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[1998] 3SLR(R) SINGAPORE LAW REPORTS (REISSUE) 369

LS Investment Pte Ltd


v
Majlis Ugama Islam Singapura

[1998] SGCA 55

Court of Appeal Civil Appeal No 246 of 1997


Yong Pung How CJ, L P Thean JA and Chao Hick Tin J
28 July; 8 September 1998
Civil Procedure Judgments and orders Order for retrial Whether case should
have proceeded as if begun by writ as questions of fact were involved and there should
be cross-examination of witnesses No application made to convert originating
summons into writ action or to cross-examine witnesses Parties prepared to let
matter be decided on basis of affidavit evidence Whether there was any cause for
retrial Section 39 Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed, 1993
Reprint)
Equity Defences Acquiescence Estoppel Respondent only knew of sale of
wakaf property by trustees to appellant after completion thereof Whether
respondent acquiesced to sale of property Redevelopment works undertaken by
appellant after completion of purchase Respondent did not inform appellant of its
interest in property Whether there was estoppel giving rise to equity in favour of
appellant in respect of redevelopment works
Muslim Law Charitable trusts Wakaf created by will Income of leasehold
property dedicated to certain specified objects Whether property constituted valid
wakaf under Muslim law Sections 58 and 59 Administration of Muslim Law Act
(Cap 3, 1985 Rev Ed)
Trusts Trustees Powers Charitable trust by Muslim Whether legal title to
wakaf property vested in Majlis Ugama Islam Singapura under Administration of
Muslim Law Act (Cap 3, 1985 Rev Ed) Whether trustees of wakaf property had
power of sale Whether trustees could apply to court to approve sale of wakaf
property under s 59 Trustees Act (Cap 337, 1985 Rev Ed) Administration of
Muslim Law Act (Cap 3) Section 59(1) Trustees Act (Cap 337, 1985 Rev Ed)

Facts
Sharifah Shaikah bte Syed Omar bin Ali Aljunied, the testatrix, made a will,
dated 21 November 1911, directing that either a shop or a house be purchased
out of her estate, and the income thereof be used for religious and charitable
purposes specified therein. Following her death in 1912, her executors
purchased two properties in 1913. In 1978, one of the properties was acquired by
the State.
From 1991 to 1992, the respondent, the Majlis Ugama Islam Singapura
(Majlis), made repeated requests to the trustees of the remaining property
(and their solicitors) for a copy of the will to determine if it was a wakaf
property. The requests were not acceded to, with the solicitors for the trustees
replying that they had not been able to find it.
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370 SINGAPORE LAW REPORTS (REISSUE) [1998] 3SLR(R)

On 9 July 1993, one of the trustees executed an agreement to sell the property to
LS Investment Pte Ltd, the appellant, without informing the other trustees or the
Majlis. On 2 September 1993, the trustees obtained an ex parte order under
s 59(1) of the Trustees Act (Cap 337, 1985 Rev Ed) empowering them to sell the
property and to purchase another property with the proceeds thereof. Following
the completion of the sale on 29 November 1993, the deed of assignment to the
appellant was lodged with the Registry of Deeds on 1 December 1993.
The Majlis lodged a caveat on the property on 2 December 1993 on the basis that
it was the lawful owner of the property pursuant to s 59 of the Administration of
Muslim Law Act (Cap 3, 1985 Rev Ed) (AMLA), but only came to know of the
sale on or about 4 December 1993. The Majlis then sought further information
on the will and the trust accounts.
Claiming that the existence of the caveat had only come to its notice in February
1995 when it attempted to sell the property, the appellant applied in March 1995
for the caveat to be expunged, but failed.

Held, allowing the appeal in part:


(1) The property in question was wakaf property:
(a) Although the testatrixs directions in her will had been for private
purposes, they were, nevertheless, either charitable or religious, keeping in
mind that a wakaf was a religious or pious endowment and was not to be
confused with a charity or a charitable trust as understood in English law:
at [22] to [24].
(b) Furthermore, although there was no express dedication in
perpetuity of the capital, as there was no termination of the testatrixs
dedication of the income, the logical and necessary inference was that she
had intended to consecrate and dedicate the capital as well: at [25] to [28].
(c) Nor could the constitution of the wakaf be invalidated on the basis
that it depended on the testatrix having property at the time of her death
and that there had to be moneys remaining after payment of her debts
sufficient to purchase a shop or a house. On the testatrixs death, these
were objective matters which could be ascertained and did not depend
upon contingencies which had yet to happen: at [29] and [30].
(d) Though the property dedicated did not belong to the testatrix at the
time of her death, this case was not one where a wakaf had been created
out of property belonging to another. It was created in respect of the
balance one-third of her estate and the property was acquired by the
trustees with that sum pursuant to her explicit wishes in her will: at [31]
and [32].
(2) Under s 58(2) of the AMLA, the Majlis was to administer all wakafs. The
net effect of ss 59, 62(2), 62(4) and 63(2) of the AMLA was that legal title to
wakaf properties vested in the Majlis. Therefore, the trustees of the wakaf
property in this appeal could not apply to court to approve its sale under s 59 of
the Trustees Act as they did not hold the legal title to the property: at [33] to
[37].
(3) The evidence showed that the Majlis had pursued the trustees for a copy of
Sharifahs will without success, but had had no dealings with the appellant. Nor,
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[1998] 3SLR(R) LS Investment Pte Ltd v Majlis Ugama Islam Singapura 371

in deciding to buy the property, had the appellant relied on the list of wakaf
properties vested in the Majlis which the Majlis was required by s 66 of the
AMLA to publish (and which, at the material time, could not have included the
subject property). Therefore, the appellants claim based on proprietary
estoppel, estoppel by representation and estoppel per rem judicatum failed: at
[39] to [49].
(4) Although the Majlis came to know of the sale of the property to the
appellant, it did not inform the appellant about its interest in it. Instead, it stood
idly by and let the appellants carry on with redevelopment works to the
property. Accordingly, an estoppel arose in favour of the appellant, giving rise to
an equity in its favour which would only be satisfied if it was reimbursed in full
for all expenditures actually incurred by them on account of the redevelopment
works: at [50] to [53].
(5) There was no cause for a retrial under s 39 of the Supreme Court of
Judicature Act (Cap 322, 1985 Rev Ed, 1993 Reprint) as it was clear at all times
that the parties were prepared to let the matter be decided on the basis of the
affidavit evidence: at [54] to [56].

