CAVEATING A SPECIFIC PORTION OF LAND UNDER THE MALAYSIAN TORRENS SYSTEM

by S.Y.KOK SUBJECT: Property & Real Estate, Land Malaysia [1995]1 CLJ (Jan)

Introduction 1.01 The latest amendment1 to s. 322 of the National Land Code2 (the NCL) enacted by Parliament in the form of a proviso to s. 322 (1) stipulates, in clear language, that a private caveat may not be entered against a portion of land notwithstanding the fact and law that the caveator, does qualify as one of the four categories of persons or bodies envisaged by Parliament in s. 323(l)3 who may lawfully lodge a caveat under that subsection. By enacting this amendment, the legislature apparently intends to put an end to the conflicting judgments made by our Courts on the old issue of whether or not a private caveat may be entered over the whole of the alienated land whilst the caveator is claiming only a specific portion therein.4 But before the dust on the old issue could settle down, a fresh controversy on this latest proviso to s. 322 has arisen. Certain legal experts have now opined that because of the recent legislative intention to forbid the entry of any caveat over a portion of land, it naturally follows that a purchaser of any subdivided lot or of any condominium apartment (or flat) in any housing scheme (to which a separate issue document of title such as a qualified title or, as the case may be, a strata title has not as yet been issued by the State Authorities) or a purchaser of an undivided share in alienated land or perhaps a lessee of a portion of land is not allowed, by virtue of the aforesaid amendment, to caveat the land at all. Corollary, since the whole, but not a part only, of any undivided share in land may since 1985 be charged under paragraph (b) of the new subsection (1) to s. 2415 which deals with land charges, it is imperative to raise another legal question of whether an unregistered chargee may caveat the whole of the alienated land or only the affected portion of the land or none at all whilst the chargee is in possession of an instrument of charge in Form 16B which has been duly executed by the affected co-proprietor (the chargor) over the whole of the chargors undivided share in the land but not as yet in possession of the issue document of title to the land which is still in the hands of the other unaffected co-proprietor.6 1.02 The purpose of this paper, therefore, is to analyse s. 322 in its original state prior to its amendment and to examine its position subsequently; and, in the process, to discuss the old controversy as well as the new controversy which has arisen recently. Section 322 and the old controversy arising therefrom 1.03 The old controversy confines itself to the question of whether a person whose caveatable

claim affects merely a specific portion of a piece of land, is or is not entitled to enter a private caveat over the whole of the land. This question was first answered by Ismail Khan J., as he then was, in the negative. His Lordship held, in Tee Chin Yong v. Ernest Jeff7 that a person claiming only a portion of land under the former F.M.S. Land Code,8 cannot caveat the whole land. In this case, the caveatee was the registered proprietor of two pieces of land. The caveator alleged that the caveatee had agreed to sell him a portion of each piece, hence he sued the proprietor for specific performance. Earlier, the caveator had lodged a caveat against each piece of land. He was subsequently served with a notice requiring him to withdraw the caveats. Consequently, he applied for an order that the caveats be extended until the disposal of his suit. 1.04 The proprietor-caveatee opposed the caveators application for an extension of the caveats on the ground that the agreements to sell portions of the land did not give the caveator a "caveatable interest" ("caveatable claim", it is submitted, would be a better terminology) but Ismail Khan J., as he then was, ordered the caveats to be removed not on that ground but on the ground that any person claiming a portion only cannot caveat the whole land. His Lordship, at page 119, said: In my view, the question before me can be readily answered by determining whether or not a person claiming an interest in a specific portion of a piece of land - assuming without deciding whether his interest is a caveatable interest - is entitled under the Land Code to lodge a caveat over the whole of the land. It is quite clear that in respect of the remaining portion of the land he is not entitled to lodge any caveat whatsoever. I do not think that a caveat is divisible in the same way that certain clauses in a contract may in proper circumstances be severable from the rest. Therefore, if the caveats lodged by the plaintiff were partially invalid such invalidity renders those caveats wholly null and void and of no effect. They should not have been registered in the first place because the Registrar of Titles had no authority outside the four wall of the Land Code. In registering the caveats he was acting in a purely ministerial capacity and the mere fact of registration cannot validate what was invalid. I accordingly declare the two caveats to be void and of no effect. 1.05 The decision of Tee Chin Yong's case was subsequently followed by Ajaib Singh J. in Woo YokWan v. Loo Pek Chee10 and by Hashim Yeop A Sani J. in Pok Kew Chai v. Yeoh ThianSeng11 which two latter cases touched on corresponding but substantially amended provisions which are contained in the NLC. 1.06 Before analysing in-depth such corresponding provisions which are contained in s. 322 (1) and its recently inserted proviso as well as ss. 323 and 324, a review of the aforesaid two remaining decisions of the High Court in Seremban will now be made. In Woo Yok Wan's case, Ajaib Singh J., when ordering the caveat to be removed from the register document of title, at pages 159I to 160D; said: With respect, I agree entirely with the decision in Tee Chin Yong v. Ernest Jeff. Under s. 323(2) of the National Land Code a person wishing to apply for the entry of a caveat has to do so in a prescribed form specifying therein the nature of his claim and whether the caveat is to be expressed to bind the land or a particular interest only. A person whose interest extends

only to a specific portion of a piece of land is not entitled to enter a caveat over the whole of the land. The interest of the plaintiff (caveator) in the present case before me extended to only a portion of the land in Lot 947 and her entry of a caveat against the whole of the land was, therefore, null and void and of no effect. The agreement of l April 1964, did provide that the plaintiff (caveator), her employees, agents and customers shall have access to the rear portion of the premises and have the use of the kitchen, bathroom and lavatory but this privilege, in my view, did not amount to anything more than a mere licence which gave the plaintiff no right in the nature of an easement nor to any registrable interest of any kind under the provisions of the National Land Code. The Land Code provides for the entering of a private caveat to enable the caveator to protect his interest until his claim is adjudicated upon by the Court. The entry of a caveat, nevertheless, is a blot on the title to the land concerned and the Court will not permit that blot to be any larger than what the caveator is entitled to enter. I, therefore, hold that the plaintiff whose claim is restricted to only a portion of the land is not entitled to enter a caveat over the whole of the land comprised in Lot 947 and I order that the caveat be removed forthwith. 1.07 In the third case, Pok Kew Chai v. Yeoh Thian Seng,12 a registered proprietor of land in Seremban on which stood a shophouse charged it to a person as security for a loan. Subsequently, the proprietor leased the whole of the ground floor of the shophouse to the caveator. The chargee tried to coerce the caveator to leave the premises. The caveator then caveated the whole land. The chargee, as an aggrieved person, applied to Court to have the caveat removed. Hashim Yeop A Sani J. ordered the caveat to be removed. His Lordship, at page 223F to H; said: The next question for determination is whether the caveat lodged by the a applicant is a valid one. As referred to earlier, the entry of the caveat was expressed to bind the whole of the land whereas in effect the interest of the applicant (caveator) was only in respect of the ground floor of the premises. The applicant also failed to particularise his interest in the application for entry of private caveat (same exhibit marked YTS5). The agreement concerns only the ground floor of the premises as set out in the Statutory Declaration of the applicant required under s. 323(3) of the National Land Code (Exhibit 'YTS6' in the affidavit of the first respondent). It was held by Ismail Khan J. (as he then was) in the case of Tee Chin Yong v. Ernest Jeff that a person claiming an interest in a specific portion of a piece of land is not entitled to lodge a caveat over the whole of the land. 1.08 Thus, flowing from such decisions of the High Court, the old controversy arising therefrom is whether the Court is correct or incorrect in barring a caveator from entering a caveat over the whole land when his claim is only narrowed down to a specific portion of the caveatees land. Furthermore, since such judicial decisions forbid such a caveator from caveating the whole of the land, does the Court, by implication, empower the caveator claiming only a portion of the land to caveat such a portion in order to protect his caveatable claim? Could there be a mix up in the use of terminology between "application for entry" and "entry" itself and "effect" of a private caveat? In order to answer such legal issues, a

detailed study of the relevant provisions contained in the caveat sections of the NLC is necessary. In the first instance, s. 322(i), in its amended state, is set out hereunder: 322. (1) A caveat under this section shall be known as a"private caveat", and (a) may be entered by the Registrar on the register document of title to any land at the instance of any of the persons or bodies specified in s. 323: (b) shall have the effect specified in sub-section (2) or (3) , according as it is expressed to bind the land itself or merely a particular interest therein: Provided that such a caveat shall not be capable of being entered in respect of a part of the land.13 Registrar's duty to enter a private caveat on the register document of title 1.09 Apart from the aforesaid three decisions of the High Court which bar the entry of a private caveat over the whole of the alienated land when the caveator's claim is restricted to a portion of it only, one cannot find any provision in the NLC which expressly bars the entry of such a caveat protecting such a caveatable claim. On the contrary, s. 322 (1) (a), read in conjunction with s. 323(2) and the wordings in Form 19B14 of the NLC, imposes on the Registrar or, as the case may be, the Land Administrator, a statutory duty to, enter a private caveat on "the register document of title to any land."15 The Registrar, therefore, is not obliged to enter a caveat on a portion of the land. On the contrary, there are express provisions found in s. 322(i)(a) which place a statutory duty on the Registrar to enter a caveat over the whole of the land and not a part only because "the register document of title to any land" bears reference and has to relate to the whole of the alienated land itself. A document of title to land does not relate to only a part of alienated land;" the land title has to relate to the whole of the land itself. This point must be clearly understood. 1.10 Thus, whenever and wherever the Registrar receives an application for entry of a private caveat at the instance of a caveator who, under s. 323 (1) (a),17 claims either: (a) a title to land18 as illustrated in box (i) of the Chart19 attached hereto; or (b) a registrable interest in land20 as illustrated in box(ii) of the Chart; or (c) a right21 to such title to land [box (iii)]; or (d) a right22 to such registrable interest in land [box (iv)]; the Registrar is duty-bound, by virtue of s. 322 (1) (a), to enter the private caveat on the register document of title to the land in the manner which has been specified in 324 (2) ; no one else but the Registrar or, as the case may be, the Land Administrator, is authorised by the legislature to enter such a caveat on the register document of title. No such entry will be made

on the issue document of title. 1.11 So long as the caveator observes and complies with the provisions contained in subsections (2) and (3) to s. 323 of the NLC by applying to the Registrar for an entry of a private caveat in Form 19B23 and such application is accompanied by a statutory declaration which is affirmed by the caveator or his advocate and solicitor; the Registrar is then placed under a statutory duty24 to enter the caveat on the register document of title that relates to the wholeof the land in the manner prescribed in s. 324(2), including a statement expressly specifying that the effect of the caveat is to bind the land itself or a particular interest therein only. By so doing, the Registrar is said to be exercising "a purely administrative function25 or acting in his ministerial capacity.26 The Registrar, under such circumstances, is naturally not concerned with nor is he required by statute to enquire into the validity of the claim on which the caveat is based.27 Whether the caveator is a person or body specified or envisaged by the legislature under s. 323 or whether the claim on which the caveat is based is valid or void are matters to be determined by the Court. Thus, the Registrar has no power and it is not open to him to enquire into the validity of such matters because by doing so, the Registrar would be usurping the powers of the Court.28 Entry of a private caveat 2.01 Hence, from the above observations, it is abundantly clear that upon the receipt of an application for entry of a private caveat, the duty is on the Registrar and on no one else to enter the caveat on the register document of title which title, of course, relates to the whole of the land concerned. Such a register document of title is issued and kept in folios in the land registry. There is absolutely no question of a caveat being entered over a portion of the land; every entry must be over the whole of the land to which the register document of title relates or not at all. There must be no misunderstanding or confusion made between "entry" and "application"29 of a private caveat. The application for entry is made by the caveator. The entry of the caveat itself on the register document of title is made by the Registrar. The entry must be in the manner laid down in s. 324 (2) , that is to say, the Registrar shall cause the private caveat to be entered by making an endorsement on the register document of title as well as making a statement therein specifying: (a) whether the caveat is to bind the land itself, or a particular interest therein only; (b) the time from which it is effective (being the time of receipt of the application) and (c) the reference under which the application is filed such as the presentation number, the caveat volume number and the folio number. 2.02 When the entry has been made on the register document of title, then notwithstanding whether the caveat is to bind the whole land or a particular interest therein, the Registrar is duty-bound to inform the proprietor of the land which is bound by the caveat or, as the case may be, the encumbrancer of the particular interest which is bound by the caveat, of the presence of the caveat30 via Form 19A. This will enable the proprietor of the land or, as the case may be, the aggrieved holder of the particular interest which is affected by the caveat to

