Shafeeg bin Salim Talib and another v Fatimah bte Abud bin Talib and others

Chan Sek Keong CJ (delivering the judgment of the court):

[1] This is an appeal against the decision of the High Court judge (“the Judge”) in Originating Summons No 1749 of 2007 dismissing an application for a declaration that the estate of Obeidillah bin Salim bin Talib, deceased (“the Deceased”) was entitled to a half share in the property at 1 Farrer Road, #10-06, Tulip Garden, Singapore 268817 (the “Property”) (see Shafeeg bin Salim Talib and another (administrators of the estate of Obeidillah bin Salim bin Talib, deceased) v Fatimah bte Abud bin Talib and others [2009] 3 SLR(R) 439 (“GD”)).

[2] The Deceased died intestate on 5 May 2005, leaving a widow, two children, a sister and 10 nephews. The appellants, Shafeeg bin Salim Talib and Abdul Jalil bin Ahmad bin Talib (“the Appellants”), are the administrators of the estate of the Deceased (“the Estate”), having obtained letters of administration on 22 January 2007. The respondents are Fatimah bte Abud bin Talib (“1Respondent”), Ben Gibran and Ruth S Telyb (“2 and 3Respondents”). The 1Respondent is the widow of the Deceased and the 2 and 3Respondents are their children. The respondents are collectively referred to as “the Respondents” in this judgment.

[3] The Property was purchased by the Deceased and registered in his name and that of the 1 Respondent as joint tenants on 6 April 1998 under the provisions of the Land Titles Act (Cap 157, 1994 Rev Ed). The 1 Respondent claims that her interest in the Property was a gift from the Deceased and that he told her that he wanted her to have the Property upon his death. The Appellants do not admit this allegation, but at the same time they do not wish to dispute the allegation because (as their counsel has emphasised to us) they do not want to deprive her of a half share in the Property. However, as administrators of a Muslim estate, they consider that they have an obligation to uphold Muslim law and therefore to pursue the claim for a half share in the Property which, in their view, belonged to the Estate on the death of the Deceased and fell into or reverted to the Estate and which should be distributed in accordance with Muslim law under s 112(1) of the Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) (“the AMLA”). The Appellants have therefore confined their appeal to a claim for a half share in the Property (“the Half Share”).

[4] Both the Deceased and the 1 Respondent are Yemeni Arabs by origin and, at all material times, they were Muslims of the Shafi‘i school of Islam. The 2 and 3Respondents were also Muslims before their conversion to Christianity a few years before the death of the Deceased.

[5] On 12 May 2005, pursuant to an application of the Appellants, the Syariah Court issued an inheritance certificate (“the Inheritance Certificate”) under s 115 of the AMLA identifying 12 beneficiaries of the Estate. The 1Respondent was declared as having 10/40 shares in the Estate. The 2 and 3Respondents, not being Muslims at the date of death of the Deceased, were not entitled to any share in the Estate.

[6] On 5 July 2005, the 1Respondent filed a Notice of Death of the Deceased at the Singapore Land Registry and became registered as the sole proprietor of the Property. On 26 September 2005, the 1Respondent transferred the Property to herself and the 2 and 3Respondents as joint tenants by way of gift.

[7] On 22 March 2007, the Appellants’ solicitors wrote to the Majlis Ugama Islam Singapura (MUIS) to seek a fatwa that the gift of the Deceased’s share of the Property made by the 1Respondent is contrary to faraid (Muslim inheritance law). The letter further stated:

[8] In response to this letter, MUIS issued a fatwa on 17 July 2007 (“the 2007 Fatwa”) as follows:

[9] On 17 August 2007, the Appellants’ solicitors wrote to the 1 Respondent to demand that she restore the Half Share to the Estate. The 1Respondent refused, claiming that she became the sole owner of the Property upon the Deceased’s death under the right of survivorship. Consequently, the Appellants commenced the present action for a declaration that the Estate was entitled to the Half Share under Muslim law, relying on the 2007 Fatwa. The Respondents contested the Appellants’ application and challenged the validity of the 2007 Fatwa.

[10] The Appellants’ application was dismissed by the Judge who held as follows:

(a) section 112(1) of the AMLA was concerned with the distribution of the estate of a Muslim person according to Muslim law, and not with the determination of the assets that constitute the estate;

(b) the determination was to be made under civil law, ie, the common law, and not under Muslim law;

(c) since there was no specific legislation which prevented the operation of the right of survivorship in a joint tenancy of land held by Muslims, the Half Share passed to the 1 Respondent as the surviving joint tenant under the right of survivorship at common law and, therefore, it did not form part of the Estate; and

(d) the Deceased was not a Malay person and therefore the expression “Malay” as defined in s 112(3) of the AMLA (a point which the Appellants have not asserted), did not apply to him.

[11] In relation to the Appellants’ case based on the 2007 Fatwa, the Judge held that since the 2007 Fatwa was requested by the Appellants under s 32(1) of the AMLA, and not by the court under s 32(7), he was not bound by the 2007 Fatwa, following the decision in Saniah bte Ali and others v Abdullah bin Ali [1990] 1 SLR(R) 555 (“Saniah”) (see [30] below). The Judge also declined to seek a ruling from MUIS on the ground that the issue he had to decide, ie, whether the Half Share belonged to the Estate, was not a question of Muslim law and that s 32(7) would only be applicable where a question of Muslim law fell to be determined.

[12] The Appellants’ case on appeal is based on the following submissions:

(a) Muslim law governs the distribution of the Property as it was part of the Estate on the death of the Deceased as the common law right of survivorship is repugnant to the fundamental tenets of Muslim law.

