Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Mortgage of Waqf Property - Main Points and Insights
Void Nature of Unauthorized Mortgage: Any sale, gift, exchange, or mortgage of waqf property without prior approval of the Waqf Board is inherently void ab initio. Sections 51 of the Waqf Act, 1995, explicitly prohibit such transactions unless sanctioned by the Board, and any breach renders the transaction illegal ["Abdul Mannan VS State of U. P. - Allahabad"], ["M. Satya Raju vs The State of Andhra Pradesh - Telangana"], ["M. Nazeer Pasha VS Joint Collector - Telangana"].
Mutawalli's Limited Powers: The mutawalli or managing authority does not possess the legal power to mortgage or transfer waqf property without court permission or specific authorization in the waqf deed. Mortgaging waqf property without such approval is considered void and contrary to the law ["Mahimjan Bibi VS Mir Rahim Ali - Calcutta"], ["State of Kerala vs T.K.I. Ahamed Sherief, S/O. T.K.A.Ibrahim - Kerala"], ["SRI.MOHAMMED WAZIR BAIG Vs STATE OF KARNATAKA - Karnataka"].
Legal Procedure and Court Involvement: If a mutawalli seeks to mortgage waqf property, prior permission must be obtained from a competent court, such as a District Judge, and not unilaterally. Mortgage transactions without court approval are invalid, and retrospective validation is only possible if sanctioned by the court ["Mahimjan Bibi VS Mir Rahim Ali - Calcutta"], ["Nimai Chand Addya VS Golam Hossein - Calcutta"].
Registration and Declaration of Waqf Property: Under Section 36 of the Waqf Act, all waqf properties must be registered with the Waqf Board. The registration process involves notice and hearing procedures to confirm the property's status as waqf. Properties not registered or declared as waqf are not legally recognized as such ["Tafazzul Hussain Ansari VS State of Uttarakhand - Uttarakhand"], ["Md. Abbas Khan VS State of Bihar - Patna"].
Encroachment and Removal: Encroachment on waqf land can be challenged through the Waqf Tribunal, which is the ultimate authority to decide on encroachment issues. The CEO’s satisfaction regarding encroachment is subject to Tribunal findings, and removal proceedings require due process ["Zubaida W/o Kadar Memon vs Khan Mubeen Ahmed Ali - Bombay"], ["Zubaida W/o Kadar Memon vs Khan Mubeen Ahmed Ali - Bombay"], ["Zubaida W/o Kadar Memon vs Khan Mubeen Ahmed Ali - Bombay"].
Mortgage and Encumbrance Restrictions: Mortgaging waqf property without Board approval or court sanction is illegal. The mutawalli cannot create encumbrances such as mortgages without proper authorization, and such transactions are considered void, impacting the utility and purpose of the waqf ["Abdul Mannan VS State of U. P. - Allahabad"], ["Seethimarakkarakath Alikoya Wakf vs Varikkodan Chekku Haji S/o Muhammed Haji - Kerala"], ["M. Nazeer Pasha VS Joint Collector - Telangana"].
Analysis and Conclusion
The overarching principle from the sources is that waqf properties are protected by law from unauthorized alienation, mortgage, or transfer. Any such dealings require prior sanction from the Waqf Board and/or court approval.
References:
Waqf properties, dedicated to pious, religious, or charitable purposes under Islamic law, hold a sacred status in many jurisdictions, particularly in India. A common question arises: Can a mortgage of waqf property be created? This issue touches on core principles of inalienability, mutawalli (manager) powers, and statutory restrictions under the Waqf Act, 1995. In this post, we delve into the legal framework, drawing from jurisprudential texts, court rulings, and modern statutes to provide clarity.
Whether you're a mutawalli seeking funds for maintenance or a lender evaluating risks, understanding these rules is crucial. Generally, waqf properties are protected from alienation, but exceptions exist under strict conditions. Let's break it down.
The fundamental principle is that waqf properties are inalienable. Once dedicated, they cannot be sold, inherited, gifted, or mortgaged freely. As established in key legal texts, a valid waqf property cannot be mortgaged or alienated unless specific conditions are met, such as necessity, prior permission of a competent authority (like the Cadi or Court), and compliance with religious or customary procedures Nemai Chand Adhya VS Mir Golam Hossein - 1909 0 Supreme(Cal) 189. Even with approval, such actions face strict limitations.
Under the Waqf Act, 1995, this is reinforced statutorily: Any sale, gift, exchange, mortgage or transfer of property referred to in sub-section (1) shall be void ab initio. Jindal Saw Limited VS State Of Rajasthan - 2021 Supreme(Raj) 127SHAKEELA KHATOON VS JANGLE WALI MASJID WAQF NO. 277 - 2017 Supreme(All) 546. This means unauthorized mortgages are invalid from the outset, regardless of the waqf deed or other laws.
