TO
MAK, G, ABANG, KAKAK DAN INA.
pOOOOIGGi?
PROJEK PAPER ON
INHERITANCE IN SHARIAH LAW AND ADAT PERPATIH A COMPARATIVE STUDY
BY
NOOR JIHAN BT. NOOR YADAH
MARA INSTITUTE OF TECHNOLOGY SHAH ALAM
SELANGOR
MAY 87'
CONTENTS
Table of cases cited „ Table of statutes . o •
CHAPTER I
INTRODUCTION I SYARIAH LAW
Definition of Svariah Sources o o •
II ADAT PERPATIH
Sources o o e 9 c e « o o « o o « « « o i r a » « o 9 » * » * o
CHAPTER II
CONCEPTS OF PROPERTY I SYARIAH LAW
Movable property Immovable property , General inheritance
II ADAT PERPATIH
Ancestral property o o
CHAPTER III
RULES OF INHERITANCE I SYARIAH LAW
Definition ... 22 Voluntary ... ....„„.. ° 22
Involuntary „ „ „.,.. . . „. „ . ... „.. „ 23 Constituent of Inheritance:-
The deceased .. . 23 Heir . ... 24
Condition for Inheritance . „ 26 Cause of Inheritance:-
Lineage of consanguity . „ 27 By marriage or affirnity „ 27 Rights in relation to estate:-
Expenses for funeral rites and ceremonies
of the deceased 28 Funeral Rites and Ceremonies:-
The obligations in respect of the
deceased himself 29 Argument based on Sunnah „ 29
Argument based on Qiyas „ 30 Rights of others against the deceased 30
Impediments to Inheritance:-
Homicide 33 Difference of religion 34
Simultaneous death of ancestor and heir 36
TABLE OF STATUTES ^ u K )^ U
^y Page
CIVIL PROCEDURE PAKISTAN 1928 30 s„60
FEDERAL CONSTITUTION OF MALAYSIA 82 ARTICLE 5(1)(2)
SMALL ESTATES (DISTRIBUTION) ENACTMENT 1955 80 s.20-25
(v)
I ADAT PERPATIH
Rights in Relation to the Estate:-
Expanses for funeral rites and ceremonies of the deceased ..
CHAPTER IV
SHARES OF HEIRS
I SYARIAH LAW
Islamic Principles Division of Shares:-
Spouses 40 Parents 43 Daughter . „ 50 Son' s daughter 53 Full Sister's Inheritance 56
Inheritance by consanguine sister 60 Akhyafi Inheritance of uterine 62 brother and sister
Inheritance by grandfather 64 Inheritance by grandmother 69 Inheritance by Asabah 70 Inheritance by Dhawi al-Arham 73
II ADAT PERPATIH
Adat Perpatih Principle:-
Dividion of shares 76 Ancestral property 78 Acquired property , 78
CHAPTER V
CONCLUSIONS
o c o o o o o o o o * o * o o o o o o « « o o o » » c
Glossary Bibliography
83
PREFACE
While law is only one aspect of culture, it is the most formal and it lies at the very heart of Islam. The intention of this project paper is to outline the main characteristics of Islamic law and adat with special reference to inheritance.
No doubt Islam is the religion in Malaysia but it has been varied by the adoption of custom (adat) either Adat Perpatih or Temenggung wliich as the result is a mixture of Malay custom and Mohamedan law. Mush of this paper is concerned with a legislative history of adat and with the inconsistencies which existed between various act of the legislature.
In Islam the law of inheritance derived solely from its primary source unlike the adat which derived from their matrilineally structured. Eventhough apply to same persons- the Malay peasant with same religion (Islam) but due to adat- inheritance is dissimiliar in between states in Malaysia.
My greatest debt is of course to my supervisor, Encik Zaid Mohamad whose patience and kindness I can never properly repay and without him this paper was made possible.
