Ismail @ Shamsudin Bin Mamat v Hanisah Binti Mamat (TA-24NCvC-195-10/2025)

HANISAH BINTI MAMAT (NRIC No.: 570222-11-5474)

MAIMUN BINTI MOHAMAD (NRIC No.: 541207-11-5270)

SEPIAH BINTI MOHAMAD (NRIC No.: 520724-11-5356) … DEFENDANTS GROUNDS OF JUDGMENT

This is the judgment of the Court in respect of the Plaintiff's application by way of an Originating Summons dated 22 October 2025 for an order to terminate the co-proprietorship and for the partition of the land held under GM 1156, Lot 2497, Mukim Bukit Peteri, Daerah Besut, Negeri Terengganu. The application is made under Section 145 of the National Land Code 1965 (“NLC”).

The Plaintiff, Ismail @ Shamsudin bin Mamat, is a co-proprietor of the said land holding a 1349/6579 share. The Defendants are the other co-proprietors, namely Hanisah binti Mamat (First Defendant), Maimun binti Mohamad (Second Defendant), and Sepiah binti Mohamad (Third Defendant), holding shares of 2532/6579, 1349/6579, and 1349/6579 respectively.

The crux of this application lies in determining which proposed partition plan is fair, practical, and just to all parties. The Plaintiff seeks to adopt his proposed plan as per Exhibit "ISM-2", while the Second and Third Defendants have put forward their counter-proposal in Exhibit "DEF-1".

The subject land, GM 1156, Lot 2497, is situated in Mukim Bukit Peteri, Daerah Besut, Terengganu, with a total area of 0.6579 hectares. The land is held under co-proprietorship by four siblings, with the shares as stated above.

The Plaintiff, as a minority co-proprietor, has expressed a desire to partition the land to achieve clear boundaries between the co-proprietors. Despite attempts at negotiation, the parties failed to reach a consensus, prompting the Plaintiff to seek court intervention.

The Plaintiff's proposed plan (Exhibit "ISM-2"), dated 4 February 2025, allocates:

Plot 1 (0.1349 Ha) to the Plaintiff;

Plot 2 (0.5230 Ha) jointly to the First, Second and Third Defendants. This plan, as shown in Figure 1 below, was prepared by a licensed surveyor and takes into account the current occupation and existing structures on the land. Figure 1: Relevant portion of Exhibit ISM-2 of Enclosure 2

On 18 June 2025, the Plaintiff's solicitors forwarded a letter to all Defendants enclosing the proposed partition plan at Exhibit "ISM- 2" and requesting their feedback within fourteen (14) days. The First Defendant subsequently agreed to the Plaintiff's plan through an Affidavit of Consent filed in Enclosure 8.

The Second and Third Defendants responded by separate letters dated 25 June 2025:

Exhibit MS-1 (Second Defendant): The Second Defendant stated that she does not agree with the Plaintiff's proposal and informed that she would submit a counter-proposal plan.

Exhibit MS-2 (Third Defendant): The Third Defendant similarly stated that she does not agree with the Plaintiff's proposal. She cited that the proposal was not the same as the earlier informal partition plan and that the building distribution issue remained unresolved. She requested that the matter be discussed again with all parties.

On 10 December 2025, the Second and Third Defendants filed their Affidavit of Reply (Enclosure 9), attaching an informal sketch marked as Exhibit "MS-3", which was prepared without proper measurement by a licensed surveyor. This sketch placed the internal access road within their allocated portion (Plot 2). See Figure 2.

On 23 February 2026, the Second and Third Defendants filed an Additional Affidavit (Enclosure 12) and for the first time submitted a formal counter-proposal plan prepared by a licensed surveyor, marked as Exhibit "DEF-1". This plan, as shown in Figure 3 below, places the internal access road entirely within their allocated portion (Plot 2). This counter-proposal was submitted approximately four months after the Plaintiff's plan was circulated. Figure 3: Relevant portion of Exhibit DEF-1 of Enclosure 12

Having considered the submissions of all parties, this Court identifies the following issues for determination:

Whether the Plaintiff's application under Section 145 of the National Land Code 1965 is meritorious;

Whether the Defendants' responses in Exhibits MS-1 and MS-2 constitute a refusal to consent for the purposes of Section 145(1)(a) of the National Land Code 1965; and

Which proposed partition plan is fair, practical, and just for the purpose of partition. COUNSELS’ CONTENTIONS Plaintiff’s Submissions

The Plaintiff submits that his application under Section 145 of the NLC is proper and necessary, as the Second and Third Defendants refused to give consent for a voluntary partition. The Plaintiff relies on the principle established in S Subramaniam & Ors v Inderjit Kaur Karnail Singh & Anor [1997] 3 CLJ 746 (HC) where the High Court held that Section 145(1)(a) applies where a minority shareholder intends to apply for partition but faces refusal of consent from other co-proprietors.

