Raja Azlan Shah J:

The question for determination which in the precise form in which it comes before me can be formulated as follows. It is whether a Muslim divorced husband can claim to a half share as harta sapencharian of immovable property jointly acquired by both spouses during the coverture of their marriage but registered in the name of the wife.

The latest exposition of the law on harta sapencharian was judicially considered by Briggs J in 1950 in Hujah Lijah bte Jamal v. Fatimah bte Mat Diah [1950] MLJ 63. He defined it as "acquired property during the subsistence of their marriage of a husband and wife out of their resources or by their joint efforts". After stating that "on full consideration of those cases and of the views of the learned author" in the valuable treatise of Taylor on "Malay Family Law" printed in, Part 1 of vol XV of the Journal of the Malayan Branch, Royal Asiatic Society (May 1937), the trial Judge said at p. 64:

... I think there can be no doubt that the rules governing harta sapencharian are not a part of Islamic law proper, but a matter of Malay 'adat".

And in a later passage:

In view of the clear recognition of harta sapencharian both in various States and by the courts, I am prepared to hold that the rules governing it now form part of the general law of the State ...

It is desirable to discuss the facts of that case at a later stage, but for the moment I shall endeavour to state the position of harta sapencharian in the various States of Malaya in general and in the State of Selangor in particular.

In Perak the question of harta sapencharian was set at rest by a Perak State Council Minute dated 18 January 1907, which declared and ordered to be recorded:

that the custom of the Malays of Perak in the matter of dividing up property after divorce, when such property has been acquired by the parties or one of them during marriage, is to adopt the proportion of two shares to the man and one share to the woman and that gifts between married persons are irrevocable either during marriage or after divorce". Kathis are called in as advisers on principle where claims to such property are dealt with by the Court or Collectors of Land Revenue in the case of land registered in the Mukim registers. In Teh Rasim v. Neman (Perak Supreme Court Suit No. 232 of 1919) (1937), 15/1 JMBRAS 18, it was held that a Malay divorced wife who had assisted to cultivate land acquired by the husband during the coverture was entitled to one-third share of the value of the land in spite of the proved fact that she was divorced for adultery. In Wan Mahatan v. Haji Abdul Samat (Ipoh Civil Appeal No. 27 of 1925) (1937), 15/1 JMBRAS 25 it was held that the divorced wife's share of one-third would not be defeated in divorce by tebus talak unless the consideration thereof was the waiver of her claim to harta sapencharian. The divorced woman's one-third share may be increased to one-half if she assisted in the actual cultivation of the land. Thus, Taylor at p. 55 of his work said:

... in the Perak River kampongs there is a custom almost invariably followed, by which on divorce the property acquired during the marriage is divided between the parties - the division depends on circumstances and is arranged by the two families and the Ketua kampong; if the woman assisted in the actual cultivation she can claim half. If she did not work on the land she receives a smaller share - perhaps one-third. If a man of this class earns a salary (e.g. as a Government servant) and property is bought out of his earnings the wife's share is one-third.

See in Re Elang, Re Kulop Degor and Lebar v. Niat [1937], 15/1 JMBRAS 48. However, in Wan Mahatan v. Haji Abdul Samat, supra the Kathi of Larut stated that where a woman marries a person who earns wages so that the woman does not work, property obtained during coverture is not in partnership with the woman but is appropriated to the husband alone.

In Kedah it was held that on the disso