apply to the Registrar under s. 326 or, as the case may be, under s. 327 for the removal of the offensive caveat.31 Such is the nature of the duty which is imposed on the Registrar whenever he deals administratively with an application for the entry of a private caveat. Application for entry and duty of the caveator 3.01 As discussed earlier on, any application for entry of a private caveat must be made in the statutory prescribed Form 19B which must be duly attested in accordance with s. 211.32 The duty of the caveator is to specify the facts which his caveatable claim is founded upon. 32a Furthermore, the duty is on the caveator to ensure that his application is accompanied by the prescribed fee and his claim is verified by a statutory declaration duly affirmed by himself or by his advocate and solicitor.33 Therefore, it is imperative that the caveator must strictly observe and abide by the following statutory requirements. Otherwise, he runs the risk of having his caveat cancelled or removed for want of compliance with the caveat provisions of the NLC. Hence, the application for entry of a private caveat must: (i) be in Form 19B; (ii) specify the nature34 of the claim on which the caveators application is based; (iii) specify the quantum of the claim, that is, whether the caveat is to bind the whole land or a particular interest only;35 (iv) be accompanied by the prescribed fee; and (v) be accompanied by a statutory declaration duly affirmed either by the caveator or his advocate and solicitor verifying the caveators claim as set out in his application. Binding the whole of the land 4.01 This branch of the caveat provisions does not present much of a problem. The most common example of a caveat which binds the whole of the land is the case of a bona fide purchaser of a piece of land for valuable consideration.36 In this instance, the purchaser has under the modified Malaysian Torrens System, a right to claim a title to the land which belongs to his vendor. This right arises from his enforceable sale and purchase agreement.37 This contractual right will, eventually, crystallise38 and convert into a registered title to the land itself the moment an instrument of transfer has been duly registered by the Registrar of Titles or, as the case may be, the Land Administrator. Similarly, a caveat may be entered by a sleeping partner to bind the whole of the land if the land is purchased for the partnership with funds from the partnership account but is registered only in the name of an active or managing partner,39 or by a beneficiary claiming the whole land under a trust.40 In any of such instances, the caveator claims either a right to a title to the land41 or the title to the land itself.42 It is then the caveators duty, inter alia, to specify in clear language that the effectof his caveat is to bind the whole land. Since his claim relates to the whole land, it is only proper for him to state that the caveat is to bind the whole land.

4.02 However, it would be wrong to assume or rationalize that, because a caveator is claiming the whole of the land, he is, therefore, entitled to caveat the whole land. This will definitely lead to confusion. In order to achieve a better understanding of these caveat sections and in particular, ss. 322, 323 and 324, it is essential to distinguish the different duties which have been imposed by the NLC on the Registrar and on the caveator respectively because to mix the duties up will definitely lead to a wrong construction and a poor understanding of such caveat provisions. If, for instance, a caveator is claiming the whole of the land via his caveatable claim either to a right to a title to land (which arises from his enforceable sale and purchase agreement) or is claiming a title to the land itself (which arises from an instrument of transfer duly executed by the registered proprietor in favour of the caveator)43 the duty which is imposed on the Registrar by s. 322 (1) is to enter the caveat on the register document of title, i.e., to place a caveat over the whole land. If, for example, the caveator is claiming only a particular interest in the land (such as the whole of an undivided share therein) , the duty which is placed on the Registrar by s. 322 (1) remains the same, i.e. to enter the caveat over the whole land and not a part only. There are no two ways about it as far as the Registrars duty is concerned when performing this purely administrative act. The Registrar is not required, under s. 324(2), to make an entry on the corresponding issue document of title. Neither can he enter a caveat over a part of the alienated land. That is why the issue document of title is not required f or production to the land registry or land office when the application for entry in Form 19B is made by the caveator. 4.03 But as far as the caveator is concerned, there is an obligation placed upon him by s. 323 (2) to specify that the effect of the caveat binds either the whole land or a particular interest only, depending on the nature of his caveatable claim.44 From such an observation, it is submitted that it would be wrong to hold the view that a caveator is entitled to caveat the whole land because he is claiming the whole land itself. A proper ratio decidendi for any judicial pronouncement on the true construction of the caveat section in the NLC would be that a caveator is entitled to caveat the whole land not because he happens to be claiming the whole land but because s. 322 (1) (a) expressly authorises and imposes a duty on the Registrar to give effect to the caveator's application by entering a caveat over the whole land in the manner specified in s. 322 (1) (a) and s. 324 (2). The caveators application for entry of a private caveat is one thing; the effect of his caveat is another. Likewise, the Registrar is similarly duty-bound to enter the caveat over the whole land even if the caveator is claiming a particular interest only. The duty of the Registrar should not be mixed up with that of a caveator. Section 322 (1) (b) , when read in conjunction with s. 323 (2) of the NLC, spells out the duty of the caveator to "specify" the quantum of his claim which has nothing to do with the "entry" of the caveat - the latter being an administrative act which can only be performed by the Registrar alone and no one else. Meaning of a particular interest 5.01 The term "aparticular interest" appears in quite a number of subsections in the caveat provisions45 of the NLC but its meaning has not been defined.46 In any attempt to construe the meaning of "a particular interest"in alienated land, assistance may perhaps be derived from the wordings which were designed and used by the legislature in s. 324(3) and in Form 19A. This statutory form is, basically, a compulsory notice which is required to be sent by the

Registrar to the caveatee informing him of the presence of the caveat. This information will enable the caveatee to decide whether or not to challenge the entry of the caveat and consequentially, to cause its removal or, alternatively, to allow the caveat to remain on the register document of title. Form 19A specifies that the notice must be sent to the registered proprietor of the land that is affected by the caveat if the caveatee is the owner of the land; otherwise, the notice may be sent to the registered co-proprietor or the registered encumbrancer including the registered lessee (also the sub-lessee) or, as the case may be, the registered chargee.48 Construing from the wordings contained in Forms 8, 9, 19A, 19B and 19C and judging from the procedure set out in the caveat provisions of the NLC for the entry and removal of private caveats, it is quite obvious that the term "aparticularinterest" which appears in those various caveat provisions49 bears the meaning of a registered interest in land; namely, an interest which has already been registered on the Torrens register. Such a particular registered interest in land may take the form of aregistered title to an undivided share in the land if the registered interest is of a proprietary nature or alternatively, it may take the form of a registered encumbrance if the registered interest is of an encumbrancing nature such as a registered lease, (including a registered sublease), a registered charge but excluding, by inference, a registered easement.50 5.02 Under the Malaysian Torrens system of registration of titles, the entitlement of a person such as a caveator claiming a contractual right under an enforceable contract of land dealing or a registrable interest in land which arises from an instrument of dealing in land undergoes a process of conversion and crystallization from "a right" to "an interest inland" as well as the registration process of divesting and vesting of "titles" and "registered interest" in land. If his enforceable agreement is not challenged by due process, such as in a non-contentious conveyancing matter and if all conditions precedent have been observed and or performed, he moves on from the contract stage (either box (iii) or box (iv) depending on whether the contract is for the sale of land or for the leasing or charging of land) to a stage that concerns itself with instruments of dealings in land which instrumental stage is also contractual in nature,51 and thereby obtains an instrument of dealing in land either in the form of an instrument of transfer, or, as the case may be, an instrument of lease or charge. Both these contract stage and land dealing stage are considered to be in the pre-registrationstage [see boxes (i) to (iv) in the Chart]. However, upon the registration of his instrument of dealing, he obtains, in the case of an outright sale, a registered title to the land or a title to the whole of an undivided share in land, depending on what has been purchased. The States magical act of registration of the instrument of transfer of land will divest the registered title from the registered proprietor-caveatee and vest that particular title upon the caveator and turn the latters legal capacity into a newly registered proprietor of the land.52 It follows that, in the case of a transfer of a registered encumbrance (registered lease and registered charge only),53 the State's act of registration of the transfer of a registered encumbrance will divest that encumbrance from the encumbrancer-caveatee (i.e., the registered lessee or the registered chargee) and, at the same time, vest that encumbrance (i.e., the registered lease or, as the case may be, the registered charge) upon the transferee-caveator. In the case of an instrument of dealing in land, the registration of such an instrument of dealing duly executed by the registered proprietor will not divest the registered title from the registered proprietor but merely vests a registered interest in the proprietors land in the form of a registered encumbrance in favour of the newly registered lessee or, as the case may be, the newly

registered chargee or the registered proprietor of the dominant land who has been newly registered as the grantee of an easement. 5.03 Therefore, the term "a particular interest", appearing in many of the caveat sections, cannot mean the pre-registration stage of contractual rights or, as the case may be, of registrable interests in land held by a caveator as envisaged in s. 323 (1) (a) of the NLC and so opined, by Ajaib Singh J. in Woo Yok Wan v. Loo Pek Chee.54 The term "aparticular interest", in its proper context, must take on the meaning of a registered interest in land which is not acquired as yet by the caveator (because he has not yet proceeded from the pre-registration stage to the post-registration stage) but is quite positively held by the caveatee who would be a registered co-proprietor of an undivided share in land or, as the case may be, a registered encumbrancer (such as a registered lessee or chargee but not a grantee of an easement). This observation is further supported by the provisions which are contained in s. 324 (3) of the NLC and is quite in line with the judgment of the Federal Court in Vangedaselam v. Mahadevan.55 5.04 Section 324(3), which is not touched by the 1984 amendment to the NLC, reads as follows: (3) As soon as may be after the entry of any such caveat, the Registrar shall serve a notification in Form 19A upon the proprietor of the land bound thereby or, in the case of a caveat binding a particular interest only, upon the person or body in whom that interest is for the time being vested. (Emphasis added). 5.05 Since the Registrar is only obliged to enter a caveat on the register document of title only and not on the issue document of title,56 there is therefore no way in which an aggrieved registered proprietor or, as the case may be, an aggrieved holder of a particular registered interest bound by the caveat (i.e., either a registered co-proprietor or a registered encumbrancer) can be aware of the presence of a private caveat which binds the land or, as the case may be, the whole of an undivided share in the land or the registered encumbrance so that the aggrieved proprietor, the aggrieved co-proprietor or the aggrieved encumbrancer may decide whether or not to take an action against the caveator for the removal of the caveat either under s. 326 or s. 327 according to the legal capacity of the applicant who is aggrieved by the presence of the offensive caveat.57 In order to plug this loophole, the notification provisions contained in s. 324 (3) are enacted so that any aggrieved proprietor or, as the case may be, any aggrieved co-proprietor or encumbrancer may be informed of the presence of such a caveat. Hence, by virtue of this subsection (3) to s. 324, the onus is on the Registrar to serve the requisite notice in Form 19A on the aggrieved proprietor if the caveat is expressed by the caveator to bind the whole land. Alternatively, if the caveat is expressed to bind a particular interest only,58 it is the duty of the Registrar, as soon as possible after his entering the caveat on the register document of title, to notify the registered co-proprietor or where appropriate, the registered encumbrancer that his undivided share in land or, accordingly, his registered encumbrance is bound by the caveat if such a caveat specifies that it binds a particular interest only and not the whole land. Thus, from the phrase "uponthe person ... in whom that interest is for the time being vested" which appears in s. 324(3), it cannot plausibly be suggested that the word "interest" enacted therein bears any wider meaning than an

