This is an appeal and a cross-appeal against the decision of Harun J on the validity of a document purported to be awakafdeclared by the first plaintiff on 13 June 1961. The facts of the case may be stated as follows.
On 18 March 1906, equivalent to the 22nd Muharram 1324, the late Sultan Zainal Abidin of Trengganu granted large areas of land in Kemaman known as Chenderong Concession to his daughter, the late Tengku Nik Maimunah, the first plaintiff, and her husband, Tengku Ngah Omar Abdul Rahim, who was then a Minister of State, in equal shares. On the death of her husband, she inherited one-fourth of the husband’s share, thus increasing her share to five-eighths. The late Tengku Nik Maimunah had no children of her own. On 13 June 1961, she executed a document dedicating her total share in the Chenderong Concession into awakafin favour of the following beneficiaries:—
her brothers and sisters, nieces and nephews and their children;
four adopted daughters, two of whom are appellants Nos 2 and 3;
two persons who are not her blood relations, one of whom is appellant No 1; and
for religious, pious and charitable objects.
In respect of each of the dispositions to beneficiaries (1), (2) and (3), there is an ultimate disposition to the poor and the indigent. Nine years later, on 21 July 1970, the late Tengku Nik Maimunah executed another document purporting to revoke thewakafand about a month later, on 30 August 1970, she executed yet another document purporting to surrender her five-eighths share of the Chenderong Concession land to a company named as Sharikat Pembinaan Chenderong Sdn Bhd, the present respondent.
On 26 November 1970, the late Tengku Nik Maimunah commenced a civil action in the High Court, Kuala Trengganu, against Majlis Ugama dan Adat Melayu, Negeri Trengganu (in this judgment referred to as “the Majlis”), and 38 other defendants who are beneficiaries under thewakaf. She asked for a declaration claiming, among other things, that the document she executed on 13 June 1961 did not create a validwakaf. However, on 1 February 1971, afatwaby the Mufti of Trengganu stated that thewakafso created was valid, and this was duly published in the Trengganu Gazette (GN 28/1971) in accordance with the requirements of s 21(3) of the Trengganu Administration of Islamic Law Enactment No 4 of 1955. The next day, i.e. on 2 February 1971, the late Tengku Nik Maimunah withdrew her action against the Majlis, but the suit against the rest of the defendants continued. In the meantime, on 6 April 1971, the late Tengku Nik Maimunah died and the suit would have abated but for the addition of the present respondents as a second plaintiff on 16 May 1971, by an order of the court; and so proceedings continued. On 22 July 1972, Trengganu State Legislative Assembly passed an Enactment known as the Islamic Wakaf Validating Enactment No 10/1972, declaring that familywakafmade in accordance with Islamic law are not to be held invalid merely because of certain specified grounds. This Enactment which has retrospective effect came into force on 8 August 1972.
The trial took place on 15 April 1975 before Harun J who gave a judgment in favour of the validity of thewakafbut only to the extent of one-third ofwakafproperty because of s 61 of the Administration of Islamic Law Enactment of Trengganu No 4/1955. Three of the beneficiaries appealed against the decision claiming that thewakafis wholly valid and that the one-third limitation only applies to awakafmade by will or during death illness. The respondents, on the other hand, lodged a cross-appeal contending that thewakafis wholly invalid.
For the purpose of our judgment, we feel it convenient to deal firstly with the question of validity of thewakaf, and secondly, only after this question has been answered in the affirmative, will we consider the effect and scope of s 61 of the Administration of Islamic Law Enactment No 4/1955, in order to consider whether the validity of thewakafis as whole or as to one-third of thewakafproperty.
Wakafis an established Islamic institution founded on religion. The Trengganu Administration of Muslim Law Enactment No 4 of 1955 recognises two types ofwakaf, namelywakaf am(generalwakaf) andwakafkhas(special or privatewakaf). Section 2 of the Enactment defines these twowakafas follows:—
‘wakafam’ means a dedication in perpetuity of the capital and income of property for religious or charitable purposes recognised by Islamic law, and includes the property so dedicated.
‘wakaf khas’ means a dedication in perpetuity of the capital of property for religious or charitable purposes, recognised by Islamic law, and includes the property so dedicated, the income of which is to be paid to a person or persons for purposes prescribed in thewakaf.
