HAJI ABDUL RAHMAN V MOHAMED HASSAN [1917] AC 209

Judges: Lord Dunedin, Lord Buckmaster,Lord Parmoor, Sir Walter Phillimore, Bart.
This was an appeal case from judgement of the Court Of Appeal for the Federated Malay States
(January 5, 1914) affirming the Court of the Judicial Commissioner for the State of Selangor.
The facts of the case is that the Plaintiff, Mahomed Hassan claimed to be entitled against the
defendant Haji Mahomed Eusop(now appellants), to a piece of land in Kuala Lumpur, held
under certificate title 626. The said laid originally belonged to one Mr.Keyser which later
transferred the said land to the plaintiff through his attorney in August 1894. The plaintiff at
first had paid the land by granting a promissory note in favour of the attorney. Somehow the
plaintiff was unable to discharge the note and here comes the defendant to help him by being a
surety for Mahomed Hassan. As for the promissory note it was substituted by a joint note
between the Plaintiff and the Defendant. Later, the joint note was discharged as the defendant
had paid out the amount of the said land. On March 1, 1895, the land of plaintiff was transferred
by him to the defendant by a registered transfer and there was an agreement made between
both parties which set that the plaintiff was indebted to the defendant and as he cannot pay the
amount at that particular time, his land is being transferred to the defendant as a security for
the repayment of the said sum he was indebted.
The condition of the agreement is that, within six calendar months from the date, the plaintiff
must settle his debt to the defendant and if it was settled then, the defendant must reconvey the
said land to the plaintiff or otherwise the agreement will be void. The defendant had obtained
registration under the document of transfer and had become the registered owner of the land.
Later, the plaintiff claimed for the land as he argued that he had paid the indebted amount to
the defendant. The relief was granted by the trial judge towards the plaintiff and was affirmed
by majority in the Court Of Appeal. Defendant appealed and he was represented by his legal
representatives as he had died.
The argument brought by the plaintiff in the trial was that he argued that the agreement, on
a proper construction proved that what was ex facie an out-and-out transfer evidenced by the
registered title, was in reality only a conveyance in security, therefore he was entitled to
reconveyance of the land upon paying the debt.
The Defendant argued that on a true construction the agreement showed, not a conveyance in
security but a transfer with conditional contract for resale; a pactum de retrovendendo and that
payment was not completed within the stipulated time, therefore there has no obligation to
reconvey. He also pleaded that if the agreement on construction showed a conveyance in
security, then it was null and void in terms of s.4 of the Registration of Titles Regulation, 1891.
The trial judge had comes to conclusion that the transaction was one of conveyance in security,
and not of transfer with appended pactum de retrovendendo.
The dissenting judge in the court of Appeal also thought that the agreement was a pactum de
retrovendendo condition by payment within the stipulated time of six months.
In the view of their Lordships it was irrelevant to decide that question by the trial judge, and
they assume that the construction put upon the particular document made by the trial judge was
a correct one. However, there was a question raised, which is whether the agreement, if
showing a conveyance in security was null and void in respect of s.4 of the Registration of
Titles Regulation, 1891. The land system of the state of Selangor in which the land in dispute
is situated, is a system of registration of title modelled of the Torrens System of Australia.
Ratio Decidendi
Their Lordships was of the opinion that, the learned judges in this case have been influenced
with the doctrine of the English equity and did not paid attention to the fact that they were
dealing with a totally different land law which is the system of registration of titled contained
in codifying enactment. Therefore, the right to the land remains with the registered owner under
the system of registration.
It was held that, the appeal was allowed and the judgements of the courts below were reversed
and the suit was dismissed with costs both in the Federal Court and the courts below.

KANDASAMY V SUPPIAH

Date of Judgment: 1919

Court: Selangor Magistrate’s Civil Appeal
Judge: Innes, A.C.J.C.
Cause of Action: To declare an agreement entered by the appellant is void.
Facts:
The defendant-appellant was previously sued by the plaintiff-respondent in the Second
Magistrate and the appellant appealed.
In this case, a promissory note was executed by the defendant when he was 18 years old in
favour of the plaintiff.
Issue:
Whether the defendant was a minor under the law of these States.
Judgment:
S11 of contract enactment 1899 enacts that a person of age of majority according to the law to
which he is subject to is competent to enter into a contract. The magistrate held that since there
is no enactment defines the age of majority for general purposes, he interpreted the words “to
the law to which he is subject to” as meaning the personal law of the contracting party. In this
case, the defendant’s personal law is Hindu law which places the age of majority at 16.
However, the magistrate was in error as under Common Law which is in force in these states,
the age of majority for general purposes in these states is 21. Thus it should be applied.
Ratio Decidendi: The age of majority for general purposes in the Federated Malay States is
21.
Decision:
The appeal is allowed. The D is not competent as he was only 18 when he executed the
promissory note.