Islamic jurisprudence, as interpreted by jurists like Muhammad, underscores permanence. When a valid waqf is made, its sale and transfer are not permitted Nemai Chand Adhya VS Mir Golam Hossein - 1909 0 Supreme(Cal) 189. Immovable waqf properties must remain exempt from all charges in the hands of the beneficiary Nemai Chand Adhya VS Mir Golam Hossein - 1909 0 Supreme(Cal) 189.
The mutawalli acts as a superintendent, not owner. Ownership vests in God or the public charity, so even a permitted mortgage keeps the property in waqf ownership—not transferring to the mortgagee Nemai Chand Adhya VS Mir Golam Hossein - 1909 0 Supreme(Cal) 189.
In practice, courts uphold this. For instance, in disputes over alleged waqf lands, mere inclusion in waqf lists doesn't validate dedication if revenue records show government ownership, preventing unauthorized encroachments or transfers Jindal Saw Limited VS State Of Rajasthan - 2021 Supreme(Raj) 127.
While generally prohibited, mortgages may be allowed under narrow circumstances:
The Waqf Act echoes this caution. Section 51 (pre-2013 amendment) declared transfers void ab initio, with development exceptions requiring board resolution and two-thirds majority Khoja Sunnat Jamat VS Board of Waqf, West Bengal - 2016 Supreme(Cal) 791. Post-amendment, similar safeguards apply, emphasizing board oversight.
In one case, a sale-deed of vested waqf property was deemed void without board sanction, with suits routed through Waqf Tribunal mechanisms SHAKEELA KHATOON VS JANGLE WALI MASJID WAQF NO. 277 - 2017 Supreme(All) 546.
Exceptions are tightly controlled:- Only if no alternatives like leasing exist Nemai Chand Adhya VS Mir Golam Hossein - 1909 0 Supreme(Cal) 189.- Essential prior/subsequent approval; otherwise invalid Nemai Chand Adhya VS Mir Golam Hossein - 1909 0 Supreme(Cal) 189.- Prohibited for personal or routine use Nemai Chand Adhya VS Mir Golam Hossein - 1909 0 Supreme(Cal) 189.
Courts scrutinize claims. In a Rajasthan mining dispute, an alleged mosque on government land wasn't valid waqf despite surveys, as no proper dedication proved—revenue records prevailed Jindal Saw Limited VS State Of Rajasthan - 2021 Supreme(Raj) 127. Similarly, waqf deeds must be authenticated, not assumed Satya Narain Sharma through his legal representative VS State of Rajasthan - 2018 Supreme(Raj) 1386.
Waqf Tribunals handle specific disputes under Sections 83-85, but not all matters; jurisdiction is enumerated (e.g., Sections 32, 52) Khoja Sunnat Jamat VS Board of Waqf, West Bengal - 2016 Supreme(Cal) 791. Unauthorized transfers, like in development deals handing 50% rights, violate Section 104A Khoja Sunnat Jamat VS Board of Waqf, West Bengal - 2016 Supreme(Cal) 791.
To navigate this:- Assess Necessity: Document urgent needs with evidence.- Seek Approvals: Obtain prior Cadi/Court/Waqf Board sanction.- Ratify if Urgent: File for retrospective validation.- Maintain Records: Keep deeds, permissions, and accounts meticulously.- Explore Alternatives: Prefer leasing over borrowing.
Lenders should verify approvals to avoid void transactions.
In summary, mortgage of waqf property is typically impermissible due to inalienability, with rare exceptions for proven necessity and authority approval. Statutory provisions like the Waqf Act, 1995, declare breaches void ab initio Jindal Saw Limited VS State Of Rajasthan - 2021 Supreme(Raj) 127, while jurisprudence prioritizes perpetuity Nemai Chand Adhya VS Mir Golam Hossein - 1909 0 Supreme(Cal) 189.
Key Takeaways:- Waqf remains waqf-owned even if mortgaged.- Unauthorized actions risk nullity.- Always prioritize board/court oversight.
This post provides general insights based on legal texts and judgments Nemai Chand Adhya VS Mir Golam Hossein - 1909 0 Supreme(Cal) 189Jindal Saw Limited VS State Of Rajasthan - 2021 Supreme(Raj) 127SHAKEELA KHATOON VS JANGLE WALI MASJID WAQF NO. 277 - 2017 Supreme(All) 546Khoja Sunnat Jamat VS Board of Waqf, West Bengal - 2016 Supreme(Cal) 791. It is not legal advice. Consult a qualified lawyer for your specific situation, as laws vary by jurisdiction and facts.
