Fatwa is not legally binding on parties: Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 14th December 2020 C.R.P. 89 2016 MOHD ASHRAF & ORS. ..... Petitioners Through: Mr. Arpit Bhargava and Ms. Hina Bhargava Advocates. M: 9871316969) ABDUL WAHID SIDDIQUE CORAM: JUSTICE PRATHIBA M. SINGH Through: Mr. Rajiv Bajaj Advocate. ..... Respondent Prathiba M. Singh J.CM APPL. 3822 2019 This hearing has been done by video conferencing. 2. This application has been 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. Application is disposed of. CM APPL. 54975 2018 3. This application has been 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. Application is disposed of. C.R.P. 89 2016 & CM APPLs. 54974 2018 3821 2019 4. Two short issues arise in this petition: i. Firstly whether the judgment of the Trial Court dismissing the application under Order XII Rule 6 CPC after nearly one and a C.R.P. 89 2016 Page 1 of 20 half years of arguments being heard and the order being reserved is sustainable ii. 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 third party 5. A suit for possession and recovery of damages was filed by three Plaintiffs i.e. Mr. Mohd Ashraf Ms. Sadia Saad Yusuf and Mr. Javed Iqbal who are the Petitioners in the present petition against Mr. Abdul Wahid Siddique i.e. the Respondent Defendant is that they are the owners of the suit property being property bearing no 1525 27 Begum Manzil Pataudi House Darya Ganj New Delhi 110002 and they trace back their title to one Mst. Musharraf Begum through six registered sale deeds and a fatwa which are as under: i. Fatwa dated 6th November 1971 issued by Mufti Musharraf Ahmed Jamia Fatehpuri Delhi which as per the Plaintiff’s vested rights in Mr. Mohammad Salim Hussain. ii. Sale Deed dated 18th February 1999 executed by Mr. Asmat Saleem son of Late Mr. K.M. Salim Hussain in favour of Mr. Arshad Zarabi and Mr. Zahid Hussain. iii. Sale Deed dated 26th June 2002 executed by Mr. Arshad Zarabi and 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 dated 7th February 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. C.R.P. 89 2016 Page 2 of 20 v. Sale Deed dated 7th February 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 vi. Sale Deed dated 7th February 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 is the fatwa dated 6th November Further the case of the Plaintiffs is that the 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. The Defendant’s defence is that the original owner had made a declaration transferring ownership in favour of the Tenants. The Defendant’s case in the written statement is as follows: i. That if the rent is Rs.375 per month then the provisions of the Delhi Rent Control Act 1958 would apply. ii. 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. iii. The Plaintiff does not disclose the chain of documents by which the C.R.P. 89 2016 Page 3 of 20 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. iv. 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. v. 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. vi. The intention of the Plaintiff is to grab the suit property on the basis of forged and fabricated documents. vii. 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. The following issues were framed in the suit on 23rd October 2013: “1. Whether the plaintiff is entitled to decree for recovery of possession of suit property 2. Whether the plaintiff is entitled to decree for recovery of damages at the rate of Rs.25 000 p.m. from the date of filing of the suit till the possession is handed over OPP 3. Whether the plaintiff is entitled to decree of defendant from creating third party interest in the suit property OPP 4. Whether the defendant has become the owner of the suit property by way of adverse possession OPD C.R.P. 89 2016 Page 4 of 20 5. Relief.” 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. 10. Mr. Bhargava ld. counsel for the Plaintiffs submits on the first issue that going by the judgment of this Court in Deepti Khera v. Siddharth Khera CM1637 2019 decided on 18th November 2019] which relied on the judgment by the Supreme Court in Anil Rai v. State of Bihar 7 SCC 318 the order was passed very belatedly. On this very ground it is argued that the impugned order is liable to be set aside. 11. On this issue Mr. Bajaj ld. counsel for the Defendant does not dispute the chronology of events leading to the pronouncement of the judgment. 