Sproule AGCJ:

Shaika Fatimah on 29 April 1921, executed a Will and Testament conforming to the provisions of our Wills Ordinance No. 3.

Five Years later she appended to this document an instrument which, for the purpose of this judgment I freely translated as follows, omitting full family names and descriptions:

Verily Shaika Fatimah ... gives in Nasr to Syed Salim the house in her name No. 16 Robinson Road at Singapore and the house at Shibam named "Darawadanah" on the condition that the property shall become the property of the donee three days prior to her death if she dies through illness or one day prior to her death in the event of her dying suddenly. She understands that a Nasr deprives her of her property. Made of her own accord whilst of sound mind and enjoying freedom of action and acknowledging the Nasr.

(Signed) Fatimah binte Thah bin Ali Al Tway.

Her acknowledgment at her request is written and witnessed by (signed) Abubakar bin Mohamed Al Tway.

Witnessed by (two persons who also witnessed the Will).

The above Nasr is correct. Declared and written by the Kathick of Shibam (signed and sealed by him).

His Signature (witnessed by Hussain Acmathar).

Let all Praise be to God.

Probate has been taken out by the Executors of the Will and an Order has been made by this Court that Sadiah binte Abdullah a residuary legatee should represent all parties except the Nasr donee, syed Sallim Almathar. An Issue was ordered to be tried, with these two as protagonists, whether the above addition to the Will is a good Codicil and Testamentary instrument or not.

The position appears to be that Testatrix wished to make this gift but she or her relatives and advisers were doubtful whether by so doing she might not exceed the power of disposition of more than one third of her Estate without the consent of her heirs as required by Mohamedan Law. They appear to have hit upon the solution of a fiction nasr to save testatrix from all danger of disconforming from the law of Islam.

A Nasr is a kind of bargain with the Almighty. A donor vows, conditionally upon recovery from an illness, or the fulfilment of some other dear wish, that he will make a gift, it may be a sacrificial offering, it may be to charity or to some individual for the sake of God. If the heart's wish be granted then the vow in God's name becomes irrevocable by a devout Mohamedan.

In our case there is no evidence of any prayer for the granting of any dear wish, nor of the vouchsafing of that prayer. There is moreover no evidence of a vow, made in advance, to become binding conditionally upon the granting of any such prayer. There appear to be no more than the legal fiction of a nasr intended to ensure a devout Mohamedan from possibly infringing the restriction placed by the Islamic law upon disposition of wasihat.

The nasr, moreover appears to call for performance of the gift immediately, irrevocably and inter vivos. Testatrix therefore is made to confess herself as barred by the fictitious nasr. But the further fiction by which she purports to make the gift binding inter vivos and irrevocable is worthy of the fabric of legal fiction of our own Judge-made system of 150 years ago. The gift is to be deemed to be of effect three days before her death if natural one day before, if sudden.

It is very clear to me that in neither case could the gift actually take effect at all except after and by reason of the donor's death. As for irrevocability that is an incident of nasr no doubt, but how far can it be relied upon as an argument in the case of a fictional nasr like ours.

Again, the gift is of immoveables in Singapore and our own system of law is prima facie applicable.

Again we have never allowed our Wills Ordinance to be subordinated to Islamic law and never recognised any limitation upon the testamentary power completely to dispose. For example we do not recognise, as Islamic law does, an oral Will. And we have applied our own s. 13 and held that the Wi