Hishamudin Yunus J:

[1] Encl 20 is an appeal by the defendant against the decision of the learned senior assistant registrar who had dismissed the defendant's application to strike out the plaintiff's statement of claim pursuant to O 18 r 19(1) of the Rules of the High 1980.

[2] The basis of the defendant's application is that the subject-matter of the dispute falls under the jurisdiction of the Syariah Court.

[3] I have dismissed this appeal with costs.

[4] The plaintiff and Defendant are husband and wife. They were married in Jakarta. Some time in 1999 the plaintiff had deposited a sum of USD50,000 into the defendant's account at the Bank of Hawaii in the United States. It is averred by the plaintiff at para 8 of the statement of claim that the defendant was to hold the money on trust for the plaintiff. In June 2003 the marriage between the plaintiff and the defendant broke down and the defendant left the matrimonial home. the plaintiff filed an application at the Syariah Court at Shah Alam to determine the validity of the marriage under the Selangor Muslim Family Enactment of 1984.

[5] In this writ action, the plaintiff /husband seeks, among other reliefs, a declaration from this Court to the effect that the USD50,000 is held by the defendant/wife on trust for his benefit.

[6] I am unable to accept the argument of the defendant that this Court has no jurisdiction to hear the subject matter of the dispute, and that the subject-matter of the dispute comes within the jurisdiction of the Syariah Court.

(1) whether the defendant/wife held the USD50,000 on trust for the plaintiff /husband;

(2) whether the defendant/wife had committed a breach of trust when she refused to return the USD50,000 to the plaintiff /husband; and

(3) whether the USD50,000 was, instead, a gift from the plaintiff /husband to the defendant/wife, as claimed by the latter.

[8] Issues (1) and (2) above concern the law of trust. It appears not to be disputed that disputes concerning the law of trust comes within the jurisdiction of this Court to determine (see item 4(e)(i)('equity and trust') of the Federal List (List I) of the Ninth Schedule of the Federal Constitution). Hence, it follows that any dispute pertaining to the law of trust is outside the jurisdiction of the Syariah Court.

[9] However, it is pointed out by the learned counsel for the defendant/wife that the issue as to whether the USD50,000 was given by the plaintiff /husband to the defendant/wife as a gift is an issue which falls within the jurisdiction of the Syariah Court since both husband and wife are Muslims The learned counsel for the defendant refers to paragraph (ii)('gifts or succession') of item 4(e) of the Federal List (List I) and item 1 of the State List (List II) of the Ninth Schedule of the Federal Constitution.

[10] Now, accepting that the above propositions on jurisdiction are correct in law, still the present dispute cannot be taken out from this Court and be transferred to the Syariah Court. This is because under the Federal Constitution the Syariah Court has no jurisdiction to hear disputes pertaining to the law of trust. If I were to transfer this case to the Syariah Court for the Syariah Court to determine the issue pertaining to the gift, at the Syariah Court the plaintiff /husband will raise the issue that the money was given to the defendant/wife, not as a gift, but to be held on trust for his benefit. As this issue of the creation of a trust under the ordinary law (or civil law) is intertwined with the issue pertaining to the giving of a gift under Islamic law, the Syariah Court must also determine whether a trust was created - but then this is a matter which the Syariah Court is jurisdictionally inco