Amongst the operative words of these definitions are “for religious or charitable purposes recognised by Islamic law” but nowhere is this expression explained in the Enactment. This Enactment does not legislate upon the substance of Islamic law, as it merely deals with the “administration” of Islamic law. The meaning of the expression “for religious or charitable purposes recognised by Islamic law” must therefore be found elsewhere. In theCommissioner for Religious Affairs v Tengku Mariam 1 MLJ 110;  1 MLJ 222 the Mufti of Trengganu issued afatwaduly gazetted under s 21 of the Enactment upholding the validity of awakafmade in favour of the settlor’s family and relatives with ultimate gifts for religious purposes. However, both the High Court and the Federal Court rejected thefatwaas being binding upon the court. Applying the decisions of their Lordships of the Privy Council inAbul Fata Mahomed Ishak v Russomoy Dhur Chowdhury(1894) 22 IA 76; ILR 22 Cal 619 andFatumah v Mohamed Salim,  AC 1 Wan Suleiman J, as he then was, held that thewakafwas invalid. In the Federal Court its validity was saved on a narrow technical ground in that, because the beneficiaries had by their conduct previous to the suit accepted the validity of thewakaf, the doctrine of estoppel precluded them from challenging its validity. Nevertheless, Suffian FJ as he then was, writing the main judgment of the court, re-affirmed as did the East African Court of Appeal inFatumah, that the decisions of their Lordships of the Privy Council onwakafwere binding, upon the court and suggested that the embarrassing situation should be rectified by legislation.
What then is the law as enunciated by these decisions? According toMohamed Ahsanullah Chowdhry v Amarchand Kundu(1889) 17 IA 28; ILR Cal 498 awakaffor the benefits of the settlor’s family, children and descendants and for charity, will only be valid if there is a substantial dedication of the property to charitable uses at some period of time or other. In any case, such awakafwill not be valid if the primary object is for the aggrandisement of the settlor’s family and the gift to charity is illusory either because of its small amount or of its uncertainty or remoteness of objective (Abul Fata). This latter decision created dissatisfaction amongst the Muslim scholars and jurists in India and as a result of representations and protests, the Indian legislature passed the Mussalman Waqf Validating Act VI of 1913; and as the Act was not given retrospective effect, another validating Act was passed in 1930, thereby saving any familywakafwith the ultimate object for charity from invalidity irrespective of whether it was created before, on or after 1913. It was thought until recently that the decision of their Lordships inAbul Fatawas purely confined to Muslim law as applied in India. However, this belief was rejected by their Lordships inFatumah v Mohamed Salimin which their Lordships re-affirmed the correctness of their decision inAbul Fataand thus cleared all doubts as to the scope of their decision being confined to India only. Their Lordships said that they “cannot accept the theory .... that the interpretation of the Mohammadan law given by this Board in a series of cases is confined to the law as applied or administered in India.” (p 14)
Such is briefly the development of Muslim law onwakafin India.
Reverting to Muslim law in Trengganu, thewakaflaw seems to follow the same course of events as it did in India. The suggestion by the Federal Court that the embarrassing situation created by the precedents of their Lordships of the Privy Council’s decisions should be corrected by legislation, was accepted by the Trengganu State Assembly which subsequently on 22 July 1972, passed the Islamic Wakaf Validating Enactment No 10 of 1972. The Enactment received the Royal Assent on 3 August 1972 and thus on that date became law. So just as in India the Privy Council’s decisions on familywakafwere nullified by the Mussalman Waqf Validating Acts of 1913 and 1930, in Trengganu their decisions which the court considered binding inTengku Mariamare similarly nullified by legislation, i.e. the Islamic Wakaf Validating Enactment 1972.
The Islamic Wakaf Validating Enactment 1972 does not purport to lay down what the constituent elements of a validwakafare. These, however, must be determined with reference to the definition given by s 2 of the Administration of Muslim Law Enactment No 4 of 1955 and in turn with reference to pure Islamic law and text. What the Enactment does is merely to declare that awakafwill not be held invalid merely because “among other purposes” of thewakafare the following four objects, namely —
that thewakafis for the maintenance and support wholly or partially of the settlor’s family, children or descendants, provided that there is an ultimate gift for the benefits of the poor or any other purposes recognised by Islamic Law (s 2(1)(a);
that in the case of Hanafi sect, thewakafis for the settlor’s maintenance and support during his or her lifetime and for the payment of his or her debts out of the rents and profits of the property, provided that there is an ultimate gift for the benefit of the poor or any other purpose recognised by Islamic law (s 2(1)(b);
that the ultimate benefits reserved for the poor or other purposes recognised by Islamic law is small or postponed until the total extinction of the settlor’s family, children or descendants (s 2(2)); and
that thewakafis for the benefits of strangers, i.e. persons other than the family, children or descendants of the settlor (s 2(3).