(b) (b)Alternatively, to the extent that the Deceased purported to give to the 1Respondent the Half Share by way of joint ownership and with any accompanying right of survivorship effective upon his death, the gift is void as between two Muslims.

(c) Alternatively, the common law is modified, pursuant to s 3 of the Application of English Law Act (Cap 7A, 1994 Rev Ed) (“the AELA”), such that the right of survivorship is inapplicable to the Deceased as a Muslim.

(d) The Deceased was a Malay under s 112(3) of the AMLA, under which the (civil) court has the power to make a division of the Property in such proportions as the court thinks fit.

[13] The first three submissions, (a) to (c), overlap to some extent in the detailed arguments, but the underlying argument of all three is that a joint tenancy is repugnant to Muslim law in that it operates as a testamentary gift to the surviving tenant and specifically in the case of the 1Respondent, it would enhance her unalterable share as prescribed by Muslim law.

[14] The Respondents contest every one of these submissions and contend that the Judge was correct in his findings on the law.

[15] The Appellants’ arguments on submissions (a) to (c) listed in [12] above are as follows:

(a) The phrase “estate and effects” in s 112(1) of the AMLA refers to all the property of a deceased Muslim which he has power to dispose of: see AMM Murugappa Chetty v The Official Administrator as Administrator of the Estate of Yap Chok, Deceased[1932] 1 FMSLR 305 and Kirby-Smith v Parnell [1903] 1 Ch 483, and the definition of “net estate” in the Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed). Further, the word “effects” must mean more than simply “estate”: the holding in Saniahthat the phrase simply means “property” should not be followed. Furthermore, the construction in Saniah turned on the interpretation of the legislative intention of the Central Provident Fund Act (Cap 36, 1988 Rev Ed) (“CPF Act”) which ring-fenced funds in CPF Accounts from attachment by creditors and thereby excluded such funds from the estate of a deceased account holder.

(b) Since the Deceased was free to sever the joint tenancy of the Property at any time before his death, the Half Share was at all times part of his “estate and effects” under s 112(1) of the AMLA.

(c) The concept of joint tenancy as understood in English law is unknown in Muslim law, and Fatwa 20 and Fatwa 41 (see [66] below) posted on MUIS’s website support the case for the Appellants that on the death of a Muslim, his half share held as a joint tenant remains for distribution according to faraid.

(d) The right of a Muslim to make gifts inter vivos does not assist the Respondents as the operation of the right of survivorship does not equate to a gift of the Half Share inter vivos. Equally, the Muslim concept of hibah ruqba does not assist the Respondents because it is a concept under the Hanafi school of Islam which is inapplicable to the Deceased who belonged to the Shafi?i school of Islam.

(e) The operation of the right of survivorship also transgresses the well-established rule in faraid that a Muslim may not enhance the share of any of his legal heirs: see Mohamed Ismail bin Ibrahim and another v Mohammad Taha bin Ibrahim [2004] 4 SLR(R) 756 (“Mohamed Ismail”).

(f) The registration of the Property in the name of the Deceased and that of the 1 Respondent as joint tenants was not, or did not operate as, a gift inter vivos because while the Deceased was alive, both of them held the entire interest in the Property. If there was a gift, it was a gift made only or which took effect only upon the Deceased’s death – just like the gift in Mohamed Ismailwhich cannot be distinguished from the present case (see [49] below).

(g) Section 3(2) of the AELA provides that the common law is subject to modifications to suit the circumstances of Singapore and its inhabitants. The local culture of Muslims makes the common law of joint tenancy inapplicable to Muslims.

[16] The 1 Respondent’s replies are as follows:

(a) The Judge was correct in holding that whether the Property belonged to the Estate is not a question of Muslim law, but of civil law (see the decision of LP Thean J in Saniah). Further, although the phrase “estate and effects” is not defined, the Inheritance (Family Provision) Act has defined the expression “net estate” to mean “all the property of which a deceased person had power to dispose by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities and estate duty payable out of his estate on his death”.

(b) (b)The title of the 1 Respondent to the Property was conclusive under s 36(2) of the Land Titles Act (Cap 157, 2004 Rev Ed) (“the LTA”) as the Registrar of Titles had issued a Subsidiary Strata Certificate of Title to the Deceased and the 1Respondent as registered proprietors of the Property as joint tenants; by virtue of such joint tenancy, the 1Respondent owned an absolute interest in the entire property co-extensively with the Deceased. Upon the death of the Deceased, his interest was completely extinguished, leaving the 1 Respondent as the absolute owner of the Property (see E H Burn & James Cartwright, Cheshire & Burn’s Modern Law of Real Property (Oxford University Press, 17th Ed, 2006) (“Cheshire & Burn”) at p 455).

(c) Even if Muslim law were to apply to joint tenancies, the Property would not fall into the Estate for the following reasons:

(i) Muslims may make gifts inter vivos.

(ii) The right of survivorship is not repugnant to Muslim law (see Mahomed Jusab Abdulla v Fatmabai Jusab Abdulla AIR (35) 1948 Bombay 53 (“Mahomed Jusab Abdulla”)). Muslim law has a concept of joint tenancy similar but not exactly the same as a joint tenancy at common law (see the expert evidence on the Muslim law concept of a gift (Musha’a and hibah ruqba in Shafi?i law) given by the Respondent’s expert witness, Ian David Edge, Lecturer in Law and Director of the Centre of Islamic and Middle Eastern Law, School of Oriental and African Studies, University of London, UK).

