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| No. |
Title |
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Attachment |
| 31 | Penghulu Jarraw v. Jubin anak Marin | SECOND CIRCUIT COURT
PENGHULU JARRAW versus JUBIN ANAK MARIN Contract—Dayak custom of “baso kaki”—Illegal Remuneration—Void contract.
The facts of the case are set out in the judgment.
Held:
| That baso kaki, not being a commission to which a Penghulu is entitled under the codified Dayak adat of the Third Division. Is not legal remuneration and a contract which provides for payment of baso kaki to a Penghulu is void. |
________ BEFORE HIS HONOUR JUDGE D.R. LASCELLES. The Appellant and Respondent in person.
26th July, 1951 LASCELLES, J.: This case has had a long and somewhat chequered career but has eventually come before this Court as an appeal against the decision of the Sibu District Court which set aside the judgment of the Sibu Petty Court. The Appellant in this case, Penghulu Jarraw, some two or three years ago settled a divorce case under the Dayak adat between the Respondent’s son and daughter-in-law. After the divorce there took place the usual division of the family property This was done under the supervision of the Penghulu. He claims that in accordance with Dayak custom he was entitled to receive certain remuneration as baso kaki. He claims that the Respondent had agreed that this remuneration should consist of ten pasus of padi. The Respondent admits that he agree to pay two pasus only and claims that he has in fact already paid them. Throughout this case there has been constant reference to baso kaki. Originally this consisted of some form of ceremonial drinking after the division of the property, hence the use of the term baso kaki. It appears that in the course of time there has crept in the practice of giving to the Penghulu or person officiating some more substantial reward for his services. There is no doubt after listening to the Appellant that he is firmly convinced that he has a legal right to this remuneration. The Third Division Dayak adat was codified in 1936 and in that code is laid down the commission which Penghulus are entitled to receive in certain cases. In all cases of fines of eight mungkuls and less the Penghulu gets a commission on a sliding scale. There is throughout the code no mention of baso kaki. I must now consider in what capacity the Penghulu was acting when he attended the division of the property. If there is any dispute concerning inherited property it is clearly laid down in the Dayak Code that the case must be referred to the “District Kot”. If the dispute concerns only property gained by the parties during their married life, and if the value is less than fifty dollars, then under the Native Courts Ordinance the Penghulu. If the Court was properly constituted, could deal with the case. It is clear that in this case there was no dispute and that the Penghulu was acting in an administrative capacity as an arbitrator. In the Third Division it has apparently become the custom for the Penghulu or occasionally a tuai rumah to perform this duty. In this case Penghulu Jarraw was acting as Penghulu Jarraw and not as just plain Jarraw. He was in fact acting in a quasi-judicial capacity. Any contract or engagement which has a tendency, however slight, to affect the administration of justice is illegal and void. Having considered the function performed by the Appellant and the position he was holding at that time I consider that the contract by which he was to receive baso kaki for his trouble was illegal and void. The Court will not assist him to recover the remuneration although it might have been promised. In view of the finding I have made I do not consider it necessary for me to come to any conclusion as to whether that remuneration was to be two pasus or ten pasus.
The appeal is dismissed and the judgment of the District Court upheld. There will be no order for cost. Appeal dismissed. | | | 32 | PREFACE | PREFACE HAVING COMPILED a collection entitled "Cases on Native Customary Law in Sabah" for the Government of Sabah to cater for the needs of the Native Chiefs and administrative officers, I have been encouraged by many friends, particularly the Honourable the Lord President, Tun Mohamed Suffian, to do a similar one for Sarawak. Opportunity is taken to include in this collection an Outline History of the Administration of Native Law in Sarawak since there is a dearth of authority on this subject. The cases in this collection have been selected from traceable records kept in the Law Courts in Sarawak, reports in the Sarawak, North Borneo and Brunei Supreme Court and the Malayan Law Journal. Some cases were from the High Court in Borneo. In T.R. Manggai v. Government of Sarawak and Anor (1970) 2 M.L.J. 41, the Federal Court dealt with certain procedural aspects of the native courts. This case is also an authority for the proposition that where a statute creates a specific tribunal for the enforcement of any particular right, then a party seeking to enforce that right must resort to that tribunal and no other. I have also included the case of H.H. the Raiah v. Dunggaw and Unjar (1934) S.C.R. 37 to show that headhunting ceased to be regarded as a custom since the time of the First Rajah but treated as an offence sui generis against the common law. It also shows the inherent danger that an Administrative Officer had to meet in those days in hearing a serious criminal case as he would be subject to pressure from his superior in interfering with the proper administration of justice. Social conditions and economic development would imperceptibly cause changes to the customary laws. But, on the whole, customary laws alter very little despite constitutional changes.
Custom is a mysterious and uncertain thing. Those of us who frequently have to deal with custom when administering the law feel that we could do with a little more certainty and less mystery. Custom is certainly not fossilised. It is static. Custom must grow and change as communities progress and develop in the light of rapid social changes and economic development in the country. Otherwise, it will die. Ceremonies and taboos form part of the customs of many communities. Where they no longer serve any useful purpose or command the respect of the community with which they are associated then they are rightly discarded. The fact that they are gone increases rather than diminishes the value of the hardcore of the custom which remains. Native customary laws like the common law are also built on certain sets of broad and generally accepted principles. But, there are, however, important variations of customs from district to district and even within a district itself. The variations are more pronounced in respect of certain aspects of customary law, e.g., adoption, marriage and succession.
In this collection it is only right that most of the cases are concerned with Iban customs since Iban is the largest native group in Sarawak. Similarly, most cases in Sabah deal with Dusun customs since Dusun forms the largest group in Sabah.
Sarawak is more fortunate than Sabah in that quite a number of cases relating to customary laws are reported in the Sarawak, North Borneo and Brunei Supreme Court Reports and a few in the Malayan Law Journal since Malaysia. Also, in Sarawak legislations on Native Customary Laws are more comprehensive, particularly subsidiary legislations, e.g., The Undang-Undang Mahkamah Melayu Sarawak, The Tusun Tunggu and The Orang Ulu Customary Code of Fines. These subsidiary legislations made under the Native Customary Laws Ordinance (Cap. 51) can be found in the Laws of Sarawak, 1958, Volume VII (Cap. 51). For convenience and ease of reference, I have consigned the relevant legislations and other related papers to various appendices.
It is hoped this collection of cases will be of interest and assistance not only to the Headmen, Penghulus, Pemanchas, Temenggongs and the Administrative Officers in dealing with matters relating to customary laws, but also to students on the subject. My sincere thanks go to Encik M.B. Hooker of the University of Kent at Canterbury for kindly writing an Outline History of the Administration of Native Law in Sarawak. I should also like to thank my secretary, Mrs. Valerie Goh for typing the manuscript and sorting out all sorts of problems in connection with the collection. | | TAN SRI DATUK LEE HUN HOE, (P.M.N., S.P.D.K., P.G.D.K., P.N.B.S., A.D.K.) |
KUCHING, | | | 33 | Probate Officer, Sarikei v. Sidang anak Udin (f) & 4 Ors | IN THE HIGH COURT IN BORNEO AT SIBU
| PROBATE OFFICER, SARIKEI | … | … | Applicant | versus | | | | | | SIDANG ANAK UDIN (f) | … | ... | ... | 1st Respondent | | RABAI ANAK MUT (f) | … | … | … | 2nd Respondent | | GARAH ANAK MUT (m) | … | … | … | 3rd Respondent | | DATU ANAK ANDOK (m) ... | … | … | 4th Respondent | | REMAIS ANAK ANDOK (f) | | … | … | 5th Respondent |
In the High Court at Sibu before Tan Chiaw Thong, J.
Originating Summons No. 28 of 1972.
Date of Judgment: 19th August, 1976.
Administration of estates-Distribution on intestacy-Claims by widow, stepsons, adopted daughter, brother and sister of deceased-Iban customary law-Barang lama-Barang bahru .
Penghulu Andok died intestate on 4.6.71 leaving some properties. The Probate Officer, Sarikei applied for the distribution of the estate among the widow, the stepsons, the brother, the sister and the adopted daughter of deceased. The widow (1st Respondent) claimed to be entitled to two parcels of land which she alleged to have inherited from her ancestors before her marriage and prior to the issues of titles to the land. Further, the parcels of land were acquired after her marriage to deceased. Deceased's sister (2nd Respondent) died during the trial. Deceased brother (3rd Respondent) claimed a share in the estate on the ground that deceased died without any children. 4th Respondent claimed for a share as the natural son of deceased by a previous marriage. Similarly, 5th Respondent made her claim as deceased's adopted daughter. Penghulu Ghani gave expert evidence regarding Iban customs on inheritance in Sarikei district. He distinguished the properties as borang lama and barang bahru, 1st Respondent and her children made no claim on the barang lama. Neither did 3rd Respondent. The learned Judge found as a fact that 1st Respondent and her sons by a previous marriage, namely Sandon anak Achong and Jalang anak Achong and their families lived in deceased's bilek until his death. They had worked on two parcels of land forming parts of the barang baharu and thereby improved the land. Although 5th Respondent did visit them she had never lived with them and had not worked on the land all the time.
The learned Judge accepted the expert evidence. He also relied on Indun (f) anak: Ugu v. Dendang anak Saing(1) and Egoh anak lgu v. Inggol anak Jegong(2): and the Tusun Tunggu.
Held: ..
| | (1) That the barang lama consisting of two parcels of land are to be shared equally by 4th and 5th Respondents: | | | (2) That 3rd, 4th and 5th Respondents did not qualify for a share in the barang bahru. | | | | (3) That the widow was entitled to one half share in the barang bahru while the other half share was to be divided equally between Sandon anak Achong and Jalang anak Achong. |
Cases referred to:-
| | | (1) Indun (f) anak Ugu v. Dendang anak Saing (1953) S.C.R. 37. | | | | (2) Egoh anak Igu v. Inggol anak Jegong (1953) S.C.R. 55. |
Encik Abdul Hamid Mohd. Yusoff, standing in for Mr. Denis Ong,
Assistant State Attorney-General, for Applicant
Mr. Joseph Tang for 1st Respondent.
