Waqf by user
The doctrine of waqf by user
The doctrine of waqf by user received judicial recognition in the decision of the Privy Council in The Court of Wards for the property of Makhdum Hassan Bakhsh v Ilahi Bakhsh.[3] The case concerned a public graveyard in Multan where a prominent Muslim saint was buried. The Court of Wards, acting for the property of Makhdum Bakhsh, proposed to sell certain property within the area of the graveyard on which no graves existed.
The Muslim residents of Multan sought an injunction restraining the proposed sale on the ground that the entire graveyard was inalienable waqf property due to its long use as a public graveyard of the Muslim community. Lord Macnaghten held:
“Their Lordships agree with the Chief Court in thinking that the land in suit forms part of a graveyard set apart for the Mussulman community, and that by user, if not by dedication, the land is Waqf.”
The Privy Council recognised that absent an express deed or act of dedication, a waqf can be recognised by long use.
The above decision was followed by the Oudh Chief Court in Abdul Ghafoor v Rahmat Ali.[4] The plaintiffs sought a declaration that the suit property was a public graveyard and the defendant was not entitled to construct any structure on it. The graveyard in question had been closed to the public by the Municipal Board for forty years. The defendant argued that the plaintiffs had not established the use of the graveyard till the suit in question, and that by non-use for forty years, it had lost its characteristic as a waqf.
In holding that the graveyard continued to be a public waqf, Justice Srivastava, speaking for the Oudh Chief Court held:
“4. … It is well settled that a wakf may, in the absence of direct evidence of dedication, be established by evidence of user. The land in suit was recorded at the time of the first regular settlement as a qaburistan but there is no direct evidence to establish the dedication. …
in light of the evidence of a number of witnesses examined on behalf of the plaintiffs, whose evidence he [the Subordinate Judge] has believed has come to the conclusion that the Mohamedan public used the land as their burial ground until the Municipal Board prohibited further interments in that land about 40 years ago.
Thus, in the present case, the finding about the land in suit being a public graveyard is based upon the evidence of long user… The rule which allows evidence of user to take the place of dedication is a rule of necessity. In the case of old wakf it is not possible to secure direct evidence of dedication and also it has been ruled that even in the absence of such direct evidence, a Court can hold a wakf to be established on evidence of long user…”
In some cases, courts were faced with a situation where property was used as waqf property since time immemorial and it was not practical to seek formal proof in the form of a deed of declaration. A specific document of dedication may be unavailable after a long lapse of time but the use of the property for public religious or charitable purpose may have continued since time immemorial.
Hence, despite the absence of an express deed of dedication, where the long use of the property as a site for public religious purpose is established by oral or documentary evidence, a court can recognise the existence of a waqf by user. The evidence of long use is treated as sufficient though there is no evidence of an express deed of dedication.
In Miru v Ram Gopal[5] the plaintiff was a zamindar of the property. One Rahim Baksh had occupied the property and built a makeshift or ‘katcha’ platform for offering prayers. As of 1904, prayers were being offered by local Muslim residents at this ‘katcha’ mosque. The Muslim residents, who were the defendants sought to build a permanent structure of a mosque at the site. This was resisted by the plaintiff, who sought an injunction for restraining construction of the new mosque.
The court observed that the khasra for the plot stated, ‘masjid’. Justice Bennet, speaking on a Division Bench of the Calcutta High Court, stated:
“…[In] The present case there is a finding that the plot has long been used for a mosque and that the use has been by the Muhammadan inhabitants of the locality and not merely by a particular tenant who allowed other people to come there for the purpose of prayer…
It has also been held by their Lordships of the Privy Council in the case of the Court of Wards v. Ilai Bakhsh (2) that a graveyard by user became wakf. We do not think that the provisions of the Easement Act or of any part of chapter IV in regard to license apply where a zamindar allows the Muhammadan population to use a building as a mosque. …
In such a case we consider that where there is a finding that a mosque exists, this necessarily implies that there is no longer any question of easement or use of license. Under Muhammadan law, the mosque is the property of God and not the property of the zamindar. Learned counsel for the plaintiff objected that there was no case of a transfer as is necessary for transfer of property, but we consider that consent of the zamindar to use of a building as a mosque is sufficient.”
