Chapter 1: Transfer

1.1. Dealings

✔ Section 5 defines dealing as any transaction entered into in accordance with NLC
(Division IV) giving rise to a substantive entry on the RDT.
✔ Division IV: in regards to transaction concerning alienated land except for the category
agricultural land or such dealing of agricultural land will have effect of creating
undivided share which would be less than two-fifths of a hectare. (s.205(3)). However,
this condition does not affect land that is less than two-hectares.
✔ Types of land dealings in NLC
1. Transfers
2. Leases
3. Charges
4. Easements
5. Tenancies exempt from registration Requires no registration
6. Liens
✔ Dealings should be registered under s.206(1)(a). Registration results in statutory
interest.
✔ Failure to register will result to equitable interest and enforceable under s.206(3) which
is under contractual obligation.
✔ Registrable registrable interest can proceed to be registered
✔ Tenancy and Lien are not registrable under the NLC but Tenancy can be endorsed and
Lien can be caveated.
✔ For unregistered unregistrable interest, a decree of special performance is required
before proceeding to seek for registration.

1.2. Transfer

✔ Sections 214-220 NLC

✔ s.214: Land that can be transferred
1. Whole of alienated land
2. Whole of undivided share in alienated land
3. Lease
4. Charge
5. Tenancy exempted from registration
✔ s.215: Registration shall be effected by Form 14A. The title of transferor shall be passed
upon registration.
✔ s.215(3)(a) Transferee is bound by any prior lease, charge or registered interest
✔ s.215(3)(b) transferee is not bound to any tenancy exempted from registration.
✔ Method of transfer of undivided share are;
 Method 1
- s.217(2A): Under Form 14A, when a co-proprietor of any alienated land transfers his
undivided share to one or more of the other co-proprietors, the undivided share or the
proportion of the undivided share transferred to a co-proprietor shall mere with the
undivided share held by him and form a single share.

Method 2
- # Peter Lai Khee Chin v Collector of Stamp Duties [1973] 2 MLJ 33
F: P the husband transferred his land to himself and his wife

Held: Land can be transferred either (1) to 2/more people or (2) to the original owner and the new
owner.

- # JC & MC sdn bhd v MATAD sdn bhd [1997] MLJU 341

F: They had a joint-venture agreement, there is a piece of land with undivided share. Plaintiff want
to transfer his half. Defendant did not allow as 214(1)(b) contradicts.

Held: Court held that it does not contravene because he transfers whole of his undivided Share but
not part of it.

- # Tang Peng Huat & Anor v Tan Boon Chonh [2015] 3 MLJ 200
F: Low Lin AIk and Tan Moi Hong purchased a land which was a portion of a land held under Lot
380. Thus, LLA and TMH each held 1/2 undivided share in the portion of the lot 380. On
30/9/76, LLA by a Deed of Assignment sold all his 1/2 undivided share to the 1st and 2nd
plaintiffs in equal shares without the knowledge of TMH.

Held: The court held that the Deed of Assignment Is valid as LLA had assigned the whole and not
part of her undivided share. This is with respect to the undivided share which LLA herself
owned.

1.3. Procedure of Transfer

1) Purchaser and Vendor seeks the assistance of solicitor (usually P) to see the transaction
through.
2) Solicitor obtained the necessary particulars of parties and relevant information pertaining to
the land.
3) If there are encumbrances on the land (caveat and etc) provisions would be made as to how
P should have discharged them.
4) S&P incorporating all the agreed terms is prepared and executed by parties.
 5) Upon execution, P pays deposit to V. Balance of purchase price to be paid before
completion of date.
6) Upon payment of balance, C handovers duly completed and executed Form 14A for
registration.
7) Execution of Form 14A must be attested as per Schedule 5.

1.4. Solicitors Duty

- Proactive steps to ensure to advise the client of matters where advice is specifically
requested; AND
- Matters which the solicitor, acting with reasonable skill and diligence would foresee as a risk
to the client.
# Mulpha Kluang Maritime Carriers v Philip Koh Tong Ngee [2015] 8 CLJ 555
F: The plaintiff sought advice from the advocate as advocates and solicitors for the sale and
purchases of two lots of land (lot 643 and 644). After full payment was paid to the vendor,
the plaintiff discovered that a portion of the lots had been surrendered by the vendor to the
state authority in 1988. It was endorsed in the Issue Document of Title of the lots and the
land searches by the defendant. The plaintiff then brought an action against the defendant.
The issue was whether the defendant owed a duty of care as a solicitor for the plaintiff and
breached it.

Held: The court held that it is the duty of the solicitor to ensure that all the documents pertaining
to the transaction of land is properly prepared, to carry out a thorough inquiry and to
ensure that all the details which are stated in the transaction document is correct. Here the
plaintiff has breached that duty by failing to advice and exercise requisite care and skill in
regards to the Surrendered Area and thus liable for negligence. The court awarded the
plaintiff with damages amounted to RM20,000.

# Chang Yun Tai & Ors v HSBC (M) Bhd & Other Appeals [2011] 7 CLJ 909
F: Appellants entered into S&P with a developer and obtained financing from the Resp (financier).
Appellants alleged that the S7P entered between them and the developer was void in law
and therefore the Financing Agreements signed with the Resp were void and were of no
effect. Q: Whether the Resp had the duty to enquire and/or ensure that the S7P was free
from illegalities

Held: The court was in the view that the respondents do not have duty to enquire the legality of
the SPA. R not a party to the SPA. The duty is cast on the appellants rather that the R to
ensure that SPA is free from any legal infirmity. A have the duty
 # Rajehgopal a/l Velu v Ganashalingam a/l Rajah [2016] 1 MLJ 406
F: The Respondent’s late mother and another were the registered owners of a piece of landed
property. In 2002, the property was transferred to one Soo Chee Ming under form 14A
purportedly signed by the respondent’s late mother and the another. The signatures were
attested by the appellant which was the advocate and solicitor. The Respondent’s mother
passed away on 1994 and the ‘another’ claim to never have signed the form. By the reason
above, the appellant had committed fraud.

