JUDGMENT

Arifin Zakaria CJ (Malaya):

Introduction

(1) This is an appeal by the appellants against the decision of the Court of Appeal dated 1 September 2009 dismissing the appellants appeal. Leave to appeal was granted by this court on 19 July 2010 on the following question:

Whether the Deed of Sale and Irrevocable Power of Attorney, executed prior to the commencement of section 205 of the National Land Code 1965, is an instrument of dealing in respect of an alienated land, within the provisions of section 205, of the National Land Code 1965, read with sections 5 and 206 to 211 thereof; and if it is not an instrument of dealing, whether the prohibition in section 205 (3) applies to the Deed of Sale and Irrevocable Power of Attorney.

In this judgment, the respondents will be referred to as the plaintiffs and the appellants as the defendants as in the trial court.

The Facts

(2) The facts relevant to this appeal are briefly as follows:

By the deed of sale and Irrevocable Power of Attorney dated 7 October 1978 ("the Deed of Sale"), the plaintiffs purchased from the defendants late father ("the deceased") 21,000 square feet ("the said portion") in the land comprised in GM 482 (previously known as EMR 381) Lot 261, Mukim Plentong, Daerah Johor Bharu, Negeri Johor ("the said land"). The said land is subject to the category "agriculture". The plaintiffs paid the full purchase price of RM42,000.00 and entered into possession of the said portion of the land.

(3) The deceased passed away on 17 November 1978. The defendants then obtained a distribution order as beneficiaries of their late fathers estate, where the said land, including the said portion, was transmitted to the defendants as registered proprietors in equal shares.

(4) The plaintiffs then requested the defendants to transfer the said portion to them but the defendants refused.

(5) The plaintiffs then lodged a private caveat on the said land. The plaintiffs application to the Johor Bahru Land Administrator to vary the distribution order was rejected.

The High Court

(6) The plaintiffs filed an originating summons in the Johor Bharu High Court against the defendants but withdrew it with liberty to file afresh.

(7) Subsequently, the plaintiffs filed a writ of summons against the defendants praying for, inter alia:

(a) Specific performance of the Deed;

(b) Transfer of said portion of the subject land to the plaintiffs pursuant to the said Deed and for the plaintiffs to be made co-owners of the subject land;

(c) Alternatively, a declaration that the plaintiffs are entitled to the said land portion under the Deed and the defendants as trustees transfer the same to the plaintiffs and be made registered co-owners of the land, failing which the Senior Assistant Registrar shall execute the transfer of the said portion to the plaintiffs and that the Registrar of Titles be directed to register the same in favour of the plaintiffs;

(d) Such further relief that the High Court deems fit and equitable in the circumstances of the case; and

(e) Costs.

(8) At the end of the trial, the learned trial judge found for the plaintiffs and made the following orders:

(a) That the defendants do hold the subject land comprised in GM 482 (previously known as EMR 381) Lot 261 Mukim Pletong, Daerah Johor Bharu, Negeri Johor subject to the constructive trust created in favour of the plaintiffs to the extent of 21,000 square feet thereof pursuant to the Deed of Sale and Irrevocable Power of Attorney dated 7 October 1978;

(b)That pursuant to s. 417 of the NLC, the Registrar of Titles or the Land Administrator, as the case may be, do cause an endorsement to be entered on the register document of title of the trust aforesaid in favour of the plaintiffs herein.

(9) In relation to the issue of whether there is a binding agreement upon the terms of the Deed of Sale, the learned trial judge in his judgment held:

Upon a careful analysis of the terms of the agreement as expressed therein I have