The most famous constitutional case in the Commonwealth began as an argument about a monastery’s land.

Kesavananda Bharati v State of Kerala is known for the doctrine that a constitution has a basic structure which even Parliament cannot amend.¹Kesavananda Bharati v State of Kerala AIR 1973 SC 1461. But the man whose name it carries was the head of a Hindu mutt in Kerala, and what he came to court about, in 1970, was a land reform statute that took the mutt’s property.

He lost that part of it. The doctrine survived; the land did not. But the case is a reminder of something this series has been circling for four essays. Religious bodies and the land they stand on sit very close to the constitutional bone.

Where the rule came from

The prohibition described in the first essay — a company limited by guarantee may not hold land without the Minister’s licence — is not a modern regulatory idea.²Companies Act 2016 (Act 777), s 45(1)(e) and s 45(4); Companies Act 1965 (Act 125), s 19(2). It is the last surviving fragment in Malaysia of a medieval English fiscal device with a beautiful name.

Mortmain. Mortua manus, the dead hand.

To see why it mattered, you have to see how a feudal lord was paid.

Feudal landholding was not ownership. It was a ladder of obligation, and the lord’s income came not from rent but from what happened to his tenants. A tenant died, and his heir paid a relief before he could enter. An heir was under age, and the lord took the wardship, and the profits of the land with it. A tenant died leaving nobody, and the land escheated — came back. The system was funded, in short, by birth, marriage and death.

A monastery is not born. It does not marry. It does not die.

Land granted to a religious house went into a hand that never opened again. No heir came of age, because there was no heir. The land never escheated, because the grantee never died. Every event that produced revenue stopped happening, and stopped happening forever. From the lord’s side of the ledger, a gift to the abbey was not piety. It was the permanent removal of a productive asset.

Parliament began legislating against it in 1279 and did not stop for five hundred years.³Statute of Mortmain 1279 (7 Edw 1), also known as De Viris Religiosis. Section 3 of the Statute of Westminster the Third 1290 (18 Edw 1, Stat 1), Quia Emptores, survived on the English statute book until 1960: Charities Act 1960 (8 & 9 Eliz 2 c 58), Seventh Schedule, Part II. Land could not pass into mortmain without a licence from the Crown — which might be granted, refused, or sold.

Notice what the rule was never about. Not religion. Not the protection of congregations from improvident gifts. Not the proper limits of charity. It was about money. A revenue measure, directed against thirteenth-century abbeys.

The eighteenth century added a second and quite different anxiety. The Charitable Uses Act 1735 — almost always cited as the Mortmain Act 1736 — was aimed at the deathbed gift of land, and at the persuasive figure standing beside the bed.⁴Charitable Uses Act 1735 (9 Geo 2 c 36), commonly cited as the Mortmain Act 1736. Its operation is argued over at several points in Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 (HL). The Victorians then swept the whole apparatus into three statutes, and there it sat.⁵Mortmain and Charitable Uses Act 1888 (51 & 52 Vict c 42); Mortmain and Charitable Uses Act 1891 (54 & 55 Vict c 73); Mortmain and Charitable Uses Act Amendment Act 1892 (55 & 56 Vict c 11).

And then — this is the step that reaches us — company law inherited it. Somewhere in the drafting of the twentieth century a rule about abbeys became a rule about corporations. We can say exactly where, because when England came to repeal mortmain it told us itself.

How England put it down

On 29 July 1960 the Charities Act received the Royal Assent. Its long title records, among its other purposes, that it is an Act “to repeal the mortmain Acts”.⁶Charities Act 1960 (8 & 9 Eliz 2 c 58), long title.

Section 38 is headed Repeal of law of mortmain. It sweeps away the three Victorian statutes — and then does something more deliberate. It repeals them “together with any enactments amending those Acts (and in particular section eighty-seven of the Education Act, 1944, and sections fourteen and four hundred and eight of the Companies Act, 1948)”.⁷Charities Act 1960, s 38(1).

Read that parenthesis slowly. England did not repeal mortmain as an abstraction and leave the fragments lying where they had fallen. It went into its own companies legislation, found the provision about corporations holding land, and named it for destruction. Parliament knew precisely what that provision was: mortmain in a modern suit.

