Abdul Rahman bin Mohamed Yunoos and another (trustees of the estate of M Haji Meera Hussain, deceased) v Majlis Ugama Islam Singapura

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 29 May 1995
• Neutral Citation: [1995] SGCA 55
• Docket Number: Civil Appeal No 134 of 1994
• Date: 29 May 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Myint Soe (Murphy & Dunbar) and A Perumal (Yeo Perumal Mohideen & Pnrs)
• Citation: [1995] SGCA 55
• Defendant Counsel: Mirza Namazie and Tan Teng Muan (Mallal & Namazie)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether trust created by will a wakaf (Muslim charitable trust),Muslim charitable trust,Charitable trusts,Whether trust created was a Muslim charitable trust,Whether trust property passed to trustees of will or to Majlis Ugama Islam Singapura,Trust for the advancement of religion,Muslim Law,Trust created before enactment of Administration of Muslim Law Act (Cap 3),Charities,ss 6, 58(2,) 59 & 63 Administration of Muslim Law Act (Cap 3),Wakaf,Trust estate,Trusts

Cur Adv Vult

The question for consideration in this appeal is whether certain bequests made by a Muslim testator that the income derived from the named properties of the testator situated in Singapore be held in trust by his trustees and utilized for certain religious and charitable purposes in India constitutes a wakaf within the meaning of the Administration of Muslim Law Act (Cap 3) (the Act) and if so, whether such properties and the income derived therefrom automatically vest in the Majlis Ugama Islam, Singapura, the respondents, referred to hereafter as `Majlis`. The High Court decided both these questions in the affirmative (see [1995] 1 SLR 559 ). The appellants, the present trustees of the estate of the testator appeal against this decision.

The testator, M Haji Meera Hussain, an Indian Muslim, made his last will and testament at Kodikallpallayam, Tiruvallor, Negapatam Taluk, South India, on 3 October 1918. He died on 13 October 1918 at the aforesaid place. The testator`s will was written in the Tamil language, an English translation of which is attached to the grant of probate of that will on 5 May 1919 to Poona Javana Haji Mohamed Ismail (Ismail), one of the two named executors in the will, and issued by the Supreme Court of the Straits Settlements, Settlement of Singapore, on 23 July 1919. Double probate was granted to the other named executor, the testator`s son-in-law, Kavena Mayna Mohamed Abdul Kader bin Kavena Hadjee Mydinsah alias Kavena Mayna Abdul Kader (Kader) on 2 February 1920 and issued on 12 April 1920. The date of Kader`s death is known to have been on 5 December 1944 but the date of Ismail`s death is not known. The appellants` claim as the trustees of the testator`s estate is through a chain of representation emanating from Kader`s demise. Since the date of Ismail`s death is not known we can only speculate whether he died before or after Kader. In this situation it is pointless to question the validity of the appellants` appointments as trustees of the testator`s estate as the Majlis sought to do. In any event, in the conclusion we have reached, this is an irrelevant consideration and we do not need to dwell on it.

By his will the testator after making some specific bequests provided by cl 15 as follows:

I direct that from the income (rent) obtainable from house No 437 North Bridge Road and from the half share in house No 186 Arab Street and from the half share of house No 73 Bassara Street all situate within the Singapore Municipal limit, after paying the municipal rates and house repairs, the lamp which is at the Jannival Mosque at Kodikallpallayam, India, shall be burned throughout every night and the necessary oil and wick shall also be provided, and if the present lamp was broken a new one shall be bought in its place and a man shall be engaged at a fixed salary to fill up the tank `Hong` at the mosque with fresh water and the necessary repairs for the `Awal` shall be done. And annual feasts shall be held and prayers for myself shall be said and mowlath ceremony shall be performed every year in the month of Rabilawal in the name of our saints, and if money left after paying for the aforesaid things, then the balance shall be turned over to the `Muthalwal Kairath Matharsa` (also known as Madrasah Mathlabul Hairath) which was established by me. I direct that the upper floors of the two houses, viz No 186 Arab Street and No 73 Bassara Street, shall be exclusively used as a dwelling house by my progeny and the said upper floors shall not be used [the word alienated is wrongly used here] for any other purpose.