(iii) Fatwa 20 contradicts the 2007 Fatwa issued in the present case.

(iv) The creation of a joint tenancy cannot be equated to the making of a will and, accordingly, the decision of Mohamed Ismail has no application to the present case.

[17] The 2 and 3Respondents support the arguments of the 1Respondent. Apart from also relying on the definition of “net estate” in the Inheritance (Family Provision) Act, they contend as follows:

(a) The property of a Muslim may be excluded from the estate of a Muslim by operation of statute (see Saniah and Re Man bin Mihat, Deceased [1965] 2 MLJ 1 (“Re Man bin Mihat, Decd”) where Suffian J held that a Muslim could create a trust of the benefit of an insurance policy in favour of his wife under s 23 of the Civil Law Ordinance, 1956 (Federation of Malaya)), or by operation of the common law.

(b) Local circumstances do not require the common law on joint tenancy to be modified as, since the founding of Singapore, Muslim couples have had the choice, available to all property owners, to hold the property as joint tenants with the right of survivorship or to hold as tenants in common.

[18] It can be seen from the summary of the arguments of the parties that they raise issues not only of the application of the general law (ie, the common law and legislation) to immovable property in Singapore owned by Muslims but also the extent to which Muslim law applies to determine what a deceased Muslim’s estate and effects are under s 112(1) of the AMLA. In order to understand the intricate relationship between the common law and legislation (and in particular the legislation on the ownership and transfer of registered land in Singapore) and the law of succession and testamentary gifts under Muslim law, it is necessary that we first set out our understanding of the position of Muslims in Singapore under the general law.

[19] The island of Singapore was part of the territorial domain of the Johor Sultanate before 1824 when its sovereignty was ceded to the British. As a British possession, its inhabitants were subject to English principles of law. However, it was not until 1826 when the Second Charter of Justice (“the Second Charter”) introduced the entire corpus of English law (common law, equity and English statutes of general application) to Singapore so far as it was applicable to the circumstances of Singapore and its inhabitants and subject to such modifications as those circumstances might require (as the courts later held its effect to be such). The consequence of this development was that the general law was applicable to all except where the customs and personal laws of the inhabitants required that the general law be modified to suit their circumstances. For example, the common law has been modified or held inapplicable to the Chinese and Malay communities: see L A Sheridan, Malaya and Singapore The Borneo Territories (Stevens & Sons Limited, 1961) at pp 371–380 and the cases cited therein, and Tan Sook Yee, Tang Hang Wu & Kelvin F K Low, Tan Sook Yee’s Principles of Singapore Land Law (LexisNexis, 3rd Ed, 2009) at paras 1.4 and 2.7.

[20] Over the years, the customs and personal laws of the various communities which were once accepted as modifications of the general law have been abrogated and replaced by legislation, except for certain areas of Muslim law (mainly in marriage, divorce, custody of children, maintenance of wives and children, succession to property and distribution of Muslim estates) which have been accorded legislative recognition by and in the AMLA. The legal regime under the Second Charter now subsists under s 3 of the AELA, s 3(2) of which provides that the common law shall continue to be in force in Singapore, as provided in subsection (1), so far as it is applicable to the circumstances of Singapore and its inhabitants and subject to such modifications as those circumstances may require. Save for these matters, the general law and legislation apply to the general population, including Muslims, except where legislation specifically exempts Muslims from its operation. Examples of such legislation are the Intestate Succession Act, the Inheritance (Family Provision) Act, the Legitimacy Act and the Women’s Charter.

[21] In relation to ownership of real (immovable) property and personal (movable) property, and interests in rights in such property and things, the general law applies to determine ownership, tenures and legal rights in them. As far as land is concerned, the common law applies generally subject to ownership and tenures of land recognised by, or modified by, or subject to, overriding legislation such as the LTA, the Land Titles (Strata) Act, the Registration of Deeds Act, the State Lands Act and the Residential Property Act. The subject matter of the dispute in this appeal, the Half Share (or the Property), is subject to the common law and the LTA in so far as it preserves the common law on the interests of registered proprietors in registered land.

[22] However, although title to land in Singapore is determined by the common law and the applicable statutes (in the case of common law land) and the LTA (in the case of registered land, including strata land), Muslims who own land are also subject to their personal law, ie, Muslim law, in relation to their legal capacity as Muslims to deal with it by will.

[23] It is common ground that, under Muslim law, a Muslim is subject to two main restrictions in dealing with property by will. First, he may not will away more than one-third of his estate. Second, he may not increase or reduce the share of any of his legal heirs determined according to Muslim law. The restrictions against testamentary dispositions under Muslim law have been stated in many Singapore and Malaysian cases such as Re Fatimah binte Mohamed bin Ali Al Tway, Deceased [1933] 1 MLJ 211 (“Re Fatimah”), Abdul Jabbar v M Mohamed Abubacker; Re The Will of M Mohamed Haniffa, Deceased [1940] MLJ 286 (which involved a Hanafi, but the applicable principles are nonetheless the same in relation to bequests) and Re Estate of Siti bte Naydeen [1983–1984] SLR(R) 682. These cases were referred to in Mohamed Ismail where MPH Rubin J said, at [7], as follows:

[24] In an earlier Federated Malay States case, viz, Shaik Abdul Latif v Shaik Elias Bux [1915] 1 FMSLR 204, the appeal court held (as stated in the headnote of the report):

Similarly, in a later Malaysian case, viz, Re Man bin Mihat, Decd, Suffian J not only described a Muslim’s testamentary restrictions in a similar fashion, he also stated clearly the complete freedom of a Muslim to dispose of his property inter vivos, even at the expense of his legal heirs under Muslim law. He said (at 3):

[25] It is clear from the judgment of Suffian J that there is no restriction against a Muslim giving away all his property inter vivos during his lifetime to any person he wishes, and thereby depriving his legal heirs under Muslim law of any estate which they can inherit. This brings us to the critical issue in the present case, which is whether the Deceased had made an inter vivos disposition with respect to the Property when he purchased it and had it registered in his own name and that of the 1 Respondent to hold as joint tenants.