12. A perusal of the order sheet of the Trial Court shows that the orders passed on various dates after hearing in the Order XII Rule 6 CPC application are as under: Date of Order 7th August 2014 Contents of Order Reply to the application under Order 12 R 6 read with Section 151 CPC filed on behalf of the defendant. Copy C.R.P. 89 2016 Page 5 of 20 27th September 2014 15th October 2014 26th November 2014 10th December 2014 29th January 2015 16th February 2015 supplied. Taken on record. Put up for hearing arguments on pending application on Arguments on application u o 12 R 6 read with Section 151 CPC heard. Put up for order clarifications Defendant is at liberty to file case law in his support. any It is reported that defendant has filed some case law in support of his contention. In view of this put up for order clarification if any on Put up for purpose fixed on Lawyers are on strike today. Put up for order clarifications If any on 29.01.2015. Put up for order at 04.00 pm. Matter called up againwhich has been reiterated by this Court in Deepti Khera 15. The broad guidelines to be followed by the Trial Court once arguments are heard and orders are reserved is set out in Deepti Khera as “9. While this Court is conscious of the fact that there are pressures on the Trial Courts non pronouncement of orders for more than a year cannot be held to be justified. It has been observed in several matters that trial courts keep matters FOR ORDERS’ together and sometimes orders are not pronounced for even 2 3 years. Thereafter the judicial officer is transferred or posted in some other jurisdiction and the matter has to be reargued. Such a practice puts enormous burden on the system and on litigants lawyers. The usual practice ought to be to pronounce orders for months C.R.P. 89 2016 Page 9 of 20 within the time schedule laid down in the CPC as also the various judgements of the Supreme Court. In civil cases maximum period of two months can be taken for pronouncing orders unless there are exceptional cases or there are very complex issues that are involved. 10. Accordingly in respect of pronouncement of orders the following directions are issued: When arguments are heard the order sheet ought to reflect that the matter is part heard Upon conclusion of arguments the order sheet ought to clearly reflect that the arguments have been heard and the matter is reserved for orders. If the court is comfortable in giving a specific date for pronouncing orders specific date ought to be given Orders ought to be pronounced in terms of the judgment of the Supreme Court in Anil RaiThe order ought to specify the date when orders were reserved and the date of pronouncement of the this Court. The problem “2. Judicial discipline requires promptness in delivery of judgments an aspect repeatedly emphasized by compounded where the result is known but not the reasons. This deprives any aggrieved party of the opportunity to seek further judicial redressal in the next tier of judicial scrutiny. 3. A Constitution Bench of this Court as far back as in the year 1983 in the State of Punjab v. Jagdev Singh Talwandi 1 SCC 596 drew the 16. Recently the Supreme Court in Balaji Baliram Mupade and Anr. v. State of Maharashtra and Ors. has also observed as under: C.R.P. 89 2016 Page 10 of 20 attention of the High Courts to the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts that of pronouncing the final orders without a reasoned judgment. … 4. Further much later but still almost two decades ago this Court in Anil Rai v. State of Bihar 7 SCC 318 deemed it appropriate to provide some the pronouncement of judgments expecting them to be followed by all concerned under the mandate of this Court. It is not necessary to reproduce the directions except to state that normally the judgment is expected within two months of the conclusion of the arguments and on expiry of three months any of the parties can file an application in the High Court with prayer for early judgment. If for any reason no judgment is pronounced for six months any of the parties is entitled to move an application before the then Chief Justice of the High Court with a prayer to re assign the case before another Bench for fresh 5. The aforementioned principle has been forcefully restated by this Court on several occasions including in Zahira Habibulla H. Sheikh v. State of Gujarat5 SCC 353 : AIR 2004 SC 3467 paras Haryana7 SCC 96 paras 5 10] and most Chhattisgarh 3 SCC 330 : AIR 2017 SC 11. We must note with regret that the counsel extended through various judicial pronouncements including the one referred to aforesaid appear to have been ignored more importantly where oral orders are pronounced. In case of such orders it is expected that they are either dictated in the Court 80 82] Mangat Ram v. State Singh v. State in Ajay C.R.P. 89 2016 Page 11 of 20 or at least must follow immediately thereafter to facilitate any aggrieved