Khalid A.H. Alazawi v Lina Diyana Binti Mohd Jamal (BA-24NCvC-2762-12/2025)

LINA DIYANA BINTI MOHD JAMAL (No. K/P: 840622-03-5024)

PENDAFTAR HAK MILIK SELANGOR ...RESPONDEN-RESPONDEN GROUNDS OF DECISION (PRIVATE CAVEAT)

Vide Form 19C of the National Land Code (Revised 2020) Act 828 (“Act 828”) dated 29 October 2025 (“Form 19C”), the Second Respondent notified the Applicant that the ‘Kaveat Persendirian Melalui Perserahan No. 00B55710/2025’ (“Private Caveat”) lodged by the Applicant on the First Respondent’s residential property, which is registered as H.S.(D) 137567, PT 66856, Mukim Kapar, Daerah Klang, Negeri Selangor (“Residential Property”), would be removed in two months unless the Applicant obtained a Court Order to extend the said period.

In this Originating Summons (“OS”), the Applicant sought an Order to extend the Private Caveat under Section 326(2) of Act 828.

Should the 2-month period specified in Form 19C be extended?

The Applicant and First Respondent got married on 11 April 2008.

On 14 September 2016, the First Respondent purchased the Residential Property from Chong Peng Peng and Koay Yew Jinn.

On 22 December 2016, the First Respondent became the registered proprietor of the Residential Property.

On 22 December 2016, the First Respondent created a first-party first legal charge under Act 828 in favour of Hong Leong Islamic Bank Berhad as security for the repayment of her financing facility from Hong Leong Islamic Bank Berhad.

On 18 June 2025, the First Respondent filed for divorce at the Shah Alam Syariah Court.

On 20 August 2025, the Applicant lodged the Private Caveat while divorce proceedings were ongoing.

On 23 October 2025, the First Respondent made an application to the Second Respondent to have the Private Caveat removed.

On 29 October 2025, the Second Respondent issued Form 19C to the Applicant.

On 22 December 2025, Rozi Bainun JC (as she then was) granted an interim order extending the two months to 23 February 2026.

Once a challenge is made to the entry of the private caveat, the caveator must prove that he has a caveatable interest in the land (Million Group Credit Sdn Bhd v. Lee Shoo Khoon & Ors [1984] 1 MLRH 484; Wong Kuan Tan v. Gambut Development Sdn. Bhd. [1984] 1 CLJ Rep 441; [1984] 2 MLJ 113 FC; Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLRA 496; [1995] 1 MLJ 719; [1995] 3 CLJ 520; [1995] 2 AMR 969 COA (paragraph [92]-[101]).

In Score Options Sdn Bhd v Mexaland Development Sdn [2012] 5 AMR 485 FC, Arifin Zakaria CJ (as he then was) explained the words ‘caveatable interest’ and ‘registrable interest’ as follows: “[25] A caveat is a creature of statute namely, the NLC and hence it can only be lodged by a claimant who has a caveatable interest under the NLC. The purpose of a caveat is to protect an interest in a land, or a right to an interest in that land (see Yeong Ah Chee v. Lee Chong Hai & Anor and Other Appeals [1994] 1 MLRA 226; [1994] 2 MLJ 614 at 624) and to preserve the status quo of the land pending the enforcement of such interest or right (see Registrar of Titles, Johore v. Temenggong Securities Ltd [1976] 1 MLRA 180; [1976] 2 MLJ 44 at 46). … [35] It is our considered view, therefore, that based on the provisions of NLC and the authorities cited above, the only parties who are authorised to lodge a private caveat are those who may effect dealings in the particular interests in the land. Those parties may either have a claim to the title to the land or a claim to a registrable interest in the land or a claim to any right to such title or registrable interest. [36] Emphasis should be given to the words “registrable interest” in s 323(1)(a) of the NLC. To be caveatable, the interest must be an interest in the land and that interest must be capable of registration. In short, it must represent a transaction that can ultimately lead to its registration on the register.” [Emphasis added]

In this case, the Learned Counsel for the Applicant contended that the Applicant had a caveatable interest in the Residential Property, primarily due to these two key factors:

firstly, the Residential Property is a ‘Harta Sepencarian’; and

secondly, the Applicant’s financial contributions. In paragraph 46 of Enclosure 17, the Learned Counsel of the Applicant argued as follows. “Justeru itu, Pemohon menegaskan bahawa kepentingan Pemohon terhadap Hartanah tersebut bukanlah bersandarkan kepada kepentingan kewangan semata-mata, sebaliknya berasaskan tindakan suci hati Pemohon yang telah secara konsisten menjelaskan bayaran pinjaman perumahan sepanjang tempoh Responden Pertama tidak mempunyai keupayaan kewangan.” [Emphasis added]

For ease of reference, I reproduce Form 19B under Act 828 (“Form 19B”) lodged by the Applicant.

