ABI, LILLY, NAD, JANNA
LAND LAW II
TRANSFER
Section 214-220 NLC
ONLY RP HAS POWER TO TRANSFER THE
LAND
Md Kamis B Yaakob
 Agreement to transfer land was invalid
since the P has entered into an agreement
with a party who was not the RP, thus has
no right to transfer the land
SUBJECT MATTER OF TRANSFER
Section 214 (1) NLC
a) The whole not a part of the alienated land
b) The whole of undivided share in an
alienated land
c) Lease including sub lease in an alienated
land
d) Charge over an alienated land/
e) Tenancy exempt from registration
Peter Lai Kee Chin
 If one of the proprietors wants to sell his
part of the land, the whole land must be
transferred and the new purchaser shall be
inserted as the new co-proprietor
 Peter wanted to give his wife ownership of
the whole of the land
 The lawyer transferred a certain share to
both the husband and the wife
 Court accepted this as a common practice
between husband and wife
RESTRICTION ON EXERCISE OF POWERS
Section 214 (2) (a)
 Prohibition under the NLC or any other
written law such as;
o AGRICULTURAL LAND
[Section 205 (3) (4)]
o ESTATE LAND cannot be
transferred to 2 or more persons
without prior approval of the
Estate Land Board
[Section 214 A]
Section 214 (2) (b)
A + EXAM NOTES
 Restriction in interest
Section 214 (2) (c)
 The provisions of lease, charges and
tenancies
Section 214 (3)
 No lease and charge may be transferred to
two or more persons or bodies otherwise
than as trustees and representatives
INSTRUMENTS
FORM 14 A;
 Section 215(1) NLC- Alienated Land
 Section 217(1) NLC-Undivided share of
Alienated Land
 Section 218 (1) NLC- Lease
FORM 14 B;
 Section 218(2) NLC- Charge
FORMALITIES
 Section 207-212
EFFECT OF NON REGISTRATION
Section 206(3)
 Contractual operation
Section 220 (1)
 By word of mouth or any written instrument
EFFECT OF TRANSFER
Section 227
 Upon registration the interest of any
lessee, sub-lessee or tenant shall include
the benefit of all then registered interests
enjoyed with the land (encumbrances) i.e
charge etc.
DUTIES OF SOLICITOR
Ngeoh Soo Oh & Ors
 Duties of a solicitor encompasses the use
of reasonable skill and care in giving
advice and taking such action as the facts
 ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES

of the particular case demanded of a  The vendor holds the title as a bare trustee
reasonably competent and careful solicitor
 This requires beyond making searches on
the RDT Borneo Housing
 The solicitor has the duty of making proper
investigation and take proper caution AGREEMENT MADE

STAKEHOLDER DEPOSIT PAID

 Stakeholder (usually the purchaser‟s DUE PAYMENT MADE

lawyer) will hold money until the transfer is
registered (by the vendor) then the
stakeholder will release the money to the
vendor
 In the event of the breach, the money
given to the stakeholder will be returned to
the purchaser.
Tan Suan Sim
 A stakeholder undertakes to hold the
money paid by the purchaser pending the
outcome of the future event when the
future event happens the stakeholder will
pay the money to the vendor
 Pending the outcome of the future event ;
REGISTRATION
Kuldip Singh
 Where the specified events for which a
stakeholder is appointed have taken place
the stakeholder would then be treated as
only an agent for the parties
 Therefore, when the future event has
happened, he or she will no longer be a a
stakeholder
 If the stakeholder absconded, the loss
should fall on the person who according to
the contract had a claim to the money at
that time
(BARE TRUST)
REGISTRATION
 Bare trust did not arise as the vendor did
not pay the full purchase price
Bachan Singh
4 ELEMENTS TO MAKE THE VENDOR A BARE
TRUSTEE
 An existence of contract sufficient in form
and substances
 Purchaser carried out and fulfilled all
obligation needed in the contract
 Vendor must have title of the land
 Vendor has no duty to perform other than
execute the transfer and perfecting the
document
Section 11 (2) Specific Relief Act
 The court will go through this act and
compel the vendor to do specific
performance to give the title to the
purchaser

BARE TRUST DOCTRINE

 The vendor must duly execute valid

registrable instrument of transfer
(beneficial ownership of the land)
 The purchaser must pay the payment of
the full purchase price
 The beneficial ownership of land passes to
the vendor whilst waiting for registration
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LAND LAW II
A + EXAM NOTES

LEASES AND TENANCIES RESTRICTIONS

Lease Section 225
Section 221 (2)  General restrictions;
o Any prohibition or limitation
 A lease refers to a letting of a land for a
imposed by this Act or any written
term exceeding three years and is a
law
registrable interest
o Any restriction in interest
Section 227 o So far as they are conferred on
lessees sub-lessees and tenants,
 It is a registrable interest the provisions express or implied
Tenancy of the lease or sub-lease or
tenancy in question (they must
Section 213 know)
 No lease or tenancy may be granted to
 Tenancy denotes a letting of land for a
two or more persons or bodies otherwise
term NOT exceeding three years
than as trustees or representatives
Section 223
Section 226
 It is not a registrable interest
 Where any alienated land, lease or sub-
CREATION OF A LEASE & TENANCY lease is subject to a charge, the proprietor
or sub-lessee shall not grant any lease or
Lease tenancy without the consent of the
Section 221 (4) chargee

 FORM 15A
 For a lease CHARACTERISTICS
Section 222(4) 1) The right to exclusive possession
 FORM 15B Woo Yew Chee
 For a sub lease
 The ultimate test is “the nature and quality
Tenancy of the occupancy : whether it was intended
that the occupier should have a stake in
Section 223 (2)
the sub-let or whether he should only have
 Orally or by written instrument in any form a privilege
whatsoever  Looked at the agreement and interpret the
intention of the parties whether the
Section 213(3) agreement was to create a lease or a
 May be protected by an indorsement on license
the RDT 2) Intention to create a lease or tenancy
TO WHOM ? Kandasami v Mustafa
Section 43  Exclusive possession is no longer a
Section 433B decisive factor
 What is important is the intention of the
FORMALITIES parties
Section 207-Section 212

 If there is exclusive possession but no
intention then it is not a lease/tenancy
3) Must be granted for a specified time
Siew Soon Wah v Yong Tong Hong
 What was meant by the words “the
tenancy shall be permanent” in the written
agreement was that R should rent the
premises for as long as the landlord could
let them and so long as R wishes to
occupy it and pay rent
 It did not mean that the tenancy was to be
forever in perpetuity as there is no such
thing in law as a lease in perpetuity
 If the agreement was vague and uncertain
it shall be deemed to be void for
uncertainty
TYPES OF LEASES AND TENANCIES
Leases
Lease for a fixed term
 Maximum 99 years for the whole of the
land
 Maximum 30 years for a part of the land
Siew Soon Wah
 It did not mean that the tenancy was to be
forever in perpetuity as there is no such
thing in law as a lease in perpetuity
Tenancy
1) Tenancy for a fixed term
 Up to 3 years
 Periodic tenancy-weekly , monthly, yearly
2) Tenancy at will
 Holds over after expiry with the
lessor/landlord‟s permission
 Can be terminated by either party anytime
3) Tenancy at sufferance
 Holds over after expiry without
lessor/landlord‟s permission
 Lessor/landlord may repossess
4) Tenancy by estoppel
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
 Where a lease or tenancy has been
created, a lessee or tenant is estopped
from denying that the lessor or landlord
had legal title or interest to grant the lease
or tenancy
SIngma Sawmill
 Estoppel only operates when there is a
tenant in possession
Wee Tiang Yap
 The learned judge upheld Section 116 of
the Evidence Act 1950, whereby a lessee
or a tenant is estopped during the
continuance of the lease or tenancy to
deny that the lessor or landlord had at the
beginning of the tenancy no title to the
land
 Despite the notice and knowledge of the
change of ownership to the P‟s
(deceased) son the defendants continued
to tender and pay the monthly rental of
$280.00 to the plaintiffs
5) Tenancy coupled with equity
Devi v Francis
 Mrs Devi lived in a portion of Francis‟s
house permitted by his mother whilst she
was alive.
 Then SHE DIED. Francis now wants to
kick Mrs Devi out of the portion of the land
which now belongs to him.
 APPLIED the DOIL.
 CANNOT APPLY not enough detriment
 The court must prove that there was;
o Verbal agreement with the
landlord for a certain interest in
the land
o Existence of expectation and
encouragement of the landlord
o Reliance on the part of the lessee
by taking possession of the land
and incurring expenditure to
develop/improve the land
o The reliance is to the detriment of
the lessee
 If a party can prove the above, he is said
to have a tenancy coupled with equity or

an irrevocable license which is also an
equitable principle
EFFECT OF NON-REGISTRATION ON LEASE
Section 206 (3)
Where Malaysian courts applied English
equitable principles;
1) A LEASE WHICH IS NOT REGISTERED IS
VOID AS A LEASE BUT IS GOOD AND VALID AS
AN AGREEMENT FOR A LEASE AND MAY BE
ENFORCEABLE BY A DECREE OF SPECIFIC
PERFORMANCE
Margaret Chua
 As the lease was unregistered, it was void
but it was good and valid as an agreement
for a lease and can be enforced in equity
by a decree of specific performance
2) EFFECT OF ENTRY UNDER AN
UNREGISTERED LEASE IS EQUITABLE RIGHTS
Cheng Hang Guan
 Promises and assurances have been
made by Khoo Kongsi that so long as he
or his family continued to pay ground rent
he could stay and cultivate the farm as
long as he wanted
 Relying on that, he and his family
converted what was once a swampy land
into a productive farm
 There was proprietary estoppel in their
favour
 The general rule is that a person who
spends money on improving the property
of another has no right to claim
reimbursement or any proprietary interest
therein
3) A TENANCY CLAIM SUBSEQUENT TO THE
UNREGISTERED LEASE
 Will not be adversely affected not bound
by the agreement for the lease
 Unregistered lessee is still in occupation
and treated as a periodic tenant v The new
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LAND LAW II
A + EXAM NOTES
RP will depend on whether his tenancy
has been endorsed in the RDT
 IF YES, the tenancy (not the agreement) is
binding the new RP
INDORSEMENT OF TENANCY
 A tenancy exempt from registration does
not bind a subsequent purchaser unless
prior to the transaction, an indorsement
has been made on the RDT
Than Kok Leong
 The learned judge in this case referred to
Section 316 (1) NLC which provides that
any person claiming to be entitled to the
benefit of a tenancy exempt from
registration may apply to the Registrar for
the indorsement of his claim on the RDT.
 Therefore upholding Section 213 (3) NLC,
this oral agreement is not binding on the
plaintiff as it is not indorsed accordingly.
EXPRESS AND IMPLIED PROVISIONS
 By way of agreement or expressly
provided or implied by law
Section 229
 Lease agreements may incorporate the
provisions in the 6th Schedule
Section 230
 It should be implied in all lease
agreements that the lessee or sub-lessee
will pay rent in the manner specified and
will duly perform all conditions
Section 231
 Agreements on the part of the lessee shall
be implied
Section 232
 Agreements on the part of the lessor shall
be implied
OPTION
 ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES

 In some agreements, a clause granting the Section 239 (3)

lessee or tenant an option to renew the
lease or tenancy may be included
Wisma Sime Darby Sdn Bhd v Wilson Parking
(M) Sdn Bhd
 An option for a further term at “a rent to be
agreed” was void unless the agreement
provided some machinery or formula
which the courts could utilise to ascertain it
Voo Min En & Ors v Leong Chung Fatt
 Since the respondent gave no written
request as required of the lease, the
agreement is deemed to not be renewed.
 The alleged oral agreement even if
proved, could not renew the lease,
because it is completely outside the
purview of this clause.
 Unless and until this clause is amended or
modified so as to include an oral
agreement as a mode of renewal, the
alleged oral agreement remains ineffective
and irrelevant.
TERMINATION OF LEASES/TENANCIES
Expiry
Section 240 (1) CROSS REFER Section 313
 The Registrar may cancel the registration
of the lease/ sub lease on the RDT
Section 240 (2)
 The tenancy indorsed on the RDT may be
cancelled
Surrender
 A lease or tenancy may be surrendered
before its term is up
 The surrender must be in accordance with
Section 239 of the NLC
Section 239(2)
 Lease/sub lease can be surrendered by
executing FORM 15C
 For tenancy exempt from registration,
surrender can be done by word of mouth
or any written agreement
Section 239 (4)
 Surrender must obtain consent of the
charge
Section 239 (5)
 Any sub lease or tenancy granted from the
lease will not be affected
Forfeiture
Section 234 (1)
 Every lease/sub lease/tenancy is liable to
forfeiture when; (a-c)
a) Breach of any provision
b) Adjudicated a bankrupt
c) A company going into liquidation
Section 234 (2)
 Manner of forfeiture is enforced by court
by re entry or by action of the court subject
to any other written law for the time being
in force
Section 234 (3)
 Any act done which shows an intention to
treat the lease/sublease/tenancy as
subsisting constitutes a waiver of the right
to forfeit
Section 235
 Only after the service of a written notice on
the lessee/tenant specifying the breach
and to remedy the breach can a forfeiture
take place
Recovering Possession Of Land
Section 7 Specific Relief Act
 If lessee/tenant continues occupation after
expiry of notice the lessor/landlord may
 ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES

recover possession by an order of the CHARGES

court

CHARGES V MORTGAGES

A charge acquires an A mortgagee acquires

interest in the land title to ownership of the
-Statutory right to land with a promise to
enforce security reconvey by a certain
date
-Mortgagor has equity
of redemption
Takes effect upon Takes effect upon
registration execution
Upon repayment of Upon repayment of
debt the chargee has debt the mortgagee
to discharge the has to reconvey the
charge title to the mortgagor
Upon failure of the Upon failure of
repayment of the debt redemption-foreclosure
the chargee may get
an order for sale or to
take possession of the
land

Bank Bumiputera Berhad

 It is wrong to treat a charge under the NLC

as the same as an English mortgage at
common law
 A charge is governed by statutory
provision of the NLC while an English
mortgage at common law was a horse of a
different colour altogether
HLBB v Goh Sin Khah

 There are 3 conditions that will amount to

an equitable mortgage;
o There must be a loan
o Assignment of rights
o There must be a contractual right
to repay and redeem the land
Chuah Eng Khong v Malayan Banking Berhad

 An equitable mortgage could exist

because NLC does not have provisions
which would render it null and void
 However such a charge does not entitle
the chargee the benefits of the registered
charge under the Code

Tun Salleh Abbas
 Malaysian law does not recognize a
mortgage in the sense of English land law
whereby the ownership of land is
transferred to mortgagee while the
mortgagor only has an equitable right to
redeem
 For our country it must follow the Torrens
System which the mortgagor retains the
legal ownership whilst the mortgagee
acquires a statutory right to enforce his
security
 Our NLC drops the word mortgage and
use the word charge to avoid the
confusion
JUAL JANJI
Salleh Abbas CJ
 It could be interpreted to mean that a jual
janji transaction intended to operate as a
security transaction and could be taken as
an equitable customary security
transaction
 Not recognized under NLC
 The borrower transfers his land to the
lender who thereby takes possession of it
 Whatever profits the lender may make out
of the land will be his to keep as a reward
 The borrower is entitled to resume the land
upon discharging the debt except that
where a period was fixed for the
repayment of the loan, default will turn the
original arrangement into an absolute sale
“jual putus”
JUAL JANJI IN CASES OF FRAUD
Mohamed Isa v Haji Ibrahim
 The lender sold the land to a third party
while the agreement was still subsisting
 The due date of the repayment had not
been lapsed and the borrower had not
caveated the land,
 Somehow or rather his interested was
protected on the ground that there is a
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
fraud on the part of the lender and the third
party purchaser
 Therefore, the right of the borrower on the
land was still protected
 This case was termed as an irregular jual
janji therefore the interest of the borrower
was suppose to be protected
 The act of selling the land to a third party
constitutes fraud in this case
RIGHTS AND REMEDIES IN THE EVENT OF A
BREACH
 In the event the borrower defaults, the
lender becomes absolutely entitled to the
land in question, making the transaction a
jual putus
CHARGE
POWERS OF CHARGING
Section 241 (1)
a) A charge may be created over the
whole but not apart only of any
alienated land or lease thereof or
undivided share therein
b) To secure the repayment of any debt
or the payment of any sum other than
a debt or of any annuity or other
periodic sum
c) It will take effect as a security
transaction under the National Land
Code only upon registration so as to
render the land, lease or undivided
share in question liable as security for
the loan or sums of money advanced
R & I Securities
 There is no possibility for the creation of a
charge where there is no loan transactions
as it defeats the essence of a charge
which is to ensure the repayment of the
loan
Mahadevan s/o Mahalingam v Manilal & Sons
(M) Sdn Bhd
 An agreement to secure a debt in favour of
the creditor in respect of the debtor‟s land

may create an equitable charge giving rise
to an equitable right in favour of the
creditor although no charge within the
provisions of the National Land Code
(Section 206 (3))
Oriental Bank v Chup Seng Restaurant
 Although the unregistered charge has no
right to enforce the charge under the
National Land Code until the charge is
registered, recourse under the contract
may still be available
Standard Chartered Bank v Yap Sing Yoke
 When the unregistered chargee has
custody of the issue document of title,
there may also be a right to lien
Section 241 (2)
 The powers conferred under subsection
(1) shall include power to create second
and subsequent charges
Yee Sin Cheong v UMBC
 A charge duly registered amounts to an
interest in land
 The RP still has title over the land
 What he confers upon the chargee is
merely an interest
 Thus, he can still create subsequent
charges subject to obtaining consent from
the prior registered chargee by applying in
writing to the person lawfully holding the
IDT or duplicate lease requesting to
release the relevant document to enable
the subsequent charge to be effected
 If without prior consent then the
subsequent dealing cannot be validly
created
 The chargee however must not withhold
consent unreasonably
 The charges however will take priority in
accordance with the date of registration
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
Section 241 (3)
 However, it is subject to :
o Limitation by any prohibition of
law being in force
o Restriction in interest
o In relation to a lease (if at that
time there is an existing lease)
 If there is the existence of any of the
above limitations, the charge can be void
or defeasible
Harta Empat Sdn Bhd
 The appellant is a director of a company
 He applied a loan under his company
 When the director wants to charge the
land, Harta Empat said can‟t because it is
against Section 133 of the Companies Act
 In that Section it provides that the director
cant charge the land which is the
company‟s property, although the
appellant borrow for the company
 According to Section 241 (3) (a) of the
NLC, a charge is subject to a prohibition
imposed by any written law for the time
being in force
 A charge takes effect upon registration
under Section 243 of the NLC
 Section 133 of the Companies Act renders
the charge unfit for registration due to a
prohibition in that section
 Therefore, the court in this case, rendered
the charge to be unfit for registration
rendering the charge invalid
Section 241 (4)
 No charge may be granted to two or more
persons or bodies otherwise than as
trustees or representatives
Section 242(1)
 FORM 16A ;repayment of debt in lump
sum/instalment
Section 242 (2)

 FORM 16B; payment of annuity or
periodic sum
Tan Yee Yee
 Even if FORM 16A was the proper form to
be used, the deviation from it using FORM
16B according to Section 62 of the
Interpretation Act could not be said to have
any substantial effect or be calculated or
mislead
Section 243
 It will take effect only upon registration so
as to render the land lease or undivided
share in question liable as security of the
loan or sums of money advanced
Section 244
 This section just mention that the chargee
is entitled to the custody of the IDT so long
as there is still a charge under that
property
 Chargee if requested by proprietor or
lessee must give the IDT to the Registry
Land Office
 The chargee who is first in time is entitled
to retain the IDT to the land or the
duplicate lease whilst the charge remains
in existence
 A co-proprietor of land can obtain a copy
of IDT for the purposes of charging his
share in the land and the charge will be
entitled to hold such copy
 The chargee does not lose the security
during the time he departs with the IDT
whilst the loan remains unsettled
TO WHOM ?
Section 43
Section 433B
FORMALITIES
Section 207-Section 212
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
LOAN AGREEMENT CUM ASSIGNMENT (LACA)
In instances where no document of title has been
issued to the land, therefore a charge cannot be
created, the borrower may enter into a loan
agreement and a deed of assignment assigning all
his rights, title an interest under the sale and
purchase agreement to the lender to secure the
loan
Vallipuram
 Purchaser may make valid assignment of
rights under a contract to a third party who
will be treated as in the same position as
the original purchaser
 May assign beneficial ownership to a third
party equally and validly
 Can also be assigned to a bank (third
party) in consideration of a loan.
 Therefore, if the original purchaser
defaults in repayment, bank can undergo
an order for sale
Damai Freight (M) Sdn Bhd
 Although LACA is against the NLC, it is
still enforceable under Section 206(3) of
the NLC as it enforces the contractual
obligation of parties in an agreement of the
assignment of parties‟s rights
 The appellant can proceed with OFS
under LACA
 LACA doesn‟t need a charge, just an
agreement of assignment of parties‟s
rights
POSITION OF UNREGISTERED CHARGE
There is no provision under the National Land Code
which prohibits the creation of equitable charges
Such a charge gives rise to an equitable right in
favour of the creditor
Section 206(3)
Such a right under the contract is preserved and
recognised under the Section 206 (3) of the

National Land Code, where the court may in
exercise of its equitable jurisdiction and in
appropriate circumstances grant an order for
specific performance by ordering the execution of a
valid and registrable charge document
Standard Chartered Bank v Yap Sing Yoke
 The term equitable charge has also been
used in the following circumstances;
o Where a charge instrument has
been executed but not presented
for registration
o Where no separate title has been
issued and instead of a charge, a
loan agreement and a deed of
assignment are entered into to
secure a loan
o Where a charge instrument had
been erroneously attested
Tan See Hock v Development and Commercial
Bank Berhad
 An equitable charge not being a charge
under the National Land Code is not
entitled to the benefit of indefeasibility
under Section 340
Oriental Bank v Chup Seng Restaurant
 An equitable charge is not entitled to the
remedies available to a registered chargee
under the National Land Code
Mahadevan s/o Mahalingam
 An agreement to secure a debt in favour of
the creditor over the debtor‟s land may
create an equitable charge although no
charge within the provisions of NLC has
been executed
 The creation of equitable charge depends
upon the intention and conduct of the
parties at the time when the payments
were made
 The provision in NLC is silent and does not
prohibit the creation of equitable charges
and liens
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
 In situations where parties fail to proceed
with registration despite the completion of
the instrument of the charge, parties may
obtain contractual relief through Section
206 (3) NLC where the court will exercise
its equitable jurisdiction and grant the
creditor specific performance of the
contract
PRIORITY OF CHARGES
 A charge will be given priority in order of
creation
 The principle first in time will get first
priority
 Under the NLC the priority of a charge
may be affected using the following
mechanisms;
Consolidation
 Consolidation takes place where the
chargor has charged two pieces of land A
&B
 Normally relief would only be given if
money is paid for both pieces of land
 A chargee who is registered over different
properties belonging to the same chargor
can refuse to discharge one charge
without the chargor simultaneously
discharging all the other existing charges
 The effect of consolidation is to alter the
priority of a subsequent chargee by
restricting its priority in respect of land, by
giving the consolidation chargee an
advantage
Section 245
 Consolidation is permitted if it is expressly
provided for by the charge
 Otherwise, there is a restriction on the
right to consolidate
Public Finance Bhd v Hock Seng Housing
 The right to consolidate should be
exercised before any application for an
order for sale