interest in land that has already been registered, at the time of the caveat application, either in the form of a registered title to an undivided share in land or in the form of a registered lease (including a registered sublease) or a registered charge.59 5.06 Therefore, from such an analysis, it is plain that the term "a particular interest" can only mean an existing registered interest in land which belongs to and is held by the caveatee at the time of entry of the caveat. The registered interest in land may take the form or either a registered title which relates to an undivided share in alienated land or a registered encumbrance (other than an easement)60 which, under the cardinal principle of indefeasibility of title to land that is enshrined in all Torrens jurisdictions,61 is the best form of interest in land. This is so because a registered interest in land binds the whole world. A registered interest in land is a State guaranteed title to land or a State guaranteed registered encumbrance and does not need any statutory protection for fear of being overridden by any subsequent claim from a rival claimant except for the statutory exceptions of fraud, misrepresentation and etcetera as listed in s. 340 (2). The "nature" and "quantum" of a caveatable claim 6.01 As already mentioned,62 the provisions contained in s. 323 (2) of the NLC63 impose on each and every caveator a mandatory duty to specify, in his application for entry of a caveat in Form 19B, the following: (a) the nature of his caveatable claim; and (b) the quantum of such a caveatable claim. (a) The nature of a caveatable claim 6.02 The nature of a caveatable claim relates to what a caveator holds or alleges to hold at the time of entry of his caveat. This is quite different from the quantum of the caveatable claim which does not relate to what a caveator can possibly hold at the time of entry of the caveat but to what a caveatee has positively been registered with on the register document of title at that particular time of entry. The nature of a caveatable claim, therefore, concerns itself only with what a caveator has or alleges to have (but not yet proven) during the pre-registration stage. During this pre-registration period, what the caveator can possibly have is derived from his enforceable contract of land dealing or from the instrument of dealing in land. Thus, the caveator may have a contractual right to a dealing in land under the initial contractual stage (which is a kind of pre-registration stage) or an unregistered registrable interest in land arising from the instrumental stage which is also a kind of pre-registration stage.64 Such a contractual right to a dealing in land or perhaps an unregistered registrable interest in land takes one of the following forms: (a) an enforceable contractual right to a title to land (the third limb to s. 323 (1) (a) that is, a right to a registered title arising from an enforceable agreement of sale and purchase of land);65 or

(b) an enforceable contractual right to an unregistered registrable interest in land of a nonproprietary or encumbrancing nature [the fourth limb to s. 323(i)(a) - namely, a right arising from an enforceable agreement to obtained register an instrument of lease (including sublease), or an enforceable agreement to obtain and register an instrument of charge or grant of easement];66 or (c) a claim to a title to land in the form of an unregistered registrable interest in land (also known as a registrable interest) of a proprietary nature (the first limb to s. 323 (1) (a) namely, a registrable interest in land arising from an instrument of transfer of land or a transfer of the whole of an undivided share in land which has been validly executed by the registered proprietor or, accordingly, by the co-proprietor but has not, as yet, been presented to the land registry or land office for registration];67 or (d) an unregistered registrable interest in land or otherwise known as a registrable interest in land of a non-proprietary or encumbrancing nature (the second limb" to s. 323 (1) (a) - that is, a registrable interest in land arising from an instrument of lease (including sublease), an instrument of charge or an instrument of grant of easement validly executed by the registered proprietor but has not, as yet, been presented to the land registry or land office for registration.]69 6.03 At that point of time of entry of the caveat, the caveator does not have a registered interest in the land as yet because he is still considered to be in the pre-registration stage. At that particular point of time, the registered interest, if it is in the form of a registered title to land, would be vested in the caveatee who happens to be the registered proprietor. If that registered interest is in the form of a registered encumbrance it would be vested in the caveatee who must be, in this instance, the registered encumbrancer (the registered lessee or registered chargee). It must be clearly understood that it is only when registration has taken place (which will happen at a much later point of time when compared with the time of entry of the caveat) that what the caveator has held previously, in the form of either an enforceable contractual right or perhaps a registrable interest in land is transformed (under the process of conversion and crystallization and the Torrens registration process of divesting and vesting of registered titles and registered interests in land)" from a contractual right (in a proper instance) into a registrable interest in land. Eventually, it culminates, in the final process of registration by the State, into a far superior registered title or a registered encumbrance which binds the whole world and requires no protection from the system of private caveats. This is so because registration divests from the registered proprietor or registered encumbrancer the registered title or, as the case may be, the registered encumbrance and, at the same time, vests the same unto the caveator when the caveator has successfully proved his caveatable claim or, in the case of a non-contentious matter, the caveator has obtained from the caveatee and presented the relevant instrument of dealing for registration at the land registry or land office. 6.04 Therefore, it is important to note that what a caveator holds during the pre-registration time of creation of that registrable interest or, as the case may be, that enforceable right to title to land or to registrable interest in land of a nonproprietary or encumbrancing nature does not bind the world at large. If left unprotected, it is subject to being overridden by a registered title or a registered interest of a subsequent bona fide purchaser for value. Accordingly, the

Malaysian system of private caveats has been designed to accord statutory protection71 to such enforceable rights as well as unregistered registrable interest in land until they are converted or crystallized into the best kind of interests in land (registered titles and registered encumbrances) which will then, under the doctrine of indefeasibility of titles, require no further protection under the caveat system. To avoid confusion, it is of equal importance to note that at the time of entry of a private caveat, whilst "the purpose" of the caveat is to protect a caveators enforceable right to a title to land or to a registered interest in land, yet, at the same time, "the effect" of that caveat is to bind the caveatees registeredinterest in the form of a registered title to the whole land or an undivided share in land or in the form of a particular encumbrance only. In order to achieve a proper understanding of the caveat provisions, it is essential to take note of this fundamental difference and be able to distinguish the intermediate nature of a caveators registrable interest in land or a right to such an interest from the ultimate nature of his corresponding caveatee's registered title or, as the case may be, registered encumbrance. The two terms "registrable interest inland" and "registered interest in land" point to two different concepts of opposing effects. They cannot and must not be used interchangeably. Thus, in Vangedaselam v. Mahadevan,72 while it was correct for the then Federal Court to hold the view that the term "a particularinterest only" refers to the particular interest73 of the registered proprietor, yet it was wrong for the Federal Court, with the deepest respect, to hold within its next breath that the description, as required by s. 323(2) and Form 19B, is to cover some other pre-registration concepts other than the post-registration concepts of a registered title or the registered encumbrance of the caveatee: such other preregistration concepts being in the form of an unregistered registrable interest in land of a proprietary nature ("a claim to a title to land"); an unregistered registrable interest in land of a non-proprietary or encumbrancing nature ("a registrable interest in land") ; a right to registrable interest in land of a proprietary nature (a right to such a title) or a right to registrable interest in land of a nonproprietary or encumbrancing nature ("a right to such interest" or"a right to a registered encumbrance").74 Therefore, it is submitted with respect that the Federal Court should not, after holding quite correctly that the term "a particular interest only," when read in conjunction with the phrase "upon the person or body in whom that interest is for the time being vested"which appears in s. 324(3) should mean the registered proprietors interest in land which is a type of registered interest,75 subsequently in the same judgment, interchanged that registered interest of the caveatee with an entirely different category of interest and contractual right of the caveator which exists only during the pre-registration stage. It was not proper for the Court to suggest that the caveator, when describing in Form 19B the quantum of the caveatable claim which relates to the postregistration stage, can plausibly use the pre-registration phrase such as "title to, or a registrable interest in or a right to title or interest..."76 This phrase symbolizes entirely different types of pre-registration caveatable claims which the caveator can allege against his caveatee under s. 323 (1) (a) . This phrase which was used by the Federal Court does not actually describe or identify the registered interest of the proprietor-caveatee or encumbrancer caveatee which is to be bound by the caveat as required by law. The proper way in which the caveator can abide by and comply with this statutory requirement is to describe in paragraph one of Form 19B the quantum of his caveatable claim.What should be described in the Schedule will be the particulars of the title to the land concerned or, wherever appropriate, the particulars of the registered encumbrance.

(b) The quantum of a caveatable claim 6.05 The quantum77 of a caveatable claim relates to what a caveatee actually holds in the subject land which will be bound by the entry of the caveat. By virtue of the States previous act of registration of an instrument of dealing which was executed in favour of the caveatee, a registered interest in land has already been divested from his predecessor and simultaneously vested in him. This registered interest in land takes the form of either a registered title to land or a registered encumbrance over the subject land. The nature of such a registered interest in land points quite clearly to the post-registration stage. Please see the right hand column of the attached Chart. 6.06 Thus, if the registered proprietor-caveatee is selling his land to the caveator, it is only logical that the quantum of the caveatable claim is specified to bind the whole land. However, if only the whole of an undivided share in land is being dealt with by a registered coproprietor by way of either a transfer or a charge,78 then, although the Registrars standard duty is to enter the caveat over the whole and not a part of the land by virtue of s. 322 (1) (a),79 yet the quantum of the caveatable claim has to be specified by the caveator to bind that particular interest in land of the co-proprietor concerned.80 Similarly, where a registered encumbrance of the registered encumbrancer-caveatee (such as a registered lessee or sublessee or a registered chargee) is being dealt with by way of a transfer of the registered encumbrance, then, the quantum of the caveatable claim has to be specified by the caveator to bind that particular registered interest in land which belongs to the registered encumbrancer-caveatee. The private caveat can only bind what that caveatee already has and is currently dealing with, in the form of either a registered lease (including a registered sublease) or a registered charge although the standard duty of the Registrar under such circumstances is still to enter the caveat over the whole land. 6.07 Thus, it may be observed that while the nature of a caveatable claim points to the preregistration stage and the caveat is entered to protect what the caveator has or alleges to have at this early stage, yet the quantum of the claim points to the post-registration stage. That same caveat will bind the registered interest in land of the registered proprietor-caveatee or that of the registered co-proprietor-caveatee concerned or that of the registered encumbrancercaveatee, as the case may be. Failure to take note of this simple but yet important distinction will only cause confusion and misunderstanding of the caveat provisions of the NLC. The effect of a private caveat 7.01 A private caveat accords statutory protection to a caveatable claim. It prevents the enforceable right to a dealing in land or an unregistered registrable interest in land of the caveator from being overridden by any subsequent bone fide purchaser for value of a registered title or a registered interest in land.81 The manner of granting such protection is by giving statutory effect to a private caveat to bind the caveatees postregistration stage of a registered title to land or to the whole of an undivided share in land or of a registered encumbrance; thus preventing the disposal of such a registered interest by the caveatee to a third party to the detriment of the caveator whose claim still remains unsettled at a time when

the caveatee attempts to dispose off his registered interest.82 7.02 In fact, subsections (2) and (3) to s. 322 have spelt out the effect of a private caveat which binds respectively the land itself or a particular interest only. Where a caveat is expressed to bind the whole land, its effect is to prohibit the registration, endorsement or entry on the register document of title thereto of any instrument of dealing in respect of the whole land executed either by or on behalf of the registered proprietor. It includes any certificate of sale relating thereto, or any claim to the benefit of a tenancy exempt from registration granted by the registered proprietor or any lien-holders caveat,83 thereby protecting the caveator's claim from being overridden by an adverse claimant in the form of a subsequent bona fide purchaser for value of a registered title or perhaps a registered interest in land such as a registered encumbrance.84 Where a private caveat is expressed to bind a particular interest only, the corresponding statutory prohibition relates to that registered interest only. This takes the form of either a registered title to the whole of an undivided share in the land or a registered encumbrance over the land.85 Place for describing the nature and quantum of a caveatable claim 8.01 In any application for entry of a private caveat, the caveator has to describe the nature of his caveatable claim in paragraph two in Form 19B by setting out briefly the facts upon which his claim is founded.86 Such facts must be verified by a statutory declaration to be sworn by the caveator. A declaration which is sworn by his advocate and solicitor is also permissible.87 Meanwhile, the caveator must also state the quantum of his caveatable claim. He does that by specifying in paragraph one of Form 19B that his caveat is to bind the land itself or, as the case may be, a particular interest only in land which, of course, is described in the Schedule of Land and Interest.88 Thus, it is beyond doubt that the proper place in which a caveator may describe the nature as well as the quantum of his caveatable claim is to be found in paragraphs two and one respectively in Form 19B. However what is to be inserted in the Schedule as illustrated in Form 13A would be the particulars of the title to the land concerned or in appropriate instances, the particulars of the registered encumbrance which belongs to the encumbrancer-caveatee. Description of the quantum of a caveatable claim 9.01 The manner in which the quantum of a caveatable claim may, however, be problematical if an erroneous interpretation of the caveat provisions is adopted. One must be able to distinguish the pre-registration nature of a caveators caveatable claim which is alleged by the caveator but not yet proven from the postregistration nature of a caveatees registered interest in land.89 Any attempt to interchange the nature of caveatable claim with its quantum will positively lead to a wrong construction of the caveat provisions in the NLC. Thus, in Vangedaselam case, the Federal Court, when examining the manner in which a particular interest may be described, opined that a particular interest (the quantum of the caveators claim) may be described in the following manner: "title to, or a registrable interest in or a right to title or interest, in that portion approximately 18,000 sq. ft. in area comprising the tindalls house now occupied by the caveator".90 This phrase, in substance, is adopted by the Federal

