Transfer

Pursuant to Section 214, the capable of being transferred under the code namely; The whole, not partly of any alienated land. The whole, not partly of any undivided share in any alienated land. Any lease of alienated land Any charge Any tenancy exempt from registration Lease can transfer and didn’t register. Tenancy is exempt from register mean do not need to register, it is depend on the tenant want or not. The land transfer either is freehold or leasehold land, but must be done in WHOLE. Transfer of title or interest in the land transfer up on registration must within 30 days, if didn’t register, will get penalty means charged.

The owner of the land is transferor whenever the new owner is transferee. Section 206 (3) Failure to register the instrument of transfer will not effect on the contract. Section 21 6 (a) – Land will be transfer subject to lease, charge or tenancy. The person transferring the land is called the ‘transferor’ and the person in whose favor the transfer is executed is called the ‘transferee’. The transferee takes the land subject to any registered lease, charge, easement or tenancies protected by endorsement already existing in respect of the land at the time the transfer was registered.

For instance, in Standard Chartered Bank v Central Wood Tiles SAD BAD it was held that where there was a transfer subject to charge, the charge did not become a 3rd party charge. The transferee had stopped into the shoes of the transferor and is bound by the same charge. The transferee will also take the land subject to all conditions and restrictions in interest and encumbrances then existing in respect of the land, example caveat, prohibitory orders and express and implied conditions as endorsed in the title or as provided in the NIL 1965.

Where any land is transferred subject to any lease, charge or tenancy exempt from registration, very provision-whether express or implied, of the lease, charge or tenancy- shall be enforceable by or against the transferee as if he were a party to that lease, charge or tenancy. Unless the instrument of transfer otherwise provides, the following terms are implied on the part of the transferee in favor of the transferor: That the transferee will duly perform and observe the provisions of the lease, charge or tenancy.

That the transferee will indemnify the transferor against all claims arising in respect of the lease, charge or tenancy after the transfer takes effect, and all expenses properly uncured by the transferor in connection with any such claim. The provisions area also applicable to any transfer of any lease, charge, section 21 9(4) of the NIL 1 965 provides that the charger shall not be bound to account to any transferee of the charge unless the charger has been notified in writing of the transfer.

Case: Koch Thong Chuan v The Official Assignee of the property of Koch Liana He, a bankrupt and another appeal Pursuant to a sale and purchase agreement executed on 22 September 1990 between one Koch Liana He (KILL’) and his son (the first appellant’), KOHL sold a piece of property situated n Clan Yap Swan Seen, Koala Lump (the said property) to the first appellant for a consideration of RMI m. The transfer of the said property to the first appellant was registered on 26 March 1991.

On 1 September 1 993, the second appellant granted financial facilities to the first appellant, which were to be secured by two separate charges on the said property. Prior to these transactions, judgment had been entered by United Malay Banking Corporation Bad (JIMMY’) against KOHL on 15 December 1989 in the sum of ARMS. Mum. The bankruptcy petition was presented by NUMB against KOHL on 5 August 1991 and KOHL was adjudicated a bankrupt on 3 July 1992.

The official assignee (the respondent) succeeded in obtaining a declaratory order from the High Court that the conveyance of the said property from KOHL to the first appellant was void under s 47 and/or 52 of the Bankruptcy Act 1967 (the Act’). The learned High Court judge found that the first act of bankruptcy committed by KOHL was the fraudulent conveyance or transfer of the said property to the first appellant and held that since the transfer Of the said property had taken place on 26 March 1991, it was within the six-month erred preceding the date of presentation of the bankruptcy petition.

The issue against the second appellant was in respect of the charges. The respondent never challenged during the trial that the second appellant had acted bona fide in granting the loans to the first appellant. The respondent succeeded in obtaining declaratory orders from the High Court that the charges created were void against the respondent and that by virtue of as 47 and BIB(2) of the Act and s 340(4) of the National Land Code 1965 (the NIL), the respondent was entitled to recover the said property from the first appellant free from the second appellant’s charges.

The High Court judge ruled that since the conveyance between KOHL and the first appellant was fraudulent and therefore void, the title of the first appellant in the said property had determined. This determination related back to the time of the transfer and as such, the first appellant had no title at any time to the said property and hence, he could not have created the charges in favor of the second appellant. Accordingly, the High Court judge held that the second appellant had no protection of indefectibility offered under s 340( 1) of the NIL. These were the appeals by the first and second appellants.