The Delhi High Court has ruled that no legality is “attached” to a fatwa in respect of ownership in an immovable property and the same is not binding on any third party (Mohd Ashraf vs Abdul Wahid).
A Single Judge Bench of Justice Prathiba M Singh said,
“The Court in seisin of a dispute would have to satisfy itself as to the legality and validity of the claim to ownership and only then pass an order in accordance with 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.”
Relying on the Supreme Court’s decision in Vishwa Lochan Madan v. UOI & Others, the Court reiterated that a fatwa does not satisfy the requirements of a legally binding document.
The Court was dealing with a case concerning possession of property and recovery of damage.
As per the petitioners, they were the owners of the suit property by way of six registered sale deeds and a fatwa. All petitioners traced back the title of the suit property to one Mst. Musharraf Begum, the original owner.
The Respondent was the tenant of Mst. Musharraf Begum.
While the petitioners demanded arrears of rent and vacation of premises, the Respondent contended that the original owner had made a declaration transferring ownership in favour of the tenants.
This led to a suit before the trial court.
After issues were framed and an application under Order XII Rule 6 CPC (Judgment on admissions) was filed by the petitioners, the matter was fixed for orders/clarifications in October 2014.
Finally, the Order XII Rule 6 CPC application was dismissed by the trial court in February 2016 and the petitioners moved the High Court.
The Court opined that since the matter was repeatedly adjourned for orders over a period spanning more than one and a half years, it was contrary to the timelines prescribed by the Supreme Court and the High Court.
The order would be liable to be set aside on this very ground alone, the Court said.
It nonetheless proceeded to examine if rights in an immovable property could be legally and validly derived based on a fatwa issued by a maulvi.
The petitioners argued that a fatwa was not per se illegal and was a method of bringing about amicable settlement between the parties.
It was submitted that in the present case, after the original owner, her husband and her sister passed away, the fatwa was issued in favour of the nephew of the original owner.
The Respondent inter alia contended that the fatwa had to be proved in accordance with law and could not be decreed under Order XII Rule 6 CPC.
Stating that it was abundantly clear that a fatwa could not be imposed on a third party, the Court stated that the status of the fatwa on the petitioners’ ownership had to be adjudicated by the trial court.
Adding that the Transfer of Property Act, 1882 governed ownership of immovable property, the Court opined that,
“While inheritance can undoubtedly be decided based on 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, based on 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.”
Recognizing rights of ownership based on a fatwa which has not been examined or sanctioned by a court of law would be contrary to the Constitutional scheme, the Court held as it stated said that no legality or validity was attached to a fatwa.
Since these were issues to be examined by the trial court, the Court held that the trial court had rightly decided to not decree the suit under Order XII Rule 6 CPC.
The Court directed that trial of the suit be concluded within six months and judgment be pronounced on or before July 31, 2021.
Advocates Arpit Bhargava, Hina Bhargava appeared for Petitioners.
Advocate Rajiv Bajaj appeared for Respondent.