Tacking
 Whenever there is a tacking transaction,
the chargee offering tacking facilities will
gain priority in respect of the original sum
and further advances
Section 246 (1)
 Any charges may make further
advancements to rank in priority to any
subsequent chargee
Section 246(2)
 May do so if the making of advance is
expressly authorized by the prior charge
OR if the advance is done with the consent
of the subsequent chargee
Section 246 (3)
 Advance made before he is informed in
writing of the registration of subsequent
charge is deemed to have been made with
the consent of the subsequent chargee
Section 246 (4)
 The right to tack is inapplicable except
provided in this section (unregistered
charge)
Postponement
 It operates to alter the priority of prior
charge by placing it on a lower lever or
priority
Section 247 (1)
 A charge may be postponed to any
subsequent charge by FORM 16C
Section 247 (2)
 The charges to which any instrument of
postponement relates shall rank as
between each other in the order therein
specified as from the date on which the
instrument is registered
EXPRESS & IMPLIED PROVISIONS
Express
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
 Look at the charge agreement “the
Annexure to the Charge”
Implied
 Section 249-252
BREACH / REMEDIES FOR A REGISTERED
CHARGEE
Kimlin Housing Development Sdn Bhd
 The provisions of this Code setting out the
right and remedies of the parties under a
statutory charge over a land are
exhaustive and exclusive and any attempt
at contracting out of those rights, unless
provided in the Code would be void as
being contrary to public policy
Section 253
 The charge is entitled to obtain an order to
sell the land or lease to which the charge
relates or to enter into possession of the
land
 A chargee who has entered into
possession of the land under the charge is
not barred from subsequently obtaining the
sale of the land
Section 254 (1)
 In the event of a breach as in Section
253(1) which has continued for a period of
atleast one month or any such alternative
period as specified in the charge which
shall not be less than a month
 The chargee shall serve on the charger a
notice in FORM 16D-
a) Specifying the breach
b) Requiring it to be remedied
within one month on the date
on which the notice is served ,
or such alternative period as
may be specified in the charge
c) Warning the chargor that if the
notice is not complied with, the
chargee will take proceedings
to obtain an order for sale
Syarikat Kewangan Melayu Raya

 A notice of default with respect to a charge
or charges in FORM 16D wherein is cited
two charges and in respect of which the
sums due under both the charges are
lumped together, will not be regarded as
defective where, in the circumstances of
the case, the chargor had not been
prejudiced or misled by any effect in the
notice
Cooperative Central Bank Ltd
 A notice of demand which does not state
the exact and precise amount owing does
not have the effect of rendering the notice
invalid unless it demands payment of a
sum to which the chargee is not entitled
Section 254 (2)
 The notice shall be valid and effectual after
the service of the notice
Section 254 (3)
 If at the expiry of the period specified in
the notice, and the breach in question is
not remedied,
o The whole sum secured by the
charge shall become due and
payable to the chargee; and
o The chargee may apply for an
order for sale
Section 255
 If the principal sum secured by any charge
is payable by the chargor on demand, the
chargee may make the demand by a
notice in FORM 16E
 If the sum in question is not paid to him
within one month of the date on which the
notice is served, may apply order for sale
without serving FORM 16D
Jacob v Overseas Chinese Banking Corp
 Although Section 255 (1) refers to the
principal sum, it is settled law that the
chargee may use FORM 16E to recover
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
the principal sum as well interest which
have become due and payable provided
that the principal sum is payable on
demand
Mary Michael v UMBC
 Although FORM 16E is specially provided
for this purpose, FORM 16D, being a
general form of notice, may also be used
in such a case (as stated above)
ORDER FOR SALE BY COURT ORDER OR
THROUGH THE LAND ADMINISTRATOR
An order for sale application must be made in
accordance with the relevant provisions for the time
being in force relating to the civil procedure i.e
Order 83 Rule of Court 2012
Perwira Habib Bank
 The true intention of Order 83 must be
given effect
 Failure to comply with the requirements
under Order 83 in an order for sale would
render any order for sale granted defective
and liable to set aside
Court Order
Section 256
 An order for sale by a court order applied
to land held under Registry title ( more
than 4 hectars, town/village land)
 The court shall order an order for sale
unless there is cause to the contrary
CAUSE TO THE CONTRARY
Overseas Union Bank Ltd
 It is for the chargor or any interested third
party to prove the existence of any “cause
to the contrary” at the application for an
order for sale
Low Lee Lian v BHL Bank
 The chargee is entitled to pursue all
remedies available to him “simultaneously,
contemporaneously or successively to
recover the money lent” unless there are

circumstances that may show a cause to
the contrary
 Circumstances that show that there is a
cause to the contrary;
 The title is defeasible under
Section 340 (2)
 There is a failure to meet
condition precedent such as
giving notice under FORM 16D
Cempaka Finance Berhad
 If there is no proper notice given to the
chargor, or where the notice demands for
a sum to which the charge is not entitled,
the existence of cause to the contrary can
be established
 The OFS is against the rule of
equity or law
Oriental Bank v Chup Seng Restaurant Sdn Bhd
 NLC clearly requires a charge to be
registered in the prescribed form before a
charge can enforce his statutory remedies
Keng Soon Finance
 The courts have cautioned against any
attempt to refuse relief merely on the
ground that the court felt sorry for the
borrower or that it regarded the lender as
arrogant, boorish or unmannerly
OCBC v Lee Tan Hwa
 The provisions for “cause to the contrary”
can provide for both the chargor and the
chargee, because:
o CHARGOR : can apply to annul
the notice of demand or order for
sale if the sale has been
conducted fraudulently or
improperly
o CHARGEE : The order for sale
can only be void if it falls under
the 3 situations
o
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
MATTERS TO BE DEALT WITH PRIOR TO THE
SALE
Section 257
 Every order for sale made by the Court
under Section 256 shall be in FORM 16H
and shall;
a) Provide that the sale to be by
public auction
b) The sale must be held on as soon
as may be after a date specified
being a date not less than one
month after the date on which the
order is made
c) Specify the total amount due to
the chargee at the date on which
the order is made
d) The Registrar will fix a reserved
price for the purpose of the sale,
being a price equal to the
estimated market value of the
land
e) The officer of the court must
make sure that all bidders
possess the sum equivalent to
ten percentum of the reserved
price specified
f) The sum equivalent to ten
percentum of the reserved price
shall be paid as a deposit to the
chargee at the fall of the hammer
pending settlement of the balance
of the purchase price
g) The balance of the purchase
price shall be settled on a date
not later than one hundred twenty
days from the date of the sale
and there will be no extension of
the period so specified
h) If the balance of the purchase
price is not settled in one hundred
and twenty days from the date of
the sale, the sum paid as a
deposit shall be forfeited and
disposed off by Section 267A
which referred to Section 268
(1) (a) (b) (c) (d) (e)
Maimunah bte Megat Montak

 An order for sale made by the court must
be in FORM 16H and must contain the
particulars as set out in Section 257 which
is mandatory and failure to comply would
render the order for sale invalid
Section 258
 It shall be the duty of the Registrar to ;
 Serve a copy thereof on the
chargor and on every chargee of
the land or lease in question and
 See that the sale is publicly
advertised in accordance with the
rules of court or according to the
practice customarily adopted by
the State
 The chargee on whose the application was
made shall ;
 Prepare the conditions of the sale
 Deposit the IDT to the Court not
less than a week before the date
fixed for the sale
PROCEDURE AT THE SALE
Section 259
 The officer shall
o Receive bids
o Settle summarily any question
arising from the proceedings
o In the absence of any bid at or
above the reserve price, withdraw
the land in question, direct it to be
put up for auction on a
subsequent date, either at the
same or at a new reserved price
and see that the subsequent sale
is publicly advertised in the like
manner
o Declare the sale concluded in
favour of the highest bidder
 The purchaser at the sale shall, upon
payment to the said officer of the full
amount, be entitled to receive from him ;
o A certificate of FORM 16F that
the land in question has been
sold to him and treated as an
instrument of dealing and be
registrable by the purchaser
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
o The IDT deposited to the Court a
week before the sale
Land Administrator
Section 260
 An order for sale by a court order applied
to land held under Land Office title ( less
than 4 hectars, country land)
 An application for an order for sale by the
chargee shall be made via FORM 16G
LAND ADMINISTRATOR WILL HOLD ENQUIRY
Section 261
 Upon receiving any application, the Land
Administrator shall
o Appoint a time and a place for the
holding of an enquiry
o Notify the chargee of the time and
place so appointed
o Cause a summons to be served
on the chargor requiring him to
appear at the enquiry and show
cause why the order should not
be made
ENQUIRY
 During the enquiry LA must make
enquiries as to whether default has been
made rather than examining the merits of
the charge itself and its validity
Section 262
 Only the chargor and the chargee shall be
entitled to be heard or to adduce evidence
or in their absence, a person or body
appointed by the chargor or the chargee
 The chargor and the chargee of the person
or body appointed shall be entitled to apply
for a postponement or change of venue or
cancellation
 If the chargee fails to appear at the time
fixed for the hearing of any such enquiry,
the LA may dismiss the application
 If the chargee appears but not the chargor,
the LA;
o If satisfied that a summons to
appear was duly served on the
chargor , and in sufficient time to

enable the chargor to appear and
answer shall proceed with a
hearing ex parte
o If not satisfied, shall adjourn the
hearing to a later date and cause
a fresh summons to be served
 If there are more chargees than one, and
some only of them appear, or more
chargors than one and some only of them
appear, the LA may at his discretion
proceed with the hearing or adjourn it to a
later date
Suppiah v Ponnampalam
 If the LA is satisfied that the charge in
question is on the register, he only has to
decide whether or not there has been a
default in the payments provided for and if
he is so satisfied he is required to grant
the application for order for sale
Gurpal Singh v Kananayer
 He has no power to consider or hear
pleadings and defences raised on behalf
of the chargor which are ordinarily heard
by courts
MATTERS TO BE DEALT WITH PRIOR TO THE
SALE
Section 263
1) At the conclusion of any enquiry, the LA
shall order the sale of the land unless he
is satisfied of the existence of cause to
the contrary (Low Lee Lian)
2) Every order shall be in FORM 16H
a) Provide that the sale to be by
public auction
b) Specify the date on which the
sale is to be held being a date
not less than one month after the
date on which the order is made
c) Specify the total amount due to
the chargee at the date on which
the order is made
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
d) Fix a reserved price for the
purpose of the sale, being a
price equal to the estimated
market value of the land in
question as estimated by the LA
e) The LA to make sure that all
bidders possess the sum
equivalent to ten percentum of
the reserved price specified
f) The sum equivalent to ten
percentum of the reserved price
shall be paid as a deposit to the
chargee at the fall of the hammer
pending settlement of the
balance of the purchase price
g) The balance of the purchase
price shall be settled on a date
not later than one hundred
twenty days from the date of the
sale and there will be no
extension of the period so
specified
h) If the balance of the purchase
price is not settled in one
hundred and twenty days from
the date of the sale, the sum
paid as a deposit shall be
forfeited and disposed off by
Section 267A which referred to
Section 268 (1) (a) (b) (c) (d) (e)
M & J Frozen Food
 At the fall of the auctioneer‟s hammer, a
contract of sale is formed between the
vendor and the highest bidder
 Although a sale is concluded , the
proprietary rights in the land do not pass to
or vest in the purchaser until registration
Government of Malaysia v Omar Haji Ahmad
 When there is no existence of a cause to
the contrary, the LA at the conclusion of
the enquiry is obliged to make an order for
sale
Section 264
1) The LA shall;

