Wee Ku Wing v Amira Umaira Teng Binti Abdullah (D-01(NCvC)(A)-550-08/2024)

PENTADBIR TANAH MACHANG (Unit Pembahagian Pusaka)

KERAJAAN MALAYSIA ... DEFENDAN-DEFENDAN] CORAM SUPANG LIAN, JCA SHAHNAZ BINTI SULAIMAN, JCA AMARJEET SINGH A/L SERJIT SINGH, JCA GROUNDS OF JUDGMENT A. INTRODUCTION [1] This appeal arises from the decision of the Kota Bharu High Court delivered on 31 July 2024, which allowed the Respondent's application to set aside the Small Estate Distribution Order dated 9 August 2023 in the form of Borang E and the Small Estate Letter of Administration (Borang F) issued to the Appellant. B. FACTUAL BACKGROUND [2] The Appellant, Madam Wee Ku Wing is the Respondent's mother. The Respondent is the fourth child, born on 26 January 1988 to the Appellant and her husband Mr Teng Guan Chai (deceased). The Appellant and the deceased had seven children born out of their marriage. The Appellant, the deceased and their seven children were born in Kelantan and are non-Muslims. [3] The Respondent had on 17 October 2008 embraced the Islamic religion. On 4 November 2020, the Respondent's father, Mr Teng Guan Chai, passed away as a non-Muslim. [4] Following the passing of the deceased, the Appellant applied for a small estate distribution order and administration letter at the Machang District Land Administrator. However, in applying for the small estate distribution order and letter of administration, the Appellant had excluded the Respondent as a beneficiary on the basis that the Respondent had converted to Islam and is thus bound by her personal law. [5] Upon hearing the small estate distribution application, the Land Administrator granted the order in Borang E and Borang F dated 9 August 2023 which appointed the Appellant as administrator and the sole beneficiary, as agreed among other beneficiaries. [6] Dissatisfied with the distribution order and the letter of administration granted to the Appellant, the Respondent had on 19 December 2023 filed in the Kota Bharu High Court Saman Pemula No. DA-24-NCvC 458-12/2023 to set aside the Distribution Order dated 9 August 2023 made by the Land Administrator which appointed the Appellant as the administrator of the estate of the late Teng Guan Chai. The ground for setting aside of the Distribution Order and the letter of administration granted to the Appellant is that the Respondent was not included as a beneficiary in the distribution order. [7] The High Court had on 31 July 2024, allowed the Respondent's application to set aside Borang E and F dated 9 August 2023 by the said Land Administrator and made the consequential orders thereto (hereinafter called "the said Judgement"). C. PROCEEDINGS AT HIGH COURT [8] The Respondent's claim against the Appellant at the High Court was founded on the fact that the Respondent had not been included as a beneficiary in her late father's estate. In support of this contention, the Respondent argued that section 2 of the Distribution Act 1958 [Act 300] does not bar a Muslim from benefitting from the estate of a non-Muslim deceased. [9] The section 3 of Distribution Act 1958 [Act 300] further provides the definition of "child" which does not at all mention the religion of the child as a condition to be a beneficiary. Hence, the Respondent argued that the fact that she is a Muslim ought not to bar her from being a beneficiary of her late father's estate. [10] The Affidavit in Reply of the Appellant did not deny the fact that the deceased had at the time of death left one widow and children including the Respondent. [11] The Respondent relied on an email from the Jabatan Ketua Pengarah Tanah dan Galian Persekutuan Negeri Kelantan which proposed to the Respondent to seek a re-hearing of the distribution order and the letter of administration to enable the Land Administrator of Machang to rehear the distribution of the deceased's estate. [12] Based on the Ninth Schedule of the Federal Constitution and Article 121 of the Federal Constitution, the Respondent submitted that the High Court was not the correct forum to hear issues pertaining to personal Syariah law. [13] In reply, the Appellant argued that the Respondent should have filed an appeal pursuant to subsection 418(1) of the National Land Code which provides that anyone aggrieved by the decision of the Land Administrator may appeal to the High Court. [14] It was further contended by the Appellant that this case was not within the jurisdiction of the Syariah Court as the deceased was a non-Muslim. It was argued that the High Court ought to consider the hukum syarak prior to deciding the matter as it involved the estate of a non-Muslim. As such, it was argued that based on hukum syarak, the Appellant had not named the Respondent as a beneficiary in the estate of the deceased. [15] The Appellant maintained that the Respondent failed to appeal the decision/order pursuant to the Small Estates (Distribution) Act 1955 [Act 98] as provided under Regulation 10 of the Small Estates (Distribution) Regulations 1955 [L.N.495/1955]. The High Court's Decision [16] The learned High Court Judge had considered whether the Respondent, being a natural child of the deceased who had embraced the Islamic religion was barred from benefitting from the estate of her deceased father. In coming to his decision, the learned High Court Judge made reference to the definition of section 3 of the Distribution Act 1958 and concluded that the Respondent was a beneficiary for the purposes of