Mohamed Ismail bin Ibrahim and Another v Mohammad Taha bin Ibrahim

MPH Rubin J:

[1] This case concerns the validity of a will made by Haji Ibrahim bin Abdul Samad (“the testator”), a Malay Muslim from Singapore. He passed away on 14 September 1997, having made his last will and testament on 9 December 1996, leaving behind a wife, three sons and seven daughters. The first and second plaintiffs are two of the children of the testator. The defendant is another son who is the executor of the testator’s estate. The plaintiffs are challenging parts of the will.

[2] The general issue in this action is whether certain parts of the declarations and bequests contained in the will accord with the principles of Muslim law applicable to Muslims of the Shafii school of law to which the testator and his heirs belong.

[3] A specific issue that falls for determination concerns an aspect called “nuzriah”. The term “nuzriah” does not appear or feature in any of the treatises, writings or books published by or attributed to any Muslim scholars or jurists. However, the court was informed by the expert witness who appeared for the defendant that the word “nuzriah” is derived from the word “nazar”, that it is a minor nazar and that both terms connote the same concept. The term nazar means “vow or a solemn pledge” and is defined in s 2 of the Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) (“AMLA”) as an expressed vow to do any act or to dedicate property for any purpose allowed by Muslim law.

[4] Another issue relates to the correctness or otherwise of the division of the property of the estate of the testator by the Legal or Fatwa Committee of the Singapore Islamic Council (Majlis Ugama Islam Singapura) (“Muis”).

[5] Briefly stated, there are four sources of Muslim law. In so far as the Sunni Muslims are concerned, they are: The Quran (the Holy Book), Hadis or Hadith (the traditions of the Prophet, viz the oral precepts delivered from time to time by the prophet and references to the daily mode of his life as handed down to posterity by his immediate followers), Ijmaa (consensus amongst highly qualified legal scholars), and Qiyas (reasoning by analogy or analogical deduction).

[6] Muslim law and rules for dealing with the distribution of a dead person’s property differ greatly from Western or other secular law. Muslim law or Sharia is derived from the Quran and the words and traditions of Prophet Muhammad himself, and is therefore believed to be of divine inspiration and not man-made.

[7] Muslim jurisprudence imposes two principal restrictions on testamentary power. The first restriction concerns the quantum of bequests, where the rule is that a person may not dispose by will more than one-third of his property. The second limitation upon testamentary power (recognised by all four schools of the Sunni Muslims, the Shafii school being one amongst them) is that a testator may not make a bequest in favour of any of his legal heirs. In other words, a Muslim cannot by a testamentary disposition reduce or enlarge the shares of those who by law are entitled to inherit (see N J Coulson, Succession in the Muslim Family, (Cambridge University Press, 1971) at p 213; Asaf A A Fyzee, Outlines of Muhammadan Law (3rd Ed, 1964) at p 351 and Syed Ameer Ali, Mohammedan Law (6th Ed, 1965) Vol II, p 20. “Legal heir”, in the Islamic context, is a term which is properly applied only to those relatives upon whom property devolves, after the demise of the owner, by operation of law. In Singapore, under s 111(1) of the AMLA, no Muslim domiciled in Singapore can now dispose of his property by will except in accordance with the provisions and subject to the restrictions imposed by the school of Muslim law professed by him. Under s 115 of the AMLA, the Syariah Court of Singapore is vested with the authority to issue the requisite inheritance certificate, setting out the names of the legal heirs and their respective shares in the estate of the deceased. Without a doubt, a legacy in favour of a legal or legitimate heir can only take effect with the unanimous consent of the co-heirs (see Dr Ahmad Ibrahim, Islamic Law in Malaya, (Malaysian Sociological Research Institute Ltd, 1965) at p 264).

[8] Coulson comments (at p 214) that Sunni jurisprudence sees the essence of succession law to lie in protecting the interests of the legal heirs and preserving the balance between their claims as established under the sacrosanct scheme of inheritance. Bequests, however meritorious their purpose – in providing for cases of particular hardship, in fulfilling a charitable purpose or in performing what the testator conceived to be a personal duty left outstanding during his lifetime – are not allowed to defeat the entitlement of the legal heirs to at least two-thirds of the estate.

[9] Further, s 60 of the AMLA specifically provides:

[10] The will, a subject matter of dispute before the court, was made in the Malay language and headed in the original with the word “wasiat”, meaning “will”. In so far as is material, the said will, translated in English and produced in court, reads as follows:

[11] Since the word “bequeath”, appearing in the second line of the third paragraph of the will, seemed syntactically out of tune, the court asked the counsel whether the right word should have been “bequest”. On this, the court was informed by the court interpreter, with the concurrence of both counsel, that the correct word should have been “gift”.