[26] The Judge decided that this issue did not raise a question of Muslim law but one of construction of the section to be determined by the court according to the general law. Section 112 of the AMLA provides as follows:

[27] We agree with the Judge’s view that the meaning of the phrase “estate and effects” of the Deceased is a matter of statutory construction under the general law but, in our view, this does not mean that the court does not have to take into account Muslim law. In our view, the construction of that section involves a consideration of Muslim law on the effect of any testamentary or inter vivos disposition of property made by a deceased Muslim. Such disposition may have no effect for lack of legal capacity or be void under Muslim law and, if so, such property would fall into his estate for distribution under that section. The question as to what assets constitute the estate and effects of a deceased Muslim has first to be determined according to his personal law, where applicable to the circumstances, and not according to the common law.

[28] In this respect, the Second Charter and its successor statute, the AELA, permit the common law to be modified to suit local circumstances (see [20] above), but do not permit a statute that is of general application, eg, the Penal Code, to be modified in its application to the circumstances of local inhabitants, for the rather obvious reason that otherwise the statute would have provided for such modifications as are necessary. The Judge has described a list of such statutes which are expressed to exclude Muslims in its general or specific application (in the context of Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”)), viz, s 27 of the Civil Law Act (Cap 43, 1999 Rev Ed) (on bona vacantia), the Legitimacy Act (on Muslim marriages), the Intestate Succession Act (on succession under Muslim law), s 3 of the Wills Act (Cap 352, 1996 Rev Ed) (power to dispose of property by will not applicable to Muslims), the Oaths and Declarations Act (Muslims may make affirmations) and the Women’s Charter (on marriage, divorce, and ancillary matters). Absent such exceptions, legislation must prevail over personal law, such as Muslim law, as even common law prevails over personal law where the circumstances do not require the common law to be modified in favour of personal law. By way of illustration, we refer to two decisions where the courts have held that the relevant statute had the effect of overriding Muslim law which would otherwise have been applicable to the disposition in question of the personal property of a Muslim.

[29] In Re Man bin Mihat, Decd, the deceased had taken out a life assurance policy for the benefit of his wife under s 23 of the Civil Law Ordinance, 1956 (Federation of Malaya) which provided that such a policy would create a trust in favour of her and that the insurance moneys payable out of such policy would not form part the estate of the insured. The legislative policy of s 23 was two-fold: first, it vested the beneficial interest in the policy in the wife immediately for her protection. Second, since it provided that the proceeds of the insurance policy would not form part of the estate of the deceased, estate duty (then) payable on those proceeds would be reduced. But, clearly, s 23 effected a disposal of the interest of the deceased before his death to take effect upon his death. Hence, upon the death of the deceased, the proceeds of the insurance policy were not part of his estate subject to the restrictions of Muslim law upon his testamentary capacity. Suffian J held that the legislative vesting had the effect of making an immediate inter vivos gift to the wife, even though she could only enjoy it upon the death of her husband.

[30] In Saniah, the deceased was the holder of a CPF Account with the CPF Board. He nominated his stepsister, the plaintiff, as the sole nominee for the moneys in his CPF Account. He died intestate. The defendant obtained from the Syariah Court an inheritance certificate declaring that he, as the deceased’s lawful brother, was entitled to his entire estate. The question arose as to whether the moneys in the deceased’s CPF Account belonged to his estate or to the plaintiff. Thean J held that on the proper construction of s 23(3) read with s 24(1) of the CPF Act, a trust was created in favour of the person or persons nominated to receive the deceased member’s moneys in the CPF Account. This being the legislative scheme, it was obvious that the statutory trust had to prevail over the application of Muslim law to that fund. This was why Thean J also held that there was no conflict between the CPF Act and the AMLA, and that even if there was such a conflict, the CPF Act would prevail.

[31] With respect to the fatwa issued by MUIS that the moneys in the CPF Account belonged to the estate on the death of the deceased account holder and had to be divided in accordance to faraid, Thean J decided, at [17], correctly in our view, that:

[32] The Property is an apartment at Tulip Garden at Farrer Road and is registered land subject to the LTA as well as the Land Titles (Strata) Act. We might point out that even if the Property was common law land, the general law would be applicable unless local conditions require that it be not applied to land owned by Muslims. However, this is not the law in Singapore. In Re Fatimah, a Singapore case concerning a purported nasr (ie, a nuzriah) of two houses in Singapore, Sproule Ag CJ said at 212 that as “the gift is of immoveables in Singapore … our own system of law [and not Muslim law] is prima facie applicable”.

[33] Under the LTA, a registered proprietor is the absolute owner of the land subject to any adverse interests that are notified on the land title folio. It is not disputed that the Property was not subject to any notification at the date of death of the Deceased. When a registered proprietor dies, his interest in the land is transmitted to his personal representatives. Thus, s 107(1) of the LTA provides as follows:

Similarly, s 110 provides for the transmission of registered land on the bankruptcy of the registered owner.

