LAND LAW II

GROUP ASSIGNMENT 1
Presented by:
1. AISHA RASYIDAH BINTI HAJI MOHAMAD LELA (2021513537)
2. NUR AISHAH BINTI ABD NASIR (2021976541)
3. NURIN IMANINA 'ADANI BINTI MARZUKI (2021109101)
4.NUR ANNISYA BINTI MOHD ZULKIFLI (2020844672)
5. GARY MC PALIS ANAK FREDIEL (2020470896)
presentation
outline Facts of the Question

Law
What we will tackle
Application for Liza & Daud

Application for Hani & Leman

Application for Juriah & Damia

Conclusion
 Question 1
Facts
Firstly mutually agreed for Daud to
give loan to Liza with condition she
has to transfer her land to him.
Then mutually agreed that if Liza
able to repay the loan + RM500
service charge within 6 months of
transfer, Daud shall re-transfer.
Transfer conducted on 12 July
Daud 2021. Liza
Lender On 10 January 2022, Liza attempts Borrower
Loans RM 20,000 but Daud was abroad only to Proprietor of Putrajaya Land
returned on 29th January 2022.
Then serve letter to Liza on 15
February stating that Daud is now
the proprietor.
 Question 2
Facts
Hani gives friendly loan to Leman
in return Leman transfers his land
to Hani.
Transfer executed on 14 December
2019, and a collateral agreement
was executed whereby mutually
agreed Hani re-transfer the land
back to Leman provided that
Hani repayment of full amount of RM Leman
Lender 10,000 within two years from Borrower
Loans RM 5,000 execution. Proprietor of Rawang Land
Leman attempts to settle full
amount on 1 December 2021.
However, Hani demands an
additional RM500 service charges.
 Question 3
Facts
Damia gives loan to Juriah and
Juriah transfer her land as
collateral.
Signed sales and purchase and an
agreement for Damia to re-sell
land to Juriah for the repayment of
the same same amount.
Repay before 1st January 2022.
Damia On 15 November Juriah attempts Juriah
Lender to repay, however Damia avoided Borrower
Gives 50,000 Juriah and refuse repayment Proprietor of Kajang Land
unless with additional amount of
RM 10,000.
Jual Janji
Elements
Borrower
- Person receiving money and is currently in need of money.

Lender
- Person who lends the money.

Land
- Used as a security from the borrower to the lender by transfer.

Loan
- Money given to the borrower with expectation of repayment.

Collateral Agreement
- Obligation for lender to retransfer the property to borrower once
repayment is obtained. Failure of repayment will equates as default.
 Tengku Zahara v Che Yusuf [1951] 17 MLJ:

"The whole purpose of a jual janji transaction is to

provide a procedure for securing a loan … Without
infringing the prohibition of usury which is binding
on the conscience of all good Muslims"

Briggs J
 Strict Interpretation
Haji Abdul Rahman v Hassan [1917] AC 209

Jual Janji is neither security transaction nor mortgage as

Malaysia only recognise charge or lien as such.
Jual Janji is contract. Hence, we must approached it as a
contract and it is statute barred.
The court shall not assist the borrower to reobtain their land
In accordance with NLC:
when it is evident that they fail to repay the agreed amount
Section 4(2)(a) : “any law for the time being in
force relating to customary tenure shall not be before the stipulated time
affected by the provisions of the Act"
As such the time is of the essence whereby once the time has
section 206(3): “contractual obligations passed and no repayment has been made by the borrower to
relating to alienated land or interest will not be the lender, the contract is complete and the breach of it
affected by the provisions which compels
every dealing under this Act deem inoperable. results in the lender becomes the new proprietor of the land.
Liberal Interpretation
Conduct of the parties
"asking for payment to be raised"
"refusing to accept repayment"
Jual Janji is contract. "evading the borrower"
Must be in accordance with the agreement.
Time is of the essence; any alteration of the agreement defeats the original agreement.
Thus conduct of the parties determines the interpretation of their agreement.
 Case Law
Conduct of the parties
Kanapathi Pillay v Joseph Chong [1981] 2 MLJ 117

Jual Janji only creates contractual right

exists collateral agreement for re-transfer
can be defeated by effluxion of time
bounds to Statute Limitation

The judicial attitude towards such a transaction has always been

that the collateral agreement for re-transfer only creates a
contractual right which can be defeated by the effluxion of time or
statute limitation
 Case Law
Conduct of the parties
Ismail Bin Haji Embong v Lau Hong Kan [1970] 2 MLJ 213 HC

time was supposed to be of the essence

lender agrees that borrower can continue paying through
interest.
time for repayment no longer the essence of agreement.

