DAM lwn. HM & OTHERS [2023] SLRAU 4

Syariah Appeal Court of Federal Territories

Appeal on Harta Sepencarian (Matrimonial Assets).

Facts of the case

1.    The Appellant, is the sibling of Dermawan binti Abu Mansor (“the Deceased”) who passed away on 29 January 1984.  The Deceased was married to Omar bin Bahrul from approximately 1959 until her death on 6 February 2011.  The marriage between the Deceased and Omar remained childless.

2.    The First Respondent is Omar’s subsequent wife, having married him in 1986, following the demise of the deceased.  Meanwhile, the Second and Third Respondents are the offspring of the marriage between the First Respondent and Omar.

3.    Prior to their marriage, the deceased had purchased a plot of land located at Lot 518A, Section 41 No HS(D), 78051 Federal Territory of Kuala Lumpur (“the said property”). On 30 June 1982, the Deceased transferred the ownership of the said property to Omar.  The transfer was executed as collateral for Omar to obtain a loan from Majlis Amanah Rakyat (MARA). Upon settlement of the said loan, Omar further mortgaged the property to Arab Malaysian Bank Berhad in 1997 for the same purpose.

4.    Following Omar’s demise, the Respondents, in their capacity as heirs, filed an application for Letters of Administration and Distribution of Inheritance in 2016 at the Small Estates Distribution Unit, Department of Lands and Mines (JKPTG) Kuala Lumpur.  Subsequently, the property title was transferred to the Respondents’ names.

5.    On 13 September 2021, the Appellant filed a claim seeking a declaration that the said property is a matrimonial asset of the deceased and Omar, and further claiming full ownership of the said property for the deceased.  The basis for the claim is that the Appellant alleged Omar failed to return ownership of the said property to the deceased or her heirs as promised after the loan was settled.

6.    A The Respondents, who disagreed with the claim, subsequently filed a preliminary objection on 18 November 2021, citing the following grounds:

(a)         The Appellant’s claim is beyond the time limit set by Hukum Syarak.

(b)         The Appellant’s claim is over the absolute property of the Respondents.

(c)          The claim is an abuse of the court process.

(d)         The Appellant has no locus standi in the claim.

7.    On 12 April 2022, the Syariah High Court Judge allowed the preliminary objection.  Dissatisfied with the decision, the Appellant filed an appeal.

2.    If a preliminary objection was appropriate, whether the findings of Syariah High Court Judge on each ground were correct or otherwise?

1.    Whether the grounds raised by the Respondents in their preliminary objection were appropriately addressed through a preliminary objection or whether a full trial was necessary?

(a)      The Appellant raised the issue of whether the preliminary objection raised by the Respondents should have been decided through a full trial rather than a preliminary objection.  The Appellant argued that the grounds raised by the Respondents involved factual issues that required a full trial to determine ownership of the property in dispute.  The Respondents argued that the preliminary objection was sufficient to dismiss the Appellant’s claim as the property was registered in their names and the Syariah Court did not have jurisdiction to decide the dispute.

(b)      The Court referred to the principles applicable to preliminary objections and cited the cases of Mohd Amir Bin Ahmad lwn. Zubaidah Binti Yusoff [Appeal case No.: 10000-041-0060-2016] and Majlis Agama Islam Selangor lwn. HICOM Gamuda Development Sdn Bhd Dan Seorang Lagi [2011] SLRAU 13. These cases established that preliminary objections were only appropriate for deciding jurisdictional issues and legal questions, not factual matters.

(c)      Based on these precedents, the Court held that the preliminary objection was appropriate in this case as the Respondents’ grounds raised jurisdictional and legal issues related to the Appellant’s standing to bring the claim.

2.    If a preliminary objection was appropriate, whether the findings of Syariah High Court Judge on each ground were correct or otherwise?

Delay in Filing Claim

(d)      The facts show that the Appellant filed the claim for joint matrimonial property with her deceased husband, Omar, only on 13 September 2021, which is 37 years after the death of the deceased on 29 January 1984.  During this period, there was also no claim made by any other heirs of the deceased against the property.