Case(s) referred to
Abdul Rahman bin Mohamed Yunoos v Majlis Ugama Islam Singapura [1995] 2
SLR(R) 394; [1995] 2 SLR 705 (folld)
Commonwealth of Australia v Verwayen (1990) 170 CLR 394 (refd)
Crabb v Arun District Council [1976] Ch 179 (refd)
Haji Embong bin Ibrahim v Tengku Nik Maimunah Hajjah binte Almarhum
Sultan Zainal Abidin [1980] 1 MLJ 286 (refd)
Sir J W Ramsden, Bart v Lee Dyson and Joseph Thornton (1866) LR 1 HL 129
(folld)
Willmott v Barber (1880) 15 Ch D 96 (folld)

Legislation referred to
Administration of Muslim Law Act (Cap 3, 1985 Rev Ed) ss 58, 59 (consd);
ss 62, 63, 66, 114
Trustees Act (Cap 337, 1985 Rev Ed) s 59(1) (consd)
Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed, 1993 Reprint) s 39
(consd)

K Shanmugam SC and Ronald Choo (Allen & Gledhill) for the appellant;
Mizra Namazie and Tan Teng Muan (Mallal & Namazie) for the respondent.

[Editorial note: The decision from which this appeal arose is reported at [1998] 1
SLR(R) 530.]
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372 SINGAPORE LAW REPORTS (REISSUE) [1998] 3SLR(R)

8 September 1998 Judgment reserved.


Chao Hick Tin J (delivering the judgment of the court):
1 This appeal raises the question whether a certain leasehold property,
which income thereof is dedicated to certain specified objects, constituted a
valid wakaf under Muslim law and whether the property was validly sold
and assigned by the trustees to the appellant under a contract dated 9 July
1993. The respondent, Majlis Ugama Islam Singapura, (Majlis) claims
that the property is the subject of a wakaf, that the legal title to it vested in
the Majlis by virtue of ss 58 and 59 of the Administration of Muslim Law
Act (Cap 3)(AMLA) and that the purported sale by the trustees passed no
title to the appellant. The Majlis is a body corporate established under
AMLA to administer all wakafs and Muslim charitable trusts.

Background
2 We will first set out the facts giving rise to this action. On
21 November 1911 one Sharifah Shaikah bte Syed Omar bin Ali Aljunied
(the testatrix) made a will, the relevant part of which reads as follows
(translation in English is not in dispute):
She [ie the testatrix] directs to distribute her estate according to Islamic
law and after settling her debts, if she is indebted, to purchase with the
balance of the one third of her estate a house or a shop and apply the
net income of same for payments for holding celebration of the
memorials of her, her father the late Syed Omar bin Ali Aljunied, her
mother the late Sharifah Alaweyyah bte Abdullah Alkaff and her
daughter Sharifah Baheyyah bte Ali Aljunied, free supply of ten vessels
of zamzam water in the holy mosque of Mecca, furnishing a mat for
Koran reciters every night for the period between the third and the
fourth prayers and engaging annually somebody to perform the
pilgrimage and al-omrah (homage) on her behalf.
She directs that dollars three hundred only $300 out of the nett income
of her trusted property in Singapore be added to the nett income of the
property purchased for the balance of the one third mentioned above if
the latter income is not sufficient to carry all her said directions and the
balance after the fulfillment of such directions is to be applied for
charity and benevolence in general.
3 It will be noted that the will referred to her trusted property. That was
in reference to a settlement made by the testatrix on 4 June 1903 where a
number of her properties were placed on trust. Nothing in the present
action concerns that.
4 The testatrix died on 11 September 1912. In compliance with her
testamentary directions, her executors in 1913 purchased two leasehold
properties to be held on trust for the purposes directed in her will. One of
them was acquired by the State in May 1978 and the other, which is located
at No 49 Temple Street (hereinafter called the property or the Temple
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[1998] 3SLR(R) LS Investment Pte Ltd v Majlis Ugama Islam Singapura 373