3rd Respondent in person.
4th and 5th Respondents not appearing.
TAN CHIAW THONG, J. : In this action the Probate Officer, Sarikei as administrator of the estate of the late Penghulu Andok anak Mut (deceased) applies for the distribution of the following properties comprised in the said estate in the following manner:-
| | (a) | A parcel of land known as Lot 205 Block 138 Sarikei Land District comprising 11.32 acres to be distributed by giving 1/4 share each to the following persons:- | | | | (i) Sidang anak Udin (f), widow of the said deceased. | | | | (ii) Jalang anak Ah Chong, stepson of the said deceased. | | | | (iii) Sandom anak Ah Chong, stepson of the said deceased. | | | (iv) Garah anak Mut and Rabai anak Mut jointly, these two persons being the brother and sister of the whole blood of the said deceased. | | | (b) | A parcel of land known as Lot 80 Block 137 Sarikei Land District comprising 1.45 acres to be distributed as in (a) above. | | | (c) | A parcel of land known as Lot 271 Block 138 Sarikei Land District comprising 5.21 acres to be given to Remais anak Adok, adopted daughter of the said deceased by a previous marriage. | | | (d) | A parcel of land known as Lot 94 Block 153 Sarikei Land District comprising 3.27 acres to be distributed as in (c) above. |
It has been agreed among all parties that the late Penghulu Andok anak Mut died intestate on the 4th day of June, 1971 at Sarikei, leaving the above immovable properties as well as one SBBL Shotgun (12-bore No. BTR-6-2958 "Champion") held under Licence No. SDC 2879 and other household belongings. In his affidavit in support of the application, the Probate Officer, Sarikei submitted that this shotgun and other household belongings should be distributed in the same manner as in (a) above.
The 1st Respondent Sidang anak Udin (f) claims the properties specified in (a) and (b) above as well as the other movable properties on the ground that she was the widow of the deceased at the time of his death and that the parcels of land in items (a) and (b) belonged to her as having been inherited by her from her ancestors before her marriage to the deceased and before the issue of titles thereto; and further, that the properties were acquired by the deceased and her after she married the deceased. During the course of the hearing of this action, the 2nd Respondent died. The 3rd Respondent claims a share in the properties of the deceased on the ground that the latter was his brother who had died without any children. The 4th Respondent claims a share in the properties of the deceased on the ground that he is the natural son of the deceased. The 5th Respondent makes the same claim on the ground that she is the adopted daughter of deceased.
| The following are additional facts agreed by the parties-
|
| (a)
| The 1st Respondent has two sons, namely, Jalang and Sandom anak Ah Chong by her previous marriage which was dissolved according to Iban custom prior to her marriage to the deceased. | | (b) | The 3rd Respondent is a brother of the whole blood of the deceased . |
| (c) | The 5th Respondent is the adopted daughter of the deceased and a previous wife Rinta. The adoption was made in accordance with Gawai Be-iru anak. |
The allegation of the 4th Respondent that he is the natural son of the deceased by a previous marriage namely, that between the deceased and Rinta is disputed by the 1st Respondent who alleged that the 4th Respondent is the stepson of the deceased by the latter's previous marriage to Rinta which has been dissolved according to Iban custom before the latter's marriage to the 1st Respondent. The 1st Respondent further alleged that the 4th Respondent is the natural son of Rinta and Malling, both of whom are deceased. In this connection, apart from the evidence of Tuai Rumah Chawan anak Nyuak (D.W. 9) called by the 1st Respondent who stated that as far as he knew, the 4th Respondent is the son of Rinta and MaIling, there is no evidence supporting this allegation. D.W.9 said that he did not know MaIling personally and he gave no basis for his alleged knowledge that the 4th Respondent is the son of Rinta and MaIling. As such therefore it is not safe to act on his evidence as proof of the alleged fact that the 4th Respondent is the son of Rinta and MaIling as alleged by the 1st Respondent. On the evidence, I find that the 1st Respondent has not succeeded in proving on a balance of probabilities that the 4th Respondent is the son of Rinta and Malling. On the other hand, the 3rd Respondent Garah anak Mut (D.W.3) testified that the 4th Respondent is the natural son of the deceased and Rinta. It is true that he gave no basis for his knowledge but it should be borne in mind that the 3rd Respondent is the brother of the whole blood of the deceased and his admission in the circumstances should not be taken lightly. On the evidence therefore I find that it is probable that the 4th Respondent is the natural son of the deceased and Rinta. The 4th Respondent has admitted that the marriage between the deceased and Rinta was dissolved.
The 1st Respondent also alleged that she had been married to the deceased for more than 15 years before his death and since the marriage they had stayed together in the same bilek in Rumah Sandom until the death of the deceased. The 4th Respondent disputes this. He alleged that the marriage was dissolved before the death of the deceased. On the evidence I find that the allegation of the 4th Respondent is without substance. He has called no evidence to support his allegation. The witnesses called by the 3rd Respondent did not support this allegation. The evidence of the two witnesses Tuai Rumah Balong anak Batu (D.W.4) and Tuai Rumah Nanang anak Baroh (D.W. 5), on the contrary, clearly shows that the deceased and the 1st Respondent had never been divorced. On the other hand, the evidence of the 1st Respondent and that of her son Sandom anak Ah Chong (D.W.2) quite clearly shows that the deceased and the 1st Respondent were married in Church on 31.1.61 as evidenced by Ex.D1. This is not disputed. Further, the evidence of the 1st Respondent and D.W.2 also shows that before the Christian marriage the deceased and the 1st Respondent were married in accordance with Iban custom. The 1st Respondent said that this marriage took place about a year before the Christian marriage whereas D.W.2 stated that this marriage took place some 20 years ago. I do not consider that the discrepancy on this point between the evidence of the 1st Respondent and D.W.2 has the effect of affecting their credibility as witnesses on other matters contained in their evidence. In any event, the evidence clearly shows that the 1st Respondent and the deceased had been married for more than to years before his death. The evidence of the 1st Respondent and D.W.2 also shows that since that marriage, the deceased had been staying with the 1st Respondent in the same bilek until the death of the deceased, together with D.W.2 and his family as well as the family of the brother of D.W.2, Jalang anak Ah Chong. I find this as a fact on the evidence as accepted by me.
The applicant called Penghulu Ghani anak Sat (P.W.2) as an expert witness. This witness is a Penghulu of some 25 years standing and his area of jurisdiction covers Sungai Nyelong. He testified that he was familiar with the Iban customs on divorce and inheritance in the Sarikei district. He had often appeared in native courts as an expert witness on Iban customary law in Sarikei and his evidence had been accepted. I accept this witness as an expert witness on Iban customary law in Sarikei including Iban customary law on divorce and inheritance. He explained the distinction between what properties are comprised in the barang lama and in the barang bahru under Iban customary law in Sarikei. It is common ground that among the immovable properties of the deceased at the time of his death, the two parcels of land specified as items (c) and (d) in paragraph 1 above are barang lama in the estate of the deceased. The 1st Respondent and her children are not laying any claim to any share in these barang lama and neither is the 3rd Respondent. According to the evidence of P.W.2, the 1st Respondent has no rights over the barang lama and neither has the 3rd Respondent. On the evidence of P.W.2, I find that, it being common ground that at the time of the deceased's death, his first widow, namely Rinta had also died, the barang lama of the deceased falls to be inherited by the natural and adopted children of the marriage between the deceased and Rinta-in this particular case, the 4th and 5th Respondents. P.W.2 also said that such children should get equal shares in the barang lama on the deceased's death. I accept his evidence on the point. Accordingly, I hold and order that the barang lama concerned in this action, namely,
| | (a) | That parcel of land known as Lot 271 Block 138 Sarikei Land District comprising 5.21 acres more or less; and | | | (b) | That parcel of land known as Lot 94 Block 153 Sarikei Land District comprising 3.27 acres more or less, |
shall be inherited by and vested in the 4th and 5th Respondents in equal shares.
I now come to the other properties concerned in this action. On the evidence it is clear and I find as a fact that the following immovable and movable properties of the deceased at the time of his death constitute barang bahru under Iban customary law applicable in Sarikei:-
| (a) | That parcel of land known as Lot 205 Block 138 Sarikei Land District comprising 11.32 acres, more or less. | | (b) | That parcel of land known as Lot 80 Block 137 Sarikei Land District comprising 1.45 acres, more or less. | | | (c) | One SBBL shotgun (12-bore No. BTR-6-2958 "Champion") held under Licence No. SDC 2879 and other household belongings. |
In coming to this finding of fact, I have taken into consideration the facts as contained in the agreed documents Exs. P1, P2, P6 and P7. Exs. P1 and P2 show the history pertaining to the acquisition and registration of the two parcels of land concerned in the name of the deceased and Ex. P6 clearly shows that the shotgun concerned was acquired by the deceased during the subsistence of his marrige with the 1st Respondent. The 4th Respondent has made the point that the shotgun concerned was acquired by an exchange by the deceased of a double-barrelled shotgun previously owned by the deceased with the previous owner of the shotgun concerned who had to pay the deceased $180/-. In my judgment, even if that were so, the fact remains that the shotgun concerned was acquired by the deceased when he was married and living together with the 1st Respondent and as such, I find that the shotgun concerned is included amongst the barang bahru of the deceased.
I accept the evidence of the 1st Respondent and D.W.2 that after the marriage of the deceased and the 1st Respondent, they had been staying together in one bilek with D. W. 2 and his family and the younger brother of D.W.2, Jalang anak Ah Chong and his family until the death of the deceased. I have found this as a fact. I further accept the evidence of the 1st Respondent and D.W.2 that all of them were concerned in working and imnrovinz the two parcels of land which I had found to form part of the barang bahru of the estate of the deceased. The 5th Respondent is also laying claim to a share in the barang bahru on the ground that she also played a part in working on and the improvement of the two parcels of land. However, in cross-examination, she stated that she never stayed with the deceased and the 1st Respondent but she did visit them.
