Abdoolcader SCJ

(delivering the Judgment of the Court): In these proceedings instituted by the appellant as the landlord of premises No. 287-L, Jalan Aman, Kulim against the respondents as the principal office-bearers of Teo Kheow Club, Kulim ('the club'), an unincorporated society registered under the Societies Act, 1966 ('the Act'), for a declaration that the club is not the tenant of the premises in question, vacant possession thereof and damages, the parties agreed to dispense with evidence on the basis that the crux of the matter involved a pure question of law, and by consent the only and cardinal issue presented for curial determination was whether an unincorporated society has the legal capacity to hold a tenancy in suo nomine. Mustapha bin Hussain, J. held that it can and accordingly dismissed the appellant's action.

Proceeding straight to a consideration of the basic issue in question, it is settled law that a lease or tenancy cannot be granted to an unincorporated society which has no legal personality as it is only a composite entity of fluctuating content and not a persona legalis Jarrot v Ackerly (1915) 113 LT 371 is a decision to this effect, and this principle has been consistently followed and applied in a catenation of local cases: Indo-Australian Trading Co Ltd v Hin Ann Huay Kuan & Ors [1956] MLJ 193; Malay Women's Welfare Association v Tan Ek Joo Realty Co Ltd 3 MC 101; Singapore Shui Hing Company (Pte) Ltd v Singapore Sing Hua Poey Chin Association & Ors [1976] 1 MLJ 217; Ang Bock Chwee v Lim Huan Hee & Ors [1982] 1 MLJ 174. We do not think that the authorities in relation to partnership firms are pertinent in relation to the point in question.

The principle enunciated was not disputed by the respondents but it was however contended on their behalf and accepted by the learned Judge that section 9(b) of the Act materially affects the position in that it provides that the immovable property of a society may, if not registered in the names of trustees, notwithstanding the provisions of any written law to the contrary, be registered in the name of the society. The learned Judge apparently proceeded to consider and determine the matter virtually by having recourse to the maxim 'omne majus continet in se minus' (the greater contains the less) on the premise that if a society can be registered as the proprietor of immovable property under section 9(b) of the Act, 'it is unthinkable, nor practical and indeed ridiculous', to quote him, to hold that it cannot be a tenant. We must wholly dissent. The fallacy of this argument is that it completely overlooks the fact that section 9(b) of the Act is a specific statutory provision, only permissive in nature, dealing with a situation in circumscribed circumstances where the immovable property of a society is not registered in the names of trustees in which event it may be registered in the name of the society itself. Paragraphs (a) and (b) of section 9 of the Act envisage as a matter of course the appointment of trustees of a society registered under the Act for the vesting and administration of its assets and make provision for cases where there are none, and a lease or tenancy not otherwise registrable under the National Land Code, 1965 such as a monthly tenancy would normally be in the name of any such trustees or of one or more of its office-bearers. Section 9(b) of the Act therefore only makes provision for situations which necessitate its functional operation and application.

The provisions of paragraph (b) of section 9 of the Act should furthermore be contrasted with those of paragraph (a) thereof in relation to movable property which categorically enact, bereft of any permissive element, that the movable property of a society, if not vested in trustees, shall be deemed to be vested for the time being in the governing body of the society, and in all proceedings civil and criminal, may be described as the property of the governing body of the society by its proper