Chenderong III

More for reference.... . . . . . FEDERAL COURT OF MALAYSIA

Embong Ibrahim

- vs -

Tengku Nik Maimunah

Coram RAJA AZLAN SHAH CJ (MALAYA) SYED OTHMAN FJ SALLEH ABAS FJ

1 SEPTEMBER 1979

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Judgment

Salleh Abas FJ

(delivering the judgment of the Court)

1. This is an appeal and a cross-appeal against the decision of Harun J on the validity of a document purported to be a wakaf declared by the first plaintiff on 13 June 1961. The facts of the case may be stated as follows.

2. On 18 March 1906, equivalent to the 22nd Muharram 1324, the late Sultan Zainal Abidin of Trengganu granted large areas of land in Kemaman known as Chenderong Concession to his daughter, the late Tengku Nik Maimunah, the first plaintiff, and her husband, Tengku Ngah Omar Abdul Rahim, who was then a Minister of State, in equal shares. On the death of her husband, she inherited one-fourth of the husband’s share, thus increasing her share to five-eighths. The late Tengku Nik Maimunah had no children of her own. On 13 June 1961, she executed a document dedicating her total share in the Chenderong Concession into a wakaf in favour of the following beneficiaries:—

   1. her brothers and sisters, nieces and nephews and their children;

   2. four adopted daughters, two of whom are appellants Nos 2 and 3;

   3. two persons who are not her blood relations, one of whom is appellant No 1; and

   4. for religious, pious and charitable objects.

3. In respect of each of the dispositions to beneficiaries (1), (2) and (3), there is an ultimate disposition to the poor and the indigent. Nine years later, on 21 July 1970, the late Tengku Nik Maimunah executed another document purporting to revoke the wakaf and about a month later, on 30 August 1970, she executed yet another document purporting to surrender her five-eighths share of the Chenderong Concession land to a company named as Sharikat Pembinaan Chenderong Sdn Bhd, the present respondent.

4. On 26 November 1970, the late Tengku Nik Maimunah commenced a civil action in the High Court, Kuala Trengganu, against Majlis Ugama dan Adat Melayu, Negeri Trengganu (in this judgment referred to as “the Majlis”), and 38 other defendants who are beneficiaries under the wakaf. She asked for a declaration claiming, among other things, that the document she executed on 13 June 1961 did not create a valid wakaf. However, on 1 February 1971, a fatwa by the Mufti of Trengganu stated that the wakaf so created was valid, and this was duly published in the Trengganu Gazette (GN 28/1971) in accordance with the requirements of s 21(3) of the Trengganu Administration of Islamic Law Enactment No 4 of 1955. The next day, i.e. on 2 February 1971, the late Tengku Nik Maimunah withdrew her action against the Majlis, but the suit against the rest of the defendants continued. In the meantime, on 6 April 1971, the late Tengku Nik Maimunah died and the suit would have abated but for the addition of the present respondents as a second plaintiff on 16 May 1971, by an order of the court; and so proceedings continued. On 22 July 1972, Trengganu State Legislative Assembly passed an Enactment known as the Islamic Wakaf Validating Enactment No 10/1972, declaring that family wakaf made in accordance with Islamic law are not to be held invalid merely because of certain specified grounds. This Enactment which has retrospective effect came into force on 8 August 1972.

5. The trial took place on 15 April 1975 before Harun J who gave a judgment in favour of the validity of the wakaf but only to the extent of one-third of wakaf property because of s 61 of the Administration of Islamic Law Enactment of Trengganu No 4/1955. Three of the beneficiaries appealed against the decision claiming that the wakaf is wholly valid and that the one-third limitation only applies to a wakaf made by will or during death illness. The respondents, on the other hand, lodged a cross-appeal contending that the wakaf is wholly invalid.

6. For the purpose of our judgment, we feel it convenient to deal firstly with the question of validity of the wakaf, and secondly, only after this question has been answered in the affirmative, will we consider the effect and scope of s 61 of the Administration of Islamic Law Enactment No 4/1955, in order to consider whether the validity of the wakaf is as whole or as to one-third of the wakaf property.

