Syed Mohd Salie Labbai v Mohd Hanifa

Facts

• Land in a village had been acquired about two hundred years earlier by a Muslim saint. Later the predecessors of the respondents, who formed the major section of the village Muslims, obtained the then owner's permission to build a mosque on his raised platform, executing an agreement reciting that after completion they would claim no right except to worship and light lamps, that they would maintain the mosque, that the construction was purely for worship, and that there would be a separate doorway and windows so as to constitute the mosque a separate entity.
• The mosque was built, adjuncts were added over time as gifts to the mosque, and adjacent vacant land was used as a burial ground for the village Muslims. When the appellants built shops on part of the graveyard, the respondents sued under S.92 of the Code of Civil Procedure, with the Advocate General's sanction, in a representative capacity, claiming that the burial ground in two parts, the Dargah over the saint's tomb, and the mosque with its adjuncts were all public waqf, and seeking removal of the appellants as de facto managers and a scheme.

Issue

1. Whether the mosque, the Dargah and the burial ground were public waqf, in the absence of an express deed of dedication, and what must be proved to establish a dedication of a public nature.

Held

• All three items were held to be public waqf.
• On the mosque, the Court laid down the four conditions set out above, drawn from the Hedaya, the Radd ul Muhtar, the Fatawa Kazi Khan, the Fatawa Alamgiri, Ameer Ali, Tyabji, Saksena and Mulla. It held that where prayers have once been offered it is unnecessary to prove an express dedication, and that prayer by even one person with azan and ikamat suffices to constitute a public mosque, since a mosque belongs to the Deity and one person can act as proxy for the establishment of the right of the Creator and the public. Dedication may also be inferred from long user as waqf property.
• On the graveyard, if members of the public are permitted to be buried and the practice grows so as to be proved by instances adequate in character, number and extent, the presumption is that dedication is complete and the graveyard has become a public graveyard. Once a kabarstan is a public graveyard, non user does not change its character.
• The Court also held that a mosque cannot be consecrated for only a particular class or locality, any such reservation being void, and that the site of a masjid never reverts to the original owner or his heirs.

Ratio Decidendi

The four conditions are best understood as an evidential scheme for establishing a dedication where no instrument exists. Each condition corresponds to a way of proving an intention that was never written down: the declaration may be presumed from conduct; the divesting may be inferred from delivery of possession; the separation and way of access are physical facts showing that the property was set apart; and delivery is proved by the use to which the property is put, which for a mosque means public prayer. Why prayer with azan and ikamat is treated as decisive. The Court's reasoning is that a mosque belongs to the Deity, so the question is not whether a human donee accepted, but whether the property has been brought into the service of the purpose. Public pray