Siti Norma Yaakob JCA:

The principal issue raised in this appeal is whether the doctrine of frustration applies as to discharge the parties in these proceedings from their obligations under the sale and purchase agreement entered into between them. That issue arose from the following undisputed facts.

On 28 August 1974, the appellant became the registered proprietor of a 275 share in land held under Lot 569, GM 26, Mukim 7, Seberang Perai Tengah, Penang. The other 275 share formed the only asset of the estate of one Hatijah binti Haji Jusoh, (the deceased) who died on 17 June 1924. The estate was administered by the deceased's husband, one Mat bin Musa but when he died on 12 December 1945 without fully administering the deceased's estate, the respondent, being the sole beneficiary took over the administration of the estate on 24 July 1975 and it was in her capacity as the Administratrix of her grandmother's estate that the respondent entered into a sale and purchase agreement (the agreement) with the appellant to sell the deceased's 275 share of the property to the appellant. By this sale, the appellant stood to be the proprietor of the whole property which covers an area of 4.5805 acres.

The agreement dated 19 December 1979 was subject to, inter alia , the following terms and conditions:

(1) Paragraph (c) of the preamble imposed an obligation to obtain a Kathi's Certificate to determine the persons entitled to share the estate and to their respective entitlements.

(2) Clause 1 fixed the purchase price at RM40,000 of which RM4000 representing 10% of the purchase price was paid by the appellant to the respondent at the time agreement was executed.

(3) Clause 2 provided for the balance of the purchase price of RM36,000 to be paid by the appellant within a period of two calendar months from the date of receipt of the notice by the appellant that an Order Court sanctioning the sale had been granted to the respondent.

The obtaining of the Order sanctioning the sale is again emphasised in clause 4(e) of the agreement being one of the preconditions of the sale and it was pursuant to this precondition, that the respondent, the Administratrix of the deceased's estate filed Originating Summons No. 633 of 1979 in the Penang High Court on 21 December 1979 seeking leave to enforce the agreement by the sale of the deceased's 275 share of the property to the appellant.

Nothing came of this application as subsequent events show that the application in its original form could not be proceeded with.

On 7 March 1980, the Kadhi Besar Penang acting under s. 43 of the Administration of Muslim Law Enactment, 1959 (since repealed) issued a "Sijil Feraid" distributing the 275 share of the property in the estate of the deceased to the respondent and Bait-ul-Mal in the proportion of a 275 share each. This meant that in respect of the whole property the respondent was entitled to 274 share beneficially whilst the other 274 went to Bait-ul-Mal.

The effect of the "Sijil Feraid" or Kathi's Certificate was to disable the respondent from fulfilling her obligation under the agreement to sell the deceased's 275 share of the property to the appellant. This led to numerous correspondence and meetings between the parties and the Religious Department in attempts to enforce the agreement. The appellant offered to purchase Baitul-Mal's 274 share of the property but this sale never took place as the appellant considered the value of RM153,000 asked for by the Religious Department to be exorbitant and prohibitive. On the other hand the Religious Department was prepared to purchase the respondent's 274 share of the property for RM20,000 but this offer too was not taken up by the respondent. After that all attempts at a compromise with the Religious Department failed and the matter became a stalemate.

Up to 1991, no further action was taken on the matter until 20 February of the same year when the respond