Diploma In Law Noor Jinan bt. Noor Yadah MARA INSTITUTE OF TECHNOLOGY
SHAH ALAM MAY 1987
(iii)
TABLE OF CASES CITED
Page B
Bedah v. Hemah 7 JMBRAS (1929) Part I, 173 19 Bidah v. Piah 7 JMBRAS (1929) Part I, 233 20 Bulat of 1927 7 JMBRAS (1929) Part I, 187 20
D
Dato Ngiang Kulop Kidal Re deceased 17
H
Hassan Ali bin Nazo (1889) II All. 456, 458 14 Haji Pais Re
I_
Inah y, Encik 7 JMBRAS (1929) Party 176 21
S
Samat v. Supar 7 JMBRAS (1929) Part I, 178 20 Seman v, Lehar 7 JMBRAS (1929) Part I, 120 19 Si Alus v. Inah 7 JMBRAS (1929) Part I, 177 20 Siah v, Sipit 7 JMBRAS (1929) Part I, 172 19
I
Timah v. Taib 7 JMBRAS (1929) Part I, 233 19
(iv)
TABLE OF STATUTES
Page
CIVIL. PROCEDURE PAKISTAN 1928 .. , 30
S06O
FEDERAL CONSTITUTION OF MALAYSIA 82 ARTICLE 5(1)(2)
SMALL ESTATES (DISTRIBUTION) ENACTMENT 1955 ... 80 s.20-25
(v)
CHAPTER I INTRODUCTION
SOURCES OF SHARIAH LAW
DEFINATION OF SHARIAH LAW
Shariah as a technical term means the Canon Law of Islam, and totally of Allah's (s.w.t) commandments. Each of such command- ments is called hukum„ The law of Allah (s.w.t) and its inner meaning is not easy to grasp, and shariah embraced all human action0 For this reason it is not "Law" in the modern sense, it contains and infalliable guide to ethics. It is fundamen- tally a Doctrine of Duties, a code of obligation. Legal considerations and individual rights have a secondary place in it, above all, the tendency towards a religions evaluation of all the affairs of life is supreme,
SOURCES
According to Islam, the ultimate source of authority is God alone. In the ideal of Islamic Law, everyone except God, including the Prophet and ruling authorities, is subordinate to Divine Law, which emanates from Divine Revelation. Islamic
law, irrespective of the variety of its sources , emanates
1
from God and aims at discovering and formulating this will..
God's will is not once and for all defined as a static system, rather it comprehands all spheres of man's life and is progres- sively unfolded. As Islam gives guidance in all walks of life fiqh5 the law of Islam as developed from the very beginning,
comprehends, with special care, religio-moral, social economic and political aspects of human life. Therefore, Islamic law is a manifestation of God's will.
Islam law based on three foundations, (usul), these are, the V Quran, Sunnah and Ijtihad.
The primary source of Islamic legislation is the Quran. Several Quranic verses expressly indicate that it is the basis and main source of law in Islam". It should Denoted that Quran is
neither a legal code in the modern sense nor it is a compendium of ethics. Broadly speaking it should be borne in mind that the .legislation does not :.onsfeitute a legal code of itself.
The primary purpose of the Quran is to lay down a way of life which, regulates the relationship of man with man and his
relationship with God. The Quran gives directions for a man's social life as well as for his communion with his Creator, inter alia, the law of inheritance.
Regarding inheritance perse, according to Prof. Schacht in his works,"Tie Origin of Muhammadan Jurisprudence",
"a member of legal rules, particularly in family law and law of inheritance, not to mention cult and ritual, were base on the Quran from the beginning".
2
During the caliphate of Abu Bakar, a grandmother approached him asking her share from the heritage of her deceased grand son. Abu Bakar reportedly replies;
"Neither in the Book of Allah is there anything for you to do I know of any- thing in the Sunnah of the Prophet" 3
Abu Bakar's reference in the first instance to the Quran clearly shows that this was the practise from the earliest days of Islam.
The injunctions in the Quran which deal with law are few in number :-
70 injunction - Family Law 70 injunction - Civil Law 30 injunction - Penal Law
13 injunction - Jurisdiction and Procedure 10 injunction - Economic and Financial order.
Such an enumeration however can only be approximate. Tne legal bearing of some injunctions is disputable, whereas of others it simultaneously applies to more than one sphere of law. The major portion of the Quran is a code of Divine exhortation and moral principles.
4
Sunnah is another source of Islamic Law.
This essence means the ideal followed or joined by the Prophet.
It includes what the Prophet said, did or agree to. In the life- time of the Prophet it was evidenced by the living example of the Prophet and after his death it was evidenced by the Prophet
3
where the companion strove to modes their lives on the life of the Prophet.
The Sunnah provides a concreate implementation of the Divine guidance. The tangible form of the sunnah cannot therefore be neglected when we try to understand the spirit of Islam. With the Quran as it's ultimate basis, every act prescribed by the sunnah is definate, invariable from permented with the spirit or general abstract ideo or high moral considerations of the Quran.
