Loke Yew v Port Swettenham Rubber Company
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1913 |
| Date | 1913 |
| Year | 1913 |
| Court | Privy Council |
The Registration of Titles Regulation, 1891, provides for the registration of all titles to land in the State of Selangor, and by s. 7 provides that the title of the person named in the certificate of title issued thereunder shall be indefeasible except on the ground of fraud or misrepresentation or of adverse possession for the prescriptive period. In June, 1910, one Eusope was the registered owner of 322 acres of land in Selangor, as to 58 acres of which the appellant was in possession under unregistered Malay documents constituting him the owner subject to the payment of an annual rent to Eusope. The respondents, who had knowledge of the appellant's interest, bought from Eusope the 322 acres excepting the said 58 acres. A transfer of the whole 322 acres was prepared, and in order to induce Eusope to sign it the respondents' agent told him that if he did so the respondents would purchase the appellant's interest, and signed a document which stated “As regards Loke Yew's interest I shall have to make my own arrangements.” Eusope thereupon signed the transfer. The respondents, having obtained thereunder registration of the entire 322 acres, called upon the appellant to give up possession of the 58 acres, and upon his failing to do so commenced an action, claiming possession thereof and damages. The appellant asked for rectification:—
Held, that the action should be dismissed and the respondents ordered to execute and register in the appellant's name a grant of the 58 acres subject to the rent reserved, on the grounds —
(1.) that, on the facts, the respondents obtained the transfer by fraud and misrepresentation.
(2.) That, apart from the exception in s. 7, as the rights of third parties did not intervene, the respondents could not better their position by obtaining registration under circumstances which made it not honest to do so, and that it was the duty of the Court to order rectification.
(3.) That under the Specific Relief Enactment, 1903, s. 3, the respondents having bought with notice of the appellant's rights were trustees for him in respect thereof.
APPEAL from an order (July 24, 1911) of the Court of Appeal of the State of Selangor (Federated Malay States) reversing an order (November 21, 1910) of the Court of the Judicial Commissioner at Kuala Lumpur.
The action was for ejectment and to recover possession of certain land in Selangor. The land in dispute consisted of about fifty-eight acres forming part of a block of 322 acres known as grant 675, which was on January 4, 1894, granted under the Selangor Land Code, 1891, to Haji Mohamed Eusope, “to hold for ever” subject to an annual rent of about 10 cents an acre to the Sultan of Selangor, his heirs and successors. This grant was registered under the provisions of the Registration of Titles Regulation, 1891 (Reg. IV. of 1891)F2, and Haji Mohamed Eusope was the registered owner of the whole 322 acres under that regulation. During 1895 and 1896 Eusope subdivided the 322 acres into allotments of from one to four acres and disposed of them to Malay cultivators at an increased annual rent. Each of these cultivators received from Eusope a document in the Malay language. The documents were all in the same form and gave to each cultivator an absolute right to enjoy the land for the period in the original grant, that is, for ever, subject to the payment of a rent of $1.25 to the holder of the original grant. Between 1899 and 1909 the appellant, a Chinese, with the assent of Eusope purchased from the Malay cultivators fifteen of these allotments for a total sum of $7716. From each cultivator the appellant received a document in the Malay language signed by the cultivator and by Eusope. These documents were all in the same form and referred to the allotment as being sold by the cultivator to the appellant and as forming part of the original grant. The appellant took possession of these fifteen allotments, which together made about fifty-eight acres and were the subject-matter of the litigation, and he duly paid the annual rents reserved to Eusope. No steps were taken to register any of the Malay documents under s. 7 or to protect them by caveat under s. 68 of the Registration of Titles Regulation, 1891.
In 1910 the respondents, who had knowledge of the transactions above referred to, opened negotiations with Eusope for the purchase of the whole 322 acres comprised in the original grant, and Eusope bought back from the Malay cultivators for about $115,000 all the allotments except the fifteen held by the appellant and seven further acres which had been acquired by a Chinese partnership called Sz Woh Kongsi.
Early in June, 1910, the respondents agreed to purchase from Eusope the whole of the 322 acres, except the appellant's fifty-eight acres, for $350,000, and on June 4 the representatives of the appellant and of the respondents met to complete the sale. It was agreed that out of the price $14,000 should be retained, being an amount agreed to be accepted by the Chinese partnership in respect of their seven acres, payment thereof being deferred till the conclusion of litigation between the members of the partnership.
The respondents' local solicitors had prepared a transfer purporting to transfer the whole 322 acres without exception to the respondents' trustees; this Eusope refused to sign unless he received an agreement on the part of the respondents not to disturb the appellant in his possession. Mr. Glass, the respondents' agent, assured Eusope that he need not be afraid, as he would purchase the appellant's interest. Eusope, however, pressed for something in writing, and Mr. Glass signed a document to the effect that he had purchased the land comprised in grant 675, adding, “as regards Loke Yew (the appellant) and Kongsi's land which is included in the said grant I shall have to make my own arrangements.” Their Lordships found that this was a statement of a present intention and was false and fraudulently made for the purpose of inducing Eusope to execute a transfer of the whole 322 acres comprised in the grant.
Upon receipt of this document Eusope signed a formal transfer in the statutory form required by the Registration of Titles Regulation, 1891, for the whole 322 acres comprised in the grant. This transfer was to Glass, and was shortly afterwards registered. Subsequently Glass transferred the land to the respondents, who registered the transfer. No duplicate certificate under the Registration of Titles Regulation, 1891, s. 7, was issued to the respondents, but a memorial under s. 28 was indorsed upon the original grant to Eusope. On June 22, 1910, the respondents' solicitors wrote to the appellant a letter in which, while not admitting that the appellant had any rights in the fifty-eight acres, they offered him $20,000 for the surrender of any rights which he claimed. This offer was declined. On August 18,1910, the respondents gave the appellant notice to quit the land, and on August 29, 1910, the appellant commenced proceedings under s. 72 of the Registration of Titles Regulation, 1891, for the purpose of having the respondents' documents of title to the 322 acres rectified by excluding therefrom the fifty-eight acres now in dispute. The progress of this suit was stayed pending the decision of the present appeal.
On August 24, 1910, the respondents commenced the present suit, alleging that they were registered owners of the whole 322 acres and claiming possession and damages. The appellant by his defence claimed title to occupy the land in dispute by virtue of the Malay documents and pleaded that the respondents had taken their transfer with full knowledge of the appellant's title and rights and that their conduct amounted to fraud within the Registration of Titles Regulation, 1891, s. 7. He also claimed that the respondents' registered title should be rectified and that the land in dispute should be assured to him by a proper registered transfer. The appellant also pleaded that the suit was barred by the Limitation Enactment, 1896, but the decision of this point became unnecessary and the arguments thereon are omitted from this report.
The action was heard by the Judicial Commissioner on September 21, 22, and 23, 1910, and on November 21, 1910, he gave judgment dismissing the respondents' suit and ordering that they, on the footing of being trustees for the appellant, should execute and register in his favour a grant of the fifty-eight...
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