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Farä'id in the Pahang State of Malaysia: Theory And

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Farä'id in the Pahang State of Malaysia: Theory And Farä'id in the Pahang State of Malaysia: theory and practice BY Mohamad Khairul Anwar Bin Osman Submitted in accordance with the requirements for the degree of Doctor of Philosophy The University of Leeds Department of Arabic and Middle Eastern Studies September 2001 The candidate confirms that the work submitted is his own work and that appropriate credit has been given where reference has been made to the work of others ACKNOWLEDGEMENT First and foremost I must thank the Almighty Allah, Most Gracious and Most Merciful for enabling me to proceed with this study until to its final form. To my supervisor Professor Ian Richard Netton, I wish to express my gratitude and thankfulness for his assistance throughout the preparation of this thesis. My deepest indebtedness is due to Dato' Mohamed Shariff Shamsuddin former General Manager of Pahang State Foundation, for giving me the chance to pursue my academic career and to University Utara Malaysia for granting me during final year study. My sincere thanks is also due to all of my brothers, friends and colleagues, who have been magnificently kind in giving every generous supports and assistances throughout the period of my study, especially to Brother Anwar Yusoff and Dr. Rohani Salleh, Dr. Muhammad Suzuri Hitam and Dr Amiza Mat Amin, Dr. Muhamad Nasir and Kak Zu, Dr. Zahri Aziz and Kak Timah, Dr. Muhammad Hamzah and Kak Salmah, Brother Muhammad Shafri and Kak Zaira, Dr. Suriati Ghazali and Ust. Malik, Brother Mazlan and Narimah. A special thanks also due to my brother in law Mohd Yusoff Ariffin for his kindness and understanding support. May Allah reward them for the kindness that they have rendered to me and my family. Jazakunnillah Khair al-.Iaza!. A lasting debt of appreciation and affectionate gratitude goes to my beloved wife Dr Fazilah Ariffin, who all the times have provide me in varying ways of constant support and loves, internally and externally during the period of my study. May Allah her highest in Firdaus reward with the place the al -A 'Id, Amin. To my four wonderful and active children; Muhammad `Umair, `Abir Raihana Raudatul Iman and Abdullah Shamil, thanks for the joy you all bring into my life during happy and hard times. Thanks for being patient and forbearance in withstanding the stress and strains caused by my frequent absences from their midst especially in the final period of this study. May Allah gather back all of us in the nearest future. 11 I also dedicate this work to both of my parents Osman Wah and Che Mah Mohd Yussof, my mother in law Hajjah Aishah Othman and all family members in Pahang and Kedah. 11i ABSTRACT This present study concerns fara'irl and its application in Pahang State, Malaysia, from the theoretical and practical aspect. Fard'i(l is the law concerning intestate inheritance and is the subjects of the most detailed legal provision revealed in the Quran. Because of its importance the Prophet urged his companions to acquire this particular knowledge and warn them that `ilm al-Farä'i(1 or the science of estate distribution is the first knowledge that will be taken away from his nmmah or society. Since fara'i4i literally means obligations, many have assumed that it is an obligatory law, which Muslims have no choice but to obey. The study, however, concludes that it is not an obligation for Muslims to dispose of their inheritance in accordance with the fixed fractional shares prescribed in the Quran, as the rules of fara'irI also acknowledge a form of distribution or settlement based on the concept of mutual agreement, as can be seen in the principle of al-Takhnrfij. Practically, the study found that there are two settlement methods applicable in the State of Pahang: farn'1(1 and mutual agreement. Nevertheless, the study revealed that the percentage of Muslim cases settled by farr'i{/ is much lower than that of those settled by mutual agreement, the main reason for this being that settlement by mutual agreement is much faster than settlement by farä'icl It was also found that the advice given by the officer in charge also played an important part in influencing the claimants' decision to settle their case by mutual agreement. An examination of the Muslim cases settled by the authoritative agencies revealed that there are settlements, which are not in accordance with the principles of Islamic law and far-ä'i(/ in particular. This was due to three