The Plaintiff further relies on KM S Kumarappan Chettiar v Ramasamy s/o S Chockalingam [2000] 7 MLJ 682 (HC) where Vincent Ng J (as His Lordship then was) allowed the application of a plaintiff whose co-proprietor refused to join or consent to a partition application under Section 140 of the NLC, deeming such refusal sufficient to trigger the operation of Section 145(2)(a).

The Plaintiff argues that his proposed plan is fair, practical, and beneficial to all parties as it:

Preserves existing structures;

Respects the shares as reflected in the title document;

Takes into account the current occupation of the land;

Provides the best utility for all parties.

Critically, the Plaintiff has provided an unequivocal undertaking to the Court that even if the internal access road falls within his allocated portion, he will not obstruct or close the road, as it is a common access way. The Plaintiff has further stated that he has no objection to the access road being placed within the Defendants' portion. This undertaking demonstrates the Plaintiff's commitment to ensuring uninterrupted access for all parties.

The Plaintiff also contends that the counter-proposal by the Defendants at Exhibit "MS-3" (Figure 2) was merely an informal sketch prepared without proper measurement by a licensed surveyor. While the Defendants later submitted a formal plan at Exhibit "DEF-1", the Plaintiff maintains that his plan remains superior.

Regarding the claim for compensation for the building, the Plaintiff argues that this is irrelevant to the partition application. The Plaintiff relies on the Official Search (Exhibit DEF-2) which shows that the land was acquired through voluntary transfer, not inheritance, and therefore the Defendants have no basis to claim compensation. The Plaintiff also cites Kamariah Mohd Yasin v Kamarudin & 1 lagi (2025) CLJU 1093 (HC) where Wan Fadhilah Nor Wan Idris J recognized that as co-proprietors, each party is entitled to the possession and enjoyment of the whole land.

On the burden of proof, the Plaintiff invokes Section 103 of the Evidence Act 1950, asserting that the Defendants have failed to discharge their burden to prove any contribution to the construction of the building for which they seek compensation.

The Second and Third Defendants do not oppose the principle of partition but object to the Plaintiff's proposed plan. Their primary contentions are as follows:

The Plaintiff's proposed plan places the internal access road within the Plaintiff's allocated portion;

They prefer that the internal access road be placed within their portion (Plot 2);

The building distribution issue has not been resolved;

The counter-proposal at Exhibit "DEF-1" places the internal access road within their portion.

The Court notes that both Plot 1 and Plot 2 have direct access to the main road, as shown on the plan. The dispute is therefore not about access to the main road, but rather about the location of the internal access road within the respective portion.

The Defendants submitted that the Plaintiff's plan is unjust as the existing access road would fall entirely within the Plaintiff's allocated portion, creating the risk of future disputes. They argued that the undertaking given by the Plaintiff to allow access is insufficient, as it may not bind future owners or successors.

Significantly, the Court observes that in the Defendants' counter-proposal at Exhibit "DEF-1", the Defendants have placed the existing access road entirely within their allocated portion (Petak 2). However, unlike the Plaintiff, the Defendants have not provided any undertaking to the Court that they would grant access to the Plaintiff or other parties through this road. There is no reciprocal commitment from the Defendants to ensure that the Plaintiff would have uninterrupted access to his portion of the land.

Regarding compensation for the building, the Defendants argued that the building was constructed by the late parents of all parties and constitutes inherited property. They submitted that distribution of this building should be resolved, with the Plaintiff paying reasonable compensation to the Defendants for the building that would become his absolute property upon partition.

The Defendants rely on Section 145 of the NLC and argue that the court has the discretion to order terms it deems just, including ordering compensation or even a sale of the land.

I have carefully considered the submissions and evidence presented by both parties, including the affidavits, exhibits, and written submissions. I have also examined the case law cited by both counsels. ISSUE 1: Whether the Plaintiff's application under Section 145 of the National Land Code 1965 is meritorious

It is trite law that under Section 145(1) of the NLC, the Court is empowered with a discretion to order the partition of any land held under co-proprietorship or to make any order it thinks just for the purpose of enabling the co-proprietorship to be terminated. The provision states: "(1) Where, in the case of any land vested in co-proprietors –

any of the co-proprietors will neither join in, nor consent to the making of, an application for partition under this Chapter, or

by reason of the operation of paragraph (f) of sub-section (1) of section 136 (as applied by section 141), partition of the land between all of the co-proprietors is incapable of being approved under this Chapter, the Court, subject to and in accordance with the provisions of any law for the time being in force relating to civil procedure, may, on the application of any of the co-proprietors, make such order as it may think just for the purpose of enabling the co-proprietorship to be terminated.”

