Procedural Fairness Matters: Federal Court Invalidates Land Partition Over Failure to Properly Notify Co-proprietor

The Federal Court in the case of Lee Kean Choon v Khoo San, Pengarah Tanah dan Galian Negeri Selangor & Pentadbir Tanah Klang [2025] CLJU 3371 addresses the critical question of when the statutory three-month appeal period begins under Section 418 of the National Land Code 1965. The Appellant challenged the partition of two land plots by the co-proprietor (1^st Respondent), arguing he was never properly notified of the partition application or the State Director’s approval. It was held that “communicated to him” under Section 418 requires official written notice from the Land Office, not merely informal knowledge through a surveyor’s visit. This ruling emphasized that procedural fairness and natural justice require proper statutory notification before time limits begin running, particularly when co-proprietors’ property rights are at stake.

One cannot help but be struck by the Federal Court’s unwavering commitment to a seemingly simple proposition: that “communicated” in the context of land rights must mean formal, official communication—nothing less will suffice. What makes this case particularly compelling is how it exposes the dangers of informal, casual conveyance of information in matters as consequential as property partition. Co-ownership is not a relationship where one party can steamroll the other through backdoor procedures and claim that informal knowledge somehow validates the process. Despite the co-owner having legitimate ownership rights to a share of the land, those rights did not entitle him to apply for partition in a manner that violated their longstanding agreement, failed to disclose material facts to the State Director, and—most critically—deprived the other co-owner of proper official notice that would have enabled him to exercise his statutory rights to object and be heard.

The Court’s insistence that proper communication requires official written notice served according to statutory procedures is not bureaucratic pedantry; it is a recognition that in co-ownership disputes, where parties have equal rights but potentially competing interests, procedural fairness through formal communication is the only safeguard against one party’s rights being extinguished through stealth, oversight, or deliberate circumvention of the mechanisms established to ensure both parties can meaningfully participate in decisions affecting their shared property.

Background of the Case

The Appellant’s father and the 1^st Respondent were original co-proprietors of land under an agreement dated 4 November 1971, which divided the land into two distinct portions for exclusive use—the upper portion with durian trees for the Appellant’s family and the lower portion with oil palm trees for the 1^st Respondent. After the Appellant inherited his father’s share in 2008, government land acquisition in 2015 severed the property into two separate titles (Geran 326882 and Geran 326883), though both parties continued using their respective portions as agreed.

In February 2020, the 1^st Respondent unilaterally applied for partition under Section 141A of the National Land Code without the Appellant’s knowledge or consent, claiming lost access due to expressway construction. The State Director approved the partition on 7 August 2020, dividing the land vertically (top to bottom) rather than horizontally (left to right) as per the 1971 agreement. This partition gave the 1^st Respondent approximately half of the Appellant’s durian trees and gave the Appellant half of the 1^st Respondent’s oil palm trees, fundamentally breaching their agreement.

The Appellant only learned of the partition in early March 2021 when a surveyor casually showed him an approval letter while conducting survey work. He received no official notice from the Land Office. After his solicitors’ requests for information went unanswered, official documents were finally served on 18 August 2021. The Appellant filed his appeal on 3 November 2021.

Court Rulings

High Court: Dismissed the Appellant’s appeal, ruling that:

• The three-month period under Section 418 should be calculated from March 2021 when the surveyor informed the Appellant of the partition decision, not from August 2021 when official documents were received
• The appeal was filed out of time and therefore the Court lacked jurisdiction
• The Court had no power to extend the statutory time limit under Section 418
• The Appellant could not circumvent the specific statutory provisions by seeking declaratory relief
• The 1^st Respondent’s counterclaim that the 1971 agreement was frustrated was dismissed, but the application to remove caveats was allowed

Court of Appeal: Affirmed the High Court’s decision, finding that:

• While the substituted service by the Land Office in February 2020 was irregular and premature (done before attempting personal service), this did not affect the time calculation
• Following the principle of stare decisis and the Federal Court case of Mohd Nadir, the three-month timeline must be calculated from when the the Appellant was first informed of the decision in early March 2021
• The appeal was therefore out of time regardless of the irregular service
• The Court did not condone the manner of substituted service but felt bound by precedent to calculate time from March 2021

Federal Court: Allowed the appeal and set aside both lower court decisions, holding that:

• On Communication Requirements: “Communicated to him” under Section 418 requires official written notice properly served under Sections 143(4) and 431 of the National Land Code. The decision must be officially conveyed in writing by the Land Administrator and must contain sufficient particulars to enable affected parties to exercise their legal rights, including filing an appeal.
• On the March 2021 Incident: The surveyor’s casual mention of a partition approval letter in March 2021 did not constitute proper communication because:
  • The surveyor was not there to serve notice but to conduct survey work
  • No proper service occurred under Section 431
  • The information was incomplete (only mentioned one title, not both)
  • The Appellant had no actual knowledge of the full decision or the manner of partition
• On Procedural Violations: The partition process was fundamentally flawed:
  • The irregular substituted service in February 2020 deprived the Appellant of his statutory right under Section 142(3) to object to the application within 28 days
  • The Appellant was denied his right to be heard at the mandatory enquiry under Section 142(4)(a)
  • These procedural failures constituted a grave breach of statutory rights and denial of natural justice
• On Time Calculation: The three-month appeal period began on 18 August 2021 when the Land Office officially served the decision and related documents, making the Appellant’s 3 November 2021 filing timely.
• On the Merits: The Court found:
  • The 1^st Respondent had a duty of full and frank disclosure in his partition application, including the 1971 agreement, which he failed to do
  • The partition violated the Appellant’s contractual rights under the 1971 agreement
  • The partition as approved would give each party half of the other’s crops, causing substantial injustice

The Federal Court cancelled both partition approvals, cancelled the four new titles issued, and ordered reinstatement of the original two titles. Costs of RM30,000 were awarded against the 1st Respondent and RM20,000 against the government respondents.

Key Takeaways

1. Formal Communication is Mandatory: In land law proceedings affecting property rights, informal knowledge is insufficient—official written notice served according to statutory procedures is required before time limits begin running for appeals.
2. Procedural Fairness Cannot Be Bypassed: Co-proprietors have statutory rights to notice, to object, and to be heard at enquiries. Failure to provide these procedural safeguards renders administrative decisions invalid, regardless of technical compliance with service provisions.
3. Duty of Disclosure in Ex Parte Applications: When applying for partition without the other co-proprietor’s consent under Section 141A, the applicant has a duty to make full and frank disclosure of all material facts, including existing agreements that govern the co-ownership relationship.
4. Contractual Rights Survive Co-Ownership: Agreements between co-proprietors defining the use and enjoyment of specific portions of land create enforceable contractual rights that must be considered in partition applications and cannot be unilaterally ignored.
5. Public Authorities Must Serve Decisions Properly: Land offices cannot rely on casual or informal means of conveying important decisions. They must follow statutory service requirements and provide complete information to enable affected parties to exercise their rights.

#PropertyLaw #RealEstate #LandPartition #MalaysianCourts