Howes J:

In this summons the plaintiff applies for an order that the Collector of Land Revenue, Telok Anson, be directed to record a memorial discharging Charge Presentation No. 261 of 1918 over the lands held under EMR Nos 834 and 846 respectively in the Mukim of Utan Melintang.

Five issues have been framed by the plaintiff's advocate, and after some discussion, were adopted by the Court.

The issues are:

1. Is the defendant barred from claiming any relief under the charge dated 10 June 1918, executed by Serawan binti Kerta Pawero in favour of the defendant having regard to the provisions of Limitation Enactment (Cap. 18), s. 19 (ii), and pleaded by the plaintiff.

2. Does the fact of the defendant being in possession of the charged land save the running of the time under s. 19 (ii) of (Cap. 18).

3. Is the power of attorney dated 10 June 1918, null and void ab initio or not.

4. If not bad b ab initio did it cease to be of force at any time if at all and if so when.

5. Is the possession of the charged land by the defendant legal.

Dealing firstly with issue No. 3, having regard to the decision of the Court of Appeal in Idris v. Ng Ah Siew 4 MLJ 257; [1935] FMSLR 70. I hold that the power of attorney purported to give to the chargee a right or interest in the land of the Malay charger, and as such was contrary to the provisions of s. 8 (i) of the Malay Reservations Enactment, 1913 (Enactment 15 of 1913) which was in force at the date of the power of attorney (10 June 1918), and consequently under s. 13 of the same Enactment the dealing or attempt to deal in the land was null and void.

Issue No. 4 - Even if the power of attorney were not null and void ab initio, it ceased to be operative on the date of the death of the charger, viz, on 12 July 1921. This, Mr. Chin Swee Onn, advocate for the chargee, admits.

Issue No. 2 - It is admitted that the defendant was and still is in possession of the land, but this, and the receipt of the produce of such land does not of itself save the running of the period of limitation under s. 19 (ii) of the Limitation Enactment (Cap. 18). In the present case, since I hold that the power of attorney under which the chargee entered into possession was void, the chargee was, from the beginning, a trespasser. Moreover, the power of attorney did not expressly empower the chargee to enter into possession of the charged land. All it did was to appoint the chargee to "look after the coconut estates; to engage and discharge coolies as he thought fit; to sell coconuts when the trees are bearing."

Section 137 of the Land Code which allows a chargee to enter into possession, only applies to land held under grant, lease or certificate of title, and there was a similar provision under the Registration of Titles Enactment, 1911, which was in force at the date of the power of attorney (1918). But there was no provision under the Land Enactment, 1911, for a chargee to enter land held under the mukim register. Consequently, s. 19 (ii) of the Limitation Enactment can have no application in the present case; and, clearly, that sub-section contemplated a lawful possession.

Issue No. 1 - I hold that the defendant is barred from claiming relief. The charge was repayable on 8 June 1920, and consequently under Article 101 of the second schedule to the Limitation Enactment, the defendant must claim within 12 years of the time when the money sued for became due.

Mr. Chin Swee Onn contended that under the Limitation Enactment, 1896, which was in force at the date of the charge, under Article 114 of the second schedule thereto, a mortgagee was allowed 60 years in which to claim for foreclosure and sale, from the time "when the money secured by the mortgage became due".

As was pointed out by Thomas CJ, in Gan Khor v. Soan 4 MLJ 158; [1935] FMSLR 39. "There is no such thing as a mortgage of land known to the law of the Federated Malay States. Charges alone are recognised. The rights arising from a charge are c