Court from the provisions contained in s. 323(i)(a) which deal with the four types of caveatable claims made open to a caveator to support the entry of a private caveat during the pre-registration stage.91 As discussed earlier,92 such a phrase denotes what the caveator holds or alleges to hold (but not yet proven unless and until being challenged by a registered proprietor or an aggrieved person affected by the presence of the caveat) at the time of entry of his private caveat. It is therefore submitted, with respect, that it was not open to the Federal Court to resort to the usage of preregistration land law concepts of enforceable rights as well as unregistered registrable interests in land of a caveator when describing the post-registration quantum of a caveatable claim whose very nature points primarily to registered titles and registered encumbrances. One should not mix up the pre-registration nature of a caveators caveatable claim with the post-registration nature of a caveatees registered interest in land.93 9.02 There are numerous instances whereby a caveat may be expressed by the caveator to bind the whole land or a particular interest only. Where a caveator, for example, claims a title to land or alternatively, where he claims an enforceable right to a title to land, he is in fact claiming the whole land from his caveatee and he could ultimately gain a title to the whole land if his caveatable claim is well-founded at law. Thus, bearing always in mind that in every application for entry of a private caveat, the nature of a caveatable claim has to be described by setting out the facts in paragraph two of Form 19B .94 Perhaps the following illustrations may explain the manner in which the quantum of a caveatable claim can be properly specified by the caveator. Illustration 1 - An outright sale of the whole land 9.03 In this first and most common example, where there is an outright sale of the whole land by the registered proprietor caveatee, the caveat is to protect the caveator's claim to a right to an unregistered registrable interest in land of a proprietary nature or a right to a registered title to land during the preregistration period. In such an instance, the quantum of the claim has to be expressed by the caveator to bind the land itself. He does this by so specifying in paragraph one of Form 19B that the quantum of his caveatable claim is to bind the whole land. In addition to this, the caveator has to describe the land in the said Schedule. He may do this by filling in the blanks in columns (1), (2) and (3) of the Schedule of Land and Interest with the necessary particulars of title to the land concerned and by inserting the word "kesemua"95 in column (4) of the Schedule. Illustration 2 - A sale of a subdivided lot in a housing scheme 9.04 Where there is a sale and purchase of a subdivided lot in a housing estate but an individual qualified title to the lot has not, as yet, been issued by the appropriate authority, the caveator has to specify in paragraph one of Form 19B that the quantum of his caveatable claim is to bind a particular interest only. In addition, the caveator has to fill in the particulars of the "master" title in respect of the whole land on which the subdivided lot forms a portion only in the columns provided for in the Schedule of Land and Interest. The word "kesemua" may then be inserted in the said column (4). To be emphatic, the caveator must then describe in paragraph two of Form 19B that he is claiming a subdivided lot only and not the whole

housing scheme land. 9.05 Thus, in the case of Mosbert Berhad (In Liquidation) v. Chatib bin Kari,96 the purchaser claimed a right to title to a subdivided lot which was purchased by him from the housing developer. No separate title relating to the subdivided lot had been issued by the State Authority. It is obvious that it would be wrong for the purchasers caveat to bind the whole land rather than the particular subdivided lot which was purchased by him. In such an instance, the caveat provisions would require the caveator to stipulate that only that particular subdivided lot and not the whole of the housing scheme land is affected by his caveat although the caveat may be entered by the Registrar over the whole housing scheme land. The caveator could achieve this aim by describing, in paragraph two in Form 19B, the nature of his claim as: "a title to an undivided share in the land measuring approximately 1, 600 square feet". Where a caveator claims a specific portion of land which can be reduced into a fraction (e.g. an undivided 1/2, 1/3, 1/4 or 1/253 share, etc.) , then the caveators duty is to specify in paragraph two in Form 19B the words; "a title to the whole of an undivided 1/2 share in the land" etcetera, so as to warn any third party who subsequently deals with the registered proprietor that an undivided 1/2 share in the land is subject to the caveators claim. Illustration 3 - A sale or a charge of an undivided share in land 9.06 Where there is a sale98 or a charge96 of the whole of an undivided share in land by the registered co-proprietor, the Registrars duty is to enter likewise the private caveat over the whole of the land.100 But before such an entry is made by the Registrar, it is the duty of the caveator to ensure that the nature of his caveatable claim is set out in paragraph two in Form 19B together with the facts upon which the claim is founded.101 Thereafter, the caveator should specify in paragraph one in Form 19B that his caveat is to bind not the land itself but only a particular interest in the land concerned because he is buying only an undivided share in the land from the registered co-proprietor, or he is having a charge created in his favour by the registered co-proprietor. The caveator should not, with respect, describe the quantum of his caveatable claim in the manner which was suggested by the Federal Court in Vangedaselam v. Mahadevan.102 9.07 In addition, the caveator must complete the Schedule of Land and Interest to Form 19B by describing the relevant particulars of the title to the whole land in columns (1), (2) and (3) of the Schedule and lastly, by inserting in column (4) the word "kesemua" notwithstanding that only an undivided share in the land is claimed. This is so because the entry of private caveat has to relate to the whole land by virtue of s. 322 (1) (a). However, the caveator must not forget to specify in paragraph one in Form 19B that his caveat will affect a particular interest only. Illustration 4 - A transfer of a registered encumbrance 9.08 In the case of a transfer of a registered encumbrance by a registered lessee (including a registered sublessee)103 or by a registered chargee104 in the capacity of a transferor, as distinct from the usual transfer of a piece of land or an undivided share in land by the registered proprietor or by the registered coproprietor, the caveator has to specify in paragraph

one in Form 19B that the quantum of his caveatable claim is to bind the land itself because the pending lease or charge relates to the whole land. But where the previously registered lease, being the subject matter of a transfer, relates to a part of the land only105 or where the previously registered charge covers the whole of an undivided share in land and not the whole land itself, the caveator must then specify that the quantum of his caveatable claim is restricted to and binds a particular interest only and not the whole land itself. 9.09 Where the registered encumbrance, being the subject matter of the transfer, relates to the whole land, the transferee caveator shall enter the word "kesemua" in column (4) of the Schedule. Similarly, where a previously registered encumbrance covers only a part of the land, the word "kesemua" must also be inserted in column (4) notwithstanding the fact that the previously registered lease relates to a part of the land or the previously registered charge is created against the whole of an undivided share in land only. In addition to all these, the transferee caveator needs to insert in column (5) or, as the case may be, in column (6) of the Schedule, the Presentation No., the Volume No. and the Folio No. of the previous memorial of registration of the registered lease (including a registered sublease)106 or the registration particulars of the registered charge which is currently being transferred by the registered encumbrancer-caveatee in favour of the transferee-caveator. Illustration 5 - A lease of land 9.10 Thus, in the case of a lease of the whole land by the registered proprietor in Form 15A, the quantum of the claim of the lessee-caveator has to bind the whole land because the instrument of lease covers the whole land. In additional to specifying that the caveat is to bind the land itself in paragraph one in Form 19B, the yet to be registered instrument of lease must be inserted with the word "kesemua" in column (4) of the Schedule besides filling in the blanks in columns (1), (2) and (3) of the Schedule with the particulars of the land title. Illustration 6 - A sublease of land 9.11 In an uncommon case of a sublease of a part of the land in Form 15B, all steps to be done by a caveator under Illustration 5 above must be followed by the sublessee-caveator holding the yet to be registered instrument of sublease. However, he must specify that his caveat binds a part of the land only. In addition, the particulars of the head-lease such as the Presentation No., the Lease Volume No. and Folio No. must be inserted in Column (5) of the Schedule. Illustration 7 - A charge over land 9.12 In the most common case of the creation of a charge over the whole land via an instrument of charge in Form 16A duly executed by the registered proprietor-caveatee, the quantum of the chargee-caveators claim relates to the whole of the land. Hence, all the relevant particulars of the title and the word "kesemua" are to be entered in the relevant columns provided for in the Schedule of Land and Interest. In addition, in the first paragraph of Form 19B it must be appropriately specified that the quantum of the claim is to bind the

whole of the land. 9.13 As regards the charging of the whole, but not a part only, of any undivided share in land, this subject has been dealt along with the transfer of any undivided share, in land in Illustration 3. Since 25 March 1985, it is possible for any registered co-proprietor to charge the whole, but not a part only of his undivided share in land.117 Notwithstanding the fact that the quantum of the caveatable claim in such an instance is confined to a part of the land only, yet the Registrar is duty-bound to enter the caveat on the register document of title in respect of the whole of the subject land. The word "kesemua" and the relevant particulars of title are to be inserted in the relevant columns of the Schedule. However, since the caveators caveat affects only the undivided share of the co-proprietor concerned and does not affect the remaining undivided shares of the other unaffected coproprietors, it is the duty of the caveator, in such an example, to specify in paragraph one in Form 19B that the quantum of his claim is to bind a particular interest only. Illustration 8 - A grant of an easement 9.14 Here again, all the steps relevant to the most common example of a sale of land are to be adopted, mutatis mutandis, by the proprietor-caveator of the dominant land. He must, however, specify that his caveat binds a particular interest only and that the nature of his claim is to use an easement over a portion of the servient land. Illustration 9 - An enforceable contractual right to a dealing in land 9.15 Such rights arise from enforceable contracts of dealing in land. They take place well before instruments of dealings have been executed by the registered proprietors concerned. Since such rights are invariably tied on at a later stage to a kind of instrument of dealing in land during the pre-registration instrumental stage, the nature and the quantum of the caveat would depend on the very nature of the land transaction. Therefore, whether the quantum of a caveatable claim in such an instance binds the land itself or perhaps a particular interest in the land only will depend very much on the nature of the contract of dealing in land. Accordingly, the caveator may adopt any of the above illustrations which suits the circumstances of his case. However, he has to specify that the nature of his claim is still in the initial contractual stage because he has yet to move onto the next instrumental stage by obtaining an instrument of dealing from either the registered proprietor, the registered coproprietor or, as the case may be, the registered encumbrancer. 9.16 The above illustrations are but a few of the various examples whereby a caveat may be expressed to bind the whole land or, as the case may be, a particular interest only of the caveatee. In all such instances, it may be observed that the onus is on the caveator to specify the quantum of his caveatable claim but parallel to such a duty, there is also a duty imposed upon the Registrar to enter the caveat "in the registeron the document of title to the land"108 notwithstanding the fact that the caveator's claim might be restricted to a specific portion of the land only so long as the caveator has discharged his duty by expressing in paragraph one in the Schedule that only a particular interest in the land is affected by his

