Pentadbir Tanah Daerah Seberang Perai Selatan v WAKIL DIRI KEPADA KRISHNAN S/O MARUTHAMUTHU (SI MATI) (PA-24NCvC-283-04/2021)

an Order declaring that the subject land is government land;

the registration of Krishnan as the owner of the subject land be set aside on the ground that it is void, a mistake, and contrary to law. S/N iwRRz4qzqEmdNBw5JYjiXg Page 3 of 19 PRELIMINARIES [5] A few preliminary matters should be noted. First, the Applicant is the Land Administrator for Seberang Perai Selatan (Pentadbir Tanah Daerah Seberang Perai Selatan). The Applicant had the approval of the Penang Director Of Lands And Mines (Pengarah Tanah Dan Galian Pulau Pinang) to refer to this Court a question about the performance of the Applicant’s exercise of his/her powers under section 419 of the National Land Code 1965 (NLC). [6] Section 419 provides that the Land Administrator can refer such questions to the Court for determination. [7] Second, the Applicant initially named the Personal Representative of Krishnan (deceased) as the Respondent. Later, the Applicant obtained an Order appointing Sucila Devi Krishnan as the personal representative of Krishnan’s estate. [8] Third, the subject land has a long history going back to 1954. In August 1954, it was first identified as Lot 115(2). Later, in February 1994, it was registered as Lot 680, Geran Mukim 651, Mukim 5, Daerah Seberang Perai Selatan, Pulau Pinang (Lot 680). [9] To evidence the origins of Lot 680, its registration in Krishnan’s name, and the assertion that the registration in Krishnan’s name was a mistake—the Applicant referred to and exhibited (in the affidavit in support) copies of the deeds, instruments, and pages from the land titles register (Documents). Unfortunately, the Documents exhibited were too small (in size), making them unclear and illegible in the normal A4 size of an affidavit filed in Court. The advanced age of the Documents and the S/N iwRRz4qzqEmdNBw5JYjiXg Page 4 of 19 fact that the contents were mostly hand-written further contributed to their illegibility. [10] As the contents of the Documents constitute critical evidence, I directed the parties to jointly produce and exhibit clearer copies of the Documents, suggesting to them that perhaps at A3 size, the Documents may become legible. The parties did so—filing an affidavit that contained the enlarged Documents. But even at the enlarged size, we could still hardly make out the contents of the Documents. [11] I then directed the parties to agree on the contents of the pertinent parts of the Documents. I directed them to sign a Statement of the agreed contents of the pertinent parts of the Documents (Statement), and to exhibit the Statement in a further affidavit. [12] The parties agreed that the Statement constituted the agreed (undisputed) facts that I will consider, to determine this originating summons. PERTINENT AGREED FACTS [13] The agreed facts set out in the Statement include these pivotal facts. One—in the Settlement Register (land title register) for Lot 115(2), the name of the owner of Lot 115(2) is stated as “Crown (Governor’s Quarters)”. [14] Two—in the Interim Register for Lot 115(2), Krishnan’s name was registered as the owner, by an entry dated 23.5.1977. S/N iwRRz4qzqEmdNBw5JYjiXg Page 5 of 19 [15] Three—in the Settlement Of Penang Registry Of Deeds, Volume 977, Page 764, No. 191, the Deed Of Assent dated 24.8.1954 registered Krishnan as the owner of a list of lands. The list of the lands registered in Krishnan’s name is attached to the Deed (List Of Lands). [16] Four—Lot 115(2) is not listed as land registered in Krishnan’s name in the List Of Lands, or in any part of the Deed. [17] Scrutinising the List Of Lands, I notice and hence find that—

the list of lands registered in Krishnan’s name was written on three separate pages of the Deed—page 3 (in the body of the Deed), page 10 (on the attesting or witnessing portion of the Deed), and page 11 (the List Of Lands);

the Lots enumerated include Lot 155(2) and Lot 155(11);

