MALAYSIA LAND LAW: PRIVATE CAVEATS

1. ILYANA ISKANDAR
PRIVATE CAVEATS
1) INTRODUCTION
a. PC referred as a general or personal caveat
b. Entered on RDT to any land by Registrar upon application by persons seeking to
protect the title or interest they are trying to protect or establish.
2) MEANING OF CAVEAT
a. likened (Disamakan)to an injunction that is aimed at keeping the disputed
property in status quo.
b. Damodaran v Vasudeva - a caveat is nothing more than a statutory injunction to
keep the property in status quo until the court has had an opportunity of
discovering what are the right of the parties.
i. It’s general process is to suspend the process of registration until
conflicting claims have been settled.
ii. a unilateral act and no person can create rights in his own favour nor
enlarge or add to his existing proprietary rights by means of a caveat.
c. Miller v Minister of Mines - an interim procedure designed to freeze the position
until an opportunity had been given to a person claiming a right to an unregistered
instrument to regularise the position by registering the instrument
3) EFFECT OF PRIVATE CAVEAT S.322(2) & (3) NLC
a. Effect of private caveat is to bind the land itself or a particular interest in the
land.
b. Private caveat is effective as a temporary injunction & effect of:
i )preventing registration of any dealings including a certificate of sale on the land
ii)preventing entry of Lien- Holders Caveat
iii) preventing endorsement of Tenancy exempt granted by registered proprietor
c. Exceptions:
However, S.322(5)(a) & (b) NLC provides Private Caveat shall not prohibit the
registration or endorsement of any instrument or claim where:
i. instrument was presented or application for endorsement was made by the
person or body at whose instance the caveat was entered; or

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ii. the instrument is accompanied by a consent in writing from the caveator
consenting to the registration of the instrument
 Macon Engineers Sdn. Bhd. v Goh Hooi Yin - “the effect of a caveat is
that no instrument effecting the land can be registered while it is in force.
The entry of the caveat does not make the claim or right either better or
worse.”
 Wong Kim Poh v Saamah Bt Hj. Kasim - The effect of the Private
Caveat expressed to bind the land itself is to prevent any registered
disposition of the land except with the caveators consent until the caveat is
removed.
 Eng Mee Yong v Letchumanan - A private caveat does not have the
effect of altering the ownership of the land or interest. It merely functions
as a notice of a claim and priority of a claim. There is no restriction as to
the number of caveats that may be entered on a title. The priority is
accorded according to the order of endorsement.
4) PROCEDURES ENTRY OF PRIVATE CAVEAT S.324 NLC
a. Private Caveat is entered by filling in the prescribed statutory Form 19B stating
expressly whether the Caveat is to bind the land itself or only a particular interest
in the land.
b. If the caveat is to bind only a particular interest in the land, the Caveator must
attach a plan of the affected area.
c. Application - Form 19B - supported by a Statutory Declaration affirmed by
person seeking to enter Caveat (Caveator) and prescribed fees.
5) REGISTRAR’S POWERS
a. S.322(1)(a) NLC - Registrar “may” enter private caveat upon application by
persons in S.323
b. Registrar in entering a private caveat is acting purely in administrative capacity.
c. Registrar is obliged to enter caveat on RDT to disputed land upon receiving an
application from any person or body.
d. Registrar has to check if application is in order as follows:

