TAN YING HONG v TAN SIAN SANG - Overruled? Adorna Properties Sdn Bhd v Boonsom Boonyanit @

Federal Court TAN YING HONG v TAN SIAN SANG & 2 Ors


KINDLY CONSIDER, interim remedy
INJUNTIVE REMEDY/RESTRAINING ORDERS OUGHT TO BE APPLICABLKE to preserve the status Quo, s 11. Specific RELIEF Act, Keat Gerald Francis Noel John v Mohd Noor [1995] and Order 29 High Court Rules.

The Issue

The principal issue in this case is whether s.340 of the National Land Code (‘NLC’) confers upon the registered proprietor or any person having registered interest in the land an immediate or deferred indefeasibility. This, was once thought to be a settled question of law until the decision of this
Court in Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng [2001] 1 MLJ 241 (Adorna Properties).

S340 National Land Code

“340. Registration to confer indefeasible title or interest, except in certain circumstances.

(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 sub-s.(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 subsection 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.”

Firstly, section 340 (1) of the NLC is concerned, A’s title to the land is totally indefeasible. In short if A’s name appears on the registration, no one can come and claim for that title.

Secondly, B, whose name appears in the register. If it can be shown that the title or interests obtained by B was obtained by fraud or misrepresentation by him or anyone else to which he was a (b) where registration was obtained by forgery, or by means of an nsufficient 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

sub-section (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.

party or privy then his claim to the title or interest can be defeated.

Any title or interest gained by any person thereafter is also liable to be set aside unless it could be shown that he had acquired it in good faith and for valuable consideration. This is what is called deferred indefeasibility


Thirdly, any title or interest gained by any person thereafter is also liable to be set aside unless it could be shown that he had acquired it in good faith and for valuable consideration. This is what is called deferred indefeasibility


The National Land Code, A Commentary (Vol 2)] by Judith Sihombing which reads:

“There are two types of indefeasibility; immediate and deferred. The factor which distinguishes the two is the common law effect given to the instrument even after registration; in addition; in a regime of deferred indefeasibility, the role of registered volunteer might be more relevant than under an immediate indefeasibility system. If, after registration has occurred, the system then ignores the substance,form and probity of the instrument used to support the registration,the system is likely that of immediate ndefeasibility. Thus, registration has cured any defect in the instrument being registered. If the instrument, despite registration, still has the power to affect the registered interest or estate, the system will probably be that of deferred indefeasibility”.


The effect of Adorna Properties is to confer immediate indefeasibility to the registered proprietor. That decision was followed

Gopal Sri Ram JCA (as he then was) in the same case opined that the Federal Court’s decision in adorna Properties was decided per incuriam and should not be treated as binding for the reasons that:

1. S.340(3) applies to subsequent acquirers of land, taking from a registered proprietor whose title is defeasible as stipulated in s.340(2), a class which Adorna Properties does not belong to since it took its title from a forger.

2. Federal Court in Adorna Properties when arriving at its decision overlooked at least two authorities which hold that the Code provides for deferred indefeasibility. In Mohammad bin Buyong v Pemungut Hasil Tanah Gombak & Ors [1981] 1 LNS 114 and M & J Frozen Food Sdn Bhd & Anor v Siland Sdn Bhd & Anor [1994] 2 CLJ 14; [1994] 2 BLJ 156 which propagate the doctrine of deffered indefeasibility in the NLC.

3. The learned CJ in Adorna Properties, equated purchasers and registered proprietors overlooking the provisions of s.5 of the code which defines them separately and differently.

PK Nathan in his article “Nightmare For Registered Owners of Landed Property” published in [2002]CLJ xxiii said:

“The decision of the Federal Court in the case of Adorna Properties Sdn Bhd v Boonsoom Boonyanit [2001] 2 CLJ 133 has placed registered owners of landed properties on thin ice and in jeopardy€. As a result of the decision, land owners may, one morning, find themselves no longer owning their landed properties without any fault, doing or knowledge in their part.”

Teo Keang Sood of the Faculty of Law, National University of Singapore in an article "Demise of Deferred Indefeasibility Under the Malaysia Torrens System?" (Singapore Journal of Legal Studies, 2002, pp 403-408) stated:

“Having misconstrued the legislative intent as embodied in s.340, the case of Adorna Properties Sdn Bhd is clearly wrongly decided on the issue of indefeasibility involving forgery and should not be followed. Whatever may be the advantages of immediate indefeasibility, it is for Parliament, to change the law, and until that is done, it is for the Courts to interpret the law as it stands.”

Dr. Visu Sinnadurai in his book entitled “Sale and Purchase of Real Property in Malaysia” which reads:
“In Malaysia, it is submitted that under s.340 of the National Land Code, deferred indefeasibility applies. The registered proprietor who had acquired his title by registration of a void or voidable
instrument does not acquire an indefeasible title under s.340(2)(b). The indefeasibility is postponed until the time when a subsequent purchaser acquires the title in good faith and for valuable
consideration. In other words, a registered proprietor, the vendor, under a sale and purchase agreement, even though he himself does not possess an indefeasible title, may give an indefeasible
title to a bona fide purchaser.”


