Re Haji Meera Hussain's Will's Trust

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 29 October 1994
• Neutral Citation: [1994] SGHC 271
• Date: 29 October 1994
• Subject Matter: Trusts,Charitable trust by Muslim,Whether court had discretion to override prohibition and allow sale of trust property,Trust for the advancement of religion,Trust estate,Wakaf,Charitable trusts,Trust created before enactment of Administration of Muslim Law Act (Cap 3),Whether trust property passed to trustees of will or to Majlis Ugama Islam Singapura,Islamic trust for advancement of religion,Express prohibition in will against alienation of property,ss 6, 58(2) & (9) Administration of Muslim Law Act (Cap 3),Charities
• Docket Number: Originating Summons No 332 of 1994
• Published date: 19 September 2003
• Defendant Counsel: Mirza Namazie (Mallal & Namazie)
• Court: High Court (Singapore)
• Plaintiff Counsel: Perumal Athitham (Yeo Perumal Mohideen & Pnrs)

The application

Abdul Rahman s/o Mohamed Yunos and Mohamed Salih bin Mohamed Yunoos (the applicants) are the trustees of the estate of Haji Meera Hussain (the deceased) who died on 13 October 1918, by a deed of appointment of new trustees dated 17 September 1993. The applicants applied by the above ex parte originating summons for the following orders:

(1) that as the trustees of the estate of the deceased they are entitled to one equal half share of and in the property known as No 34 Arab Street (the property);

(2) that as such trustees they are empowered to sell their one equal half share in the property on such terms and conditions at the price of $450,000 to Lee Kok and Lee Ho Chooi (the purchasers) and are empowered and directed to deliver a proper assurance thereof to the purchasers freed and discharged of all encumbrances whatsoever and to give a valid receipt for the sale price;

(3) that service of the application on the progeny of the deceased who are resident in India be dispensed with;

(4) there be liberty to apply.

At the conclusion of the hearing, I made no orders on the application and instead declared that the deceased`s half share in the property was vested in Majlis Ugama Islam Singapura (MUIS) pursuant to the provisions of s 59 of the Administration of Muslim Law Act (Cap 3). The applicants have appealed against my decision.

The background

In their affidavit filed in support of the application the applicants deposed to the following:

(1) Clause 15 of the deceased`s will dated 3 October 1918 reads as follows:

I direct that from the income (rent) obtainable from house No 437 North Bridge Road and from the half share of house No 186 Arab Street [which is now 34 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. An 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 any 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.

(2) all the properties of the testator have either been sold or acquired by the government save for the property. The half share of the rent collected from the property is $92.80 per month which sum is insufficient for the upkeep and maintenance in India of the Jannival mosque and for the Madrasah Mathlabul Hairath as stipulated under cl 15 of the deceased`s will. Further the mosque is dilapidated and needs to be demolished and reconstructed. In addition, the descendants of the deceased are all residing in India;

(3) the applicants received a letter dated 20 January 1994 from the Land Office stating that the rear portion of the property encroached onto state land. The applicants were required to remove the encroachment, which estimated costs of $150,000 are to be borne by the two half owners of the property; the applicants as trustees do not have the funds to finance the half share cost of reinstatement;

(4) the applicants have had the half share in the property valued and the valuation shows that the share is worth $400,000 as at 3 February 1994. The applicants granted an option dated 16 February 1994 to the purchasers to purchase the half share in the property for $450,000 subject to the court`s approval;

(5) it is the applicants` intention to go to Kodikallpallayam, India once the sale is concluded and to appoint an architect/engineer and contractor to demolish the existing mosque and to construct a new one in its place. The balance of the sale proceeds of the property will then be used to maintain the new mosque and Madrasah Mathlabul Hairath as specified by the deceased under cl 15 of his will;

(6) as trustees of the estate the applicants do not have the title deeds to the property.

The application was adjourned a number of times, firstly, for service to be effected on, and for the consideration of, the Commissioner of Charities and secondly at the request of counsel for MUIS who indicated that if the property was ` wakaf ` property as defined under the Administration of Muslim Law Act (the Act), the applicants have no power of sale.

The Commissioner of Charities eventually supported the application but it was opposed by MUIS, whose vice-president, Haji Shafawi bin Ahmad, filed an affidavit wherein he stated:

(1) under his will the deceased had directed that the property endowed for charity shall not under any circumstances be mortgaged, sold or alienated in any manner or way and if mortgaged or alienated, such mortgage or alienation would be illegal. Under his will the deceased endowed for charity the following properties:

(a) No 437 North Bridge Road (which was acquired by the government in 1979),

(b) half share in No 73 Bussorah Street (which 99-year lease...