Introduction

Before Malaysia gained independence, land law existed there. Before 1957, when Malaysia became
independent, Malaya, or Tanah Malaya, was made up of the following entities:

- The Straits Settlements, which include the States of Melaka, Singapore Island, and Penang
Island
- Perak, Selangor, Negeri Sembilan, and Pahang make up the Federated Malay States.
- Unfederated Malay States: which include Terengganu, Johor, Kedah, Perlis, and Kelantan

Each of these entities used to have unique land tenure regimes that prevailed in their respective
regions. In Malaya, the idea that "one who fells the trees owns the land" was in use prior to 1400.
The custom defined the holder of the land tenure as any anyone who completed the work of
clearing waste land, so long as he also planted a crop there and gave a tenth of the harvest to the
Sultan or the State Authority.

The land will revert to the Ruler or the State if these two requirements are not met. The affairs
pertaining to the Malays' land were, however, governed by the laws of Islamic law regarding land
tenure over the decades between the years of 1400 and 1786 when Islam arrived in Malacca. The
local customs persisted and eventually evolved into Malaya's customary law. In a few instances, the
court had upheld the supremacy of Islamic law. This is demonstrated in the case of Ramah v. Laton, a
Court of Appeal ruling from the Federated Malay States that established Islamic law as the rule of
law and required local courts to give it judicial notice. A case involving jointly acquired marital
property in a Muslim marriage is Ramah v. Laton.

Another Johore case was determined by the High Court in accordance with Islamic law. In Patimah
binte Hanis v Haji Ismail bin Tamin, a Muslim wife argued that Islamic law entitled her to a portion of
a plot of property. Some fascinating facts demonstrate how the prevalent religion of Islam had a big
impact on Malaysia's land regulations prior to the Torrens system. For instance, in the event of the
husband's death or divorce, the wife would receive any land that the husband bought while the wife
was only a housewife.

Federated Malay states

Perak, Selangor, Negeri Sembilan, and Pahang were the four states that made up the Federated
Malay States. Federated Malay States was the first country to use the Torrens system of title
acquisition for usage in Malaya. The British government established the British Resident System
during the period of British intervention, under which a British official, known as a Resident, is
assigned for each State. With the exception of matters involving Malay tradition, the resident's
advice must be sought.

Following that, in 1911, the FMS passed the Land Enactment No. 11 of 1911 and the Registration of
Titles Enactment No. 13 of 1911. The 1911 law was in effect until it was modified by the Federated
Malaysian States Land Code in 1928, and then it was repealed and replaced in 1965 by the current
National Land Code.

Unfederated Malay states

Regarding the Unfederated Malay States, the Land Enactment was first implemented in the states of
Johor, Kedah, Kelantan, Perlis, and Terengganu beginning in 1912. The National Land Code of 1965,
which had the goal of establishing an unified system of land law and title registration throughout all
of Peninsular Malaysia, replaced the Torrens legislation that had been implemented into each state.
Adat Temenggong and Adat Pepatih

The relevant provisions of the National Land Code 1965 now govern lands held under adat
temenggong in both the Federated and Unfederated Malay States, as opposed to the state laws that
were previously in effect. The Customary Tenure Act (Cap 215) of the Federated Malay States
continues to conserve and manage lands owned under adat pepatih in Negeri Sembilan. These lands
were governed by the Negeri Sembilan Laws as Mukim land.

Penang and Melaka

For Penang and Malacca, the Indian Act of 1839 was passed and remained in effect until the
enactment of the Conveyancing and Law of Property Ordinance and the Registration of Deeds
Ordinance in order to offer an improved system of land tenure based on the deed system. The
Penang and Malacca Titles Act of 1963, often known as the National Land Code, was passed in 1963.
Regarding the tribal land owned under the Naning custom, it is currently protected by the Malacca
Customary Land Register and the National Land Code (Penang and Malacca Titles) Act of 1963.

Sarawak

The Torrens method of recording land titles, used in the Malay States from the later half of the 19th
and 20th centuries, served as the foundation for Sarawak's land tenure system beginning in the first
third of the 20th century. Since then, the current Sarawak Land Code has preserved this procedure
of title registration (Cap81).

Sabah

The Torrens registration system was not the foundation for Sabah's system of land tenure. Since
then, the Sabah Land Ordinance (Cap. 68) has maintained the alternate system of land registration.

