PRIVATE CAVEAT

PROCEDURE
s. 324 NLC provides that:
Any person intending to lodge a private caveat
must make a formal application to the Registrar or
Land Administrator as the case may !e
"a# in $orm %&' stating e(pressly )hether to
!ind the land itself or a particular interest
only
"!# support )ith a statutory declaration verifying
the claim
"c# enclosed prescri!ed fee.
*pon receiving the application the Registrar must
note the time at )hich it )as received su!+ect to s.
32& "2# as soon as may
"d# enter the caveat !y endorsing in R,- !y his
hand and seal the )ords ./rivate Caveat0
)hether it !inds land or interest the detail
of the caveator and from )hich time the
caveat takes effect.
"e# 1e must notify the registered proprietor !y
serving notification in $orm %&A.
s. 324 "%# states that the Registrar is not re2uired
to in2uire the validity of the claim on )hich it is
!ased. -he court decided that the function of the
Registrar here is purely administrative in nature.
Nanyang Development v How Swee Poh 3ufian $4: .)hen
the land authority receives the application it e(ercises a
purely administrative function " 324"%##0.
Ong Chat Pang & Anor v Valliappa Chettiar 5ill $4: .so
long as all the formalities laid do)n in.."the Code# are
complied )ith the R or Collector has no po)er to re+ect a
caveat.0
Chng Sin Poey v !e" #ian $eng
s. 324 (1) does not mean that the R cannot reject an application for
an entry of a private caveat when it does not comply with the
substance of the form or as in the instant case when the application
does not specify whether the caveat is to bind the land or a
particular interest only. R must ma!e in"uire to clear doubt#.
%hoo Teng Seong v %hoo Teng Peng &'(()* a private
caveat may !e entered !y a !eneficiary under any trust of
)hich the land or interest in the land is trust property.Lim
'eng Chhon 4 held that in order to entitle a caveat under sec.
323"%#"!# of the Code the !eneficiary must sho) that he is a
person entitled to or !eneficially interested in the land held on
trust for him.
$awar +ir! S,n-+h, v #im %ai Chew &'(('*
3ale and purchase agreement )here!y the purchaser failed
to fulfil certain condition agreed upon. 1eld since the failure
)as caused !y the purchaser he could not enter into caveat.
.oo Hee Sing v /ill Ra0a Per!mal & Anor &'((1* A land
)hich is su!+ect to restriction in interest i.e. cannot !e sold
charge or transferred )as sold to the / )6out /7s
kno)ledge. 8hether / has caveat!le interest.1eld / has no
caveta!le interest until the consent of the 3A is o!tained.
#!ggage Di2tri3!tor2 4$5 S,n-+h,- v Tan Hor Teng&'((6*
8hether a tenant "occupying a property under a tenancy of 2
years# after having e(ercised his option to rene) for another
2 years had a caveat!le interest u6s6323"%#. 1eld that
e(empted tenants have no caveata!le interest in the land.
DURATION O7 PRIVATE CAVEAT
"%# 9n la) a private caveat can remain in force continuously for :
years !efore it e(pires: s. 32;"%#.
'ut in reality its duration may !e shorter that that in the
follo)ing situations:
4a5/ith,rawal +y Caveator
s. 32< = the caveator may )ithdra) it at any time !y )ay of
notice in $orm %&5.9t is presented to the R )ith fee. R shall
cancel the entry of the caveat noting the reason for cancellation
and notify the registered proprietor: s. 32<"2#
435Removal 3y the Regi2trar
s. 32:"%# = the Registrar upon receiving an application received
!y him from the caveatee "registered proprietor# in $orm %&1
)ith fee is re2uired:
"i# serve a notice in $ %&C to the caveator unless caveat has
!een e(tended !y the court
"ii# remove the caveat at the e(piry of t)o months from the date
specified in that notice : s. 32:"%'# -he Removal !y the
Registrar !y cancelling the entry on the R,-.
485 Removal +y The Co!rt
s. 32> "%# ?-he removal !y court is due the an application made
to it !y any person or !ody .aggrieved !y the e(istence0 of the
caveat. -hus any!ody are .aggrieved0 can apply .
s. 32>"2#? after hearing the court )ill make an order .as it may
think +ust0. 9f it decided to removed the caveat an order )ill !e
served to the R to removed it and R must act accordingly.
Eng $ee 9ong & Or2 v #et8h!manan
9f caveatee apply to remove the caveat the onus of proof is on the caveator
that there is a serious case to !e tried and !alance of convenient it is !etter
to maintain status 2uo of the land or interest.
Tran2:S!mmit S,n-+h,- v Ch!n Nyoo" #in SC;
9t is settled la) that if caveatee apply to remove the caveat u6s 32> the onus
is on the caveator that he has caveata!le interest on the land and if the
application is !y someone other than caveatee it is for he )ho must satisfy
the ct that he had !een aggrieved !y the e(istence of the caveat.