It is noted that awakafcoming under categories (1), (2) and (3) was held invalid by the decisions of their Lordships of the Privy Council inAhsanullahandAbul Fata, and that as regards thewakafcoming under category (4), i.e.wakafin favour of strangers; this has never been the subject-matter of their Lordships’ decision. As the Islamic Wakaf Validating Enactment 1972 is merely laying down the rules preventing suchwakaffrom being held invalid, the question of its validity must be, as intended by the legislature, determined in accordance with pure Islamic law and text and not one which is largely influenced by the concept of charitable trusts and rules against perpetuities in English law.
Counsel for the respondents submitted that the Islamic Wakaf Validating Enactment 1972 has no retrospective effect and therefore has no application to thewakafin the present case which was made in 1961. Consequently, the decisions of their Lordships of the Privy Council stated above should be applicable. In our judgment, there is no merit in this submission because it is clear that s 3 of the Enactment which states —
This Enactment shall apply to allwakafcreated in the State before its commencement.
is retrospective. Thewakafcreated by the late Tengku Nik Maimunah was made on 13 June 1961, and therefore the Enactment which says what it means or means what it says must govern thiswakaf. Counsel for the respondents further submitted that even if s 3 of the Enactment gives a retrospective effect to the legislation, the proviso to this section takes thewakafin the present case completely outside the sphere of the Enactment. For this purpose, it is necessary to quote s 3 in detail, which is as follows:—
This Enactment shall apply to allwakafcreated in the State before its commencement:
Provided that nothing therein contained shall be deemed in any way to affect any rights, titles, obligation or liability already acquired, accrued or incurred before the commencement of this Enactment.
The proviso of this type is usually enacted in most legislations giving retrospective or current effect. For the proviso to apply, it must be shown that in a period between 13 June 1961, the date when thewakafwas made, and 3 August 1972, the date of the commencement of the Enactment, some rights or titles have already been acquired or accrued or some obligations or liabilities have been incurred as regards this particularwakaf. Our finding on this question is in the negative. According to the statement of facts of the case at page 19 of the Appeal Record, on 27 July 1970, the late Tengku Nik Maimunah wrote to the Majlis to revoke thewakafand on 30 August 1970 she executed an instrument of surrender purporting to surrender her share in the Chenderong Concession to the respondents. These two acts by the settlor, in our view, did not create any right nor any obligations having been incurred. It is obvious that the very act of revoking thewakafby sending a letter to the Majlis on 30 August 1970 pre-supposes her acceptance and attitude as to the validity of thewakaf. She must have regarded that thewakafwas valid, or she would not have purported to revoke it. In Islamic law, there is no question of revocation of a validwakaf. Her act in executing a surrender of the property to the respondents is consequential upon the validity of her revocation of thewakaf. Since in Islamic law a settlor cannot revoke thewakaf, likewise the purported surrender of thewakafproperty to the respondents does not give rise to rights and liabilities to anyone. In our view, the proviso to s 3 only operates as regards awakafwhich would have been invalid but for the Enactment where the parties or someone else had acted in such a way as to prejudice their positions. In this case, as no rights nor obligations have been acquired or incurred, we do not see any merits in the submission that the proviso operates to exclude thewakaffrom the sphere of the Enactment.
The Islamic Wakaf Validating Enactment 1972, whilst preventing awakaffrom being held invalid on certain specified grounds, insists that “in all other respects” awakafmust be “in accordance with the provisions of Islamic law”. Counsel for the respondents therefore submitted that thiswakafis not in accordance with Islamic law and therefore invalid because it is only the income and not the corpus of the property which is dedicated. In Islamic law, for awakafto be valid the endowment must be the dedication of the capital as well as the income. In this case, what then is the subject of thewakaf? Counsel’s submission that it is only the income which is dedicated is based on the following words of the section:—
I endow in perpetuity all the rights, interests and income derived from the 5/8 (five-eighth) share of the said Chenderong Concession ...
This sentence, however, is an English translation rendered from the original Malay version which is —
Saya telah mewakafkan dengan kekal-nya menghabisi semua hasil dan hak faedah yang didapati daripada 5/8 (lima per delapan) daripada tanah Chenderong Concession....
