Chang Min Tat J:

This is an application under the provisions of O. 54A r. 1 Rules of the Supreme Court for the construction of a deed of settlement, the main issues being whether the provision as to 600f the trust property did or did not offend against the perpetuity rule and whether the provision as to the remaining 40 did not fail by reason of impossibility of performance or failure of object.

A first point was taken, in my view, validly, by Mr. Lim Kean Chye for one of the respondents, whether the application could be considered by me in the absence of the original document, In anticipation of this objection, the trusteeapplicants had filed an affidavit explaining, that the original deed was lost in the looting consequent on the military invasion of this country by the Japanese. This explanation is in my view reasonable and there is no reason to hold that it was not the truth. The document relied on was taken from the copy deposited in accordance with the statutory provisions relating to the registration of deeds at the Registry of Titles for the State of Perak. At the time of the deposition, the registry was at Taiping. It had since been removed to Ipoh, which rather facilitated the matter.

In order to settle any doubts in the matter, I called for a personal inspection of the copy deposited It was, as was the practice in those ear days before the typewriter became of universal use, written by hand and though designated a copy, was duly signed and attested and stamped. I could not have sight before the hearing, but it was on the understanding, with Counsel that if I should find any discrepancy with the copy relied on, I was to call for further hearing. I had inspection with Mr. Sivalingam who appeared with Mr. Lim Kean Chye, and both he and I are entirely satisfied that the copy in the hands of the trustees is a true copy of the deed of trust.

Now as to the background of the settlement: The settlor a man of considerable means and great consideration for the welfare of his numerous progeny after his death had on 12 June 1929 executed a deed of trust to provide for his sons, adopted-sons, grandsons and adopted grandsons. All female children were excluded. There are 2 cl. in this deed of trust which are of concern in this construction.

Clause 7 which deals with the distribution of the income from the trust is in these words:

7. After the property described by the settlor under his will shall have been distributed as therein directed, after paying the foregoing amounts under cll 5(a)-(h) hereof the nett income arising from the trust property shall be paid by the trustees as follows:-

(1)Ten (10%) per cent thereof shall be paid by the trustee for charitable objects and purposes as they in their discretion shall think fit, and any balance shall form part of the residuary trust property.

(2)Thirty (30%) per cent thereof shall be remitted by the trustees to the managing trustee of Ken Huin Kongsi, Moyang or Swatow, in China. If Moyang or Swatow shall not be peaceful, this money shall not be sent, but shall be invested in Ipoh or Penang on first class landed security until suchtune as Moyang or Swatow shall be peaceful.

(3)Sixty (60%) per cent thereof shall be paid to and divided amongst the sons, adopted sons and grandsons and the sons of grandsons of the settlor and who shall either be living at the time the property directed by the settler's will shall be distributed or who shall be born thereafter, in equal shares, share and share alike, should any of the sons, adopted sons or grandsons living at the time the said income is distributed as aforesaid be aged 30 years and have no male issue he may adopt for the purpose of receiving a share in the said sixty (60%) per cent income one son who shall then be entitled to receive a share in the said income. Should any son of the settlor have two (2) sons such son shall not be entitled to adopt any more sons. All female children shall be excluded from any interest or s