LAND LAW CASES

INSYIRAH MOHAMAD NOH LAND LAW I (CASES)
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TEMPORARY OCCUPATION LICENSE S.65 – 69 NLC
Mohamed v Kunji Mohidin [1966] 2 MLJ 24
The plaintiff was the holder of a temporary occupation licence of a small plot on a
piece of land for a house site and also a licence to pluck coconuts from 34 trees on the land.
Subsequently the defendant obtained a temporary occupation licence in respect of the same
piece of land for the purpose only of rearing poultry. The defendant came on to the land and
cut down 16 coconut trees, 4 rambutan trees, 4 jackfruit trees and 2 guava trees. The plaintiff
was awarded $2,000 by way of damages for trespass in the Sessions Court and against this
judgment the defendant appealed.
Held: The plaintiff had a valid licence to pluck coconuts from the trees and was therefore in
possession and entitled to bring the action for trespass.
Julaika Bivi v Mydin [1961] 1 MLJ 310
In his statement of claim the plaintiff, the holder of a Temporary Occupation Licence,
alleged that the defendant was in wrongful occupation of a house on the said land and prayed
for an order of ejectment plus damages for trespass, costs and ancillary relief. At the time the
plaintiff received her Temporary Occupation Licence the defendant was in possession of part
of the house, he having been in possession with the consent of the previous holder of the
Temporary Occupation Licence. The defendant pleaded that he was in possession.
Held:
1) An action for ejectment in tort will lie at the instance of a holder of a Temporary
Occupation Licence against a trespasser;
2) Although as against the original holder of the Temporary Occupation Licence when he
went into possession the defendant would never become a trespasser, as against the
plaintiff he was a trespasser when the previous title was cancelled with the consent of the
holder and a fresh Temporary Occupation Licence issued;
3) Even if the defendant were not a trespasser in land, the plaintiff was entitled to recover
possession and mesne profits on the facts and the statement of claim should be amended
thus.
The correctness of the defendant's form of pleading doubted.

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Hee Cheng v Krishnan [1955] 1 MLJ 103
The plaintiff in this case claimed for specific performance or alternatively for damages
for a breach of contract entered into between him and the defendant for the purchase of a
house built upon a piece of land in respect of which a Temporary Occupation Licence was
issued.
Held: The alleged contract was in fact an attempt to sell and to purchase defendant's rights
under the Temporary Occupation Licence and therefore unlawful by reason of s. 24 of the
Contracts (Malay States) Ordinance, 1950.
Paruvathy d/o Murugiah v Krishnan s/o Doraisamy [1983] 2 MLJ 121
In this case the appellant was the holder of a temporary occupation licence of a piece
of land in Seremban. The respondent built a house on the land and claimed that he was
entitled to do so by virtue of a document made between the appellant and himself and one
Thangavelu whereby the appellant gave "equal shares" in the land to the respondent and
Thangavelu. The appellant claimed possession of the land and house. The respondent claimed
that he had a right to stay on because of the document executed by the appellant and because
he had built the house at the request and with the consent of the appellant.
The learned Magistrate found that the house was built by the respondent at the
request and with the consent of the appellant, but further held that although it was so built
the respondent had no equitable estoppel because in her view the principle of equitable
estoppel only applied, where the person against whom the principle is involved, is the owner
of the land in question. The learned Magistrate however held that the respondent did obtain
an interest in the land which came to an end "somewhere five years from the date of the
notice." She therefore gave judgment to the appellant and ordered the respondent to deliver
vacant possession and pay $160 by way of damages for staying over.
On appeal the learned Judicial Commissioner in the High Court ruled that the principle
of equitable estoppel applied and continues so long as the TOL subsists. He therefore reversed
the decision of the learned Magistrate.
The appellant appealed.
Held:
1) The principle of equitable estoppel can in a proper case be invoked against the holder of
a temporary occupation licence;
2) In this case however the document purported to be executed by the appellant was void
for illegality as it was in contravention of Section 68 of the National Land Code, as it
purported to transfer the rights and interests of the appellant in the TOL;

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3) On the facts the document was also a fraudulent document and therefore the principle of
equitable estoppel could not arise in the respondent's favour;
4) Although the house was built by the respondent it was built with the money of the
appellant and therefore its ownership was with the appellant;
5) No evidence was led by the appellant on the question of damages and in the
circumstances the appellant should be given vacant possession of the land and house and
token damages of $10.00.
Ang Toon. Chew & Sons (M) Sdn Bhd v Personal Representative of. Mohd Taib Bin Yosuoff,
Deceased [1998] 5 MLJ 481
Plaintif menuntut hakmilik kepada dua bidang tanah ('Geran No 28716 dan HS (D)
1971') yang didaftarkan dalam nama seorang wakil diri Mohamed Taib bin Yusoff, si mati. Ia
dikatakan bahawa terdapat satu perjanjian dan surat kuasa wakil yang tidak boleh dibatalkan
yang dibuat pada 22 Oktober 1951 di antara seorang bernama Ramaratnam Naidu dan
seorang bernama Muthupalaniappa Chettiar di mana Ramaratnam telah menjual dua
bahagian tanah ('tanah tersebut') yang dipegang di bawah lesen pendudukan sementara
Surat Sementara No 32 tahun 1925 ('LPS') kepada Muthupalaniappa.
Ia selanjutnya dikatakan bahawa bapa plaintif, Ang Tong Chew, si mati, telah membeli
tanah tersebut daripada Muthupalaniappa berdasarkan satu perjanjian jualan merangkap
surat kuasa wakil yang tidak boleh dibatalkan bertarikh 29 Mac 1956. Ia juga dikatakan
bahawa melalui satu perjanjian lisan yang dibuat di antara Ang Tong Chew dan plaintif,
sebagai balasan plaintif membayar cukai tanah tahunan berkaitan dengan tanah tersebut,
Ang Tong Chew menyerahhak dan memindahmilik tanah tersebut kepada plaintif. Plaintif juga
menyatakan bahawa dua hakmilik tanah tersebut sejak itu telah pun dikeluarkan, iaitu Geran
No 28716 dan HS (D) 1971 dalam nama Mohamed Taib bin Yusoff.
Defendan menuntut bahawa mendiang bapanya, Mohamed Taib bin Yusoff, tidak
menjual Geran No 28716 dan HS (D) 1971 kepada sesiapa dan apabila dia singgah di pejabat
tanah pada tahun 1988 untuk membayar cukai tanah, dia mendapati bahawa ia telah pun
dibayar. Ia dihujahkan bahawa bayaran cukai tanah itu tidak berkesan untuk memberikan
plaintif hak kepada tanah tersebut. Isu-isu di hadapan mahkamah adalah sama ada: (i) plaintif
mempunyai locus standi untuk meneruskan tindakan terhadap defendan; dan (ii) LPS
mempunyai hubungan dengan konsep ketakbolehan disangkal hakmilik.
Diputuskan, menolak permohonan:
1) Plaintif-plaintif bergantung pada keadaan fakta perjanjian dan surat kuasa wakil yang
tidak boleh dibatalkan bertarikh 22 Oktober 1951 bersama dengan perjanjian dan surat
kuasa wakil yang tidak boleh dibatalkan 29 Mac 1956 untuk mendasarkan tuntutan
mereka bahawa mereka mempunyai locus standi. Namun demikian, perjanjian ini tidak

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kena-mengena dengan Mohamed Taib bin Yusoff, si mati, kerana si mati tidak merupakan
suatu pihak kepadanya. Dokumen hakmilik keluaran kepada tanah yang didaftarkan di
bawah nama seorang wakil diri Mohamed Taib bin Yusoff jelas tidak membawa legenda
Surat Sementara No 32 tahun 1925 dan, berikutnya, mereka tidak berkaitan antara satu
sama lain (lihat ms 491D-E).
2) Kaedah-Kaedah Tanah Johor, khususnya k 7, akan menghalang transaksi berkenaan
dengan Surat Sementara No 32 tahun 1925. Lebih-lebih lagi, Surat Sementara No 32 tahun
1925, menerusi kata-katanya, menunjukkan bahawa ia adalah satu lesen pendudukan
sementara. Di bawah s 68 Kanun Tanah Negara 1965 ('Kanun tersebut'), satu LPS, yang
merupakan satu lesen, hanya mengurniakan suatu hak peribadi kepada pemegang lesen.
Lesen itu tidak boleh dipindah atau tidak dapat diserahhak. Hanya pihak berkuasa yang
mengeluarkan LPS mempunyai kata muktamad dalam perkara-perkara tanah LPS. Justeru
itu, suatu penyerahhakan tanah berlesen tidak akan berkesan dan penyerahhakan
demikian adalah haram di bawah s 24 Akta Kontrak 1950. Maka, sekiranya ia benar
bahawa Ramaratnam menjual tanah tersebut yang dipegang di bawah Surat Sementara
No 32 tahun 1925 kepada Muthupalaniappa, jualan itu adalah tidak elok di sisi undang-
undang dan tidak berkesan kerana ia dicemari kepenyalahan undang-undang. Jualan yang
berikutnya oleh Muthupalaniappa kepada Ang Toon Chew atas perkara subjek yang sama
juga dijangkiti kepenyalahan undang-undang. Tiada keraguan pihak-pihak menggunakan
perkataan-perkataan 'suatu perjanjian dan surat kuasa wakil yang tidak boleh dibatalkan'
berkaitan dengan transaksi-transaksi tetapi mereka tidak lebih daripada suatu jualan
tanah LPS. Ia merupakan satu jualan tanah LPS yang menyamar sebagai satu perjanjian
dan surat kuasa wakil yang tidak boleh dibatalkan. Penyerahhakan yang diandaikan
menerusi perjanjian lisan di antara Ang Toon Chew dan plaintif atas perkara subjek yang
sama juga tidak elok di sisi undang-undang dan tidak berkesan kerana ia dijangkiti
kepenyalahan undang-undang (lihat ms 491E-I dan 492A-F).
3) Disebabkan s 340 Kanun tersebut, pihak kepada mana pendaftaran telah dilaksanakan
akan, dari segi undang-undang, memperolehi ketakbolehan disangkal hakmilik atau
kepentingan dalam tanah. Kesan pendaftaran adalah untuk menewaskan segala tuntutan
yang tidak berdaftar yang terdahulu. Atas fakta-fakta kes ini, kekecualian kepada s 340
tidak terpakai. Tambahan pula, plaintif berpuas hati untuk tidak mencabar ketakbolehan
disangkal hakmilik yang dianugerahkan kepada wakil diri Mohamed Taib bin Yusoff.
Ketakbolehan disangkal hanya boleh berjaya atas keterangan tetapi keterangan tidak
dikemukakan dalam haluan ini. Oleh itu, sekalipun Surat Sementara No 32 tahun 1925
boleh dikesan kepada Geran No 28716 dan HS (D) 1971 seperti yang dikatakan oleh
plaintif (tiada keterangan yang memberi kesan ini), ia tidak akan membantu plaintif sama
sekali.Tambahan pula, bayaran cukai tanah tidak boleh digunakan sebagai barometer
untuk mengukur pemunyaan tanah tanpa keterangan menyokong yang meyakinkan
dalam haluan ini.

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Cheo Lean How v Fock Fong Looi [1985] 2 MLJ 440
In this case Too Sun, the husband of the appellant was issued with a Temporary
Occupation Licence to occupy state land in Perak. A dwelling house was erected on the land
by Cheng Yen, with the approval or without the objection of Too Sun. Subsequently the
dwelling house was sold to Loke Song, the father of the respondent, since deceased. This
transaction was reduced into writing and witnessed by Too Sun. The temporary occupation
licence issued to Too Sun was later replaced by a qualified title.
The respondent continued to live in the dwelling house on the land. Subsequently the
land was transferred by Too Sun to his wife, the appellant. She gave the respondent fourteen
days to vacate the dwelling house and the land. When the respondent failed to do so, the
appellant brought an action against the respondent in the Magistrate's Court alleging that he
was a trespasser. The Magistrate thought the respondent was a trespasser and ordered him
to deliver vacant possession of the land to the appellant. On appeal to the High Court, the
learned Judge reversed the decision holding, on the facts, that the respondent had an
irrevocable licence coupled with an interest to remain in the dwelling house and on the land.
Held:
1) The sale of the dwelling house on the land was not illegal or void. The occupation by Loke
Seng and the respondent may be regarded as by way of a revocable licence only without
any interest in the state land;
2) After the replacement of the T.O.L. by qualified title, the occupation of the respondent
continued to remain by way of revocable licence only without any interest in the land;
3) The respondent's claim that the licence was irrevocable failed and the appellant was at
liberty after the transfer of the land to her to revoke the licence and to put an end to the
continued existence of the respondent's occupation of the dwelling house and the land;
4) The notice of two weeks given to the respondent to vacate from the dwelling house was
inadequate but as more than 17 months had elapsed before the case was heard, a
reasonable time had elapsed. The revocable licence of the respondent had therefore been
duly determined and judgment should be entered in favour of the appellant.
Papoo v Veeriah [1965] 1 MLJ 127
This was an application by the widow and administratrix of the estate of a deceased
person to transfer to her own name as sole beneficiary of the estate of the deceased a house
which was built upon land which was the subject of a temporary occupation licence. There
was a purported sale of the house by a former administratrix of the estate to the respondent
and the temporary occupation licence had been re-issued in the name of the respondent.

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Held:
1) Neither land the subject of a temporary occupation licence nor anything which is attached
to the land can be transferred or pass on intestacy or be transmitted by the will of a
testator;
2) In this case the application must be dismissed as the applicant had no right to occupy the
land or the house that stands upon it.
Fatimah v Moideen Kutty [1969] 1 MLJ 72
In this case the respondent occupied the land which was originally held by the husband
of the appellant on a temporary occupation licence. The husband of the appellant died in
1962 and when the Collector of the Land Revenue heard of the death he refused to renew
the licence after the end of 1963. The appellant as administratrix claimed rent in respect of
the period July 1, 1964 to February 28, 1965. It was held in the magistrate's court and on
appeal to the High Court ( [1968] 1 MLJ 3) that she was not entitled to the rent. She appealed.
Held, dismissing the appeal:
1) Whatever may have been the deceased's or the widow's right between the deceased's
death and the end of 1963, thereafter as the government had refused to renew the
temporary occupation licence neither his estate nor the administratrix had any right of
any kind whatever to the land;
2) Section 116 of the Evidence Ordinance did not prevent the tenant from contending that
neither the deceased nor the widow had any title to the land in respect of the material
period, because he was not saying that the deceased or the widow had no title at the
beginning of the tenancy. All he did was to contend that the deceased's title had come to
an end.
Govindaraju v Krishnan [1962] MLJ 334
The appellant whose premises stood on State land of which he was in lawful
possession under a Temporary Occupation Licence rented two rooms to the respondent at a
monthly rent of $30. This tenancy was duly determined by a notice in writing. Though the
tenancy was not one protected by the Control of Rent Ordinance, 1956, the respondent
refused to deliver up possession arguing that the tenancy was illegal, void and of no effect
because the appellant was only the holder of a Temporary Occupation Licence over the
premises. The learned President held that this was a dealing with the Temporary Occupation
Licence and any dealing with such a licence was prohibited by rule 41 of the Land Rules.

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Held:
1) The wording of rule 41 of the Land Rules was that no licence for the temporary occupation
of State land shall be transferable. "Dealings" which do not amount to a "transfer" are not
therefore caught by the rule;
2) The letting of two rooms on the premises did not amount to a transfer of the licence;
3) As the respondent admitted that he was a monthly tenant, Section 116 of the Evidence
Ordinance applied and he was estopped from denying that he was a tenant;
4) The tenancy having been lawfully determined, the respondent was a trespasser against
whom the appellant was entitled to an order for possession.
Ban Seng v Yap Pek Soo [1967] 2 MLJ 156
Where a tenant has been paying rent for a number of years, he is estopped under
Section 116 of the Evidence Ordinance from denying the title of his landlord, and when a
tenant is estopped from denying a title, no title need be shown at all. Thus, whether the
landlord brings ejectment, or an action for rent or for use and occupation against his tenant,
the defendant can neither set up the superior title of a third person, nor show that the
landlord has no title.
This was an appeal from the decision of the magistrate's court whereby judgment was
entered in favour of the respondent/plaintiff on his claim against the appellant/defendant for
arrears of rent in respect of half portion of premises known as No. 19A Jalan Kasipillai. The
plaintiff put up the premises in question on State land with the permission of the then holder
of the temporary occupation licence in respect of the land. In 1960 he allowed the defendant
to go into occupation as a monthly tenant. The defendant paid rent regularly for six years, but
stopped paying rent after he received a summons for illegal occupation of State land. His
defence was that he was not liable to pay rent as the house was illegally erected on State
land.
Held: The fact that the plaintiff/respondent had no temporary occupation licence at the
beginning of the tenancy or at any time subsequently was no bar to the action and the learned
magistrate was quite right in entering judgment in his favour.

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Tindok Besar Estate Sdn. Bhd. v Tinjar Co. [1979] 2 MLJ 229
In this case the appellant had been employed as a contractor by a company for the
extraction of timber. The appellant agreed to furnish the necessary vehicles and to provide
the buildings for the accommodation of the workers and for other necessary purposes and
also to build a road leading to and from the timber area. It bought vehicles on hire-purchase
and applied for and obtained a Temporary Occupation Licence of land on which was
constructed the road. Subsequently the appellant agreed to withdraw and agreements were
made whereby the respondent undertook the work of extracting the timber and the
appellant's agreement with the company was cancelled.
The respondent thereupon entered into an agreement with the appellant whereby the
respondent agreed to buy over from the appellant the vehicles at an agreed price subject to
the payment of the remaining instalments of the hire-purchase to the hiror and paying an
agreed sum for the appellant's infrastructure and the road. The respondents paid the amount
due to the appellants under the agreements by instalments which were paid by post-dated
cheques, the last of which for $45,000 was dishonoured. The appellant brought the action to
claim the sum of $45,000 and interest. The respondents admitted giving the post-dated
cheques but it challenged the validity of the agreement on the ground inter alia of illegality,
fraud and misrepresentation. It counterclaimed for the sum of $90,000 which had been paid
by it under the agreement to the appellant.
At the trial in the High Court the learned trial judge dismissed the claim and allowed
the counterclaim for the refund of $90,000 with interest and damages. He held that the entire
agreement was tainted with illegality and it was not severable, that the respondent was not in
pari delicto because its partners were in ignorance of the law and had acted under strong
pressure and because of the fraudulent misrepresentations of the appellant. The learned
Judge decided to admit parol evidence to prove the implied undertakings in construing the
agreement and he then considered and found fraud and deceit on the part of the appellant.
Held, allowing the appeal:
1) The parol evidence was wrongly admitted by the trial judge as the evidence did not fall
within either proviso (b) or proviso (c) of Section 92 of the Evidence Act but was evidence
adding a new term or terms to the agreement;
2) On the facts the charges of fraud and misrepresentation against the appellant could not
be sustained;
3) The evidence sought to be adduced to show misrepresentation, deceit and fraud ranged
far beyond the confines of the respondent's pleadings. The respondent's application to
amend the pleadings must be disallowed, as it was made at the appellate stage and there
was no good and strong justification for it;

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4) Although the Temporary Occupation Licence is not transferable the statute does not
prohibit the giving of permission to use the rights under it. In this case all the appellant
did was to permit the respondent to use his rights under the Temporary Occupation
Licence and there was nothing illegal about such an arrangement;
5) The appellant could not be held liable for damages arising from the cancellation of the
Temporary Occupation Licence as Clause 9 of the agreement clearly provided that the
respondent was not entitled to such damages.