distribution under the Small Estates (Distribution) Act 1955. His Lordship found that there was no dispute that the Respondent is the natural child of the deceased and that she was not listed as a beneficiary in Borang A (the petition under section 8 of the Small Estates (Distribution) Act 1955). [17] Reference was also made to section 2 of the Distribution Act 1958, where the learned High Court Judge agreed with the Respondent that the Distribution Act 1958 did not bar a Muslim from benefitting from the estate of a non-Muslim deceased. The High Court further found that the exclusion of the Respondent's name as a beneficiary in Borang A to be wrong as the Respondent is entitled to be a beneficiary despite being a Muslim. [18] Based on these reasons, the High Court allowed the Respondent's application to set aside the Small Estate Distribution Order dated 9 August 2023 in Borang E and the Small Estate Letter of Administration (Borang F) issued to the Appellant. D. ISSUES RAISED BY THE APPELLANT AT THE COURT OF APPEAL [19] At the Court of Appeal, the Appellant raised the following issues:

the Respondent is bound by both civil law and her personal law;

(ii) procedural impropriety: the Originating Summons is in noncompliance of Small Estates (Distribution) Act 1955;

(iii) the Respondent's collateral proceedings are bad; and

(iv) the other six beneficiaries were not given the right to be heard. [20] For the issue that the Respondent is bound by both civil law and her personal law, it is the contention of the Appellant that the learned High Court Judge erred when the High Court interpreted the word "child" under the Distribution Act 1958 to be applicable to the Respondent who became a Muslim before her non-Muslim father passed away. It was further argued that as the Respondent had no beneficial interest in her non-Muslim father's estate ab initio, there was neither a breach of natural justice nor any legal obligation to name her as a beneficiary in the Small Estate (Distribution) Act 1955 application. Accordingly, it is the Appellant's contention that the Respondent lacks locus standi and has no reasonable cause of action to commence the Originating Summons. [21] In support of this argument that Muslims in this country are subject to both, civil laws and Syariah laws, the Appellant cited the following cases: Tan Ah Bee v Foo Koon Thye & Anor [1947] CLJU 106; Ketua Pegawai Penguatkuasa Agama & Anors v Maqsood Ahmad & Ors And Another Appeal [2020] 10 CLJ 748; Majlis Agama Islam Wilayah Persekutuan Lwn. Lim Ee Seng & Satu Lagl [2000] 2 CLJ 597; Re Timah Binti Abdullah [1941] MLJ 52; Iki Putra Mubarrak v Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 465; Tan Kah Fatt & Anor v Tan Ying [2023] 2 CLJ 169. [22] Learned counsel for the Appellant also made reference to a hadith reported by al-Bukhari and Muslim which states that "A Muslim does not inherit from a non-Muslim, nor does a non-Muslim inherit from a Muslim"; as well as the Fatwa issued by the Mufti of the Federal Territories dated 28 January 2016, which reads: "Dalam mazhab al-Syafie, perwarisan harta daripada orang bukan Islam kepada waris yang Islam adalah tidak dibenarkan. Daripada Usamah bin Zaid R.Anhuma bahawa Nabi SAW pernah bersabda: 1 الامتثال لكلمة القراءة الاولى القراءة الاولى بعنوان باب، Maksudnya: Tidak mewarisi seorang Muslim daripada seorang kafir dan tidak mewarisi seorang kafir daripada seorang Muslim.” [23] The second issue raised by the Appellant is procedural impropriety: the Originating Summons is in non-compliance of Small Estates (Distribution) Act 1955. [24] According to the Appellant, the Originating Summons does not comply with subsection 29(1) of the Small Estates (Distribution) Act 1955, which provides that any person aggrieved by an order, decision, or act of the Collector may appeal to the High Court. Upon filing a notice of appeal under Rule 10(1) of the Small Estates (Distribution) Regulations 1955, the Collector or Land Administrator is required under Rule 10(2) to prepare the appeal record, including the notes of evidence, the impugned decision, grounds of decision, documentary exhibits, and particulars of affected persons. [25] The Appellant contended that as the Respondent claims to be a person aggrieved by the distribution order, she ought to have pursued the statutory appeal mechanism under subsection 29(1) of the Small Estates (Distribution) Act 1955. Compliance with the appeal procedure would have enabled both the High Court and the Appellant to ascertain the basis upon which the Collector or Land Administrator excluded the Respondent's rights. Further, the appeal process is governed by statute and is not subject to the Rules of Court 2012, such that any non-compliance cannot be treated merely as a curable procedural irregularity. [26] The next issue is that the Respondent's collateral proceedings is bad. It is the Appellant's argument that the High Court had erred in allowing the Originating Summons as the Respondent had failed to disclose in her supporting affidavits and affidavit in reply any facts proving that the Land Administrator decision was null and void due to any of the following reasons: (a) illegality; (b) lack of jurisdiction; (c) failure to give the aggrieved party right of been heard/ natural justice; (d) lack of quorum; (e) the judgment was obtained by fraud or suppression of material evidence so as to prevent injustice or an abuse of the process of the court; and (f) a clear