The Madras High Court ruled that simply using the words “Waqf” or “Mosque” in a title deed is not enough to prove dedication of property as a public waqf. The Court held that if ownership and income remain with family members, the property will be treated as a private waqf or family trust.
The Madras High Court has ruled that simply using words like “Waqf” or “Mosque” in a title deed does not automatically prove that a property has been dedicated for public religious purposes. Setting aside a resolution passed by the Tamil Nadu Waqf Board, the Court held that where documents show that family members retained rights over income from the property and did not completely give up ownership in favor of the Almighty, the property must be treated as a private trust or waqf-alal-aulad rather than a public waqf.
The decision was delivered by Justice PB Balaji while hearing a Civil Revision Petition challenging an order of the Tamil Nadu Waqf Tribunal, Chennai. The petitioner sought to quash the notification issued by the Tamil Nadu Waqf Board registering certain properties as waqf properties and also sought a permanent injunction to prevent interference with the petitioner’s possession and management of the property.
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During the proceedings, the Court carefully examined the language used in the partition deeds relied upon by the parties, particularly the 1910 partition deed and a subsequent 1951 partition deed. While discussing the interpretation of these documents, the Court noted that the language of the deed did not indicate a clear dedication of the property for public religious purposes.
Justice 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.”
The case arose after the petitioner challenged the decision of the Tamil Nadu Waqf Board to register the property as a waqf under Section 36 of the Waqf Act, 1995. The petitioner argued that the property belonged to a private family trust, and that there had never been any dedication of the property for public religious purposes.
According to the petitioner, the property was intended only for the benefit of family members, and the Waqf Board had wrongly exercised jurisdiction by declaring it as a public waqf. The petitioner further argued that the registration and notification issued by the Waqf Board were legally invalid and should be declared void.
On the other hand, the Tamil Nadu Waqf Board and the Siruvadi Mosque Waqf defended the decision, claiming that the documents showed sufficient evidence of dedication of the property for religious purposes. They pointed out that the 1910 partition deed referred to the appointment of a Mutawalli, and the 1951 partition deed also contained references to management of the property by Mutawallis for performing charities and customary worship in the mosque.
The respondents also argued that under the Waqf Act, 1995, the Board has the authority to register even older waqfs, and the absence of earlier registration would not invalidate present proceedings.
Another respondent supported the petitioner’s claim and argued that the notification issued in 2009 was defective because the Board had not provided notice or an opportunity of hearing to other interested parties. It was contended that under Section 40 of the Waqf Act, the Board is required to conduct a quasi-judicial inquiry before declaring any property as waqf property. However, in this case, the Board had passed a brief order without discussing the relevant facts, making the decision arbitrary and legally unsustainable.
After examining the records, the High Court focused mainly on the nature and character of the property described in the deeds.
The Court noted that the earliest partition deed dated 14 February 1910, which was reaffirmed by the 1951 partition deed, only mentioned that certain income from the property should be used for performing annual ceremonies for a deceased family member, namely Gulam Asathullah Sahib, the grandfather of the parties.
Explaining this aspect, the Court 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 further pointed out that the deeds did not show that ownership of the property had been transferred or vested in the name of God. Because of this, the Court held that even if the term “waqf” appeared in the documents, it could only indicate a private waqf meant for family members, not a public religious dedication.
The Court clarified the distinction between public waqf and private waqf while analyzing the legal position. It explained that in the case of a public waqf, both the corpus and the benefits of the property immediately vest in God. However, in a private waqf (waqf-alal-aulad), although the corpus may vest in God, the enjoyment of the income is reserved for the founder’s family until their lineage ends.
Explaining this principle, the Court stated,
“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 High Court also relied on the landmark Supreme Court judgment in Syed Mohd Salie Labbai v. Mohd. Hanifa (1976), which laid down the essential requirements for creating a valid public waqf.
Referring to these legal principles, the Court observed that certain conditions must be satisfied to establish a public waqf. These include a clear declaration by the founder dedicating the property for a mosque, complete divesting of ownership by the founder, and circumstances showing that the property was made available for use by the Muslim public for prayers.
However, the Court found that none of these conditions were present in the present case.
Highlighting this deficiency, the Court noted,
“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.”
After examining the facts and legal principles, the Court concluded that the Waqf Board’s decision lacked proper reasoning and did not satisfy the legal requirements for declaring the property as a public waqf.
Accordingly, the High Court allowed the revision petition and set aside the judgment passed by the Waqf Tribunal.
Case Title:
M. Sirajudeen Sayeed (Died) v. The Tamil Nadu Waqf Board & Anr.
2026:MHC:841.
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