I disagree with the Learned Counsel for the Applicant’s arguments that the Applicant has a caveatable interest in the Residential Property, for the reasons set out below. First Reason No Syariah Court Ruling On Harta Sepencarian.

Although the First Respondent does not dispute the Applicant’s financial contributions, the question is whether those financial contributions constitute a caveatable interest in the Residential Property.

Regarding a private caveat lodged based on a claim for a ‘Harta Sepencarian’, reference should be made to the recent decisions of the High Court of Malaya at Kuala Lumpur in:

Ahmad Faez bin Yahaya v Nur Azleen Soliha Bt Abdul Waris & Anor [2025] MLJU 1128; [2025] MLRHU 730 (“Ahmad Faez No.1”); and

Ahmad Faez bin Yahaya v Nur Azleen Soliha Bt Abdul Waris & Anor 2026 MLRHU 94 (“Ahmad Faez No.2”).

In Ahmad Faez No.1:

Nur Azleen Soliha Bt Abdul Waris (“Nur Azleen”) lodged a private caveat while the Syariah Court Harta Sepencarian case was still ongoing;

Roz Mawar J ruled that Nur Azleen had no caveatable interest in the four impugned properties. The Learned Judge had this to say: “[7] The Federal Court in Score Options Sdn Bhd v. Mexaland Development Sdn Bhd [2012] 6 MLRA 216; [2012] 6 MLJ 475; [2012] 7 CLJ 802; [2012] 5 AMR 485 ruled that a caveatable interest must relate to ownership or a registrable interest in the land and not merely a monetary entitlement. Similarly, in Tan Heng Poh v. Tan Boon Thong & Ors [1992] 1 MLRA 324; [1992] 2 MLJ 1; [1992] CLJ (Rep) 1 316, the Court held that a claim to the proceeds of sale of land does not constitute a caveatable interest because it does not confer a proprietary interest in the land. [8] The Court of Appeal in Ib Capital Sdn Bhd v. Ivory Indah Sdn Bhd & Anor [2021] MLRAU 148; [2022] 1 MLJ 860 reaffirmed that a caveat operates as a protection of an alleged interest in the land itself, not as a security for monetary claims. [9] … The NLC and case laws consistently exclude monetary claims from caveatable interests. Since the 1st Defendant’s claim is purely for monetary compensation, she does not satisfy the legal requirements to lodge private caveats on each of the respective 4 properties.” [Emphasis added]

In Ahmad Faez No.2:

Nur Azleen lodged another private caveat;

this time, it was filed based on a Syariah High Court ruling confirming her ownership of 1/10 of the impugned properties;

Ahmad Faez Bin Yahya filed an application to remove the private caveat under Section 327 of Act 828;

Arziah Mohamed Apandi JC dismissed Ahmad Faez Bin Yahya’s application to remove the private caveat, noting that the Syariah Court ruling established Nur Azleen’s 1/10 ownership and registrable interest in the impugned properties.

The Applicant cannot simply lodge the Private Caveat on the basis that he had an interest in the Residential Property under ‘Harta Sepencarian’.

To maintain or extend the Private Caveat in this case, the Applicant must demonstrate that he previously received a Syariah Court decision confirming his interest in the Residential Property under ‘Harta Sepencarian,’ as was the case in Ahmad Faez No.2.

