| Some information obtained bila jalan2 cari |
maklumat tentang chenderong.
Although bahasa mahkamahnya kurang difahami,
I kept here for my future reference...
Civil Suit No 80 of 1970
HIGH COURT OF MALAYA
Tengku Nik Maimunah
- vs -
Council of Religion and Malay Customs of Trengganu
15 APRIL 1978
This case concerns a wakaf created by Tengku Nik Maimunah Almarhum Sultan Zainal Abidin of Trengganu where the plaintiffs claim inter alia:
A declaration that the said purported wakaf is void.
The agreed facts are as follows: –
On Sunday 22 Muharram 1324 (Al Hijjrah) corresponding to 18 March 1906 the late Sultan Zainal Abidin of Trengganu, made a grant of the lands known as the Chenderong Concession to his daughter, the first plaintiff, Tengku Nik Maimunah and her husband Tengku Ngah Omar Abdul Rahim, in equal shares.
On the death of her husband the first Plaintiff became by Islamic Law the owner of an undivided share in the Chenderong Concession.
On 13 June 1961 the first plaintiff made a document which purports to be a Wakaf. The instrument is in Malay in the Jawi script and was registered in the office of The Council of Religion and Malay Customs.
On 21 July 1970 the first plaintiff wrote to the Commissioner for Religious Affairs, Trengganu to revoke the Wakaf.
On 30 August 1970 the first plaintiff executed an Instrument of Surrender whereby she purported to surrender her share in the Chenderong Concession to the second plaintiff.
On 26 November 1970 the first plaintiff commenced these proceedings.
On 1 February 1971 a Fetua on the validity of the Wakaf by the Mufti of Trengganu was published in the Government of Trengganu Gazette in accordance with s 21(3) of the Administration of Islamic Law Enactment, 1955.
On 2 February 1971 by order of the High Court at Kuala Trengganu the first Plaintiff withdrew allegations against the first defendant, Council of Religion and Malay Customs of Trengganu and the first defendant conceded to judgment in this cause.
On 6 April 1971 the first plaintiff died at the age of 87 years.
On 16 May 1971 by order of the High Court at Kuala Trengganu, the second plaintiff was added as a party and the proceedings continued between the second plaintiff and the remaining defendants Nos 6, 7, 9, 11, 12, 13, 14, 15 and 20.
On 8 August 1972 the Islamic Wakaf validating Enactment, 1972 passed by the Trengganu State Legislative Assembly on 22 July 1972 became law.
The first plaintiff, Tengku Nik Maimunah was a Muslim resident in the State of Trengganu until her death and defendants Nos 2 to 39 all professed the religion of Islam.
A Wakaf is a Muslim trust settlement of property for religious or charitable purposes. It follows therefore that Part VII of the Civil Law Act, 1956 relating to disposal and devolution of property applies and in particular s 25 which reads:
Nothing in this part shall affect the disposal of any property according to Muslim law or, in Sabah and Sarawak, native law and custom.
What then is the Muslim law applicable to this case. The relevant provisions on Muslim law in the Federal and State Constitutions are: The Federal Constitution:
In every State ... the position of the Ruler as the Head of the Muslim religion in his State in the manner and to the extent acknowledged and declared by the Constitution of that State, and, subject to that Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired;
In exercising the legislative powers conferred on it by this Constitution –
the Legislature of a State may make laws for the whole or any part of the State.
Without prejudice to any power to make laws conferred on it by any other Article the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.
Ninth Schedule, List II – State List:
Except with respect to the Federal Territory, Muslim Law and personal and family law of persons professing the Muslim religion, including the Muslim Law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Muslim Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Muslim religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay custom; Zakat, Fitrah and Bait-ul-Mal or similar Muslim revenue; mosques or any Muslim public place of worship, creation and punishment of offences by persons professing the Muslim religion against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organisation and procedure of Muslim courts, which shall have jurisdiction only over persons professing Muslim religion and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the Muslim religion; the determination of matters of Muslim Law and doctrine and Malay custom.