a) Serve a copy thereof on the
chargor on every chargee of the
land in question
b) Give public notice of the sale in
such manner as he may consider
appropriate
2) The chargee on whose application the
order was made shall deposit to the LA not
less than 7 days before the date fixed for
the sale;
a) The duplicate charge; and
b) If he is in custody the IDT or as
the case may be duplicate lease
3) The LA may if he thinks expedient to do
so, postpone any sale ordered under
Section 263
4) Notice of any such postponement shall be
given to each of the persons or bodies on
whom a copy of the order has been served
the initial notice and shall be published in
any such manner as the LA may consider
appropriate
POSTPONEMENT OR CANCELLATION OF AN
ORDER FOR SALE BY LA
Section 264A
1) An order for sale made under Section 263
may be postponed only once for a period
not exceeding three months or cancelled
by the LA upon any application of the
chargee with the consensus of the chargor
in FORM 16O + fee as may be prescribed.
The application must be submitted to the
Land Administrator not less than seven
days before the date of the sale
2) Upon receiving the application the LA may
approve or reject the application
3) If the LA approves to postpone the sale,
the LA will give an order in FORM 16P to
each persons or bodies on whom a copy
of the order for sale initially served and
give public notice in such manner as he
may consider appropriate
4) The rejection of any application made
under Section 264A shall be without
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
prejudice to the making of a fresh
application by the chargee
PROCEDURE AT SALE
Section 265
 Where a sale is held pursuant to an order
under Section 263-
o The sale shall take place under
the direction of the LA who may
seek assistance of any licensed
auctioneer and
o The chargee shall be entitled to
bid at the sale
 If at the sale, no bid is received at or
above reserve price, the land in question
shall be withdrawn from the sale and the
LA shall direct that it be put up for auction
on a subsequent date, either at the same
or at a new reserve price and shall give
such notice of the subsequent sale as he
may consider appropriate
 If at the subsequent date no bid is
received at or above the reserve price, the
LA may-
o Direct that it be put up for auction
at a subsequent date either at the
same or a new reserve price and
shall give such notice of the
subsequent sale as he may
consider appropriate
o Withdraw it from the sale and
refer the matter to the Court
 The purchaser at any such sale shall upon
payment to the LA of the full amount of the
purchase price be entitled to receive from
him :
o A certificate of FORM 16I that the
land in question has been sold to
him which is registrable by the
purchaser as if it were an
instrument of dealing and
o If deposited with the LA the IDT
or duplicate lease
Ho Giok Chay v Nik Aishah
 Upon default the charge may issue
summons to call the landowner to show

cause why the land charged should not be
auctioned
 Such power given to the chargee is a right
or interest in the land
RIGHT OF CHARGOR TO TENDER PAYMENT
TO CHARGEE AT ANY TIME BEFORE THE SALE
 Any chargor can seek to stop the public
auction by tendering the full amount due
under the charge before the conclusion of
the sale
 The chargee is obliged to accept this
amount and this will terminate the sale by
public auction
 The chargor will be entitled to a discharge
of a charge and the returning of the IDT or
the duplicate lease
M & J Frozen Foods Sdn Bhd
 For “sale concluded” or “conclusion of the
sale” are merely used to signify the point
of time where there was an acceptance of
the bid
 Thus even after the order for sale was
made and when the auction sale was
already in progress, but before a bid has
been accepted the chargor still retained
the right to tender payment of the amount
which he owes
ONCE AN ORDER FOR SALE HAS BEEN MADE,
THE COURT OR LA IS FUNCTUS OFFICIO
Functus Officio : The order becomes a final order
unless appealed against
The court is functus officio once :
 Order for sale has been granted
 The public auction pursuant to the order
has been completed and
 The certificate of sale has been issued to
the successful purchaser
Bank Bumiputera Berhad
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
 There is no power to cancel the order; the
order for sale will only cease to have effect
when the land is finally sold or when
pursuant to Section 266 (1) the chargor
tenders full amount before the conclusion
of the sale
Section 267 (1) (a)
 Where the certificate of sale in respect of
the land, lease or undivided share sold has
been registered in the name of the
purchaser the title or interest of the former
registered proprietor or co-proprietor or
lessee shall pass to and vest in the
purchaser, freed and discharged from all
liability under the charge in question an
any charge subsequent thereto
Jones v Palaniappa
 As regards to the sums due under any
charge created subsequent to the charge
in question and which is now discharged
from the land, they can be recovered from
the chargor in a personal action based on
the charge agreement
 Any sums left outstanding under the
charge in question or ranking in priority to
it
Section 267 (1) (b)
 Any registered lease or easement
subsisting in respect of the land or lease
sold, they will bind the purchaser
Section 267 (2)
 Any tenancy exempt from registration
granted by the chargor after the date of
registration of the charge will not bind the
purchaser unless it was granted with the
consent of the chargee and has become
protected by an indorsement under
Section 316 NLC prior to the date of
registration of the certificate of sale
SALE BY PRIVATE TREATY
 The chargor can sell the charged land by
way of private treaty if he cannot remedy
the default after he gets consent of the

chargee prior to the commencement of
foreclosure proceedings by the chargee as
long as the chargee‟s interest had not
been adversely effected.
UMBC v Chong Bun Sun
 Once an order for sale by way of a public
auction has been made by the court, the
court does not have the power to make a
subsequent order to vary or set aside the
earlier order
 Section 266 (1) seems to support the right
to fall back on sale by private treaty when
attempts to sell by public auction were
exhausted
 I cannot afford paying, I ask consent of the
chargee, I want to take the land and sell to
another party any proceeds I give to you
 “at any time tender payment” it suggest
any means necessary
TAKING POSSESSION
 The right to take possession is not given to
all chargees
 It is only available to chargees of land held
under registry land and it is available to
first chargees only
Section 270-277
Section 270 (1) (aa)
 It expressly denies the right of possession
where the subject matter of the charge is
an undivided share in the land
Section 271
 Any chargee may at any time when the
chargor is in breach of any agreement on
his part, may enter into possession of the
whole or any part of the charged land or
the land comprised in the charged lease
by;
o Receiving rent by granting a
lease on the land
o Entering the land by occupation
Section 272
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
 Any chargee intending to take possession
of any land is required to serve a notice of
taking possession using FORM 16J
 Failure to serve the notice will render the
chargor‟s act of taking possession invalid
Section 273 (1)
 A chargee in possession can remain in
possession as the loan remains unpaid
Section 273 (2)
 The chargee in possession of any land by
occupation may remain in possession
either by continuing in occupation or by
exercising his power under Section 275 to
lease the land and receive the rent
payable under the lease
Section 274 (1)
 The chargee is entitled to manage the land
and take all the profits accrued from the
land
 He must be accountable to the chargor for
all sums actually received by him, but also
additional sums which he might
reasonably receive
 He is liable to the chargor for any act
whereby the capital value of land is
impaired or the chargor is put to any loss
Section 275
 This section enhances the power of the
chargee to act to recover the money owing
to him by entitling the chargee to lease or
sub-let the land
 However, the right does not extend to
granting a tenancy exempt from
registration
 The lease can subsist of a maximum of 14
years
A DISCHARGE OF A CHARGE
A chargee is obliged to discharge the charge upon
full and final settlement of the loan amount secured
by the charge
Section 278 (1)

 A chargee may by FORM 16N discharge
any land/lease from further liability,
discharge effective on the date of
registration of FORM 16N
Section 278 (2)
 A discharge does not release the chargor
from his personal liability under the charge
Section 279
 A chargor can apply to discharge the
charge if chargee is unable or unwilling to
accept the payment due to the grounds:
o Chargee is dead, cannot be
found, evades or refuses to
accept payment
o Chargor is unable to trace any
person or body authorized to
receive the payments on the
chargee‟s behalf
 The Registrar after satisfied the grounds
specified, must authorize the chargor to
deposit the amount in question with him
 Once the deposit is made, the land must
be discharged
Section 280
 Where the land/lease has become
discharged by payment to the Registrar
under Section 279, the Registrar shall
cancel the registration of the charge
pursuant to Section 314
Section 314
 Any chargor may apply to the Registrar
under Section 314 for cancellation of the
registration of the charge on the ground
that a discharge has been effected by
payment to the chargee
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
LIENS
Halsbury Laws of England
 Lien means a right in common law in one
man to retain rightfully and continuously in
his possession belonging to another until
the present and accrued claims of the
person in possession is satisfied
SUBJECT MATTER OF LIENS
 The method of creating lien is by the
proprietor, co proprietor, lessee depositing
the IDT or duplicate lease with any person
or corporation as security for a loan
 The depositee-lender should use FORM
19D accompanied by IDT or duplicate
lease that belongs to the registered
proprietor
CAN A CO-PROPRIETOR CREATE A LIEN OVER
HIS UNDIVIDED SHARE IN THE LAND?
Co-proprietor can also create a lien as a copy of
IDT is also allowed
Section 343(3)
 A co-proprietor may apply for a copy of the
IDT
Section 343 (6)
 A co-proprietor may use the copy for the
purpose of effecting transfer, charge or
creating any lien under Section 281 in
respect of his undivided share
Section 281(1)
 The depositing of an IDT or duplicate
lease entitles the person holding the title or
duplicate lease to apply for the entry of a
lien-holder‟s caveat over the said land or
lease
 The person will then be entitled to a lien
over the lease/land
Section 281(2)
 Where the lien holder has obtained
judgment for the amount due to him, he

shall be entitled to apply to the court for an
order for sale of the land/lease
Section 206(2)(b)
 Non-registrable
LIEN IN EQUITY
Mercantile Bank
 Although registration of a LH caveat is
essential for a valid statutory lien, the court
can still give effect to equitable rights
existing between the parties.i.e lien in
equity
3 REQUIREMENTS:
1) deposit of IDT or duplicate lease
2) the IDT was deposited as security for a loan
3) entry of a lien-holder‟s caveat
Deposit of IDT/Lease
ORMORM
 There must be a deposit IDT or duplicate
lease
 Separating from the possession of the IDT
or duplicate lease for purposes other than
surrendering the lien, as when the title is
delivered to the registered proprietor or
lessee for a purpose that is required under
the NLC or any other laws, will not cause
the lien to be lost
Staghorn
 A third party may also deposit the title as
long as it was done upon instruction or
consent was given by the registered
proprietor
 HELD: Section 281(1) is an enabling or
empowering provision which allows or
enables the RP to deposit IDT with any
person/body as security for loan.
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
 It does not prescribe the procedure for or
the manner of depositing
Deposited as security of loan
 NOT FOR ANY OTHER PURPOSES
Paramoo v Zeno
 HELD: Intention to create lien is
mandatory
 Such intention may be gathered from the
fact that IDT had been deposited with the
lender as security for loan & not for other
purposes.
Perwira Habib Bank Malaysia
 Once it was deposited as security for a
loan, the lender was entitled to a lien in
equity despite the absence of an
agreement for the entry of a lien-holder‟s
caveat
Nallammal
 The element was not satisfied when
possession of IDT was obtained by fraud
or misrepresentation and the RP had
never authorized the deposit as security
for loan hence the Bank cannot enforce
the security on the RP
Entry of Lien-Holder’s Caveat
 A lien is an unregistrable interest as NLC
does not provide a form to create lien
 Thus the lien holder must proceed to enter
the lien holder‟s caveat over the said land
then only will the lien take effect
Section 330 (1)
 Any person or body with whom the IDT or
duplicate lease has been deposited as
security for a loan may apply to the
Registrar under this section for the entry of
a lien-holder‟s caveat in respect of the land
or lease in question
Section 330 (2)
 Any such application shall be in FORM
19D

