Noor Jahan binti Yusoff Khan v 1. ) Amanah Raya Berhad 2. ) Juita binti Mohd Johari

Case Significance

Illustrates the limits of the originating-summons procedure for removing caveats and compelling registration of transfers where disputed questions of hibah, trust and civil-versus-Syariah jurisdiction over a Muslim estate cannot be resolved on affidavit evidence.

This High Court decision at Shah Alam concerns an originating summons seeking the removal of two private caveats lodged over freehold land belonging to a deceased estate, and an order that the Land Administrator register memoranda of transfer in the plaintiff's favour. The deceased had owned three pieces of land, some of it Malay reserved land. The estate was under administration by Amanah Raya Berhad, appointed as administrator, and the private caveats had been lodged by the deceased's daughter, sued as second defendant. The plaintiff's case rested on transfers said to have been made during the deceased's lifetime, out of love and affection, and on the priority of interests under the National Land Code. The court had to weigh two distinct questions. On the removal of the caveats, it applied the settled approach that a caveator with a caveatable interest may maintain the caveat where there are serious questions to be tried and the balance of convenience favours preserving the status quo; the daughter, as a beneficiary claiming a share in the distribution of the lands, had such an interest, and the court declined to remove the caveats. On the request that the Land Administrator be directed to register the transfers, the court held that the underlying question — whether there had been a valid hibah (inter vivos gift) of the property of a Muslim deceased — could not be resolved on affidavit evidence in an originating summons, particularly given a challenge to whether the matter fell within the civil or the Syariah jurisdiction. That issue had to be pursued in the appropriate forum. The court accordingly dismissed the originating summons, with costs of RM5,000 to each defendant. The judgment illustrates the limits of the originating-summons procedure where disputed questions of gift, trust and jurisdiction over a Muslim estate arise.