There cannot be a Shia mosque or a Sunni mosque or, mosque reserved for a particular sect of Islam. A public mosque is always a dedication and it becomes the property of God; therefore, every Muslim irrespective of the sect to which he belongs, has a legal right to offer prayers and perform ceremonies in it without any restriction.
Thus, a Shafie or Maliki cannot be prevented from participating in the prayers in which majority of the Muslims are Hanafi even though the method of worship by a Shafie Muslim may differ from that of a Hanafi.
In a public mosque, there must be a lawful dedication of the property. No particular form is necessary for such dedication and this may be inferred from the fact that possession has been delivered to mutawalli or to the Imam.
Moreover, a dedication may be inferred also from the fact that members of public are allowed to offer prayers and that the mosque has an entrance which opens outside. Even if there is no actual delivery of possession but if the members of public offer their prayers, at irrevocable waqf for the mosque may be presumed.
In Mohd. S. Labbai v. Mohd. Hanifa, the Supreme Court observed that once the founder of a waqf dedicates the site for building a mosque and after the mosque is built and prayers are being offered, the site and the mosque becomes a waqf property and the ownership of the founder is completely extinguished.
A mosque is not a juristic person. Therefore, it can neither she nor be sued at its name. The concept of juristic personality (Skhsiyat-e-ietbari) was recognised by the Muslim jurists but they did not think it proper to attribute such personification to mosques. In Masjid Shahidganj v. Gurdwara Committee, the Privy Council opined that a mosque can neither she nor be sued at its name.
However, the Court had not given any clear verdict on the point whether mosque is a juristic person or not because this point was not directly involved in the case. According to Rajasthan High Court, mosques are not juristic persons.
As regards public-mosques in India, in M. Ismail Faruqui v. Union of India, the Supreme Court has made following observations:
(i) Under the Mohammedan Law applicable in India, title to a mosque can be lost by adverse possession. The view that once consecrated mosque, it remains always a place of worship as a mosque was not the Mohammedan law of India as approved by the Indian Courts.
(ii) A mosque is not an essential part of the practice of the religion of Islam and Namaz (prayer) by Muslims can be offered anywhere, even in open.
Although a mosque cannot be reserved exclusively for Muslims of a particular sect yet, a private waqf may be created for a particular family or for certain specified group of persons. A mosque within the house of a person having no outside entrances for the general public is a private mosque. Where a mosque is private, the public generally has no right of entry.
In Abdul Baqi v. Chaitanya, there was a mosque within the compound of a police lines. The mosque was managed by the inmates of that police lines and only those persons could enter the mosque who were allowed to enter the police lines.
Although, on some occasions Friday prayers were held in which the general public also participated, but the entry of public could be restricted by closing the gates. It was held by Allahabad High Court that since there was no mutawalli in the mosque and it was managed exclusively by the inmates of the police lines, the mosque was a private mosque.
The principles of law which govern a public mosque are applicable also to an Idgah. An Idgah is a place where collective prayers are performed on the occasions of Id-ul-Fitr and Id-uz-Zuha. In every Idgah there is a large compound having sufficient space for the congregational gathering.
Khankah is a place where the Islamic principles and its ways of life are preached by holy persons. A Khankah is generally established by Muslim saints. It may be housed in a Durgah or in a saint’s tomb.
There are also independent khankahs, not associated with any saint’s tomb. A Muslim saint or dervish may first start giving religious teachings at a certain place. Gradually that place may become a public place of spiritual learning.
When such a place is recognised and accepted by the society as an important place of religious learning, that place becomes a public place and a waqf may be constituted. According to Mulla, a Khankah comes into existence under the following circumstances.
A dervish, or a saint of a particular sanctity, settles in some locality. So long as his place has not attained sufficient importance, that place is called a Takia or Astana according to his position in public estimation.
Attracted by his previous life and teachings, disciples gather round him and a place is constructed for them and the humble Takia grows into a Khankah. After the death of such a saint, his grave at that place becomes shrine and an object of pilgrimage not only for his disciples but also for the people of distant parts, both Hindus and Mohammedans.