Penghulu Ghani anak Sat (P.W.2) in his expert evidence said that only children of a previous marriage natural or adopted who had worked all the time in the barang bahru would have a share in the said property, although not staying in the same bilek as the deceased. He added that a natural child of the deceased by a previous dissolved marriage who did not work in the barang bahru and did not stay together with the deceased would not be entitled to any share in the barang bahru. The 5th Respondent has admitted that she never stayed with the deceased and the 1st Respondent but only visited them. Hence, although she stated that she had worked in the land comprised in the barang bahru by helping the deceased and the 1st Respondent to weed the grass there, I do not find on her evidence that she has shown that it was probable that she had been working on the two parcels of land concerned all the time. Hence, I find that she does not qualify for a share in the barang bahru. It is common ground that the 4th Respondent had never after the marriage took place between the deceased and the 1st Respondent stayed together with them nor worked in any of the two parcels of land comprised in the barang bahru. Hence, I also find that he is not entitled to any share in these lands in the barang bahru.
I have found as facts on the evidence as accepted by me that the barang bahru were acquired by the deceased during the subsistence of his marriage with the 1st Respondent; that after his marriage with the 1st Respondent; the deceased was staying together with her and his stepsons D.W.2 and Jalang in the same bilek until his death; and that all of them had been working in the two parcels of land comprised in the barang bahru until the death of the deceased. On the evidence of Penghulu Ghani anak Sat (P.W.2), the 1st Respondent, D.W.2 and Jalang would clearly be entitled each to have a share in the barang bahru. This view would appear to be supported by the case of Indun (f ) anak Ugu v. Dendang anak Saing(1) In that case a Sea Dayak, Nuli, died punas leaving surviving him a widow, a child by a previous marriage which had been dissolved, and two sisters. It was held, inter alia, that (a) The barang bahru belonged equally to all persons,induding Nuli himself and his infant child living in his bilek at the time of his death. (b) Nuli's own share of the barang bahru, amounting in this case to a one-fifth share, would normally pass to his widow for the purpose of erecting a monument to him, but as in this case she had erected no monument and had, in fact, married again, that share fell for distribution between his two sisters. It is to be noted that that case would appear to concern rights of inheritance in the Binatang district and since the decision in that case there has come into force on 1.10.55 the Tusun Tunggu covering the whole of the former Third Division which comprised the present Sixth Division the capital of which is Sarikei. By the Tusun Tunggu (Third Division) Order (Vol. VII (1958) Revised Edition of the Laws. page 583) the Tusun Tunggu (Dayak version) was declared to be the native customary law for all Iban communities of the Third Division and for all such other persons, cases and suits to which, in accordance with the Native Courts Ordinance, or by virtue of any other written law, it may lawfully be applied. That Order also stipulates that the English version of the Tusun Tunggu may also be used and referred to and that in the case of any conflict between the Dayak version of the Tusun Tunggu which is the authorized version and the English translation thereof, the former shall prevail. Under Appendix A to the English translation of the Tusun Tunggu at page 635 Vol. VII of the 1958 Revised Edition of the Laws, it is stated inter alia that-
| | “A widower or widow is only entitled to property obtained jointly during the marriage and only to a half share of the deceased property, if she or he, removes horne or re-marries and does not continue to keep the bilek in existence. |
| | If the deceased leaves a child or children but no widower or widow, all the estate (real or personal property) shall be inherited by such child or children. If such child or children are still minors, then the property will be held in trust for such child or children. |
| | lf the deceased is punas then the rights of the following next-of-kin to inherit the residuary estate, shall be considered in the following order:- |
| | (a) Parents of the deceased. | | | (b) Brothers and sisters (whole blood) of the deceased. | | | {c) Nephews and nieces (whole blood) of the deceased. | | | (d) Brothers and sisters of half blood." |
Learned counsel of the 1st Respondent has submitted that on the authority of the above quoted passages and the decision of Indun (f) anak Ugu's case (supra), the barang bahru of the deceased should be distributed equally amongst the persons living in the same bilek as the deceased including the deceased at the time of his death and further, that the deceased's share in this instance should be inherited by the wife, provided she did not re-marry and continued staying in the same bilek after his death. The evidence of P.W. 2 shows that if the husband of a marriage dies without leaving any issue of that marriage, he is considered to have died punas. In the lndun (f) anak Ugu's case, Blagden, Ag. J. in the course of his judgment at page 38 held, inter alia, as follows-
| | | "In my view the Dayak custom where a husband dies punas is that his widow takes his share of the barang bahru provided she stays on in the bilek and does not re-marry. | | | | The real object of her receiving that share is that she shall use it in erecting a monument to her deceased husband. If she does that his heirs and relatives will have no claim on that share, even if she subsequently re-marries. But if she does not do that, and if she subsequently re-marries or leaves the bilek, then her husband's heirs and relatives are entitled to claim her husband's share of the barang bahru," |
In the same judgment, the learned Judge also held that where under Dayak custom a husband dies punas, all persons living in the same bilek as the deceased at the time of his death are entitled to a share in the barang bahru acquired during the time when they were all living together (para. 2 at page 38). In that action, it was decided, inter alia, that the sisters of the whole blood of the deceased were entitled jointly to a one-fifth share in the barang bahru of the deceased because the deceased's share in the barang bahru had not been utilised by his widow, the Defendant, to erect a monument to her deceased husband and that she had subsequently re-married. It would appear from the judgment that had the Defendant not re-married, her late husband's share would have reverted to her instead of the sisters of the deceased. I have not lost sight of the fact that the Tusun Tunggu (Third Division) Order came into force after the decision in the Indun (f) anak Ugu's case and that when that case was decided, the Tusun Tunggu was not in operation in the then Third Division covering Sarikei. However, I find that this decision does not appear to be at variance with the passages which I have earlier quoted from the English translation of the Tusun Tunggu. It is true that in his evidence Penghulu Ghani anak Sat has stated that brothers and sisters of the whole blood of the deceased would be entitled to a share in the barang bahru of the deceased but he subsequently modified his evidence on the point and agreed with the decision in the Indun (f) anak Ugu's case relating to the distribution of the barang bahru of the deceased. Hence, in the light of the modification to his evidence, provided that after the death of the deceased here, his widow did not re-marry and continued to stay in the same bilek, which is the case here, then brothers and sisters of the whole blood of the deceased are not entitled to his share in the barang bahru. Tuai Rumah Chawan anak Nyuak (D.W. 9) called by the 1st Respondent as an expert witness has testified inter alia that the estate of the deceased would have no share in the barang bahru as the deceased is dead but I find that his evidence on the point conflicts with the decision of the lndun (f) anak Ugu's case as well as the evidence of Penghulu Ghani anak Sat (P.W.2) as modified by him. Hence, I cannot accept his evidence on the point.
D.W.9 also said that a natural son and adopted children by a previous marriage of the deceased would have no share in the barang bahru of the deceased. This is not at variance with the evidence of P.W.2 save that the latter stated that any such children would have a share in the barang bahru only if they had worked all the time together with the deceased in the barang bahru. D.W.9 also stated that if a daughter of the first marriage helped in working the barang bahru only once in a while whilst staying elsewhere, she would have no share in the barang bahru. She would only have a share if she was working in the barang bahru with the deceased and was staying in the deceased's bilek as well. I find that his evidence does not conflict with the evidence of P.W.2 on this point, but I prefer and accept the evidence of P. W. 2. Be that as it may the evidence of D.W.9 would appear to support the conclusion that in the circumstances of this case, the 5th Respondent does not qualify for a share in the barang bahru of the deceased. If any further authority is required for this view, reference may be made to the case of Egah anak Igu v. Inggol anak Jegong'(2). I find on the evidence, that the 4th and 5th Respondents are not entitled to any share in the barang bahru.
Learned counsel for the 1st Respondent supported by learned counsel for the Applicant has submitted that the 3rd Respondent does not qualify for a share in the barang bahru of the deceased in accordance with the relevant Iban customary law. I accept the evidence as modified of P.W. 2 on the method of distribution of the barang bahru of the estate of the deceased in accordance with the lban customary law in Sarikei and I have also found that the decision in the lndun (f) anak Ugu's case (supra) does not appear to conflict with the relevant passages quoted above from the translation of the Tusun Tunggu applicable to Sarikei. I find that in the circumstances and on the applicable customary law, the 3rd Respondent does not qualify for a share in the barang bahru of the deceased and that such barang bahru should be distributed as follows: onehalf share (including the deceased's share) to the 1st Respondent, and the other half share to be shared equally between Sandom anak Ah Chong (D.W.2) and Jalang anak Ah Chong and I so order.
In the result, I order that in respect of the barang lama of the deceased, namely, (a) that parcel of land known as Lot 271 Block 138 Sarikei Land District comprising 5.21 acres, more or less; and (b) that parcel of land known as Lot 94 Block 153 Sarikei Land District comprising 3.27 acres, more or less, shall be inherited by and vested in the 4th and 5th Respondents in equal share. One-half of the barang bahru, namely, (a) that parcel of land known as Lot 205 Block 138 Sarikei Land District comprising 11.32 acres; (b) that parcel of land known as Lot 80 Block 137 Sarikei Land District comprising 1.45 acres; and (c) one SBBL shotgun (12-bore No. BTR6-2958 "Champion") and household belongings shall be inherited by and vested in the 1st Respondent, and the other half shall be inherited by and vested in Sandom and Jalang in equal shares. As to the actual distribution, I shall leave it to the Probate Officer, Sarikei and if there is any difficulty, no doubt the assistance of the relevant Penghulu may be enlisted.
As to costs, I order that each party shall bear his or her own costs. This has not been objected to by the parties. I consider that in the circumstances, particularly having regard to the value of the estate of the deceased, which is not considerable, that this is the fairest order to make.
| | | 34 | Prosidur Prosiding Mahkamah Bumiputera | Prosidur Prosiding Mahkamah Bumiputera |  | | 35 | Rampai anak Changgat v. Langau anak Chandai & Anor. | IN THE HIGH COURT IN BORNEO RAMPAI ANAK CHANGGAT
| ...
| …
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| Plaintiff
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| versus
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| 1.
| LANGAU ANAK CHANDAI ...
| …
| …
| 1st Defendant
| 2.
| SUPT. OF LANDS AND SURVEYS,
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| THIRD DIVISION, SlBU
| …
| …
| …
| 2nd Defendant
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In the High Court in Borneo at Sibu before Lee Hun Hoe, J.
