Re Will of Shaik Ahmad bin Abdullah Wahdain Basharahil

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin JC
• Judgment Date: 30 July 2002
• Neutral Citation: [2002] SGHC 165
• Docket Number: Originating Summons Nos 1030 of
• Date: 30 July 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: T P B Menon (Wee Swee Teow & Co)
• Citation: [2002] SGHC 165
• Defendant Counsel: Ruby Tan (K C Abu Bakar & Partners),Stanley Wong Hoong Hooi (Jing Quee & Chin Joo),Peter Chua Seng Hock (Peter Chua & Partners),Mohan Das Naidu (Mohan Das Naidu & Partners),Tan Kah Hin (Choo Hin & Partners)
• Court: High Court (Singapore)
• Subject Matter: Administration of s 115 Muslim Law Act (Cap 3, 1985 Rev Ed),Land,Syariah court,Whether court can order sale notwithstanding objections of caveators,Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) s 5,Where estate of deceased to be distributed according to Muslim law,Residential Property Act (Cap 274, 1985 Rev Ed) s 3,Sale of land,Certification upon set of facts found by other court or authority,Role of Syariah Court -s 115 Administration of Muslim Law Act (Cap 3, 1985 Rev Ed),Muslim Law,Application to sell testator's properties free of encumbrances,Application for sale of immovable properties freed from encumbrances,Probate and Administration,Determination of beneficiaries of deceased's estate under Muslim law,Distribution of assets,Inheritance certificate

Judgment

GROUNDS OF DECISION

1 Shaik Ahmad bin Abdullah Wahdin Basharahil ("the Testator") died on 15 July 1953 in Madura, Indonesia leaving properties in Singapore. He had made a Will in Singapore on 3 September 1938, the terms of which are as follows:

I, SHAIK AHMAD BIN ABDULLAH WAHDAIN BASHARAHIL, at present residing at No. 26 Lorong 30, Geylang Road, Singapore, Trader, hereby revoke all former wills codicils and testamentary instruments heretofore made by me of and concerning my estate and effects moveable and immoveable in the colony of the Straits Settlements.

1. I appoint:-

(a) SHAIK SAYEED BIN AHMAD WAHDAIN BASHARAHIL.

(b) SHAIK OMAR BIN ADMAD WAHDAIN BASHARAHIL.

(c) SHAIK AWADH BIN AHMAD WAHDAIN BASHARAHIL.

(d) SHAIK ALI BIN AHMAD WAHDAIN BASHARAHIL.

my lawful sons at present residing in Java to be the executors and trustees of this my will and the guardians of my infant children.

2. I devise and bequeath all my lands and houses in Singapore and elsewhere in the Colony of the Straits Settlements unto my trustees upon trust that my trustees shall until the expiration of twenty-one years from the date of my death stand possessed of the annual income thereof in trust for the persons or person who would at my death have been entitled according to Mohamedan Law to my estate and effects if I had died intestate and upon further trust that after the expiration of twenty-one years from the date of my death my trustees shall sell call in and convert into money all such parts thereof as shall not consist of money with power "to postpone the sale calling in and conversion of any part of my real and personal estate for such period as they in their absolute discretion may deem fit and shall stand possessed of the proceeds of such sale and conversion upon trust for the person or persons who would at my death have been entitled according to Mohamedan Law to my estate and effects if I had died intestate.

The words underlined above are indicative of the issue before me, i.e. a determination of the persons who, at the death of the Testator, were entitled to his estate according to Mohamedan Law if he had died intestate.

2 The Testator died leaving a large number of immovable properties. Probate to the Will of the Testator was originally granted to Shaik Sayeed bin Ahmad Waidin Basharahil, one of the Executors and Trustees named in the Will. Subsequently the Public Trustee was appointed trustee of the Will by an Order of Court dated 11 October 1976 in Originating Summons No. 80 of 1976 as the Court was satisfied that the original trustee was permanently residing out of the jurisdiction and was unfit to act as such trustee. By this order, 61 immovable properties belonging to the estate of the Testator became vested in the Public Trustee. Since then 32 of those properties had been compulsorily acquired by the State leaving only 29 immovable properties vested in the Public Trustee which are the subject matter of these proceedings.

3 As the Testator died on 15 July 1953 the estate of the Testator was to be wound up 21 years from the date of death of the Testator i.e. immediately after 15 July 1974 ("date of distribution"). The date of distribution had long passed by some 26 years as of the date of filing of the first summons, OS 1030/2000.

Originating Summons 1030 of 2000

4 The first Applicant in OS 1030/2000 is the Public Trustee. The second Applicant ("Quraisj") is the attorney of six persons who claim to be some of the beneficiaries under the Will. The Applicants applied for the following substantive order (prayer 2):

2. That the 1^st Applicant as the current trustee of the Will of the abovenamed Testator be empowered to sell the properties described in the Schedule hereto by public or private tender, public auction or private treaty at such prices and on such terms and conditions as the 1^st Applicant may in his absolute discretion determine (but having regard to the valuation prices as set out in the Valuation Reports attached to the 1st Affidavit of the 1^st Applicant in support of this application) freed from all encumbrances including:

(a) the equitable interests of the beneficiaries under the Will of the Testator; and

(b) the interest claimed by the Caveators against the properties set out in the Schedule hereto,

and as from the date of this Order all the claims of the beneficiaries and the Caveators who have lodged Caveats against the properties set out in the Schedule hereto shall be deemed to be cancelled or withdrawn.

5 This application for sale was objected to by the fifth Respondent ("Musa") and sixth Respondent ("Salim") objected. They claim to represent another group of beneficiaries. More than this, they claim that the persons that Quraisj represents are not beneficiaries under the Will. Musa and Salim claim that the people they represent constitute all the beneficiaries under the Will.

Originating Summons 600626 of 2001

6 To prosecute their claims, Musa and Salim filed OS 600626/2001 as Plaintiffs and named the Public Trutee and Quraisj as Defendants. In that summons they seek a determination of "the true and lawful beneficiaries of the Estate of [the Testator] and their respective shares and proportions".

Joinder

7 On 28 September 2001, after hearing the parties, I made the following orders:

1. The Public Trustee as the current Trustee of the Will of the Testator be and is hereby empowered to take all steps in preparation for the sale of the Testator’s properties described in the Schedule hereto provided that no sale or disposal of the properties shall be made without the prior approval of the Court and that at least seven (7) days’ prior notice shall be given by the Public Trustee to the Respondents of such sale;

2. An inquiry be conducted by this Honourable Court to ascertain who are the persons entitled to the properties of the Testator as set out in the Schedule hereto;

3. Originating Summons No. 600626 of 2001 be consolidated with Originating Summons No. 1030 of 2000 and that the Inquiry be held on a date to be fixed by this Honourable Court and that for the purposes of the Inquiry:

(a) Affidavits filed in both the above Originating Summons Nos. 600626 of 2001 and No. 1030 of 2000 are to stand as evidence-in-chief;

(b) Leave be and is hereby granted to all persons to file further Affidavits by 28th November 2001;

(c) Leave be and is hereby granted to all persons to file any reply to the Affidavits by 28th December 2001;

(d) No further Affidavits are to be filed after 28th December 2001 without the leave of this Honourable Court.

Inquiry as to beneficiaries

8 The inquiry pursuant to Order 2 above was conducted on 3 July 2002. The Public Trustee was not a party to that inquiry as he is merely a trustee and is not concerned with the outcome. Quraisj admits the claim by Musa and Salim that the people they represent are beneficiaries under the Will, but not to their claim that they constitute all the beneficiaries. So the only issue is whether the persons that Quraisj represents, and any others, are also beneficiaries under the Will.

9 The agreed facts are as follows: The Testator had, in accordance with Indonesian law, married one Saimih who bore him six sons, and also a daughter who predeceased him. Saimih died in or about 1928. Those six sons married and had children. All six died between 1973 and 1987. Musa and Salim are the sons of two of them and claim to represent the branch of beneficiaries arising from Saimih's children. Apart from Saimih, the Testator also had children by four other women and what is under contest is whether they were legally married to him under Muslim law. The second wife (this term being used without prejudice) is Maimunah, who bore the Testator a son and a daughter. The third wife is Aisyah who bore him two sons. The fourth wife is Samani who bore him a daughter. The fifth wife is Maria who bore him two sons. The Testator had at various stages, divorced his second, third and fourth wives. At the time of his death, he was survived by:

(a) six sons by Saimih, the first wife;

(b) a son and a daughter by Maimunah, the second wife;

(c) two sons by Aisyah, the third wife;

(d) one daughter by Samani, the fourth wife;

(e) Maria, his fifth wife; and

(f) two sons by Maria.

10 The sole issue is therefore whether the Testator had been married under Muslim law to the second to fifth wives. If he had not, then the beneficiaries are just the six sons by Saimih and consequently their descendants would be entitled to the entire estate under the Will. If he did, then the number of beneficiaries would be 14, with the six sons by Saimih being collectively entitled to only 84/192 or 43.75% of the estate.

11 Musa and Salim have filed two affidavits in both summons. The first affidavit is their joint affidavit filed 1 November 2000, in which they relate the following:

(a) the persons represented by Quraisj are not beneficiaries and therefore not entitled to claim any share or interest in the estate of the Testator;

(b) there was "in fact no statement of marriage between the Testator and the said Madam Maria", bearing in mind that in Indonesia all marriages (including Muslim marriages) are valid and recognisable by the State only if they are registered and not otherwise;

(c) the Inheritance Certificate from the Surabaya Inheritance Property Administration Office dated 7th February 1992 certified that the following six children are the heirs of the Testator:

(i) Said bin Achmad Wachdin Basjarahil

(ii) Umar bin Achmad Wachdin Basjarahil

(iii) Asad (Awad) bin Achmad Basjarahil

(iv) Ali bin Achmad Basjarahil

(v) Hassan bin Achmad Basjarahil

(vi) Saad (Asad) bin Achmad Wachdin

12 However in an earlier Affidavit affirmed by Salim and filed on 14 July 1995 in an earlier action, OS 473/1995, he had stated that:

(i) that the Testator had "four other wives one of whom is one Maria...