This is a landmark case which emphasize the importance of the registration of a land title.
Facts of the Case
The appellant (Teh Bee) was the registered proprietor of a piece of land in Seremban. The respondent (K Maruthamuthu) had occupied a hut on the appellant’s land. Appellant had made several verbal requests and demands on the respondent to quit the land but he had failed to do so. Therefore, on 5 January 1973, the appellant issued a notice to quit her land to the respondent but the respondent failed to comply. Thus, she brought an action against the respondent to claim vacant possession of the land, damages and costs of the action.
The respondent denied that the appellant is the registered proprietor of the land and maintained that he was the lawful holder of a temporary occupation licence (“TOL”) in respect of the land and he had been occupying the land since 1952. Respondent contended that the appellant’s title was invalid as it was obtained by fraud, misrepresentation and by unlawful means. Respondent had also paid the license fees for occupation of the land till the end of 1967 and paid assessment on the building erected by him till end of 1973. Respondent argued the appellant knew that he was the lawful occupant of the land and had accepted the alienation of the state land from the state authority subject to the incidence attaching to the land. Thus, she was estopped from denying the appellant’s right of occupation.
Respondent further claimed that since 1967, he had made improvements to the building on the land in his own expenses. Therefore, he had acquired an equity in the land and he should be compensated by the appellant before taking possession of the land. He also denied that the appellant had made requests and demands on him to quit the land and claimed that the notice to quit is unlawful.
The trial Magistrate entered judgment in favour of the appellant. On appeal, the High Court held that when the appellant was register as proprietor, the approval of the alienation of the land to her had already lapsed and therefore it was ultra vires (acting beyond one’s authority) of the state authority to alienate the land to her. Thus, the appellant appealed to the Federal Court.
Issue of the Case
Whether the qualified title registered in the appellant’s name is null and void?
Judgment of the Court
At the High Court, it was found that the registration of the land was effected on 24 January 1968 in the appellant’s name. she was the first registered proprietor and a qualified title was issued. Appellant had applied for the alienation of the land and obtained approval from the state authority subject to the payment of a premium and other items of land revenue which came to a total sum of RM4,327.50. Appellant was required to pay the sum within three months from the date mentioned in Form 5A which was 16 November 1966. The appellant paid the sum about eight months after the expiry date.
The respondent’s TOL was approved on 19 June 1954 and respondent had been renewing the TOL till 1967. Respondent said that he had erected a shop house, obtained water and electricity supplies and carried out repairs to the building. In 1968, he was informed that the land had been alienated to another person when he went to renew his TOL. He had applied for the alienation of the land in 1965 and had received reply that his application was under consideration.
The High Court held that the appellant had obtained her title by unlawful means because the state authority had acted contrary to section 81 and section 180 of the National Land Code 1965 (“NLC 1965”). The subsequent question who be for the Court to decide whether a contravention against these provisions would render the alienation of the land under qualified title becomes null and void and of no effect.
Section 41 and 42 of the NLC 1965 states the state authority have the power to alienate state lands. The first step to acquire alienation of state land under a final or qualified title is to obtain the approval of the state authority. When approval was obtained, a sum of money become payable to the state authority as land revenue under section 81(1). The Collector will issue a notice in Form 5A under section 81(2) requiring the intended proprietor to make payment within a specified time in the notice. If such sum is not paid, the approval of the state authority will be lapsed.
Section 81(2) states:
“(2) As soon as may be after any sums have become due in respect of any land by virtue of sub-section (1), the Collector shall, by notice in Form 5A, require the intended proprietor to pay them to him within the time specified in that behalf in the notice; and if any such sum is not so paid within the specified time, the approval of the State Authority to the alienation shall thereupon lapse."
Under rule 7 of the Negeri Sembilan Land Rules 1966, the period to be specified in Form 5A is three months. The extension may be granted by the Collector is not exceeding three months. After the items of land revenue is paid within the specified period of time, the state authority then can exercise the power to alienate the land under qualified title under section 180 as follows:
"Applications for alienation under qualified title.
180 (1) Any person or body to whom the alienation of any land has been approved by the State Authority, whether under this Act or under the provisions of any previous land law, may at any time apply in writing to the Collector for its alienation to him under qualified title.
(2) Every such application shall be accompanied by the fee for the time being prescribed:
Provided that no fee shall be payable if the approval of the State Authority was given under the provisions of a previous land law and the application is made by a person who, pursuant to the approval, was at the commencement of this Act lawfully in occupation of the land in expectation of title.
(3) No such application should be entertained unless and until the items of land revenue specified in paragraphs (a) to (d) of sub-section (1) of section 81 have been paid in respect of the land."
Note: Section 180 has been amended but the gist of the provision remains the same.
Under section 78(3), the alienation of state land under qualified title takes effect upon the registration of a register document of qualified title pursuant to section 177, 178 and 181. Section 89 states that a register document of title is a conclusive evidence of the title to the land vested in the proprietor. Section 92 declares the land’s indefeasibility of final title and it is extended to apply to a register document of qualified title by section 176(2) and 178(3).
indefeasible title or interest is conferred by registration. Section 340 states:
"Registration to confer indefeasible title or interest, except in certain circumstances.
340. (1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be
indefeasible.
(2) The title or interest of any such person or body shall not be indefeasible—
(a) in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or
(b) where registration was obtained by forgery, or by means of an insufficient or void instrument; or
(c) where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.
(3) Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in subsection 2—
(a) it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and
(b) any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested:
Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser.
(4) Nothing in this section shall prejudice or prevent—
(a) the exercise in respect of any land or interest of any power of forfeiture or sale conferred by this Act or any other written law for the time being in force, or any power of avoidance conferred by any such law; or
(b) the determination of any title or interest by operation of law."
When a title is registered, it becomes indefeasible and remain so unless and until declared otherwise by the Court which can only be done if title can be successfully challenged within the exception in section 340. The High Court was of the view that non-compliance with the provisions relating the mode of acquiring the alienation of state land may not render a registration invalid but if the state authority purports to act in pursuance of power not vested by the NLC 1965, then the registration of title which follows the unauthorised act of the state authority is illegal and a nullity.
When the appellant failed to make the payment for the items of land revenue on time, the approval of the state authority in respect of the land had lapsed. The payment made after the approval had lapsed could not revive the approval and therefore appellant’s application should not be entertained under section 180(1). Hence, the High Court held that the state authority had acted ultra vires the NLC 1965 and therefore the alienation of land was illegal and a nullity. Consequently, the proceeding against the respondent had no locus standi as she was not a lawful registered proprietor of the land.
The principal ground of appeal to the Federal Court was that the qualified title registered in the appellant’s name is null and void because there was no approval of alienation existing at the time of appellant’s registration. The Federal Court held that evidence shows the appellant was the only applicant for the alienation of the land when the approval had lapsed. The state authority does not seem to have any intention of alienating the land to anyone else other than the appellant. Thus, it necessarily raised the inference that the state authority had given fresh approval on the amount being paid although was late.
The Court was of the view that provision relating to the lapse of approval in section 81(2) is to enable the state authority to give the land to someone else if the approved applicant does not want the land or unable to pay the necessary fees. It is not intended to impose any restriction on the state authority’s power to dispose land. The Court also held that under the Torrens System the register is everything and it would be wrong to allow an investigation as to the right of the person to appear upon the register when he holds the certificate of title.
Principle of the Case
Under the Torrens System, registration of title is everything. As long as the title is registered under the applicant’s name, he enjoys indefeasible title over the land.
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