However, it may be noted that all the Khankahs need not be waqfs; a Khankah becomes waqf only by endowment (dedication) or by a long user.
Rules relating to waqf are applicable only to those Khankahs or Takia which are constituted as a waqf by any of the two methods. The head of a Khankah is called Sajjadanashin.
Sajjadanashin, as head of a Khankah, delivers religious teaching and is also the manager of that institution. Generally, the founder is the first Sajjadanashin and after his death his disciples or family members, come in the spiritual line of succession. In the absence of any such provision, the office devolves by customary law.
The status of a Sajjadanashin is unique in the sense that he has to perform religious as well as the secular functions in respect of the Khankah. Generally, the Sajjadanashin of a Khankah is also its mutawalli. But in certain cases these two offices may be held by two different persons. Where these offices are held by two different persons, a Sajfudanashin is regarded as; superior to, and is entitled to supervise the activities of, the mutawalli.
In respect of the; surplus income of a Khankah, the Sajjadanashin has greater powers than the mutawalli of hat institution. The whole surplus income of a Khankah, after payment of expenses, may be at the disposal of the Sajjadanashin. However, in certain cases it may be provided that members of the founder’s family are also entitled to get some share of the surplus income.
But, in the absence of any provision in the deed or any proved custom, the family members of the founder of a Khankah are not entitled to share in the surplus offerings and the whole of it goes to Sajjadanashin who may at his discretion and on personal considerations allow some of the offerings to be shared by some members of the founder’s family.
A Sajjadanashin is entitled to deal with the offerings of the shrine by virtue of his office and every person who holds this office in succession is entitled to have the same rights. Therefore, transfer of the right to receive offerings by any Sajjadanashin cannot bind his successors because they are equally free to receive the same by virtue of their office.
However a Mutawalli Sajjadanashin has no better authority in respect of the property of Khankah. He can take loans for carrying out its objects or can transfer the property only with the prior permission of a court of law.
A Sajjadanashin may be removed from his office by a court on the charge of misconduct and mismanagement. The office of Sajjadanashin is essentially a religious office; therefore, non-Muslim, female and a minor cannot hold this office.
An Imambara is a separate place in any private house where religious prayers and ceremonies are performed by persons residing in that house. An independent building may also be constructed as an Imambara where the ceremonies of Moharram and Chehlum may be performed by the owner (or family members) of that building. It is, therefore, a private place of worship and not open to public generally; the public may get entry only with the permission of its owner.
An Imambara may be a valid object of waqf. But, an Imambara is merely a private waqf it is neither a public waqf nor a trust.
However, on the basis of evidence it may be established that a particular Imambara is no longer a private property, and that it has now become a public waqf. Imambaras are generally constructed and owned by Shia Muslims.
Qabristan or a graveyard is any piece of land where dead bodies are buried. It may be public or private. In a private Qabristan only the family members, children and descendants of its founder may bury the dead bodies. Where a Qabristan is public, it is open for all the Muslims for burial. A public Qabristan is a waqf.
In almost all the towns in India we may find Muslim Qabristan and most of them are waqf. A graveyard is constituted as waqf either (a) through express dedication or, (b) by long user. Dedication may be proved either on the basis of the government records or from the testimony of witnesses. Where a land is being used as burial place for a long time, it becomes a waqf by its long user although there may not be any proof of an express dedication.
In Abdul Khader v. Mohammed Ali, a piece of land being used as burial ground was in the ownership of a Muslim organization. There was a dispute over the right of the former members of the organization to use the burial ground and the mosque adjacent to this land.
The Kerala High Court held that the land used as a burial ground or for the maintenance of a mosque since time immemorial becomes a waqf by user. Any individual or organization could be regarded only as its Mutawalli, not owner; its ownership is vested in God.
It may be noted that if it has been established that a certain piece of land is a public graveyard then, it always remains a public property and, as a waqf it continues to be so even though it has not been used as a burial ground since long.
Once a public graveyard is created, it continues to be so even though there remain no traces of the dead, not even the bones. Incidentally, it is to be noted that shifting of graves is not un-Islamic or contrary to Quran especially, when it is ordered to have been done for purpose of maintaining public order.