Abdul Hamid Mohamad FCJ:

[1] The facts of this case have been meticulously narrated by Abdul Aziz Mohamad JCA (as he then was) in the judgment of the Court of Appeal - see [2006] 1 MLRA 685, [2006] 4 MLJ 705. I shall not repeat except to mention briefly what is relevant to the issue to be decided by this Court.

[2] Following the death of Dato' Sharibun bin Wahab ("the deceased"), Rosmawati, the first respondent in the instant appeal, a daughter of the deceased with his second wife (Puan Buruk) filed a petition for letters of administration of the deceased's estate. Later, Roslinawati, another daughter of Puan Buruk was made a joint petitioner Latifah, the third wife of the deceased, the appellant herein, and her two children were also included in the list of beneficiaries. Subsequently, the appellant entered a caveat in the deceased's estate.

[4] The petition was converted to a writ. It was agreed between the parties that the principal issue to be tried was:-

1. Whether the monies in the joint accounts of Dato' Sharibun bin Wahab (the Deceased) and Latifah binti Mat Zin (the Caveator) in Standard Chartered Bank Berhad (SCB) and Bumiputra Commerce Bank Berhad (BCBB) are the property of the Caveator, such monies having been the subject of gifts inter vivos recognizable in Islamic law as "hibah" by the Deceased to the Caveator;

1.1 in the event that the answer to 1 (above) is in the affirmative, then such monies do not therefore fall within the estate of the deceased for distribution between the beneficiaries under Faraid.

1.2 In the event that the answer to 1 (above) is in the negative, then such monies therefore fall within the estate of the deceased for distribution between the beneficiaries under Faraid.

[5] The learned High Court judge ruled that Islamic law applied for the determination of the issue. Applying what he found to be the Islamic law of "hibah" and the facts before him he ruled that there had been no "hibah" or gift of the monies in the joint accounts to the appellant.

[6] In the Court of Appeal, it was argued by the learned counsel for the appellant that the applicable law was the Federal law of banking and contract. This argument was rejected by the Court. It held that the applicable law was the law of gifts, not the law of banking or contract. The question would then be whether the applicable law in this case is the civil law of gifts inter vivos or the Islamic law of gifts inter vivos or "hibah".

[7] To the argument that because the dispute arose in a petition for administration, it was therefore a probate and administration matter the Court held:-

We cannot agree that a dispute about gift is a dispute about probate and administration, just because it arises in the context of the administration of an estate.

and, the Court further held:-

It is, therefore, our finding that the subject-matter of the dispute in this case, which is that of gifts inter vivos or hibah between Muslims, is not a probate and administration matter and is within the jurisdiction of the Syariah courts.

[8] Having come to that conclusion, the Court then, applying the provisions of art 121(1A) of the Federal Constitution held that "the civil High Court had no jurisdiction over the dispute and the orders made were null and void and h