Article

Inheritance

From Munshipedia, the MBRAS digital historical encyclopedia

Inheritance

Inheritance among the Malay communities of the Malay Peninsula and Borneo is governed by a complex interplay of customary law, religious law, and colonial legislation, with the most extensively documented case being the tribal districts of Negri Sembilan, where the personal law of the Malays is adat (customary law) varied by selective adoption of Mohammedan law [1, pp. 41–43]. The rules of distribution differ markedly between ancestral and acquired property, between the three customary districts of Kuala Pilah, Jelebu and Tampin, and between the tribal and non-tribal areas of the State, creating a legal landscape in which the same deceased person’s estate may be subject to competing claims under different systems of law [1, pp. 41–42]. The economic significance of these rules is considerable: they determine the devolution of rice land, rubber holdings and other agricultural property that constitute the principal means of subsistence for the Malay peasantry, and the manner in which that property is divided has direct consequences for the viability of smallholdings and the preservation of tribal land tenure [1, pp. 11–13].

Scope and Historical Definition

The personal law of the Malays in Negri Sembilan at the commencement of the British period was a combination of adat and Mohammedan law, which Taylor argues would have been less inaccurately described as “according to ancient Malay custom as varied by the Mohammedan law, where the latter has been adopted” [1, p. 9]. The adat was not uniform across the Malay States: in Negri Sembilan it was adat perpatih, the tribal custom of the matriarchal region of Sumatra, while in the other States it was adat perpatih in decay under monarchical influence, or adat temenggong, which is much the same as adat perpatih in so far as inheritance is concerned though the tribal organisation has disappeared [1, p. 8]. The Mohammedan law of marriage and divorce had been adopted to a considerable but not complete extent in both regions, while the law of property was wholly adat at that time [1, p. 9].

Customary property is divided into two main classes: ancestral property (harta pesaka) and acquired property (harta charian), and the rules of inheritance are different for each [1, p. 14]. Ancestral property devolves in the female line within the tribe, while acquired property is subject to a more complex set of rules depending on whether it was acquired before marriage (harta pembawa for a man, harta dapatan for a woman) or during marriage (harta charian laki-bini, the joint earnings of husband and wife) [1, pp. 46]. The rule chari bahagi (“earnings are divided”) governs the division of joint marital property, while pembawa kembali (“separate property returns”) and dapatan tinggal (“acquired property remains”) govern the devolution of separate property on death [1, pp. 10].

A critical distinction that has caused much confusion in the legal literature is that between tenure and inheritance. Taylor demonstrates that the tribal restrictions on transfer of land, which were the subject of the Customary Tenure Enactments, are a restriction on alienability and not a rule of devolution; the adat is a personal custom that affects the land by virtue of its ownership by persons subject to the custom, not a property rule attached to the land itself [1, pp. 43–44]. This distinction was not consistently observed by colonial administrators and judges, and the failure to maintain it was a principal cause of the legal impasse that Taylor’s article was commissioned to resolve [1, pp. 5–7].

Economic and Social Dynamics

The economic consequences of the competing inheritance systems are substantial. Taylor’s inspection of the mukim registers of Pantai, Seremban, covering four volumes from 1899 to the late 1920s, showed that the majority of titles were in the names of Malay women, with very few Mohammedan fractions appearing, definitively negating the claim that the non-tribal districts had adopted the Mohammedan system of inheritance [1, pp. 41–42]. In the non-tribal districts, distribution generally follows a family settlement or pakat (agreement), and disputed cases are few; in the majority of instances the beneficiaries are the widow or widower and children of the deceased, and frequently the sons and daughters take more or less equal shares by consent [1, p. 42].

In the tribal districts, the application of Mohammedan fractions to registered land under the Torrens system produces what Taylor describes as “fantastic” results: undivided shares such as 17/192 of each lot, with caveats protecting the interests of infant co-owners, imposing restrictions on sale far more onerous than the adat restrictions on ancestral land [1, pp. 85–87]. Taylor argues that this is not a true application of the Mohammedan law, which requires actual division of the estate, and that the cumulative effect is to turn a peasant family into “a kind of private company” [1, p. 87]. By contrast, the matrilineal descent under adat has resulted in a degree of subdivision of ancestral sawahs (rice fields) and kampongs (villages) into lots of less than one acre, but no great harm has resulted because many owners hold several lots and can sell the whole of a small lot without selling the whole of their land [1, p. 87].

