Malaysian Torrens System

Pn. Ismah Binti Ismail & Dr. Siti Sarah Sulaiman

Faculty of Law
Universiti Teknologi MARA

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THE TORRENS SYSTEM
 Torrens system – formulated by an Australian - Sir
Robert Torrens.
 He introduced the system of land registration in South
Australia as the Real Property Act 1857.
 Later, the system was introduced to FMS during
English occupation. (First introduced to Selangor by
WE Maxwell who was then the British Resident for
Selangor).

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…Torrens system
 Basic concept of Torrens System is a system of
registration of titles and dealings on the land.
 Hence, all alienated land effected under the Code or
any previous law, must be registered.

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…Torrens system
 When the Torrens system was first introduced in the
FMS, there was already a system of land law based on
Malay custom and Islamic law.
 This was affirmed by the supreme court of Malaysia in
the case of Tengku Jaafar & Anor v. The State of
Pahang (1987) 2MLJ 74. in which the Lord President
held that the land law in Pahang before the
introduction of the Torrens system was Islamic law of
Shafii School.

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…Torrens system
 The earliest Malaysian Torrens were based on the Real
Property Act 1857 (South Australia).
 Prior to the enactment of National Land Code 1965,
there were several land regulations passed in the
Malay states such as:
o General Land Regulations
➢ Perak, 1879

➢ Selangor, 1882

➢ Negeri Sembilan, 1887

➢ Pahang, 1888

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…Torrens system
o Perak, Selangor, Negeri Sembilan & Pahang Land
Enactments 1897

o Registration of Titles Regulations/Enactments

➢ Selangor, 1891
➢ Perak and Pahang, 1897

➢ Negeri Sembilan, 1998

• All the above legislations were repealed with the

formation of a central legislation.

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…Torrens system
• New uniformed law were introduced in 1911
namely:
o Federated Malay States Land Enactment 1911; and
o Registration of Titles Enactment 1911
➢ The Land Enactment dealt with the registration of
country lands less than 100 acres in area on a Mukim
land
➢ The Registration of Titles Enactment dealt with
registry lands (town lands and country land exceeding
100 acres and estates)

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 Salient features of the Torrens
System (1st introduced)
a. All lands vest in the Ruler. Ruler has the power to
alienate land to his subjects either in perpetuity or
for a fixed term of up to 999 years;
b. All dealings in land must be in the prescribed form
and must be duly registered with the relevant
authorities; failure to do so would render the
dealings null and void – case Hj Abdul Rahman &
Anor v. Mohamed Hassan

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Salient features …
c. Upon registration, owners of land are given
indefeasibility of title;
d. The traditional method of acquisition of virgin land
or waste land was abolished;
e. Different types of dealings were introduced such as
transfers, leases and charges.
f. 2 forms of caveats were introduced, ie-registrar
caveat and private caveat;

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…Torrens system
• The Enactments continued in force until repealed by the
Federated Malay States Land Code 1926 -amended in
1928.
• The 1928 Land Code was repealed and replaced by the
National Land Code 1965.

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 1928 FMS Land Code
• A consolidation and improvement of the pre-existing
laws).
• Among the changes introduced:-
a. The principle of indefeasibility of title was more clearly
defined,
b. Adverse possession against individual owners of land is
no longer possible
c. Customary tenure under Adat perpatih is preserved;
d. The strictness regarding compliance with statutory form
and registration as indicated in Hj Abdul Rahman’s case.
e. Specific types of cultivation were enforced.

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… 1928 FMS
• One uniformed Land Code for FMS
o The FMS has a uniformed land law with consistent land
administration procedures.
• Five separate State legislation in each of the UFMS
o Johor Land Enactment
o Perlis Land Enactment
o Kedah Land Enactment
o Kelantan Land Enactment
o Terengganu Land Enactment
• The English Deeds system still prevailing in the Straits
Settlements of Penang and Malacca.
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Towards a National Land Code 1965
 National Land Code 1965 aims at introducing a
uniform system of land law and registration of
titles for all the 9 Malay States and Straits
Settlement.
 It replaces various state enactments in respect of
land matters.
 The National Land Code 1965 (NLC) came into
force on 1st January 1966.

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... NLC 1965
 To harmonize the implementation of National
Land Code with the land law which is based on
English Deed System in Penang & Malacca,
Parliament have approved a National Land Code
Act (Penang & Malacca Ownership) 1963.