The Court draws guidance from the decision in S Subramaniam & Ors v Inderjit Kaur Karnail Singh & Anor (supra), where Hishamuddin Yunus J (as His Lordship then was) held that Section 145(1)(a) of the NLC applies only to co-proprietors holding a minority share. His Lordship observed that the provision is intended for situations where the holder of the minority share intends to apply to the Land Administrator pursuant to Section 142 but faces refusal of consent from other co-proprietors as required by Section 142(1)(e).

In contrast, his Lordship held that a co-proprietor holding the majority share must apply to the Land Administrator under Section 141A read with Section 142 of the NLC, and is not required to obtain the consent of other co-proprietors. If such an application is rejected, the majority co-proprietor may appeal to the High Court under Section 418 of the NLC.

Applying this distinction to the present case, the Plaintiff holds a minority share of 1349/6579. Unlike the majority shareholders in S Subramaniam, the Plaintiff is not exempted from obtaining consent under s 142(1)(e). The Defendants' refusal to consent (Exhibits MS-1 and MS-2) therefore triggered the Plaintiff's right to invoke s 145(1)(a) of the NLC.

This Court therefore finds that the Plaintiff's application is properly brought under s 145(1)(a), and distinguishes the present case from S Subramaniam where the application was dismissed for want of jurisdiction.

The law is well settled that this provision is available to any co-proprietor who wishes to terminate the co-proprietorship but faces difficulties when other co-proprietors refuse to join in or consent to the application. In Young Yean Chin & Ors v Quek Yak Kang & Ors [2016] MLJU 1737 (HC) per Abdul Aziz Abdul Rahim JCA, the Court of Appeal confirmed this position.

In the present case, it is not disputed that the Second and Third Defendants refused to consent to the Plaintiff's proposed partition plan. This is evidenced by their letters dated 25 June 2025 (Exhibits MS-1 and MS-2). Despite the Plaintiff's attempts at negotiation, including sending the proposed plan for their consideration, the Defendants have not provided their consent.

Accordingly, this Court finds that the Plaintiff's application under Section 145(1)(a) is properly brought and is meritorious. The Plaintiff, as a minority co-proprietor, is entitled to seek the court's intervention to terminate the co-proprietorship where consent has been refused. ISSUE 2: Whether the Defendants' responses in Exhibits MS-1 and MS-2 constitute a refusal to consent for the purposes of Section 145(1)(a)

The Defendants have argued, implicitly, that their responses in Exhibits MS-1 and MS-2 should not be construed as a refusal because they indicated a willingness to discuss and proposed to submit a counter-proposal. The Court does not accept this submission.

A careful reading of Exhibits MS-1 and MS-2 reveals that the Defendants explicitly stated they did not agree with the Plaintiff's proposal. The Second Defendant stated she “tidak bersetuju” ("does not agree") with the proposal. The Third Defendant similarly stated she “tidak bersetuju” ("does not agree") with the proposal, citing specific reasons including that the proposal differed from the earlier informal plan and that the building distribution issue remained unresolved.

The Court finds that imposing conditions and proposing a counter-proposal does not negate the fact of refusal. Where a co-proprietor explicitly states non-agreement to a specific proposal, and that non-agreement is not subsequently withdrawn, the requirement of "will neither join in, nor consent to" under Section 145(1)(a) is satisfied.

The law does not require an absolute or final refusal before Section 145(1)(a) can be invoked. It is sufficient that the co-proprietor does not consent to the specific proposal being put forward. This is consistent with the principle in KM S Kumarappan Chettiar v Ramasamy s/o S Chockalingam (supra), where the court held that the defendant's failure to respond to an invitation to participate was sufficient to trigger Section 145(2)(a).

In the present case, the Plaintiff's proposal was clear and specific. The Defendants' stated non-agreement with conditions not accepted by the Plaintiff constitutes a refusal. Moreover, despite indicating they would submit a counter-proposal, the Defendants only provided a formal plan approximately four months later, and never withdrew their initial refusal.

The Court further notes that the conditions imposed by the Defendants were not mere procedural matters but went to the core of the partition proposal – namely, the location of the access road and financial compensation for buildings. These are substantive issues that effectively amounted to a rejection of the Plaintiff's plan in its entirety.