It was in a hurry about it, too. Most of the Act waited until 1961 to come into force. Section 38, with its schedule of mortmain repeals, took effect on the day of Assent.⁸Charities Act 1960, s 49(3).

And the schedule is the thing to see. Part II of the Seventh Schedule is headed simply Mortmain Repeals, and it runs for pages. It opens with Quia Emptores and closes with the Horticulture Act 1960. Down the third column, entry after entry, the same instruction repeats: strike out “without licence in mortmain”; strike out “and power to hold land without licence in mortmain”; strike out “notwithstanding the statutes of mortmain”.⁹Charities Act 1960, Seventh Schedule, Part II (“Mortmain Repeals”), Parts A and B. Six and a half centuries of accumulated language, lifted out line by line.

That is what it looks like when a legislature decides to put something down.

We did not. And so far as I have been able to discover, nobody in Malaysia has ever explained in public why. The restriction arrived with the Companies Act 1965, was re-enacted in 2016 in a narrower but more binding form, and has never, to my knowledge, been defended on its merits by anyone.

What the Constitution says

Article 3(1) of the Federal Constitution provides that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”.¹⁰Federal Constitution, art 3(1).

Article 11(3) then provides that every religious group has the right to manage its own religious affairs, to establish and maintain institutions for religious or charitable purposes, and — in the words that matter here — “to acquire and own property and hold and administer it in accordance with law”.¹¹Federal Constitution, art 11(3)(c).

Two observations, offered as argument rather than as settled doctrine.

The first is about the closing words. “In accordance with law” sounds like a gateway through which any statute at all may pass. But law is a defined term, and the definition is wider than most people assume. It means “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”.¹²Federal Constitution, art 160(2), definition of “law”.

Three consequences follow, and none of them is strained. The common law of charitable trusts is not something standing outside the constitutional guarantee and obliged to justify itself; it is one of the things the guarantee points at. So is the body of equity our courts administer under the Civil Law Act. And so, arguably, is settled custom — which is how a great many of these institutions have in fact held their land for a century and more. The answer given in the second essay of this series, trustees holding for a purpose, is a constitutionally recognised mode of holding. It is not a loophole.

The second observation is about where the qualifier attaches, and here a comparison with India is instructive.

Our Article 11(3)(c) is closely modelled on Article 26 of the Indian Constitution, which was drafted first. But the Indian article separates into two clauses what ours runs together. Clause (c) gives a religious denomination the right to acquire and own property. Clause (d), separately, gives it the right to administer such property in accordance with law. The qualifier sits in the second clause, not the first.

That structure mattered when the Supreme Court of India came to consider a Madras statute placing Hindu religious endowments under the control of a government commissioner. The Court held that the administration of property stands on a different footing from the management of a denomination’s own affairs in matters of religion: the latter no legislature may take away, the former it may regulate. Several sections of the statute were struck down. But the Court also fixed a floor beneath the regulable right, and the sentence is worth quoting. “The law … must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of article 26.”¹³Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282, [1954] SCR 1005, judgment of Mukherjea J.

One caution about that case, since it is often cited loosely. The Court did not hold that the qualifier in Article 26 attaches only to administration and not to acquisition. It had no need to. The point that the two ideas sit in separate clauses is a fact about the drafting, plain on the face of the text, and the argument built on it here is mine rather than the Court’s.

Now come back to our own clause, which runs acquiring, owning, holding and administering together in a single line, and puts the qualifier at the end of all four.

Does “in accordance with law” govern the whole of it, or only the administering?

So far as I know, no Malaysian court has decided. It does not appear to have been argued. It is a genuine question, and it is the hinge on which any challenge to the prohibition would turn. This much can be said: to read the qualifier as governing the whole — so that a religious group may acquire and own property only so far as some statute permits it to — would empty the guarantee of most of its content, and a construction that empties a constitutional guarantee is rarely the right one.

An older idea than any of this

There is a point about the shape of the idea itself, and I make it carefully, as a lawyer describing an institution and not as anyone qualified to expound its law.