the hand-written “Lot 155(11)” appears very similar to “Lot 155(II)”, representing the Roman numerals “II” i.e. “two” or “2”;

most importantly, there is no Lot 115(2) or Lot 115(II). S/N iwRRz4qzqEmdNBw5JYjiXg Page 6 of 19 [18] I reproduce below the List Of Lands— S/N iwRRz4qzqEmdNBw5JYjiXg Page 7 of 19 [19] Five—by an Interim Register in Form D (Bentok Daftar Sementara) (Interim Register), the Penang Lands And Mines Office (PTG), on 21.2.1994, deposited Lot 115(2) to Krishnan as the owner by “relying on” the Deed. [20] I note that the Interim Register registers Lot 680 from (daripada) Lot 115(2). [21] Six—by the Document Of Title for Lot 115(2), Krishnan was registered as the owner of Lot 115(2) on 27.4.1994 by “relying on” the Interim Register. [22] Seven—the Penang “charting and stand sheet” refers to Lot 680 as “B/120”. The pages of other documents exhibited show that “B/120” was involved in a land acquisition exercise, and that the purpose for acquiring “B/120” was for a JKR workshop and quarters. These words were found written: “pengambilan tanah untuk workshop dan quarters J.K.R. Jawi, Sg. Bakap, SPS”. [23] Eight—the Applicant returned the Document Of Title of Lot 680 to the PTG on 27.6.1994. [24] I note that in the cover letter by which the Applicant returned the Document Of Title of Lot 680 to the PTG, it was stated that Lot 680 is crown land for the Jabatan Kerja Raya (Lot 680…adalah tanah kerajaan iaitu Pejabat Jabatan Kerja Raya Jawi, Sungai Bakap). S/N iwRRz4qzqEmdNBw5JYjiXg Page 8 of 19 [25] Nine—by a letter dated 22.6.2015 issued by the JKR, exhibited together with photographs and plan drawings—it is proven that Lot 680 was and is still used as a JKR store and office since 1954. [26] Ten—by Plan No. 4889, it is stated that Lot 115(2) was changed to Lot 680. Plan 4889 contained a Schedule that recorded “Lot Lama 115(2)” against “Lot Baru 680”. [27] I notice in the Schedule that Lot 115(2) was described using roman numerals as “Lot 115(II). [28] Ten—Krishnan had never paid any quit rent for Lot 115(2) or Lot 680. THE PERTINENT PROVISION—SECTION 340 [29] The pertinent provision to consider and apply here is section 340 of the National Land Code 1965 (NLC). Subsections 340(1), (2) and (3) provide that—

when a person’s name is registered as the owner of land, his title over the land is indefeasible (which means cannot be cancelled or cannot be undone);

but there are exceptions to this legal principle or effect. One of the exceptions i.e. one of the circumstances where the person’s title can be cancelled or undone is when the registration was recorded on an “insufficient or void instrument”. (An instrument here means a statutory document which gives effect to what is written on it, such as a deed.); S/N iwRRz4qzqEmdNBw5JYjiXg Page 9 of 19

if such an exception occurs, that person’s title can be set aside i.e. cancelled or undone;

but there is an exception to this exception—the person’s title cannot be cancelled or set aside if he or she purchased the land in good faith and for valuable consideration (for instance by paying a price for the land). [30] The relevant parts of section 340 are set out below for reference (with my emphases in bold)— Section 340. Registration to confer indefeasible title or interest, except in certain circumstances.

The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.

The title or interest of any such person or body shall not be indefeasible –

in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

where registration was obtained by forgery, or by means of an insufficient or void instrument; or

where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.

Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in sub-section (2) – S/N iwRRz4qzqEmdNBw5JYjiXg Page 10 of 19

it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and

any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested: Provided that nothing in this sub-section shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser. THE RESPONDENT’S ARGUMENTS TO MAINTAIN KRISHNAN’S NAME ON THE TITLE Should the Respondent have a legitimate expectation for Krishnan to continue to be registered as owner? [31] First, the Respondent argues that she, as the personal representative of Krishnan’s estate, has a legitimate expectation that Krishnan is the owner of Lot 680, and the legitimate expectation for Krishnan to remain the owner of Lot 680. The Respondent submits that the Applicant has breached the Respondent’s legitimate expectation and therefore should not be given the declaratory reliefs sought. [32] The Respondent relies on the case law authority of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); [1984] 3 All ER 935; [1984] 3 WLR 1174, for the meaning of legitimate expectation. In the judgment of Lord Fraser, the House Of Lords set out that— Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. S/N iwRRz4qzqEmdNBw5JYjiXg Page 11 of 19 [33] The Respondent also relies on the case law authority of Zakiah Bte Ishak v Majlis Daerah Hulu Selangor Darul Ehsan [2005] 6 MLJ 517 (CA); [2005] 4 CLJ 77; [2005] 2 MLRA, where the Federal Court propounded (at paragraph [16] that— …In law for legitimate expectation to arises there must be evidence of a promise or undertaking made by the respondent to that effect… [34] The Respondent argues the “express promise” was the fact that Krishnan’s name was registered as the owner of Lot 115(2) in the Interim Register and later as the owner of Lot 680 in the Document Of Title. And, the “regular practice” that can “reasonably be expected to continue” is the continued practice of registering Krishnan’s name as the owner of Lot 680 on any mode or form of the Document of Title, for instance, if a replacement title is issued. [35] I find this argument untenable. There was no promise (whether express or implied) that Krishnan was the owner of Lot 115(2). There was no promise that Lot 115(2) was granted or given to Krishnan. This purported grant or gift is implausible. [36] I find that it is far-fetched to submit that the act of registering Krishnan’s name as the owner of Lot 115(2) on the Interim Register and subsequently issuing the permanent Document Of Title for Lot 680 in Krishnan’s name—cannot fall under the category of “regular practice” which the Respondent can reasonably expect to continue. [37] I am of the view that in the factual circumstances of our case, the fact that the title to Lot 115(2) and later Lot 680 was registered in S/N iwRRz4qzqEmdNBw5JYjiXg Page 12 of 19 Krishnan’s name cannot tantamount to an “undertaking”, or an “express promise given [by] a public authority”, or be considered a “regular practice which the [Respondent] can reasonably expect to continue”. [38] I think that the argument that there is a legitimate expectation, within the parameters of the agreed facts of our case: that merely by registering Krishnan’s name on the Interim Register and later the Document Of Title—makes Krishnan, without exception, the owner of Lot 680—to be misplaced. Did the Applicant acquiesce to the alleged mistake? [39] The Respondent argues that if a mistake was in fact made by the Applicant, the Applicant acquiesced to the mistake, and cannot now (decades later) seek to undo the mistake. The Respondent asserts that the Applicant had the opportunity to correct the mistake in 1977 (when the Interim Register was opened/created) or in 1994 (when Lot 