1.5. Stakeholder

- Appointed to facilitate smooth completion of the transaction

- Not an agent for either party.
- Duty – hold the money pending the outcome of an event and dispose of it in accordance
with the terms on which it is held.
# OCBC Bank v Lee Lee Fah & Anor Appeal [2000] 1 MLJ 134
Held: Although the stakeholder was nominated by the purchase, both parties had mutually
agreed that the solicitors be made the stakeholder under the condition of the S&P. Even though
the solicitors were nominated by the purchaser. By handing over the balance of the purchase
price to the stakeholder, the purchaser had done everything that needed to be done under the
agreement. The purchaser had parted with the balance of the purchase price beyond recall to
the stakeholder. The purchaser was under no duty to ensure that the money in the hands of the
stakeholder was actually handed over to the vendors. The loss had to remain where it fell in the
hands of the vendors and their remedy lay only against the stakeholder (see p140F
# Kuldip Singh & Anor v Lembaga Letrik Negara & Anor [1983] 1 MLJ 256
F: According to the standard procedure for application for housing loan the plaintiffs were
required to appoint a solicitor for the purpose of the transfer of the house and the cheque for
the payment of the loan would be issued in the name of the solicitor, and the plaintiffs the
plaintiffs gave the name of Kirpal Singh Brar & Co as the solicitor appointed. The plaintiff gave
the cheque to Brar and Brar ran away.
Held: At the time when Brar appropriated the $46,000 he was no longer holding it in the
capacity of stakeholder but in the capacity of solicitor for the plaintiffs, because upon the
occurrence of the aforesaid events, he as solicitor for the plaintiffs was supposed to pay a part
of the money to the bank and the balance to the second defendant. Therefore, the plaintiff is
the one whom has to bear the cost.
1.6. Bare Trust

- Bare trustee = One who merely holds property on trust with no interest in or duty as to the
trust property, except to convey it when required according to the directions of the
beneficial owner.
- V becomes a bare trustee for P with the beneficial ownership in the land passing to P
- This occurs when V has done all that is necessary to divest himself of the legal estate by
executing a valid transfer of the land in favour of P.
- This doctrine applies in cases of competing claims to title or interests in land would result in
first purchaser who has yet to present the instrument of transfer for registration, having
priority to the land as against a subsequent bona fide purchaser for value who has taken the
precaution of entering a caveat in respect of the land and who had made a search on the
register and had found it clear

# Temenggong Securities Ltd & Anor v Registrar of Titles & Ors,

Held: The defendants have received full purchase price from the plaintiff. When the plaintiff
pays the balance of the purchase price in full. The first defendant thereupon becomes a ‘bare
trustee’ for the plaintiff and such full trusteeship operates retrospectively. So because of the
retrospective effect of the trusteeship, the defendant effectively became the bare trustee of
the plaintiff.
# Ong Chat Pang v Valiappa Chettiar [1971] 1 MLJ 224
Held: There are 4 conditions that the purchaser needs to be fulfilled in order to make the
vendor as a bare trustee which are;
1. There must be a contract
2. The purchaser has carried out and fulfill all obligations under the contract.
3. The vendor must have the title of land
4. Vendor has no duty to perform other than those executing the transfer and
performing the transfer document.

# Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd [1996] 2 MLJ 12
F: The case concerned on the issue of applicability of the concept of bare trust that connected
with the equitable principle. In this case, the charge was made before the vendor became the
bare trustee. At the time the finance company’s charged was created and registered the
developer was not yet a trustee of the purchaser under the agreement. Thus, charge was valid.
No court would grant specific performance of the sale and purchase agreement. The trustee or
beneficiary relationship will not be applied in a vendor and purchaser situation where the
contract of sales and purchase is not one of which a court would grant specific performance.
# Wong Siew Choong Sdn Bhd v Anvest Corp Sdn Bhd [2004] 4 CLJ 89
F: The respondent purchaser obtained an order for specific performance of a sale and purchase
of land that it had transacted with the appellant vendor. However, before the completion of the
contract of sale of the subject land, part of it was acquired under the Land Acquisition Act 1960.
The High Court judge held that the respondent was the beneficial owner of the subject land at
the time of acquisition and that the acquisition award should be deducted from the purchase
price of the subject land.
Held: In the present case, the evidence showed that a duly executed valid and registered
transfer of the subject land in favour of the respondent had yet to be executed at the time of
acquisition. For this reason, the appellant had not divested itself of the beneficial interest in the
subject land at the time of acquisition. Hence, the acquisition award rightfully belonged to the
appellant.
Chapter 2: Lease and Tenancy

2.0 Introduction to Lease

✔ Definition: Lease – an interest in land granted by the lessor (whether owner/not) to a lessee for
a certain period.
✔ Under 221(2) a lease must be at least a minimum of 3 years ans a maximum od 99 years for
whole alienated land and 30 years to a part of it only.
✔ Registration shall be in Form 15A (s.221(4))
✔ Any unregistered lease can be enforcing contractually under s.206(3).

# Margaret Chua v Ho Swee Kiew [1961] 1 MLJ 173

F: Appellant borrowed money from respondent to build a house. In condition, the appellant will give a
lease to Respondent for 25 years. Later appellant sold the land and the new purchaser sent a notice to
quit to the Respondent. Respondent requested injunction to retain the land from selling the land but the
land was already sold. Therefore, Respondent request compensation from appellant.

Held: Although the agreement was void as a lease for lack of registration, it is still a good and valid
agreement for lease – can be enforced in equity by a decree of specific performance. Failure to comply
with which was clearly a breach of contract. Appellant is liable for damages.

2.1 Introduction to Tenancy

✔ Tenancy or ‘Tenancy exempt from registration’ means, any tenancy or sub-tenancy

for a term not exceeding 3 years, s213(1)(a) or not exceeding one year pursuant to
any previous land law, s213(1)(b).
✔ S.213(2)(a): Tenancy can be in oral or writing.
✔ S.213(2)(b): Written tenancy does not and cannot be registered under the NLC.
✔ Interest of Tenancy can only be enforced if it is endorsed, s.213(3).
✔ If the land is sold, the new land-owner is bound by the tenancy but only if it is
endorsed s.213(4).
✔ There are two types of tenancy which are;
i. Fixed Term Tenancy: fixed period of up to 3 years
ii. Periodic Tenancy: granted for a short period with automatic renewal unless
terminated by notice to quit.
✔ Tenancy at will is when a person’s lease or tenant has expired but they remained on
the land without paying and no action was taken by the land-owner. However as
soon as any rental is made, it shall become a periodic tenancy.
# Hotel Ambassador v Seapower [1991] 1 MLJ 404
F: The Appellants had a lease over a land for 10 years. After expiry, they continued to live there
on a monthly tenancy. The land was charged and bought by the Respondent in a public auction.
The appellants later applied for a declaration that they were the lawful tenants of the said
property and for a restraining order against the respondents.
Held: No tenancy exempt from registration granted by the chargor after the date of registration
of the charge shall be binding on the purchaser unless prior to the date of registration of the
certificate of sale, the tenancy had become protected by an endorsement on the register
document of title.

