Mohd Fazlin Bin Husin v Ahmad Bin Mat Saad (KA-24NCvC-646-12/2024)

AHMAD BIN MAT SAAD (No. K/P: 590119-02-5655)

AZIZAH BINTI MAT SAAD (No. K/P: 570112-02-5486)

BAHARUM BIN HANAPIAH (No. K/P: 500404-02-5339) 21/04/2026 20:02:18 KA-24NCvC-646-12/2024 Kand. 31

EMBUN BINTI HANAPIAH (No. K/P: 510329-02-5394)

NOOR AINI BINTI MD AKHIR (No. K/P: 580815-02-5190) Sebagai Pentadbir Kepada Harta Pusaka Habsah bin Ahmad 6. ISMAIL BIN MAT SAAD (No. Tentera: T718933)

MARYANI BINTI ALI (No. K/P: 640805-02-5922)

MD NOOR BIN AB HAMID (No. K/P: 700620-02-5119) Sebagai Pentadbir Kepada Harta Pusaka Saadiah binti Md Nor 9. SITI AMINAH BINTI AWANG (No. K/P: 360603-02-5194) (No. K/P: 620208-02-5977) (No. K/P: 690320-08-5885) Sebagai Pentadbir Kepada Harta Pusaka Zaleha Binti Mat (No. Tentera: T714552) …DEFENDANTS GROUND OF JUDGMENT (Encl. 1) Introduction

This is rather an unfortunate case, arising from co-proprietorship. The Plaintiff and the 1st to 12th Defendants are co-proprietors of a land held under a title. Each of them came to be a registered proprietor under different circumstances, which for the present is not relevant. What is relevant is that there is no agreement on which portion each of the co-proprietor should have. The Plaintiff is interested in carving out a separate title to his ownership over the land. He wants the termination of the co-proprietorship. It is obvious that his desire is not shared by others, whatever their motivations are. So, he came to court. Through this Originating Summons dated 26.12.2024 [Encl. 1] the Plaintiff prayed for the following: Setar, District of Kota Setar, Kedah (hereinafter referred to as “the said Property”); Section 145(1) of the National Land Code 1965 to enable the said Property to be partitioned between the Plaintiff and the First Defendant up to the Twelfth Defendant; National Land Code 1965, subject to payment of the fees that may be imposed; Land Office shall issue or cause to be issued separate land titles for the portions of land that have been partitioned. i. That there be issued to the Plaintiff a separate title in which his name shall be entered as proprietor of one portion of land, the division of which shall, as nearly as possible, correspond to his undivided share in the whole of the said Property, namely 13,333/19,584 shares as reflected in the title document Mukim Grant 12417 Lot 5420, Bandar Alor Setar, District of Kota Setar, Kedah, and more specifically delineated as Plot 2 in the said plan; ii. That there be issued to the First Defendant up to the Twelfth Defendant a separate title in which their names shall be entered as proprietors of one portion of land, the division of which shall, as nearly as possible, correspond to their undivided share in the whole of the said Property, namely 6,251/19,584 shares as reflected in the title document Mukim Grant 12417 Lot 5420, Bandar Alor Setar, District of Kota Setar, Kedah, and more specifically delineated as Plot 1 in the said plan; Defendant shall bear all expenses and fees imposed by the Kota Setar Land and District Office, together with any other related costs, for the processing and issuance of two (2) separate titles over the said Property, according to their respective portions or as nearly as possible thereto, which shall be contained in the separate titles issued pursuant to the title of the said Property.

The application is supported by the Affidavit in Support in Encl. 2. Of the relevant Defendants only the 7th Defendant entered appearance and took objection to the Plaintiff’s application. The 7th Defendant in opposition filed an Affidavit in Reply in Encl. 5 which the Plaintiff responded in Encl. 6 through Plaintiff Affidavit in Reply. There was a further Affidavit in Reply 2 in Encl. 7 filed by the 7th Defendant which the Plaintiff responded in Encl. 13 through Plaintiff Affidavit in Reply 2 of which 7th Defendant has filed an Affidavit in Reply 2 (Encl. 14). The 7th Defendant has also filed Additional Affidavit (Encl. 17) and Additional Affidavit 2 (Encl. 18) of which Plaintiff responded by filling Plaintiff Affidavit in Reply 3 (Encl. 19) and finally the 7th Defendant filed the 7th Defendant’s Affidavit in Reply 3 (Encl. 20).