By stating "I do not agree" and then failing to provide a formal counter-proposal within a reasonable time, the Defendants' conduct clearly falls within the meaning of "will neither join in, nor consent to" under Section 145(1)(a). ISSUE 3: Which proposed partition plan is fair, practical, and just for the purpose of partition

This is the central issue in dispute. The Court is required to determine which proposed plan is fair, practical, and just for the purpose of partition.

The principles governing partition applications have been clearly established. In T Ibrahim T Baharom & Ors v Shabudin Md Saad [2014] MLJU 1944 (HC), Abu Bakar Katar JC (as His Lordship then was) held that the primary consideration for the Court under Section 145(1)(a) is "as it may think just". The court agreed that co-proprietorship should be terminated for the benefit of all parties, as partition enables measurement and determination of each party's portion, indirectly increasing the value of the land and facilitating future dealings.

I find that the Plaintiff's plan at Exhibit "ISM-2" has several merits:

It was prepared by a licensed surveyor, Jurukur Hasruzei Daud;

It strictly adheres to the shares of each party as reflected in the title document;

It takes into account existing structures and current occupation of the land;

It avoids demolition of any existing buildings;

It is practical and usable for all parties.

The Plaintiff has also demonstrated that he has made genuine efforts to resolve the matter amicably. He sent the proposed plan to all Defendants on 18 June 2025, seeking their feedback. The First Defendant has agreed to the Plaintiff's plan through an Affidavit of Consent (Enclosure 8). This is a significant factor, as two out of the four co-proprietors either support or do not oppose the Plaintiff's plan.

The Second and Third Defendants' counter-proposal requires careful examination. Their initial counter-proposal at Exhibit "MS- 3" was merely an informal sketch without proper measurement by a licensed surveyor. While they later submitted a formal plan at Exhibit "DEF-1", this plan was only produced approximately four months after the initial proposal was circulated. The Plaintiff had repeatedly requested a counter-proposal, but the Second and Third Defendants delayed in providing one.

The issue of internal access is the primary dispute between the parties. The Court notes a significant distinction between the positions of the parties regarding this issue.

Critically, both Plot 1 and Plot 2 have direct access to the main road, as clearly shown on the plan. This means that neither party will be "landlocked" regardless of which plan is adopted. Both parties will have physical access to their respective portions from the main road.

Accordingly, the Defendants' objection is not directed at the lack of access per se, but at the positioning of the internal access road – the thoroughfare that runs through the land and connects to the main road. While the Defendants advocate that this internal road should reside within their designated portion (Plot 2), the Plaintiff's plan places it within his portion (Plot 1).

The Plaintiff has provided an unequivocal undertaking to this Court that even if the internal access road falls within his portion, he will not obstruct or close the road to the Defendants or any other person. This undertaking addresses the Defendants' concerns and provides a legally binding assurance for future internal access.

In stark contrast, the Defendants' counter-proposal at Exhibit "DEF-1" places the internal access road entirely within their allocated portion (Plot 2). The Defendants have not provided any undertaking to the Court that they would grant the Plaintiff access through this internal road. There is no reciprocal commitment from the Defendants to ensure uninterrupted internal access for the Plaintiff.

This creates a fundamental imbalance. If the Defendants' plan were adopted and the internal access road were placed in their portion without any undertaking, the Plaintiff could potentially be left without legal assurance of internal access. While both parties have direct access to the main road, the internal road may be relevant for internal movement or future development. The risk of future disputes over internal access would be greater under the Defendants' plan, as they have given no binding commitment to allow access.

The Court finds it significant that the Plaintiff has been proactive in addressing the access issue by providing an undertaking, while the Second and Third Defendants have not reciprocated. The Second and Third Defendants, in their counter-proposal, have effectively sought to secure the access road within their own portion without providing any corresponding assurance to the Plaintiff.

In the context of partition applications, the Court must consider not only the immediate practicality of the proposed plan but also the long-term implications and potential for future disputes. The Plaintiff's plan, coupled with his undertaking, provides a more secure arrangement that minimizes the risk of future conflicts over access.

Regarding the claim for compensation for the building, I find that this is not relevant to the partition application. The partition application is based on the shares as reflected in the title document and the current occupation of the land. The Official Search at Exhibit DEF-2 shows that the land was acquired through voluntary transfer, not inheritance. Therefore, the Second and Third Defendants' claim that the building constitutes inherited property requiring compensation is without basis.

In Kamariah Mohd Yasin v Kamarudin & 1 lagi (supra), the court recognized that as co-proprietors, each party is entitled to the possession and enjoyment of the whole land under Section 343(1)(b) of the National Land Code 1965. The court also found that based on the principle of justice, it is proper for the land to be partitioned and registered according to each party's portion to avoid future disputes. This principle applies in the present case.

