1. ) LAW WAI LING 2. ) LAW SWE WENG 3. ) LAW WAI JIAN 1. ) CHE RUSHITA @ RUSHITA BINTI ISMAIL 2. ) CHE SOOM BINTI ISMAIL 3. ) MOHD RADZI BIN ISMAIL 4. ) RALEAH BINTI ISMAIL 5. ) ROHAYA BINTI ISMAIL 6. ) ROSNAH BINTI ISMAIL 7. ) SUHAIMI BIN

DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG SAMAN PEMULA NO. PA-24NCvC-1092-12/2019 Dalam perkara kesemua sebidang Tanah yang dikenali sebagai Tanah yang dikenali sebagai Lot 187 (Geran Mukim No. 115) Mukim A, Daerah Barat Daya, Pulau Pinang Dan Dalam perkara mengenai Seksyen 25 dan Perenggan 3 Jadual Akta Mahkamah Kehakiman, 1964; Dan Dalam perkara Seksyen 145, Kanun Tanah Negara, 1965; Dan Dalam perkara Seksyen 417, Kanun Tanah Negara, 1965; Dan 1 Dalam perkara mengenai Aturan 7, Aturan 28 dan Aturan 31 Kaedah- Kaedah Mahkamah, 2012; Dan Dalam perkara mengenai Perintah yang diberikan pada 10.10.2018 untuk Saman Pemula No. PA- 24NCVC-367-04/2018 bertarikh 23.04.2018 di Mahkamah Tinggi Pulau Pinang Dan Dalam perkara mengenai Aturan 92, Aturan 4 Kaedah-Kaedah Mahkamah, 2012; Dan Dalam perkara mengenai Kaedah- Kaedah Mahkamah, 2021 ANTARA 1. LAW WAI LING (No. K/P: 810906-14-5324) 2 2. LAW SWE WENG (No. K/P: 560531-10-5481) 3. LAW WAI JIAN (No. K/P: 830710-07-5551) ….. PLAINTIF-PLAINTIF DAN 1. CHE RUSHITA @ RUSHITA BINTI ISMAIL 2. CHE SOOM BINTI ISMAIL 3. MOHD RADZI BIN ISMAIL 4. RALEAH BINTI ISMAIL 5. ROHAYA BINTI ISMAIL 6. ROSNAH BINTI ISMAIL 7. SUHAIMI BIN ISMAIL 8. TIMAH BINTI HASSAN 9. ZAINAB BINTI M HASSAN 10. ZAMBERI BIN ISMAIL ….. DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN [1] The plaintiffs filed this originating summons (“Application”) for what they described as a consequential order. Having heard the parties I dismissed the Application with costs. [2] In this Application the plaintiffs sought for the following: 2.1 Lot tersebut dibahagikan dalam dua (2) plot seperti ditunjukkan di ‘PP-1 ’di sini dan dua (2) dokumen Hakmilik 3 Keluaran (Issue Document of Title) berasingan masing- masing dikeluarkan; 2.2 Dokumen Hakmilik untuk Plot 1 seperti ditunjukkan atas ‘PP- 1 ’dikeluarkan atas nama plaintif-plaintif manakala dokumen Hakmilik untuk Plot 2 dikeluarkan atas nama defendan- defendan; 2.3 Pendaftar Hakmilik Tanah, Pulau Pinang dan/atau mana- mana pihak Pendaftar lain memberi kesan kepada Perintah di sini mengikut Seksyen 417, Kanun Tanah Negara, 1965; 2.4 Segala kos permohonan ini dan kos sampingan ditaksirkan dan dibayar oleh pihak defendan-defendan kepada pihak plaintif; dan 2.5 Perintah atau relif selanjutnya yang dianggap wajar oleh Mahkamah mulia ini. [3] The plaintiffs and the defendants were co-proprietors of a piece of land Lot 187, Geran Mukim No.115, Mukim A, Daerah Barat Daya, Pulau Pinang (“land”). Earlier vide PA-24NCVC-367-04/2018 (“first application”) they sought to terminate the co-proprietorship and the same prayers as in this Application. They obtained an order from the High Court dated 10.10.2018 terminating the co-proprietorship and it was further ordered that – 4 “(ii) Perbincangan berkenaan cara penamatan dan bahagian pihak-pihak masing-masing yang akan dipecah lot dikendalikan oleh Pejabat Tanah berkenaan; dan …”. [4] There was no order as to subdivision and issuance of a separate title for both of them. Neither party appealed against the said decision. [5] Apparently the defendants did not agree to the proposed subdivision plan drawn up by the plaintiffs. Armed with the said order the plaintiffs submitted an application to the land office for subdivision. The land office responded and suggested to the plaintiffs ’solicitors to obtain a specific order from the court with details of the proposed subdivision. [6] Hence the plaintiffs make this Application and submitted the same plan and the defendants raised the same objection namely the said plan was drawn up without their concurrence. They further denied that the plaintiffs owned half share of the said land. Submissions [7] The learned counsel for the plaintiffs pointed out that the proposed plan was for the court’s consideration and since some houses are built thereon and graves of plaintiffs ’ancestors are in Plot 1, the said plot should be given to them and the defendants could take Plot 2. The learned counsel referred to section 145 of the National Land Code 1965 (“NLC”) where the Court may give effect to the proposed subdivision. He further referred to Stone World Sdn Bhd v. Engareh (M) Sdn Bhd [2020] 5 MLRA 444 in support of his submission that the Court was not functus officio dan could make a consequential order. 