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i. The statutory form 19B is duly completed, executed and attested;
ii. Accompanied by a Statutory Declaration made by the caveator;
iii. Prescribed fees payable to Land Office.
e. Upon examining application form, Registrar is required to ensure that caveatable
interest is clearly shown on application form.
f. Registrar must make endorsement as provided in S.324 NLC by specifying:
i. Time and Date of Making Entry.
6) LIMITED POWERS OF REGISTRAR
a. Registrar has no discretion to refuse to enter a private caveat if it fulfils all
prescribed requirements.
i. Nanyang Development (1966) Sdn. Bhd. v How Swee Poh - The role of
the registrar in entering the caveat is purely administrative, he must grant
the application by making the necessary endorsement on the register.
7) S.324 NLC - TIME PC TAKE EFFECT
a. PC is effective form time of receipt of application and not from time of
endorsement on RDT
b. PROSPECTIVE not RETROSPECTIVE
8) S.322(6) NLC - EFFECT OF PC ON INSTRUMENTS OF DEALING
a. Registrar must reject instruments presented for registration if PC is entered to
bind land and will have to inform parties pursuant to S. 298 or 317 NLC
procedures.
9) S.323(1)(A)(B)&(C) - WHO CAN ENTER PC
a. A person or body can apply to enter a private caveat if he has a ‘caveatable
interest’:
b. any person or body claiming title to, or any registrable interest in, any alienated
land or any right to such title or interest;
c. any person or body claiming to be beneficially entitled under any trust affecting
any such land or interest; and
d. guardian or next friend of any minor claiming to be entitled under any trust
affecting any such land or interest.

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e. person or body seeking to enter PC must be parties capable of affecting dealings
with land or interest with land pursuant to:
i. S.43 NLC clearly specifies capacity of persons allowed to deal with
alienated lands;
ii. S.205(2) NLC -persons capable dealing with land
iii. S.433A NLC provision also is relevant in providing for dealings with
Non-citizens.
f. To be caveatable, the claim must represent a claim that can lead to the making of
a substantive entry on the register, either because the interest will become
registrable or because it is one for which equitable relief by way of specific
performance can be sought to enable ultimate registration. If the claim does not
represent a transaction capable of potential registration, then the claim is not
caveatable as the caveat procedure.
g. A personal claim, enforceable against proprietor and not land, cannot be caveated.
h. There is a distinction between an in personam interest which is purely personal
and which cannot by court relief bind the land, and an in rem or in personam and
ad rem interest which can bind the land without the need to resort to court
assistance.
i. “any person or body claiming title to, or any registerable interest in any alienated
land.”
i. First limb ‘any right to such title and interest’ refers to the interest which
can be caveated is that of a person claiming to have an unregistrable
interest, that is a claim which is in its present form capable of causing a
substantive entry to be made on the register.
ii. Claimant does not have an instrument in a registerable form.
iii. 'title in alienated land' refer to statutory or legal estate and illustrate that
claimant expects to become proprietor of land on completion of
transaction behind the caveated claim.
iv. It is an interest which is supported by consideration and it results from the
entry into a valid and enforceable contract of sale; alternatively, the right

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comes from a completed gift, or a perfectly constituted trust, or by way of
succession.
j. Second limb that is worded as “any right to such title or interest”
i. This refers to interest which can be caveated under this heading is that of
the claimant who has an unregistrable interest, i.e. a claim which is not in
its present form capable of causing a substantive entry to be made on the
register.
ii. Eg. claimant does not have an instrument in registrable form, or it is
unclear whether his interest would be registrable, and so on.
iii. claim must represent a claim that can lead to making of a substantive
entry on register, either because the interest will become registrable or
because it is one for which equitable relief by way of specific performance
can be sought to enable ultimate registration.
iv. If claim does not represent a transaction capable of potential registration,
then claim is not caveatable as caveat procedure is actually an interim
procedure designed to freeze register until an opportunity has been given
to a person claiming a right under an unregistered instrument to regularize
position by registering instrument.
v. Failure to fulfil requirements, and even in circumstances where parties
have a caveatable claim, PC cannot be retained and can be removed by:
1. Registrar -S.326 NLC
2. By Court - S.327 NLC
vi. To be caveatable, the claim must represent a claim that can lead to the
making of a substantive entry on the register, either because the interest
will become registrable or because it is one for which equitable relief by
way of specific performance can be sought to enable ultimate registration.
vii. If the claim does not represent a transaction capable of potential
registration, then CLAIM is not caveatable
viii. A personal claim, enforceable against the proprietor and not the land,
cannot be caveated.