I also note that in Azlina Anuar v Baharudin Hamat [2023] CLJU 182 (HC) where Mohamad Abazafree Mohd Abbas JC (as His Lordship then was) emphasized the importance of respecting existing occupation and not disturbing the status quo. Both the Plaintiff's plan at Exhibit "ISM-2" and the Defendants' counter- proposal at Exhibit "DEF-1" preserve existing structures without requiring demolition. However, the Plaintiff's plan was the one that proactively addressed this concern from the outset, demonstrating his good faith in the matter.

Having carefully considered both plans, I find that the Plaintiff's plan at Exhibit "ISM-2" is superior for the following reasons:

It respects the shares as reflected in the title document;

It preserves existing structures;

It has been agreed to by the First Defendant who owns 2532/6579 share of the property;

It is practical and provides optimum use for all parties;

It was prepared by a licensed surveyor and was circulated to all parties in a timely manner;

It addresses internal access through an unequivocal undertaking;

The Defendants have provided no reciprocal undertaking in their counter-proposal;

Adopting the Defendants' plan would create uncertainty regarding the Plaintiff's access.

The Court acknowledges the principle that partition should be based on the shares as reflected in the title document and should be practical and usable for all parties. The Plaintiff's plan achieves these objectives. The undertaking given by the Plaintiff regarding internal access is a critical factor that distinguishes his plan from the Defendants' counter-proposal. The Plaintiff has acted in good faith by providing a binding assurance of access. The Defendants, however, have adopted an intransigent position – raising objections without offering any reciprocal commitment, and in doing so, have created the very uncertainty they claim to fear.

For the reasons set out above, this Court finds that the Plaintiff's application is meritorious and is allowed.

The Court makes the following orders:

The co-proprietorship of the land held under GM 1156, Lot 2497, Mukim Bukit Peteri, Daerah Besut, Negeri Terengganu is hereby terminated;

The Land Administrator for the District of Besut, Terengganu is hereby ordered to partition the said land into two (2) portions marked as Plot 1 and Plot 2, in accordance with the plan in Exhibit "ISM-2" attached to the Plaintiff's Supporting Affidavit in Enclosure 2;

The Plaintiff is granted permission to make the application for partition with the conditions and category of land use remaining permanent for the said land, without requiring the signatures of the Defendants, and is granted permission to sign the partition plan and any documents and/or instruments relating to the partition;

Costs of RM5,000.00 are awarded to the Plaintiff to be paid by the Second and Third Defendants; and

The Court orders the Land Administrator for the District of Besut and any relevant agencies/departments involved in the partition process to recognize and give effect to this order.

This order is made in the interest of justice and to avoid future disputes between the co-proprietors. It is a fundamental principle of land law that co-proprietorship should be terminated where possible to allow each proprietor to enjoy his or her portion without interference from others. As held in T Ibrahim T Baharom & Ors v Shabudin Md Saad (supra), partition indirectly increases the value of the land and facilitates future dealings, thereby benefiting all parties. Dated: 26 July 2026 Yusrin Faidz Bin Yusoff Judge High Court of Malaya Kuala Terengganu Counsel for the Plaintiff: Ainur Nasyihah Binti Che Omar Messrs. Abqary Aziz & Co. PT 8038, Tingkat 2, Bandar Satelit Pasir Tumboh, 16150 Kota Bharu, Kelantan Darul Naim. Counsel for the Second and Third Defendants: Shamsul Baharin Bin Abdullah Messrs Rozma Baharin & Samila Awang Hamat, Lot 2249, Taman Rogayah, Jalan Long Yunus, 15200 Kota Bharu, Kelantan Darul Naim.

Al Rashidy Kassim & Ors v Rosman Roslan [2007] 3 CLJ 361

S Subramaniam & Ors v Inderjit Kaur Karnail Singh & Anor [1997] 3 CLJ 746 (HC).

KM S Kumarappan Chettiar v Ramasamy s/o S Chockalingam [2000] 7 MLJ 682 (HC).

Kamariah Mohd Yasin v Kamarudin & 1 lagi (2025) CLJU

Young Yean Chin & Ors v Quek Yak Kang & Ors [2016] MLJU

T Ibrahim T Baharom & Ors v Shabudin Md Saad [2014]

Azlina Anuar v Baharudin Hamat [2023] CLJU 182 (HC).

Sections 140, 141, 141A, 142, 145, 343(1)(b), & 418 of the National Land Code 1965.

Order 7 of the Rules of Court 2012.

Section 103 of the Evidence Act 1950.