The Trengganu State Constitution
The Religion of the State shall be the Muslim Religion heretofore professed and practised in the State.
The Head of the Religion of the State shall be His Highness and the Council of Religion and Malay Customs, in English the Council of Religion and Malay Customs, constituted under the existing State law shall continue to aid and advise His Highness in accordance with such law.
His Highness may act in His discretion in the performance of the following functions (in addition to those in the performance of which He may act in His discretion under the Federal Constitution), that is to say –
any function as Head of the Muslim Religion or relating to the custom of the Malays.
State law may make provision for requiring His Highness to act after consultation with or on the recommendation of any person or body of persons other than the State Executive Council in the exercise of any of His functions other than –
functions exercisable in His discretion; and
functions with respect to the exercise of which provision is made in the State Constitution or the Federal Constitution.
The 1911 Constitution known as “The Constitution of the Way of Illustrious Sovereignty” –
The Raja who governs Trengganu must always be of the Mohammedan religion and of the Malay race and of the lineage and descent of the Sultans of Trengganu ...
Whereas it has been asserted and laid down and established that for all time this Government of Trengganu is of the comity of Islam in Malaya that is it is called the State and Official religion, no other religion whatever may be set up or referred to as the State religion, however many of other races or creeds are protected and allowed to shelter in the State and provinces of Trengganu.
It may be observed that the 1911 Constitution was promulgated by Sultan Zainal Abidin the Third, the father of the first plaintiff and witnessed by Tengku Ngah (Omar) Abdul Rahim, Wazir and Minister, the husband of the first plaintiff.
It would appear, therefore, that the Muslim law referred to in s 25 of the Civil Law Act, 1956 is the Muslim law professed and practised in the State of Trengganu subject to any rules in its administration that may be regulated by the State Laws of Trengganu. In particular, the Muslim law on Wakaf in Trengganu is subject to the provisions of the (Trengganu) Administration of Islamic Law Enactment, 1955 and the (Trengganu) Islamic Wakaf Validating Enactment, 1972. That, in my view, is the law, and I so hold.
I now turn to the instrument creating the Wakaf.
It is the validity of this document that is in issue in these proceedings. It was executed at Kuala Trengganu on 13 June 1961 by the first plaintiff and witnessed by a Magistrate of the State of Trengganu. The original is in the Malay language and typewritten in the Jawi script and bears the following certificate by the Magistrate in English:
Read over and explained to Tengku Nik by Embong Yusoff Ibrahim and admitted correct by her.
The first part of the instrument is a recital
as to how the first plaintiff became the owner of share of the Chenderong Concession;
that it was leased by her to Cindee Development Ltd on 2 January 1961 for a term of 999 years; and
With effect from the date of this letter, be it known that I, the undersigned Tengku Nik Maimunah Al-Hajjah Al-Marhum Al-Sultan Zainal Abidin, in sound mind and good physical health, wilfully and without force or pressure from anybody whatsoever, declare, affirm and witness that I dedicate (wakaf) in perpetuity all income and rights of interest derived from the (five eighth) share of the said Chenderong Concession to those persons stated hereunder in accordance with the rates of distribution that I have stipulated for each person stated in pages 2–5.
To my younger brother His Highness Al-Sultan Ismail Nasiruddin Shah, DMN ibni Al-Sultan Zainal Abidin is granted 16/144 share which will remain his and subsequent to him on his death his children will be entitled to receive equal number of shares among them from that share and thereafter on their death their shares will be distributed to their respective descendants and on cessation of direct descent of any one of them his respective share will be returned to the poor and destitute persons among the Muslims, under the management and administration of the Islamic Affairs Department, Trengganu.
Then follows grants in identical terms to other brothers and sisters as follows:
To my elder sister, Tengku Ngah Aishah Al-Hajjah Al-Marhum Al-Sultan Zainal Abidin is granted 24/144 share ....
To my younger sister Tengku Wok Aminah Al- Marhum Al-Sultan Zainal Abidin (Tengku Kesu’ma Puri) is granted 7/144 share ....