7. Wakaf is an established Islamic institution founded on religion. The Trengganu Administration of Muslim Law Enactment No 4 of 1955 recognises two types of wakaf, namely wakaf am (general wakaf) and wakaf khas (special or private wakaf). Section 2 of the Enactment defines these two wakaf as follows:—

   ‘wakaf am’ means a dedication in perpetuity of the capital and income of property for religious or charitable purposes recognised by Islamic law, and includes the property so dedicated. ‘wakaf khas’ means a dedication in perpetuity of the capital of property for religious or charitable purposes, recognised by Islamic law, and includes the property so dedicated, the income of which is to be paid to a person or persons for purposes prescribed in the wakaf.

8. Amongst the operative words of these definitions are “for religious or charitable purposes recognised by Islamic law” but nowhere is this expression explained in the Enactment. This Enactment does not legislate upon the substance of Islamic law, as it merely deals with the “administration” of Islamic law. The meaning of the expression “for religious or charitable purposes recognised by Islamic law” must therefore be found elsewhere. In the Commissioner for Religious Affairs v Tengku Mariam [1969] 1 MLJ 110; [1970] 1 MLJ 222 the Mufti of Trengganu issued a fatwa duly gazetted under s 21 of the Enactment upholding the validity of a wakaf made in favour of the settlor’s family and relatives with ultimate gifts for religious purposes. However, both the High Court and the Federal Court rejected the fatwa as being binding upon the court. Applying the decisions of their Lordships of the Privy Council in Abul Fata Mahomed Ishak v Russomoy Dhur Chowdhury (1894) 22 IA 76; ILR 22 Cal 619 and Fatumah v Mohamed Salim, [1952] AC 1 Wan Suleiman J, as he then was, held that the wakaf was invalid. In the Federal Court its validity was saved on a narrow technical ground in that, because the beneficiaries had by their conduct previous to the suit accepted the validity of the wakaf, the doctrine of estoppel precluded them from challenging its validity. Nevertheless, Suffian FJ as he then was, writing the main judgment of the court, re-affirmed as did the East African Court of Appeal in Fatumah, that the decisions of their Lordships of the Privy Council on wakaf were binding, upon the court and suggested that the embarrassing situation should be rectified by legislation.

9. What then is the law as enunciated by these decisions? According to Mohamed Ahsanullah Chowdhry v Amarchand Kundu (1889) 17 IA 28; ILR Cal 498 a wakaf for the benefits of the settlor’s family, children and descendants and for charity, will only be valid if there is a substantial dedication of the property to charitable uses at some period of time or other. In any case, such a wakaf will not be valid if the primary object is for the aggrandisement of the settlor’s family and the gift to charity is illusory either because of its small amount or of its uncertainty or remoteness of objective (Abul Fata). This latter decision created dissatisfaction amongst the Muslim scholars and jurists in India and as a result of representations and protests, the Indian legislature passed the Mussalman Waqf Validating Act VI of 1913; and as the Act was not given retrospective effect, another validating Act was passed in 1930, thereby saving any family wakaf with the ultimate object for charity from invalidity irrespective of whether it was created before, on or after 1913. It was thought until recently that the decision of their Lordships in Abul Fata was purely confined to Muslim law as applied in India. However, this belief was rejected by their Lordships in Fatumah v Mohamed Salim in which their Lordships re-affirmed the correctness of their decision in Abul Fata and thus cleared all doubts as to the scope of their decision being confined to India only. Their Lordships said that they “cannot accept the theory .... that the interpretation of the Mohammadan law given by this Board in a series of cases is confined to the law as applied or administered in India.” (p 14)

10. Such is briefly the development of Muslim law on wakaf in India.

11. Reverting to Muslim law in Trengganu, the wakaf law seems to follow the same course of events as it did in India. The suggestion by the Federal Court that the embarrassing situation created by the precedents of their Lordships of the Privy Council’s decisions should be corrected by legislation, was accepted by the Trengganu State Assembly which subsequently on 22 July 1972, passed the Islamic Wakaf Validating Enactment No 10 of 1972. The Enactment received the Royal Assent on 3 August 1972 and thus on that date became law. So just as in India the Privy Council’s decisions on family wakaf were nullified by the Mussalman Waqf Validating Acts of 1913 and 1930, in Trengganu their decisions which the court considered binding in Tengku Mariam are similarly nullified by legislation, i.e. the Islamic Wakaf Validating Enactment 1972.

