AHMG v AGMG & Ors [2019] 3 ShLR 1

Syariah Court of Appeal (Selangor)

Validity of Hibah In State of ‘Maradhul Maut’

2.     The Fourth Respondent is the widow of the Deceased, while the Fifth until Ninth Respondents are biological children of the Deceased and the Fourth Respondent.

3.     The Fourth Respondent filed a claim for gift (hibah) in the Syariah High Court through the Case No. 10300–044–0077/2012. The Fourth Respondent claimed that the Court convicted ½ share of a house and land located at Lot 332, Lorong Ikan Emas 7, Kampong Ampang Campuran 68000 Ampang, Selangor (“the Property”) which was given to her by the Deceased on 9 March 2001, based on a document of transfer of land which was Form 14A.

4.     Among the agreed facts before the trial was that the property subject to the claim is a joint property between the Deceased and SD1, with each party owning ½ share of the Property.   The title of the Property is held by SD1, and until the trial date, there has been no recorded change of ownership on the title of the Property.

5.     The Syariah High Court Judge ruled that the gift was legal and in accordance with the Islamic law.

6.     Dissatisfied with the decision, the Appellant filed the appeal to the Syariah Court of Appeal.

7.     The Appellant argued in his appeal that-

(a)  The Fourth Respondent failed to fulfill the specific conditions for the elements of Al-Waahib (Donor) and al-Mauhub (Gifted Property);

(b)  The Deceased was not the absolute owner of the Property due to debts related to getting the Property and that the Property was registered in the Deceased’s name after SD1 independently paid all debts;

(c)  Form 14A was not properly proven by the Fourth Respondent under Section 56 of Syariah Court Evidence (Selangor) 2003 because only one (1) witness was called for verification and the document’s validity with the Deceased’s fingerprint on it was heavily doubted;

(d)  The learned judge took over the trial and gave judgment without considering previous testimony, raising fairness concerns; and

(e)  The Deceased executed Form 14A in a state of maradhul maut (critical illness) whereby the Deceased suffered from a severe stroke, resulting in paralysis of the left side of the body and required assistance from others for self-care and movement.

8.    Following that, the Fourth Respondent denied all the claims made by the Appellant above.   It was further argued that there was no evidence nor medical reports indicating that the Deceased’s mental state was affected during the execution of Form 14A.

9.   The Fourth Respondent acknowledged that the physical condition of the Deceased being paralyzed but asserted that the mental and cognitive faculties of the Deceased were sound when they appeared to provide fingerprints before the Assistant Land Administrator of Hulu Langat on 9 March 2001.

10.  The Fourth Respondent also argued that the Deceased was not in a maradhul maut because the transaction in Form 14A took place on 9 March 2001, while the Deceased passed away seven years later on 10 November 2008.

11.   In this appeal, the issues that the Syariah Court of Appeal must decide were set out below.

2.    Whether the Deceased was in the condition of maradhul maut when the alleged hibah was made for the Property?

      Whether a gift (hibah) transaction existed?

1.     Whilst examining the entire appeal record, the Syariah Court of Appeal found that both parties agreed before the trial that the Deceased owned a ½ share of the Property.   Similarly, there was no transfer of title recorded against the Deceased’s ownership through transactions such as sale, mortgage, or lease.

2.     Considering these facts, the Syariah Court of Appeal concurred with the learned Judge’s finding that the Deceased is the absolute owner of the gifted Property as provided under Section 340(1) of the National Land Code 1965 (“Act 56”).

3.     Section 340(1) of the Act 56 reads as follows:

“The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible”.

[Emphasis Added]

4.     The Syariah Court of Appeal found that according to Faraid, any debts of the Deceased, if any, can be deducted from the Deceased’s estate before the distribution.  It was clear that, at the time of the Deceased’s death, the Property had already been bestowed upon the Fourth Respondent by the Deceased.

5.     In examining the authenticity of Form 14A, the Syariah Court of Appeal found that Form 14A is a public document that was provided by the Timbalan Pendaftar Hakmilik Pejabat Tanah dan Galian Selangor whereby the content of Form 14A had been proven through primary evidence under Section 48 and 49 of the Syariah Court Evidence (Selangor) 2003 which stipulated as follows:

“Proof of contents of documents

48. The contents of documents may be proved either by primary or by secondary evidence.

Primary evidence

49. Primary evidence means the document itself produced for the inspection of the Court.”

[Emphasis Added]

6.     Furthermore, there was no evidence found by the Syariah Court of Appeal indicating that the Appellant had ever filed any police report regarding the allegation of forgery of the Deceased’s fingerprint in such document ie Form 14A.

7.     The Appellant also did not take any action to challenge the authenticity of Form 14A under the provision of Act 56 in the Civil Court.   Therefore, the Syariah Court of Appeal held that the Appellant’s claim regarding the invalidity of Form 14A was entirely unfounded.

Whether the Deceased was in the condition of maradhul maut when the alleged hibah was made for the Property?

8.     The Syariah Court of Appeal closely examined the cause of the Deceased’s death.   The death certificate mentioned ‘Recurrent pneumonia with sepsis,’ but this contradicted documents D-24B and D-24C, which indicated the Deceased’s illness as ‘cerebrovascular accident/stroke involving the right cerebellar, right thalamus, and right occipital lobe.’

9.     While determining whether the Deceased was mentally competent or not, his mental condition at that time must also be assessed firsthand.  Section 33(1) of the Syariah Court Evidence Enactment (Selangor) 2003 provides—

“Opinion of experts

33. (1) When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions or relating to determination of nasab, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions or relating to determination of nasab, are qarinah.”

[Emphasis Added]

10.  Based on the provision above, the Syariah Court of Appeal decided that the individual that is competent to assess the mental state of the Deceased is a medical expert specializing in psychiatry.

11.  Therefore, a specialist in Brain and Nerve Neurology at Gleaneagles Ampang Hospital (“SD2”) was called in as witness to give testimony. However, SD2’s testimony did not clearly explain the mental condition of the Deceased that preventing him from making a hibah transaction.

12.  On the next quest of critical illness, the Syariah Court of Appeal referred to Section 2 of Muslim Wills Enactment (Selangor) 1999 whereby Maradhul maut has been defined as follows:

“marad al maut” means a fatal disease which fulfils the following conditions:

(a)  the disease normally resulting in death;

(b)  the disease causes the fear of death in the patient’s mind to the extent of affecting the soundness of mind;

(c)  shall possess some external signs showing that the disease is a serious disease; and

(d)  the disease is suffered continuously for a period of not more than one year.”

13.  The case of Mahdi bin Ab Hamid v Mohamad Iqwan bin Yahya Case No. 14000–044–0042/2015 had been referred whereby the conditions to be categorized as maradhul maut that were outlined in Section 2 of Muslim Wills Enactment (Selangor) 1999 were not fulfilled in the aforementioned case since the presiding judge found no evidence that the stroke caused the death to the deceased and that there was no evidence showing that the deceased displayed external signs of a serious illness.

14.  Applying the above authorities, the Syariah Court of Appeal held that the condition of the Deceased did not meet the requirements provided in Section 2 of the Muslim Wills Enactment (Selangor) 1999 and the Deceased was not in the state of maradhul maut at the time of hibah transaction.

2.     A gift (hibah) transaction of the Property was proven valid.

3.     The Deceased was not in the condition of maradhul maut at the time of the hibah transaction.

2.    Additionally, the Syariah Court of Appeal concluded that the Deceased was not in the condition of maradhul maut at the time of the hibah was made, based on the absence of evidence supporting the required criteria outlined in Section 2 of the Muslim Wills Enactment (Selangor) 1999.