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BARKATH ALI BIN ABU BACKER v ANWAR KABIR BIN ABU BACKER & ORS [1997] 4…
BARKATH ALI BIN ABU BACKER v ANWAR KABIR BIN ABU BACKER & ORS [1997] 4 MLJ 389
Summary of the case
:star:
Plaintif had appointed by her mother as a lawful lawyer for her trust deed assets in Malaysia, Singapore and other countries. therefore, he had a fully possession for all the assets. Plaintif mother who is an indian and domiciled in india had passed away in 1989. Therefore, plaintif wanted to confirm on the status of the assets whether it is on trust deed or not. If the assets is not on the trust he wanted to distributed the assets with other beneficiaries through islamic law.
However, on the trust deed the settlor which is his mother mentioned that the trust was "wakaf-au-alad" which is not under jurisdiction of "wakaf board". Defendant relying on the Article 121(1A) of Federal Constitution to argued that this matter is under the jurisdiction of Syariah Court but plaintif and second defendant argued that it is under civil court jurisdiction. the truth is they wanted to bring the application on indian court.
Judgement :check:
The syariah court had no power to grant the relief applied for by the plaintiff
The High court whos having the jurisdiction(High Court of Malaya: Civil court)
Staying the proceeding
Malaysian law would not be able to give effect to the settlor's wish that the trust should not fall within the jurisdiction of the wakaf board as the Administration of Islamic Religious Affairs Enactment of the State of Penang 1993 vested in the Majlis Agama Pulau Pinang all wakaf properties which meant that the trust would fall within the jurisdiction of the wakaf board
Based on the subject matters relevant, the
Indian court
would be the appropriate forum to determine the plaintiff's application
Important principles
:warning:
The application of the parties was
Declaratory in nature
, which the Islamic law court has lack of power. only the high court have such power
The prayer of the plaintiff seeking the HC to
invoke
its power to interpret the will of the deceased for a
declaration
as to whether there was a valid trust ie 'wakaf aulad' or merely remains its status quo as the settlor's residuary estate pending distribution in accordance with the 'faraid law', in vested solely to the HC in the pursuance to the SRA 1960 and Order 15 rule 16 of the rule of the HC 1980 and
not the syariah court
legal opinion & Comment :checkered_flag:
Conflict of jurisdiction between
Sharia court
and
Civil court
had occurred
Matters regarding waqf should be governed by the Shariah court because the matters regarding waqf in under state jurisdiction
an
amendment
should be made on the SRA 1950, also with the state Administration of Islamic Affairs Enactment, especially on exclusive
Waqf Administration Act and Sharia Specific Relief Act
(should contain power to issue injunction, declaration and vesting orders, specific relief etc)
Legal issues :red_flag:
Whether syariah court has jurisdiction to entertain application for declaration ?
Whether High Court has exclusive power to grant declaration?
AMIRUL AMIN BIN RASHID 1811171
MUHAMMAD MARHAKIM BIN MARZELAN 1816283
MUHAMAD IQBAL BIN AZMI 1811635