115(2) was converted or given a new title as Lot 680). [40] I find this argument untenable as well. The Respondent did not give any consideration for the land, or to acquire the land. The Respondent did not pay any of the quit rent for the land. The evidence discloses that the Respondent has done nothing to assert ownership over the land, for example, take possession of the land, or deal with the land in any way, for instance: seek rent for JKR’s use and occupancy of the land over the years. Neither has the Respondent entered into transactions, or made dealings, relating to the land. The Respondent has not asserted any rights over the land. S/N iwRRz4qzqEmdNBw5JYjiXg Page 13 of 19 [41] As alluded to above, there was no Lot 115(2) in the documentary evidence that relates to the lands that Krishnan owned. I reiterate that the List Of Lands does not contain Lot 115(2). [42] From the evidence (affidavit averments and documentary evidence), I find, on the balance of probabilities i.e. that it was more likely than not—that it was a mistake for the Applicant to register Krishnan as the owner of Lot 115(2) when the Interim Register was opened or created. And it was a mistake for the Applicant to register Krishnan as the owner of Lot 680 when the Document Of Title was issued by referring to the Interim Register. [43] To hold that the Respondent’s title to the land is indefeasible despite the mistake would bring about a wrong. And it would bring about the Respondent’s unjust enrichment (to get title over the land), which at the same time would deprive the State of the ownership of the land— simply by an act of mistake. [44] I find that the section 340(2)(b) and (c) exceptions to the rule of indefeasibility—applicable. First, under section 340(2)(b)—insufficient or void instrument—I am compelled to find that the Interim Register and the Document Of Title to Lot 680 are insufficient and void instruments. They are insufficient or void instruments because they were created or issued by mistake. It was a mistake to register Krishnan as the owner of Lot 115(2) when Lot 115(2) was not among the lands that he owned. There was no reason for Krishnan’s name to be written on the Interim Register for Lot 115(2), nor on the Document Of Title for Lot 680. Put differently, Krishnan was erroneously and unjustifiably registered as the owner of Lot 115(2) and later Lot 680. S/N iwRRz4qzqEmdNBw5JYjiXg Page 14 of 19 [45] I am guided by the case law authority of See Leong Chye & Anor v United Overseas Bank (Malaysia) Bhd & Another Appeal [2021] 6 CLJ 650(FC); [2021] MLJU 739 (FC); [2021] AMEJ 0587; [2021] 4 MLRA 304, where the Federal Court held (at paragraph [74]) that once the vitiating factors under section 340(2) are proved—“the immediate purchaser’s title or interest is liable to be set aside”. [46] In our case, even though Krishnan did not purchase Lot 115(2) or Lot 680 from the State, the principle gleaned here is that once the exceptions-to-indefeasibility factors—here: insufficient or void instrument and unlawfully acquired title—are demonstrated, Krishnan’s purported title to or interest in the land can be set aside. [47] Second—under section 340(2)(c)—unlawfully acquired—there is no evidence to show that in the exercise of the relevant authority’s “exercise of power and authority” to create the Interim Register and issue the permanent Document Of Title, Krishnan purchased, or was given, or acquired, or came to possess, or owned the land by legitimate or lawful means. When we scrutinise the evidence—the only likelihood is that a mistake was made. The error is rather plausible. [48] I am both guided and bound by the Court Of Appeal case law authority of CIMB Islamic Trustee Berhad v Pendaftar Hakmilik Negeri