The authority at the traditions of the Prophet is based on so many Quranic verses, inter alia,
"He who obeys the Prophet obeys God Nor does he say anything of his desire It is no less than revealation sent down to him. So take what the Prophet assigns to you and deny yourselves that which he withholds from you".
Six great collections of tradition are regarded as authoritative by the Sunni School of Muslim Law :-
(1) Jami as - Sahih al-Bukhari by Muhammad bin Ismail al-Bukhari (d.256 A.H).
(2) Jami' as-Sahih al-Muslim by Muslim Ibn al-Hajjaj (d.261 A.H).
(3) Jami' al-Tirmidhi by Abu Isa Muhammad al-Tirmidhi (d.279 A.H)
(4). Sunan Abu Daud by Abu Daud al-Sijistani (d.275 A.H)
4
(5) Sunan Nasa'i by Abu - ar-Rahman an-Nasa'i (d.303 A.H)
(6) Sunan Ibn Maiah by Abu Abdullah Muhammad ibn Majah (d.273 A.H)
Another sources of Muslim Law is Ijtihad which includes ( 1 )
(2) (3)
(4) (5) (6)
Ijma' Qias
Istihsan Istishad Istislab Custom
Above all ijma and qias are the two main 'cource'. Ijma (Consensus ad-litem° is regarded by the majority of muslirn jurists as to the third source of muslirn law . It may be defined as the agreement of the muslims jurist consults in any particular age an a judicial rule. The basis for the validity of ijma' may be found in the injunction of the Quran;
"And whoever acts hostilely to the Prophet after guidance has become manifest and allows other than the way of the believers. We shall turn him to that which he himself has turned and maked him enter hell; and it is an evil resort".8
Reliance by such sources has been placed in many traditions, inter alia
"My people shall never be unanimously in error".
The law in this sources in to be what God intended and it can be considered as a revenlation from God.
5
Qiyas is another important source from ijtihad. The bulk of the Muslim has been built up by the individual deduction of jurist as distinguished from their collective resolutions. But a 9 jurist deiucing a rule of law by using the process of anology;
properly speaking only expounds the law and does not establish it. It is therefore merely an application or extension of the law established by a binding authority to a particular case and not a new rule of lav;. Therefore qiyas can be defined as "the accord of a known thing by a reason of the equality of the one with the other in respect of the effective cause illah of it's' law.
6
ADAT PERPATIH
SOURCES OF ADAT PERPATIH
The Malay community may be classified into two difference groups, one following Adat Temenggong and the other Adat Perpatih. Adat Perpatih is adhered to by the Malays inhabiting Negeri Sembilan and certain parts of Malacca especially Maning. Though both the adat originated from tribal organisations in the past, it is in Adat Perpatih that the remnants of tribal structure are clear- ly evident at present.
Wilkinson wrote in 1908
"the difference between the Adat Perpatih and Temenggong is visible in those days of British Administration. Whenever a miscarriage of justice occurs in Perak, pahang and Selangor, the malays take it calmly bud in Negeri
Sembilan the whole population is excited by any non-recognition of the local adat" 10
The adat was brought by the Malays from Sumatra where the /\.
Minangkabau tribal organisations was matriachal. The Adat Perpatih in Minangkabau exogarous matriarchy was developed
into an elaborate system of unwritten law. The Malays of Negeri Sembilan came from these regions, their brought their tribal organisation with them and in some districts in Rembau Kuala Pilah and Tampin for eg. they have preserved it intact upto the present day.
In Negeri Sembilan it was recognised from the earliest days that the law in practise is Adat Perpatih where the fundamental
7
principle of this tribal - the social unit is not the family but the tribe and therefore all rule affecting persons tend to 12 maintain the integrity of the tribe; and all rules affecting property are designed to conserve the property in and for the tribe. 'The tribe is the unit and it is matrilineal and
exogamous. The main object of the adat is to provide for
the continuance of the tribe through the female members. Tribal descent goes through woman - a man is a member of his mother's tribe until by marriage he is received into his wife's.
Adat infact, meant more than mere law, this can be explained by the proverb.
"Lengthway, you get through Crossuisej, you get broken 13
The constitutions of the various States of Negeri Sembilan were differed so much from one another as to bear out the theory
that they were the results of convention (muafakat) between J V the different village communities. Trie titular head of the
country, the Yamtuan besar, was a hereditory rules who succeeded to his title according to descent in the direct male line. The Dato' of Naning (the oldest state) was also a hereditary ruler
but he inherited and begreathed his title according to the matriachal system of descent through women. The Dato' of Johol was chosen by the chief of the aboriginal tribes. The Dato of Rembau was elected in the most eloborate way from a certain limited clan of possible heirs. This clan was divided into two branches, each of which took.it in turn to provide the Dato'.
