JUDGMENT

Barakbha LP:

I have had the advantage of reading the judgment of my brother MacIntyre FJ with whom I agree that the appeal must be allowed with costs to the appellants here and in the Court below.

MacIntyre FJ:

This is an appeal against the decision of Mr. Chang Min Tat J at the High Court in Penang dismissing a claim by the appellants for a declaration that they, as the personal legal representatives of the estate of one AN Kathiravaloo Assaree, deceased, are the owners in fee simple of two pieces of land situate in the North East District of Penang forming part of a land comprised in Grant No. 168 and known as lots 447(3) and 447(4), Township Subdivision, 9W (hereinafter referred to as the said lands) and for consequential reliefs.

The said AN Kathiravaloo Assaree (hereinafter referred to as the deceased) had mortgaged the said lands in 1929 to one Muthu Karuppan Chettiar to secure the payment of a sum of $1,500 and interest there on. The loan was never repaid. He died intestate on 11 August 1936, leaving surviving a widow, the first appellant herein, and two infant children. Neither the deceased nor the first appellant had ever lived on the said lands. In October 1937, the first appellant married the second appellant. After the death of the deceased, Muthu

Karuppan Chettiar made no demand for the principal or interest due on the mortgage deed. He is said to have left Penang for good and his whereabouts are now unknown. In 1950 the appellants jointly applied for letters of administration to the estate of the said deceased in respect of the said lands. The grant was made on 23 May 1950 but was not extracted until 14 September 1965. In the meanwhile, one Khatijah binti Che Mat Ibrahim (hereinafter referred to as Khatijah), the wife of the respondent herein, having sworn a statutory declaration on 30 May 1955 before a commissioner of oaths at Penang, claiming to have been in peaceful possession of the said lands for over fifteen years, executed on the same day a deed poll wherein she purported to convey the said lands in fee simple to one Ooi Boon Kay. Then on 10 October 1958, the said Ooi Boon Kay executed a deed of conveyance which purported to convey to the respondent the said lands in fee simple.

The writ in the instant case was issued on 19 November 1965. The appellant's claim right of possession to the said lands as the personal legal representatives of the true owner and aver that the respondent is in possession by virtue of the conveyance dated 10 October 1958, executed by Ooi Boon Kay, who had no right title or interest in the said lands to convey an estate in fee simple. They aver that he could not have acquired any such right title or interest under the deed poll because Khatijah herself could not have, in law, acquired an estate in fee simple by long possession for 15 years before 30 May 1955.

The respondent in his statement of defence claims validity of title by virtue of the deed of conveyance executed to Ooi Boon Kay and the validity of the conveyance to him by Khatijah, who he claims had acquired an estate in fee simple in the said lands by being in adverse possession for over 15 years before the execution of the deed poll of 30 May 1955. He pleads, therefore, that the suit is barred by limitation under the provisions of ss. 9(1) and 18 of the Limitation Ordinance, 1953. Section 9(1) reads:-

9(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person."

Section 18 reads:-

18. At the determination of the period limited by this Ordinance to any person for bringing an action to recover land the right and title of such person to the land for the recovery whereof such action might have been brought within such period, shall be extinguished."

In considering the defence of limitation, however, the provisions of the Malayan Un