LAW 434

MALAYSIAN LEGAL SYSTEM

CASE NOTE ON
ROBERTS ALIAS KAMARULZAMAN V. UMMI KALTHOM

PREPARED BY:
NUR SYAZWINA BT MD AZAHAM 2017892386

PREPARED FOR:
MADAM SITI HAJAR MOHD YASIN

GROUP:
LWB01N

DATE OF SUBMISSION:
8th DECEMBER 2017
CASE:
Roberts alias Kamarulzaman v. Ummi Kalthom

YEAR :
1965

COURT :
High Court Malaya, Kuala Lumpur

JUDGE :
Raja Azlan Shah J.

FACTS OF THE CASE :

The plaintiff was a government servant carrying on a private business as a chartered
accountant in Kuala Lumpur. He had held various government posts as an accountant, rising
to the appointment of Accountant-General, Malaya. In 1951, he converted into a Muslim and
married his wife (the defendant) following the Muslim rims. The question of purchasing a
house then arose as he decided to continue staying in Malaysia. A negotiation for the
purchase of a house (hereinafter referred as the said property) at Setapak, Kuala Lumpur was
successful, for the price of RM50,000. The plaintiff contributed RM40,000 and as for the
defendant, RM10,000. Subsequently, the said property was registered under the defendant’s
name only because at that particular time, the plaintiff was a government officer, who was not
a Malaysian citizen, and for him to own a property, he would need to require permission first.
They did not have time to apply for one, hence it was easier to register the said property
under the defendant’s name as she was a Malaysian citizen. In short, it can be said that the
said property was merely placed under the defendant’s name for the sake of convenience.

After 12 years of marriage, the couple were divorced in September 1963. After the
financial details were gone through, it was agreed that the plaintiff should pay RM 500 per
month in respect of Eddah for 100 days. Another agreement was that he should pay a sum of
RM 160 per month for the maintenance of their adopted daughter. The plaintiff had also
agreed to pay a sum of RM 5,700 as compensation. As for the said property, plaintiff sought
for a half share. However, on this matter the defendant disagreed with him. It was argued by
the defendant that the said property was meant to be a gift as clearly indicated by the
surrounding circumstances. Firstly, she asserted the said property was placed under her name.
Therefore, in pursuant to Section 42 of the Land Code (Cap. 138), the plaintiff claimed that
her title was secure. Secondly, it was mentioned that when the members of the defendant’s
family talked about acquiring a joint family house, she was advised against participating in
the purchase by the plaintiff as he planned to get her a house for herself. Thirdly, it was
questioned that the said property was not claimed until 1963. Lastly, it was debated that the
plaintiff could have easily asked for the Government’s permission to re-register the said
property under his name if it was true that he did not have any intention to give it to the
defendant as a gift. Hence, the plaintiff came to the High Court of Kuala Lumpur to resolve
this issue.

ISSUE OF THE CASE:

The main issue in this particular case is whether a Muslim divorced husband can
claim to a half share as harta sepencarian of immovable property jointly acquired by both
spouses during the coverture of their marriage but registered in the name of the wife.

This is in regards with the application of Malay customary law in Malaysia as harta
sepencarian is a part of adat temenggung. Customary law is a regular pattern of social
behavior which has been accepted by the bulk of a given society as binding upon its
members. There are a few sources of customary laws in Malaysia; Malay customary laws,
Chinese customary laws, Hindu customary laws and customary laws in Sabah and Sarawak.

In Roberts v Ummi Kalthom, it was questioned whether the Malay ‘adat’, specifically
the adat temenggung, should be applied through the matter of distribution of property after
the divorce. This translates to whether the said property should be regarded as a matrimonial
property or merely a gift of a husband to his wife. It is important to distinguish between these
two as once a gift is established, it is irrecoverable either during the marriage or after divorce.
According to the adat temenggung, matrimonial property is divided into three kinds, namely
harta pembawa, harta dapatan and harta sepencarian. Harta pembawa refers to inherited
property brought by the husband to the marriage, which reverts to him on divorce. Harta
dapatan, in turn is brought by the wife to the marriage which reverts to her on divorce while
harta sepencarian refers to all types of property acquired jointly during the marriage.
 As a whole, the plaintiff contended that the said property as a matrimonial property,
specifically harta sepencarian whereas the defendant claimed that it was a gift for her.