[12] It must also be remarked at this juncture that the execution of the will by the testator on 9 December 1996 was witnessed by one Syed Abdillah Aljufri (since deceased) and one Abdul Rahim Salleh. The will was also certified and validated by the Mufti of Singapore, Tuan Syed Isa Mohd bin Smith (the name “Smith” sometimes spelt as “Semait”) (“Tuan Syed Isa”) on the very date of its execution. It was said that the late Syed Abdillah Aljufri and the Mufti were two of the five members of the Fatwa Committee of Muis that considered the validity of the will and issued a ruling subsequently on 23 February 1998. Tuan Syed Isa, who appeared in this case as the defendant’s expert, is still the Mufti and the chairman of the said Committee.

[13] Following the demise of the testator on 14 September 1997, the defendant, who is the executor and trustee named in the will, engaged the legal firm of M/s Mallal & Namazie with a view to obtaining probate. The plaintiffs, on their part, engaged another firm of solicitors, M/s Palakrishnan & Partners, who after lodging a caveat against the estate in the Registry of the Subordinate Courts, notified the other side on 17 December 1997 of their clients’ intention to contest the will on the ground that the said will contravenes Muslim law, in that it purports to distribute only one-third and not two-thirds of the properties left behind by the testator. What happened next was that the defendant’s solicitors wrote to the Fatwa Committee of Muis for an opinion. Admittedly, neither the plaintiffs nor their solicitors were consulted on the text of the request. The request was also not copied to the plaintiffs. In so far as is material, the said request reads as follows:

[14] The defendant’s solicitors on 23 February 1998 also wrote to the Syariah Court for the requisite inheritance certificate and obtained the same on 2 March 1998. In the said certificate, it was stated by the Syariah Court that the estate of the deceased should be divided into 104 shares and be apportioned as to 13 shares to the deceased’s wife, 14 shares each to the three sons, and seven shares each to the seven daughters. This certificate is not a subject of debate before the court.

[15] In the event, a fatwa was issued on 23 February 1998 and transmitted to the defendant’s solicitors thereafter. On 6 April 1998, the defendant’s solicitors forwarded to the plaintiffs’ solicitors the said fatwa together with a copy of the testator’s last will and the certificate issued by the Syariah Court. In their letter which enclosed all the aforesaid documents, the defendant’s solicitors estimated the value of the testator’s estate to be in the region of $2.1m.

[16] The fatwa issued by Muis (as translated into English) reads as follows:

[17] The plaintiffs did not accept the advice contained in the fatwa. In the meantime, two of the children of the testator, Apon bte Ibrahim and Amida bte Ibrahim, both beneficiaries under the nuzriah segment as well as the legal heirs segment, renounced their purported shares under the nuzriah segment and made statutory declarations to confirm their renunciation. Although solicitors for the plaintiffs wrote to Muis expressing their clients’ protests over the fatwa whilst bringing to its attention the said renunciations, it was to no avail. In a letter dated 28 September 1999, Muis informed the plaintiffs’ solicitors in the following terms:

[18] As the events unfolded, the plaintiffs filed this originating summons on 24 August 2001. The application was amended on 11 September 2001 seeking the following orders:

[19] There is one further detail that requires mention here. On 5 April 2002, Haji Maarof bin Haji Salleh, the then President of Muis, issued a belated ratification of the nuzriah segment of the will. The said letter, exhibited in the affidavit of the defendant filed on 9 April 2002, reads as follows:

[20] As could be seen from the foregoing will, there are three segments: the first concerns the much contested nuzriah, the second pertains to two named mosques and the third deals with the purported shares of the legal heirs. Although there were a number of affidavits filed by the parties to this litigation raising a number of disputed facts, oral and cross-examination, by choice, were confined only to one expert each. The expert for the plaintiffs is Dr Ismail bin Mohd (alias Abu Hassan), an Assistant Professor from the International Islamic University of Malaysia. His opinion is contained in three affidavits filed by him, on 22 October 2001, 3 June 2002 and 20 January 2003. The defendant’s expert is Tuan Syed Isa. He is none other than the Mufti of Singapore, the one who had validated the will of the testator on the day it was made and the one who presided over the Fatwa Committee later and gave a view in favour of the defendant. His opinion is contained in three affidavits filed by him on 8 April 2002, 3 October 2002 and 24 April 2004 respectively. Both witnesses testified in person and were questioned extensively. The significant aspects of their evidence can be recapitulated as follows.