4<5 2- 1<( 4<5 Re=!2al 3y Regi2trar to E2tent Caveat
On Same .ro!n,
"a# 8here the court has so ordered to remove the private caveat
u6s. 32> or
"!# )here the court has refused the caveator7s application for its
e(tension u6s. 32: "2# or
"a# )here the Registrar has removed the caveat u6s.
32: "3#
The Regi2trar 2hall not entertain any appli8ation =or the
entry o= a =!rther 8aveat in re2pe8t o= the 2ame lan, or
intere2t whi8h i2 3a2e, on the li"e 8laim a2 the previo!2
8laim -
Damo,aran v Va2!,eva 4'(>?5
-he issue )as )hether it is proper for t)o private caveats to !e issued at the
instance of the same applicant on the same land and on the same
grounds.1eld:@nce a caveat has lapsed and a memorial thereof is made !y
the registering autority it is e(tinguished forever and the court has no po)er
to revive rene) or continue a caveat after it lapse. 'ut the s. 32&"2# does not
prevent entry of another caveat if !ased on different grounds from former after
the former caveat has ceased to e(ist.
#o!r,ena,in v Ratnavale & Anor
9f the caveatee applied for removal and he did not served the notice of
removal to caveator then second caveat can !e entered.
Thevatha2on v %wong @oon 4'(()5
8hether after the e(oiry of : years the caveator can apply for e(tention. 9t
)as held that the caveator can entere the second caveat provided he had
taken positive action to protect his interest on the land.
DA$A.ES AND CO$PENSATION
2- 1<(4'5 Damage2 an, Compen2ation
8here the caveat has !een entered .
)rongfully or )6out reasona!le cause0 or
)here the caveator has like)ise failed to
)ithdra) the caveat he shall !e lia!le for
damages or compensation to any person )ho
there!y suffers any damages or loss resulting
from such )rongful entry or refusal.
$awar +ir! S,3-+h,- v #im %ai Chew &'((<* l $#@
11A
9n order to ascertain damages paya!le under this
section it must !e sho)n there is a real damages.
'urden is on the person )ho suffered actual damages
as a result of )rongful entry.
SA7E.UARD PRIORIT9
9n Haroon v Ni" $ah illustrate that it is vital
for a purchaser to act 2uickly in entering a
caveat against the land )hich he has
purchsed. 3uch entery of caveat )ill
safeguard his priority.
'ut if the purchaser had paid full purchase
price and he had entered in possession then
failure to enter private caveat )ill have no
effect.
%arr!piah Chettiar v S!3ramaniam
/urchaser had paid full price of the land and he had
entered caveat. -he vendor hold the 9,- . 1ere the
purchaser had the priority over the creditor +udgement
)ho su!se2uently entered a prohi!itory order.
%re,it Tan0aya S,n-+h,- v %anagaratnam Vellian
&'(()*
R )as the o)ner of 36<
th
share of a piece of land. 1e
had entered a +oint venture agreement )ith -AB to
develop the land and share the profits. -he land )as
then registered under -AB. -AB then took loan from a
Coney lender and the land )as put as a security.
C6lender did a search and found the land is free. After
granting the loan and )hile he )ants to register the
charge he found that R had entered a private caveat.
1eld: -he money lender has the priority over the R
!ecause priority )ill !e granted to one )ho has priority
in time of creation of interest.
E77ECTS O7 PRIVATE CAVEAT
42- 1<< 4<5 5
/rivate Caveat )ill prohi!its for as long as it
continues in force the registration
endorsement or entry on the R,- thereto:
"a# any instrument of dealing e(ecuted !y
or on !ehalf of the registered proprietor
"!# any certificate of sale relating thereto
"c# any claim to the !enefit of any tenancy
granted !y the said proprietor and any
lien?holder7s caveat in respect thereof.
ISSUES ON PRIVATE CAVEAT
4'5 CAVEATIN. ONEBS O/N #AND
E! 7inan8e +h,- V Silan, S,n-+h,. the cort )as of the
vie) that the registered o)ner could not do so !ecause a
registered o)ner must necessarily !e a person already
possessing title or interest and not merely a person claiming
such title or interest.
#ee %im .!an v $alay2ian Pro,!8e Co-S,n-+h,-
, had charged its land to Calayan 'orneo $inance. -he
chargee had o!tained an order for sale of the land and it )as
sold at a pu!lic auction to the plaintiff. A )eek after the sale ,
entered a private caveat on the land as a result the land
cannot !e transferred to /.1eld: , has no caveat!le interest
on the land .$ollo)ed Bu $inance7s case.
Saw Cheng +oon v $oh, 7aroo" 3- Shai" $ohai,in
4'((65 follo)ed the a!ove decision.