What the Federal Court differed from the Court of Appeal was on the effect to be given to sub-s.(3).


Ratio/Conclusion

We are of the view that the proviso is directed towards the provision of sub-s.(3) alone and not to the earlier subsection. This in our view is supported by the use of the words “in this subsection” in the proviso. Therefore, its application could not be projected into the sphere or ambit of any other provisions of s.340.

Furthermore, even though sub-s.(3)(a) and (b) refer to the circumstances specified in sub-s.(2) they are restricted to subsequent ransfer or to interest in the land subsequently granted thereout. So it could not apply to the immediate transferee of any title or interest in any land. Therefore, a person or body in the position of Adorna Properties could not take advantage of the proviso to the sub-s.(3) to avoid its title or interest from being impeached. It is our view that the proviso which expressly stated to be applicable solely to sub-s.(3) ought not to be extended as was done by the Court in Adorna Properties, to apply to sub-s.(2)(b). By so doing the Court had clearly gone against the clear intention of Parliament. This error needs to be remedied forthwith in the interest of all registered proprietors. It is, therefore, highly regrettable that it had taken some time, before this contentious issue is put to rest.

For the above reasons, with respect, we hold that the Federal Court in Adorna Properties had misconstrued s.340 (1), (2) and (3) 25 of the NLC and came to the erroneous conclusion that the proviso appearing in sub-s.(3) equally applies to sub-s.(2). By so doing the Federal Court gave recognition to the concept of immediate indefeasibility under the NLC which we think is contrary to the provision of s.340 of the NLC.

The Court of Appeal while agreeing that the issue of ownership of the land is a contentious issue, in view of Adorna Properties, said that regard must be had to the evidence before the High Court.
The Court of Appeal at page 32 of the appeal record concluded in the following words:

“The position seems to be this, that the appellant though registered as land owner did not actually own the land. On the facts, this position can be distinguished from those in Adorna Properties. However the interest of the said land was subsequently granted to the 3rd respondent as chargee who is bona fide and who acquired the interest in good faith with consideration.”

Obita Dicta

With the utmost respect to the Court of Appeal, we are of the view that the Court of Appeal was unnecessarily concerned with the manner the appellant got his name registered on to the title.
That in our view is not the issue which should concern the Court because it was never challenged by any party including the 3rd respondent that the appellant was the registered proprietor of the
land. The question before the Court was whether the charges registered in favour of the 3rd respondent are defeasible under s.340 (2)(b). At one instance, the Court of Appeal answered the
question in the positive having regard to Adorna Properties, but in the penultimate paragraph, it stated that the interest of the 3rd respondent in the land was an interest subsequently granted by the
appellant. With respect, we think the Court of Appeal had misdirected itself on the issue before the Court.

We must stress that, the fact that the 3rd respondent acquired the interest in question in good faith for value is not in issue, because once we are satisfied that the charges arose from void instruments, it automatically follows that they are liable to be set aside at the instance of the registered proprietor namely, the appellant.

Favorite Dalai Lama Quotes

Wisdom is the best guide and faith the best companion.

Be kind whenever possible. It is always possible.

Remember that not getting what you want is sometimes a wonderful stroke of luck.

The purpose of our lives is to be happy.

Happiness is not something ready made. It comes from your own actions.

There is no need for temples, no need for complicated philosophies. My brain and my heart are my temples.

My religion is very simple. My religion is kindness.

If you want others to be happy, practice compassion. If you want to be happy, practice compassion.

To conquer oneself is a greater victory than to conquer thousands in a battle.

We can never obtain peace in the outer world until we make peace with ourselves.

The foundation of all spiritual practice is love. That you practice this well is my only request.

CNY @ Mega Mall, Kuala Lumpur

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Communications and Multimedia Act 1998 (MCMC Act)

Alert for Malaysian bloggers
Communications and Multimedia Act 1998 (MCMC Act)
section 211 of the MCMC Act
“211. Prohibition on provision of offensive content.
(1) No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.
(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day or part of a day during which the offence is continued after conviction.”

section 233 of the MCMC Act
“233. Improper use of network facilities or network service, etc.
(1) A person who-
(a) by means of any network facilities or network service or applications service knowingly-
(ii) initiates the transmission of,
any comment, request, suggestion or other communication which is obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person; or
(b) initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address,
commits an offence.
(2) A person who knowingly-
(a) by means of a network service or applications service provides any obscene communication for commercial purposes to any person; or
(b) permits a network service or applications service under the person’s control to be used for an activity described in paragraph (a),
commits an offence.
(3) A person who commits an offence under this section shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day during which the offence is continued after conviction.”