Malaysia, there is no hibah law instituted which implies that the State
Legislature and Parliament (for the Federal Territories) has never affirmed the
exceptional statute of hibah for Muslims to be actualized in the Syariah courts.
All that is accessible only comprises of the provisions which clarify about the
Syariah Courts purview as incorporated into the Item 1, List II of the Ninth Schedule of the Federal Constitution which
demonstrates that hibah is a piece of the state matters which are set under the
Islamic organization of each state thus it specifically falls under the Syari?a
Court jurisdiction. However, it seems like the issue of conflict of
jurisdictions was seen in several cases such as, in Jumaaton & Anor v Raja Hizaruddin[1],
the Syariah Court ruled that it had no jurisdiction in hibah case which
involved with the problem of a probate and administration issue since it is in
the Federal list and no exemption was made regarding Muslims. Thus, it is the
Civil High Court that has the jurisdiction and the law applicable is the Probate
and Administration Act 1959. In the recent case, Latifah bte Mat Zin v Rosmawati btw Sharibun & Anor[2],
the Civil Courts and Syariah Courts had made a solution presented to the parties
in dispute which is to go through double proceedings which comprises these two
courts. This is because this issue has become graver notwithstanding the
amendment made in Article 121(1A) of the Federal Constitution which excludes
the influence of Civil Court in Syariah subjects.

Hibah is not valid
unless it is in existence and belongs to the donor. It can be seen through the
decided cases such as in the case of Awang
bin A. Rahaman v Shamsuddin bin Awang & Ors[3],
hibah is characterized as an exchange of a thing which is adhere to the sale
contract or subject to the debts to someone without any consideration. The
court on its opinion on the issue of whether there was a legitimate hibah. The
offended party guaranteed that his stepfather had isolated the land in dispute
into 2, half to himself and the other to the offended party’s mom. The offended
party asserted to be entitled as a legitimate beneficiary in the bit of his
mom. The Court chose that the hibah purportedly made to the offended party’s
mom was not substantial since at the time of its execution, the mother has just
passed away. A deceased individual has no legitimate capacity to acknowledge
hibah. In Eshah Abdullah & 5 Ors v.
Che Aminah Abdul Razak & 2 Ors[4], it
was ruled that the deceased’s son, who was only 15 years old did not have any
legitimate capacity to accept hibah.

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[1] [1998] 6 MLJ 556

[2] [2007] 5 MLJ 101

[3] [1997] 3 LNS 6

[4] [2004] XVIII(I) JH 47


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