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HIGH COURT KUCHING
ROSDI HAJI ZAKARIA & ANOR – Appellant
Versus
MOHAMAD NASSIR SAID – Respondent
Key Points: - The plaintiffs, as great-grandchildren of the deceased Hj. Usup, sought a declaration of their share in his estate and inclusion in a memorandum of transfer for Lot 117 (!) (!) (!) . - The estate of Hj. Usup, who died intestate in 1965, consists of Lot 117, with the defendant as the current registered proprietor (!) (!) . - The administration and division of a deceased Muslim's estate are governed by both Civil and Syariah Laws (!) . - Letters of Administration for Hj. Usup's estate were granted to the defendant's father in 1986, who later transferred the land to himself as administrator (!) . - The defendant's father died without distributing the estate, and the defendant, as administrator of his father's estate, was unable to distribute Lot 117 due to a caveat lodged by the plaintiffs (!) . - The court determined that the real issue was whether the civil court has the power to determine the share of an heir to a deceased Muslim's estate (!) . - The Syariah High Court has jurisdiction over the division and inheritance of testate or intestate property of Muslims, including the determination of persons entitled to share and their respective shares (!) (!) . - The civil court has jurisdiction over the general administration of an estate of a Muslim but not the apportionment of an heir's share (!) . - The civil court can only order the distribution of a Muslim's estate, such as a vesting order for landed property, after the Syariah court has determined the heirs' shares by issuing a Sijil Faraid (!) . - The court dismissed the plaintiffs' claim, stating that the question of their right to a share and its proportion in Lot 117 is within the purview of the Syariah court (!) . - The court found no merit in the plaintiffs' complaint regarding the consent for the appointment of the administrator, as male heirs have precedence over female heirs in the order of priority for Letters of Administration (!) (!) .
JUDGMENT
Introduction
In this Suit the plaintiffs are seeking a declaration from the court that they have a share in the estate of their late great grandfather, Hj. Usop Bin Said @ Usup Bin Sait (Hj. Usup), who passed away in 1965. They are also asking for an order that their names be included in a proposed memorandum of transfer with an unspecified undivided share in the land. The sole asset of the estate of Hj. Usup is a piece of land described as Lot 117, Block 8 Salak District. The current registered proprietor of the land is the defendant. He is also their second cousin. All parties are Muslims. The issues that have arisen are in respect of administration and division of the estate of a deceased Muslim which are governed by both Civil and Syariah Laws.
Summary of facts and events
Hj. Usup was the original the owner of Lot 117 Block 8 Salak District which is the bone of contention in this case. According to the defendant's witnesses he owned two pieces of land, ie, Lot 117 and Lot 113. He died intestate in 1965. He was survived by eight of his children and many grandchildren and great grandchildren according to the family tree which is not disputed by the parties. The plaintiffs an
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