Majlis Ugama Islam Singapura v Saeed Salman and another

• Jurisdiction: Singapore
• Judge: Aedit Abdullah JC
• Judgment Date: 11 January 2016
• Neutral Citation: [2016] SGHC 4
• Plaintiff Counsel: Edwin Tong SC, Aaron Lee, Fay Fong, Jasmine Tham (Allen & Gledhill LLP)
• Docket Number: Originating Summons No 662 of 2013
• Date: 11 January 2016
• Hearing Date: 02 October 2015,21 July 2015,14 July 2015
• Subject Matter: Wakaf created by will,Muslim Law ­­,Charitable trusts ­­
• Year: 2016
• Citation: [2016] SGHC 4
• Defendant Counsel: Dr G Rahman (KhattarWong LLP) (instructed) and Chishty Syed Ahmed Jamal (A C Syed & Partners)
• Court: High Court (Singapore)
• Published date: 15 January 2016

Aedit Abdullah JC: Introduction

In this case, the Plaintiff, the body entrusted with administration of Muslim affairs in Singapore, sought orders that properties bequeathed by a testator in the 1950s was vested in it, and secondly that the Defendants, who were the trustees of such properties, provide an account of the trust proceeds and deliver records. The basis of the Plaintiff’s application was that the properties were the subject to a wakaf, and thus were vested in the Plaintiff by virtue of s 59 of the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) (referred to in this Grounds of Decision as “the Act” or “the AML Act”).

Background

In 1949, Haji Mohamed Amin Bin Fazal Ellahi (“the Testator”) passed away. By a will he had made three years earlier in 1946 (“the Will”), the Testator directed his executors to sell his property, and after paying off his debts and testamentary expenses, to divide the balance into three shares, with one share going to the maintenance and upkeep of a school, the Aminia Muslim Girls’ School, in Delhi, India (“the Delhi school”), and the other two shares going to his heirs under Islamic law. The Delhi school had been established in 1938 by the Testator, who had apparently provided properties in India to generate earnings for the upkeep of the school. For ease of reference, the one-third share of the Testator’s estate that he had willed to the Delhi school will be referred to as “the Donation” in this Grounds of Decision.

Subsequently in 1957, the beneficiaries and the executors entered into a Deed of Partition, dividing the property between the beneficiaries. Under this deed, the one-third share going to the Delhi school under the Will was to be shared equally between the Delhi school and its offshoot or branch in Karachi, and that the Delhi school was to take property listed in a schedule to the Deed of Partition, as well as cash. The executors would convey to the trustees of the Delhi school all the property listed in that schedule for the trustees of the Delhi school to hold as joint tenants on trust for the uses and purposes of the Delhi school. The property listed in the schedule included the following properties, which will be hereinafter referred to as “the Trust Properties”: units 1, 3, 5, 7, 9, 11, 13, 15, 17 and 19 of Lorong 18 Geylang Road, Singapore; vacant land at Lorong 18 Geylang Road, Singapore; and 3 Haji Lane Singapore (“the Kampong Glam property”).

In 2000, the trustees of the Delhi school instructed their agent in Singapore to register the Trust Properties with the Plaintiff, which under the Act had the responsibility of administering wakaf properties. The Plaintiff then lodged caveats over the Trust Properties in 2001.

The present Defendants were appointed as trustees of the Delhi school in 2001. In 2011, the Defendants requested that the Plaintiff withdraw its caveats over the Trust Properties. The Plaintiff then requested for information about the Trust Properties, but this was refused by the Defendants. Following the Plaintiff’s inquiries through other means, the Plaintiff was concerned that the Trust Properties, which are mostly in the Geylang area were used for either nefarious or suspect businesses. The Plaintiff also discovered that a restaurant and a bar were being operated at the Kampong Glam property. The Plaintiff thus commenced the present application.

The matter was set down for cross-examination of the respective experts on Islamic law from both sides. Submissions were filed ahead of the cross-examination of the expert witnesses, with revised submissions tendered after. Below, I set out a summary of each party’s case.

The Plaintiff’s Case

The Plaintiff invoked the statutory provisions of the Act. Section 58(2) specifies that the Plaintiff administers all wakaf and charitable Muslim trusts. Section 59 vests all property subject to s 58 in the Plaintiff without conveyance, assignment or transfer. Section 73 also provides that the financial provisions set out in the Second Schedule to the Act shall apply to all properties, investments and assets vested in the Plaintiff, subject to any trust, wakaf or nazar that do not form part of the General Endowment Fund established under s 57 of the Act.