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ix. distinction between an in personam interest which is purely personal and
which cannot bind land without court order
x. EM Buxton & Anor v Packaging Specialists Sdn Bhd - Caveator agreed to
buy caveated land but defaulted, resulting forfeiture of deposit. caveator
refused to continue because 56% of land is subejct to land acquisition. it
denied the right of vendor to forfeit deposit and wanted refund. Proprietor
to remove PC saying that caveator had no caveatable interest caveator
claimed that although his interest was an unsecured debt, it had arisen out
of a land transaction and so should be caveatable.
xi. However, the caveator was '... seeking a refund of deposit paid to account
and other sums alleged to have been incurred.
xii. It is not claiming specific performance of agreement and by so doing,
caveator has clearly shown an intention that it was no longer interested in
purchasing the property.
xiii. To that end, it cannot be said that it had any interest in the land capable of
being registered.
xiv. From the nature of the civil suit, the caveator has only a claim in personam
against the proprietor for which a caveat is not the proper remedy as a
means of protecting such a claim.
xv. Such claim originated from agreement but it is not capable of being
registered under Torrens system'.
10) S.323(1)(A) NLC - IS CONSTRUED AS REFERRING TO TWO DIFFERENT
CIRCUMSTANCES GIVING RISE TO CAVEATABLE INTERESTS
a. First limb – “any person or body claiming title to, or any registerable interest in
any alienated land.”
i. situation where claimant has unregistrable interest. However, the claim in
its present form is capable of causing a substantive entry be entered in
RDT title.
ii. Unregistered BUT Registrable interest or title
b. Second limb - any right to such title or interest.

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i. This is a situation where a claimant has an unregistrable interest. The
claim in its present form is not capable of causing a substantive entry be
entered in the register document of title.
ii. Unregistered and unregistrable title or interest.
iii. A caveatable interest exists if there is a right to title or registrable interests
in land where the holder of such right acquires immediate right or a right,
which will arise upon completion of registration of dealing.
iv. Krishna Kumar v UMBC Bhd - proprietor charged land for funds for
benefit of companies of which he was MD. On default, a 3rd party agreed
to provide additional security, subject to consent of 1st chargee. However,
consent was refused on basis that the second chargee had delayed in
sending the documents to the first chargee. The second chargee then
caveated the land.
v. Goo Hee Sing v Will Raja & Anor- Permission of State Authority was
necessary to enable vendor to sell; as this had not been received, it was
held that potential purchaser had no valid contract and thus no registrable
or caveatable interest.
vi. Miller v Minister of Mines - Indeed it is axiomatic” (clear on its face / self
evident) that a personal claim enforceable only against the registered
proprietor but not the land cannot be caveated.
11) CAVEATABLE INTEREST OF BENEFICIARY UNDER AN EXPRESS TRUST
a. S.323(1)(b) NLC provides that person or body claiming to be beneficially entitled
under any trust affecting any such land or interest may make an application to
enter a private caveat to protect interests in land held under trust by a trustee. The
beneficiary must show the existence of a trust affecting the land or interest therein
and that the claimant is beneficially entitled thereunder, otherwise the entry of the
caveat will not be sustained.

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i. If the beneficiary is a minor, then the application to enter a caveat can be
made by his guardian or next friend.
ii. Protection for the minor beneficiary can also be given by a registrar's
caveat
iii. A trustee can seek to enter a Trust caveat if the circumstances require him
to prevent any dealings on the trust property.
b. PC by beneficiary under express trust
i. Khoo Teng Seong v Khoo Teng Peng - the caveators were two of several
residual beneficiaries of the testator's land of which the applicant was the
trustee and executor. It was observed that '... a trustee of property held in
trust as well as a beneficiary of any trust property is entitled to enter a
caveat.
12) WHETHER A REGISTERED PROPRIETOR CAN APPLY TO CAVEAT HIS
OWN LAND
a. Private caveat available to persons or body specified in S.323 (1) NLC.
b. A registered proprietor is not a party to a transaction which seeks to confer title to
him since he cannot prove the existence of a claim he has against his own land.
c. registered proprietor is prohibited from caveating his own land, unless he can
show the existence of an interest to that arising beyond his legal proprietorship.
i. Re An Application by Haupiri Courts - proprietor cannot lodge a caveat
against dealings under the New Zealand Land transfer Act 1952 merely
because he is the registered proprietor.
ii. EU Finance Bhd v Siland Sdn Bhd (M&J) Frozen Foods Interveners -
a registered owner could not seek to enter a caveat over his own land
because a registered proprietor is a person who relies on his status as a
registered proprietor must necessarily be a person already possessing title
or interest in land and not merely a person claiming title to or any interest
in that land and must as a matter of logic be excluded by the language of
S.323(1) NLC.