time for repayment is not essence of the agreement, as inferred

from the conduct of the parties to the transaction where the
Borrower continued paying monthly interest to the Lender
 Case Law
Conduct of the parties
Hatijah binti Rejab v. Abdullah binti Saad [2004] 2 AMR 665

Court did not favor the lender

Lender refuses to accept payment although borrower was ready to
settle the full amount before stipulated time.
Borrower borrows RM20,000 with condition she has to settle within 5
years from date of agreement and lender is registered as new
proprietor.
In just two years, the borrower attempts to pay the loan however lender
refuses to accept payment.
Favoring the borrower, the court decides that the lender breaches the
contract by refusing to accept repayment.
 Case Law
Conduct of the parties
Husaini bin Yaacob v Tan Teo Siang [2014] 5 MLJ 606

Borrower and Lender agrees for a loan.

Through Jual Janji whereby land ownership was transfered
Agreed that if loan settled prior to the stipulated time, the land shall be
retransfered.
However the borrower was unable to do so.
Court held: the borrower failed to prove on the balance of probabilities
that he was in a position and had the capability to settle the loan sum
on or before the stipulated date. Thus the lender had acquired
indefeasible title over the land and allowed to deal with the land in the
manner he wished.
 Case Law
Conduct of the parties
Ahmad Bin Omar V Hj Salleh Sheik Osman [1987] 1 MLJ 338

Borrower enters agreement to transfer land to lender for loan

Signed a colateral agreement that borrower repurchase within three
years for the same amount.
Then tried to pay before stipulated time however lender refused to
accept repayment
After time expires, the lender ties to enforce agreement.
Court decides: “this was a jual janji transaction and the court could
give effect to equitable rights existing between the parties. Even if
times originally of the essence of the contract, it had been allowed to
pass and the conduct of the parties clearly showed that it was no
longer so”.
Q1: Daud & Liza
ISSUE
Whether Liza has the rights to claim the Putrajaya Land from Daud

APPLICATION
Liza is a borrower where she has entered into a collateral agreement in
which she obtained a loan from Daud for a sum of RM20,000 on 12 July
2021 with the condition that she has to transfer her land in Putrajaya to
Daud. Daud, the lender, also agreed to return the property to Liza if she
can repay the loan within 6 months from the transfer date with an extra
RM500 as a service charge. In this case, Liza and Daud have entered into a
‘Jual Janji’ agreement as the ‘Putrajaya Land’ is used as a security of the
loan. Liza has attempted to pay full amount to Daud 2 days before the
expiry date but failed to do so as Daud has gone abroad to visit his
daughter.
Q1: Daud & Liza
APPLICATION
Even though it does not show that Daud is outright refusing Liza’s
payment since at that time Daud was abroad visiting his daughter. He did
not express that he was rejecting the payment or evading the attempt of
payment made by Liza. However, the conduct of Daud going abroad
instead has clearly shown that the time was no longer an essence of the
agreement as he has made it impossible for Liza to pay on time as he was
not available. As the person who set the time durations and conditions, he
is aware of the expiry date hence the act of him going abroad just to visit
his daughter can be considered as indirectly evading the payment. It is
not in the fact of the case whether he went there because of an
emergency, hence we take it he went there without any valid reason. This
can be seen in the case of Ahmad bin Omar v Hj Salleh.
Q1: Daud & Liza
APPLICATION
It is illustrated in the case of Ismail Bin Haji Embong v Lau Hong Kan
where it was held that the time for repayment is not essence of the
agreement, as inferred from the conduct of the parties to the transaction
where the Borrower continued paying monthly interest to the Lender.
Hence, this shows that the borrower’s contractual right to repurchase the
land can still be exercised even after its expiry. To apply this view of the
case into the current situation, the act of Daud going abroad until 29
January 2022 has hindered Liza from making payment on time or before 6
months period. Indirectly, he has given Liza the extension of time thus
making the time is not an essence in the agreement following the decision
made in the case of Nawab Din v Mohamed Sharif.
Q1: Daud & Liza
CONCLUSION
In conclusion, we would advise Liza that she has the right to claim back
the Putrajaya Land once she has paid back all her loan as Exception 2
under strict interpretation of Jual Janji is applied.
Q2: Hani & Leman
Issue
Whether Hani has the right to demand Leman to pay for additional service charges

Application
Jual Janji happen between Hani and Leman - the land in Rawang (as security to secure the loan of
RM5000).

The elements of Jual Janji was present.

The lender is Hani because she is the one who lend the money and the borrower is Leman as he is the
one that borrow the money or in need of money.

