islamic

InMalaysia, there is no hibah law instituted which implies that the StateLegislature and Parliament (for the Federal Territories) has never affirmed theexceptional statute of hibah for Muslims to be actualized in the Syariah courts.All that is accessible only comprises of the provisions which clarify about theSyariah Courts purview as incorporated into the Item 1, List II of the Ninth Schedule of the Federal Constitution whichdemonstrates that hibah is a piece of the state matters which are set under theIslamic organization of each state thus it specifically falls under the Syari?aCourt jurisdiction. However, it seems like the issue of conflict ofjurisdictions was seen in several cases such as, in Jumaaton & Anor v Raja Hizaruddin[1],the Syariah Court ruled that it had no jurisdiction in hibah case whichinvolved with the problem of a probate and administration issue since it is inthe Federal list and no exemption was made regarding Muslims. Thus, it is theCivil High Court that has the jurisdiction and the law applicable is the Probateand Administration Act 1959. In the recent case, Latifah bte Mat Zin v Rosmawati btw Sharibun & Anor[2],the Civil Courts and Syariah Courts had made a solution presented to the partiesin dispute which is to go through double proceedings which comprises these twocourts. This is because this issue has become graver notwithstanding theamendment made in Article 121(1A) of the Federal Constitution which excludesthe influence of Civil Court in Syariah subjects. Hibah is not validunless it is in existence and belongs to the donor.

It can be seen through thedecided cases such as in the case of Awangbin A. Rahaman v Shamsuddin bin Awang & Ors[3],hibah is characterized as an exchange of a thing which is adhere to the salecontract or subject to the debts to someone without any consideration. Thecourt on its opinion on the issue of whether there was a legitimate hibah. Theoffended party guaranteed that his stepfather had isolated the land in disputeinto 2, half to himself and the other to the offended party’s mom. The offendedparty asserted to be entitled as a legitimate beneficiary in the bit of hismom.

The Court chose that the hibah purportedly made to the offended party’smom was not substantial since at the time of its execution, the mother has justpassed away. A deceased individual has no legitimate capacity to acknowledgehibah. In Eshah Abdullah & 5 Ors v.Che Aminah Abdul Razak & 2 Ors[4], itwas ruled that the deceased’s son, who was only 15 years old did not have anylegitimate capacity to accept hibah.[1] [1998] 6 MLJ 556[2] [2007] 5 MLJ 101[3] [1997] 3 LNS 6[4] [2004] XVIII(I) JH 47

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