This article is written by Valluri Viswanadham. This article aims to examine the case of Bakar Ali and Anr. vs. Abu Sayid Khan in detail, outlining the key facts as well as issues raised throughout the case. To gain a full understanding of the topic discussed in the case, it will also look at it from a judicial viewpoint.
The faith of Islam promotes a sturdy work ethic and monetary savings to sustain oneself. Islam promotes voluntary and mandatory endowments to alleviate poverty. These endowments aid the underprivileged and redistribute wealth, aiming for a more equitable division of assets. Because the Waqf is related with social wealth and absolute religious existence of Muslims, it is the most important component of Islamic law.
There is no constricted expression to define the phrase, as it is a permutation of dissimilar interpretations. In some cases, a Waqf is viewed as a benevolent organization and, from time to time, is interpreted as the structure of a bequest. The word Waqf has an straightforward and direct connotation and is translated as prohibition or confinement. Under Islamic law, it signifies an institutional agreement whereby the originator endows his property in support of several definite persons or objects. Such possessions are unendingly reserved for the stated objectives and cannot be divided by inheritance, sale, gift, or otherwise.
The source of the phrase Waqf is from the Arabic term Waqafa, which means, therefore, to detain, hold, or tie up. In the Waqf Act, 1995, Waqf is defined as “the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious, or charitable”. The property is considered a Waqf only if it is utilized for religion or charity for an extended period or if it can be created by deed or other legal document. Generally, the money raised is spent to fund mosques, refugee houses, schools, and cemeteries.
In Karnataka State Board of Waqfs vs. Mohamed Nazeer Ahmed and Anr (1982), the Board of Waqfs published a list of Waqfs in the Official Gazette on November 4, 1965, and this list consisted of the property “Fathimabi Trust” located in Mysore. Mohamed Nazeer Ahmed, the plaintiff, claimed this property as his personal property. He filed a suit to eliminate the property from the list of Waqfs, disagreeing that the property was not Waqf property. The original owner, Fathimabi, did not donate it for benevolent or pious purposes. The Commissioner of Waqfs had no source to contain it on the list. The plaintiff argued that the intent of Fathimabi, as revealed in her will, was to create a family agreement for the enhanced gratification of the property by her descendants. The lower count has found that the property was devoted to the use of travellers in broad terms, not completely for poor persons, and there was no charitable, religious, or pious purpose for the dedication.
The document was more of a guideline for Fathimabi’s descendants, not a Will, and Fathimabi did not strip herself of ownership rights to the property. There was no everlasting dedication, and the property benefited both Muslims and non-Muslims, thus not qualifying as a Waqf under Muslim law, and property records showed individual ownership by descendants, not as Waqf property. The Karnataka High Court has stated that the Waqf Act, 1954, and Muslim Law requires a Waqf to have a religious, pious, or charitable purpose benefiting the Muslim community and the dedication of a house by a Muslim for the use of all travelers, irrespective of religion and standing, was held not to be a Waqf based on the opinion that under Muslim law, a Waqf should have a devout purpose and be only for the help of the Muslim community, and if it is secular in nature, the charity should be only for the poor and no one else.
The case of Bakar Ali and Anr. vs. Abu Sayid Khan is a landmark case that consists of various concepts under Islamic law, such as the legality of immovable properties, the duties of the mutawalli, and how the concept of perpetuity is important in determining the property of waqf.
Mutawalli
The supervisor or administrator of the Waqf is recognized as the ‘Mutawalli’. An appointed individual cannot sell, exchange, or mortgage Waqf property without court authorization unless specifically permitted by the Waqf deed. Any adult of sound mind and capable of performing the required duties can be appointed as a Mutawalli of the Waqf. A foreign individual cannot be appointed as the trustee of the property, and according to the general rule, the originator of the Waqf is appointed at the time of the Waqf’s creation. But if a Waqf is created devoid of the selection of a Mutawalli, then the subsequent persons are entitled to choose the Mutawalli.
The Court shall be guided by the following rules:
- As much as possible, the Court should not forget the directions of the settler.
- Inclination should be given to a member of the settler’s family over a stranger.
- In case of competition between a settler’s lineal descendant and one who is not a lineal descendant, the court is liberated to implement its prudence.
The Mutawalli can use the paramount interest of the Waqf, and he is authorized to take all rational measures in good faith to ensure that the end beneficiaries can benefit from the Waqf. He can also file a suit to protect the interests of the Waqf and can lease the property for farming purposes for not more than three years and for non-agricultural purposes for less than one year. He can get the term extended with appropriate authorization from the court, and he is permitted to get paid his salary as provided by the Waqf. If the payment is minimal, he can apply to the court to get it improved. Once a Mutawalli is appointed, he cannot be removed by the Waqf. The court can only remove a Mutawalli if he denies the Waqf’s nature of the property, claims ownership, neglects maintenance despite having funds, allows the property to deteriorate, or knowingly and intentionally breaches trust.
Waqf Tribunal
According to Section 83 of the Waqf Act, 1995, the State Government may establish as many tribunals as necessary for the management of Waqf and Waqf property by notifying the Official Gazette. As per the Code of Civil Procedure 1908, the Tribunals are considered to be civil courts and are obliged to perform all the duties and authority of a civil court. A tribunal’s ruling is final and enforceable against the parties. No lawsuit or other legal action may be filed in a civil court. A tribunal must decide whether to continue under this legislation. The tribunals will be composed of one State Judicial Service member who does not hold a lower rank than a District, Session, or Civil Judge, one State Civil Service member who holds a rank corresponding to that of a District Magistrate, and one individual who possesses expertise in Muslim law and jurisprudence. The Board must apply to the tribunal and may take necessary action when Mutawalli neglects to carry out his obligations according to Muslim law or is unable to fulfill his responsibilities. If Waqf property ever comes within the purview of multiple tribunals, an application must be filed with the tribunal whose local boundaries the Mutawalli belongs to.