(e)      The Court in this case referred to the case of Kerajaan Negeri Terengganu v. YAM Tengku Ibrahim bin Sultan Ismail Nasaruddin Shah [2007] SLRAU 12; [2008] 1 CLJ (Sya) 172. In that case, the Syariah Appeal Panel of Terengganu State had stated, among other things-

“Islamic law did not recognize the concept of laches (a legal doctrine that precludes a claim due to an unreasonable delay in asserting it) as a means of acquiring or losing a right. Instead, a long period of time was considered a bar to hearing a claim about a right that was alleged to have existed in the past but had long since passed. This bar was imposed to avoid problems of evidence and doubts about the origin of the right”.

(f)        Dr. Wahbah al-Zuhaili stated that the fuqaha (Islamic jurists) had set the limit at 33 years, while the Mejelle (an Ottoman civil code) set the limit at 15 years (Articles 1661 and 1662).  Based on these authorities, the Court stated that, the reasonable period for any party to initiate proceedings in the Syariah Court is no more than 33 years.

Absolute Ownership

(g)      Upon reviewing the Private Land Ownership Search Record, the Court held that the process of transferring ownership of the property commenced and was completed by the Respondents in 2016 in accordance with applicable law, immediately following the death of Omar on 6 February 2011.  This fact has never been disputed by the Appellants, who instead claim that the transfer of ownership made by the deceased to Omar was conditional and that the property should therefore be reverted to the ownership of the deceased or their heirs.

(h)      The Court further referred to Section 340(1) of the National Land Code 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”.

(i)        The Court held that legally registered property ownership becomes secure (“indefeasibility of title”) and cannot be disputed. This protects landowners.  In this case, although the Appellant claimed a conditional transfer, the Respondents’ current ownership was deemed “perfect” and uncontestably due to the indefeasibility of title principle.

Abuse of Court Proses

(j)        The Syariah Court grappled with an issue of forum non conveniens.  The Appellant contested the Respondents’ perfected property title claim at the Syariah Court, despite a binding civil court order.  The Respondents argued this was an abuse of process, urging the Syariah Court to decline jurisdiction.  The Appellant countered that the Syariah Court is the appropriate forum to rectify ownership through a matrimonial asset claim.  However, the Court further held that the Appellant failed to present evidence concerning the deceased spouse’s contributions to the property acquisition, which is an essential element for a matrimonial property’s claim.  Ultimately, the Court was of view that the Appellant’s claim was more akin to challenge the Respondents’ perfected title, to be as a matrimonial asset claim.

(k)       In this case the Court made reference to Section 23 Court of Judicature Act 1964 [“Act 91”] –

“23. (1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where-

   “(d) any land the ownership of which is disputed is situated”.

 [Emphasis Added]

(l)        The Court also made reference to Section 29(1) of the Small Estates (Distribution) Act 1995 [“Act 98”], and further explained that disputes concerning registered land ownership fall outside the Syariah Court’s jurisdiction.  This is because a claim against the Land Administrator’s decisions, which establish ownership, are meant to be addressed in the civil court.

Locus Standi

(m)     The Court dismissed the Appellant’s claim, as the deceased’s sister-in-law, due to lack of legal standing (locus standi) in a matrimonial asset claim.  Matrimonial asset, under the Islamic family law, grants a surviving spouse a share of jointly acquired property during the marriage.  The Appellant’s argument, based on her familial relationship with the deceased, falls outside the scope of matrimonial asset as she wasn’t a spouse.  The Respondents successfully argued that only parties to the marriage (the deceased and her spouse) have the legal right to pursue such claims.  This decision reinforces the principle matrimonial asset benefits are reserved for spouses within a valid marriage.

2.    The High Court Syariah of the Federal Territory of Kuala Lumpur’s order issued on 12 April 2022, was affirmed.

Key Take Away

1.    The Court in this case strongly upholds the concept of “indefeasibility of title” for registered land ownership.  Even if the deceased transferred the property conditionally, the Respondents’ legally registered title prevails.  This emphasizes the importance of proper property registration and the challenges of contesting established titles at the Syariah Court.

2.       The Court reinforces the limited scope of matrimonial asset claims.  Only spouses (or their estates) have the legal standing to pursue such claims.  This case clarifies that relatives of the deceased spouse, as far on example the Appellant (sister-in-law), cannot claim matrimonial asset.  This protects the rights of surviving spouses and ensures matrimonial asset benefits are distributed as intended within a valid marriage.