The Case of Shafeeg bin Salim Talib v Fatimah Abud Bin Talib: A Faraidh judgment far-ahead of its time?
The case of Shafeeg bin Salim Talib v Fatimah Abud Bin Talib (“Shafeeg”) was a controversial one as it was essentially the clash of two different legal systems recognized in Singapore; that of the Islamic legal system of estate distribution and the predominantly secular legal system of estate distribution in the form of joint tenancy.
When a Muslim dies in Singapore, the estate is divided in accordance to Islamic law as defined by the Administration of Muslim Law Act (“AMLA”). Under AMLA, the Islamic Law of inheritance (otherwise known as faraidh) in Singapore diverges from secular law in various key aspects. One is that it is a well-established rule in faraidh that a Muslim may not enhance the share of any of his legal heirs. This particular rule circumscribes the scope of Islamic estate management tools in comparison to more traditional secular wills. This is especially so since according to faraidh, each legal heir has a specified share of the inheritance will.
The root of the dispute in Shafeeg was that the estate of the Deceased claimed an interest in the property which was held in joint tenancy between the Deceased and his wife. Under joint tenancy, ownership of the property would revert automatically to the surviving spouse, in this case the wife. The estate of the deceased however argued that as joint tenancy gifted the whole of the property to the wife, it was repugnant to the principles of faraidh. This was as according to the principles of faraidh, the wife was entitled to merely a share of the property and not the whole property. By awarding the whole property to the wife, the effect of joint tenancy was to enhance her rightful share.
To make things more controversial, the estate had also sought a fatwa from the Islamic Religious Council of Singapore (MUIS) which was the highest religious body in Singapore. MUIS was of the opinion that half of the estate is considered as inheritance and should be distributed in accordance to faraidh.
The Honourable Chan Sek Keong CJ (as he was then) however ruled that the right of survivorship under s114 of the Land Titles Act (“LTA”) cannot 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 as there had been no exceptions provided. Furthermore, while a fatwa by MUIS can be considered as expert opinion, it will not bind the court. To put it simply, in the case of inheritance of land, the inheritance laws regarding joint tenancy will take precedence over Muslim inheritance laws.
The decision exposed the tension between two different legal systems existing contemporaneously in Singapore: one acting under the principles of the secular legal system and the other under the principles of Islamic Syariah law. While the decision did generate some controversy, there are three reasons why it should be said to be the correct one.
First is that it genuinely reflects the intention of the parties. Couples who have agreed to hold their property in joint tenancy should have this intention upheld should the other partner dies. It would be a grave shock to the surviving spouse should he or she discover that the intentions of the other party was over ridden.
Secondly, in relation to the earlier point, should the property was not to be automatically transferred to the surviving spouse and had to be divided and sold amongst surviving heirs, this would cause undue hardship. This is especially if the surviving spouse was a widow and had no male children. It would be infinitely harder to keep the house from being sold and the proceeds distributed to beneficiaries outside the nuclear family. In the Singaporean context where most HDB houses are held in joint tenancy, a ruling in favour of faraidh law would have left many widows and their children homeless.
Thirdly, as elaborated by then CJ Chan, the concept of joint tenancy itself is not against Islamic law. The principles of joint tenancy can also be found in Islamic law as Hibah ruqba. A hibah ruqba is a gift with the condition that if the donee survives the donor, the subject of the gift shall absolutely belong to the donee. While there is disagreement amongst Muslim jurists on the validity of a hibah ruqba, the existence of the concept demonstrates that joint tenancy is not alien to Islamic law.
Thus to conclude, the judgment in Shafeeg was correct by law: if it was legislative intent to exclude Muslims from the operation of joint tenancy under s114 of the LTA, then Parliament would have provided an exception for this case. However, perhaps just as important is that if the Court had ruled otherwise, it would have caused great uncertainty and hardship to many surviving spouses who could potentially lose their homes. In this sense, it was a far sighted judgment which took into consideration what is arguably the most important principles of either secular or Muslim law: that of justice, compassion and mercy.
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