The application of hibah to immovable property in West Malaysia

Abstract

The research is undertaken based on the premise that the lack of understanding of the Shari'ah and the law on hibah, the transfer of property and trust has led to both Shari'ah and legal non-compliance of hibah of immovable properties with regard to its related documentation and practices in West Malaysia. The methodology of this research involved two methods, namely library research and interviews. As for the library research, the researcher has attempted to examine and analyse the primary and secondary literature containing the scattered materials in respect of the Islamic law of hibah in al-Qur'an, al-Sunnah and the works of Muslim jurists, classical and contemporary alike, articles, statutes and case law. The researcher has also conducted interviews with Amanah Raya Berhad, the Small Estate Distribution Section, the Syariah High Court, and the Civil High Court and analysed any available legal documentation such as deeds of hibah and deeds of trust. The research findings are as follows: First, the basic and simple form of hibah is not sufficient to achieve the objective of postponing the donee from fully exercising his right of ownership on the object of hibah by circumventing the requirement of the National Land Code 1965. The donee may give effect to the operation of Islamic law via sections 417 and 421A of the National Land Code 1965; Second, the trust arrangement without hibah could be used to pass the property from the donor (the settlor) to the donee (the beneficiary) through the trustee under the general principles of Islamic law. The conventional trust may be harmonised with Islamic law as long as the non- Islamic elements in it are removed; Third, future jurisdictional conflict might arise in the case of the hibah-trust hybrid. In order to avoid any conflict, there must be a specific legislation which governs the contract of hibah and guarantees its legal effect before any Malaysian court.