Historical

Background of land
law in Malaysia
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
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. It
was really immaterial to consider whether the island should be
regarded as a ceded or newly settled territory for there is no trace
of any laws having been established there before it was acquired by
the East India Company.

• English land law was introduced into Penang by the First

Royal Charter of Justice 1807.
• Wholly subjected to English land law as there was no
form of local tenure.
• Malay customary land tenure of Kedah should have been
regarded as the lex loci of the island.
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 of
Islamic 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 right
to clear and occupy all forest and waste land subject to the payment to the
Sovereign of one-tenth of the produce of the land so taken.
• Then the land law that prevailed was the Malay customary tenure
with the system of Dutch Grants implemented in the urban areas.
• At the turn of the 19th century, the English Deeds System was
introduced by the British.
• Malay Customary Tenure was abolished.
• In 1891, a law was passed by the English administrators - all land
shall be deemed to be “vested in the Crown” – following the English
Law of property.
Characteristics of Malay
customary land tenure
• Proprietary rights: Nature of ownership is not one of absolute
ownership but is based on ‘proprietory rights’, where the
right of ownership extends not to the soil but to the usufruct
or the right to utilise the soil.
• Method of acquiring land: by opening up and cultivating
virgin 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 of
possession included the right to succession and the right to deal
in the land either by way of sale, transfer, pledge, etc.
To receive one-tenth of the proceeds of the land as tax.
To forfeit the land if the land was neglected or abandoned for
any substantial period of time without any reasonable cause.
The owner would lose all his rights therein.
• 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. If
the buyer fails to do so, the sale agreement becomes
absolute (jual putus).
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 Council held that the Sultan of Pahang is an absolute
ruler in whom resides all legislative and executive power,
subject only to the limitations, which the Sultan has from time
to time imposed upon himself in the circumstances
• In the FMS, there are no Charters of Justice and the British
Common Law was not introduced until the passing of the Civil
Law Enactment No.3 of 1937.
• 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 will
drawn 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 Rulers
the only law which existed and was accepted by the Malays and other
Mohammedans as applicable to questions of inheritance and testamentary
dispositions was that of Mohammad modified in a few districts by local
custom.

• On appeal, it was further clarified:

The British treaties with the Ruler of these States merely provided that the
advice of the British administrators should be followed and in accordance
with such advice, Courts have been established by Enactment, British
Judges appointed, and a British administration established…
• 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
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 19th and early 20th century, the Torrens System was
introduced.
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 the
Torrens System was the Islamic law of the Shafii school.
How the Torrens System was
introduced
General Land Regulations
 Perak, 1879
 Selangor, 1882
 Negeri Sembilan, 1887
 Pahang, 1888

Perak, Selangor, Negeri Sembilan & Pahang Land Enactments

1897

Registration of Titles Regulations/Enactments

 Selangor, 1891
 Perak and Pahang, 1897
 Negeri Sembilan, 1898
FMS Enactments of 1911
• All were repealed with 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 and
estates)
• Incorporated basic Torrens principles:
• All lands vest in the Ruler , who has the power to alienate land to his
subjects 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 duly
registered with the relevent authorities. Land title should not be
conveyed by an instrument in writing executed by the landholder
but by the registration of that instrument.
• Failure to do so so would render the dealings null and void – case Hj
Abdul 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 abolished – Sidek & 461 Ors v. Govt of Perak;
• Forms of dealings were recognised;
• Two forms of caveats were recognised;
• 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.
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 and
registration as indicated in Hj Abdul Rahman’s case.
e. Specific types of cultivation were enforced.
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.
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.
• National Land Code (Penang and Malacca) Titles Act 1963
• The new 1965 National Land Code came into force on 1st
January 1966.
QUESTIONS
• Various systems relating to land tenure have evolved in the
states of Peninsular Malaysia from the Malacca Sultanate until
present times. Discuss, with references to relevant legal
authorities, the types of land systems that have been in place
in Malaysia until the passing of the National Land Code 1965
and how the Torrens system has reformed Malaysia’s land law.
(15 marks)
• In Shaik Abdul Latif & Ors v Shaik Elias Bux [1915] 1 FMSLR
204 at p. 221 Innes J.C observed that:
• “On each occasion when the introduction of British influence
upon the administration of the States has been formally
recognised by their Rulers the only law which existed and was
accepted by the Malays and other Mohammedans as
applicable to questions of inheritance and testamentary
dispositions was that of Mohammad modified in a few
districts by local custom.”
• Discuss the above statement in light of laws relating to land
tenure before, during and after the presence of British in the
Malay states and the extent of which those principles remain
relevant under the present land system.