Joint Tenancy is referring a method of possession that is all co-owners take an equivalent rights towards the asset, and after the demise one of them, the survivor will own the property solely. It is an adaption from common law perspective that has been applied in the Penang land law. However, the method of succession has brought discussion especially among Muslim in Penang and generally in Malaysia. It was not just against the law of Islamic inheritance but also similar to a concept of conditional gift (
Keywords: Joint tenancygifthibahconditionalfatwaland
This article is purported to discuss on joint tenancy and its application towards Muslim in Malaysia. As for Muslim, their personal law is applied on some of their deeds in matters relating to religious teachings. Thus, this study will discuss on position of joint tenancy in the country, particularly from the perspective of common law as well as Islamic law.
Principle of Joint Tenancy
Joint Tenancy is a term that refer to a kind of possession in the common law in which the entire sharers of the asset own an equivalent rights, no one will be considered own a major portion and the others is less. A consent from all co-owners is needed in any transactions towards the property. Thus, it is not a separable ownership but carries joint possession around co-owners, who to act on mutual decision (Rahman, 2012). Therefore, if any of joint tenants died, the left portion of the deceased will obligatorily be conceded to the residual sharers (Rasban, 2010). Based on the principle, joint tenancy is not a normal ownership and hence cannot be divided through inheritance process (Noordin et. al., 2016).
Joint Tenancy under Islamic Law
Generally in Islam, a person's ownership over sharing or partnership is based on particular portion. The type of joint ownership is known as
However based on joint tenancy principle in the common law, it seems that the concept is equal to
When discussing on conditional gift, Islamic jurist have different views on its legality. They have discussed about conditional gift under the topic of
Islamic jurist have different views on the legality of conditional gift, which derives from conflicting sources on hadith regarding
The gift (hibah) as well as the condition is valid
Abu Yusof and other jurist from Hanbali have opined that, such arrangement of
Only hibah is authorized but the condition is null and void
Abu Hanifah, Muhammad, Shafi'i (new opinion), Nawawi (1914) and some of Hanbali as well as Ibn Hazm on the view that the gift and ownership is lawful, however the condition is illegal. The condition either in term of
Both hibah and the condition is unauthorized
Under this view, only a small number of jurist such as Maliki and old opinion of Syafi'i have opinned that
To summarize these ranges of opinions, we can conclude that even though there is a conditional gift, majority of scholars have opined that the gift is still valid, authorized and enforceable. Only the condition is void as it is contradict to the concept of voluntary, generous and certainty. Conversely, there is an exemption in the form of gift from parent to children, where the shariah has underlined that it is revocable. Similarly if it is done by mutual agreement between parties, revocable was also allowed (Nor Muhamad, 2011).
There are three research questions in the study:
What is the position of joint-tenancy in the current law of Malaysia?
What is the stand of Islamic law in the application of conditional gift?
How the acceptance of current law towards Muslim's practise of joint-tenancy?
The answers to this research question will be able to solve the above research problem
Purpose of the Study
Aim of the study is underlined as below:
to investigate the position of joint-tenancy in the current law of Malaysia
to examine the stand of Islamic law in the application of conditional gift
to analyse the acceptance of current law towards Muslim's practise of joint-tenancy.
Method of the research is a qualitative study. The data has been collected from books, statutes, by-laws, fatwas (religious decisions) as well as court cases. Data from books were collected from traditional Islam scholars as well as contemporary in order to get a majority stand on the issue. Meanwhile statutes, by-laws, fatwas and court cases that were referred involved either common law or Islamic law pertaining to gift, particularly that related to transferring of property.
All of the data will be analysed through content analysis in order to examine a precise stand on the transaction, as well as to examine the right perspective in allowing or disallowing the dealings. The analysis is done by separating views among scholars in a replicable forms as well as by making valid inferences by interpreting textual material from them. As a result, the study can quantify and analyze the meanings and relationships of such concepts, legal provisions and fatwas to current application. This will produce a fair, accurate and comprehensive conclusion on the issue being discussed.
Based on the above discussions by using the specific approach as well as methodology, below are my findings throughout the study;
Shariah Court and Fatwa Acknowledged the Conditional Gift
In Malaysia, issues pertaining to the validity of
Therefore, in recent practice, the Shariah Court have acknowledged and allowed conditional gifts, especially when a condition is inserted after the contract (
Similarly, in the case of
Five years later, Islamic Religious Council of Singapore (2008) have also issued fatwa pertaining to joint tenants (
The co-owner only received half of the share, or only inward his actual share in the property, after the demised of other co-sharer, if there was no earlier agreement have been made among them. The left assets will be inherited by heirs' of the deceased.
But, if there was an agreement between the co-sharers, either under a mode of ruqba (conditional gift) or in a form of nazhar (vow) which clearly indicates that the assets is to be given totally to the existing co-sharer, after the demised of one of them, subsequently the survivor will own the property.
Thus, an acknowledgement of conditional gift (
Common Law Authorized Conditional Gift and Joint Tenancy
Under ecclesiastical jurisdiction during the colonial era, the application of Islamic law was recognized among Muslims in Malaya. The position was obvious from the case of
Under the same Act (A56), the law had acknowledged joint tenancy in the Section 343 to 345. Section 344 (1) had underlined that where any property or division or interest in such a property was relocated in favour of a trustee by a trust deed or a court order, the transfer must be recorded in the title deed on such agreement. While Section 344 (2) had provided the jurisdiction of the Registrar in making modifications or additions to the existing title deed. Section 345 (1) then specified more that, any share or interest that was registered in the names of two or more individuals as ‘trustees’, the asset should be hold by them in a joint manner; and consequently, on the death of any one of them, share or interest shall transferred absolutely to the survivor. (Mustar & Nor Muhamad, 2013).
In Penang and Malacca also, joint tenancy contract was also acknowledged by the law of 1963 (A518), that the whole estate will be owned by a left co-sharer who survived. The law had acknowledged the intent under the joint tenancy contract, which giving the left undivided portion to the co-sharers (A518, 1963). The rights of survivorship were recognized by the statute as underlined in Section 47(1)(c) that the right of survivorship was embedded together among two or more individuals of the shared occupants who their names were registered in the provisional record (Ali & Adnan, 2016).
Notwithstanding the above provisions, especially on the joint tenancy, an application of the joint tenancy was not strictly apply for Muslim, but subject to the acceptance of the Islamic law. Zakaria Sam J in the
This study is part of my research that was sponsored by Malaysian Higher Education Ministry, through FRGS Scheme, Phase 1/2017.
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23 September 2019
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Sociolinguistics, linguistics, literary theory, political science, political theory
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Taha, M. M., Mohamad, A., & Sulong*, J. (2019). Joint Tenancy In The Islamic Law And Its Application In Malaysia. In N. S. Mat Akhir, J. Sulong, M. A. Wan Harun, S. Muhammad, A. L. Wei Lin, N. F. Low Abdullah, & M. Pourya Asl (Eds.), Role(s) and Relevance of Humanities for Sustainable Development, vol 68. European Proceedings of Social and Behavioural Sciences (pp. 378-385). Future Academy. https://doi.org/10.15405/epsbs.2019.09.42