Back
2010 MarsdenLR 1521
COURT OF APPEAL PUTRAJAYA
HASSAN KADIR & ORS – Appellant
Versus
MOHAMED MOIDU MOHAMED & ANOR – Respondent
[Civil Appeal No: J-02-729-2002]
The validity of a deed is preserved if executed prior to the enactment of prohibitory legislation, thus protecting established equitable interests.
Headnote:(A) National Land Code 1965 - Section 205(3), (4), and (5) - Appeal by defendants against order confirming plaintiffs' constructive trust over land following execution of a Deed - The Deed was validly executed prior to the enactment of restrictions in Section 205(3) prohibiting co-ownership of agricultural land under certain conditions, thus not applicable to the Deed in question - Principles of equity not applicable in this case as trusts were undisputed. (Paras 10-18)
(B) The validity of dealings concerning agricultural land must consider the timing of legislative enactments in order to apply relevant sections appropriately while ensuring established equitable rights are honored. (Para 18)
Facts of the case:
The plaintiffs purchased a portion of land from the defendants' late father and paid the full price, taking possession. Upon discovering the defendants were registered owners due to a distribution order, they sought to enforce their rights under the Deed, which had been executed in 1978.
Findings of Court:
The court affirmed the judicial commissioner's finding that the plaintiffs were entitled to the said portion based on established trusts, reiterating that the relevant legislative provision (s. 205(3)) does not invalidate the earlier Deed.
Issues: Whether Section 205(3) of the National Land Code 1965 prohibits the High Court's orders regarding the land given the timeline of the Deed's execution and subsequent legal restrictions.
Ratio Decidendi: The court concluded that the Deed remained valid as it was executed prior to the enactment of restrictions and emphasized that trust rights were acknowledged, rendering the equitable principles unnecessary.
Result: Appeal dismissed with costs.
| Table of Content |
|---|
| 1. trusts in property ownership (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 2. application of s. 205 of national land code (Para 10 , 11 , 12 , 18) |
| 3. interpretation of land code provisions (Para 13 , 14 , 15 , 16 , 17) |
Appeal
[1] This is an appeal by the appellants (the defendants) against the decision of the learned judicial commissioner who had, after a full trial, allowed the respondents' (the plaintiffs') claim in part and ordered:
(1) that the defendants do hold the land comprised in GM 482 (previously known as EMR 381) Lot 261, in the mukim of Plentong, district of Johor Bahru (the land) subject to the constructive trusts created in favour of the plaintiffs to the extent of 21,000 square feet thereof (the said portion) pursuant to the execution of the Deed of Sale and Irrevocable Power of Attorney (the Deed) dated 7 October 1978; and
(2) that pursuant to s. 417 of the National Land Code 1965 , the Registrar of Titles or the Land Administrator, as the case may be, do cause an endorsement to be entered on the register document of title of the trusts aforesaid in favour of the defendants herein.
Factual Background
[2] By the deed, the plaintiffs purchased the said portion in the land from the defendants' father.
[3] The plaintiffs had duly paid the full purchase price of RM42,000 and taken possession of the said portion. The existence of trusts in favour of the plaintiffs is not disputed.
[4] The defendants' father passed away on 17 November 1978.
[5] The defendants then obtained a distribution order as beneficiaries of their late father's estate, wherein the land, including the said portion, was transmitted to the defendants as registered owners in equal shares.
[6] When the plaintiffs discovered this fact in 1986, they requested the defendants to transfer the said portion to them but the defendants refused.
[7] The plaintiffs then lodged a private caveat on the land. The plaintiffs' application to the Johor Bahru land administrator to vary the distribution order was rejected.
[8] Later the plaintiffs filed an originating summons against the defendants but withdrew it with liberty to file afresh.
[9] Subsequently, the plaintiffs filed a writ of summons against the defendants praying for, inter alia , a declaration that the plaintiffs are entitled to the said portion under the Deed and the defendants as trustees do transfer the same to the plaintiffs as registered co-owners thereof, failing which the Senior Assistant Registrar shall execute the transfer of the said portion to the plaintiffs and that the Registrar of Titles be directed to register the same in favour of the plaintiffs; and costs.
Co-proprietorship Under s. 205(3), (4) And (5)
[10] Defendants' primary ground of appeal presented by learned counsel Mr Mathews George is that the learned judicial commissioner has erred in relying on equity and in directing the land administrator to endorse the plaintiffs' interest notwithstanding s. 205(3) of the National Land Code 1965 which, according to him, prohibits co-proprietorship of agricultural land of less than two-fifths of a hectare. He cited Verama Muthusamy v. Arumugam Muthusamy & Anor in support thereof.
[11] Plaintiffs' learned counsel, Mr Robert Lai (assisted by Ms Fadzilah Mansor) argued that the Deed has been validly executed on 7 October 1978, before s. 205(3), (4) and (5) came into force on 25 March 1985.
[12] The above submissions call for the determination of the following question:
Does s. 205(3) of the National Land Code 1965 , read with s. 205(4) and (5), prohibit the High Court from making the above orders?
[13] It is essential for us to refer to s. 205(3) which provides as follows:
205. Dealings capable of being effected, and persons capable of taking thereunder
(3) Subject to sub-section (4), no dealing in respect of any alienated land subject to the category "agriculture" or to any condition requiring its use for any agricultural purpose shall be effected if such dealing would have the effect
