Case Summaries

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

18 March 2010

Media Summary

Shafeeg bin Salim Talib and anor v Fatimah bte Abud bin Talib and ors
Civil Appeal No 70 of 2009

Decision of the Court of Appeal (delivered by Chan Sek Keong CJ)

Background

1     The deceased, Obeidillah bin Salim bin Talib, died intestate on 5 May 2005, leaving a widow (“Fatimah”), two children, a sister and 10 nephews. The administrators of his estate (“the Estate”) sought a declaratory order from the court that the Estate was entitled to a half share (“ the Half Share”) in the property at 1 Farrer Road, #10-06, Tulip Garden, Singapore 268817 (“the Property”).

2     The Property was purchased by the deceased in 1998 and was registered in his name and that of Fatimah as joint tenants. After he died, Fatimah became the registered proprietor and she transferred the Property to herself and her two children as joint tenants by way of a gift.

3    The deceased and Fatimah are Yemenic Arabs by origin and at all material times, they were Muslims of the Shafi‘i school of Islam.

4     The administrators claimed that upon the death of the deceased, the Half Share fell into the Estate and should be distributed according to Muslim law under section 112(1) of the Administration of Muslim Law Act (“the AMLA”). The administrators obtained an Inheritance Certificate issued by the Syariah Court on 12 May 2005 identifying 12 beneficiaries of the Estate. Fatimah was declared as having 10/40 shares in the Estate.

5     The Estate’s solicitors then wrote to the Majlis Ugama Islam Singapura (MUIS) to seek a fatwa on how the Half Share was to be distributed under s 112(1) of the AMLA on the basis that the deceased’s share in that Property devolved upon his beneficiaries under the Inheritance Certificate. The MUIS (through the Fatwa Committee) issued a fatwa which stated that the Property was a matrimonial property (harta sepencarian) as the deceased and Fatimah had jointly owned it. Hence, half of the Property should be distributed in accordance with faraid (“2007 Fatwa”).

6     Armed with the 2007 Fatwa, the administrators commenced these proceedings against Fatimah and her two children claiming that the Half Share formed part of the Estate. In the High Court, the administrators argued that (a) the concept of joint tenancy is unknown to Muslim law and (b) the operation of the right of survivorship under a joint tenancy is repugnant to Muslim law as it operated as a testamentary gift to Fatimah and increased her share in the Estate which is prohibited by Muslim law.

7     The High Court rejected these arguments and held that since there was no specific law that carved out special rights for Muslims in relation to ownership of property, the common law applied and as a result the deceased’s interest in the Property passed to Fatimah.

8     On appeal, the administrators made the same arguments and also relied on two further arguments:

(a) the general law on immovable property should be modified as permitted by the Application of English Law Act to apply Muslim law to Muslims in Singapore to determine the validity of the joint tenancy under Muslim law; and

(b) the deceased was a “Malay” under s 112(3) of the AMLA because he was born and raised in Singapore and had been assimilated into the majority Malay-Muslim community. Hence the Property was harta sepencarian and the court has the power to distribute it according to Muslim law.

9     The Court of Appeal dismissed the appeal on the following grounds:

(a) the Property is subject to the Land Titles Act (“the LTA”) and the incidents of joint tenancy must be determined in accordance with the LTA; statute law cannot be modified to apply Muslim law to a property subject to the LTA;

(b) the LTA recognises the common law on joint tenancy that upon the death of a joint tenant, his/her interest in the property is extinguished, leaving the surviving joint tenant as the absolute owner. As a matter of law, no interest in the property passes to the surviving joint tenant. Therefore, in the present case, no interest in the Property passed to Fatimah by way of a testamentary disposition;

(c) under Muslim law, a Muslim was free to give away his property by way of gift, and therefore the gift of the Property to Fatimah by the deceased during his lifetime was not contrary to Muslim law;

(d) the deceased was not a Malay under s 112(3) of the AMLA as he was of Turkish Yemeni Arab descent, and no evidence was produced to show that he was a member of the Malay community.

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.

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