Zamilan Bin Ab Kadir v Nuradlina Binti Abd Rashid (DA-24NCvC-60-02/2026)

NURADLINA BINTI ABD RASHID

ZARIHAN BIN AB KADIR (NO. K/P: 760619-03-5429) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction

This Originating Summons is brought pursuant to s.145 of the National Land Code 1965 ("the NLC") for the purpose of 30/07/2026 12:08:30 DA-24NCvC-60-02/2026 Kand. 17 terminating the co-proprietorship of land held under GM 282, Lot 786, Mukim Padang Bongor, Daerah Panji, Jajahan Kota Bharu, Kelantan ("the Land").

The Plaintiff and the Defendants are the registered co-proprietors of the Land. The Plaintiff holds an undivided half share whilst the First and Second Defendants each hold an undivided quarter share each. There is no dispute as to their respective registered interests. There is also no dispute that the parties no longer wish to continue as co-proprietors. The dispute concerns only the manner in which the co-proprietorship ought to be brought to an end.

The Plaintiff seeks an order that the co-proprietorship be terminated by adopting the proposed partition plan exhibited as exhibit ZAB-2. The Defendants on the other hand oppose that proposal and contend that the Plaintiff's proposed partition is neither fair nor practical and have put forward an alternative survey plan.

The issue before the Court is not simply which of the two survey plans should be preferred. The Court must determine whether either proposal is capable of bringing the parties' co-proprietorship to a practical and equitable end. Background

The Land is registered in the names of the Plaintiff and the Defendants as co-proprietors. The Plaintiff owns an undivided half share, whilst the Defendants each own an undivided quarter share each.

The Land is occupied by an existing bungalow which forms the centre of the present dispute.

The Plaintiff proposes that the Land be partitioned substantially in accordance with the survey plan exhibited as ZAB-2. Under that proposal, the Plaintiff would receive one lot while the Defendants would collectively receive the other according to their respective registered shares. The proposal also includes a strip of land to be surrendered as a road reserve.

The Defendants object to the Plaintiff's proposal on the basis that it does not fairly allocate the bungalow and would not result in a practical partition of the Land. They have accordingly produced an alternative survey plan which they contend more fairly reflects the parties' interests.

Having examined both survey plans, it became apparent that notwithstanding their differences, both proposals share one common feature. Under either proposal, the bungalow would continue to extend across the proposed boundary between the subdivided lots. Issues for Determination

Having perused the affidavits and submissions of parties, I formulate the following issues for determination:

The Defendants contend that the Originating Summons is defective because its intitulement refers only to s.417 of the National Land Code 1965 and does not expressly refer to s.145 of the National Land Code or the relevant provisions of the Rules of Court 2012. It is argued that this omission contravenes O.7 r.2(1A) of the Rules of Court 2012 and renders the application fatally defective.

In this regard, I find that although the Originating Summons does not expressly refer to s.145 of the National Land Code in its intitulement, it is plain from the prayers sought, the supporting affidavit and the proposed survey plan exhibited by the Plaintiff that the application is one to terminate the parties' co-proprietorship pursuant to s.145 of the National Land Code. The Defendants themselves clearly understood the nature of the application. This is evident from the affidavits filed, the alternative survey plan produced by them and their extensive submissions on s.145 of the National Land Code. It cannot therefore be said that they have suffered any prejudice arising from the omission.

Further, O.2 rr.1 to 3 of the Rules of Court 2012 make clear that procedural non-compliance does not invalidate proceedings unless it has occasioned substantial injustice which cannot be remedied. No such prejudice has been demonstrated in the present case.

Accordingly, I find that the omission relied upon by the Defendants amounts to no more than a procedural irregularity. It does not affect the Court's jurisdiction to hear and determine the present application. The preliminary objection is therefore dismissed. Whether either proposed partition ought to be adopted

Having considered the affidavits, the competing survey plans and the submissions of learned counsel, I am unable to conclude that either of the proposed partition plans should be adopted.

The dispute appears to concern the location of the proposed boundary line. The Plaintiff contends that the plan exhibited as ZAB-2 fairly reflects the parties' respective registered shares. The Defendants, on the other hand, maintain that the Plaintiff's proposal disproportionately allocates the existing bungalow in favour of the Plaintiff and have accordingly produced an alternative plan.

However, upon closer examination, it becomes apparent that the real difficulty does not lie in deciding which survey plan is preferable. It actually lies in the fact that both proposals proceed on the same underlying premise, namely that the existing bungalow can continue to straddle the proposed boundary after the subdivision has been completed.

The object of an order under s.145 of the National Land Code is to bring the co-proprietorship to an end. The Court should therefore strive to make an order which finally resolves, rather than perpetuates, the parties' relationship as co-proprietors. A partition which leaves the parties continuing to share a single building across separate titles is unlikely to achieve that objective.

Having examined both survey plans, I find that neither proposal satisfactorily addresses this practical difficulty. Under both proposals, the bungalow would continue to be situated partly on one subdivided lot and partly on another. Although the boundary lines differ, the consequence remains the same. The parties would inevitably continue to share responsibility for a single structure notwithstanding that the land beneath it had been divided into separate titles.

Such an arrangement is a fertile source of future disputes. Questions concerning access, maintenance, repair, renovation, insurance, structural alterations and eventual redevelopment would continue to arise. Instead of bringing the parties' relationship as co-proprietors to an end, the Court would merely be replacing one dispute with another. That cannot have been the intention of s.145 of the National Land Code.

The Plaintiff submits that its proposal better reflects the parties' respective shares. The Defendants naturally contend otherwise. However, once it is accepted that both proposals leave the bungalow divided by the proposed boundary, the relative merits of the competing survey plans become of considerably less significance. Even if one plan may appear marginally fairer than the other, neither achieves a clean and practical severance of the parties' interests.

