On 20th February 1962 Man bin Mihat took out an insurance policy for $40,000 on his life and by the terms of the policy the insurance company agreed to pay that sum "at the end of 25 years from commencement of assurance or the previous death of the assured" to

"the assured or his assigns if he be living at the maturity of the policy. In the event of the death of the assured before the maturity of the policy the Company shall pay the monies hereby assured to the beneficiary named below if then living or to other the beneficiary appointed by the assured as hereinafter provided if then living, unless prevented by an assignment or other act or thing done or suffered by the assured during his lifetime and provided there is no statutory or other lawful restriction to the contrary. Provided always that the assured may at any time by writing signed by him and delivered at the head office of the Company at Singapore revoke the appointment of the beneficiary named below and may appoint another beneficiary with or without reserving the right of revocation or new appointment. Notwithstanding anything hereinbefore contained it is hereby agreed and declared that the assured may assign charge surrender or otherwise deal with this policy without the consent of the beneficiary whether named in this policy or subsequently appointed by the assured hereunder."

The beneficiary named in the policy was "Chik binti L. Man, wife of the assured."

Then by an instrument dated 26th March 1962 the assured assigned the policy to the same Chik his wife in these terms:—

"I, Man bin Mihat in consideration of natural love and affection do hereby assign the benefit of all moneys to become payable under the Policy of Assurance No. 216, 296 of THE GREAT EASTERN LIFE ASSURANCE COMPANY, LIMITED, on my life, dated the 20th day of February 1962 assuring the sum of $40,000 (reserving, however, to myself the right to receive in cash or apply in reduction of premia any bonuses that may be declared upon such policy from time to time as I may think fit) to Chik binti L. Man (wife) and declare that Chik binti L. Man's receipt shall be sufficient discharge to the Company for the same provided however that in the event of the said Chik binti L. Man predeceasing me, or in the event of my surviving the date on which the said policy if so expressed would mature, the benefit of the policy and the right to receive moneys thereunder shall revert to me as if this Assignment had not been made.

Dated at Alor Star, Kedah this 26th day of March 1962."

On 6th January 1963 Man died and his widow is the administratrix of his estate. The question arises whether the money payable under the policy belongs to her beneficially or forms part of her husband's estate in which event it falls to be distributed among his heirs of whom there are two, his widow and a minor son.

It is contended on behalf of the widow that it does not form part of the estate and on behalf of the infant by his guardian ad litem, the Assistant Registrar of this court, that it does.

There is little doubt that if the parties were non-Muslims the money would not form part of the estate, for section 23 of the Civil Law Ordinance, 1956 (modelled on section 11 of the English Married Women's Property Act, 1882), expressly provides:—

"(1) A policy of assurance effected by any man on his own life and expressed to be for the benefit of his wife … shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not so long as any object of the trust remains unperformed form part of the estate of the insured or be subject to his … debts."

(2) …

(3) The insured may by the policy … appoint a trustee …

(4) In default of any such appointment of a trustee such policy immediately on its being effected shall vest in the insured and his … legal personal representatives in trust for the purposes aforesaid."

There are other sub-sections but they are not relevant.

Though the sum assured is