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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. Lakshminarayanan, J.
The Chairman, The Tamil Nadu Waqf Board and ors. – Petitioners
Versus
M.S.Muhammad Yahya (died) and ors. – Respondents
C.R.P.Nos.3285 and 3622 of 2014 and M.P.Nos.1 of 2014 (2 in Nos.)
Decided On : 08-09-2023
| Table of Content |
|---|
| 1. background on the establishment and management of a waqf. (Para 2 , 3 , 4 , 5) |
| 2. arguments regarding the nature and control of the waqf. (Para 6 , 7 , 9 , 10) |
| 3. jurisdictional issues concerning the waqf tribunal. (Para 12 , 13 , 14) |
| 4. definition and significance of waqf-alal-aulad. (Para 15 , 16 , 18) |
| 5. historical context and evolution of waqf law. (Para 19 , 20 , 21) |
| 6. comparison of waqf acts and their implications. (Para 25 , 30 , 31) |
| 7. analysis of key waqf deeds and associated wills. (Para 41 , 42 , 43) |
| 8. legal reasoning regarding the validity of the waqf deed. (Para 44 , 45 , 46) |
| 9. observations on the interpretation of charitable purposes. (Para 50 , 51 , 52) |
| 10. final judgment and orders related to the waqf. (Para 61 , 62) |
ORDER :
Both these revisions are preferred against the order and decreetal order passed in O.A.No.19 of 2011 dated 27.04.2014 by the Waqf Tribunal cum I Assistant City Civil Court at Chennai.
HISTORY OF THE CASE :
2. There existed one Muslim gentleman by name Janab K. Magdoom Muhammed Marakayar. He belonged to the Shafi school of Islam. However, during his life time, he embraced the Hanafi school and also declared that he belongs to the latter school. The Almighty has bestowed him with a lot of wealth. He did not think only about himself and expansion of more wealth but thought about giving it back to the society. He wrote three documents viz.,
(2) After the said document, he wrote a Will dated 03.04.1939.
(3) This was followed up by a Codicil dated 06.04.1943.
The Will and Codicil was put before this Court in its testamentary Jurisdiction. Probate was granted on 27.04.1944 in OP No.106 of 1944.
3. Jb.K.Magdoom Muhammed Marakayar was managing his properties as long as he was alive. On his death, one Jb. M.S.A.Muhammad Jaffer came to be the administrator of the property. He filed O.S.No.4285 of 1976 on the file of III Assistant Judge, City Civil Court, Madras. In the said suit, he claimed a right of management of the properties. In the said suit, Jb. M.S.Muhammad Yahya (the applicant in O.A.No.19 of 2011) was appointed as Receiver. This suit was tried along with another suit filed by Jb. M.S.Muhammad Yahya in O.S.No.8296 of 1988.
4. Pending the suits, M.S.A.Muhammed Jaffer and M.S.Muhammad Yahya entered into a compromise and a decree was passed on 02.03.2001. On account of the said compromise, an order was obtained that the properties are the family properties of Jb. K.Magdoom Muhammad Marakayar and that they could be sold and alienated. I have to point out here that to these suits, the Tamil Nadu Waqf Board, which was created under the WAKF ACT , 1954 and continued under Waqf Act, 1995, was not made a party. Pursuant to the decree, Mr.M.S.Muhammad Yahya continued as a Receiver of the property.
5. On 01.06.2007, Tamil Nadu Waqf Board through its Chief Executive Officer, issued notice to Mr. M.S.Muhammad Yahya calling upon him to register the properties with the Tamil Nadu Waqf Board. Mr. M.S.Muhammad Yahya took a stand that these are the family private properties and are not Waqfs for the purpose of registration. This was followed up with another notice issued by the Waqf Board with a similar demand on 09.04.2008. Mr.M.S.Muhammad Yahya gave similar reply. By an Order dated 23.11.2010, which was preceded by an inquiry, the Waqf Board took over direct management of the Waqf and consequentially of its properties. This was followed up with Gazette Notification in the Tamil Nadu Gazette dated 17.11.2010 in Part-VI-Section-3. On the publication being made, Jb. M.S. Muhammad Yahya, who claimed to be the Receiver, challenged the proceedings before this Court and thereafter, filed O.A.No.19 of 2011. The relief sought for in the proceedings are as follows:-
The court established that a Waqf must have a public or charitable dedication to be classified as composite; otherwise, it remains a private Waqf, confirming the hereditary nature of the Muthawalli o....
The Waqf Board must adhere to the rules of succession as per the waqf deed, reinforcing the principle of governance according to established customs and the intent of the waqif.
A Waqf cannot be created within an existing Waqf, and the Waqf Board lacks authority to create new Waqfs under the Waqf Act.
The court ruled that a property designated as waqf must demonstrate clear evidence of public dedication; otherwise, it remains private.
The irreversibility of wakf property transactions based on the Wakf Act's provisions prohibits alienation, upholding the integrity of religious and charitable purposes over contested claims.
A public waqf is only created upon a clear declaration, total divestment of ownership, and dedication for public charitable use. Mere references to religious terms in private family deeds are insuffi....
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