Malay Reservation Land = Malay Holding?

• Published date: 21 May 2021
• Subject Matter: Real Estate and Construction, Real Estate, Landlord & Tenant - Leases
• Law Firm: SKRINE
• Author: Ms Oon Hooi Lin

Introduction

The concept of Malay Reservation Land was first introduced by the British in the Federated Malay States of Perak, Selangor, Negeri Sembilan, and Pahang in 1913 to prevent lands held by the Malays in those states from being disposed of to the non-Malays.

As land in Malaysia comes under the purview of the respective states and federal territories in Peninsular Malaysia, Sabah and Sarawak, different legislations relating to Malay Reservation apply to different states.

The recent case of Bebe Sakimah binti Mohd Asrof v Pendaftar Hakmilik Negeri Perak [2021] 7 MLJ 701 raised an interesting question of whether a non-Malay can be registered as the proprietor of Malay Reservation Land.

Facts of the Case

The Plaintiff was the successful bidder for a piece of land ('the Property') at a Court ordered auction.

However, when she tried to register the Property under her name, the presentation was rejected by the Defendant, the Registrar of Land Titles of Perak, on two occasions. The first was by reason that the Plaintiff was unable to provide documents to prove that she or her parents were of Malay descent within the time period specified by the Defendant.

The Plaintiff's appeal against the aforesaid rejection was also rejected by the Defendant on the ground that the Property was Malay Reservation land which could only be transferred to a Malay and the Plaintiff is not a Malay.

The Plaintiff then sought a Court Order that the Defendant register her as the proprietor of the Property.

General Rule

As the Property is situated in the State of Perak, the principal legislation applicable to the dispute was the Malay Reservation Enactment (FMS Cap 142) ('the MRE').

From the outset it is clear that Section 8 of the MRE prohibits a Malay holding from being transferred, charged or otherwise disposed of to any person who is not a Malay, and prohibits any memorandum of transfer, charge or lease from being registered in contravention of that section in any Land Office or Land Registry. Further, Section 19 of the MRE provides that dealings contrary to the MRE is void.

The Plaintiff's race was not a matter of contention as she had conceded that she is not a Malay.

The Plaintiff's Submissions

The Plaintiff submitted that Malay Reservation land may be classified into two categories, namely 'Malay holding' and 'non-Malay holding' and that the prohibitions and restrictions against dealings in or disposals of Malay Reservation land in favour of a non-Malay only applies to a...