Street property as the context may require) formed the subject of the
present dispute.
5 In 1990 the trustees of the property were two brothers, Syed Salim bin
Junid Aljunied (Salim) and Syed Hamid bin Junied (Hamid) and they
are distant relatives of the testatrix. On 16 January 1991 the solicitors for
Majlis wrote to the two trustees to ask, inter alia, for a copy of the will to
ascertain whether the property was wakaf property. Apparently at the time
Salim was away in Saudi Arabia. There was some doubt if that
communication reached Hamid. The request was repeated to Hamid on
4 June 1992 and 28 July 1992, followed by further reminders. On
20 November 1992 Hamids solicitors, M/s Bernard Rada & Lee (BRL)
replied stating that Hamid did not have a copy of the will and was making
inquiries about the will. On 18 December 1992, BRL informed the Majlis
solicitors that their client could not find the original Will or obtain a copy.
BRL also stated that they had searched the records of the High Court for the
years 1912 to 1916 without success and had also written to the previous
solicitors for a copy of the Will and were waiting for a reply. In spite of
further reminders, BRL never reverted thereafter.
6 Then on 16 June 1993, unknown to the Majlis, Hamid by deed
appointed Syed Hashim bin Abdulkader Alhadad (Hashim) as the new
trustee in place of Salim on the ground that Salim had since 1982 left the
Republic of Singapore to reside permanently abroad.
7 On 9 July 1993 Hamid and Hashim, as trustees, entered into a sale
and purchase agreement (the agreement) to sell the property to the
appellant with vacant possession for a sum of $800,000. A deposit of 5% of
the purchase price was required to be paid upon execution of the
agreement. The agreement referred to the will of the testator and the fact
that the executors/trustees were to utilise a third of her residual estate to
purchase a house or shophouse for the purposes set out in the will. The sale
to the appellant was expressly stated to be subject to the sanction of the
court.
8 On 2 September 1993, by way of an ex-parte application, Hamid and
Hashim applied to the High Court under s 59 of the Trustees Act (Cap 337)
that they be empowered to sell the property and to purchase another
property with the proceeds thereof. A copy of the translation of the will of
the testatrix was exhibited in the affidavit filed in support of the application.
An order in terms was granted by the High Court on 11 October 1993. The
sale to the appellant was completed on 29 November 1993. The deed of
assignment was lodged with the Registry of Deeds on 1 December 1993.
9 On 2 December 1993, the Majlis lodged a caveat against the property
claiming as lawful owner of the property under s 59 of AMLA.
10 On or about 4 December 1993 the Majlis came to know of the sale of
the property effected by Hamid and Hashim to the appellant. Subsequently
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374 SINGAPORE LAW REPORTS (REISSUE) [1998] 3SLR(R)

correspondence ensued, with the Majlis seeking to obtain further


information regarding the will and the accounts of the trust.
11 On 23 March 1995 the appellant instituted OS 285/1995 (the present
proceedings) seeking an order to expunge the caveat lodged by the Majlis
and an injunction to prohibit the Majlis from lodging any further similar
caveats against the property. The appellant said that it was only in or about
February 1995, when the appellant was seeking to re-sell the property, that
it learned of the caveat lodged by the Majlis. Majlis never, after December
1993, wrote to the appellant about its interest in the property. The appellant
admitted that it knew the property was subject to a trust created by the
testatrix in her will and that the trustees were not empowered to dispose of
the property under the will.
12 After having purchased the property the appellant, in ignorance of the
existence of the caveat lodged by the Majlis, proceeded with re-
development works. The appellant said it had incurred a re-development
cost of $543,740.63 including a sum of $100,000 as tenant compensation.

Decision below
13 In the court below Judith Prakash J ruled, following this courts
decision in Abdul Rahman bin Mohamed Yunoos v Majlis Ugama Islam
Singapura [1995] 2 SLR(R) 394, that although the trust was created in 1912,
as the dispute arose in 1995 it had to be construed in the light of s 63(1) of
AMLA which provides that where any question arises as to the meaning of
any instrument creating or affecting any Muslim charitable trust such
question shall be determined in accordance with the provisions of Muslim
law. She held that there was in this case a valid Muslim charitable trust or
wakaf and that in view of ss 58 and 59 of AMLA the property automatically
vested in the Majlis without any conveyance, assignment or transfer
whatever. As the trustees no longer had any right or title to deal with the
property, other than to carry out the trusts as directed by the testatrix in her
will, the purported sale to the appellant was void. The fact that the trustees
obtained an order of court under s 59(1) of the Trustees Act empowering
them to sell the property did not confer title in the trustees if they did not
have any. Section 59(1) of the Trustees Act only applied [w]here in the
management or administration of any property vested in trustees. She said
that the plaintiff (the appellant) could probably have a claim against the
other property which the trustees had bought with the proceeds of sale, but
she was not expressing a firm view on that.
14 The learned judge also held that the doctrine of bona fide purchaser
for value had no application in the circumstances of this case as it only
protects a purchaser of a legal interest in a property from claimants to a
beneficial interest in the same property when such purchaser can show that
he bought the legal estate in good faith for value and without knowledge of
the beneficial interest (LS Investment Pte Ltd v Majlis Ugama Islam
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[1998] 3SLR(R) LS Investment Pte Ltd v Majlis Ugama Islam Singapura 375

Singapura [1998] 1 SLR(R) 530 at [26]). In any case she also found on the
evidence that the appellant was not a bona fide purchaser. If the appellants
solicitors had done a proper tracing of title the appellant would have
noticed that the property was purchased for the purposes of trusts declared
in the will of the testatrix. Furthermore, in a April/May 1993 issue of the
Law Societys circular, attention of members of the Society was drawn to the
provision of AMLA regarding the Majlis interest in properties subject to
any Muslim charitable trust or wakaf. Thus she held there was constructive
knowledge on the part of the appellants solicitors and accordingly of the
appellant. Enquiries should have been made by the appellant with the
Majlis.
15 For these reasons the learned judge refused to grant any relief to the
appellant and instead declared that the leasehold interest in the property
vested in the Majlis and ordered that the registration of the deed of
assignment lodged by the appellant on 1 December 1993 be expunged.

Issues before us
16 Two main questions are canvassed before us. First, what is the nature
of the trust created by the will of the testatrix. If it is a wakaf then following
s 59 of the AMLA, legal title in the estate vests automatically in the Majlis
and the trustees would have had no title whatsoever to pass to the appellant.
Second, is the appellant entitled to relief as against the Majlis on the ground
of estoppel. We shall now examine each of these in turn.
17 Although AMLA only became law in Singapore in 1968, it applies to
all wakafs which existed as of that date. This is not disputed by the
appellants counsel and cannot really be disputed: see ss 58(2) and 63(1) of
AMLA and Abdul Rahman bin Mohamed Yunoos v Majlis Ugama Islam
Singapura ([13] supra) which decided this very point. But he raised the
following arguments to submit that in this instance there was no valid
wakaf
(a) The testatrixs directions were primarily for private and not
charitable purposes.
(b) Only the income, and not the capital, was directed to be applied
for the purposes set out in the will.
(c) Its constitution was dependent on contingencies.
(d) The property was not vested in the testatrix at the time of her
death.

