Mahadev Shankar J:

[1] On the face of it this is an application for an extension of a caveat pending the conclusion of a suit in this Court. But a question of paramount importance it raises is whether a caveatable interest is acquired by a purported purchaser of land which has a restriction in interest that it cannot be sold, pledged, charged or transferred in any manner without the permission of the State Authority.

[2] The land comprised in HS (M)1592 No PT Batu 2 in the Mukim of Sepang (the said land) was alienated to the first defendant on 26 October 1987. The special condition read as follows:

Sekatan-Sekatan Kepentingan

Tanah ini tidak boleh dijual, dipajak, digadai atau dipindahmilik dengan apa cara sekalipun tanpa kebenaran Pihak Berkuasa Negeri.

[3] In the face of this restriction the first defendant entered into a purported deed of sale of the said land to the plaintiff on 9 September 1988, for a sum of RM32,000. There is no reference whatsoever to the said restriction in the Deed of Sale. Nor has it been explained why the figure of RM32,000 has in places been deleted and substituted with a sum of RM25,000. The plaintiff holds himself out in this Court as an illiterate person who only understands Hokkien and claims not to have understood what he was signing. Nevertheless he was wise enough to lodge a caveat (the said caveat) the very same day against the said land in reliance of this Deed of Sale. Since he would have had to swear a statutory declaration in support of the caveat, his alleged ignorance of the contents of the Deed of Sale must be taken with more than just a pinch of salt.

[4] One week later on 5 October 1988 the parties executed another document whereby the first defendant gave the first plaintiff a cheque for RM40,000 by way of security for the transfer of the said land which the plaintiff is said to have bought for RM32,000. This cheque was to be forfeited by the plaintiff if the said land was not transferred to the plaintiff. The plaintiff has signed this document by way of confirmation that he had received the cheque. The document does not state when the said land was to be transferred to the plaintiff. Once again the plaintiff claims he did not know what he was signing and also says did not receive the cheque.

[5] The land was not transferred. There is no evidence that the required consent from the Pihak Berkuasa Negeri (ie the State Executive Council) was ever applied for, let alone obtained.

[6] Counsel for the first defendant informed the Court that in early February 1990 the parties agreed that RM40,000 aforesaid would be paid by instalments with six post dated cheques. The first for RM10,000 was cashed personally by the plaintiff. The other five bounced. The plaintiff then filed Telok Datuk Magistrate Court Summons No 52-8-91. Contentious affidavits were filed by both parties. On 23 September 1992 the parties appeared before the learned Magistrate in Open Court. Both the plaintiff and the first defendant were represented by Counsel. A Consent Order was then made whereby a default judgment obtained by the plaintiff against the first defendant was set aside and a further Consent Order was made whereby the first defendant was ordered to pay the plaintiff RM28,000 in full settlement of his claims within fourteen days of the sealed order being served on him whereupon the plaintiff was obliged to have the said caveat cancelled within fourteen days thereafter.

[7] But the plaintiff refused to accept the RM28,000 when it was tendered to him. Instead he applied on 9 October 1992 to have the Consent Order set aside on the ground that, even though he was present in Court when it was made, he was not properly briefed by his own Counsel of the terms of the Consent Order and that therefore it was not binding upon him.

[8] That application was heard on 30 November 1992 and it was dismissed by the learned Magistrate. Against that order of dismissal, the plaintiff's solicitors say there is a pending appeal No 12