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.

Introduction

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 organisation 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 recognised by the Muslim law as pious, religious or charitable”. The property is considered a Waqf only if it is utilised 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 in the list. The plaintiff argued that the intent of Fathimabi, as unveiled in her will, was to create a family agreement for the enhanced gratification of the property by her descendants. The lower court 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 require 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 travellers, irrespective of religion and standing, was held not to be a Waqf on the opinion that under Muslim law, a Waqf should have a devout purpose and be supposed to be only for the help of the Muslim community, and if it is secular in temperament, the charity should be supposed to be to 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.

Waqf Act, 1995

According to Section 3 of this Act, it is legitimate for a Muslim individual to craft a Waqf, which in all other aspects is governed by the provisions of Muslim Law, for the following purposes-

• For the safeguarding and maintaining entirely or partly of his relations, children or successors
• Where the individual crafting a Waqf is a Hanafi Muslim, in addition for his protection and to maintain throughout his life span or for the disbursement of his amount outstanding out of the rents and profits of the possessions devoted

Mutawalli

The supervisor or administrator of the Waqf is recognised as the ‘Mutawalli’. An appointed individual cannot sell, exchange, or mortgage Waqf property without court authorisation 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 a 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 executor of the founder
• The Mutawalli on his death-bed

The Court shall be guided by the following rules:

• As much as possible, the Court should not forget about the directions of the settler.
• Inclination should be given to a member of the settler’s family over a stranger.
• In case of a 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 authorised to take all rational measures in good faith to make sure that the end beneficiaries can benefit from the Waqf. He can also file a suit to protect the interests of the Waqf and he also has the authority to 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 authorisation 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 remove a Mutawalli if he denies the Waqf 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 and 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 instead. 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 under Muslim law or is unable to fulfil 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 belong to. 

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 of 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 utilised 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 is Waqf’s property and that the respondent has no legal standing at all. The lower Courts have held that there was no creation of Waqf on the part of Najaf Khan and hence the will is void; subsequently, there is no existence of a will. The Supreme Court has observed that Waqf is the everlasting donation by a person practising Islam and any aim recognised 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 that creates 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 utilise 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 and he died in 1950. One of these deeds claimed to nullify a gift deed performed in favour of some of his relatives regarding the disputed residence in 1939. In the second document, he revoked a previous registered gift deed made in favour 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 favour of appellant Garib Das. Another was in favour of Shamlal. Another was in favour 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 favour of the aforementioned individuals cancelled. They argued that the sale deeds in favour of the first three defendants could not affect the Waqf. They claimed a valid Waqf had already been created and acted upon in favour 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 favour of the mosque. Additionally, he maintained that Tasaduk Hussain never intended to establish a Waqf. He argued that 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 moved from the donor’s name as an 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.

Details of the case

Case Name

Bakar Ali And Anr. vs. Abu Sayid Khan 

Equivalent Citations

(1902) ILR 24 ALL 190

Court

The Hon’ble High Court of Allahabad

Petitioners

Bakar Ali

Respondents

Abu Sayid Khan

Timeline of Verdict

21st December, 1901

Facts of the case

The Appropriator, Fakhruddin, had stipulated in his Waqf deed that the 11,000 rupees he had placed with a Cawnpore-based business be used following the comprehensive instructions included in the document. In compliance with Muhammadan Law, the deed specified how the endowment amount was to be administered and distributed for religious and philanthropic reasons. First, 5000 rupees of the gifted amount were to be set aside for the building of a mosque at a suitable site, along with stores next to it. The Mutawalli, or superintendent, was in charge of these earnings, which were to be used to pay the overhead costs of mosques, such as the salaries of the Imam, who conducted services, and the Muazzin, who called for prayer. When it was deemed essential, the Mutawalli was entrusted with building a pucca well to further meet the requirements of the community. 

