New Delhi: There is no need to produce Shah Jahan’s signature since “settled law states that tomb and graves are Waqf”, the Sunni Waqf Board’s senior counsel in the Babri Masjid dispute Zafaryab Jilani said on Wednesday, a day after the Supreme Court asked the Board to produce a Waqf Nama to prove its claim over the Taj Mahal.
The Supreme Court had given the Board a week to produce the signature of Mughal emperor Shah Jahan, who died under house arrest in the Agra Fort in 1666, almost 18 years after building the monument in the memory of his beloved wife Mumtaz Mahal.
However, Jilani told News18 that “a grave and any tomb built over it” is always Waqf and that this “was ruled by the apex court itself.”
“The settled law is that a grave is always a Waqf and tomb constructed over a grave is also a Waqf. This was the verdict laid down by the Privy Council in 1956. Admittedly, there is the grave of Mumtaz Mahal and thereafter tomb of Shah Jahan was also constructed. This tomb has recital of Quranic verses too so it becomes a Waqf by user whether there is a Waqf deed or not,” Jilani told News18.
Jilani expressed surprise as to why the court was not made aware of the settled position of law and stated examples of cases where tombs and graves have been earlier earmarked as Waqf properties.
“There have been multiple other cases where tombs and graves have been declared as Waqf. Look at Aurangabad, Ahmedabad, or the tomb of Wajid Ali Shah. None of them has any Waqf Nama but they are all Waqf,” said Jilani.
In 2010, the Archaeological Survey of India (ASI) had petitioned the court against the Waqf board’s July 2005 decision ordering that the Taj Mahal be registered as the latter’s property. There is a stay on the order.
While tracing the history of the monument, the Chief Justice of India asked, "Who in India will believe that the Taj Mahal belongs to the Waqf board? How did Shah Jahan sign the Waqf Nama? When was it given to you?"
The Board through senior advocate VV Giri claimed that the monument belonged to the Waqf since Shah Jahan's time and that it is a property under the Waqf Nama. The claim is challenged by the ASI.
News18 has also accessed the crucial piece of evidence the UP Sunni Wakf Board is clinching onto to produce in court at the next hearing, which would “prove” that Shah Jahan had created an endowment fund for Taj Mahal.
Advocate on record, Shakil Ahmad, who is appearing for the Board in the top court, said, “There is a book which has been submitted by the ASI. That book clearly notes that Shah Jahan himself had created an endowment fund worth Rs 50,000 for Taj Mahal which proves that it was a Waqf property.
Ahmad has also asked lawyers appearing for the Board to get back with all original documents to assess “if there is at all any Waqf Nama that was signed by the Mughal Emperor.”
The three-member bench of CJI Dipak Misra and Justices AM Khanwilkar and DY Chandrachud had reminded the Board that the monument which was built in the 17th century was passed on to the East India Company after the fall of the Mughal dynasty and further vested in the ASI post-Independence.