infringement of a statutory law. [27] The final issue raised is that the other six beneficiaries were not given the right to be heard. It was submitted that the six beneficiaries who are the non-Muslim children of the deceased have the legitimate rights under the Distribution Act 1958 and therefore ought to be given the right to be heard. E. SUBMISSIONS BY THE RESPONDENT [28] On the first issue raised by the Appellant that the Respondent is bound by both civil law and her personal law, the Respondent contends that Section 2 of the Distribution Act 1958 clearly excludes the estate of a deceased person who professed the Muslim religion, and not Muslim beneficiaries in cases involving the estate of a non-Muslim deceased. Accordingly, the Appellant's interpretation, which seeks to extend the exclusion to beneficiaries, is inconsistent with the wording of the statute itself. [29] It was submitted that the phrase "Nothing in this Act shall apply to the estate of any person professing the Muslim religion" clearly demonstrates that the application of the Distribution Act 1958 depends on the religion of the deceased (intestate), and not on the religion of the beneficiaries. [30] The Respondent also distinguished the authorities cited by the Appellant, including Tan Kah Fatt & Anor v Tan Ying [2023] 2 MLRA. [31] With regard to procedural impropriety, the Respondent argued that the use of an originating summons procedure is consistent with the law. The Rules of Court 2012 expressly provide that appeals to the High Court under written law are to be commenced by way of originating summons, setting out the grounds of appeal and supported by affidavits and relevant documents. This demonstrates that the Respondent's use of an originating summons was a valid procedure expressly sanctioned under Order 55A. [32] However, the real issue concerns the breach of natural justice. The Small Estates (Distribution) Act 1955 requires interested parties to be given notice, and the High Court is empowered to determine whether any failure to do so has resulted in "substantial injustice". In such circumstances, the law recognises that the Court has the power to intervene to remedy substantive injustice, whether through an appeal, judicial review, or an order to set aside or rehear the matter, depending on the nature of the defect. [33] Further, it was submitted that the Appellant cannot selectively rely on section 29 of the Small Estates (Distribution) Act 1955. If the Appellant contends that the proceedings fall within section 29 as an appeal to the High Court, then the Appellant must also accept the full legal consequences of that provision. In particular, subsection 29(4) expressly provides that the High Court's decision on such an appeal is final and not subject to any further appeal. [34] On the third ground raised by the Appellant, the Respondent contended that the Small Estates (Distribution) Act 1955 clearly incorporates the principles of natural justice. The statutory requirement for notice to be given to beneficiaries or claimants, together with the High Court's power to assess whether "substantial injustice" has occurred, demonstrates that compliance with natural justice is fundamental to the administration of small estates. [35] If the Respondent was an "issue" who ought to have been named under the Distribution Act 1958 in relation to a non-Muslim estate, then her exclusion and the failure to provide notice amount not merely to a procedural irregularity, but to a defect affecting the substantive rights of a beneficiary and resulting in substantial injustice. [36] Therefore, it was argued that the remedy sought is both limited and appropriate. The Respondent does not seek a fresh distribution order from the High Court, which properly falls within the jurisdiction of the Land Administrator. Instead, the Respondent only seeks the defective order to be set aside and for the matter to be remitted to the Land Administrator for a rehearing with the participation of all statutory beneficiaries. [37] Finally, on the issue that the other 6 beneficiaries were not given the right to be heard, the Respondent argued that there is no prejudice in remitting the matter to the proper forum. The High Court merely set aside Borang E and Borang F and directed the process to be reheard. Hence, the right of all beneficiaries, including the six beneficiaries to be heard will be restored in the small estate proceedings. [38] It was argued the Small Estate (Distribution) Act 1955 requires notice to be given to all named or interested parties before any order is made. Accordingly, any failure to be a party at this stage would not be prejudicial. The matter will be reheard and all parties will have the opportunity to be heard. [39] Further, in this case, an administrator has been appointed with the agreement of all the other beneficiaries. As such, there is no necessity or basis to join all the other beneficiaries as parties to these proceedings, since their interests are already represented through the consensually appointed administrator. F. ANALYSIS AND FINDINGS [40] At the crux of this appeal is the question whether the Respondent who has embraced Islam, as a legitimate and natural child of the non-Muslim deceased is entitled to the estate as beneficiary under the Distribution Act 1958. The issue is the personal law of the Respondent, and which law applies. Does Syariah law or the Distribution Act 1958 apply in this scenario.