The balance from the original Rs 11,000 and any additional money earned as a consequence of Mutawalli’s wise management were to be safely stored and accumulated over time. The purpose of this collected amount was to be used to buy suitable real estate that would be added to the Waqf. According to Muhammadan Law, both the newly acquired assets and the revenue from them were deemed to be part of the Waqf and will be allocated to religious and philanthropic endeavours. The purpose of this cycle of investment and reinvestment was to guarantee the steady growth and sustainability of Waqf’s assets and their ability to fund humanitarian endeavours. Additionally, Mutawalli was free to distribute money from the endowed properties; earnings to pilgrims (Hajis). This provision had given Mutawalli the authority to decide how best to utilise the Waqf’s resources to assist pilgrims, depending on his assessment of what would be most helpful.

Issues raised in the case

Whether a Waqf of movable property is valid under Muhammadan law?

Arguments of the parties

Plaintiff

The plaintiffs contended that the Waqf of the property in question was entirely void. This argument was accepted by the lower court. The Subordinate Judge acknowledged the above contentions and held there was no unity between Islamic jurists on this question but chose to lay foot on a verdict of the Calcutta High Court in the case of Fatima Bibee vs. Ariff Ismailjee Bham (1881), 9 C.L.R. 66. This judgement has supported the observations stated by the subordinate Judge, and, as far as the current case is concerned, it was the only reported case directly addressing the issue in the deliberation.

Judgement of the case

The Allahabad High Court had discussed the case where the shares of two companies at Rangoon were made the subject of Waqf, and in that case, it was argued that endowment was not valid as per Muhammadan Law. The Calcutta High Court in Fatima Bibee vs. Ariff Ismailjee Bham had stated that property of this nature was new in its origins, and the ancient texts were only relevant as analogies. There was no hardship in deciding that land can be appropriated as per the authorities mentioned. It was also basically accepted that power was inclusive of various types of properties, although authorities don’t agree on the exact scope of enlargement. It  was accepted that items like money fell under the “perishable” category until they were utilised, and it was clear that there is no possibility of getting money back as a dividend. There was a chance of appropriating the funds that the authority had extended to several other types of property, albeit the authorities. The Calcutta High Court had ruled that the Waqf was null and void. The court also examined Justice Ameer Ali’s book in his work on Muhammadan law, which questioned the sanctity of the aforementioned judgement on the ground that the Calcutta High Court did not examine all the authorities in the case of Fatima Bibee vs. Ariff Ismailjee Bham.

The Allahabad High Court has referred to various Islamic authoritative texts to conclude that making a Waqf (Islamic endowment) of dirhams (silver coins) and dinars (gold coins) is lawful. This conclusion is supported by the Fatwa Qazi Khan, where Zafar stated that dirhams could be invested in a Muzarihat (a partnership where one provides wealth and the other labour) to generate profits for the Waqf. Similarly, in Umdat-ul-Kari, a commentary on Sahih Bukhari by Allama Aini, Zuhri’s perspective aligns, noting that profits from such investments could be used for charitable purposes. The Durri-Mukhtar, a renowned Hanafi legal text, also supports this view, stating that the Waqf of movable items, including dirhams and dinars, is valid and customary. The text cites that Qazis (Judges) were instructed to permit the Waqf of dirhams and dinars.

The Allahabad High Court observed considerable inconsistency between authorities concerning the legality of certain endowments. Some authorities consider such endowments absolutely invalid; at the same time others believe they are legal if they ally with custom. These differences extend to various jurists, who hold contradictory opinions: some view these endowments as entirely invalid, others find them legitimate when customary, and a majority believe them legitimate without any restrictions. Additionally, different commentators attribute varying and contradictory opinions to the same jurists. Some authors argue that Waqf, when movable and customary, is valid, while others oppose. The Court noted that the existing opinion supports the legality of such endowments, highlighting that perpetuity is indispensable for a Waqf to be legal.

Analysis

In its consideration, the Allahabad High Court thoroughly analysed Islamic jurisprudence and intellectual texts, referencing authoritative sources such as Fatwa Qazi Khan and Umdat-ul-Qari. These sources were necessary in getting a particular opinion of the principles governing Waqf, principally about the disputed issue of Waqf concerning movable property. The Court recognized the different opinions between Islamic jurists on this matter. Some jurists argued that Waqf concerning movable property, such as money, was inherently void under strict interpretations of Islamic law. On the other hand, others contended that such endowments could be legal, especially when they are allied with customary practices existing in the community. The principle of perpetuity was very important to the court while delivering its verdict. The court  emphasised that for a Waqf to be deemed valid, it must serve the long-term assistance of the endowed property for religious or philanthropic purposes over an extended period. 

