Essay on the Muslim Religious Institutions
The divestment may be inferred from the fact that he had delivered possession to the mutawalli or the imam of the mosque. Even if no actual delivery of possession takes place, the mere fact that members of public permitted to offer prayers with azan and ikmat will be enough, and a complete and irrevocable wakf for mosque will come into existence, (c) The founder must make a separate entrance (of any sort) to the mosque which is to be used by the public to enter it. Under the Ithana Ashari law, dedication is complete by a formal declaration coupled with the fact that the members of public are permitted to offer prayers.
Any adjuncts to a mosque also belong to the mosque. Thus, properties attached to a mosque or any additions or alteration (either structural or otherwise) made to it which are incidental to the offering of prayer, or for other religious purpose are part of the mosque and constitute one single unit so as to be the part of mosque.
Any money given for the repair of the mosque, or for its maintenance, or for its benefit, operates as a gift to the mosque and becomes part of the wakf of the mosque, but no separate wakf comes to offer existence.
Where a mosque has been in existence for a long time and the prayers’have been offered therein, it will be inferred that dedication for mosque is complete and the property no longer belongs to the owner.
In Miru v. Ramgopal, the Allahabad High Court observed that where there has been a mosque for a long time, and the terms of the original grant of the land cannot now be ascertained, there will be a fair presumption, that the site on which mosque stands is wakf property.
Public and Private Mosque and Right to Worship:
When a public mosque comes into existence, then Muslim belonging to any sect or school is entitled to offer prayer according to the ritual of his own sect or school. Under Muslim law there is nothing like a Shia mosque or Sunni mosque or a Hanafi mosque or a Shafii mosque.
It appears to be settled that when a mosque is dedicated to God, when it is open to Muslims to all sects and schools, and no particular sect of Muslim can claim it for its exclusive use. Any Muslim may use it for worship and for performing ceremonies of its own sect.
For instance, a Shafi may join a congregational worship in a congregation where majority of worshippers are Hanafis and he cannot be prevented from participating in the service because the Shafi is to pronounce amin in a loud voice, while the Hanafis pronounce it softly. But this does not give rise to a right of a new sect to pray as a separate congregation.
The right to pray in a mosque is a legal right and it can be enforced in a court of law. It is a settled law that even a single individual of Muslim community belonging to any sect is entitled to bring a suit in respect of his right to offer prayer in any public mosque to whatever sect it may belong to.
However, a distinction has to be drawn between religious faith and religious practices. The State protects the religious faith, but it need not protect all religious practices. Thus, no congregation in a mosque has an inherent right to use loudspeakers, and the Government has right to stop their use in a mosque.
Whether a particular mosque can be validly dedicated to any particular sect was doubted in Abus Subhan v. Koraban Ali Ameer Ali rightly said: “A mosque does not belong to any particular sect. It is open to all Mussulmans to go in and offer their adoration to the Almightly.
Suppose a Hanafi erects a mosque; the Shafts, the Malikis and the Hanbalis may pray there equally with the members of the Hanafi sect. Nor is there any object to a Shia going and praying there according to his own ritual. The Hanafi mutawalli cannot prevent any person, so long as he is the worshipper of God, and does not interrupt or disturb the worship of others”.
In Md. Wasi v. Bachchan Sahib, certain Muslims belonging to the Hanafi sect sought to prevent the Shia from offering their prayers in accordance with their rites and ceremonies in a mosque built by a Hanafi, and where the service was performed in accordance with the rites and ceremonies of the Hanafis.
Dismissing the suit, the court observed that a public mosque is dedicated for the purpose that any Muslim belonging to any sect may go there and say his prayers, and it cannot be reserved for any sect or school.
Even though the congregational prayers in a mosque are said in accordance with the rites and ceremonies of a particular sect, any Muslim belonging to any other sect can go there and say his prayers at the back of the congregation in the manner followed by him so long as he does not do any mala fide to disturb others.
However, no Muslim can claim to have the form of congregational prayers usually said in the mosque altered to suit him. Once a public mosque is dedicated, its objects or beneficiaries cannot be changed. A Muslim has a cause of action if he is deprived of his right to say prayers in a mosque.
The proposition that once a mosque is validly consecrated, it cannot be reserved for any sect or for the people of any locality does not lead to the conclusion that there cannot be a private mosque. A question came before the Allahabad High Court in an interesting manner.
A mosque was constructed by the Government for the inmates of police lines. The mosque was situated within the enclosed compound of the police lines, Azamgarh, and all the entrances leading to it passed through the police line area.
Even though the gates of the mosque were seldom closed, only those persons could enter it who were permitted to enter the police compound. Whenever the public authorities chose to impose restrictions on persons entering the compound of the police lines, they could prevent them from entering the mosque.