Civil Suit No. 17 of 1967. Date of Judgment: 11th September, 1967.
Land Dispute-Dayak customary rights-Land Code sections 5, 10(4), 197 and 202-Bona fide purchaser for value-Remedy-Penghulu's decision-Res judicata.
Some time in 1962 certain disputes concerning customary rights in four untitled land were held by Penghulu Poh under the provisions of the Native Courts Ordinance. The four parcels are Lots 1462, 1463, 1464 and 1468. The Penghulu delivered two judgments. The first dispute was between Plaintiff and 1st Defendant involving land which includes Lot 1462 where there were fruit trees. Old rubber trees and a hut were outside Lot 1462. The Penghulu awarded the land with rubber trees and a hut to Plaintiff. In the second dispute between 1st Defendant and Plaintiff and others the Penghulu awarded the vacant land to 1st Defendant. It was not disputed that 1st Defendant was entitled to Lots 1463 and 1464. Lot 1468 was awarded to another person and is not in dispute. 1st Defendant made two applications for the land to be surveyed. In one application he applied for Lot 1462 to be surveyed. Plaintiff maintained that Lot 1462 was his. In submitting his applications 1st Defendant attached the second judgment of the Penghulu. As a result for some unknown reason the Land Office issued three titles to 1st Defendant in respect of Lots 1462, 1463 and 1464. He applied for 10.50 acres and the Land Office gave him about 70 acres. Meanwhile, Plaintiff began planting high-yielding rubber on Lot 1462 after obtaining approval from the Agriculture Department to join the Rubber Replanting Scheme. After obtaining his titles 1st Defendant disposed of all the property including Lot 1462 to a Chinese, a bona fide purchaser for value. When Plaintiff came to know about it he sought a declaration from this Court as to his right.
The Penghulu had given evidence that Lot 1462 was awarded to Plaintiff.
Held by Lee Hun Hoe, J.:
| | (1) That the title to Lot 1462 was wrongly issued to 1st Defendant and that the Land Office may accept part of the blame in the circumstances. | | | | | | (2) That the Court would decline to make the declaration for the reasons, that the Penghulu's decisions are res judicata and that the legislature has prescribed a remedy in a case of such a nature. | | | | | | (3) The fact that his right to sue for damages is barred by limitation does not entitled him to use the Court as a vehicle to get round the difficulty by means of a declaration. |
| | Quare: | | Whether the customary rights have been properly extinguished. |
| Cases referred to: | | | |
| (1) Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1958) 1 Q.B. 554.
| | |
| (2) In re Birkenhead Corporation (1952) 1 Ch. 395.
|
Mr. George Seah for Plaintiff.
1st Defendant appeared in person.
Mr. J. S. Abernethy (Registrar of Lands and Surveys, Kuching) appeared for the 2nd Defendant. LEE HUN HOE, J: In this case Plaintiff prays for a declaration that he has acquired the customary rights of the parcel of land situate at 14th Mile, Oya Road, Sibu forming part of Lot 1462, Seduan Land District, containing an area of ten acres, more or less. Plaintiff and 1st Defendant are both Ibans. 2nd Defendant is the Superintendent of Lands and Surveys, Third Division, Sibu. Some time in 1962 certain disputes concerning customary rights in untitled land at 14th Mile, Oya Road, Sibu came before Penghulu Poh under the provisions of the Native Courts Ordinance. At that time various parcels of land had been surveyed but no title was issued because of the disputes. According to the Penghulu four parcels of land were involved and which are now known as Lots 1462, 1463, 1464 and 1686. On 6th November, 1962 he delivered two judgments. In the first case between Plaintiff and 1st Defendant the land involved apparently included Lot 1462 where according to the report of the surveyor there would appear to be some fruit trees though of no value. The old rubber trees and other trees and a hut were apparently outside Lot 1462. So that it seems a much larger area was in dispute. The Penghulu awarded the land with rubber trees, other trees (including fruit trees) and a hut to Plaintiff. In the second case between 1st Defendant and Plaintiff and others the Penghulu awarded the vacant land to 1st Defendant. It was not in dispute that the 1st Defendant was entitled to the parcels of land now known as Lots 1463 and 1464. Lot 1686 was awarded to another Iban and is also not in dispute.
1st Defendant made two applications to the Land Office for titles to certain parcels of land. The first application No. 536/62 dated 6th July, 1962, that is, before the disputes were decided by the Penghulu, was for some thirty acres of land. The application was rejected because the disputes had not as yet been settled. The second application No. 101/63 dated 6th March, 1963 was for 10.50 acres of land. This was made after the decisions of the Penghulu. Attached to this application was a copy of the decision of the Penghulu in respect of the second case in which 1st Defendant was awarded the vacant land. But in this application 1st Defendant applied for title to the land known as Lot 1462 which Plaintiff maintained was awarded to him. The result is that the Land Office issued titles to three parcels of land, namely Lots 1462, 1463 and 1464 to 1st Defendant. These three lots contain about 70 acres of land. It is not clear why the Land Office gave him titles to such a large tract of land when he only applied for 10.50 acres. Soon after the Penghulu gave his decision, Plaintiff believing that he was entitled to Lot 1462, started planting high-yielding rubber trees on that land after obtaining approval from the Department of Agriculture to join the Rubber Replanting Scheme. Shortly after 1st Defendant had obtained the titles to the land he disposed of Lots 1462, 1463 and 1464 to a Chinese, a bona fide purchaser for value. It was then that Plaintiff realised that title to Lot 1462 had somehow been issued to 1st Defendant. If the Penghulu in the first case awarded Plaintiff land limited to area planted with old rubber trees, fruit trees and a hut then it is doubtful whether Plaintiff was entitled to plant high-yielding rubber trees on Lot 1462. However, Penghulu Poh who had since been to the area stated that he awarded the land now known as Lot 1462 to Plaintiff. He mentioned that when he dealt with the cases there were no lot numbers allocated and that he only used the rubber trees, fruit trees and the hut to indicate to whom the land should go. In which case, of course, the title was wrongly issued to 1st Defendant. There is, therefore, still the question whether in the circumstances the customary right acquired by Plaintiff has been properly extinguished. For reasons which will become clear later I do not wish to express any opinion. 1st Defendant did not impress me as an honest witness. He said what the Penghulu awarded the Plaintiff was a parcel of land near the river but outside Lot 1462. This is contradictory to the evidence of the Penghulu. 1st Defendant might have misled the Land Office by attaching the Penghulu's decision on the second case with his application No. 101/63. He gave me the impression that since the Land Office gave him the titles, including that of Lot 1462, he must be entitled to them. Mr. Abernethy did not dispute that the Penghulu's decision on the first case was also with the Land Office but informed the Court that he was not aware of it until this was brought to his notice during the hearing. He said the 2nd Defendant was also not aware of it otherwise he would have ordered further investigation before the title to Lot 1462 was issued. Mr. Abernethy, however, was not in a position to tell the Court how the Penghulu's decision in the first case came to be with the Land Office. This is all very strange and the Land Office must accept part of the blame for if the decision of the first case was available then it certainly called for further investigation before title to Lot 1462 should be issued Could it be that both decisions were known to someone who interpreted the first decision wrongly and hence issued three titles to 1st Defendant?
There are difficulties in this case. Sections 197 and 202 of the Land Code read:-
| "197. Any person who is deprived of any land, or of any estate or interest therein, by reason of any of the provisions relating to indefeasibility contained in sections 132, 133 and 134 and who is by reason thereof barred from bringing an action against the registered proprietor for possession, or other action for discovery of that land, estate or interest, may bring an action against the Crown for recovery of damages."
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| "202. No action for recovery of damages as aforesaid shall lie or be sustained against the Crown unless the action is commenced within a period of three years from the date when the right to bring the action accrued; ... ".