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EXTRACTION & REMOVAL OF ROCK MATERIAL S.70 – 75 NLC
Marble Terrazzo Industries Sdn Bhd v Anggaran Enterprise Sdn. Bhd [1991] 1 MLJ 253
Pada 4 April 1988, plaintiff menuntut melalui tindakan sivil terhadap defendan
pertama, sebuah syarikat, dan defendan kedua hingga kelima, pengarah-pengarah defendan
pertama dan pemilik tanah lot 48606 mukim Sungai Raja, Daerah Kinta, Perak Darul Ridzuan.
Plaintif menyatakan defendan kedua dan ketiga bersetuju secara lisan untuk membenarkan
plaintif mengambil bahan batu daripada tanah tersebut tertakluk kepada beberapa syarat.
Oleh sebab perselisihan faham berkenaan satu fasal yang hendak dimasukkan oleh
defendan-defendan, perjanjian bertulis tidak ditandatangani. Oleh kerana plaintif takut
bahawa defendan-defendan melupuskan tanah itu atau membenarkan orang lain memasuki
tanah itu, plaintif memohon penghakiman seperti yang terdapat dalam perenggan 14
pernyataan tuntutannya. Plaintif melalui saman dalam kamar ex parte, memohon injunksi
interim dan pada 8 April 1988, mahkamah mengeluarkan injunksi interim yang, antara
lainnya, menghalang semua defendan daripada membenarkan orang lain selain daripada
plaintif atau ejennya untuk memasuki mengerjakan dan mengambil bahan batu daripada
tanah tersebut sehingga kes ini diselesaikan atau perintah selanjutnya. Pada 13 April 1990,
kesemua defendan memohon supaya perintah bertarikh 8 April 1988 diketepikan dan
penghakiman ini adalah berkenaan permohonan itu.
Diputuskan, membenarkan permohonan pihak defendan:
1) Setelah menimbang syarat permit dalam kes ini, peruntukan undang-undang, s.73 Kanun
Tanah Negara 1965 dan s.24 Akta Kontrak 1950 dan autoriti-autoriti kes, dalam
penghakiman mahkamah, permit yang dikeluarkan kepada defendan pertama tidak boleh
dipindahhak dan apa-apa cubaan melakukan pemindahanhak di bawahnya adalah
menyalahi undang-undang dan perjanjian untuk tujuan itu adalah tak sah. Tanpa
menyebut syarat-syarat perjanjian itu satu persatu, kesan daripada perjanjian itu ialah
defendan pertama memberi kesemua haknya untuk mengeluarkan bahan batu yang
diperolehinya di bawah permit berkenaan bagi semua tempoh yang dibenarkan
kepadanya oleh pihak berkuasa (30 tahun) kepada plaintif. Hak yang hendak dipindahkan
itu adalah hak yang menyeluruh (exclusive). Dalam penghakiman mahkamah, perjanjian
ini adalah satu cubaan memindahhak yang dilarang oleh permit berkenaan dan s 73 KTN,
menyalahi undang-undang dan tak sah mengikut s.24 Akta Kontrak 1950. Oleh itu,
permohonan untuk mendapatkan perintah pelaksanaan spesifik tidak boleh diberi kepada
plaintif.
2) Adalah jelas bahawa perjanjian itu melibatkan pelaksanaan yang berterusan selama
tempoh lebih daripada tiga tahun dan oleh itu tidak boleh dilaksanakan dengan cara
tertentu menurut s.20 Akta Relif Tertentu 1950. Seksyen 54 Akta yang sama
memperuntukkan bahawa injunksi tidak boleh diberi untuk menghalang pemecahan

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kontrak yang mana tidak boleh dikuatkuasakan secara tertentu. Oleh itu, tidak ada
sebabnya mengapa injunksi interim itu patut dikekalkan.
3) Mahkamah sedar bahawa di peringkat ini, plaintif hanya perlu menunjukkan bahawa
terdapat soalan yang serius untuk dibicarakan berdasarkan prinsip dalam kes American
Cyanamid Co v Ethicon Ltd [1975] AC 396 (dirujuk). Tetapi, dalam kes ini, semua fakta yang
perlu mahkamah tahu untuk membolehkan keputusan dibuat adalah dipersetujui dan
tidak ada sebab mengapa keputusan ini tidak patut dibuat walaupun di peringkat ini.
Puspita Corporation Sdn. Bhd. v Berjuntai Tin Dredging Bhd. [1994] 3 MLJ 251
Responden memiliki beberapa pajakan perlombongan, satu daripadanya adalah untuk
Lot 1578 dan 1579, Mukim Batang Berjuntai, Selangor ('lot itu'). Pajakan itu telah tamat pada
25 Ogos 1985 dan walaupun responden telah memohon untuk memperbaharui pajakan itu,
ia tidak menerima sebarang jawapan daripada pihak berkuasa negeri. Pada 25 April 1990,
pentadbir tanah bagi Kuala Selangor, perayu ketiga, telah mengeluarkan satu permit di dalam
Borang 4C Kanun Tanah Negara 1965 ('KTN itu') kepada perayu pertama untuk mengekstrak
dan mengeluarkan bahan galian amang (ilmenite) daripada lot itu. Plaintif telah memohon
melalui saman pemula untuk, antara lain: (i) deklarasi bahawa amang itu adalah hartanya dan
bahawa permit perayu pertama adalah batal dan tidak sah; dan (ii) suatu injunksi untuk
menghalang perayu pertama daripada mengeluarkan atau mengekstrak amang itu.
Apabila membenarkan relief yang dipohon itu, hakim perbicaraan telah mendapati
bahawa amang yang terdapat di atas lot itu telah dikeluarkan daripada operasi perlombongan
responden di tempat lain dan disimpan stok di situ. Hakim itu telah memutuskan bahawa
amang itu tidak dibuang oleh responden dan tidak merupakan bahan batuan mengikut s 5
KTN itu, seperti yang ditegaskan oleh perayu. Perayu telah membuat rayuan.
Diputuskan, menolak rayuan itu:
1) Terdapat keterangan yang tidak dicabar bahawa amang itu diperolehi daripada suatu
sistem pemprosesan dan bukannya melalui daya semula jadi. Oleh demikian, amang
tersebut tidak merupakan bahan batuan mengikut s 5 KTN itu. Amang tersebut telah
disimpan stok di atas lot itu, boleh dikeluarkan dan mempunyai nilai komersil yang tinggi.
Ia tidak dibuang dan terus menjadi harta responden. Soalan sama ada bahan itu telah
kembali menjadi harta pihak berkuasa negeri di bawah KTN atau undang-undang am tidak
timbul.
2) Oleh kerana amang itu terus menjadi harta responden, penamatan pajakan itu tidak
relevan dan tidak menjejaskan hakmilik responden ke atas amang itu.
3) Perayu kedua telah bertindak ultra vires kuasanya dengan mengeluarkan permit yang
kononnya memberi kuasa kepada perayu pertama untuk mengekstrak dan mengeluarkan
amang itu. Hakim itu betul apabila memutuskan bahawa permit itu batal dan tidak sah

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setakat mana ia memberi kuasa kepada perayu pertama untuk mengekstrak amang yang
merupakan harta responden, dan apabila memberikan injunksi itu.
Equity Corporation Sdn Bhd v Thye Sun Quarry Sdn Bhd [2002] 6 MLJ 74
Selaras dengan satu perjanjian pajakan, plaintif telah memajakkan sebuah kuari
daripada defendan untuk satu tempoh selama tujuh tahun. Selain daripada kena membayar
sewa, ia telah juga dipersetujui bahawa plaintif haruslah membayar royalti atas pengorekan
bahan batu tersebut. Ia telah juga dimasukkan di dalam perjanjian pajakan tersebut bahawa
plaintif sepatutnya membeli sebuah jentera yang tertentu daripada defendan dan bahawa
pembayaran untuk jentera ini hendaklah dibuat dalam tempoh sepanjang 36 bulan.
Keterangan menunjukkan bahawa terdapat lesen kuari yang sah yang telah dikeluarkan oleh
pihak berkuasa tempatan bagi tahun 1992. Walau bagaimanapun, kemudiannya pihak-pihak
berkuasa tersebut telah enggan untuk mengeluarkan satu lesen kuari kepada plaintif kerana
menyebabkan kerosakan pada kejiranan tersebut dalam tahun 1997. Plaintif telah membayar
sewa bagi tempoh selama tiga bulan yang pertama tetapi kemudiannya plaintif tidak
membayar sewa tersebut atau royalti mahupun ansuran-ansuran untuk jentera tersebut.
Oleh itu, defendan cuba untuk menamatkan perjanjian pajakan dengan memberikan
notis berhubung dengannya. Plaintif memfailkan prosiding ini bagi mendapatkan
perlaksanaan spesifik akan perjanjian pajakan tersebut dan juga ganti rugi atas alasan bahawa
defendan telah mengingkari terma-terma perjanjian pajakan tersebut kerana: (i) gagal untuk
mendapatkan lesen kuari dan permit-permit lain untuk tahun 1993; (ii) gagal untuk
menyediakan jalan masuk ke kuari tersebut; dan (iii) gagal untuk mendaftarkan tanah yang
dipersoalkan itu atas nama plaintif. Memandangkan keengganan oleh pihak-pihak berkuasa
untuk memperbaharui semula lesen kuari tersebut, plaintif menuntut bahawa pembelian
jentera tersebut haruslah dibatalkan dan defendan diperintahkan supaya membeli semula
jentera itu. Defendan, sebaliknya, meuntut balas untuk milikan kosong, pengembalian
kesemua peralatan dan loji, pembayaran ansuran-ansuran yang kena dibayar dan gantirugi.
Isu untuk penentuan oleh mahkamah adalah secara pentingnya sama ada ianya merupakan
plaintif atau defendan yang telah memungkiri perjanjian pajakan tersebut.
Diputuskan, menolak tuntutan dengan kos dan membenarkan tuntutan balas dengan kos:
1) Berdasarkan keterangan, tidak terdapat sebarang bukti bahawa defendan tidak
bekerjasama memohon lesen-lesn yang perlu daripada pihak-pihak berkuasa. Tidak
terdapat keterangan untuk menetukan bahawa defendan pernah menolak untuk
menandatangani permohonan untuk pembaharuan lesen bagi tahun 1993 atau selepas
itu. Tidak juga terdapat sebarang asas bagi dakwaan bahawa syarikat defendan telah
ingkar dalam bekerjasama dengan plaintif bagi mendapatkan permit-permit yang perlu.
Tidak terdapat sebarang keterangan mengenai apa-apa keingkaran di pihak defendan

13
berhubung dengan syarat untuk memohon bagi mendapatkan permit di bawah Kaedah-
Kaedah Kuari Perak 1992 oleh kerana Kaedah-Kaedah tersebut tidak berkuatkuasa pada
waktu perjanjian itu dimasuki.
2) Ketika tempoh itu defendan telah mengendalikan kuari tersebut, tidak terdapat syarat
untuk satu laporan persekitaran yang harus diperolehi. Persoalan laporan persekitaran
hanya berbangkit pada tahun 1995 kerana aduan daripada penduduk-penduduk di dalam
persekitaran tersebut yang merasakan kesan letupan yang dilakukan oleh plaintif. Oleh
itu, kegagalan untuk mendapatkan satu laporan persekitaran tidak boleh dikaitkan
dengan defendan.
3) Tidak terdapat lesen penghunian sementara tetapi tiada bantahan oleh kerajaan bagi
penggunaan tanah tersebut sebagai akses/jalan masuk ke kuari tersebut dan ini diketahui
oleh plaintif. Atas keterangan yang dikemukakan, pihak-pihak berkuasa tidak pernah
menafikan sebarang akses. Apa yang pihak berkuasa hendakkan adalah supaya jalan
alternatif digunakan dengan meluaskannya. Lesen pihak-pihak berkuasa selalunya
dikeluarkan tertakluk kepada syarat dan jika pihak berkuasa memerlukan sebagai satu
syarat sebuah jalan alternatif bagi menggantikan jalan masuk yang sedia ada, plaintif tidak
boleh mempersalahkan defendan bagi perkara ini.
4) Dalam menafsirkan sebarang kontrak, kewajaran dari keputusan pembentukan
sedemikian adalah pertimbangan yang utama. Adalah wajar untuk emmbaca perjanjian
pajakan tersebut dengan cara yang menunjukkan bahawa jalan masuk tersebut akan
hanya tersedia setakat mana yang ianya dibenarkan oleh pihak-pihak berkuasa.
5) Defendan tidak bertanggungan untuk mendaftarkan pajakan tersebut atas nama plaintif
sedangkan plaintif jelas melanggari terma-terma penting perjanjian pajakan tersebut
berhubung dengan pembayaran sewaan, royalti dan ansuran.
6) Untuk plaintif mendapatkan perlaksanaan spesifik, yang mana adalah merupakan relif
yang saksama, plaintif haruslah membuktikan bahawa ianya telah melaksanakan terma-
terma penting perjanjian pajakan tersebut. Plaintif telah memungkiri terma-terma
perjanjian tersebut kerana: (i) gagal untuk membayar sewaan sepertimana dan apabila
kena dibayar; (ii) gagal untuk membayar royalti; (iii) gagal untuk membuat pembayaran-
pembayaran ansuran untuk pembelian loji dan jentera sepertimana yang dinyatakan di
dalam perjanjian pajakan tersebut; (iv) gagal untuk mendapatkan laporan juru ukur yang
perlu; (v) mengingkari waad berhubung dengan gangguan; dan lain-lain; dan (vi) gagal
untuk membayar cukai tahunan ke atas tanah demis tersebut. Keingkaran ini adalah jelas
amat penting bahawa defendan berhak untuk menganggarkan dirinya sebagai dilepaskan
daripada kewajipan di bawah perjanjian pajakan. Oleh itu, notis penamatan yang
diberikan oleh defendan adalah notis sah dan menamatkan perjanjian pajakan tersebut
kerana notis ini telah diberikan selaras dengannya.
PERMIT TO USE AIRSPACE ABOVE STATE LAND AND RESERVED LAND

14
S.75A – 75G NLC
Lacroix v The Queen [1954] 4 DLR 470
Suppliant owned some vacant land close to the Dorval airport and used it
intermittently for agricultural purposes. In 1942 the Crown expropriated an easement over it
and adjoining lands for an underground cable and poles for the installation and maintenance
of an approach lighting system to one of the runways of the airport. In his action suppliant, in
addition to the claim for compensation for the expropriation of the easement over his
property and the injurious affection of the remaining land as a result thereof, sought damages
by reason of the establishment of what he described as a flightway over his property through
which aircraft would fly to take off or land at the airport, the basis of this latter claim being
that (1) the suppliant being the owner not only of the surface of his land but also of what is
below and above, the establishment of this flightway and the flying of planes over his land
was an interference with his rights of ownership and a disturbance of his full enjoyment of his
property and (2) the Crown, having established this flightway and interfered with his rights of
ownership, was liable for the damages claimed.
On the evidence the Court allowed certain amounts on the claim for the expropriation
of the easement and for the injurious affection of the remaining land.
Held: That suppliant's claim for damages by reason of the so-called establishment of a
flightway over his land fails.
2. That air and space are not susceptible of ownership and fall in the category of res omnium
communis. This does not mean that the owner of the soil is deprived of the right of using his
land for plantations and constructions or in any way which is not prohibited by law or against
the public interest.
3. That the owner of land has a limited right in the air space over his property; it is limited by
what he can possess or occupy for the use and enjoyment of his land. By putting up buildings
or other constructions the owner does not take possession of the air but unites or
incorporates something to the surface of his land. This which is annexed or incorporated to
his land becomes part and parcel of the property.
4. That the Crown could not expropriate that which is not susceptible of possession. It is
contrary to fact to say that by the so-called establishment of a flightway and the flying of
planes it had taken any property belonging to the suppliant or interfered with his rights of
ownership.
Swetland v. Curtiss Airports Corporation, 41 F.2d 929 (N.D. Ohio 1930)

15
PROCEDURAL POSTURE: Plaintiff landowners and defendant airport appealed from a decision
of the District Court of the United States for the Northern District of Ohio, which enjoined the
airport from certain activities over the landowners' property, restricted flights up to 500 feet
over the landowners' property, but refused to completely enjoin the airport from operation.
OVERVIEW: The landowners owned property upon which they constructed residences and
improvements. The airport purchased land immediately opposite the landowners' property
and stated its intention to operate an airport on the property. The landowners contended
such use would destroy the value of their property and sought to completely enjoin such use.
The lower court restricted the airport's use of its property but denied total relief. The court
modified the lower court's decision by completely enjoining the airport from using its land as
an airport. The airport's flights over 500 feet over the landowners' property did not constitute
a trespass. The landowners did not have the right to restrict use of its property all the way to
the heavens. Modern times required the use of airspace above a certain stratum for airplane
flights. However, the airport's use of its property was likely to destroy the landowners' use of
its property. Loud noise, bright lights, and continuous flights would constitute a nuisance to
the landowners. Furthermore, the airport's use of the property was not indispensable to the
public, as the airport had considered other property for use as an airport.
OUTCOME: The court modified the lower court's decision by completely enjoining the
airport's operation next to the landowners' property.
Real Property Law > Torts > Nuisance > General Overview
[HN1] That is a nuisance which annoys and disturbs one in the possession of his property,
rendering its ordinary use or occupation physically uncomfortable to him. For such annoyance
and discomfort the courts of law will afford redress by giving damages against the wrong-
doer, and when the cause of the annoyance and discomfort are continuous, courts of equity
will interfere and restrain the nuisance.
Chen Yue Kiew v Angkasamas Sdn Bhd [2003] 4 MLJ 365
This is an appeal by the appellant/plaintiff against the decision of the learned judge in
allowing the respondent/second defendant's counterclaim. The facts are not in contention.
The appellant is the registered proprietor of land known as Lot 684, Kampung Baru, Gunung
Rapat, Mukim Hulu Kinta, Perak ('the appellant's land'). The appellant's land adjoins the land
referred to as HS (M) UK 5107, No PT 138041, Kampung Baharu, Gunung Rapat, Mukim Hulu
Kinta, Perak ('the respondent's land') which is registered in the name of the respondent. The
appellant had constructed a double storey shophouse on the appellant's land and the doors
and windows and the edge of the roof protruded into the respondent's land. At the time when
the approval for the construction of the shophouse was obtained from Majlis Bandaraya Ipoh

