Kiah binte Hanapiah v Som binte Hanapiah [1953] 1 MLJ 82

Kiah binte Hanapiah v Som binte Hanapiah is a saga between siblings over the inheritance of their grandfather’s house.

Unlike many traditional Malay houses, the design of the house in question was entirely built on stilts. This, traditionally, allows the house to be transported from one place to another. Contrast this to the traditional houses which had tiles steps and the kitchen fixed to the land itself.

So, is this house a fixture or a chattel? The Court of Appeal of the Federation of Malaya did not refer to the decision in Holland v Hodgson in Kiah binte Hanapiah v Som binti Hanapiah. You can read more about that case here (link).

Parties to Kiah binte Hanapiah v Som binte Hanapiah were:

  • Appellant | Defendant: Kiah binte Hanapiah
  • Respondent | Plaintiff: Som binte Hanapiah

Judges on the Bench were:

On 16 March 1953, the Court of Appeal delivered its judgement.

Facts of Kiah binte Hanapiah v Som binte Hanapiah

The late Haji Hassan bin Musa erected a traditional Malay wooden house on stilts. After it was completed, he gave it to Som binte Hanapiah, his granddaughter, in the presence of a witness – a Raja Awang bin Musa. Kiah binte Hanapiah took possession of the house, which was on her land when Haji Hassan passed away.

The trial judge ruled in favour of the plaintiff. Kiah appealed the decision based on two grounds:

  1. The house is attached to the land, thus it belongs to Kiah as the landowner;
  2. The gift was incomplete because it required Haji Hassan’s death to take effect.

Court of Appeal’s Decision

In a 2-1 decision, the Court of Appeal dismissed the appeal.

Court of Appeal’s Judgement

I. Mathew, CJ: Dismissing the Appeal

a. Annexation to the Land

Traditional Malay houses built to rest on stilts are moveable property. Unlike houses built directly on the land, being movable “have always been so regarded”.

b. Grandfather’s gift to his Granddaughter

Two witnesses presented their testimonies to the court:

  1. Raja Awang bin Musa: Present when Haji Hassan presented the house to Som. He testified that the deceased told his granddaughter she could remove the house after his death;
  2. Din bin Mat: Haji Hassan told him that the house was for Som but he will live there while he was alive.

The Chief Justice reasoned that – based on Islamic law – the gift was complete when it was presented in the presence of witnesses. Based on the evidence of Raja Awang bin Musa, Hajo Hassan disposed of all his property to his granchildren while he was alive.

“It is an essential condition for the validity of a gift properly so-called that offer and acceptance be made in explicit terms; but in the case of a present neither offer nor acceptance are strictly necessary; it is enough if the object is brought by the donor and taken possession of by the donee. By saying to some one ‘I want you to live in this house of mine and it shall pass to your heirs after your death’, one makes a gift, as also by merely saying ‘I want you to inhabit it’, at least according to the doctrine adopted by Shafii in his second period, or by saying, ‘After your death it will return to me’. Shafii in his first period expressed an opinion different from that adopted in his second as to the validity of a gift made in the following terms, ‘I grant you a life interest in this house, or ‘I make you a gift of it for life’; that is, if you pre-decease me it will return to me, but otherwise it will be yours irrevocably. Nowadays, however, in our school, both of the Imam’s opinions have equal currency.”

Nawawi‘s Mohammedan Law

The Chief Justice noted that Kiah abandoned her defence at the trial. Initially she claimed that the gift was void under Islamic law. Later, she contended that the house was built by her husband.

II. Sir Charles Murray-Aynsley, CJ (S): Allowing the Appeal

a) Whether the House was a Fixture

Traditional Malay houses resting entirely on stilts are regarded as separate from the soil. The Chief Justice of Singapore notes that there were no case law on the matter; yet he noticed the acceptance of this custom in his 15-year experience in Malaya.

b) Whether the Gift was Incomplete

The learned judge approached the matter from the standpoint of English law, believing that both Islamic law and English law on gifts were the same. Without any transmutation of possession there is not a complete gift under English law.

III. Spenser Wilkinson, J: Dismissing the Appeal

a) Whether the gift was complete

The learned judge regarded the pronouncement was a device to demonstrate constructive delivery of posession. Considering the construction of some traditional houses at the time, the judge assumed that there was no key to formally pass on. Hence, the formal pronouncement made more sense.

Haji Hassan allowing his granddaugther to remove the house after his death supports the contention that the house is hers. Until then, Haji Hassan continues to live in the house he built.

The judge agreed with the trial judge’s decision to accept Som’s statement as evidence.

Author: Aldric

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