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... NLC 1965
 NLC 1965 is applicable to Semenanjung Malaysia
only but nor Sabah & Sarawak.
 The land law for Sabah & Sarawak are governed
under:
o Sarawak Land Code (Cap 81) = based on Torrens
System.
o Sabah Land Ordinance (Cap 68) = not based on
Torrens System.

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... NLC 1965
 Besides the NLC, other legislation relating to land
law passed at the federal level include:
 Land Acquisition Act
 Strata Titles Act
 There are also legislations enacted at the state level
i.e. the various Malay Reservation Enactments.
 Various subsidiary legislation e.g. the various State
Land Rules

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Salient Features of NLC 1965
1) Conclusiveness of the Register
• The register (RDT) will be the conclusive evidence of
one’s ownership and all matters pertaining to the
land
• Twin principles of Torrens system namely
a) the Mirror principle; and
b) the Curtain principle
• Teh Bee v K Maruthamuthu – register is everything
• Creelman v Hudson Bay Insurance Co – the
register is the certificate which is the evidence of the
title 17
Salient Features ...
Mirror principle
o The register reflects (mirror) accurately and
completely the current facts about the registered
owner’s title such as name of proprietor, particulars
of land, area of land etc.
o In other words, the register become a mirror of all
information relating to the land whereby the
necessary information is reflected on both the RDT
and IDT.
o S. 340 of NLC 1965 – the title or interest of any
person or body for the time being registered… shall
be indefeasible.
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Salient Features ...
Curtain principle
o The register become a curtain in all transaction
between owner and other party in respect of the
land. Intended purchaser will only need to look at
register to get the relevant information & need not
go behind the title or beyond the register ie- by
examining the Register.
o S 89 NLC:
Every register document of title duly registered under
this Chapter shall, subject to the provisions of this Act,
be conclusive evidence.
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Salient Features ...
2) Indefeasibility of Title
• Indefeasibility of title and interest is guaranteed
• S. 92(1) of NLC 1965
• S 340 NLC:
• However, there are exceptions

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Salient Features ...
3) Importance of registration
• S. 206(1)(b)
➢ no instrument effecting any such dealing shall
operate to transfer the title to any alienated land
or, as the case may be, to create, transfer or
otherwise affect any interest therein, until it has
been registered
➢ Eg - A purchaser does not acquire legal title until
the transfer to him is registered.
• Dealings recognised under the NLC must be
registered or endorsed. Eg of dealings?

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Salient Features ...
4) Caveat System
• To protect an unregistered interest.
• 4 types of caveats are introduced:
➢ Registrar’s caveat,
➢ private caveat,
➢ lien-holder’s caveat,
➢ trust caveat.

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Salient Features ...
5) No adverse possession
• No adverse possession against the State nor against
the registered proprietor of any land.
• Title to State land can only be acquired by the
process of alienation and no other.
• S. 48 – no matter how long one has occupied the
state land, the land still belongs to State Authority.
• S. 341 – the proprietor shall have right to take action
against the unlawful occupier.

• Sidek Haji Mohammed & Ors v The State of

Perak [1982] 1 MLJ 313
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Salient Features ...
6) Reversion of land to the State
• Alienated land will revert to the State under several
circumstances stipulated in S. 46(1) NLC
(a) upon the expiry of the term (if any) specified in the
document of title thereto;
(b) upon the publication in the Gazette of a notice under
S.130 (forfeiture by Land Administrator)
(c) in the circumstances mentioned in S.351 and S.352 (ie-
death of a proprietor without successors and the
abandonment of title by proprietors)
(d) upon the surrender thereof
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Salient Features ...
7) Equity
• NLC is not concerned with dealings which do not comply
with its requirements. No remedies under NLC.
• S.6 CLA - law of England relating to the tenure or
conveyance or assurance of or succession to any
immovable property or any estate, right or interest
therein is not applicable in Malaysia.
• However, there is nothing in NLC that prohibits the
application of general equitable principles.
• Therefore, general equitable principles apply by virtue of
S.3 CLA to the extent that they are not inconsistent with
NLC.
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Salient Features ...
• S.206(3) NLC where it states that provisions of the
NLC which require that dealings be registered shall
not ‘affect the contractual operation of any
transaction relating to alienated land or any interest
therein.’
• Mahadevan v Manilal & Sons [1984] 1 MLJ 266

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THANK YOU

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