JUDGMENT

Ong Hock Sim J:

The plaintiff applies for a construction of an indenture dated 17 September 1930 and for a declaration that the trusts comprised in the said indenture have become impossible of performance and consequently a resulting trust of the above said lands arises in favour of the plaintiff. The ground for this application rests on the evidence of the Collector of Land Revenue, Penang and his letter dated 23 September 1966 that only part of Lot 140(1) Mk 18, NED. Penang will be permitted to be used as a burial ground. The plaintiff claims therefore there is a failure of the trust in respect of the other lands.

A similar application was made before Hepworth J in 1965 following the compulsory acquisition of four lots by the State Government. The learned Judge then did not accept the plaintiff's contention that since it is no longer possible for the lands acquired to be used as a burial ground there is a resulting trust to the plaintiff of the Proceeds of the sale. The order is now set out:

This action coming on for trial on 5 and 6 April 1965 before this Court in the presence of Counsel for the plaintiff for the first, second and third defendants and for the fourth, seventh and eighth defendants and upon reading the pleadings; and upon hearing Counsel as aforesaid IT WAS ORDERED that this action should stand for judgment and this action standing for judgment this day in the presence of Counsel for the plaintiff, for the first, second and third defendants and for the fourth, seventh and eighth defendants THIS COURT DOTH ORDER that the mid action be and is hereby dismissed AND THE COURT DOTH ORDER AND DECLARE as to prayer 1 of the counterclaim of the first, second and third defendants that the trust for a burial ground for the family of Lim Leng Cheak in terms of the indenture dated 17 September 1930 (Registered No go Vol 691) and made between Tan Say Seang Neoh of the pt 1, Lim Eow Thoon of the second part and Lim Eow Hooi, Lim Keng Chuan and Lim Seong Wah of the third part subsists no order being made in respect of prayers two, three, four, five and six of the Counterclaim AND THE

COURT DOTH FURTHER ORDER AND DECLARE as to the counterclaim of the fourth, seventh and eighth defendants that all those 14 pieces of land and hereditaments situate in the North East District of Penang and more particularly described in the Schedule to the aforesaid indenture dated 17 September 1930 (Registered No. 80 Vol 691) are held by the trustees in trust upon the terms and conditions as set out in the aforesaid indenture dated 17 September 1930 (Registered No. 80 Vol 691) AND THE COURT DOTH FURTHER ORDER that the sum of $147,349.59 deposited in Court together with all interest earned therefrom be paid to the first, second and third defendants as trustees of the said indenture dated 17 September 1930 (Registered No. 80 Vol 691) AND IT IS FURTHER ORDERED that the costs and incident also of the first, second and third defendants of this action and their counterclaim and the costs and incident also of the fourth, seventh and eighth defendants of this action and of their counterclaim be taxed as between party and party on the higher scale of the Second Schedule to the Rules of the Supreme Court, 1957 and when taxed to be paid by the plaintiff to the said defendants AND IT IS FURTHER ORDERED that the costs and incidentals of the Solicitors for the first, second and third defendants be taxed as between solicitor and client on the higher scale of the Second Schedule to the Rules of the Supreme Court, 1957 and when taxed the difference between party and party cost and solicitor and client costs be paid out of the fund: in the hands of the trustees AND IT IS LASTLY ORDERED that execution be stayed pending appeal and if appeal is filed then until the decision of the Court of Appeal.

The matter went on appeal to the Federal Court and a consent order in terms following was made on 19 April 1967:

1. that the costs of all parties herein and i