Double Bona Fide: Good or Bad? The Conundrum after Kamarulzaman bin Omar v Yakub bin Husin

Abstract

The concept of indefeasibility of title or interest of land is one of the core concepts in the Malaysian Torrens System, stipulated in section 340 of the National Land Code (Revised 2020). All registered title or interest over the land shall be guaranteed and remain unchallengeable against the whole world in the absence of fraud or other vitiating factors statutorily specified or judicially laid down. The debate of whether Malaysia recognised immediate indefeasibility or deferred indefeasibility has been settled by the Federal Court in the case of Tan Ying Hong v Tan Sian Sang & Ors since 2010. Nevertheless, the concept of deferred indefeasibility seems to be extended by the Federal Court in Kamarulzaman, which imposed a requirement of double bona fide. In essence, the court stated that for a purchaser to be regarded as an immediate purchaser, he must be a bona fide purchaser for value so that the purchaser following him could be a subsequent purchaser protected by the proviso of section 340(3) of the National Land Code provided he acted in bona fide with valuable consideration.