Murray-Aynsley J:

I have read the judgment of Terrell JA. I agree with it, and have nothing to add.

This case gives rise to a difficult point of practice, in regard to which there is no precedent, viz, the attitude the Court should adopt when administrators apply for leave to sell, having made a contract subject to the leave of the Court, and a beneficiary produces a higher offer. Although prima facie the duty of the Court is to see that the estate benefits as much as possible, the practical application of this is not simple; if purchasers are liable to be met with offers of this kind when they have entered into a contract for purchase at a reasonable price, no one will want to deal with administrators. This will effect prejudicially, not perhaps these beneficiaries in particular, but beneficiaries in general. In fact administrators would be reduced to selling by auction which is a very unsatisfactory method of disposing of land here. Further these offers after a contract has been concluded may be mere efforts to force the first purchaser to pay more, or if not that, it frequently happens that a person will be willing to offer rather more when once someone else has committed himself, when he would not have made any offer otherwise.

Further when circumstances have caused a rise in values, the purchaser who made an agreement which was reasonable at the time may be cut out, while if there had been a fall in values he would have been bound.

These cases must be treated on their merits. Where the second offer shows that the first agreement was at an inadequate price leave should of course be refused, but where the difference is so slight or is due to a change in values since the agreement approval of which is sought, was made, then I consider that approval should be given to such sale where the Court is satisfied that such agreement was at the time of its making a reasonable and proper one. In the present case I consider that leave should be given to the administrator to sell in accordance with the terms of the agreement. Costs of all parties out of estate.

S Seenivasagam - The application is under s. 94 of the Probate and Administration Enactment. The estate should be realised to the best advantage. The price is not reasonable. There is no independent valuation. A better offer has been made. There is no evidence that the price was reasonable even on 16 October 1939. The Court must see that the beneficiaries are protected:

Re Haji Fatimah, 6 FMSLR 154.

Re Cooper & Allen's contract, 4 Ch D 802.

Crowly v. Bergtheil, [1899] AC 374.

The appeal has been brought on principle which applies to future sales of property belonging to the estate.

I ask for a sale by public auction at a reserve of $14,000 and will undertake to offer this sum.

HR Rix.- I agree that it is the duty to obtain the best price possible, but only on the date of the bargain. The purchaser has bound himself, and the Court has a duty to him. It is no part of the duty of an administrator to try to get out of a fair bargain once he has made it.

Harper v. Hayes, 45 ER 731.

Angullia's case, [1938] 7 MLJ 185.

Lim Yew Soon v. Gan Chye Neo, 2 FMS LR 5.

JUDGMENT

Poyser CJ:

I have read the judgment of Terrell JA. I agree with it, and have nothing to add.

JUDGMENT

McElwaine (SS) CJ:

At the close of the hearing of this appeal I was disposed to dismiss it because, there being no suggestion of fraud or sharp practice in making the contract to sell to Tan Tong Hock for $12,777.50, I thought it unfair that he should be bound by his contract if the value of the land fell between the date of his contract and the date when the matter came before the Judge for approval, but should not have the benefit of his contract if the value had risen between those dates.

I was impressed by a passage of the Lord Chancellor in Harper v. Hayes, 45 ER 731 at p. 548'da9 "The Vice-Chancellor seems to have been much influenced by the undertaking of Harper, when the cause stood for