The ruling by the state’s highest shariah court is significant, as it may affect similar cases in Penang and other parts of Malaysia.
Syarie judge Noor Hadina Ahmad Zabidi, delivering the court’s decision, said there was no merit in the appeal brought by Abdul Shukor PA Sultan, Syed Idross Syed Hassan Al Mashoor, and Sheik Jelani Sheik Eman.
She held that the respondent – the Penang Islamic Religious Council – had become the trustee of the property by operation of law.
Abas Nordin, the presiding judge, was absent due to ill health but consented to the unanimous decision. The other panel member was judge Nazri Abdul Rahim.
The appeal was dismissed with no order as to costs.
The appellants had sought to reclaim land from the council comprising two titles covering six hectares in Air Itam.
Two years ago, the Penang shariah high court also dismissed a suit filed by the claimants in 2017.
Counsel Awang Armadajaya Awang Mahmud and Tajudin Abdul Razak appeared for the respondent, while Akberdin Abdul Kader, Yuslinov Ahmad, Rafie Shafie, Redza Rafie, and Ardy Suffian Akberdin represented the appellants.
The appellants argued that Shaik Eusoff had willed for the property to be held in trust for his descendants and designated as wakaf land for only 21 years following the death of his last surviving child.
The last of his seven children – a daughter – died in 1932, and the land was said to have reverted to the family estate in 1953, based on a 10-page will written in English and dated Dec 30, 1892.
In earlier proceedings, the family sought to invalidate the wakaf on grounds that a wakaf cannot be created for a limited period, such as 21 years, but must be in perpetuity under the Shafi’i school of thought.
The dispute had been litigated in the civil courts since the late 1990s, centring on whether the land was held in trust or constituted wakaf, as maintained by the religious authorities.
Following a Federal Court ruling, the matter was referred to the shariah high court for determination.
Shaik Eusoff, a Jawi Peranakan of Gujarati origin, was a prominent real estate magnate believed to have owned extensive tracts of land in George Town in the early 19th century.
The respondent maintained that the appellants were not beneficiaries of the property, but merely descendants of the businessman. It further argued that the appellants lacked the locus standi to challenge the will.
The council also submitted that part of the deceased’s estate had been distributed among the descendants in 1894.
It contended that the will was valid under Islamic law, as the wakaf was intended to be in perpetuity, with only the trustees subject to replacement.
However, this arrangement was superseded when the endowment properties, including wakaf land in Penang, were placed under the Mohamadan and Hindu Endowments Board Ordinance 1903.
In 1949, the Penang Islamic Religious Council Enactment was passed, transferring all functions and duties of the board to the council.
The appellants, in challenging the will, failed to provide a proper translation, whereas the council adduced expert evidence to interpret the testator’s intention from Victorian English into contemporary English and Bahasa Malaysia.