Private and non-charitable purposes


18 We will at this juncture set out the provisions of s 58(2) of AMLA:
Notwithstanding any provision to the contrary in any written law or in
any instrument or declaration creating, governing or affecting the
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376 SINGAPORE LAW REPORTS (REISSUE) [1998] 3SLR(R)

same, the Majlis shall administer all wakaf, whether wakaf am or wakaf
khas, all nazar am, and all trusts of every description creating any
charitable trust for the support and promotion of the Muslim religion
or for the benefit of Muslims in accordance with the Muslim law to the
extent of any property affected thereby and situate in Singapore.
19 It will be noted that s 58(2) refers to all wakaf whether wakaf am or
wakaf khas and AMLA has defined wakaf am and wakaf khas as
follows:
wakaf am means a dedication in perpetuity of the capital and income
of property for religious or charitable purposes recognised by the
Muslim law and the property so dedicated;
wakaf khas means a dedication in perpetuity of the capital of property
for religious or charitable purposes recognised by the Muslim law, the
income of the property being paid to persons or for purposes specified
in the wakaf, and the property so dedicated;
It differentiates between religious and charitable purposes and more
importantly in relation to wakaf khas the income of the property need not
be given to charitable purposes as it could be paid to persons or for
purposes specified in the wakaf.
20 Counsel for the appellant argued that the words creating any
charitable trust etc in s 58(2) qualified not only the expression all trusts of
every description, which is not disputed, but also the words before that
expression, namely, all wakaf, whether wakaf am or wakaf Khas, all nazar
am. We should add that nazar am is also separately defined in AMLA. In
our opinion, this construction of s 58(2) is wholly untenable as a matter of
plain language. To construe it in the way contended by counsel would be
inconsistent with the separate and distinct definitions of wakaf am,
wakaf khas, and nazar am provided in the Act and would render those
definitions redundant.
21 It is clear that the concept of wakaf is quite different from that of the
English law of trust as the following statements in Outlines of
Muhammadan Law by AA Fyzee (4th Ed) at pp 280281 will show. Under
ss 63(3) and 114 of AMLA, this book is one of seven authorities on Muslim
law on which the court can rely upon.
The essentials of wakf may now be summarized. The motive in wakf is
always religious; in trust, it is generally temporal; this is the first
characteristic.
Secondly, wakf is a foundation endowed in perpetuity. In the eye of the
law the property belongs to God, and as such, the dedication is both
permanent and irrevocable. The property itself is detained or, to use
the expressive language of French lawyers, it is immobilized and no
further transfers can be effected. In a trust, permanency is not an
essential condition; a trust of property for the benefit of A and
thereafter absolutely to B is a valid trust terminable on the death of A.
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In Islamic law, a wakf is not terminable; it is Gods property and should


be as permanent as human ingenuity can make it. Permanency is
ensured by the legal fiction that the property is transferred to the
ownership of Almighty God.
Thirdly, in a trust, the settlor himself can lawfully take an interest; but
in a wakf, except in the case of the Hanafis, a wakf is not entitled to take
any benefit in the wakf property.
Fourthly, it is now established beyond any possibility of doubt that any
property capable of being endowed in perpetuity can be the subject-
matter of wakf. There is in this respect no distinction between a wakf
and a trust.
And fifthly, as to the administration, a trustee differs widely from a
mutawalli. A mutawalli is merely a procurator, manager or
superintendent, the property is not vested in him and he is not a
trustee in the technical sense.
22 A wakaf is a religious or pious endowment and although it often
provides for charities, it should not be confused with a charity or a
charitable trust as understood in English law. Wakafs may be divided into
three classes,
(a) in favour of the rich and the poor alike;
(b) in favour of the rich and then the poor;
(c) in favour of the poor alone.
And this is how Fyzee explained (at p 282) in relation to each class:
The first class of wakafs would comprise what might be termed in
modern law public trusts of a charitable or beneficial character; for
example, schools or hospitals open to all persons. The second class
would include family wakafs in favour of a settlors family, the ultimate
of which goes to the poor. The third class would comprise endowments
for giving food, clothing or medical relief to the needy alone.
23 It does not follow that for there to be a valid wakaf, the objects must
be charitable and cannot be private. Again to quote from Fyzee (at p 294):
the real purpose of making a wakaf is to acquire merit in the eyes of the
Lord; all other purposes are subsidiary. Therefore, every purpose
considered by the Mohammadan law as religious, pious or charitable
would be considered valid.
24 In our present case, the purposes for which the testatrix had directed
that the income of the property be utilised for, are the following:
(a) holding celebration of the memorials of her, her parents and her
daughter;
(b) free supply of ten vessels of zamzam water in the holy mosque of
Mecca;
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378 SINGAPORE LAW REPORTS (REISSUE) [1998] 3SLR(R)

(c) furnishing a mat for Koran reciters every night for the period
between the third and fourth prayers;
(d) engaging annually somebody to perform the pilgrimage and al-
omrah (homage); and
(e) the balance, after the fulfillment of such directions (which if
insufficient is to be supplemented by a sum of $300 from her trust
property in Singapore), for charity and benevolence in general.
Objects (b) and (c) are clearly religious and generally charitable. Objects (a)
and (d) are religious though private. Object (e) would of course be
charitable as it says. We do not see how it could be contended that any of
these objects are bad under Muslim law and would endorse the decision of
the Legal Committee of the Majlis that the wakaf created by the testatrix is
good.

