Every Grave Or Dargah Not Automatically Waqf Property; Waqf Board Can't Take Control Merely Because It Has Muslim Religious Use : Madras HC

Justice Govindarajan Thilakavathi observed that for declaring a property as Waqf property, it had to be surveyed and notified as per the procedure laid down in the Waqf Act. The court added that every grave or dargah could not be termed as Waqf property and the existence of an endowment was essential. The court added that the Waqf Board cannot assume jurisdiction merely because the property is a Muslim religious institution.

“Further, every grave or Dargah is not automatically Waqf property. Existence of a Muslim endowment is required. Courts often distinguish a private family tomb and a Saint shrine maintained as a public religious endowment..Thus, if a Dargah has never been surveyed, registered or notified as Waqf, the Waqf Board ordinarily cannot assume automatic control merely because it is a Muslim Religious Institution. Jurisdiction depends upon proof that the property is legally Waqf,” the court said.

The court was hearing an appeal filed by the Mutawalli of the Sarkar Syed Habibullah Sha Kahdari Arif Rabbani Hazarat Dargah to set aside the order of the Tamil Nadu Waqf Tribunal. The appellant claimed that the Dargah is 240 year old and his family had been taking care of it from their own earning. He submitted that while he was serving as the Mutawalli of the Dargah, the Tamil Nadu Waqf Board appointed another individual as the Mutawalli without any authority, declaring the property where Dargah was situated as waqf property.

The appellant argued that the property belonged to the Public Works Department and he had obtained an NOC from the department to take an electricity connection in his name. He argued that the action of the Board was without following guidelines and sought to set aside the same.

The Chairman, Chief Executive Officer and the Superintendent of the Waqf Biard submitted that the appellant was estopped from claiming to be the Mutawalli of the Dargah as he did not belong to Dargah family. It was submitted that the surrounding land where Dargah was situated was originally used as a burial ground and it was transferred to the Municipality and thereafter to the Public Works Department.

The Board argued that once the property was intended for religious and charitable purpose, it is a waqf property and comes under the supervisory control of the Tamil Nadu Waqf Board. The board argued that the appellant did not have any right to claim hereditary Mutawalliship.

The Executive Engineer of the Public Work Department argued that the land belonged to the department and the dargah could not be construed as waqf.

The private respondent who was appointed as Mutawalli by the Board argued that his family had control over the dargah and in 2-1-, they created a waqf in the name of Hazarat Syed Habibullah Sha Khaderi Trust under a registered Trust deed.

The court noted that as per the Muslim law, a waqf can be created primarily by dedication of any movable and immovable property by any person professing Islam religion for any purpose recognised by Muslim law as pious, religious or charitable purpose and in the absence of such dedication, it can be presumed to have come into existence by long use.

In the present case, the court noted that as per records, the property belonged to the Public Works Department which was leased to Bharat Scouts and Guides. The court also noted that the documents produced by the Board did not indicate the property in question to be specified in the “list of auqaf”, which was mandatorily required under the act.

Though the Board submitted that the survey of property was in progress, the court noted that as per the provisions of the Act, a survey was to be conducted before declaring the property as waqf property.

“Therefore, a Dargah may be declared as Waqf only if it satisfies the legal requirements under the Waqf Act, 1995. Mere religious use or existence of a tomb or shrine is not automatically sufficient. There must be permanent dedication of property by a Muslim for purposes recognised by Muslim Law as pious, religious, or charitable, which is not found in the present case,” the court said.

The court concluded that the Board had erred in declaring the property as waqf property. Noting that the Board had failed to establish that the land belonged to waqf property, the court set aside the order.

Counsel for Appellant: Ms. V. Anusha

Counsel for Respondent: Mr. C. Shankar, Mr. P. Gurunathan, Additional Government Pleader Mr. N. A. Nassir Hussain

Case Title: Sarkar Syed Habibullah Sha Kahdari Arif Rabbani Hazarat Dargha v Tamil Nadu Waqf Board and Others

Citation: 2026 LiveLaw (Mad) 248

Case No: C.M.A.No.2062 of 2025