Every essay in this series has been about a single arrangement: property held permanently, by someone who takes no benefit, so that what it produces serves a religious or charitable purpose forever. English equity arrived at that arrangement through the Court of Chancery and gave it the name of a charitable trust.

But that shape is older than Chancery, and it is not foreign to this country.

The classical Islamic institution of waqf rests on a report accepted in both of the two most authoritative Sunni collections, of Bukhari and of Muslim. Umar ibn al-Khattab acquired land at Khaybar and asked the Prophet, peace be upon him, what he should do with it. He was told that if he wished, he might hold the property itself and give away what it produced in charity. Umar did so, on terms that the land itself was not to be sold, nor given away, nor inherited. The classical Shafi’i literature that Malaysian practice has long looked to — al-Nawawi’s Minhaj al-Talibin among the best known — treats the institution at length.¹⁴The report of Umar ibn al-Khattab and the land at Khaybar appears in Sahih al-Bukhari, Book of Wills, and in Sahih Muslim, Book of Bequests. For the Shafi’i treatment, al-Nawawi, Minhaj al-Talibin. Nothing in this essay is offered as an opinion on Islamic law, which lies outside both my competence and the jurisdiction of the civil courts.

Some legal historians have gone further, and suggested that the English trust itself may owe a debt to waqf, carried back to Europe in the medieval period.¹⁵M M Gaudiosi, “The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College” (1988) 136 University of Pennsylvania Law Review 1231. The thesis is contested. The thesis is contested and I do not press it. But it is worth knowing that it exists, because it inverts an assumption people make without noticing: that the trust is an English import into Malaysian religious life.

The idea of tying up land forever for a religious purpose is not an import here. It is among the oldest ideas in the country’s religious life, held in common across communities that agree about very little else. A rule that makes such holdings difficult is not protecting a Malaysian tradition. It is obstructing one.

The case for repeal

Two arguments, one modest and one less so.

The modest one. A restriction must serve some purpose the law can name. The purpose behind this one was the protection of feudal revenue from the dead hand of the monasteries. There are no feudal incidents in Malaysia. There have not been since before any of us were born. When the Federal Court came in 2019 to settle how our courts test whether a restriction is justified, it settled on proportionality — and the first thing proportionality asks is what the restriction is actually for.¹⁶Alma Nudo Atenza v PP & Another Appeal [2019] 5 CLJ 780; [2019] MLJU 280 (FC), nine-member bench. Here the honest answer is: nothing that anyone has been willing to say out loud.

The less modest one. Read as an absolute bar, the prohibition would mean that a religious body which incorporates in the only form the law allows it may not hold the ground its building stands on unless a Minister agrees. Set that beside a constitutional guarantee that every religious group may acquire and own property, and the two do not sit comfortably together. The way to reconcile them is not to strike the section down. It is to read it as what it is — a restriction on one corporate form, which leaves the older routes untouched.

That is a modest conclusion. It happens also to be the correct one.

What should change

Three things, none of them difficult.

Repeal the prohibition, as England did sixty-six years ago. Failing that, grant a general licence to bodies whose objects are religious, educational or charitable, so that the gate exists on paper and stops obstructing people in practice. And bring the Trustees (Incorporation) Act 1952 out of obscurity — publicise it, simplify the application, and make it the ordinary route for institutions that hold land.¹⁷Trustees (Incorporation) Act 1952 (Act 258).

A, at last

We began with an old man in a solicitor’s office who wanted to give a piece of land to the temple he had worshipped at for forty years. He thought it would take a fortnight.

It can still be done. His land can go to trustees, on trust for the advancement of his religion at that place, forever. Better still, it can go to a body corporate that will never die, on a certificate costing thirty ringgit.

But he should not have had to learn about mortmain to make a gift to his temple. Nor should his committee have to take advice on medieval revenue policy before accepting it.

That, in the end, is the argument. Not that the law has done anything terrible. Only that it is still carrying something it should have put down a long time ago.

You can view Part 1, Part 2, Part 3, and Part 4 here.

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This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. Our gratitude to Cem Salini of Unsplash for the image.

Claude, Anthropic’s AI, smoothed the drafting; Perplexity Pro checked the facts. The argument, the views, and the errors remain the author’s.

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