JUDGMENT

Lee Swee Seng J:

[1] There was a piece of agricultural land near Jalan Pahang in Setapak, Kuala Lumpur of about 1.3 hectares. It was held under GM 1748, Lot 275, Mukim Bandar Kuala Lumpur, Tempat Batu 3, Setapak, Wilayah Persekutuan Kuala Lumpur ("the said land"). It was registered in the names of about 85 proprietors; most of them senior citizens. From the undivided shares of the whole of registered proprietorships owned by each proprietor expressed in fractions on the title, it can be surmised that the whole piece of the said land had been passed down from their forebears to the current owners. Some of them have died and so some have the names of their personal representatives registered against the deceased's undivided share. Almost all the registered proprietors are Malays.

[2] Some 31 of the proprietors were prepared to and did sign an Option to Purchase ("OTP") dated 18 November 2000 with one Mr Amit Chhabra a/l Ashok Kumar Chhabra ("Mr Amit") to sell the said land for RM2,000,500.00. Later on 20 November 2000, Mr Amit assigned his rights in the OTP to the plaintiff. Basically the 31 proprietors warranted and represented to Mr Amit that all the registered proprietors had agreed to sell their respective undivided shares in the said land to Mr Amit or his nominee for the said purchase price and further that all the registered proprietors had agreed jointly and severally to sign the OTP with the plaintiff. The rest of the 54 proprietors did not sign the OTP.

[3] Be that as it may, the 31 proceeded to sign a sale and purchase agreement with the plaintiff for the sale of their respective undivided shares of the whole of the said land for a purchase price of RM2,000,500.00. The 31 will of course only be paid based on their portion of the undivided share. The various sale and purchase agreements were signed with each of the 31 proprietors between February 2001 and May 2002.

Problem

[4] The sale and purchase agreements executed contained a clause that reads:

"The vendor agrees covenants and undertakes to procure the consensus and consent and to ensure that all other registered co-owners shall transfer their respective shares to the purchaser or its nominees". The problem endemic in the sale of such a land where the majority have not signed the OTP nor the sale and purchase agreement and where some of the registered owners have died was peculiarly addressed in the completion clause. It was provided that other than the payment of 10% of the purchase price for the respective undivided shares of the owners who signed the sale and purchase agreements, the balance 90% will only be paid within 90 days upon the happening of the last of four events.

[5] The four events are: (a) upon letter of administration having been taken for any registered owner who is deceased or probate as the case may be; (b) upon a court order pursuant to s 60(3) Probate and Administration Act 1959 having been granted for the approval and consent to transfer by any personal representative or executors; (c) upon the date the last registered owner having executed the sale and purchase agreement to transfer his undivided shares to the purchaser and; (d) upon the vendors' solicitors written confirmation that the original issue document of title is in their possession.

[6] Nothing happened after the sale and purchase agreements were signed with the 31 proprietors; not from the evidence adduced at least. On 28 March 2007 the plaintiff as purchaser, wrote to the vendors' solicitors Messrs Khalek Awang & Associates ("KAA") and gave the vendors a three months' notice and a further extension of two months till 31 August 2007 to procure the rest of the registered owners to execute the OTP and/or sale and purchase agreement.

[7] The plaintiff tendered payments of the cheques for the balance purchase price by cheques dated 20 and 23 November 2007 (pp 13-21 Bundle B2). The question may be asked why the plaintiff was so keen as to fast forward the completion date even before the