Lord Templeman:

This was an appeal from the decision of the Federal Court reported in [1981] 2 MLJ 127.

The appellant and the respondent in this case were step-brothers. Their father was the Karta or manager of a joint family estate which included land at Port Dickson registered in the name of the Karta and held under Hindu law in trust for the Karta, the appellant and the respondent in equal shares. On 2 April 1951 the respondent brought a civil suit asserting that all property held by the Karta belonged to the joint family estate and claiming an account of the amount due to the respondent from the joint family estate or from the Karta. In aid of his civil suit the respondent lodged a caveat against lands registered in the name of the Karta. By a subsequent consent order made in the proceedings the caveat was ordered to be withdrawn with the exception of the caveat in respect of Lot 538 in the town of Port Dickson, which was ordered to remain registered "until further order of the Court" against the said lot.

In 1964 a receiver of the joint family estate was appointed. In 1974 the Privy Council on appeal in the civil suit proceedings reported their opinion that the accounts of the joint Hindu family estate should be supplied from 15 July 1950. (See [1974] 2 MLJ 133). The Karta died in 1972. In 1973 the appellant initiated a probate suit in the High Court. In 1977 the Federal Court on appeal ordered that the probate of the will of the Karta be granted to the appellant "subject to the proviso that before disposing of or distributing any property bequeathed under the will or the proceeds of such property, there shall be an order to that effect." (See [1978] 1 MLJ 120).

The respondent alleged maladministration and breaches of trust by the Karta and the appellant in connection with the joint family estate.

In 1978 the appellant applied by originating summons for leave to sell Lot 538. In his affidavit the appellant explained that when the joint family estate was put into the hands of the receiver, the Karta in his lifetime and the appellant after his death were forced to borrow money at high rates of interest. The appellant wished to discharge these borrowings out of the two-thirds share of the proceeds of Lot 538 attributable to the Karta and the appellant and to invest any balance in high yielding securities. In 1979 an order was made with consent of the appellant and the respondent for leave to sell Lot 538 for a minimum price of RM1,239,213.50. It was ordered that the net proceeds of sale after payment of taxes should be divided as to two-thirds to the appellant and one-third to the respondent. For the purpose of effecting registration of the transfer to the purchaser, the receiver was directed to release the documents of title to the appellant.

The respondent was asked to withdraw the caveat but he declined to do so unless the Karta's share of the net proceeds of sale was placed on deposit as security for the claims of the respondents against the Karta's estate. The appellant applied by summons for an order that the caveat be removed and cancelled. Ajaib Singh J ordered the caveat to be removed and cancelled but the Federal Court allowed the appeal against the order.

The appellant with the leave of the Federal Court appealed to the Yang di-Pertuan Agong.

The Judicial Committee of the Privy Council advised that the appeal should be allowed and the order made by the High Court restored. Lord Templeman in giving the advice of the Privy Council said:

When the Court in the probate action directed that the Karta's property should not be disposed of or distributed the order was made in order to protect the respondent's claims in respect of the joint family estate. The protection afforded by the order included the power of the respondent to prevent a sale of lot 538 unless the Court authorised a sale.

When the appellant sought leave to sell lot 538 he made it quite clear that he intended, if leave were granted, to dispose of