MALAYSIAN_TORRENS_SYSTEM_2021. OVERVIEW OF THE SYSTEM IN MALAYSIA REGARDING LAND LAW

MALAYSIAN TORRENS
SYSTEM
Sharifah Zubaidah (LAW 3110)
Ahmad Ibrahim Kulliyyah of Laws
2021

Coverage:
 A. Malay Customary Tenure
 B. History of the Torrens System in
Malaysia
 C. Characteristics of the Torrens
System
 D. The National Land Code and
Constitutional Issues

A. Malay Customary Tenure
 Before the coming of the British, the
early Malay inhabitants used land for
subsistence agriculture in two modes of
cultivation:
‘HUMA/
LADANG’
‘SAWAH/
BENDANG’
shifting cultivation
permanent cultivation

Type of Rice Fields:
 Wet rice fields:
 If left uncultivated
for 3 years, it is
open to the Ruler, or
chief to give it to
another cultivator.
 Dry rice fields:
 Shifting cultivation.

OLD MALAY DIGESTS
 Malacca Digest (1523)
 Pahang Laws (1596)
 Kedah Laws (1605)
 Johor Laws (1789)
 Perak Code and 99
Laws of Perak (1765)

Principal Characteristics of
Malay Customary Tenure:
 1) A person can
acquire
ownership in
land by
occupying, clearing
and continuously
cultivating
forest land.
 2) Payment of
one tenth of the
produce from
the land to the
Ruler.

99 Laws of Perak:
 “What is the law applicable to the case
of a man clearing and irrigating a piece
of land?” The Minister answered: ”A
person arriving later will not be allowed
to take the land higher up, but he may
take land lower down, provided that he
does not interfere with the work of the
first arrival.”

Sahrip v Mitchell (1870)
 “It is well-known that 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
occupy all forest and waste land subject
to the payment to the sovereign of 1/10
of the produce of the land so taken.”

Nature of Private Land Ownership in
Malay Customary Tenure
 A landholder under Malay customary
tenure is not given ‘ownership’ of the
land as ownership still vests in the Ruler
or ruling chiefs.
 The landholder only has ‘usufructary
rights’ – the right to cultivate and derive
income from the land.

Malay customary tenure
reflects Islamic principles:
 1) Nature of
‘proprietary right’ –
ownership conditional
upon continuous
cultivation.
 2) Method of
acquisition of land
through clearing
of
 virgin jungle is
similar to Ihya –al-
Mawat.
 3) Duty to pay a
tenth of the
proceeds to the
Ruler is similar to
‘ushr’.

Tengku Jaafar & Anor. v Govt.
of Pahang [1987]
 Supreme Court (held) :
The land law applicable in the State of
Pahang before 1889 was the Shariah or
Islamic law from the Shafie school.

Issue: Did land belong to the
Sultan/Raja under Malay custom?
 ‘Ampun kurnia/ cipta kurnia: grant of
land by Sultan to some royal favorites of
local chiefs.
 ‘Sistem kerah’: duty of peasants to
render services to the Sultan.
 Tax collection.
 Share in the produce.

MAXWELL’S THEORY:
 The traditional Malay ruler ‘owned’ the
land while the citizens were left only
with a ‘usufructuary’ right of enjoyment.
 (See objection to this theory by David
Wong and Prof. Hunud in their writing.)

Does the NLC recognise Malay
Customary Tenure?
 See section 4(2)
(a) NLC.
 Effect?
 NLC does not
override existing
laws on Malay
customary tenure.

Existing Laws Relating to
Malay Customary Tenure?
 Malacca customary
lands under Part VIII
of NLC (Penang and
Malacca Titles) Act
1963.
 Negeri Sembilan’s
Customary Tenure
Enactment 1926.
 Part III of Small
Estates Distribution
Act 1955.

References:
 David Wong, Chapter 2.
 Salleh Buang, “Malay Customary
Tenure – A Brief Historical Survey”,
Chap. 11 in The Centenary of the
Torrens System in Malaysia.
 Hunud Abia Kadouf; “The Traditional
Malay Ruler and the Land: Maxwell’s
Theory Revisited”
[1997] 1 MLJ cxxi.

