1. WHO IS PERSON INTERESTED IN WAKF?
Section 3(k) of the Waqf Act, 1995 defines the term "person interested in wakf". It means any person who is entitled to receive any pecuniary or other benefits from the [waqf][1] and includes –
(i) any person who has a right to [offer prayer][2] or to perform any religious rite in a mosque, idgah, imambara, dargah, [khanqah, peerkhana and karbala][3], maqbara, graveyard or any other religious institution connected with the [waqf][4] or to participate in any religious or charitable institution under the [waqf][5];
(ii) the [waqif][6] and any descendant of the [waqif] and the mutawalli
Section 83 (2) of the Waqf Act, 1995 says that: "Any mutawalli, person interested in a waqf or any person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the tribunal for determination of any dispute, question or other matter relating to the waqf."
Section 70 of The Waqf Act, 1995 says that: "Any person interested in a waqf may make an application to the board supported by an affidavit to institute an enquiry relating to the administration of the waqf and if the board is satisfied that there are reasonable grounds for believing that the affairs of the waqf are being mismanaged, it can take such action thereon as it thinks fit"
CONCLUSION- After studying section 3(k), 83(2) & section 70 of the Waqf Act, 1995 a person who has right to offer namaz at Masjid is an Interested person to it and being an interested person he can be party to any dispute relating to the mosque as well as can institute an enquiry relating to the administration of waqf.
CASE LAWS
| S.no. | Name of case | Relevant paragraph |
| 1. | Sirajul Haq Khan v. Sunni Central Board of Wakf, AIR 1959 SC 198
JUSTICE T. L. VENKATARAMA AYYAR, JUSTICE P.B. GAJENDRAGADKAR & JUSTICE A.K. SARKAR | 16. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no doubt that the expression "any person interested in a waqf" must mean "any person interested in what is held to be a waqf" (Para 16) The legislature has definitely contemplated that the decision of the Commissioner of the Waqfs that a particular transaction is a waqf can be challenged by persons who do not accept the correctness of the said decision, and it is this class of persons who are obviously intended to be covered by the words "any person interested in a waqf" |
| 2. | Waqf Masjid through Sec. Mohd Ismail v. Waqf Tribunal U.P.
Neutral Citation No. - 2023:AHC-LKO:23390
JUSTICE MANISH MATHUR | 10. Evidently a person interested in a waqf is any person who is entitled to receive any pecuniary or other benefits from the waqf. The provision is inclusive of any person who has a right to offer prayer or perform any religious rite in a religious place as defined thereunder. 11. Once it is admitted that petitioner even without holding the post of Mutawalli or Secretary of the managing committee of the waqf has a right to offer prayers or to perform any religious rite in the religious institution of the waqf, the revisionist would come within definition of a person interested in the waqf as defined under Section 3(k) of the Act, 1995. 18. It is therefore evident that despite the fact that revisionist was removed from his post as Mutawalli/Secretary of the managing committee of waqf, the application filed by him under Section 83(2) of the Act, 1995 in his individual capacity was clearly maintainable not only as a person interested in a waqf but also as a person aggrieved by order dated 16th February, 2022 passed in terms of Section 32 of the Act. 19. A perusal of the impugned order reveals the fact that revisionist's application under Section 83(2) of the Act of 1995 has been dismissed as infructuous only on the ground that he has been removed from the post of Mutawalli/Secretary of the managing committee of waqf. The Tribunal has clearly not adverted to other provisions of Section 83(2) of the Act of 1995 pertaining to whether the suit was maintainable in individual capacity of revisionist either as a person aggrieved or as a person interested in the waqf. |
| 3. | Sk. Safik And Others v. The Board Of Wakfs C.O. No.200 of 2021
JUSTICE SABYASACHI BHATTACHARYYA | 83. The plaintiffs, being persons interested and worshippers of God in the Mosque, certainly fall within the category of 'beneficiaries', it is submitted. Moreover, the Tribunal, by partially decreeing the suit in favour of the plaintiffs, obviously gave a go-bye to the maintainability point for want of notice under Order I Rule 8 of the Code. Such factors render them 'interested persons' within the contemplation of Section 70 of the 1995 Act and conferring locus standi on the revisionist petitioners to prefer the instant application under Article 227 of the Constitution of India.