Income and not capital


25 We move to the next argument that only income, and not capital, has
been dedicated to the wakaf. Admittedly, there is no express statement that
the property was dedicated to constitute the wakaf. In both the definitions
of wakaf am and wakaf khas the reference is to a dedication in
perpetuity of the capital. There must be a tying down of the capital or
corpus itself. Reliance was placed on the Malaysian case of Haji Embong bin
Ibrahim v Tengku Nik Maimunah Hajjah binte Almarhum Sultan Zainal
Abidin [1980] 1 MLJ 286 where the court held that for a wakaf to be valid,
the endowment must be the dedication of capital as well as income.
26 However, it must be borne in mind that the dedication of the income
of the property for the objects set out in the testatrixs will is perpetual. We
think there is much force in the submission of counsel for the Majlis that if
there is no termination of the dedication of the income, the logical and
necessary inference must be that the testatrix intended to consecrate and
dedicate the capital as well. This view is supported by the following passages
from Ameer Alis Mohammedan Law (5th Ed) at pp 22021, another
recognised work under ss 63(3) and 114:
In case of ambiguity, therefore, if the wakif be alive, he would be the
person to explain his meaning, but if he be dead, his intention is to be
gathered from the surrounding circumstances, and the evidence of the
manner in which the proceeds of the property have been applied. (1) If
a man were to say simply, Buy out of the produce of this my mansion
every month ten dirhems worth of bread, and distribute it among the
poor, according to the Fatawai Alamgiri this is sufficient to constitute
a dedication of the house for that purpose.
But no express word is necessary to constitute a wakf so long as it is
clear that the intention of the donor is to devote the use of the
property permanently to a good object; eg, if a man were to say,
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[1998] 3SLR(R) LS Investment Pte Ltd v Majlis Ugama Islam Singapura 379

give so much out of the income of this my house to buy bread with for
the poor, that is sufficient to create a wakf.
In the thirteenth section of the Jamaa-ul-Fusulain, it is stated that if a
person were to say, this room or this house is for lighting such a
mosque, and add nothing further, it would constitute a valid wakf, for
such a purpose is sufficient.
27 A similar view was adopted in Abdul Rahman ([13] supra) where
income from a half share in a house was directed to be utilised for certain
purposes as set out in a will. There the court stated (at [19]):
Obviously the undivided half share in 34 Arab Street was also
dedicated to the wakaf declared by the testator for without such
dedication there would be no income to perform the wakafs.
28 We would reiterate the views expressed in Abdul Rahman and declare
that in relation to the present case as the income from the property is
dedicated in perpetuity it must follow that the testatrix intended a similar
dedication of the property which is to produce the income.

Contingencies
29 The argument of the appellant under this sub-head is that a wakaf
cannot validly be constituted if its constitution is dependent upon a
contingency. The appellant says that here there were three contingencies
upon which the constitution of the wakaf depended:
(a) the testatrix must have property at the time of her death;
(b) there must be moneys remaining after payment of her debts;
and
(c) the moneys remaining must be sufficient to purchase a shop or a
house.
30 While it is not disputed that a wakaf cannot be validly constituted if it
depends on a contingency which may or may not occur, the real question is,
are the three alleged contingencies truly contingencies. The appellant does
not dispute that a wakaf can be created by a will so long as the wakaf does
not encompass more than one-third of the testators assets. The authorities
are clear on that. But we do not see the three alleged contingencies being
truly contingencies as if they were events which could or could not have
happened. Upon the death of the testatrix what assets were hers and what
debts were hers were objective matters which could be ascertained. They
did not depend upon events which had yet to happen. In Ameer Alis
Mohammedan Law (5th Ed) the learned author states the following as an
example of a contingency (at p 545): Nor can a wakaf be made dependent
upon a contingency which may never occur, as for example, I make a wakaf
on condition that Zaid should come. In our present case what would be
the sum available to carry out the objects of the testatrix was capable of
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380 SINGAPORE LAW REPORTS (REISSUE) [1998] 3SLR(R)

being ascertained and with that sum the executors/trustees were to


purchase a house/shop to produce income. There was nothing contingent
about that. Accordingly, we hold that there is no merit in this contention of
the appellant.

Property not vested in testatrix

31 The appellant contends that for there to be a valid wakaf, the property
dedicated must belong to the settlor/testatrix. In the present case, the
property was purchased by the trustees after the death of the testatrix and it
did not belong to the testatrix at the time of her death. Reliance was placed
upon Baillie on Digest of Moohummadan Law (another recognised work)
where the learned author stated at p 562:
It is also a condition that the thing appropriated be the appropriators
property at the time of the appropriation; so that if one were to usurp a
piece of land, appropriate, and then purchase it from the owner it
would not be a wakf.

There are also similar statements in other authoritative works such as


Ameer Ali on Mohammedan Law.

32 It seems to us clear that what the learned authors are saying is that a
person cannot create a wakaf out of a property which does not belong to
him but to others. This is obvious. You cannot create wakaf out of other
peoples things. But that is not the position in our case here. The wakaf
created by the testatrix was in respect of the balance one-third of her estate
and the property was acquired by the trustees with that sum pursuant to the
testatrixs explicit direction in the will. The testatrix did not seek to create a
wakaf out of property which did not belong to her. In our opinion, this
argument is without merit. The comparison is wholly inappropriate.

Trustees have power of sale

33 A related argument of the appellant is that even assuming that the


legal title to the property vests in the Majlis, the trustees of the property still
had a power of sale. Counsel submitted that as s 58(4) of AMLA allows the
trustees to manage the wakaf, this should include the power to apply to
court to approve the sale of a wakaf property and the purchase of another
property in substitution thereof. The appellant said that under general
Muslim law a trustee may apply to court for substitution and cited AA
Fyzee on Outlines of Muhammadan Law (4th Ed) in support thereof, where
the learned author stated (at p 289):
As a wakaf is a permanent endowment, perpetuity is ensured by the
doctrine that wakf property belongs to God and cannot be alienated by
human beings for their own purposes. Hence the rule of law that wakf
property is not alienable.
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[1998] 3SLR(R) LS Investment Pte Ltd v Majlis Ugama Islam Singapura 381

Although wakf property cannot be sold, transferred or encumbered, in


a fit case the mutawalli (the trustee) may apply to the court, and for the
protection or the better management of the wakf, he may sell or grant
leases with the courts express permission. The prohibition to sell must
not be confused with a mere variation of investment, and the courts
have often consented readily to allow an alteration in the form of
investment.

