First legislation in 'British India'

The first legislation in 'British India' on the subject of Muslim Waqfs was the Mussalman Wakf Validating Act, 1913. That was confined to what are called Wakf-Alal-Aulad, to validate them. It did not codify or define the Muslim Law of Waqfs which continued to be governed by the SHARIAT until the enactment of the Mussalman Wakf Act, 1923, which intended to "make provision for the better management of Wakf property and for ensuring the keeping and publication of proper accounts in respect of such properties". The waqf, if any, in respect of the alleged ''Babari Masjid'' and its Mutawalli, if any, were squarely covered by that Act. But there is no evidence whatsoever of compliance with any of its provisions. The least that one can infer from all this is that the premises were not in use as a mosque and there was no Waqf and no Mutawalli functioning as such in respect thereof.

The U.P. Muslim Waqfs Act, 1936, was enacted on 20th March 1937. Its operative sections 5 to 71 came into force on 1st July, 1941. This Act was squarely applicable to the alleged 'Babari Masjid' and its Waqf and Mutawalli, if any. Separate Waqf Boards were created under it for Shia and Sunni Waqfs, the only distinction between them being, in the absence of any statutory definition, the sect to which the waqif, or the founder of the waqf, belonged. Neither of the two Boards of Waqfs in U.P. took any steps to look after the place or to ensure its proper upkeep as a mosque.

The building was extensively damaged during the communal riot at Ayodhya in 1938, which was sparked off by cow slaughter on Bakrid by the Muslims. The then British Government rebuilt and renovated it at Government expense, which it realised from the Hindus by levying a fine. If there was a Mutawalli having revenue free grant of zamindari for the upkeep and maintenance of the alleged ''Babari Masjid'', surely the British Government was not so naive as not to have compelled the Mutawalli to do so from the income of the Zamindari.

A report dated 16th September, 1938, purporting to have been made by the District Waqf Commissioner, Faizabad, says that Syed Mohammad Zaki who was alleged to be the Mutawalli of the alleged 'Babari Masjid' was a Shia and an opium addict and totally unsuited for the performance of the duties of a Mutawalli of the 'mosque' and that it was not kept in proper repairs at all. He denied that the revenue free grant of Zamindari made by the British to his ancestors, was a waqf for the maintenance of the alleged ''Babari Masjid''. He claimed it to be his personal Nankar, that is, grant for his personal maintenance on condition of his rendering police, military and political service to the British. Another report dated 10th December, 1949 of Mr. Mohammad Ibrahim, Waqf Inspector, addressed to the Secretary of the U.P. Sunni Central Board of Waqfs says that the said Mohammad Zaki was succeeded by Kalbe Husain, who had died in the meanwhile and was succeeded by Javvad Husain as the Nambardar of village Sahanwa, district Faizabad. The report recommended the appointment of Javvad Husain as Mutawalli of the alleged 'Babari Masjid''. But Javvad Husain, it seems, never applied for it. He was a Shia and obviously he could not have submitted to the jurisdiction of the Sunni Waqf Board. That report of Mr. Mohammad Ibrahim, dated 10th December, 1949, further says that due to the fear of Hindus and Sikhs no one offered 'Namaz' in the ''Babari Masjid'', and if any traveller strayed into it during the night, the Hindus harassed him very much, and that there was a Hindu Temple outside the courtyard of the mosque, where a large number of Hindus resided who ill-treated and abused any Muslim who tried to enter the 'mosque'.