Rohana Yusuf J:

[1] This is an appeal against the decision of the High Court at Johor Bharu. The learned JC had dismissed an application by the appellant by way of originating summons, to forfeit a lease registered in respondent's favour. On 29 November 2012 by a majority decision, with our learned brother Clement Skinner JCA dissenting, we allowed the appellant's appeal with costs, and set aside the order of the High Court. We now give our reasons.

[2] The appellant leased out two pieces of land held under HS (D) 2[7082] PTD 4988 and HS (D) 2[7083] PTD 4989 both located in Mukim Rengam, Daerah Kluang, Johor to the respondent. The lease was registered in favour of the respondent on 18 November 1992 vide presentation No 526381992 for a period of 25 years commencing on 9 November 1992.

[3] The two issue document of titles to the lands were issued on 12 August 1991, just over a year before the commencement of the lease. They carry the same express conditions. The express conditions, in their original language are as follows:

"Syarat-Syarat Khas:

i. Tanah yang terkandung dalam hakmilik ini hendaklah diusahakan tanaman campuran seperti tanaman koko dan buah-buah daripada jenis dusun seperti durian, rambutan, nangka, sayur-sayuran atau ternakan. Tanaman-tanaman lain kecuali getah atau kelapa sawit boleh juga ditanam diatas tanah ini dengan syarat pemilik tanah hendaklah mendapat kebenaran secara bertulis daripada Pentadbir Tanah Daerah terlebih dahulu akan pertukaran jenis tanaman itu serta keluasan tanamannya.

ii. Pokok-pokok getah atau kelapa sawit tidak dibenarkan ditanam atau dibiarkan tumbuh di atas tanah ini."

[4] Subsequently, pursuant to Sch 14 of the National Land Code (NLC), computerised document of titles were issued by the Registrar of Titles over the same pieces of lands on 23 September 2004. The express conditions on the computer document of titles, in its original language are as follows:

"Syarat-Syarat Nyata

i. Tanah ini hendaklah ditanam dengan tanaman campuran untuk dusun dan koko.

ii. Pemilik tanah hendaklah sepanjang masa mengambil langkah-langkah menurut perintah yang dikehendaki oleh Pentadbir Tanah menjaga tanah ini daripada hakisan."

[5] The parties do not dispute that the later titles supersede the earlier. The case of the appellant is premised on the contention that, despite the difference in the wordings of the express condition in the earlier and the computer documents of titles, in essence they mean the same thing.

[6] The bone of contention was whether or not the cultivation of oil palm trees constitute a breach of the express condition and thereby a breach of the term of the lease that would entitle the appellant to a remedy of forfeiture under s 234 of the NLC.

[7] It was not disputed that the respondent cultivated oil palm trees on the major portion of the leased lands. Following procedures set out under the NLC the appellant gave 6 months notice under s 235 for the respondent to remedy the breach. When the respondent failed to do so, a termination notice was issued. Pursuant to s 234 of the NLC the appellant then applied for a forfeiture of the lease.

[8] The learned JC dismissed the application as he found there was no breach of the lease term or the express condition on the titles by the respondent. By giving a plain meaning to the phrase mixed farming stated in the express condition he found, the phrase would refer to different kinds of farming or agricultural activities which encompass the planting of trees such as rubber, oil palm, coconut and others. Hence the cultivation of oil palm trees according to him would be covered by the term mixed farming and there is also no express prohibition against such cultivation.

[9] We have examined the express condition carefully. The express condition which is the subject matter of dispute reads "Tanah ini hendaklah ditanam dengan Tanaman Campuran untuk Dusun dan Koko". In our view this condition must be read as a whole in order to appreciate its proper meaning.