34 The appellant contended that the right of the trustees to apply to


court for approval is not altered by s 59 of AMLA. Since under s 58(4) the
trustees are given the power to manage the wakaf, this power to manage
must include the power to apply to court.
35 It seems to us that the position as set out by Fyzee above is the
position under general Muslim law. That would have been the position in
Singapore prior to the coming into operation of AMLA. The authority
given under s 58(4) to the trustees of a wakaf to manage the wakaf is
expressly subject to the provisions of AMLA. It will be recalled that under
s 58(2), the Majlis is to administer all wakafs. AMLA clearly draws a
distinction between administer and manage. In our opinion what is
encompassed in the function to administer must be viewed in the light of
the following provisions in that Act:
59 All property subject to section 58 shall if situate in Singapore
vest in the Majlis, without any conveyance, assignment or transfer
whatever, for the purpose of the Baitulmal, wakaf or nazar am affecting
the same.
62(2) If from lapse of time or change of circumstances it is no longer
possible beneficially to carry out the exact provisions of any wakaf or
nazar am, the Majlis shall prepare a scheme for the application of the
property and assets affected thereby in a manner as closely as may be
analogous to that required by the terms of such wakaf or nazar am and
shall apply the same accordingly:
Provided that the Majlis may, with the approval in writing of the
Minister, direct that such property and assets shall be added to and
form part of the Fund.
62(4) All instruments creating, evidencing or affecting any wakaf or
nazar am, together with any documents of title or other securities
relating thereto, shall be held and retained by the Majlis.
63(2) If in the opinion of the Majlis the meaning or effect of any
instrument or declaration creating or affecting any wakaf or nazar is
obscure or uncertain, the Majlis may refer the same to the court for
construction of the instrument or declaration, and shall act in
accordance with the construction so given by the court.

36 The net effect of these provisions is that legal title to wakaf properties
vests in the Majlis; that the Majlis shall hold the documents of title relating
to wakaf properties; that it is for the Majlis to prepare any cy prs scheme;
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382 SINGAPORE LAW REPORTS (REISSUE) [1998] 3SLR(R)

and that it is for the Majlis to refer to court for an opinion if the meaning or
effect of any instrument creating a wakaf is obscure or uncertain. In our
opinion, in the light of the scheme of things laid down in AMLA, we do not
think that it falls within the province of the trustees, as managers, to apply
to court to approve the sale under s 59 of the Trustees Act. The trustees did
not hold the title to the wakaf property. They were no longer trustees in the
English law sense, viz, someone who holds the legal title for the benefit of
another or for certain specified objects. As managers, the trustees (in
Muslim law they are called mutawallis) functions are only to manage the
wakaf property and to apply the income as directed in the trust instrument.
Under AMLA, control of all wakafs vests with the Majlis. It must be borne
in mind that under s 58(4) the Majlis is empowered to remove the trustees
of a wakaf when it appears to the Majlis that the wakaf has been
mismanaged or it would be to the advantage of the wakaf to appoint a
mutawalli.
37 While it is true that in this case the trustees, pursuant to s 59(1) of the
Trustees Act, did apply and obtain an order of court empowering them to
sell the property, that was an ex parte order and the courts attention was
not drawn to s 59 of AMLA. Such a court order empowering sale cannot
confer title upon the party where that party does not possess title to the
property in the first place. Section 59(1) of Trustees Act only applies where
in the management or administration of any property vested in trustees .
Here the property did not vest in the trustees but in the Majlis.

Muslim law is local law


38 At this juncture we should mention that counsel for the appellant
made a preliminary point that the learned judge below erred when she
appeared to treat Muslim law as a fact to be proved by evidence like foreign
law. He said this could be seen from the statement of the learned judge
where she stated that the plaintiffs [the appellant] did not produce any
evidence on Muslim law (LS Investment Pte Ltd v Majlis Ugama Islam
Singapura [14] supra at [18]). We accept the submission that Muslim law
need not be proved like foreign law. Muslim law is part of the law of the
land which the court would take cognisance of. But the learned judge did,
notwithstanding that statement, take into consideration the submission on
Muslim law. In any case in this appeal, it being a rehearing, we have heard
and considered fully the submissions of both counsel on Muslim law and
our views on the various points are as herein set out.

Estoppel
39 We now turn to the second main argument based on estoppel. The
appellant relies upon the following:
(a) The Majlis knew of the sale of the property by the trustees to the
appellant before completion and yet did not intervene to stop the sale.
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[1998] 3SLR(R) LS Investment Pte Ltd v Majlis Ugama Islam Singapura 383

(b) The Majlis was probably aware of the application made to the
High Court in OS 849/1993 to obtain the sanction of the court for the
sale.

(c) The Majlis lodged a caveat against the property on 2 December


1993, one day after the appellant had registered the purchase.

(d) The Majlis had failed to fulfil its statutory duty under s 66 of
AMLA by not listing or gazetting the property as a wakaf. The
appellant could not have known that the property was affected by a
wakaf. While the appellant knew the existence of the will, a will is not
a part of the title. There was no reason for the appellant to look
behind the grant of probate and the order for sale. The Majlis had
taken no steps to make their claim known to the appellant.

(e) The appellant had spent a considerable sum in the


redevelopment of the property. The Majlis must have known that the
appellant was carrying out the work and yet permitted the appellant
to continue.

The appellant submitted that proprietary estoppel, estoppel by


representation, and/or estoppel per rem judicatum, apply in the
circumstances of this case.

