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Peter Chong Itl

1) The case involves two plaintiffs who purchased portions of land from Aishah in 1990 via sale agreements, but Aishah passed away in 1998 before completing the land transfers. 2) The judge held that the English common law principle of severance of joint tenancy does not apply under Malaysian land law based on the relevant ordinances. 3) The judge found that Aishah's sale agreements did not legally sever the joint tenancy because she did not take formal steps to divest and sever her interest, such as partitioning the land and registering the portions.

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433 views1 page

Peter Chong Itl

1) The case involves two plaintiffs who purchased portions of land from Aishah in 1990 via sale agreements, but Aishah passed away in 1998 before completing the land transfers. 2) The judge held that the English common law principle of severance of joint tenancy does not apply under Malaysian land law based on the relevant ordinances. 3) The judge found that Aishah's sale agreements did not legally sever the joint tenancy because she did not take formal steps to divest and sever her interest, such as partitioning the land and registering the portions.

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batman isapotato
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Peter Chong & Anor v Khatijah bt Md Ibrahim& Anor (personal representive of Aishah bt Ibrahim, the

deceased) and another suit [2018] 10 MLJ 735

Dated back in 26 February 1940, Mohamed Ibrahim bin Mohamed Eusoff (‘Ibrahim’) took possession of a
land in Penang. However Ibrahim and his son Mohamed Ismail predeceased Aishah and Khatijah. The
sisters then took absolute possession of the land. On 3 February 1990, Aishah unilaterally executed a sale
and purchase agreement with the plaintiff in Suit 2 to sell a portion of the land. Furthermore, on 17
September 1990, Aishah unilaterally executed another portion of the land to plaintiff in Suit 1. The plaintiff
then paid for both suits and should have possession of both lands. However on 4 March 1998, Aishah
passed away without completing the transfer and registration of the portions of the land to the plaintiffs.
Therefore, after the demise of Aishah, Khatijah was registered as the sole registered proprietor of the land.
Hence, the plaintiff instituted both suits to principally seek specific performance of their respective sale and
purchase agreements.

The relevant issue is whether English common law principle of alienation rei praefertur juri accresendi on
severance of joint tenancy is applicable. The judge held that in reference to s 5(2) of the Civil Law Ordinance,
the English common law principle of alienation rei praefertur juri accresendi on severance of joint tenancy
relied by the plaintiffs is inapplicable because this principle was not symbolised in the aforesaid Ordinances.

The ratio decidendi of this case is that the particular position was rendered unaltered by their successor
statutes. The National Land Code and National Land Code Act 1963 as well as s 6 of the Civil Law Act 1956
regarding immovable property states that nothing in this Part shall be taken to introduce into Malaysia or any
of the States comprised therein any part of the law of England relating to the tenure or conveyance or
assurance of or succession to any immovable property or any estate, right or interest therein.

The stare decisis of this issue is the case of Khoo Hooi Leong v Khoo Chong Yeok [1930] AC 346, Lord
Russell said that the modifications of the law of England which obtain in the colony in the application of that
law to the various alien races established there, arise from the necessity of preventing the injustice or
oppression which would ensue if that law were applied to alien races unmodified. 

The overall judgement is instituted as such to the severance of the joint tenancy and in addition to the judge’s
finding that the English law principle of severance of joint tenancy is inapplicable under Malaysian land law.
The unilateral act of Aishah entering into sale and purchase agreements with the plaintiffs did not amount to
severance because she did not take formal steps to divest and sever her interests from the joint tenancy by
the act of partition of the land and thereafter registration in the names of the plaintiffs’ of their portions of the
land.

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