SINGAPORE (The Straits Times\/ANN): The granddaughter of a philanthropist who died in 1935 has lost her claim for income from Islamic charitable trusts (wakaf) he left, which included land he donated to build a mosque a century ago.<\/p>\n
Fauziyah Mohd Ahbidin, a kitchen helper who is in her late 60s, had filed a lawsuit against the Islamic Religious Council of Singapore (MUIS) in 2019 to seek a declaration of her grandfather\u2019s will, which she contended entitled her to two-fifths of the net income from the properties her grandfather had placed in wakafs.<\/p>\n
Under Singapore law, a wakaf is a permanent dedication of assets by a Muslim for religious or charitable purposes.<\/p>\n
The assets are legally vested in MUIS, which manages them to generate income that is distributed to beneficiaries. The original assets are preserved in perpetuity.<\/p>\n
Fauziyah\u2019s grandfather, Ahna Mohamed Kassim Ally Mohamed, had created wakafs for the establishment of a mosque known as Masjid Kassim and a burial ground known as Kubur Kassim.<\/p>\n
A key issue in the case was whether the Indian Muslim merchant was a follower of the Hanafi sect or the Shafie sect of Islam.<\/p>\n
A wakaf is generally irrevocable. But views are split under the Hanafi school of jurisprudence, with the minority view considering it theoretically possible to revoke a wakaf.<\/p>\n
Fauziyah claimed that Kassim was a Hanafi, and that under the minority view, a wakaf may be varied.<\/p>\n
In a written judgment on May 14, High Court Judge Mohamed Faizal found that the will was valid and that Kassim had intended to grant his son a two-fifth share of the income from the wakaf properties.<\/p>\n
However, the judge also concluded that Kassim was a follower of the Shafie school of thought.<\/p>\n
Under Shafie jurisprudence, a wakaf cannot be revoked or altered.<\/p>\n
In rejecting Fauziyah\u2019s claim that Kassim was a Hanafi, the judge highlighted a probate filing in 1962 where Kassim\u2019s son \u2013 Fauziyah\u2019s father \u2013 declared on oath that his father was a Shafie.<\/p>\n
The judge added that even if Kassim was a Hanafi, Fauziyah\u2019s bid to vary the wakaf would still fail.<\/p>\n
He ruled that the majority view applies in Singapore for followers of the Hanafi sect.<\/p>\n
\u201cFor reasons of doctrinal logic, reasonableness and context appropriateness, a Hanafi in Singapore cannot revoke or vary a wakaf previously dedicated,\u201d said the judge.<\/p>\n
The plots of land on which Kubur Kassim stood were compulsorily acquired by the Government in 1987 and are not part of the current claim.<\/p>\n
Fauziyah had filed a separate lawsuit against the Government over these plots of land in 2019. The suit was discontinued in 2021.<\/p>\n
The land involved in the case has evolved to consist of not only the mosque, but also the East Bay Gardens condominium as well as shop and office spaces at Wisma Indah, a mixed-use complex.<\/p>\n
A check by The Straits Times of the latest MUIS annual report showed that the accumulated fund from the Kassim wakafs amounted to S$23 million.<\/p>\n
The Kassim fund reported a net surplus of $1.26 million for the 2024 financial year, a net surplus of $106,000 for 2023, and a net deficit of $202,000 for 2022.<\/p>\n
Poor son<\/p>\n
Between 1914 and 1927, Kassim signed a series of legal documents to create the wakafs. He was childless at the time.<\/p>\n
In 1928, his only child, Mohamed Ahbideen Mohamed Kassim, also known as Ahna Mohamed Zainal Abidin Kassim, was born.<\/p>\n
On Nov 23, 1932, Kassim appointed new trustees, including himself, for the wakafs, and on Dec 9 that year, he also made a will.<\/p>\n
The will was described by the judge as Kassim\u2019s \u201cimperfect\u201d attempt to reserve income for his son in the light of the change of circumstances.<\/p>\n
A clause in the will directs the trustees to divide the net income of his \u201cendowed properties\u201d into five shares, with two shares to be given to himself and, upon his death, to \u201cdevolve upon (his) son who is poor\u201d.<\/p>\n
The three other shares were to go towards wages of the employees at the mosque and burial ground, and the costs of repairs.<\/p>\n