[34] However, there is no provision in the LTA that expressly refers to transmission of land held in joint tenancy. Instead, s 114 provides as follows:

[35] In our view, there is a sound explanation for the structure of s 114 in omitting any reference to transmission of land held in joint tenancy upon the death of a joint tenant. The reason is that there is no transmission in law. And the reason why there is no transmission is that the interest of a deceased joint tenant simply disappears into thin air. Nothing “passes” or is transmitted to the surviving tenant. In the present case, the Judge referred to the following excerpt from Robert Megarry and William Wade, The Law of Real Property (Sweet and Maxwell, 7th Ed, 2008) at paras 13–002 and 13–003:

[36] The loose use of the word “passes” in this passage gave the Appellants the opportunity to argue that since there is a passing of property on death by reason of the right of survivorship, that right is contrary to Muslim law because it has the consequence of enlarging the share of the 1 Respondent in the Estate as a legal heir of the Deceased. The Appellants also referred to several decisions in which the courts have said that upon the death of a joint tenant, the whole property passes to the survivor: see Fowler v Barron [2008] 2 FLR 831 at [16], Stack v Dowden [2006] 1 FLR 254 at [55] and Lumley v Robinson [2002] EWCA Civ 94 at [36]. On the basis of these statements, the Appellants have argued that because the whole Property passes to the 1 Respondent, the right of survivorship is contrary to Muslim law.

[37] Based on the same reasoning, the Appellants also argued that what was apparently an inter vivos disposition of the Property in favour of the 1Respondent was effectively a testamentary disposition and as such it was contrary to Muslim law. Reliance was placed on the decision in Mohamed Ismail for this proposition.

[38] We are unable to accept any of the Appellants’ arguments on this issue for the reasons set out below.

[39] The first reason is that in a joint tenancy no interest in the joint property passes to the survivor upon the death of the other joint tenant. Although some English courts might have used the word “passes” to describe the legal effect of the right of survivorship, the word was used as a figure of speech since under English law it would make no difference how the jus accrescendi was described. The joint tenancy is a peculiar institution of English land law which has been received as part of the law of Singapore since 1826 under the Second Charter and which the courts have not found necessary to modify to suit the circumstances of the local inhabitants. English land law was a law of general application which was entirely suitable for local conditions as no functional system of law practically existed in Singapore at the material time.

[40] The true doctrine is set out in Wayne Morrison ed, William Blackstone’s Commentaries on the Laws of England vol II (Cavendish Publishing Limited, 2001) at para 184, where the chronicler of the common law said:

[41] In Cheshire and Burn, the authors state succinctly at p 455 that “if one joint tenant dies without having obtained a separate share in his lifetime, his interest is extinguished and accrues to the surviving tenants”. Similarly, Kevin Gray & Susan Francis Gray, Elements of Land Law (Oxford University Press, 5th Ed, 2008) (“Gray”) states as follows at paras 7.4.9–7.4.11:

[42] Finally, it may be pertinent to note that the draftsman of the original Land Titles Ordinance, John Baalman, said in his commentary, The Singapore Torrens System (Being A Commentary on the Land Titles Ordinance, 1956 of the State of Singapore) (The Government of the State of Singapore, 1961) at pp 191–192, on s 93 (now s 114 of the current LTA) on joint tenancies of registered land:

[43] It is therefore clear from these authorities that legally no interest in the Property passed to the 1 Respondent upon the Deceased’s death. Whatever interest the Deceased had in the Property simply ceased to exist, and the 1 Respondent became the sole absolute owner because she would no longer be subject to the right of survivorship. As Baalman has said, s 114 has given statutory recognition to this legal effect by providing in subsection (1) that the surviving proprietor “who has become entitled to that land consequent upon that death may apply in the approved form to have the death notified in the land-register”, and subsection (2) refers to the interest of the deceased proprietor having “determined” upon death.

[44] In our view, it is therefore not arguable that the legal result of the operation of the right of survivorship under s 114 of the LTA can be modified to suit the circumstances of Muslims. If the right of survivorship in a joint tenancy of registered land is contrary to Muslim law, then the statute must prevail over personal law because that must have been the legislative intent. Otherwise, the LTA would have created an exception in favour of land owned by Muslims. Where legislation is enacted to deal specifically with a subject matter, there is no room for modification to suit local circumstances pursuant to the AELA in the absence of an express direction to the contrary. This is the fatal flaw in the Appellants’ case. Because rights of ownership and possession of land in Singapore are now primarily governed by legislation over a common law foundation, there is no room for modification permitted by the AELA. Any exemption of any class of people or community from the operation of these laws can only be effected expressly or by necessary implication. All general laws have the same effect. Indeed, s 3(1) of the LTA goes even further by providing that except as provided by the LTA itself all laws and regulations and all practices relating to estates and interests in land operative at 1 March 1994 are repealed if they are inconsistent with the LTA in their application to registered land. Section 112 of the AMLA is an example of a legislative modification of the general law of succession applicable to all other persons to suit the circumstances of Muslims. But it does not apply to the determination of rights and interests in land in Singapore. Hence, if a Muslim is not prohibited by his personal law from making an inter vivos disposition of land through a joint tenancy under the common law or the LTA, that disposition will take effect as such. If there is any repugnancy, the LTA will prevail over Muslim law in this regard, just as the CPF Act and s 23 of the Civil Law Ordinance, 1956 (Federation of Malaya) prevailed over Muslim law in Saniah and in Re Man bin Mihat, Decd, respectively.

[45] For these reasons, we hold that the interest of the Deceased in the Property ceased to exist or was extinguished upon his death and, accordingly, his estate and effects distributable under s 112(1) of the AMLA in accordance with Muslim law did not include the Property or the Half Share upon the death of the Deceased.

