land law i historical background of the malaysian land system

7/22/2019 Land Law I HISTORICAL BACKGROUND OF THE MALAYSIAN LAND SYSTEM

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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.

land law i historical background of the malaysian land system

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