Written submissions were subsequently filed by parties which are Encl. 23 [Plaintiff’s Written Submission] together with Encl. 24 [Plaintiff’s Bundle of Authorities] and Encl. 21 [7th Defendant’s Written Submission] together with Encl. 24 [7th Defendant’s Bundle of Authorities].

Having heard the parties and carefully considered all the evidence before me, I allowed the Plaintiff’s application with no order as to cost.

Dissatisfied with my decision, the 7th Defendant has filed a notice of appeal dated 26 February 2026.

The following are my grounds in arriving at my decision. Background Facts

As stated earlier the Plaintiff in this action is one of the registered proprietors of the undivided shares in the property contained in Mukim Grant 12417 Lot 5420, Bandar Alor Setar, District of Kota Setar, State of Kedah (‘the said Property’). The total area of the land is 1.811 hectares (4.475 acres / 194,934.43 square feet).

The Plaintiff holds 13,333/19,584 shares equivalent to 1.295 hectares (3.200 acres / 139,392 square feet) in the said Property (which is in percentage is equivalent to 68.081 per cent of total area). By that account he is the majority proprietor. The remainder of the Property is held by 12 other proprietors Defendants according to their respective shares.

The Plaintiff has served the cause paper to all the 12 co-proprietors Defendants. Now a word about the 13th Defendant. It is named as the necessary party that would receive and execute the order that this court may make. At this juncture, I must state that the naming of the 13th Defendant is only proper so that it may appear and assist the court in coming to a decision. No objection was taken either by the 7th or the 13th Defendant itself on the impalement of the 13th Defendant in this proceeding. It bears repeating that only the 7th Defendant responded and opposes the Plaintiff’s application. The 7th Defendant holds 7/51 and 9114/102816 shares of undivided shares equivalent to 0.41 hectares (1.013 acres / 44132.032709 square feet) in the Property. Plaintiff and the 7th Defendant were present. Following the inquiry, the Plaintiff and the 7th Defendant agreed to hold private discussions and to subsequently notify the Land Office of any decision reached. Pursuant thereto, a letter dated 24.09.2023 was issued by the Land Office deferring the inquiry for a period of one month pending receipt of a written decision from the parties concerned. In the event no consensus is reached, the matter shall be referred to the High Court. However, by a subsequent letter dated 24.01.2024, the Land Office rejected and closed the application for subdivision on the ground that no consensus had been achieved between the Plaintiff and the 7th Defendant. The Issues Lot 2 to the Plaintiff (measuring 1.295 hectares / 3.200 acres / 139392 square feet). will have access to the main road. The Plaintiff asserts that such division would facilitate both parties in future dealings, whether for sale or development. The Plaintiff further asserts that the proposed plan is fair and equitable to all registered proprietors and does not cause any prejudice to any party. Plot 2 is marked in pink colour:

The 7th Defendant took objection. In summary the grounds are as follows:

(i) The proposed Subdivision Plan confers an undue advantage upon the Plaintiff, in that the Plaintiff’s portion would front the main road and thereby command a higher value, whereas the 7th Defendant’s portion would be relegated to the rear, comprising forest and swamp land of comparatively lower value.

It is obvious that the disputant parties are unable to agree on the resolution of the termination of the dispute between them. The disagreement by the 7th Defendant is not on a matter of retaining the co-proprietorship. Rather it relates to the manner in which the division is to be achieved. In order to the resolve this impasse the law provides a solution in the form of section 145 of the National Land Code which provides as follow: Power of Court to facilitate termination of co-proprietorship S.145 (1) Where, in the case of any land vested in co-proprietors —

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

(b) by reason of the operation of paragraph 136(1)(f) applied by section 141), partition of the land between 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.