12. The Islamic Wakaf Validating Enactment 1972 does not purport to lay down what the constituent elements of a valid wakaf are. These, however, must be determined with reference to the definition given by s 2 of the Administration of Muslim Law Enactment No 4 of 1955 and in turn with reference to pure Islamic law and text. What the Enactment does is merely to declare that a wakaf will not be held invalid merely because “among other purposes” of the wakaf are the following four objects, namely —

    1. that the wakaf is for the maintenance and support wholly or partially of the settlor’s family, children or descendants, provided that there is an ultimate gift for the benefits of the poor or any other purposes recognised by Islamic Law (s 2(1)(a);

    2. that in the case of Hanafi sect, the wakaf is for the settlor’s maintenance and support during his or her lifetime and for the payment of his or her debts out of the rents and profits of the property, provided that there is an ultimate gift for the benefit of the poor or any other purpose recognised by Islamic law (s 2(1)(b);

    3. that the ultimate benefits reserved for the poor or other purposes recognised by Islamic law is small or postponed until the total extinction of the settlor’s family, children or descendants (s 2(2)); and

    4. that the wakaf is for the benefits of strangers, i.e. persons other than the family, children or descendants of the settlor (s 2(3).

13. It is noted that a wakaf coming under categories (1), (2) and (3) was held invalid by the decisions of their Lordships of the Privy Council in Ahsanullah and Abul Fata, and that as regards the wakaf coming under category (4), i.e. wakaf in favour of strangers; this has never been the subject-matter of their Lordships’ decision. As the Islamic Wakaf Validating Enactment 1972 is merely laying down the rules preventing such wakaf from being held invalid, the question of its validity must be, as intended by the legislature, determined in accordance with pure Islamic law and text and not one which is largely influenced by the concept of charitable trusts and rules against perpetuities in English law.

14. Counsel for the respondents submitted that the Islamic Wakaf Validating Enactment 1972 has no retrospective effect and therefore has no application to the wakaf in the present case which was made in 1961. Consequently, the decisions of their Lordships of the Privy Council stated above should be applicable. In our judgment, there is no merit in this submission because it is clear that s 3 of the Enactment which states —

    This Enactment shall apply to all wakaf created in the State before its commencement.

    is retrospective. The wakaf created by the late Tengku Nik Maimunah was made on 13 June 1961, and therefore the Enactment which says what it means or means what it says must govern this wakaf. Counsel for the respondents further submitted that even if s 3 of the Enactment gives a retrospective effect to the legislation, the proviso to this section takes the wakaf in the present case completely outside the sphere of the Enactment. For this purpose, it is necessary to quote s 3 in detail, which is as follows:—

    3.	This Enactment shall apply to all wakaf created in the State before its commencement: Provided that nothing therein contained shall be deemed in any way to affect any rights, titles, obligation or liability already acquired, accrued or incurred before the commencement of this Enactment.