2.2 Characteristics of Lease/Tenancy

2.2.1 Right to exclusive possession

✔ Once the land is leased/tenanted, it gives the lessee and tenant an exclusive right of
possession – may exclude everyone from the land including the landlord himself
✔ If the landlord retains right to enter/remains in general control of the premises, the person
is only a licensee
2.2.2 Definite period capable of being ascertained
# Siew Soon Wah v Yong Tong Hong [1973] 1 MLJ 133
F: The respondent had occupied certain premises and alleged that it was agreed with the
landlords that the tenancy should be permanent (as long as the respondent wished to occupy)
and that the landlord should not increase the rent as he liked or eject the tenant by force.
Held: the word ‘tenancy shall be permanent” was clear that it meant the landlord is bound
himself not to increase the rent as he liked and not to eject the tenant by force. Their lordship is
of the opinion that the agreement was not so vague and uncertain as to be void for uncertainty.
The intention clearly was that the landlord should let the premises to the respondent for as
long a period as it was within his power to do so and that he should not be able to eject the
respondent so long as he paid the stipulated rent and that the respondent should be entitled to
occupy the property so long as he wished and so long as he paid the rent.
2.2.3 Payment/Rental
✔ There must be payment.
⮚ However, Special Peformance may be granted for full performance when the lease
agreement has been peforemd partly despite claims of ambiguities.
# Lin Nyuk Chan v Wong Sz Tsin [1964] 1 MLJ 200
F: Appellant had entered into a tenancy agreement for 15 years. The agreement was a payment
of &650 but subjected to variation according to market rental values.
Held: Having regard to all that was provided for in the lease there was nothing so fundamental
as to deprive the appellant of a decree of specific performance especially when rent was paid
and accepted by both parties at $650 a month for practically 12 months. It is therefore not now
open to either party to contend that the rent is uncertain from the outset. The appellant had
been in possession for nearly three years and was still in possession without any attempt by the
landlord to evict him.

2.3 License

✔ A license does not grant a person interest in land like lease or tenancy.
✔ It merely makes an act lawful (without which, it would have been unlawful)
✔ Licensor is entitled to evict an occupying licensee without court order.
✔ Licensee is not entitled to sue a third party for nuisance.
✔ There are two test to determine whether it is a lease/tenancy or a license.
✔ Exclusive possession test
- It is a tenancy when the grantee is given the exclusive possession for a
certain period of time and in return receives payment. However, this test
is not definitive.
✔ Expressed intention test
- The parties must have intended to create a lease/tenancy and not a mere
license. i.e. whether a person is granted exclusive possession of the
premise. Intention may be gleaned from the terms of the agreement.
# Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131
F: Appellant had shophouse and entered into an agreement where the Respondent can live at a
portion of the 1st floor for 10 years. Later appellant installed a cupboard and cause obstruct the
passageway. Respondent asked to remove it and request front keys also. Appellant claimed
that it was a the respondent’s stay was on license and not tenancy.
Held: Exclusive possession is no longer a decisive test. The ultimate test is the nature and
quality of the occupancy: whether it is intended that the occupier should have a stake in the
premises sub-let or whether he should have only a personal privilege. In this case, the
agreement used the words ‘chief tenant’ and ‘sub-tenant.’ There were also restrictions in the
agreement such as the chief-tenant can to enter the premise to check the condition. there was
a term for termination of the tenancy upon breach of covenant, and for continuation of the
tenancy on giving six months' notice before expiry of the current tenancy. There was also a
covenant for quiet and uninterrupted enjoyment. As a whole, the court held that there was
intention to make tenancy.

2.4 Effect of lease on Third Party

2.4.1 Registered Lease

✔ S. 216(1)(a) – the new proprietor will be bound by the express/implied provisions of the
lease
✔ Lessor is not obliged to obtain consent of lessee/tenant prior to transferring the land to
another BUT lessor should ensure that he does not breach the covenant for quiet
enjoyment in S. 232(1)(a)
2.4.2 Unregistered Lease
✔ Unregistered lease – not binding on the subsequent proprietor [general rule]
✔ It can still be enforced as a contract or agreement. S.206(3) [Maragaret Chua v Ho Swee
Kiew]
✔ If the lessee has gone into possession pursuant to the agmt, the court of equity will not
hesitate to grant specific performance [(Lin Nyuk Chan)
✔ May be treated as a tenancy-at-will and then revert to a periodic tenancy (Cheng Hang
Guan v Perumahan Farlim)
# Walsh v Lonsdale
Held: If the lease is not registered and the tenant gone into possession, he obtained an
equitable lease – the agreement is still valid as an agreement for lease and can be enforced in
equity for specific performance – mode of payment in equity is payment in advance

2.5 Effect of Tenancy on Third Party

✔ If an endorsement is made, the tenancy will bind the new proprietor.

✔ Without endorsement, actual or constructive notice is immaterial as it shall not bind the
new proprietor s.213(3).
✔ In a judicial sale, tenancy created prior to the registration of a charge (but not endorsed)
will not bind the purchaser – s. 267(2)
# Than Kok Leong v Low Kim Hai [1983] 1 MLJ 187
Held: the said oral agreement came under s.213 of the NLC and was therefore not binding on
the plaintiff. S.213(3) impliedly excludes the question of knowledge or notice actual or
constructive because it says that "unless prior to the date on which the dealing referred to, the
tenancy has become protected by an endorsement on the registered document of title". The
defendant's contention that "actual notice of occupation of possession amounts to constructive
notice of the extent and interest of the person in possession" must therefore fail. The principle
of equitable notice as found in English law has no application in land dealings in Malaysia:
section 6 of the Civil Law Ordinance 1956;

2.6 Tenancy Coupled with Equity

✔ Tenant is in possession of land/premise based on the encouragement of the landlord

✔ Relying on this encouragement, the tenant spends his money to improve the land with
the exception of being able to remain on the land.
✔ This will become tenancy coupled with equity.
# Wan Salimah v Mahmood bin Omar [1998] 5 MLJ 162
F: The Plaintiff entered into a written agreement with the Defendentft. Dft agreed to lease his
share of the land to the Plf for 15 years at 1.8k a year. Plf then built 2 houses on the land. Lease
was not registered because the Dft refused to sign Form 15A. In the meantime, Dft entered into
S&P with the intervener. Plf applied for an order for Form 15A to be executed by the Dft
Held: In the present case, the doctrine of equitable intervention, the agreement would be
treated as an agreement for a lease and since it had been partly executed by possession having
been taken under it and two buildings had since been built on it, the equitable remedy of
specific performance would be undoubtedly an appropriate remedy. The plaintiff certainly had
a remedy against the defendant and a court of equity will strain its power to enforce full
performance of the agreement in favour of the plaintiff. Accordingly, the court ordered the
defendant to execute the lease instrument in Form 15A to grant lease to the plaintiff for a
period of 15 years with respect to the land in accordance with the agreement
2.6.1 Elements of Tenancy Coupled with Equity
1. Assurance (active/passive encouragement)
2. Reliance (belief in representation, reasonable man test)
3. Detriment (acted in good faith and it would be unjust to go back on it)