B. History of the Torrens System in
Malaysia
 The old English land system was called the
‘Deeds System’ – a system of recording land
transactions in the form of deeds and
indentures.
KING
A
B C
D
Deed
of Conveyance

Tracing Chain of Title
 A prospective purchaser of land must trace
the chain of title by doing RETROSPECTIVE
INVESTIGATION OF TITLE.
 If there was fraud or forgery in the execution
of the deed, the transfer between the parties
will be invalid and of no effect.
 Will cause ‘break in the chain of title’.

Defects of the Deeds System?
 1) Retrospective investigation of title
is time consuming.
 2) Incurs costs and expenses.
 3) Difficulty in reading old documents.
 4) Too complex that conveyancing
requires specialist solicitors.
 5) Uncertainty of title.

C.The Torrens System
 A system whereby the title to land and
interests in land depends upon
registration, and not upon the
instrument inter-partes.

Founder:
 Named after Sir Robert Torrens, the
Registrar of Titles for South Australia,
who drafted the first statute providing for
the registration of land titles in Australia.
(Real Property Act, 1858 (South
Australia)
 Note: This system DID NOT originate
from England!

Idea from Registration of
Merchant Ships

Essential Features:
 1) Registration of titles and interests
to land.
 2) Indefeasibility of title conferred upon
registration. ‘state guaranteed’ title.
 3) Non-acceptance of equity.
 (Note however equity still applies to land
matters in Malaysia when it comes to
claims ‘in personam’, see s.206(3)
NLC.)

Cont.:
 4) Caveat system to give notice of
interest on the title.
 5) Mortgaging of land by way of
registered charge.

Principles of the Torrens System

Mirror Principle
 The register book is like a mirror of the land.
All details regarding the land are recorded in
the Register Book.
– name of the proprietor,
- survey plan of the land,
- category of land use,
- conditions and restrictions on the land, etc.
- encumbrances on the land, etc.
Authority: s.340 NLC

Teh Bee v K . Maruthamuthu
 An ex-TOL holder who was occupying
the land challenged the registered title
of the defendant.
 Alleged that the defendant had not paid
the items of land revenue on time and
by virtue of section 81(2) of the NLC,
the approval for alienation had lapsed
and therefore her registration was
wrong (‘ultra-vires’).

Held: (Federal Court)
 “Under the Torrens system, the register
is everything”
 per Ali Ag. CJ.
 (See however Ajaib Singh’s decision in
the High Court)

Curtain Principle:
 An intended purchaser need only be
satisfied with what appears on the
Register Book.
 He does not need to go behind the
register. Thus, no retrospective
investigation of title needs to be done.
 Authorities: s.89 NLC

Creelman & Anor. v Hudson Bay
Insurance Co. [1920]
 To allow retrospective investigation
would ‘defeat the purpose and effect of
registration’

Gibbs v Messer (1891)
 “the object is to save persons dealing
with the 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 as to its validity.”

Pushpaleela a/p R Selvarajah & Anor v Rajamani d/o
Meyappa Chettiar and other appeals [2019] 2 MLJ 553
 Richard Malanjum (CJ Sabah &
Sarawak):
 “Basically under the Torrens system the land register
is conclusive evidence of the description of the land.
A third-party conducting an inquiry of the land need
not go beyond the register to ensure that the land he
or she is about to purchase is not fraught with
encumbrances.”

Assurance Principle
 Under this principle, the State assures
compensation to those whose non-Torrens
title is converted to a Torrens title.
 This principle was not adopted in Malaysia as
other than some limited cases in Penang and
Malacca, the majority of titles in the Malay
states could easily be converted to Torrens
title at the District Office with no loss
occassioned to the proprietor.

EVOLUTION OF LAND LAW IN
PENINSULAR MALAYSIA

Evolution of Land Law
in Peninsular Malaysia

Straits Settlements
 Penang: Early
inhabitants were
fishermen.
 Penang was leased
out to the East India
Company in 1786.
 Was ceded to the
British through 3
treaties with the
Sultan of Kedah in
1786, 1791 and 1800.

Penang
 Privy Council in Ong
Cheng Neo’s case
held that the law of
England applies as
the island was
wholly uninhabited.
 English Deeds
system effected
informally by the
East India
Company.