party to seek redressal from the higher Court. The delay in delivery of judgments has been observed to be a violation of Article 21 of the Constitution of India in Anil Rai s caseand as stated aforesaid the problem gets aggravated when the operative portion is made available early and the reasons follow much later.” Thus the Supreme Court has also recently reiterated the decision in Anil Rai supra). The Trial Court has to pronounce the order in terms of the timelines laid down in Anil Rai which has been reiterated by this Court in Deepti Khera7 SCC 707. A fatwa in fact binds as a whole and is a method of bringing about amicable settlement between the parties. A fatwa per se is not illegal and the original owner her husband and her sister having passed away issuance of the fatwa in favour of the nephew of the original owner cannot be held to be illegal. He further relies C.R.P. 89 2016 Page 12 of 20 upon a judgment of this Court in Hari Gopal Manu v. B.S. Ojha to argue that once the Defendant accepts that he is a tenant he cannot challenge the rights of the owner. He also relies upon the judgment of this Court in Mahinder Pal Singh v. Ali Hussein Khan F+ 1684 2009 decided on 1st December 2011] to argue that an oral declaration cannot be relied upon by the Defendant in this matter. 20. On the other hand ld. counsel for the Defendant submits that the original sale deed dated 18th February 1999 which is part of the chain of documents leading to the Plaintiffs’ sale deed itself records that Mst. Musharraf Begum had passed away on 20th July 1971 and her husband had also died. Her sister passed away on 3rd August 1971 leaving behind Khawaja Mohammad Salim Husain who had allegedly succeeded to the estate of Mst. Musharraf Begum on the basis of a fatwa. The manner in which the fatwa describes him as the nephew of Mst. Musharaf Begum is also not clear. A fatwa needs to be proved in accordance with law. In any event the Plaintiffs’ case is not one for being decreed under Order XII Rule 6 CPC. 21. Heard counsels for the parties. The legality and validity of a fatwa issued by maulvis has been the subject matter of the judgment of the Supreme Court in Vishwa Lochan Madan v. UOI & Others. 7 SCC 707. The Supreme Court was concerned with the question as to whether a fatwa is binding and if so in what manner. The Supreme Court was unequivocal in its pronouncement that a fatwa does not satisfy the requirements of a legally binding document and they do not trace their origin to validly made law. The observations of the Supreme Court are as under: C.R.P. 89 2016 Page 13 of 20 “13. As it is well settled the adjudication by a legal authority sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority provided by law itself. The power to adjudicate must flow from a validly made law. A person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law are to ensue. These are the fundamentals of any legal judicial system. In our opinion the decisions of Dar ul Qaza or the fatwa do not satisfy any of these requirements. Dar ul Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore the opinion or the fatwa issued by Dar ul Qaza or for that matter anybody is not adjudication of dispute by an authority under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his fatwa on anyone by any coercive method. In fact whatever may be the status of fatwa during Mogul or British Rule it has no place in independent India under our constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Dar ul Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it their act would be illegal. Therefore the grievance of the petitioner that Dar ul Qazas and Nizam e Qaza are running a parallel judicial system is misconceived. 14. As observed earlier the fatwa has no legal Notwithstanding that it is an admitted position that C.R.P. 89 2016 Page 14 of 20 fatwas have been issued and are being issued. The All India Muslim Personal Law Board feels the “necessity of establishment of a network of judicial system throughout the country and Muslims should be made aware that they should get their disputes decided by the Qazis”. According to the All India Muslim Personal Law Board “this establishment may not have the police powers but shall have the book of Allah in hand and sunnat of the Rasool and all decisions should be according to the book and the sunnat. This will bring the Muslims to the Muslim courts. They will get justice”. 