factors. Firstly, the acts themselves; secondly, the decisions of the High Court; and thirdly, the mistakes made out of ignorance by the officer in charge. A study of the cases of Muslim inheritance also revealed that farä'itl as applied in the State of Pahang continues to be based on the traditional law of the Shäfr r school and up to the present day no attempt been made in Malaysia to follow the example of other Muslim countries such as Egypt, Syria, Sudan, Tunisia and Pakistan in reforming the law. IV TABLE OF CONTENTS Page Acknowledgement i Abstract iii Table of Contents iv Map of Pahang State viii Note on Transliteration ix List of Statutes xi List of Tables xiii List of Maps xiii List of Flow charts xiii List of Graphs xiv Chapter One Introduction And Research Background 1.0 Introduction 1 1.1 Objectives of the Study 2 1.2 Significance of the Study and Survey on Previous Work 2 1.3 Limitation of the Study 10 1.4 Research Methodology 12 1.5 Organisation of the thesis 17 CHAPTER TWO Farä'i¢ Review and Discussion on its General Principles 2.1 Introduction 26 2.2 Property and Inheritance In Islam 27 2.3 Definition ofFarr'id 29 2.4 Fars 'icl According to the Shäfi`i School of Law 31 V 2.4.1 Condition And Cause Of The Succession 59 2.4.2 Order In The Distribution Of Inheritance 62 2.5 Discussion On The Rule Of Priority Among Heirs 65 2.6 The Superimposition Theory 67 2.7 Alternative Distribution Methods 69 2.8 Conclusion 70 CHAPTER THREE Islam and Law of Succession in the State of Pahang: Historical Background. 3.1 Introduction 80 3.2 The State of Pahang: Historical Background 80 3.3 The spread of Islam into the State 82 3.4 The Development of Succession Law in the Malay States 89 3.4.1 Early Aboriginal Tribes 89 3.4.2 Malay Customary Law 91 r) Adat Peipateh 93 ii) Ado/ Temenggung 95 3.5 Law of Succession During the Malay Sultanates Era 98 3.6 Law of Succession During the Period of Western Colonisation 99 3.7 Conclusion 104 CHAPTER FOUR The Present Administration of Muslim Inheritance in the State of Pahang. 4.1 Introduction 114 4.2 The Categories of Inheritance 114 4.3 The Administration of "Normal Estate": Act and Agency 116 4.4 The Administration of "Simple Estate": Act and Agency 118 4.5 The Administration of "Small Estates": Act and Agency 119 4.5.1 The Collector of Land Revenue 121 4.5.2 The Small Estate Officer 124 4.5.3 The Penghiilu or Village Headman 125 vi 4.5.4 The Oädi Shari `ah Court Jude 126 or , 4.6 The Sham `ah Court and Its Problem 128 4.7 The Amendment of Article 121 of Federal Constitution and Its Effect on the Role of the Shari 'ah Court 128 4.8 The Settlement Process 135 4.8.1 The Procedures of the Settlement Process and its duration 138 4.8.2 Problems Associated with the Settlement Process 146 i) Administrative aspects 147 ii) Social Aspects 151 4.9 Conclusion 153 CHAPTER FIVE Settlement By Fark'ifland Mutual Agreement: Analytical Survey on Claimants' Preference. 5.1 Introduction 167 5.2 Methodological Approach 168 5.2.1 Design of the Questionnaire 168 5.2.2 Distribution of the Questionnaire 169 5.3 T arä'k/ vs Mutual Agreement: Data From the Settlement Agencies 170 5.4 Fare 'irl vs Mutual Agreement: Finding from the Questionnaire Survey 173 5.4.1 Settlement By Farä'ic1 and Its Influential Factors 175 5.4.2 Settlement By Mutual Agreement and Its Influential Factors 181 5.4.3 Xnalysis on the Respondents' Perception Toward the Settlement Methods 187 5.5 Conclusion 191 vii CHAPTER SIX Analysis on Cases of Muslim Inheritance 6.1 Introduction 197 6.2 Methodological Approach 197 6.3 Form of Cases Settled by the Settlement Agencies 199 6.4 Cases Settled Against the Principles of Islamic law and Farä'icl 201 6.4.1 Cases Involving Interest 201 6.4.2 Cases Pertaining to the Land of Group Settlement Area 204 6.4.3 Cases Pertaining to the Land of Malay Reservation 208 6.4.4 Cases of Nomination 212 6.5 Cases Referred to the Shari `ah Court 216 6.5.1 Cases of Fard 'id 217 6.5.2 Cases of Wasiyyah 220 6.5.3 Cases of Hibah 227 6.5.4 Cases of Jointly Acquired Property 230 6.6 Conclusion 236 CHAPTER SEVEN Conclusion 249 REFERENCES 268 APPENDICES 285 Appendix A: Data Compiled from the Agencies Appendix B: Questionnaire Appendix C: Translation of Cases viii Map of Pahang State lighlands Lipis Jerantut Raub Kuantan femerloh Maran 13cntong Pekan Bera Rompin T ind 1'ci is iii h all tie an Tren Pero anu Paihang Selank negeri 1lrlacr Jo ore ix TRANSLITERATION OF ARABIC WORDS Names of Letters Form Transcription Alif I a Bä' u b TA' t Thä' th Jim j Hä' Khä' kh Dal d Dhäl dh Rä' r Zay j z Sin s Shin Z.
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