Penang Island was a part of Kedah in the 17th century and was governed by a Sultan. When Francis
Light arrived to discuss leasing the island in the 18th century, the Sultan was dealing with issues from
the Siamese and the Bugis, respectively. In exchange for the lease of the Island, the Sultan believed
that the British would provide military support to Kedah in repelling the Siamese and the Bugis.
Sadly, after signing the three different treaties in 1786, 1797, and 1800, the Sultan was forced to
cede the Province Wellesley and Penang Island to the British due to lies and threats.

The British never established a colony on the Island of Penang as a result of the three treaties. In
actuality, the Sultan had leased it to the British at first (East India Company). Legally speaking, the
Island was given to the British but was not populated. As a result, the Malay custom and Islamic law
that were then in effect in the State of Kedah should have been recognised as the lex loci of the
Island and allowed to remain in effect. On the other hand, Penang shouldn't have been governed by
English law.

In the case of Ong Cheng Neo v. Yeap Cheah Neoh, the Privy Council noted that the Island was
completely uninhabited when the British came, raising the issue of what law had been made
relevant. Since there is no evidence of any laws having been formed there when Penang was
captured by the British, it was actually immaterial whether the Island should be considered a ceded
or recently populated territory (East India Company). Penang was ceded, but after that it was
considered to be a settled area for all intents and purposes.

The three Charters of Justice adopted by the English Parliament led to the introduction of the English
Deed System in the Straits Settlement. The first occurred in 1807, shortly after Penang was acquired;
the second, in 1826, following the acquisition of Malacca and Singapore; and the third, in 1955.

The English Deeds system was implemented in Penang in 1807 as a result of the three Charters of
Justice passed by the English Parliament. There were no official laws governing land tenure in
Penang at the time. The ownership of land is not transferred through conveyance or deeds under
the Deed system. This means that the only legal basis for a land transfer is a set of documents signed
by all parties. As the dealing was not registered, there was no security or assurance of title. The
system had a problem because it simply required the title paperwork as proof of ownership. It could
be challenging to identify the real landowner if the title is missing or has been falsified.

There were a number of flaws found. The colony's then-Governor, Sir F.A. Weld, had noted the
following shortcomings: Discrepancies between the area (size) of the property actually occupied and
the area stated in the title, as well as encroachment on state land or illegal occupation of state land,
make it difficult to identify the true owner of the property due to multiple dealings, difficulties in
preparing rent rolls that cost the state money.

After receiving approval from his administration, Captain Francis Light promised that written grants
would be given to individuals who are ready to clear and occupy land in Penang for the purpose of
development and clearing land. However, Francis Light only made a very small number of real
written grants. These grants were consistently regarded as grants made in fee simple.

His government validated Francis Light's verbal and written awards, but no precise record or register
was preserved. Land in Penang was also held on what were known as "measuring paper" and
"cutting paper" in addition to this formal gift. This document, to which the local surveyor of the East
Indian Company attached his "chop" (or seal), listed the name of the country, the first settler, the
rent, and the limits of the land cleared. The individual listed in the document had the authority to
own, sell, mortgage, or otherwise transfer the land.

The following tenures were used to hold onto land in Penang until 1837: verbal licences issued by
Francis Light, cutting paper, measurement paper, written official grants in fee simple, and long-term
land occupancy that was taken without a valid court order. The Straits Land Act, also known as the
Indian Act of 1839, established a land office that would issue titles and register transactions solely
for record-keeping purposes, collect land income, and carry out surveys. Surveys weren't conducted
despite the efforts. As a result, this law did not assist the administration in obtaining land revenue.
However, the Straits Land Act was still in effect in the Straits Settlement until a number of laws were
passed in 1886 with the intention of establishing a more reliable deed system.

The framework for converting Penang's legal system to the Torrens System, which was in use in
other states on the Peninsula, was provided by the National Land Code (Penang and Malacca Titles)
Act. The 1963 Act (as amended in 1965) and the NLC 1965 went into effect simultaneously on
January 1st, 1966, abolishing the Deed system in Penang. From 1511 until 1641, Malacca was
governed by Muslim Sultans before the Portuguese took control of the city. Following the
Portuguese, the Dutch took control of Malacca, which they held for 130 years before turning it over
to the British in 1795. The Dutch once again controlled Malacca from 1801 to 1807, but in 1824 they
eventually handed it up to the British. Following the Anglo-Dutch Treaty of 1824, the English
acquired control of Malacca from the Dutch, but the city already had its own lex loci, which
combined Islamic law and Malay tradition.

