Land Final Notes

Malay Reserved Land

Malay Reservation - Special category of land within the boundary of a state

- Can only be owned and dealt with by Malays (natives of the state)
- Can only be transferred and leased to Malays
- To protect and preserve by prohibiting all kinds of dealing on Malay reservation land
with the non-malays

Article 160 of FC - 4 characteristics to be compiled before a person can be declared as Malay:

● Muslim
● Speak Bahasa Melayu
● Complies w Malay Customs
● Domiciled in Malaysia or Singapore

Hanisah v Tuan Mat - FC (Kelantan) declined and had left the substantive issue on whether or not the
appellant is a malay and native of kelantan
- S13 of Kelantan MRE – it is up to His Highness the Sultan in Council to decide
whether the appellant is a Malay or not
- The decision shall not be questioned or revised by any court

Article 89 of FC - Underlines the constitutional foundation of Malay reservation policy

- Revocation (Land Gazetted as MRL before Merdeka)
● Article 89(1) – only applicable to the States that had enacted the Malay
Reservation Enactment and declared Malay reservation land prior to
Merdeka.
● Section 4(i)(b) of Federated Malay Reservation Enactment 1933 – allows
Menteri Besar w the approval of the Ruler-in-Council to alter or revoke
partially or wholly the size of MRL – w/o going through the post-mortem w the
Federal Government under article 89 of the FC
● Article 89(3) – if any Malay reservation land is revoked, State Authority has to
replace w any other state land – 3 conditions for the replacement – 1) has to
 be similar in character, 2) an area not exceeding the area revoked, 3) it
should be done immediately

Foo Say Lee v Ooi Heng - FC held that the purported agreement to transfer the Malay Reserve Land
- Subject to the consent of the Ruler in Council was not contrary to the Kelantan
Malay Reservation Enactment
- The reason being– a malay reserve land may be transferred to a non-malay subject
to the approval of the Ruler in Council
- The decisions of the Rulers are final and shall not be questioned or revised by any
court

Restrictions and Transfer

Prohibitions on Dealing - Idris Bin Haji Mohamed Amin v Ng Ah Siew
● Perak Court of Appeal held that – ‘the intention of the Enactment was to
preclude Malays from parting with any right or interest in reservation land’
● The owner charged the land to secure a loan– then he executed a power of
attorney in favor of the chargee
● Further executed another agreement whereby he covenanted that the Power
of Attorney would not be revoked as long as the loan had not been fully paid
● The owner however later revoked the Power of Attorney before the loan had
been fully paid
● Court held – the combined effect of the charge and the PA amounted to an
evasion of the MRE

- Hj Hamid bin Ariffin v Ahmad bin Mahmud (FC)

● Mahmud, the owner of the MRL – sold his land to Siamese lady
● Upon execution of the sale agreement – possession of the land together with
the title deed was given to the lady
● The land remained registered in the name of Mahmud, who had since died.
● HC and FC decided that – the sale was void (refer to s6(1) and (2) of Kedah
MRE)
 Charges

T Bariam Singh v Pegawai - Mohd Zahir J. – a charge did not create an interest in land for to purposes of
Pentadbir Pesaka Malaysia Kelantan MRE – chargee is not given any interest in the land as to the enjoyment
[1983] and use of it
- His Lordship examined objects and reasons for the malay reservations enactment
– “the object of the enactment being not so much to preserve to individual malays
the lands that they own but to ensure that reservation lands shall continue to be
owned by malays in general”
- Therefore, charges to non malays are permitted – w a condition that if the land
charged sold in satisfaction of the charge no person other a malay may bid at
the auction

Registration of Charge - Every charge created under NLC shall take effect upon registration so as to render
the land liable as security – S243 of NLC
- Manner of Registration – S 304 of NLC
- Upon registration – title/ownership of the property does not vest in the charge – the
chargee merely acquires an interest in the land / over the lease
- If the charge is the first registered charge – the charge will have priority over all
later registered charges – subject to voluntary postponement of priority – S245-247
of NLC
- Possible to create any number of legal charges as long as there is nothing in the
first or subsequent charges which prohibit the borrower – from affecting further
charges in respect of his land – S241 of NLC
- In cases where there are two or more charges – take priority in accordance w the
date of their registration – unless change of priority due to S245-247 of NLC
- Once registered – the chargee acquires an indefeasible interest in the land
(exception in cases found on S340(2) of the NLC)

Unregistered Charge - According to NLC– the legal charge comes into existence only upon registration
- Lender/bank holds an instrument of charge in statutory form and the IDT has been
deposited by the borrower but failed to register – equitable charge
- If equitable charge is not supported by the remedies of the lender do not rest in
 equity but contract – he will have to rely on the provision S206(3) of NLC
- In such event (the borrower defaults) – the lender have to obtain a judgment
against the debtor and a writ of seizure and sale – Order 45 rules 12 of ROC 2012