15. The proviso of this type is usually enacted in most legislations giving retrospective or current effect. For the proviso to apply, it must be shown that in a period between 13 June 1961, the date when the wakaf was made, and 3 August 1972, the date of the commencement of the Enactment, some rights or titles have already been acquired or accrued or some obligations or liabilities have been incurred as regards this particular wakaf. Our finding on this question is in the negative. According to the statement of facts of the case at page 19 of the Appeal Record, on 27 July 1970, the late Tengku Nik Maimunah wrote to the Majlis to revoke the wakaf and on 30 August 1970 she executed an instrument of surrender purporting to surrender her share in the Chenderong Concession to the respondents. These two acts by the settlor, in our view, did not create any right nor any obligations having been incurred. It is obvious that the very act of revoking the wakaf by sending a letter to the Majlis on 30 August 1970 pre-supposes her acceptance and attitude as to the validity of the wakaf. She must have regarded that the wakaf was valid, or she would not have purported to revoke it. In Islamic law, there is no question of revocation of a valid wakaf. Her act in executing a surrender of the property to the respondents is consequential upon the validity of her revocation of the wakaf. Since in Islamic law a settlor cannot revoke the wakaf, likewise the purported surrender of the wakaf property to the respondents does not give rise to rights and liabilities to anyone. In our view, the proviso to s 3 only operates as regards a wakaf which would have been invalid but for the Enactment where the parties or someone else had acted in such a way as to prejudice their positions. In this case, as no rights nor obligations have been acquired or incurred, we do not see any merits in the submission that the proviso operates to exclude the wakaf from the sphere of the Enactment.

16. The Islamic Wakaf Validating Enactment 1972, whilst preventing a wakaf from being held invalid on certain specified grounds, insists that “in all other respects” a wakaf must be “in accordance with the provisions of Islamic law”. Counsel for the respondents therefore submitted that this wakaf is not in accordance with Islamic law and therefore invalid because it is only the income and not the corpus of the property which is dedicated. In Islamic law, for a wakaf to be valid the endowment must be the dedication of the capital as well as the income. In this case, what then is the subject of the wakaf? Counsel’s submission that it is only the income which is dedicated is based on the following words of the section:—

    I endow in perpetuity all the rights, interests and income derived from the 5/8 (five-eighth) share of the said Chenderong Concession ...

    This sentence, however, is an English translation rendered from the original Malay version which is —

    Saya telah mewakafkan dengan kekal-nya menghabisi semua hasil dan hak faedah yang didapati daripada 5/8 (lima per delapan) daripada tanah Chenderong Concession ....

17. Here we agree with the submission of counsel for the appellants that the English translation is not accurate as it does not give any effect to the pronoun “nya” attached to the word “kekal-nya”. We also think that no effect is given to the word “menghabisi” (meaning completely or without reservation or remainder). The pronoun “nya” and the word “menghabisi” in our opinion refer to the five-eighths of the Chenderong Concession land, and that being the case, we hold that what has been dedicated or endowed is not just the income derived from five-eighths of the Chenderong Concession, but the very five-eighths of the land itself. This view is further strengthened by a clause in the wakaf instrument regarding the expenses of the management of the wakaf. Here the settlor, the late Tengku Nik Maimunah, directed that before the income is distributed to the various beneficiaries, the expenses for the management to the extent of 7/144 must be deducted from the gross income derived from “that part of Chenderong Concession that is endowed” or in Malay original “daripada tanah Chenderong Concession yang diwakafkan” (English translation at page 77, the original Jawi version at page 59 and Romanised version at page 67). It is therefore obvious that what is dedicated is not just the income or profits derived from the Chenderong Concession, but also the very land itself. Hence, we reject the submission by the counsel for the respondent.

18. The wakaf created by the late Tengku Nik Maimunah contained a long list of beneficiaries, among whom are the present three appellants. Appellant No 1, Haji Embong lbrahim, was given 3/144 shares of the wakaf property, whilst Appellants Nos 2 and 3 were given 2/144 shares each. Appellant No 1 is not related to the late Tengku Nik Maimunah, whilst Appellants Nos 2 and 3 are her adopted daughters. It was submitted by the counsel for the respondents that the wakaf is invalid because as regards Appellant No 1 the wakaf is made in favour of a stranger and as regards Appellants Nos 2 and 3 it is made in favour of persons who are not members of the settlor’s family. Although Appellant No 1 is not related by blood to the late Tengku Nik Maimunah, and therefore cannot be classified as a member of her family, the disposition in his favour is clearly not to be held invalid because sub-s (3) of s 2 of the Enactment enacts as follows:—

    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.