|
| 4. | Syed Mohd. Salie Labbai v. Mohd. Hanifa, (1976) 4 SCC 780
| 34. For instance in the case of a mosque if the Mahomedans of the village, town or the area are permitted to offer their prayers either on the vacant land or in a mosque built for the said purpose that amounts to the delivery of possession and divestment and after the prayers have been offered the dedication becomes complete. Unfortunately the courts which decided the previous litigation between the parties do not appear to be aware of the considerations mentioned above. 49. It is further contended that under the agreement, the plaintiffs clearly stipulated not to claim any right or interest in the mosque and, therefore, they cannot now be heard to say that the mosque was a wakf property. This argument appears to have found favour with the trial court. But in our opinion it is based on a serious misconception of the Mahomedan Law on the subject. Once there was a complete dedication of the mosque as a place of public worship any reservation or condition imposed by the owner would be deemed to be void and would have to be ignored. Moreover we do not construe the so-called stipulation by the plaintiffs' ancestors at the time of erecting the prayer hall as an assertion that the mosque was not a public wakf. Reading the statements made in the agreement as a whole what the plaintiffs' ancestors meant was that the mosque would be undoubtedly a public wakf meant for the purpose of public worship and that they would not interfere with the management of the same. This does not mean that if the founder's descendants indulged in mismanagement of the mosque the plaintiffs as members of the Mahomedan community could not take suitable action under the law against the defendants. This argument is, therefore, negatived. |
Conclusion- These case laws affirm the position of a musalli(person who prays in the mosque) with regard to the affairs of masjid.
2. IS MUTAWALLI THE OWNER OF MASJID/ WAKF PROPERTY?
Section 3(k) of the Waqf Act, 1995 defines the term "Mutawalli":
"mutawalli" means any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli of a waqf by virtue of any custom or who is a naib-mutawalli, khandim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any waqf or 1 waqf property:
Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office-bearer of such committee or corporation: Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed: Provided also that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government;
CASE LAWS
| S. no. | Name of Case | Relevant paragraph |
| 1. | Bibi Saddiqa Fatima v. Saiyed Mohd. Mahmood Hasan, AIR 1978 SC 1362
JUSTICE R.S. SARKARIA, JUSTICE N.L. UNTWALIA, JUSTICE P.S. KAILASAM | 16. A Mutawalli is like a Manager rather than a trustee (see p. 498). The Mutawalli, so far as the waqf property is concerned, has to see that the beneficiaries got the advantage of usufruct |
| 2. | Syeda Nazira Khatoon v. Syed Zahiruddin Ahmed Baghdadi, (2019) 9 SCC 522
Justice N. V. RAMANNA, Justice M. M. SHANTANAGOUDAR, and Justice AJAY RASTOGI | 15. Under Mohammedan Law, when a wakf is created, all rights in the property pass from the wakif or dedicator to the God. The mutawalli is only a manager of such property and does not have any rights in it. This role envisaged for a mutawalli finds clear exposition in Ahmed G.H. Ariff v. CWT [Ahmed G.H. Ariff v. CWT, (1969) 2 SCC 471] , where a three-Judge Bench of this Court observed as follows: (SCC p. 476, para 6)
"6. … the moment a wakf is created, all rights of property pass out of the Wakif and vest in the Almighty. Therefore, the Mutawalli has no right in the property belonging to the wakf. He is not a trustee in the technical sense, his position being merely that of a superintendent or a manager. A Mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange wakf property or any part thereof unless he is expressly empowered by the deed of wakf to do so." |
| 3. | Faqir Mohd. Shah v. Qazi Fasihuddin Ansari AIR 1956 SC 713
JUSTICE VIVIAN BOSE, JUSTICE SYED JAFAR IMAM & JUSTICE CHANDRASHEKHARA IYER | 66. Now it is evident that the space on which the pushtas and the minarets stood was part of the mosque property. The defendant has therefore built on a part of the mosque estate and as he has not demarcated those portions from the rest we are bound to treat them as accretions to the mosque estate.' It is true that a stranger to the trust could have encroached on the trust estate and would in course of time have acquired a title by adverse possession. But a Mutwalli cannot take up such a position. Both Gulab Shah and the defendant have described themselves as Mutwallis of the mosque, therefore, if they choose to build on part of the mosque property in such a way as to integrate the whole into one unit (that is to say, the parts of each room that stand on the mosque property and the remainder that does not so as to form one composite room) then we are bound to regard this as an accretion to the estate of which they were trustees; and they will be estopped from adopting any other attitude because no trustee can be allowed to set up a title adverse to the trust or be allowed to make a benefit out of the trust for his own personal ends.
A person in a fiduciary relationship or one, in whom the property was vested in trust, could not claim title by adverse possession over trust property. A Mutawalli, accordingly, on the said principle, could not claim title by adverse possession over waqf property. |
| 4. | Faqruddin v. Tajuddin, (2008) 8 SCC 12
JUSTICE S.B. SINHA & JUSTICE L.S. PANTA | 36. It is beyond any doubt or dispute that a mutawalli is the temporal head. He is the manager of the property. |