In theory the eight sub-divisions - the waris villages - ought
3
also to have taken in turn the provision of a chief but in practise, the stronger were apt to override the weaker.
In view of the Federal Constitution in Malaysia Article 3
of it provides that Islam shall be the religion of the Federation and that in every state having a Ruler, the Ruler shall be the head of the Muslim Religion and the State Constitution shall acknowledge and declare this. However at state level, the
position of Islam is more certained. In Chapter 2 of the Negeri Sernbilan State Constitution Stated, first, Islam shall be the religion of the state, second, a Council of Muslim Religion shall bet set-up to aid and advise the Yamtuan and the Ruling Chief in ail matters relating to the religion of the state.
Finally, in exercising the functions and powers of head of the Muslim religion in the state, 'the Ruler shall obtain the concurrence of the Undangs.
Adat Perpatih recognises two forms of property, pesaka 16
and charian . Hie most important form of pesaka is, of course 17 land, and its inheritance is restricted to female descendants of the holder; though the teaching of Islam has emphasically place the male in superior position. Since 1909, the Custommary Tenure Enactment (c.215) has laid it down that tanah pesaka can only be transferred to a member of one of the "twelve tribes"
of Negeri Sernbilan. Further, sale outside the holder's clan and in some luak. ? lineage, is permitted only when clan and lineage mambers have given an option to purchase. For in- heritance it can be explained through the proverb;
9
Our heritage comes from our women,
Men wear the insignias of hereditary office, The inheritance belong to women,
The man cherishes it.
Although the Malays are generally strict muslims, they have never adopted the whole of the muslim law and the muslim law which is applied in Malaysia is muslim law varied by malay custom;
The Ruler rules the state;
The Undang rules the luak The Lembaga rules the tribe The elder rules his followers.
10
f-lnft rvo-i&iX f>rr C-"
Al-Qiiran, Sunnah and I j t i h a d . Al-Quran, 5:47, 48, 49, 50.
Malik bo Anas al-Muwatta, ed. Muhammad Fuad Abd Al-Baqi.
2 vols, Cairo 1951.
For a valuable assessment of the significance of the
sunnah see the articles of Dr„ S.M0 Yusuf on 'The Sunnah in Islamic Culture Hyderabad', October 1963 and January 1964.
Al-Quran, 4:80, 33:3, 59:7=
Agreement as to the same thing.
Ahmad Ibrahin, 1965. 'Islamic Law in Malaya' Singapore "^
Malaysian Sociological Research Institute.
Al-Quran, 4:15.
Ahmad Ibrahim, 1965. 'Islamic Law in Malaya'. - ^ ' u V Wilkinson, R.J. 1908, Malay Law in R.J. Wilkinson (ed), Papers on Malay Subjects. Kuala Lumpur, Government Printer.
A favourite theme of the historical jurists writing on malay adat was that at one time there was a common adat
applicable to all malays. However because of Hindu influence parts become corrupted and these entitled Adat Temenggong, are thus merely a decayed version of Adat Perpatiho The problem with the theory is that it ignores the existence of to dissimiliar kinship systems in
Malaysia. Proponents of this view would have to show that formerly matrileneal societies becomes bilateral.
Hooker, (ed) (1970), 'Reading in Malay Adat Laws, Singapore Singapore University Press.
13, Membujur lalu Melintang patah,
14, Article VI (1) of the Federal State Constitution.
15, Article VI (2) of the Federal State Constitution.
16, Adat district, 17, Acquired,
18, Inheritance under any system of law.
CHAPTER II CONCEPT OF PROPERTY
SYARIAH LAW
Under the Syariah methodology; a property is divided into movables (manqulat) and immovables (qhayr manqulat)
Movable property : Can be transferred from a place to another and may be that which can be measured such as rice, that which is weighed as silver, that which is measured by a linear measure as cloth, one that may be counted as animals and articles of furniture and miscellaneous things.
Immovables property : Is one which cannot be so tansferred, such as land.
The rules governing transactions and the dispositions and rights derived thereform are concerned primarily with property and wealth. It is therefore necessary to define and classify property.
11