All land in Malacca belonged to the Ruler or Sultan. In Sahrip v. Mitchell, it was decided that the
land's occupant or owner must give the Ruler one-tenth of the land's yield and that the land must be
constantly farmed. The saying "one who fells the trees owns the land" was prevalent at the time. By
clearing land and then occupying it continuously, this property right is produced. The land's current
occupant has a stake in it and is qualified to charge or assign it. Whether Malacca was occupied by
the Portuguese, the Dutch, or the British, the people kept their traditional tenancy. Actually, there
was no interference with such systems, and grants were given out in a fee-simple manner. The two
types of land grants recognised in Malacca during the Dutch occupation are grants of country land
held by concessionaires who were permitted to collect tithe from the occupier, typically an
indigenous cultivator, and grants of town land held under a title for which dealings had to be
declared and proven to the Court of Justice. The Dutch grant was transformed into a fee simple after
the British acquired control of Malacca.

Similar to Penang, there was an issue in Malacca where the land was not surveyed and the British
experienced tax loss since there was no proper system of registration. Regulation IX (also known as
the Malacca Property Regulation), which was adopted in 1830, had a clause stating that the East
India Company will continue to control the specifics of land tenure. By enacting an Act in 1837, the
local land regulation was eliminated in preparation for the establishment of a general land law (No
XX of 1837). The Indian Act No. XVI of 1839, which among other things recognised prescriptive land
rights, was first introduced in 1839. The adat notion of ownership through occupation and
cultivation was reflected in these rights.

The Malaccan Land Ordinance 1861, which established the status of land held under customary
tenure, included provisions for a survey of customary lands. The survey was never conducted,
though. The Malacca Lands Customary Rights Ordinance 1886, which was later introduced,
established customary tenure based on occupation and agriculture. Up until the NLC (Penang and
Malacca Titles) Act of 1963 went into effect, the 1886 Ordinance was still in effect. The Torrens
System, which had already been in use in other Malay States of Peninsular Malaysia, was to be
implemented in Penang and Malacca under the terms of the NLC (Penang and Malacca Titles) Act
1963. On January 1st, 1966, the Deed system was abolished in Penang and Malacca.

In Peninsular Malaysia, there are primarily two types of adat practised which are Adat Perpateh, first
(including Adat Naning) and Adat Temenggong. The MCT is occasionally bound by adat, or custom,
that many of the Malaccan residents adhered to. The majority of the Malays in Malacca and Negeri
Sembilan adhere to it as their own law. Similar to the 'adat perpateh in Negeri Sembilan, a system of
land tenure is used in some districts of Malacca. Adat Naning is another name for this tenure.
According to adat perpateh, the female tribe member who lives on tribal land is the land's owner,
while the male occupier works on the property for the benefit of the female tribe members.
However, a man is allowed to hold certain properties in his own name and for his own advantage.
For instance, he is allowed to own and deal with harta pembawa (property that he has inherited or
acquired through purchase).

Winstedt claims that Adat Temenggong is "mixed with remnants of Hindu Laws and covered with
Muslim Law." The land is afforded legal protection by being designated as mukim land under the
Malay Reservation Enactment or the Registration of Titles or Land Enactments. Early titles issued by
the British in Malacca were endorsed as customary land and episodes of ownership were governed
by tribal adat laws in order to maintain the tribal holdings. The land is no longer tribal land if it is sold
to an outsider (a person who is not a member of the tribe in question) with the tribe's approval.
Adat perpateh and adat Naning lands are expressly protected by Section 99 of the NLC (Penang and
Malacca Titles) (amended) Act 1965.

The Federated Malay States, which include Perak, Selangor, Negeri Sembilan, and Pahang, and the
Unfederated Malay States, which include Kelantan, Terengganu, Kedah, Perlis, and Johore, were
created out of the Malay States. Selangor followed Perak in becoming a British Protectorate in 1874.
Pahang and the different Negeri Sembilan states received British protection in 1888 and 1895,
respectively. The four states were then combined into a federation known as the Federated Malay
States in 1895. Under the rule of the Malay Sultans, each of the Malay States was an independent
nation with its own government and legal system.