[21] In Dr Ismail’s opinion, the nuzriah segment, whereby the testator purported to give one-third of his estate to a number of legal heirs, is invalid under the laws of Islam. Dr Ismail said that the term “nuzriah” could not be found in any of the books or treatises published by Muslim jurists. However, the word “nazar” (vow) appears in several textbooks and foremost amongst them is Nawawi’s Minhaj et Talibin (A Manual of Muhammadan Law According to the School of Shafii) (W Thacker & Co, 1914). According to Nawawi (see pp 495–499), and annotated in Dr Ahmad Ibrahim’s Islamic Law in Malaya ([7] supra at pp 281–282):

[22] According to Dr Ismail, the portion purportedly given away by the testator under the name “nuzriah” does not seem to fit, even in the least, the examples and illustrations cited by Nawawi and Ahmad Ibrahim in their books, nor does the term conform or accord with the principles underlying the doctrine of nazar expounded in those writings. He said that, to the best of his knowledge and research, this nuzriah, as it is characterised by the defendant’s expert, is not known nor practised in Indonesia, Malaysia or any part of the Muslim world of the Shafii school. After dealing with the general principles of the Muslim law of inheritance and some unique features of Muslim jurisprudence relating to (a) “wakaf” (sometimes spelt as “waqf”) which means a permanent dedication by a Muslim of any movable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable, (b) “wasiyyah” (sometimes spelt as “wasiyya”, “wasiyyat” or “wasiat”), meaning bequest or will, and (c) “hibah” or “hiba”, meaning gift, Dr Ismail said (see paras 29 to 32 of his opinion, referred to in the plaintiffs’ affidavit of 22 October 2001):

[23] Tuan Syed Isa’s opinion, in so far as is material, as contained in his first affidavit filed on 9 April 2002, is as follows:

[24] In his testimony, Tuan Syed Isa maintained that the giving away of property by an individual by way of nuzriah, as was done in the will of the testator, is not new to Singapore; Muis has registered 36 such nuzriah since 1997 and the practice is at least 500 years old. In this regard, reference was made by him to an Arabic compilation with the title Bugyat ul Mustarsyideen (The Aspiration of the Seekers of Guidance), put together by a much respected Mufti of Hadramout, Sayyid Abdul Rahman bin Muhammad bin Hussain bin Umar Al Masyhuur Ba’alawie. This work is reported to contain the differing viewpoints of two well-known religious scholars and the summary of some edicts by Ibn Ziyad. The extracts referred to the court by Tuan Syed Isa will be referred to later in this judgment.

[25] Tuan Syed Isa said that the doctrine of Nazar is rooted in a verse from the Quran (Sura 76: verse 7 (Dahr, or Time, or Insan, or Man), reproduced in Yusuf Ali’s The Glorious Quran – Translation and Commentary, (2nd Ed, 1977) which reads:

[26] Tuan Syed Isa, in his testimony, said that the property, delineated as nuzriah by the testator, should not be regarded as a bequest and consequently did not offend the laws of inheritance under Muslim law because the said segment was given away during the testator’s lifetime, although it was to take effect three days before the death of the testator in case of illness, or one hour before death, if death were to occur suddenly. Tuan Syed Isa also expressed his view that the portion ear-marked as nuzriah by the testator could not be regarded under Muslim law as hiba (gift) because of the absence of actual delivery by the donor and acceptance by the donees of the subject matter. He further claimed that the nuzriah portion became vested in the beneficiaries named under the said segment on 9 December 1996 itself, the very day the will was executed.

[27] Tuan Syed Isa was asked why the testator was still seen to be holding on to the property said to be divested if the nuzriah portion was indeed divested by the testator as on 9 December 1996 by declaring that “my bequeath [sic] [gift] shall come into force three days before my death if it is due to illness, or one hour before my death if it is sudden”. Tuan Syed Isa replied, “Actually your Honour, when nazar is made, he [the testator] should implement it right away, immediately … Yes, it should be given physically.”[1] Another highlight in his testimony was that although the testator had under his will divided his estate into three equal parts, the distribution in equal parts to all three segments would offend the Muslim law of inheritance, hence resulting in the Fatwa Committee’s apportionment of the estate as to nine parts to the nuzriah segment, six parts to the mosques segment and 12 parts to the legal heirs segment.[2]