In Score Options Sdn Bhd v. Mexaland Development Sdn [2012] 5 AMR 485, the Federal Court explained the need for the caveator to demonstrate existing interest as opposed to potential interest. The Federal Court held that: “[39] It is also our considered view that the caveator under s 323(1)(a) of the NLC must have a present interest as opposed to a potential interest in the land. The registrable interest that the caveator is claiming for, must be an existing interest. The caveator under s 323(1)(a) of the NLC must be limited to those who are claiming to an existing interest in the land or right to such existing interest and cannot include potential interest or interest in future.” [Emphasis added]

In this case, the Applicant did not produce any decision of the Syariah Court determining that the Applicant had an interest in the Residential Property under ‘Harta Sepencarian’.

In the absence of a decision by the Syariah Court on ‘Harta Sepencarian’, the Applicant’s claim to have a caveatable interest in the Residential Property is devoid of merit. Second Reason The Applicant Acknowledged Not Having Any Registrable Interest In The Residential Property.

In paragraph 10 of his affidavit in Enclosure 2, the Applicant admitted that he had no registrable interest in the Residential Property: “Saya menyatakan bahawa pendaftaran Hartanah tersebut telah dibuat atas nama Responden Pertama memandangkan status saya sebagai warganegara Iraq tidak membolehkan saya mendaftarkan hakmilik Hartanah tersebut atas nama saya sendiri” [Emphasis added]

In emails sent on 4 August 2025 and 11 September 2025, the Applicant indicated his willingness to withdraw the Private Caveat and to allow the First Respondent to manage the Residential Property freely.

The Applicant only wanted his share of the sale proceeds from the Residential Property paid to him in advance.

The emails clearly indicate that the Applicant’s main concern is the financial gain from the sale proceeds of the Residential Property, not any claim to a registrable interest in it.

A purely monetary claim does not fall within the ambit of Section 323 of Act 828, which is intended to protect registrable interest (Score Options Sdn Bhd v. Mexaland Development Sdn [2012] 5 AMR 485; Tan Heng Poh v. Tan Boon Thong & Ors [1992] 1 MLRA 324; [1992] 2 MLJ 1; [1992] CLJ (Rep) 1 316; Ib Capital Sdn Bhd v. Ivory Indah Sdn Bhd & Anor [2021] MLRAU 148; [2022] 1 MLJ 860; Ahmad Faez bin Yahaya v Nur Azleen Soliha Bt Abdul Waris & Anor [2025] MLJU 1128; [2025] MLRHU 730)

The Applicant is an Iraqi.

Although he is now a permanent resident of Malaysia, he still does not possess Malaysian citizenship.

Under Section 433A of Act 828, the Applicant is regarded as a non-citizen.

As a non-citizen of Malaysia, the Applicant must first obtain the consent of the State Authority to acquire the Residential Property, as stipulated in Section 433B of Act 828.

There is no evidence in this OS that the Applicant has secured the State Authority’s consent to acquire the Residential Property.

Without the State Authority’s consent, the Applicant does not have a registrable interest in the Residential Property.

The Applicant’s reliance on the status quo argument is misplaced.

In the absence of a Syariah Court ruling on ‘Harta Sepencarian’, the status quo to be preserved is the First Respondent’s legal position as the registered proprietor of the Residential Property.

That being the case, the First Respondent’s intention to sell the Residential Property is a legitimate exercise of her rights as the registered proprietor.

The Private Caveat has obstructed the sale and caused prejudice to the First Respondent by preventing her from realising the asset’s value.

For the foregoing reasons, I find that the Applicant has failed to establish a caveatable interest in the Residential Property.

This OS is dismissed with costs of RM3,000.00, subject to allocatur, payable by the Applicant to the First Respondent.

As agreed by the parties, no Order as to costs is made to the Second Respondent.

The Private Caveat must be removed forthwith by the Second Respondent upon the service of the sealed Order on the Second Respondent, in accordance with the Kaedah-Kaedah Tanah Selangor 2003. Dated this 13th day of April 2026 SGD HELMI BIN HAMZAH JUDICIAL COMMISSIONER HIGH COURT IN MALAYA AT SHAH ALAM NEGERI SELANGOR Counsel for the Applicant : Nik Shamiera Binti Adnan (Messrs Ezzah Alia & Associates) Counsel for the First Respondent : Amierul Razzi Bin Ahmad Yusoff (Messrs Manjit Singh Sachdev, Mohamad Radzi & Partners) Counsel for the Second Respondent : Puan Lubna Mohd Fakhrudin (Penolong Penasihat Undang-Undang