Joint Tenancy In The Islamic Law And Its Application In Malaysia

Abstract

Joint Tenancy is referring a method of possession that is all co-owners take an equivalent rights towards the asset, and after the demise one of them, the survivor will own the property solely. It is an adaption from common law perspective that has been applied in the Penang land law. However, the method of succession has brought discussion especially among Muslim in Penang and generally in Malaysia. It was not just against the law of Islamic inheritance but also similar to a concept of conditional gift (hibah ruqba) that was rejected among majority of Muslim scholars. Traditional Islamic jurist have opinned that a conditional gift is unacceptable for reason of outlawing heirs from inheritance. Nevertheless in the written law in Malaysia, joint tenancy contract was acknowledged by the National Land Code (Penang and Malacca Titles) Act 1963 (A518), as well as the rule of survivorship. At a meantime, the fatwa of Wilayah Persekutuan Shariah Committe and the Shariah Consultative Board of the SC (securities commission) Malaysia in recent have decided to accept the hibah ruqba. Therefore the study is at aim to investigate the conflict of laws as well as it current position in the application of joint tenancy and hibah ruqba. In the methodology, evidences will be collected from scholars, statutory provisions as well as recent cases. The findings will be used as a new guideline in the position of joint tenancy and hibah ruqba among Muslims in Malaysia