FAUZIYAH BINTE MOHD AHBIDIN (EXECUTRIX OF THE ESTATE OF MOHAMED AHBIDEEN BIN MOHAMED KASSIM @ AHNA MOHAMED ZAINAL ABIDIN BIN KASSIM) & Anor v MAJLIS UGAMA ISLAM SINGAPURA

Facts

Between 1914 and 1927, Ahna Mohamed Kassim bin Ally Mohamed (Kassim) created several wakafs, or Muslim charitable endowments, for a mosque (Masjid Kassim) and a burial ground. The unacquired land, later redeveloped by the defendant, Majlis Ugama Islam Singapura (MUIS), now includes the mosque, a condominium and shop and office space. On 9 December 1932 Kassim made a will in Jawi. One clause directed that the net income of his endowed properties be split into five shares, two going to himself and, after his death, to his son who is poor. Kassim died on 31 July 1935 leaving one son, Zainal.

In a 1962 petition, Zainal stated on oath that Kassim was a Muslim of the Shafie sect. Zainal died in 2011, leaving everything to his daughter, the plaintiff, Fauziyah binte Mohd Ahbidin. In 2019 she sought a new certificate of inheritance describing Zainal as Hanafi, and on 29 July 2019 she began Suit No 761 of 2019 as executrix of Zainal's estate and later as administratrix of Kassim's estate. She claimed a declaration that the estate was entitled to a share of the wakaf income, and an account and payment. Her case was that Kassim was Hanafi, so he could vary the wakafs, or that the will created a testamentary wakaf. MUIS argued that Kassim was Shafie, that wakafs cannot be revoked, and that the claim was barred by limitation or laches.

Issues

1. Whether Kassim's will was formally and substantively valid.
2. Whether the clause on the income of the endowed properties could be given effect, which turned on its purpose, its nature, and whether Kassim was Hanafi or Shafie.
3. Whether, if Kassim was Hanafi, the court should follow the minority view that a wakaf may be revoked.
4. Whether the will alternatively created a testamentary wakaf, and whether the claim was barred by limitation or laches.

Holding

Mohamed Faizal J dismissed the claim in its entirety. The will was valid, but its income clause amounted to a partial revocation of the wakafs, which Kassim, found to be a Shafie, had no power to make. Costs submissions, if costs were not agreed, were to be filed within two weeks.

Reasoning

On validity, the will met the writing, signature and witness requirements, and none of the defendant's earlier concerns, about the Jawi script, an apparently skipped paragraph number or words filled in on Kassim's instructions, raised a well-grounded suspicion. The will was therefore valid.

On the clause, the court read its main purpose as giving Zainal two-fifths of the wakaf income after Kassim's death. But diverting income away from the endowment's charitable purposes changed how the wakaf operated, so it was in substance a partial revocation, not a mere reservation of income. The authorities relied on by the plaintiff all concerned income reserved when a wakaf was first created. On Kassim's school, the judge declined to rely on broad generalisations about Tamil Muslims, language or names. The best evidence was Zainal's sworn 1962 statement that Kassim was Shafie, and there was no contemporaneous evidence that he was Hanafi. The 2021 certificate describing Kassim as Hanafi was obtained after the suit began and was given no weight. Under Shafie law the wakafs could not be revoked.

In case that finding was wrong, the court held that the majority Hanafi view, under which a wakaf is irrevocable once made, should be followed. The authorised texts show that view prevailed, it gives wakafs the certainty that makes them valuable to the community, and it is more coherent doctrinally. In any case, a wakaf for a mosque or burial ground could not be revoked, and Kassim had not met the conditions for relying on the minority view.

The testamentary wakaf argument failed because it assumed Kassim could revoke the earlier wakafs entirely, which he could not. On time bars, the claim was one to recover trust property held by MUIS, so s 22(1)(b) of the Limitation Act meant it was not wholly time-barred. Laches would nonetheless have barred relief. The court found Zainal had likely known of the will since around 1981, when his solicitors asked for the probate documents. Nearly four decades then passed before the suit, the witnesses could no longer be tested, and the plaintiff's own account of when she found the will was not believed.

From the judgment