Straits Land Act 1839
 A land office was established in
Penang.
 Written grants given to those occupying
virgin lands.
 ‘Measurement papers’ and ‘Cutting
Papers’ also given by the East India Co.

 With the passing of the First and
Second Charters of Justice, the Deeds
system was introduced for awhile in
Penang and Malacca.
 Later, several ordinances incorporated
the Torrens system up to the passing of
the National Land Code (Penang and
Malacca Titles) 1963.

Statutory Reception of English
Law

Malacca
 Malay customary tenure was abolished
by end of 19th
century.
 Dutch grants subsequently converted to
English “fee simple”.
 English ‘deed system’ – English land
law applied in Penang and Malacca.

FEDERATED MALAY
STATES
 Independent states
under Muslim rulers.
 Malay customary
tenure and Islamic
law applied.
 Pangkor Treaty
1874 legitimised
British control over
the Malay rulers.

How the Torrens System came to
Malaysia
 In 1882, Sir F.A. Weld, Governor of the
Straits Settlements, sent W.E. Maxwell, the
then Commissioner of Lands of the Straits
Settlements to Australia to study the Torrens
system and its implementation.
 After Sir Maxwell’s return, as a result of his
recommendations, several ordinances were
passed to incorporate the Torrens system in
the Straits Settlements.

First Torrens Enactment in Malay
States:
 General Code of Regulations Regarding
Land (Perak) 1879.
 Followed the Ordinance to provide for
registration of titles to land in Labuan.
 Fore-runner of Torrens-type legislation
in the Malay States.

Why regulate land tenure in
Malay States?
 1) To facilitate collection of land
revenue.
 2) To facilitate settlement of lands by
bona-fide cultivators.
 3) To stabilise the economy.
 (See Sihombing in Centenary book at
pp.10 -11.)

History of Torrens Statutes in
FMS
1) General Land Regulations in each
FMS state.
2) Registration of Titles Enactment 1911
(FMS)
3) Land Code 1928- Cap.138)
4) National Land Code 1965

D. The National Land Code and
the Federal Constitution
 Under the Federal Constitution, land
matters fall under the State list, thus
only the State Legislative Assembly
may legislate on land matters.
 The National Land Code was however
passed by the Federal Parliament?
 How so?

 Article 76(4) Federal Constitution allows
Parliament to make laws in respect of land
matters ‘FOR THE PURPOSE ONLY OF
ENSURING UNIFORMITY OF LAW AND
POLICY’.
 Such law would straightaway be considered a
federal law applicable to all states without the
need for the State Legislative Assembly
adopting it first.
 NLC was enacted under this provision.

East Union (Malaya) Sdn. Bhd. v
Government of the State of Johor & Govt.
of Malaysia [1981] 1 MLJ 151
 Concerned a challenge on the power of
Parliament to enact section 100 of the NLC
providing the State Authority with the power
to forfeit land for non-payment of rent.
 Federal Court held that section 100 was not
ultra-vires the constitution as Parliament had
power to enact the NLC based on ARTICLE
76(4) Federal Constitution.
 (See case at p.74 of your textbook)

Application of Equity
 Two views:
 1) Equity has no place under the
Malaysian Torrens System.
 2) Equity can be applied under the
Malaysian Torrens System.

View that equity has no place under the
Torrens system is based on the following
statutory provision:
 Section 6 Civil Law Act 1956:
 “Nothing in this Part shall be taken to
introduce into Malaysia or any of the
States comprised therein any part of the
law of England relating to tenure and
conveyance or assurance or succession
to any immoveable property or any right
or interest therein.”

View that equity has a place under
the Malaysian Torrens system
 Case law:
 Wilkins & Ors. V Kannamal & Anor.

Wilkins & Ors. v Kannamal &
Anor. [1951] MLJ 99
 “The torrens law is a system of
conveyancing; it does not abrogate the
principles of equity; it alters the
application of particular rules of equity
but only so far as necessary to achieve
its own special objects.”
 (COA Kuala Lumpur- per Taylor, J.)

THE END
 Please refer to the readings prescribed
in the course outline for more depth.

MALAYSIAN_TORRENS_SYSTEM_2021. OVERVIEW OF THE SYSTEM IN MALAYSIA REGARDING LAND LAW

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