# Holee Holdings (M) Sdn Bhd v Chai Him & Ors [1997] 4 MLJ 601
Held:
First defendant: No equity with tenancy. Lim Low Tiew (LLT) had only allowed the first
defendant to occupy the land and build the house. However, there is no evidence that LLT had
led the first defendant into belief or expectation that upon him expending money in building
the house he could remain there for as long as he liked or for a considerable length of time.
Third Defendant: With LLT’s consent, agreement and encouragement, a temple was built. The
encouragements were (portion of the land shall always remain property of the temple, (2) the
rights of temple shall not be effected if the land is sold, (3) Temple was expended with LLT’s
encouragement and (4) LT affirmed that nor rent and temple has permanent possession.
However, even if equitable charge is proved, s.226 prohibits LLT from granting any lease
without the chargee’s consent. An equitable estoppel cannot contravene a direct prohibition
under the NLC. Therefore, equity is not binding.
# Ooi Ai Seng v Chan Lin Lam [1973] 2 MLJ 20
F: The plaintiff had entered into a tenancy agreement in December 1958 with the defendant's
father. The agreement was that the plaintiff was to rent out a portion of his land for the tenant
to construct a wooden shed. The defendant was recognized as the new tenant upon his father's
death. In May 1966, the plaintiff issued a notice to the defendant to vacate the land within one
month. When the defendant failed to do so the plaintiff brought the present suit. The defence
was that the defendant had an equitable interest coupled with a tenancy or license and hence
he was entitled to stay as long as he liked.
Held: Appealed was allowed. If there was anything at all suggesting the duration of the tenancy,
the very nature of the construction of the wooden shed would indicate a tenancy of a
temporary nature. First of all, the agreement was that the tenancy shall be permanent. Further
more
- Pursuance of the written agreement Ex. P.1, appellant allowed the
respondent's father to erect the shed on the said land,
- He has expended money in doing so (wooden shed)
- That the shed was not demolished after the death of the respondent's
father but the respondent was allowed to take over the tenancy which
included the use of the shed on the same terms and conditions of the
agreement in Ex. P.1.
- That he has been paying the rents which have been accepted by the
landlord.

2.7 Rights and obligations of parties

✔ All rights and obligations are laid done expressly in agreements or impliedly by the law.
✔ Under the Sixth Schedule, the provisions for lease/ sublease may be modified as parties
think fit
✔ Some implied provisions include;
o s.230: rent must be paid at the times in the manner therein specified and will
duly observe and perform all conditions express or implied to which the land is
subjected.
o s.231: Pay rates, taxes and other outgoings, to keep demised property in repair,
allow the lessor to enter at reasonable times, not to transfer the property
without prior consent.
✔ s.228, option of renewal may be exercisable at any time before the expiry at any time
before the expiry of the term.
# Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719
Held: Although there is no mention of an option anywhere else in the tenancy agreement save
in the recital, objectively tested, it was the intention of the parties that the respondents should
have an option to renew the tenancy for a further two-year period. The recital, in the
circumstances of the present case, created a right in the respondents to such an option and in
the appellant, and all those who take the land subject to the tenancy, a corresponding
obligation to honour that option. The recital being silent as to the time frame for the exercise of
the option, it could be exercised by giving notice a reasonable time before the expiry of the first
term.
# Wisma Sime Darby Sdn Bhd v Wilson Parking (M) Sdn Bhd [1996] 2 MLJ 81
Held: An option clause is void for uncertainty unless the agreement provided the machinery or
some formula which the courts can utilize to ascertain what is otherwise unascertainable
without the parties coming to an agreement. The courts will not lend their aid to the
enforcement of an incomplete agreement. In the instant case, the rental for the renewed
period of the tenancy had to be agreed by the parties. The agreement for renewal was
executory and there was no machinery or formula for the court to ascertain the rent if the
parties could not come to an agreement on the rent.
# Zainal Abidin v Century Hotel Sdn Bhd [1987] 1 MLJ 236
Held: the option clause as in the lease in this case did not give rise to any legal obligations on
the part of either party unless and until the lessee gives notice in writing to the lessor, within
the stipulated period, of his intention to extend the lease and the parties have mutually agreed
to the new rent. In this case none of the conditions had been complied with and therefore the
learned Judge was right to make no award under this head;

2.8 Termination of Lease/Tenancy

2.8.1 Expiry of term under lease/tenancy

✔ Court order must be made to recover possession when lease/tenancy comes to an end.
(specific Relief Act ss.7 & 8)
✔ S. 8 of Specific Relief Aact – if any person is dispossessed without his consent of
immovable property otherwise than in due course of law, he may recover possession
2.8.2 Lease/Tenancy is surrendered to the person entitled to reversion expectant
✔ s.239(1) of NLC state that any lease, sub-lease or tenancy exempted from registration,
with agreement of the original lessor be surrendered to that person or body.
✔ Vacating premise without consent does not amount to surrender.
✔ Application must be made in form 15C
✔ S. 239(3) – Surrender of tenancy can be effected either by word of mouth/written
instrument
✔ S. 239(3) – if tenancy is endorsed, apply for cancellation of endorsement
 ✔ S. 239(4) – Chargee’s consent is necessary before surrender of lease [to be indicated in
Form 15C]/tenancy can be effected [in writing signed by the chargee/his authorised
agent]
2.8.3 Valid notice to quit
✔ Notice to quit must be (1) unambiguous, (2) sufficient in length and (3) properly saved.
✔ Type of tenancy is necessary to determine the period of notice
o i.e. weekly tenancy= a week’s notice

# Lee Ah Low v Cheong Lep Keen [1970] 1 MLJ 7

F: In this case certain premises in Malacca had been let by one Toh Kim Soon to the appellant
for a term of 80 years on a monthly rent of $100. The agreement was not by deed nor was it
registered. The appellant went into occupation and paid the monthly rent.
Held: the learned trial judge was correct in holding that on the proper construction of the
tenancy agreement the tenancy was a monthly tenancy and that this had been terminated by a
valid notiie to quit.
# Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd [1993] 3 MLJ 352
Held: Whilst the mode of payment of rent was an important factor in determining the question
of the sufficiency of the period of a notice to quit it, was not necessarily a decisive factor.
Therefore, although rent had been paid on a monthly basis, it did not necessarily follow that
the tenancy could be determined by a month's notice. Where there was no written tenancy
agreement to construe the nature of the tenancies, factors to be taken into account included
not just mode of payment of rent but also the conduct and intention of the parties, the
contemplated user of the subject matter of the tenancies and other relevant circumstances of
the case as a whole. On the facts, three months' notice would be reasonable for the
determination of the tenancies of the farm and the two houses as this would afford the
plaintiffs sufficient time within which to harvest their crops and to yield vacant possession of
the plot concerned.
2.8.4 Lease/tenancy is forfeited upon breach of terms or when tenant is bankrupt

