d) Whether Martha can object the application for an order of sale by the bank?

Firstly,in order to determine whether Martha can object to the application for an order of sale by
the bank,we need to properly discuss whether Martha is a bona fide purchaser.

The National Land Code 2020 incorporates an express regulation expressing the standard of
indefeasibility of title obtained by an individual who can prove to the court that he is a bona fide
purchaser.

Section 340 of the National Land Code1 stated regarding the indefeasibility of a title that had
been registered to and interest in land. The term 'indefeasible' however utilized in Section 340 of
the National Land Code, isn't defined in the National Land Code.The term 'indefeasible' has been
judicially characterized to signify 'immune from attack by adverse claim to the land or interest in
respect of which he had register' by a decision made by judges.

Section 340(2) of the National Land Code2 sets out the conditions under which an registered
title to or interest in land can be delivered defeasible and saved. Section 340(3) of the National
Land Code3 gives that a resulting registered title to or interest in land – which is procured from a
former proprietor of registered title or holder of registered interest who gets onto the register by
methods for at least one of the depriving methods as determined in Section 340(2) of the
National Land Code stated that a bona fide purchaser will be secured if the ensuing registered
title to or any rights in land is obtained 'in good faith and for valuable consideration'

To figure out what can be considered as a bona fide purchaser,there are a few case law that can
be referred.First, the Federal Court instance of Datuk Jagindar Singh and Ors v. Tara
Rajaratnam [1983] 2 MLJ 1964 where it was held that an existence of knowledge on fraud
would do the trick to refute good faith.In this case, a buyer who has information that his
predecessor's title is polluted with fraud, can't guarantee assurance under the stipulation to
Section 340(3) of the National Land Code despite the fact that he, at the end of the day, he isn't
liable of any fraud.

Second, the Court of Appeal instance of Au Meng Nam and Anor v. Ung Yak Chew and Ors
[2007] 5 MLJ 1365 where Raus Sharif JCA held that a buyer in accordance with good faith did
exclude a buyer who was thoughtless or who had been careless

1
National Land Code 2020,Section 340
2
National Land Code 2020,Section 340(2)
3
National Land Code 2020,Section 340(3)
4
[1983] 2 MLJ 196
5
[2007] 5 MLJ 136
Moreover,it likewise can be found on account of T Sivam A/L Tharmalingam v Public Bank
Berhad [2018] MYFC 116,where the Federal Court had set out the components required to
demonstrate the presence of good faith, Firstly,good faith doesn't just mean absence of fraud,
deceit or dishonesty; it additionally requires acting truly, sensibly or fairly.This incorporates
adding safety precautions that should be taken.The components of good faith are not shut; it
should in all cases rely on the circumstances.It isn't sufficient for a buyer to only show absence
of fraud, deceit or dishonesty.Knowledge of a question regarding the responsibility for and
information on misrepresentation charge, for instance, could deprive good faith.Lastly,a
component of negligence and carelessness discredits good faith

The Federal Court case in Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen [1998] 1
MLJ 4657,also expressed wherein the fundamental component of bona fide was portrayed as
"the absence of fraud, deceit or dishonesty and the information or methods for information on
such at the time of business of sale."

Another important rule for a bona fide purchaser is whether he is a buyer who has paid the full
purchase price in the contract of sale.This matter was talked about in the case of Aik Ming (M)
Sdn.Bhd and Ors. v Chang Ching Chuen and Ors [2007] 5 MLJ 1368 and another where it is
expressed that an individual is certifiably not a purchaser with good faith until that specific
individual has paid all one's cash under the agreement available to be purchased.9
On account of Doshi v Yeoh Tiong Lay [1975] 1 MLJ 8510,the court held that the respondent
can't profess to be a bona fide purchaser without notice since he had not paid the full
price.Moreover,in M&J Frozen Food Sdn Bhd v Siland Sdn Bhd [1994] 1 MLJ 294 11where
the appellant was the effective buyer at a public auction.It followed through on 25% of the buy
cost yet neglected to pay into court the equilibrium inside the specified time period.Thus the
buyer can't be supposed to be a purchaser with good faith.

As can be applied to in this situation,It can be seen that Martha didn't fulfill the prerequisites to
be said as a purchaser with good faith as the said real estate parcel in Permatang To' Kandu held
under Geran 17, Lot 18, Bandar Permatang Pauh, Seberang Perai Tengah, Negeri Pulau Pinang
("the land") was bought by her husband,brooke and not by her.She could not be said as a bona
fide purchaser even though her husband had forged her signature as she did not fulfill the
6
[2018] MYFC 11
7
[1998] 1 MLJ 465
8
[2007] 5 MLJ 136
9
Gomez J, “Section 340 of the National Land Code - Before and after Boonsom Boonyanit
• Jerald Gomez & Associates” (Jerald Gomez & AssociatesJanuary 17, 2018)
<https://jeraldgomez.com/publications/section-340-of-the-national-land-code-before-and-
after-boonsom-boonyanit/> accessed January 27, 2021
10
[1975] 1 MLJ 85
11
[1994] 1 MLJ 294
requirements of paying the full purchase price.So, if she is not a bona fide purchaser, she cannot
rely on protection under Section 340 of the National Land Code as stated in the case of Datuk
Jagindar Singh & Ors v. Tara Rajaratnam [1983] 2 MLJ 196.

