Shafeeg bin Salim Talib and Another (administrators of the estate of Obeidillah bin Salim bin Talib, deceased) v Fatimah bte Abud bin Talib and Others

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 24 April 2009
• Neutral Citation: [2009] SGHC 100
• Docket Number: Originating Summons No 1749 of 2007
• Date: 24 April 2009
• Published date: 25 May 2009
• Year: 2009
• Plaintiff Counsel: Andre Yeap SC and Kelvin Poon (instructed), Aloysius Leng (AbrahamLow LLC)
• Citation: [2009] SGHC 100
• Defendant Counsel: Daniel John and Marc Wang (Goodwins Law Corporation),Tan Jing Poi (Lim Ang John & Tan LLC)
• Court: High Court (Singapore)
• Subject Matter: Harta sepencarian (jointly-acquired property),Matrimonial assets,Muslim Law,Whether common law right of survivorship in joint tenancy applied to Muslims,Whether Muslim-owned jointly-tenanted property distributable under s 112(1) Administration of Muslim Law Act (Cap 3, 1999 Rev Ed)

24 April 2009 Judgment reserved.

Lee Seiu Kin J :

1 The plaintiffs are the administrators of the estate of Obeidillah bin Salim bin Talib (“the deceased”). The first defendant, Mdm Fatimah bte Abud bin Talib, is the widow of the deceased. The second and third defendants, Mr Ben Gibran and Ms Ruth S Telyb respectively are the children of the deceased and the first defendant.

2 The deceased and the first defendant jointly purchased a property at 1 Farrer Road #10-06 Tulip Garden, Singapore 268817 (“the Property”) and registered it in the Singapore Land Registry (“SLR”) in their names as joint tenants on 6 April 1998. The deceased died intestate on 5 May 2005.

3 Both the deceased and the first defendant are Yemeni Arabs by origin. At all material times, the deceased and the first defendant were Muslims of the Shafiee school of Islam. At the time of the deceased’s death, the second and third defendants were not Muslims.

4 On 12 May 2005, the Syariah Court issued the inheritance certificate for the deceased’s estate (“the Estate”). The first defendant, having prior rights to apply for letters of administration for the Estate, renounced her rights to the letters of administration in a renunciation signed on 21 June 2005. As the second and third defendants were no longer Muslims when the deceased died they were, under Muslim law, excluded as beneficiaries under the inheritance certificate. The first defendant was declared as having 10/40 shares in the Estate, the deceased’s sister 20/40 shares, and the deceased’s 10 paternal nephews collectively 10/40 shares.

5 The first defendant filed the notice of death of the deceased at the SLR on 5 July 2005 and thereafter became registered as the sole proprietor of the Property. On 26 September 2005, by a transfer by way of gift, the first defendant transferred the Property to herself and the second and third defendants as joint tenants. This was registered at the SLR on 24 October 2005. According to the plaintiffs, the other beneficiaries of the deceased’s estate were not aware of this transfer.

6 After the issue of the grant of letters of administration for the Estate on 22 March 2007, the plaintiffs, through their solicitors, requested a ruling from the legal committee of Majlis Ugama Islam (“the Majlis”) to determine the status of the Estate’s share of the Property. In the request, the plaintiff’s solicitors argued that the difference between common law and Muslim law in this regard was as follows:

(a) Under common law, there is a right of survivorship, pursuant to which the surviving joint owner would become the owner of the entire property when the other joint tenant dies intestate.

(b) Under the Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) (“AMLA”), the intestate deceased’s half share in the property upon his death devolves onto his beneficiaries under the inheritance certificate and is to be distributed to his beneficiaries under the inheritance certificate in accordance with Muslim law of inheritance (“faraid”); the first defendant does not take the deceased’s half share in the property as a surviving joint owner under faraid. It is also contrary to faraid for the first defendant to make a gift of this share to her children who are not Muslims.

7 On 17 July 2007, the legal committee made a ruling (the “Majlis ruling”) that “the estate is considered as a matrimonial property (harta sepencarian) as the deceased and his wife had jointly owned it. Therefore, half of the Estate is considered as inheritance and should be distributed according to Islamic Inheritance Law (faraidh)”.

8 On 28 November 2007 the plaintiffs took out this originating summons for a declaration that a half share in the Property belongs to the Estate, and other consequential relief. The defendants contested the plaintiffs’ application and challenged the Majlis ruling. The issue in this appeal is whether the Estate has a half share in the Property.