Judicial Interpretations on Waqf Act
In Punjab Waqf Board vs. Shakur Masih (1996), Najaf Khan owned assets located in Jutog, which included residences and stores. On August 29, 1949, he had written a will leaving all his possessions to Smt. Mousemat Kariman, the mother-in-law of his son. “Immediately following the demise of Masomat Kariman, my entire property would turn into Waqf, and any revenue from that would be used for the preservation of the Mosque at Jutog,” he added a note to the will on September 29, 1949, and no one would be allowed to sell or mortgage these homes. The appellant filed the lawsuit, declaring that the land was Waqf property, and the respondent had no legal standing at all. The lower Courts held that there was no creation of Waqf on the part of Najaf Khan, hence the will is void, and consequently, there was no existence of the will. The Supreme Court observed that Waqf is the eternal donation by a person following Islam and any aim recognized as Islam as devout or charitable, and dedication shall be permanent, and the property subject of Waqf by way of Waqf shall belong to Waqf during the donation. The Waqf-like contingency is not valid, and for a Waqf to be valid, appropriation should not rely on the contingency, and the bequest creating a Waqf upon the lifespan of the lady is invalid; hence the contingent Waqf is void.
In Garib Das And Ors. vs. Munshi Abdul Hamid (1969), the owner of the disputed house, Tassaduk Hussain, admittedly executed a Waqf deed in 1914. The Waqf deed was for the benefit of a mosque and madrasa in Nathangar. The Waqf deed was registered, and as per the deed, the donor was to maintain the home as Mutawalli. In the event of his death, his wife should take over his role as Mutawalli. Until the donor and his wife were alive, they would support themselves from the property’s income. They should utilize the remaining funds for the mosque and madrasa. The document stated that the Mutawalli would be chosen by the panchas of the Muslim community of Nathangar. Tassaduk Hussain executed and registered three deeds; he died in 1950. One of these deeds claimed to nullify a gift deed performed in favor of some of his relatives regarding the disputed residence in 1939. In the second document, he revoked a previous registered gift deed made in favor of another relative. He claimed to have revoked the Waqf deed of 1914 with the third deed. After that, he signed three different sale deeds. One was in favor of appellant Garib Das. Another was in favor of Shamlal. Another was in favor of Gobind Lal. These three deeds all relate to different areas of the disputed land. In 1950, Tassaduk Hussain died. Plaintiff No. 1, who was chosen to be Mutawalli of the Waqf established by Tassaduk Hussain, filed the lawsuit. Plaintiffs Nos. 2 and 3, who were members of the Nathangar Masjid Committee, joined the lawsuit.
The alienees from Tasaduk Hussain, Garib Lal, Shyam Lal, and Gobind Lal are the defendants. The plaintiffs sought to have the deeds in favor of the aforementioned individuals canceled. They argued that the sale deeds in favor of the first three defendants could not affect the Waqf. They claimed a valid Waqf had already been created and acted upon in favor of the madrasa and mosque. The plaintiffs prayed that since the three defendants, who are tenants, had renounced their tenancy, they had become trespassers. As trespassers, they were subject to eviction. The subordinate judge who tried the suit ruled that the deed or Waqf was illegal. He ruled, among other things, that there could be no reservation for the donor’s benefit in the event of an endowment ostensibly made in favor of the mosque. Additionally, he maintained that Tassaduk Hussain never intended to establish a Waqf, and the endowment was problematic due to doubts about the identity of the mosque and madrasa specified in the Waqf. The Supreme Court has stated that it is possible for the person who established the Waqf to be the first Mutawalli. In such cases, there is no physical transfer of property. It is not compulsory for the property to be transferred from the donor’s name as the owner to his name as Mutawalli. The burden of proof for the person asserting that the Waqf was not meant to be acted upon is on them. They must demonstrate otherwise. The apparent transaction must be taken to be genuine.
Judicial Interpretations on Waqf Act
In Punjab Waqf Board vs. Shakur Masih (1996), Najaf Khan owned the assets located in Jutog, which included residences and stores. On August 29, 1949, he had written a will leaving all his possessions to Smt. Mousemat Kariman, the mother-in-law of his son. “Immediately following the demise of Masomat Kariman, my entire property would turn into Waqf, and any revenue from that would be used for the preservation of the Mosque at Jutog,” he added a note to the will on September 29, 1949, and no one would be allowed to sell or mortgage these homes. The appellant filed the lawsuit, declaring that the land was Waqf property, and the respondent had no legal standing at all. The lower Courts held that there was no creation of Waqf on the part of Najaf Khan, hence the will is void, and consequently, there was no existence of the will. The Supreme Court observed that Waqf is the eternal donation by a person following Islam and any aim recognized as Islam as devout or charitable, and dedication shall be permanent, and the property subject of Waqf by way of Waqf shall belong to Waqf during the donation. The Waqf-like contingency is not valid, and for a Waqf to be valid, appropriation should not rely on the contingency, and the bequest creating a Waqf upon the lifespan of the lady is invalid; hence the contingent Waqf is void.