19. This means that a wakaf in favour of a stranger, if valid in Islamic law, will not be held invalid. In lsmail Haji Arat v Umar Abdulla AIR 1942 Bom 155, a settlor made a wakaf in favour of his nephew, Hoosein Noor Mahomed, and after his death to his nephew’s heirs with ultimate gifts to charity. The Bombay High Court held that Hoosein Noor Mahomed who used to reside with the settlor and was also maintained by him was a member of the family of the settlor because Hoosein Noor Mahomed passed both tests of what constitutes “a family”. He was residing in the settlor’s house for whose maintenance the settlor was mainly responsible and he was also connected with the settlor through a common progenitor or by having a common lineage. Therefore, a wakaf in his favour came within the ambit of s 3(a) of the Mussalman Waqf Validating Act 1913. The Bombay High Court, however, refused to uphold the validity of the wakaf made in favour of Hoosein Noor Mahomed’s heir because the heir was a stranger as he was neither residing with nor depending for his maintenance upon the settlor, nor was he connected through a common progenitor with the settlor. Chagla J who gave the judgment of the court said:—

    If I were to hold that the disposition in favour of the heirs of Hoosein Noor Mahomed is a good disposition, it would amount to my holding that the settlor would tie up his property in perpetuity in favour of persons who were neither his children nor his descendants nor members of his family. I therefore hold that the disposition in favour of the heirs of Hoosein Noor Mahomed does not come within the purview of the Mussalman Waqf Validating Act and the disposition is therefore bad in law.

20. It must, however, be remembered that the Indian Mussalman Waqf Validating Act does not contain a provision similar to sub-s (3) of s 2 of the Trengganu Islamic Wakaf Validating, Enactment 1972, which prevents or saves a wakaf from being held invalid if otherwise valid under Islamic law merely because it is created in favour of persons other than the family, children or descendants of the person creating a wakaf. For this reason, Ismail Haji Arat v Umar Abdullah cannot be an authority for the proposition that a wakaf to a stranger is invalid. That case simply decided on the scope of the Indian Mussalman Waqf Validating Act 1913. It is clear from the above quoted judgment, that Chagla J was still influenced by the concept of charitable trust and the rules against perpetuities as understood in English law. Whereas in our case those rules should play no part at all in the disposition of property under Muslim law. To put the matter clear, it is sufficient to reproduce s 25 of the Civil Law Enactment 1956 which is as follows:—

    Nothing in this Part shall affect the disposal of any property according to Muslim law ....

21. “This Part” is Part VII of the Act and it deals with rules against perpetuities. However, this does not dispose the mater yet. The basic question has still to be answered, i.e. whether or not under the pure Islamic law and text a wakaf in favour of a stranger is valid. The study of works by distinguished Indian authors such as Ameer Ali, Tyabji and Fyzee show clearly that a disposition in favour of a stranger is valid. Fyzee, 2nd Ed, at page 252, says:—

    .... Is poverty a necessary condition for obtaining benefit from a wakaf? According to Mohammadan law, wakaf may be made (i) for the affluent and the indigent alike; or (ii) for the affluent and thereafter for the indigent; or (iii) for the indigent alone. The law does not insist that a man must necessarily be proved to be poor before he can take the benefit of a wakaf. Poverty is one of the many qualities that are recognised as being capable of attracting the benefit of a wakaf, but it is by no means a sine qua non. Therefore, all persons, regardless of considerations of wealth, are entitled to come in as beneficiaries. Nevertheless, it is perfectly correct to say that when all other purposes fail, the relief of the poor is ultimate purpose of every wakaf. Thus it is clear that the objects of a wakaf may be different from the objects of a charitable trust as understood in English law.

22. Ameer Ali in vol 1, 5th Ed (1976) says that a wakaf may be created for the benefit of any person or class of persons or for any object of piety or charity (page 273), and among the objects of a valid wakaf is a gift to strangers (pages 276–277). Similarly, Tyabji, 2nd Ed (1919), after observing that the Mussalman Waqf Validating Act 1913 contains no reference to the question whether the provisions in favour of others than members of the family, children and descendants of the “waqif” (settlor) are valid, goes on to say that provisions in the wakaf may be made in favour of strangers (page 571).