Here we agree with the submission of counsel for the appellants that the English translation is not accurate as it does not give any effect to the pronoun “nya” attached to the word “kekal-nya”. We also think that no effect is given to the word “menghabisi” (meaning completely or without reservation or remainder). The pronoun “nya” and the word “menghabisi” in our opinion refer to the five-eighths of the Chenderong Concession land, and that being the case, we hold that what has been dedicated or endowed is not just the income derived from five-eighths of the Chenderong Concession, but the very five-eighths of the land itself. This view is further strengthened by a clause in thewakafinstrument regarding the expenses of the management of thewakaf. Here the settlor, the late Tengku Nik Maimunah, directed that before the income is distributed to the various beneficiaries, the expenses for the management to the extent of 7/144 must be deducted from the gross income derived from “that part of Chenderong Concession that is endowed” or in Malay original “daripada tanah Chenderong Concession yang diwakafkan” (English translation at page 77, the original Jawi version at page 59 and Romanised version at page 67). It is therefore obvious that what is dedicated is not just the income or profits derived from the Chenderong Concession, but also the very land itself. Hence, we reject the submission by the counsel for the respondent.
Thewakafcreated by the late Tengku Nik Maimunah contained a long list of beneficiaries, among whom are the present three appellants. Appellant No 1, Haji Embong lbrahim, was given 3/144 shares of thewakafproperty, whilst Appellants Nos 2 and 3 were given 2/144 shares each. Appellant No 1 is not related to the late Tengku Nik Maimunah, whilst Appellants Nos 2 and 3 are her adopted daughters. It was submitted by the counsel for the respondents that thewakafis invalid because as regards Appellant No 1 thewakafis made in favour of a stranger and as regards Appellants Nos 2 and 3 it is made in favour of persons who are not members of the settlor’s family. Although Appellant No 1 is not related by blood to the late Tengku Nik Maimunah, and therefore cannot be classified as a member of her family, the disposition in his favour is clearly not to be held invalid because sub-s (3) of s 2 of the Enactment enacts as follows:—
No suchwakafshall be deemed to be invalid merely because part of the benefits reserved therein is given to person or persons other than the family, children or descendants of the person creating thewakaf.
This means that awakafin favour of a stranger, if valid in Islamic law, will not be held invalid. Inlsmail Haji Arat v Umar AbdullaAIR 1942 Bom 155, a settlor made awakafin favour of his nephew, Hoosein Noor Mahomed, and after his death to his nephew’s heirs with ultimate gifts to charity. The Bombay High Court held that Hoosein Noor Mahomed who used to reside with the settlor and was also maintained by him was a member of the family of the settlor because Hoosein Noor Mahomed passed both tests of what constitutes “a family”. He was residing in the settlor’s house for whose maintenance the settlor was mainly responsible and he was also connected with the settlor through a common progenitor or by having a common lineage. Therefore, awakafin his favour came within the ambit of s 3(a) of the Mussalman Waqf Validating Act 1913. The Bombay High Court, however, refused to uphold the validity of thewakafmade in favour of Hoosein Noor Mahomed’s heir because the heir was a stranger as he was neither residing with nor depending for his maintenance upon the settlor, nor was he connected through a common progenitor with the settlor. Chagla J who gave the judgment of the court said:—
If I were to hold that the disposition in favour of the heirs of Hoosein Noor Mahomed is a good disposition, it would amount to my holding that the settlor would tie up his property in perpetuity in favour of persons who were neither his children nor his descendants nor members of his family. I therefore hold that the disposition in favour of the heirs of Hoosein Noor Mahomed does not come within the purview of the Mussalman Waqf Validating Act and the disposition is therefore bad in law.
It must, however, be remembered that the Indian Mussalman Waqf Validating Act does not contain a provision similar to sub-s (3) of s 2 of the Trengganu Islamic Wakaf Validating, Enactment 1972, which prevents or saves awakaffrom being held invalid if otherwise valid under Islamic law merely because it is created in favour of persons other than the family, children or descendants of the person creating awakaf. For this reason,Ismail Haji Arat v Umar Abdullahcannot be an authority for the proposition that awakafto a stranger is invalid. That case simply decided on the scope of the Indian Mussalman Waqf Validating Act 1913. It is clear from the above quoted judgment, that Chagla J was still influenced by the concept of charitable trust and the rules against perpetuities as understood in English law. Whereas in our case those rules should play no part at all in the disposition of property under Muslim law. To put the matter clear, it is sufficient to reproduce s 25 of the Civil Law Enactment 1956 which is as follows:—
Nothing in this Part shall affect the disposal of any property according to Muslim law ....
“This Part” is Part VII of the Act and it deals with rules against perpetuities. However, this does not dispose the mater yet. The basic question has still to be answered, i.e. whether or not under the pure Islamic law and text awakafin favour of a stranger is valid. The study of works by distinguished Indian authors such as Ameer Ali, Tyabji and Fyzee show clearly that a disposition in favour of a stranger is valid. Fyzee, 2nd Ed, at page 252, says:—
.... Is poverty a necessary condition for obtaining benefit from awakaf?
