Click the Play button to listen to article

The Gujarat High Court has held that an inquiry to ascertain the original nature and character of a shrine does not violate the bar on the conversion of places of worship under Section 3 of the Places of Worship (Special Provisions) Act, 1991. [2026 LiveLaw (Guj) 246]

Accordingly, Justice J. C. Doshi upheld the orders passed by the Gujarat Waqf Board and Waqf Tribunal, which had directed alteration of the name of a historical Patan shrine from “Maulana Mehboob Dargah Masjid and Kabristan” to “Maulana Yakub Saheb Dargah and Dawoodi Bohra Kabrastan”. The Board had held the shrine belonged to the Dawoodi Bohra community, which was upheld by the high court. 

Justice Doshi noted that no documentary material was placed on record to establish that the holy shrine originally belonged to the Sunni-Hanafi-Barelvi sect, as claimed by the appellants.

“Both the Courts below, as well as this Court, have examined the documents relating to the registration of the holy shrine and the documents preceding its registration as a trust. None of those documents records that the holy shrine belonged to the Sunni-Hanafi-Barelvi sect… Thus, the assertion that the holy shrine originally belonged to the Sunni-Hanafi-Barelvi sect and was subsequently converted to the Shia sect is wholly unsupported by the record,” the Court observed.

Finding that the case was not one of conversion of an existing place of worship from one religious domination or sect to another, but was concerned with determination of the original nature and character of the property, the High Court held,

“In the present case, the Waqf Board conducted an inquiry to ascertain the religious identity and character of the Waqf property. Such an inquiry is not barred by the provisions of the Places of Worship (Special Provisions) Act.”

The High Court also observed that the appellants failed to establish that, as on August 15, 1947, the holy shrine was a Sunni-Hanafi-Barelvi place of worship.

The case pertains to a holy shrine located in Anavada village of Patan district. The appellants (Faruqui family members) claimed that the shrine was Maulana Mehbub Dargah Masjid and Kabrastan, built over the grave of Hazrat Maulana Mehbub, who as per the appellants died in 1377 A.D. (798 A.H.), in village Anavada and was buried in the land bearing Survey No. 935. 

They submitted that the shrine— followed by the Hanafi-Sunni-Barlevi creed—had been managed by their predecessors as Mujawars (caretakers) and later as Mutawallis, since its registration in 1953 under Bombay Public Trusts Act. In 2015, the Waqf Board had formally changed their status from Mujawars to Mutawallis based on a family resolution.

The respondents, on the other hand, claimed that the shrine belonged to Saint Maulana Yakub–a Wali (Saint) of the Dawoodi Bohra community and the first successor after Maulana Abdullah–and sought a change in the Waqf register to reflect the shrine as Maulana Yaqub Saheb Dargah and Dawoodi Bohra Kabrastan.

After multiple rounds of litigation, the Waqf Board ordered to change the name of the shrine and the same was upheld by the Waqf Tribunal in appeal. The Tribunal also set aside the 2015 Board order, which had appointed the appellants as Mutawallis. Aggrieved by this, the appellants approached the High Court.

Revenue records & ancient inscription

The High Court observed that during the Gaekwad State era, the land was recorded as “Maulana Yaqub Saheb Dargah, Dawoodi Bohra Kabrastan Pir Ni Jago” and it was subsequently changed to “Malansha Pir NI Jago” from 1934-35 onwards. However, the name “Maulana Mehbub Dargah Masjid and Kabrastan” appeared in the records only after its registration as a trust by Nanibai, in her capacity as Mujawar.

“Significantly, the revenue record shows that, during the Gaekwad State era, the holy shrine was recorded as 'Mohammad Yakub Saheb Dargah Dawoodi Vohra Kabrastan Pir Ni Jago', which was subsequently changed to 'Malan Shah Pir Ni Jago' without any reason being discernible from the record. Even after registration of the trust, the name of the holy shrine continued to be recorded as 'Malan Shah Pir Ni Jago'. However, subsequently, the name came to be changed to “Hazrat Maulana Mahbub Dargah, Masjid and Kabrastan Trust.” The Court noted.

The High Court further observed, “The trust was registered by Nanibi in her capacity as a 'Mujawar' (Caretaker), without producing any waqf deed or any document evidencing the creation of the waqf, naming the waqf, prescribing the mode of appointment of a successor trustee, or otherwise evidencing the origin or creation of the waqf. No other authentic or reliable documentary material has been placed on record to establish the basis for naming the waqf as 'Maulana Mehub Dargah Masjid and Kabrastan'.”

