Kiah binte Hanapiah v Som binte Hanapiah

[1953] 1 MLJ 82
By: 4 Wives 1 Handsome

Haji Hassan bin Musa (the deceased) erected a wooden house on the land of the appellant

He gave the house as gift in the presence of witnesses to the respondent who is his grand-daughter

The respondent then claimed back her house from the appellant but was rejected.

On the death of the deceased, the appellant entered into possession of the house which stood on her land.

The learned trial judge: 1) The house was built by the grandfather of the respondent. 2) The house was given as a gift by word of mouth from the deceased to the respondent.

Proceeding was initiated by the respondent to claim back the house.

The appellant was not satisfied and she filed an appeal.

1. Whether the house was a fixture which formed part of the realty ? 2. Whether there was a perfect gift ?

Appellants contentions
The house is attached to the land and therefore belongs to the appellant who is the owner of the land; The gift was incomplete as the gift was not to take effect until his death.

MATERIAL FACTS
Raja Awang bin Musa (who was present at the presentation of the house)

-- deceased gave the house to his grand daughter and told her that she could remove the house after his death.

Din bin Mat -- deceased told him that the house was for his grand daughter and while he was alive he would live there

HELD
Both the Trial Court and Appealing Court came to the same decision: houses of the Malay type resting on stilts not buried into the earth (rumah tinggi) are moveable property & have always been so regarded the gift was complete

Reasoning
1st decision Malay houses resting on stilts are moveable property
Not buried into earth Settled custom
houses of this type are regarded as personalty (movable property) in which ownership may be separate from ownership of soil effect should be given to this custom to the exclusion of the English Law of fixtures

Reasoning
2nd decision Gift was complete at the moment of formal presentation
Intention to remain in the house for the rest of his life is not a condition of the gift disclosed in general conversation that these were his private arrangement with his granddaughter regarding what was now her house. There is constructive delivery of possession it is not easy to see what form of an actual delivery of possession from one inhabitant of a house to another could take especially of a house which has probably no key

Opinion

WE CONCUR with both decisions

Opinion
1st decision Malay houses resting on stilts are moveable property
Itd be unjust if the houses built for the sake of having a shelter belonged to the land owner The house builders want to have a home, rather than a bare land Therefore land owner may evict those whore staying in the house, but not own the house which is a moveable property a chattel

Opinion
2nd decision Whether gift was complete
Sir Charles Murray dissenting judgment follow English law for gifts Why follow when the case dealt with a Malay wooden house? Was Mohamedan Law unsuitable to be used? Enough if the object is brought by the donor and taken possession of by the done Nawawi's Mohammedan Law at page 234 Should not complicate things

THE END
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