This implied, the court said, that only those persons could enter the mosque who were within the police lines. The affairs of the mosque were also conducted by the inmates of the police lines. The mosque had no mutawalli and its upkeep was not the responsibility of any outsider.
In this case, it was argued that the mosque had become a public mosque because the Friday prayers were allowed to be held there. In a well considered judgment, Katju J rejected the contention and held that even if the proper Friday prayers with azan and ikamat had been held in the mosque that alone could not change the character of the mosque from a private to a public mosque. It was held that the mosque was a private mosque.
Muslim law allows the creation of wakf for a private mosque. A mosque which has no entrance opening outside it is considered to be a private mosque.
Is Mosque a Juristic Person?
In Maula Bux v. Hafizuddin, the Lahore High Court held that a mosque is a juristic person. But in Masjid Shahid Gary case, the Privy Council held that a suit could not be brought by or against a mosque in its name, as it was not an artificial person in the eyes of law.
However, the question whether a mosque may be regarded as a “juristic person” was left open. In Md. Shafuddin v. Chaturbhuj, the Rajasthan High Court held that a mosque is not a juristic person.
Public and Private Graveyards:
Under Muslim law, dedication of property may be made for a qabristan or graveyard. If dedication is complete, a wakf will come into existence. Like Mosque, a graveyard may be: (i) a public graveyard, or (ii) private graveyard.
A graveyard is private when its use is confined to burial of corpses of the founder, his children, descendants and relatives. In such a qabristan, no person who does not belong to the family of the founder is permitted to bury his dead. A public graveyard is one open for the burial of any Muslim.
It can happen that by long usage a private burial place may become a public burial place. Thus, where members of public are permitted to be buried and the practice grows so that by instances adequate in character, number and extent, the presumption will be that the dedication is complete and the graveyard has been in existence for a long time, and it is admittedly a fact that it has been used by the public as qabristan, this by itself will be sufficient presumptive evidence to show that the land has been set apart for use as a burial ground, and by user, if not by dedication, the land is wakf.
In Md. S. Labhia v. Md. Hanifa, the Supreme Court observed: “Once a qabristan has been held to be a public graveyard then it vests in the public and constitutes a wakf, and it cannot be divested by non-user but will always continue to be so”. Similarly, if a burial ground is mentioned either in the revenue records or historical papers as a public graveyard, then it will be a conclusive proof of that fact. A graveyard once created continues to be so even when there remains no trace of dead, not even the bones.
A wakf for graveyard does not come into existence merely because the owner of the land had given licence for the burial of the dead, since a licence can be revoked at any time.
Shifting of Graves:
Can the graves be shifted? This question came before the Supreme Court in Abdul Jalil v. State of U.P. The Court observed that the shifting of graves was not un-Islamic or contrary to the Koran There are historical instances of shifting of graves.
Thus, the grave of Mumtaj Mahal was shifted from Burhanpur to Agra, and of Jahangir from Kashmir to Lahore. In this case certain graves were constant source of riots between the Shias and the Sunnis.
Tuljapurkar J. said that the fundamental rights conferred on all persons and every religious denomination under Articles 25 and 26 of the Constitution are not absolute but the exercise thereof must yield to maintenance of public order and thus the direction given by the court to shift the controversial graves is in the larger interest of society for the purpose of maintaining public order.
In India “dargah” means a shrine, i.e., a tomb of a Muslim saint. It is mostly used as a place of religious prayer. It appears that an endowment to a dargah is not mentioned among the religious and charitable objects, nor is it mentioned in connection with wakfs. In Persian, the term.”
Dargah” means “the way out, a court before a place or great houses: a large bench or a place for reclining upon, a mosque”. According to Yule’s Dictionary, “dargah’ means “the shrine of a saint, a place of religious resort and prayers”.
In India, it is an established meaning of dargah that it is a shrine or tomb of a saint; such a tomb is respectively referred to as the portal to the spiritual place of the saint. It generally includes a group of buildings of which the tomb is the nucleus.
The Prophet was against the erection of an elaborate mausoleum, or excessive outlay for a tomb. This is the reason why Mughal Emperor Aurangazeb chose a simple grave of earth even without bricks and mortar.
However, in India, a belief has grown that great religious reverence may be shown to the burial place of a saint, and, so much so that it has come to be established that dedication of property can be made to a dargah and a wakf can be constituted.
In Syed Shah Abdul v. Md. Lebboi, distinguishing between a dargah and a mosque, the court observed that a mehrab which points the direction towards which the faithful must turn and pray is an essential part of a mosque, while a dargah does not have a mehrab. In a mosque there is a call for prayer (azan), but there is no such thing in a dargah.
The term “dargah’ is used in two senses: (i) it may refer to the tomb itself (this is the strict view), or (ii) it may include the whole group of buildings of which the tomb is the nucleus. A dargah in the former sense is an institution in a very different sense from a mosque or khanqah as an institution.
