Lord Keith of Kinkel:

This appeal comes before the board from an order of the Federal Court of Malaysia dated 14 December 1978. By that order the Court (Lee Hun Hoe CJ, Borneo, Wan Suleiman and Chang Min Tat FJJ) reversed a judgment of Harun J, in the High Court in Malaysia, allowing an appeal by the present appellants, under s. 418 of the National Land Code, Act 56 of 1965 ("the Code"), against a notice dated 12 July 1976, issued to them by the respondent under s. 128 of the Code.

The history of events leading to the appeal is fully set out in the judgments of the Courts below, and, as little of it; is relevant to the issues which now require to be determined, their Lordships find it unnecessary to recapitulate.

The appellants are proprietors of a site in the city of Kuala Lumpur, within the Federal Territory, upon which they have erected a substantial shopping-cum-office complex, known as Wisma Central. The respondent issued the notice complained of upon the basis that the land forming the site had thereby become liable to forfeiture.

Subsection (1) of s. 128 provides:

128(1) Where:

(a) any alienated land is liable under s. 127 to forfeiture to the State Authority for breach of any condition, and;

(b) it appears to the collector that the breach is capable of being remedied by the proprietor within a reasonable time,

the collector shall serve, or cause to be served, on the proprietor notice in Form 7A specifying the action required for remedying the breach, and calling upon him to take such action within the ** therein specified.

Section 127(1) provides:

127(1) Upon any breach arising of any condition to which any alienated land is for the time being subject:

(a) the land shall become liable to forfeiture to the State Authority, and

(b) except in a case where action for the purpose of causing the breach to be remedied is first required to be taken under s. 128, the Collector shall proceed with the enforcement of the forfeiture in accordance with the provisions of s. 129.

It is to be observed that in relation to the Federal Territory the State Authority is now the Land Executive Committee of the Territory.

The main issue in the appeal is whether the appellants are in breach of a condition to which the land forming the site of Wisma Central is subject, so as to attract the forfeiture provisions of s. 127, failing remedy of the breach. Section 110 of the Code provides, inter alia, by para. (a) that land alienated before the commencement of the Act shall be subject to "such express conditions and restrictions in interest (if any) as, immediately before that commencement, were endorsed on the document of title thereto (or, in the case of a certificate of title, referred to therein)". The site in question, which extends to some 2 acres, forms part, of a larger area of land, about 100 acres in extent, which was originally alienated by a lease in perpetuity dated 20 July 1886, granted by the Sultan of Selangor in favour of one H.C. Syers. That land went through various subdivisions, and the certificate of title (No. 3443) under which the appellants hold their plot was first issued on 8 August 1909. It is a registry title, as the Federal Court held and the respondent does not now dispute, and it describes the land as situated in the town of Kuala Lumpur. The evidence is that for many years a substantial dwelling house occupied part of the land, until demolished to make way for Wisma Central. It is common ground that the appellants hold subject to the conditions contained in the lease of 1886, and the first question to be determined is whether, as the respondent contends and the appellants deny, these conditions properly construed have the effect that the land is required to be used for agricultural purposes only. It is not in dispute that, if the answer to that question is in the affirmative, the appellants committed a breach of the condition by erecting Wisma Central on the land.

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