To my younger brother, Tengku Ahmad ibni Al-Marhum Al-Sultan Zainal Abidin is granted 16/144 share ....
To my younger brother, Tengku Besar Mahmud ibni Al- Marhum Al-Sultan Zainal Abidin (Tengku Seri Utama Raja) is granted 16/144 share ....
In identical terms also are rants to other relatives as follows: –
Each of my following nephews and nieces respectively gets an equal share out of 8/144 share: –
Tengku Ali ibni Al-Marhum Sultan Sulaiman.
Abdul Aziz ibni Al-marhum Sultan Sulaiman.
Abdul Rashid ibni Al-Marhum Sultan Sulaiman.
Abdul Rahman Al-Haj ibni Al-Marhum Sultan Sulaiman.
Asma’ Al-Marhum Sultan Sulaiman.
Wok ‘Atikah Al-Marhum Sultan Sulaiman.
Mariah Al-Marhum Sultan Sulaiman.
Tengku Azizah Al-Marhum Sultan Sulaiman ....
To my niece, Tengku Tengah Ex-Sultan Muhammed is granted 2/144 share ....
To my niece, Tengku Puteri Tengku Muda is granted 2/144 share ....
To my nephew, Tengku Embong Tengku Muda is granted 2/144 share ....
To my grand nephew, Tengku Embong Abdullah Tengku Hitam Abdul Majid is granted 2/144 share ....
To my great grand child, Tengku Ismail Tengku Abdul Aziz is granted 2/144 share ....
To Tengku Teh Kharzaki is granted 1/144 share ....
Life interests only and then to the poor –
To my nephew-in-law Tengku Su Hussain is granted 3/144 share ....
Embong Yusof Ibrahim is granted 3/144 share ....
Then to 4 adopted daughters as follows:
Mahani Sulaiman is granted 4/144 share until extinction by descent and then to the poor.
Jawahir Abdullah 2/144 share in perpetuity until her grand-children and then to the poor.
Mariam Mohammad, 2/144 share in perpetuity until her children and then to the poor.
Mek Long Abdullah, 2/144 share for life and then to the poor.
Embong Abu Bakar, 1/144 share for life and then to the poor.
The remaining shares are allotted to various religious and charitable objects, in all 22/144 shares.
The first plaintiff then appointed herself for life as controller of the wakaf with directions as to who should succeed her as controller after her death.
In the pleadings the plaintiffs claim that the wakaf is void on the grounds following:
That the first plaintiff retained control of the wakaf contrary to s 59 of the Administration of Islamic Law Enactment, 1955;
That there was a failure to vest in the Trengganu Council of Religion and Malay Customs the property of the wakaf in accordance with s 60 of the Administration of Islamic Law Enactment, 1955; and the wakaf is contrary to Muslim law for the following reasons:
There is no clear and true dedication in perpetuity of the donor’s interest for Islamic and/or charitable purposes.
The dispositions contained in the alleged wakaf are subject to such uncertain contingencies as to invalidate the whole wakaf.
Numerous uncertainties in the wakaf are contrary to muslim Law which recognises the validity of only those wakaf that are capable of being justly administered.
The disposition contained in the alleged wakaf is too illusory and remote and that it was solely created for the benefits of the first plaintiff’s immediate relatives.
The purported wakaf is void on the ground that it does not conform to the Muslim Law of Wakaf.
The defendants on the other hand contend:
That the plaintiff in bringing this action for a declaration that her said wakaf is void is in effect attempting to revoke her own wakaf. Under Muslim law the plaintiff cannot revoke her own wakaf after the wakaf’s dedication has been completed.
That the said wakaf is valid and binding on the plaintiff by reason of the fact she is and was at all material times resident in the State of Trengganu and the validity of the wakaf was affirmed by a fetua (hereinafter called the fetua) of the Mufti of Trengganu and duly published pursuant to s 21(3) of the Administration of Islamic Law Enactment, 1955 in the Government of Trengganu Gazette as Notification No 2 vol 24 Supplementary No one dated 11 February 1971.
