The court found that D2 was not a bona fide purchaser for value and that his title to the land was void for non-compliance with statutory requirements.

JUDGMENT

Faizah Jamaludin J:

A. Introduction

[1] This is a claim by the Plaintiff against the first Defendant ("D1") and the second Defendant ("D2") for declarative reliefs and specific performance, or alternatively, the return of the deposit paid by the Plaintiff to D1 in respect of a piece of land held under HS(M) 12124, Lot 17108, Mukim Tanjung Karang, Daerah Kuala Selangor (referred as the "Tanah Kebun") together with damages and costs, under a sales and purchase agreement dated 26 September 2014 (the "1st Tanah Kebun SPA").

[2] It is the Plaintiff's case that D1 and D2 had fraudulently entered into a second SPA on 12 June 2015 between them (the "2nd SPA") for the purchase of the Tanah Kebun and a Tanah Sawah (as defined below) with the intention of defrauding the Plaintiff of her beneficial interest in the Tanah Kebun.

[3] The Plaintiff seeks the following reliefs from D1 and D2:

(a) A declaration to set aside the registration of D2 as the registered owner of the Tanah Kebun;

(b) Specific performance of 1st Tanah Kebun SPA between the Plaintiff and D1 against D1;

(c) Alternatively, an order that the Defendants pay the Plaintiff the Deposit in the sum of RM50,000 and general damages to be assessed by the Court;

(d) The Defendants pay interest at the rate 5% per annum on the sum of RM50,000 and the general damages from the date of the filing of the writ until the date of full settlement; and

(e) Costs on a solicitor client basis.

[4] In this suit, the main issues before this Court are (i) whether the Tanah Kebun was transferred by D1 to D2 in accordance with law - in particular the Small Estates (Distribution) Act 1955 (" SEDA 1955"); (ii) whether D2 was a bona fide purchaser for value of the Tanah Kebun; and (iii) if yes, whether D2's title to the Tanah Kebun indefeasible or does it fall within any of the statutory exceptions provided under s 340 of the National Land Code 1965 ("NLC").

[5] As Professor Teo Keang Sood stated in his article entitled "Indefeasibility of Title/Interest Pre-and Post-Tan Ying Hong", Journal of the Malaysian Judiciary, July 2018 at p 193,

" The concept of indefeasibility of title and interest provided in s 340 of the National Land Code (NLC) in the cornerstone of the Malaysian Torrens system. This concept is central to land registration and dealings under the NLC. It provides the registered title or interest of a registered proprietor immunity from attack by adverse claims However, this quality of indefeasibility is subject to the various statutory exceptions under 340 of the NLC "

[6] Section 340 of the NLC reads as follows:

"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-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 bod