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HIGH COURT MALAYA IPOH
BACHAN SINGH – Appellant
Versus
MAHINDER KAUR & ORS – Respondent
[Originating Summons No: 134 Of 1954]
[1] In discussing this case I wish to avoid as far as possible the technicalities of the English law relating to trusts and equitable interests.
[2] I do not think I am overlooking anything that was said in the Port Swettenham Rubber Co case [1913] AC 491; Innes 202 or Abdul Rahman's case [1917] AC 209; 1 FMSLR 290. I feel compelled, however, to observe that in my experience a great deal of the difficulty and confusion which sometimes attend actions relating to land in this country arise from the no doubt well-intentioned efforts of Counsel to force our local law into conformity with conceptions of the English law which really have very little relevance.
[3] To my mind, many of the difficulties which appear to arise in these cases would not arise if we were to bear in mind throughout the distinction between rights ad rem or personal rights and rights in rem or real rights. Where there is a valid binding contract for the sale of land, the purchaser, when he has performed his side of the contract, acquires a right ad rem which is also a right in personam. In other words, he acquires a right to the land as against the vendor personally but not good against the world as a whole and, in due course, that right can become a real right good against the world as a whole on registration in accordance with the Land Code which has the same effect in our law as appearance before the Praetor in the law of Rome, delivery of seisin in the old English feudal law and infeftment by registration in the Register of Sasines in the modern Scots law.
[4] Now, these observations are not academic. They are made to remind myself and to remind Counsel of something we all know but are apt to overlook and which is a consideration in the light of which we must consider the particular transaction with which I am concerned in this case.
[5] On the face of it the original transfer by the respondent must be regarded, as must every transfer in the statutory form, as prima facie evidence of an antecedent oral contract to sell the land.
[6] In the present case, the respondent has said that any such contract was void and unenforceable because it was induced by duress. I have considered the respondent's evidence on this point and I am not prepared to accept it. She said her husband was aware of the facts which she said amounted to duress. But although it was admitted that the husband was available he was not called as a witness. Moreover, she said that almost immediately she went out of possession in favour of one of the purchasers. And yet for a period of ten years she has made no attempt whatsoever to regain possession.
[7] I must, therefore, hold that the antecedent contract was a binding contract.?
[8] Under that contract her obligation was to execute a valid transfer capable of registration in terms of the Land Code. At or about the time of the contract she did all that was required of her That has not turned out to be sufficient but I do not think I need discuss the point because no demand has been made upon her that she should do anything further.
[9] Nevertheless, the point is that when that contract was made the purchasers acquired a right ad rem and in personam to the land which so far as the vendor was concerned they were entitled to have erected into a real right. I am not prepared to say that that amounted to an equitable right. I prefer to regard it as a legal right of the nature of a chose in action.
[10] Subsequently, and I think the process of devolution is clear, the power to deal with these personal rights of three of the purchasers has passed to the present applicant and I can see nothing in the wording of the second Power of Attorney (which is the one in his favour) which in any way restrains his power to deal with these rights. If he wishes to deal with these rights by vesting them in or rather transferring them to himself and taking the necessary step to convert them into real rights he is entitled to do
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