Mere Use Of Words 'Waqf' Or 'Mosque' In Title Deed Does Not Create A Public Waqf: Madras High Court

The Court observed that where a partition deed expressly allows family members to retain surplus income for their own maintenance and fails to show an absolute divesting of ownership in favor of the Almighty, the property retains the character of a Private Trust (Waqf-alal-aulad).

​The Bench of Justice PB Balaji observed, “The word…has been conspicuously omitted. If the clause, as available in the 1910 partition deed including the word…is read along with the remaining part of the sentence, it is clear that the parties have retained the property for themselves in private and there is no semblance of any dedication or creation of any public waqf. At the risk of repetition, mere use of the words ' Waqf ' and 'Mosque' will not imply that there has been creation of a public waqf under the deed.”

Advocate Balan Haridas appeared for the Petitioner, while Advocate Haja Mohideen Gisthi appeared for the Respondents.

Facts of the Case

A Civil Revision Petition was filed under Article 227 of Constitution of India, to set aside the judgment passed by the Tamil Nadu Waqf Tribunal at Chennai and consequently hold that the notification issued by the Tamil Nadu Waqf Board/ 1^st respondent registering the Waqf properties as null and void and grant permanent injunction restraining the respondents, their men, servants and agents from any way interfering with the petitioner’s possession of the properties.

Contention of the Parties

It was the case of the Petitioner that the subject property is a private family Trust, belonging to the plaintiff’s family and at no point in time, there was any dedication of the subject property for any public waqf or public objects/charities. The Trust created a private family waqf, which is for the benefit of the family members only and without any jurisdiction. The Waqf Board notified the property as a public waqf and directed registration of the waqf under Section 36 of the Waqf Act, 1995.

On the contrary, the Tamil Nadu Waqf Board (1st Respondent) and the Siruvadi Mosque Waqf (2nd Respondent) contended that there is satisfactory evidence of dedication and the creation of a public waqf, including the appointment of a Mutawalli, in the 1910 partition deed. They also pointed to language in the 1951 partition deed (Ex.A2) stating properties should be managed as Mutawallis to perform charities and worship customary in the Mosque. They also argued that the Waqf Board has the power under the 1995 Act to register even old waqfs, and the lack of prior registration does not invalidate current proceedings.

The 3rd respondent supported the petitioners' position and said that the 2009 notification was defective because it failed to provide notice or an opportunity to other interested parties. It said that under Section 40 of the Act, an inquiry must be quasi-judicial; however, the Board passed a one-page order without discussing relevant facts, rendering it perverse and legally unsustainable.

Observations of the Court

The Court primarily discussed the question regarding the character of the property.

It was observed, “On a careful perusal of both the documents, it is seen that the charity that has been spelt out in the earliest partition deed dated 14.02.1910 and affirmed in 1951 partition deed is only performance of annual ceremonies for late Gulam Asathullah Sahib, the grandfather of the parties to the 1951 partition deed, from and out of the net income of the waqf properties. Therefore, I do not see any complete dedication of the properties of the family, for any public purposes or objects...Further, the surplus income, after meeting all expenses and charges, is only to be enjoyed by the party of the first part. Therefore, mere reference to a Mosque or a waqf being created, cannot be taken advantage of by the respondents to contend that there has been a dedication and creation of a public waqf.”

The Court said that there is no vesting of the property in the name of god in the first place. Therefore, if at all the waqf that is referred to in the deeds, can at best be a private waqf or a private trust, which ennures to the benefit of only the family members. In such a view of the matter, the Waqf Board has no jurisdiction to interfere with the management and administration of the properties belonging to the said private waqf/private trust, it added.

“In the case of the public waqf, the property, namely the corpus as well as usufruct, vests in God immediately, whereas in the case of private waqf or waqf-alal-aulad, the corpus of the property vests in God immediately, but the enjoyment of the usufruct is postponed till after the extinction of the wakif, his family and descendants. Even testing the facts of the present case in the light of the decision of this Court in G.M.A.Bhaimia’s case, I do not find that the 1910 partition deed created a public waqf. Therefore, this decision is of no avail”, the Court held.

While relying on the landmark judgment of the Apex Court in Syed Mohd Salie Labbai Vs. Mohd. Hanifa, (1976), the Court said that for a valid declaration of a waqf of public nature, the necessary conditions to be satisfied are that, (i) the founder must declare his intention to dedicate a property for the purpose of a mosque.

Further, it said that (ii)the founder must divest himself completely from the ownership of the property, which can be inferred from the fact that he had delivered possession to mutawalli or an imam of the mosque and even if there is no actual delivery of possession when members of Mahomedan public are permitted to offer prayers with azan and ikamath, the waqf becomes complete and irrevocable; that the founder must make some sort of a separate entrance to the mosque which may be used by the public to enter into the mosque.

“These requirements are also not only absent, but the order also does not discuss any of these requirements. In a summary fashion, the Board has come to a conclusion that the subject property, namely the property set out in schedule 'D' of 1910, Ex. A1 partition deed was property belonging to the public waqf. Therefore, a conjoint analysis of the ratio laid down in all the above cases and applying the same to the facts of the present case as well, there is absolutely no indication that there has been a dedication for public purposes or the properties being vested in God, the executants divesting themselves of all their interest and title in the schedule 'D' property”, the Court said.

The Court concluded that the impugned judgment is unreasoned and unsustainable. Accordingly, the Court allowed the revision petition and set aside the impugned judgment.

Cause Title: M. Sirajudeen Sayeed (Died) v. The Tamil Nadu Waqf Board & Anr. [Neutral Citation: 2026:MHC:841]

Appearances:

Petitioner: Advocates Abhimanyu Banerjee and Arghya Mullick

Respondents: Advocate Anand Keshari and Bikram Mitra

Click here to read/download the Judgment