- no elaboration -
2.9 Transfer/Assignment/Sublease

✔ Can be transfer/assigned/sublease by (1) agreement or by (2) operation of law (death of

lease/tenant or bankruptcy).
✔ In the absence of any express provision to the contrary, a lessee is entitled to
transfer/assign/sublease the premises [with prior consent of lessor – s. 231(1)(d) and
consent cannot be unreasonably withheld]
✔ S. 214(1)(e) – tenancy exempt from registration may be transferred to another [no
implied provision that consent of landlord is necessary] (cf lease)
✔ Express provision may be made in the lease to prohibit the lessee from
transferring/assigning/ subletting/part with possession of demised premises
[prohibition may be absolute/subject to lessor’s consent]
# Gian Singh & Co v Devraj Nahar & Ors [1965] 2 MLJ 12
Held: The deed of partnership in this case did not constitute an assignment of the premises.
Property used for partnership purposes are not necessarily partnership property and therefore
the respondents should not be ordered to vacate the premises. The partnership deed did not
contain any provisions referencing to tenancy. If, under the deed, the tenancy was being
assigned to the partnership, one would certainly expect to find clearer provision with regard to
it.
# Lam Kee Ying Sdn Bhd v Lam Shes Tong & Anor [1974] 2 MLJ 83 (prohibition of assignment)
F: In this case the appellants had leased certain premises to the respondents and it was
covenanted in the lease that the lessee was not to assign, underlet or part with the possession
of the demised premises. The respondent who had carried on business in partnership
subsequently formed a company to which the business was sold.
Held: the first respondent did part with possession of the premises. The trial judge was
therefore correct in his conclusion that the evidence established a breach of the covenant of
the lease;
Chapter 3: Charge

3.0 Introduction

✔ Charges and Lien are recognizing in NLC

✔ Jual janji transaction is not recognized as security transactions under the NLC, but have
been recognized by the courts as pure contract of sale.
✔ Definition: Transaction whereby the proprietor of alienated land/ of a lease of alienated
land pledges it as security for repayment of a loan/payment of annuity/ other periodical
payment.
✔ Legal charge = chargor executes a formal instrument of charge in statutory form in
favour of the chargee. This instrument (+ IDT/duplicate lease) are handed to the
chargee. On registration, the chargee obtains a legal charge over the chargor’s
land/lease [s. 243]

3.1 Common Law Mortgage vs Charge

Common Law Mortgage Charge

Not recognized under the NLC Part XVI on the NLC
Legal title and ownership is transferred to Title is not transferred
mortgagee
Mortgagor has equitable right to redeem the Chargee acquires an interest in the land
land from mortgagee upon repayment of
loan
Upon default, mortgagee may Upon default, charge may enforce his
sell/foreclose/take possession of the land. security by way of sale of land [s.253] or
possession [s.271]

3.2 Equitable charge

✔ Equitable charge = similar as legal charge BUT the instrument of charge is not registered.
A chargee under equitable charge may enter caveat to protect his interest pending
registration/if the chargor defaults, the chargee can register the instrument and
subsequently sell the land [s. 206(3)]
✔ If the lender holds an instrument of charge but does not registere it, they cannot claim
the remedies under the NLC.
 ✔ They should attempt to register the charge and take the remedies given by the NLC.
✔ They can do so by relying on s.206(3).

# Mahadevan s/o Mahalingam v Manilal & Sons (M) Sdn Bhd [1984] 1 MLJ 266
Held: Although no charge has been executed/ created under the NLC, an agreement to secure a
debt (using the debtor’s land) in favour of the creditor may create an equitable charge giving
rise to equitable rights. There is no provision in the National Land Code prohibiting the creation
of equitable charges or liens. Therefore, equitable charges and liens are permissible under our
land law. The words "other charge on land" in section 21(1) of the Limitation Act must be
construed to include equitable charges and liens as well.
# Tan See Hock v Development & Commercial Bank Bhd & Anor [1993] 3 MLJ 250
Held: Unregistered chargee had no legal right to apply for a removal of private caveat under
s326 – by removing the private caveat, it would render the acts of the Registrar ultra vires. The
word ‘interest’ in s326 refer to a registered owner – therefore, s326 can only be used by
registered owner which includes registered charge. Any other category of persons aggrieved
but not registered – can apply under s327 for an order of court to remove the caveat.
Conclusion – no protection of indefeasibility.
3.2.1 How Equitable Charge is formed

1. Where a charge instrument has been executed but not presented for registration.
# Standard Chartered Bank v Yap Sing Yoke [1989] 2 MLJ 49
F: On or about 1 April 1985 the plaintiff bank accepted a charge over property held under HS(D)
4852, Lot 24401, Mukim Kuala Kuantan from the first defendant to secure a housing loan for
$92,000 with interest at the rate of 13% pa. The said charge was presented for registration to
the land office and accepted vide presentation number 1170/85. But on 23 May 1985 the
charge together with the issue document of title were returned to the plaintiff's solicitors as the
official receipt for quit rent for the year 1985 was not supplied to the land office. When the
charge was re-presented, it could not be done as there is already a caveat. The plaintiff claim
priority.
Held: By virtue of the unregistered charge dated 1 April 1985 in favour of the plaintiff, the
plaintiff had acquired a title in equity over the land.
2. Where no separate title has been issued, a loan agreement and a deed of assignment
are entered into to secure a loan.
# Malayan Banking Bhd v Zahari bin Ahmad [1988] 2 MLJ 135
F: The defendant owed the plaintiff a certain amount of money. Pursuant to the loan, a loan
agreement and a deed of assignment were executed on 16 March 1974. The defendant
defaulted on the repayment of the loan. The plaintiff applied to the court for an order, inter
alia, that they be at liberty to issue a writ of possession in respect of the charged property and
for an order that they be at liberty to sell.
Held: The loan agreement and the deed of assignment created an equitable charge both in
form and substance
3. Where a charge instrument has been erroneously attested
# Bank Pembangunan dan Infrastruktur Malaysia Bhd v Omar bin Hj Ahmad [2011] 1 MLJ 810

F: The charge was executed by the defendant, as chargor, and attested by an

advocate and solicitor instead of by the land administrator.
Held: The wrong attestation by an advocate and solicitor, instead of by the land administrator,
in relation to the Malay reserve land would not, in the absence of any fraud, misrepresentation
or any other vitiating factor, invalidate the equitable third party charge.

3.3 Legal Charge

✔ A legal charge can be made by virtue of s.241.