4<5 PARTIA# CAVEAT
N Vange,a2elam v $aha,evan & Anor &'(>A* 7C
App ha interest in a portion of the said land and !rought an
action for specific performance. 1e also entered a caveat
against the land. 8hen the registered o)ner died his
representative applied to court to have the caveat removed.
-rial +udge allo)ed. @n appeal to $C the appeal )as allo). 9t
)as held that
9ssue )hether a person )ho is interested in only a specific
portion of the land has a caveata!le interest to support a
private caveat. 1BL,: a person )ho claims an interest in a
specific portion of another person7s land may caveat the
)hole land provided the effect of his caveat is to cover only
the particular interest claimed. -he caveat in this case should
!e restored.
-hen s. 322 "%# )as amended to read: ./rovided
that such a caveat shall not !e capa!le of !eing
entered in respect of a part of the land0
Tan Heng Poh v Tan +oon Thong & Or2 &'((<* the App
)as the !eneficiary of %6:
3hare in the estate of his late father. 1is father has : sons
and the estate )as divided into : portion. ,isputes arose.
8hile )aiting the pending of the resolution of the disputes
App applied private caveat of all the estate. R applied to
removed it. -he trial +udge granted the removal. @n appeal
ADmi 3C4 1BL,: 'y virtue of the amended s. 322"%# no
caveat could !e entered !y the Registrar against any land
)here the caveator )as interested in a specific portion of it
even though the effect )as e(pressly intended to !e limited
only to that specific portion.
7inally in Chor Phai" Har v 7arlim Propertie2 S,n-+h,-
&'((?* 1 A$R.$C held that s. 322 "%# have t)o intepretations
. @ne in support of Eangedaselam and the other is that it
nullify Eangedaselam. -he court )as of thevie) that s. 322
"%# is purely in support of Eangedaselam7s case.
CAVEATA+#E INTEREST
-he private caveat is aimed at protecting the
interest of any person )ho claims to have any
-9-LB or any registra!le 9N-BRB3- in the land
of the registered proprietor of the caveatee.
3ection 323 "%# of the NLC descri!es persons or
!odies )ho can enter a private caveat:
a "a# any person or !ody claiming title to or
any registra!le interest in any alienated
land or any right to such title or interest.
"!# "!# Any person or !ody claiming to !e
!eneficially entitle under any trust
effecting and such land or interestF and
"c# -he guardian or ne(t friend of any
minor claiming to !e entitle as mentioned
in paragraph "!# a!ove.
In the =ollowing 8a2e2 the 8o!rt ,e8i,e, what
amo!nt2 to 8aveata3le intere2t an, what not;
%!mp!lan S!a +etong S,n- +h, v Dataran Segar
S,n-+h,. the court decided that the relevant 2uestion
)hich the court should asked itself to is as follo):
9s the appellant a person claiming title to or registra!le
interest in any alienated land or any right to such title or
interestG 9f the ans)er is No then caveat must !e
removed. 9t is not al)ays the caveator must ultimately
succeed !ut that he has a prima facie case.
%ar!ppiah Chettiar v S!3ramaniam
-he purchaser had paid the full purchase price of the land
to the vendor )ho had then e(ecuted a transfer in the
statutory form !ut had not surrendered the 9,- to the
purchaser. /urchaser later enter private caveat to protect
his interest in the land. $C held that the purchaser having
private caveat has priority over a claim of a +udgement
creditor )ho su!se2uently had entered a prohi!itory order
against the same land.
Po" %ew Chai v 9eoh Thian Seng
$ailure to o!tain the chargee7s consent for the creation of
a lease )ill render the lease agreement void !ut there is
still caveata!le interest under e2uity.
$a8on Engineering S,n-+h,- v .oh Hooi 9in &'(>A* R
had paid deposit to purchase a property from the vendor
and agreed to pay the !alance at a stipulated time. 1e
entered private caveat. Cean)hile disputes arose and
vendor regarded the agreement determined and forfeit
the deposit. Eendor sold to the Appellant. 3ince App
cannot register the property he seek to removed the
caveat !ut dismissed. @n appeal the court upheld the trial
+udge decision: .so long as there is a valid agreement
e(ist for the sale of the land the purchaser is entitled to
lodge to protect his interest.0
%ri2hna %!mar v U$+C &'(C1* App had agreed to
create a second charge over his land in favour of the !ank
provided the first chargee gives his consent. Consent
initially )as given !ut later )ithdra)n. -he !ank then
lodged a caveat. 1eld: the !ank is entitled to enter the
caveat.
$illion .ro!p Cre,it S,n-+h,- v #ee Shoo %hoon &
Or2-&'(CA* the prospective purchaser still negotiating the
terms of purchase )ith vendor )hen he lodged caveat on
the said land. 1eld since there )as no concluded contract
yet he had no caveata!le interest on it.