5 [8] The learned counsel for the defendants pointed out that the proposed plan does not earmark any access road and the plaintiffs have not produced any evidence as to their proprietorship over the half share. It was submitted that the plaintiffs have to proof that they owned Plot 1. Reference was made to Aisyah Mohd Saman & Yang Lain lwn Kalsom Hj Mohamad Nor [2000] 2 CLJ 592. It was further argued that no consent was obtained from the defendants when the proposed subdivision was drawn up. Decision [9] It is not disputed that the order dated 10.10.2018 the co- proprietorship was terminated without any subdivision being ordered. The application by the plaintiffs to subdivide the said land into Plot 1 and Plot 2 was not allowed instead the learned judge directed the parties to discuss the proposed subdivision which was to be handled by the land office. [10] In this respect the relevant provision is section 145 of the NLC which reads: “145. Power of Court to facilitate termination of co-proprietorship. (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 (f) of subsection (1) of section 136 (as applied by section 141), partition of the land between all of the co-proprietors is incapable of being approved under this Chapter, 6 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. (2) Without prejudice to the generality of the power conferred by subsection (1), the Court may on any application under that subsection order- (a) that, subject to the making between the co-proprietors of 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.”. [11] It is to be noted that both applications, they were and are not made jointly with the defendants. The defendants opposed both of them. Nevertheless the High Court acceded to the plaintiffs ’application and terminated the co-proprietorship without any further order as to subdivision. As said neither party filed an appeal against the said decision. I have no hesitation in holding that the learned judge dismissed the application for subdivision as proposed by the plaintiffs. 7 [12] To my mind once the termination of the co-proprietorship was obtained the plaintiffs ought to have submitted an application for subdivision pursuant to section 137 of the NLC by submitting Form 9A it reads: “137. Applications for approval. (1) Any application by a proprietor for approval of the sub-division of any land shall be made in writing to the Land Administrator in Form 9A, and shall be accompanied by- (a) such fee as may be prescribed; (b) a pre-computation plan of the land showing the details of the sub- division, together with such number of copies thereof as may be prescribed or, in the absence of any such prescription, as the Land Administrator may require; (c) if it is so prescribed or, in the absence of any such prescription, if the Land Administrator so requires, a copy of any approval or consent required under paragraph (c) of sub-section (1) of section 136; and (d) all such written consents to the making of the application as are required under paragraph (e) of that sub-section: Provided that, in a case where paragraphs (c) and (e) of subsection (1) of section 136 are not applicable and the land is held under Land Office title, the Land Administrator may if he thinks fit accept an application in any form. (2) Upon receiving any application under sub-section (1), the Land Administrator shall endorse, or cause to be endorsed, a note thereof on the register document of title to the land to which it relates. (3) … .”. 8 And by virtue of section 141A the plaintiffs can make the said application as the defendants did not join or consent to the said application. However, the plaintiffs through their solicitors wrote to the land office and appended the said order instead. The letter from the plaintiffs ’solicitors to the land office dated 26.12.2018 is misleading as the High Court did not approve the proposed subdivision. [13] The Land Administrator thereafter should have hold an enquiry to hear both the plaintiffs and the defendants provided that there is a proper application. And either party may appeal to the High Court pursuant to section 418 of the NLC. No Form 9A is exhibited in this Application. [14] There was no inquiry held by the land office instead the Land Administrator Daerah Barat Daya vide a letter dated 18.1.2019 suggested to the plaintiffs ’solicitors to obtain a detailed order from the High Court with respect of the proposed subdivision. [15] If my understanding of the procedure provided by the NLC is correct then I am of the view that besides being functus officio, I have no jurisdiction to hear this Application. I do not think the order by the High Court dated 10.10.2018 was incapable of enforcement or execution to warrant a consequential order as envisaged in Stone World (supra). It is clear that the learned judge directed the parties to make the necessary application to the land office. 9 [16] Based on the reasons discussed the Application is dismissed with costs. (TUN ABD MAJID BIN DATO ’HAJI TUN HAMZAH) Hakim Mahkamah Tinggi Malaya, Pulau Pinang Tarikh: 30 Ogos 2021 Peguamcara-Peguamcara:- Peguamcara Pihak Plaintif-Plaintif TETUAN NOR, SARINA & CO Peguambela dan Peguamcara 3834, Jalan Kolam Ikan 11900 Bayan Lepas PULAU PINANG Tel : 018-4000713 Faks : - 10 Peguamcara Pihak Defendan-Defendan TETUAN MOHD AZMANI & CO Peguambela dan Peguamcara No. 31, Tingkat 1, Tingkat Kikik 7 Taman Inderwasih 13600 Perai PULAU PINANG Tel : 013-5308431 Faks : 04-3999431 11