Selangor & Ors [2021] MLJU 2890 (CA); [2022] 4 CLJ 499; [2021] MLRAU The facts of that case are analogous to ours. S/N iwRRz4qzqEmdNBw5JYjiXg Page 15 of 19 [49] The pertinent facts of that case are—

In 1977, Hussein bought the subject property from Hoo Hwang Boon, who was the original owner.

Hussein passed away in 1985, and CIMB Islamic Trustee Berhad administered Hussein’s estate.

The property was rented out.

Hussein was the registered owner in the title of the property. In 1990, Hussein’s beneficiaries found that the title was lost. Hussein’s widow lodged a police report about it.

In 2002, the title to the property was converted from the old “manual” title to the new computerised title. But Hoo Hwang Boon was registered as the owner.

Hoo Hwang Boon passed away in 2012. He bequeathed the property to his grandson Hoo Chia Choon.

In 2013, the title to the property was replaced by another title with different particulars. This time, the grandson Hoo Chia Choon was registered as the owner through the process of the grant of probate from the Will.

CIMB sued the Pendaftar Hakmilik Selangor, the grandson Hoo Chia Choon, who was registered as the owner, and others. [50] The Court Of Appeal adjudged that—

the title to the property should have remained in Hussein’s name. S/N iwRRz4qzqEmdNBw5JYjiXg Page 16 of 19

the authorities including the Pendaftar Hakmilik Negeri Selangor breached their statutory duties to Hussein: the rightful owner.

the eventual title registered in the grandson Hoo Chia Choon’s name was void ab initio (from the beginning). He had no good title to the property. [51] The Court Of Appeal held— [37] …The learned trial judge should have concluded that since the name of Hoo Hwang Boon in the computerised title did not reflect Hussein as the owner, as it is in the original manual title, the computerised title is a void ab initio title. [39] This is a case where a registered owner is deprived of the ownership to his property through the wrongful act of the land officials in exercise of their statutory duty. The ownership of Hussein was supposed to be registered in the computerised title but not so registered upon implementation of the Computerised Land Registration System around 2002. The 1st and 2nd respondent are entrusted with the duty to upkeep and maintained the register of titles but had failed to do so, in this instant case resulting in an unlawful deprivation of the rightful owner his lawful right to the property… [44] Since the computerised title is void ab initio, no one can derive a good title from it. The computerised title which displayed the name of Hoo Hwang Boon is an invalid title. No one can gain a good title by subsequent transaction on an invalid title. Hence, the late Hoo Hwang Boon cannot by his will bequeath the said property to the 3rd respondent [the grandson: Hoo Chia Choon]. [note and emphases added] S/N iwRRz4qzqEmdNBw5JYjiXg Page 17 of 19 [52] As such, I conclude that the mistake or error when the title to Lot 115(2) was created in the Interim Register, which was continued when Lot 115(2) was converted into Lot 680, for which a Document Of Title was issued—made those instruments insufficient and void. It also amounted to Krishnan unlawfully acquiring the title to the land. [53] The mistake was made by the authorities. Krishnan and the Respondent cannot derive title over the land by the erroneous acts of the authorities. The title to and ownership over the property should be returned to the State. Should the Respondent be compensated? [54] The Respondent submitted that if the Applicant is “able to prove the alleged mistake”, the Respondent should be compensated for her loss or damage. [55] I am of the view that this is a non-issue in this Originating Summons. It is not an issue to be determined here. [56] Anyway, the Respondent did not, and could not, make a “claim” for compensation, in this Originating Summons where she is a respondent. This issue is not an issue that should be dealt with in this proceeding. CONCLUSION [57] For these reasons, I allow the Applicant’s Originating Summons. I order that the Applicant be permitted to cancel the registration of Krishnan’s name as the owner of Lot 680. I order that the Respondent S/N iwRRz4qzqEmdNBw5JYjiXg Page 18 of 19 pays the Applicant costs of RM12K by 15.4.2024. Costs are subject to the allocatur. Dated: 30 May 2024 KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors: For the Applicant: Muhammad Rifaie [Pejabat Penasihat Undang-Undang Negeri Pulau Pinang) (Pulau Pinang)] For the Respondent: Dalveena Korotana [Messrs. Arnold Andrew & Co.) (Kuala Lumpur)] Legislation referred to:

Section 419 of the National Land Code 1965.

Section 340(1) of the National Land Code 1965.

Section 340(2)(b) and (c) of the National Land Code 1965.

Section 340(3) of the National Land Code 1965. S/N iwRRz4qzqEmdNBw5JYjiXg Page 19 of 19 Cases referred to:

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); [1984] 3 All ER 935; [1984] 3 WLR 1174.

Zakiah Bte Ishak v Majlis Daerah Hulu Selangor Darul Ehsan [2005] 6 MLJ 517 (CA); [2005] 4 CLJ 77; [2005] 2 MLRA 326.

See Leong Chye & Anor v United Overseas Bank (Malaysia) Bhd & Another Appeal [2021] 6 CLJ 650(FC); [2021] MLJU 739 (FC); [2021] AMEJ 0587; [2021] 4 MLRA 304.

CIMB Islamic Trustee Berhad v Pendaftar Hakmilik Negeri Selangor & Ors [2021] MLJU 2890 (CA); [2022] 4 CLJ 499; [2021] MLRAU 261. S/N iwRRz4qzqEmdNBw5JYjiXg