According to Mohammadan law,wakafmay be made (i) for the affluent and the indigent alike; or (ii) for the affluent and thereafter for the indigent; or (iii) for the indigent alone. The law does not insist that a man must necessarily be proved to be poor before he can take the benefit of awakaf. Poverty is one of the many qualities that are recognised as being capable of attracting the benefit of awakaf, but it is by no means asine qua non. Therefore, all persons, regardless of considerations of wealth, are entitled to come in as beneficiaries. Nevertheless, it is perfectly correct to say that when all other purposes fail, the relief of the poor is ultimate purpose of everywakaf.
Thus it is clear that the objects of awakafmay be different from the objects of a charitable trust as understood in English law.
Ameer Aliin vol 1, 5th Ed (1976) says that awakafmay be created for the benefit of any person or class of persons or for any object of piety or charity (page 273), and among the objects of a validwakafis a gift to strangers (pages 276–277). Similarly, Tyabji, 2nd Ed (1919), after observing that the Mussalman Waqf Validating Act 1913 contains no reference to the question whether the provisions in favour of others than members of the family, children and descendants of the “waqif” (settlor) are valid, goes on to say that provisions in thewakafmay be made in favour of strangers (page 571).
InHashim Ali v Iffat Ara Hamidi Begum, (1942) 46 Cal WN 561 the Calcutta High Court has taken the view that the provision for a small pension for three of the faithful servants would not render thewakafinvalid, as the main purpose of thewakafin question was not to make settlement on those servants. InMt Akhtar Banu Begum v Kanhaiya Lal, AIR 1941 Oudh 492 it was held by the Oudh High Court that payments of sums of money directed to be made in thewakafto two servants of the settlor were valid, though they were not members of the family of the settlor. In the opinion of the court, the provisions contained in the Mussalman Waqf Validating Act 1913 are not exhaustive as the words used are “among other purposes”. InAbdul Wahab v Sughra Begum, AIR 1932 All 248 Allahabad High Court held that a disposition in awakaffor the payment of salary and pensions to servants was valid. The court in this case acting upon the opinion of Ameer Ali and Tyabji rejected the contention that for awakafin favour of a stranger to be valid, the stranger concerned must be poor. Thus a review of Indian cases on awakafin favour of stranger shows that three High Courts, i.e. Calcutta, Allahabad and Oudh benches upheld the validity of suchwakaf. Only Bombay High Court inIsmail Haji Arat v Umar Abdullaheld otherwise. Whatever force of the decision in this case may have, it is clear that it is inapplicable to our situation because the Indian Act contains no provision relating to validity of awakafmade in favour of persons other than the family of the settlor. Thus the way is open to the judge in that case to apply thewakaflaw coloured by the concept or charitable trust and rules against perpetuities as understood in English law, instead of thewakaflaw as expounded and interpreted by Muslim scholars and jurists. We therefore reject the contention that a provision for Appellant No 1 is invalid. Such provision is valid in Islamic law and further saved from invalidity by s 2(3) of the Islamic Wakaf Validating Enactment 1972.
As regards the dispositions in favour of the Appellants Nos 2 and 3 who are adopted daughters of the late Tengku Nik Maimunah, in our view, such dispositions are also valid, because not only the dispositions in favour of strangers are valid, but also because adopted daughters must be regarded to be members of the settlor’s family. It was contended that as Islamic law does not recognise adoption, adopted children cannot form part of the family of a settlor. InAbdul Mabud Khan v Nawazish Ali Khan, AIR 1925 Oudh 301, it was held that whilst distant collaterals such as cousins in the fourth and fifth degree cannot be viewed as members of the family, the word “family” in the Mussalman Waqf Validating Act 1913 includes those persons residing in the house of the settlor for whose maintenance the settlor is mainly responsible. InMt Musharraf Begum v Mt Sikandar Jehan BegumAIR 1928 All 516 it was held that awakafin favour of a widow’s son, i.e. daughter-in-law, was valid because she was held to be a member of the settlor’s family. Similarly, inIsmail Haji Aratcase, a nephew living in the house of the settlor who treated and maintained him as his son was held to be a member of the family. In our judgment, the test of what constitutes “family” adopted by these Indian cases is correct. It is one that we ourselves are disposed of to hold. We therefore hold that these two appellants being adopted daughters and living with the settlor must be regarded as members of the settlor’s family. The dispositions in their favour are valid. Even if they are not to be regarded as members of the family of the late Tengku Nik Maimunah, as strangers there is nothing in law which prevents such dispositions from being otherwise than valid. Pure Islamic law as expressed in the opinions of learned authors and as applied by a number of High Court Benches in India upholds the validity of awakafmade in favour of strangers. Furthermore, s 3(2) of the Trengganu Wakaf Validating Enactment 1972 clearly validates suchwakaf.