(a) that, subject to the making between the co-proprietors such payments as the Court may consider equitable having regard to the comparative values of the individual portions thereby proposed, any application for partition made by one or more of the co-proprietors in the terms specified in the order shall be deemed for the purposes of this Chapter to have been made by them all;

(b) that the undivided share of any of the co-proprietors be transferred on the terms specified in the order to the other co-proprietors, or to any of them; or

(c) that the land be sold.

A close scrutiny of section 145 of the National Land Code (NLC) reveals that the Court is vested with the discretion to order the partition of any land held under co-proprietorship, or to make such order as the Court deems just for the purpose of terminating the co-proprietorship. This provision is available to any co-proprietor seeking to bring the proprietorship to an end, but who encounters difficulty where one or more of the co-proprietors refuse either to join in or to consent to the application for partition of the jointly owned land, as is the situation in the present case - Young Yean Chin & Ors v. Quek Yak Kang & Ors [2016] 6 CLJ 860.

It is clear and beyond dispute therefore that section 145 of the NLC expressly confers jurisdiction upon the Court to terminate co-proprietorship in circumstances where such intervention is required. Hence, the term employed is “to facilitate” or “to make easier.” In other words, this Court possesses facilitative jurisdiction to resolve situations where co-owners of land wish to partition or subdivide their shares, but one or more of the other co-owners refuse or decline to consent to such partition - Tong Ah Kau & 2 Ors v. Tong Faung On & 2 Ors [2015] 1 LNS 1396. Analysis and the Court’s finding

In essence, the Plaintiff in this case seeks an order of this Court to terminate the co-proprietorship between the Plaintiff and the other co-owners of the property, pursuant to section 145(1) of the NLC.

As mentioned earlier the Plaintiff’s desire remained his own as other Defendants have not responded except the 7th Defendant. Thus, the Plaintiff took his own initiative by seeking the Court’s facilitative jurisdiction to terminate the co-proprietorship; proposing a subdivision in accordance with the Plan prepared by Jurukur Perunding Services (AS) Sdn. Bhd., exhibited as MF-2 of Encl. 2.

As stated in paragraph 16 above the 7th Defendant objected on the grounds stated therein. In amplification the 7th Defendant pointed out that she has acquired the frontage portion of the Property by way of inheritance from her late husband, who purchased the allotted portion in 2003. D7 has produced the Sale and Purchase Agreement dated 30.08.2003 together with the accompanying plan, exhibited as MBA-1 in Encl. 5 which she said identified her entitlement to the relevant portion of the Property as described therein which is reproduced below:-

In addition to that, the 7th Defendant has produced a Plan prepared by Licensed Surveyor Choy of Ukurarah Consultants, dated October 2004, through Exhibit MBA-3 A2 in the Second Supplemental Affidavit of the 7th Defendant (Encl. 18). She has highlighted in orange colour the purported allotment portion claimed as follows:

I have examined in great detail the proposed plans by the Plaintiff as well as that claimed by the 7th Defendant.

In the submissions of the counsel for the 7th Defendant it is contended again that the 7th Defendant is at the losing end given that the issue of road frontage favours the Plaintiff in totality and hence the discretion conferred in section 145 of NLC ought not to be exercised ex facie. With respect to learned counsel I find this submission to be devoid of merits and unsupported by facts as I find that the Plaintiff’s proposed plan does not prejudice the 7th Defendant’s portion or the other co-proprietors as the land would be divided in parallel according to each party’s respective share, and both portions would have access to the main road. Accordingly, the issue of 7th Defendant’s portion being relegated to the rear, as alleged, does not arise. The contention that 7th Defendant’s portion would be devalued is also without basis.

Conversely, the 7th Defendant’s claim to the entire frontage portion of the Land creates an inequity, as it would result that the Plaintiff’s portion being relegated to the rear and obstruct the Plaintiff’s access to the main road.

On the 7th Defendant’s contention that a specific portion of the Land was allocated to her late husband under the Sale and Purchase Agreement dated 30.08.2003 and the plan prepared by Licensed Surveyor Choy of Ukurarah Consultants dated October 2004, having carefully considered that contention, I am unable to agree with the said submissions.

