A single Judge Bench consisting of Justice Pratibha M Singh of Delhi High Court, in the case of Mohd Ashraf & Ors v. Abdul Wahid Siddique (14.12.2020), held that there cannot be any legality or validity attached to a fatwa, especially in respect of ownership of immovable property, and such a declaration would not be binding on a third party. The Court answered the issue in an appeal against a lower court order which had dismissed an application pertaining to ownership of property in Delhi’s Daryaganj area.
Brief Facts
A suit for possession and recovery of damages was filed by three Plaintiffs, who were the Petitioners in the present petition, against Mr. Abdul Wahid Siddique i.e., the Respondent/Defendant.
[CM APPL. 3822/2019] Application was filed by the Petitioners seeking condonation of 25 days’ delay in re-filing the application for stay of the trial court proceedings till the disposal of the present petition. Delay is condoned.
[CM APPL. 54975/2018] This application was filed by the Petitioners for exemption from filing certified copies of the annexures and fair typed copies of dim annexures. Allowed, subject to all just exceptions.
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[C.R.P. 89/2016 & CM APPLs. 54974/2018, 3821/2019] Two issues arose in this petition:
Firstly, whether Trial Court judgment dismissing the application u/O XII Rule 6 CPC, after nearly one & a half years of arguments being heard and the order being reserved, is sustainable?
Whether rights in an immovable property can be legally and validly derived on the basis of a fatwa issued by a maulvi and its binding nature on a 3rd party?
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Case of the Petitioner
The case of the Plaintiff’s/Petitioners was that they were owners of the suit property, and they trace back their title to one Mst. Musharraf Begum through six registered sale deeds and a fatwa.
i. Fatwa (06.11.1971) issued by Mufti Musharraf Ahmed, which, as per Plaintiff’s, vested rights in Mr. Mohammad Salim Hussain.
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ii. Sale Deed (18.02.99) executed by Mr. Asmat Saleem, in favour of Mr. Arshad Zarabi & Mr. Zahid Hussain
iii. Sale Deed (26.06.2002) executed by Mr. Arshad Zarabi & Mr. Zahid Hussain in favour of Mr. Mohd. Ashraf by which Mr. Mohd. Ashraf is stated to have acquired 75% of the suit property
iv. Sale Deed (07.02.2011) executed by Mr.Zahid Hussain in favour of Mr. Javed Iqbal by which Mr. Javed Iqbal is stated to have acquired 25% share in the suit property
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v. Sale Deed dated (07.02.2011) executed by Mr. Mohd. Ashraf favour of Mr. Javed Iqbal by which Mr. Javed Iqbal is stated to have acquired 9% share in the suit property i.e a total of 34% share in the suit property
vi. Sale Deed (07.02.2011) executed by Mr. Mohd. Ashraf in favour of Ms. Sadia Saad Yusuf, by which Ms. Sadia Saad Yusuf is stated to have acquired 33% share in the suit property.
Thus, the foundation of all the Sale Deeds was the fatwa dated 6th November, 1971.
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Further, Plaintiffs’ case was that Defendant was a tenant of Mst. Musharraf Begum and has no right in the suit property. Purchase of the suit property was made by the Plaintiffs by registered sale deed in the year 2002 and 2011, pursuant to which notice demanding arrears of rent and vacation of premises was issued in May, 2011 to the Defendant. The Defendant challenged the ownership of the Plaintiffs on various grounds leading to the filing of the suit for possession.
Case of the Defendant
The Defendant’s defence was that the original owner had made a declaration, transferring ownership in favour of the Tenants. The Defendant’s case in the written statement was as follows:
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That if the rent is Rs.375/- per month then the provisions of the Delhi Rent Control Act, 1958 would apply.
The Plaintiff’s own case is that the Defendant is in possession since 32 years or more and no rent has been paid by the Defendant over this entire period. Thus, the Defendant is the owner of the suit property by means of adverse possession.
The Plaintiff does not disclose the chain of documents by which the Plaintiff became the exclusive owner of the suit property and if the said chain is disclosed it would be clear that the ownership is claimed on the basis of forged and fabricated documents.
No person has demanded the rent from the Defendant since 1971. There is no rent agreement or rent receipt in favour of the Plaintiff or even the original owner Mst. Mussharaf Begum.
Since Mst. Mussharaf Begum had no children and no close relatives during her lifetime she had declared that the tenants/occupants of the property would become owners upon her death.
The intention of the Plaintiff is to grab the suit property on the basis of forged and fabricated documents.
That an unlawful attempt was made to disconnect the electricity supply to the premises which was restored by an order of the ld. Civil Judge in Suit No. 387/2011.”
