Post on 10-Feb-2018
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Historical
Background of landlaw in Malaysia
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1. The Straits Settlements
Penang & Malacca
2. The Federated Malay States
Perak, Selangor, Negeri Sembilan, Pahang
3. The Unfederated Malay States
Kedah, Johor, Perlis, Kelantan, Terengganu
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Straits Settlements: Penang
Ong Cheng Neo v. Yeap Cheah Neoh(1872) 1 Ky. 255,Privy Council:
the island was wholly uninhabited when the English arrived. Itwas really immaterial to consider whether the island should beregarded as a ceded or newly settled territory for there is no traceof any laws having been established there before it was acquired bythe East India Company.
English land law was introduced into Penang by the FirstCharter of Justice 1807.
Wholly subjected to English land law as there was noform of local tenure.
Malay customary land tenure of the Kedah should havebeen regarded as the lex loci of the island.
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Straits Settlements: Malacca
British acquired Malacca in 1824 by virtue of the Anglo-Dutch Treaty
At the time, Malacca has its own land tenure system, consisting ofIslamic law and Malay Custom.
Sahrip v. Mitchell & Anor
It is well-known by the old Malay law or custom of Malacca, while the
Sovereign was the owner of the soil, every man had nevertheless the rightto clear and occupy all forest and waste land subject to the payment to theSovereign of one-tenth of the produce of the land so taken.
Then the land law that prevailed was the Malay customary tenurewith the system of Dutch Grants implemented in the urban areas.
At the turn of the 19th century, the English Deeds System wasintroduced.
The Malay Customary Tenure was abolished.
In 1891, a law was passed by the English administrators - all landshall be deemed to be vestedin the Crownfollowing the EnglishLaw of property.
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Characteristics of Malay
customary land tenure Proprietary rights: Nature of ownership is not one of absolute
ownership but is based on proprietory rights, where theright of ownership extends not to the soil but to the usufructor the right to utilise the soil.
Method of acquiring land: by opening up and cultivatingvirgin jungle land or waste land.
Rights of the Ruler:
The Sultan had the discretion to grant the right of possession(not ownership) of the land to his subjects. Such rights ofpossession included the right to succession and the right to deal
in the land either by way of sale, transfer, pledge, etc.
To receiveone-tenth of the proceeds of the land as tax.
To forfeit the land if the land was neglectedor abandonedforany substantial period of time without any reasonable cause.The owner would lose all his rights therein.
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Pulang Belanja (Return of expenses): If the owner
wishes to sell his land, the price which he could expect
from the purchaser would be the sum total of his labour
and expenses incurred in cultivating and developing the
land.
Jual Janji: (land is held as security for a loan). Involves
the sale of a land with the condition that the buyer shall
retransfer the land to the borrower upon the latter
paying back an identical price before a stipulated date. Ifthe buyer fails to do so, the sale agreement becomes
absolute (jual putus).
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Federated Malay States
Perak, Selangor, Negeri Sembilan, Pahang.
Independent states under sovereign Muslim rulers.
The Pahang Consolidated Company Ltd v The State of Pahang(1933) MLJ 247
The Privy Could held that the Sultan of Pahang is an absolute ruler inwhom resides all legislative and executive power, subject only to thelimitations, which the Sultan has from time to time imposed uponhimself in the circumstances
In the FMS, there are no Charters of Justice and the British CommonLaw was not introduced until the passing of the Civil Law Enactment
No.3 of 1937. In Duff Development Company v. Kelantan Government, a letter
received from the Under Secretary of State for the Colonies withcopies of the relevant treaties stated that Kelantan was anindependent state.
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Shaik Abdul Latif & Ors v Shaik Elias Bux [1915] 1 FMSLR 204,221
The court had to consider what law to apply in relation to a willdrawn up by a Muslim who lived and died in Selangor.
On each occasion when the introduction of British influence upon the
administration of the States has been formally recognised by their Rulersthe only law which existed and was accepted by the Malays and otherMohammedans as applicable to questions of inheritance and testamentarydispositions was that of Mohammad modified in a few districts by localcustom.