 It must be duly attested in accordance with
Section 211
 Prescribed fee
 Together with the IDT or duplicate lease
Section 330 (3)
 The Registrar shall note on the time which
it was received
 If the application is by post, the time at
which it was withdrawn from its cover in
the Registry or as the case may be the
Land Office
 If there is no prohibition under a
Registrar‟s Caveat, private caveat, trust
caveat or prohibitory order, Registrar shall;
o Enter the caveat on the RDT to
the land or a lease; and
o Serve a notification in FORM 19A
on the proprietor of that land or
as the case may be the person or
body for the time being entitled to
the benefit of the lease in
question
Section 330 (4)
 The entry of a lien-holder‟s caveat on any
RDT shall be effected by the endorsement
thereon, under the hand and seal of the
Registrar with the words “ Caveat (Lien)”
together with a statement specifying;
o Whether the caveat binds the
land itself or a lease thereof only
o The person or body on whose
application it was entered
(caveator)
o The time from which it is effective
(being the time of receipt of the
application as noted in subsection
(3) earlier and
Section 330(5)
 Effect as specified in Section 322(2)-(5) &
(6)-(7)
. Section 331(4)
Heap Huat Rubber
 IDT deposited to the lender, a foreign
company, in 1985.
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
 Section 433B(1)(b) imposed restrictions
on land dealings in favour of foreigners
and foreign companies.
 However, caveat was entered in 1987, by
then the NLC was amended so as to
impose no restriction on non-citizens &
foreign companies.
 HELD: Until the entry of a lien-holder‟s
caveat, no lien was created or could arise.
 Since at the time of the entry of the lien-
holder‟s caveat, there were no restrictions
on the creation of lien in favour of foreign
companies, a valid lien existed.
DETERMINATION OF LHC
Section 331(1)
 A LHC may be withdrawn at any time by a
written notice to the Registrar by the lien
holder
 Registrar shall cancel the entry of the
caveat as soon as may be after receipt of
the notice
Section 331(2)
 Where the land/lease subject to LHC is
sold pursuant to an order of the court i.e
order for sale under Section 281(2):
(a) certificate of sale presented for registration by
the purchaser shall be deemed to have been
presented with the lien holder‟s consent
(b) upon registration of the certificate, the caveat
shall lapse and its entry shall be cancelled by the
Registrar
Section 331(3)
 Cancellation by the Registrar upon proof to
his satisfaction that all sums due under the
lien have been duly paid
 Where the Court is satisfied that any lien-
holder‟s caveat ought not to have been

entered or ought to have been withdrawn,
the court may order;
o The cancellation of the LHC by
the Registrar
o If the entry or failure to withdraw
caused damage or loss to any
person or body, the payment of
compensation by the caveator
ought to be done
Section 331 (5)
 On the cancelling of the entry of any
caveat, the Registrar shall note on the
register document of title the reason of the
cancellation and the date thereof
 Where any such entry is cancelled by
reason of withdrawal of the caveat, the
Registrar shall give notice of the
withdrawal to the person or body for the
time being entitled to the land or lease
formerly affected
Section 281 (2)
 Where the holder of any lien has obtained
judgment for the amount due to him
thereunder, he shall be entitled to apply to
the Court for, and obtain forthwith an order
for sale of the land or lease
DIFFERENCES BETWEEN A TORRENS LIEN
AND A CHARGE
 In lien, there must be an intention to create
a lien
 The failure to enter a lien-holder‟s caveat
will not necessarily deprive the lender of
the right to a lien in equity
 A person entitled to a lien must have first
obtained judgement for the amount due to
him, then only he can be able to apply to
the court for order for sale
 A lien is not transferable as there is no
statutory provision providing for the
transfer
 There can only be only one lien created at
one time, as there is no provision to create
subsequent lien
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
CAVEATS
The entry of a caveat is a unilateral act which
serves the following purposes;
 As a notice to the world at large that the
person entering the caveat (caveator) has
a claim to an alleged interest in the land
 To prohibit subsequent dealings with the
land or an interest therein
 To preserve the status quo of the
contending parties pending the resolution
by the court of their dispute over the land
or interest in question
The entry of a caveat does not enhance the
caveator‟s interest or claim to an interest in the land
Neither does it create a legal interest in land
FOUR TYPES OF CAVEAT :
 Registrar‟s Caveat
 Lien-Holder‟s Caveat
 Private Caveat
 Trust Caveat
Macon Engineers v Goh Hooi Yin
 A creature of statute and is in the nature of
a statutory injunction
 The entry of the caveat does not make the
claim or right either better or worse
 Thus frozen
Haroon v Nik Mah
 Competing equities arise, priority
determined by ordinary rules of equity
 A caveat entered to protect an interest that
has lower priority according to such rules
can be defeated by person with
higher/better priority.

REGISTRAR’S CAVEAT
RC is entered into to protect and inhibit dealings
with land
The entry or lodgement of the Caveat does not
create or enhance any existing claim to title or
interest or give rise to any claim to title or interest
EFFECT OF A REGISTRAR’S CAVEAT
Section 319 (1) (b)
 A RC has the effect of prohibiting the
registration, endorsement or entry on that
document of;
o Any instrument dealing (NOT
PROHIBITORY ORDERS i.e
private caveats, trust caveats,
prohibitory orders)
o Any claim to benefit from the
tenancy exempt from registration
o Any lien holder‟s caveat
Section 319 (2)
 RETROSPECTIVE EFFECT
 A RC has the effect of preventing the
registration of any instrument dealing
presented prior to the time the RC takes
effect
Section 319 (3)
 The Registrar has the discretion to waive
any of subsection (1) (b) (i)-(iii) prohibition
 The Registrar must be satisfied that it will
be inconsistent with the purpose for which
a caveat is entered
 The Registrar may in any case, reject the
instrument or the application for
endorsement or entry
Section 320
 A Registrar‟s Caveat may be entered in
respect of any land wherever such
appears to the Registrar to be necessary
and desirable-
(a) for the prevention of fraud and improper dealing;
or
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LAND LAW II
A + EXAM NOTES
(b) for protecting the interest of-
(i) the Federation or State Authority, or
(ii) any person who is in his opinion under the
disability of minority, mental disorder or
unsoundness of mind, or is shown to his
satisfaction to be absent from the Federation; or
(ba) for securing that the land will be available to
satisfy the whole or part of any secured or
unsecured debt due to the Federation or the State
Authority
Development & Commercial Bank v Land
Administrator, Wilayah Persekutuan
 Section 320(1)(ba) enlarge the interests of
govt to be protected to include unsecured
creditors.
 The only form of priority given is the
priority over other unsecured creditors
 The right of Registrar to maintain caveat
under Section 320(1)(ba) is subject to the
indefeasible interest of the chargee.
(c) by reason of some error appearing to him to
have been made in the register or issue document
of title to the land or any other instrument
(2) Knowledge of the Registrar that any land or
interest has been acquired by any person or body in
fiduciary capacity is not a ground for entering a
Registrar‟s Caveat
Registrar of Titles, Johor v Temenggong
Securities
 What was claimed was merely the
assessment of a contingent claim to a debt
and not some right or interest of lands to
be caveated
 HELD: Vs, having parted with their interest
in the land to As, were only bare trustees
and have no interest in land over which a
valid caveat can be lodged
Pendaftar Hakmilik Negeri Kedah v OCBC
 HELD: In order to enable the Registrar to
decide whether that land will be available

to satisfy the whole or part of the debt due
to the Federation, he must find out:
1. The market value of the land;
2. The amount of debt due on any
registered charge/charges; and
3. The value of debt owed to the govt…
before exercising the Registrar‟s
discretion under Section 320(1)(ba)
 Registrar had exceeded his powers under
Section 320(1)(ba) and acted ultra vires
 The act was invalid as he did not consider
several material matters before deciding
to enter the RC
DISCRETION OF REGISTRAR
Section 319(1)(a) cross refer Section 320 (1)
“necessary and desirable”
ARPL Palaniappa Chettiar v PL AR
Letchumanan Chettiar
 The discretion is with the Registrar as to
whether to enter the caveat or not
 The discretion must be exercised
judiciously and reasonably without the
element of mala fide
 The court may remove the caveat if it‟s
entry is misleading and is no longer
necessary or desirable
PROCEDURE
Section 321(1)
 A RC shall be in FORM 19F
 The entry shall be effected by the
endorsement under the hand and seal of
the Registrar of the words “Registrar
Caveat Entered” AND a statement of time
of entry
Section 321 (2)
 As soon as the entry, the Registrar shall
serve upon the proprietor of the land and
any person or body having registered
interest in the land a notification via FORM
19A
ABI, LILLY, NAD, JANNA
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A + EXAM NOTES
REMOVAL OF RC
Section 321(3)
 A RC shall continue to subsist until it is
cancelled by the Registrar;
a. On his own motion; or
b. On an application by the
proprietor of the land effected
c. Pursuant to any order of the court
made on an appeal under Section
418 against the decision to enter
the caveat or his refusal of any
application for its cancellation as
per in (b)
REMEDY IF AGGRIEVED BY ENTRY OF RC
RP
Section 321(3)(b)
 Application for removal
If (b) fails go to (c)
Section 321(3)(c)
 2nd limb: appeal under Section 418
against the refusal
CHARGEE OR ANY OTHER PERSON
AGGRIEVED BY THE ENTRY RC
Section 418
 Empowers parties aggrieved by decision
of the Registrar to appeal to court.
 Section 418 is the STARTING POINT for
actions resulting in a judgement (subject
matter of order to Registrar under Section
417)
 Registrar has duty to decide whether to
enter RC under Section 320(1)(a), (b), (ba)
or (c). the refusal is a decision within
Section 418 so appeal must be made
under Section 418.
 any person/body aggrieved by decision
under NLC of… Registrar, may appeal
to the court within the period of 3
months beginning with the date on

which it was communicated to him (the
entry of RC)
Public Bank v Pengarah Tanah dan Galian,
Johore Bahru
 The decision in this case which could be
appealed against by A, who is not the RP,
under Section 418 is VALID
 Because of the phrase “any person”
CHARGEE‟S REMEDY FOR REMOVAL OF RC
Section 417
 General authority of court is to direct
Registrar or LA to do necessary things to
GIVE EFFECT to judgement/order
given/made in any proceedings relating to
land
Tan Soo Bing v Tan Kooi Fook
 Court can only give direction to Registrar if
it is necessary to give effect to any
judgement/order of court.
 Court has no power to direct the Registrar
to enter the RC
Development & Commercial Bank v Land
Administrator, Wilayah Persekutuan
 A, chargee, has no alternative remedy
and is entitled to apply for a declaration
and a consequential order to set aside
caveat under Section 417
 No express provision in Section 321 to
enable a chargee on its own right to apply
for removal of RC
PRIVATE CAVEATS
 To protect title/interests of persons
seeking to deal with the land or disputing
title/interests in land pending registration
or settlement of dispute
Krishna Kumar
 A private caveat may be entered for the
protection of claims to title to or an
unregistered registrable interest in any
alienated land or undivided share therein
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LAND LAW II
A + EXAM NOTES
or a claim to a right to such title or
unregistered registrable interests therein
which interests must ultimately be capable
of registration
EFFECT
Section 322(2)
 This provision deals with the effect of a
private caveat that binds the land itself/ an
undivided share in the land
 It will prohibit any instrument of dealing,
any claim to the benefit of any tenancy
exempt from registration, or lien holder‟s
caveat as long as it continues to be in
force
 PROVIDED that where the claim is in
respect of a part of the land, the caveats
binds the WHOLE LAND and where the
claim is in respect of an undivided share
in the land, the caveat binds the WHOLE
OF THE UNDIVIDED SHARE OF THE
LAND
Eng Mee Yong & Ors v Letchumanan
 The effect of a caveat expressed to bind
the land itself is to prevent any registered
disposition of the land except with the
caveator's consent until the caveat is
removed.
 This is a very grave curtailment of the
rights of the proprietor, yet it can be
imposed at the instance of anyone who
makes a claim to title to the land, however
baseless that claim may turn out to be.
 The caveat under the Torrens system has
often been likened to a statutory injunction
of an interlocutory nature restraining the
caveatee from dealing with the land
pending the determination by the court of
the caveator's claim to title to the land, in
an ordinary action brought by the caveator
against the caveatee for that purpose.
 The issue of a caveat differs from the grant
of an interlocutory injunction in that it is
issued without the intervention of the court
and is wholly unsupported by any
evidence at all.