Sometimes, institutions like a khanqah or a mosque spring up in the vicinity of a dargah and dedication of property is made for their maintenance and upkeep. In such a case question of administration arises. Sometimes a mutawalli may be appointed. But in a dargah there is usually a mujawar, i.e., a servant of the shrine, who also looks after its administration and management.
According to Wilson’s Glossary: “mujawarJ‘ is a servant or sweeper of a Muslim shrine. Richardson’s Persian and Arabic Dictionary define him as a person fixed to the shrine. His duties are to sit by the tomb, to read Fatawa to devotees, to invoke blessings for the pir for the devotees, to keep lights burning at the shrine, to put up incense, to place flowers on the tomb, to weigh children, to put ghilaf (covering) on the tomb and to act generally as intermediary between the devotees and the pir (which is opposed to basic tenets of Islam, but nonetheless has become a well established practice). Fyzee rightly says that the office of mujawar as an integral part of a dargah is not known to Muslim law. But it has come into existence by usage, and sometimes even a hereditary office of mujawar exists by custom.
Sometimes a dargah may also have a sajjadanashin (See below).
The famous dargah of Khawaja Muin-ud-din Chisti at Ajmer is governed now by a statute, the Dargah Khawaja Saheb Acts, 1955-1964. The Wakf Acts 1955-64 do not apply to it.
The word “takia” literally means a “resting place”. Among the Muslims a burial ground is sometimes called a takia. Sometimes a takia is only a place of assembly in a village and is devoid of all religious connotations. Sometimes it is a platform in a Muslim graveyard where prayers are offered.
Sometimes a fakir builds his hut near a takia in a graveyard and takes up his residence there. In course of time he starts imparting religious instructions there, and starts calling it a khanqah. May be, in course of time, the fakir is able to collect disciples at his residence and ultimately it develops into a public institution of some importance, and thus may become a real khanqah.
Ganpati Iyer observed that the place or abode of a fakir is called takia before he attains sufficient public importance and when the fakir attains sufficient public importance and a large number of disciples gather round him and lodgement is provided for them, then the place is called khanqah.
If the fakir, after his death, is buried in the khanqah it becomes a dargah. Iyer further observes that the takia itself is an institution recognized by law and a grant of endowment to it will be as valid, as wakf to a khanqah, or a dargah or a mosque.
These observations of Mr. Iyer were approved by the Lahore High Court in Manila Shah v. Gul Md. and Maula Shah v. Ghane Shah. The Privy Council said that a takia is recognized by law as a religious institution and endowment to it is as valid as wakf or as public trust for a religious purpose.
However, every takia is a not a wakf. A takia may become a wakf by long use or by an endowment.
A Khanqah is a religious institution analogous to Hindu math. Just as religious instructions Eire imparted in a math, so are in a khanqah. is a Muslim monastery where dewishes and other seekers after truth congregate for religious instructions and devotional exercises.
A khanqah is founded by a holyman in a place where esoetric teaching acquires a certain fame and sanctity. A khanqah may come into existence by long usage or by dedication. Then it becomes a wakf. A typical case of wakf by long usage is the Multan shrine of Mai Pak Daman.
The religious head of a khanqah is called sajjadanashin. Literally the word means the one who sits at the head of a prayer-carpet. In the words of Ameer Ali, ‘The sajjadanashin is not only a mutawalli but also a spiritual preceptor. He is the curator of the durgah where his ancestors lie buried, and in him is supposed to continue the spiritual line.
The dargahs are the tombs of celebrated dewishes, who, in their life time, were regarded as saints. Some of these men have established khanqahs where they lived, and their disciples congregated.
Many of them never rose to the importance of khanqah, and when they died and were buried; their mausoleums in course of time became shrines or dargahs. These dervishes professed esoteric doctrines and distinct system of initiation”.
Sometimes the offices of mutawalli and sajjadanashin are combined. The office of mutawalli is a secular office, while that of a sajjadanashin essentially a religious office. The sajjadanashin performs certain religious functions.
In some dargah and Khanqah the sajjadanashin is entitled to a share in the offerings made at the tomb. This is a right attached to the office and each successive incumbent is entitled to receive his share as long as he holds the office. An alienation of his share in the offerings made by a sajjadanashin cannot bind his successors.
In Altaf Hussain v. Ali Rasul, in respect of the tomb of Khwaja Moi-ud-din Chisti at Ajmer, the Privy Council held that both the sajjadanashin and khadims (servitors) were entitled to a share in the offerings made at the tomb. But the offering of qaber poshes belonged to the dargah and was its property, and as such must be kept by the sajjadanashin as trustee.