16
('MBI'), the first defendant in the court below, the respondent's land was yet to be alienated
to the third defendant in the court below ('the respondent's predecessorin-title'). In 1997, the
appellant discovered that the respondent had entered into the respondent's land to construct
a double storey shophouse, and feared that remedial work may have to be carried out on the
appellant's shophouse. The appellant commenced this action. The respondent filed his
defence and counterclaim. The respondent applied and the appellant's action was struck out
by the learned judge. The appellant appealed. The appeal is pending. The counterclaim then
came up for hearing before the learned judge and an order in terms of prayers 1 and 3 was
granted. The appellant appealed. The appellant stated that the learned judge arrived at his
decision without affording the parties the opportunity to make submissions and asked
whether the learned judge had considered correct principles in granting the orders and
contended that the learned judge failed to take into account that the protrusions are de
minimis, that the respondent had not suffered any damage or inconvenience and the
appellant would incur much time, costs and inconvenience.
Held, dismissing the appeal with costs:
(1) Mere infraction of the rules of procedure does not necessarily warrant an appellate
interference unless it can be shown that such non-compliance had occasioned a miscarriage
of justice. The appeal before the court was by way of rehearing, the appellant was free to
make his submission before the court. On that premise the appellant had in no way been
prejudiced by the mere failure of the learned judge to call upon the parties to make their
submissions. Of course as a matter of prudence, judges should call upon parties to make their
submissions as this would assist them a great deal in arriving at their decision (see p 369G–I).
(2) A land owner is entitled to exclusive use of his land and the air space above it and that the
court would not hesitate to grant perpetual injunction against anyone trespassing into the
land of another or into the air space above it. If any error had been committed by the learned
judge in making the order it leaned in favour of appellant and in the circumstances therefore,
no injustice had been occasioned to the appellant (see p 372B–C).
(3) The evidence of DW1 for the respondent stated that because of the protrusions, they
could not build and at that they were not suffering any inconvenience or damage on the
protrusions until they were allowed to build. This evidence stood unchallenged before the
court. It was not exactly correct to say that the protrusions were of a trivial nature and for
that reason the appellant should not be put to expense and trouble to remedy the same. In
any event the appellant had not called any evidence in support of his case (see p 372G–H).
Kelsen v Imperial Tobacco Co (1975) 2 QB 334

17
An advertising sign erected by the defendants projected into the airspace the
plaintiff's single-storey shop. In an action for a mandatory injunction to remove the sign on
the ground of trespass, the defendants alleged, inter alia, that an invasion of superincumbent
airspace did not amount to a trespass, but only to nuisance, and that, on the facts, no nuisance
existed.
Held: That the invasion of the plaintiff's airspace was a trespass and not a mere nuisance, and
it was a proper case in which to grant a mandatory injunction.
Karuppanan v Balakrishnan [1994] 3 MLJ 584
The respondent is the registered owner of the land held under HS(D) 197 PT No Lot
25, Section 3, Brinchang, Cameron Highlands ('Lot 25'), while the adjacent lot, ie Lot 26,
belongs to the appellant. On Lot 26, there was a four-storey shop house which had been
converted into a hotel. The appellant's predecessor-in-title, Mdm Chong, had applied for
permission to build side windows protruding into Lot 25 for aesthetic value and undertook to
remove them so they would not obstruct the construction of any building on Lot 25 which
was then still vacant. Her application was approved on condition that the protrusions had to
be removed the moment the registered owner of Lot 25 intended to build on it. Subsequently,
the respondent, who intended to build a hotel on Lot 25, asked the appellant to remove the
protrusions, but the appellant failed to do so. The respondent also alleged trespass against
the appellant for constructing a side exit, sewerage system, manholes and septic tank which
encroached on Lot 25. The respondent's application for an interlocutory mandatory
injunction to compel the appellant to remove the protrusions and encroachments was
granted. The appellant appealed on the grounds that: (i) the injunction gave the respondent
the full relief sought without trial; and (ii) the official search at the land office did not disclose
any conditions and therefore, he was an innocent purchaser without notice of the conditions
or undertakings attached to the building on Lot 26.
(1) The law has clearly spelt out the right of an individual over his land, that is, inter alia, he is
given the exclusive use of the airspace above the surface of his land. Therefore, the appellant
had no legal right to encroach into the airspace of Lot 25 unless the respondent allowed it.
(2) Mdm Chong's undertaking to remove the protrusions was a personal undertaking which
did not require endorsement on the document of title. However, as the appellant was a local
resident, and, Brinchang being a small town, the court took judicial notice of the fact that
most of the residents knew one another and the development taking place. The appellant
must have known the boundaries of his land and very likely must have enquired of the
protrusions. In any event, with or without knowledge of the protrusions and encroachments,
he was answerable in law for the trespass into the airspace and land of his neighbour and,

18
being the current registered owner, he was duty bound to remove them. Compensation from
Mdm Chong may be his only redress for expenses incurred.
(3) Once the respondent had established his legal right and its violation, he was entitled to a
perpetual injunction unless the appellant could show special circumstances. This case
constituted an unanswerable case of private nuisance for which an interlocutory mandatory
injunction was the appropriate and necessary remedy even though it gave the whole remedy
asked for in the action.
(1) The word 'encumbrances' consists of conditions or restrictions in interest that normally
appear on a document of title to land and also any matter concerning the land or its owner
which fetters the right of the owner to deal with his land or to enjoy his land in the normal
way.
(2) A buyer of land should also make searches at government offices or local authorities, other
than at a registry of titles or land office, for anything concerning the land in an adverse way,
eg conditions imposed on the landowner or his predecessor-in-title, or make written
requisitions to the vendor for information adverse to the land as conveyancing solicitors in
England are accustomed to.

19
ALIENATION S.76 – 92 NLC
Dr. Ti Teow Siew & Ors v Pendaftar Geran-Geran Tanah Negeri Selangor [1982] 1 MLJ 38
In this case land had been alienated to the first applicant, the title being endorsed with
the following endorsement of restriction in interest — "The land hereby leased shall not be
transferred or leased for a period of fifteen years without the consent of the Ruler in Council."
The title also contained particulars stating inter alia that the title commenced from August
18, 1964. The alienation of the land was registered after full payment of premium and other
fees on November 9, 1967. The first applicant transferred the land to the 2nd and 3rd
applicants on May 5, 1980 and the 2nd and 3rd applicants also executed a charge in favour of
the 4th applicant on the same day. He memorandum of transfer and charge were presented
for registration but were rejected by the respondent on the ground that the restriction in
interest was still subsisting. The question was whether the restriction in interest commenced
from the date endorsed on the title, that is August 18, 1964 or the date when the alienation
was registered that is on November 9, 1967. The applicants applied to set aside the decision
of the respondent in refusing to accept the documents for registration and for a declaration
that the restriction in interest endorsed on the document of title expired on August 17, 1979.
Held: The restriction in interest commenced from the date of registration of the register
document of title, that is, November 9, 1967, and the respondent was therefore correct in
rejecting the documents presented for registration.
Teh Bee v. Maruthamuthu [1977] 2 MLJ 7
The appellant claimed possession of a piece of land of which she was the registered
proprietress. The claim was based on trespass. The respondent resisted the claim, the
principal ground being that the qualified title registered in the name of the appellant was null
and void. The trial Magistrate entered judgment in favour of the appellant. On appeal, Ajaib
Singh J. held that when the appellant was registered as proprietress the approval of alienation
of the land to her had already lapsed and therefore it was ultra vires of the State authority to
alienate the land to her. The appellant appealed.
(1) The fact that the appellant was registered as proprietress necessarily raised the inference
that the State Authority on payment of the premium had given fresh approval for the
alienation of the land to her;
(2) The fact that the register document of title was in the name of the appellant was
conclusive evidence that the title to the land was vested in the appellant;
(3) Under the Torrens System the register is everything and it would be wrong to allow an
investigation as to the right of the person to appear upon the register when he holds the
certificate of title.

20
Editorial Note
In this case the Federal Court did not touch on some of the important matters which Ajaib
Singh J. discussed in his decision. Ajaib Singh J. in his judgment brought out the irregularities
practised in some land registries. The publication of his judgment with the Federal Court
decision might help to rectify those irregularities by way of some administrative directives by
those in authority. These irregularities appear to be carried on in blatant disregard to the
provisions of the Land Code relating to the approval of land titles. In his judgment the learned
judge also discussed the position of a holder of a T.O.L. after its cancellation or expiration.
Ali AG CJ: On the evidence at the trial it is clear that the appellant was the only applicant for
the alienation of the land in question. There was no other applicant to whom it could have
been alienated after the approval to the applicant lapsed on her failure to pay the amount
$4,327.50 within the specified time. But the State Authority did not seem to have any
intention of giving or alienating the land to anyone else other than the appellant. The fact
that she was registered as proprietress in April 1968 necessarily raised the inference that the
State Authority on the amount having been paid in October 1967 had given fresh approval.
The reason for the provision relating to the lapse of approval under section 81(2) of the Code,
in my view, is to enable the State Authority to give the land to someone else in the event the
approved applicant does not want the land or is unable to pay the necessary fees under
section 81(1). It was clearly not intended to impose any restriction on the State Authority's
power of disposal.

21
CLASSIFICATION & PLANNING LAND USE S.51 NLC
Garden City Development Berhad v Collector of Land Revenue [1982] 2 MLJ 98
The appellants are proprietors of a site in the city of Kuala Lumpur upon which they
have erected a substantial shopping-cum-office complex, known as Wisma Central. They
applied for subdivision of the land to enable part of it to be given for road-widening. In reply
the Collector of Land Revenue stated that the appellants should first apply for conversion
under section 124 of the National Land Code. The appellants thereupon applied for
conversion of the land. Subsequently they were informed by the Director of Lands and Mines,
Federal Territory, that the Land Executive Committee had decided that their application
would only be approved if (a) the appellants made certain payments for premium and tax on
the change of the category of use of the land to building and (b) they accepted a 99 year lease
in exchange for their title. The appellants did not surrender the title or pay the premium. The
Collector of Land Revenue then served a notice on the appellants under section 128 of the
National Land Code to remedy their failure to alter the condition of the land use from
"agriculture to commercial". The appellants applied for an order that the Collector of Land
Revenue cancel the notice on the ground that the notice was bad and invalid. It was argued
that as there was no expressed endorsement on the document of title pertaining to the
category of land use there was no necessity for them to apply for conversion. Harun J. allowed
the application in the High Court but on appeal. The Federal Court held (a) the land in question
was town land held under registry title and on the coming into force of the National Land
Code came under the provisions of section 53(3) of the Code which provides that it shall be
used neither for agricultural nor for industrial purposes; (b) in order to use the land for
building, the owners have to apply for the imposition of the category of building under section
124 of the National Land Code; and (c) in this case the appellants have failed in erecting the
building to apply for the imposition of the category "building" to their title and this failure
constituted a breach of the condition by reason of which action under section 128 of the
National Land Code could be and was taken. The appellants appealed.
(1) the stamping of the words "Lease for agricultural land" on the original lease could not in
itself have the effect of imposing a condition for use for agriculture only and in the
circumstances it was not possible to infer from the lease an intention to restrict the use of the
land to agriculture;
(2) as the land was town land held under registry title, the provisions of section 53(3) of the
National Land Code applied to the land with the result that there was an implied condition
that it shall be used neither for agricultural nor for industrial purposes;
(3) there is no ground for reading into section 53 (3) of the National Land Code a general
prohibition against use for building purposes;

22
(4) in a timeous appeal against the section 128 notice, the appellants were in a position to
open up all questions upon which its validity depended, in particular the questions whether
their land was subject to the condition of agricultural use only and whether on a proper
construction of section 53 use of it for building purposes was prohibited.
CONDITIONS & RESTRICTIONS IN INTEREST S.103 – 129 NLC
Toh Huat Khay v Lim A Chang [2008] 4 MLJ 74
TCK adalah pemilik berdaftar ke atas sebidang tanah. Hak milik telah dikeluarkan pada
25 September 1996. Ianya terkandung pengindorsan yang melarang mana-mana pindah milik
bagi tempoh 10 tahun — iaitu sehingga 25 September 2006. Kemudiannya, pindah milik telah
dibenarkan dengan kebenaran pihak berkuasa negeri. Tetapi pada 1996, TKC telah memohon
untuk memindah milik tanah tersebut kepada perayu. Pengarah, Tanah dan Galian
('pengarah') memberikan kelulusan untuk pindah milik dan tanah tersebut kemudiannya
telah dipindah milik dan didaftarkan di atas nama perayu pada 31 Mac 1998. Responden telah
memohon untuk mengenepikan pindah milik tersebut yang mana permohonan telah
dibenarkan oleh Mahkamah Tinggi. Perayu kemudiannya merayu ke Mahkamah Rayuan. Isu
untuk dipertimbangkan adalah sama ada pengarah telah bertindak mengikut undang-undang
dalam membenarkan pindah milik tersebut, meskipun syarat dan/atau sekatan kepentingan
yang jelas dinyatakan seperti yang diindorskan dalam hak milik.
Diputuskan, menolak rayuan:
(1) Kuasa untuk melaksanakan syarat-syarat adalah terletak kepada pihak berkuasa negeri
oleh s 120 Kanun Tanah Negara ('KTN'). Seksyen 124 KTN mengurniakan terhadap pihak
berkuasa negeri kuasa untuk mengubah atau membatalkan mana-mana syarat yang
dinyatakan di dalam hak milik.
(2) Dalam kes ini, TKC tidak memohon kepada pihak berkuasa negeri untuk membatalkan
sekatan langsung yang dinyatakan dalam hak milik. Sebaliknya, TKC hanya memohon untuk
kebenaran memindah milik tanah kepada perayu. Pengarah tersebut oleh itu tidak
mempunyai apa-apa kuasa untuk bertindak seperti mana yang telah dilakukannya, kerana
pihak yang berkuasa adalah pihak berkuasa negeri yang releven. Oleh itu, tindakan pentadbir
tanah dalam mendaftarkan pindah milik kepada perayu adalah salah dari segi undang-
undang, batal dan tidak sah. Oleh yang demikian, perayu memperoleh hak milik yang boleh
disangkal.
(3) Dalam kes ini, perayu tidak memperolehi hak milik disebabkan oleh pengarah yang
bertindak melanggar KTN. Mahkamah Tinggi oleh itu adalah betul dalam perintah yang telah
dibuat.

23
Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri. Lempah Enterprise Sdn Bhd [1979]
1 MLJ 135
In this case the applicant’s company was the registered proprietor of a piece of land
held in perpetuity. The land was in the Federal Territory and the applicant applied to the
Federal Government for sub-division of the land and for conversion to have the express
condition relating to the user of the land amended to allow the applicant to put up a hotel for
which planning permission had been granted. It also applied to surrender part of the land to
Government for use as service roads, side and back lanes. The matter was referred to the
Land Executive Committee and subsequently the Director of Lands and Mines, Federal
Territory, informed the applicant that the application would be approved if certain conditions
were complied with. The applicant agreed to all of them except one which was that on
surrendering the land, the applicant was to receive back in respect of the part to be retained
by him not title in perpetuity but a lease of 99 years. The applicant applied to the court for an
order that the approving authority approve its application for subdivision upon the usual
terms and conditions. In the High Court Harun J. gave judgment for the applicant. The Land
Executive Committee thereupon appealed to the Federal Court.
Held:
(1) the Government had no power to make the applicant give up its freehold title and receive
in exchange a 99 year lease. The condition which the applicant objected to did not relate to
the permitted development, it was unreasonable and was used for an ulterior object, the
object being to bring developed land into line with newly alienated land as to which only
leases not titles in perpetuity are granted;
(2) the applications should be remitted for reconsideration by the Land Executive Committee
on behalf of the Federal Government in the light of the law set out in the judgment of the
Court;
(3) in reconsidering the applications the Land Executive Committee should act fairly and not
arbitrarily and should bear in mind that it had already approved the application subject to the
other conditions set out therein.
Ipoh Garden v. PTG Perak [1979] 1 MLJ 271
The applicant asked for an order that the decision of the respondent pursuant to the
application for sub-division of the applicant in respect of certain lands be varied. The applicant
sought to vary the decision in so far as it related to the question of the surrender of the said
lands and the issue of leasehold titles in lieu of the freehold titles. The applicant also asked
the court to direct the respondent to approve the application for sub-division without
imposing the conditions objected to.