Woon Kim Poh
 The Registrar had registered a transfer of
land in favour of the A when R‟s caveat
was still in force.
 The court held that the Registrar is
statutorily obliged to refuse the
registration as to do so would violate
Section 322(2).
 Thus, the transfer was null and void
Section 322 (3)
 This provision deals with the effect of a
private caveat that binds a particular
interest ONLY
 It will prohibit the registration,
endorsement or entry on the register
document of title of;
a) Any instrument of dealing directly
affecting that interest
b) Where that interest is a lease or a
sub-lease-
 Any claim to the benefit
of any tenancy exempt
from registration granted
 Any lien holder‟s caveat
Section 322(4)
 A private caveat shall not prohibit the
registration, endorsement or entry of any
instrument, claim or lien holder‟s caveat
where the instrument was presented or
the application for endorsement or entry
received before the private caveat takes
effect
 NO RETROSPECTIVE EFFECT
Section 322(5)
 Does not prohibit registration of any
instrument/claim entered by
(a) the caveator;
(b) with written consent
Section 322 (5A)
 Even with the express consent of the
caveatee of the private caveat is NOT TO
EFFECT any registration, endorsement or
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
entry of any instrument on the register
document of title
Section 322 (6)
 If the registration of any instrument, or the
endorsement or entry of any claim or lien-
holder‟s caveat is prohibited by any private
caveat, the Registrar shall reject the
instrument or endorsement or entry
PROCEDURE
Section 323(2)
 Any such person who wishes to apply for
the entry of a private caveat can do so in
FORM 19B
 The application shall be attested in
accordance with Section 211
 State the nature of the claim on which the
application is based upon
 Express whether the caveat is to bind;
o The land itself or an undivided
share in the land; or (322(2))
o A particular interest only (322(3))
Goh Keng How v Raja Zainal Abidin bin Raja
Hussin & Anor
 Failure to do so may be fatal and the
caveat may be removed.
Section 323(3)
 Any application under this section shall be
accompanied by-
a) The prescribed fee
b) The grounds giving rise to the
claim, verified by a statutory
declaration by the applicant or his
lawyer
c) A description or a plan of the land
affected for a part of the land or
an undivided share of the land for
sufficient identification (if related)
Section 324(1)
 Registrar shall note on the application the
time of receipt at which it was received (IF
SENT BY POST : the time at which it was
withdrawn from its cover in the Registry or
Land Office)

 AS SOON AS MAY BE THEREAFTER
give effect to the entry of the caveat as
per subsection (2)
Section 324(2)
 The entry of any private caveats shall be
effected by the endorsement on the RDT
under the hand and seal of the Registrar
with the words “Private Caveat” together
with a statement specifying-
o Whether the caveat binds the
land itself or an undivided share
in the land or a particular interest
only
o The person or body on whose
application it was entered
o The time from which it is effective
(being the time receipt of the
application)
Section 324(3)
 As soon as may be after the entry of any
such caveat, the Registrar shall serve a
notification under FORM 19A to all
persons bound by the caveat
ROLE OF REGISTRARS IN PRIVATE CAVEAT
Section 324(1)
 …and without being concerned to
enquire into the validity of the claim on
which it is based
Nanyang Development
 HELD: The role of the Registrar in
entering a caveat is purely administrative.
Ong Chat Pang & Anor v Valiappa Chettiar
 So long as all the formalities in the NLC
are complied with, the Registrar has no
power to reject a caveat.
 He cannot require the caveator to
establish his claim.
 His duty goes no further than this, that if
the claim of the caveator or to an interest
in land is prima facie good, the caveat
should be registered.
ABI, LILLY, NAD, JANNA
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A + EXAM NOTES
Eng Mee Yong & Ors v Letchumanan
 Registrar is required to act in an
administrative capacity only
 He is not concerned with the validity of the
claim on which the caveat purports to be
based.
 If the document is in the correct form he
must enter the caveat on the register
Section 418
 Aggrieved person/body may appeal to the
court
WHO IS A PERSON WITH CAVEATABLE
INTEREST
Macon Works & Trading Sdn Bhd v Phan Hon
Chin
 The whole system of caveats is founded
on the principle that they exist for the
protection of the alleged as well as proved
interest and therefore not only is a
person who has a right to a registrable
interest in land who may enter a caveat
but also any person claiming title to it
or any registrable interest in any
alienated land or even claiming only a
right to such title or registrable interest
may enter a caveat.
Luggage Distributors (M) Sdn Bhd
 In essence the parameters of caveatibility
are circumscribed by the words “title” and
“registrable interest, it is only one who
makes a claim to either title or a
registrable interest in land or who claims a
right thereto who may enter a private
caveat
Section 322(1)(a)
 It may be entered by the Registrar on the
RDT at the instance of any of the persons
or bodies specified in Section 323
Section 323 (1)

 The person and bodies at whose instance
a private caveat may be entered are-
a) any person or body claiming title
to or any registrable interest in
any alienated land or undivided
share in any alienated land or any
right to such title or interest
Macon Engineers
 So long as there is in existence a valid
agreement for the sale of land, the
purchaser is entitled to lodge a caveat to
protect his rights under the contract and to
sue for specific performance of the
agreement
J Raju v Kwong Yik Bank
 There was conflict of evidence, which
appeared on the face of it not to be
inherently improbable.
 Court held that the issue is serious enough
to be tried.
 Hence, he had a caveatable interest.
Sing Lian Express v Soh Kim Tee
 An option for the purchase of A's land to
be exercised by R within a certain period
gave R a caveatable interest in the land. R
had shown his willingness to buy the land,
had offered to pay deposit and had even
submitted a draft agreement of sale for
execution by the vendor.
K Sockalingam Mudaliar
 The unregistered chargee still conferred
P an equitable interest for the court to
protect under the PC
Inter-Continental Mining
 An agreement for a sublease, though not
in statutory form, can give rise to a right in
equity sufficient to constitute a caveatable
interest.
Pok Kew Chai
 Although failure to get the chargee's
consent for the creation of the lease
would render the lease agreement void
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
for lack of registration, the agreement
nevertheless gave a right in equity
sufficient to constitute a caveatable
interest.
EM Buxton
 The caveator was seeking recovery of the
deposit and not specific performance of
the agreement.
 By doing so, it was clear that the caveator
was no longer interested in buying the
property.
 Thus it cannot be said that the caveator
had any interest in the land capable of
being registered.
 The caveator had only a claim in
personam against the RP for which a
caveat was not the proper remedy as a
means of protecting such claim.
 Such claim originated from the agreement
but was not capable of being registered
under the Torrens system
 NO CAVEATABLE INTEREST
Eu Finance Bhd v Siland Sdn Bhd
 A person relying on his status as RP
must nicely be a person already
possessing title in the land and thus
cannot be said to be 'claiming title to'.
 NO CAVEATABLE INTEREST
Affin Bank Bhd v Dato' Mohamed bin Embong
 A RP of land is not entitled to enter PC
in respect of his own land unless he is able
to establish a set of circumstances over
and above that of his status as RP.
 NO CAVEATABLE INTEREST
Tan Heng Poh
 The legatee of a share in the residue
where the administration of the
deceased's estate is incomplete and
before the residue has been ascertained
 NO CAVEATABLE INTEREST

Murugappa Chettiar Lashmanan v Lee Teck
Moon
 In the absence of an assertion that
there was a concluded contract for the
sale & purchase of the land, it could not
be said that R had a claim to the title to the
land.
 Unless a purchaser has an enforceable
contract for the sale of land, he can lay no
claim to the title to the land.
 Thus he has no interest capable of
protection by the entry of a caveat.
Anafartalar Caddessi
 A shareholder of a company has no
right to caveat land owned by the
company
Luggage Distributors v Tan Ho Teng
 Any claim to the benefit of a tenancy
exempt from registration & a statutory
lien cannot be protected by PC as they
are not capable of registration.
 Tenancy may be protected by
endorsement while lien may be protected
by entry of a lien-holder‟s caveat.
b) any person or body claiming to be
beneficially entitled under any
trust affecting any such land or
interest and
Rajinder Kaur v Jeswant Singh
 Failure to show the existence of a trust
affecting the land/interest therein and that
the claimant is beneficially entitled under it
is fatal to the entry of a caveat.
c) the guardian or next friend of any
minor claiming to be entitled
under paragraph (b)
DURATION
Section 328(1)
 6 years from the time from which it took
effect
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A + EXAM NOTES
 After which the PC will lapse and cease to
have any effect
Goh Keng How
 The statutory life of a caveat is 6 years,
and any decision of the court to extend the
life of the caveat should not do so for a
period greater than the statutory six years
Taipan Focus Sdn Bhd
 The court has no power to extend the PC
beyond its six years lifespan.
WITHDRAWAL OF PC
Section 325 (1)
 A private caveat may be withdrawn by the
person or body at whose instance
(caveator) it was entered at any time by a
notice in FORM 19G
 Accompanied by a prescribed fee
 Presented by the Registrar
Section 325 (2)
 Upon receiving any notice of withdrawal
the Registrar shall;
o Cancel the entry of the caveat on
the register document of title,
noting the reason for the
cancellation and date
o Give notice of the withdrawal to
persons whose land or an
undivided share in the land or
interest formerly bound by the
caveat
REMOVAL OF PC
1. Removal by Registrar
Section 326 (1)
 On application by any person/body whose
title/interest is bound by the caveat (the
caveatee)
 Only persons with registered interest may
apply
 The caveatee may at any time apply in
FORM 19H to the Registrar for its removal

and such application shall be
accompanied by a prescribed fee
Section 326(1A)
 Upon receiving any application for
removal, the Registrar shall then;
a) Serve upon the person or body at
whose instance the caveat
(caveator) was entered a notice
of intended removal through
FORM 19C and
b) Make an endorsement on the
RDT that the notice (FORM 19C)
has been served on the caveator
and the date of such service
Section 326(1B)
 The caveat lapses at the expiry of 2
months in the notice unless the Registrar
is served with an order of the court
extending the time specified in the notice
Section 326(2)
 The caveator served with FORM 19C may
apply to the court extending the period of 2
months
 The Registrar upon being duly served with
an order of the Court shall make an
endorsement on the RDT of the date of
service on him of the order and the period
of extension
Section 326(3)
 The Registrar shall remove any caveat
pursuant to this section by cancelling the
entry of the caveat on the RDT and noting
the reasons for the cancellation & date of
the cancellation
 It is the caveator‟s duty to show sufficient
grounds in fact and law for the caveat to
continue in force after the expiry of the two
months period
Eng Mee Yong v Letchumanan
 If a PC has lapsed upon expiry of the two
month period in Section 326(1B), the
court has no power to revive, renew or
extend it under Section 326(2).
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A + EXAM NOTES
2 .Removal By Court
Section 327 (1)
 Any person/body aggrieved by the PC may
apply to the court for an order for its
removal
 The court may make such order on the
application as it may think just
Eng Mee Yong v Letchumanan
 An order of removal is available not only to
the caveatee but also to any other person
aggrieved by the existence of the caveat.
 … when the applicant under this section is
someone other than the caveatee, he must
prove by satisfying the court that there
are sufficient grounds in fact and law
for treating him as a person claiming
such an interest in the land as would, if
it were established, make him
aggrieved by the existence of the
caveat.
Puncak Klasik Sdn Bhd
 A „person aggrieved‟ is a man who has
suffered a legal grievance, a man against
whom a decision has been pronounced
which has wrongfully deprived him of
something, or wrongfully refused him
something, or wrongfully affected his title
to something.
Wu Shu Chen v Raja Zainal Abidin Raja Hussain
 The word „aggrieved‟ must be given its
ordinary meaning.
 To be aggrieved means one is dissatisfied
with or adversely affected by a wrongful
act of someone.
 An aggrieved person is a person whose
legal right or interest is adversely affected
by the wrongful act or conduct of another
person or body.
 A purchaser who had paid full purchase
price to the vendor and who was therefore
the beneficial owner of the land is an
'aggrieved person' under s 327(1).

Malayan United Finance Bhd v Tay Lay Soon
 A registered chargee is treated as an
aggrieved party because he has an
indefeasible interest in the land which is
affected by the subsequent entry of the
caveat
Ismaga Bina Sdn Bhd v Govindasamy
 A lessee who was prevented from sub-
letting the land due to the existence of a
caveat by a third party was an aggrieved
party.
Section 327 (2)
 The Registrar, upon duly served with order
under Section 327, shall cancel the entry
of PC on RDT, and note the reasons for
the cancellation & date
CAVEATOR’S DUTY TO MAINTAIN THE
CAVEAT DURING REMOVAL OF PC
Kumpulan Sua Betong
 It is more efficacious to combine both
traditional approach in Macon Engineers
and Eng Mee Yong
o the caveator must show that he
has caveatable interest in the
land;
o the caveator must show that his
claim does raise a serious
question to be tried and that on
balance of convenience, the
caveat ought to remain
Syed Hussein bin Salim Alattas
 Inordinate delay on the part of the
caveator in entering a caveat may also
render the claim being deemed vexatious
and thus no serious question to be tried
Kwan Yoon Fatt & Sons
 The caveator brought proceedings 8
months after the entry of the caveat.
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
 If the caveator has not brought action
timeously, the balance of convenience
may not be in favour of status quo
Hock Seng Mining
 The same applies where the caveator‟s
claim may be met by alternative claim for
damages
COMPENSATION FOR WRONGFUL ENTRY OF
CAVEATS AND LIMITATION ON REPEATED
APPLICATIONS
Section 329(1)
 Any person/body who wrongfully, or
without reasonable cause, secures the
entry of a PC, or fails to withdraw a PC,
shall be liable to pay compensation to any
person/body who thereby suffers any
damage or loss
Quill Construction
 The plaintiff has to satisfy the two limbs in
Section 329(1):
o that the private caveat entered by
the defendants was entered
wrongfully or without reasonable
cause; and
o that the plaintiff had suffered
damages or losses as a result of
the lodgement of the private
caveat.
 Usually it is the RP of the land who may
institute an action under section 329(1)
NLC.
 However, any person or body taking any
interest from the registered proprietor
of a land and who has suffered loss by the
entry of, or refusal to withdraw, the private
caveat, is also entitled to initiate an action
for wrongful entry of a private caveat.
Mawar Biru
 The plaintiff in an action for wrongful entry
of caveat must prove actual loss to be
entitled to damages.