HELD :
1) It was decided on the basis of Malay adat law.
2) Since the said property was acquired by the joint resources of both parties, the judge
held that it was a harta sepencarian.
3) Under such circumstances, the said property is recommended to be sold under the
Court’s observation for the sake of both parties and the profit gained is to be fairly
shared between them.

RATIO DECIDENDI :
The learned judge, Raja Azlan Shah J., held that the said property was jointly acquired
property subsequent to their marriage out of their joint resources. The property was therefore
considered as harta sepencarian, as recognised under Malay custom (Adat Temenggung). It
is vital to note that Malays in Peninsular Malaysia are governed by adat and Islamic law in
addition to the general law applicable to all communities.

The court had referred to the case of Hujah Lijah Jamal v Fatimah Mat Diah [1950] 1
MLJ 63, where the law on harta sepencarian was judicially considered by Briggs J. He had
defined it as "acquired property during the subsistence of their marriage of a husband and
wife out of their resources or by their joint efforts". Briggs J had also stated:
“... I think there can be no doubt that the rules governing harta sapencharian are not a
part of Islamic law proper, but a matter of Malay ‘adat’ ”

‘Adat’ refers to the Malay customary laws and its importance in their lives is
reflected in the Malay maxim “biar mati anak, jangan mati adat”, meaning “let the child die
rather than the custom”. It is perhaps one of the most powerful statements relating to adat
and its place in Malay society. There are two types of Malays adat; Adat Perpatih and Adat
Temenggung. However, Adat Perpatih only applies in Negeri Sembilan and Naning in
Melacca whereas Adat Temenggung applies in the other Peninsular Malaysia states. Hence,
the court in this particular case applied Adat Temenggung as the divorced couple brought the
case in Kuala Lumpur.
 In addition, there was no evidence to show that the husband intended it to be a gift to
the wife. Under the Muslim law, a man may lawfully make his property a gift provided that
he fulfills these three conditions; 1) a manifestation of the donor’s intention to give; 2) The
donee’s acceptance, whether it is implicitly shown or clearly stated; and 3) The ownership of
the subjected gift by the done regardless in actuality or constructively. Looking back at the
facts of this case, the said property was merely placed under the defendant’s name for the
sake of convenience, therefore it was not intended for it to be a gift from the plaintiff.

Furthermore, in defence of the defendant’s claim that the said property was a gift, it
was argued that since its registration was under the name of the defendant, her title was
indefeasible by virtue of Section 42 of the Land Code (Cap. 138). In the judgement, the judge
referred to Re Noorijah deceased, supra, where the deceased's estate could have resisted the
claim of the husband on the ground of indefeasibility of title under s 42 of the Land Code
(Cap. 138). It must be assumed that the Court was aware of that provision of law. If that was
so, it would follow that the beneficiaries of the deceased could have obtained a share of the
estate. In the case of Hujah Lijah bte Jamal v. Fatimah bte Diah too, if the deceased's estate
had resisted the claim of the plaintiff widow by taking advantage of the indefeasibility of title
provision under Section 37 of the Kelantan Land Enactment 1938, the plaintiff would have
lost her claim to a half share in her husband's estate as harta sapencharian. It is inferred from
these judgments that the provisions of the Land Enactments with regard to indefeasibility of
title are not amenable to matters pertaining to harta sepencarian. That being so, counsel's
argument was dismissed without further ado.

To determine the position of harta sepencarian in the various States of Malaya in

general, a survey of the practice of the different State courts was carried out and it was found
that in the division of harta sepencarian, the divorced spouse is entitled to either a one-third
share or a half share depending on whether there was direct or indirect contribution to
acquisition of the property. In this particular case, the court was ready to divide the property
in equal shares if the parties agreed to such a division, which they did in the end. Therefore,
the case was adjourned on 29 November 1965.