the Respondent is bound by both civil law and her personal law [41] It is the Appellant's contention that the Respondent, a Muslim, is bound by both civil law and shariah law when Muslim family law is concerned. The Respondent's personal law does not allow her to inherit the non-Muslim estate because the personal law of a Muslim in Malaysia is Islamic law. [42] It was submitted that the Respondent was a Muslim at the time her father passed away. This is a fact that is not in dispute. [43] The Appellant conceded that the literal interpretation of sections 2 and 3 of the Distribution Act 1958 does not expressly prohibit a Muslim child to inherit from a non-Muslim estate. Nonetheless, it was argued that this Court ought to accept that in Malaysia, a Muslim is bound by both the civil law; and shariah law when Muslim family law is concerned. Hence, the Respondent's personal law does not allow her to inherit the non-Muslim estate. [44] To consider this argument, it would be judicious to first ruminate on the provisions of the Distribution Act 1958. Section 2 of the Distribution Act 1958 reads: "Nothing in this Act shall apply to the estate of any person professing the Muslim religion or shall affect any rules of Muslim law as varied by local custom in respect of the distribution of the estate of any such person nor shall this Act apply to any estate, the distribution of which is governed by the Parsee Intestate Succession Ordinance of the Straits Settlements [S.S. Cap. 54]." [45] Section 3 of the Distribution Act 1958 provides: "child" means a legitimate child and where the deceased is permitted by his personal law a plurality of wives includes a child by any of such wives, but does not include an adopted child other than a child adopted under the provisions of the Adoption Act 1952 [Act 257]; [46] Section 2 of the Distribution Act 1958 clearly states that the Distribution Act 1958 does not apply to the estate of any person professing the Muslim religion. The facts of this appeal are not in dispute. The estate in this appeal, is the estate of the Respondent's father, who was not a Muslim at the time of his death. The application of the Distribution Act 1958 is for the estate of non-Muslims. It is the estate of the Respondent's father that is the subject matter of the Distribution Act 1958. The deceased was a non-Muslim at the time of death. The Respondent, who is a Muslim, a fact that is not in dispute, is the child of the deceased. It is not the Respondent's estate that is the subject matter of this appeal. [47] In our considered view, the Distribution Act 1958 applies to the estate of the non-Muslim. In this appeal, the estate is that of the nonMuslim father of the Respondent. If the matter before this Court pertained to the Respondent's estate, then the Distribution Act 1958 would not apply, as the Respondent is a Muslim and the Distribution Act 1958 does not apply to a Muslim. [48] Section 3 of the Distribution Act 1958 provides for the definition of child which is a legitimate child. The fact that the Respondent is a legitimate child of the deceased and the Appellant is a fact that is not in dispute. Hence, under the Distribution Act 1958, the Respondent would be a child as defined in section 3. [49] It is observed and it cannot be overstated that nowhere in the Distribution Act 1958 does it provide that a Muslim child of a deceased cannot be a beneficiary to the estate to the deceased. The law sets out that the child must be a legitimate child, but makes no reference to the religion of the child. We are therefore of the view that pursuant to the provision of the Distribution Act 1958, the Respondent is entitled to be a beneficiary. The grounds put forth by the Appellant, in our view, are misconceived. [50] Learned counsel for the Appellant cited the case of Tan Kah Fatt & Anor v Tan Ying [2023] 2 CLJ 169 in support of the contention that the Distribution Act 1958 does not apply to the Respondent. Mary Lim Thiam Suan FCJ stated: "[41] The Distribution Act 1958 (Act 300) regulates the distribution of the estate of any person who has died intestate, that is, a person who died without leaving any will prescribing on or for the distribution of the intestate's estate. This is an important aspect of this Act which seems to have been overlooked by many, and it is an aspect which I will return to shortly. Act 300 also applies to cases of partial intestacy, where a person dies testate but has for some reason or other, made no provision in the will as to the beneficial interest of any property in the estate. [42] Act 300 applies only in West Malaysia and pursuant to Modification of Laws (Distribution Act 1958) (Extension to the State of Sarawak) Order 1986 [P.U. (A) 446/86] applies too, in the State of Sarawak, with effect from 28 February 1986. Sabah has its own specific law on distribution of intestate estates under the Intestate Succession Ordinance 1960 (Sabah No. 1 of 1960). [43] Another material feature of Act 300 is the fact that it does not apply to any person professing the Muslim religion, whether in West Malaysia or Sarawak. It also does not apply to any estate where the distribution is governed by the Parsee Intestate Succession Ordinance of the Straits Settlement (SS Cap 54) - see s. 2. In the case of Sarawak, Act 300 further does not apply to the distribution of the estate of any natives of Sarawak, "native" as defined in art. 161A(6)(a) of the Federal Constitution. [44] In its application to non-Muslims, Act 300 recognises and anticipates the role of the personal law of non-Muslims. This is when dealing with the matter of "child", where the personal law of the deceased permits a plurality of wives. I shall deal with this too, in greater detail later." [51] Citing the above passages, learned counsel argued that the Distribution Act 1958 does not apply to a Muslim, in this case, the Respondent. We however, respectfully do not agree with this contention by learned counsel for the Appellant. The Distribution Act 1958 governs the distribution of the estate of a person who dies intestate, meaning a person who passes away without leaving a valid will specifying how their estate is to be distributed. In this appeal, the Distribution Act 1958 would govern the estate of the deceased, the Respondent's father. [52] In our view it is clear from paragraph 43 cited above that the Distribution Act 1958 does not apply to the estate of a Muslim. The Respondent is a Muslim, a fact which is not in contention. However, it is not the Respondent that has died