[28] Tuan Syed Isa mentioned further that, on 9 December 1996, when the testator appeared at the Muis offices for his will to be witnessed and consequently to be certified, Tuan Syed Isa’s conversation with the testator was brief and there was no discussion or inquiry concerning why the testator was demarcating a portion of his estate by way of nuzriah. He disclosed that although there were several such nuzriah registered with Muis, this was the first case where a fatwa was requested. He also disclosed that the deliberation by the Fatwa Committee lasted for about 30 minutes.[3] In relation to the implications of s 60 of the AMLA ([9] supra), the court could not get much input from Tuan Syed Isa, since counsel for the defendant rose to say that Tuan Syed Isa was called to court to testify only in relation to Muslim law and he would be ill-equipped to handle questions on statutory provisions.[4] This was most unfortunate, since a fatwa issued without an understanding of s 60 of the AMLA which, amongst other things specifically deals with nazar, is, in my view, bound to be deficient as we shall see later. Tuan Syed Isa, however, conceded that there was no agreed view amongst scholars concerning the particular practice of nazar or nuzriah.[5]

[29] Tuan Syed Isa also stated that even if a person were to give away his entire estate by way of nuzriah to any of his preferred legal heirs, it was lawful and valid according to Muslim law.[6] This view is a reiteration of a statement contained in the letter dated 28 September 1999 ([17] supra) from Muis addressed to the plaintiffs’ solicitors, which reads:

[30] Lengthy arguments were presented by both counsel, contending for the opposites. I do not propose to rehearse them here at length and they will be referred to later in this judgment, if need be. In essence, the argument by the plaintiffs’ counsel was that the nuzriah segment is invalid; it is repugnant to the principles of Muslim law and the apportionment attempted by the Fatwa Committee is not consonant with the plain language of the will, which calls for equal portions to all three segments. Counsel for the defendant, on the other hand, contended that the nuzriah is well entrenched in Singapore; the wording of the will is such that the said segment cannot be regarded as a bequest; and the division re-done by the Fatwa Committee was to give effect to the principles of Muslim law. Defendant’s counsel further submitted that the issue whether the nuzriah is valid or not had been considered by the Fatwa Committee and, although the ruling is not binding on this court, it must, nonetheless, be accorded the weight it deserves. He added further that in the event the court were to hold that the nuzriah is invalid, no issue of apportionment between the nuzriah and the mosques segment arises and that the mosques segment should receive the entire one-third share.[7]

[31] A principal restriction in Muslim law, as has been declared in all the authoritative works and treatises, and referred to in s 114 of the AMLA, is that a testator is not entitled to dispose of more than one-third of the property belonging to him at the time of death, and that the residue of his property must descend in fixed proportions to his legal heirs unless consent is given by all legal heirs to any deviation from the rule. In Singapore, under s 115 of the AMLA, the Syariah Court is charged with the responsibility of issuing the requisite inheritance certificate setting out the said fixed proportion of each heir.

[32] The principles stated above have been consistently re-affirmed in several reported cases in Singapore and Malaysia, both before and after the coming into force of the AMLA.

[33] In Shaik Abdul Latif v Shaik Elias Bux (1915) 1 FMSLR 204, the appeal court held (as stated in the headnote of the report):

[34] The foregoing view was amplified in Siti binti Yatim v Mohamed Nor bin Bujai (1928) 6 FMSLR 135, where the High Court held that the will of a Muslim which attempts to prefer one heir by giving him a larger share of the estate than he is entitled to by Muslim law is wholly invalid as to such bequest without the consent of the other heirs.

[35] The High Court in Singapore also has affirmed the above-stated principles in a number of cases (see: Re Fatimah Binte Mohamed Bin Ali Al Tway, Deceased [1933] 1 MLJ 211 (“Re Fatimah”); Abdul Jabbar v M Mohamed Abubacker [1940] 1 MLJ 286 – although this case involved a Hanafi, the applicable principles are nonetheless the same in relation to bequests; and Re Estate of Siti bte Naydeen [1984–1985] SLR 468). I shall revert to Re Fatimah later in this judgment.

[36] Returning to the issues before this court, the first question relates to whether the property purportedly given away by the testator as nuzriah is a bequest, gift or a valid nazar. The plaintiffs’ contention is that it is a bequest that offends the Muslim law on inheritance. The defendant, whilst saying that it is not a gift, maintains that it is a nuzriah, which is something given during the life of the testator.

[37] It must be remarked at the outset that the phraseology used by the testator in the will, particularly in relation to the nuzriah segment, lends itself to much difficulty and confusion. First, the document is headed as “wasiat”, meaning “will”. Next, the document, as translated and produced to the court, appears on the face of it to present itself either as a bequest or a gift. The operative words are: “my bequeath [sic]”. The word “bequeath” is plainly a wrong rendering of the relevant Malay word in the original document. It is either “bequest”, “bequeathal” or some other word. The court interpreter said that the correct translation is “gift”. The defendant’s side, not surprisingly, shies away from both the words, for if, indeed, it is a bequest, the said segment substantially becomes void, unless consented to by all the legal heirs; if it is, on the other hand, a gift, there is no running away from the fact that in the absence of delivery and acceptance, the segment also fails. So the question is: Could this be a valid nazar?