40 The appellants counsels submission on each of the above three heads


of estoppel is based essentially on acquiescence and thus the question of the
knowledge of the Majlis, as to the sale to the appellant and the application
to court under s 59 of the Trustees Act, is critical. You cannot acquiesce to
something you do not know. So the question is, is there any evidence of
such knowledge. The Majlis clearly deposed that it did not know of the
proposed sale by the trustees to the appellant and of the application in
OS 849/1993 to obtain the sanction of court for the sale. It also did not
know of the works being carried out to the property. The evidence shows
that the Majlis was pursuing the trustees for a copy of the will of the
testatrix without success. Yet when the trustees found a translated copy of
the will and made the application in OS 849/1993, they did not forward a
copy to the Majlis even though they knew very well that the latter had been
pressing for a copy in order to determine if the testatrix had created a
wakaf. There was no dealing whatsoever between the appellant and the
Majlis.

41 The only allegation made that the Majlis knew of the matters as
aforesaid was contained in an affidavit of Hamid filed on behalf of the
appellant on 27 July 1995. This was what Hamid deposed:
I also wish to state that most of the members of Aljunied family were
aware of my intended sale of the subject property and to purchase a
property with the proceeds of sale thereof.
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384 SINGAPORE LAW REPORTS (REISSUE) [1998] 3SLR(R)

42 The secretary of the Majlis, one Syed Haroon bin Mohamed Aljunied,
is a cousin of Hamid. It is of significance to note that Hamid did not state
explicitly that Haroon knew or was informed of the intended sale. Instead
Hamid used a vague expression most of the members of the Aljunied
family. Who are the people who come within the term most? As Hamid
was replying to an affidavit filed by Haroon wherein the latter explicitly
stated that he did not know, why was Hamid afraid to point the finger
directly at Haroon, if the latter did in fact know of the position?

43 In the face of this indirect accusation by Hamid that Haroon did


know or would have known, Haroon filed an affidavit in reply on 23 August
1995 stating that he did not have any knowledge of the contents of the will
of the testatrix nor did he know of the proposed sale to the appellant.
Haroon also said that he did not know that Hamid had bought another
property after having sold the Temple Street property.

44 What is in issue here is really a question of credibility. We have earlier


referred to the efforts made by the Majlis to obtain a copy of the testatrixs
will. As they are germane to the issue in hand, we will briefly restate them.
In 1991, or latest by 4 June 1992, Hamid was informed by the solicitors for
the Majlis that the property forms part of a wakaf and as such vests in our
clients pursuant to the (AMLA). The solicitors went on to state that to
enable the Majlis to ascertain whether indeed the property formed part of
the wakaf the solicitors asked for a copy of the grant of probate and a copy
of the will of the testatrix. On 17 August 1992, Hamid replied saying that
the documents were with his brother (the then co-trustee) who was resident
in Saudi Arabia and he had forwarded the request to the brother. Nothing
was heard from either Hamid or his brother though reminders were sent.
Then on 20 November 1992 Hamids solicitors, BRL, replied for Hamid
stating that Hamid did not have the will and he was making enquiries with
members of his family to ascertain the whereabouts of the will. On
18 December 1992, BRL wrote to say that their clients still did not have a
copy of the will. Nothing more was heard from Hamid or his solicitors. The
next thing was this sale to the appellant. Hamid knew very well the reason
why the Majlis asked for a copy of the will. He entered into the agreement
with the appellant without informing the Majlis. Yet, later he had the
audacity to assert that the Majlis knew of the proposed sale because
Haroon, the Secretary of the Majlis, must have known. Hamids reliability
as a witness is suspect.

45 We, therefore, hold that the Majlis did not know of the proposed sale
of the property by the trustees to the appellant, nor of the application to
court for sanction, until after the completion thereof, for these reasons:

(a) The appellant had not tendered any evidence that the Secretary
of the Majlis in fact knew; whatever evidence was based on
supposition.
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[1998] 3SLR(R) LS Investment Pte Ltd v Majlis Ugama Islam Singapura 385

(b) The reliability of the assertion of Hamid that Haroon must have
known of the sale is suspect since it was clear that he did not want the
Majlis to interfere in the property. It is of interest to note that the
solicitors who acted for the trustees in the sale and purchase were not
BRL but another firm, M/s S Nabham.
(c) The Majlis only knew of the sale after the completion thereof
and this is evidenced by the letter of 4 December 1993 from the
Majlis solicitors to M/s S Nabham complaining about the conduct of
the trustees. Hamids letter of 13 January 1994 where he stated that
we are of the view that your clients have no jurisdiction over the said
property speaks volumes. Hamid wanted to keep the sale away from
the Majlis.
46 Estoppel is an equitable remedy. The rationale for the intervention of
equity was put by Denning MR in Crabb v Arun District Council [1976]
Ch 179 at 187 as follows:
The basis of this proprietary estoppel is the interposition of equity.
Equity comes in, true to form, to mitigate the rigours of strict law. The
early cases did not speak of it as estoppel. They spoke of it as raising
an equity. If I may expand what Lord Cairns LC said in Hughes v
Metropolitan Railway Co (1877) 2 App Cas 439, p 448: it is the first
principle upon which all courts of equity proceed, that it will prevent a
person from insisting on his strict legal rights whether arising under
a contract, or on his title deeds, or by statute when it would be
inequitable for him to do so having regard to the dealings which have
taken place between the parties.
Short of an actual promise, if he, by his words or conduct, so
behaves as to lead another to believe that he will not insist on his strict
legal rights knowing or intending that the other will act on that
belief and he does so act, that again will raise equity in favour of the
other; and it is for a court of equity to say in what way the equity may
be satisfied.

47 In the light of our finding that the Majlis had no knowledge of the sale
or the application for sanction, the appellants claim based on proprietary
estoppel and estoppel by representation must necessarily fail. As mentioned
above, the application by the trustees for sanction of the sale to the
appellant was made ex parte. Similarly we do not see how estoppel per rem
judicatum could ever apply.