After careful discussion regarding the position of Martha as a bona fide purchaser,we should
look into the issue of whether Martha can object to the application for an order of sale by the
bank.

In situations where an individual might want to acquire cash from the Bank, it is for the Bank to
require the borrower to give a security that is a guarantee for the credit. Ordinarily the security
comes as a property that has a higher incentive than the credit sum conceded and this security
would then be "charged to the Bank". Henceforth, the borrower would be designated "chargor"
and the Bank would be classified "chargee".

In any case, if a chargor neglects to reimburse the credit allowed to him, the chargee in endeavor
to recuperate the advance, can practice its privileges to apply for an Order For Sale via an
auction. Prior to applying for a request available to be purchased, the charger would regularly
convey a notification either Form 16D or Form 16E to permit the chargee to cure the default
inside a month. Be that as it may, if the chargee still doesn't remedy the said infringement, the
charger would continue with the application. 12

As indicated by Section 256(3) of the National Land Code 13, it expresses that the Court has the
power to arrange the offer of the land except if the Court is persuaded that there is a reason to the
opposite. Accordingly, there is a likelihood that the application could be saved if the Court is
fulfilled that by conceding the request available to be purchased would add up to a bothersome
judgment. The obligation to demonstrate that there is a cause to contrary falls on the individual
who asserts that there is a reason for the opposite, which is probably the chargor.

Thus,it can be seen that a chargor needs to show that there is a cause to contrary. The main case
that clarifies the expression "cause to contrary" is Low Lee Lian v Ban Hin Lee Bank Bhd
[1997] 1 MLJ 7714 where the learned Gopal Sri Ram JCA had expressed three grounds where
giving order of sale would be in opposition to the standard of law.

12
Hyperplace, “CAN THE APPLICATION OF ORDER FOR SALE BE STOPPED?” (CYNB)
<https://cynb.com.my/2019/05/15/can-the-application-of-order-for-sale-be-stopped/>
accessed January 27, 2021

13
National Land Code 2020,Section 256(3)
14
[1997] 1 MLJ 77
The first is that the situation of the chargor falls inside the exemptions for indefeasibility
principle in Section 340 of the National Land Code. Section 340(2)(b) of the National Land
Code15 states that the title or interest of any such individual or body will not be indefeasible
where the registered title was obtained by forgery, or by methods for an inadequate or void
instrument. Momentarily, this would imply that if there is any misrepresentation included in the
enrollment of charge or title, the application might be set aside. 16

Furthermore, a reason to opposite exists when a chargor can show that the chargee has neglected
to meet the conditions point of reference for making an application of an order of sale.The
application order of sale is spread out in the Order 83 of the Rules of High Court 2012.17Any
infringement towards the regulation would offer motivation to the Court to put aside the
application. Likewise, on account of Co-operative Central Bank v Meng Kuang Properties
[1991] 2 CLJ 114418, the court presented that there was a reason to oppose when the notification
of interest and structure 16D were invalid as they didn't uncover the right measure of cash and
interest to be guaranteed.

The third reason for the opposite that was given in Section 256(3) of National Land Code is the
point at which a chargor could set up that the award of an order of sale by the court will be in
opposition to some standard of law or equity. On account of Kuching Plaza Sdn Bhd v Bank
Bumiputra Malaysia Bhd [1991] 3 MLJ 16319, the application for Order of Sale was put aside
by the court as it was contrary to lead of value since, in such a case that the Order of Sale was
without a doubt, it would cause injustice to other party who had interest on the land.

As can be applied to in this case,the exceptions to indefeasibility of title can be seen in Section
340(2) regarding the Registration obtained by forgery.Since Brooke forged Martha’s signature,
so, yes the land is defeasible and by right she may have protection under Section 340(3).But as
already discussed above, Martha cannot rely on protection S.340(3) as in right she is not a bona
fide purchaser in this particular contract for sale.So, she cannot object the bank’s application for
sale.Thus, the bank can apply for an order of sale also because of Section 253 of the National
Land Code 202020 and Martha cannot object the bank’s application for sale.

15
National Land Code 2020,Section 340(2)(b)
16
Mohamad, Nor Asiah. A Bona Fide Purchaser for Valuable Consideration: A
Special Creature Under the Malaysian Land Law.
2004.http://klgrid.kmlink.com.my/neuaxis-e/Record/iium-
25164#description>accesed January 27,2021

17
Rules of High Court 2012,Order 83
18
[1991] 2 CLJ 1144
19
[1991] 3 MLJ 163
20
National Land Code 2020,Section 253