[38] The concept of nazar, as described by Nawawi and other writers, is of two kinds: a vow with a penalty or a vow of gratitude. The nazar or nuzriah as mentioned in the will, is certainly not one of penalty. Is it then a vow of gratitude? The defendant’s expert, Tuan Syed Isa, claims that the present nuzriah is one of good deed or charity,[8] implying that it is more akin to a vow of gratitude. But where is the evidence to underpin such a claim? As it stands, the will is unhelpful and silent as to the backdrop of any such vow. Tuan Syed Isa, who attended to the testator at the time the will was executed, was also unable to throw any light on the background since he neither inquired nor was told by the testator of the reasons why this nuzriah was made.

[39] Tuan Syed Isa, in his evidence, said that nuzriah is a minor nazar and the concept of nazar is anchored in the Quranic verse (Sura 76, verse 7, [25] supra). In this regard, it is instructive to make reference to p 1656 of Yusuf Ali’s The Glorious Quran — Translation and Commentary ([25] supra), where the author appends a footnote to the said verse (n 5837), which reads as follows:

[40] Looking at the will objectively, it is difficult to discern any content of spiritual service, service to humanity or any existing obligation to fulfil a contract in the nuzriah segment. On the face of it, it appears to be no more than a direction by the testator to give an additional portion of his estate to some of his children and grandchildren. It is clearly an expression of preference. If the portion delineated was given away during his lifetime by the testator to the named beneficiaries, it would have constituted a gift inter vivos and the plaintiffs would not have been in a position to challenge the said direction, for there is no legal impediment in Muslim law for a person to give away any amount of his wealth or assets during his lifetime. But in the case at hand, contrary to the assertion of the defendant’s expert witness, the property is not divested by the testator on 9 December 1996, because of the testator’s express stipulation that his “bequeath [sic]” or gift shall come into force only three days before his death in case of illness and one hour before his death if it is sudden.

[41] In my evaluation, with the greatest respect to Tuan Syed Isa and his undoubted piety and sincerity, his analysis does not stand up to scrutiny. Let me elaborate.

[42] Tuan Syed Isa mentioned that the nuzriah is not new to Singapore and it goes a long way back. In this regard, he also made reference to an anecdote cited as “case F” in Bugyat ul Mustarsyideen ([24] supra), of a person making a conditional “nadzr” (nazar) “in favour of his daughter to give her jewellery that [was] in her keeping and to give money to the rest of the children that is to take effect three days before his death if he dies of sickness and an hour before his death if he dies a sudden death”. The said anecdote is immediately followed by the sentence: “Both the ‘nadzrs’ are valid.”

[43] Whilst I do not propose to second-guess the scholarship and erudition contained in the said commentary, it should be remarked at once that the cover of this commentary itself exhibits a caveat that the work contains not a single point of view but the differing viewpoints of two well-respected shaiks (leaders). In any event, the translation produced to the court is so mangled that it is very difficult to deduce any central principle with a measure of certainty.

[44] Counsel for the defendant, through Tuan Syed Isa, invited the court’s attention to yet another Arabic treatise, Syarh ul Yaquut un Nafees (Commentary on the Precious Ruby) by Muhammad bin Ahmad Asy Syatiri. A translation of pp 432 to 434 from the third volume of the book, contains the following:

[45] The passage cited above, in my view, shows that, at best, not all but a few hold the view that a vow in favour of some children over others may be valid in some exceptional circumstances such as necessity and want of support. Furthermore, that passage also underlines that there are strong differences amongst the scholars as regards the vow illustrated. There is no indication from the said passage that scholars have an agreed position to give validity to the vow. There is clearly an absence of consensus or Ijmaa and in the premises, the passage cited does not seem to advance the stand-point of the defendant.

[46] It is an uncontested position that if the first segment of the will, styled as a nuzriah, were to be regarded as a bequest, it would doubtless run counter to the principles of Muslim law concerning inheritance. The plaintiffs’ position is that from whichever angle you look at the so-called nuzriah, it is nothing but a bequest. Counsel for the defendant argues, on the other hand, that it is neither a bequest nor a gift but a device of its own genre, practised over a long period of time and had presently received a stamp of approval from the Fatwa Committee. To recall the words of Tuan Syed Isa in paras 6 to 8 of his affidavit filed on 8 April 2002, it is a transaction made during the life of the testator; it cannot be classified as a bequest, nor could it be considered a gift. He also ventured to suggest that a Muslim could give away the entire portion of his estate by way of nuzriah to a preferred heir and that would be valid according to Muslim law.