24
On behalf of the respondent it was argued that the letter of the respondent contained an
offer not a decision.
Held:
(1) the letter of the respondent sought to impose conditions for the approval of the
application for sub-division which were ultra vires the National Land Code;
(2) the application for sub-division should be referred back to the relevant authority for
reconsideration according to law.
Dr. Ti Teow Siew & Ors v Pendaftar Geran-Geran Tanah Negeri Selangor [1982] 1 MLJ 38
In this case land had been alienated to the first applicant, the title being endorsed with
the following endorsement of restriction in interest — "The land hereby leased shall not be
transferred or leased for a period of fifteen years without the consent of the Ruler in Council."
The title also contained particulars stating inter alia that the title commenced from August
18, 1964. The alienation of the land was registered after full payment of premium and other
fees on November 9, 1967. The first applicant transferred the land to the 2nd and 3rd
applicants on May 5, 1980 and the 2nd and 3rd applicants also executed a charge in favour of
the 4th applicant on the same day. He memorandum of transfer and charge were presented
for registration but were rejected by the respondent on the ground that the restriction in
interest was still subsisting. The question was whether the restriction in interest commenced
from the date endorsed on the title, that is August 18, 1964 or the date when the alienation
was registered that is on November 9, 1967. The applicants applied to set aside the decision
of the respondent in refusing to accept the documents for registration and for a declaration
that the restriction in interest endorsed on the document of title expired on August 17, 1979.
Held: The restriction in interest commenced from the date of registration of the register
document of title, that is, November 9, 1967, and the respondent was therefore correct in
rejecting the documents presented for registration.
FORFEITURE S.130 NLC
Collector of Land Revenue Johor Bharu v South. Malaysia Industries Bhd [1978] 1 MLJ 130
This was an appeal from the decision of Syed Othman J.([1976] 2 MLJ 271). The
respondents had been granted a 60 year lease over 3 acres of State land with special
conditions, the main one being that it was to be used solely for the erection of a factory.
Another condition prohibiting the transfer, charge or sublease of the land had been lifted
after the factory was built. Two other express conditions were referred to in the qualified

25
title. The first related to the payment of premium and deposit and the second was in regard
to the restriction of user to light industry. The respondents rented out a portion of the factory
to an urea company for 3 years for use as a store. The Collector alleged that since the
conditions specify that the land should be used for the erection of a factory it was a breach of
the conditions to use a portion of it for a store. He applied for forfeiture of the land unless
the respondents remedied the breach by June 30, 1976. The respondent applied for a
declaration that the Collector's action was bad in law.The learned trial judge granted the
application for the declaration and gave three reasons for his decision. First he said there
must be an express condition if it is contemplated to prohibit a different user (to use part of
factory premises as a store or office); secondly, to use part of factory premises as a store for
its own goods and commodities is not inconsistent with section 117(1)(a)(iv) of the National
Land Code; and thirdly there must be a prohibition, either express or implied, against sub-
leasing. The Collector appealed to the Federal Court.
(1) the State Authority had and did exercise its power to impose restrictions as to the user of
the factory erected on the land in question. The learned trial judge was wrong when he said
that there can only be a breach if there is a special condition, express or implied, prohibiting
the use;
(2) the express conditions imposed an imperative obligation on the respondent to use the
factory premises for light industry and that being the inherent limitation as to user, storing of
industrial chemicals and fertilisers was not a legitimate purpose of user permitted under the
lease;
(3) the use of part of the factory premises in this case for an alien and totally unconnected
industrial project was inconsistent with the express conditions in the lease;
(4) the Collector could not be said to have acted unreasonably in this case and the respondent
company could not claim to be released in equity against the appellant's legal rights.
Pow Hing & Anor. v Registrar of Titles, Malacca [1981] 1 MLJ 155
In this case the registered proprietor of land in Malacca had executed on August 3,
1979 a memorandum of transfer in favour of the appellants in specified shares. On December
18, 1979 the memorandum of transfer and a discharge of a charge were transmitted to the
respondent for registration together with the the relevant issue document of title. At that
time the register disclosed that the title was clear and presentation of the instruments was
entered as having been made on December 27, 1979. On January 2, 1980 the 2nd appellant
executed a memorandum of transfer of his share in the land to the 1st appellant. This transfer
and a charge executed on January 18, 1980 were presented for registration on January 23,
1980. On February 1, 1980 the solicitors for the appellants were informed by their agents that

26
the two instruments had been rejected by the respondent on January 31, 1980. On February
6, 1980 the appellant's solicitors received a letter from the respondent dated January 29, 1980
rejecting the transfer and discharge presented for registration on December 27, 1979. A
further search was made and this revealed an undated and unsigned note to the effect that
Form 6A (a notice of demand for arrears of rent) was issued on September 18, 1978 and
registered on September 25, 1978. A notification in form 8A was published in the Gazette on
January 31, 1980. It appeared that the registered proprietor applied to the State Authority on
June 26, 1979 for the annulment of the forfeiture but this was rejected on December 12,
1979. On February 9, 1980 the respondent entered a Registrar's caveat against the land. The
appellants appealed to the High Court in respect of the transfer and discharge and the
subsequent transfer and charge against the refusal of the respondent to register the
instruments presented. They also claimed relief by way of cancellation of any endorsement
on the register in respect of the purported forfeiture and restriction of transactions.The
learned trial judge held that the respondent's refusal to register the instruments presented
was wrong and he made declarations to that effect. However he held that the Collector had
since completed the forfeiture and the land had become State land, so that the order sought
by the appellants to set aside the forfeiture amounted in effect to proceedings for the
recovery of land from the State Authority and this were debarred by section 29 of
the Government Proceedings Ordinance 1956. The appellants appealed.
Held:
(1) the Collector of Land Revenue had failed to comply with the mandatory provisions of
sections 97(2) and 100 of the National Land Code and therefore the purported forfeiture of
the land was invalid and must be set aside;
(2) the learned judge was correct in holding that the respondent was wrong in law in having
refused to register the instruments presented by the appellants;
(3) the Registrar's caveat entered should be expunged and the respondent be directed to
register the instruments presented by the appellants
East Union (M) Sdn Bhd v Government of Johor (1981) 1 MLJ 151
In this case the applicant applied by motion for a declaration that section 100 of the
National Land Code enacted by the Federal Parliament is void on the ground that it is ultra
vires Article 76(4) of the Federal Constitution. Leave was granted to bring the motion and the
matter came before the Federal Court. It was argued (a) that as "land revenue" and its
collection are not enumerated in clause (4) of Article 76, Parliament does not have power to
enact section 100 which deals with the collection of revenue; (b) that even before the
National Land Code there were already uniform laws dealing with the collection of land
revenue in arrears and that what was effected by sections 97 and 100 was a fundamental
change in the law.

27
Held:
(1) clause (4) of Article 76 refers to "land tenure" as a matter with respect to which Parliament
may legislate and this is wide enough to cover collection off land revenue;
(2) the impugned provision ensured uniformity of law and practice and therefore is
constitutional, regardless of the position previously.
Che Minah bt Remeli lwn. Pentadbir Tanah. Daerah Besut& Anor [2002] 2 AMR 2473
The plaintiff is the registered proprietor of a parcel of land known as P.M. No. 293, Lot
2063 Mukim Tenang, Daerah Besut, Negeri Terengganu (the said land). The stated category
of use of the said land is "agriculture". There are several buildings on the said land including
a sundry shop and a surau. In December 1999, the Besut Land Office, the 1stdefendant, wrote
to the plaintiff notifying that the buildings had occasioned a breach of section 115 of the
National Land Code 1965 (the Code). Hence the plaintiff was given 14 days to apply to the
relevant authorities to have the category of use of the said land changed. The plaintiff duly
made an application to change the category of use of the said land but the application was
rejected. The plaintiff was directed by a notice to appear before the 1st defendant on
30.04.2001 and to show cause why the said land should not be forfeited. The plaintiff's
solicitors wrote to the 1stdefendant seeking an adjournment of the enquiry that was
scheduled for 30.04.2001 as the counsel having conduct of the matter had only just been
appointed and on that day the counsel was engaged in the Kuala Lumpur High Court. Neither
the plaintiff nor the counsel attended the enquiry on the appointed date, and the
1st defendant proceeded with the enquiry ex parte. By notice dated 30.05.2001 vide exhibit
'M-6' (the order), the plaintiff was ordered:
"Mestilah meremedikan kategori penggunaan dan syarat nyata tanah ini dalam masa 15
hari daripada tarikh perintah ini dikeluarkan. Semua kos remedi hendaklah ditanggung oleh
tuan punya tanah. Sekiranya pihak puan gagal mematuhi perintah ini, susulan di bawah Kanun
Tanah Negara (Akta 56/1965) akan diambil.
(sd)
Pentadbir Tanah Besut
Tarikh: 30.04.2001."
The plaintiff, by an originating summons at enclosure 1, prays for a declaration that the order
does not comply with section 129(4)(b) as it fails to specify precisely what the plaintiff needed
to do in order to remedy the breach of the use of the said land. That being the case, learned
counsel for the plaintiff, Encik Haris bin Mohamed Ibrahim, contends that the order is
ambiguous and uncertain in its terms and is therefore void and unenforceable. The section is
clear and self-explanatory. Thus, in the exercise of his power under section 129(4)(b) to grant

28
time to remedy the breach, the Land Administrator is duty bound at the conclusion of the
enquiry to make an order:
(i) specifying the action to be taken for the purpose of remedying the breach; and
(ii) specifying the time within which it is to be taken for the purpose of remedying the breach.
In other words, the section imposes a duty on the Land Administrator to state precisely what
needs to be done and the time within which it is to be taken for the purpose of remedying
the breach.
Held: the order is invalid and unenforceable because it is contrary to the mandatory provision
of section 129(4)(b)
Pemunggut Hasil Tanah, Kota Tinggi v United Malayan Banking Corp Bhd [1981] 2 MLJ 264
Sometime in December 1966, the State Authority of Johore alienated some 20,688
acres of land in Kota Tinggi, Johore, to Johore Sugar Plantation & Industries Bhd. (company)
for a term of 99 years at a yearly rent. The company developed the land as a sugar-cane
plantation and integrated sugar refinery. The company charged the land to the United
Malayan Banking Corporation Bhd. (bank) to secure banking facilities totalling some $5 million
with interest thereon.
The company defaulted in the payment of the rent to the State Authority for the year
1977. The Collector of Land Revenue (collector) gave notice in the prescribed form under
section 97(1) of the National Land Code (Code) to the company to pay the rent within 3
months from the date of the notice. A copy of this notice was served on the bank as required
by section 98(1) of the Code. As the company and the bank did not comply with this notice,
the collector declared the land forfeited to the State Authority under section 100 of the Code.
A notification of forfeiture was published in the Government Gazette on September 15, 1977.
The company applied to the State Authority on November 17, 1977 for annulment of
the forfeiture. This was refused by the collector. Following this, both the company and the
bank applied to avoid the forfeiture by way of appeals under section 418 of the Code on the
ground that the forfeiture was "harsh and inequitable". The appeals were heard by the then
Chief Justice who set aside the forfeiture upon the company paying within 6 months all rents
due and any moneys imposed by way of penalty. In compliance with the order of the then
Chief Justice, the bank paid to the collector the sum of $434,285 being the arrears of rent and
other fees for 1977, 1978 and 1979. The collector, meanwhile, appealed to the Federal Court
against the order setting aside the forfeiture made by the then Chief Justice. On appeal, it was
contended that:—
(a) the acceptance of the arrears of rent and concomitant sums by the collector constituted a
waiver of the forfeiture;

29
(b) as the order of the collector under section 100 directing the land to be forfeited to the
State Authority was not produced to the court below, the forfeiture was wholly vitiated;
(c) the notice under section 97(1) in the prescribed form (Form 6A) was invalid as the amount
therein stated was in excess by some $6,000.00;
(d) that the company and the bank were entitled to equitable relief as section 418 of the Code
stipulates that the court shall make such order as it considers just;
(e) that the collector be required (in connection with the company's claim in the alternative)
to pay compensation to the company for the forfeiture of the company's land.
Held:
(1) as the operation of the order (by the then Chief Justice) resulted in the forfeiture being set
aside if payment was made within 6 months, there was no question of any waiver of the
forfeiture as there was nothing to waive because the payment was in compliance with the
terms of the order. In any event the collector had no power to effect a waiver and any
purported act on his part cannot in law be the subject matter of waiver or estoppel against
the State Authority. There cannot be any waiver of a forfeiture once it has been effectively
completed;
(2) there is no requirement that the order under section 100 of the Code should be produced
and there was on record the uncontroverted statement by the State Legal Adviser, Johore,
made in the court below that the collector made an order under section 100 on September
7, 1977 and the notification of forfeiture was published in the Government Gazette on
September 15, 1977;
(3) the excess as alleged was wholly minimal when viewed against the total amount payable
to the State Authority and if there was any irregulariy as alleged there was no reason to
disturb the findings of the then Chief Justice m mew of section 134(2) of the Code;
(4) the relevant provisions of the Code provide a complete Code regulating the respective
rights and liabilities of the State Authority and the registered proprietor of alienated land in
relation to the rent payable and no recourse can legitimately be had to look beyond their
specific terms to seek any relief for the alleviation of any complaint or hardship. The Code
does not contemplate any power or right in the court to grant equitable relief against
forfeiture in the light of the specific provisions of the Code;
(5) the claim for compensation should be dismissed as it could not be sustained under the
Code.

30
UMBC v Pemungut Hasil Tanah Kota Tinggi [1984] 2 MLJ 87
In December 1966 the State Authority of Johore alienated to the second appellants
under section 76 of the National Land Code, land in Kota Tinggi for a term of 99 years in
consideration of a stipulated annual rent and other conditions. The second appellants laid out
very considerable sums of money in the development of the land for the purpose of a sugar
plantation and they also granted a number of charges over the land in favour of the first
appellant for the purpose of securing the repayment of loans which in November 1977
amounted to $5,334,163.60 with interest.
The rent payable by the second appellants in respect of the year 1977 was $124,080
plus education rate of $31,020. The amount fell due on January 1, 1977 and not having been
paid before June 1, 1977 fell to be treated as falling in arrear. Accordingly the Collector of
Land Revenue for the district caused a notice of demand to be served on the second appellant.
A copy of the notice was also served on the first appellants as chargees, so as to give them
the opportunity of paying the rent themselves if they chose. The notice required payment of
the rent together with penalties within the period of three months. Owing to
misunderstandings between the appellants, neither rent nor penalties were paid by either of
them within that period. The Collector of Land Revenue thereupon made an order declaring
the land forfeit to the State Authority and this order was published in the Gazatte. The
appellants then instituted proceedings by motion under section 418 of the Land Code and
appealed to the High Court. Gill C.J in the High Court gave judgment in favour of the appellants
granting relief against forfeiture. The respondent appealed to the Federal Court which gave
judgment allowing the appeal. The appellants appealed from the judgment of the Federal
Court.
Held:
(1) a demand which is excessive in amount whether in respect of arrears fee or notice fee or
both cannot be regarded as an irregularity of service or an irregularity of form under section
134(2) of the National Land Code, but is a matter of substance. In this case however the
amount demanded by the notice was of the correct amount and so there was no basis for the
attack on the validity of the notice;
(2) the granting of an application for relief against forfeiture would constitute the setting aside
of the order for forfeiture within the meaning of subsection (2) of section 134 of the National
Land Code and the provisions of the Code evince an intention that the English rules of equity
should not be available to proprietors of alienated land;
(3) section 3(1) of the Civil Law Act 1956 cannot be relied on by the appellants for the
importation of the English rules of equity as the provisions of the National Land Code are
inconsistent with such rules;

31
(4) laws relating to tenure, which are referred to in section 6 of the Civil Law Act 1956, must
embrace all rules of law which govern the incidents of the tenure of land and among these
incidents is the right in appropriate circumstances, to the grant of relief against forfeiture;
(5) the National Land Code is a complete and comprehensive code of law governing the tenure
of land in Malaysia and the incidents of it as well as other important matters affecting land
and there is no room for the importation of any rules of English Law in that field except in so
far as the Code itself may expressly provide for this.
EXTENT OF OWNERSHIP AND ENJOYMENT OF LAND S.44 NLC
Bulli Coal Mining Co v Osborne [1899] AC 351
When the coal-mining lease of May 15, 1893, was executed the Messrs. Osborne
believed that they were leasing to the Bellambi Company, and that company equally believed
that they were obtaining a lease of fifty-one acres of coal-bearing land from which not one
foot of coal had ever been taken; both parties believed this land to be virgin land.
Subsequently it was discovered that the Bulli Company had before the granting of the lease
fraudulently abstracted the coal from underneath about one-third of the land.
Edwards v. Lee's Administrator (1936) 96 S.W.2d 1028
Edwards had discovered and named the cave known as the Great Onyx Cave (“the
Cave”), whose entrance lay on his land. Following its discovery, Edwards spent considerable
effort and money to promote the Cave as a tourist attraction. His efforts proved fruitful, as
the Cave came to attract a great number of visitors every year. The government eventually
exercised its power to take control of the Cave, in exchange for which it would pay Edwards
$396,000. Lee (Plaintiff) then sued, claiming that part of the Cave extended under his land
and that a surveyor should be employed to determine whether such was indeed the case.
Issue:
May the owner of a cave that is a tourist attraction be compelled to open that cave to
surveyors for purposes of determining whether it constitutes a trespass on the land above?
Held:
The owner of a cave may be compelled to open his cave for such purposes.
Analysis:
Although this case is unusual insofar as few caves have sufficient commercial value to provoke
legal disputes over ownership, it bears important analogies to mining rights. The ad coelum

32
rule as applied to mining allows a landowner to demand an inspection of any mine that he
reasonably suspects to extend beneath his land. There is no reason to refuse to apply that
rule to the current case.
Dissenting Opinion:
The current case cannot be properly compared to cases involving mining rights. The crucial
difference is that disputes in mining invariably concern resources that may be removed from
the ground and profitably used elsewhere. By contrast, the value of the Cave lies in the
scenery of the Cave itself. Such scenery cannot be removed or otherwise physically possessed,
and the ad coelum should not be applied in the same fashion as to mining rights. Rather, the
ad coelum rule should be limited to only those resources the owner of the surface can
reasonably be expected to use. Edwards has made the Cave into a tourist attraction at
considerable risk and cost, and it would be inequitable to allow Lee to clamor for a portion of
the profits simply because part of it might extend under Lee’s land.
Karuppanan v Balakrishnan [1994] 3 MLJ 584
The respondent is the registered owner of the land held under HS(D) 197 PT No Lot
25, Section 3, Brinchang, Cameron Highlands ('Lot 25'), while the adjacent lot, ie Lot 26,
belongs to the appellant. On Lot 26, there was a four-storey shop house which had been
converted into a hotel. The appellant's predecessor-in-title, Mdm Chong, had applied for
permission to build side windows protruding into Lot 25 for aesthetic value and undertook to
remove them so they would not obstruct the construction of any building on Lot 25 which
was then still vacant. Her application was approved on condition that the protrusions had to
be removed the moment the registered owner of Lot 25 intended to build on it. Subsequently,
the respondent, who intended to build a hotel on Lot 25, asked the appellant to remove the
protrusions, but the appellant failed to do so. The respondent also alleged trespass against
the appellant for constructing a side exit, sewerage system, manholes and septic tank which
encroached on Lot 25. The respondent's application for an interlocutory mandatory
injunction to compel the appellant to remove the protrusions and encroachments was
granted. The appellant appealed on the grounds that: (i) the injunction gave the respondent
the full relief sought without trial; and (ii) the official search at the land office did not disclose
any conditions and therefore, he was an innocent purchaser without notice of the conditions
or undertakings attached to the building on Lot 26.
(1) The law has clearly spelt out the right of an individual over his land, that is, inter alia, he is
given the exclusive use of the airspace above the surface of his land. Therefore, the appellant
had no legal right to encroach into the airspace of Lot 25 unless the respondent allowed it.