The Rembau Resolution of 3 February 1930, signed by 18 of the 20 lembagas (tribal headmen), recommended that harta charian devolve according to Mohammedan law while ancestral land continued to follow adat Rembau [1, pp. 34–35]. Taylor argues that this was not a valid bulat (unanimous resolution), was motivated by the Dato Rembau’s personal financial interest—his income of approximately £3,000 per annum would have been halved under chari bahagi upon divorce—and was internally inconsistent with the matriarchal structure of the tribes, since the application of the Mohammedan law of descent to acquired property would eventually bring about the abolition of the lembagas themselves [1, pp. 35–36].

The legislative history of inheritance in Negri Sembilan is characterised by what Taylor describes as “piece-meal and tinkering” legislation, with little regard for fundamental principles of law and never based on a comprehensive study of the subject [1, p. 41]. The Customary Tenure Enactment of 1909 was an enabling statute that empowered, but did not require, District Officers to inscribe “Customary land” on mukim register entries; it contained no rules of substantive inheritance law and did not affect the devolution of uninscribed titles [1, pp. 13–14]. The 1926 replacement retained the provisions relating to restriction on dealings and added a section empowering the District Officer to transmit the land of a deceased holder to the customary heirs, together with the highly artificial definition of “Customary Land” as land the title to which had been so inscribed [1, p. 14].

The amendment of 1930 (Negri Sembilan Enactment No. 1 of 1930) added section 25, which states that “Nothing in this Enactment contained shall affect the distribution of the estate, not being customary estate, of any deceased person” [1, p. 83]. Mudie J. in Kutai v. Taensah (1934) read this as a positive statement that non-customary estates devolve according to Mohammedan law; Cussen J. in Re Haji Mansur (1939) held this was a non sequitur and that the section merely excluded such estates from the Enactment’s procedural machinery [1, pp. 83–66]. The conflict was resolved by two reported judgments of Horne J. in 1940 and 1941, which established that if the deceased was a member of a tribe, the property devolves according to adat, even though the titles are not marked “Customary Land” [1, p. 66].

The practical effect of the legislation was to create a multiplicity of proceedings: whenever a person died leaving both ancestral and acquired property, there had to be two separate enquiries with two separate sets of notices and the possibility of two separate appeals, one to the Resident and Chief under the Customary Tenure Enactment and one to the Supreme Court under the Small Estates procedure [1, pp. 14–16]. Taylor recommended the consolidation of proceedings on the principle of “one estate, one petition; one decision, one appeal,” together with the codification of rules of descent according to adat temenggong [1, pp. 87–90].

Research and Documentation

The Society’s literature on inheritance is dominated by Taylor’s 1948 article, which represents the most comprehensive legal-historical analysis of the subject to appear in the journal. Taylor’s unique qualification as both a former District Officer, having handled distribution cases at first hand in both customary and non-customary districts, and a member of the Colonial Legal Service gave him access to the full range of primary sources: Secretariat correspondence files, unreported judicial decisions, mukim registers, and the recorded opinions of Residents, District Officers and lembagas [1, pp. 7–8]. The article’s historiographical contribution lies in its systematic application of comparative law principles, particularly Wilkinson’s framework distinguishing adat perpatih, adat temenggong and Mohammedan law, to a body of administrative and judicial records that had previously been treated as a mass of contradictory opinions [1, pp. 7–8].

Earlier contributions to the Society’s literature include Taylor’s own “Malay Family Law” (1937), which collected cases and precedents on the personal law of the Malays in the northern States, and his “Customary Law of Rembau” (1929), which documented the tribal custom of the Rembau district [1, pp. 7]. The 1949 corrigendum to “Divorce and inheritance” [2] indicates that the subject remained under active revision at the time of publication, reflecting the ongoing legal uncertainty that Taylor’s article sought to resolve. The shifting priorities documented in the records—from the initial assumption that the Mohammedan law was the default personal law of the Malays, through the recognition that adat was a personal law attaching to the person rather than the land, to the eventual recommendation for codification of adat temenggong rules—trace a trajectory of increasing sophistication in the Society’s understanding of Malay customary law over the course of the twentieth century.

MBRAS Sources

References

  1. E.N. Taylor (1948). Inheritance in Negri Sembilan JMBRAS 21(2): 41–130.
  2. E.N. Taylor (1949). Divorce and inheritance: Corrigenda JMBRAS 22(1): 194.