It is common ground that by the time the appellants were appointed trustees of the testator`s estate on 17 September 1993 in the manner aforesaid, two of the three properties mentioned in cl 15 of the testator`s will had ceased to be properties comprised in the testator`s estate. Number 437 North Bridge Road was acquired by the government in 1979 and No 73 Bassara Street being a 99-year leasehold property had reverted to the State on the expiry of the lease in 1941. Only the undivided half share in house No 186 Arab Street, which is now known as 34 Arab Street remained.

It is also common ground, or at least it is not disputed by the Majlis, that the half share of the rent collected from 34 Arab Street is $92.80 per month and that it is insufficient to carry out the wishes of the testator as directed by cl 15 of his will. Furthermore it is contended by the appellants that the Jannival Mosque referred to in cl 15 of the testator`s will is in a dilapidated condition and needs to be taken down and reconstructed. Lastly, it appears that the appellants have been served notice by the Land Office that the rear portion of 34 Arab Street encroaches onto state land and are required to remove the encroachment, an expense the appellants are unable to meet through lack of funds. So the appellants applied ex parte to court for leave to sell the testator`s undivided half share in 34 Arab Street pursuant to s 4 of the Settled Estates Act (Cap 293) and s 59(1) of the Trustees Act (Cap 337). In their supporting affidavit the appellants, after referring to what we have summarized above stated:

Immediately after the sale of the said property, we intend to go to India and appoint an architect/engineer and contractor to demolish the existing mosque and reconstruct a new mosque at the same premises at Kodikallpallayam in India. The balance of the sale proceeds shall be used to maintain the said mosque and Madrasah Mathlabul Hairath according to the wishes of the testator as specified under cl 15 of the said will.

When the application first came before the judge he directed the appellants to obtain the authority of the Commissioner of Charities to the sale on the assumption that the directions in cl 15 of the testator`s will amounted to a charitable trust. The authority of the Commissioner of Charities was duly obtained and his order authorizing the sale of the testator`s undivided half share in 34 Arab Street was gazetted on 3 June 1994. Either the gazette notification or the advertisement in the newspapers of the public notice of the proposed sale of the testator`s undivided half share in 34 Arab Street caught the attention of the Majlis as a result of which the Majlis opposed the sale by an affidavit filed on 23 June 1994 in the appellants` application to court contending that the trusts created by cl 15 of the testator`s will were Muslim charitable trusts or wakafs and being for the promotion of the Muslim religion or for the benefit of Muslims, the property, namely, the undivided half share in 34 Arab Street, would automatically vest in the Majlis under s 58(2) read with s 59 of the Act.

Eventually the appellants` application for the sale of the undivided half share in 34 Arab Street came before Lai Siu Chiu J; the Majlis appeared through counsel and were heard although it appears that no formal order had been made joining the Majlis as a defendant in the appellants` application for the sale, namely, OS 33/94. No issue was made of this at the hearing before us and we will cure that irregularity here and now by formally ordering that the Majlis be joined as a defendant in OS 332/94 pursuant to O 15 r 6(2)(b)(ii) of the Rules of the Supreme Court.

The learned judge made no orders on the appellants` application for the sale of the testator`s undivided half share in 34 Arab Street and instead, declared that the testator`s undivided half share in 34 Arab Street vested in the Majlis pursuant to s 59 of the Act and that the appellants had no power of sale. The court would not empower them with a power of sale against the declared wishes of the testator. The learned judge was in fact referring to a provision in the testator`s will which reads:

I direct that the property endowed for the charity shall not, under any circumstances, be mortgaged sold or alienated in any manner or way and if it was mortgaged or alienated it will be illegal.

The learned judge concluded her judgment thus:

I accepted the argument of counsel for MUI (the Majlis) that the definition of ` wakaf` in the Act read with s 58(2) makes it clear that the deceased`s half share in the property is held on charitable trust by MUI and cannot be sold as the applicants intended. Even in the exercise of its discretion, a court cannot rewrite the terms of a trust and it most certainly cannot dispose of the property of a deceased against his wishes as expressed in his will: [ [1991] 1 MLJ 465 ].

With this conclusion we agree; however we are not in entire agreement with her reasons. We would approach the questions we have premised in the opening paragraph of this judgment somewhat differently.

Our first consideration is whether the testator`s will and in particular cl 15 is to be construed from the perspective of Muslim law or the common law. Our attention was drawn to s 102 of the Evidence Act (Cap 97, 1990 Ed) which provides that wills `shall be construed according to the rules of construction which...