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iii. registered proprietor must go further and establish some set of
circumstances which affirmatively gives rise to a distinct interest in the
land distinguishable from that which he holds as registered proprietor.
iv. Syarifah Mastura bte. Tuanku Ibrahim v Wan Aziz Ibrahim - serious
issue to be tried in a pending action does not clothe a person with a
caveatable interest but that it is only relevant when considering whether a
proper and valid caveat ought to be removed pending the disposal of the
action relating to the caveat.
v. a contrary view - Hiap Yiak Trading Sdn Bhd & Ors. v Hong Soon
Seng SB - a registered proprietor may caveat his own land.
vi. A registered proprietor may seek the discretion of Registrar to enter a
Registrars Caveat.
1. Boonsom Boonyanit v Adorna Properties
d. Can a person or body who has an interest or right on a specific portion part of a
land lodge a private caveat to protect his interest over such portion.
i. Compare provisions of Ss.5 and 214 (1)(a) with S.322(1) NLC.
1. N. Vangedasalam v Mahadevan & Anor - a person who claims
an interest in a specific portion of land may caveat the whole land.
However, he must state expressly that the effect of his caveat is to
cover only the particular interest claimed.
ii. In 1985, the amendment to S.322 (1) NLC brought about the additional
proviso, which states that, “provided that such a caveat shall not be
capable of being entered in respect of part of land.”
1. The amendment to the Land Code in Jun 2001 enabled a private
caveat entered over the whole of the land but expressly specified to
bind only a specific interest in the land to be permitted statutorily.
13) S.328(1) NLC - Duration or Life Span of Private Caveat
a. remains in force for a period of six (6) years after which duration the caveat will
lapse and cease to have any effect.

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14) REMOVAL OF PRIVATE CAVEATS
a. Lifespan of a private caveat is for a period of six years unless it is sooner
withdrawn by the Registrar under s 325 or lapses under s 326(1B) or is withdrawn
by the Registrar pursuant to an order of the court under s 327.
b. The High Court has the power to extend the lifespan of a private caveat. However,
such extension should not extend beyond the duration of six years.
i. Goh Keng How v Raja Zainal Abidin bin Raja Hussin - observed that the
statutory life of a caveat is six years, and any decision of the court to
extend the life of the caveat should not do so for a period greater than the
statutory six years.
c. Private Caveat can be removed before expiry of the 6 years in the following
circumstances
i. S.325 –Withdrawal by Caveator
1. may be withdrawn by the Caveator at any time by serving a notice
in Form 16G on the Registrar together with the prescribed fees.
2. The Registrar upon receipt of the Notice in Form 16G shall cancel
the entry of the Caveat and note his reasons for the cancellation
and notify the registered proprietor of the land as prescribed in s
325(2) NLC.
ii. S.326 –Removal by Registrar
1. only available to any person or body having a registered title or
interest in the land who is aggrieved by the entry of the caveat
entered on the land.
2. right is restricted to a Registered proprietor; Registered chargee;
Lessee and sub-lessee
3. Tan See Hock v D&C Bank Bhd. & Anor - it was held that a
chargee who has lost his interest over the disputed land cannot
seek to remove a caveat by making an application to the Registrar.
4. S.326 NLC makes provision for the registered proprietor of the
land or interest to apply to the Registrar for removal of the caveat.
Section 327 allows a 'person aggrieved' by the existence of the