In any event, it is noteworthy that neither the Plaintiff nor the Defendants has any exclusive proprietary right over any identifiable portion of the bungalow. Each remains entitled to an undivided share in the Land as a whole, which includes the bungalow in accordance with their respective share.

This principle was explained by Salleh Abas FCJ (as he then was) in the case of Tam Kam Cheong v Stephen Leong Kon Sang & Anor [1980] 1 MLJ 36 as follows: “If one applies the concept of tenancy-in-common to this case, one will find that whilst the respondents' and the appellant's undivided shares are in different proportions, i.e. 2/7 and 5/7, respectively, both hold the property by unity of possession and therefore occupy it promiscuously …….”

That statement accurately reflects the present position. Until the co-proprietorship is lawfully terminated, neither party can assert a superior proprietary right over any particular part of the existing bungalow. The Court is therefore not concerned with deciding whether one side should receive a larger or more advantageous portion of the building. Both parties presently enjoy the same proprietary rights over the whole property, albeit according to their respective undivided shares.

Guided by that principle, the next question is whether the Court is nevertheless obliged to choose one of the two proposed survey plans simply because those are the alternatives advanced by the parties.

In this regard, Section 145 of the National Land Code confers a broad discretionary jurisdiction upon the Court to bring a co-proprietorship to an end in a manner that is just and practical. The Court of Appeal recognised the width of that discretion in Ong Chin Hai & Anor v Ong Hoo See & Ors [2022] 5 MLJ 690, where it affirmed that the Court is not restricted to directing a physical partition in every case but may make such order as is appropriate to bring the co-proprietorship to an effective conclusion.

It follows that the Court is not compelled to adopt a partition merely because it has been proposed. Where the evidence demonstrates that the proposed partition would continue to generate disputes between the parties, the Court is entitled, and indeed obliged, to consider a more practical solution. The Court's duty under s.145 is not merely to divide land. Rather, it is to bring the co-proprietorship to a practical and final end. Where a proposed partition would merely perpetuate the parties' disputes instead of resolving them, the Court is entitled to consider an alternative course which more effectively achieves the statutory objective. The Appropriate Order

Having concluded that neither of the proposed partition plans should be adopted, it remains to determine the appropriate order under s.145 of the National Land Code.

The Plaintiff urged the Court to adopt the plan exhibited as ZAB- 2, whilst the Defendants submitted that the Plaintiff's proposal should be rejected and, if no satisfactory partition can be achieved, the Land should be sold. I agree with the Defendants that a simple adoption of either survey plan would not satisfactorily resolve the dispute. However, I do not consider an immediate order for sale to be the only available course.

Section 145 of the National Land Code confers a wide discretion upon the Court to bring a co-proprietorship to an end in a manner that is just and equitable. The Court is not confined to choosing between the competing proposals advanced by the parties where neither satisfactorily resolves the practical difficulties presented by the property. In Ong Chin Hai & Anor (supra), the Court of Appeal recognised that the jurisdiction under s.145 is sufficiently broad to enable the Court to fashion an order appropriate to the circumstances of the case. The objective is not merely to partition the land, but to bring the co-proprietorship to a practical and effective conclusion.

In the present case, the property is not vacant land. It contains an existing bungalow which forms the subject matter of the present dispute. An immediate judicial sale would inevitably deprive the parties of the opportunity of retaining the property within the family. Where that objective can reasonably be achieved without prejudicing the proprietary interests of the parties, it ought to be considered before resorting to a compulsory sale.

Section 145(2)(b) of the National Land Code expressly empowers the Court to order: "...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." That provision provides a practical statutory mechanism for terminating a co-proprietorship without resorting immediately to a judicial sale. Where one co-proprietor is willing and able to purchase the interests of the others, ownership of the property becomes vested in a single proprietor whilst the remaining co-proprietors receive the value of their respective shares. Such an arrangement avoids the practical difficulties associated with continuing co-ownership and fulfils the purpose of s.145.

In the present case, such a course would preserve the bungalow intact, avoid the practical difficulties associated with dividing a single building across separate titles, and achieve the statutory objective of bringing the co-proprietorship to an end. I therefore consider it appropriate to afford the parties the opportunity to purchase each other's respective interests before directing a compulsory sale of the Land.

The parties therefore are granted an option to purchase the other parties’ shares in the land, which shall be exercised and completed within ninety (90) days from the date of this judgment or any extended time mutually agreed between the parties

In the event no agreement is reached within the stipulated or any extended period, the Land shall be sold by public auction with the reserve price to be mutually agreed by the parties, with the net proceeds of sale to be distributed amongst the parties according to their respective registered shares after payment of all proper costs and expenses incidental to the sale.

There may also be an impasse with regard to the reserve price in the event the Land is to be auctioned. To avoid any future impasse, I make an order that in the event parties cannot agree on the reserve price, it shall be determined by a registered valuer to be jointly appointed by the parties, and in the event parties cannot agree on the appointment of the joint valuer within a reasonable time, the reserve price shall be determined by a valuer from Jabatan Penilaian dan Perkhidmatan Harta.

This approach is consistent with the decision in K K Kumaran v T S Sambanthamurthi [1996] 3 MLJ 309 and Yong Hin Seong v Hume Industries (Malaysia) Bhd [2003] 6 MLJ 38 where the Court recognised that a sale may be directed where it is necessary or expedient for bringing the co-proprietorship to an end. For completeness, the power to grant an order for sale instead of partitioning the Land is governed by s. 145(2)(c) of the National Land code, and also s. 25 read together with the schedule of the Courts of Judicature Act which provides as follows:

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