The founder of a khanqah is usually its first sajjadanashin and after his death the spiritual line is continued by a succession of sajjadanashins. In the absence of a scheme of succession in the wakf-nama, the succession to the office of sajjadanashin is regulated by custom.
One such custom is that an electoral body consisting of fakirs and murids elects a competent person (usually a son or nominee of the late sajjadanashin as sajjadanashin.
Fyzee says, “The special feature of the office of a sajjadanashin) is that the original founder has the right to nominate his successor, who in turn enjoys the same rights. Thus, a chain of preceptors (called silsila) comes into being, and the followers, known as murids, pay homage not only to the founder but also to the whole line, including the present link, called pir or murshid.
Theoretically the most illustrious disciple is to be installed as heir apparent, but according to custom, in the majority of cases the officer becomes hereditary. Sometimes by usage or custom a sajjadanashin has the power to nominate his successor.
In the absence of any instructions in the wakf-nama or custom, the court has power to appoint a sajjadanashin in appointing a sajjadanashin; the court should take into consideration the spiritual traditions of the khanqah.
The status of sajjadanashin is higher than that of mutawalli He is the head of the institution and as such exercises supervision over the mutawalli’s management. But when he is also a mutawalli he, in that capacity, cannot exercise any power better than that of a mutawalli.
The status of sajjadanashin is higher than that of mutawalli. He is the head of the institution and as such exercises supervision over the mutawalli’s management. But when he is also a mutawalli he, in that capacity, cannot exercise any power better than that of a mutawalli The court has power of removing a sajjadanashin for misconduct, and has also the power to separate the office of the sajjadanashin from that of the mutawalli.
The imambara is essentially a Shia religious institution. It is a private apartment set apart for the performance of certain ceremonies at Moharram and other occasions. It is a private apartment, and not a public worship, like a mosque, it is meant to be used by the owner and members of his family, though public may be admitted with the permission of the owner. It may be an object of a valid private wakf. It may be established by evidence that a particular imambara is a public wakf.
Wakfs – Hindu Endowments and English Trusts
The motive for creating a wakf must be religious. A secular motive will render the dedication a gift or a trust, but not a wakf. The dedication to a wakf must be permanent, if dedication is not permanent, then it may be sadaka (if gift is for pious purpose).
In a wakf, the corpus is tied in the ownership of God, and the usufruct is used for the benefit of mankind. A wakf has to be distinguished from the Hindu endowments and public charitable trusts. The fact of the matter is that a trust as it is known under English law was unknown to both the Hindu and Muslim systems of law.
The Hindu piety found expression in gifts to idols and images consecrated and installed in temples, in gifts to maths and dedications to other religious institutions and for pious and charitable purposes. In short, for all those purposes considered meritorious. When properties are dedicated to a temple, a math or any other religious or pious or chariable institution or purpose, the property vests in the idol which is considered to be a juristic person, when dedication is made to a temple.
In the math, which is regarded as a juristic person, when dedication is made to a math; and in the institution itself which is regarded as a juristic person when dedication is made for a charitable purpose such as for a school or hospital.
The shebait of the temple, the mahant of the math, or the manager of the institution, is not the person in whom the property vests; he is not even the trustee, although, in view of his duties and obligations that he is required to discharge, he is answerable like a trustee in the general sense for maladministration and mismanagement. Thus, it is obvious that Muslim wakfs are based on basically different concepts from those of the Hindu religious and charitable endowments.
The Muslim concept of wakf also differs fundamentally from the English trust. A trust in the English law sense need not be permanent. The properties of the trust vest in the trustees. In a trust a settlor himself may take the benefit, and the motive is generally secular.
A wakf differs from a trust in the following respects; a wakf is a permanent dedication of property in which the subject-matter of the wakf is permanently tied to the ownership of God. The corpus is immobilized, while the usufruct is used for the benefit of mankind. A trust need not be permanent. A trust can be terminated as stipulated in the trust deed, but a wakf is not revocable.
It cannot be terminated under any circumstances. In a trust, usually the motive is temporal, but in a wakf it is essentially religious. In a trust, the settlor himself is entitled to take the benefit, but under a wakf this cannot be done (only under the Hanafi law, a settlor may reserve a benefit for himself).
The trust properties vest in the trustee. On the other hand, the mutawalli is merely a manager or superintendent. In the words of Ameer Ali J: “As a result of the creation of a wakf, the right of the wakif and the ownership is transferred to the Alimighty.
The manager of the wakf is the mutawalli, the governor, superintendent, or curator. But in that capacity, he has no right in the property belonging to the wakf; the property is not vested in him and he is not a trustee in the legal sense”.
Although Muslim wakfs are different from trusts, it does not imply that a Muslim cannot create a trust of a public and religious character. A Muslim is as much free to create a public, religious, or charitable trust, as he is to create a wakf.