JUDGMENTBY: TERRELL, AG CJ, POYSER, CJ (FMS), GORDON-SMITH, AG JA

TERRELL, AG CJ One Haji Maimunah binte Haji Abdul Wahab died on the 19th day of February, 1921, leaving a will dated the 21st January, 1921. She appointed Inche Mohamed to be her executor, and he proved the will on the 27th October, 1921. Inche Mohamed died on the 24th March, 1938, and the first defendant is executor of his will. The first defendant is accordingly derivative executor of Haji Maimunahs will. As executor of Inche Mohameds will he would be responsible for breaches of trusts and devastavits committed by Inche Mohamed as executor of Haji Maimuahs will, but only in so far as he had in his hands assets of Inche Mohameds estate. The formal order does not make this clear, and the first defendant is ordered to account on the footing of wilful default as if he were the defaulting executor. The costs, however, were ordered to be paid out of the estate of Inche Mohamed and not by the first defendant personally.

Under the will of Haji Maimunah a certain house at Klebang Ketchil, Malacca, and the land on which it was built, were specifically devised to the plaintiffs who were her grandsons, being the sons of Maimunahs son Raof. The residuary legatees were the sons of the testatrix, Raof and Haji Ahmad. Raof held the testatrixs power of attorney prior to her death, and the land at Klebang was registered in his name. It was customary land within the meaning of the Malacca Customary Rights Ordinance (Cap. 125). It appears that Raof taking advantage of the situation fraudulently borrowed $ 10,000 on the security of the land from K.V.A.L. Valliappa Chetty prior to Maimunahs death.

On April 22nd, 1921, before Inche Mohamed had obtained probate, Raof wrote to him acknowledging that the land, though in his name, was the property of Maimunah, and that he had charged the land with $ 10,000--which he had borrowed from K.V.A.L. Valliappa Chetty. He authorised Inche Mohamed to pay the charge on the Klebang property and debit his share in the estate. Unfortunately the executor never had enough money attributable to Raofs share to repay the $ 10,000, and on the 29th December, 1922 Raof by arrangement with his equitable mortgagee, transferred the land to one Somasundaram Cherty for $ 10,700. This was apparently sufficient to satisfy K.V.A.L. Valliappa Chettys debt, but the specific devise in favour of the plaintiffs became of no effect.

The plaintiffs alleged that Inche Mohamed paid other moneys to Raof although his debt of $ 10,000 had not been repaid, and also that he sold certain land to himself and the second defendant as trustees at an undervalue, and they ask that the conveyance implementing such sale be set aside. They also asked for an account against the first defendant on the footing of wilful default.

It is clear that the plaintiffs can only be entitled to relief if they can show that they have some interest in Maimunahs estate.

There are two main defences; first that the land being customary land, a devise thereof was nugatory, and secondly that the land having been charged prior to the death of the testatrix and having been sold in pursuance of such charge, the devise failed.

As regards the first point, the learned trial Judge says in the course of his judgment, "It may be that under the law this was a mere nugatory devise. I do not think this is a point I have to decide in this action". With all respect to the learned Judge it appears to me that this issue calls for decision, since, if the devise was nugatory the plaintiffs never had any interest, and consequently cannot now be entitled to any relief.

Mr. Braddell for the respondents on the appeal replied on the evidence of F. M. Beins, a Deputy Collector of Land Revenue Malacca. He says that the land in question was customary land registered in the name of Raof, who applied in July 1919 for its conversion into a statutory land grant. In cross-examination he said: "The application was approved in Sept

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