JUDGMENT

Abdoolcader J (delivering the judgment of the Court):

The East India Company on behalf of Queen Victoria by a Grant No. 2655 made on 30 May 1845 gave and granted the land specified therein on trust to two Burmese and two Siamese (now Thai, for accuracy of terminology, and we shall so refer) named inhabitants of Penang Island elected and appointed by the Burmese and Thai Community of the Island as trustees for the management of the affairs of their temple (the Thai-Burmese Buddhist Temple at 17 Burmah Lane, Penang) erected thereon to have and to hold the same unto them as such trustees and their successor or successors in the trust without any right or power of disposal of the land so alienated or any part thereof to and in any of them or their successors in the trust to be elected and appointed by the Burmese and Thai Community or any other person or persons whomsoever but which shall remain and continue for the benefit of the Burmese and Thai Community of the Island and its dependencies forever. Succinctly stated, this is the gist of the trust instrument around which the issue in these proceedings as to the appointment of a new trustee revolves. Prior to the institution of process in this matter, the trustees were the appellants representing the Thai community and the first respondent and Maung Chan Tun who, however, had died on 19 November 1977 representing the Burmese community, and the application to Court in this case involves the appointment of the second respondent as a new Burmese trustee in place of the deceased.

A meeting of the Burmese community was held at the temple on 19 March 1978 at which the second respondent was duly elected as a trustee in place of the deceased trustee. The respondents' solicitors then applied to the Attorney General for his written consent under s. 9 of the Government Proceedings Ordinance, 1956 for the institution of proceedings for the appointment of the second respondent as a trustee of the trust but the Attorney General in his reply on 17 August 1978 suggested that another meeting be convened strictly confined to the Burmese community in Penang as it would appear this was not done in the case of the meeting in March. Another meeting of the Burmese community was accordingly held at the temple on 24 September 1978 as a result of a notice published for that purpose in the National Echo issue of 21 September 1978 and according to the minutes of that meeting at which the second respondent was duly elected as the new trustee representing the Burmese community it was attended only by members of the Burmese community resident in Penang. The Attorney General then gave his written consent as required by law on 21 October 1978 for the institution of proceedings for the appointment of the second respondent to the trust in place of the deceased trustee.

The respondents' solicitors wrote to the three surviving trustees on 3 November 1978 referring to the election of the second respondent as a trustee by the Burmese community, and requesting them as the surviving trustees to appoint the second respondent as a trustee of the trust under their statutory powers to that effect to obviate the necessity of applying to court. We would digress to point out that all the references in the proceedings in the High Court to the Trustee Ordinance, 1949 are incorrect as the Ordinance was revised and superseded by the Trustee Act, 1949 (Act 208) which came into force on 15 November 1978 and entailed a rearrangement of the sections in the statute. The appellants as the Thai trustees by a letter of 24 November 1978 written through their solicitors objected to the appointment of the second respondent for reasons which were later canvassed in these proceedings and which we will presently have to advert to.

In the circumstances, the first respondent as the surviving trustee for the Burmese community and the second respondent, armed with the written consent of the Attorney General under s. 9 of the Government P