[47] Counsel for the plaintiffs invited my attention to Re Fatimah ([35] supra), a decision by the High Court of the Straits Settlements dealing with an Arabic document purporting to be a “nasr” (same as the present nuzriah or nazar). The judgment of Sproule ACJ at 211–212 bears reproduction almost in full. It reads thus:

[48] It is clear from the reasoning of Sproule ACJ that the “nasr” made by the deceased in Re Fatimah is a testamentary disposition and takes effect “after and by reason of the donor’s death”. This decision, no doubt, weakens the very foundation of the defendant’s contention that the present nuzriah takes effect from the day it was made and that it cannot be regarded as a bequest.

[49] Proceeding further, the testimony of Tuan Syed Isa, reaffirming a statement by the Fatwa Committee in its letter dated 28 September 1999 ([17] supra) that nuzriah has no maximum limit and drawing up a nuzriah and a will at the same time by one particular person does not contravene Muslim law even if the total shares exceeded one-third of the total estate, does not seem to cohere with the letter and spirit of s 60(1) of the AMLA, which states that whether or not made by way of will or death-bed gift, no wakaf or nazar made after 1 July 1968 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.

[50] Counsel for the defendant seems to suggest – although he is a little ambivalent in this regard[9] – that the restriction under s 60 of the AMLA applies only to “nazar am” (a nazar intended wholly or in part for the benefit of the Muslim community generally or part thereof as opposed to an individual or individuals – see s 2 of the AMLA) and not to a private nazar. I must remark immediately that this submission is clearly erroneous.

[51] In my view, s 60 of the AMLA does not make any distinction between private and public nazar. The argument that the legislature, by enacting the said section, merely intended to impose a one-third restriction to nazar of a public nature and not to private nazar is plainly unsustainable. There is absolutely no juridical basis for the legislature to put in place a one-third limit only to a nazar of a public nature and exempt the private nazar from such a limit. In my opinion, the language of s 60 of AMLA leaves no room for ambiguity. It was put in place to reinforce a fundamental Sharia doctrine that a Muslim can only give away, either by way of will or death-bed gift, one-third of his estate as nazar or wakaf. The doctrine of death-sickness and death-bed gift (“mard al-maut” or “mardul-mawt” or “mar-zul maut”) is not in issue in this case. However, for the benefit of those who are not familiar with Muslim law, I should add that the doctrine of death-sickness or death-bed gift is concerned with the legal effect of transactions entered into by persons in their death-sickness (see Coulson, [7] supra, at p 259; Fyzee, [7] supra, at pp 363 and 364).

[52] It is also ironic that the defendant, through his solicitors, applied to Muis and caused its former President, Haji Maarof Salleh, to ratify the present private nazar or nuzriah on 5 April 2002 under s 60 of the AMLA. If the said section is applicable, as is being contended now, only to public nazar or nazar am, why were steps taken by the plaintiffs to ratify a private nazar? The attempted explanation by counsel that it was an exercise in error[10] is found by me to be weak and contradictory.

[53] Returning to the wording of the nuzriah segment in the will, although it reads that the “property has already been given”, it was not in fact given away at the time of execution, since the testator qualifies the foregoing with a stipulation that his “bequeath [sic]” shall come into force three days before death in case of illness and one hour before death, if sudden. Death, no doubt, is the only certainty. But can any one predict beforehand with any degree of certainty that the death of someone will occur on a particular date and hour? The fiction devised, with great respect to its authors, poses a puzzle of epic proportions that no mere mortal can ever hope to solve. In this regard, I should commend Tuan Syed Isa for his candidness when he conceded that whatever property a person intends to give away by way of nazar should be given away immediately without any postponement.

[54] There is one further point on this subject. In the course of his evidence, Tuan Syed Isa was asked whether invocation of the name of God was not an essential pre-requisite for any valid nazar. His attention in this respect was drawn to a passage at p 259 (n 5) of A Digest of Moohummudan Law (Smith Elder and Co, 1865) by Neil B E Baillie (one of the authoritative books commended in s 114 of the AMLA), which reads:

Baillie cites in this regard Futuwa Alumgeere (vol ii, p 92), a celebrated digest of Muslim law prepared by the command of the Emperor Aurung-zebe of India, during the Moghul period. Tuan Syed Isa’s reply, in this regard, was that a formal invocation of God’s name is not necessary to constitute a valid nazar or nuzriah by its maker and that the invocation is implicit in the very pronouncement of the word “nazar” or “nuzriah”. Although the views expressed by Baillie in his book as well as by Sproule ACJ in Re Fatimah do not seem to sit well with the comments made by Tuan Syed Isa, I am of the view that this is a matter eminently suitable for discussion by Muslim scholars at a later time and a ruling one way or the other is not crucial to the resolution of the dispute at hand.