✔ The purpose of a legal charge under s.241(1)(aa)/(bb) are;
o Repayment of debt
o Payment of any sum other than a debt
o Payment of any annuity or other periodic sum.
✔ s.242(1)- Form 16A (to secure repayment of a debt)
✔ s.242(2)- Form 16B (to secure payment of annuity.
✔ s. 243 – takes effect as security for the loan upon registration
✔ s. 241(2) – registered proprietor may create 2nd and subsequent charges on the same
piece of land (as charge is merely interest in land).
✔ s. 244(1) – 1st chargee (chargee who is first in registering) is entitled to the custody of
the IDT/duplicate lease as long as any liability subsists under the charge.
✔ s. 244(2) – Chargee required to produce the document within a reasonable period at
any Registry/Land Office on the written request of the registered proprietor for any
purposes under the NLC.
 ✔ s. 244 – to ensure that the registered proprietor does not create subsequent charges
without the 1st chargee’s knowledge
✔ s. 249 – Implied agreements in all registered charges
✔ s. 250 – Implied agreements which can be negative

3.3.1 Effect of Registration of Charge

✔ Chargor can sell the land and the charge shall be transferred to the transferee
✔ Charge’s priority based on “first come- first served”
✔ Chargor may only lease subject to consent by charge.
✔ Can request order of sale under s.253 and under s.251, the charge will not without
reasonable cause withhold his consent to the granting of the chargor of any lease or
tenancy.
✔ Chargee has an interest which he can assign to another person.

3.4 Consolidation

✔ A method to alter the priorities of charge.

✔ Two land is charge to the same person. If one of the land is forfeited, the chargor needs
to pay for both lands to get relief against forfeiture. (even though the date for
repayment under the 2nd charge is not yet due).
✔ s.245- consolidation requires the agreement of both parties.
✔ Right to consolidate should be exercised before any application for OFS
# Public Finance Bhd v Hock Seng Housing [1992] 1 MLJ 442
Held: Consolidation of accounts ought to be undertaken before any action is taken for the
foreclosure of any of the charges which relate to the accounts to be consolidated. The plaintiffs
had exercised their right to consolidate the accounts a little too late, considering their earlier
action to foreclose on one of the two charges, taking into account the fact that the order for
sale was made three years before, and the first auction date one month before, the notice of
consolidation. On the date of the notice of the purported consolidation, there was in fact only
one charge remaining to foreclose.

3.5 Tacking

✔ Increases the indebtedness of the chargor which they will then gain prirority.
✔ Ex. A charge land X to B for RM50 000 with right to tacking. A charge land X to C for
RM10 000. A increase the loan to B another RM10000. B has priority where A must pay
RM50 000+RM10000.
✔ S. 246(1) – If any tacking is authorized, any chargee (whether 1st, 2nd/subsequent
chargee) may tack.
3.6 Postponement

✔ S. 247 – registered charge may be postponed to any subsequent registered charge

[Form 16C].
✔ X and Y agrees to swap places/X agrees to postpone its charge. Despite X registering
first, Y becomes first charge.
✔ Postponement is voluntary on the part of the prior charge
✔ A subsequent chargee has no right to require/force the prior chargee to postpone
✔ The chargor is not required to consent to the postponement nor is notice required to be
served on him advising of the postponement

3.7 Remedies

3.7.1 Order of Sale

✔ Enable chargee to recoup his loss if default is made in paying interest or principal.
✔ Any chargee may apply to sell the charged land.
✔ If the applicant is a second chargee (chargor is not in default of first charge), court may
refuse OFS and order chargor to pay. BUT if chargor is unable to pay, court may order a
sale. First chargee will first receive the amount due to him and only then second chargee
can receive what is due.

Default in payment – Notice of Breach – Application for OFS – OFS obtained – Public Auction
– Successful bidder pays deposit – bidder pays full price – Chargee disburse proceeds of sale
following the order of priority.

a. Notice of Demand

✔ Before an order of sale could be applied, notice must be served to the chargor.
✔ There are two types of notice which are;
a) Form 16D (s.254): Notice given in case of breach of provisions of charges Specifying the
breach and requires it to be remedied within one month or alternative period as agreed
in the charge, or else judicial sale will be taken.
b) Form 16E (s.255): Notice given in case of the sum is payable by the chargor on demand.
The sum shall be payable within one month (no alternative period) and in the event of
failure to do so, judicial sale will be taken without having to serve Form 16D.
✔ A defective notice will render the notice void.
# Syarikat Kewangan Melayu Raya v Malayan Banking Bhd [1986] 2 MLJ 253(PC)/[1984] 1
MLJ 115 (FC)
Held: A notice of default in From 16D where 2 charges are cited and the sums due under both
charges are lumped together is not defective if the chargor had not been prejudiced/misled by
any defect in the notice

# Kwan Chew Holdings Sdn Bhd v Kwong Yik Bank Bhd [2010] 6 MLJ 157
Held: A notice of demand which does not state the exact and precise amount owing does not
render the notice invalid unless it demands payment of a sum to which the chargee is not
entitled.

# Jacob v OCBC Ipoh [1974] 2 MLJ 161

F: The Appellant (Jacob) had charged his land to the respondent bank (OCBC Bank) to secure
the repayment of an overdraft, which covers an amount of $6, 000 and interest. The appellant
defaulted and the respondent had made a demand for payment via demand letter. Later, the
respondent served a notice of default under form 16D as prescribed by the National Land Code.
Respondent then applied for an order that the land be sold by public auction and the
application was allowed by the High Court. The appellant argued against the order by stating
that Form 16E was not served prior to Form 16D.The issue is which form should be used in an
event of a breach by the charger and demand by the charge for payment.

Held: The court held the language of Section 255(1) would seem to indicate that if the chargee
had made its demand by using Form 16E it need not have followed it up by also serving notice
by Form 16D, but that if it did not first use Form 16E it would be all right if it used only Form
16D.” that section 255(1) only uttered the word may and not shall to make the demand by a
notice by a notice in Form 16E. so that it is open to it to make the demand in any other way. In
addition, interest can be claimed either by 254 or 255.
b. Application to the Court for an Order of Sale

i. Land Office Title

✔ Application for land administrators order for sale is made with instrument of Form 16G
under s.260.
✔ Upon receiving, the administrator shall hold and enquiry to the Chargor to present himself
and show cause under s261
✔ If charge fails to appear, the application will be dismissed [s.62(2)]
✔ If Chargor fails to appear, see whether sufficient notice has been given or not – if it had,
may continue with the hearing – if not, adjourn the hearing and serve new summons.
[s262(3)]
✔ At the conclusion of the enquiry, the court shall order for the sale of the land or lease to
which the charge in question relates unless he is satisfied of the existence to the cause to
the contrary. (s263(3)) Such order shall be made under Form 16H.