[46] The above conclusion is sufficient to dispose of this appeal. However, for completeness, we should deal with the other arguments of the Appellants, including the argument that the right of survivorship in a joint tenancy of property is repugnant to Muslim law. If this is indeed so, such a conclusion is relevant to the right of survivorship in a joint tenancy of personal property which is a pure common law right and, therefore, the argument may be made that the common law should be modified to allow Muslim law to take precedence. Moneys held in joint accounts in a bank are an example of personal property where such an issue has yet to be conclusively decided by the courts.

[47] In Malaysia, any issue relating to whether a Muslim has made a valid inter vivos gift or hibah is within the exclusive jurisdiction of the syariah courts, even though that issue may arise in the course of administration of a Muslim estate under the civil law: see Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2006] 4 MLJ 705, affirmed by the Federal Court in [2007] 5 MLJ 101 (where the dispute was whether moneys in bank accounts held jointly by the deceased and the appellant (who was the deceased’s third wife) belonged to the widow or the estate of the deceased). However, in Singapore this kind of issue is within the jurisdiction of the civil courts, applying Muslim law to determine the issue, as in the present case.

[48] In this connection, the Appellants have put forward an original argument that even if the Deceased were permitted by Muslim law to make an inter vivos gift of the Property by way of joint tenancy, both the Deceased and the 1Respondent would have been holding the entire interest in the Property under the law. Hence, during his lifetime, he gave away nothing to the 1Respondent. As the 1Respondent became the beneficial owner of the entire interest in the Property only upon the death of the Deceased, the gift of the entire interest took effect only at that point in time. Hence, it was a testamentary gift – just like the gift in Mohamed Ismailwhich, it was argued, cannot be distinguished from the present case.

[49] We cannot accept this argument. It ignores altogether the legal effect of the joint tenancy vis-à-vis the 1 Respondent. By holding the Property as joint tenants with the 1Respondent, the gift from the Deceased to the 1Respondent of the entire Property was completed. The 1Respondent obtained an immediate interest in the entire Property, entitling her to the full rights of possession and enjoyment during her lifetime. Her interest in the entire Property would extinguish only if she passes away before the Deceased. The decision in Mohamed Ismailis distinguishable on a number of grounds. First, that case was not concerned with a gift inter vivos of immovable property but with a purported gift by will of a one-third share of the deceased’s estate by way of nuzriah (ie, an expressed vow to do any act or to dedicate property for any purpose allowed by Muslim law). Part of the gift was in favour of some of his legal heirs. The will stated that the nuzriah would come into effect “three days before [the deceased’s] death if it is due to illness, or one hour before [his] death if it is sudden”. The judge said at [64]:

Accordingly, the judge held that the nuzriah was in substance an expression of preference to give a portion of his estate to some of his children and grandchildren which was contrary to Muslim law. In Mohamed Ismail, the deceased retained full control, ownership and possession of the property up to the date of his death.

[50] The Appellants additionally argue that the concept of a joint tenancy at common law is repugnant to Muslim law. But the only authoritative statements they have produced are some juristic statements that the concept is unknown to Muslim law. However, the Respondents have produced other equally authoritative writings of Muslim jurists that the concept of a right of survivorship exists in Muslim law, although with a slight difference in the nature of ownership rights of the donee during his lifetime. The equivalent concept of joint ownership in Muslim law is known as hibah ruqba. A hibah in Muslim law is described in Faiz Badruddin Tyabji, Muslim Law, The Personal Laws of Muslims in India and Pakistan (N M Tripathi Private Limited, 4th Ed, 1968) (“Tyabji”) at p 300 as follows:

[51] In Tyabji, the author defined a ruqba at p 471 as follows:

[52] Similarly, in Nawawi, Minhaj et Talibin, A Manual of Muhammadan Law according to the School of Shafi‘i (Thacker, Spink & Co, 1914), the author described the nature of a hibah ruqba (at p 234) as follows:

[53] However, the validity of a hibah ruqba in Muslim law is not universally accepted by Islamic jurists. In Asaf A A Fyzee, Outlines of Muhammadan Law (Oxford University Press, 3rd Ed, 1964) (“Fyzee”), the author stated the following proposition at p 213:

[54] These juristic statements show that although there is a conceptual difference between a hibah ruqba and a joint tenancy at common law (in that at common law the donor retains his entire interest in the property which cannot be the subject of a valid gift by him on his death), the concept, if not the principle, of survivorship is clearly present in a hibah ruqba.

[55] Nevertheless, it would appear that in Fyzee at p 218, the author was of the view that a hibah ruqba could be created by appropriate means:

[56] The above passage from Fyzee refers to a Bombay case where the High Court held that Muslim law as applied in India did not prohibit the creation of a joint tenancy of immovable property by Muslims. In Mahomed Jusab Abdulla, the deceased had in her lifetime jointly purchased a property with the defendant, and the conveyance stated that they were to hold the property as “joint tenants and not as tenants in common”. The plaintiff was the deceased’s brother and was one of her rightful heirs. He claimed that as her heir, he was entitled to his share in her interest in the property. Chagla J held as follows (at [3]–[8]):

[57] Mahomed Jusab Abdulla has recently been followed in Azizunissa Abdurrahman Kadri v Jamila Abdul Hussein Sheikh (deceased by her LRs) & Ors 2007 (NOC) 2238 (Bom). There, Anoop V Mohta J rejected the plaintiff’s argument that it was not permissible under Muslim law to hold property as joint tenants with the benefit of survivorship. Such interest in the property, he held, was not opposed to or repugnant to Muslim law.