That the said wakaf is valid and binding on the plaintiff by virtue of the Islamic Wakaf Validating Enactment, 1972.(d) That the present suit should have been commenced in the Court of the Chief Kathi in accordance with the Administration of Islamic Law Enactment, 1955 and not in the High Court and accordingly the High Court should not entertain this suit.
Section 59 of the Administration of Islamic Law Enactment provides:
Notwithstanding any provision to the contrary contained in any instrument or declaration creating, governing or affecting the same, the Corporation shall be the sole Controller of all wakaf, whether wakaf am or wakaf khas, and all nazar am, and of all trusts of every description creating any charitable trust for the support and promotion of the Religion of Islam or for the benefit of Muslims in accordance with Islamic law, to the extent of any property affected thereby and situate in the State and, where the settler or other person creating the trust, wakaf or nazar am was domiciled in the State, to the extent of all property affected thereby wherever situate.
Section 2 defines:
‘akaf am’ means a dedication in perpetuity of the capital and income of property for religious or charitable purposes recognized by Islamic Law, and includes the property so dedicated;
‘akaf khas’ means a dedication in perpetuity of the capital of property for religious or charitable purposes recognized by Islamic Law, and includes the property so dedicated, the income of which is to be paid to a person or persons or for purposes prescribed in the wakaf;
‘nazar am’ means an expressed vow made by a person creating an obligation upon himself to do any beneficial act for the benefit of the Muslim community generally or in part as distinct from an individual.
It seems to me that the words of s 59 are clear and notwithstanding the fact that the first plaintiff purported to retain control of the wakaf, the Council of Religion and Malay Customs (i.e. the Corporation) by virtue of this provision became the controller the moment the first plaintiff created the wakaf on 13 June 1961.
As regards Vesting, s 60 of the Administration of Islamic Law Enactment provides:
All property which on the coming into force of this Enactment is subject to the provisions of the preceding section shall if situate in the state vest in the corporation.
Immovable property vested in accordance with sub-s (a) of this section may be recorded or registered in the name of the Corporation upon proof to the satisfaction of the Collectors that such land is so subject. The Collector may subject to his verification and so certifying accept in evidence lists of land so subject supplied by the Commissioner.
Land which subsequent to the coming into force of this Enactment becomes subject to the provisions of the preceding section may be recorded or registered in the name of the Corporation upon presentation of a memorandum of transfer executed by the parties thereto or upon filing with the Collector an order of the Court, Civil Court or a Collector in a probate, administration or distribution suit.
The Corporation shall take all necessary steps to vest in the Corporation for the like purposes any such property situate elsewhere than in the State.
It would appear, therefore, that once a wakaf becomes subject to the control of the Corporation the property vests in that Corporation although the memorandum of transfer has not yet been executed. Be that as it may, the pleadings concerning control and vesting were not pursued by the plaintiffs at the trial.
TENGKU MARIAM'S CASE
The main issue then is whether the wakaf is void under Muslim law. It was contended by the plaintiffs that it is void on the authority of the Federal Court’s decision in Commissioner for Religious Affairs v Tengku Mariam  1 MLJ 222. That case also dealt with a wakaf created over the remaining undivided share of the Chenderong Concession. Briefly, in that case the Mufti issued a fetua (ruling) under the provisions of the Administration of Islamic Law Enactment that the wakaf was valid but Wan Suleiman J (as he then was) held that the wakaf was invalid: Tengku Mariam Tengku Sri Wa Raja v Commissioner for Religious Affairs Trengganu  1 MLJ 110. On appeal the Federal Court held that although the wakaf was invalid, the parties were estopped from challenging its validity as they or their predecessors had agreed to abide by the decision of the Mufti.