9 It is not disputed that prior to his death, the deceased had held the Property as joint tenant with the first defendant. The nature of a joint tenancy is set out in Megarry and Wade, The Law of Real Property (Sweet & Maxwell, 7th Ed 2008) as follows (at paras 13-002 and 13-003):

“A gift of lands to two or more persons in joint tenancy is such a gift as imparts to them, with respect to all other persons than themselves, the properties of one single owner.” Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. The intimate nature of joint tenancy is shown by its two principal features, the right of survivorship and the “four unities”.

1. The right of survivorship. This is, above all others, the distinguishing feature of a joint tenancy. On the death of one joint tenant, his interest in the land passes to the other joint tenants by the right of survivorship (jus accrescendi). This process continues until there is one survivor, who then holds the land as sole owner. A joint tenancy cannot pass under the will or intestacy of a joint tenant. In each case the right of survivorship take precedence. It is often said therefore that each joint tenant holds nothing by himself and yet holds the whole together with the other. Whether he takes everything or nothing depends upon whether or not he is the last joint tenant to die. …

The right of survivorship does not mean that a joint tenant cannot dispose of an interest in the land independently. He has full power of alienation inter vivos, though if, for example, he conveys his interest, he destroys the joint tenancy by severance and turns his interest into a tenancy in common. But he must act in his lifetime, for a joint tenancy cannot be severed by will.

[emphasis in original]

10 It is not in dispute that in a joint tenancy, upon the death of one joint tenant, his interest passes to the other joint tenants. The deceased’s interest cannot pass by will or intestacy and therefore it does not form part of his estate. In the present case, if the deceased and first defendant were non-Muslims, there would not be any dispute that the deceased’s interest in the Property had passed to the first defendant upon his death. The question is whether the fact that the deceased and first defendant were Muslims changes the law.

11 The plaintiffs submit that under the AMLA, the intestate deceased’s half share in the property upon his death devolves onto his beneficiaries under the inheritance certificate and is to be distributed strictly in accordance with faraid. They also aver that the first defendant is not entitled to the deceased’s “half share”, and that it is also contrary to faraid for the first defendant to make a gift of this share to her children who are not Muslims. To support this proposition, the plaintiffs obtained the Majlis ruling dated 17 July 2007 (see [7] above). To decide the validity of this submission, it would be necessary to consider the position of the AMLA in the law of Singapore.

12 Article 12 of the Constitution of Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) states:

Equal protection

12. —(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

(3) This Article does not invalidate or prohibit —

(a) any provision regulating personal law; or

(b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion.

[emphasis in original]

13 Article 12(3)(a) of the Constitution states that Art 12 does not invalidate or prohibit any provision regulating personal law. There are a number of primary and subsidiary legislative provisions relating to personal law. Some of these provisions are (See Halsbury’s Laws of Singapore vol 1 (2008 Reissue) at [10.573]):

(a) the AMLA and the Civil Law Act (Cap 43, 1999 Rev Ed) s 27 which provides that bona vacantia does not apply to the disposal of property according to Muslim law;

(b) the Legitimacy Act (Cap 162, 1985 Rev Ed) which does not apply to Muslim marriages;

(c) the Intestate Succession Act (Cap 146, 1985 Rev Ed) which does not apply to Muslims;

(d) the Wills Act (Cap 352, 1996 Rev Ed) made inapplicable to Muslims by AMLA s 111;

(e) the Oaths and Declarations Act (Cap 211, 2001 Rev Ed) s 5(a) which allows Muslims and Hindus to make affirmations;

(f) the Women’s Charter (Cap 353, 1997 Rev Ed), ss 3(2) and 3(4) which make its provisions on marriage and divorce inapplicable to Muslims;

(g) the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 17A which excludes jurisdiction of the High Court over any civil proceedings within the jurisdiction of the Syariah Court;

(h) the Subordinate Courts Act (Cap 321, 1999 Ed) s 19(5) which excludes jurisdiction of the district court over any civil proceedings within jurisdiction of the Syariah Court;

(i) the Singapore Armed Forces (Leave) Regulations (Cap 295, Rg 12, 2001 Rev Ed) reg 9(d) which empowers the Director of Manpower to grant pilgrimage leave to Muslim servicemen; and

(j) the Prisons Regulations (Cap 247, Rg 2, 2002 Rev Ed) reg 103(2) which provides that Jewish prisoners may not be compelled to work on Saturdays if they claim exemption and they may also keep such festival days as may be allowed by the government, and reg 103(3) of which allows Muslim prisoners to observe the fast of Ramadan and to labour at reduced task during the fast.

14 It is clear from Art...