In dismissing Fauziyah\u2019s claim in relation to the will, the judge made clear that he appreciated the human dimension that underlies her case.<\/p>\n
But he said bending settled legal principles would \u201cdo violence\u201d not only to the governing legal framework, but also to the very institution of the wakaf.<\/p>\n
\u201cOne can readily understand the plaintiff\u2019s deep sense of grievance that her father, Zainal, and by extension herself, never received what she genuinely believes Kassim intended for Zainal to enjoy,\u201d he said.<\/p>\n
\u201cNonetheless… the courts are not at liberty to reshape the law in response to sympathy, however genuine it may be.\u201d<\/p>\n
Kassim died on July 31, 1935. His widow remarried and had two other children.<\/p>\n
In February 1936, Kassim\u2019s widow and her father filed a petition to administer Kassim\u2019s estate under a will.<\/p>\n
In August 1962, Zainal also filed a petition seeking to administer Kassim\u2019s estate.<\/p>\n
Zainal, who ran a teh tarik stall, died on April 29, 2011.<\/p>\n
He bequeathed all his assets, including his share to the inheritance of Kassim\u2019s estate, to Fauziyah, his only child.<\/p>\n
In May 2014, Fauziyah was granted probate of his estate.<\/p>\n
At the time, she had applied for an inheritance certificate from the Syariah Court on the basis that Zainal died as a Shafie.<\/p>\n
However, in May 2019, she reapplied for a new inheritance certificate, this time on the premise that Zainal died as a Hanafi.<\/p>\n
In July that year, she filed the current suit.<\/p>\n
In September 2021, she obtained an inheritance certificate declaring that Kassim was of the Hanafi school. She then filed for probate seeking to administer Kassim\u2019s estate.<\/p>\n
In May 2022, Fauziyah and MUIS entered into a deed of undertaking, in which the statutory board reserved its right to dispute the correctness of Kassim\u2019s inheritance certificate in the suit.<\/p>\n
This was done to avoid unnecessary costs and delay of the probate matter.<\/p>\n
In the suit, Fauziyah, who was represented by Mr Kirpal Singh, argued that the court can enforce Kassim\u2019s will because the minority Hanafi view allows a wakaf to be varied.<\/p>\n
She also argued that a donor can retain a portion of the income from wakaf properties while keeping the capital intact.<\/p>\n
MUIS, represented by Mr Mirza Namazie, argued that Kassim was a Shafie.<\/p>\n
Even assuming Kassim was a Hanafi, said MUIS, this case concerns a wakaf for a mosque, which is unanimously viewed as irrevocable by all jurists of the Hanafi school.<\/p>\n
MUIS added that a donor who wants to reserve income for himself must explicitly state so when the wakaf is created.<\/p>\n
The judge rejected Fauziyah\u2019s argument that a reservation of income does not amount to a revocation or variation of a wakaf.<\/p>\n
He pointed out that diverting a portion of the income would permanently deprive the wakaf of that sum of money.<\/p>\n
On Kassim\u2019s sectarian affiliation, the judge said there was no evidence to suggest that Kassim was Hanafi.<\/p>\n
He noted that Zainal\u2019s 1962 declaration that Kassim was Shafie was not part of the standard form but specifically added to the document.<\/p>\n
He rejected Fauziyah\u2019s argument that Zainal was mistaken, pointing out that she was not in a better position to know Kassim\u2019s background.<\/p>\n
The judge said her actions to change Zainal\u2019s affiliation before she filed the suit, and her bid to alter Kassim\u2019s affiliation after she filed the suit, \u201cappears to be far too precise to be accidental\u201d.<\/p>\n
He added that it was \u201cimpossible to accept\u201d her account that she found the will in 2014, given that Zainal died in 2011.<\/p>\n
It also transpired that she was already in discussions with MUIS in relation to the will from as early as 2006, although the specifics were not revealed to the court.<\/p>\n
Fauziyah has filed an appeal against the decision. — The Straits Times\/ANN<\/p>\n
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