caveat. 9.17 Thus, in Vangedaselam v. Mahadevan,109 the Federal Court was faced with the old controversy of whether a person who is interested only in a specific portion of land may enter a caveat against the whole land. In this case, the late Mr. Ratnavale owned Merah Estate in Kulim, Kedah, which he planned to subdivide and sell to various people. The caveator and two others rendered him valuable service in connection with the project. In consideration of the caveators service, Mr Ratnavale agreed to give him a specific portion of the estate with the tindalls house on it "now occupied by the caveator" and the caveator has been in possession of that portion ever since. In September 1971, the caveator filed a suit against Ratnavale for specific performance. Pending the hearing of the suit by the Court, a caveat was lodged against the whole land on 13 October 1971. Ratnavale died in 1973 but during his lifetime, he had taken no action to remove the caveat. However, after his death, the representatives of his estate applied to the Court [probably under s. 327] to have the caveat removed. The learned trial Judge ordered the caveat to be removed on the ground that Merah Estate against which the caveat was entered was over 42 relongs in area, whereas the caveator claimed merely a portion measuring about 18,000 square feet. The learned Judge followed the three decisions110 of the High Court, all of which decided that if a caveator is interested only in a portion of land, he cannot caveat the whole land. 9.18 On appeal to the then Federal Court, the Court overruled all the three decisions of the High Court upon which the trial Judge relied on and, at page 163A, quite correctly held that: ... you either caveat the whole land or not at all, and that if you claim a registrable interest in a portion you may caveat the whole land, provided that you expressly limit the effect of your caveat to protect only your claim. 9.19 After reviewing the relevant provisions (sections 322, 323 and 324) of the NLC, the Federal Court went on to say, at page 163E: In the ordinary case a proprietor owns all the interest in his land, but this interest is divisible; thus in the instant case the caveatees owned (a) all the interest in Merah Estate excluding that portion claimed by the caveator, as well as (b) all the interest in that portion. The caveator, as it happens, claims not the caveatees interest in the entire estate, but only his interest in the portion in question. In other words he claims a particular interest in the land. In that event when applying for entry of a caveat he should so state in Form 19B in paragraph 1, and in paragraph 2 he should give the grounds of his claim. (He should not claim a caveat to be expressed to bind the land itself.) He should also cause to be inserted in Form 19A a description of the particular interest claimed and a description of the effect of the caveat. 9.20 Unfortunately, the ratio decidendi of this Federal Court case does not seem to highlight the respective duties imposed by statute on the Registrar and on the caveator when the Court arrives at its conclusion that one either caveats the whole land or not at all. Neither did the Court contrast and differentiate the post-registration nature of a caveatees registered interest from the pre-registration nature of a caveators rights to as well as registrable interest in land.111 But notwithstanding this, the old Seremban controversy mentioned earlier has finally

been settled by this judicial pronouncement of the Federal Court. Conclusion 10.01 First, it is now trite law that if a caveator claims a specific portion of land, he may yet caveat the whole land on condition that the caveat is expressed by the caveator to bind a particular interest only in the land. By s. 322 (3) of the NLC, the effect of the entry of a caveat which has been expressed to bind a particular interest only is to prevent any registered disposition of the particular interest in the land by the registered proprietor except with the caveator's consent until the caveat is withdrawn or removed. A lesser known but equally important provision which is contained in s. 322(5) permits, in spite of the presence of a caveat, the registration of disposition of land or a particular interest in land by a registered proprietor or a registered encumbrancer if such a disposition has been consented to in writing by the caveator. 10.02 Secondly, the recent amendment to s. 322 (1) of the NLC112 spells out that no caveat shall be entered in respect of a part of the land. The proviso is purely declaratory of the principles of the caveat provisions which have been formulated by the then Federal Court in the Vangedaselam case. Prior to this amendment, there are no known cases where caveators have applied to caveat a part of the land. Even in matters within the ambit of the old controversy, the Registrar has, dutifully, been entering caveats by endorsing on the register document of title the words "Private Caveat" in the manner which is prescribed in subsection (2) to s. 324. Apparently, the legislature intends to endorse the findings of the then Federal Court in the case of Vangedaselam v. Mahadevan113 in that a caveator "eithercaveat[s] the whole land or not at all".114 Therefore, this amendment is emphatic on the point that a part of any alienated land may not be caveated by the Registrar. But this should not be taken to mean that no caveat may be entered by the Registrar "in the register on thedocument of title to the land"115 notwithstanding that the quantum of the claim is to bind only a particular registered interest of the registered proprietor or, as the case may be, the encumbrancer. This is the only possible way in which the Registrar may enter a private caveat, that is, to enter a caveat over the whole land under s. 322 (1) and then to supply a statement, under s. 324 (2) (a), expressly specifying that the caveat binds the land itself or only a particular interest therein. The Registrar specifies merely what is stated by the caveator in the latters application for entry in Form 19B. 10.03 Unfortunately, some experts have misunderstood the caveat provisions and the amendment to s. 322 (1) and distorted it beyond the original, intention of the legislature. Some practitioners have even construed the proviso to s. 322 (1) to mean that if a purchaser is buying a subdivided lot or a condominium apartment or a low-cost or medium cost flat from a housing developer to which a qualified title or a strata title has not as yet been issued, he is not entitled to apply for an entry of a caveat over the whole of the "master" title. In view of the proviso, the practitioners have contended that if one claims only a subdivided lot or a unit of flat without an individual title, one cannot caveat at all to protect ones enforceable right to a qualified title or, accordingly, to a strata title. This view is in direct contradiction with the well established caveat principle which was laid down by Suffian L.P. in Vangedaselam's case,116 that is: "you either caveat the whole land or nor at all, and that if you claim a registrable

interest in a portion you may caveat the whole land, provided that you expressly limit the effect of your caveat to protect only your claim." 10.04 When construing the caveat provisions of the NLC, one must not lose sight of the paramount intention of the legislature. It has always been the intention of all Torrens statutes to give certainty to registered title to land and registered interest in land (registered encumbrances) so as to enable any bona fide purchaser for value to deal with the registered proprietor with confidence and to acquire from him an indefeasible registered title or a registered interest.117 Hence, the Malaysian system of private caveats, which has been enacted to substitute the equitable doctrine of notice in English land law,118 is made available, in appropriate cases, for the interim protection of any caveatable claim to title to land, or registrable interest in land of an encumbrancing nature, or of any claim to a right to such title or to such registrable interest in land of an encumbrancing nature which are alleged or claimed by the caveator but are not yet proven.119 10.05 Therefore, in a non-contentious matter, this statutory protection which is accorded by the NLC prevents any of the four categories of caveatable claims envisaged by the legislature in s. 323 (1) (a)120 or any of the claims of beneficiaries under any trust or those of minors120a from being overridden by a registered title or a registered interest of a subsequent bona fide purchaser for value. By s. 322(2), the effect of the entry of a caveat which has been expressed to bind the land itself is to prevent therefore any registered disposition of the land by any fraudulent registered proprietor or encumbrancer except with the caveators consent until the caveat is withdrawn or removed. However, in a contentious matter where the validity of the caveators claim is challenged by the registered proprietor or by a person who is aggrieved by the presence of the caveat, the purpose of the caveat then is to preserve the status quo of the parties pending the taking of timeous steps by the caveator to enforce his claim to a title to land or to a registrable interest in land of an encumbrancing nature or his claim to a right to such title or a right to such registrable interest in land by proceedings in Court.121 Thus, in order to maintain the status quo of the litigating parties until the trial of the action, the legislature bestows on a private caveat the effect of binding the whole land or a particular interest only so that the caveatee could be prevented before the trial has been determined from disposing of his land or a particular registered interest either in the form of an undivided share in the land or a registered encumbrance to some third party to the detriment of the caveator.122 10.06 Bearing in mind the main purpose or the protective nature of private caveats, one cannot but conclude that the amendment to subsection (1) to s. 322 is to make it absolutely clear to the Registrar and to the Registrar alone that all this while, a caveat cannot be entered byhim over a part of the land notwithstanding that the claim may be in respect of a particular interest or may affect a part of the land only. Irrespective of whether the caveat is to bind the whole land or a part only, the Registrars administrative function requires him to enter a caveat over the whole land on the register document of title to the land. With the additional proviso to s. 322 (1), it becomes more emphatic that the Registrar is not allowed at all to enter any caveat over a part of the land because his ministerial function or duty is to ensure that the caveat is entered over the whole land. To do otherwise is to commit a breach of his administrative duties under s. 322 (1) (a) . This new proviso does not expressly deprive any caveator of his

right to statutory protection. This interpretation, it is submitted ismore in line with the precedent-setting decision of the then Federal Court in Vangedaselamv. Mahadevan123 that is, one either caveats the whole land or not at all. 10.07 Thus, the proviso does not expressly forbid a caveator (such as a purchaser of a subdivided lot or a unit of condominium or flat) from caveating the whole housing estate land provided that the caveator specifies in Form 19B that only the area of the subdivided lot or the floor area of the condominium or flat which is located within the multistorey building is bound by his caveat. While the amendment restricts the administrative function of the Registrar vis-a-vis his administrative act of entering a caveat in the Torrens register in the manner laid down by the caveat provisions, yet the amendment is not extended to or affect the other relevant caveat provisions124 which deal with the right of a caveator to enter a caveat over the whole land but coupled with a corresponding duty on the caveator to specify whether the whole land or a particular interest is affected by the caveat. In fact, in spite of the new proviso, s. 322 (1) (a) still imposes the old duty on the Registrar to enter a caveat in the register on the document of title to the whole land whenever he receives a caveators application for an entry of a caveat provided, of course, that the caveat specifies that the whole land or a particular interest is thereby affected by the caveat. 10.08 Since the principle laid down by the Federal Court in the Vangedaselam case is that one either caveats the whole land or not at all, the new proviso to s. 322(i), therefore, places emphasis on the latter part of this principle. But this principle should not be construed by the experts to mean that if a caveator does not claim the whole land, a caveat cannot be entered over the whole land but its effect is limited to bind a part only because the duty of a Registrar under s. 322(l)(a) and the duty of a caveator to spell out the binding effect of his caveat by describing the quantum of his claim in the Schedule are two different things altogether with each deserving a different approach or treatment in its respective construction. Thus, it is not open to the experts to distort or widen the scope of this new proviso and hold the view that a condominium purchaser is not allowed, by virtue of the amendment, to apply for an entry of a caveat over the whole of the housing estate land in order to protect his claim. If there is such a major alteration in the law which would prohibit a caveator from protecting his caveatable claim that affects a particular interest such as a claim to a title to an undivided share in land, any Court "would want very clear, precise and unmistakeable language on the part of the Legislature to lead the Court to come to [that] conclusion.126 10.09 Furthermore, while bearing in mind that the main purpose of the system of caveats is to accord statutory protection, if, as is alleged by the experts, the legislature has the intention to deprive this class of caveators (who are purchasers of undivided shares in land or subdivided lots or condominiums or flats) of any form of statutory protection, then the legislature would have amended the relevant subsections to ss. 322(l), 322(3), 323(2), 324(2), 324(3) and in Form 8 and 9 (which were inserted in 1985 by Act A587) and Forms 19A, 19B and 19C by deleting therefrom the term "a particular interest".However, this has not been done at all in 1985 by Parliament. Therefore, if this particular class of caveators wishes to apply to the Registrar for an entry of a caveat over the whole housing scheme land, it may be done provided that the caveator specifies that his caveat binds a particular interest only. The caveator does so by inserting in paragraph two in Form 19B the words: "a qualified title to the

subdivided lot under temporary number..." or as the case may be, "a strata title to condominium or flat No...... in Block..... with a floor area of...... square feet". 10.10 Finally, as regards the latest 1985 amendment127 which also permits a registered proprietor of an undivided share in alienated land to charge the whole of his undivided share in land in favour of his chargee, the question at hand is whether or not such a chargee may caveat the whole of the land since his ultimate registered encumbrance will affect only a part of the land. In such an instance, from the time of execution by the registered proprietor of a charge in Form 16B over the whole of his undivided share, a registrable interest in land of an encumbrancing nature will be created in favour of the holder of the yet to be registered instrument of charge [see box (ii) in the Chart] . As already discussed, since a registrable interest of this nature binds only the chargor and the chargee who are the only parties to the instrument of charge and not the world at large during this pre-registration instrumental stage and because an unprotected registrable interest in land can be overridden by a registered title or a registered encumbrance of a subsequent bona fide purchaser for value, some form of statutory protection, therefore, must be accorded to this weak type of registrable interest in land. The same argument in support of the lodgment of a caveat by a chargee in respect of the charge over the whole of the land will, mutatis mutandis, apply to support the lodgment of a caveat over the whole land provided that the effect of the caveat is expressed to bind the title to the whole of the undivided share in the land only. The quantum of this caveatable claim which is covered under the second limb to s. 323 (1) (a)128 can then be described in paragraph two in Form 19B as: "a charge against the endorsed copy of title relating to the whole of an undivided share in the land". Similarly, it is the duty of the Registrar, under s. 322 (1) (a) of the NLC, to enter that caveat "in the register on the document of title to the land"129 to bind, mutatis mutandis, that particular interest only, notwithstanding that the amendment to s. 322(1), in the form of a proviso, forbids the Registrar from entering a caveat in respect of a part of the land.130 Endnotes: 1. National Land Code (Amendment) Act, 1984 (Act A587), s. 90 which amendment came into effect on 25 March 1985. 2. Act of Parliament, Malaysia (No. 56 of 1965). 3. See, generally, S.Y.Kok's commentary on the four categories of persons or bodies who may enter a private caveat in his article: Are Private Caveats Encumbrances? Volume XVIII No.4 INSAF (The Journal of the Malaysian Bar) January '86, pp. 14-38. This article was originally submitted in June, 1985 to a journal for publication but was rejected: no reason was assigned by the publishers. 4. See the conflicting authorities of Tee Chin Yong v. Ernest Jeff [1963] MLJ 118, OCJ; WooYok Wan v. Loo Pek Chee [1975] 1 MLJ 156, OCJ; Pok Kew Chai v. Yeoh Thian Seng [1975] 1 MLJ 220, OCJ; Vangedaselam v. Mahadevan [1976] 2 MLJ 161, FC; Chng Sin Poey & Sons Sdn. Bhd. v. Quek Lian Meng [1979] 1 MLJ 98, OCJ and Mosbert Berhad (In

