Comment upon the dictums that 'a mosque is a juristic person'. Do you agree with the view that where a deed of wakf purported to dedicate a building of a mosque for the exclusive use of persons belonging to a particular sect, such a reservation in India is void but the dedication is valid?

Question: Comment upon the dictums that a mosque is a juristic person. Do you agree with the view that where a deed of wakf purported to dedicate a building of a mosque for the exclusive use of persons belonging to a particular sect, such a reservation in India is void but the dedication is valid? [BJS 1980]

Find the question and answer of Muslim Law only on Legal Bites. [Comment upon the dictums that a mosque is a juristic person. Do you agree with the view that where a deed of wakf purported to dedicate a building of a mosque for the exclusive use of persons belonging to a particular sect, such a reservation in India is void but the dedication is valid?]

Answer

Muslims worship the God Almighty. It is difficult to pinpoint a tangible nucleus or a core element for a Mosque so as to clinch the legal personality. For Muslims, worship in accordance with the tenets is important. (It stands in contradistinction to dedication and worship in a temple. A temple is founded on the dedication of property, and consecration of an Idol to indwell and reign. These intentions of the founder stand constant and definite. It is not dependent upon the worshippers or their ardency.)

In 'Law of Endowments (Hindu and Mohammedan)' by A. Ghosh Quoted in: Mahmood Hussain v. State of UP, 2018 (2) JCLR 630 with respect to 'Mosque' as under:

"A Mosque does not belong to any particular sect; for once it is built and consecrated, any reservation for people of a particular locality or sect is void, and persons not belonging to that locality or sect are entitled to worship in it, whether or not any particular sect had contributed towards the site or the building of the Mosque and had been saying their prayers in it and every person who believes in the unity of God and the mission of Muhammad as a prophet is a Mussalman, to whatever sect he may belong, and that the Shias satisfy the test; and that there is no such thing as a Sunni or a Shia Mosque though the majority of the worshippers at any particular Mosque may belong to one or other sect either generally or at various times."

It is also added that in Mahomedan law there cannot be any private Mosque. When a place is dedicated to a Mosque, it becomes public property, it is the property of God. But, it is pointed out that there can be a right of exclusion in the case of Mosques belonging to a particular sect'.

The Privy Council, in Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1940 PC 116, neither supported nor rejected the view that a mosque is a legal person, though it observed that 'the argument that the land and buildings of a mosque are not property at all because they are a 'juristic person' involves a number of misconceptions'. The Privy Council specifically held as under:

"A gift can be made to a madrasah in like manner as to a masjid. The right of suit by the Mutawali or other manager or by any person entitled to a benefit (whether individually or as a member of the public or merely in common with certain other persons) seems hitherto to have been found sufficient for the purpose of maintaining Mahomedan endowments. At best the institution is but a caput mortum, and some human agency is always required to take delivery of property and to apply it to the intended purposes. Their Lordships, with all respect to the High Court of Lahore, must not be taken as deciding that a 'juristic personality' may be extended for any purpose to Muslim institutions generally or to mosques in particular. On this general question, they reserve their opinion."

In Shiromani Gurdwara Prabandhak Committee, Amritsar v. Som Nath Dass, AIR 2000 SC 1421, the Supreme Court had (earlier) observed that a mosque was a juristic person.

After analysing, in detail, the same decision Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee, Amritsar,(1940) 42 BOMLR 1100, the Supreme Court affirmed in M. Siddiq v. Mahant Suresh Das, (2020 1 SCC 1), that the Privy Council 'rejected' the contention that a mosque was a juristic person. The summary of the decision is observed as under:

• "The argument that the land and buildings of a mosque are not property at all because they are a 'juristic person' involves a number of misconceptions. It is wholly inconsistent with many decisions whereby a worshipper or the mutwalli has been permitted to maintain a suit to recover the land and buildings for the purposes of the wakf by ejectment of a trespasser…
  
• That there should be any supposed analogy between the position in law of a building dedicated as a place of prayer for Muslims and the individual deities of the Hindu religion is a matter of some surprise to their Lordships… the procedure in India takes account necessarily of the polytheistic and other features of the Hindu religion and recognizes certain doctrines of Hindu law as essential thereto, e.g. that an idol may be the owner of property…
• The decisions recognising a mosque as a 'juristic person' appear to be confined to the Punjab: 153 PR 1884; Shankar Das v. Said Ahmad, (1884) 153 PR 1884 59 PR 1914; Maula Bux v. Hafizuddin, (1926) 13 AIR Lah 372: AIR 1926 Lah 372.
  
• In none of those cases was a mosque party to the suit, and in none except perhaps the last is the fictitious personality attributed to the mosque as a matter of decision. But so far as they go these cases support the recognition as a fictitious person of a mosque as an institution – apparently hypostatizing an abstraction. This, as the learned Chief Justice in the present case has pointed out, is very different from conferring personality upon a building so as to deprive it of its character as immovable property." (Emphasis supplied)
  
• The Privy Council noted that if the mosque was a juristic person, this may mean that limitation does not apply to it and that 'it is not property but an owner of the property.' Underlying the line of reasoning adopted by the Privy Council is that the conferral of legal personality on an immovable property could lead to the property losing its character as immovable property."
  

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