#WaqfLaw, #IslamicPropertyLaw, #WaqfMortgage
(1A) Any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab initio: Provided that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take ... dealing with the alienation of the Waqf property. ... property without the sanction of the Board, is de-hors of the Waqf Act, 1995. ... Alienation of waqf #....
Removal of encroachment from waqf property. ... Thereafter, Kuttirayin executed two mortgage deeds of the property in 1928 and 1939 and assigned leasehold rights to Aadiyeri Kanoth Madhavi in 1941. ... encroachment on any such waqf property, he may, make an application to the Tribunal for grant of order of eviction for removing such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the waqf....
Any sale, gift, exchange, mortgage or transfer of property referred to in sub-section (1) shall be void ab initio. ... Under Section 51 of the 1995 Act, notwithstanding anything contained in any other law for the time being in force or any wakf deed, no person shall sell, gift, exchange, mortgage or transfer any movable or immovable property which is a waqf property to any other person. ... Gazette as Waqf property since 1973 and also states the ORCs....
Such a person appointed has no power, either to sell or exchange or mortgage the waqf property, without the prior permission of the court, unless he has been empowered by the waqf deed expressly to do so.” 23. ... or administering any waqf or waqf property.” ... (any person, committee or corporation for the time being managing or administering any Waqf or Waqf property). 28. ... The petitioner had not complied the ....
It is a fact that Dargah Maroof peer is a Waqf institution and subject lands are endowed to the said Waqf institution and as per Section 51 of the Waqf Act, 1995, alienation of waqf property is totally prohibited and it alienating by way of gift, sale exchange or mortgage are void and void ab-initio. ... B/5795/2000 dated 19.02.2009 was after declaration of property as Waqf property. ... In Writ Appeal, this Court held that when ORC....
Abdul Jalil Faridi himself had sought the permission from the Waqf Board to mortgage the property to incorporate the property in the Waqf Register as well as seeking permission to raise residential flats over the Waqf property. 47. ... Abdul Jalil Faridi and addressed to the Waqf Board seeking permission of the Board for raising a loan from the LIC and for the said purpose permission to mortgage the said property a....
There also the previous Mutwalli had mortgaged the Waqf property and the mortgagee in execution of a decree in the suit upon the mortgage obtained possession of the Waqf property. ... It is beyond controversy that a Mutwalli has no power under the Muhammadan Law to mortgage or transfer the Waqf property or any portion of it without the leave of the Kazi or the Court. Such a transfer is under the law void: Shama Churan v. Abdul Kabeer 3 C.W.N. 158. ......
the waqf property. ... In the meanwhile, it appeared that the legal opinion was sought from the advocate who had an opined that the lessee of the waqf property had no right to mortgage the waqf property or seek permission ... would not be open to anyone to transfer any immovable property of the waqf by way of sale, gift, mortgage etc., in favour of any other person. ... and “No Objection Certificate” (“NOC”)....
The circumstances under which the waqf property was given in mortgage are not disputed. The properties included in the deed of waqf were zamindaris liable to be partitioned under the Estates' Partition Act. In 189-4, one of 'the co-sharers in the property commenced proceedings under that Act. ... The only question which remains for consideration is in respect of what sum the plaintiffs can legitimately claim to be repaid out of the income of the waqf property comprise....
The circumstances under which the waqf property was given in mortgage are not disputed. The properties included in the deed of waqf were zemindaries liable to be partitioned under the Estates Partition Act. In 1894, one of the co-sharers in the property commenced proceedings under that Act. ... If a mutawalli wishes to mortgage or pledge the waqf property as security for loan, it is not valid, because such a course would render the waqf#HL_....
(2) Any sale, gift, exchange, mortgage or transfer of property referred to in sub-section (1) shall be void ab initio." Prohibition of sale/ gift, exchange, mortgage or transfer of waqf property.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force or any waqf deed, no person shall sale, gift, exchange, mortgage or transfer any movable or immovable property which is a waqf property to any other person.
According to the petitioner, the property in question was originally owned by late Pandit Shri Ram Shanker S/o late Pandit Shri Sheodin Ji, R/o Chaukari Modi Khana, Jaipur. He created a Waqf of the said property by Waqf deed. The copy of the Hindi translation of the Wakf deed originally written in Urdu, has been placed on the record.
Provided further that nothing contained in this sub-section shall affect any acquisition of waqf properties for a public purpose under the Land Acquisition Act, 1894 (1 of 1894) or any other law relating to acquisition of land if such acquisition is made in consultation with the Board: Any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab initio: Provided that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take up the development of such property throu....
Prior to its amendment by Act 27 of 2013, section 51 read: "51. Any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab initio: Provided that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take up the development of such property through such agency and in such manner as the Board may determine and move a resolution containing recommendation of development of such waqf property, which shall be passed by a majority of two-thirds of the total membership of....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