This case is almost 124 years old, but the principles outlined and discussed in this case are still relevant today. In the Maharashtra State Board of Waqfs vs. Shaikh Yusuf Bhai Chawla (2012) case, the Apex Court discusses perpetuity in the case of Abadi Begum vs. Kaniz Zainab (1926), in which the Privy Council expressed the opinion that in such a case, the Waqf would be entirely void. Their Lordships approved the four conditions governing the validity of a Waqf under Shia laws set out in Baillie’s Digest, II, 218-219 and out of the four conditions, the first one is that a Waqf must be perpetual.

Recent case laws

Mohammad Yousuf Sheikh vs. Union Territory Of J&K (2024)

The Jammu and Kashmir High Court in this case was dealing with a case where the petitioners were in the Waqf properties as licensees. They contended that the rents they sued were raised arbitrarily and without rationality, but the Waqf Board has argued that the High Court cannot hear this petition in the same shoes as the Writ Court. Petitioners continue to contend that the Waqf Board, which was constituted under the Wakf Act, 1995, is not a state or any person that has the jurisdiction to amend under Article 226 of the Constitution of India. Jammu and Kashmir High Court has observed that while the Waqf Board is indeed the statutory authority, it cannot be the “state” under Article 12 of the Indian Constitution and the Waqf Board cannot be brought within the scope of the state until it is monetarily, operationally and administratively managed by the Government. 

The Jammu and Kashmir High Court stated that the Waqf Board does not fall within the definition of state under Article 12 of the Indian Constitution and hence cannot be amenable to writ jurisdiction under Article 226 of the Constitution. The High Court opined that a writ petition is still maintainable against the Waqf Board if the dispute is regarding the discharge of a duty with public elements. But in this case, lease agreements and disputes over rent payments were not public functions; rather, they were more of a commercial or contractual nature, and hence the court refused to entertain the rent disputes against the Waqf Board. However, the court has taken serious consideration that there is no existence of the Waqf Act, 1995. 

In finality, the court has ordered to constitute the Waqf Tribunals within Jammu and Kashmir to hear such disputes, which leaves the petitioners without remedy because the high court has no authority to entertain such matters and has also taken note that no civil court has the jurisdiction to hear the matter regarding the Waqf property as stated in Section 85 of the Waqf Act, 1995. In its judgement, the court ordered to constitute the Waqf Tribunals within Jammu and Kashmir in a span of 2 months and to maintain status quo for petitioners

Mohmood Hussain vs. The State of Tamil Nadu (2024)

The Madras High Court, in this case, was dealing with the constitutionality of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 2010, which authorised the Tamil Nadu Waqf Board Chief Executive Officer (CEO) to act as an estate officer, which enables them to order the eviction of encroachers of Waqf properties that were brought under the scope of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975.  Most of the petitioners and appellants are tenants whose leases have expired/determined or were treated as encroachers in respect of the properties/premises belonging to the Waqf. On behalf of the petitioners, it was argued that the Parliament has amended the Waqf Act, 1995, through the Waqf Amendment Act, 2013, which specifically deals with the unauthorised occupation of the Waqf properties and eviction thereof and the amended Waqf Act clearly and categorically provides the procedure to deal with such encroachments or unauthorised occupations. 

They have contended that the amended act prohibits the jurisdiction of the revenue court, civil court, and any other authority. This also comprised the estate officer’s power under Tamil Nadu law. It was contended that the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 2010 is null and invalid since the law ratified by Parliament seeks to solve these issues by streamlining a thorough system for evicting unlawful inhabitants from Waqf assets. They argued that this was because any state laws that conflict with the Central Act would be null and void. It was contended that since the Central enactment aimed to cover all aspects by offering a comprehensive mechanism for evicting unauthorised occupants from Waqf properties, the challenged Tamil Nadu Act of 2010 will become void. This was because any state legislation conflicting with the Central Act would be superseded, they asserted. 