MUSLIM LAW ON WAKAF
In the course of his judgment in Tengku Mariam’s case, Tun Azmi LP (as he then was) said:
Perhaps I should say a few words in reference to the judgments of the Privy Council in the Indian case of Abdul Fata Mohamed Ishak v Russomoy Dhur Chowdhry and the Kenyan case of Fatuma Mohamed v Mohamed Salim. In the Indian case the facts were that two Muslim brothers made a wakaf whereby they themselves were to be the first mutawallis of the wakaf. The entire benefit of the wakaf was to go to their children in the first instance and their descendants from generation to generation until the total extinction of the family. Thereafter the income of the wakaf was to be applied to the benefit of widows, orphans, beggars and the poor.
The results of their Lordships’ judgment was that a wakaf was valid only if the effect of the deed of wakaf was to give the property in substance to charitable uses. It was not valid if wakaf was founded ‘for the aggrandisement of the family’ or where the gifts to a charity was illusory or merely nominal. This decision created a storm in India as it was deemed to go against the fundamental notions of Islamic law. Finally the Indian legislature stepped in by passing the Mussalman Wakaf Validating Act 1913, which provides that wakafs for the support of a man’s descendants and family are proper and lawful and where the person creating the wakaf is a Hanafi Mussalman, it is also lawful for him to provide for his maintenance and support during his lifetime or for payments of his debts out of the rents and profits of the property dedicated, provided that in both cases the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
In 1951 their Lordships of the Privy Council in the Kenyan case of Fatuma Mohamed v Mohamed Salim followed their own decision in the Indian case of Abdul Fata Mohamed Ishak v Russomoy Dhur Chowdhry. Lord Simonds delivering the judgment of their Lordships cited a passage in the judgment of Hamilton J in another East African case of Talibu Mwijaka v Executors of Siwa Haji Decd. I will now cite only a part of the passage: –
A study of the question shows that while the Mohamedan law, uninfluenced from outside sources, permitted perpetuities and the erection of wakafs for family aggrandizement solely, the influence of English judges and of the Privy Council has gradually encroached on this position until decisions given quite recently have decided that such wakafs are illegal, and it has now been clearly established that a wakaf for family aggrandizement or security, the ultimate beneficiaries of which are the poor, whether mentioned by name or supplied by implication, are invalid. The Mohamedan law in East Africa has, however, not been subjected to, the same modifying influence as in India, and remains the same as when the Min Haj was written in the sixth century of the Hejira.
Lord Simonds in reference to the above among other things says this:–
But they cannot accept the theory which appears to underlie his (Hamilton J’s) decision, that the interpretation of Mohamedan law given by this Board in a series of cases is confined to that law as applied or administered in India. On the contrary, it has not been suggested that, apart from the differences existing among the Shafi, Hanafi and other sects, which have no present significance, Mohamedan law is not the same in East Africa as in India. The appellants have themselves relied on its universality and invoke the text of the Koran and the writings of learned commentators who expounded the law not of East Africa or any part of it but of the whole Muslim world. In these circumstances their Lordships are as little justified in reviewing Abdul Fata’s case in an appeal from the courts of Kenya as they would be in an appeal (if that were now possible) from the courts of India. In Said Muhammad v Wakaf Commissioner already referred to, the experienced judges of the Court of Appeal for Eastern Africa not doubt that on a question of Mohamedan law decisions of the Privy Council in appeals from India must bind them in appeals from the High Court of Zandibar. Their Lordships are of opinion that this was clearly the correct view and that it must prevail also in appeals from Kenya.
The effect of the above would be that the Malaysian courts would also be bound by the judgment of the Privy Council in Abdul Fata’s case. Whether that state of affairs should continue or not is a matter for the legislature.