23. In Hashim Ali v Iffat Ara Hamidi Begum, (1942) 46 Cal WN 561 the Calcutta High Court has taken the view that the provision for a small pension for three of the faithful servants would not render the wakaf invalid, as the main purpose of the wakaf in question was not to make settlement on those servants. In Mt Akhtar Banu Begum v Kanhaiya Lal, AIR 1941 Oudh 492 it was held by the Oudh High Court that payments of sums of money directed to be made in the wakaf to two servants of the settlor were valid, though they were not members of the family of the settlor. In the opinion of the court, the provisions contained in the Mussalman Waqf Validating Act 1913 are not exhaustive as the words used are “among other purposes”. In Abdul Wahab v Sughra Begum, AIR 1932 All 248 Allahabad High Court held that a disposition in a wakaf for the payment of salary and pensions to servants was valid. The court in this case acting upon the opinion of Ameer Ali and Tyabji rejected the contention that for a wakaf in favour of a stranger to be valid, the stranger concerned must be poor. Thus a review of Indian cases on a wakaf in favour of stranger shows that three High Courts, i.e. Calcutta, Allahabad and Oudh benches upheld the validity of such wakaf. Only Bombay High Court in Ismail Haji Arat v Umar Abdulla held otherwise. Whatever force of the decision in this case may have, it is clear that it is inapplicable to our situation because the Indian Act contains no provision relating to validity of a wakaf made in favour of persons other than the family of the settlor. Thus the way is open to the judge in that case to apply the wakaf law coloured by the concept or charitable trust and rules against perpetuities as understood in English law, instead of the wakaf law as expounded and interpreted by Muslim scholars and jurists. We therefore reject the contention that a provision for Appellant No 1 is invalid. Such provision is valid in Islamic law and further saved from invalidity by s 2(3) of the Islamic Wakaf Validating Enactment 1972.

24. As regards the dispositions in favour of the Appellants Nos 2 and 3 who are adopted daughters of the late Tengku Nik Maimunah, in our view, such dispositions are also valid, because not only the dispositions in favour of strangers are valid, but also because adopted daughters must be regarded to be members of the settlor’s family. It was contended that as Islamic law does not recognise adoption, adopted children cannot form part of the family of a settlor. In Abdul Mabud Khan v Nawazish Ali Khan, AIR 1925 Oudh 301, it was held that whilst distant collaterals such as cousins in the fourth and fifth degree cannot be viewed as members of the family, the word “family” in the Mussalman Waqf Validating Act 1913 includes those persons residing in the house of the settlor for whose maintenance the settlor is mainly responsible. In Mt Musharraf Begum v Mt Sikandar Jehan Begum AIR 1928 All 516 it was held that a wakaf in favour of a widow’s son, i.e. daughter-in-law, was valid because she was held to be a member of the settlor’s family. Similarly, in Ismail Haji Arat case, a nephew living in the house of the settlor who treated and maintained him as his son was held to be a member of the family. In our judgment, the test of what constitutes “family” adopted by these Indian cases is correct. It is one that we ourselves are disposed of to hold. We therefore hold that these two appellants being adopted daughters and living with the settlor must be regarded as members of the settlor’s family. The dispositions in their favour are valid. Even if they are not to be regarded as members of the family of the late Tengku Nik Maimunah, as strangers there is nothing in law which prevents such dispositions from being otherwise than valid. Pure Islamic law as expressed in the opinions of learned authors and as applied by a number of High Court Benches in India upholds the validity of a wakaf made in favour of strangers. Furthermore, s 3(2) of the Trengganu Wakaf Validating Enactment 1972 clearly validates such wakaf.

25. For the reasons stated above, we now hold that the wakaf made by the late Tengku Nik Maimunah on 13 June 1961 is valid and the cross-appeal therefore fails.

