Shweta Tambade
The Delhi High Court stated that there cannot be any legitimacy attached to a fatwa, especially in respect of ownership of immovable property, and such a declaration would not be binding on a third force.
Justice Prathiba M Singh’s ruled on an appeal against a lower court order rejecting an application related to the ownership of a property in Daryaganj.
The petitioners claimed in the High Court that they owned the property that they had purchased from the ascendants of a person who was allegedly given rights in the property by way of a fatwa issued in 1971.
The defendant, a tenant of the property, opposed the plea, who claimed that the initial owner – a lady – had declared that after her death the tenants/occupants would own the property.
The tenant claimed that since he was living there for 32 years without paying rent, he was the owner of the property through adverse possession.
Advocate Arpit Bhargava, representing the plaintiff, had argued that the nephew was the owner of the property by way of the fatwa after the lady died.
Bhargava argued before the High Court that,
“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 also contended before the high court that the instance the defendant accepted that he is a tenant, he cannot challenge the rights of the owner.
The court said that the Supreme Court in 2014 had held that a fatwa does not satisfy the requirements of a legally binding document, and they do not trace their origin to validly made law.
While referring to the Supreme Court judgement, Justice Singh said a reading of the SC verdict “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 court further said, “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.”
It further said that there cannot be any legitimacy attached to a fatwa, especially regarding the ownership of immovable property.
“Such a declaration would also not be binding on any third party,” it added.
The bench further said that the way ownership of immovable property can be vested or transferred is governed by the Transfer of Property Act, 1882, and the provisions of the Registration Act, 1908 have to be adhered to.
The High Court further held that recognizing such (property) rights based on a fatwa, which has not been examined or accepted by a court of law, would be opposite to the Constitutional scheme.
The High Court also said 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.”
Since the suit was more than nine years old, it instructed the trial of the suit to be done within six months by the lower court, and the judgement is heard by July 31, 2021.