For the reasons stated above, we now hold that thewakafmade by the late Tengku Nik Maimunah on 13 June 1961 is valid and the cross-appeal therefore fails.
We now come to consider the appeal proper by the present three appellants. Harun J in the court below held that thewakafis valid only to the extent of one-third because s 61 of the Trengganu Administration of Islamic Enactment No 4 of 1955 enacts as follows:—
Whether or not made by way of will or death-bed gift, nowakafornazarmade after the commencement of this Enactment and involving more than one-third of the property of the person making the same shall be valid in respect of the excess beyond such one-third unless expressly sanctioned and validated by the beneficiaries.
It is the contention of the appellants that this section only deals withwakafornazarwhich is made by way of will or death-bed gift and that it has no reference whatsoever to awakafornazarmadeinter vivos. Consequently, in their submissions thewakafin this case being made during the lifetime of the settlor must be wholly valid.
According to Islamic law, a Muslim has power during his lifetime to transfer all his property to anyone, but after his death or during his death illness in the absence of consent by his heirs, he may only do so to the extent of one-third of the property. Awakafunder Islamic law can be made eitherinter vivosor by way of will. Aninter vivos wakaftakes effect immediately to divest the ownership in the property from the settlor. Consequently, the one-third limitation has no application to aninter vivos wakaf. But where awakafis created by will or made during the death illness of the deceased settlor, the one-third limitation applies unless suchwakafis consented to by the heirs. Consequently, in the absence of such consent, only the gift to the extent of one-third of thewakafproperty is valid. Reverting now to s 61 of the Trengganu Enactment, in our view, it is clear that this Enactment never contemplates of legislating upon or changing the substance of Islamic law particularly on this point which is so basic. Far from it, as it is merely an Enactment which its long title says —
To consolidate the law relating to the administration of all matters relating to the Religion of Islam and the religious courts.
Since by the unwritten Islamic law, the one-third limitation applies only to awakafornazarmade by way of will or during death illness, it can never have been the intention of the Trengganu Legislature that such one-third limitation also applies towakafmadeinter vivos, such as the one in this appeal. Furthermore, a close reading of s 61 clearly shows that it merely deals with awakafornazarmade by will or death-bed gift. It made no mention of awakafmadeinter vivos.
The expression “whether or not made by way of will or death-bed gift” must be interpreted to mean what it says. It does not and cannot, however, refer to awakafmadeinter vivoswhich is not said in the expression. The general principle expressionunius exclusio alteriusorexpressum facit cessare tacitummust therefore apply. In view of our reasonings above, we agree with the submission of the counsel for the appellants that thewakafin this case is wholly valid and that the one-third limitation contained in s 61 of the Enactment, being confined only towakafornazarmade by way of will and death-bed gift, has no application to thewakafin the present case.
Hence we allow the appeal and dismiss the cross- appeal with costs here and the court below. The deposit has to be refunded to the appellants.
Commissioner of Religious Affairs v Tengku Mariam  1 MLJ 110;  1 MLJ 222; Abul Fata Mahomed Ishak v Russomoy Dhur Chowdhury  22 IA 76; ILR 22 Cal 619; Fatumah v Mohamed bin Salim  AC 1; Mohamed Ahsanullah Chowdhry v Amarchand Kundu  17 IA 28; ILR Cal 498; Ismail Haji Arat v Umar Abdulla AIR  Bom 155; Hashim Ali v Iffat Ara Hamidi Begum  46 Cal WN 561; Mt Akhtar Banu Begum v Kanhaiya Lal AIR  Oudh 492; Abdul Wahab v Sughra Begum AIR  All 248; Abdul Mabud Khan v Nawazish Ali Khan AIR  Oudh 301; Mt Musharraf Begum v Mt Sikandar Jehan Begum AIR  All 516
Islamic Wakaf Validating Enactment Act, 1972
Trengganu Administration of Islamic Law Enactment, 1955, s 61.
Authors and other references
Fyzee, 2nd Ed
Ameer Aliin vol 1, 5th Ed (1976)
Tyabji, 2nd Ed (1919)
ST Chung (Joseph Tan with him) for the appellants.
Miss KL Chen for the respondent.
