The Straits Settlement The Federated Malay States; The Unfederated Malay States.
Privy Council in the case of Ong Cheng Neo v. Yeap Cheah Neoh (1872) 1 Ky. 255 ..the island was wholly uninhabited when the english arrived. It held that it was really immaterial to consider whether the island to consider whether the island should be regarded as a ceded or newly settled territory for there is no trace of any laws having be established there before it was acquired by the East India Company.
English Common Law and Equity was introduced in the SS as a result of three Charter of Justice passed by the English parliament. 1807- after acquisition of Penang 1826 – after acquisition of Malacca and Singapore. 1855 – pass the English deeds system
..when the English took over the reign from the Dutch after Anglo-Dutch Treaty 1824, Malacca has its Lex loci, consisting of blending of Islamic law and Malay Custom. Land law was the Malay customary tenure, with the system of Dutch grants implemented in the urban areas.
It is well-known by the old Malay law or custom of Malacca, while the sovereign was the owner of the soil, every man had nevertheless the right to clear and occupy all forest and waste land subject to the payment to the sovereign of one-tenth of the produce of the land so taken.
Nature of ownership – not one of absolute ownership but “proprietory rights”, where the right of ownership extend not to the soil as such but to the usufruct or the right to utilise the soil;
Usual method of acquisition of land is by opening up and cultivating virgin jungle land or waste land; Whilst maintaining the land under continuous cultivation, the owner was obliged to pay one-tenth of the proceeds to the Rulers as tax;
If the land was neglected for any substantial period of time without any reasonable cause, it would be forfeited by the Ruler and the owner would lose all his rights therein;
If the owner wishes to sell his land, the price which he could expect from the purchaser would reflect the sum total of his labour and out-of-pocket expenses incurred in cultivating and developing the land . – pulang belanja means return of expenses.
If the owner wishes to borrow money on the security of his land, Malay custom recognizes the transaction as jual janji, which is basically a sale transaction with a collateral agreement by the buyer to sell back the land to the borrower upon the latter paying back an identical price before a stipulated date. If the buyer fails to do so, the sale agreement becomes absolute, in which event the transaction becomes known as jual putus.
In Malacca, Malay Customary Tenure was abolished towards the end of the nineteenth. In 1891, a law was passed by the English administrators - all land shall be deemed to be “vested in the Crown” – following the English Law of property.
Were independent states under sovereign Muslim rulers. The Pahang Consolidated Company Lid. V. The state of Pahang (1933) MLJ 247 The Sultan of Pahang is an absolute ruler whom resides all legislative and executive power, subject only to the limitations which he has from time to time imposed upon himself.
….In the Federated Malay States there are no Charters of Justice, and the common law was not introduced until the passing of the Civil law Enactment No. 3 of 1937.
The court had to consider what law to applyin relation to a will drawn up by a muslimwho lived and died in Selangor. The trial judge. held that the Islamic law wasto be applied .
The British treaties with the Ruler of theseStates merely provided that the advice of theBritish administrators should be followed andin accordance with such advice, Courts havebeen established by Enactment, British Judgesappointed, and a British administrationestablished…….
With coming of the British administrators in the Federated Malay States, the rules of MCLT soon gave away. 1st torrens legislation in the Malay States was Selangor Registration of Titles Regulations of 1891
Came later in time. Northern states of Kedah and Perlis – under Siamese influence . Trengganu and Kelantan – lesser British gain possession in 1909 pursuant to the terms of Anglo-Siamese Treaty.
When the torrens system was first introduced in the FMS, there was already a system of land law based on Malay custom and Islamic law. This was affirmed by the supreme court of Malaysia in the case of Tengku Jaafar & Anor v. The State of Pahang (1987) 2MLJ 74. in which the Lord President held that the land law in Pahang before the Introduction of the Torrens system was Islamic law of Shafii School.
Early stages of the introduction of the Torrens, the General land Regulations were enacted in all the 4 states, Perak – 1879 Selangor – 1882 Negeri Sembilan 1887 Pahang – 1888 Followed by the Registration of titles Regulation in ; Selangor 1891 Perak and Pahang 1897 Negeri Sembilan 1998
Land Enactment of 1897, enacted all the 4 states. By 1911,these several and separate states legislations finally gave way to 2 uniform laws for the 4 states, the FMS Land Enactment of 1911 and FMS Registration of Titles Enactment . Thus, uniformity of law and land administration wasfinally achieved within 6 years of the formation of the FMS, pursuant to the Agreement of 1895.
a. All lands vest in the Ruler , who has the power to alienate land to his subjects either in perpetuity of for a fixed term of up to 999 years;b. All dealings in land must be in the prescribed form and must be duly registered with the relevent authorities; failure to do so so would render the dealings null and void – case Hj Abdul Rahman & anor. V. Mohamed Hassan
c. Owners of land are given indefeasibility of title;d. The traditional method of acquisition of virgin land or waste land was abolished – Sidek & 461 Ors v. Govt of Perak;e. Forms of dealings were recognised;f. 2 forms of caveats were recognised;
The Uniform laws of 1911 perpetuated the division of land into 2 distinct categories2. The Land Enactement dealt with the registration of country lands less than 100 acres in area on a Mukim land3. The registration of Titles Enactment dealt with registry lands i.e town lands and country land exceeding 100 acres and estates
These 2 parallel legislation in the FMS continued in force until it was amended by the Land Code of 1926, which came in force in 1928 and came to be cited as the Land Code 1928
Changes introduced:-b. The principle of indefeasibility of title was more clearly defined,c. Adverse possession against individual owners of land is no longer possibled. Customary tenure under Adat perpatih is preserved;e. The strictness regarding compliance with statutory form and registration as indicated in Hj Abdul Rahman’s case.f. Specific types of cultivation were enforced.
The FMS has a uniformity of law and consistent land administration procedures. The UFMS still lagged behind…. - Johor Land Enactment 1910 - Kedah Land Enactment 1905 amended in1912 - Kelantan and Trengganu land Enactment 1938.
On the eve of independence, Federation of Malaya found itself possessed of (a) one uniform Land Code for 4 FMS (b) five separate State Legislation in each of the 5 UFMS (c) The English Deeds system still prevaling in the former SS of Malacca and Penang.
The Reid Constitutional Commission in its Report suggested…… The FMS Land code 1928 to be the model used by the legal draftmans to to work on the new draft of the NLC to achive uniformity for all the 9 Malay states and the 2 former Strait Settlements. The new Code came into force on 1st January 1966.