JUDGMENT

John Lee Kien How @ Mohd Johan Lee J:

(Enclosure 129 — Notice Of Application By The 2nd Defendant To Refer Several Questions Of Islamic Law (Shariah) To The Kedah Shariah High Court Under Article 121(1A) of the Federal Constitution and/or Section 24A(1) of the Courts of Judicature Act 1964 And/Or Section 13(3)(b) Of The Shariah (Kedah Darul Aman) Enactment 2008 And/Or Order 4 Rule 92 Of The Rules Of 2012)

Facts Of The Case

[1] This is an application filed by the 2nd defendant in encl 129 ("this Application") to seek permission to refer several Shariah issues to the Kedah Shariah High Court . This referral is sought under art 121(1A) of the Federal Constitution and/or s 24A(1) of the Courts of Judicature Act 1964 and/or s 13(3)(b) of the Shariah (Kedah Darul Aman) Enactment 2008 and/or under the inherent jurisdiction of the Court pursuant to O 92 r 4 of the Rules of 2012.

[2] On 12 July 2011, Almarhum DYTM Tunku Haji Abdul Malik Ibni Almarhum Sultan Badlishah (the "late DYTM Tunku Malik"), at the age of 82 years old, opened a joint fixed deposit account (Account No: 5003413704) ("Joint Fixed Deposit Account") with the 1st Defendant. The plaintiff was named as a joint account holder of that Joint Fixed Deposit Account.

[3] Less than a year after opening the account, on 5 March 2012, the late DYTM Tunku Malik was diagnosed with Severe Stage of Dementia of Alzheimer Type and Severe Brain Atrophy, along with other serious medical conditions. Report from Hospital Sultanah Bahiyah indicated a worsening dementia condition and a decline in memory.

[4] The plaintiff premised that the late DYTM Tunku Malik executed a Letter of Hibah (gift) to give all trust monies/investment to the plaintiff and another person. However, the 2nd defendant argued that this letter did not expressly include the Joint Fixed Deposit Account. The 2nd defendant further avered that the plaintiff's claim for the money, asserted as "pemberian ikhlas" (sincere gift) from the late Tunku Malik in the plaintiff's affidavit, is essentially a claim for hibah.

[5] The 2nd defendant further posits that the account was opened and the Joint Account Mandate signed under the plaintiff's undue influence, given the late Tunku Malik's deteriorating mental health and lack of cognitive capacity to enter a contract.

[6] The late DYTM Tunku Malik passed away on 29 November 2015. On the same day, the Jemaah Pemangku Sultan Kedah issued a written instruction to all financiers and banks to freeze all accounts (personal or joint) belonging to the late DYTM Tunku Malik. This instruction was communicated to the 1st defendant on 30 November 2015.

[7] For nearly three years after the freezing of the account, the plaintiff remained silent and did not claim the monies in the Joint Fixed Deposit Account as his asset.

[8] On 26 June 2018, the 2nd defendant, who is the late DYTM Tunku Malik's niece, was appointed as the Administratrix of the late DYTM Tunku Malik's estate by the High Court of Alor Setar.

[9] On the same day of the 2nd defendant's appointment, the plaintiff's solicitors demanded the 1st defendant to release the monies in the Joint Fixed Deposit Account to the plaintiff. The 1st defendant refused, citing the freeze instructions and stating that proceeds would only be released upon joint instructions from the plaintiff and the lawful Administrator of the estate.

[10] The 2nd defendant had later obtained a Court order from the High Court of Alor Setar to include the Joint Fixed Deposit Account as part of the Amended List of Assets of the late DYTM Tunku Malik's estate.

[11] On 15 June 2020, plaintiff filed this Suit against the 1st and 2nd defendant, claiming a declaration and order that the plaintiff is entitled to withdraw all monies in the account based on the survivorship clause.

[12] The 2nd defendant then filed this Application so that several specific issues can be referred to the Kedah Shariah High Court (collectively "these Issues"):

(i) Whether the money in the Jo