The last essay solved A’s problem. His land goes to five members of the temple committee, to hold on trust for the advancement of his religion at that place, forever. The company that runs the temple administers. It owns nothing, and so the prohibition in the Companies Act never touches it.

Now go and look at the title.

What the register says

It says five men own a piece of land.

That is all it says. There is no mention of a temple, of a trust, of a purpose, of A, or of the deed he signed. Our land system does not record trusts on the register. The men whose names appear are, so far as the Land Office is concerned, the owners of the land, full stop.

This is not an oversight. It is the whole design.

The Torrens system exists so that a person dealing with land need not go burrowing into the history of the title. You search the register, you see who owns it, and you deal with him. The register is the truth, and the State stands behind it. That reliability is the system’s great virtue, and every conveyancer in the country depends on it daily.

But a system built so that nobody need look behind the register is, by the same stroke, a system in which anything hidden behind the register is invisible. Your trust is behind the register.

And if nothing was ever written down?

Before going further, deal with the arrangement that is commonest of all, and least documented.

A congregation raises money and buys a piece of land. The title goes into the name of a trusted elder — a man everybody knows, who has served for thirty years and is not going anywhere. There is no deed. There was never any question of one. The congregation pays the quit rent and the assessment, repairs the roof, collects whatever rent the outbuildings bring in, and nobody in the community has the slightest doubt about whose land it is.

Is that a trust at all?

It is. And the answer does not turn on finding a document, because none of the routes to it require one.

Where one party finds the purchase money and the title is taken in another’s name, equity presumes a resulting trust in favour of the person who paid. Where it would be unconscionable for the holder of the legal title to claim the benefit for himself, equity imposes a constructive trust, and imposes it regardless of what anybody intended. Both doctrines reached us with the rest of equity, and neither has ever required writing.¹Civil Law Act 1956 (Act 67), s 3(1)(a).

Nor does our land system shut them out. Quite the opposite. Section 206 of the National Land Code requires dealings to be effected by registered instrument — and then, in the very next breath, provides that nothing in that requirement “shall affect the contractual operation of any transaction relating to alienated land or any interest therein”.²National Land Code (Act 828, Revised 2020), s 206(1) and (3).

That is the door, and Parliament built it. The register governs who holds the legal title. It says nothing about who is entitled to the benefit of the land, and the Code expressly declines to make it say anything.

What proves such a trust, then, is conduct. Who found the purchase money. Who has paid the quit rent and the assessment, year upon year. Who occupies, who repairs, who insures, who collects the rent. What the committee minutes record, and how often. What the elder himself said, wrote or signed across three decades. In the case discussed at the end of the last essay, a widow’s nine years of paying quit rent and collecting rent from tenants, with never a murmur of objection from the registered proprietor, formed part of what satisfied the Federal Court that the proprietor was holding nothing but a shell.³He-Con Sdn Bhd v Bulyah Ishak & Anor and Another Appeal [2020] 7 CLJ 271 (FC).

And the obligation does not die with the man. When a trustee dies, his executor takes the land subject to the trust. His son inherits a legal title and no beneficial interest whatever. Should the son sell, he is selling something that was never his.

There is even a small irony in the paperwork. Stamp duty bites on instruments. A trust with no instrument has nothing to stamp, and so cannot fall foul of the rule that an unstamped document may neither be received in evidence nor acted upon. The unstamped deed in the cupboard is, on that narrow point, in a worse position than no deed at all.

None of this is an argument for leaving matters unwritten. It is an argument for knowing exactly where you stand while you put them right — because the protection equity gives runs out at a precise point, and the rest of this essay is about where.

So three things can go wrong, and all three are common.

One: the trustee who sells

He is on the title. He can sign a transfer. If a buyer pays him, in good faith, and gets himself registered, the temple may find that the land has gone.

Readers of my earlier series on land scams will recognise the shape of this. Malaysian law is generous to the true owner and will usually unwind a fraudulent transfer.⁴Tan Ying Hong v Tan Sian San & Ors [2010] 2 CLJ 269 (FC). But there is a point past which it will not go: once the land has passed on to a further purchaser in good faith, the Federal Court has held the owner’s right of recovery to be, in a phrase it borrowed, gone beyond recall. And the same court held that in that situation the land legislation gives no right to damages either.⁵Low Huat Cheng & Anor v Rozdenil Toni & Another Appeal [2017] 3 CLJ 257 (FC), at [47] and [48]–[49]. The remedy, such as it is, lies against the man who did it — who by then has spent the money.

A congregation can lose its land to one dishonest signature and have nothing to show for it.

Two: the trustee who dies

This is far commoner than fraud, and it causes more grief.