33
(2) Mdm Chong's undertaking to remove the protrusions was a personal undertaking which
did not require endorsement on the document of title. However, as the appellant was a local
resident, and, Brinchang being a small town, the court took judicial notice of the fact that
most of the residents knew one another and the development taking place. The appellant
must have known the boundaries of his land and very likely must have enquired of the
protrusions. In any event, with or without knowledge of the protrusions and encroachments,
he was answerable in law for the trespass into the airspace and land of his neighbour and,
being the current registered owner, he was duty bound to remove them. Compensation from
Mdm Chong may be his only redress for expenses incurred.
(3) Once the respondent had established his legal right and its violation, he was entitled to a
perpetual injunction unless the appellant could show special circumstances. This case
constituted an unanswerable case of private nuisance for which an interlocutory mandatory
injunction was the appropriate and necessary remedy even though it gave the whole remedy
asked for in the action.
(1) The word 'encumbrances' consists of conditions or restrictions in interest that normally
appear on a document of title to land and also any matter concerning the land or its owner
which fetters the right of the owner to deal with his land or to enjoy his land in the normal
way.
(2) A buyer of land should also make searches at government offices or local authorities, other
than at a registry of titles or land office, for anything concerning the land in an adverse way,
eg conditions imposed on the landowner or his predecessor-in-title, or make written
requisitions to the vendor for information adverse to the land as conveyancing solicitors in
England are accustomed to.
Madam Chah Siam v Chop Choy Kong Kongsi (1939) MLJ 243
The plaintiff had been since 1934 in occupation of a large fish pond on State land at
Simpah in the mukim of Ampang. The fish bought as young fry were first reared in a small
pond for about 3 months and then transferred to the adjacent large pond where they
remained until they attained marketable size. The large pond was in fact an old worked-out
tin mine. When work ceased the mine, apparently of the shallow open cast type, filled with
water by rain or surface draining. At some time or other the land became State land. The land
adjoining one end of the large pond was held under mining lease by the second defendant,
the mine being styled "Choy Kong Kongsi" (the first defendant). The mine was worked by
defendant since 1924. Towards the end of 1936 the working face of the mine was approaching
near to the boundary next to the pond. The defendant obtained a permit to prospect by
boring the adjoining State land including the land on which the fish pond was situated. He
bored the land some time in December/January and applied for a mining title. His application
was approved but a title was not issued to him until August 1937. On the night of the 4th April
1937 at about 8 p.m. the bank of the pond gave way and the water of the pond poured into

34
the mine bearing away the greater part of the fish in the pond. In a suit against the defendants
for loss suffered by her as the result of collapse of the bank of the pond brought about by the
mining operations of the defendant the plaintiff relied for her claim on (1) the defendant's
negligence in the carrying out of his mining operations and (2) her absolute right to support
from the land comprised in the mining lease.
Held, that in as much as it had not been shown that the defendant was under any legal duty
of care to his adjacent occupiers, the claim so far as it was based on negligence, failed.
Held, further that the land which contained the pond being entitled to such a degree of
support as it would have required in its unexcavated condition, had no right to the additional
support required by reason of its weakened state resulting from the excavation.
Guan Soon Tin Mining v Ampang Estate Ltd [1973] 1 MLJ 25
This was an appeal from the decision of the High Court ( [1972] 1 MLJ 131). The
respondent were owners of certain lands which they have developed as a housing estate. The
appellants were miners holding a lease over land lying south of the respondents' property. A
minor landslide occurred on the appellants' land on December 29, 1966 due to heavy rain and
caused damage to the respondents' property. A further slip occurred in February 1967 and
others subsequently. The respondent issued a writ on May 21, 1968 for damages claiming the
sum of $501,991.29 for the damage caused to their property.
In the court below the question for determination was whether the appellants were
under a legal obligation to support the respondents' land according to common law principles
which have been given statutory recognition by section 44(1)(b) of the National Land Code
and various provisions of the Mining Enactment, especially sections 16(vi) and 134; and if they
were whether the presence of a concrete drain on the respondents' land disentitled them to
this right of support.
The respondents sought to prove (i) that the appellants carried on mining on the
adjacent land, and (ii) that "by reason of such working" the appellants had suffered damage
to this property. The appellants did not dispute the damage, but they denied liability therefor.
The trial judge found them liable.
Held, allowing the appeal: it was proved that, adjoining the respondents' land at its southern
boundary, other miners had worked this mining land for many years. The land had already
been excavated previously when the appellants entered into occupation. There was no
evidence that the appellants enlarged or deepened this hole or committed any other act
which would make them liable for withdrawal of support from the respondent's land.

35
Government of the State of Penang v BH Oon [1971] 2 MLJ 235
This was an appeal from an order of the Federal Court ([1970] 1 MLJ 244), granting the
respondents/plaintiffs a declaration of ownership of a strip of alluvium along the western
extremity of two lots of land (lots 275(1) and (3)) in Province Wellesley belonging to them
which had been formed by the gradual and imperceptible recession of the sea. By an
indenture of conveyance dated November 10, 1852, the words "bounded on the west by the
sea beach" were used to describe that portion of the boundary. The respondents claimed that
the western boundary of the two lots as conveyed was the line of medium high tide, and
therefore included the alluvium strip. The first appellant/ defendant claimed the said strip of
alluvium as its property and had leased it to the second appellant/defendant, who was in
possession of the land.
In 1949, the first respondent/plaintiff, who was a co-owner of another lot of land (lot
271(3)), applied for and was granted a temporary occupation licence in respect of the
alluvium adjacent to lots 271(1) and (3). These licences were renewed each year until 1958.
However, in 1955 she challenged the title of the government to the alluvium adjacent to lots
275(1) and (3). On August 12, 1959, the government leased the alluvium in question to the
second appellant. At the date of the issue of the writ, the second appellant was in possession
of the strip of alluvium in dispute. However, after the issue of the writ but before the action
came on for trial, the respondents sold lot 275(1) to purchasers who were not added as
parties.
The learned trial judge, in dismissing the action, gave three reasons: (1) that by
applying for and accepting the temporary occupation licences the plaintiffs/respondents were
estopped from asserting that the government which granted them had no title to the alluvium
at the date or dates on which they were granted; (2) that the respondents/plaintiffs had not
established that the recession of the sea and the consequent formation of the alluvium had
been "gradual and imperceptible"; (3) that under the indenture of November 10, 1852, the
western boundary of the land conveyed was not the line of medium high tide.
The Federal Court reversed the decision of the trial court and declared the first
respondent/plaintiff the owner of the alluvium adjoining lot 275(3), and the respondents
together the owners of the alluvium adjoining lot 275(1), and gave the respondents certain
consequential relief including an order for possession and an award of mesne profits. On
appeal to the Privy Council,
Held, dismissing the appeal (Viscount Dilhorne, dissenting):
(1) under section 116 of the Evidence Ordinance, 1950, a licensee after he had given up
possession under the licence was not estopped by the section from denying the title of the
licensor;
(2) the question of onus would be relevant in a case where there was no evidence as to the
manner in which the alluvium had been formed or where the evidence was so evenly balanced

36
that there was no preponderance of probability. In the present case, there was a substantial
quantity of evidence in the form of various survey maps and the oral evidence of the first
respondent. The question was whether in the light of that evidence it was on the balance of
probability more likely or less likely than not that the formation of the alluvium was
throughout gradual and imperceptible, the latter word meaning that the increase in the area
of dry land could not be perceived as it was occuring, not that it could not be observed at
some later date to have in fact occured. If that question could be answered, no question of
onus arose. The "presumption of continuity" applied not only prospectively but also
retrospectively;
(3) the words "shore" or "beach" is in character more akin to the "foreshore" than to the
"hinterland". It is well settled that the word "sea shore" when used to describe the boundary
of land comprised in a conveyance, means, prima facie, the foreshore. The same meaning is
attributed to the word "sea beach", the boundary line of which is the line of medium high
tide. It is well settled that if the boundary of the land conveyed is the line of medium high
tide, the mere fact that the acreage of the land conveyed is given and that the position of the
line of medium high tide at the date of conveyance can be established – whether or not it is
delineated on a plan – will not prevent land which subsequently becomes dry land through
the gradual and imperceptible recession of the sea, being added to the land conveyed.
Therefore, there was no sufficient ground for attributing to the words in the indenture
"bounded on the west by the sea beach" any meaning other than their prima facie meaning
in a legal document, namely, "bounded on the west by the line of medium high tide";
(4) however, as the respondents failed to establish that they were still the owners of the
alluvium adjacent to lot 275(1) at the date when the action came to trial, the Federal Court
ought not to have granted them any relief in respect of that part of the alluvium adjoining lot
275(1) even though counsel for the appellants raised no objection to its being granted.
Re Sithambaram Chettiar [1955] MLJ 213
This was an application for an order of Certiorari to remove into the High Court and
quash an order made by the Collector of Land Revenue, Penang, under the Crown Lands
Encroachments Ordinance. The applicant was the owner of the land in question which in 1925
adjoined the sea. In the course of some years the sea commenced to encroach upon the land
and by about 1933 the whole or at least the major portion of the land was submerged at high
water. The sea however then began gradually to retreat again and the whole of it became
above the high water mark. In 1954 the Collector of Land Revenue in exercise of the powers
conferred on him by s. 9(1) of the Crown Lands Encroachments Ordinance declared by a notice
in the Gazette that if the land was not claimed within 6 months from the date of the notice it
would be declared to be forfeited to the Crown. The applicant thereupon made a claim to the
land. The Collector thereupon held an enquiry and subsequently gave his decision that the
claim of the applicant to the land was not valid. He said in his decision: "In my opinion the

37
claimant has failed to establish a claim to the land which by virtue of the imperceptible
advance of high water mark over the period 1893 and 1934 became Crown property, and
which as far as s. 9(1) of Cap. 114 is concerned had been abandoned by previous owners for
upwards of three years.– The applicant thereupon applied for an order of Certiorari.
Held:
(1) the Collector of Land Revenue in considering and rejecting the claim of the applicant was
for the purpose of Certiorari an inferior tribunal engaged in the exercise of a judicial act;
(2) the provisions of the Crown Suits Ordinance did not prevent the Court from exercising the
remedy by way of Certiorari;
(3) the owner of land which becomes gradually and imperceptibly covered by the sea is
entitled to regain possession of it if it subsequently becomes high and dry by gradual recession
of the water;
(4) there was therefore a clear error of law on the face of the written decision given by the
Collector of Land Revenue in this case and therefore there must be an order for Certiorari.

38
INDEFEASIBILITY OF TITLE S.340 NLC
Ong Chat Pang v Valiappa Chettiar [1971] 1 MLJ 224
The first and second defendants in this case had agreed in writing on November 2,
1957 to sell their land to the plaintiff for $30,000. The plaintiff paid $15,000 towards the
agreed purchase price before January 24, 1958 on which date he lodged a caveat against the
land with the Registrar of Titles. On the same day the third and fourth defendants approached
him and offered to pay him $10,000 to give up his rights under the agreement and to
withdraw his caveat. He refused. On the morning of January 30, 1958 he called at the land
office and discovered that his caveat had been rejected and that the land had been registered
in the names of the third and fourth defendants in pursuance of a document of transfer in
their favour, purporting to have been executed on January 17, 1958 but stamped and
presented for registration on January 30, 1958. On a petition to the High Court against the
rejection of his caveat the plaintiff obtained an order on May 5, 1958 directing the Registrar
of Titles to register his caveat as on the date of its presentation with a further direction that
the caveat be removed after four weeks from the date of the order unless within that period
the plaintiff brought an action for specific performance of the sale agreement against the first
and second defendants as the registered owners of the land at the time of the presentation
of the caveat and against the third and fourth defendants as interested parties. The plaintiff
commenced his action on May 31, 1958. The first and second defendants took no steps to
defend the action and the third and fourth defendants did not adduce any evidence at the
trial. The High Court gave judgment for specific performance of the agreement. Against this
judgment the second and third defendants appealed.
Held, dismissing the appeal; in this case the onus of proof was on the third and fourth
defendants as persons claiming by a title subsequent to the contract for sale, to show that
they were bona fide purchasers for value without notice of the earlier contracts and as they
had failed to do so, judgment had rightly been given against them in favour of the plaintiff.
Gill FJ: The conception of indefeasibility being central in the system of land registration, so
long as land stands registered in the name of a particular person such registration constitutes
conclusive evidence that that person is in fact the registered proprietor of the land unless and
until his registered title is cancelled or set aside in accordance with some relevant provision
of the law.
PJTV Denson (M) Sdn Bhd v Roxy (Malaysia) Sdn Bhd [1980] 2 MLJ 136
In this case the respondent had obtained judgment against the first appellant but the
judgment was unsatisfied. The first appellant had agreed to buy land in Petaling Jaya and the
sale agreement stipulated a transfer to the first appellant or its nominees. Subsequently the
land was registered in the names of the second and third appellants, the directors of the first

39
appellant. The respondent brought the action claiming a declaration that the land was the
property of the first appellant against which the judgment might be executed. The defence of
the first appellant was a denial of ownership and that the land was bought by the second and
third appellants with their own money. The learned trial judge gave judgment for the
respondent as he held in effect that the transfer was voluntary and in fraud of the judgment
creditors. The appellants appealed.
Held:
(1) the learned trial judge was correct in holding that the transfer of the land was voluntary
and in fraud of the judgment creditors;
(2) the transfer could be set aside despite its registration, as fraud had been brought home to
the persons whose registered title was impeached;
(3) in this case the second and third appellants held the said land in trust for the first appellant,
whose property it was.
Raja Azlan Shah CJ Malaya:
As it stands the registered title of the said land in the hands of the second and third appellants
is indefeasible. The concept of indefeasibility of title is so deeply embedded in our land law
that it seems almost trite to restate it. Therefore the registration of the transfer of the said
land under the National Land Code defeats all prior unregistered interests in that land unless
the party who acquires the registered title has been guilty of fraud (see section 340(2)(a) of
the National Land Code). In that event the person who has been deprived of his unregistered
interest will be entitled, as against the fraudulent party, to have the transfer set aside.
Frazer v Walker (1967) 1 AC 569
The appellant, A., and his wife, F., were the registered proprietors under the Land
Transfer Act, 1952, of a property subject to a mortgage. F., professing to act on behalf of
herself and the appellant, arranged to borrow from the second respondents £3,000 on the
security of the property. The second respondents' solicitors prepared a form of mortgage and
delivered it to F., who took it to her solicitors for execution. A clerk in the solicitors' office
witnessed her genuine signature to the mortgage and also a signature purporting to be that
of the appellant which she had previously inserted. Her solicitors forwarded the mortgage
document and the certificate of title to the second respondents' solicitors, who paid the
£3,000, partly to F.'s solicitors and partly to discharge the existing mortgage. On July 21, 1961,
they registered the memorandum of mortgage, together with a discharge of the previous
mortgage, at the land registry office. On default by F., the second respondents exercised their
power of sale and sold the property by auction to the first respondent on October 26, 1962,
and the second respondents executed a transfer to the first respondent, which he duly
registered on November 29, 1962. It was conceded that all the respondents acted throughout
in good faith without knowledge of F.'s forgery.

40
As the registered proprietor, the first respondent issued proceedings against the
appellant for possession of the property, the appellant counter-claimed against all
respondents for a declaration: (1) that his interest in the land was not affected by the
purported mortgage or by the auction sale to the first respondent; (2) that the second
respondents' mortgage was a nullity, and (3) that the appellant was the beneficial owner of
an undivided half-interest in the land; and for an order directing the district land registrar (i)
to cancel the entries or memorials in the register in favour of the respective respondents and
(ii) to restore his name and F.'s name as joint owners of the land. The Supreme Court held
that, although the appellant had given no authority to F. to mortgage his interest in the land,
the second respondents had obtained an indefeasible title by registration of their mortgage
and the first respondent had obtained an indefeasible title as registered proprietor and
accordingly gave judgment for the first respondent. The Court of Appeal dismissed an appeal
on the sole ground that the first respondent had as bona fide purchaser obtained an
indefeasible title.
Held: That registration under the Land Transfer Act, 1952, conferred upon the second
respondents as the registered proprietor a title to the interest in respect of which the
appellant was registered, which under sections 62 and 63 was immune from adverse claims
(other than those specifically excepted, which were not here relevant), that conception of
indefeasibility being central in the system of registration
Boyd v. Mayor of Wellington [1924] NZLR 1174
Plaintiff was the registered proprietor of a piece of land (on which there was a
building) in the City of Wellington. A Proclamation by the Governor General that this land had
been taken for the purposes of a tramway, and that it should vest, as from a specified day, in
the defendant Corporation was gazetted, and subsequently registered, in pursuance of s 24
(3) of the Public Works Act, 1908, against the land. Plaintiff contended that, as the land was
occupied by a building, the previous consent of the Governor in Council or the consent in
writing of himself, the owner, was a necessary condition (under s 15 (b) of the Public Works
Act, 1908) of the taking of the land; that neither condition had been complied with; and that
therefore the Proclamation was void. Plaintiff therefore claimed a declaration that the
Proclamation was void; that the registration thereof was obtained by fraud or otherwise
wrongfully by the defendant Corporation; and that he was entitled to have the Land Transfer
Register rectified by the removal therefrom of the entry of such registration.
Held:
by the Court of Appeal (Stringer and Salmond JJ, dissenting): That, even assuming the
Proclamation to be void, its registration under the Land Transfer Act had conferred on the
defendant Corporation, in the absence of fraud, an indefeasible title to the land affected; that

41
there was no evidence of fraud; and that the plaintiff was not entitled to have the Register
rectified.
Per Stringer and Salmond JJ (dissenting): That an instrument which is null and void before
registration remains so inter partes after registration, and creates no indefeasible title until
and unless the rights of some third person purchasing in good faith and for value on the faith
of the registered instrument have supervened; that until then it is the right and duty of the
District Land Registrar to rectify the Register by cancelling a registration which was wrongly
procured and therefore ought not to be continued; and that the Court should, therefore, in
the circumstances, proceed to examine the validity of the Proclamation and to consider the
other questions involved in the action.
Per Strut CJ, and Adams J (Sim, Stringer, and Salmond JJ: expressing no opinion on the
point).—That, even if the decision in Mere Roihi's case (1) were not decisive in the matter, a
307 of the Municipal Corporations Act, 1908 (8. 377 of the Act of 1920), was a sufficient
defence to the Corporation, being conclusive as to the validity of the Proclamation.
Mohammad bin Buyong v Pemungut Hasil Tanah, Gombak & Ors [1982] 2 MLJ 53
In this case a transfer form 14A was submitted to the Land Office, Gombak by the
appellant. The form was signed by one Misriah binte Amirin claiming to be the attorney of the
second respondent. When Form 14A was presented it was accompanied by an office copy of
a document purporting to be a power of attorney but not the original issue document of title.
Despite the non-production of the original issue document of title the presentation was
recorded in the presentation book of the land office. Subsequently the land office received a
letter from the second respondent stating that she never at any time gave a power of attorney
to Misriah binte Amirin. The Collector considered the matter and decided to reject the
instrument in accordance with section 298 of the National Land Code. Subsequently an
application for transfer of the shares of the second respondent to the second, third and fourth
respondents was received and registered by the Collector. The appellant appealed against the
decision of the Collector.
Held:
(1) in this case although the instrument of transfer to the appellant had been presented and
recorded in the Presentation Book, it had not been registered and therefore the appellant
cannot claim indefeasibility under section 340 of the National Land Code since the facts
revealed that there was no registration;
(2) although there is no power of the Collector to alter or cancel a memorial, the entry in this
case never acquired the sanctity of a memorial which under section 304(4) of the National
Land Code was conclusive evidence of registration. Therefore it could properly be deleted or
cancelled;

