Syed Abbas bin Mohamed Alsagoff v Islamic Religious Council of Singapore

• Jurisdiction: Singapore
• Judgment Date: 17 December 2009
• Date: 17 December 2009
• Docket Number: Originating Summons No 1265 of 2008
• Court: High Court (Singapore)

Syed Abbas bin Mohamed Alsagoff and another

Plaintiff

and

Islamic Religious Council of Singapore (Majlis Ugama Islam Singapura)

Defendant

[2009] SGHC 281

Andrew Ang J

Originating Summons No 1265 of 2008

High Court

Muslim law–Charitable trusts–Appointing trustees to a wakaf–Whether court could appoint replacement trustees when MUIS had been statutorily appointed as trustee of local wakaf under Administration of Muslim Law Act (Cap 3, 1999 Rev Ed)–Sections 58 and 59 Administration of Muslim Law Act (Cap 3, 1999 Rev Ed)

Succession and Wills–Construction–Executors of another will named as trustees and executors of disputed will–Whether the word executor should be read to mean executor and trustee

Trusts–Trustees–Appointment–Appointing trustees and mutawalli of Muslim trusts–Whether court could appoint trustees and mutawalli to Muslim trusts under Trustees Act (Cap 337, 2005 Rev Ed)–Sections 42 and 57 Trustees Act (Cap 337, 2005 Rev Ed)

By her will, the testatrix created a charitable Muslim trust (also known as a wakaf) out of her estate ( the Raja Siti Trust ). She appointed her son, Syed Mohamed bin Ahmad Alsagoff ( SMA Alsagoff ), as the trustee and executor of her will. The testatrix's will further provided that after his death those who became his executors would substitute him as executor and trustee . When the testatrix passed away, SMA Alsagoff became the first trustee and executor of her will. He was succeeded by the executors that he had named in his will. However, in time, the property of the Raja Siti Trust came to be vested in MUIS as a consequence of the enactment of the Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) ( AMLA ). This was because AMLA vested MUIS with title to all wakaf property situated in Singapore. At the time when the action was brought, MUIS had engaged an administrator (also known as a mutawalli) who performed the function of identifying beneficiaries, recommending deserving beneficiaries and assisting in the disbursement of moneys. The applicants came before the court seeking to be declared or appointed trustees of the Raja Siti Trust in place of MUIS. Later in the proceedings, the applicants changed position and asserted that they were not asking for the removal of MUIS, but were merely seeking appointment as mutawalli.

Held, dismissing the application:

(1) On a proper construction, the applicants, who were trustees (but not the executors) of SMA Alsagoff's estate, were not trustees of the Raja Siti Trust under the terms of the testatrix's will: at [31].

(2) The applicants had no locus standi under s 57 of the Trustees Act (Cap 337, 2005 Rev Ed)to seek appointment as trustees under s 42 of the same Act as they were neither beneficiaries nor duly appointed trustees of the Raja Siti Trust: at [37].

(3) Even if the applicants had locus standi under s 57 of the Trustees Act, AMLA empowered MUIS to administer allwakaf notwithstanding any provision to the contrary in any written law. To invoke s 42 of the Trustees Act to remove MUIS from a position that it had been statutorily appointed to would be inconsistent with parliamentary intention: at [39].

(4) Section 42 of the Trustees Act did not make the court competent to appoint mutawalli to a Muslim wakaf. The concept of the trust under the Trustees Act was distinct from the concept of the wakaf under AMLA. The provisions in the Trustees Act could not be selectively applied to facilitate the appointment of mutawalli: at [41].

(5) There was no need to adopt a strained reading of the Trustees Act to appoint a mutawalli to a wakaf when s 58 of AMLA already conferred power on MUIS to appoint and removemutawalli and to remove existing trustees from a wakaf: at [42].

(6) In any event, the appointment of the applicants as trustees was inexpedient as such appointment would go against the legislative intention under AMLA that MUIS should oversee and thus facilitate the administration of all wakaf: at [44].

Chapman's Settlement Trusts, Re [1977] 1 WLR 1163 (refd)

Cockburn's Will Trusts, Re [1957] Ch 438 (refd)

Doe dem Joseph Gwillim v Samuel Gwillim (1833) 5 B & Ad 122; 110 ER 737 (refd)

Firth, Re [1912] 1 Ch 806 (refd)

Goh Nellie v Goh Lian Teck [2007] 1 SLR (R) 453; [2007] 1 SLR 453 (folld)

Hudson v Hudson (1737) 1 Atk 460; 26 ER 292 (folld)

LS Investment Pte Ltd v Majlis Ugama Islam Singapura [1998] 3 SLR (R) 369; [1998] 3 SLR 754 (refd)

Syed Salim Alhadad v Dickson Holdings Pte Ltd [1997] 1 SLR (R) 228; [1997] 2 SLR 257 (refd)

Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) s 58 (2) (consd) ;ss 58,58 (4) , 58 (5) ,59

Civil Law Act (Cap 43,1999 Rev Ed) ss 25, 25 (1)

Probate and Administration Act (Cap 251, 2000 Rev Ed) s 13

Trustees Act (Cap 337,2005 Rev Ed) ss 42, 57 (1) (consd) ;ss 35,56 (1) , 57

Andre Yeap SC, Kelvin Poon and Farrah Salam (Rajah & Tann LLP) for the applicants

Edwin Tong, Aaron Lee and Fazaliah bte Md Arsad (Allen & Gledhill LLP) for the respondent.

