Gordon-Smith CJ, A-G:

This Originating Summons involves the interpretation and construction of the Will of Hadjee Haroun bin Tamby Kechik, deceased, and asks:

(1) Whether the trusts relating to the land and houses known as Nos. 39, 40 and 41 Klang Road, Singapore are void as infringing the rules against perpetuities.

(2) If so, whether the said land and houses fall into the residue to be divided according to cl. VI of the said Will.

The Will in question is dated 11 December 1993 the Testator died on the following 31 December and Probate of the Will was granted on 8 February 1904 to Mohamed bin Tamby Kechik, the deceased's brother and the Executor and Trustee therein named.The present Plaintiff is a grandchild of the deceased, and the Defendant obtained a grant of Letters of Administration de bonis non with the Will annexed on 9 March 1934.In case of any doubts arising and by consent of all parties I appointed the present Defendant Hadjee Hussain bin Hadjee Haroun to be the Executor and Trustee of the Will.

The material and relevant clauses in the Will, read as follows:

Clause II. "I direct in the cause of God and in the hope of recompense from Him that my houses, Nos. 39, 40 and 41 Klang Road together with their lands, be made a Wakaff for the benefit of my wife, Inche Mah binti Mahmood and my sons and daughters, to be shared equally between them.In the event of all of

them shall die, the benefit of the Wakaff shall descend to all my male and female grandchildren in the male line to be shared equally between them.After them the benefit of the Wakaff shall pass to the most learned and pious man in this country.This shall go on forever. I appoint the said Executors as Trustees of the said Wakaff. After this, my nearest and most intelligent heir shall be the Trustee of the said Wakaff. This shall go on forever."

Clause VI. "The rest and residue of my estate property shall be distributed to my beneficiaries in accordance with the Mohamedan Law. All that has been mentioned in this Will has been uttered by me personally with clear utterance, and I have hereunto set my hand in the presence of Witnesses."

It is not, and cannot be, disputed that English law applies in the construction of this Will. (See s. 101, Evidence Ordinance, Cap. 13). It is not and cannot be disputed that the Rule against Perpetuities is also applicable. (See Ong Cheng Neo v. Yeap Cheah Neo 1 Kyshe 344, in the Privy Council). Two points therefore arise which in general terms can be stated as follows:

(a) Does clause two offend against the Perpetuity Rule?

(b) Is the gift over, that is, after the deaths of the children and grandchildren does the benefit of the Wakaff pass "to the most learned and pious man in this country", validly, as being good charitable bequest.

As regards (a) the Rule is that, subject to certain exceptions, no contingent or executory interest in property can be validly created, unless it must necessarily vest within the maximum period of one or more lives in being and 21 years afterwards.Consequently a devise or bequest not falling within one of the exceptions is void if it is to take effect on the happening of an event at some indefinite future time or within a fixed period exceeding 21 years; for it is not necessary that the period within which the interest is to vest should be limited with reference to a life.

It is quite clear that the provision for the benefit of the Wakf passing on "to the most learned and pious man in the country" after the deaths of the sons and daughters of the Testator and also of his grandchildren, offends against the Perpetuity Rule. A gift over to a charity conditional upon a future and uncertain event which may not happen within the period allowed by the rule is void Chamberlayne v. Brockett LR 8 Ch 206 and Re Lord Stratheden and Campbell [1894] 3 Ch 265.It follows that the vesting is postponed beyond the Perpetuity Rule limit, i.e. after the deaths of grandchildren.There are also further reasons for hol