42
(3) although technically the act of the Collector in registering the instrument of transfer to the
2nd, 3rd and 4th respondents would appear to be in breach of section 300 of the National
Land Code, the words "shall not register" appearing in section 300(1)(a) of the Code are on
the facts of this case merely directory and not mandatory and the apparent failure of the
Collector to comply with the section did not invalidate the registration.
Boonsom Boonyanit v Adorna Properties Sdn Bhd [1995] 2 MLJ 863
The defendant, Adorna Properties Sdn Bhd, entered into a sale and purchase
agreement dated 15 December 1988 ('the agreement'), to purchase two pieces of land in
Penang ('the properties') from a Mrs Boonsoom Boonyanit (Thai passport No 033852) ('the
vendor'). To prepare the agreement, the defendant's solicitors obtained the vendor's name
from a land search, and her international passport number from the vendor's solicitors. The
vendor's solicitors had also prepared a statutory declaration ('the statutory declaration') to
correct the name of the title from Sun Yok Eng@ Boonsom Boonyanit, to Mrs Boonsoom
Boonyanit. The full purchase price of the properties was paid by the defendant, and the duly
executed and stamped memorandum of transfer ('MT1') was registered in favour of the
defendant on 24 May 1989. The plaintiff, a Boonsom Boonyanit @ Sun Yok Eng, claimed that
she was the true owner of the properties, and that she had never sold them to the defendant.
In an action against the defendant, the plaintiff claimed that the name, passport number, and
signature of the transferor in MT1 was not hers, and hence MT1 was procured by forgery
and/or fraud. She also testified that the statutory declaration was also not affirmed by her.
As evidence, she tendered a memorandum of transfer ('MT2') which was registered on 18
January 1967 in her favour as proprietor, and a certificate from the Royal Thai Consulate
General which in effect showed that the vendor's passport was a forgery. On the other hand,
the defendant claimed that it was a bona fide purchaser of the properties for value, and it
had acquired an indefeasible title in the said properties through the registration of MT1 by
the vendor. The issues before the court were as follows: (i) whether or not the plaintiff was
the true owner of the properties; (ii) the onus and the standard of proof required in cases of
forgery; (iii) whether forgery was committed on MT 1; and (iv) if forgery was committed,
whether the defendant could nevertheless have acquired indefeasible title by virtue of s
340(3) of the National Land Code 1965 ('the NLC'), as a bona fide purchaser for value without
notice.
Held, dismissing the plaintiff's claim:
(1) Section 68 of the Evidence Act 1950 ('the EA') requires at least one attestor to be called to
prove the execution of a document and is intended to preclude an opponent from using the
document in the absence of the attestor. However, s 70 of the EA provides that the admission
of execution by a party in a document required to be attested, 'shall be sufficient proof of its
execution as against him'. It follows that MT1 tendered by the plaintiff would be allowed on
the general law of evidence although its attestor was not called to prove its execution.

43
(2) The admission of MT1 per se did not free the court from having to determine its probative
value. In this case, the evidence, such as the testimonies of the plaintiff's witnesses, the
photocopied quit rent and assessment receipts of the property and the duplicate signed copy
of MT1 which were produced by the plaintiff, would be sufficient to satisfy the court that the
plaintiff was the registered proprietor of the property on a balance of probabilities.
(3) Forgery is a specie of fraud which is also criminal in nature. A very heavy onus is placed on
he who alleges fraud. Fraud under s 340(2)(a) of the NLC must be distinctly proved beyond
reasonable doubt, rather than by a preponderance of probability. Also, the fraud committed
should be actual, and it should imply a dishonest and wilful act to cheat a man of a known
right.
(4) Pursuant to s 45(1) of the EA, the court should submit itself to the opinions of handwriting
expert when it is called upon to form an opinion as to the identity or genuineness of
handwriting. In this case, the plaintiff not only had failed to include the evidence of a
handwriting expert to prove forgery of the signature in MT1, but her evidence as a whole fell
short of proof to show that the signature of the transferor in MT1 was not the plaintiff's.
(5) Even if the plaintiff had proved forgery beyond reasonable doubt, the defendant had
nevertheless acquired indefeasible title over the property by virtue of s 340(3) of the NLC,
which in effect protects any title or interest acquired by any purchaser in good faith and for
valuable consideration. The operative words 'any purchaser' reflect the intention of
Parliament to provide immediate indefeasibility, and not deferred indefeasibility to such
innocent parties. This is in line with 340(2)(b) of the NLC which merely provides that
registration obtained by forgery shall not be indefeasible, rather than void.
Boonsom Boonyanit v Adorna Properties Sdn Bhd [1997] 2 MLJ 62
The appellant was a Thai national who owned property ('the property') in Penang. An
unknown person, claiming to be the appellant, procured a certified true copy of the
appellant's land title from the National Land Registry by claiming to have lost the original
documents and subsequently procured a forged passport in the appellant's name, and duly
sold the property to the respondent for valuable consideration. The appellant discovered the
ruse but only after the respondent was registered as owner of the property.
The appellant sued the respondent in the High Court to have her restored on the
register as the owner of the property and for a declaration that the respondent's title was
void ab initio. She put forth evidence that at the time of the sale, she always had the original
documents of title in her possession, she was in Thailand and had not left the country, that
her own passport was genuine and the one which was shown to the respondent was a fake,
and that the signature on the memorandum of transfer was not hers, all of which were
corroborated by her son. The respondent argued that as an innocent third party purchaser
for value, its title was indefeasible notwithstanding the forged signature on the memorandum

44
of transfer and relied on s 340 of the National Land Code Act 1965 ('the Code'). The judge
ruled in favour of the respondent, stating that the appellant had failed to prove the forgery
beyond a reasonable doubt, as she had put forth only circumstantial evidence of the forgery
and furthermore did not have a handwriting expert to testify on her behalf. He also ruled that
even if she had proven the forgery, the respondent's title was immediately indefeasible by
virtue of s 340 of the Code.
The appellant appealed, basing her arguments on the trial judge's application of the
wrong standard of proof for civil forgery and also that s 340 of the Code created a deferred,
not immediate, indefeasible title in a third party purchaser. The respondent argued that s 340
created an immediate indefeasible title as the words 'any purchaser' were present in the
section and their plain meaning supported immediate indefeasibility of title. The respondent
also cross-appealed, complaining that the trial judge had ruled that the proof of each
document tendered by the appellant was to be tested only at the end of the trial and not at
the point in time when it was tendered, and hence that the trial judge had not tried the issue
of forgery regularly.
(1) The standard of proof to be applied in civil forgery suits is the balance of probabilities. The
approach adopted by the trial judge in the present case of applying a standard of beyond
reasonable doubt is against binding precedent and thus wrong.
(2) The trial judge had failed to judicially appreciate the nature and quality of evidence led at
trial. The appellant had clearly established on a balance of probabilities that the signature on
the memorandum of transfer was forged. The trial judge's failure to recognize the distinction
between direct and circumstantial evidence was a serious misdirection that had occasioned
a miscarriage of justice in this case. He erred in his reliance upon the appellant's failure to call
certain witnesses as she was not obliged to call the witnesses and had clearly established
forgery with the evidence she tendered. The Court of Appeal had the discretion to substitute
its views in cases where to allow the trial judge's views to stand would amount to a
miscarriage of justice and, in this case, the substitution of the views was appropriate and just.
(3) The respondent's complaint that the issue of forgery was not regularly tried was dismissed
as the complaint was with the mode of proof, not the admissibility of the documents. From a
procedural standpoint, the judge correctly dealt with the evidence, and it was up to the
respondent to raise objections to the mode of proof at the earliest possible stage. Failure to
do so results in the point being no longer open at the appellate stage.
(4) The words 'any purchaser' in s 340 of the Code refers to a subsequent and not to an
immediate purchaser, hence creating a deferred indefeasibility which benefits subsequent
purchasers. The title of an immediate purchaser is defeasible if tainted by one or more of the
vitiating elements set out in s 340(2) but creates an exception in favour of a bona fide
purchaser who takes his title from such a registered proprietor. This bifurcation makes it clear

45
that Parliament intended to confer deferred and not immediate indefeasibility. The trial judge
erred in his reliance upon the case Frazer v Walker which turned upon the construction of a
particular New Zealand provision which is fundamentally different in wording from s 340 of
the Code. On a proper construction of s 340, a registration obtained by forgery is of no effect.
When s 340 is read as a whole and in context with ss 292 and 304 of the Code, it is clear that
there can be no registration without an instrument. Hence, one of the ways in which to defeat
a registration is by impugning the very instrument of transfer by means of which the
registered proprietor obtained his title. If the instrument was forged or by other reason was
insufficient or void, the title of the registered proprietor may be set aside. The differences
between the wording of the old s 42(iii) of the Land Code (Cap 138) and s 340(2)(b) does not
produce any difference in consequence, even though the former more clearly sets out that a
registration obtained by forgery is void.
Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yoke Eng [2001] 1 MLJ 241
The respondent claimed that she was the registered proprietor of a piece of land which
had been sold and transferred to the appellant. The respondent claimed that the vendor had
forged her signature and sold and transferred the land to the appellant and claimed to be
restored as the registered owner of the land. The High Court dismissed the plaintiff's claim
(see [1995] 2 MLJ 863). The decision of the High Court was reversed by the Court of Appeal
(see [1997] 2 MLJ 62). The appellant appealed. The questions of law posed for decision were:
(1) whether the standard of proof to prove forgery is on balance of probabilities or beyond
reasonable doubt; and (2) whether the appellant, a bona fide purchaser for valuable
consideration without notice, acquired an indefeasible title to the land by virtue of s 340(3) of
the National Land Code 1965 ('the NLC').
(1) The court agreed with the Court of Appeal that the standard of proof required to prove
forgery in civil cases is one on a balance of probabilities (see p 243H).
(2) By virtue of the proviso to sub-s (3) of s 340 of the NLC, any purchaser in good faith and
for valuable consideration are excluded from the application of the substantive provision of
sub-s (3). For this category of registered proprietors, they obtained immediate indefeasible
title to the lands. Therefore, on the facts of this case, even if the instrument of transfer was
forged, the respondent nevertheless obtained an indefeasible title to the land (see p 246B-
D).

46
Waimiha Sawmilling Co v Waione Timber Co [1926] AC 101
A proprietor of land in New Zealand, who was registered under the Land Transfer Act,
1915 (N. Z.), agreed in 1916 to grant the right to cut timber on the land to the appellants, who
registered a caveat under the Act in respect of the agreement. In 1920 the proprietor sold the
land to the respondents who, in June, 1921, obtained registration of their title. At the date of
that registration a Court had declared that the agreement had been validly determined by the
vendor, but to the knowledge of all parties an appeal was pending; an order had been made
discharging the caveat and from that order there had been no appeal. The registration of the
respondents had been carried through hastily, as it was thought that possibly an injunction
would be applied for. In July, 1921, the Court of Appeal declared that the respondents had no
valid ground for determining the agreement. The appellants now claimed that the
respondents' title was subject to their rights under the agreement.
Sect. 58 of the Act provided that, except in the case of fraud, a registered proprietor
held free from any claim not appearing on the register, subject to exceptions not material to
the case. Sect. 197 provided that knowledge of an unregistered interest should not be
imputed as fraud:-
Held: That the circumstances in which the respondents had obtained registration did not
constitute "fraud" within the meaning of s. 58 of the Act, and that the respondents' title was
not affected by the pendency of the litigation with regard to the appellants' rights under the
agreement.
Assets Co Ltd v Mere Roihi [1905] AC 176
The respondents in all three appeals are aboriginal natives of New Zealand. The
respondents to the first appeal claimed to be owners according to native custom of a block
of land called Waingaromia No. 3, as found in their favour on March 22, 1876, by the Native
Land Court, which ordered that a memorial of ownership be issued. But at the time of such
finding they alleged that no approved plan of the land within the meaning of ss. 33, 71, and
83 of the Native Land Court Act of 1873 was in existence, nor was any memorial of ownership
under s. 47 actually issued therefor until 1889. The appellants, on the other hand, alleged that
one Cooper purchased the block from the native owners by a memorandum of transfer of
December 9, 1876, and on December 28, 1876, obtained an order in freehold tenure under
the Act of 1873, and on February 5, 1877, provisionally registered this order under the Land
Transfer Act of 1874. In April, 1889, they, as mortgagees from Cooper, obtained from the
Native Land Court (the Chief Judge signing for John Rogan, a retired judger a memorial of
ownership in favour of the respondents antedated March 22, 1876, caused to be indorsed
thereon the certificates provided by ss. 61 and 75 of the Native Land Act, 1873, and the order
in freehold tenure all dated December 28, 1876, and in favour of Cooper, and caused the
memorial with its indorsements to be provisionally registered. They then obtained from the

47
Governor of the Colony a certificate of title issued to Cooper, and from Cooper a transfer to
themselves of the lands in suit, and from the district land registrar a certificate of title thereto.
Two suits were then brought, which, so far as material to this appeal, were for the same object
- namely, to have the certificate of title called in and cancelled, or to have the appellants
declared trustees for the plaintiffs.
The respondents to the second appeal claimed to be owners according to native
custom of a block of land called Waingaromia No. 2, declared to be such by a memorial of
ownership dated March 22, 1880, issued by the Native Land Court, and that they had neither
sold to the appellants nor done any act whereby they ceased to be owners, nor had the
memorial been cancelled or destroyed in accordance with law. The Native Land Court had,
however, on February 19, 1877, issued a similar memorial, although at that time no approved
plan sufficient to give the Court jurisdiction was in existence. The said Cooper had on the
previous January 9 obtained a memorandum of transfer, and on June 28, 1877, an order in
freehold tenure of the lands in suit, and caused it to be provisionally registered. These
proceedings the respondents alleged had been annulled by order of the Governor in January,
1879, i.e., prior to March 22, 1880; but the liquidators of the Glasgow Bank, as assignees of
Cooper, caused the certificates and order in freehold tenure required by ss. 61 and 75 of the
Native Land Act, 1873, to be indorsed on the memorial of March, 1880, and obtained a
certificate of title from the district land registrar dated August 28, 1882. On August 15, 1883,
they also registered the Glasgow Bank Act, 1882, which vested the land in them.
The respondents to the third appeal claimed that they and others had been found to
be owners of the block Rangatira by a memorial of ownership dated May 21, 1875, issued by
the Native Land Court; and that after partition an order had been made on May 12, 1886,
under the Native Land Division Act, 1882, declaring them to be owners of Rangatira No. 2 (the
lands in suit), which order also directed that a Crown grant should issue to them. The
memorial was then cancelled, but the order of 1886 is still subsisting, and is provisionally
registered. Immediately after this registration the appellants obtained the registration of
certain deeds of sale under which they derived title alleged to have been made by the
respondents, and on October 23, 1895, obtained a certificate of title from the district land
registrar. The history of the transaction between the dates of May 21, 1875, and May 12,
1886, as given in the appellants' case, paragraphs 8 to 12, found by their Lordships to be
correct, is as follows: The block was leased after the earlier date to certain sheep-farmers,
who in 1878 assigned their lease to the firm Kinross & Graham. In that year and subsequently
the respondents and others signed memoranda of transfer of their interests to the firm.
These, after inquiry duly made, were indorsed by a Trust Commissioner as approved under
"The Native Lands Frauds Prevention Act, 1881." Thereafter the firm remained in possession
without payment of rent. In 1883 the lease and the rights under the memoranda of transfer
vested in the Glasgow Bank by transfer from the firm to the liquidators, and in the appellants
by virtue of the Glasgow Bank Act of 1882. In 1886, after due inquiry by the Land Court, the
order of that date was made. The Crown grant was drawn up, but lay in the Native Land Court

48
owing to non-payment of fees. These were paid in 1895. In July of that year a duplicate was
constituted a folium of the provisional register of the district land registrar at Gisborne. At the
same time the memoranda of transfer to Kinross & Graham, the transfer from them to the
appellants direct, were registered thereon. The Governor then issued his warrant for a
certificate of title to the sellers, and the registrar issued his certificate of title to the
appellants.
Held: In all three cases the Court of Appeal decided for the respondents.
Actual fraud: “Passing now to the question of fraud, their Lordships are unable to agree with
the Court of Appeal. Sects. 46, 119, 129, and 130 of the Land Transfer Act, 1870, and the
corresponding sections of the Act of 1885 (namely, ss. 55, 56, 189, and 190) appear to their
Lordships to shew that by fraud in these Acts is meant actual fraud, i.e., dishonesty of some
sort, not what is called constructive or equitable fraud - an unfortunate expression and one
very apt to mislead, but often used, for want of a better term, to denote transactions having
consequences in equity similar to those which flow from fraud. Further, it appears to their
Lordships that the fraud which must be proved in order to invalidate the title of a registered
purchaser for value, whether he buys from a prior registered owner or from a person claiming
under a title certified under the Native Land Acts, must be brought home to the person whose
registered title is impeached or to his agents. Fraud by persons from whom he claims does
not affect him unless knowledge of it is brought home to him or his agents. The mere fact that
he might have found out fraud if he had been more vigilant, and had made further inquiries
which he omitted to make, does not of itself prove fraud on his part. But if it be shewn that
his suspicions were aroused, and that he abstained from making inquiries for fear of learning
the truth, the case is very different, and fraud may be properly ascribed to him. A person who
presents for registration a document which is forged or has been fraudulently or improperly
obtained is not guilty of fraud if he honestly believes it to be a genuine document which can
be properly acted upon.”
Datuk Jagindar Singh & Ors v Tara Rajaratnam [1983] 2 MLJ 196
The respondent (Tara) was the registered proprietor' of a piece of land of some 5 acres
(the property) at Kulai, Johore. There was a house on it. She lived there with her late husband
(Devan) and their five daughters. Dr. Das was the brother of Devan. The three appellants are
advocates and solicitors. The 1st appellant (Jagindar) and the 2nd appellant (Suppiah) are
partners practising under the style of Suppiah & Singh in Johore. The 3rd appellant (Arul) was
a partner in the Singapore firm of Rodyk & Davidson. The story began with the financial
difficulty of Dr. Das after starting a computer medical centre in Singapore called Medidata.
He and Jagindar knew one another in their student days in London. So with Jagindar as
guarantor he managed to obtain overdraft facilities from the Hongkong & Shanghai Banking
Corporation in Singapore (HKBC) up to a limit of $120,000.00 He gave Jagindar to understand
it was for a short period. To protect himself Jagindar pressed Dr. Das to put up certain security