 Thus there must be real loss, not what
might have been the damage.
** Examples of loss :
o the caveat had prevented the sale
of the land or caused it to be sold
for a lesser price
Section 329 (2)
 Where the Court has ordered;
o Section 327 : The removal of PC
by the Court; or
o Section 326(3) : The removal of
PC by a Registrar,
o The court refused the application
under Section 326(2) : Extension
of two month period through
FORM 19C (notice of intended
removal of caveat by Registrar; or
The registrar shall not entertain any
application for the entry of a further caveat
in respect of the land or interest in question
if it is based on the like claim as that on
which the former one was based
2 SITUATIONS WHERE PROHIBITIONS UNDER
SECTION 329(2) IS INAPPLICABLE:
1. Where the caveat has lapsed at the expiry of
its lifespan (6 YEARS)
Thevathason v Kwong Joon
 There was nothing in NLC to prohibit the
entry of a fresh caveat 'on different
grounds from the former and after the
former caveat has ceased to exist'.
 There was nothing to prevent the entry of
a caveat on the same grounds 'if it is for
the bona fide purpose of protecting the
caveator's interest in respect of the same
land„
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LAND LAW II
A + EXAM NOTES
2. A caveator who has withdrawn the PC under
Section 325 may enter a fresh caveat
Hock Hin Bros
 A second caveat may be entered in
circumstances not caught under Section
329(2) NLC.
 However, entry of a fresh caveat may in
some circumstances amounts to abuse of
caveat and thus may be prohibited by the
court
Damodaran v Vasudeva
 A second caveat may not be entered in
respect of the same ground as that on
which the former caveat was based,
unless the second caveat is not a
'renewal, revival or continuance of the
former„.
LIEN-HOLDER’S CAVEAT
Section 330 (1)
 Any person or body with whom the IDT or
duplicate lease has been deposited as
security for a loan may apply to the
Registrar under this section for the entry of
a lien-holder‟s caveat in respect of the land
or lease in question
PROCEDURE
Section 330 (2)
 Any such application shall be in FORM
19D
 It must be duly attested in accordance with
Section 211
 Prescribed fee
 Together with the IDT or duplicate lease
Section 330 (3)
 The Registrar shall note on the time which
it was received
 If the application is by post, the time at
which it was withdrawn from its cover in
the Registry or as the case may be the
Land Office

 If there is no prohibition under a
Registrar‟s Caveat, private caveat, trust
caveat or prohibitory order, shall;
o Enter the caveat on the RDT to
the land or a lease; and
o Serve a notification in FORM 19A
on the proprietor of that land or
as the case may be the person or
body for the time being entitled to
the benefit of the lease in
question
Section 330 (4)
 The entry of a lien-holder‟s caveat on any
RDT shall be effected by the endorsement
thereon, under the hand and seal of the
Registrar with the words “ Caveat (Lien)”
together with a statement specifying;
o Whether the caveat binds the
land itself or a lease thereof only
o The person or body on whose
application it was entered
o The time from which it is effective
(being the time of receipt of the
application as noted in subsection
(3) earlier and
Section 330(5)
 Effect as specified in Section 322(2)-(5) &
(6)-(7)
. register document of title the reason of the
DETERMINATION OF LHC
Section 331(1)
 A LHC may be withdrawn at any time by a
written notice to the Registrar by the lien
holder
 The Registrar shall cancel the entry of the
caveat as soon as may be after receipt of
the notice
Section 331(2)
 Where the land/lease subject to LHC is
sold pursuant to an order of the court i.e
order for sale under Section 281(2):
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
(a) certificate of sale presented for registration by
the purchaser shall be deemed to have been
presented with the lien holder‟s consent
(b) upon registration of the certificate, the caveat
shall lapse and its entry shall be cancelled by the
Registrar
Section 331(3)
 Cancellation by the Registrar upon proof to
his satisfaction that all sums due under the
lien have been duly paid
Section 331(4)
 Where the Court is satisfied that any lien-
holder‟s caveat ought not to have been
entered or ought to have been withdrawn,
the court may order;
o The cancellation of the LHC by
the Registrar
o If the entry or failure to withdraw
caused damage or loss to any
person or body, the payment of
compensation by the caveator
ought to be done
Section 331 (5)
 On the cancelling of the entry of any
caveat, the Registrar shall note on the
cancellation and the date thereof
 Where any such entry is cancelled by
reason of withdrawal of the caveat, the
Registrar shall give notice of the
withdrawal to the person or body for the
time being entitled to the land or lease
formerly affected
TRUST CAVEAT
Section 332 (1)
 It may be entered by a Registrar in respect
of any land or interest which is expressed
to be held by any persons or bodies as
trustees

EFFECT OF A TRUST CAVEAT
Section 332 (2)
 It shall prohibit either absolutely or except
subject to conditions of the registration,
endorsement or entry of all or any of the
following :
o Any instrument of dealing, or
class or description of instrument
of dealing directly affecting the
trust property
o Any claim to the benefit of any
tenancy exempt from registration
granted directly
o Any lien-holder‟s caveat
 PROVIDED that no such caveat shall
prohibit the registration of any instrument/
endorsement/entry which was presented
prior to the time from which it takes effect
 NOT RETROSPECTIVE
Section 332 (3)
 Where the registration of any
instrument/endorsement/entry of any claim
is prohibited by the trust caveat, the
Registrar shall reject the
instrument/endorsement/entry
WHO MAY ENTER TRUST CAVEAT
Section 333(1)
 The Registrar may enter a trust caveat on
the application of
a) The trustees from the time being
of any land or interest or
b) The person or body by whom any
land or interest is transferred to
trustees or
c) The person or body by whom any
interest is created in favour of
trustees
 PROVIDED that the application for (b) and
(c) is presented with the instrument of
transferring or creating the land or interest
in question
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LAND LAW II
A + EXAM NOTES
PROCEDURE
Section 333(2)
 Any application for the entry of a trust
caveat shall be in FORM 19E
 It must be duly attested as in Section 211
 Accompanied by a prescribed fee
Section 333(3)
 The Registrar shall note on any such
application the time at which it was
received (SENT BY POST: the time when
it was withdrawn from its cover)
 As soon as may be thereafter, the
Registrar shall enter the caveat applied for
on the RDT
Section 333(4)
 The entry of a trust caveat on the RDT
shall be effected by the endorsement
thereon under the hand and seal of the
Registrar of the words “Caveat (Trust)”
together with a statement specifying:
o Whether the caveat is entered in
respect of the land itself or a
particular interest only
o The precise effect thereof
o The time from which it is effective
(being the time of receipt of the
application for its entry)
DETERMINATION OF A TRUST CAVEAT
Section 333 (5)
 A trust caveat shall continue in force until it
is cancelled by the Registrar on behalf of
the trustees of any other person who is
beneficially entitled under the trust
Section 333(6)
 On cancelling a trust caveat, the Registrar
shall endorse against the cancelled caveat
a note of the date of cancellation

INJUNCTION
PART III of the Specific Relief Act 1950
 Comes from the word “injunct” to stop/prevent
from doing something
MBF Holdings Berhad
 It is forbidding the initiation or the
continuance of some act or state of affairs
or commanding than an act be done
Kwan Yoon Fatt & Sons Sdn Bhd
 It is a discretionary remedy.
 Whether it is granted depends upon a
variety of factors.
 The preservation of the status quo or the
subject matter in dispute till the trial is
often the prime concern of the court.
 Injunctive procedures could be resorted to
where the entry, or further entry, of a
caveat is not possible
American Cynamid Co
 An injunction may be granted if the
conditions or principles governing the
grant of an injunction are satisfied
Heng Bak Teong & Anor v Ng Ah Seng
 The court when granting an injunction,
acts in personam… an injunction does
not accord statutory protection of the
purchaser's interest under the … Code
and therefore is not registrable or
endorsable on the title to the said
property
• Since injunction is not endorsed on the
title, it does not serve as a notice to others
• An injunction is not as effective as a
caveat , whereby a caveat is that as long
as it remains, will prevent the registration
of any dealings by the RP
Khoo Cheng Yee v Khoo Teng Seong & Ors
• An injunction could be set aside where
there was no disclosure of material facts in
the application for it.
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
Eng Mee Yong
 The application for a caveat differs from an
application for an interlocutory injunction
because in an application for a caveat, a
caveat can be entered on a piece of land
without any supporting evidence as the
Registrar acts in an administrative
capacity.
 In an application for an interlocutory
injunction, the applicant must show a
strong arguable case from the affidavit
deposed by the applicant and the judge
exercises full judicial powers in this
respect.
Foo Poh Sang
 A caveator when called upon to justify his
caveat, would have to satisfy the court that
he has a caveatable interest in the land in
question
 An injunction can restrain a person from
doing anything, not just concerning
land…a caveatable interest is, ofcourse, a
relevant but by no means sine qua non (an
essential condition) for an injunction to
issue.”
TYPES OF INJUNCTIONS
1) PROHIBITORY INJUNCTION;
Section 52 SRA
 TO STOP SOMEONE FROM DOING
SOMETHING/FROM DOING AN ACT
 PI is a negative action in nature
2) MANDATORY INJUNCTION;
Section 53 SRA
 TO COMPEL A PERSON TO PERFORM AN
ACT/UNDO AN ACT
 MI is positive in nature
Gibb v Malaysia Building Society
 The courts will take into account how the
interests of the parties may be best
protected, bearing in mind both of the
position of the parties subsequently at the
final hearing

 And also questions of hardship and
inconvenience in the meantime and will
take into account any other relevant
discretionary considerations which may
arise
3)PERPETUAL INJUNCTION
 Injunction which takes effect forever
 An injunction that will bind the parties until
injunction is lifted
o Perpetual + Prohibitory= forever
don‟t do something
o Perpetual + Mandatory= do first
then can only be lifted
o Can only be obtain in full trial
o Its like a full injunction delivered
by the court
4) INTERLOCUTORY/INTERIM/TEMPORARY
INJUNCTION
 A temporary injunction
 An injunction granted pending a trial of action
 Interlocutory injunction will last during the trial
is going on until conclusion of the trial
 Interlocutory injunction to maintain status quo
between parties pending full disposal of the
trial
5) EX PARTE INJUNCTION;
 A type of interlocutory injunction (temporary)
 An injunction which is granted when the plaintiff
OR applicant asking for the injunction has been
heard by the court
 The other party has not been heard yet
 Granted in only very URGENT MATTERS
PROHIBITORY ORDER
 Judgment Debt
o A court judgment obtained by the
judgment creditor to claim a debt
from the judgment debtor.
 Judgment Creditor
o The party who claims the
judgment debt.
 Judgment Debtor
o The party who owes money to the
judgment creditor.
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
 Execution Proceedings
o Proceedings to enforcement
judgment.
DEFINITION
Section 334
 Where the land or an interest in land held
by a judgement-debtor is to be sold in
execution proceedings, an order made
following the rules of court prohibiting the
judgement-debtor from effecting any
dealing therewith or from effecting such
dealing therewith as specified in the order
 „is to be sold in execution proceedings‟
refers to the judgment creditor obtaining a
writ of seizure and sale under Order 47
Rule 6, Rules of High Court 2012 that will
enable the court to sell the land to pay off
the judgment debt.
 Thus, the PO will restrain the judgment
debtor from disposing off the land to
frustrate the execution proceedings.
Order 47 Rule 6 (3)
• “No PO issued under this rule shall affect
any immoveable property/ registered
interest therein and no immoveable
property…shall be deemed to have been
seized until such PO shall have been
registered as provided by any written law
relating to such land.”
PROCEDURE
Section 335 (1)
 No prohibitory order shall take effect until it
has been entered by the Registrar on the
RDT
Section 335 (2)
 When a copy of the prohibitory order is
presented to the Registrar for registration it
shall be the duty of the Registrar to enter
the order by endorsing on the RDT under
the Registrar‟s hand and seal the words