A trustee dies. On paper, he owned a piece of land. That land forms part of his estate. His executor or administrator must deal with it. His widow and children see it listed among his assets and quite reasonably ask what it is.

If the trust deed is produced, the position is straightforward and the family will usually cooperate. If it cannot be produced — and this is where congregations come unstuck — the family is being asked to give away an asset that every official document says belonged to their father, on the strength of an oral tradition.

Multiply that by five trustees over forty years, with committees turning over every two or three years and records kept in whatever cupboard the last secretary used, and you begin to see why these disputes reach the courts.

Three: the trust nobody can prove

Thirty years on, what actually survives?

Ask the question now, of your own institution, and the answer is often unwelcome. The original deed is in a drawer, or in a bank vault nobody has the key to, or it is genuinely lost. The men who signed it are dead. The minute book for the relevant year is missing. Nobody has done a title search since 2009.

Three disciplines are worth more than any amount of legal advice afterwards.

Stamp the deed. People think this is a technicality about revenue. It is not. Section 52 of the Stamp Act says that an instrument chargeable with duty and not duly stamped shall not be admitted in evidence for any purpose — and shall not be acted upon, registered, or authenticated by any person or public officer.⁶Stamp Act 1949 (Act 378), s 52(1). So an unstamped trust deed is not merely a paper a court will decline to read. It is a paper the Land Office may decline to register or act upon. It can be stamped late, with a penalty. Do it now, and not in the witness box.

Keep copies in more than one place, and record the existence and terms of the trust in the committee minutes every single time a trustee is replaced. A resolution recorded contemporaneously, year after year, is powerful evidence.

Search the title once a year. It costs almost nothing. It is the only way you will discover, in time to act, that something has changed.

The caveat, and its limits

The obvious protection is a caveat — a formal entry on the register warning the world that somebody claims an interest in this land, and freezing dealings while it stands.

Every religious body holding land through trustees should have one. But understand exactly what it does.

A caveat is a warning. It is not proof. It does not establish that your trust exists, or that its terms are what you say they are. It buys you the thing that matters most in these disputes, which is time — the chance to be told before the land moves rather than afterwards.

And a caveat can be removed. In a case decided by the Court of Appeal in October last year, two buyers who had paid a million and a half ringgit lodged a caveat to protect themselves, and it was taken off the register on the application of an imposter, without any notice to them.⁷Pendaftar Hak Milik Negeri Selangor & Ors v Ooh Tong Hai & Anor and Another Appeal [2025] 11 CLJ 211 (CA). They recovered damages in the end, ten years later. They did not get the land.

A caveat is a smoke alarm. It is not a wall.

And then you need permission to sue

Suppose the worst happens. A trustee has gone rogue, or refuses to transfer to his successors, or the committee simply needs the court to put the property into new hands.

Here is where a great many congregations discover something unexpected.

Where there is an alleged breach of a trust for public, religious, social or charitable purposes, or where the court’s direction is needed to administer such a trust, the Government Proceedings Act 1956 provides that proceedings may be brought by the Attorney General — or by two or more persons having an interest in the trust who have first obtained his consent in writing.⁸Government Proceedings Act 1956 (Act 359), s 9(1).

The reliefs covered are precisely the ones you will want. Asserting an interest or right in the trust property. Removing a trustee. Appointing a new one. Vesting property in a trustee. Directing accounts. Authorising a sale or a lease. And, in Peninsular Malaysia, settling a scheme — that last relief does not run in Sabah or Sarawak.⁹Government Proceedings Act 1956, s 9(1)(a)–(i); para 9(1)(h) is not applicable to Sabah and Sarawak, see L.N. 67/1965.

And the Act goes on to say that no suit claiming any of those reliefs shall be instituted except in conformity with that section.¹⁰Government Proceedings Act 1956, s 9(2).

So before your temple can ask a judge to remove the man who is refusing to sign, it must go to the Attorney General’s Chambers and ask for a letter.

There is a reason for the rule. Charitable trusts have no owner to police them, and the Attorney General has protected them on the public’s behalf for centuries. But a rule designed to protect trusts from strangers now stands between a congregation and its own property, and it takes time that a congregation in trouble does not have.

One cure for all of it

An invisible trust. Mortal trustees. And a gatekeeper at the courthouse door.

There is a single answer to all three, and it has been sitting in the statute book since 1952 while almost nobody uses it.¹¹Trustees (Incorporation) Act 1952 (Act 258).

That is the next essay.

You can view Part 1, Part 2, Part 4, and Part 5 here. 

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This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. Our gratitude to Curated Lifestyle of Unsplash for the image.

Claude, Anthropic’s AI, smoothed the drafting; Perplexity Pro checked the facts. The argument, the views, and the errors remain the author’s.

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