Link to : http://www.ipsofactoj.com/archive/1979/Part4/arc1979%284%29-009.htm
KUALA TERENGGANU: Mahkamah Tinggi Syariah di sini semalam, memerintahkan supaya waris Tanah Wakaf Konsesi Chenderong, Kemaman serta Majlis Agama Islam dan Adat Melayu Terengganu (Maidam), berbincang bagi menyelesaikan pertikaian berhubung tanah wakaf itu di luar mahkamah.
Hakim Sheikh Ahmad Ismail, yang membuat keputusan itu menetapkan jam 10 pagi hari ini bagi kedua-dua pihak menyelesaikan pertikaian itu tanpa perlu perbicaraan di mahkamah
Dalam saman yang dikemukakan Tengku Zainal Akmal Tengku Besar Mahmud dan Tengku Hidayah Tengku Habib (plaintif) terhadap Maidam (defendan), mereka mendakwa pihak berkenaan gagal menguruskan pajakan hartanah itu hingga menyebabkan ada waris hanya memperoleh pendapatan RM3 setahun.
Plainitif yang turut mewakili lebih 500 ketua keluarga pewaris tanah wakaf itu, antara lain menuntut ganti rugi hasil pajakan tanah.
Mereka juga memohon perintah mahkamah membatalkan semua perjanjian pajakan, selain menuntut Maidam menguruskan harta wakaf di bawah satu unit khas dianggotai wakil waris tanah wakaf, atau membenarkan waris menguruskan sendiri harta.
Perbicaraan kes akan diteruskan pada 4 Oktober ini jika proses itu gagal mencapai keputusan.
KUALA TERENGGANU - Kira-kira 500 waris tanah wakaf Chenderong Concession, di Kemaman meluahkan rasa kesal terhadap cara Majlis Agama Islam dan Adat Melayu Terengganu (Maidam) menguruskan tanah tersebut.
Mereka mendakwa, pengurusan pajakan tanah wakaf milik mereka kurang sistematik menyebabkan hasil diperoleh sedikit selain kerugian berganda sehingga ada waris menerima pendapatan RM3 setahun.
Wakil pewaris Chenderong Con-cession, Tengku Mohammed Zainal Abidin Petra Tengku Besar Mahmud berkata, jika dibandingkan nilai semasa kayu balak dan kelapa sawit, jumlah diterima tidak masuk akal.
Menurutnya, keluasan tanah Chenderong Concession yang diiktiraf Maidam seluas 63,448.923 ekar dan berdasarkan perjanjian pajakan, hasil diperoleh daripada kayu balak, perlombongan, sewa tanah dan tanaman.
“Urusan memajukan tanah ini di bawah tanggungjawab Syarikat Tis ‘Ata ‘Ashae Sdn Bhd (TAA) selaku pemajak utama keseluruhan Chenderong Concession, tapi harapan untuk melihat tanah wakaf tersebut dimajukan dan dijaga dengan baik hancur.
“TAA bertindak ‘menjual’ dan menyerahkan segala hak serta kepentingan pajakan dan pengurusan tanah itu kepada SPPT Development Sdn Bhd (SPPT) tanpa mengenakan bayaran kepada pihak wakaf.
“Lebih mendukacitakan bagaimana Maidam selaku pentadbir tanah wakaf boleh membiarkan perkara ini berlaku tanpa mengenakan syarat yang lebih menguntungkan wakaf,” katanya di pekarangan Istana Kecil Dalam Kota, Istana Maziah, di sini, semalam.
Beliau berkata, waris tanah wakaf hairan dengan tindakan Maidam bersetuju menerima bayaran hasil pengeluaran kayu balak pada kadar RM3 hingga RM5 per tan, sedangkan kadar bayaran purata ialah sebanyak RM100 per tan.
“Kita juga mempertikaikan keputusan Maidam bersetuju menerima hanya 1.5 hingga 2 peratus jumlah pendapatan pemajak daripada tanaman diusahakan, sedangkan peneroka Felda memperoleh hasil berlipat ganda,” katanya.
Tengku Mohammed Zainal Abidin Petra berkata, pihaknya mempersoalkan kenapa Maidam atau TAA tidak memilih menguruskan harta wakaf itu dan jika ia diusahakan sendiri, pendapatan dihasilkan dianggarkan RM700 juta dengan nilai keuntungan RM365 juta.
Pihaknya turut mempertikai pemilikan saham Maidam dalam pemajak utama, TAA sedangkan pada masa sama Maidam adalah pentadbir tunggal wakaf dan ia jelas ada percanggahan kepentingan.