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Mr. Seah submitted that before section 197 applies Plaintiff has to prove his customary rights in the land and that in any case the Court has a discretion under 0.25 r.5 of Rules of the Supreme Court to make the declaration. He cited Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government(1) where the Minister was alleged to have wrongly exercised his discretionary powers. In the circumtances this, if proved, would have probably constituted an error of Iaw which might warrant the issue of certiorari. Yet the majority of Court of Appeal were of the opinion that they had power to grant a declaration in such a case, though they thought on merits it should not be made. This may be so. However, there are certain distinguishing features in this case and each case must be decided according to its particular facts. In any case it is not necessary to express any view on the case of Pyx Granite Co. Ltd ..(1) With respect, in my opinion, on the facts of this case and even though Plaintiff has clearly established his right the Court should in the circumstances refuse to make the declaration. In Sarawak before 1958 there was almost no restriction on natives creating customary rights by recognised methods in certain land. Thus, once part of a virgin jungle has been cleared by a native for planting it becomes temuda. It is a recognised custom that temuda is for the use of the original worker, his heirs and descendants. Such right cannot be sold in the same way' as titled land but can be disposed of by way of gift or on death. If a native abandons his temuda land and moves to another district he automatically loses all rights to that land. In such a case another native may work on such land and acquires the right. Since 1958 it becomes necessary for a native to obtain a permit in writing from a District Officer before he can create any customary right in untitled land. But rights acquired prior to 1958 will be decided according to law in force prior to 1958. See sections 5 and 10(4) of the Land Code. The legislature has created various Native Courts to deal with the native system of personal law involving the customary law of any native community which comes within the definition of native in the First Schedule to the Interpretation Ordinance. Penghulu Poh has already awarded the land now known as Lot 1462 to Plaintiff which means that Plaintiff has the customary right in that land. The Land Office should therefore have issued the title to him and not to the 1st Defendant. The legalitv and jurisdiction of the Court as constituted by the Penghulu has not- been questioned. Further the decisions of the Penghulu have not been challenged by way of appeal. The question is whether the matter was res judicata and, therefore, should not be redetermined by this Court. Mr. Seah submitted that the doctrine of res judicata does not apply in this case as Plaintiff is merely praying for a declaration in the light of the Penghulu's decisions and the issue of title to Lot 1462 to 1st Defendant. The Dictionary to English law by Jowitt explains that res judicata means " a final judgment already decided between the same parties or their privies on the same question by a legally constituted court having jurisdiction is conclusive between the parties, and the issue cannot be raised again. The judgment have been given by a foreign court (Tarleton v. Tarleton (1816) 4 M. & S. 21). A matter which is res judicata cannot be gone into; but if the decision was obtained by fraud it can be set aside (Cole v. Langford (1898) 2 Q.B. 36). Criminal proceedings do not constitute res judicata as regards civil proceedings arising out of the same facts (Caine v , Palace Shipping Co ., (1907) 1 K.B. 607; Anderson v. Collinson (1901) 2 K.B. 107)." The judgment of the Penghulu not only binds the parties concerned but should also be regarded as much a judgment in rem as he was in effect making a declaration as to the customary right of a person in certain parcel of land. He could not award land to a person unless he was satisfied that that person had acquired customary right to the land. It is also clearly shown that the Land Office relied on the decision of the Penghulu when issuing titles to land where disputes had arisen and settled by the Penghulu. The decisions were not obtained by fraud. A case which is very much in point and in which the principle enunciated should be followed may be cited. I refer to In re Birkenhead Corporation(2) where a dispute arose as to the right of school teachers to benefit under the new Burnham scale of remuneration, which came into effect in 1945, the matter was reported by the National Association of Schoolmasters to the Minister of Labour and National Service and duly referred to the National Arbitration Tribunal which made an award that the claim of the school teachers had not been established. A summons was taken out by one of the teachers to determine whether he was entitled to a supplemental grant, the question whether the tribunal had jurisdiction was raised. It was held that this was a trade dispute within the meaning of the definition of a trade dispute in clause 7 of the Conditions of Employment and National Arbitration Order, 1940; that the tribunal had jurisdiction to deal with the rights of employers and employees under private - as distinct from national-agreements and had consequently jurisdiction to make the award. In his judgment at page 379, Romer, L.J. states: -
| "I accordingly hold that, not only did the tribunal in fact decide the question which the Plaintiff has sought (albeit in a somewhat inconvenient and inconclusive way) to put in issue on the present originating summons, but it had full jurisdiction to do so. From this it follows, as Mr. Salmon conceded, that the matter is, as between Mr. Quigley and the Defendant corporation, res judicata."
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In my judgment, therefore, the decision of the Penghulu on the matter is res judicata and precluded this Court from making the declaration. Further the legislature has deemed fit to prescribe a remedy, that is, where any land has been disposed of to a bona fide purchaser for value any person, who considers that he has been deprived of his right or interest in such land, may sue the Government for damages. It is therefore doubtful, apart from the question of res judicata, whether Plaintiff can come to the Court and pray for a declaration when the legislature has already prescribed the particular remedy. The fact that his right to sue for damages is barred by limitation does not entitle him to use the Court as vehicle to get round that difficulty by praying for a declaration bearing in mind that under section 198(1) of the Land Code notice has to be served on the State Attorney-General. I have every sympathy with the Plaintiff who is apparently a more truthful person than the 1st Defendant. If the 2nd Defendant considers that someone in his Office was at fault unwittingly and the customary right has not been properly extinguished, then it is a matter for him to consider making a gratituous payment to the Plaintiff. For reasons given I decline to make the declaration. 1st Defendant did not file any defence though he appeared at the hearing. Costs awarded to 2nd Defendant. Costs to be taxed. | | | 36 | Rentap anak Sageng v. Intek (f) anak Atom | IN THE SECOND CIRCUIT COURT AT SIBU RENTAP ANAK SAGENG | … | … | Defendant/Appellant | versus | | | | INTEK (f) ANAK ATOM | … | … | Plaintiff/Respondent |
In the Second Circuit Court at Sibu before Lascelles, J.
Civil Case No. 19/51
Date of Judgment: 3rd May, 1951.
Land dispute-Titled land-Unsatisfactory proceedings-Res judicata-Set aside-Revision.
In 1938 the Resident’s Court upheld the ruling of the Magistrate’s Court that a certain piece of land belonged to three persons and that the Penghulu should arrange for the division which was never carried out.
In 1949 an action was commenced on the same piece of land in the Sibu Petty Court which gave judgment against the appellant. He appealed to the District Native Court and was successful. Respondent in turn appealed to the Court of the First Class Magistrate which dismissed her appeal. She appealed to the Supreme Court resulting in an order setting aside all proceedings after the hearing in the Petty Court. An appeal from the Petty Court would be out of time. Following an application to appeal the Second Circuit Court decided to exercise its power of revision.
Held, setting aside the decision of the Petty Court, by Lascelles, J:
| (1) That the land be divided into three portions in accordance with 1938 judgment and that the Penghulu shall carry out the division. | | | | | (2) That any dispute as to who are the proper heirs of the three parties concerned in the 1938 judgment shall be settled after the has been divided. |
LASCELLES,J.: This dispute is one over land valued at $50/- on which are some fruit trees. An action was commenced in the Sibu Petty Court and on 29/10/49 judgment was given against Rentap anak Sageng. He appealed and the District Native Court upheld his appeal. The Plaintiff Intek (f) anak Atom then appealed to the Court of a First Class Magistrate, Sibu, which dismissed the appeal. A further appeal to the Supreme Court resulted in an order setting aside all proceedings after the hearing in the Petty Court. The Supreme Court pointed out that an appeal from the Petty Court would now be out of time but that a party aggrieved by the decision of the Petty Court might apply to this Court for revision. Rentap accordingly applied for revision of the decision of the Petty Court.
There is no doubt and no dispute as to the identity of the land in question. It is the land covered by O.T. 39989 dated 8th November, 1948.
I have before me a certified true copy of Sibu Magistrate’s Court Civil Case No. 1/38 and it is clear that the land involved in that case is the same parcel of land as involved here. In the 1938 case the Court ruled that the land belonged to three persons namely, Punga (f), Nyanggau anak Maggai and Lumi (f) alias Linda (f). In that case an appeal was made to the Resident’s Court and I have before me a certified true copy of the Court’s decision. The Court dismissed the appeal and upheld the decision of the lower Court. No further appeal was made and it follows that when the action was commenced in the Petty Court in 1949, the matter had already been adjudicated by the Resident’s Court. It would appear however that the original direction of the Court of 1938 that the Penghulu should divide the land has never in fact been carried out.
By virtue of my power of revision under Section 17 of the Courts Ordinance I therefore set aside the judgment of the Petty Court, Sibu in Case No. 45/49 and direct that the land held under O.T. 39989 dated 8th November, 1948 be divided into three portions in accordance with the judgment of the Magistrate’s Court, Sibu in Case No. 1/38 as upheld by the Resident’s Court in Case No. 1/38. The division of the land shall be such as shall ensure an equal division of the fruit trees on the land. The Penghulu of that area shall be directed to carry out the division and then the parties may apply to the Land Office for survey. The costs of the survey shall be recovered from the parties concerned. Any dispute as to who are the proper heirs of the three parties concerned in the judgment of 1938 shall be settled after the land has been divided.
I also direct that the application for revision fee be refunded.
| | | 37 | S.M. Mahadar bin Datu Tuanku Mohamed v. Chee | SUPREME COURT
S.M. MAHADAR BIN DATU TUANKU MOHAMAD
versus
CHEE (F)
(C.J. 762/1941) Malay Undang-Undang-Identity of father of illegitimate child-Burden of proof.
The Appellant was fined and ordered to pay compensation to the Respondent in the Native Court, Simanggang, as the father of an illegitimate child under the Malay Undang-Undang. His appeal to the Resident’s Court, Second Division, was dismissed and he now appealed to the Supreme Court.
Held:
| That section 36 of the Malay Undang-Undang was absolute and a pregnant woman’s oath that a particular man was the father of her child could not be questioned. The Court therefore had no option but to dismiss the appeal. |
BEFORE THE JUDICIAL COMMIONER
Mr. E.M. Selous, Magistrate, First Class.
Abang Suleiman, Datu Amar, and
Datu Haji Mohidin, Datu Hakim.
January 8th, 1941
Evidence was taken and the parties appeared in person.
January 11th, 1941
The appeal was dismissed and the following judgment was delivered.
THE JUDICIAL COMMISSIONER: In this case the Appelant S.M. Mahadar Bin Datu Tuanku Mohamad appeals against a decision given in a Native Court under the Malay Undang-Undang whereby he was declared to be the father of a child born to one Chee, a Chinese woman converted to Islam, Respondent in this action. The Appellant has carried his appeal through the resident’s Court at Simanggang up to the Supreme Court, where the relevant evidence has been carefully considered by myself assisted by Mr. Selous, acting as an assistant judge and by two Datus, the Datu Amar and the Datu Hakim. At the beginning of this hearing I mentioned that this case would not be considered under the Malay Undang-Undang, but case would not be considered under the Malay Undang-Undang, but it has been represented to me that this is a matter which must be decided under, and judgment given upon the Malay Undang-Undang, and that in the judgment which I give in this Court I must be bound by the terms of the accepted Code of Malay domestic Legislation. The material section upon which reliance is laid is number 36. The effect of this section is in direct conflict with the bastardy laws of Great Britain which would normally be the guiding principle in any decision given in this Court. While I should hesitate to condemn or even to criticize any strictly religious belief or religious custom which is contrary to my personal views, I feel it my duty to place on record that in my view the Malay Undang-Undang on this point is in direct conflict with the principles of natural justice. To say, as it does, that the mere fact of pregnancy provides supporting evidence for the pregnant woman’s statement that a particular man was the father of her child, is in my view wholly contrary to the most elementary principles of justice and indeed to the ordinary experience of men in every part of the world. Such a fantastic doctrine makes it possible for a pregnant woman to provide and her child by the simple expedient of naming a man whom she believes to in possession of means sufficient to meet an order under the Malay Undang-Undang. Having made this observation I will say nothing more on this aspect of Malay Customary Law. I feel it my duty to add that had I been deciding this case in accordance with British law I should have been bound to find that there was no evidence in corroboration of the woman’s statement, which was in any way sufficient to justify a Court of Law in giving a decision in her favour. In this view I am supported by my brother judge. I fully appreciate the position the two Datus have taken up and indeed I realize that they could come to no other decision holding the view they do. The result to my mind is unfortunate. Moreover this hearing has involved a complete waste of time for this Court. As a result the appeal must be dismissed and the finding of the Native Court enforced.
| | Mr. E.M. Selous,
I agree. | | | | | | Abang Suleiman, Datu Amar,
I agree. | | | | | | Datu Haji Mahidin, Datu Hakim,
I agree. |
Appeal dismissed in accordance with
The Malay Undang-Undang.