Powers of Land Administrator

✔ Suppiah v Ponnampalam: Collector was bound to accept the register and once he was
satisfied that the charge was on the register, the only question for him to decide was
whether or not there had been default in the payments provided for. If he was not so
satisfied, he could make no order. If he was so satisfied, he was obliged to make an
order LA has no power to go behind the Register to investigate allegations of
fraud/misrepresentation.
✔ Gurpal Sigh v Kananayer: The collector has no power to hear pleadings and defense.
✔ Government of Malaysia v Omar bin Haji Ahmad: The payment of loans should have
been made by deduction from the monthly salary but did not due to technical issues.
Respondent requested to pay via monthly instalments. The issue was whether Collector
has power to order that the Resp continue to pay his monthly installments and grant a
period of 4 years for the resp to settle arrears of instalments. The court held the
negative and the collector must give an order for sale.
✔ Lim Yoke Foo v Eu Finance: Once the order of sale is granted by the LA, they become
functus officio and the LA have no power to set aside the order.
✔ S. 264A – L.A may postpone OFS only once for a period not exceeding 3 months OR
cancel OFS upon application of charge with chargor’s consent [Form 16O]
ii. Registry Title
✔ For Registry title, an application for Order of Sale must be made in accordance with
Order 83 of Rule of Courts 2012. (s.256).
✔ Order 83 applies when a claim for payment of monies secured by a charge (legal and
equitable), sale of the charged properly and foreclosure.
✔ The order shall be made by Form 16H (s.257) which will provide (a) sale shall be made
by auction. (b) sale shall be made no less than one month from the day order of sale is
made, (c) specify the amount due to the charge (d) fix reserved price and etc
✔ Failure to comply with s.257 would render the order of sale invalid Maimunah bte
Megat Montak v Maybank Finance Bhd.
✔ S.258(1)(b): sale must be publicly advertised
c. Cause to Contrary

✔ Under s.256(3), the court shall order the sale of the land unless it is satisfied of the
existence of any cause to the contrary.
 # Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77:
Held: Court held that there are only 3 cause to the contrary which are.
1. The case of the chargor fells within the vitiating factor of indefeasibility of title
under s340(2),
2. Chargee had failed to comply with the conditions precedent to the application
for an order of sale (example, did not give notice); and
3. The order of sale will be contrary to the ROL and equity.

(failure to give proper account of the sums due does not amount to cause to the
contrary)

# Keng Soon Finance Bhd v MK Retnam Holdings [1989] 1 MLJ 457

Held: ‘Shall’ in s. 256(3) is mandatory – court SHALL order a sale unless there is cause to the
contrary. Feeling sorry for the borrower/ the lender was being
arrogant/boorish/unmannerly is not cause to the contrary. In the case, clause 3 of the Sales
and purchase agreement allowed the vendor to subject the land to encumbrances. The
vendor charged the land and later defaulted which lead to order for sale. Clause 3 of the
S&P is valid and effective authority given by the purchasers to the respondent to charge the
land. The appellant’s charge was furthermore duly registered. (s. 340) On the argument of
equity, the purchaser has expressly consented to the creation of the chargee’s interest and
equity could not prevail over registered interest.

# Public Finance Bhd v Hock Seng Housing [1992] 1 MLJ 442

Held: The chargee must not only come to court with proof that the chargor has defaulted,
but also with proof that the chargee himself is free of fault and that he was not guilty of any
unreasonable conduct, and that there was no right of innocent third parties to be affected
by the order. This finding stands despite the fact that the chargee has priority over the
purchasers by virtue of s 340 of the National Land Code 1965.BUT the high-handedness of
the plaintiffs in trying to get more than what they ought to receive from innocent
purchasers can only amount to cause to contrary.
# Tai Lee Finance v OA [1983] 1 MLJ 81
Held: the law is settled that while section 340 makes it abundantly clear that the title or
interest of a registered proprietorllkn, which includes a chargee, shall be indefeasible, such
title or interest shall not be indefeasible, by reason of subsection (2) of section 340 of the
Code in a case of actual fraud. The onus is upon the person alleging fraud to prove fraud not
on a balance of probabilities but beyond reasonable doubt. In this case in the light of the
 affidavit evidence, at the very most the appellant had constructive notice of the
respondent's prior beneficial interests. There was no evidence to satisfy the court that there
was fraud to which the appellant was a party. The respondents had not proved beyond
reasonable doubt that the appellant had acted dishonestly, willfully and consciously
disregarding or violating the right of the respondents or in any way in collusion with the
chargor.

d. Rights of bona fide Purchaser

✔ If there is registered charge, interest of bona fide purchaser cannot prevail (with or without
notice of the charge) unless there are vitiating factors under s.340(2).

# Buxton & Anor v Supreme Finance [1992] 2 MLJ 481

F: Respondent included Apartment 2A and 2B in the order for sale. Purchasers of Apartment 2A
& 2B objected but was dismissed. J ordered the sale of the property. Purchasers appealed and
contended they have shown cause to the contrary since appellants have paid the purchase
price in full, they were entitled to an equitable estate in the land.

H: The question whether an equitable interest in land is created does not arise. Charge was
registered in 1982. Purchasers purchased in 1984. Chargor did not obtain written consent from
the chargee to sell the apartments. Interest of registered chargee is indefeasible unless it is
made defeasible by s. 340(2). Interest of bona fide purchaser cannot prevail over registered
charge. in the present case, purchasers accepted the indefeasible title of the resp. They
executed the S&P with notice of the charge and they must accept the purchase subject to the
registered charge
e. Effect of sale
1. Certificate of sale (Form 16F) will be treated as an instrument of dealing capable of
being registered

2. Upon registration of the certificate of sale, the title of the chargor will pass and vest in
the purchaser – chargor will be freed and discharged from the charge and any
subsequent charge – s267(1)

3. Tenancy exempt from registration granted by the chargor after the date of the charge
will not bind the new purchaser unless the tenant had the RDT endorsed – s267(2), see
Hotel Ambassador v Seapower Sdn Bhd

4. The purchase money resulted from the sale will be distributed as followed
 a) Payment of rent, taxes, etc to the State/local authority/lessor
b) Payment of expenses incurred due to the making and executing the order of sale
c) Payment of the amount due under the charge at the time of sale
d) Payment of subsequent charges, in the order of priority (s268)

5. Upon the receipt in writing from the court/LA/charge that the full amount of purchase
money has been paid by the purchaser, the purchaser shall be discharge of his further
obligation to pay for the purchase money – under no obligation to make sure that the
purchase money will be distributed according to s268 and shall not be liable for any loss
due to the failure – s269

