Before the coming of the British to Malaya, could people own land in Malaya? What systems were in place? What obligations did it create? This deck is the first in the Land Law I series.

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Historical Development
LAW504 - Land Law I
Aldric Tinker Toyad
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MALAY CUSTOMARY LAND TENURE
Nature of
Ownership
Method of
Acquisition
Tax Obligations Use Obligations Sale Security
Sahrip v Mitchell & Anor (1877) Leic Reports 466
“It is well known by the old Malay law or custom of Malacca, while the sovereign was the owner of the soil, every man had nevertheless the right to clear
and occupy all forest and wasted land, subject to payment to the sovereign of one tenth of the produce of the land so taken. The tree he planted,
the houses he built, were his property, which he could sell or mortgage or hand down to his children. If he abandoned the paddy land or fruit trees for
three years, his rights ceased and the land reverted to the sovereign. If, without deserting the land, he left it uncultivated longer than usual and
necessary, he was liable to ejectment.”
• Ruler has absolute
ownership over
land
• Rights of
landholders are
proprietary and of
occupation which
may be transferred
• Anyone may open
and cultivate
• Virgin jungle or
waste land
• One tenth (10%) of
produce paid to the
Ruler
• Continuously
cultivate the land.
• Neglecting the land
reverts rights to the
Ruler.
• Uncultivated may
lead to ejectment.
• Pulang Belanja
• Land-holders sell to
recover cost of
labour and out-of-
pocket expenses
incurred in
cultivating and
developing the
land.
• Jual janji
(conditional sale): to
money in exchange
of proprietary rights
for a period. Land
returns to land-
holder upon
settlement.
• Default or failure to
pay leads to iual
putus (absolute
sale). Purchaser
owns the rights.
Rights Retain Transact
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Maxwell’s Theory Refuted
An extra reading is the article by Hunud Abia Kadouf (The Traditional Malay Ruler and the Land: Maxwell's Theory
Revisited [1997] 1 MLJ cxxi) who explored WE Maxwell’s theory.
• It is somewhat material to understanding historical context as the author argues the error and fallacies of imposing
English law concepts and terms to express local customs. The author quoted Amodu Tijani v The Secretary, Southern
Nigeria [1921] 2 AC 399:
“…there is a tendency, operating at times unconsciously, to render that title [held by the natives] conceptually in
terms which are appropriate only to systems which have grown up under English Law”
• There is no evidence from any state that the ruler’s relationship with the village population was based on an assertion
of sovereign land and ownership of the whole territory of the state (Gullick, 1992)
• Traditional Malays have already had experience some sort of “a private ownership of land” (David Wong, 1975).
Acquisition, permanent or continuous occupation by cultivators and inheritance rules indicate activities associated
with private ownership.
• While Maxwell’s theory on land ownership by the traditional Malay Ruler may be inaccurate, it formed the theoretical
framework for the modern doctrine of state ownership of lan.3
• Maxwell’s theory was nurtured by the British colonialists as it formed the legal basis for land control upon which they
eventually built their policies for land development and tenure reforms in the then Malay states.
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