Professional Documents
Culture Documents
2015/2016
S 5 NLC Dealing - any transaction with respect to alienated land effected under the
powers conferred by Division IV, and any like transaction effected under the
provisions of any previous land law, but does not include any caveat or prohibitory
order
S 205 NLC Dealings capable of being effected, and persons capable of taking
thereunder, specified in Parts 14-17 (14 - Transfer, 15 - Leases and Tenancies, 16 Charges and Liens, 17 - Easements, and no others.
No title or interest in land will be created until the instruments affecting these dealings
have been registered.
Dealings not capable of registration:
1. Tenancies exempt from registration (TER)
2. Liens
S 205(2) NLC
Those under S 43, State land is capable of being alienated
S 43 NLC
a) Natural persons other than minors
b) Corporations having power under their constitutions to hold land
c) Sovereigns, governments, organisations and other person authorised to hold land
under the provisions of the Diplomatic and Consular Privileges Ordinance, 1957
d) Bodies expressly empowered to hold land under any other written law
1.3 REQUIREMENTS
b) No instrument effecting any such dealing shall operate to transfer the title to any
alienated and or, as the case may be, to create transfer or otherwise affect any
interest therein, until it has been registered under Part 18
2) The provisions of sub-section (1) shall not apply to
a) The creation of, or other dealings affecting, tenancies exempt from registration
(which may be effected, instead, as mentioned in subsection (2) of S 213); or
b) The creation of liens (which may be created, instead, ad mentioned in S 281)
Instrument- fit for registration?
Before dealings can be accepted for registration, there are certain procedures and
formalities to be complied with. The relevant prescribed forms must be duly executed,
attested and stamped after which they are presented together with the relevant amount of
fees payable and necessary documents for registration.
If instrument is unfit?
S 298(2) If unfit Registrar shall suspend registration for such period, not
exceeding 14 days, as he may consider necessary to rectify error or defect or, as the
case may be, the document(s) in question to be produced, and, at the expiry of the
period, shall register/reject the instrument as appropriate.
If instrument is fit for registration & the effective date of registration of instrument
S 304 - How instruments to be registered, and time from which registration effective
CASES:
BANK PEMBANGUNAN DAN INFRASTRUKTUR MALAYSIA BHD
(FORMERLY KNOWN AS BANK PEMBANGUNAN MALAYSIA BHD) V OMAR
BIN HJ AHMAD [2011] 1 MLJ 810 CA
Facts: APP (bank) entered into loan agmt with the borrower. Loan was to have been
secured, inter alia, by a 3rd party charge over certain Malay reserve land (the land)
owned by the DF. Charge was to be executed by the DF (as chargor) and attested by
an adv & sol instead of by the land administrator. Subsequent to the execution and
attestation, the bank disbursed the loan to the borrower. H/E bank had no knowledge
that DF had been adjudicated to a bankrupt. DF thereafter lodged a caveat on the land.
The 3rd party charge on the land could not be registered at the land office because the
charge was attested by an adv & sol. Bank thus applied to HC for orders, inter alia,
declaring the existence of equitable charge over the land and directing the DF to
withdraw the caveat and to execute a valid registrable 3 rd party charge over the land
before the land administrator. HC h/e dismissed the banks application and bank thus
appealed to the COA. Issue for the COA was whether the 3rd party charge over Malay
reserve land attested by an adv & sol instead of by a land administrator, could create a
3rd party equitable charge over the same land for subsequent registration as a 3 rd party
legal charge, upon due and proper attestation by the land administrator.
Held: Appeal allowed.
1) Charge executed by the DF (chargor) and attested by adv & sol instead of by the
land administrator was clearly not in accordance w S 211 read w 5 th Schedule of
NLC. Thus - not registrable as a legal charge (important part of decision)
1.4 REGISTRATION
CASES:
MOHAMMAD BIN BUYONG V PEMUNGUT HASIL TANAH, GOMBAK & ORS
[1982] 2 MLJ 53
An appeal under S 418 of NLC against decision of Collector of Land Revenue,
Gombak. Decision involved two transactions over the undivided shares of the second
resp in a land in the Mukim of Setapak.
Important parts: S 304(2) Registrar shall register any instrument by making a
memorial on the RDT under his hand and seal.
The making of a prescribed memorial of the dealing in the RDT under the hand and
seal of the registering authority. Therefore, if any such memorial is made without the
registering authority signing and sealing it or only under his hand and seal without the
offer, there would be no registration.
In this case, an entry of a transfer on the RDT was not signed. It constituted a bare
entry. Since it was not signed by the Collector, there was no registration effected.
1.5 DUTIES OF REGISTRAR IN EFFECTING REGISTRATION
S 300(1) Registrar shall not register an instrument until every instrument presented
prior thereto, and affecting the same land or interest, has been registered, rejected or
withdrawn
In other words, the Registrar shall not enter a second registration until he had settled
the earlier one.
Every instrument of dealing must be registered in the order of time in which it is
presented for registration.
He may, subject to (2) and (3), make such correction on the doc or interest
in question as may be appropriate in the circumstances of the case.
Important part: Main disputed issue- any doc of title has been registered in
the wrong name in simple language it points to a mistake made by the
Land Registry. Can the subsection be construed to extend to mistake made by
the parties?
automatically follows that they are liable to be set aside at the instance of the RP.
(Arifin Zakaria CJM).
I totally agree with the learned CJMs view that the error committed by the FC
in Adorna Properties Sdn Bhd v Boonsom Boonyanit was to read the proviso to
sub-s (3) as being a proviso to sub-s (2) as well. The error is very obvious because
the proviso expressly refers to this sub-section which must in the context of that
sub-section be read as proviso to sub-section (3) only.
I am legally obligated to restate the law since the error committed in Adorna
Properties is so obvious and blatant. It is quite a well known fact that some
unscrupulous people have been taking advantage of this error by falsely
transferring titles to themselves. I hope with this decision, the Land Authorities
will be extra cautious when registering transfers.
1.8 EFFECT OF NON-REGISTRATION
S 206(3) - Nothing in sub-section (1) shall affect the contractual operation of any
transaction relating to alienated land or any interest therein.