3.7.2 Possession

✔ In case of default by chargor, chargee can opt to enter into possession of the land
charged instead of obtaining an order to sell the land. (s.271)
✔ Possession is only limited to registry title and only for the first chargee. (s.270).
✔ Possession is by two methods which are;
a) By receipt of rent - Not occupying the land, but continue receiving rent payable to
chargor OR granting new lease and receiving rent – chargee have to serve notice to
the lessee/tenant in Form 16J in order for the rights to receive rent of the chargor to
be vested in the chargee – s272(1)(a).
b) By occupying the land – the chargee have to serve notice to chargor in Form 16K –
s272(1)(b).
✔ A chargee in possession of any land by occupation shall be entitled to manage the land
and take all the profits thereof, but shall be liable to the chargor for any act whereby the
capital value of the land is impaired or the chargor is otherwise put to any loss. (s.274)
✔ Section 275: Power of the chargee to grant leases after taking possession
✔ Section 277: Application of the rents/profits gained due to the possession

3.8 Discharge of Charge

✔ Section 278 – section 280

✔ 3 ways to discharge a charge;
1. Payment of all the amount due to the chargee
2. Discharge make by the chargee himself in Form 16N (s278)
 3. Death, absence or legal disability of the chargee – if it is proven that the chargee had
died or is nowhere to be found or unable to trace the person who is authorized to
receive the payment AND the amount of money due, the chargor can deposit the
money with the Registrar 1st – after doing so, he will be discharge of the charge
The money will then be claimed by person entitled to it within 6 years, or else it will
be paid into the Consolidated Fund of the State.

Chapter 5: Caveat

5.0 Introduction

✔ There are categories of restraints on dealing

✔ Caveat and Prohibitory Order are restraints provided under the NLC
✔ Lis Pendes and Injunctions are restraints provided outside the NLC
✔ Caveat preserves the statuts quo of contending parties by suspending the process of
registration until conflicting claims to the title to/an interest in the land have been
resolved.
✔ A caveat does not enhance a caveator’s interest/claim to the land nor does it create
legal interest in the land.
# Macon Engineers Sdn Bhd v Goh Hooi Yin [1976] 2 MLJ 53
Held: The entry of the caveat does not make the claim or right either better or worse

5.1 Registrar’s Caveat

✔ It is also known as the official caveat.

✔ Registrar’s Caveat can be entered into by instrument of 19F under s.321.
✔ Under s.321(3), a Registrar’s Caveat does not have a lifespan. It shall continue to stay
into force as long as needed.
✔ s.319(1)(b)- Prohibits the entry of all other caveat, lease, charge or tenancy.
✔ s.319(2)- Prohibition is retrospective in nature in regards to all other registration/entry
that has not come into force.
✔ s.319(3)- Registrar may waive the prohibition if he is satisfied that the interest of his
caveat is protecting would not be harmed by the registration of the dealing/
endorsement of tenancy exempt from registration/ entry of lien-holder’s caveat
✔ The purpose is to: (s.320)

1. prevent fraud/improper dealing.

- Registrar is to examine the allegations of fraud/improper purpose.

- It is sufficient that there is evidence raising suspicions of such dealings
 # Seet Soh Ngoh v Venkateswara [1976] 1 MLJ 242
F: The plaintiff purchased a piece of land from the first defendant, the developer, who
contracted to build a house on it. It was agreed between the plaintiff and the first
defendant that progress payments were to be made by the plaintiff at various stages of the
building. At the material time, the plaintiff had paid to the first defendant more progress
money than it was entitled to. The first defendant sought to repudiate the agreement on
the ground that the plaintiff had no money to complete the purchase.
Held: Section 320(1)(a) of the National Land Code empowers the Registrar of Titles to enter
his caveat to prevent fraud and improper dealing, and if such a possible dealing is brought
to the notice of the court and the Registrar is before the court, the court can order him to
do so. The first defendant had no right to repudiate the agreement and rely on a cause (that
the purchaser had no money to complete the purchase) which had not arisen;
# Agrimal Project v Pendaftar Hakmilik, Pejabat Tanah Dan Galian, Johor & Ors [1998] 5
MLJ 673
Held: The information relayed by the police to the registrar constituted in law sufficient
material for the registrar to exercise his discretion to enter the Registrar's caveat which
should remain until investigations had been completed by police. Information relayed by
PDRM is sufficient material for the Registrar to exercise his discretion to enter RC and the
RC should remain until investigations have been completed.
2. Protect interest of the federation.

- i.e beneficial interests in land arising under trusts

# Registrar of Titles, Johore v Temenggong Securities Ltd [1976] 2 MLJ 44
F: The Revenue department had learned that Li-Ta Company was proposing to sell its land
at Johore. It had started an action for recovery of the tax on September 24, 1972. On
October 2,1972, the Department of Inland Revenue wrote a letter to the Registrar of Land
Titles requesting him to enter a Registrar's caveat in respect of the land and this was done
on October 11, 1972.
Held: the interests which the Registrar of Titles was empowered to protect under section
320(1)(b) were confined to interests in the land that were recognised by the Land Code as
being either registrable or otherwise entitled to protection. An unsecured creditor of the
proprietor of the land had no such interest in the land;
3. Secure debt due to government.

# Development & Commercial Bank Bhd v Land Administrator, WP [1991] 2 MLJ 180
 F: In this case, the registered proprietor of a piece of land had executed a third party charge
to secure the indebtedness of his company to the appellant bank. Subsequently, some four
years after the charge was registered, the first respondent entered a registrar's caveat on
the charged land at the request of the Inland Revenue Department.
Held: – there is nothing unlawful in the entry of RC on a land with an existing charge.
Remedy for chargee then is to remove the disputed caveat.
5.1.1 Procedure to enter a Registrar’s Caveat:
✔ s.321
✔ Form 19F + endorse on any document of title the words ‘Registrar’s Caveat Entered’ +
statement of time of entry.
✔ Form 19A served on relevant parties.
✔ Enables chargee/any aggrieved person to appeal against entry of RC within 3 months
from the date of communication of the entry
✔ Registrar is not obliged to enter caveat even if circumstances under s. 320 occur
(discretionary).
✔ However, the court under s.417 can direct the Registrar/LA to do all such things
necessary to give effect to any judgement in any proceedings relating to land and it shall
be the duty of the Registrar/LA to comply with the order.
# Tan Soo Bing v Tan Kooi Fook [1996] 3 MLJ 547
Held: A person cannot go straight to court to apply for RC to be entered. Court has no
jurisdiction to entertain such an application. He must apply to the Registrar. Registrar then has
a duty to decide whether or not to enter RC (i.e whether it is necessary or desirable as per s.
320). If registrar refuses his application, his remedy is to appeal to the court against the refusal
(s. 418).

5.1.2 Cancellation of Registrar’s Caveat (s.321(3))

✔ On the Registrar’s own motion
✔ Proprietor’s application (s.321(3)(b))
✔ Court order resulting from appeal against Registrar’s Declaration (s.321(3)(c))
✔ Proprietor’s application was refused, hence appeal (s.418.)