On appeal, it was further clarified:The British treaties with the Ruler of these States merely provided that theadvice of the British administrators should be followed and in accordancewith such advice, Courts have been established by Enactment, BritishJudges appointed, and a British administration established
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With the coming of the British administrators in the Federated
Malay States, Malay customary tenure soon gave way to the
Torrens System.
The first Torrens legislation in the Malay States was the
Selangor Registration of Titles Regulations of 1891
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Unfederated Malay States
Kedah, Johor, Perlis, Kelantan, Terengganu.
Came later in time.
Land tenure was also the Malay customary tenure influenced
in some instances by Thai law (particularly in Kedah & Perlis)
British gained possession of these states in 1909 pursuant to
the Anglo-Siamese Treaty.
Late 19thand early 20thcentury, the Torrens System was
introduced.
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THE TORRENS SYSTEM
Introduced during the British colonial rule by WE Maxwell
after he came back from Australia to observe the land
tenure there. It was observed that the Torrens System
suited the Malaysian land tenure system.
The Torrens System was first introduced into the FMS.
There was already a system of land law based on Malay
custom and Islamic law then.
Tengku Jaafar & Anor v. The State of Pahang (1987) 2MLJ
74:the land law in Pahang before the introduction of theTorrens System was the Islamic law of the Shafii school.
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How the Torrens System was
introducedGeneral Land Regulations
Perak, 1879
Selangor, 1882
Negeri Sembilan, 1887
Pahang, 1888
Perak, Selangor, Negeri Sembilan & Pahang Land Enactments1897
Registration of Titles Regulations/Enactments
Selangor, 1891
Perak and Pahang, 1897
Negeri Sembilan, 1998
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FMS Enactments of 1911
All were repealedwith the formation of a central legislature.
New uniformed law in 1911:
Federated Malay States Land Enactment 1911
Registration of Titles Enactment 1911
Divided land into two categories:
1. The Land Enactment dealt with the registration of country
lands less than 100 acres in area on a Mukim land
2. The Registration of Titles Enactment dealt with registry lands
(town lands and country land exceeding 100 acres andestates)
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Incorporated basic Torrens principles:
All lands vest in the Ruler , who has the power to alienate land to hissubjects either in perpetuity of for a fixed term of up to 999 years;
All dealings in land must be in the prescribed form and must be dulyregistered with the relevent authorities. Land title should not be
conveyed by an instrument in writing executed by the landholderbut by the registration of that instrument.
Failure to do so so would render the dealings null and voidcase HjAbdul Rahman & anor. V. Mohamed Hassan.
Owners of land are given indefeasibility
of title; The traditional method of acquisition of virgin land or waste land
was abolishedSidek & 461 Ors v. Govt of Perak;
Forms of dealings were recognised;
Two forms of caveats were recognised;
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Continued in force until repealed by the Federated Malay
States Land Code 1926-amended in 1928.
The 1928 Land Code was repealed and replaced by the
National Land Code 1965.
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1928 FMS Land Code
A consolidation and improvement of the pre-existing laws).
Changes introduced:-
a. The principle of indefeasibility of title was more clearly
defined,
b. Adverse possession against individual owners of land is no
longer possible
c. Customary tenure under Adat perpatih is preserved;
d. The strictness regarding compliance with statutory form andregistration as indicated in Hj Abdul Rahmanscase.
e. Specific types of cultivation were enforced.
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The situation then
One uniformed Land Code for FMS
The FMS has a uniformed land law with consistent land
administration procedures.
Five separate State legislation in each of the UFMS
Johor Land Enactment
Perlis Land Enactment
Kedah Land Enactment
Kelantan Land Enactment
Terengganu Land Enactment The English Deeds system still prevailing in the Straits
Settlements of Penang and Malacca.
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Towards a National Land Code
The Reid Constitutional Commission in its report suggested
that the 1928 FMS Land Code to be the model used by the
legal draftsmen to work on a new National Land Code in order
to achieve uniformity for all the nine Malay states and the two
Strait Settlements. The new 1965 National Land Code came into force on 1st
January 1966.