The loan is RM5000. The collateral agreement - Hani and Leman when Hani is obligated to transfer the
land back to Leman upon full repayment of the loan RM10000 within two years from 14 December 2019 as
being agreed.

Therefore, Jual Putus happen - court will not assist Leman to redeem back his land if it happen that the
loan was not being fully settled by Leman.
Q2: Hani & Leman
Application
The evading payment of loan - Leman had attempted to settle the full amount on 1
December 2021 but Hani refuse the payment by way of imposing new condition on which
was not discussed earlier in the agreement in order to accept payment such as Leman
need to pay additional RM500 service charges.

Hani’s actions = a breach of contract and therefore, give entitlement to Leman to redeem
his land back upon full settlement he tried to do. Furthermore, Hani’s conduct shows that
she was intend that time is not essence of contract.

Hatijah Bte Rejab v Abdullah Saad - Leman had made an attempt to pay the loan within
stipulated time which not exceed 2 years as being agreed. However, Hani refused to
accept the payment by making a demand after the collateral agreement was executed.
The court will give a judgement in Leman's favour because by refusing to accept the
repayment of the loan within stipulated time shows that she has breached the contract.
Q2: Hani & Leman
Application
Leman also must prove on the balance of probabilities - he can settle the amount ( Husaini bin Yaacob
v Tan Teo Siang ) - the balance of probabilities has been fulfilled by Leman where he decided to settle
the amount of RM10 000 shows that he had the capability to settle the loan sum before two years after
14 December 2019 in which he had made an effort. Therefore, he acquired indefeasible title over the
land and was entitled to deal with the land in the manner he wished.

Ahmad Bin Omar V Hj Salleh Sheik Osman - action made by Hani herself not regarded and amounted
to time as an essence of the contract by making additional demand which not being agreed in the
collateral agreement, thus, Leman is entitled to redeem the land. It was in line with the High Court’s
judgement in this case which stated that “this was a Jual Janji transaction and the court could give
effect to equitable rights existing between the parties. Even if times originally of the essence of the
contract, it had been allowed to pass and the conduct of the parties clearly showed that it was no
longer so.”

Thus, the conduct by Hani making demand of additional pay for service charges constitute as
exceeding the time given and outside of the initial agreement because if Leman need to pay RM500,
then he need to find RM500 where it is not possible to paid it being given that the time of full
settlement almost reach and there is no condition of paying additional charges in agreement at the first
place.
Q2: Hani & Leman

Conclusion

Hani has no right to demand Leman to pay for additional

service charges of RM50 as it is not stipulated under
collateral agreement happen between them because
when Hani demand the pay, she has breached the
contract between her and Leman as he refusing the
actual full settlement by Leman by imposing new
condition.
Q3: Damia & Juriah
Issue
Whether Juriah is compelled to execute the necessary instruments of
dealing to transfer the land to Damia or Damia must retransfer the land
back to Juriah.

Application
Juriah & Damia have entered into Jual Janji agreement which is a customary
procedure to secure the loan.

Reference to Tengku Zahara v Che Yusuf, the practise is necessary for

muslims to avoid infringing the prohibition of usury which is binding on all their
conscience.
Q3: Damia & Juriah
Application

In Hatijah bte Rejab v Abdullah bin Saad, the defendant refused to accept the payment as
defendant claimed that it was direct sale transaction and not promissory sale agreement
such as Jual Janji. The court observed at the intention of the parties as the land used as
security for loan under Jual Janji. The existence of collateral agreement indicated parties
have had intention to made promissory sale agreement which purporting Damia to re-sell the
land back to Juriah when she able to pay RM50,000 prior to 1st January 2022.

In the light of Haji Abdul Rahman v Hassan, the agreement between lender and borrower is
valid as form of contract, if there is stipulated time to repay the loan, then if the borrower
failed to do so, it will result in completion of contract.

Section 4(2)(a) and 206(3) of NLC implied that contractual obligation involving land is
allowed and has force. However, for Damia and Juriah problem, the equitable principle will
apply whereby time is no longer of the essence when the act of lender refused the payment
from borrower is equivalent to allowing the time to pass according to Hatijah binti Rejab v
Abdullah bin Saad.
Q3: Damia & Juriah
Conclusion
We shall advice Juriah that she shall not be compelled to execute
necessary instruments of dealing restransfer the land to Damia as
the conduct of lender purposefully rejecting payment of the agreed
amount before the stipulated time then demanded an additional
amount no longer makes the contract to be time barred.

Hence, Damia has to transfer back land in Kajang to Juriah upon

settlement of initial loan which is RM50,000
THAT'S ALL
FOLKS
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