The long use of the ‘katcha’ mosque led the court to recognise the existence of a public waqf. This was not a case involving a few isolated instances of worship, but the persistent use of the mosque by the resident Muslim community prior to 1904. This was demonstrated by documentary evidence showing the existence of a mosque at the plot.
Significantly, public worship at the mosque was permitted by the zamindar himself. In these circumstances, the Allahabad High Court held that the land was not the private property of the zamindar, but a public waqf by user. There are prescient words in the concurring opinion of Chief Justice Sulaiman in the case:
“But where a building has stood on a piece of land for a long time and the worship has been performed in that building, then it would be a matter of inference for the court which is the Judge of facts, as to whether the right has been exercised in that building for such a sufficiently long time as to justify the presumption that the building itself has been allowed to be consecrated for the purpose of such rights being performed…”
The question whether the use of a building or property for public religious worship has satisfied the legal requirements to be recognised as a public waqf is a matter of evidence. It is a ‘matter of inference’ for the court, having examined the evidence on record, to determine whether the use of the property has been for sufficiently long and consistent with the purported use to justify the recognition of a public waqf absent an express dedication.
Given the irrevocable, permanent and inalienable nature of a waqf, the evidentiary threshold for establishing a waqf by user is high, as it results in a radical change in the characteristics of ownership over the property.
The principle of a waqf by user has also found recognition in the jurisprudence of Supreme Court. The decision in the case of Faqir Mohamad Shah v Qazi Fasihuddin Ansari[6] concerned two distinct time periods: the period from circa 1681 to 1880 and the period from 1880 to 1956. As of 1880, there existed an ‘old mosque’ which the contesting parties admitted was waqf property.
Subsequent to 1880, the defendant, being the mutawalli of the ‘old mosque’, increased its size and built various structures on adjacent properties. Some were used by him in his personal capacity and some of these structures were used by the public for worship.
Cumulatively, these structures constituted the ‘new mosque’. The resident Sunni community, as plaintiffs, sought a declaration that both the ‘old mosque’ and the ‘new mosque’ were waqf properties. The defendant resisted these claims and argued that the ‘new mosque’ was his own personal property. Justice Vivian Bose, speaking for a three judge Bench of the Court, held:
“20. … It is evident that there was no proof of express dedication up to the year 1880 nor has any been produced since, therefore the only question is whether there is evidence of user and if so, user of what. … 70. After a careful survey of the evidence, we have reached the following conclusions:
(1) that the old mosque as it stood in 1880 is proved to be wakf property but that nothing beyond the building and the site on which it stood is shown to have been wakf at that date;
(2) that this property has been added to from time to time and the whole is now separately demarcated and that the additions and accretions form a composite and separate entity as shown in the plaintiffs‘ map. This is the area marked ABCD in that map;
(3) that this area is used by the public for religious purposes along with the old mosque and as the area has been made into a separately demarcated compact unit for a single purpose, namely collective and individual worship in the mosque, it must be regarded as one unit and be treated as such. The whole is accordingly now wakf;
…
(7) that the rest of the property in suit is not shown to be wakf or accretions to the wakf estate. It is separately demarcated and severable from the wakf portion ABGD and the shops to the west of the mosque;
…
73. … It is now admitted, and was so found in the 1880 litigation, that the old mosque was wakf property. It can be assumed that the rest was not wakf at that date and indeed that is also our conclusion on a review of the evidence. But much has happened since the 1880 litigation and there have been subsequent additions and accretions to the original estate so that now the whole of those additions and accretions form part and parcel of the original Waqf.”
Our jurisprudence recognises the principle of waqf by user even absent an express deed of dedication or declaration. Whether or not properties are waqf property by long use is a matter of evidence. The test is whether the property has been used for public religious worship by those professing the Islamic faith. The evidentiary threshold is high, in most cases requiring evidence of public worship at the property in question since time immemorial.
In Faqir Mohamad Shah, it was admitted that the old mosque was waqf property. The court subsequently examined the evidence on record to determine whether the structures forming the ‘new mosque’ built on property adjoining the ‘old mosque’ had also been used for public religious worship. It is on this basis that the Court held portions of the ‘new mosque’, in conjunction with the ‘old mosque’, to be a composite waqf property.
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