IN RE THE WILL OF YAP KWAN SENG DECEASED

Date of Judgment: 24th July 1924

Court:
Judge: Sproule, Acting C. J. C.

Material Facts
The testator gave land and houses to be held in trust for ever for a family house for ancenstral
worship and a family burial ground.

Issue
Whether these trusts for a family house and for a family burial ground are or are not void by
reason of perpetuity (eternity); and if so, whether the corpus of trusts falls into residue.

Judgment
The argument was on three grounds:-
i) That the rule against perpetuities does not exist in and should not be adopted in the
Federated Malay States
ii) That even if the rule be applied, the trusts are saved from offence against it by the
proviso “so far as may be without infringing any laws which may be in force for the
time being in Selangor.
iii) That having regard to Chinese customs the trusts should be regarded as religious
and charitable and therefore without offence to the rule.

For the first argument, on whether the rule of perpetuities exists in or should be introduced into
the Federal Malay States. It was agreed that the rule has never been yet applied in these States.
The argument against the rule is based partly upon the facts of its novelty, but mainly upon its
being a rule and conditions of these States.
However, the court claimed that the argument that the rule has never yet been applied does not
appeal to the court with very great force and that it is important to know that its local
introduction and application have never been condemned or refused; and upon this point the
court is reassured by the Counsel before him.
Nevertheless, the rule is alleged to be unsuitable by reason of the danger of its hampering
religious charitable Mohammedan or Chinese endowments. The court will be tender, if upon
no other ground than that of public policy, to respect religious customs and to protect every
good wakaf and every god Chinese or other charitable endowment.
The court was actually convinced that the rule of perpetuity should be introduced, however
claimed that whatever the soundness or suitability of the rule, it is for the legislature to accept
or reject it, and that it is no function of the court to introduce or make new law.

The second argument was seen as clear and simple by the court where it is settled law that the
presence of words of this kind does not justify the Court in putting a forced construction on the
will in order to save the Testator’s provisions from the penalty of remoteness, unless the trust
is really executor, of which there is no question in the case.
The court then decided that in this case, the Testator leaves no room for ambiguity, but in terms
makes these trusts perpetual.
For the third argument, where it was argues that these trusts constitute a charitable use and are
therefore inoffensive to the rule, the court referred to the case of Choa Choon Neo where Sir
Benson Maxwell, CJ had carefully examined in detail the nature and ceremonies of ancestral
worship and held that it was not a charitable use.

The court held that the trust for a “family burial ground” therefore, is reduced, in fact, to a trust
for the upkeep of two tombs, and no counsel before him attempted to argue that that was a goof
charitable trust, per se.

Nevertheless, according to the highest judicial authority, it has been held that a trust for family
house and ancestral worship is not a good charitable use but the court pointed out that he does
not in any way expresses or feels any lack respect or consideration for ancient Chinese customs.
At the same time, it is necessary that the exact nature of Testator’s trust should be understood.
The court explained that it was impossible to regard these trusts either as trusts for religious
purposes or as trusts concerning or benefitting the community at large or any portion of it. It
follows that they are in no way to be saved or expected from repugnancy to the rule against
perpetuities, and are therefore void.

Thus, the court finally held that since the trusts were void ab initio as offending against the rule,
the property fell into residue by operation of law, and it is unnecessary to consider whether
Testator’s gift over to residue is void or not for remoteness.

Decision
The costs of all parties will be taxed as between the solicitor and client paid out of the residue.