Liquidation) v. StellaDCruz [1985] 2 MLJ 446, SC. 5. National Land Code (Amendment) Act, 1984 (Act A587), s. 81. 6. For the meaning and nature of co-proprietorship under the NCL, see s. 342 of the NCL and David S.Y. Wong; Tenure and Land Dealings in the Malay States [1975] Chapter 8. In this instance of a charge over the whole of an undivided share in land, the issue document of title relating to the whole land must first be delivered to the Registrar before an endorsed copy of such a title may be issued by the Registrar under s. 343(4): see S.Y. Kok' s unpublished article: Charging An Undivided Share In Land Under The Malaysian Torrens System (May 87). 7. [1963] MLJ 118. 8. Section 166 of the Federated Malay States Land Code, 1926 [Chapter 138] enacts: "The grantor of any instrument of trust or a beneficiary or a guardian or next friend of any minor beneficiary or a trustee or any person claiming title to or registrable interest in land may present a caveat to the effect that such land shall not be transferred, charged or leased by the proprietor either (a) absolutely, or (b) except in such manner and to such extent as in such caveat may be expressed, or (c) until notice shall have been served on the caveator, or (d) unless the transfer, charge, or lease be expressed to be subject to the claim of the caveator as expressed in such caveat, or (e) except subject to any conditions expressed in such caveat. Section 168 states: "Upon the registration of a caveat the proper registering authority shall forthwith send a notice of such caveat in the Form in Schedule XXXVI through the post office or otherwise to the person, hereinafter called "the caveatee", against whose register document of title such caveat shall have been presented." 9. The terminology "caveatable interest", which is popularly but wrongly used by legal practitioners and Judges, is most apt when used under the Australian Torrens system because the Australian Courts have always recognised "equitable interests"in land unless precluded from doing so by statute: Butler v. Fairclough [1917] 23 CLR 78 at 91 and Abigail v. Lapin [1934] AC 491, PC Therefore, the Courts in Australia have equated rights arising ex contractu or by operation of law to equitable estates and equitable interests in land. As such, the term "caveatable interest" is frequently found in the Australian authorities. However, in West

Malaysia, there is the presence of statutory provisions in the form of s. 6 of the Civil Law Act, 1956 which preclude the reception of English land law (including the concept of equitable interest in land and the equitable doctrine of notice) into the Malaysian Torrens system. Consequently, it is not open to our practitioners to resort freely to the Australian authorities on caveats and adopt the Australian term "caveatable interest" because such a terminology, which pre-assumes the existence of an interest in land, offends the caveat provisions of s. 323 (1) (a) of the NLC which, in its modified form, recognises not only titles to land and registrable interests in land but also rights to such titles and interests. For a detailed discussion on these points, see S.Y.Kok's articles: The Nature of Right, Title and Interestunder the Malaysian Torrens System [1983] 1 MLJ cxlix and Are Private Caveats Encumbrances? Volume XVIII No.4 INSAF January 86 at pp. 21-23 and from p. 35 therein. See also Guan Wee Keang v. Gan Ah Ter [1986] 1 CLJ 557, OS. 10. [1975] 1 MLJ 156. 11. [1975] 1 MLJ 220. 12. [1975] 1 MLJ 220. 13. This proviso is the most recent amendment added to subsection (1) to s. 322 by s. 90, National Land Code (Amendment) Act, 1984. It came into effect on 25 March 1985. See a commentary on this amendment by Khaw Lake Tee in an article: Recent Amendments To The National Land Code 1965 [1985] 2 MLJ clxxiv at clxxxii. 14. This form must be used by any caveator who wishes to apply for an entry of a private caveat on the register document of title. 15. Section 322(l) (a) specifies that a private caveat "may be entered by the Registrar on the register document of title to any land at the instance of any of the persons or bodies specified in s. 323;" 16. The interpretation section [s.5] of the NLC assigns the meaning of "register document of title" as "any document registered, or prepared for registration, under this Act and evidencing or, as the case may be, intended to evidence title to land, and any document evidencing title to land registered before the commencement of this Act under the provisions of any previous land law." 17. See a detailed discussion on the scope of s. 323 (1) (a) in S.Y. Kok's article: Are Private Caveats Encumbrances? Volume XVIII No.4 INSAF January 186, pp. 14-38. 18. Ibid, at p.25 for the meaning of a caveatable claim to a title to land; how and when such a claim to a title arises. 19. This Chart is a reproduction of the original Chart which appeared in S.Y. Kok's article: ArePrivateCaveats Encumbrances? at pp. 23-25.

20. Ibid, at p. 27 for the meaning of a caveatable claim to registrable interest in land; the different types of registrable interests and their differences from each other; how and when such registrable interests in land are created. 21. Ibid, at p. 28 for the meaning of a caveatable claim to a right to title; how and when such rights are created. 22. Ibid, at p. 30 for the meaning of a caveatable claim to a right to such registrable interest in land; how and when such rights are created. 23. Form 19B in the First Schedule to the NLC reads as follows: "I... of... hereby apply for the entry of a caveat upon the title to the land described in the schedule below; to be expressed to bind - the land itself/the particular interest described in the said schedule" 24. Section 322(l)(a). 25. Per Suffian F.J. in Nanyang Development [1966] Sdn. Bhd.v. How Swee Poh [1970] 1 MLJ 145 at 146B. See also the observation of the Privy Council on the difference between the entry of a caveat by the Registrar and the grant of an interlocutory injunction by the Court in Eng Mee Yong v.Letchumanan [1980] AC 331 at 335H wherein Lord Diplock observed that a caveat "...is issued ex parte by the Registrar acting in an administrative capacity without the intervention of the Court and is wholly unsupported by any evidence at all." 26. In addition to ascribing the Registrar's function as "administrative" in the Eng Mee Yong case, the Privy Council also described the Registrar's function in relation to the entry and removal of private caveats as" ... ministerial only": Registrar of Titles, Johore v. Temenggong Securities Ltd. [1977] AC 302 at 308E; Damodaran v. Choe Kuan Him [1980] AC 497 at 504H. 27. Section 324 (1). On this point, the Privy Council in Registrar of Titles, Johore v. TemenggongSecurities Bhd. [1977] AC 302, at 308E, said: "The Registrar's function in relation to the entry and removal of private caveats are ministerial only: He is not concerned to inquire into the validity of the claim on which an application for a private caveat is based; and a person who secures the entry of a private caveat without reasonable cause is liable to compensate anyone who suffers loss or damage as a result of such entry". Subsequently, similar views were expressed by their Lordships of the Privy Council in Eng Mee Yong v. Letchumanan [1980] AC 331 where Lord Diplock, at 335E, said: By s. 324 the registrar is recruited to act in an administrative capacity only; he is not concerned with the validity of the claim on which the caveat purports to be based. If the

document is in the correct form he must enter the caveat on the register and leave the registered proprietor to secure its removal and to claim compensation from the caveator for any damage he has suffered by reason of the entry of the caveat having been obtained by the caveator without reasonable cause. 28. However, notwithstanding that the Registrar's functions vis-a-vis the entry of a private caveat is administrative or ministerial only, "... this does not mean that he cannot reject an application for entry of a caveat when it does not comply with the substance of the form, or, as in this case, when the application does not specify whether the caveat is to bind the land itself or a particular interest":per Syed Othman J. in Chng Sin Poey & Sons Sdn. Bhd. v. Quek Lian Meng [1979] 1 MLJ 98, at 99H, OCJ. 29. Applications for entries of private caveats will be discussed shortly. 30. Section 324(3). 31. In Eng Mee Yang v. Letchumanan [1980] AC 331 at 336 B-H, Lord Diplock, delivering the judgment of the Judicial Committee of the Privy Council, highlighted the alternative procedures which are provided for by the NLC for the removal of a caveat at the instance of a caveatee and the types of persons who may invoke the operation of the alternative procedures for such removal under s. 326 and s. 327. 32. This additional requirement was recently added on to s. 323(2) by s. 91 of the National Land Code (Amendment) Act, 1984 (Act A587). 32a. In re Spencer; Hale (Caveator) 4SR (NSW)471. 33. Section 323 (3). A caveat is normally issued ex parte by the Registrar acting in an administrative capacity without the intervention of the Court and is wholly unsupported by any evidence at all: EngMee Yong v. Letchumanan [1980] AC 331 at 335H. The relevant passage is quoted in fn. 82, infra. 34. On the aspect of the "nature" of the claim, see David S.Y. Wong: Tenure and Land Dealings in the Malay States [1975] pp. 435-439. 35. This provision requires not only the "nature" to be stated but also the "quantum" of the claim to be specified. Cf: the view expressed by David S.Y. Wong, op. cit. at p.439. See also paragraph 6.05 et. seq. and fn. 78, infra. 36. The Malaysian statutory creature known as a bona fide purchaser for value differs substantially from his cousin in English land law because the English equitable doctrine of notice has not been incorporated into the Malaysian concept: see the proviso to s. 340(3) of the NLC which describes the Malaysian statutory creature as "[a] purchaser in good faith and for valuable consideration" without any element of "notice" being ascribed to it whereas his English cousin is commonly known as a bonafide purchaser for value without notice. On this question of notice, in Eng Mee Yong v.Lechumanan [1980] A.C. 331, Lord Diplock said at

