Syed Ahmad Helmi JC:

This case concerns a dispute over the proprietary rights over a portion of land purchased by the plaintiffs from the father of the defendants which the defendants refused to transfer and effect registration into the names of the plaintiffs as co-owners of the land in question.

The plaintiffs' claim as appears by the statement of claim is based on a deed of sale & irrevocable power of attorney dated 7 October 1978 (hereinafter called the "deed of sale") whereby the plaintiffs purchased an area of approximately 21,000 square feet (hereinafter called "the portion") of the land measuring an area of 1 acre 3 roods 30 poles held under GM 482 (previously known as EMR 381) Lot 261, Mukim Plentong Daerah Johor Bahru (hereinafter called "the land") from one Abdul Kadir Ahmad since deceased (hereinafter called the deceased) and who was the father of all three defendants herein. Pursuant to the deed of sale the plaintiffs duly paid the consideration of RM42,000 being the full purchase price and entered into possession of the portion.

The deceased passed way on 17 November 1978 and the three defendants herein as beneficiaries applied for and was granted a distribution order by the collector under the Small Estates (Distribution) Ordinance 1955 on 20 April 1982 (hereinafter called the distribution order) whereupon the land including the portion was transmitted to the defendants as registered owners in equal shares.

The plaintiffs approached the defendants sometime in 1986 to effect a transfer of the portion to him as they intended to construct a shophouse on the portion but was refused by the defendants. The refusal by the defendants resulted in the plaintiffs lodging in a private caveat on the land on 13 January 1986 to protect their interests. The plaintiffs followed up with an application to vary the distribution order to include the plaintiffs ownership over the portion but it was rejected.

The plaintiffs thereafter pursued their claim through Johor Bahru High Court Originating Summons No. 24-522-1989 but owing to non-compliance with the consent order to convert the originating summons to writ action, the plaintiffs obtained leave of court on 8 October 1996 to withdraw the originating summons with liberty to file a fresh - hence this present writ action.

The plaintiffs claim as appears in the statement of claim herein is in the alternative based on the deed of sale. The principal prayer is for specific performance of the deed of sale and for the defendants to transfer the said portion to the plaintiffs as co-owners of the land. The alternative prayer relates to a declaration that the plaintiffs are entitled to the portion under the deed of sale and the defendants as trustees thereof do transfer the portion to the plaintiffs and be made the registered co-owners of the land.

The defendants in their defence averred that the plaintiffs have no beneficial nor equitable interest on the said portion and denied that they held the portion as constructive trustees for the plaintiffs and consequently they were not duty bound to transfer the said portion to the plaintiffs. The defendants maintained that they had no knowledge of the deed and that the plaintiffs has slept on their rights (if any) and by reason thereof they are not entitled to the reliefs sought.

The defendants further maintained that by reason of the fact that the registration of the title is in the names of the defendants pursuant to the distribution order dated 20 April 1982 which distribution order was obtained without the defendants being aware or seised with knowledge of the plaintiffs' interest, the defendants cannot be said to exercise fraud as claimed by the plaintiffs.

As the plaintiffs' claim is founded on the deed of sale the true intention of the parties are to be gained from the document itself - Mohd Mustafa v. Kandasami[1979] ; [1979] 2 MLJ 109 and I shall now turn to the evidence presented.

On the due execution of the deed of sale the fir