Malay Reservation land – Malay holding – Whether a non-Malay purchaser can be registered as proprietor – Whether mere endorsement of Malay Reservation Land without particulars sufficient for property to be declared Malay holding

Bebe Sakimah bt Mohd Asrof v Pendaftar Hakmilik Negeri
[2020] MLJU 1747, High Court

- see the grounds of judgment here

Facts The plaintiff was the successful bidder in the auction of a property situated in Perak which was expressly stated as a Malay Reservation Land ('MRL'). The plaintiff attempted to register herself as the proprietor of the property at the land office, but was rejected by the defendant on the ground that she was not a Malay ('first rejection'). The plaintiff appealed to the defendant against the first rejection and the defendant requested that the plaintiff make a fresh presentation. The plaintiff obliged ('second presentation') but, again, her presentation was rejected ('second rejection') on the grounds that (i) the property was a MRL and could only be transferred to a Malay; and (ii) the plaintiff was not a Malay. Aggrieved by the defendant's rejections, the plaintiff initiated the present action: (i) the property under MRL was not a Malay holding and, therefore, as the successful bidder, she was entitled to have the property registered under her name; (ii) a document of title be registered and issued under her name; (iii) the defendant register and issue an issue document of title for the property in her name without levying any fee or penalty; and (iv) the defendant refund the registration fees for the first presentations and penalty for the second presentation. Despite accepting the position taken by the defendant that she was not a Malay, the plaintiff argued that (i) MRL has two categories: Malay holding and non-Malay holding; (ii) the property was not a Malay holding and, therefore, the defendant ought to register the plaintiff as the proprietor of the property; (iii) although there was an endorsement of MRL in the title to the property, there were no other details on its status; and (iv) since the defendant failed or neglected to enter the requisite memorial with a note on the area and Gazette notification number on the issue document of title whether the property has been declared as Malay holding, it was presumed that (a) there was an incomplete endorsement; and (b) a mere endorsement of MRL was insufficient for the property to be a Malay holding.

Issue The main issue in this case is whether all the land categorised as MRL is a Malay Holding?

Held Since the defendant had not complied with the requirement that the particulars of a lawful memorial be entered onto the title of the property, pursuant to sections 6(i) and 2(a) of the Malay Reservation Enactment (FMS Cap. 142) ('MRE') which spells out a three-step process for a land to be declared under Malay Reservation post the commencement of the MRE to be a Malay holding
[1], the High Court held that the property was not a Malay holding and could be registered under the plaintiff's name.

ZUL RAFIQUE & partners
{30 November 2020}

[1](i) a publication is made in the Gazette making notification of the alienated lands that are included in a Malay Reservation; (ii) the Collector of the district in which such lands are situated shall present to the proper registering authority a requisition in Form A in the First Schedule containing a list of all alienated lands included and affected by such declaration to note in his registers of titles the fact of the inclusion of such lands in such Malay Reservation; and (iii) the proper registering authority shall make a memorial upon every register of document of title included in the lands declared as Malay Reservation.