Andrew Ang J

Introduction

1 This case concerns an application by Syed Abbas bin Mohamed Alsagoff ( Syed Abbas ) and Syed Omar bin Mohamed bin Ali Alsagoff (together the Applicants ) for:

(a) a declaration that the Applicants are trustees of the estate of Raja Siti bte Kraying Chanda Pulih ( the Testatrix ), pursuant to the terms of her will dated 29 November 1883; or

(b) alternatively, the appointment of the Applicants as trustees of the estate of the Testatrix ( the Raja Siti Trust ) pursuant to s 42 of the Trustees Act (Cap 337, 2005 Rev Ed) ( Trustees Act ).

2 At present, the Raja Siti Trust is administered by the Islamic Religious Council of Singapore (Majlis Ugama Islam Singapura) ( the Respondent ) pursuant to s 58 (2) of the Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) ( AMLA ).

Background

The facts

3 The Testatrix married Syed Ahmad bin Abdulrahman Alsagoff and had one son, Syed Mohamed bin Ahmad Alsagoff ( SMA Alsagoff ), and six daughters. She died in Mecca, Saudi Arabia, on 18 April 1891. By her will dated 29 November 1883 ( the Will ), the Testatrix created a trust out of her estate. The translation of the Will, with which I was furnished, reads as follows:

Will of Raja Siti Bte Kraying Chanda Pulih (Decd)

On the 30^th day of 1301 as on 29.11.1883

I Raja Siti binte Kraying, widow, declare that all praises are to God (may the Blessings of God prevail upon) our Prophet Mohamed, peace be upon him, and all other prophets and angels and all those who worship God, and all pious men. As declared by God if my time comes and I die I shall be buried in the burial ground of Islam.

I direct my hereinafter executors to incur such expenditure on my funeral as is done in the case of good persons, such as giving out charity, reciting Thahleel and other things at the discretion of my executors.

My executors shall pay all dues owing by me to others and receive dues by others owing to me in Singapore and other places.

My executors shall distribute the income of rent of the houses of my estate, which I had inherited from the estate of my husband Syed Ahmad bin Abdulrahman Alsagoff, amongst my next-of-kin according to the laws of God and his apostle.

My executors shall create the rents of my own houses and of the houses of the estate of my mother Alhajjah Fatimah and after deducting all expenses, the balance shall be divided into two, one of which shall devolve on my next-of-kin and distributed according to the laws of God and his apostle. The other shall be made into a khairat in my name; first: - give to the mosque of my mother Alhajjah Fatimah $10/- per month to be spend on any useful thing in that mosque, remit to Makkah Almusharafa $10/- per annum, Madinah Almunawarah $10/- per annum and Taif $5/- per annum to be spent on food for those who break their fast in the mosques there or give as charity amongst the poor, and remit to Hadramaut $20/- per annum to be distributed as charity amongst the poor Sharifahs and the balance thereof my executors shall distribute amongst my poor relatives in Singapore or elsewhere or on other charitable deeds which my executors shall think will be beneficial to me.

I direct my executors to give to my male and female friends over the age of 50 $10/- each and those over the age of 10 $5/- each, those under the age of 10, $3/- each as per the names mentioned in the list which I have attached hereto.

The gold and diamond jewelleries which I had given to my children and grandchildren and others during my life shall not be claimed by my next-of-kin but shall remain their respective properties.

If my next-of-kin agree to sell the aforesaid houses which belong to me and which I had inherited from my mother Alhajjah Fatimah, my executors shall sell the same and divide the proceeds into two, one of which shall devolve on my next-of-kin according to the laws of God and his apostle and with the remaining share my executors shall purchase houses and have them converted into a perpetual wakaff in my name and shall not be sold or mortgaged.

My executors shall receive the rents thereof, deduct the expenses and the balance shall also be distributed among the charities stated above.

I appoint my son Syed Mohamed bin Ahmad Alsagoff to be the trustee and executor of the foregoing during his life time. After his death those who become his executors shall substitute him as executor and trustee. If the said executor or trustee or his successors is or are to appoint others as substituted trustees their number shall not be less than two.

Further, on the appointment of every new administrator, all matters connected with such administratorship shall be handed over to the new administrators, even though the administrator or administrators is or are substituted, every one of the new administrators registered earlier and later than the other administrator (litteral) (each of them taking...