Land Law 1 HISTORICAL BACKGROUND OF LAND LAW IN MALAYSIAPresentation Transcript
Background of land
law in Malaysia
1.The Straits Settlements
• Penang & Malacca
1.The Federated Malay States
• Perak, Selangor, Negeri Sembilan, Pahang
1.The Unfederated Malay States
• Kedah, Johor, Perlis, Kelantan, Terengganu
Straits Settlements: Penang
• Ong Cheng Neo v. Yeap Cheah Neoh (1872) 1 Ky. 255,
…the island was wholly uninhabited when the English arrived. It
was really immaterial to consider whether the island should be
regarded as a ceded or newly settled territory for there is no trace
of any laws having been established there before it was acquired by
the East India Company.
• English land law was introduced into Penang by the First
Charter of Justice 1807.
• Wholly subjected to English land law as there was no
form of local tenure.
• Malay customary land tenure of the Kedah should have
been regarded as the lex loci of the island.
Straits Settlements: Malacca
• British acquired Malacca in 1824 by virtue of the Anglo-Dutch Treaty
• At the time, Malacca has its own land tenure system, consisting of
Islamic law and Malay Custom.
• Sahrip v. Mitchell & Anor
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.
• Then the land law that prevailed was the Malay customary tenure
with the system of Dutch Grants implemented in the urban areas.
• At the turn of the 19th century, the English Deeds System was
• The Malay Customary Tenure was abolished.
• 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.
Characteristics of Malay
customary land tenure
• Proprietary rights: Nature of ownership is not one of absolute
ownership but is based on ‘proprietory rights’, where the
right of ownership extends not to the soil but to the usufruct
or the right to utilise the soil.
• Method of acquiring land: by opening up and cultivating
virgin jungle land or waste land.
• Rights of the Ruler:
The Sultan had the discretion to grant the right of possession
(not ownership) of the land to his subjects. Such rights of
possession included the right to succession and the right to deal
in the land either by way of sale, transfer, pledge, etc.
To receive one-tenth of the proceeds of the land as tax.
To forfeit the land if the land was neglected or abandoned for
any substantial period of time without any reasonable cause.
The owner would lose all his rights therein.
• Pulang Belanja (Return of expenses): If the owner
wishes to sell his land, the price which he could expect
from the purchaser would be the sum total of his labour
and expenses incurred in cultivating and developing the
• Jual Janji: (land is held as security for a loan). Involves
the sale of a land with the condition that the buyer shall
retransfer 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 (jual putus).
Federated Malay States
• Perak, Selangor, Negeri Sembilan, Pahang.
• Independent states under sovereign Muslim rulers.
• The Pahang Consolidated Company Ltd v The State of Pahang
(1933) MLJ 247
• The Privy Could held that the Sultan of Pahang is an absolute ruler in
whom resides all legislative and executive power, subject only to the
limitations, which the Sultan has from time to time imposed upon
himself in the circumstances
• In the FMS, there are no Charters of Justice and the British Common
Law was not introduced until the passing of the Civil Law Enactment
No.3 of 1937.
• In Duff Development Company v. Kelantan Government, a letter
received from the Under Secretary of State for the Colonies with
copies of the relevant treaties stated that Kelantan was an
• Shaik Abdul Latif & Ors v Shaik Elias Bux  1 FMSLR 204,
• The court had to consider what law to apply in relation to a will
drawn up by a Muslim who lived and died in Selangor.
On each occasion when the introduction of British influence upon the
administration of the States has been formally recognised by their Rulers
the only law which existed and was accepted by the Malays and other
Mohammedans as applicable to questions of inheritance and testamentary
dispositions was that of Mohammad modified in a few districts by local
• On appeal, it was further clarified:
The British treaties with the Ruler of these States merely provided that the
advice of the British administrators should be followed and in accordance
with such advice, Courts have been established by Enactment, British
Judges appointed, and a British administration established…
• With the coming of the British administrators in the Federated
Malay States, Malay customary tenure soon gave way to the
• The first Torrens legislation in the Malay States was the
Selangor Registration of Titles Regulations of 1891
Unfederated Malay States
• Kedah, Johor, Perlis, Kelantan, Terengganu.
• Came later in time.
• Land tenure was also the Malay customary tenure influenced
in some instances by Thai law (particularly in Kedah & Perlis)
• British gained possession of these states in 1909 pursuant to
the Anglo-Siamese Treaty.
• Late 19th and early 20th century, the Torrens System was
THE TORRENS SYSTEM
Introduced during the British colonial rule by WE
Maxwell after he came back from Australia to observe
the land tenure there. It was observed that the Torrens
System suited the Malaysian land tenure system.
The Torrens System was first introduced into the FMS.
There was already a system of land law based on Malay
custom and Islamic law then.
Tengku Jaafar & Anor v. The State of Pahang (1987)
2MLJ 74: the land law in Pahang before the introduction
of the Torrens System was the Islamic law of the Shafii
How the Torrens System was
General Land Regulations
Negeri Sembilan, 1887
Perak, Selangor, Negeri Sembilan & Pahang Land Enactments
Registration of Titles Regulations/Enactments
Perak and Pahang, 1897
Negeri Sembilan, 1998
FMS Enactments of 1911
• All were repealed with the formation of a central legislature.
• New uniformed law in 1911:
Federated Malay States Land Enactment 1911
Registration of Titles Enactment 1911
• Divided land into two categories:
1. The Land Enactment dealt with the registration of country
lands less than 100 acres in area on a Mukim land
2. The Registration of Titles Enactment dealt with registry lands
(town lands and country land exceeding 100 acres and
• Incorporated basic Torrens principles:
• 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;
• All dealings in land must be in the prescribed form and must be duly
registered with the relevent authorities. Land title should not be
conveyed by an instrument in writing executed by the landholder
but by the registration of that instrument.
• Failure to do so so would render the dealings null and void – case Hj
Abdul Rahman & anor. V. Mohamed Hassan.
• Owners of land are given indefeasibility
• The traditional method of acquisition of virgin land or waste land
was abolished – Sidek & 461 Ors v. Govt of Perak;
• Forms of dealings were recognised;
• Two forms of caveats were recognised;
• Continued in force until repealed by the Federated Malay
States Land Code 1926 -amended in 1928.
• The 1928 Land Code was repealed and replaced by the
National Land Code 1965.
1928 FMS Land Code
A consolidation and improvement of the pre-existing laws).
Changes introduced:a. The principle of indefeasibility of title was more clearly
b. Adverse possession against individual owners of land is no
c. Customary tenure under Adat perpatih is preserved;
d. The strictness regarding compliance with statutory form and
registration as indicated in Hj Abdul Rahman’s case.
e. Specific types of cultivation were enforced.
The situation then
• One uniformed Land Code for FMS
The FMS has a uniformed land law with consistent land
• Five separate State legislation in each of the UFMS
•Johor Land Enactment
•Perlis Land Enactment
•Kedah Land Enactment
•Kelantan Land Enactment
•Terengganu Land Enactment
• The English Deeds system still prevailing in the Straits
Settlements of Penang and Malacca.
Towards a National Land
• The Reid Constitutional Commission in its report suggested
that the 1928 FMS Land Code to be the model used by the
legal draftsmen to work on a new National Land Code in order
to achieve uniformity for all the nine Malay states and the two
• The new 1965 National Land Code came into force on 1st