intestate, meaning it is not the Respondent's estate that is governed by the Distribution Act 1958. [53] Here, the facts which are not in dispute, demonstrate that the deceased was a non-Muslim. The Respondent, the deceased's daughter, is a Muslim. It is not the Respondent's estate that is the subject matter of this appeal. It is the estate of the Respondent's non-Muslim father which would, in our view, fall within the ambit of the Distribution Act 1958. We therefore find that the Appellant's contention to be without merit. [54] In other words, we find that the High Court had not erred when the learned High Court Judge had applied the Distribution Act 1958. [55] Learned Counsel for the Appellant had, in submissions, cited Iki Putra Mubarrak v Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 465 to support the contention that the Distribution Act 1958 does not apply to the Respondent by virtue of the fact that the Respondent is a Muslim. [56] In this regard, the Appellant cited the case of Iki Putra Mubarrak (supra) in furtherance of the contention that a Muslim in Malaysia is subject to two sets of law i.e. the civil law and the Syariah law of their personal law. The Appellant cited the following paragraphs from Iki Putra Mubarak (supra): "[57] Raus Sharif PCA (as he then was) made a similar observation in ZI Publications (supra), as follows: [31] In conclusion we wish to highlight that a Muslim in Malaysia is not only subjected to the general laws enacted by Parliament but also to the state laws of religious nature enacted by Legislature of a state. This is because the Federal Constitution allows the Legislature of a state to legislate and enact offences against the precepts of Islam. Taking the Federal Constitution as a whole, it is clear that it was the intention of the framers of our Constitution to allow Muslims in this country to be also governed by Islamic personal law. Thus, a Muslim in this country is therefore subjected to both the general laws enacted by Parliament and also the state laws enacted by the Legislature of a state. [58] Another general illustration that Muslims are subject to two types of laws is the judgment of the Court of Appeal in Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors And Another Appeal [2020] 10 CLJ 748; [2021] 1 MLJ 120 ('Maqsood Ahmad'). The Court of Appeal in that case took pains to examine the history of Islamic law in Malaysia and its coexistence with the civil laws in the country. We find that we are in complete agreement with it and have nothing further to add as such exposition also appears to be concomitant with that of Salleh Abas LP's in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55. [59] While Muslims in this country are undoubtedly subject to both kinds of law, namely, civil laws on the one side and Syariah laws on the other, the extent of the application of Syariah laws to Muslims is limited by item 1 of the State List. The preclusion clause in item 1 further restricts the power of the State Legislatures to enact such laws by subjecting it to the Federal List." [57] With respect, we do not dispute the position of the law that Muslims in Malaysia are subject not only to the general laws enacted by Parliament but also to State laws governing Islamic matters enacted by the respective State Legislatures. This dual legal framework is constitutionally recognised under the Federal Constitution, which confers legislative competence upon the States to enact laws relating to Islamic law and the personal and family law of persons professing the religion of Islam. [58] We are however, of the view, based on the undisputed facts before us that the estate that forms the subject matter of this appeal is not that of the Respondent, but that of her deceased father, who was a non-Muslim. Although the Respondent is a Muslim, her religion does not determine the statutory regime applicable to the administration and distribution of her late father's estate. Rather, the applicable law is determined by the religion of the deceased whose estate is under administration. [59] As the deceased was a non-Muslim, his estate falls within the ambit of the Distribution Act 1958, which governs the distribution of intestate estates of non-Muslims in Malaysia. The Respondent's status as a Muslim does not, by itself, exclude the application of the Distribution Act 1958 or alter the legal framework governing the deceased's estate. Accordingly, the Appellant's contention that the Respondent's religion precludes the application of the Distribution Act 1958 is misconceived and without legal merit. [60] In reinforcing the Appellant's position, learned counsel for the Appellant cited a hadith before this Court, reported by al-Bukhari and Muslim, to the effect that a Muslim does not inherit from a nonMuslim, nor does a non-Muslim inherit from a Muslim. The Respondent did not directly address this argument in their written submissions. [61] We pause here to consider the proper status and legal effect of the hadith and the fatwa relied upon by the Appellant. In our considered view, the answer is supplied by the recent and authoritative pronouncements of the Federal Court in Iki Putra bin Mubarrak v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 323 and Nik Elin Zurina binti Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [2024] 3 CLJ 323. [62] In Iki Putra Mubarrak (supra), the Federal Court was confronted with a similar attempt to introduce expert opinions on Islamic law to support a constitutional argument. The respondents in that case had filed two affidavits (Enclosures 129 and 130) containing the opinions of the Mufti of Selangor and a professor of law, purporting to interpret the provisions of the Federal Constitution. The majority judgment delivered by the then Chief Justice, Tengku Maimun binti Tuan Mat, held as follows: " [18] It is trite that experts only assist the court to determine issues of fact. They do not otherwise have any locus to provide opinions on issues of law. As far back as 1963, Winslow J said this in Ong ChanTow v R [1963] 1 MLJ 160 at p 162: Further, questions relating to the existence of debris or broken glass on the road which help to pin-point the site of a collision are clearly matters for the court and not the expert. Such an expert should not be asked to give his conclusions on matters which are eminently matters for the court to decide, otherwise he would tend to arrogate to himself the functions of the court. [19] If the above passage applies to ordinary law and how experts are in