Order of Native Courts, Simanggang
and decision of Resident's Court, Simang-
gang, upheld.
| | | 38 | Sat anak Akum & Anor. v. Randong anak Charareng | THE SUPREME COURT OF
SARAWAK, NORTH BORNEO AND BRUNEI
| SAT ANAK AKUM AND ANOTHER | ... | ... | Appellants | | versus | | | | | RANDONG ANAK CHARARENG ... | ... | ... | Respondent |
In the Court of Appeal at Kuching before Williams, C.J., Smith and Lascelles, J.
Civil Appeal No. 4 of 1958.
Date of Judgment: 19th May, 1958.
Testacy-Right of Dayak to make testamentary disposition.
Held:
| (1) A Dayak can make a valid written will; | | | | | | (2) A Dayak has an absolute right to dispose of property acquired by himself during his lifetime (pencharian); | | | | | | (3) In the case of pesaka land a Dayak's right of disposition is governed by the provisions of sub-section 1(d) and sub-section 3 of section 41 of the Land Code; thus such land may not be disposed of without the prior consent of a Resident unless the land is bequeathed to the testator's heirs: | | | | | (4) In the case of temuda land (customary tenure) there exists a form of entail and such land may not be disposed of so long as there are heirs entitled to exercise farming rights over that land; | | | | | | (5) In the case of utai pesaka (inherited (ancestral) personal property) there exists a form of entail and a Dayak may not dispose of such property to other than his heirs but he may govern the disposition of such property between those heirs. |
S.K. Reddi for the Appellants.
Respondent in person.
LASCELLES, J.: This is an appeal from a judgment of Mr. Justice Bodley in the High Court at Saratok on the 24th of September, 1957, dismissing an application by the Appellants / Plaintiffs for revocation of a will made by their deceased adoptive father.
At the hearing of the appeal Mr. Reddi appeared for the Appellants and the Respondent appeared in person. The Court also heard the opinion of Mr. Edward Jerah and Penghulu Sanggat as advisers on Dayak customary law. Judgment was reserved.
The facts of the case are simple. The deceased, a Pagan, Second Division Dayak, lived in a room (bilek) in a longhouse with his adopted son, Appellant No. 1. Appellant No.2, the adopted daughter, lived with her husband in a nearby room. Some five or six months before his death the deceased left the longhouse and moved into the room of his nephew, the Respondent, in another longhouse. Before moving the deceased had been ill and some six months after moving he died. The Respondent had been getting medical treatment for him and also apparently was responsible for the funeral arrangements. Before he died the deceased made a will leaving certain property to the Respondent and the rest to the Appellants. The Appellants claim that the distribution was not in accordance with Dayak customary law (adat) and was invalid. There is no doubt that the will was properly executed.
Mr. Reddi referred to section 2 of the Application of Laws Ordinance (No. 27 of 1949) which reads as follows:-
| | "2. Subject to the provisions of this Ordinance and save insofar as other provision has been or may hereafter be made by any written law in force in the Colony, the common law of England and the doctrines of equity, together with statutes of general application, as administered or in force in England at the commencement of this Ordinance, shall be in force in the Colony: | | | | | | Provided that the said common law, doctrines of equity and statutes of general application shall be in force in the Colony as far only as the circumstances of the Colony and of its inhabitants permit and subject to such qualifications as local circumstances and native customs render necessary." |
Mr. Reddi proceeded to argue that as wills were unknown to Dayaks then by virtue of section 2 the adat must prevail and the will accordingly be invalid. He referred to page 21 of the Tusun Tunggu to support his argument. The passage he referred to reads as follows: - "Wills are not known amongst Dayaks, but rules of descent or inheritance do regulate the transmission of (a) real property i.e., land or (b) personal property i.e., chattels from one generation to the next, both male and female. These principles are sometimes modified by the wishes of the original owner, who has some power of verbal testamentary disposition."
The Tusun Tunggu which applies to the Dayaks of the Third Fourth and Fifth Divisions is the result of an attempt to codify the adat which prevails among the Dayaks of these Divisions. It is well understood however that it is by no means exhaustive; I myself have come across points of adat which are not even mentioned in the Code.
As will be seen from the passage cited above even the Tusun Tunggu admits a certain power of verbal testamentary disposition. I fail to see any reason whatsoever why such disposition should not be reduced to writing. There is certainly no doubt at all that Dayaks have made written wills in the past and are still doing so. With the great advance in education and literacy among the Dayaks it is only reasonable to suppose the practice will increase.
It is very interesting here to note the judgment of His Excellency the Governor of North Borneo when sitting on appeal from a Resident's Native Court (Penampang Native Court Case 128/47).
This was a case concerning Dusuns and arose out of the making of a written will by a Dusun by which will, certain of the deceased's property was to be distributed in a manner not in accordance with Dusun custom. The points at issue were stated by His Excellency as follows:-
| | "Is a man entitled to dispose of his pencharian-the riches he has acquired during his lifetime- | | | | | | (1) by a written will? | | | | | | (2) by a distribution which can be held to be contrary to racial custom?" |
It is true this present case involves Dayaks and not Dusuns and also there is property concerned other than and in addition to pencharian but I consider it desirable to set out His Excellency's judgment in full as follows:-
| | "Firstly. Is a man entitled to dispose of his property by means of a written will? | | | | | | It has been held elsewhere that written wills are contrary to Dusun custom; and the customary method has been described. The judgment of the learned Resident leads to the conclusion that custom can only be changed by a formal agreement of a number of leaders-a sort of Council of Elders . | | | | | | I hold, however, that customs are not immutable and that in fact minute changes are occurring all the time. As a race develops and grows in breadth of outlook, so old customs fall into disuse. | | | | | | Formerly, when members of the Dusun race have not the ability to frame their thoughts and wishes in writing, it was reasonable that a man should communicate his wishes verbally to a representative gathering of his relations and the leaders of the people. In the case of the deceased, we have a man of reputed intelligence and learning who chose to convey his wishes by the written word-and the document is in the form of a duly witnessed last Will and Testament. | | | | | | I hold that this will must be accepted as a valid document, duly expressing the deceased's wishes as to the disposal of his acquired property. | | | | | | Secondly. Was the deceased entitled to make a will disposing of his property (pencharian) in what has been claimed to be a way contrary to native custom? | | | | | | The deceased makes provision in his will for the distribution of his barang pencharian in three parts. | | | | | | It has been argued that the will is unlawful because the legatees would not be entitled to the same shares by Dusun custom. | | | | | | It must be considered that the deceased was a man who had a knowledge of the law, obviously certain that he could dispose of his acquired property in any way he wished. He did not attempt to make provision for the distribution of his "inherited" or "family" property, which would, in effect, be "entailed" and distributable only in accordance with native custom. | | | | | | Many native leaders have been consulted on this matter and various opinions are held. Some native chiefs consider that even the acquired property must be distributed in the same way as the inherited property. Others held that a man may dispose of his acquired property in any way he wishes. | | | | | | I have considered this matter carefully and while agreeing that the law of entail or native custom must apply to the inherited property,-I hold that a man may dispose of the acquired property in the way which seems best to him, providing that his wishes in this matter are clearly set down on paper or have been communicated to a representative gathering. | | | | | | I therefore hold that the wishes of the deceased in this case can be met-and his acquired property distributed in accordance with his last Will and Testament." |
Mr. Jerah was of the opinion that such disposition was not possible. I felt that Mr. Jerah was being extremely conservative in his attitude, and in giving his opinion was determined to preserve the old adat-adat lama-at all costs without any regard to progress among the Dayaks and present day position. Mr. Jerah had many years' Government service and has his own private house in Kuching; for some considerable time he has had no personal connection with longhouse life. Without I hope giving offence in any way I find it somewhat difficult to believe that Mr. Jerah still considers himself bound by the adat lama in respect of his own property as he so informed us.
Penghulu Sanggat was not in my opinion of very great assistance and changed his views at times.
No one has argued that a Dayak may not dispose of his own property, real or personal, during his lifetime. By this I mean property he has acquired himself during his lifetime and which is not restricted in any way. A Dayak, for example, who is the registered owner of a rubber garden with an unrestricted title can certainly dispose of it during his lifetime without any hindrance by adat and I see no reason whatsoever why he should not do so by will, even if he does leave it to someone who would not on intestacy inherit it by customary law.
What I consider to be the most difficult part of the whole question is where property is concerned which although it may casually be referred to as property "owned" by the testator is not in actual fact his to do what he likes with. It would appear that some of the property concerned in this case would probably fall within this class of property.
I shall consider first the question of pesaka land. The position is in the first place governed by section 41 of the Land Code. Subsection 1 (d) lays down one of the conditions attached to each land as follows:-
| | "Except as provided for in subsection 3 the parcel shall be indivisible and no transfer, charge or sublease for any term whatsoever shall be registered or valid." |
Subsection 3 reads as follows:-
| | "The Resident, if satisfied that it is to the benefit of the proprietor and his heirs, may order that the parcel shall cease to be subject to this section or may order the transfer or sublease of the whole or part of the parcel." |
It would appear therefore quite clear that during his lifetime the "holder" or "owner" of land under a pesaka title is very considerably restricted in his actions and what without leave of the Resident he cannot transfer the land. I would say then that the same restriction attaches to any attempt to dispose of the land by will. Unless he obtains prior leave from the Resident any disposition by will will be invalid unless the land is left to his heirs, that is to say, to the person or persons entitled by customary law. I do not however think that this can be said to support the general principle advanced in the second ground of appeal. The restriction is here imposed not by customary law but by the Land Code.