In my judgment and upon a proper reading of section 145 of the NLC the principle of co-proprietorship in undivided shares is that each proprietor holds an undivided interest in the land as a whole. In other words, each co-proprietor has a share in the entire land, not in any specific part. In the instant case, the land has not yet been subdivided among the co-proprietors. The plan that was annexed to the Sale and Purchase Agreement dated 30.08.2003 remains at the proposal stage and has not been approved by the Land Office. Moreover, there is no evidence that the other co-proprietors consented to the allocation of portions as proposed therein. Certainly, there is no evidence adduced before me that the Plaintiff or his precursor in title has expressly or tacitly consented to the said allocation as contended by the 7th Defendant. It thus remains a bare assertion by the 7th Defendant of her entitlement to the claimed portion. It bears stating the trite legal position that an agreement between two persons cannot bind third parties who are not privy to the agreement. I shudder to think that such a trite proposition requires any authority.

As a matter of fact and based on the evidence tendered I find that the Sale and Purchase Agreement was entered into between 7th Defendant’s late husband (as purchaser) and a representative of the co-proprietor (as the vendor), and not with the co-proprietors of the Property themselves. This raises doubts as to the validity of the 7th Defendant’s claim that a specific portion was sold to 7th Defendant’s husband. To my mind the legal position in that arising from the sale the 7th Defendant’s precursor in title obtained a right as a co-owner of the Property and nothing more.

Accordingly, 7th Defendant’s claim to a specific portion of the Property is misconceived and cannot be sustained, as it contravenes the principle that co-proprietors hold undivided interest in the land as a whole and not in any specific part until subdivision is agreed amongst the co-proprietors and duly approved by Land Office.

I must also add that sustaining the 7th Defendant’s contention on her entitlement to the specific portion of the Property to the exclusion of other co-proprietors would result in prejudice to the other co-proprietors, as the portion claimed by 7th Defendant’s encompasses the entire frontage of the Property thereby conferring an undue advantage upon the 7th Defendant’s to the detriment of the remaining co-proprietors.

Now I come to the other issue that was strongly argued by the 7th Defendant’s namely the absence of the valuation report in respect of 7th Defendant’s portion of the Property. Heavy reliance was placed on the case of Moo Hon Yee v S. Abdul Rahman & Anor [2018] 1 LNS 2097, where his Lordship Wong Khian Kheong J (as he then was) dismissed an application under section 145 of the NLC, among other reasons, that there was no valuation report. Accordingly, the Court could not conclude that it would be just to make an appropriate order under section 145 of the NLC.

I have considered this issue very carefully and it seems to me that the decision in Moo Hon Yee could not be an authority for the proposition that the absence of a valuation report, ipso facto would be fatal to an application under section 145 of the NLC. Although the editor of the CLJ took it upon himself to state so in the headnote! In my judgment, to state that the absence of a valuation report is fatal to the application would amount to importing into section 145, a requirement which is not evident from the plain reading of the section itself. It is beyond dispute that the Court will be greatly assisted by an expert report; however, that cannot be taken to mean that a just resolution may only be achieved through such a report. What remains paramount are the facts and the surrounding circumstances available in each application. To my mind and I hold that a valuation report is not a prerequisite for the approval of termination of co-proprietorship. It may, however, assist the Court in circumstances involving Section 145(2), namely: (a) directing payments between co-proprietors as the Court may consider equitable, having regard to the comparative values of the individual portions; (b) ordering that the undivided share of any co-proprietor be transferred, on terms specified in the order, to the other co-proprietors or any of them; or (c) directing that the land be sold.

The duty of this Court is to facilitate and to issue such orders as it considers just for the purpose of enabling the termination of co-proprietorship.

For the reasons adumbrated above, this Court holds that the Plaintiff’s proposed plan is just and equitable to all co-proprietors and does not occasion prejudice to any party. Decision

In the upshot I allowed the Plaintiff application with no order as to cost. Dated: 20 April 2026 (Mohd Aimi Zaini Bin Mohd Azhar) Judicial Commissioner High Court Malaya Alor Setar, Kedah Darul Aman Solicitor for the Plaintiff: Zuriana Zakaria Messrs Yang Lim & Co Solicitor for the 7th Defendant: Intan Safinaz Binti Abdullah Messrs Intan Safinaz & Co