Land scam issue

In 1967, as Boonsom was given 2 pieces of land by her husband, she never thought that her possession of these lands located in Penang, would one day become target of land scam activity.

Boonsom is a Thai woman residing in Bangkok before she passed away in May 2000. Seven months after her death, Malaysian would observe the demise of Torrens system, the underlying system for land registration in Malaysia.

Why is that so? Perhaps there is no straight answer to the question. However, since December 2000, every time there was a land scam issue being reported, practitioners in law circles would start discussions on Boonsom case.

Sometime in June 1989, Boonsom’s eldest son Phiensak saw an advertisement in a Thai newspaper making reference to her mother's lands in Penang. He immediately contacted the accountant in Penang, who took charge of his mother’s lands and requested him to investigate. The accountant discovered that Boonsom was no longer the registered owner of the lands. She had apparently sold and transferred the lands to Adorna Properties Sdn Bhd sometime in May 1989.

It appeared that an impersonator, calling herself by the name of Boonsom, had made a statutory declaration that she was the owner of the lands and had lost the original titles. With this declaration, the fake Boonsom was able to obtain replacement titles from the appropriate authority. The fake Boonsom, who had also procured a forged passport, then sold the lands to Adorna. Adorna became the registered owner of the lands.

The real Boonsom then instituted legal proceedings and claimed to be restored as the registered proprietor in 1989. As time went by and the real Boonsom was getting older and older, this court case took more than ten years, from High Court to the Court of Appeal, and finally to the Federal Court, to have a sad conclusion. Luckily the real Boonsom was not there to receive judgment of the Federal Court in December 2000 as she had passed away seven months earlier.

According to the Federal Court judgment, even if the transfer was forged, Adorna had nevertheless obtained an indefeasible title as it is an innocent purchaser envisaged in the proviso. What more, the judge granted an immediate indefeasibility to the title!

Today, as we look back to the previous years after Federal Court’s judgment on Boonsom vs Adorna case, many land scam cases have taken placed at various states. Though land dealing is under jurisdiction of respective state government, there is observation that tactics used in these land scam cases were similar in every state.

As observed by law practitioners and academicians, the effect of Boonsom vs Adorna case has been felt in the past few years, and people worried that this effect may continue until correction measure is done.

Under the Torrens system, once a person registers his name under a title, he will claim indefeasibility to that title, unless there is forgery or fraud as envisaged in the proviso.

Under section 340 of the National Land Code, immediate buyer’s claim of indefeasibility can be put aside so long as the whole dealing of land involves forgery. That means, even if the immediate buyer is in good faith and for valuable consideration, he’s claim to the title is considered defeasible. Anyway, in Boonsom vs Adorna case, the Federal Court’s landmark judgment is in contrary to general interpretation of the National Land Code.

Given the development of court case vis-à-vis land dealing issues, an amendment to the National Land Code is needed, so as to make clear the indefeasibility of land title, and to uphold the spirit of Torrens system.