JUDGMENT

Gopal Sri Ram JCA:

[1] This is a tolerably plain case. The facts of immediate relevance are straightforward; the applicable law well settled. The parties in the appeal are all related by blood. The dispute between them centres upon a piece of land registered in the name of one Tang Kah Choo. The title to the land in question carries an indorsement which absolutely prohibits its transfer to any person for a period of ten years and thereafter permits its transfer only with the consent of the State Authority. The title was issued on 25 September 1996. According to the terms of the indorsement, it could not be transferred at all until 24 September 2006 and thereafter only with the consent of the State Authority. It appears that in 1996, an application was made by Tang Kah Choo (though in his evidence the appellant, who was the defendant in the court below, acknowledged that he was the real applicant) to have the land transferred to the appellant. Despite the express terms of the indorsement, the Director of Lands and Mines purported to approve this transfer and the land was eventually transferred and registered in the appellant's name on 31 March 1998. The respondent (the personal representative of the appellant's brother's estate) brought an action to set aside the transfer. The High Court found for the respondent. The appellant appealed to us. He failed. The reasons for our decision are now produced.

[2] The only issue in this appeal is whether the transfer to the appellant is valid. The appellant relies on the purported consent given by the Director of Lands and Mines. So, everything turns upon whether the Director acted lawfully in giving his consent. That depends on whether he acted in accordance with the relevant written law, in this case, the National Land Code 1965 ("the Code").

[3] Now, s. 109(2)(a) of the Code which applies to the subject land provides that such land shall, upon alienation, become subject to:

such express conditions and restrictions in interest (if any) as are then endorsed on the document of title thereto (or referred to therein), being conditions and restrictions imposed by the State Authority under the powers conferred by sections 120 to 122.

The power to impose conditions is vested in the State Authority by s. 120 of the Code. Additionally, s. 124 of the Code confers upon the State Authority the power to alter or rescind any conditions expressed in a title.

[4] In the present case, Tang Kah Choo did not apply to the State Authority to rescind the express restriction prohibiting transfer for a period of ten years from the date of the alienation. Instead, she merely applied for permission to transfer the land to the appellant. The Director therefore had no power whatsoever to act as he did since the repository of that power was the relevant State Authority. It follows that the act of the Land Administrator in the registering the transfer to the appellant was unlawful, null and void. Consequently, the appellant obtained a title that was defeasible in his hands.

[5] In M & J Frozen Foods Sdn Bhd & Anor v. Siland Sdn Bhd & Anor [1994] 2 CLJ 14, Wan Yahaya SCJ quoted with approval the following passage in the judgment of Ajaib Singh J, (as he then was) in Teh Bee v. Maruthamuthu; [1977] 2 MLJ 7 in relation to the nature of a title obtained in violation of the provisions of the Code:

I held that in the present case the alienation of the land under qualified title to the respondent did not involve a mere irregularity or non-compliance with the statutory procedure relating to the method of acquiring alienation of qualified title but that the state authority had acted ultra vires the National Land Code and therefore the alienation of the land under qualified title was illegal and a nullity. Consequently, the conclusiveness of title and the indefeasibility provisions in the Code were rendered irrelevant and inapplicable.

[6] The position here is a fortiori. If the act of the State Authority in violatin