The Malay States historically had their own legal codes, such as the Perak Code, the Malay Digest,
and the Kanun Laws of Malacca. Malay Customary Tenure was the main law that governed land
tenure. The Ruler was considered to have complete ownership of the land under the custom. Upon
occupation and ongoing cultivation, the subjects may acquire proprietary rights. The land will revert
to the State or Ruler if one-tenth of the output is not paid or if it is abandoned. As long as the Ruler's
commitment is consistently met, all transactions are acceptable.

A series of regulations known as the "Rules for the disposal of lands in Selangor" were already in
place when the Torrens system was implemented in Selangor on September 27, 1877. These
regulations stipulated that the government would always award leaseholds. Land was categorised
generally into: Land used for agriculture, land used for construction, and special-purpose land.
Unless otherwise approved by the government, leases for land used for agricultural purposes had to
be for a length of 999 years. The British Resident in Perak published a notice in 1878 titled "Terms on
which Agricultural Lands Will be Granted" This was in reference to the agricultural lands that weren't
being used to their full potential at the time. The General Land Regulations of the FMS established a
system of land tenure: 1879, in Perak, 1882 in Selangor, In 1889, Pahang, 1887 in Negeri Sembilan.

The Title Registrations In Perak, Selangor, Pahang, and Negeri Sembilan, enactment first appeared in
1897, 1891, 1897, and 1898, respectively. Each state's enactment was intended to establish a rigid
Torrens System. When W.E. Maxwell was appointed the British Resident in Selangor in 1889, he
instituted the first Torrens system. In 1879, the Perak Notice and the Selangor Rules were modified
and combined into a single set of regulations that were adopted in both Perak and Selangor.

The phrase "Special Regulations for the Leasing of Waste Lands" Agricultural land was to be held
under a lease that was decreased from 999 to 99 years under this regulation. The land required an
annual quit rent and premium payment. The General Land Regulations were introduced in Perak the
same year as the 1879 Special Regulation. Other types of land, including as town, village, and mining
land, were also covered by these restrictions in addition to agricultural land.

Selangor replaced its Special Regulation in 1882 with the First Land Regulation, which was nearly
identical to Perak's General Regulation of 1879. The Perak General Regulation of 1879 was In 1885, a
similar set of General Land Regulations took their place. allowing for perpetual grants and 99-year
leases in place of 999 annual leases. In 1887, Negeri Sembilan enacted a similar law and in 1889, in
Pahang. A set of land regulations that Maxwell created were later approved in 1891 as the Selangor
Land Code. The Code, on the one hand, consolidating and enhancing the current leasehold system,
the other it claimed to offer a distinct form of land tenure to the indigenous holdings.
The four Malay States simultaneously introduced new, unified land laws in 1897. This land
enactment split land into three categories as such, town land, rural land of 100 acres or less, and
rural land of more than 100 acres. The ownership of land in classes (a) and (c) was to be on a
leasehold basis. Land in class (b) was to be held solely by registration in the regional register, which
later became known as the Mukim register. The Mukim register's definition of the landowner was
that he or she had a perpetual, transmissible, and transferable right, interest, and occupation over
the land (section 27).

In 1903, the 1897 Land Enactment was overturned and re-enacted. It was then overturned and re-
enacted in 1911. The 1911 Land Enactment was in effect until 1926, when the FMS Land Code was
passed, and the Torrens system was implemented in the four states. On January 1st, 1928, this Land
Code went into effect. For all private land holdings, this Code established a single, uniform body of
law. By treating both equally under the same set of regulations, it eliminates previous statutory
distinctions between the rights of the owners of lands held under Mukim register and leasehold
ownership. What was previously referred to as a "permanent right of occupation" in the prior
instance was now considered a grant in perpetuity. The expansion of the Torrens system into lands
held under the Mukim register was the most significant amendment made to the Land Code. The
leasehold system was already completely developed in the past and was finally recognised as the
only type of land tenure in the FMS by the Land Code of 1926. The Land Code 1928 replaces this
Land Code from 1926. All states in Peninsular Malaysia adopted the NLC 1965 as their common land
law on January 1, 1966. Thus, By 1898, all the four States followed the Torrens system.