Edgar Joseph Jr. SCJ:

This was an application by way of summons-inchambers to strike out the writ of summons, the Indorsement and the statement of claim dated 14 July 1988 against the first defendant on the ground that it discloses no reasonable cause of action and/or as being frivolus, vexatious and misconceived in law and an abuse of the process of the Court.

The plaintiff's claim against the first defendant, her former husband, is for a declaration that 47,001 units of Amanah Saham Shares ("the shares") issued by the second defendant Amanah Saham National Bhd. although registered in the name of the first defendant are held in trust for her, for an injunction and for an order for transfer of those shares in her favour.

The plaintiff alleges that during the subsistence of the marriage, she had purchased the shares in the name of the first defendant at the instance of the first defendant and so the first defendant will have to rebut the presumption of a resulting trust which arises in her favour. In other words, the plaintiff is relying on the principle enunciated by Eyre C.B. in Dyer v. Dyer [1788] 2 Cox 92 at p. 93:

The trust of a legal estate, whether freehold, copyhold or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase-money.

The defence is that the shares were a gift.

It is common ground that both parties profess the Muslim religion and that the sum of RM47,000 applied towards the purchase of the shares was derived from compensation monies amounting to RM105,000 paid by the Penang Adventist Hospital, George Town, in settlement of all claims arising from a suit for professional negligence brought by the plaintiff against it and that sum of RM47,000 was handed over by the plaintiff to the first defendant during the subsistence of the marriage although the action herein was commenced some three months after the divorce which is the normal period for eddah according to Professor Dr. Ahmad Ibrahim's Islamic Law in Malaya (1965) p. 288.

In these circumstances, Counsel for the first defendant has taken the preliminary objection that by reason of Article 121(1A) of the Federal Constitution, the Syariah Courts have exclusive jurisdiction over the issue which arise for decision in this suit and consequently this Court has no jurisdiction to do so.

To put matters in their correct perspective, it is necessary to reproduce the relevant statutory provisions.

Article 121 of the Federal Constitution was amended in June 1988 by the insertion of Clause (1A) to Article 121, and the amendment reads as follows:

(1A)The Courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

The Administration of Muslim Law Enactment 1959, for the State of Penang, by s. 40(1) provides for the jurisdiction of the Religious Courts as follows:

the Court of the Kathi Besar shall have jurisdiction throughout the State... (2) ... (3) The Court of the Kathi Besar shall -

(a) ... (b) in its civil jurisdiction, hear and determine all actions and proceedings in which all the parties profess the Muslim Religion and which relate to:

(i) betrothal, marriage, divorce, nullity of marriage, judicial separation or nushuz. (ii) any disposition of, or claim to property arising out of any of the matters set out in sub-Paragraph (1) of this paragraph: (iii) ... (iv) division inter vivos of sa-pencerianproperty. (v) ... (vi) other matters in respect of which jurisdiction is conferred by any written law.

'Sa-pencarian property' in s. 40(1)(b)(iv) is defined under s. 2 as property acquired by a husband and wife during the continuance of the marriage.

The Enactment also gives powers to Syariah Court to make interim orders which in my views include injunctive relief. Section 75 states:

The Court ma