[55] There are many troubling questions concerning the manner in which the will of the testator came to be certified, validated and subsequently ratified. Although no negative motive can be attributed to Tuan Syed Isa, his validation of the will on the day it was executed and his predisposition in favour of its construction should have effectively ruled him out from partaking in the deliberation of the Fatwa Committee that upheld its validity. It is an important principle of Western as well as Muslim jurisprudence that a person cannot be a judge in his own cause. Whilst I accept that Tuan Syed Isa has no interest to protect nor any axe to grind with any particular party, his chairing the Fatwa Committee and issuing a confirmatory ruling under his hand and seal later, in support of his earlier held view, indeed tend to present the process in a somewhat lesser light. In this connection, it is instructive to refer to a recent decision by the House of Lords in Davidson v Scottish Ministers [2004] UKHL 34, reported in The Times of 16 July 2004, where it was held that a risk of apparent bias was liable to arise where a judge who had participated in the drafting or promotion of a piece of legislation during the parliamentary process was called upon to rule judicially on the effect of the legislation.

[56] When questioned why he and the late Abdillah Al Jufri, a witness to the will, could not have refrained from partaking in the deliberations of the Fatwa Committee which was to decide on the validity of the nuzriah, the reply was that the five official members of the Committee which included Tuan Syed Isa as the chairman and the late Abdillah Al Jufri were required by the AMLA to act unanimously. This is clearly wrong because ss 32(4) and 32(5) of the AMLA specifically provide for a mechanism when there is no unanimity in the Fatwa Committee. Secondly, under s 31(6) of the AMLA, the chairman (ie, the Mufti) and two other members of the Fatwa Committee, one of whom shall not be a member of Muis, shall form a quorum. Thirdly, under s 31(5) of the AMLA, the President of Singapore may appoint another person recommended by Muis to be the chairman of the Fatwa Committee, in the absence of the Mufti. Given the flexibility, both Tuan Syed Isa and the late Abdillah could and should have excused themselves from partaking in the said deliberations. It should be remarked at this stage that counsel for the defendant has quite correctly conceded in his Submission (paras 78 and 79) that the plain reading of ss 32(4) and 31(6) of the AMLA do not quite support the explanation offered.

[57] Counsel for the defendant, whilst extolling the standing and the qualifications of Tuan Syed Isa, downplayed the expertise and experience of Dr Ismail. In my view, the critique is unjustified. The functions of expert witnesses were succinctly stated by Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 at 40, when he said:

[58] It is a settled principle that when a case falls within the general rule requiring proof of foreign law (akin to the situation here where a secular court is to delve into non-secular law) by an expert, the witness must be properly qualified (see Cross & Tapper on Evidence (8th Ed, 1995) at p 784). Having reviewed the curriculum vitae and the list of achievements of Dr Ismail, I have no hesitation in concluding that he is well qualified in Muslim law to give evidence before this court. I found his testimony, which was supported by a substantial body of learning, and the manner in which he answered the questions put to him, to be commendable and worthy of respect.

[59] It might be appropriate at this stage to deal with one other evidentiary aspect. The plaintiffs initially obtained an opinion from one Haji Md Nor Haji Md Din (“Haji Md Nor”), who is described as a counsel in Islamic Law for the States of Malacca, Negeri Sembilan and Johor, to support their case. The translation of Haji Md Nor’s opinion, from Malay to English, was in fact introduced in evidence by the defendant himself. Not only that, Tuan Syed Isa himself had made reference to the said opinion in his affidavit of 9 April 2002. Nevertheless, at the commencement of the hearing, counsel for the defendant took objection to its admission on the basis that the declarant was not available to give testimony and be cross-examined. I found the objection valid. However, for the sake of completeness and not otherwise, I ordered the said opinion to remain on record since the opinion had been referred to by the defendant’s expert Tuan Syed Isa in his opinion, with the proviso that counsel for the defendant could submit to the court at the appropriate stage as to the weight to be given, if at all, to the said opinion. Surprisingly, however, when the hearing was reaching its end, counsel for the defendant sought to introduce in evidence a purported opinion (just about a page and a half in length) from the Mufti of Egypt touching upon the nuzriah before this court. Counsel for the plaintiffs objected to its admission in evidence, on the same grounds as those of the defendant raised earlier in relation to Haji Md Nor’s opinion. Having been informed that the maker of the document would not be available to testify and be cross-examined, I upheld the objection and ruled that the said document was not to be admitted in evidence. In any event, the document tendered is more in the form of a pronouncement than an opinion and could not have assisted the court much without oral testimony and clarification.