49
in the event that he was called to honour the guarantee. The HKBC did not press Dr. Das for
payment. Jagindar refused the offer of a second mortgage on Dr. Das's property in Johore.
But he showed interest in Tara's property. Dr. Das consulted Devan who persuaded Tara to
put up the property as security. At that time Tara and Devan had an overdraft with the Chung
Khiaw Bank (CKB) in respect of which the property was charged.
On March, 30, 1974 Suppiah, Jagindar and Sivanathan came to Tara's house. She was
asked to sign various documents. Before signing she read through part of the agreement and
was not happy with the matter as nothing was said of the fact that the property was to be
used as security for the payment of two sums of $110,000.00 each. She questioned Suppiah
about the use of the word "transfer" when the transaction was going to be a security. In
answer Suppiah said the security was by way of transfer. As a result of her inquiry Suppiah
inserted the manuscript to the agreement. On April 27, 1974 Jagindar paid the HKBC
$121,819.80. More than a year later he paid CKB $92,000.00 and CKB was obliged to discharge
the charges. He also attested the transfer form which Tara signed earlier when he entered
into the agreement. He also inserted the date July 5, 1975 on the transfer form indicating that
Tara transferred the property to Suppiah on that date. The transfer was registered on July 22,
1975. Some 18 days later Suppiah transferred the property for the same amount to Arul on
August 9, 1975. Later on instruction from Jagindar the property was transferred to Jet Age
Construction Company which was almost wholly owned by Jagindar for $361,114.00.
Although Arul received no payment the account book showed the company owed him the
amount. The property was eventually subdivided into 70 lots and sold to the public. So Tara
was unable to get the property back.
Between March 30, 1974 and May 1975 various letters, documents and
correspondence passed between Suppiah & Singh and CKB, Devan, Yeow & Chin, Department
of Inland Revenue and Office of Pengarah Tanah dan Galian. In May 1975 Suppiah obtained
judgment against Dr. Das for $149,000.00 in Singapore and the same was registered at the
High Court at Johore Bahru. In early 1976 applications for subdivision in respect of the
property were made in the name of Arul by Suppiah & Singh through a firm of surveyors and
architects. In early March, 1976 Devan and Tara each received a notice to quit dated March
4, 1976 from Suppiah & Singh acting for Arul. They refused to quit and the dispute came
before the court. What happened thereafter is a matter of going through the court records.
Every technical and procedural point that one can think of was taken against Tara's claim. The
history of the various proceedings was summarized not only by the learned Judge but also by
Wan Suleiman, F.J. sitting with Hashim Yeop Sani, J., as he then was, and the late Ibrahim
Manan, F.J. in Tara Rajaratnam v Datuk Jagindar Singh & Ors [1981] 1 MLJ 232. In delivering
the judgment of the court Wan Suleiman, F.J. criticized the Judicial Commissioner for striking
out the statement of claim and giving leave to file fresh action on two occasions. He could see
no reason why leave of the court was necessary to file fresh action arising out of a different
cause of action unless the Judicial Commissioner did not understand his own orders. In
rejecting the plea of res judicata, the court took the view that the two orders granting Tara

50
liberty to file fresh action could only mean that no final decision had been pronounced so as
to estop Tara in any subsequent litigation from disputing or questioning such decision on
merits.
In this case the respondent, the registered proprietor of land alleged that she was
induced by the fraud and undue influence of the 1st and 2nd appellants to transfer the land
to the 2nd appellant. The respondent claimed that when the land was transferred it was
transferred as a security and there were two undertakings, (1) that the land would not be sold
to anyone for one year without the consent of the respondent (2) that the land would be
transferred back to the respondent on her repaying the $220,000/- within one year. Contrary
to these undertakings the 2nd appellant some eighteen days later transferred the property
to the 3rd appellant. Subsequently the land was again transferred to a land development
company almost wholly owned by the 1st appellant. The land was eventually subdivided and
sold to the public. The appellants were advocates and solicitors. The learned trial judge found
that the appellants were guilty of fraud, breach of agreement and undue. The appellants
appealed.
Held:
(1) in this case it was clear from the correspondence that the 1st and 2nd appellants were
acting for the respondent and there was a solicitor-client relationship between them;
(2) on the evidence the learned judge was entitled to take the view that the appellants were
not honest in that the 1st and 2nd appellants never really intended to fulfil the conditions of
the agreement and that all they wanted was to get the respondent to sign the transfer form
so that they could lay their hands on the property. As regards the 3rd appellant he colluded
with the other appellants to get possession of the property;
(3) the learned trial judge was correct in holding that the agreement was a security agreement
and did not constitute an outright transfer of the land;
(4) the learned trial judge was not wrong in holding that the transaction was unconscionable
and that the burden was on the appellants to rebut the presumption of undue influence;
(5) in this case the learned trial judge exercised his discretion correctly in awarding damages
for fraud and in not deducting the sums paid by the appellants in payment of overdrafts to
the banks as the sums were paid in pursuance and furtherance of the fraud.
“Jagindar, Suppiah and Arul all knew perfectly well that although on the face of it Arul was a
registered proprietor in actual fact he was merely a nominee or trustee for Jagindar and
therefore not a bona fide purchaser for value as claimed all along till the amendment.”

51
Gibbs v Messer [1891] AC 248
The registered proprietor of land, Mrs Messer, left the certificate of title with her
solicitor for safekeeping, together with a power of attorney in favour of her husband, whilst
she went off travelling. The family solicitor, Creswell, forged the signature of the husband (as
his attorney) to a transfer of Mrs Messer’s land to a fictitious person. Creswell then managed
to secure the registration of this fictitious person. Creswell executed a mortgage, with the
fictitious person as mortgagor, and then misappropriated the funds. The mortgagees acted in
good faith and subsequently registered the mortgage. When Mrs Messer returned and
discovered the fraud, she commenced proceedings, seeking cancellation of the certificate of
title in the fictitious person’s name and cancellation of the registered mortgage. The
mortgagees claimed that they had an indefeasible title which could not be set aside by the
fraud. The Privy Council ultimately held that the protection which the Torrens System gives
to persons transacting on the faith of the register is limited to those who actually deal with,
and derive a right from, an actual rather than a fictitious proprietor. A person who deals with
somebody who is not the registered proprietor, and who turns out to be fictitious, does not
transact on the faith of the register. Where the transaction by which such person acquires
title is tainted by fraud, that person cannot acquire a valid and indefeasible title, although
such a title may be passed on to a bona fide third party purchaser. On the facts, as the
mortgagee had dealt with a fictitious person and had not passed on the title, Mrs Messer was
successful in having the forged certificate and mortgage cancelled.
Lord Watson: The main object of the Act, and the legislative scheme for the attainment of
that object, appear to them to be equally plain. The object is to save persons dealing with
registered proprietors from the trouble and expense of going behind the register, in order to
investigate the history of their author's title, and to satisfy themselves of its validity. That end
is accomplished by providing that everyone, who purchases, in bonâ fide and for value, from
a registered proprietor, and enters his deed of transfer or mortgage on the register, shall
thereby acquire an indefeasible right, notwithstanding the infirmity of his author's title.
Au Meng Nam & Anor v Ung Yak Chew & Ors [2007] 5 MLJ 136
The plaintiffs were previously the registered proprietors of the land. On 17 September
1997, they came to know that the land had been transferred to the first defendant vide the
registration of the memorandum of transfer in Form 14A on 9 October 1996. The plaintiffs
contended that they had never entered into any agreement or signed any document to
transfer the land to the first defendant. Two cheats claiming to be the proprietors of the land
entered into a sale and purchase agreement of the land with the first defendant. This took
place on 9 May 1996. Hence, on 18 September 1997 the plaintiffs lodged a police report
stating that the transfer of the land to the first defendant was fraudulent. They subsequently
brought this action against the first defendant. The first defendant in his defence contended

52
that he was a bona fide purchaser of the land for valuable consideration within the proviso to
s 340(3) of the National Land Code 1965 ('Code') and thus had obtained an indefeasible title
to the land. The first defendant, as a fall back position, filed a third party notice against the
second and third defendants for compensation or indemnity. He alleged that the second and
third defendants were negligent. The second and third defendants were at the material time
the partners in the firm of solicitors acting for the first defendant for the purchase and
subsequent transfer of the land. The second and third defendants denied any negligence on
their part. They too, as a fall back position, brought in the Pentadbir Tanah Daerah Johor
Bahru ('the fourth defendant') as the fourth party to this action, claiming for contribution or
indemnity. They in turn alleged that the fourth defendant was negligent. On 26 August 2005,
the learned trial judge after a full trial, dismissed the plaintiffs' claim. He found it as a fact that
the instrument of transfer of the land to the first defendant was a forged document.
Nevertheless, applying the Federal Court case of Adorna Properties Sdn Bhd v Boonsom
Boonyanit [2001] 1 MLJ 241 ('Adorna Properties Sdn Bhd') he held that the first defendant
was a bona fide purchaser for value within the proviso to s 340(3) of the Code and thus had
acquired an indefeasible title to the land. One of the main issues raised by the plaintiffs in this
appeal was that the learned trial judge was wrong to rely on the case of Adorna Properties
Sdn Bhd. Learned counsel for the plaintiffs submitted that Adorna Properties Sdn Bhd was
decided per incuriam and should not be followed. Thus, what had to be decided was whether
the learned trial judge was right in holding that the first defendant was a bona fide purchaser
of the land for valuable consideration so as to fall within the exception to defeasibility under
s 340(3) of the Code. Learned counsel for the first defendant, submitted that the findings of
the learned trial judge were findings of fact and this court, as an appellate court, should be
slow in interfering with such findings.
Held, allowing the plaintiff's appeal:
(1) (per Raus JCA; Hasan JCA concurring) The Federal Court should review its decision
in Adorna Properties Sdn Bhd. By virtue of s 340(2)(b) of the Code, the title of Adorna
Properties was not indefeasible as the registration was obtained by forgery. Section 340(3)
does not apply to s 340(2). The proviso states 'Provided that in this subsection' and this
subsection refers to s 340(3) and not s 340(2). Section 340(3)(a) refers to 'to whom it may
subsequently be transferred' which means that the intended purchaser is the subsequent
purchaser and not the immediate purchaser. Similarly, in the instant case, the title of the first
defendant was defeasible as the registration was obtained by forgery. The first respondent
was the immediate purchaser and not a subsequent purchaser. Section 340(3) has no
application as it refers to subsequent purchaser and not the immediate purchaser. Thus, the
plaintiffs would have succeeded in this appeal if not for the Federal Court interpretation of s
340 of the Code in Adorna Properties Sdn Bhd. But this court is not ready to ignore or disregard
the Federal Court's decision in Adorna Properties Sdn Bhd (see paras 34–35); Adorna
Properties Sdn Bhd v Boonsom Boonyanit [2001] 1 MLJ 241 followed.

53
(2) (per Raus JCA; Hasan JCA concurring) The findings of the learned trial judge did not solely
turn on a question of fact. It was a mixed question of fact and law. Thus, even if the findings
of the learned trial judge were based on factual ground it did not absolve this court of doing
its duty as an appellate court (see para 38).
(3) (per Raus JCA; Hasan JCA concurring) An existence of a sale and purchase agreement and
the payment of the purchase price in full could not be the only indicator to show whether a
person is a bona fide purchaser or otherwise.Other salient features surrounding the sale and
purchase agreement must be considered (see para 41). In the present case, had the learned
trial judge taken other facts and circumstances into consideration, he could not possibly
conclude that the first defendant was a bona fide purchaser for valuable consideration, so as
to be protected under s 340(3) of the Code. The first defendant had concluded the sale
without any proper investigation into the title or the persons claiming to be proprietors. No
doubt he had every right to take advantage of the low price that was offered to him but he
took the risk. When he embarked into such risk, it could not be at the expense of the plaintiffs.
In such circumstances the court must not favour the first defendant over the plaintiffs. To do
so, would be doing injustice to the plaintiffs (see para 42). Further, had the evidence adduced
in this case been properly considered and assessed by the learned trial judge, a reasonable
inference would be that the first defendant knew at the time he bought the land, the purchase
price was below the market value. But he wanted to take advantage of the low price. He did
a fast track to complete the purchase. In doing so he disregarded his obligations to investigate
the alleged proprietors and the genuineness of the documents. A purchaser in good faith does
not include a purchaser who is careless or who had been negligent (see para 43).
(4) (per Raus JCA; Hasan JCA concurring) The first defendant was under the obligation to
investigate properly all matters relating to the sale of the land and not to just blindly accept
what was claimed by the 'vendors' as correct and genuine. When he failed to take the ordinary
precautions which ought to be taken in such a matter he was not entitled to the protection
of the court (see para 44).
(5) (per Raus JCA; Hasan JCA concurring) Since the first defendant was relying on the proviso
of s 340(3) of the Code, that he was a bona fide purchaser for valuable consideration, the
evidential burden fell on him. The evidential burden remained with the first defendant. There
was no duty on the plaintiffs to prove that the first defendant was a party or privy to the fraud
or forgery (see para 45).
(6) (per Raus JCA; Hasan JCA concurring) No liability could be attached against the second
and third defendants. The first defendant had adduced no evidence at the trial to support the
allegation that the second and third defendants were negligent. Moreover from the
circumstances of the transaction it clearly indicated that the first defendant took a
commercial decision to purchase the land which he admitted was a good bargain. In a single
day, he visited the land, decided to purchase it and agreed to the term of the sale including
an initial payment of 80% of the purchase price in cash. These were done before the first

54
defendant consulted the second defendant. The second defendant in his evidence stated that
when the first defendant came to see him, he informed him (first defendant) of the risk. But
according to the second defendant, the first defendant who was a regular client and was
familiar with sales and purchase of real property, wanted to proceed with the transaction
urgently. The second defendant further testified that instructions were given to him to
prepare the terms as had already be agreed upon. Certainly, under such circumstances the
second and third defendants could not be blamed. Accordingly the first defendant's claim
against the second and third defendants was dismissed (see para 47).
(7) (per Gopal Sri Ram JCA) The decision in Adorna Properties Sdn Bhd is not to be treated as
binding precedent because it was decided per incuriam(see para 13). It is central to the
doctrine of indefeasibility housed in s 340 that the issue document of title must itself be
genuine. In Adorna Properties Sdn Bhd, the instrument of transfer and other attendant
documents were forged. But the title was genuine. In the present appeal there was cogent
evidence going to show that the issue document of title used to effect the transaction here
was itself a forgery. Hence Adorna Properties Sdn Bhd was clearly distinguishable from the
facts of this case. The learned judge misdirected himself in not holding for the appellants on
this ground. The appellant's case must succeed because the vendors had no title to pass. And
the only exception is in favour of a bona fide purchaser for value. In this case, the evidence
conclusively pointed against the respondent on this issue. The burden of proving that he was
a bona fide purchaser lay on the respondent and he plainly failed to discharge it (see para
17); Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 1 MLJ 241 distinguished.
Tan Hee Juan v Teh Boon Keat [1934] 1 MLJ 96
The plaintiff, an infant, executed transfers of lands in favour of the defendants. The
transfers were witnessed and subsequently registered. The plaintiff by his next friend applied
to the court for an order setting aside the transfers and for incidental relief. The court made
an order declaring the transfers void, and refused to order the refund of the purchase price
paid by the defendants.
Held: the discretion possessed by the court under Specific Relief Enactment will, in the case
of contracts which are void, only be exercised where the parties stand in such a fiduciary
relationship to one another that it would be unfair to the defendant to allow the plaintiff to
retain both the advantage of the purchase money standing as part of his estate and also to
recover the property.
HEREFORD J: In this case it appears that two transfers were executed by the infant (Plaintiff)
of two pieces of land in Mentakab to the two Defendants respectively, and the action actually
brought by the Plaintiff's next friend appointed by an order of Court is to have these two
transfers set aside and other relief incidental thereto, on the ground that at the time the
transfers were executed the Plaintiff herein was a minor. There is no doubt about that fact: it

55
is quite clear now, and I do not think it is seriously disputed, that at the time when the
transfers were executed the Plaintiff, Tan Hee Juan, was in fact an infant and, therefore,
unable to contract.
The Privy Council have held that the effect of sections 10 and 11 of the Contract Act
of India is that an infant cannot make a contract within the meaning of the Act, and that a
contract made by an infant is not only voidable but void. Mohori Bibee v Dharmodas Ghose 30
Calcutta 539. That decision of the Privy Council is binding on this Court, and therefore there
can be no doubt whatever that those transfers are void. That being so, as the registration of
these proprietors has been obtained by a void instrument, the effect of section 42(iii) of the
Land Code is that the registration is void, and I have no option or alternative that I know of or
can discover but to declare that registration void.
Tan Ying Hong v Tan Sian San [2010] 2 MLJ 1
The plaintiff/appellant ('appellant') was the registered owner of a piece of land
situated in Kuantan, Pahang ('the land') which was charged to the United Malayan Banking
Corp, the third respondent, to secure loans amounting to RM300,000 made in favour of Cini
Timber Industries Sdn Bhd, the second respondent. The first respondent, who was purporting
to act under a power of attorney, had executed the charges in favour of the third respondent
bank. The appellant only became aware of the charges when he received a notice of demand
from the third respondent. The appellant claimed that he had not signed the power of
attorney, that it was forged and that the charge instruments executed in favour of the third
respondent were void. The appellant then filed a claim in the High Court seeking, inter alia, a
declaration that the said charges were void, an order expunging from the register and the
issue document of title the memorial of charges against the land and an order directing the
third respondent to deliver up to him the issue document of title to the land.
The High Court judge found that the appellant had never granted the power of
attorney to the first respondent and that therefore the first respondent had no authority to
charge the land to the third respondent bank. As such the registration of the appellant in the
issue document of title was found to be obtained by fraud or forgery. However the court was
bound by the decision of the Federal Court in the Adorna Properties' case, which held, inter
alia, that by virtue of the proviso to s 340(3) of the National Land Code ('the NLC'), any
purchaser in good faith for valuable consideration enjoyed immediate indefeasible title to the
lands. This meant that despite the court's finding that the registration of the appellant in the
issue document of title was obtained by fraud or forgery, the third respondent obtained an
indefeasible title to the land. The appellant appealed against the decision and the principal
issues for the court in this instance were whether s 340 of the NLC conferred upon the
registered proprietor or any person having a registered interest in the land an immediate or

