Idris Yusoff J

The applicant married the respondent some time in l968, but unfortunately some years later, they encountered a number of matrimonial problems which led to both of them living apart. Attempts at reconciliation were made but proved futile. They, therefore, decided to petition for divorce.

As a prelude to filing the divorce petition, both parties agreed that the applicant was to execute a power of attorney in favour of the respondent covering two properties described below:

(a) PT 413 section 19 Bandar Kota Bharu held under HS(D) KB121/71 together with a double storey house erected thereon; and

(b) 1/3 undivided share in Lot 934 Mukim Bukit Merbau, Jajahan Pasir Puteh, Kelantan held under Grant 15346.

The said power of attorney was prepared by a solicitor on the instructions of the respondent; and on or about 2 February 1986, the applicant, as requested, went to the office of Messrs HS Lim, Teo & Partners, advocates and solicitors, 1st floor D & C Building, Jalan Gajah Mati, Kota Bharu where he executed the said power of attorney. The said power of attorney was registered at the High Court, Kota Bharu and was expressed to be irrevocable, much to the chagrin of the applicant, as was later borne out when he contended that the provisions for the irrevocability of the power of attorney and regarding the consequences thereof were never explained to him. He claimed that when he executed the power of attorney, he believed that it would reflect all the points that had hereinbefore been agreed to between both parties. On realizing the contrary, he came to this court on a notice of motion for the orders that 'the said power of attorney be declared null and void ab initio and of no effect, and accordingly any dealings or transactions transacted by the respondent of the said power of attorney be declared null and void; that the senior assistant registrar or the relevant officer of the High Court, Kota Bharu do cause the registration of the said power of attorney be revoked or cancelled with immediate effect' and consequently, that a private caveat entered by the respondent on the said two properties on 16 April 1986 be removed.

However, after considering the affidavits in reply filed by and on behalf of the respondent, the applicant decided to retract the issue of irrevocability and instead proceeded on the premise that the power of attorney, having contravened the provisions of s 7(i) of the Kelantan Malay Reservations Enactment No 18 of 1930 ('the Enactment') was null and void ab initio. As set out above, one of the orders initially sought for was to impugn the validity of the power of attorney covering both properties, but in the course of hearing, the applicant, for some unexplained reasons decided to abandon his challenge in respect of Lot PT 413 section 19 Bandar Kota Bharu — thereby leaving the court with the task of ascertaining the validity pertaining only to the 1/3 undivided share in Lot 934, Mukim Bukit Merbau, Jajahan Pasir Puteh ( hereinafter referred to as 'the said land').

On referring to relevant documents, the following facts are not disputed:

Date Facts

(27) October 1920 Grant No 15364 Bukit Merbau Pasir Puteh was registered in the name of one Nik Mohamed Salleh bin Nik Omar.

(1) January 1931 The said land was gazetted as Malay reserve land pursuant to Grant No 57–30.

(15) May 1933 The said land was transferred to Wee Hian Thim (1/3), Wee Song Thiet (1/3) and Wee Song Tam (1/3).

(15) May 1967 Wee Hian Thim transferred his 1/3 undivided share to the applicant.

(17) June 1967 Wee Song Tam transferred to Wee Tiang Hong his 1/3 undivided share

(17) December 1968 The applicant and respondent registered their marriage.

(1) March 1972 Wee Song Tam transferred to Wee Tiang Kim @ Wee Tian Keng his 1/3 undivided share.

(2) February 1986 Wee Tiang Peck (the applicant) gave a power of attorney to Teoh Poh Tin (the respondent) without obtaining the approval of the Ruler-in-Council.

Hence, the issue to be decided