Deferred Indefeasibility Reinstated in the Malaysian Torrens System: The End of an Unfortunate Saga
Teo Keang Sood
National University of Singapore (NUS) - Faculty of Law
Singapore Journal of Legal Studies, pp. 546-557, December 2010
The earlier decision of the Malaysian Federal Court in Adorna Properties Sdn. Bhd. v. Boonsom Boonyanit @ Sun Yok Eng had not only spawned academic articles on the subject of indefeasibility of title and interests under the National Land Code 1965 (“the NLC”) but had, unfortunately, also left an unwanted trail of uncertainty and insecurity of title for landowners which the Torrens system of land registration embodied in the NLC seeks to avoid, not to mention the slew of conflicting decisions pronounced in its aftermath.
It is trite that the concept of indefeasibility of title and interests is central to any Torrens system of land registration. In essence, the Torrens system provides for, inter alia, the concept of indefeasibility wherein all registered title and interests are guaranteed by the State to be good against the whole world in the absence of fraud or other vitiating circumstances statutorily specified or judicially laid down. The concept of indefeasibility is, however, not defined in the NLC. In Frazer v. Walker, a Privy Council case on appeal from New Zealand, Lord Wilberforce explained the concept to mean the immunity from attack by an adverse claim to the land or an interest in respect of which a registered proprietor enjoys. In other words, no adverse claim (except as specifically admitted by statute) may be brought against him.
Case lawdevelopments following Adorna Properties have added their fair share of ambiguities to the concept of indefeasibility embodied in the NLC. It is well-known that the Torrens system of registration seeks to provide for, inter alia, certainty of title and interests. However, this objective was undermined by the Federal Court decision in Adorna Properties and the judicial interpretations following it which pay scant regard to the spirit and intent of the indefeasibility provision in the NLC, which we now turn to.
Number of Pages in PDF File: 12Accepted Paper Series
Date posted: April 4, 2011
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