26. We now come to consider the appeal proper by the present three appellants. Harun J in the court below held that the wakaf is valid only to the extent of one-third because s 61 of the Trengganu Administration of Islamic Enactment No 4 of 1955 enacts as follows:—

    Whether or not made by way of will or death-bed 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 the beneficiaries.

27. It is the contention of the appellants that this section only deals with wakaf or nazar which is made by way of will or death-bed gift and that it has no reference whatsoever to a wakaf or nazar made inter vivos. Consequently, in their submissions the wakaf in this case being made during the lifetime of the settlor must be wholly valid.

28. According to Islamic law, a Muslim has power during his lifetime to transfer all his property to anyone, but after his death or during his death illness in the absence of consent by his heirs, he may only do so to the extent of one-third of the property. A wakaf under Islamic law can be made either inter vivos or by way of will. An inter vivos wakaf takes effect immediately to divest the ownership in the property from the settlor. Consequently, the one-third limitation has no application to an inter vivos wakaf. But where a wakaf is created by will or made during the death illness of the deceased settlor, the one-third limitation applies unless such wakaf is consented to by the heirs. Consequently, in the absence of such consent, only the gift to the extent of one-third of the wakaf property is valid. Reverting now to s 61 of the Trengganu Enactment, in our view, it is clear that this Enactment never contemplates of legislating upon or changing the substance of Islamic law particularly on this point which is so basic. Far from it, as it is merely an Enactment which its long title says —

    To consolidate the law relating to the administration of all matters relating to the Religion of Islam and the religious courts.

29. Since by the unwritten Islamic law, the one-third limitation applies only to a wakaf or nazar made by way of will or during death illness, it can never have been the intention of the Trengganu Legislature that such one-third limitation also applies to wakaf made inter vivos, such as the one in this appeal. Furthermore, a close reading of s 61 clearly shows that it merely deals with a wakaf or nazar made by will or death-bed gift. It made no mention of a wakaf made inter vivos.

30. The expression “whether or not made by way of will or death-bed gift” must be interpreted to mean what it says. It does not and cannot, however, refer to a wakaf made inter vivos which is not said in the expression. The general principle expression unius exclusio alterius or expressum facit cessare tacitum must therefore apply. In view of our reasonings above, we agree with the submission of the counsel for the appellants that the wakaf in this case is wholly valid and that the one-third limitation contained in s 61 of the Enactment, being confined only to wakaf or nazar made by way of will and death-bed gift, has no application to the wakaf in the present case.

31. Hence we allow the appeal and dismiss the cross- appeal with costs here and the court below. The deposit has to be refunded to the appellants.

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Cases

Commissioner of Religious Affairs v Tengku Mariam [1969] 1 MLJ 110; [1970] 1 MLJ 222; Abul Fata Mahomed Ishak v Russomoy Dhur Chowdhury [1894] 22 IA 76; ILR 22 Cal 619; Fatumah v Mohamed bin Salim [1952] AC 1; Mohamed Ahsanullah Chowdhry v Amarchand Kundu [1889] 17 IA 28; ILR Cal 498; Ismail Haji Arat v Umar Abdulla AIR [1942] Bom 155; Hashim Ali v Iffat Ara Hamidi Begum [1942] 46 Cal WN 561; Mt Akhtar Banu Begum v Kanhaiya Lal AIR [1941] Oudh 492; Abdul Wahab v Sughra Begum AIR [1932] All 248; Abdul Mabud Khan v Nawazish Ali Khan AIR [1925] Oudh 301; Mt Musharraf Begum v Mt Sikandar Jehan Begum AIR [1928] All 516

Legislations

Islamic Wakaf Validating Enactment Act, 1972

Trengganu Administration of Islamic Law Enactment, 1955, s 61.

Authors and other references

Fyzee, 2nd Ed

Ameer Ali in vol 1, 5th Ed (1976)

Tyabji, 2nd Ed (1919)

Representation

ST Chung (Joseph Tan with him) for the appellants.

Miss KL Chen for the respondent.

SUMBER : http://www.ipsofactoj.com/archive/1979/Part4/arc1979%284%29-009.htm