The next question to consider is that of temuda land. To put it as simply as possible these temuda rights are rights to farm over Crown Land and are a form of customary tenure; the holders are mere licensees of the Crown, but it has been my experience that this is difficult to explain to Dayaks in general and they regard it as land owned by them. Temuda rights are created by felling the old jungle and cultivating the land, and are created only for the use of the original worker, his heirs and descendants. They certainly cannot be transferred for value. If the "owner" leaves the district, the land reverts to the longhouse for communal use under the authority of the Tuai Rumah who can allocate the land to anyone in the house who he considers most needs the land. This of course only applies if there are no heirs remaining in the district. If such do remain then they take over the use of the land. If ever the "owner" returns to the district he can resume the use of the land. The "owner" leaving the district without any heirs to take over the land may arrange for someone else to have the prior right to farm that land by taking from him what is called "Tungkus Asi", which is some form of token to bind the agreement. It may not be anything of value, which would invalidate the transaction, but may consist of as much as a pig. The rights taken over by the person paying the Tungkus Asi are inheritable by the heirs of that person but revert to the original owner if he returns, or to his heirs if they return.
It appears to me that there is in effect a form of entail on temuda land and as long as there are heirs entitled to exercise the farming rights over that land a testator cannot by will, or indeed by any other form of disposition, transfer those rights to anyone else. This seems to me to be only right when one considers the communal nature of Dayak farming and the part played by the family unit of the bilek or door.
Finally, I come to the question of personal property other than property he himself has acquired during his lifetime which I have already stated I consider he can leave by will to whomsover he likes. I am considering what is called utai pesaka, that is to say, inherited ancestral property such as for example, old jars and tawaks (gong). Here again I would say that there is a form of entail and that the testator cannot leave such property to other than those heirs entitled to it by customary law or adat, although of course he can decide which individual heirloom goes to which heir. He is also entitled to leave a larger share of the utai pesaka to the particular heirs who looked after him in his old age, but he may not cut the other entirely out of this part of the estate.
It has been a long established custom among Dayaks that a person may set aside certain property as lanting to go to someone not necessarily an heir-who has looked after him in his old age and who will be responsible for his funeral. However this is only if the heirs agree; in this present case the heirs certainly do not agree.
I would allow this appeal to the extent that any disposition of pesaka land, temuda, and utai pesaka to the Respondent shall be set aside and such property shall revert to the Appellants. The matter shall be referred to the District Native Court at Saratok to decide which of the property left by the deceased falls within the categories I have mentioned. The Respondent is of course at liberty to claim against the estate for any funeral expenses incurred by him. Counsel in this appeal has not had an arduous task but the two Appellants have come from Saratok. I would assess the cost at $150.00.
SMITH, J.: I have had the advantage of reading the judgment of Lascelles, J:, with which I agree and have nothing to add.
WILLIAMS, C.J.: I have had the privilege of reading the judgment of my brother Lascelles and have little to add to it. I am in complete agreement with it. | | | 39 | Sat anak Akum & Anor. v. Randong anak Charareng | THE SUPREME COURT OF SARAWAK, NORTH BORNEO
AND BRUNEI _________ | SAT ANAK AKUM & ANOTHER | ... | ... | Applicants | versus | | | | | RANDONG ANAK CHARARENG | ... | ... | Respondent |
In the High Court at Saratok before Bodley, J.
Civil Case No. C/3/57.
Date of Judgment: 24th September, 1957.
Application for order to set aside a will made by a Second Division Sea-Dayak-Application adopted children of testator Respondent nephew of testator-Will executed in the form provided by the Mohammedan Wills Ordinance, Cap. 81-Testator not of Muslim faith but a pagan-Whether a pagan Sea-Dayak debarred by customary law of Dayak race from executing will-If not so debarred whether he can by his will distribute his estate in a manner contrary to that customary law-Application to Sarawak of common law of England doctrines of equity and statutes of general application but only so far as circumstances of Sarawak permit and subject to such qualifications as local circumstances and native custom render necessary under section 2 of the Application of Laws Ordinance, No. 27 of 1949.
Held:
| (1) A pagan Sea-Dayak in the Second Division is not forbidden by his customary law from executing a will; | | | | | (2) Following the decision of Hedges. CJ. in Chan Bee Neo and another v. Ee Siok Choo that the provisions of such a will were not invalid on the ground that they were contrary to Dayak customary law; | | | | | | (3) Following the decision of Lascelles, J.,-ln Re Tay Siok Hiong-that the will was not invalid merely because the form provided under the Mohammedan Wills Ordinance was used but that the formalities of the English law of wills must be complied with and that the present will did substantially so comply. | | | | | | Order in favour of the validity of the will. | | | | | | Cases referred to:- | | | | | | (1) Chan Bee Neo and another v. Ee Siok Choo (1947) S.C.R. p.1. | | | | | | (2) In Re Tay Siok Hiong (High Court Civil Case No. C/35/53). Parties in person. |
BODLEY, J.: In this case the two applicants seek an order that the will of their adoptive father, a Sea-Dayak, be revoked on the ground that the will is bad for the following reasons:--
| "1. That as there is no provision in the Laws of Sarawak governing the distribution of the estate of a Dayak testator, Dayak customs must therefore prevail. See the proviso to section 2 of the Application of Laws Ordinance, 1949; | | | | | | 2. That Akum anak Entui (deceased) had no right to distribute his estate other than in accordance with Dayak custom; | | | | | | 3. That although the will was executed in accordance with the provisions of the Mohammedan Wills Ordinance, Vol. 3, Chapter 81, Akum anak Entui (deceased) was not subject to the said Ordinance nor could he take advantage of the said Ordinance; and | | | | | | 4. That the will purported to devise and bequeath property other than in accordance with Dayak custom, the reason being that deceased was not a person of the Mohammedan race nor professed the Muslim faith." |
Now it is common ground that the two applicants are the adopted children of the deceased; that the Respondent is the nephew of the latter; that on the 28th March, 1955, the deceased executed a will in the form provided by the Mohammedan Wills Ordinance leaving some parts of his landed property and movable property to the two applicants and other parts to the Respondent; that according to the Sea-Dayak Customary Law relating to intestate succession the two applicants alone are entitled to inherit the deceased's estate save that part known as "Lanting"; that the will contains provisions which are contrary to Dayak Customary Law; and that the deceased was not a Mohammedan but a Pagan.
I thus am faced with the very difficult task of deciding the following two questions both of which are of very great importance to the Sea-Dayak in the Second Division:-
| | (1) Is a Pagan Sea-Dayak debarred by the customary law of his race from executing a will? | | | | | | (2) If he is not so debarred, can he by his will distribute his estate in a manner contrary to the customary law? |
At the outset I must say that I fully agree with the two applicants that there is no ordinance providing for the execution of Wills by Dayaks as there is in the case of another native race, namely, the Malays.
I also agree with the proposition that by virtue of the proviso to section 2 of the Application of Laws Ordinance, No. 27 of 1949, Dayak Customary Law is in force in Sarawak and if any authority is required for that proposition, I would refer to the case of Chan Bee Neo and another v. Ee Siok Choo(1) in which case Hedges, C.L dealt with the effect of the Law of Sarawak Ordinance, the provisions of which have been repealed and replaced by the Application of Laws Ordinance, No. 27 of 1949. In his judgment at page 3, Hedges, C.J. held as follows:-
| "The effect of the Law of Sarawak Ordinance is that the law of England, insofar as it is not modified by Sarawak Ordinances and insofar as it is applicable to Sarawak "having regard to native customs and local conditions" is the law of Sarawak. The Supreme Court has interpreted this Ordinance, if not expressly at all events by implication, as meaning that native law and custom will be respected and in a proper case must be applied. But 'native custom' means the custom of natives of Sarawak, and the natives of Sarawak must belong to one of the races considered indigenous to the Colony and enumerated in the Schedule to the interpretation Ordinance. The Chinese are not indigenous to this country and "Chinese Customary Law is not 'native custom'." The Law of Sarawak Ordinance uses the words 'native customs and local conditions', but I am not prepared to believe that it is the intention of the words 'and local conditions' to open the door wide for Chinese (or for that matter Hindu) customary law." |
Having held that Dayak Customary Law is in force, it now behoves me to decide the question whether that customary law debars or prohibits a Sea-Dayak from executing a will. The evidence before me on this question is very meagre, unsatisfactory and conflicting.
The Tuai Rumah who was called by the applicant No. 1 stated In answer to the Court as follows:-
| | "I cannot say whether a Dayak can legally make a will the provisions of which are not in accordance with Dayak custom." |
At a later stage this witness, on being re-called by the Court, contradicted himself by saying "as far as I know according to Dayak custom a Dayak cannot make a will". I cannot possibly believe that this witness was speaking the truth when he made this latter statement, for he was one of the witnesses to the deceased's will and apparently he witnessed the will without demur.
The Respondent on the other hand testified as follows:-"According to Dayak custom a man can make a will."
The assessor when asked for his opinion stated "Dayak custom does not recognise wills. In my opinion the will is invalid."
The assessor did not, however, have the advantage of hearing another witness who, with the consent of all parties, was called in their absence. This witness, an ex-Native Officer and one of the witnesses to the deceased's will, by his evidence revealed that there is in existence at the District Office, Saratok, a book containing Mohammedan Will forms, that the deceased's will had been extracted from that book and that other Dayaks who were not Mohammedans, had executed wills on forms taken from this book. This Court then sent for and with the permission of all parties admitted this book as an exhibit. A. perusal of the book reveals that in all ten persons have executed wills on forms that were taken from it, that of these five were executed by Dayaks, the first being dated 30th October, 1946, and the last viz. that of the deceased which was executed on the 28th March, 1955.
