasonable one not at the time the offer is made but at the time of the hearing of the application for sanction to the sale", is also applicable in respect of sales of immovable properties belonging to the estate of a deceased by Trustees who are appointed by an Order of court.

2. Whether, when an Order of Specific Performance in respect of an agreement for sale of trust property is specifically decreed to be "on terms that it be subject to obtaining of sanction", the court is required to formally grant such sanction on the contract price or whether the court, may, in the exercise of its discretion, grant sanction at a price other than the contract price in the interest of the beneficiaries of the estate, or to refuse to grant sanction.

3. Whether the beneficiaries of an estate of a person who dies testate should, in law, be entitled to the same measure of protection as that afforded to beneficiaries under the provisions of the Probate and Administration Act 1959 and judicial pronouncements thereof.

4. Whether when a sale of estate property is expressly "subject to sanction from the court, in accordance with the Probate and Administration Act 1959 ", the primary function of the court is to consider the interests of the beneficiaries to the estate of the deceased and, in particular adhere to the legal principle that whether the price is a reasonable one is not at the time the offer was made but at the time of the hearing of the application of the proposed sale.

In order to appreciate the questions posed it is perhaps appropriate to first set out the facts. They have been well dealt with in the judgment of Mohd Ghazali Mohd Yusoff JCA as follows.

[3] The dispute between the parties revolves around a piece of land previously known as Lot 532, Mukim 12, Daerah Barat Daya, Penang and now known as Lot No 2347, Lot No 2348, Lot No 2349 and Lot No 2350 all in Mukim 12, Daerah Barat Daya, Penang ("the property"). Ong Joo Sun, deceased ("the deceased") was, during his lifetime, the registered proprietor of the property. He died testate on 20 March 1960 and his Will was proved on 13 December 1963.

[4] On 25 August 1975, the High court ordered, inter alia, that the deceased's estate ("the estate") be administered according to the terms of his Will and that his immovable properties be sold with the approbation of the judge free from encumbrances, and the proceeds of sale be paid into court to the credit of his estate. Meanwhile, by Notification No 103 published in the Gazette on 25 April 1974, the State Government of Penang declared its intention to acquire the property.

[5] By a sale and purchase agreement dated 8 January 1979 ("the agreement"), Loo Choo Teng (the first respondent) and Ong Thai Hong, described therein as the additional trustees of the estate, who were appointed by an order of the court dated 15 August 1977, sold the property to the following persons, namely:

(i) Cheok Swee Lee (the third respondent);

(ii) Loh Peng Kwan (the fourth respondent);

(iii) Loh Cheok Boon (the fifth respondent);

(iv) Loh Yip Seng (the sixth respondent);

(v) Loh Toa Thau @ Loh Eng Kim (the seventh respondent);

(vi) Loh Gan Teong (the eighth respondent)

("the purchasers"). Ong Gaik Kee (the second respondent) who was appointed as an additional trustee executed the agreement on behalf of the said Ong Thai Hong. The first and second respondents shall hereafter be