15. The object of establishment of such a court may be laudable but we have no doubt in our mind that it has no legal status. It is bereft of any legal pedigree and has no sanction in laws of the land. They are not part of the corpus juris of the State. A fatwa is an opinion only an expert is expected to give. It is not a decree nor binding on the court or the State or the individual. It is not sanctioned under our constitutional scheme. But this does not mean that existence of Dar ul Qaza or for that matter practice of issuing fatwas are themselves illegal. It is informal justice delivery system with an objective of bringing about amicable settlement between the parties. It is within the discretion of the persons concerned either to accept ignore or reject it. However as the fatwa gets strength from the religion it causes serious psychological impact on the person intending not to abide by that. As projected by Respondent 10 “Godfearing Muslims obey the fatwas”. In the words of Respondent 10 “it is for the persons parties who obtain fatwa to abide by it or not”. He however emphasises that “the persons who are Godfearing and believe that they are answerable to the Almighty and have to face the consequences of their doings deeds such are the persons who submit to the fatwa”. Imrana s case is C.R.P. 89 2016 Page 15 of 20 an eye opener in this context. Though she became the victim of lust of her father in law her marriage was declared unlawful and the innocent husband was restrained from keeping physical relationship with her. In this way a declaratory decree for dissolution of marriage and decree for perpetual injunction were passed. Though neither the wife nor the husband had approached for any opinion an opinion was sought for and given at the instance of a journalist a total stranger. In this way the victim has been punished. A country governed by rule of law cannot fathom it.” 22. A perusal of the above judgment makes it abundantly clear 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. 23. Moreover the 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. C.R.P. 89 2016 Page 16 of 20 24. 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. As held in Masoor Ahmed v. State NCT of Delhi) and Ors. 2008 DRJ 137 as per Section 2 of the Muslim Personal LawApplication Act 1937 issues relating to intestate succession special property of females including personal property marriage dissolution of marriage maintenance dower guardianship gifts trusts and trust properties and wakfs would be governed by the Muslim Personal LawBalaji Baliram Mupade supra) and Deepti Kheraare adhered to in respect of pronouncement of orders. PRATHIBA M. SINGH DECEMBER 14 2020 corrected and released on 19th December 2020. C.R.P. 89 2016 Page 20 of 20 

Summary: Fatwa regarding the transfer and possession of immovable property was cited by one of the parties regarding ownership and possession of a property. The Single judge bench of the Delhi High Court was of the opinion that there can be no legality or validity attached to a ‘Fatwa’ and they cannot be legally binding on the parties. This ration was laid down by J. P.M. Singh in the case of Mohd. Ashraf &amp; Ors. Vs. Abdul Wahid Siddique, [C.R.P. 89/2016]. The brief facts of the case are that a suit for possession and ownership of a property located in the Daryaganj area was filed. The Petitioner alleged that he was the owner of the said property and provided evidence of the same by placing six registered sale deeds that traced back the title to one Mst. Musharraf Begum and a fatwa on record. The Defendants in this case opposed the claim made by the Petitioners and stated that the original owner who is the lady in this case made a declaration that after her death the tenants would be the owners of the property. Further, the Defendant was of the opinion that they have been living at the said property for almost 32 years i.e. since 1971 and no claim of possession has been made in these years hence he was the owner of the property by way of adverse possession. The lower court had dismissed this application and so the appeal was preferred by the Petitioner. The High Court observed the facts of the case and on the issue of fatwa the court cited the Supreme Court’s verdict in the case of Vishwa Lochan Madan Vs. UOI &amp; Ors. and stated that “fatwa does not satisfy the requirements of a legally binding document and that they do not trace their origin to validly made law.” The court further stated that, “Imposition of a fatwa would itself be illegal and that. 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.” Lastly, on the issue of Constitutionality of considering Fatwa legally binding the court stated that, “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.” The Court in this case instructed the lower court to conclude the suit within six months on the basis of the other documentary evidence provided by the parties.