Mohamed Ismail bin Ibrahim and Another v Mohammad Taha bin Ibrahim

• Jurisdiction: Singapore
• Judge: MPH Rubin J
• Judgment Date: 22 September 2004
• Neutral Citation: [2004] SGHC 210
• Docket Number: Originating Summons No 601221 of
• Date: 22 September 2004
• Year: 2004
• Published date: 29 September 2004
• Plaintiff Counsel: Mohd Muzammil (Muzammil Nizam and Partners)
• Citation: [2004] SGHC 210
• Defendant Counsel: Mirza Namazie and Chua Boon Beng (Mallal and Namazie)
• Court: High Court (Singapore)
• Subject Matter: Concept of nuzriah,Whether validator and witness could and should have excused themselves from deliberations,Whether nuzriah contravening principles of Muslim law,Testator's will giving one-third of estate as nuzriah to certain beneficiaries,Majlis ugama islam (MUIS),Whether division correct,Validator and witness of testator's will subsequently on Fatwa Committee that deliberated on validity of nuzriah segment of will,Muis ratifying nuzriah segment of will -Validity of nuzriah segment of will,Muslim Law,Issuance of fatwa dividing testator's estate

22 September 2004 Judgment reserved.

MPH Rubin J:

Introduction

1 This case concerns the validity of a will made by Haji Ibrahim bin Abdul Samad (“the testator”), a Malay Muslim from Singapore. He passed away on 14 September 1997, having made his last will and testament on 9 December 1996, leaving behind a wife, three sons and seven daughters. The first and second plaintiffs are two of the children of the testator. The defendant is another son who is the executor of the testator’s estate. The plaintiffs are challenging parts of the will.

2 The general issue in this action is whether certain parts of the declarations and bequests contained in the will accord with the principles of Muslim law applicable to Muslims of the Shafii school of law to which the testator and his heirs belong.

3 A specific issue that falls for determination concerns an aspect called “nuzriah”. The term “nuzriah” does not appear or feature in any of the treatises, writings or books published by or attributed to any Muslim scholars or jurists. However, the court was informed by the expert witness who appeared for the defendant that the word “nuzriah” is derived from the word “nazar”, that it is a minor nazar and that both terms connote the same concept. The term nazar means “vow or a solemn pledge” and is defined in s 2 of the Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) (“AMLA”) as an expressed vow to do any act or to dedicate property for any purpose allowed by Muslim law.

4 Another issue relates to the correctness or otherwise of the division of the property of the estate of the testator by the Legal or Fatwa Committee of the Singapore Islamic Council (Majlis Ugama Islam Singapura) (“Muis”).

Sources of Muslim law

5 Briefly stated, there are four sources of Muslim law. In so far as the Sunni Muslims are concerned, they are: The Quran (the Holy Book), Hadis or Hadith (the traditions of the Prophet, viz the oral precepts delivered from time to time by the prophet and references to the daily mode of his life as handed down to posterity by his immediate followers), Ijmaa (consensus amongst highly qualified legal scholars), and Qiyas (reasoning by analogy or analogical deduction).

Muslim law of inheritance – a brief perspective

6 Muslim law and rules for dealing with the distribution of a dead person’s property differ greatly from Western or other secular law. Muslim law or Sharia is derived from the Quran and the words and traditions of Prophet Muhammad himself, and is therefore believed to be of divine inspiration and not man-made.

7 Muslim jurisprudence imposes two principal restrictions on testamentary power. The first restriction concerns the quantum of bequests, where the rule is that a person may not dispose by will more than one-third of his property. The second limitation upon testamentary power (recognised by all four schools of the Sunni Muslims, the Shafii school being one amongst them) is that a testator may not make a bequest in favour of any of his legal heirs. In other words, a Muslim cannot by a testamentary disposition reduce or enlarge the shares of those who by law are entitled to inherit (see N J Coulson, Succession in the Muslim Family, (Cambridge University Press, 1971) at p 213; Asaf A A Fyzee, Outlines of Muhammadan Law (3rd Ed, 1964) at p 351 and Syed Ameer Ali, Mohammedan Law (6th Ed, 1965) Vol II, p 20. “Legal heir”, in the Islamic context, is a term which is properly applied only to those relatives upon whom property devolves, after the demise of the owner, by operation of law. In Singapore, under s 111(1) of the AMLA, no Muslim domiciled in Singapore can now dispose of his property by will except in accordance with the provisions and subject to the restrictions imposed by the school of Muslim law professed by him. Under s 115 of the AMLA, the Syariah Court of Singapore is vested with the authority to issue the requisite inheritance certificate, setting out the names of the legal heirs and their respective shares in the estate of the deceased. Without a doubt, a legacy in favour of a legal or legitimate heir can only take effect with the unanimous consent of the co-heirs (see Dr Ahmad Ibrahim, Islamic Law in Malaya, (Malaysian Sociological Research Institute Ltd, 1965) at p 264).

8 Coulson comments (at p 214) that Sunni jurisprudence sees the essence of succession law to lie in protecting the interests of the legal heirs and preserving the balance between their claims as established under the sacrosanct scheme of inheritance. Bequests, however meritorious their purpose – in providing for cases of particular hardship, in fulfilling a charitable purpose or in performing what the testator conceived to be a personal duty left outstanding during his lifetime – are not allowed to defeat the entitlement of the legal heirs to at least two-thirds of the estate.

9 Further, s 60 of the AMLA specifically provides:

60.—(1) Whether or not made by way of will or death-bed gift, no wakaf or nazar made after 1st July 1968 and involving more than one-third of the property of the person making the same shall be valid in respect of the excess beyond such one-third.

(2) Every wakaf khas or nazar made after 1st July 1968 shall be null and void unless —

(a) the President shall have expressly sanctioned and validated or ratified the same in writing in accordance with the Muslim law; or

(b) it was made during a serious illness from which the maker subsequently died and was made in writing by an instrument executed by him and witnessed by 2 adult Muslims one of whom shall be a Kadi or Naib Kadi.

(3) If no Kadi or Naib Kadi is available as described in subsection (2)(b), any other adult Muslim who would not have been entitled to any beneficial interests in the maker’s estate had the maker died intestate shall be a competent witness.

(4) This section shall not operate to render valid any will, death-bed gift, wakaf or nazar which is invalid under the provisions of the Muslim law or of any written law.

[emphasis added]

The will

10 The will, a subject matter of dispute before the court, was made in the Malay language and headed in the original with the word “wasiat”, meaning “will”. In so far as is material, the said will, translated in English and produced in court, reads as follows:

Will

In the name of Allah, The Most Gracious and Most Merciful.

Praise be to Allah, Lord of the Universe. Salutations and peace be upon our Prophet, Muhammad, his family and all his companions.

I, Haji Ibrahim bin Abdul Samad (S 0257773 I) sincerely bear witness that there is no God but Allah and Muhammad is His Messenger, in a state of good health and of sound mind hereby willingly and without coercion from anyone divide my property into three parts and they are as follows:

One third of my property has already been given in a manner known as NUZRIAH (Vow). That is, my bequeath [sic] shall come into force three days before my death if it is due to illness, or one hour before my death if it is sudden, to the names mentioned below in accordance with the percentages explained thus:

1. My son Mohamad Taha ……….………. 15%

2. My daughter Nyaros …………… 10%

3. My daughter Apon ……………. 10%

4. My daughter Zainun …………… 10%

5. My daughter Amida …………… 10%

6. My grandson Fakharuddin Arrazi Bin Mohammad Ismail .. 5%

7. My grandson Saiful Bahari …………………………….. 5%

8. My wife Jenab Bte Samat ………………………………. 35%

Another one third is bequeathed as charities to two mosques equally and which names are mentioned below:

1. Ba Alawi Mosque … Luis Road … Bukit Timah … Singapore

2. Muhajirin Mosque … Braddell Road … Singapore

Another one third is divided in accordance with the Faraid law (Islamic Law of Inheritance) to all my beneficiaries including those whom I have given in a manner known as Nuzriah during my lifetime.

I hereby remind my children, wife and all my family to be devout towards Allah and to pray to Allah to forgive me. I give my consent for them to pay my fasting “fidiah” (monetary payment in lieu of obligatory fasting) through their “Ihsan” (goodwill) and perform the Pilgrimage as well as the Minor Pilgrimage or perform the Sacrificial Rites (Qurban). The handling of my body for the purpose of burial shall be carried out in accordance with the obligatory and customary rites in Islam.

I hereby appoint: Mr Mohammad Taha Bin Ibrahim to be my executor (administrator of my will). My instruction in this will is pronounced willingly by me before two witnesses whose names and signatures appeared at the bottom.

Pronounced by:

Signed

Haji Ibrahim Bin Abdul Samad

1. Witness: Syed Abdillah Aljufri signature: signed

2. Witness: Abdul Rahim Saleh signature: signed

Dated: 9^th December 1996 in accordance with 28^th Rajab 1417.

Witnessed and certified by me, Syed Isa Mohd Bin Semait.

Signed

Syed Isa Mohamed Bin Semait
Mufti of Singapore

SEAL

11 Since the word “bequeath”, appearing in the second line of the third paragraph of the will, seemed syntactically out of tune, the court asked the counsel whether the right word should have been “bequest”. On this, the court was informed by the court interpreter, with the concurrence of both counsel, that the correct word should have been “gift”.

12 It must also be remarked at this juncture that the execution of the will by the testator on 9 December 1996 was witnessed by one Syed Abdillah Aljufri (since deceased) and one Abdul Rahim Salleh. The will was also certified and validated by the Mufti of Singapore, Tuan Syed Isa Mohd bin Smith (the name “Smith” sometimes spelt as “Semait”) (“Tuan Syed Isa”) on the very date of its execution. It was said that the late Syed Abdillah Aljufri and the Mufti were two of the five members of the Fatwa Committee of Muis that considered the validity of the will and issued a ruling subsequently on 23 February 1998. Tuan Syed Isa, who appeared in this case as the defendant’s expert, is still the Mufti and the chairman of the said Committee.

Chronology of events

13 Following the demise of the...