no position to provide their opinion as to the interpretation and application of it, then the same must equally be true and apply with greater force to the interpretation and application of the FC. In fact, this court has already held in Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor (Kerajaan Malaysia, intervener) & Anor [2008] 3 MLJ 617 ('Abdul Kahar'), that it is singularly the civil superior courts that have the jurisdiction and power to interpret the FC. [20] In this vein, we are unable to see how encls 129 and 130 shed any further light or lend any assistance to the fundamental question of law posed in this petition. The two affidavits are otherwise rendered meaningless if we were to ignore the portions of them which purport to interpret the provisions of the FC. In the circumstances, we uphold the preliminary objection of the petitioner. Enclosures 129 and 130 are accordingly expunged and disregarded. [63] This principle was unequivocally reaffirmed in Nik Elin Zurina (supra). In that case, the respondent had filed Enclosures 41, 42, and 43, purporting to be expert opinions on the constitutional interpretation of the Kelantan Syariah Criminal Code (I) Enactment 2019. The Federal Court, again speaking through the then Chief Justice, held as follow: "[51] This issue of expert evidence has been beyond clarified and dealt with in Iki Putra. In summary, the only party entitled to interpret the FC is the Courts and no other party is allowed to expound a legal opinion on how those provisions can be interpreted as a matter of law. Parties are entitled to canvass their rivalling opinions in the form of legal submissions which can be decided by this Court but providing "expert" evidence on the interpretation to be afforded is not an accepted method of constitutional interpretation. In any event, the Islamic principles ofaqidah, syariah or akhlak are not matters for our consideration. What falls for our consideration is whether the respondent/LSK has exceeded its legislative powers. Enclosures 41, 42 and 43 are hereby expunged and have no bearing on the outcome of this case." [64] Applying these binding principles to the present appeal, we make the following observations. First, the hadith cited by the Appellant, while undoubtedly of great importance to Muslims as a matter of faith, has not been codified into Malaysian law. It has not been incorporated into the Distribution Act 1958 nor the Syariah Enactment of Kelantan. This Court is bound to apply the written law enacted by Parliament and the State Legislatures. We cannot, and must not, apply an uncodified religious norm to override the clear and unambiguous provisions of a statute. [65] Second, the Fatwa issued by the Mufti of the Federal Territories dated 28 January 2016, which the Appellant relies upon, is of no legal relevance to these proceedings. As the Federal Court observed in Nik Elin Zurina (supra), the application of Islamic law is constitutionally confined to the specific entries in the State List and operates within the framework of the Federal Constitution. A fatwa issued by the Federal Territories Mufti has no binding effect on the State of Kelantan. More fundamentally, a fatwa, unless enacted into legislation by the relevant legislature, is not a source of law that this Court can apply to determine the rights of parties in civil proceedings. [66] The Respondent's argument that this Court ought to defer to the Syariah Court on this matter is, with respect, misconceived. In Iki Putra Mubarak (supra), the Federal Court clarified as follows: "[59] While Muslims in this country are undoubtedly subject to both kinds of law, namely, civil laws on the one side and Syariah laws on the other, the extent of the application of Syariah laws to Muslims is limited by item 1 of the State List. The preclusion clause in item 1 further restricts the power of the State Legislatures to enact such laws by subjecting it to the Federal List." [67] The preclusion clause in item 1 restricts the power of State Legislatures by subjecting it to the Federal List. The subject matter of the present appeal—the distribution of the estate of a non-Muslim deceased—falls squarely within the purview of civil law, specifically the Distribution Act 1958. This is not a matter of Islamic personal law relating to the estate of a Muslim. It is a matter of civil succession. [68] We are fortified in our view by the fact that the Distribution Act 1958 is a federal law governing intestate succession for non-Muslims. The Act's application is triggered by the status of the deceased and not the beneficiary. As mentioned earlier, section 2 of the Distribution Act 1958 excludes "the estate of any person professing the Muslim religion." The deceased father in this case was a non-Muslim. Therefore, section 2 has no application to exclude the estate from the ambit of the Act. Section 3 of the Act defines "child" as a legitimate child, without any reference to the religion of the child. As the Respondent is the undisputed legitimate child of the deceased, she falls squarely within the definition of "child" under the Act. [69] For these reasons, we find that the Appellant's reliance on the hadith and the Federal Territories Fatwa is misplaced. These uncodified norms cannot override the clear statutory provisions of the Distribution Act 1958. The High Court was correct to apply the Act and to hold that the Respondent, as a legitimate child of the deceased, is entitled to be a beneficiary of her late father's estate. [70] The Respondent's position based on the Ninth Schedule of the Federal Constitution is that this court is not the appropriate forum to decide on the merits of this issue as it pertains to the inheritance which falls within the jurisdiction of the Syariah Courts. The Respondent cited the case of Roshini Ochie Mohd Melvyn v Ketua Pendaftar Mahkamah Syariah Wilayah Persekutuan & Ors [2022] 2 MLRH 117 relating to the approach of whether the civil court or Syariah court has jurisdiction. In that case, the court took the "subject matter" approach instead of the "remedy prayed for" approach. [71] With respect, we are of the view that the facts pertain to the distribution of the estate of a non-Muslim deceased, hence the argument that this court does not have jurisdiction to hear this matter is, in our view, flawed. [72] We therefore find that the Distribution Act 1955 applies to the deceased estate and the Respondent, being a child of the Deceased, is entitled to be a beneficiary regardless of the fact that she is a Muslim.

