1. The Torrens system is a land system originated in Australia.

It is a system of
title by registration. The system generally contains 3 main principles; the mirror
principle, the curtain principle and the insurance principle. However, the
insurance principle is not practiced in the adapted Torrens system in Malaysia
Simply put, the mirror principle refers to the idea that the due registration of a
land title must reflect all the important and significant details that a purchaser
must know before buying the land. The curtain principle provides that there is no
need to go behind the issue document of title, as long as the registration reflects
the validity of the title. These two principles are implemented in the NLC itself.
There are 4 provisions in the NLC that highlights the Torrens system.
The first one is s.89 which provides the conclusiveness of the register documents
of title. According to this section, whoever names are on the title to the land, that
will be the conclusive evidence that he/she is the proprietor of the land.
The 2nd one is s.92 which provides for the indefeasibility of final title as well as
the rights of dealing with the land. S.92 stated that the alienation of State land to
anyone under the final title shall confer to that person an indefeasible title as
provided in Part Twenty of the NLC. It also laid down the exercisable rights of
someone who owns a land under a final title that has been alienated from the
State.
The 3rd one is s.295(2) of the NLC. This section stated that the Presentation Book,
maintained by the Registrar, shall constitute conclusive evidence for every
instrument registered in the book.
The last provision is s. 340(1), where it provides that the title/interest for anyone
who is registered as a proprietor of any land, or in whose name any lease,
charge/easement is registered, shall be indefeasible, subject to the provisions
provided in subsection 2.
Once a title/interest is registered, subject to s.340(2), it shall become
indefeasible and the next buyer need only to look at the registered title to reflect
who is the proprietor of the land. This is essentially the mirror principle.
In addition, once an instrument is registered and become indefeasible, the
subsequent purchaser has no need to go behind the registration of the title as
the registration itself is conclusive evidence that the person whose name is on
the title is the one with a valid title. This is the curtain principle.
Therefore, from these 4 provisions, we can say that the NLC is clearly based on
the Torrens system.

2. S.6 of the CLA expressly prohibits the application of English land law and the
rules of equity in Malaysia. However, there are 2 different judicial approaches to
the scope and the effect of s.6 in several decided cases.
The first approach is that s.6 only prohibits English common law. In the case of
DEVI V FRANCIS, the appellant owned a house which was erected on the
respondents land. The respondent contended that the tenancy which the house
was erected is terminable by a one months notice. The respondents claim is
based on a clause stated in the SnP agreement between appellant and
respondents mother which states that if the owner decides to sell the land, they
must be given the option to purchase it first. There was a further provision that
stated this agreement will bind their heirs, executors and administrator.
The clause in the agreement would appear to give the defendant a clear
expectation of a prior offer to purchase the land before the owner would dispose
of it. If she had this expectation, to ditch her out of the land without at least this
contractual offer to her to buy the land on which her house stood would deny her
this expectation. What the defendant had bought was a house with a tenancy on
the ground and a clear expectation of a right to purchase the land.
The defendant in this case, which is now the appellant, relied on the equitable
doctrine of an irrevocable license. An objection was made by stating that s.6 of
the CLOrdinance excludes the application of the law of England relating to tenure
or conveyance or assurance of or succession to any immovable property or any
estate, right or interest therein. The court in this matter answered that the land
law of England and equity are two different matters. It was expressly provided in
s. 3(1) of the same ordinance that the court shall apply the common law of
England and the rules of equity and in s.3(2) that in the event of conflict, the
rules of equity shall prevail.
It was decided in this case that the doctrine of irrevocable license indeed applies.
The court in another case of WOO YOK WAN V LOO PEK CHEE is of the opinion
that s.6 of the CLA does not exclude the English equitable principle that a lease
which is void at law for not having complied with legal formalities can be treated
as an agreement for a lease which may be enforced in equity. S.6 stated that
nothing in Part II of the Act (which provides for the application of the common
law and the rules of equity in Malaysia) "shall be taken to introduce into Malaysia
or any of the States comprised therein any part of the law of England relating to
the tenure or conveyance or assurance of or succession to any immovable
property or any estate, right or interest therein". The court interpreted that what
is precluded by section 6 is the English law relating to tenure or conveyance or
assurance of or succession to any immovable property or any estate, right or
interest therein but the section does not in any way preclude the application of
the English principles relating to equitable interests in land.

The second approach is that s.6 prohibits both common law and English rules of
equity. In the case of DATIN SITI HAJAR V MURUGASU, the defendant had built an
approach road over the plaintiff's land claiming that he had a right of way
thereon. The plaintiff sued the defendant for trespass and damages. One of the
matters that needed to be discussed in this case was whether the common law
of England still applied at the time the action was initiated, i.e. 10 th Nov 1964.
The CLOrdinance came into operation on 7th April 1956. The CLOrdinance, which
replaced the CLEnactment, introduced s.6. S.3(1) of the CLOrdinance provided
two qualifications for the English law to be successfully adopted and they are 1.
it only applies if there is no other statutory provision in the Federation; and 2. it
may be applied only so far as the circumstances of the States comprised in the
Federation and their respective inhabitants permit and subject to such
qualifications as local circumstances render necessary. The court is of the opinion
that although it is clear that the Ordinance allows for reception of the English
common law, rules of equity and statutes, subject to the conditions already
mentioned, the effect of s.6 seems to oust the application of the common law
and rules of equity relating to land tenure, transfer or transmission of immovable
property, or any estate, right or interest therein.
However, in one of a landmark decision case of UMBC V PHT KOTA TINGGI, it was
decided that although s.6 of the CLA prohibits the application of English land law
and the rules in equity in Malaysia, English equitable principles of general
application, to the extent that they are not inconsistent with the general
framework of the Torrens system as embodied in the NLC, are applicable in land
matters in Malaysia.
In this case, the State Authority of Johor alienated land to the second appellant
for a term of 99 years. They granted a number of charges over the land in favour
of the first appellant for the purpose of securing the repayment of loans. The
appellants defaulted in payment of the loans and the Collector of Land Revenue
served a notice of demand to both appellants to pay the rent. Due to a
misunderstanding, none of the appellants paid either rent or penalties within that
period. The Collector of Land Revenue then made an order declaring the land to
be forfeited to the State Authority.
The issue in this case was whether equity principle which has to do with relief
against forfeiture can be brought into this case under the NLC. The court held
that that the word tenure in s.6 of CLA should be interpreted using ordinary and
natural meaning which tenure will include all laws regarding land and this will
include the grant of relief against forfeiture. Thus, equity is inapplicable here. It
was stated by the court that the National Land Code is a complete and
comprehensive code of law governing the tenure of land in Malaysia and the
incidents of it, as well as other important matters affecting land there, and there
is no room for the importation of any rules of English law in that field except in so
far as the Code itself may expressly provide for this.
Hence, though s.6 of the CLA prohibits the application of English land law and
the rules in equity in Malaysia, as long as they are not inconsistent with the

general framework of the Torrens system as embodied in the NLC, the English
equitable principles of general application are applicable in land matters in
Malaysia.