335E: "The system of private caveats is substituted for the equitable doctrine of notice in English land law." 37. See S.Y. Kok's article: Are Private Caveats Encumbrances? Volume XVIII No.4 INSAF Jan '86 at pp. 25-30. In E.M. Buxton v. Packaging Specialists Sdn. Bhd. [1987] 1 MLJ 342, OCJ, Siti Norma Yaakob J. held that a purchaser who haspaid a deposit but failed to pay the balance of the purchase price within the agreed time period, does not have a registrable interest in land that could support the entry of a caveat because the agreement of sale, due to the purchaser's breach, could no longer be enforceable against the vendor. With respect, whilst her Ladyship's finding is correct, it is more apt if, instead of using the terminology of registrable interest, her Ladyship holds the view that the purchaser caveator has no longer a right to a title to land arising from the agreement of sale because the latter has become unenforceable. 38. From a mere contractual right to a title to land and then to a registered title to land. 39. See Chin Chen Hong v. Hameed [1954] 20 MLJ 169 whereby the Court of Appeal held that the registrable interest in land of the other partners could not be overridden by the contractual rights of a purchaser. 40. See s. 323(i)(b). 41. See box (iii) in the said Chart attached hereto. 42. See box (i) in the said Chart attached hereto. 43. See S.Y. Kok's article: "Are Private Caveats Encumbrances?" Volume XVIII No.4 INSAF Jan '86 at pp. 25-30. 44. Chng Sin Poey & Sons Sdn. Bhd. v. Quek Lian Meng [1979] 1 MLJ 98, OCJ, deals with a situation wherein the application for entry of a private caveat erroneously omits specifying whether the caveat is to bind the land itself or a particular interest therein. 45. Section 322 (1) (b), s. 322 (3), s. 323 (2) s. 324(2)(a) and s. 324(3). 46. Judith Sihombing makes no attempt to analyse the meaning and nature of "a particular interest" in her book; "National Land Code" (1981 edn.) at p.590. Neither was there any attempt made by Prof. Visu Sinnadurai in Sale and Purchase of Real Property in Malaysia [1984] pp.261-264 nor did Teo and Khaw in Land Law in Malaysia [1987] pp. 320-327. 47. A copy of Forms 8, 9, 19A, 19B and 19C is attached hereto for ease of reference. See also the wordings which deal with the term "a particularinterest" in Forms 8, 9, 19A, 19B and 19C. 48. See s. 324(3). In the case of a registered easement, there is no mention of a requirement to serve a notice in Form 19A on the proprietor of a dominant land even if the caveat affects a

servient land. This is so because leases and charges, but not easements, may form the subject matter of a transfer of a registered encumbrance which defers substantially from the normal transfer of land: see s. 214(l) of the NLC. 49. See ss. 322(1)(b), 322(3), 323(2), 324(2)(a) and 324(3) 50. The omission of easements from the term "a particular interest" can be inferred from its omission in Form 19A. Moreover, easements cannot form the subject matter of an instrument of transfer. The meaning of "registered interests in land" has been clearly defined by the Privy Council in Registrarof Titles, Johore v. Temenggong Securities Ltd. [1977] AC 302 at 306G as follows: "Under the Code interests in alienated land are divided into two categories: those which are registered and those which are not. The only interests capable of being registered are title, leases (including subleases) for a term exceeding three years, charges on the land and easements over the land." And at 310H to 311A: "The expression 'interest' is used in many sections throughout the Code apart from s. 320 and in none of them to which their Lordships' attention has been drawn can it be plausibly suggested that it bears any wider meaning than an interest in land of a kind that is recognised by the Code as being either registrable or otherwise entitled to protection. These comprise registered titles, registered leases and subleases for three years or more, registered charges and registered easements ... ". On the nature of registered encumbrances, the Privy Council in Damodaran v. Choe Kuan Him [1980] AC 497 at 503C said: "Interest in land, short of proprietorship, which are capable of being registered are leases, charges and easements. If registered they would amount to encumbrances within the meaning of a covenant against encumbrances; but unless registered they do not derogate from the unencumbered title of the registered proprietor of the land. "See generally S.Y. Kok's article: The Nature of Right, Title and Interest under the Malaysian Torrens System [1983] 1 M.L.J. cxlix. 51. In Loke Yew v. Port Swettenham Rubber Co. Ltd. [1913] AC 491, Lord Moulton of the Privy Council, commenting on s. 4 of the Registration of Titles Regulation, 1891 [which is similar to s. 206(1)(b) of the NLC] said at p. 500: " . . . No instrument [of dealing] is effective to convey any estate in land unless it is registered, and therefore the effect of the instrument [of dealing] rested in contract until registration." 52. "It is in fact the registration and not its antecedents which vests and divests title": per Lord Wilberforce in Frazer v. Walker [1967] AC 569 at 580B. This case was approved and adopted by the Privy Council in Oh Hiam v. Tham Kong [1980] 2 MLJ 159, 164F and 165D. In Tan Suan Sim v. Chang Fook Shen [1980] 2 MLJ 66, Chang Min Tat, FJ, delivering the judgment of the Federal Court, at 67B, said: "... in the Torrens system of registration of titles, the property does not pass until the transfer has been effectively registered against the issue document of title in the relevant registry of titles." With respect, his Lordship should, in his observation on the State's act of registration of instruments of dealing, extends registration to cover both the issue as well as the register document of title to make the act complete. See also S.Y. Kok's unpublished manuscript: Land Law in West Malaysia [1984] Chapter 1. 53. See s. 214(1). See also fn. 48 and fn. 50, supra. See the Privy Council's comment on interests in land in the NLC which could amount to encumbrances within the meaning of a

covenant against encumbrances in Damodaran v. Choe Kuan Him [1980] AC 497, 503C, the relevant text of which has been quoted in fn. 50, supra. 54. [1975] 1 MLJ 156. His Lordship's view on this point has been rebutted by the Federal Court in Vangedaselam v. Mahadevan [1976] 2 MLJ 161, FC. 55. [1976] 2 MLJ 161 at 163C-E, FC. See also fn.72 &: 73, infra. 56. See fn.15, supra which spells out the provisions contained in s. 322 (1) (a) 57. As to the question of who may apply to the Registrar for removal of a caveat under s. 326 and who may apply to the Court for a similar purpose under s. 327, see the advice of the Privy Council in Eng Mee Yong v. Letchumanan [1980] AC 331 at 336B-H. See also S.Y.Kok's constructive criticism of the case of Hock Hin Bros. Sdn. Bhd. v. Low Yat Holdings Sdn. Bhd. [1984] 1 MLJ 92 which judgment allows the entry of a second caveat to protect the same claim on the same ground after the first has been removed by the Registrar under s. 326(3) in his unpublished article: Statutory Prohibitions Against The Entries of Further Private Caveats which was submitted in October, 1984 to the Malayan Law Journal in Singapore for publication but was rejected. After examining ss. 326 and 327, S.Y. Kok concluded, with respect, that the decision of the trial Judge in that case was bad in law and that no second caveat should be allowed to be entered after the first has been removed by the Registrar under s. 326(3). This conclusion has been endorsed by the recent 1985 amendment to s. 329 which now forbids such an entry [see s. 95 of the National Land Code (Amendment) Act, 1984 which came into effect on 25 March 1985]. Compare the opposite views taken by Professor Visu Sinnadurai, Sale and Purchase of Real Property [1984] at 265, et. seq. and by law lecturer, Teo Keang Sood, "Second Caveats: Some Reflections" [1985] 1 M.L.J. clxxxv. 58. What will happen if the caveator fails to specify whether the whole land or a particular interest only will be bound; has the Court any power to order an amendment to the caveat in view of the presence of other competing rights or interests or both? Assuming that the Court has the power and does order such a defective caveat to be removed, does the defective caveat tantamount to a non-caveat at all and thus allow the caveator to enter a fresh caveat or will this fresh caveat be treated by the Court as an attempt to enter a second caveat the entry of which is now clearly barred by the recent amendment to s. 329(2)? The subject matter arising herein seems interesting enough to form the basis of a research paper. 59. The Federal Court opines that this particular term means "the particular interest of the registered proprietor" and not, as Ajaib Singh J. would seem to think, the particular interest of the caveator which interest would then be in the pre-registration or contractual stage: Vangedaselam v. Mahadevan [1976] 2 MLJ 161 at 163E, FC. 60. See fn.48 and fn.50, supra. 61. See s. 340 and S.Y. Kok's comment on the Malaysian doctrine of indefeasibility of title to land in Chapter 3 of his unpublished manuscript: Land Law in West Malaysia [1984].

62. See the sub-heading "Application for entry and duty of a caveator" in paragraph 3.01, supra. 63. Section 323(2) provides "(2) Any such person or body wishing to apply for the entry of such a caveat shall do so in Form 19B and such application shall be attested in accordance with the provisions of s. 211 and shall state therein the nature of the claim on which his application is based, and whether the caveat is to be expressed to bind the land itself or a particular interest only." 64. See the text in paragraph 5.02, et. seq. In re Spencer; Hale (Caveator) 4 SR (NSW) 471, the Court held that a caveat must also state the facts upon which the claim is founded. 65. See box (iii) in the said Chart and S.Y. Kok's article: Are Private Caveats Encumbrances? Volume XVIII No. 4 INSAF Jan '86 at p.28, et. seq. 66. See box (iv) in the Chart. 67. See box (i) in the Chart. See also Chi Liung & Son Sdn. Bhd. v. Chong Fah & Sons Sdn. Bhd. [1974] 2 MLJ 211, OCJ. 68. In Guan Wee Keang v. Gan Ah Ter [1986] 1 CLJ 557, OS, LC Vohrah J. agreed with Mr. S.Y. Kok's submission and held that, at pp.558/9, there are in fact four limbs to paragraph (a) to s. 323(1) of the NLC. Cf. the decision of the Federal Court in Macon Engineers Sdn. Bhd. v. Goh HooiYin [1976] 2 MLJ 53, 35F which was discussed in fn.31 in S.Y. Kok's article: Are Private Caveats Encumbrances? Volume XVIII No. 4 INSAF Jan 186. at p.21. 69. See box (ii) in the Chart. See also S.Y. Kok's article: Are Private Caveats Encumbrances? Volume XVIII No. 4 INSAF Jan '86 at p.27, et. seg. 70. See fn. 52, supra. 71. "The National Land Code provides means of protecting [unregistered interests] in land from being overridden by bona fide purchasers for value of a registered title or interest. Short term tenancies are protected by endorsing the register document of title to the land with the words: "exempt tenancy claim". This preserves the tenancy as against subsequent grantees of the land or of any interest in it. Protection to all other kinds of [unregistrable interests] is provided by entering a caveat in the register on the document of title to the land. Until it is removed a caveat imposes restrictions on the entry in the register of dealings in the land": per Lord Diplock in Registrar of Titles, Johore v.Temenggong Securities Ltd. [1977] AC 302, 307D, PC (Emphasis added). The term "unregistrable interest" used by his Lordship is synonmous with the term "unregistered registrable interest". In EngMee Yong v. Letchumanan [1980] AC 332, the Privy Council opined, at 335H, that: "... caveats are available, in appropriate cases, for the interim protection of rights to title to land or registrable interest in land that are alleged by the caveator but not yet proved."

72. [1976] 2 MLJ 161, FC On the construction of the phrase "a particular interest only", Suffian L.P. said at 163C-E: "With respect, my construction of these Provisions [ss. 322 to 324] of the National Land Code is as follows. A person who claims a registrable interest in land wishes to enter a private caveat. He must according to subsection (2) of s. 323 apply by Form 19B. In that form (verified by a statutory declaration) he must specify the nature of the claim on which his application is based and whether the caveat is to be expressed to bind the land itself or a particular interest only. This means that if the registrable interest he claims relates to the whole land he should say so. With reference to the words italicized, in view of the phrase 'upon the person... in whom that interest is for the time being vested', in subsection (3) of s. 324, I think they mean the particular interest of the registered proprietor, not as Ajaib Singh J. seemed to think, the particular interest of the caveator." 73. In Vangedaselam v. Mahadevan [1976] 2 MLJ 161 at 163E, the Federal Court was noncommittal, one way or another, on whether "a particular interest only" refers to a registrable or a registered interest in land. However, when Suffian L.P. pronounced the term to mean the particular interest of the registered proprietor, the term has to mean, by inference, the registered interest in land because the registered proprietor does not hold a registrable interest in his own land other than a registered title. Similarly, a registered encumbrancer does not hold a registrable interest in land arising from an instrument of dealing in land which has yet to be registered but an interest duly registered on the register as an encumbrance. 74. Ibid., at 163H where the Federal Court, with respect, wrongly opined that the description of "a particular interest only" in the Schedule should read something like this: "title to, or a registrable interest in or a right to title or interest, in that portion approximately 18,000 sg. ft. in area comprising the tindal's house now occupied by the caveator" for the reason stated in the relevant text above. 75. In fn.73, supra, S.Y. Kok had submitted that, by inference, the particular interest of such a registered proprietor must have been meant by the Federal Court to be a post-registration interest. 76. This phrase is almost paraphrased verbatim by the Federal Court from s. 323(l) (a) of the NLC: see Vangedaselam v. Mahadevan [1976] 2 MLJ 161, 163E, PC. 77. David S.Y. Wong, Tenure and Land Dealings in the Malay States [1975]. At page 439, the learned author, without referring to the provisions contained in s. 323(2) and the wordings contained in Form 19B, opines that a Malaysian caveator, unlike his counterpart in Australia, is not obliged to state the quantum of his claim. A better construction of s. 323(2) is that a Malaysian caveator is required to state both the nature and quantum of his claim. Furthermore, there is a string of Australian authorities which held that a caveat is defective for want of specifying the quantum of the claim in the caveat - see Francis: Torrens Title in Australasia pp. 325-31; Whalan: The Torrens System in Australia [1982] p.233, et. seq. and David S.Y. Wong, op. cit. at 438, fn. 93 therein. In Chng Sin Poey & SonsSdn. Bhd. v. Quek Lian Meng [1979] 1 MLJ 98, OCJ, the application for entry of a caveat did not specify whether the caveat was to bind the land itself or a particular interest although the intent of the caveator was not to bind the whole land but to protect his claim to a lease not exceeding five years on premises 60