The Donation of the property to the Delhi school created a wakaf or a charitable trust over one-third of the Testator’s estate. By s 63 of the Act, the Will was to be interpreted according to Muslim law. It was not necessary for there to be express mention of the creation of a wakaf in the Donation. The Testator’s intention to create a wakaf could be gleaned from these surrounding circumstances: the grant was in favour of a school; that school was founded by the Testator for the purpose of educating of girls in Islamic culture and religion; and there was a prior dedication by the Testator of property under a separate wakaf which was intended to generate earnings for the expenses of that school, so as to the allow the school to operate in perpetuity.

A cash fund, as originally constituted by the Will, may be the valid subject matter of a wakaf: see Syed Ameer Ali, Mahommedan Law, Vol 1 (Himalayan Books, 4th Ed, 1985) (“Mahommedan Law”) and Sakina Khanum and another v Laddun Sahiba and others [1905] 2 CLJ 218 (“Sakina Khanum”). Furthermore, the required elements of a wakaf were fulfilled: the wakaf was for a pious, religious, or charitable purpose; the subject property was inalienable; and the dedication was permanent. A valid purpose existed as endowment for a school was a recognised object for a wakaf. The language of the Will also evinced the elements of permanence and inalienability.

The Plaintiff argued against the Defendants’ position that the Will was an outright gift of one-third of the Testator’s estate to the Delhi school and did not create a wakaf. The Defendants’ arguments misconstrued the Will, and were not supported by the language used. In contrast, it was clear that the proceeds of the Testator’s estate were not given directly to the Delhi school; the executors were to administer and use the funds from the sale proceeds for the maintenance and upkeep of the Delhi school. The setting up of the school satisfied the element of permanence. In this regard, support could also be drawn from the trust deed that the Testator had made in 1938 in relation to the Delhi school (“the 1938 Trust Deed”). The Testator had intended for this trust to generate earnings for the Delhi school’s expenditure. In any event, it is clear from the prior conduct of the Defendants and their predecessors that they had recognised the existence of a wakaf. Finally, even if no wakaf was created, it was a charitable trust within the meaning of s 58(2) of the Act.

Following on from the existence of a wakaf or charitable trust, the Trust Properties vested in the Plaintiff by virtue of s 59. The vesting of property in the Plaintiff through the operation of s 59 of the AML Act is not subject to the requirements of registration of land in the Land Titles Act (Cap 157, 2004 Rev Ed) (“Land Titles Act”). No mismanagement in the running of the wakaf need be shown either for vesting to occur.

The Deed of Partition did not affect the existence of the wakaf or charitable trust. In any event, such a partition could not effect a transfer of the property to the Delhi school, since this would not be legal under Muslim law.

Contrary to the contentions of the Defendant, there was no evidence before the court that the Plaintiff had previously regarded the properties as not being subject to a wakaf, and the Plaintiff had not so acted. The Plaintiff also emphasised that it was not seeking to interfere with the running of the beneficiary of the wakaf or trust, ie, the Delhi school.

The Plaintiff obtained the opinion of Mr Pawancheek Marican (“Mr Marican”), a partner of Messrs Wan Marican, Hamzah & Shaik, a Malaysian firm of solicitors. In his report, he laid out the elements needed for a wakaf, noting in particular that permanence is necessary and that the equitable rule against perpetuities does not operate in Islamic law. The element of permanence requires that the charity intended for the beneficiaries is perpetual in nature; this does not mean that the property must be unchanging – a wakaf may persist though the property subject to the wakaf alters in form. Mr Marican was of the view that, by the Will, a valid wakaf had been created over the property as the requirements for a wakaf were met, including permanence, even if there was no express statement that a wakaf was created. Mr Marican was also of the view that the trustees should not have partitioned the properties in question, as the equitable doctrine of conversion was unknown in Islamic law. In any event, even if there was conversion, the wakaf continued to operate, treating the property as substituted.

The Defendants’ Case

The Defendants argued that the Plaintiff failed to show that the Donation created a charitable trust; indeed, Muslim law did not recognise a charitable trust as such. No common law trust was created either, as there was no certainty of intention, subject matter or beneficiaries. Neither would there be vesting of the property under s 59 or s 58(2) of the Act. Section 58 could not operate in this situation, as it required a separate vesting of property, such as property passing under Muslim Law or where property is vested in the Plaintiff for the purposes of a Baitulmal (ie, a public pool of funds or resources). The Court of Appeal has also noted in Abdul Rahman bin Mohamed Yunoos and another (trustees of the estate of M Haji Meera Hussain, deceased) v Majlis Ugama Islam Singapura [1995] 2 SLR(R) 394 (“Abdul Rahman”) at [26] that s 58(1) only applies where a Muslim person dies without heirs. The interpretation argued for by the Plaintiff, that s 59 applied, was inconsistent with the language of the Will. The Defendants also argued that...