[58] To put these two decisions in the context of the present case, India also has legislation that gives effect to personal law as against the general law. Under the Muslim Personal Law (Shariat) Application Act, 1937 (Act No 26 of 1937), all questions regarding intestate succession of Muslims are governed by Muslim personal laws:

[59] It should be noted that in Mahomed Jusab Abdulla, the property was jointly purchased, and therefore neither joint tenant made any “gift” of any interest in the property to the other because each had paid for his and her share. In the present case, the Deceased paid the purchase price of the Property and made a gift of the entire property to 1 Respondent by registering her as a joint tenant with him. Nonetheless, Chagla J did not make a distinction between these two types of transactions, nor have the opinions of the authoritative Muslim jurists.

[60] In the present case, the issue we have to decide concerns only real property and not personal property. We have set out the opinions of the different schools of Islam on whether a hibah ruqba of personal property, eg, moneys in a joint account, is valid under Muslim law. This issue is not before us and we therefore express no opinion on it.

[61] We now turn to the evidentiary status of a fatwa issued by the Legal Committee of MUIS, whether on its own motion or at the request of any Muslim or of the court.

[62] Section 32 of the AMLA provides for the issue and publication of fatwas given by the Legal Committee as constituted under s 31 and also by MUIS. Section 32 provides:

[63] A fatwa is a ruling on a religious issue in Islam given to any Muslim who asks for it. Its authority as advice or precept depends on the moral authority and standing of the religious leader giving the fatwa. But a fatwa issued on an issue of law is a scholarly opinion on what the Islamic law is on that issue. No fatwa is binding on the party seeking it or to whom it is directed, unlike a ruling of a judge on an issue in a case. For this reason, a fatwa stands in the same position as an expert opinion on any matter before the court and may be accepted in evidence on any issue of Muslim law on the same basis as an expert opinion on the civil law. The authority of that opinion must depend on the authority and learning of the person or institution giving the fatwa. Section 32(7) of the AMLA merely provides that the Legal Committee shall give an opinion on an issue of Muslim law if requested by the court. It does not say that such an opinion is binding on the court if requested by the court.

[64] In the present case, the Judge has observed that the 2007 Fatwa was issued by the Legal Committee of MUIS under s 32(1) at the request of the Appellants and not under s 32(7) at the request of the court. The implication of that observation is that it may not be reliable as it would depend on what the facts are or how the question of law is put to MUIS. A similar stance was taken by Thean J in Saniah and MPH Rubin J in Mohamed Ismail where the fatwas were also obtained by one of the parties to the action and not by the court.

[65] A fatwa obtained by a private party for the purpose of court proceedings will not ordinarily have the same standing as a fatwa obtained by the court for various reasons. First, there is a likelihood that the party may frame a question based on assumed or hypothetical facts. The 2007 Fatwa given in the present case is a good example. The question (see [7] above) was misleading because it assumed the very question to be decided, ie, whether there was any half share in the Property that was still vested in the Deceased which could pass to the Estate. The 2007 Fatwa was given on that assumption, and it went further to provide a question which the Appellants had not asked, ie, whether the Property was harta sepencarian. The 2007 Fatwa ruled that the Property “is considered as a matrimonial property as the deceased and his wife had jointly owned it”, which is irrelevant as it had not been established that the Deceased was a Malay for the purposes of s 112(3) of the AMLA. Furthermore, the 2007 Fatwa might also be inconsistent with the power of the court under s 112(3) of the AMLA which provides that it is the (civil) court (and not MUIS) which is empowered to make a division of the harta sepencarian in such proportions as the court thinks fit.

[66] Counsel for both parties have referred to two fatwas: Nos 20 and 41, which were posted on the website of MUIS. They were as follows:

[67] It can be seen that what is stated in Fatwa 20 corresponds to the position of a joint tenancy at common law. On the other hand, Fatwa 41 implies that in Muslim law, a joint tenancy connotes a 50/50 ownership of the property (which, as will be seen, may not be in accord with the views of the Islamic jurists on hibah ruqba, but Fatwa 41 is no longer relevant as it has been replaced by another fatwa – see [68] below). We note, at this point, that Fatwa 41 has recently been renumbered as “question No. 20” under “Finance Matters” in the “Religious Queries” section of the “Frequently-Asked-Questions” segment of the MUIS website. With respect to Fatwa 20 (quoted in [66] above), the Respondents have argued that it is inconsistent with the 2007 Fatwa which states that the Property is harta sepencarian and, therefore, half of it is considered as inheritance and should be distributed in accordance with faraid. It is not necessary for us to decide this issue. As mentioned earlier, the 2007 Fatwa was given in response to a question from the Appellants’ counsel that was framed on the erroneous assumption that half the Property devolved to the beneficiaries named in the Inheritance Certificate. However, what we must emphasise is that even if Muslim law does not recognise a joint tenancy, it would have no effect on the joint tenancy of the Property in the present case as the applicable law is the general law (including the relevant legislation affecting the ownership of land) (see [21] above). In any event, the application of Muslim law under s 112(1) of the AMLA requires the court to apply Muslim law subject to Malay custom. Obviously, the 2007 Fatwa was given on the assumption that the Deceased was a Malay as a division of the harta sepencarian is applicable only to a Malay dying intestate by virtue of s 112(3) of the AMLA.