and 60A. Syed Othman J. took a middle course and ordered the defective caveat to be amended under s. 327(1). Compare this judgment with the observation of Seah S.C.J. in the case of Mosbert Berhad (In Liquidation) v. Stella D' Cruz [1985] 2 MLJ 446, SC where, at pp. 323I to 324A, his Lordship opined that s. 417(2) is of limited operation and it does not empower the High Court to order a defective or void caveat to be amended by the caveator. 78. Section 81 of the National Land Code (Amendment) Act, 1984 (Act A587) which came into force on 25 March 1985, amended s. 241 of the NLC by allowing the whole, but not a part only, of any undivided share in alienated land to be charged. Formerly, this was not possible under the old provisions of 1965. See S.Y. Kok's unpublished article: Charging an Undivided Share in Land under the Malaysian Torrens System which was completed in May, 1987. 79. This principle of law has been discussed in paragraph 1.09, et. seq. 80. Section 323(2). Vangedaselam v. Mahadevan [1976] 2 MLJ 161, FC. 81. Registrar of Titles, Johore v. Temenggong Securities Ltd. [1977] A.C.302, 307D and 308A-C, PC. 82. In Eng Mee Yong v. Letchumanan [1980] AC 331, the Privy Council highlighted the difference between the effect of a caveat with that of an interlocutory injunction. Lord Diplock, at 335 G-H, said; "The caveat under the Torrens system has often been likened to a statutory injunction of an interlocutory nature restraining the caveatee from dealing with the land pending the determination by the Court of the caveator's claim to title to the land, in an ordinary action brought by the caveator against the caveatee for that purpose. Their Lordships accept this as an apt analogy with its corollary that caveats are available, in appropriate cases, for the interim protection of rights to title to land or registrable interest in land that are alleged by the caveator but not yet proved. Nevertheless their Lordships would point out that the issue of a caveat differs from the grant of an interlocutory injunction in that it is issued ex parte by the Registrar acting in an administrative capacity without the intervention of the Court and is wholly unsupported by any evidence at all." 83. Section 322 (2). In Woon Kim Poh v. Sa'amah bt. Hj. Kasim [1987] 1 MLJ 400, the Supreme Court at 402F-H said: "The effect of a private caveat expressed to bind the land itselfis to prevent any registered disposition of the land except with the caveator's consent until the caveat is removed. ... In the Torrens system where registration is the very basis of the system the prohibition in s. 322(2) must be strictly complied with. In other words the Registrar is statutorily obliged to refuse the registration because to do so would be a violation of an express provision of the National Land Code." 84. Registrar of Titles, Johore v. Temenggong Securities Ltd. [1977] AC 302, 307D and 308A-C; PC. 85. Section 322(3).

86. In re Spencer; Hale (Caveator) 4 SR (NSW) 471. See fn. 64, supra. In Vangedaselam v.Mahadevan [1976] 2 MLJ 161, the Federal Court opined, at p. 163C, that the caveator must specify in Form 19B the nature of the claim on which his application is based. Further down the page, at paragraph G, the Federal Court correctly said that it is in paragraph 2 in Form 19B that a caveator should specify the grounds of his claim. 87. Section 323(3). In Vangedaselam v. Mahadevan [1976] 2 M.L.J. 161, at 163C, the Federal Court said: "In that form [Form 19B] (verified by a statutory declaration) he must specify the nature of the claim on which his application is based and whether the caveat is to be expressed to bind the land itself or a particular interest only." 88. This Schedule of Land and Interest which takes the form as shown in Form 13A must be inserted not only in instruments of dealing in land but also in all application forms for entries of all kinds of caveats: Section 207(2). For ease of reference, this statutory Schedule is reproduced in Form 19B which is annexed hereto. 89. [1976] 2 MLJ 161, FC. 90. Ibid., at 163H to 164A where Suffian L.P., delivering the unanimous judgment of the Federal Court, said: "Thus in the instant case the caveator might have said in Form 19B that he applied for the entry of a caveat upon the title to Merah Estate, to be expressed to bind the particular interest described in the Schedule (the description to read something like this 'title to, or a registrable interest in or a right to title or interest, in that portion approximately 18, 000 sg. ft. in area comprising the tindal's house now occupied by the caveator') on the ground that the deceased Mr. Ratnavale had by written agreement dated 22 December 1966, undertaken in consideration for service rendered to give that portion free to the caveator; and the caveator could have caused to be inserted in Form 19A a description of the effect of the caveat reading something on the following lines, 'the effect thereof is that the land shall not be transferred, charged or leased by the proprietor unless the transfer, charge or lease is expressed to be subject to the claim of the caveator to the particular interest described.'" 91. These caveatable claims have been discussed in the earlier text under the sub-heading: "the nature of a caveatable claim". See also Guan Wee Keang v.Gan Ah Ter [1986] 1 CLJ 557, OS and referred to in fn. 68, supra. 92. See (a), (b), (c) and (d) in paragraph 6.02, supra. 93. In Vangedaselam v. Mahadevan [1976] 2 MLJ 161 the Federal Court, at p. 163H, with deepest respect, appears to be somewhat uncertain about the nature of a caveatee's particular interest in land. After equating it to a kind of registered interest in land, their Lordships appear to merge such a registered interest which is held by the caveatee with a totally different kind of pre-registration interests (the instruments of dealing in land which create such registrable interest are not yet registered but are merely registrable) or, as the case may be, a contractual right to a dealing in land that is alleged to be held by the caveator but not yet proven.

94. Vangedaselam v. Mahadevan [1976] 2 MLJ 161 at 163D, FC See fn. 87, supra for the passage quoted from the judgment of the Federal Court. See also fn. 64, supra. 95. This word in Bahasa Malaysia bears the same meaning as the English word "whole". An instance where a caveat is expressed to bind the whole of the land is the case of Chi Liung & Son Sdn. Bhd.v. Chong Fah & Sons Sdn. Bhd. [1974] 2 MLJ 211, OCJ. 96. [1985] 1 MLJ 162, FC. See also the cases of Mosbert Berhad (In Liquidation) v. Stella D' Cruz [1985] 2 MLJ 446, S.C. and Bhaqwan Singh & Co Sdn. Bhd. v. Hock Hin Bros. Sdn. Bhd. [1987] MLJ 324, OCJ which cases dealt with, inter alia, caveats lodged by purchasers of housing lots. 97. This land area is taken at random as an example but it is quite common for a doublestorey terrace house located in Petaling Jaya to have a land area of 1,600 square feet or less. 98. Section 214(l)(b) allows the whole, but not a part only, of any undivided share in land to form the subject matter of a transfer. 99. See fn.78, supra. 100. See S.Y. Kok's unpublished article: Charging an Undivided Share in Land under the Malaysian Torrens System which was completed in May, 1987. 101. In re Spencer; Hale (Caveator) 4 SR (NSW) 471. See fn. 86, supra. 102. [1976] 2 MLJ 161 at 163H-164A, FC. The relevant passage is quoted in fn. 90, supra. 103. Section 5 of the NLC interprets the term "lease" to mean a registered lease or sub-lease of alienated land. 104. Section 214(l)(d) likewise permits a registered charge to be transferred but not an easement. 105. Section 221(3)(b). The maximum term of a lease which relates to a part of any alienated land is thirty years only. 106. See fn. 103, supra. 107. Section 241(l)(b). See generally S.Y. Kok's unpublished article: Charging an Undivided Share in Land under theMalaysian Torrens System which was completed in May, 1987. 108. Such are the exact words used by Lord Diplock to describe how a caveat may be entered by a Registrar in Registrar of Titles, Johore v. Temenggong SecuritiesLtd. [1977] AC 302, 307D. The quotation is reproduced in full in fn.71, supra. 109. [1976] 2 MLJ 161, FC. This case was followed by the Federal Court in Tan Thean Choo

v. CheahKah Seong [1977] 2 MLJ 106. It was also referred to with approval by the Supreme Court in Mosbert Berhad (In Liquidation) v. Stella D' Cruz [1985] 2 MLJ 446, SC. 110. Tee Chin Yong v. Ernest Jeff [1963] MLJ 118, OCJ; Woo Yoke Wan v. Loo Pek Chee [1975] 1 MLJ 156, OCJ and Pok Kew Chai v. Yeoh Thian Seng [1975] 1 MLJ 220, OCJ. The common error of the caveators in these three Seremban cases was that they should specify, but failed to do so, that the effect of their respective caveats was to bind a particular interest in the land and not the whole of the land. 111. With respect, the judgment of the Federal Court in Vangedaselam v. Mahadevan [1976] 2 MLJ 161 appears to be uncertain about the pre-registration nature of the registrable interest of the caveator and the post-registration nature of the registered interest of the caveatee and does not seem to appreciate the principle that, before registration, a caveator does not have a registered interest in land vested in him. See fn.93, supra. 112. Section 90 of the National Land Code (Amendment) Act, 1984 amends s. 322(l) of the NLC. This amendment, in the form of a proviso to subsection (1) to s. 322, is reproduced in paragraph 1.08, supra. See also fn.13, supra. 113. [1976] 2 MLJ 161, FC. 114. Ibid., at 163A. 115. See fn.108, supra. 116. [1976] 2 MLJ 161, 163A, FC. 117. See the judgment delivered by Lord Diplock in the Privy Council case of Eng Mee Yong v. Letchumanan [1980] A.C. 332 at 335C-D. 118. Ibid., 335E. 119. Section 323. See the Privy Council's pronouncement on this statutory form of protection in Registrar of Titles, Johore v. Temenggong Securities Ltd. [1977] AC 302, 307D, PC and Eng Mee Yong v.Letchumanan [1980] AC 332, 335H and quoted in fn. 71, supra. 120. Guan Wee Keang v. Gan Ah Ter [1986] 1 CLJ 557, OS. See also the text in pp. 10 & 11 and fn. 68 and fn.91, supra. Cf: Macon Engineers Sdn. Bhd. v. Goh Hooi Yin [1976] 2 MLJ 53, at 55F, where the late Ali F.J. opined that s. 323(l)(a) has three limbs only, the third limb being a combination of the third and fourth limb: namely, "a claim to a right to such title or interest." 120a.Sections 323(i)(b) and 323(l)(c). 121. Registrar of Titles, Johore v. Temenggong Securities Ltd. [1977] AC 302, 308E; PC.

122. Eng Mee Yong v. Letchumanan [1980] AC 331, 337E; PC. 123 [1976] 2 M.L.J. 161, F.C. 124. No substantive amendment, in the likeness of the new proviso to subsection (1) to s. 322, has been made to s. 323(2): see s. 91 of the National Land Code (Amendment) Act, 1984. 125. Section 323(2). 126. To adopt the phrase which was used by Williams J. in an early New Zealand case of Wilson and Kingv. Brightling [1885] NZLR 4, at 4 and 9; CA. 127. See fn.5, supra. 128. See box (ii) to the Chart. 129. See fn.83, supra. 130. See S.Y. Kok's unpublished article: Charging an Undivided Share in Land under the Malaysian Torrens System which was completed in May, 1987.
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