Tengku Mohammed Zainal Abidin Petra berkata, beliau membuat tuntutan di mahkamah agar perjanjian pajakan dan serah hak dibatalkan kerana semasa perjan-jian dibuat, tanah Chenderong Concession menjadi tanah wakaf.
“Kita juga menuntut supaya hak menguruskan harta wakaf ini dilaksanakan sepenuhnya oleh Maidam di bawah satu unit khas bersama wakil waris atau waris dibenarkan mengurus sendiri melalui penubuhan sebuah syarikat.
“Tuntutan mahkamah ini dilihat sebagai satu tindakan yang positif bertujuan menjaga hak dan kepentingan pewaris wakaf ini daripada terus dikhianati serta mengalami kerugian,” katanya.
Two members of the royal house of Terengganu have filed an action against the Terengganu Islamic and the Malay Customory Land council (Maidam) for misusing wakaf land meant to be used for religious purposes.
Tengku Zainul Akmal Tengku Besar Mahmud and Tengku Hidayah Tengku Habib had named Maidam as the chief defendants of their suit which they had filed in November last year.
The two are said to be the descendents of Tengku Nik Maimunah Sultan Zainal Abidin and Tengku Ngah Tengku Abdul Rahim, both husband wife, who lived in the late 1800's and area said to be related to the Sultan at that time, Sultan Zainal Abidin III.
The sultan was said to have given the couple 25, 000 hectares of land as a gift.
The couple, in due course gave the land back to the state to be used solely for religious purposes.
Tengku Zainul Akmal Tengku Besar Mahmud and Tengku Hidayah Tengku Habib, who are said to represent more than 200 decendants, are now claiming that Maidam has reneged on its pledge and is using the land for commercial purposes. They are disputing the council's action in leasing a portion of the land within the district of Kemaman for logging and agriculture.
In their statement of claim, the two allege they are the beneficiaries of the said land which was given to their ancestors by the sultan in 1903.
The couple did not have any children but the land was divided and given to relatives.
The outcome of this case may have a huge legal bearing on status wakaf land nationwide which is estimated to be in excess of 4,000 hectares.
This makes the wakaf land in Kemaman or the Chenderong concession the biggest wakaf land in the country.
The plaintiffs content that since the late 1960's the land was used for commercial purposes.
Prior to this, the land was not developed. It was leased to Cindee Developments Sdn Bhd for 999 years which utilised the land for commercial purposes.
In 1985, Maidam agreed to reduce its lease period from 999 years to 99 years which will end in 2084.
According to the statement of claim, sometime in December 1986, a company Tis Ata Ashar Sdn Bhd owned by Menteri Besar Incorporated, Maidam and Terengganu Islamic Foundation, signed several agreements that gave Cindee Developments and SPPT Development Sdn Bhd a deed of assignment to a portion of the Chenderong concession.
Wakaf land cannot be transferred
Tengku Zainul Akmal and Tengku Hidayah claimed as the land was wakaf land, it cannot be transferred, given an ownership or leased out to a third party for a period of more than three years, according to syariah laws and the Terengganu Islamic Affairs Management Enactment 2001. The plaintiffs are seeking several remedies that:
1. A firm declaration the Chenderong concession land is wakaf land,
2. That Maidam is the rightful and sole trustee of the land and it cannot be transferred, or given ownership or leased out.
3. Maidam is prevented from violating a fatwa (edict) by the Terengganu mufti in 1971 that wakaf land cannot be transferred to a third party and that any sales and purchase agreement giving ownership or lease is null and void as it is against syaraiah law and the 2001 enactment.
4. That any agreement signed between Tis Ata with Cindee Development and SPPT Development is null and void.
Maidam: Plaintiffs no locus standi
Maidam in its statement of defence filed in February this year, meanwhile said the plaintiffs have no locus standi (legal standing) to initiate the action as they are do not represent the 292 other beneficiaries.
It also denied that the council was a party to the agreement signed between Tis Ata in 1986 and that it was never informed of any agreement to transfer the land deed to the two companies (Cindee and SPPT Development).
The council agreed that the status of the Chenderong land concession is wakaf land but it did not agree that the land could not be leased out as a trustee. It had the right to ensure income from the property to be given back in return for wakaf purposes as it may not posses the expertise.
The Kuala Terengganu Syariah High Court judge Sheikh Ahmad Ismail ordered the parties to come to an amicable solution in accordance to Islamic law.
Sheikh Ahmad, who had since recused himself from hearing the case had also fixed the case for mention on Oct 4 if there is no settlement.