(ii) procedural impropriety: the Originating Summons is a noncompliance of Small Estates (Distribution) Act 1955 [73] The Appellant contends that pursuant to Order 92 Rule 4 of the Rules of Court 2012 ("ROC 2012"), the Court possesses inherent jurisdiction and power to make such orders as may be necessary to prevent injustice or an abuse of the court's process. [74] In the present case, the Appellant argued that rather than exercising her statutory right of appeal against the decision of the Land Administrator, the Respondent commenced this collateral proceeding by way of Originating Summons seeking to set aside a lawful and valid Distribution Order dated 9 August 2023 made under the Small Estates (Distribution) Act 1955 in respect of a non-Muslim estate. [75] According to the Appellant, the Originating Summons is contrary to subsection 29(1) of the Small Estates (Distribution) Act 1955, which expressly provides as follows: "Section 29(1): Subject to the other provisions of this Act and subsection (5), any person aggrieved by any order, decision or act made or done by a Collector under this Act may appeal to the High Court." [76] It was argued that as the Respondent claims to be a person aggrieved by the Distribution Order, subsection 29(1) of the Small Estates (Distribution) Act 1955 is directly applicable to her. Given that the Small Estates (Distribution) Act 1955 provides a specific statutory avenue of appeal, the Respondent is required to comply with the prescribed appeal procedure under subsection 29(1). By invoking the statutory appeal mechanism, both the High Court and the Appellant would have the benefit of the appeal record, including the Land Administrator's grounds of decision and the basis upon which the Appellant alleges that her rights were excluded or adversely affected. [77] The appeal procedure under the Small Estates (Distribution) Act 1955 is a specific statutory regime and is not governed by the Rules of Court 2012. Consequently, any failure to comply with the mandatory requirements of subsection 29(1) cannot be treated as a mere procedural irregularity capable of being cured under the Rules of Court 2012, but constitutes a fundamental non-compliance with the prescribed statutory process. [78] The facts reveal that the Respondent was not a party to the proceedings before the Land Administrator. While the Respondent was not a party to the proceedings, she was nonetheless, aggrieved by the Distribution Order. The Appellant argues that the Respondent ought to file an appeal pursuant to subsection 29(1) of the Small Estates (Distribution) Act 1955 which provides a statutory appeal mechanism. [79] Subsection 29(1) of the Small Estates (Distribution) Act 1955 reads: "29. (1) Subject to the other provisions of this Act and to subsection (5) any person aggrieved by any order, decision or act made or done by a Collector under this Act may appeal to the High Court: Provided that no appeal shall lie from any such order, decision or act so far as the same is based on and in accordance with a decision of the Ruler or of any other person or body in respect of a reference under paragraph 19(1)(a) or in accordance with the opinion of the High Court in respect of a reference under paragraph 19(1)(b): Provided further that in the State of Terengganu when the appeal is in respect of any decision of the Collector in relation to an interest claimed under the Settlement Enactment [Tr. 65 of 1356] the appeal shall lie to the Land Court constituted under that Enactment” [80] The Respondent was not a party to the hearing of the distribution as the Respondent was not named as a beneficiary. Hence, the Respondent was not stated as a beneficiary in the Small Estates Distribution Order dated 9 August 2023 in the form of Borang E and the Small Estate Letter of Administration (Borang F) issued to the Appellant. In such a circumstance, could the Respondent, who is not a party to the proceedings, appeal to the High Court under subsection 29(1) of the Small Estates (Distribution) Act 1955? [81] Having considered this issue, we are of the view that the Respondent, who was not a party at the hearing before the Land Administrator cannot appeal to the High Court if the Respondent is aggrieved by the decision of the Land Administrator. In our view, the contention that the Respondent ought to exercise her statutory right of appeal against the decision of the Land Administrator, is without merit.

(iii) the Respondent's collateral proceedings is bad [82] It was contended by the Appellant that the Originating Summons ought to have been dismissed. It is well established that a judgment may only be set aside ex debito justitiae in exceptional circumstances. Accordingly, the High Court may invoke its inherent jurisdiction under Order 92 rule 4 of the Rules of Court 2012 to set aside a regularly obtained decision only where the impugned order is null and void as of right. [83] To invoke such jurisdiction, the Respondent must demonstrate a fundamental defect, such as illegality, lack of jurisdiction, denial of the right to be heard or breach of natural justice, lack of quorum, fraud or suppression of material facts resulting in injustice or abuse of process, or a clear contravention of statutory law. Absent any of these grounds, the decision cannot be set aside under the Court's inherent jurisdiction. [84] In support of this contention, the Appellant made reference to the Federal Court cases of Badiaddin Bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd. [1998] 1 MLJ 393 and CIMB Investment Bank Bhd. (Previously Known As Commerce International Merchant Bankers Bhd.) v Metroplex Holdings Sdn. Bhd. [2014] 6 MLJ 779. [85] In those cases, the Federal Court stated that the general principle is that where an order is a nullity, the pursuit of an appeal serves little practical purpose. This is because, regardless of the outcome of any appeal, such an order remains susceptible to challenge in collateral proceedings. A null order may be disregarded and impeached whenever and wherever it is relied upon, whether before a court or tribunal. In other words, it is open to collateral attack. [86] The Appellant contended that the Respondent failed to disclose, whether in her supporting affidavit or affidavit in reply, any material facts capable of establishing that the Land Administrator's decision was a nullity or otherwise liable to be set aside as of right. In particular, the Plaintiff did not adduce any evidence demonstrating that the impugned decision suffered from any fundamental defect that would justify the exercise of the Court's inherent jurisdiction to declare it null and void. [87] Specifically, it was argued that the Respondent had failed to establish that the decision was tainted by illegality, made without jurisdiction, rendered in breach of the rules of natural justice through the denial of the right to be heard, affected by a lack of quorum, procured by fraud or the suppression of material facts resulting in injustice or an abuse of the court's process, or made in clear contravention of any statutory provision. In the absence of evidence establishing any of these recognised grounds, the Respondent had failed to demonstrate that the Land Administrator's decision is a nullity warranting judicial intervention. [88] The facts of this appeal demonstrate that the Respondent, who is a child of the deceased, was not included as a beneficiary in the hearing before the Land Administrator. While the Appellant argued that the Respondent had no beneficial interest as she was a Muslim, the fact remains that the Respondent is the legitimate child of the deceased, and consequentially is a beneficiary. [89] In this regard, we are of the view the Respondent ought to have been included as a beneficiary, which was not the case. Hence, we find the decision of the learned High Court Judge in setting aside the Small Estate Distribution Order dated 9 August 2023 in the form of Borang E and the Small Estate Letter of Administration (Borang F) issued to the Appellant to be valid and correct. In our view, the learned High Court Judge had not erred in setting aside the decision of the Land Administrator.