Justice Doshi also placed reliance on an ancient inscription affixed to the holy shrine, which recorded that “Maulana Yakub” was treated as “Mehboob” and “Mashuk” out of respect by the community.

“Upon close scrutiny of the said ancient inscription, the existence of which remains unrebutted, it clearly emerges that the holy shrine was associated with 'Maulana Yaqub' and not with 'Maulana Mehboob',” the Court held.

Succession to posts of Mujawar, Mutawalli

The Section 3(i) of the Waqf Act, 1995 defines a Mutawalli to be a person appointed either verbally or under deed or instrument by which a Waqf has been created, or a competent authority, and includes a person who is a mujawar, mutawalli of a waqf by custom, naib-mutawalli, khadim, sajjadanashin, amin or any other person appointed by a mutawalli to perform the duties of a mutawalli.

Noting that Nanibai was a mujawar, and upon her death, her daughter Badibi and other family members assumed the role of Mujawar and later of mutawalli, the Court said, “The members of the Faruqui family [appellants], by self-proclamation, claimed themselves to be Mutawallis/ trustees and started acting in that capacity.”

The High Court further observed that a mujawar— who is essentially a caretaker of a shrine and has no hereditary right over the office of mujawarship— cannot claim a right to prescribe the mode of succession, particularly in the absence of any deed or written instrument creating the Wakf and prescribing such succession.

The High Court further said that the Board in its 2015 order failed to follow the mode of succession recorded in the trust registration application, namely, that a person for the Masjid was to be appointed by the Muslims, and allowed changing the status of appellants from mujawar to mutawalli on the basis of a resolution passed within the Faruqui family, on the ground that the Change Report had not been contested.

“Thus, it appears that, Waqf Board in derogation of mode of succession stated in Trust/Waqf and without following settled provision of Waqf Act regarding appointment of 'Mutawalli' upon self proclaimed procedure conveniently adopted by Faruqi family endorsed change report,” the Court added.

The High Court said that the Board was required to follow the statutory mechanism prescribed under Section 63 of the Wakf Act for appointing a Mutawalli when there is no person who can be appointed under the terms of the deed of Waqf, or when the right of any person to act as Mutawalli is disputed.

In absence of compliance with the statutory provision, the Court accordingly held, “The claim of the Faruqui family to have been appointed as “Mutawalli”, trustees or managers, therefore, cannot be accepted as having any legal foundation.”

Fraud perpetrated upon the holy shrine

Justice Doshi said that the entire course of action taken by the appellants was to benefit their own family claims over Waqf property, and their conduct amounted to fraud “perpetrated upon the holy shrine.”

“The entire sequence, therefore, reflects a course of events which ultimately operated to the benefit of the Faruqui family,” the Court said, adding that it was especially significant considering the principles of Muslim law, which do not ordinarily favour hereditary succession to the office of Mujawar or Mutawalli.

Justice Doshi found that the conduct attributed to the Farooqui family appeared to treat, or attempt to treat, the holy shrine as “a personal or family property”.

“The present case is one where fraud has been seen visibly perpetrated. What initially commenced as a journey or an arrangement in the capacity of a Mujawar by the husband of Nanibi continued, to the exclusion of others, until the Faruqi family ultimately became the 'Mutawalli', thereby bypassing the statutory provisions and the prescribed mode of succession. The fraud is further evident from the registration of the holy shrine under the name 'Maulana Mehbub Dargah Masjid and Kabrastan', without there being any source, evidence, or documentary material to establish that the holy shrine was, in fact, known as or established under the said name,” the High Court said.

Oral hearing not mandatory

The High Court rejected the appellants' argument that they were not afforded an oral hearing and that the denial of such an opportunity amounted to a breach of the principles of natural justice.

Placing reliance on the Supreme Court judgement in State Bank of India v. Amit Iron Private Limited and Others, 2026 LiveLaw (SC)337, the High Court observed,

“Coming back to the case on hand, Sections 32, 40 and 41 of the Waqf Act, do not contemplate, in an inquiry of the nature undertaken by the Waqf Board, a mandatory oral or personal hearing in the manner of a full-fledged adjudicatory trial. The appellants, having participated in the proceedings and having pursued the litigation through the second round, cannot now contend that they were denied a sufficient or fair opportunity of hearing in the inquiry proceedings.”

The High Court consequently dismissed the appeal.

Case: KUTUBUDDIN FAKRUDDIN FARUQUI & ORS. VS. GUJARAT STATE WAQF BOARD & ORS.

R/FIRST APPEAL NO. 1002 of 2026 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2026 In R/FIRST APPEAL NO. 1002 of 2026

Citation: 2026 LiveLaw (Guj) 246

Click Here To Read/Download Order

Full View
Tags: