Shafeeg bin Salim Talib v Fatimah bte Abud bin Talib

• Jurisdiction: Singapore
• Judgment Date: 18 March 2010
• Date: 18 March 2010
• Docket Number: Civil Appeal No 70 of 2009
• Court: Court of Appeal (Singapore)

Shafeeg bin Salim Talib and another

Plaintiff

and

Fatimah bte Abud bin Talib and others

Defendant

[2010] SGCA 11

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 70 of 2009

Court of Appeal

Muslim Law–Matrimonial assets–Whether right of survivorship applied to Muslim-owned joint-tenanted property registered under Land Titles Act (Cap 157)–Whether Muslim-owned jointly-tenanted property distributed under s 112 (1) Administration of Muslim Law Act (Cap 3, 1999 Rev Ed)–Section 112 (1) Administration of Muslim Law Act (Cap 3, 1999 Rev Ed)

Muslim Law–Majlis Ugama Islam Singapura (MUIS)–Issuance of fatwa on division of intestate deceased's estate–Whether fatwabinding on parties or court

The deceased, Obeidillah bin Salim bin Talib ( the Deceased ), passed away intestate on 5 May 2005, leaving a widow, two children, a sister and ten nephews. The appellants, Shafeeg bin Salim Talib and Abdul Jalil bin Ahmad bin Talib ( the Appellants ) were the administrators of the estate of the Deceased ( the Estate ). The respondents were his widow ( 1st Respondent ) and his children ( 2nd and 3rd Respondents ).

The Deceased purchased the property at 1 Farrer Road, #10-06, Tulip Garden, Singapore 268817 ( the Property ) on 6 April 1998 and registered it in his name and that of the 1st Respondent as joint-tenants under the provisions of the Land Titles Act ( the LTA ).

Both the Deceased and the 1st Respondent were Yemenic Arabs by origin and, at all material times, they were Muslims of the Shafi'ischool of Islam. The 2nd and 3rd Respondents were also Muslims before their conversion to Christianity a few years before the death of the Deceased.

On 12 May 2005, pursuant to an application of the Appellants, the Syariah Court issued an inheritance certificate ( the Inheritance Certificate ) under s 112 of the Administration of Muslim Law Act ( the AMLA ) identifying 12 beneficiaries of the Estate. The 1st Respondent was declared as having 10/40 shares in the Estate. The 2nd and 3rd Respondents were not entitled to any share as they were not Muslims at the date of death of the Deceased.

On 5 July 2005, the 1st Respondent filed a Notice of Death of the Deceased at the Singapore Land Registry and became registered as the sole proprietor of the Property. She then transferred the Property to herself and the 2nd and 3rd Respondents as joint tenants by way of gift.

On 22 March 2007, the Appellants' solicitors sought a fatwa from the Majlis Ugama Islam Singapura (MUIS) that the gift of the Deceased's share of the Property ( the Half Share ) made by the 1st Respondent is contrary tofaraid(Muslim inheritance law). MUIS thus issued a fatwa on 17 July 2007 ( the 2007 Fatwa ) stating that the Fatwa or Legal Committee was of the opinion that the Property was a matrimonial property (harta sepencarian) and therefore the Half Share should be distributed in accordance with faraid.

The Appellants' solicitors subsequently demanded that the 1st Respondent restore the Half Share to the Estate. However, she refused, claiming that she became the sole owner of the Property upon the Deceased's death under the right of survivorship. Consequently, the Appellants applied for a declaration that the Estate was entitled to the Half Share under Muslim law.

Held, dismissing the appeal:

(1) Under Muslim law, a Muslim was subject to two main restrictions in dealing with his or her property by will. First, he might not will away more than one-third of his estate. Second, he might not increase or reduce the share of any of his legal heirs determined according to Muslim law. However, a Muslim had complete freedom to dispose of his property inter vivos, even at the expense of his legal heirs under Muslim law: at [23] and [24].

(2) The meaning of estate and effects under s 112 (1) of the AMLA was a matter of statutory construction under the general law but this did not mean that the court did not have to take into account Muslim law. The construction of that section involved a consideration of Muslim law on the effect of any testamentary or inter vivos disposition of property made by a deceased Muslim. Such disposition might have no effect for lack of legal capacity or be void under Muslim law and, if so, such property would fall into his estate for distribution under that section. The question as to what assets constitute the estate and effects of a deceased Muslim had first to be determined according to his personal law, where applicable to the circumstances, and not according to the common law: at [27].

(3) The Property was registered land subject to the LTA. Section 114 of the LTA made no reference to the transmission of land held in joint tenancy upon the death of a joint tenant since there was no transmission in law. The interest of a deceased joint tenant extinguished or disappeared into thin air. Hence, legally, no interest in the Property passed to the 1st Respondent upon the Deceased's death. Whatever interest the Deceased had in the Property simply ceased to exist, and the 1st Respondent became the sole absolute owner because she would no longer be subject to the right of survivorship: at [34], [35] and [43].

(4) The legal result of the right of survivorship under s114 of the LTA could not be modified to suit the circumstances of Muslims. If the right of survivorship in a joint tenancy of registered land was contrary to Muslim law, then the statute had to prevail over personal law because that had to have been the legislative intent. Where legislation was enacted to deal specifically with a subject matter, there was no room for modification to suit local circumstances pursuant to the Application of English Law Act (Cap 7A, 1994 Rev Ed) in the absence of an express direction to the contrary. Section 112 of the AMLA therefore did not apply to the determination of rights and interests in land in Singapore and the Property did not form part of the estate and effect of the Deceased under s 112 of the AMLA: at [44] and [45]

(5) By holding the Property as joint tenants with the 1st Respondent, the gift from the Deceased to the 1st Respondent of the entire Property was completed. The 1st Respondent obtained an immediate interest in the entire Property, entitling her to the full rights of possession and enjoyment during her lifetime. Her interest in the entire Property would extinguish only if she passed away before the Deceased. Hence the gift of the entire interest in the Property was not a testamentary gift from the Deceased to the 1st Respondent contrary to Muslim law: at [49].

(6) The concept of the right of survivorship existed in Muslim law, although with a slight conceptual difference in the nature of the ownership rights of the donee during his lifetime. The equivalent concept of joint ownership in Muslim law is known ashibah ruqba: at [50] and [54].

(7) A fatwa or religious ruling issued on an issue of law was a scholarly opinion on what the Islamic law was on that issue. No fatwa was binding on the party seeking it or to whom it was directed. Hence, a fatwa stood in the same position as an expert opinion on any matter before the court and might be accepted in evidence on any issue of Muslim law on the same basis as an expert opinion on the civil law: at [63].

(8) A fatwa which was issued under s 32 (1) of the AMLA at the request of a party to an action would not ordinarily be as reliable or have the same standing as a fatwa obtained by the court because there was a likelihood that the party might frame a question based on assumed or hypothetical facts or the question might be phrased in a misleading way: at [65].

(9) Section 112 (3) of the AMLA did not apply to the Deceased because he was of Turkish-Yemenic Arab descent and was therefore not of the Malay race. Further, as the Appellants had not adduced any evidence that the Deceased considered himself a member of the Malay community and was generally accepted by that community as a Malay, it was not necessary to investigate what customs or cultural practices qualified a person to be a Malay under s 112 (3) of the AMLA: at [73] to [75].

Abdul Jabbar v M Mohamed Abubacker; Re The Will of M Mohamed Haniffa, Deceased [1940] MLJ 286 (refd)

AMM Murugappa Chetty v The Official Administrator as Administrator of the Estate of Yap Chok, Deceased [1932] 1 FMSLR 305 (refd)

Azizunissa Abdurrahman Kadri v Jamila Abdul Hussein Sheikh (deceased by her LRs) 2007 (NOC) 2238 (Bom) (refd)

Fatimah binte Mohamed bin Ali Al Tway, Deceased, Re [1933] 1 MLJ 211 (refd)

Fowler v Barron [2008] 2 FLR 831 (distd)

Hujah Lijah Binti Jamal v Fatimah Bin Mat Diah [1950] 1 MLJ 63 (refd)

Kirby-Smith v Parnell [1903] 1 Ch 483 (refd)

Latifah bte Mat Zin v Rosmawati bte Sharibun [2006] 4 MLJ 705 (refd)

Latifah bte Mat Zin v Rosmawati bte Sharibun [2007] 5 MLJ 101 (refd)

Lumley v Robinson [2002] EWCA Civ 94 (distd)

Man bin Mihat, Deceased, Re [1965] 2 MLJ 1 (folld)

Mohamed Ismail bin Ibrahim v Mohammad Taha bin Ibrahim [2004] 4 SLR (R) 756; [2004] 4 SLR 756 (distd)

Mahomed Jusab Abdulla v Fatmabai Jusab AbdullaAIR (35) 1948 Bombay 53 (folld)

Roberts alias Kamarulzaman v Ummi Kalthom [1966] 1 MLJ 163 (refd)

Saniah bte Ali v Abdullah bin Ali [1990] 1 SLR (R) 555; [1990] SLR 584 (refd)

Shaik Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204 (refd)

Siti bte Naydeen, Re Estate of [1983-1984] SLR (R) 682; [1984-1985] SLR 468 (refd)

Stack v Dowden [2006] 1 FLR 254 (distd)

Zainoon v Mohamed Zain [1981] 2 MLJ 111 (refd)

Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) s 112 (1) (consd) ;ss 31,32, 32 (1) ,32 (7) , 111 (1) ,111 (2) (a) ,112, 112 (3)

Application of English Law Act (Cap 7A, 1994 Rev Ed) ss 3, 3 (2)

Central Provident Fund Act (Cap 36, 1988 Rev Ed) ss 23 (3) ,24 (1)

Civil Law Act (Cap 43,1999 Rev Ed) s 27

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Arts 12, 39A,39A (4)

Inheritance...