The State contended that both state and central laws could exist mutually. Under this system, the Tamil Nadu Waqf Board CEO could use the state law to order the eviction of external encroachers on Waqf properties. Meanwhile, during cases involving complex title disputes, the CEO could resort to the tribunal established under the Central Law. The Madras High Court observed the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act, void qua the Waqf Act, 1995. The High Court ruled that encroachers of Waqf properties could only be evicted through Waqf tribunals established following the 2013 amendment to the Central legislation. The court stated that the 2013 amendment to the Central law was after the 2010 amendment to the State law and hence it could be presumed that Parliament was aware of the State amendment when it consciously amended the Waqf Act, 1995 and opined that the parliamentary law intends to secure the protection of Waqf properties, which requires uniformity of law and consistency of its application all over the country. The Central Act is thus an exhaustive code on the subject. Thus, the State enactment is repugnant to the Waqf Act, 1995, as amended in the year 2013

Abu Talib Husain And Another vs. State Of U.P (2023)

The Allahabad High Court, in this case, was dealing with the issue of whether a Mutawalli of Waqf would be deemed to be a public servant within the meaning of Section-21 of the Indian Penal Code, 1860. The petitioner contended that Abu Talib Husain was the Mutawalli of Waqf Karbala, Nai Basti, Behat Road, Saharanpur and an impugned FIR was lodged and charge-sheet was filed after conducting the investigation, on which cognizance was also taken by the Court. But as per Section-101 of the Waqf Act, 1995, Mutawalli of Waqf would be deemed to be a public servant within the meaning of Section-21 of the Indian Penal Code, 1860. They contended that under Section-197 Criminal Procedure Code, cognizance is bad for the Court because no sanction from the appropriate Government was taken before taking such cognizance. 

It was further submitted that Petitioner No. 2 was the father of Abu Talib Husain and also assisted Abu Talib Husain in his discharge of public duty. The learned counsel also contended that cognizance was illegal without sanction from the government as he was a public servant and the state had opposed the above submission and submitted that Section-101 of the Waqf Act, 1995, was a deeming provision for the discharge of duty and Section-197 Cr.P.C. applies only to public servants who cannot be removed without sanction from the State Government whereas for the removal of Abu Talib Husain, sanction from the State Government was not required and Section-197 Cr.P.C. was not applicable in the present case. 

Allahabad High Court stated that, from observing Section 101 of the Waqf Act, 1995, it is stipulated that under Section 21 of the IPC, not only every member of the Managing Committee of Waqf but also the Mutawalli of Waqf are also deemed to be a public servant. But despite the above deeming provision, Mutawalli can be removed by the Waqf board as per Section-64 of the Act, 1995 and the Allahabad High Court has stated that a straightforward understanding of Section 197 of the Criminal Procedure Code states that the legislature has made the way for legal fiction so that every member can be considered a public servant under Section 21 of the Indian Penal Code. 

The competency of the legislature to pave the way for legal fiction cannot be disputed and the objective of a deeming provision is to interpret the presence of genuinity that does not exist. If the legislature establishes a legal fiction, the courts shall determine the reason why the fiction exists. The courts may assume all facts and situations that are required and necessitate the court to give effect to the legal fiction. The facts of this case show that, despite that Mutawalli was declared a public servant under the Waqf Act, 1995, the word ‘government’ cannot be substituted with the Waqf Board to satisfy the second condition as required in Section 101. It states that the accused is a public servant and the public servant can be removed from the post by or with the sanction of either  the central or state government. It is extended if the acts giving rise to the alleged offence were committed by the public servant in the actual or purported discharge of his duty.

Consequently, the court had stated that even though Mutawalli was declared a public servant under Section-101 of the Waqf Act, 1995, the most important factor that cannot be ignored was that they were still not considered public employees. The Allahabad High Court, in its verdict, stated Mutawalli of the Waqf Board cannot be entitled to be granted protection under Section 197 of the Criminal Procedure Code because the conditions for applying this section 197 of Criminal Procedure Code are not satisfied and without complying with that conditions, there is no chance of extending the protection under that provision.