Reasoning and Decision of the Court
After issues were framed, an application under Order XII Rule 6 CPC was filed by the Plaintiffs. Arguments on the application were heard on 27th September 2014 and the matter was fixed for orders/clarifications on 15th October, 2014. Thereafter, on several dates, the order was not passed. Further, without any direction from the Court, on two occasions the Defendant filed case law. Finally, the Plaintiffs moved an application under Order XX Rule 1 CPC seeking pronouncement of judgment and finally, the impugned order dismissing the Order XII Rule 6 CPC application was passed on 12th February, 2016.
After having gone through Supreme Court decisions, the Court observed that:
“a fatwa cannot be imposed on a third party. A fatwa can be completely ignored and no one needs to challenge the same before any Court of law. Imposition of a fatwa would itself be illegal. The effect of this judgment on the alleged fatwa, which is the basis of the Plaintiffs claim to ownership, would therefore have to be adjudicated by the Trial Court.”
It was further observed that:
“manner in which ownership of immovable property can either be vested or transferred is governed by the Transfer of Property Act, 1882 and the provisions of the Registration Act, 1908 have to be complied with. While inheritance can undoubtedly be decided on the basis of personal law, in the present case, there has been no adjudication as to who has inherited the suit property which belongs to Mst. Mussharaf Begum and in what share. A Court of law would have to adjudicate this issue after considering the documents and evidence before it. A mere unilateral fatwa allegedly issued in favour of one Mohd. Salim Hussain, on the basis of which his son purportedly transferred the rights to the Plaintiffs, cannot be a valid and legal transfer in the eyes of law - that too, for decreeing a suit under Order XII Rule 6 CPC.”
Amicable dispute settlement by Fatwa & whether binding on 3rd party
“Recognizing such rights based on a fatwa which has not been examined or sanctioned by a Court of law would be contrary to the Constitutional scheme. While a fatwa can be the basis of an amicable settlement of disputes between parties who submit to such a settlement process, binding the same on a third party would be contrary to law. (…) There cannot be any legality or validity attached to a fatwa, especially in respect of ownership in an immovable property. Such a declaration would also not be binding on any third party.”
Observations with respect to credibility/ non- credibility of the fatwa
“Firstly, the genuinity of the above document has not been established by the Plaintiffs. Whether, in fact, such a fatwa was issued or not is not clear. This fatwa forms the foundation of the other Sale Deeds as per which the Plaintiffs have acquired ownership rights. Unless and until, this foundational document is proved in accordance with law, the Plaintiffs cannot claim rights in the suit property.
Moreover, even as per the above document, after the demise of Mst. Mussharaf Begum, she had left behind various other heirs including two nieces and an uncle, apart from her nephew – Mohd. Salim Hussain. The fatwa itself states that after the other heirs’ rights are given, then the nephew – Mohd. Salim Hussain would become the owner of the suit property. The question as to whether rights in the property have been given to the other heirs or not is not clear. Moreover, during oral submissions, ld. counsel for the Defendant has also submitted that the question as to whether Mohd. Salim Hussain is himself a nephew or not is in doubt. Thus, all the foundational facts in this case are yet to be established.”
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Issues were such that they could not be decided in O XII R 6 CPC Application
“The Defendant has in the written statement denied the chain of documents and has alleged that the documents are forged and fabricated. The Defendant has also set up a defense that a declaration was made by Mst. Mussharaf Begum that after her demise the occupants of the various portions of the suit property would be the owners. Whether such a declaration was made or not is not clear. The defense of adverse possession has also been taken and would require to be adjudicated. The Defendant is in physical possession of the property and a decree would result in the Defendant being dispossessed. This court is of the opinion that the issues are such that they cannot be decided in an Order XII Rule 6 CPC application.”
Held
Court held that the present suit was not liable to be decreed under Order XII Rule 6 CPC. There was no admission by the Defendant in the written statement, documents or otherwise. In fact, there was a clear denial by the Defendant of the right of the Plaintiffs. Even if the Defendant was stated to have admitted Mst. Mussharaf Begum’s ownership of the property, the same would not lead to a decree being passed as much as the Plaintiffs would have to validly and legally trace back their title to Mst. Mussharaf Begum. The other defences of the Defendant, including adverse possession, would also have to be adjudicated.
The Court expressed enormous dissatisfaction over the manner in which passing of orders under Order XII Rule 6 CPC was delayed by the Trial Court after hearing arguments. However, on merits, the dismissal of the application under Order XII Rule 6 CPC would not be liable to be interfered with.
“The Plaintiffs were stated to have filed their evidence by way of affidavit. In view thereof, considering the fact that the suit is more than nine years old, it is directed that trial of the suit be concluded within six months and judgment be pronounced on or before 31st July, 2021.
The petition is disposed of in the above terms. All pending applications are also disposed of.”
Case Details
Name: Mohd Ashraf & Ors vs Abdul Wahid Siddique
Case No.: C.R.P. 89/2016
Bench: Justice Pratibha M Singh
Date of Decision: December 14, 2020
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