What Happened
- The Jammu and Kashmir and Ladakh High Court declared two Kishtwar shrines — Ziarat Farid-ud-Din Sahib and Ziarat Assrar-ud-Din Sahib — and their attached properties as waqf, settling a decades-long dispute
- The petitioners, claiming hereditary custodianship, had relied on history books (including Tareekh Kishtwar), khilafatnamas, Ahadnamas (deeds of trust), and documents tracing land grants from historical rulers to their ancestors
- The court held that history books cannot be used to prove title to private property; historical works pertain to "matters of public history" under Section 57 of the Indian Evidence Act, which does not extend to resolving disputes over private property ownership
- The court applied the "waqf by user" doctrine — recognising waqf status based on long-standing, unbroken public religious use even without a formal written dedication deed
- The J&K Waqf Board hailed the ruling as a "historic decision" that strengthens waqf law in the Union Territory
- The case is titled Syed Lutfullah Shah & Anr. v. A.W. Kirpak Supdt. Engineer & Ors.
Static Topic Bridges
Waqf — Definition and the "Waqf by User" Doctrine
A waqf (also spelled wakf) is a permanent, irrevocable dedication of property by a Muslim person for purposes recognised by Islamic law as pious, religious, or charitable. Once created, the property ceases to be privately owned and is held in perpetuity for the specified purpose. In India, waqf is governed by the Waqf Act, 1995.
- Section 3(r) of the Waqf Act, 1995 defines "waqf" to include "a waqf by user" — recognising that long-standing, uninterrupted public religious use of property can constitute valid waqf even without a written dedication deed
- The "waqf by user" doctrine means that a mosque, shrine (ziarat/dargah), graveyard, or other religious site used by the community for generations acquires waqf status by virtue of that use alone, irrespective of how ownership was originally acquired
- The Waqf Amendment Act, 2025 significantly curtailed this doctrine: it deleted the sub-clause recognising waqf by user from Section 3(r) and barred invocation of this principle in property disputes involving government land
- The J&K HC ruling upheld the pre-2025 legal position on waqf by user, applying it to declare the Kishtwar shrines as waqf
Connection to this news: The court's application of the waqf by user doctrine is legally significant because the Waqf Amendment Act, 2025 has prospectively abolished this principle. Future cases — especially involving disputed shrines — may no longer benefit from the waqf by user rule, making this ruling one of the last applications of the old framework.
Section 57 of the Indian Evidence Act — Judicial Notice and Public History
Section 57 of the Indian Evidence Act, 1872 (now the Bharatiya Sakshya Adhiniyam, 2023) lists facts that courts shall take judicial notice of — meaning courts can accept these facts without formal proof. These include matters such as Acts of Parliament, territorial sovereignty, and matters of "public history, literature, science, or art."
- The J&K HC clarified that Section 57's allowance of history books as evidence extends only to "matters of public history" — broad historical events, rulers, dynasties, territories — and not to private legal questions such as ownership of land
- This distinction is critical: a history book may establish that a certain ruler once controlled a territory or granted patronage to a shrine, but it cannot establish a private property title or a hereditary custodianship right over specific land
- The court's reasoning aligns with settled evidentiary principles that require formal title documents (sale deeds, mutation records, revenue records) to establish private property rights
- Khilafatnamas and Ahadnamas — even if historically authentic — were found insufficient to override the established public religious use of the shrines as waqf
Connection to this news: The petitioners' central argument — that historical patronage from Kishtwar rulers created a hereditary property right in their ancestors — was rejected because historical texts establish context, not legal title. This ruling clarifies the evidentiary limits of historical documentation in property disputes involving religious sites.
Waqf Act, 1995 — Administration and the Waqf Board
The Waqf Act, 1995 provides for the administration of waqf properties in India through State Waqf Boards. Each State (and Union Territory) has a Waqf Board responsible for maintaining a register of waqf properties, approving leases, resolving disputes, and auditing waqf accounts.
- Disputes relating to waqf properties are adjudicated by Waqf Tribunals constituted under Section 83 of the Waqf Act; High Court jurisdiction is not automatically barred
- The Central Waqf Council, established under Section 9, advises the Central Government and coordinates among State Waqf Boards
- The Waqf Amendment Act, 2025 introduced significant changes: mandatory survey of all waqf properties within six months, removal of waqf by user, restriction on government land being classified as waqf, and expansion of the Central Waqf Council's oversight role
- The J&K Waqf Board operates under the J&K Waqf Act; following the revocation of Article 370 in 2019, J&K has been progressively brought under central legislative frameworks including, potentially, the Union's Waqf legislation
Connection to this news: The J&K HC ruling affirming waqf by user strengthens the Waqf Board's claim over the Kishtwar shrines under the pre-2025 legal framework. Given the 2025 Amendment's changes, similar disputes in future may need to rely on formal registration records rather than long usage, potentially altering the landscape of waqf property administration across India.
Hereditary Custodianship vs. Waqf Administration
Hereditary custodians (mutawallis in Islamic law) manage waqf properties on behalf of the beneficiaries and the waqf purpose. A mutawalli is not the owner of waqf property; they are merely managers. The petitioners in the Kishtwar case claimed that their ancestors were granted the right to manage these shrines by historical rulers, thereby asserting ownership — a claim the court rejected.
- Under Islamic law, a waqif (creator of waqf) may appoint a mutawalli to manage the property, but the appointment does not confer ownership
- Section 38 of the Waqf Act, 1995 empowers the Waqf Board to take over management of waqf property from a mutawalli if mismanaged or if the mutawalli disputes the waqf's validity
- The distinction between custodianship (management rights) and ownership (title rights) is fundamental; the Kishtwar petitioners conflated historical patronage with proprietary rights
- Courts have consistently held that long family involvement in shrine management creates no independent property rights against a valid waqf claim
Connection to this news: The court's ruling establishes that hereditary association with a shrine's management — even backed by historical documentation — cannot override the public religious character of a shrine that has been used as waqf for generations. The distinction between custodians and owners is a recurring theme in waqf litigation.
Key Facts & Data
- The Waqf Act, 1995 is one of India's largest property management legislations; Waqf Boards across India administer an estimated 8–9 lakh properties spanning approximately 9.4 lakh acres
- Kishtwar district is located in the Chenab Valley region of Jammu, known for its syncretic religious traditions and pilgrimage sites shared across communities
- The Waqf Amendment Act, 2025 is being challenged in the Supreme Court on grounds including violation of Articles 14, 25, 26, and 300A (right to property)
- Section 57 of the Indian Evidence Act, 1872 lists 13 categories of facts courts shall take judicial notice of; the Bharatiya Sakshya Adhiniyam, 2023 has largely retained this framework
- J&K's special status under Article 370 was revoked in August 2019; the region became two Union Territories (J&K with Legislature, Ladakh without)
- Dargahs and Ziarats in J&K and Ladakh are significant religious and cultural heritage sites; many are managed through a combination of Waqf Board oversight and local customary arrangements