[60] Besides the foregoing, the ruling issued by the Fatwa Committee does not also seem to reflect the true intention of the testator as to the division of his estate. There are three segments in the will. The testator has directed that each segment is to receive one-third of his estate. The testator’s wish to give three equal portions to the three named segments was confirmed by Tuan Syed Isa. However, realising belatedly after execution and validation of the will that such equal division would be in violation of the principles of Muslim law, the Fatwa Committee deemed it fit to apportion the estate as to nine parts to the nuzriah segment, six parts to the mosques and 12 parts to the legal heirs. For the purposes of calculation, the Committee notionally fixed the value of the entire estate to consist of a total of 27 units.

[61] Tuan Syed Isa explained that after taking away the first one-third of the 27 notional units for nuzriah (which according to him had been given away by the testator during his life), there remained 18 units for distribution in respect of the testator’s bequest. After allotting one-third of the said 18 units (ie six units) to the mosques, the rest (ie 12 units) accrued to the legal heirs.

[62] The question is: If equal division, as desired and directed by the testator, would be contrary to Islamic law, did it not occur to those who witnessed the will and who validated the will at the time of its execution that such a provision mandating equal distribution would not be in consonance with the principles of Muslim law? Why was such an advice not proffered to the testator at that point in time and the wasiat corrected? The only reasonable inference is that not much attention was paid to the wording of the will nor was the testator fully apprised of the true implications of Muslim law at the time when he executed the will, as opposed to the claim that there is a general expectation that Muis would make corrections to the will, if it is found to contain errors or to be improper.[11]

[63] In fact, when asked why there was any need to certify and validate the will containing the nuzriah, as had been done in this case, Tuan Syed Isa erroneously relied on s 5(2)(d) of the AMLA[12] which deals with the powers of Muis and has little to do with wills or nuzriah. Counsel for the defendant, whilst conceding this error on the part of Tuan Syed Isa, went on to explain that Tuan Syed Isa is not legally trained in civil law and is called to testify only on Muslim law. To say the least, I was somewhat perplexed by this submission, for the AMLA is an essential statutory adjunct of Muslim law in Singapore.

[64] Before concluding, I must say in all earnestness that I have the highest regard for Tuan Syed Isa. His sincerity, zeal and dedication to the office he holds in the service of the Muslim community in Singapore are worthy of praise. Similarly, I also hold the members of the Fatwa Committee in high esteem. However, reviewing all the learning referred to and the arguments presented, I am of the view that inasmuch as the property delineated for the purposes of the so-called nuzriah would not leave the control, possession and ownership of the testator until after his demise, the said nuzriah is no less than a bequest or testamentary disposition to convey an intended but invalid gift to the persons named (mostly legal heirs), and it plainly transgresses the restrictions imposed by Muslim law. The phraseology employed in the nuzriah segment of the will declaring that the property had already been given away to the proposed devisees three days or an hour before the death of the testator is a textual anachronism and does not convert a myth or fiction into reality, nor do the words referred to render the devise as that of a transaction completed during the testator’s life. Further, in my view, it is most likely that if the Fatwa Committee’s attention had been specifically drawn to the case of Re Fatimah or if the Committee had carefully considered the wider implications of the peculiar wording of the said nuzriah, it might well have paused and handed down a different advice.

[65] After reviewing all the arguments and having asked myself the Hamlet questions, my conclusion is that the portion ear-marked as nuzriah is void not only on account of its discordance with the principles of Muslim law relating to inheritance but also because of the said segment’s inherent uncertainty. Such uncertainty does not, however, render the mosques and legal heirs segments invalid. It follows then – as is being suggested by counsel for the defendant in para 138 of his Submission – that one-third of the entire estate of the testator shall go to the two mosques named and the remainder be distributed to the legal heirs according to their entitlement as stated in the inheritance certificate issued by the Syariah Court. All said, if the legal heirs wish to give effect to the general wishes of the testator, as stated in the will, it is a matter for the legal heirs to decide by unanimous consent and in this, let prudence be their guide.

[1]Page 640 of the NE

[2]Pages 632 to 635 of the NE

[3]Page 567 of the NE.

[4]Page 584 of the NE.

[5]Page 610 of the NE

[6]Page 619 of the NE.

[7]Para 138 of the Defendant’s Submission

[8]See p 578 to 579 of the NE.

[9]See para 127 of the Defendant’s Submission.

[10]Page 590 of the NE.

[11]See p 376 of the NE.

[12]Pages 377 to 378 of the NE.