56
deferred indefeasibility, that is whether the Adorna Properties' case was correctly decided,
and the proper construction to be accorded to s 340(1),(2) and (3) of the NLC.
Held, allowing the appeal with costs here and below:
(1) (per Zaki Azmi Chief Justice Malaysia and Arifin Zakaria CJ (Malaya)) Section 340(1) of the
NLC confers an immediate indefeasible title or interest in land upon registration, subject to
the exceptions set out in s 340(2) and (3). According to the Adorna Properties' case, Adorna
Properties, the appellant, had acquired its title to the land through or under a forged
instrument and it therefore came under the category of s 340(2)(b). The court then held that
such a title was insulated from impeachment by the proviso in s 340(3) of the NLC. The
question which arose was whether the proviso immediately after s 340(3) applied to other
provisions of s 340, in particular, to s 340(2)(b). This could only be deduced from the proviso
itself. From the authorities it was clear that a proviso to a subsection would not apply to
another subsection and that a proviso carved out an exception to the provision immediately
preceding the proviso and to no other. As such the proviso immediately after s 340(3) of the
NLC is directed towards s 340(3) alone and not to the earlier subsection. This is supported by
the use of the words 'in this subsection' in the proviso. Therefore its application could not be
projected into the sphere or ambit of any other provisions of s 340.
(2) (per Zaki Azmi Chief Justice Malaysia and Arifin Zakaria CJ (Malaya)) Further, even though
s 340(3)(a) and (b) refer to the circumstances specified in s 340(2) they are restricted to a
subsequent transfer of an interest in the land. Therefore, a person or body in the position of
Adorna Properties could not take advantage of the proviso to s 340(3) to avoid its title or
interest from being impeached. It is trite law that this court may depart from its earlier
decision if the former decision sought to be overruled was wrong, uncertain, unjust or
outmoded or obsolete in the modern conditions. As it was clear that the Federal Court in
the Adorna Properties case had misconstrued s 340(1), (2) and (3) of the NLC and thus come
to the erroneous conclusion that the proviso to s 340(3) applied equally to s 340(2), this error
needed to be remedied forthwith in the interest of all registered.
(3) (per Arifin Zakaria CJ (Malaya)) According to the facts of the present case, it was not in
dispute that the two charges registered in favour of the third respondent were based on void
instruments as they were not executed by the appellant. It therefore followed that the two
charges in this case were liable to be set aside under s 340(2)(b) since they were based on
void instruments. As the third respondent was an immediate holder of these charges it could
not take advantage of the proviso to s 340(3) of the NLC. The fact that the third respondent
acquired the interest in question in good faith for value was not in issue because the charges
arose from void instruments. It automatically followed that such charges were liable to be set
aside at the instance of the registered proprietor namely, the appellant.

57
UMBC v Syarikat Perumahan Luas Sdn Bhd (No. 2) [1988] 3 MLJ 352
This is an application by the chargor to set aside an order for sale of certain land
comprised in QT No HS(D) 19, Lot No 40(2), section 14, Bandar Georgetown, Penang, NED
Penang ('the land') pursuant to the provisions of s 256 of the National Land Code ('the Code').
The ground upon which the chargor relies in support of their claim for a declaration is
that the charge is void in that it was created on 11 February 1983 and registered on 16
December 1983, in breach of an express restriction in interest endorsed on the issue
document of title to the land under s 120 of the Code, prohibiting, inter alia, the charging
thereof without the written sanction of the state authority. The same was not approved until
11 April 1988. It was submitted on behalf of the chargor that, inter alia, the chargee's title or
interest in the land was thus defeasible because the registration thereof was obtained by
means of an insufficient or void instrument. The chargee's counsel contended that since the
chargor did not avail themselves of the remedy of appeal within the time prescribed in s 418
of the Code, it was not now open to them to impugn the order for sale by the present
proceedings.
Held, allowing the application:
(1) The submission of the chargee's counsel relying on s 418 of the Code fails. Where an order
is a nullity, an appeal is somewhat useless as despite any decision on appeal, such an order
can be attacked in collateral proceedings before any court or tribunal, and in collateral
proceedings the court may declare an act that purports to bind to be non-existent. The party
affected by the decision may appeal but he is not bound to do so because he is at liberty to
treat the act as void.
(2) In these circumstances, the charge having been registered in breach of an explicit statutory
prohibition imposed on the title to the charged land pursuant to the provisions of s 120 of the
Code, the title or interest of the chargee is defeasible since registration thereof had been
obtained by means of an insufficient or void instrument (s 340(2)(b)) and also because the
Registrar of Titles, in registering the charge, had acted ultra vires the powers conferred upon
him by s 340(2)(c). The defence of estoppel accordingly fails since there cannot be an estoppel
to evade the plain provisions of a statute. In the result, the chargor is entitled to the
declaration prayed for, namely, that the order for sale aforesaid, in so far as it relates to the
land, be set aside. In consequennce, the order of the senior assistant registrar dated 17
December 1987 made pursuant to the summons to proceed with the order of sale under O
31 r 2(2) is also set aside.
(3) The learned judge made no order as to costs having regard to the inequitable behaviour
of the chargor in commencing the present proceedings at this late stage no doubt to avoid
liability to pay money he had undoubtedly received.

58
(4) The learned judge was satisfied that s 66 of the Contracts Act does not apply because,
although the charge as a security was void within the meaning of s 2(g) of the Act, as having
been executed in breach of the restriction in interest imposed under s 120 of the Code, the
contract of loan relating thereto was perfectly valid and enforceable. The chargee is,
therefore, free to commence proceedings to recover the money lent or advanced to the
chargor and interest thereon at the contractual rate.
Ismail bin Mohmad & Anor v Ismail bin Husin & Ors [2005] 7 MLJ 103
The plaintiffs were the registered proprietors of pieces of land ('the said lands'). The
first plaintiff had since passed away and had been duly substituted by his son. They entered
into a sale and purchase agreement ('the agreement') where first defendant agreed to
purchase the said lands for a total consideration of RM7.5m. The agreement was prepared by
the second defendant. Upon enquiry, the plaintiffs discovered that the said lands had been
charged to the fourth defendant as security for a term loan of RM16m to the fifth defendant,
out of which RM10m had already been disbursed to the fifth defendant. The plaintiffs' case
was that the intention to defraud the plaintiffs had been conceived even before the
agreement was entered into by the plaintiffs. The scheme was that the first defendant will
enter into a sale and purchase agreement with the plaintiffs for the purchase of the said lands;
and without the knowledge of the plaintiffs, the said lands will then be charged to a financial
institution as security for a loan to the fifth defendant. The loan amount will be far in excess
of the purchase price of the said lands. In the present case the purchase price of the said lands
was only RM7.5m, but the said lands were subsequently charged to the fourth defendant as
security for a loan facility of RM16m. Under the annexure to the charge, the plaintiffs, as
guarantors, were further rendered liable to the fourth defendant for the sum not exceeding
RM23,528,346 in the event the fifth defendant defaulted in servicing the loan.
Held:
(1) From the evidence it was obvious that the first defendant had entered into the agreement
not with the genuine intention of acquiring the said lands but merely to use the said lands as
security for a loan to be obtained from a financial institution. All these were done not only
with the knowledge of second defendant but with his full cooperation. The transaction could
not have gone through without the second defendant's co-operation. Both the charge and
the charge annexure emanated from the second defendant's office and presumably the
forgery must have originated from there as well. Even though there was no clear evidence as
to who actually forged the plaintiffs' signatures on the charge and the charge annexure, but
one thing was clear it could not have been done without the second defendant's knowledge
or connivance. It was, therefore, not unreasonable to assert that the second defendant was
not just privy to the fraud and/misrepresentation, but he was in fact a party to the fraud
and/or misrepresentation.

59
(2) However, that the same could not be said of fourth defendant. There was no evidence
showing that the fourth defendant or any of its officer was privy to or a party to the fraud or
misrepresentation. In the present case knowledge of second defendant could not
appropriately be imputed to the fourth defendant who was not privy to the fraud. The
doctrine of constructive notice clearly was inapplicable to the facts in the present ease. The
interest of the fourth defendant was not defeasible under s 340(2)(a) of the National Land
Code ('NLC').
(3) The finding of the court in Adorna Properties Sdn Bhd v Kobchai Sosothikul [2005] 1 CLJ
565 was not a mere obiter but the ratio decidendi in the case. This was confirmed by the
finding of the Federal Court. The decision of the Federal Court was binding on this court
despite whatever criticism that may be levelled against it. To hold otherwise would be to go
against the principle of stare decisis.
(4) It would be going too far to require the fourth defendant, a bank, to make an enquiry on
the valuations of the said lands. It was a matter strictly within the discretion of the bank
whether to do so or not. Failure to make such an enquiry could not be construed as pointing
to the lack of good faith on the part of the fourth defendant. Similarly, it was for the fourth
defendant to decided whether to accept the valuation done by the fifth defendant or to have
a further valuation done by their own valuer. Failure to do so could not be treated as evident
of lack of good faith.
(5) In the circumstances, the fourth defendant, being the purchaser in good faith for valuable
consideration, had acquired an indefeasible interest in the said lands notwithstanding that
the signatures on the charge document and the annexure were forged.
Subramaniam a/l NS Dhurai v. Sandrakasan a/l Retnasamy [2005] 6 MLJ 120
The respondents were the children of the deceased. The appellant was the third
defendant in the court below. There were three other defendants before the High Court but
they were not appealing against the orders made by the High Court. The third defendant
purchased the subject land from the deceased's son and the first defendant in the court
below. The High Court found that the subject land was trust property, that the first defendant
had obtained the issue document of title from the first respondent, that the first defendant
had no interest in the subject land and that the appellant was not a bona fide purchaser. The
High Court granted the respondents a declaration that the transfer to the appellant was null
and void, set aside the transfer and made other consequential orders.
(1) (per Gopal Sri Ram JCA) The first defendant had nothing and could therefore pass nothing
to the appellant. The appellant may have obtained good title if he had been a bona fide
purchaser of the subject land. But he was not a bona fide purchaser. The High Court was right

60
in setting aside the transfer to the appellant (see para 3); M&J Frozen Foods Sdn Bhd v Siland
Sdn Bhd [1994] 1 MLJ 294 followed.
(2) (per Gopal Sri Ram JCA) Section 340 of the National Land Code 1965 ('the Code') should
be read as follows. The title of a registered proprietor is indefeasible and good against the
whole world. But it is not indefeasible in cases where it has been obtained by fraud, forgery,
by means of an insufficient or void instrument, or by the exercise of a power purportedly
conferred by written law. If a title is acquired by any of these means, then the title of the
acquirer is liable to be set aside in the hands of the acquirer and all those to whom he transfers
the land except a bona fide purchaser for valuable consideration. However, the fact that the
title of a registered proprietor is indefeasible does not prevent the land from being forfeited
or sold under a statutory power. Neither does it prevent the title being defeated by operation
of law (see para 11).
(3) (per Gopal Sri Ram JCA) It was on this basis that M&J Frozen Foods Sdn Bhd v Siland Sdn
Bhd, citing Gibbs v Messer [1891] AC 248 as authority, that an acquirer who obtains his title
by means of a void or voidable instrument obtains deferred indefeasibility. Accordingly,
where title is acquired by means of a forged instrument of transfer, the title of the acquirer
may be set aside in his hands even if he is a bona fide purchaser. However, the Federal Court
in Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 1 MLJ 241, held that s 340 of the
Code admitted immediate as opposed to deferred indefeasibility.
(4) (per Gopal Sri Ram JCA) In Young v Bristol Aeroplane Co Ltd [1944] KB 718 at p 729 [1946]
AC 163, it was held that where there are conflicting decisions of the Court of Appeal, the High
Court is free to choose which it will follow. In the instant case, the Court of Appeal saw no
difference in principle in relation to the Court of Appeal and the Federal Court.
(5) (per Gopal Sri Ram JCA) The decision of the Federal Court in Adorna Properties Sdn Bhd v
Boonsom Boonyanit [2001] 1 MLJ 24 was per incuriam and not good law as it overlooked the
decision of the Supreme Court in M & J Frozen Foods Sdn Bhd v Siland Sdn Bhd and did have
regard to s 5 of the Code on the difference between a 'proprietor' and a 'purchaser'. Our
courts should no longer treat themselves bound by the Federal Court judgment in Adorna
Properties Sdn Bhd v Boonsom Boonyanit. The courts must now proceed on the basis that the
Code provides for deferred and not immediate indefeasibility.
(6) (per Ahmad Fairuz JCA) Based on the doctrine of judicial precedent, the court has no
choice but to accept and adhere to the decision of the Federal Court in the Adorna Properties
case (see para 26). All courts whose jurisdiction is subordinate to that of Federal Court should
follow Federal Court decisions until they are either reversed or replaced with another case
law by the Federal Court.

61
M&J Frozen Foods Sdn Bhd v Siland Sdn Bhd [1994] 1 MLJ 294
Siland Sdn Bhd ('the first respondent') was the registered owner of a piece of land ('the
property') which it charged to the second appellant, Eu Finance Bhd. Due to a default on the
part of the first respondent, the second appellant applied to the senior assistant registrar ('the
SAR') and obtained an order for sale of the property by public auction. M & J Frozen Food Sdn
Bhd ('the first appellant') was the highest bidder and was pronounced the purchaser of the
property. The first appellant paid a 25% deposit of the total purchase price as provided under
the conditions of sale, while the balance of the purchase money was to be paid into court
within 30 days from the date of sale. However, this was not done.
In view of this default, the first respondent entered a private caveat on the property
and commenced an action for a rescission of the contract and forfeiture of the deposit paid
by the first appellant. The caveat was subsequently removed on technical grounds. Before the
caveat was removed, the first appellant obtained an order for the completion date to be
extended. As the first respondent was not made a party in the application for extension of
time, it applied for and was granted an order for leave to intervene as an aggrieved and
interested party, and to set aside the order for extension of time. Subsequently, a year after
the date of completion, the first appellant forwarded the balance sum to the SAR who
accepted the money and issued the certificate of sale to the first appellant. The first appellant
presented the certificate for registration. The first respondent subsequently took out a
summons-in-chambers for final judgment to be entered against the first appellant who, in
turn, applied for the first respondent's action to be struck out. Both summonses were heard
simultaneously. The trial judge declared the deposit forfeited, annulled the certificate of sale
issued by the SAR and cancelled the registration of transfer in respect of the property. The
judge also made orders for the return of the issue document of title and ordered the property
to be resold.
In this appeal, the issues were: (i) whether in a sale of land in a public auction, the sale
is completed at the fall of the auctioneer's hammer; (ii) whether the court has the power to
extend time for a defaulting purchaser to complete the sale and purchase agreement after
the agreed date of completion had passed; and (iii) whether in the event of a negative answer
to either circumstance above, the High Court was empowered to make the order as it did. It
was contended on behalf of the appellant that the trial judge could not have made the order
as he did because at the fall of the auctioneer's hammer in a public auction, the sale was
completed and whatever proprietary rights which belonged to the chargor had come to an
end.
(1) The terms 'sale concluded', 'conclusion of sale' and 'sale shall be completed' as used in ss
259(2), 266 of the National Land Code 1965 ('the NLC') and s 11 of the Johor Auction Sales
Enactment 1932, respectively are merely employed to signify that point of time when there

62
was an acceptance of the bid in accordance with the sale and purchase agreement or
sometimes referred to as the conditions of sale. The sale at this juncture had only been
concluded in the sense that the goods will no longer be offered for sale to prospective buyers
and the successful bidder cannot be permitted to retract his acceptance. Thereafter, each
party to the contract of sale must perform his part of the obligation and until then, no
executed or actual sale would have been concluded. Hence the term 'conclusion' in the
context of these sections can only mean conclusion of certain aspects of the sale when there
was an agreement between the parties to sell and buy the property but the proprietary right
has yet to be conveyed from the vendor to the purchaser.
(2) At the fall of the auctioneer's hammer, no money had yet changed hands between the
parties and neither had any documents been signed. In an auction, the vendor is regarded as
having divested himself of all the beneficial interest in his land and vested it in the purchaser
only at the time when the memorandum of transfer is executed and the purchase money is
paid in full. As a bare or constructive trusteeship could only arise on payment of the balance
of the purchase price or on payment of the full purchase price, the issue of non-payment of
the full purchase price alone was sufficient to negate the constitution of any constructive or
bare trust and consequently, the asserted transfer of the proprietary right from the second
appellant as vendor to the first appellant as purchaser. In any event, s 267(1)(a) of the NLC,
which provides that the passing of the interest in the proprietary right from the first
respondent to the first appellant would occur on registration and after the issuance of a
certificate given under s 259(3)(a), clearly negated any proposition that the first respondent
abdicated his proprietary rights at that stage of the auction sales.
(3) The first respondent did not abrogate all his rights to the first appellant at the making of
the order for sale. Even after the order of sale was made and when the auction sale was
already in progress, but before a bid had been accepted, the first respondent still retained
the right to tender payment of the amount which it owed the second appellant and call off
the sale under s 266 of the NLC.
(4) The terms or conditions of sale may be varied, but this has to be done by the court after
giving the first respondent the right to be heard. As the court's power to order the sale was
derived from the statutory provisions of the NLC after giving the first respondent the right to
be heard, it was manifest that any alteration to the terms or conditions must likewise be
exercised. Any variation of the order of sale or the terms and conditions made thereunder in
the absence of and without the service of the required notice to the first respondent was ultra
vires the authority to sell under the NLC. Therefore, as the alteration of the completion date
was made without giving notice to the first respondent, the subsequent order made by the
SAR was void as being ultra vires the NLC.
(5) Indefeasibility can be rebutted not only in instances of fraud but also in cases where
registration is obtained by the use of an insufficient or void instrument or where the title or
interest is unlawfully acquired. In the present appeal, failure to comply with the statutory

63
requirements of paras (a) and (b) of s 258 and para (c) of s 261(1) of the NLC was not just a
mere irregularity, but was an illegality which struck at the root of the first respondent's right
to be heard. Therefore, the certificate issued by the SAR was ultra vires the statutory
provisions of the NLC and the title was unlawfully acquired by the first appellant. The title of
the first appellant was defeasible under s 340(2)(c) of the NLC and the learned judge had
arrived at a correct decision when he made the order for the cancellation of the registration
of transfer.

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