“Prohibitory Order” together with the
statement specifying;
o Whether the order relates to the
land itself or merely a particular
interest therein
o The time at which the entry was
made
EFFECT OF PO
“Land Itself”
Section 336 (1)
 So long as the PO continues to be in force,
the PO shall prohibit the endorsement or
entry of:
o Any instrument of dealing
o Any claim to the benefit of any
tenancy exempt from registration
o Any lien-holder‟s caveat
“Particular Interest”
Section 336 (2)
 So long as the PO continues to be in force,
the PO shall prohibit the endorsement or
entry of:
o Any instrument of dealing other
than a certificate of sale directly
affecting the interest and
o Where that interest is a lease or a
sub lease;
 Any claim to the benefit
of any tenancy exempt
from registration
 Any lien-holder‟s caveat
Section 336 (3)
 A PO shall not prohibit the registration,
endorsement or entry of any instrument,
claim or lien-holder‟s caveat where the
instrument was presented or the
application for endorsement or entry
received, prior to the time from which the
order takes effect
 NO RETROSPECTIVE EFFECT
Section 336 (4)
 Where the registration of any instrument or
the endorsement or entry of any claim or
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
lien-holder‟s caveat is prohibited by any
prohibitory order, the Registrar shall reject
the instrument
LAPSE OF TIME
Section 338 (1)
 Every prohibitory order shall lapse at the
expiry of 6 months from the date on which
it was made or at the end of such other
period as may be specified by the rules of
court
EXTENSION
Section 338 (2)
 An order extending a prohibitory order
shall not have effect unless a copy of the
order is presented for registration before
the time at which the prohibitory order time
period has lapsed (6 months)
Section 338 (3)
 A note of the extension of any prohibitory
order shall be endorsed by the Registrar
on the RDT
 The Registrar may of his own motion, and
shall on the application of any interested
person cancel the entry on the RDT of any
prohibitory order which has lapsed
Airmartech Corp. M’sia
 There is no rigid formulation as to what
constitutes „special circumstances‟ in an
application to extend a PO.
 Depends on circumstances of each
particular case.
 In this case, court refused to extend the
PO as it found no special circumstances.
WITHDRAWAL OF PO
Section 339 (1)
 Where a PO has been withdrawn at any
time by order of a court, the Registrar shall
on receiving a copy of the order of
withdrawal, cancel the entry on the RDT

and note the reason of the cancellation
and the date thereof
CESSATION OF PO
Section 339 (2)
 A prohibitory order shall cease to have
effect and the entry thereof be cancelled
accordingly on the registration of:
o Any transfer executed by an
officer of a court as per Section
337 (1)
o Any certificate of sale given
(OFS)
Section 339 (3)
 The Registrar shall notify the Court of any
cancellation effected on the registration of
any certificate of sale
 Any residual sums to which will be
disposed off in accordance with the rules
of court
Karuppiah Chettiar v Subramaniam
 Judgement creditor only take whatever
interest the judgement debtor has on the
land and not against any interest in land
which the judgement debtor had already
parted with
Chua Hee Hung
 When the court orders the sale of a
judgment debtor‟s property, it cannot sell
more than what the judgment debtor
himself is entitled to sell
Meriam bt Yaacob
 A judgment creditor can only take
whatever interest the judgment debtor has
in the land and not against any interest in
the land in respect of which the right of the
judgment debtor has since ceased to exist
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
COMPETING PRIORITIES
RULES OF CP IN EQUITIES
A. First In Time
Qui Prior Est Tempore Potiorest Jure
 He who is earlier in time is stronger in law
Rice v Rice
 Priority in time is the ground of preference
last resorted to when the merits between
the equities are equal
 As between persons only having equitable
interests, if their equities are in all other
respects equal, priority of time gives the
better equity
B. An Act of Omission
Butler v Fairclough
 But the claimant who is first in time may
lose his priority by any act or omission
which had or might have had the effect
of including a claimant later in time to
act to his prejudice
Jasalam
 Although being the first in time in acquiring
the equitable ownership of the said
portion, the caveator has lost
his priority by his omission to register
his title to the said portion or to enter a
caveat within reasonable time.
 This conduct of the caveator certainly had
caused prejudice to the purchaser
C. No Knowledge Of Subsequent Equity
Abigail v Lapin
 The interest of the possessor of the prior
equity of the land cannot be postponed to
the possessor of a subsequent equity
unless the proven act or omission on his
part has contributed to a belief on the
part of the holder of the subsequent
equity, at the time he acquired it, that
the prior equity was not in existence

Ang Peng Chin
 The basic rule is that the rights and
interests primarily rank in order of creation
 An important qualification to the basic rule
is the doctrine of purchaser without notice
 A subsequent purchaser must have no
notice of the earlier equitable interest
 Subsequent purchaser is affected by
notice of an equity when there is actual
notice, constructive notice or implied
notice
REGISTERED INTEREST V UNREGISTERED
INTEREST
Bank of Tokyo Ltd
 The learned judge held that, in equity, the
basic rule is that rights and interests
primarily rank in order of creation
 He who is earlier in time is stronger in law
 This will ONLY apply where the equities
are equal and neither claimant has the
legal estate (registered)
In most instances, THE REGISTERED INTEREST
WILL HAVE PRIORITY unless :
1. The legal title holder has notice (actual, imputed
or constructive) of the prior unregistered interest
Applied in Abigail v Lapin & Ang Peng Chin
2. Not done in good faith i.e the registered
purchaser was not a bona fide purchaser
Ong Chat Pang v Valiappa Chettiar
 The first and second defendant agreed in
writing to sell their land to P
 P paid the agreed purchase price and he
lodged a caveat against the land
 On the same day, the third and fourth
defendant approached him and offered to
pay $10,000 to give up his rights under the
agreement and to withdraw his caveat.
 He refused
 The P then called the land office and
discovered that his caveat had been
rejected and that the land had been
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
registered in the names of the third and
fourth defendant
 P brought an action for specific
performance of the sale agreement
 The High Court gave judgement for
specific performance of the agreement
 The third and fourth defendants appealed
 The learned judge in the appellate court
held that the third and fourth defendants
failed to prove that they were bona fide
purchasers for value without notice
 It was proven that when P presented his
caveat, they knew that P had agreed with
the first and second defendants to buy the
land and the P subsequently filed for a
caveat
CONSIDERATIONS IN DETERMINING PRIORITY
IN UNREGISTERED INTEREST V REGISTERED
INTEREST
1. Possession of IDT
Vallipuram Sivaguru v Palaniappa Chetty
 It was held that a person who has taken
possession of the land or IDT is said to
have given constructive notice to the world
at large of the prior interest in the and
even though the caveat was entered
Standard Chartered Bank v Yap Sing Yoke
 Due to the clerk‟s negligence, the
documents were brought to the solicitors‟
attention only 7 months later (Feb 1986)
and the solicitors then tried to register the
charge.
 However, D2 had caveated the land in
June 1985 for a judgment debt obtained
against D1.
 D2 then entered prohibitory orders in
November 1985, September 1986, &
March 1987.
 P caveated in March 1987.
 The court held that Ps‟ caveat has priority
over D2‟s caveat of June 1985.
 Even without entering a caveat, lien holder
has the priority to caveat at any time
without loss of priority as he was in
custody the IDT
 ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES

 Even if he did not enter a caveat, he still  R was RIGHT in thinking that the
has a better claim than a person without a possession of the document of title, the
document in his hand. building of the house, and the
execution of the transfer were sufficient
2. Occupation of Land
protection against the subsequent
Haroon v Nik Mah purchaser.

 The court will also consider the factor of

whoever is in the possession of the land
 Even when the unregistered purchaser
didn‟t register nor entered caveat or has
possession of the IDT, the fact that he is in
possession over the land can be a sign
that he has the title over it
 H was never in possession of the land
while NM had been in possession of the
land at all material times.
 H was guilty of gross negligence by not
imposing a caveat, not having in
possession the IDT, and not taking
physical possession of the land.
 Thus his priority should be postponed to
the equity of the latter purchaser who had
taken any of those steps.
 NOTE: apart from lodging caveat, taking
physical possession of land may serve as
notice
 Caveat is merely one of the steps to be
taken by a purchaser to protect his rights
 Failure to caveat does not necessarily
defeat priority
ROLE OF CAVEATS
Butler v Fairclough

 Operates as notice to the whole world that

the registered proprietor‟s title is subject to
the equitable interest alleged in the caveat
Abigail v Lapin

 Dixon J: caveat acts as an injunction to the

Registrar to prevent registration of
dealings until notice has been given to the
caveator
Syed Ibrahim

 The court held that the removal of the

caveat was justified especially as A had
known about R's prior interest.

POWERS OF THE COURT
General Authority of the Court
Section 417 NLC
 The Court or a Judge may order the
Registrar or Land Administrator to do all
such things as may be necessary to give
effect to any judgement and it shall be the
duty of the Registrar or Land Administrator
to comply with the order forthwith
 Pursuant to any order made by virtue of
this section, the Registrar or any Land
Administrator ;
o Cancel any instrument relating to
the land, or any memorial or other
entry on any such instrument; or
o Make any other amendment of or
addition to any such instrument
Che Dah & Anor v Commissioner of Land Titles
 The general powers of the court or a judge
are contained in Section 417 which are
exercisable whether on appeal or in an
original application
Tan Soo Bing & Ors v Tan Kooi Fook
 Section 417 limits the powers of the court
to give directions to the Registrar or Land
Administrator to cases where it is
necessary to give effect to a final
judgement
Sungai Biak Tin Mines Ltd v Saw Choo Theng &
Anor
 The court has the power under Section
417 of the NLC to order a rectification of
the register to give effect to any judgement
or order even where the judgement or
order has been perfected
Hassan Bin Seman v Jusoh Bin Awang
 Indefeasibility and correction of errors are
two independent provision existing side by
side.
ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES
 Correction of the errors effected pursuant
to Section 417 of the NLC can never be a
violation of the indefeasibility principle
Appeals to the Court
Section 418 NLC
 Any person aggrieved by any decision
under this Act of the State Director, the
Registrar or any Land Administrator may
at any time within the period of three
months beginning with the date on which it
was communicated to him, appeal
therefrom to the Court
Land Executive Committee of Federal Territory
v Harper Gilfillan Bhd
 The right of appeal under Section 418 and
the procedure of the enforcement of such
right are mutually exclusive
Development & Commercial Bank v Land
Administrator , Wilayah Persekutuan
 Although the power to grant a declaratory
judgement must be exercised with great
care and jealousy, the court may in
circumstances where no right and remedy
are provided grant a declaratory relief
United Malayan Banking Corp Bhd v Pemungut
Hasil Tanah, Kota Tinggi
 The phrase “.. court shall make such
order.. as it considers just” in section 418
(2) of the NLC cannot be taken to mean
that in every appeal the court has
jurisdiction to grant equitable relief in
respect of the matter appealed against.
 This would necessitate an examination of
the relevant substantive law to determine
whether or not it admits of the equitable
jurisdiction sought for
Pengarah Tanah dan Galian, Wilayah
Persekutuan v Sri Lempah Enterprise
 An appeal under Section 418 of the NLC
must be filed within three months of a
decision but service of the originating
motion need not be effected within the said
three months but follow the normal course
 ABI, LILLY, NAD, JANNA
LAND LAW II
A + EXAM NOTES

for service with regard to originating

motions