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caveat to apply to the court for its removal. Under s 326(1), the
Registrar serves notice on the caveator (ss(2)), and if no action is
then taken the caveat lapses after two months (ss(1B)).
5. Under s 327, the court makes an appropriate order and the
Registrar removes the caveat in accordance with the terms of that
order pursuant to s 417;
6. Application for removal of a private caveat can be made in Form
19C, by a person whose title or interest is affected by the presence
of the caveat. An Application must be made before the registration
of a dealing by the caveator or by another party with the consent of
the caveator (see s 322(5)). The application is unnecessary where
the caveat has lapsed under s 328.
iii. S.327 –Removal by Court
15) RIGHTS OF CHARGEE OR INTEREST HOLDER TO APPLY TO REGISTRAR
TO REMOVE PRIVATE CAVEAT
a. The provision use the word ‘interest’ refer to a registered interest, which would
include a registered charge. As such, this section can only be utilized by a
registered owner or a person with a registered interest which would include a
registered chargee;
b. Unregistered interest holders does not have the right to seek to apply to
remove the PC.
i. Tan See Hock v Development & Commercial Bank
1. Tan See Hock v Development & Commercial Bank - the first
defendant is not a registered chargee and has no legal right to
proceed by way of this section [s.326]. By doing so, it would
render the acts of the Registrar including the issuance of Form 19C
ultra vires.
2. When such acts are ultra vires, Form 19C has no legal effect on the
plaintiff [proprietor] and the caveats should remain where they are
the Code, has by itself already determined the life span of a caveat.
The caveats lodged remain until their life-span expire, under s 328

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(unless extended) or until any other application to have it set aside
before its expiry.'
3. Ss(1A)-Serve upon the person or body the notice in Form 19C.
It was held in Alagarsamy v Tai Phaik Kee, that service of Form
19C notice need not be personal, the special provisions of s431
regarding the mode of service of notices can be invoked. In this
case the registered proprietor (as a personal representative of the
deceased proprietor) contracted to sell the land to the caveator; the
caveat was entered. It was then withdrawn by the caveator. The
parties again contracted, and again a caveat was entered. The
registered proprietor then applied to the Registrar to cancel the
second caveat, claiming defects in the contract. The Registrar
issued notice in Form 19C which was served at the caveator's
residence on an adult member of the caveator's family.
4. The Registrar removed the second caveat. The caveator then
entered a third caveat on grounds similar to those of the second
caveat. The proprietor then applied under s 329(2) for its removal.
5. The caveator in that action claimed that he had no actual
knowledge of the Form 19C. However, the court said that service
in the manner achieved was adequate; in the circumstances, as the
second caveat had been removed by the Registrar, s.329(2) did
operate to prevent a further caveat on the same or similar grounds.
6. The fact that the title to Form 19C was omitted from the Gazette
Notification (under s 432(1)(b)) was of no consequence as such
notification itself stated that notice to cancel the caveat was being
given.
16) FROM TIME TO TIME EXTEND THE SAID PERIOD OF TWO MONTHS.
a. Where the caveator wishes to object to the removal of the caveat, he can apply to
the court for an extension of the two-month period, bearing in mind that there can
be successive actions but that all actions must be made within the extended
period.

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b. Ding Poi Kooi v Nazaruddin bin Sahie - where the court held that the word
'extend' merely enlarges or gives further duration to any existing right rather than
re-vests an expired right.
c. When the court grants the extension, the order is served on the Registrar who is
required to endorse the register with the details of that order. This application
does not test the validity or 'caveatability' of the claim protected, but is merely
designed to extend the time for retention of the caveat on the register.
d. In considering whether the caveat should be extended, the court will look to any
other action taken by the caveator; for example, if the caveator is seeking specific
performance of an agreement between himself and the proprietor, the court would
be more likely to extend the time than where the caveator merely applies for
extension.