SV Cheriyakoya Thangal vs. SVP Pookoya & Ors. (2024)

In this case, the appellant and respondents had a dispute regarding the rights of Mutawalliship and Sheikhship before the Waqf Board and it was held that the appellants were the Mutawalli and the respondents also filed petitions regarding the issue of jurisdiction before the Waqf Board and the Waqf Tribunal. As per the contentions of respondents, the Waqf Board had no jurisdiction, as the Waqf Tribunal had the original jurisdiction to rule on matters related to Mutawalliship and in the revision petition. The Kerala High Court had refused to accept the judgement and decree of the Wakf Tribunal, which held that the Waqf Board lacked jurisdiction and remitted the matter back to the Waqf Tribunal. 

The Supreme Court in Appeal held that the order of the Kerala High Court cannot be sustained in the eyes of the law as the Waqf Board has rightly utilised its jurisdiction in enforcing its authority under Section 32(2)(g) r/w Section 3(i) of the Waqf Act, which has the definition of Mutawalli. After going on with Sections 83(4) and 83(7), which are dealing with the powers of the Waqf Tribunal, the top court has stated that the Waqf Tribunal is deemed to be the civil court and that it has the same powers as the civil courts under the Code of Civil Procedure, 1908. 

The Supreme Court has also referred to the term ‘competent authority’ in Section 3(i) of Waqf Act. This makes it clear that the Waqf Board has the jurisdiction but not Waqf Tribunal. The Supreme Court observed that the Waqf Tribunal is the adjudicating authority over the disputes. However, the Waqf Board should deal with the issue relating to administration, which consists of the appointment of Mutawalli, whose duty is to manage Waqf’s properties and the court. 

The Supreme Court observed that the Kerala High Court’s judgement cannot be sustained in remitting the case to an adjudicating authority by treating it as a competent authority, which is none other than the Waqf Board. Since the high court did not explore the merits of the case, the supreme court has sent the case back to the high court to decide the revision on merits, per law, except the issue of jurisdiction as decided by the top court in this appeal.

Frequently Asked Questions (FAQs)

What is a Waqf and what are its main principles?

Waqf is an Islamic benevolent donation wherever an individual dedicates possessions, such as capital, property, or buildings, for pious or benevolent purposes. The donated possessions and their earnings are characteristically used for sustaining mosques, schools, hospitals, and other public services and there are three principles of Waqf that the gifted possessions are supposed to continue dedicated to their function perpetually and once a Waqf is established, the assets cannot be reclaimed by the donor or their heirs and the assets of Waqf must be gained by society through spiritual, enlightening, or benevolent means.

Who manages Waqf properties?

Waqf properties are managed by trustees known as Mutawalli, who play an essential role in managing these endowments. Their responsibilities include making sure that the possessions owed by the Waqf deed are used under its precise words. This consists of the maintenance of Waqf properties to protect their functionality and worth over time. In addition, Mutawallis or Nazirs, are entrusted with making discreet saving decisions aimed at generating profits from Waqf assets while adhering to Islamic financial principles. They supervise the allocation of earnings derived from these savings to support chosen functions such as spiritual actions, schooling, donations, and public well-being. 

Can Waqf properties be sold or transferred?

Waqf properties are characteristically established with the intention of perpetual commitment, ensuring that the possessions remain devoted to spiritual, benevolent, or public purposes for an indefinite period. This principle emphasises the permanent nature of Waqf as a form of incessant charity (Sadaqah Jariyah) in Islamic tradition. The eternalness of Waqf assets by and large prohibits their transaction or transfer to maintain their intended use. On the other hand, under specific circumstances and with discretion of court, it can be done

References

• I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009, Allahabad)
• Bailie Nell B.E., Digest of Mohummudan Law, Part First (Hanafi Law), Second Revised Edition, London, 1875, Vol. II, p. 212.
• https://www.lawctopus.com/academike/concept-Waqf-muslim-law
• Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency, 2010 Allahabad)