Section 66 of AMLA
48 We now turn to the argument based on s 66 of AMLA. This section
requires the Majlis to publish yearly a list of all wakaf properties vested in
the Majlis. Two points may be made here. Firstly, from 1992 up to early
1993 the Majlis was trying to ascertain the exact status of the property
although the Majlis felt that the property was a wakaf property. Until they
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386 SINGAPORE LAW REPORTS (REISSUE) [1998] 3SLR(R)

see the will and the directions therein, there was no way the Majlis could
know the true position. The Majlis obtained no assistance at all from the
trustees. Even as late as 2 December when the Majlis lodged its caveat it did
not obtain a copy of the will. This was explained by Haroon as follows:
8 After much exhausted fruitless attempts on the part of the
defendants to obtain a copy of the last will of the testatrix which Syed
Hamid failed to furnish, it was then decided that the defendants should
nevertheless lodge a caveat against the property. This was done on
2 December, 1993, and the said caveat was registered at the Registry of
Deeds in Vol 2641 No 198.

49 Thus, even on the basis of this caveat lodged by the Majlis, the earliest
conceivable time at which the Majlis could have included the property in
the list to be published in the Gazette would be in 1994, by which time the
sale and purchase had already been completed. Secondly, there is no
assertion by the appellant that it had relied upon any list gazetted by the
Majlis under s 66 before entering into the contract of purchase or before
completing that transaction. Quite apart from the question as to the object
behind s 66 in requiring an annual gazetting of wakaf properties, the simple
truth is that the appellant did not rely upon any list published by the Majlis
in deciding to purchase the property. In our opinion, the omission of this
wakaf in any list published by the Majlis was wholly irrelevant.

Redevelopment works
50 The appellant stated that upon completion of the purchase, it
proceeded with the redevelopment works on the property. At the time of
commencement of this originating summons in April 1995, the
redevelopment works were almost completed. The appellant contended
that as the Majlis permitted the works to continue, estoppel applies.
51 As mentioned above, the Majlis lodged its caveat on 2 December
1993, a day after the appellant lodged its deed of assignment for
registration. More importantly, on or about 4 December 1993 the Majlis
came to know of the sale of the property by the trustees to the appellant.
Yet, thereafter, the Majlis never wrote to inform the appellant about its
interest in the property. The appellant only learned of the caveat lodged by
the Majlis in or about February 1995 when it sought to re-sell the property.
The appellant then commenced the present proceedings to remove the
caveat of the Majlis. In our opinion, upon being aware that the appellant
had bought the property from the trustees, the Majlis should have given
immediate notice of its interest in the property to the appellant. The Majlis
would have known that the appellant, having bought the property which is
an old shophouse, would undertake renovation or other works to
modernise it, either for its own use or for resale. Yet the Majlis stood idly by
and let the appellant carry on with the works. In the circumstances, estoppel
would apply: see Sir J W Ramsden, Bart v Lee Dyson and Joseph Thornton
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[1998] 3SLR(R) LS Investment Pte Ltd v Majlis Ugama Islam Singapura 387

(1866) LR 1 HL 129 at 140141 and Willmott v Barber (1880) 15 Ch D 96 at


105.

52 The estoppel here gives rise to an equity in favour of the appellant in


so far as the redevelopment works are concerned. The next question is, how
is that equity to be satisfied. Here we would like to quote what was stated by
Mason CJ in Commonwealth of Australia v Verwayen (1990) 170 CLR 394
at 413:
there must be a proportionality between the remedy and the
detriment which is its purpose to avoid. It would be wholly inequitable
and unjust to insist upon a disproportionate making good of the
relevant assumption.

The same principle was alluded to earlier by Scarman LJ in Crabb v Arun


District Council ([46] supra) under what he termed as the minimum
equity concept.

53 It is presumably in recognition of such an equity that the Majlis at the


hearing below agreed to bear all reasonable costs incurred for the
redevelopment works. However, in our view, equity would only be satisfied
in the circumstances of this case if the appellant is reimbursed in full for all
expenditures actually incurred by them on account of the redevelopment
works. To this extent, we would vary the order of the court below.

Retrial

54 Finally, there is the submission of the appellant that there should be


an order for a retrial. The appellant says the case should have proceeded as
if begun by writ as questions of fact were involved and there should be
cross-examination of witnesses.

55 We would observe that this originating summons was first heard


before Warren L H Khoo J over two days. He then made certain directions.
At no time was an application made to him to convert the originating
summons into a writ action or to cross-examine witnesses. For reasons
which were not apparent, the continued hearing of the originating
summons was fixed before Judith Prakash J instead of being restored before
Warren L H Khoo J. Counsel for the appellant did not apply to Judith
Prakash J that there should be cross-examination of witnesses. It was clear
to us that at all times the parties were prepared to let the matter be decided
on the basis of the affidavit evidence.

56 By s 39 of the Supreme Court of Judicature Act (Cap 322), the court


has the power to order a new trial but that should only be done if there is
some substantial wrong or miscarriage of justice. On the basis of the
events we have set out hereinbefore and in the light of our views on the
various issues raised, we do not think there is any cause for a retrial.
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388 SINGAPORE LAW REPORTS (REISSUE) [1998] 3SLR(R)

Judgment
57 In the result this appeal is allowed only to the limited extent that the
respondent shall reimburse the appellant for all expenditures actually
incurred in the redevelopment works. As the appellant has substantially
failed in this appeal it shall bear the costs. We would award costs to the
respondent at 90%. The security for costs shall be paid out to the
respondents solicitors to account of the respondents costs. It seems to us
that the remedy of the appellant lies elsewhere. The Majlis has clearly set
out in its affidavit that it is not claiming any interest in the flat which the
trustees subsequently bought with the proceeds of sale of the Temple Street
property.

Headnoted by Crystal Tan Huiling.