(iv) The other 6 beneficiaries not given the right of been heard [90] The Appellant argued that the Respondent failed to join the other six beneficiaries as parties to the collateral proceedings, despite the fact that any order setting aside the small estate distribution order would directly affect their rights and interests. This omission deprived the beneficiaries of their right to be heard, contrary to the principles of natural justice. As the deceased's non-Muslim children have legitimate interests under the Distribution Act 1958, they were entitled to participate in the proceedings regardless of whether they supported or opposed the Respondent's claim. Consequently, any order made without affording them an opportunity to be heard is procedurally defective and liable to be set aside. [91] In relation to the argument that the beneficiaries were deprived of their right to natural justice, we find this argument to be paradoxical. While the Appellant alleges a breach of natural justice arising from the failure to include the other beneficiaries, the Appellant herself failed to include the Respondent in the small estate proceedings. [92] The Respondent, as a child of the deceased, is a beneficiary of the deceased' estate. However, the Respondent was not included in the list of beneficiaries for the hearing on 9 August 2023 before the Land Administrator. [93] The facts of this case further demonstrate that the administrator of the estate had been appointed, and that the beneficiaries had agreed to the appointment of the administrator, the Appellant. In our view, it would then be unnecessary for the Respondent to name the beneficiaries in the application to set aside the small estate distribution as the Appellant had been appointed the Administrator of the deceased's estate. [94] Moreover, the High Court when granting the application to set aside the Small Estates Distribution Order dated 9 August 2023 in the form of Borang E and the Small Estate Letter of Administration (Borang F) issued to the Appellant, had ordered costs of that application to be borne by the Appellant in her capacity as the administrator of the Deceased's estate. [95] Moreover, as the Appellant, the Respondent and the beneficiaries will now proceed to a rehearing of the small estate distribution (as per paragraph 6 of the High Court Order dated 31 July 2024), all relevant parties will be named and hence the issue of natural justice will not arise as all parties will be given the opportunity to be heard during the hearing of the small estate distribution. In this regard we find that the ground submitted by the Appellant cannot stand. [96] In other words, once the matter is remitted for a rehearing of the small estate distribution proceedings, the Appellant, the Respondent, and all other beneficiaries will have the opportunity to participate in the proceedings. Hence, all persons with a legal interest in the estate will be properly identified and notified, thereby ensuring that each affected party is afforded an opportunity to be heard before any fresh distribution order is made. [97] Accordingly, as the proceedings will be conducted with the participation of all relevant parties whose rights or interests may be affected, the principles of natural justice will be fully observed during the rehearing. Therefore, the Appellant's contention that there has been a breach of natural justice cannot be sustained, as the relief granted ensures that all interested parties will be accorded procedural fairness before the Land Administrator reaches a fresh determination. G. DECISION OF THIS COURT [98] For the aforementioned reasons, having considered all the oral and written submissions before us, including all documents filed in court, we are satisfied that the learned High Court Judge's decision was correct in law and fact. For all the reasons set forth, we unanimously dismiss this appeal with costs. The decision of the High Court in allowing the Respondent's application to set aside the Small Estate Distribution Order dated 9 August 2023 in the form of Borang E and the Small Estate Letter of Administration (Borang F) issued to the Appellant, is hereby affirmed. [99] We direct costs of RM30,000.00 to be paid by the Appellant to the Respondent, subject to allocatur fee. Dated:23 July 2026 - sgd - (SHAHNAZ BINTI SULAIMAN) Judge Court of Appeal Malaysia Putrajaya Counsel: For the Appellant : Lua Kok Hiyong Ummi Salhah Mohamad (Messrs. Lua & Mansor) For the Respondent: Muhamad Adib bin Mohamed Saat (Messrs. Adib & Zulhafiz)