BM v LBT [2023] 4 ShLR 1


Baitulmal MAIS V Lembut Bin Tamrin & Anor [2023] 4 ShLR 1

Selangor Syariah Court of Appeal (Shah Alam)

Validity of Hibah.

Facts of the case

1.    The Respondents are the children of Allahyarham TM, who passed away on 2 March 1994.

2.   The Appellant was the designated heir to inherit one-third of the total estate left by the deceased, as the deceased had only Respondents as his legal heirs. This was based on the inheritance order issued by the Mahkamah Rendah Syariah Kuala Langat, Selangor, dated March 19, 2019.

3.    The Respondents claimed that on 27 August 1990, the deceased had donated 24/96 portions of the land identified as GM xxxx, Lot xxx, Jalan Kanchong, Mukim Kelanang, District of Kuala Langat, Selangor Darul Ehsan, to the Respondents.  Each Respondent was to receive 12/96 shares of that land.

4.    The Respondents’ assertion of a gift is founded on a trust declaration made by the deceased on 27 August 1990 at the Land Office of Kuala Langat District.

5.    The case before the Court was an appeal by the Appellant (‘Defendant’) against a section of the judgment issued by the Judge of the Syariah High Court on 17 November 2020.

6.    The Respondent (Plaintiff) in this action did not submit any counter-appeal and concurred with the honorable Syariah Court of Appeal to uphold the judgment of the Syariah High Court and dismiss the Appellant’s appeal.

Issue 1.    Whether there was an acceptance of ‘hibah’?

2.    Whether donor of ‘hibah’ could appoint himself as trustee of ‘hibah’?

3.    Whether ‘al-qabd’ had occurred?

Ratios 1.    Whether there was an acceptance of ‘hibah”?

(a)  The Hibah recognized in this case is a trust hibah. It is termed as such due to the presence of a trust element before the property transitions from the owner to the hibah recipient. In the state of Selangor, a fatwa concerning trust hibah was promulgated by the State Mufti Department of Selangor through State Gazette Volume 74, Number 7, on 8 April 2021, provides that-

“Hibah facilitated through trustees are considered valid for any grant recipient, encompassing underage children, individuals with cognitive impairments, and persons with disabilities, provided that the fundamental conditions of the grant are satisfied.”

(b) When the trust declaration was made, each Respondents had reached adulthood, aged 30 and 24. Consequently, the Appellant argued that the acceptance (qabul) of the hibah and the appointment of the trustee should have been carried out by the hibah recipients themselves, as it constituted one of the essential elements of the hibah.  However, in this appeal, the deceased, acting as the hibah giver, unilaterally appointed themselves as the trustee without the Respondents’ acceptance, resulting defect in the trust gift.

(c)  The Court in this case refer to the case of Eshah bt Abdullah dan Lima Yang Lain lwn Che Aminah bt Abdul Razak dan Dua Yang Lain [2004] XVII (I) JH 47-

“ The acceptance matter was adequate with other evidence demonstrating its acknowledgement and did not necessarily have to be explicitly and stated after the presentation.”

2.    Whether donor of ‘hibah’ could appoint himself as trustee of ‘hibah’?

(d)   In this case, the Court referred to a hadith narrated by Ibn Majah-

“From Jabir bin Abdullah (may Allah be pleased with him), it is reported that a man said: “O Messenger of Allah, indeed I have wealth and children, and my father wants to take my wealth.  The Prophet Muhammad (peace and blessings be upon him) said: “You and your wealth belong to your father.”

(e)   According to the hadith, the Court concluded that the act of the deceased appointing himself as a trustee was not a concern.  This is because, being a father and owner of the disputed property, the deceased had broad authority or significant rights to make decision about the same property as long as such decisions do not harm the Respondents.

(f)     Nevertheless, in this appeal, the Court is content that the Respondents implicitly consented to the deceased’s actions by participating in the land office to finalise the trust declaration.

3.    Whether ‘al-qabd’ had occurred?

(g)   The Court concurred with the viewpoint of the Syariah Court of Appeal Panel in the case of Amirul Syafiq Mohd Noor Ezanie & Another v. Razali bin Samsudin & Another, 2016 JH 42 Bhg. 1-

The Court believed that the transfer of ownership through a trust occurred not directly to the gift recipient but to the trustee.  In other words, the act of receiving the gift (qabd) in this context was carried out by the trustee on behalf of the gift recipient.  In this situation, the trustee legally owned the property, while the gift recipient held beneficial ownership.

(h)   In light of the analysis, the Court was content to refrain from intervening in the decision rendered by the Syariah High Court Judge.

 Decision 1.    The Court dismissed the Appellant’s appeal.

Key Take Away

1.    The implementation of “qabd” essentially served as a reinforcement for the wording of a gift contract, which involved the control and/or possession by the recipient over the property according to the law. The execution of “qabd” not only served as the basis for proving the gift recipient’s ownership but also prevented heirs from arbitrarily challenging the rights of the gift recipient.

2.    The element of “qabd” plays a vital role in determining the validity of hibah and its enforcement.  The majority of Muslim Scholars concurred that “qabd” is a requirement for enforcing a hibah contract.

3.    The hibah agreement does not only require the fulfilment of the offer and acceptance conditions (ijab and qabul).  The giver of a hibah has the right to take back the gift and control it as long as it’s still in their possession.  Ownership doesn’t transfer to the recipient until they fully possess it (al-Qabd).  The hibah agreement becomes complete once the re-possession is accordingly.  In which, the gifted item permanently belongs to the recipient.



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