In the instant case a fetua was also issued by the Mufti declaring the first plaintiff’s wakaffetua nor is there any agreement that any of them would abide by it. The plaintiffs contend that the fetua does not apply to this case as the second plaintiffs are not Muslims. The defendants, however, rely on the fetua as part of the defence. As far as this case is concerned, the court is bound by the decision of the Federal Court in Tengku Mariam’s case in that the court is not bound by the fetua and as neither of the parties requested for such a fetua they too are not bound by it. valid but with this difference: neither of the parties requested for the
The question arises whether the Muslim Law on wakaf in Trengganu has changed since Tengku Mariam’s case. The two Federal Court decision was delivered on 9 February 1970. Both Tun Azmi LP and Suffian FJ (as he then was) said that it was up to the legislature to effect any change. It would appear that the legislature did indeed do so. On 22 July 1972 the State Legislative Assembly of Trengganu passed the Islamic Wakaf Validating Enactment, 1972 which became law on 8 August 1972. Section 2 of the said Enactment reads:
It shall be lawful for any Muslim to create a Wakaf which in all other respects is in accordance with the provisions of Islamic Law, for the following amongst other purposes:
For the maintenance and support wholly or partially of his family, children or descendants, and
Where a person creating a Wakaf desires to follow the Hanafi Sect in respect of Wakaf, also for his own maintenance and support during his life-time and for the payment of his debt out of the rents and profits of the property dedicated.
Provided that the ultimate benefit is in such wakaf expressly and impliedly reserved for the poor or for any other purpose recognised by Islamic Law as a religious, pious or charitable purpose of a permanent character.
No such wakaf shall be deemed to be invalid merely because the benefits reserved therein for the poor or other religious, pious or charitable purpose of a permanent character is small or not substantial or is postponed until after the extinction of the family, children or descendants of the person creating the wakaf.
No such wakaf shall be deemed to be invalid merely because part of the benefits reserved therein is given to person or persons other than the family, children or descendants of the person creating the wakaf.
It seems to me that the grounds relied upon by the plaintiffs that the wakaf is void have been completely nullified by the said Enactment. I therefore hold that the wakaf per se is valid.
The instrument creating the wakaf was made on 13 June 1961. The Islamic Wakaf Validating Enactment, 1972 became law on 8 August 1972 that is eleven years later and about two years after the commencement of these proceedings. The question arises whether the new law applies to wakaf created before 8 August 1972. The answer seems to lie in s 3 of the Validating Enactment which reads:
This Enactment shall apply to all wakaf created in the State before its commencement:
Provided that nothing therein contained shall be deemed in anyway to affect any rights, titles, obligation or liability already acquired, accrued or incurred before the commencement of this Enactment.
There would appear to be a printing error in the proviso and “therein” should read “herein”. In my view the words of the Enactment are plain. It applies to all wakaf created in the State before its commencement. In the instant case the wakaf created by Tengku Nik Maimunah has been validated by s 3 but subject to rights, titles, obligation or liability created before 8 August 1972.
EXTENT OF WAKAF
The matter, however, does not end there for s 61 of the Administration of Islamic Law Enactment reads:
Whether or not made by way of will or deathbed gift, no wakaf or nazar made after the commencement of this Enactment and involving more than one-third of the property of the person making the same shall be valid in respect of the excess beyond such one-third unless expressly sanctioned and validated by all beneficiaries.
This Enactment came into force on 29 March 1956. The wakaf was created on 13 June 1961 and therefore s 61 applies. There has been no express sanction and validation of the wakaf by all the beneficiaries of Tengku Nik Maimunah. Apart from the Chenderong Concession she had other properties. It follows that only a third of her property as on 13 June 1961 is a valid wakaf.
This means that her other property has first to be added to the Chenderong Concession and one third of the whole but consisting part of the Chenderong Concession only is subject to the wakaf.
For these reasons, I declare that the wakaf created by Tengku Nik Maimunah on 13 June 1961 is valid to the extent of one third of her property as of that date.
Commissioner for Religious Affairs v Tengku Mariam  1 MLJ 222
Tengku Mariam v Commissioner for Religious Affairs, Trengganu  1 MLJ 110
Peter Mooney (Kirpal Singh Brar and Hassan Ishak with him) (M/s Kirpal Singh Brar & Co) for the plaintiff.
ST Chung (M/s Chung & Huang) for defendants 6, 7, 9, 11, 12, 13, 14, 15 and 20.
This decision is also reported at  1 MLJ 257.
SUMBER : http://www.ipsofactoj.com/archive/1978/Part09/arc1978(09)-001.htm