It is most unfortunate that there is no written and codified version of the Tusun Tunggu in force in the Second Division as there is in the Third, Fourth and Fifth Divisions. I have referred to the English version of the Tusun Tunggu in force in the Third Division in the hope that it might throw some light on the very difficult questions which I have to decide. It is, however, not very helpful and merely reads as follows:- | | "Wills are not known amongst Dayaks, but rules of descent or inheritance do regulate the transmission of (a) real property i.e., land or (b) personal property i.e., chattels from one generation to the next, both male and female. These principles are sometimes modified by the wishes of the original owner, who has some power of verbal testamentary disposition." |
It thus appears to me from the extract which I have just cited that there is nothing in the Tusun Tunggu applicable to the Third Division which specifically debars a Dayak in that Division from making a will. The Dayaks in the Second Division are obviously more enlightened than their brethren in the Third Division and are moving with the times as appears from the Will Book exhibited in this case. This book reveals that five Dayaks in the Second Division have made wills and that these have been witnessed by Administrative Officers. Surely if Dayak custom strictly forbade the making of wills, these Administrative Officers who know or should know more about native law and custom than any other Government Officers, would not have allowed the testators to execute wills. On the very meagre evidence before me I hold that a Pagan Sea-Dayak in the Second Division is not forbidden by this customary law from executing a will.
I come now to the much more difficult question as to whether a Pagan Sea-Dayak can make a will other than in accordance with Dayak Customary Law. Undoubtedly such a Dayak upon embracing the Islamic faith can do so as is obvious from the provisions of the Mohammedan Wills Ordinance. The question I now have to decide is very similar to that which Hedges, C.J. had to decide in the case, to which I have already referred, Chan Bee Neo and Another v. Ee Siok Choo,(1) namely, were the provisions of a will executed by a Chinese invalid on the ground that they were contrary to Chinese Law? In that case it was contended, as in the present one, that the testator had no power to depart materially from the scheme of distribution which would be applicable upon an intestacy. Hedges, C.J., in a carefully considered judgment, dealt at some length with the authority for the recognition of Chinese Customary Law in Sarawak and the extent to which it applied. In brief he held:--
| | (1) that native law and custom "will be respected and in a proper case must be applied" by virtue of the Law of Sarawak Ordinance; | | | | | | (2) that Chinese are not natives; | | | | | | (3) that the Courts "will only apply Chinese Customary Law-(a) where the custom in question is expressly regulated by a Sarawak Ordinance, or by rules made under an Ordinance or (b) where the custom is recognised, either expressly or by necessary implication, in a Sarawak Ordinance"; | | | | | (4) that Chinese Customary Law of intestate succession has long been recognised by the Courts by virtue of section 17 of the Administration of Estates Ordinance which provides inter alia that "the executor or administrator, as the case may be shall forthwith ---------------- distribute the residue of estate among the beneficiaries or heirs of the deceased, according to the will of the deceased or, as the case may be, according to the shares to which they are entitled by recognised law or custom"; | | | | | | (5) that the provisions of the will were not invalid on the ground that they were contrary to Chinese Customary Law of intestate succession. |
It thus seems to me that the present case is almost exactly on all fours with the case before Hedges, C.J., for in each case the will was that of a person whose customary law intestate succession is in force in this country and whose customary law does not debar the making of wills. The only difference I can see between the two cases is that Dayak Customary Law does not make express provision for wills whereas Chinese Customary Law would appear to do so. Vide Chinese Family Law issued by the Sarawak Government.
I accordingly propose to follow the decision of Hedges, C.J. but do so with the very greatest hesitation.
There now remains but one question to answer namely, whether the will is invalid by reason of the fact that it was executed by a non-Mohammedan in accordance with the Mohammedan Wills Ordinance. This is indeed a very simple question to answer for Lascelles, J. in In Re Tay Siok Hiong(2) held as follows:-
| | "The will itself appears on a printed form 'in accordance with an Order-in-Council of 16th November, 1896'. This Order-in-Council in fact only concerned the wills of Mohammedans and is now embodied in the Mohammedan Wills Ordinance. There is no reason why such a form cannot be used, suitably adapted, for the wills of others but as there is no such Ordinance as a Chinese Wills Ordinance, then the formalities of the English Law of Wills must be compiled with (In Re Estate of Ee Tiang Lok: (1947) S.C.R. 1). |
According to the Law of England "testamentary form is not necessary to constitute a valid will provided that the document is executed in accordance with the provisions of the English law" (Halsbury's Laws of England, 2nd Ed. Vol. 34, p.53).
As regards the will in the present case it appears on the face of it to comply with the provisions of the Wills Act save that it does not contain the usual attestation clause. It is, however, abundantly clear from the evidence that the testator and the witnesses each signed in the presence of the others. I am therefore bound to pronounce in favour of the validity of the will so far as the formalities of execution are concerned.
For the reasons set out hereinbefore I dismiss, but I must confess with a great deal of hesitation, the application with costs to the Respondent in the sum of $20.
In conclusion, I would suggest that in view of the fact that the questions which I have had to decide, are such moot ones and of such great importance to the Sea-Dayaks of the Second Division, the applicants should appeal to the Court of Appeal. Application for conditional leave to appeal must be filed within three months of the date of delivery of this judgment.
I direct that this judgment shall be delivered by a Magistrate of the First Class at Simanggang.
| | | 40 | Seruiji bin Zin v. Sanah binti Haji Amin | THE SUPREME COURT OF
SARAWAK, NORTH BORNEO AND BRUNEI
SERUJIE BIN ZIN
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In the High Court at Dalat before Blagden, Ag. J.:
Civil Case No. 2/53.
Date of Judgment: 9th April, 1953.
Native Customary Law-Melanau Islam custom regarding descent of pencharian property.
Zin, a Melanau Islam, was married three times. By his first marriage, which was dissolved, he had 1st Plaintiff as son, and by his second marriage, which was also dissolved, he had 2nd Plaintiff as son. His third marriage was to Defendant by whom he had Mutil as son. When Zin died intestate, Defendant and the three sons survived him, Mutil being seven years old. Letters of Administration were granted to Defendant to Zin's estate which included a half share in a sago garden. This garden had been acquired by Zin and his second wife as their pencharian property and on their divorce they acquired one half each.
Defendant disposed of Zins half share in the sago garden by selling one half to meet funeral expenses, etc., and transferring the other half to meet her infant son, Mutil.
On a claim by Plaintiffs for a share in the sago garden or its proceeds,
| | Held: | | | | | | Under Melanau Islam custom Zin’s pencharian half share in the sago garden falls to. be divided equally amongst Zin's heirs-that is. first and second Plaintiffs and Mutil-subject to payment of funeral expenses. | | | | | NOTE: | | | | | | Pencharian = obtained by inheritance, inherited, as opposed to purchase or constructed. |
Serujie bin Zin for both Plaintiffs.
Defendant in person.
BLAGDEN, Ag. J.: This case concerns the inheritance to a half share of a 12-acre garden-Oya Dalat Land District Block 122 Lot 94. This garden was acquired by Zin bin Haji Tarnbi and his second wife Minah binti Karim as their pencharian property. Zin bin Haji Tambi and Minah binti Karim subsequently divorced and the Personal Index Records (Exhibits" "B") showed Zin bin Haji Tambi as registered proprietor of 1/2 this garden and Minah binti Karim as registered proprietor of the other 1/2.
This case is concerned solely with Zin bin Haji Tambi's half share. Zin bin Haji Tambi died in February, 1945, and this half share became part of his estate.
Zin bin Haji Tambi had married 3 times: first, to Kisah binti Alek by whom he had Seruji bin Zin, a son, who is Plaintiff in this action; then to Minah binti Karim by whom he had Hanipah bin Zin, a son, who is in effect a co-Plaintiff in this action since Seruji bin Zin is acting for him as well as himself; finally, to Sanah binti Haji Amin by whom he had Mutil bin Zin, a son, who is now aged about 7.
The first two marriages were dissolved. Sanah binti Haji Amin, Zin's widow was granted Letters of Administration to Zin's estate and is now sued as Defendant in this action.
Plaintiff complains of 2 acts of Defendant's administration. First, he says she disposed of 1/2 share of the garden to Goh Teok Yam to settle funeral expenses and debts. In my view she was justified in doing this but she must be prepared to account to the heirs for any balance of monies left over. In this case Defendant received $150 and the funeral expenses came to $84. There is therefore a balance of $66.
Secondly, Plaintiff complains that Defendant transferred the remaining 1/4 share of the garden to Mutil bin Zin.
Under Melanau Islam Law this pencharian 1/2 share in the l2-acre garden belonging to Zin's estate falls to be divided among Zin's heirs after allowance has been made to pay funeral expenses.
In this case Zin's heirs, all male, are Plaintiff, Hanipah and Mutil.
The funeral expenses have been paid and what remains over must be divided equally between them.
I give judgment for Plaintiff in the following form:
| (1) For $44.00 being Plaintiff and Hanipahs shares of the balance of monies in Defendant's hands after paying funeral expenses out of the sale of 1/4 share in the 12-acre garden to Goh Teok Yam. | | | | | (2) For rectification of the Land Register by the deletion therefrom of the name of Mutil bin Zin as proprietor of a 1/4 undivided share and the substitution therefor of the names of Plaintiff, Hanipah bin Zin and Mutil bin Zin as co-proprietors each of 1/12 undivided share in the 11-91 acre Sago Garden comprised in Oya Dalat Land District Block No. 122 Lot 94. |
| | The proprietors of Block No. 122 Lot 94 thus become: | | | Minah binti Karim ... | … | 1/2 undivided share; | | | Goh Teok Yam | … | … | 1/4 undivided share; | | | Seruji bin Zin | … | … | 1/12 undivided share; | | | Hanipah bin Zin | … | … | 1/12 undivided share; | | | Mutil bin Zin | … | … | 1/12 undivided share. |
I also order that a caveat be placed on this property in respect of MutiI's 1I12 undivided share.
Defendant will pay Plaintiff $15.00 costs of action. | |
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