MOHAMED GUNNY V. VADWANG KUTI

BURTON, J.
SUPREME COURT
Ipoh. 1930. August 13,
Issue: The law of torts in this country followed the English common law, and the maxim “Actio
personalis moritur cum person” applied. The maxim means, ‘a personal action dies with the
person’.
The Executive (Powers) and Fatal Accidents Enactment has no retrospective effect.
Facts of the case:
30th August 1929 – The plaintiff died but his administrator, Mohamed Gunny, was substituted
as plaintiff by order dated 10th March 1930.
Plaintiff argued as a preliminary point that the right of action against the plaintiff as a tort feasor
did not survive to his son. The decision of this point rests upon the interpretation of section 3
(iii) of “The Executive (Powers) and Fatal Accidents Enactment, 1929”.
“An action may be maintained against the executor of any person deceased for any
wrong committed by him in his lifetime for which he would have been subject to an action
provided that such wrong has been committed within one year before such person’s death and
provided that such action is commenced within two years after the committing of the wrong.”
3rd January, 1930 – The Enactment came into force upon publication in the Gazette. The time
this Enactment came into force, Burton J have no doubt that the law in this country followed
the English common law and the maxim applied.
The defendant tried to argue the contrary but although no code of civil wrongs has ever been
passed, the Courts in this country in matters of tort have always followed the law of England.
Judgment: In this case, the defendant had no right of compensation on 2nd January. Judge
Burton said he did not think that the Enactment can be read to give the defendant a right to
compensation for the same tort on 3rd January. The general rule is that a retrospective operation
is not to be given to a Statute so as to impair an existing right or obligation.
Held: The defendant has no right to compensation for the improper arrest and gives judgment
for the plaintiff for $1,000 and costs.

THE MOTOR EMPORIUM V ARUMUGAM

TERRELL AG CJ
HIGH COURT OF SELANGOR (Appeal case)
13th April 1933
Issue:
1. Whether English principles of equity apply in the Courts of the Federated Malay States.
2. Whether an execution creditor can only attach an interest in property to which, at the
time of the attachment, the debtor was beneficially entitled.
Facts of the case:
15th September, 1932 – Kanagasabhai, the second defendant entered into a contract with the
Public Works Department to supply certain granite blocks in connection with the work being
carried out upon the Mosque at Klang. The contract is not disputed and the amount payable to
the second defendant on supplying the granite was $390.
17th September, 1932 – The second defendant, in consideration of $150, assigned to the
plaintiff his right under the indent, and authorized him to draw the $390 from the office of the
Public Works Department, Klang.
On some date which is not specified - The Motor Emporium, the first defendants, obtained a
judgment against the second defendant in Telok Datoh Civil Suit 70/32 for $149.99. This
judgment was confirmed on appeal by the Supreme Court in Kuala Lumpur on the 30th
September, 1932.
Having obtained confirmation of this judgment, the first defendants thereupon sought to obtain
execution. They knew of the $390, which was shortly to become payable to the second
defendant, and proceeded to attach it. Presumably they did not know about the letter in writing
that stamped on 17th of September.
Now the property they wanted to attach was money in the hands of a public officer, namely,
the Senior Executive Engineer, and accordingly, the provisions of section 273 of the Civil
Procedure Code, apply. This section says that when the property to be attached is in the custody
of any Court or Public Officer, the attachment shall be made by a notice to such Court or Officer
requesting that such property may be held subject to the further orders of the Court from which
the notice issues.
4th October, 1932 - , the first defendants, the decree holders in the Telok Anson suit, had the
suit transferred to Klang for execution, by the letter to the Secretary to the Resident for his
consent.
26th October, 1932 - In respect of the $390, the appellant obtained judgment against the
judgment-debtor and, in pursuance of that judgment, served a prohibitory order, obtained under
section 273 of the Civil Procedure Code, on the Senior Executive Engineer, Klang.
Judgement:
The rights of the parties are governed by section 265 (i) of the Civil Procedure Code - the only
property liable to attachment is property in which the judgment debtor has a beneficial interest.
If he has parted with such beneficial interest, the property is not attachable, and it makes no
difference whether the property is held by the debtor himself or by a third person on his behalf.
It is quite impossible to say that such a transfer of right to receive the money is tainted with
illegality, on the ground that it is contrary to public policy, or that it is in conflict with direct
statutory provision. In the Contract Acts, it is argued that certain sections were exhaustive and
does not touch the assignment or transfer of the benefits arising under a contract but such
benefits can be assigned in accordance with the principles of the English law.
Under section 49 (i) of the Courts Enactment, the Supreme Court has the widest possible
jurisdiction in all suits, matters and questions of a civil nature, and although the legislature has
given no indication on what principles such jurisdiction should be exercised.
Held: The defendant had in fact, transferred such interest and accordingly nothing remained
for the appellant to attach. Therefore, the appeal is dismissed.