[68] In this connection, we should mention that the English translation (by an interpreter of the Supreme Court) of the latest fatwa posted on the MUIS website, <http://www.muis.gov.sg/cms/oomweb/fatwa.aspx?id=13526&terms =joint+tenancy> (accessed on 17 March 2010), reads as follows:

[69] This updated fatwa suggests that if Muslim joint owners of property fail to make any arrangement to deal with the joint property, the surviving tenant is only entitled to 50% of the property. If this fatwa is intended to apply to immovable property in Singapore, it is inconsistent with the decision of the High Court and our decision in the present case. We would emphasise that in the case of immovable property, the right of survivorship applies on the death of a joint tenant and the surviving tenant will become the sole owner of the property. The general law will prevail against Muslim law on this issue. The only way to destroy the right of survivorship is to sever the joint tenancy. We hope that MUIS will take note of our observation.

[70] However, the fatwa recognises that the concept of joint tenancy is compatible with a hibah ruqba in Muslim law. This raises the question whether in the case of a joint tenancy of personal property, such as joint bank accounts, the common law on joint tenancy should be modified to suit the circumstances of Muslims. We should however mention that if a Muslim married couple were to open a joint bank account, their relationship with the bank will be governed by the contractual documents applicable to the operation of that account, ie, the general law and not Muslim law. Whether their legal relationship inter se is governed by Muslim law so as to affect the ownership of the account on the death of one of them for the purposes of s 112 of the AMLA is a question that will have to be decided at another time in another case.

[71] The Appellants further submitted that s 111(1) of the AMLA should be construed beyond its express words such that it prohibits a gift of the Property by the device of a joint tenancy. In other words, an inter vivos gift or transaction of land in favour of Muslims to hold as joint tenants should be regarded as a disposal of property by will because the right of survivorship takes effect only on the death of a joint tenant. It is as if the deceased by creating a joint tenancy has made use of the common law to “will” his interest in the property to the surviving joint tenant. This argument is wrong for three reasons: first, it is based on the (erroneous) assumption that the donee does not have a vested interest in the property unless the donor dies first. Second, s 111(1) applies only to a disposal of property by will, and not to inter vivos dispositions. Finally, s 111(2)(a) of the AMLA provides that nothing in that section shall affect the provisions of the Wills Act, other than s 3 thereof. A will executed by a Muslim therefore has to comply with the formalities prescribed by s 6 of the Wills Act which requires a will to be in writing and executed in accordance with s 6(2). Expanding the applicability of s 111(1) of the AMLA to the right of survivorship would negate the formal requirements of a will. We reject this argument.

[72] The final argument of the Appellants is that the Deceased was a Malay person under s 112(3) of the AMLA which provides as follows:

The Appellants did not advance this argument before the Judge. Perhaps they did not wish to rely on it as it might weaken their argument based on the 2007 Fatwa. The expression “a Malay” is not defined in the AMLA. However, the Appellants referred to Art 39A of the Constitution to submit that even though the Deceased was not an ethnic Malay person, s 112(3) of the AMLA applied on the basis that the Deceased, having been born and raised in Singapore, had arguably been assimilated into the majority Malay-Muslim community. The Appellants further relied on the 2007 Fatwa which stated that the Property was matrimonial property (harta sepencarian).

[73] Article 39A of the Constitution is concerned with providing minority representation in Parliament. Article 39A(4) states:

This definition of a “Malay” is repeated in s 27A(8) of the Parliamentary Elections Act (Cap 218, 2007 Rev Ed) for the purpose of giving effect to Art 39A. It may also be noted that Art 152(2) of the Constitution provides that the Government has to “recognise the special position of the Malays, who are the indigenous people of Singapore”. This Article recognises that there is a community of people who can be called Malays, whether they are of the Malay race or otherwise. In contrast, the Malaysian Federal Constitution also defines “Malay” without reference to “race” as “a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and was before Merdeka Day born in the Federation or in Singapore …”.

[74] Since both Art 39A and s 27A(8) of the Parliamentary Elections Act use the expression “Malay race”, a court may have to interpret the meaning of this expression in an appropriate case arising under these two provisions. The present case arises under s 112(3) of the AMLA which uses the word “Malay” but does not define who a Malay is (see the interesting thesis of Professor Anthony Milner on who the Malays are in his book, “The Malays” (Wiley-Blackwell, 2008)). It will certainly include a person who is of the Malay race, however defined, but it is not necessary for us to enter into this issue because the Appellants do not argue that the Deceased was a person of the Malay race. He assuredly was not, as he was of Turkish-Yemeni Arab descent. The Appellants’ argument is that the Deceased was or should be treated as a “person belonging to the Malay community” as he was born in Singapore and a lifelong practising Muslim, and therefore qualified as a Malay under s 112(3) of the AMLA.

[75] In our view, this argument also fails because s 112(3) of the AMLA makes reference to the concept of harta sepencarian which is derived from Malay adat, ie, the law and customs of an ethnic group of people inhabiting the Malay Peninsula, the Riau Islands and parts of Sumatra and Kalimantan who call themselves Malays and who follow Malay customs (see Zainoon v Mohamed Zain [1981] 2 MLJ 111 (a Singapore Syariah Court case) and the Malaysian cases of Hujah Lijah Binti Jamal v Fatimah Bin Mat Diah [1950] 1 MLJ 63 and Roberts alias Kamarulzaman v Ummi Kalthom [1966] 1 MLJ 163 at 165). Thus, a Malay for the purposes of s 112(3) must at least follow some such customs. In the present case, it is not necessary for us to investigate what customs or cultural practices qualify a person to be a Malay under s 112(3) of the AMLA because the Appellants have adduced no evidence that the Deceased considered himself a member of the Malay community and was generally accepted by that community as a Malay. In the circumstances, s 112(3) does not apply to the Deceased.