By Madhubala Solanki
Editor’s Note: Waqf is very unique and beneficial for poverty alleviation programmes. This project will portray the meaning and essential elements of a valid waqf, evolution of the concept of waqf and various kinds of waqf under Muslim law. In this project conseqences of waqf will be dealt and the powers which a Mutawali enjoys. This paper would be substantiated by suitable case laws and legal aspects. How can it be created and its objects will be given in the paper.
The literal meaning of the word waqf is ‘detention’. In the legal context, waqf means detention of a property so that its produce or income may always be available for religious or charitable purposes. When a waqf is created, the property is detained or, is ‘tied up’ forever and thereafter becomes non-transferable. Meaning and various types of waqf are defined in this project. There is an object behind making a wakf. Office of Mutawalli (manager) is very important. There are many modes to create waqf, which are dealt with in this project. Wakf is binding and enforceable by law, it has legal consequences which are dealt with in this project. The law of waqf is “the most important branch of Mohammedan Law for it is interwoven with the entire religious, social, and economic life of Muslims.
When Muslim a person who is working for a charitable purpose under religious faith and sentiments and for the benefit and upliftment of the society, has donated his property in the name of Allah is called waqf.
Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the ownership of dedicated property is taken away from the person making waqf and transferred and detained by God. Details are given in old texts about wakf made by the prophet.
It is observed in M Kazim vs A Asghar Ali that technically, it means dedication of some specific property for a pious purpose or secession of pious purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf is the detention of a specific thing that is in the ownership of the waqif or appropriator, and the devotion of its profits or usufructs to charity, the poor, or other good objects, to accommodate loan.
Wakf Act, 1954 defines Wakf as, “Wakf means the permanent dedication by a person professing the Islam, of any movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable.”
ESSENTIAL CONDITIONS FOR A VALID WAQF
The essential conditions for a valid waqf are as follow:
1. Permanent dedication: The dedication of waqf property must be permanent and Waqf himself must devote such property and give it for any purpose recognized by Muslim law, like religious, pious or charitable. If the wakf is made for a limited period it won’t be a valid wakf and also there should be no condition or contingency attached otherwise it will become invalid. The motive behind Wakf is always religious.
In Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, the dedication of house by a Muslim for use of all travelers irrespective of religion and status was held not to be a Wakf on the ground that under Muslim law a Wakf should have a religious motive and it should be only for benefit of Muslim community, and if it is secular in character, the charity should be to the poor alone.
When a Wakf is constituted, it is presumed that a gift of some property has been made in favor of God. This is ensured through a legal fiction that waqf property becomes the property of God.
2. Competency of the Waqif:
Who Can Create a Waqf? : The person who constitutes the waqf of his properties is called the ‘founder of waqf or, Waqif. The waqif must be a competent person at the time of dedicating the property in waqf. For being a competent waqif a person must possess the capacity, as well as the right to constitute the waqf.
As regards the capacity of a Muslim for making a waqf, there are only two requirements:
(i) soundness of mind and,
A person of unsound mind has no capacity to create any waqf because he or she is incapable of knowing the legal consequences of the transaction. Waqf constituted by an insane or minor person is void.
Waqf by Non-Muslims: The dedicator must profess Islam i.e., believes in the principles of Islam’, he need not be a Muslim by religion. The Madras and Nagpur High Courts have held that a non-Muslim can also create a valid waqf provided the object of waqf is not against the principles of Islam.
Patna High Court has also held that a valid waqf may be constituted by a non-Muslim. However, according to Patna High Court, a non-Muslim waqf may constitute only a public waqf; a non-Muslim cannot create any private waqf (e.g. an Imambara).
3. Right to make waqf: A person having the capacity but no right cannot constitute a valid waqf. The subject matter of wakf should be owned by wakif at the time when wakf is made. Whether a person has the right to constitute a waqf or not depends on the fact whether the dedicator has a legal right to transfer the ownership of the property or not.
A widow cannot constitute any waqf of the property which she holds in lieu of her unpaid dower because she is not an absolute owner of that property.
Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the waqf and had fully understood the nature of the transaction.
Amount of property: a person can dedicate his entire property, but in the case of the testamentary wakf, more than one-third of property cannot be dedicated.
KINDS OF WAQF
Generally, there are two types of wakf:
1. Public Wakf
2. Private Wakf
Categories of waqf from the perspective of its purpose:
• Waqf ahli: the proceeds of waqf are designated for the waqf founder’s children and their offspring. However, these beneficiaries cannot sell or dispose of the property subject-matter of waqf.
• Waqf khayri: the proceeds of waqf are earmarked to charity and philanthropy. Examples of beneficiaries include the poor and the needy. Waqf khayri is typically used to finance mosques, shelters, schools, and universities. This is meant to help financially-challenged individuals and communities.
• Waqf al-sabil: a waqf whose beneficiaries are the general public. It is very similar to waqf khayri, though waqf al-sabil is usually used to establish and construct the public utility (mosques, power plants, water supplies, graveyards, schools, etc).
• Waqf al-awaridh: the yield of waqf is held in reserve so that it can be used at times of emergency or unexpected events that negatively influence the livelihood and well-being of a community of people. For example, waqf may be assigned to the satisfaction of specific needs such as medication for sick people who are unable to pay medication expenses and education of poor children. Waqf al-awaridh may also be used to finance maintenance of the utilities of a village or neighborhood.
Categories of waqf from the perspective of its output nature:
• Waqf-istithmari: the waqf assets are intended for investment. Such assets are managed to produce income that will be used in constructing and reconstructing waqf properties.
• Waqf-mubashar: the waqf assets are used to generate services to the benefit of some charity recipients or other beneficiaries. Examples of such assets include schools, utilities, etc.
VALID OBJECTS OF WAKF
An essential for the validity of wakf is that the dedication should be for a purpose recognized as religious, pious or charitable, under Muslim Law.
On basis of decided cases and the text of eminent Mohammedan Jurists, certain objects which had been declared to be valid objects of wakf are:-
1. Mosque and provisions for Imamas to conduct worship.
2. Celebrating the birth of Ali Murtaza
3. Repairs of Imambaras.
4. Maintenance of Khankahs.
5. Reading the Koran in public places and also at private houses.
6. Maintenance of poor relations and dependant.
7. Payment of money to Fakirs.
8. Grant to an Idgah.
9. Grant to the college and provisions for professors to teach in colleges.
10. Bridges and Caravan Sarais.
11. Distribution of alms to poor persons, and assistance to the poor to enable them to perform pilgrimage to Mecca.
12. Keeping Tazias in the month of Moharram, and provisions for camels and Duldul for religious processions during Moharram.
13. Celebrating the death anniversary of the settler and of the members of the family.
14. Performance of ceremonies known as Kadam Sharif.
15. The construction of a Cobat or free boarding house for pilgrims at Mecca.
16. Performing the annual Fateha of the members of his family.
17. A Durgahor or shrine of a Pir which has long been held in veneration by the public.
The following are not recognized as valid objects of the wakf, by the Muslim law.
1. Objects prohibited by Islam, e.g. erecting or maintaining a church or temple.
2. A wakf for the perairs of the waqif’s secular property is invalid according to Shea law.
3. Providing for the rich exclusively.
4. Objects which are uncertain.
5. A direction to spend a certain sum of money for feasting Cutchi Memons every on the anniversary of the anniversary of the settlor’s death is not valid.
CREATION OF WAKF
Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements as described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is usually created in the following ways –
1. By an act of a living person (inter vivos) – when a person declares the dedication of his property for Wakf. This can also be done while the person is on death bed (marj-ul-maut), in which case, he cannot dedicate more than 1/3 of his property for Wakf.
2. By will – when a person leaves a will in which he dedicates his property after his death. Earlier it was thought that Shia cannot create Wakf by will but now it has been approved.
3. By Usage – when a property has been in use for the charitable or religious purpose for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.
LEGAL CONSEQUENCES OF WAKF
Once a wakf is complete, the following are the consequences –
1. Dedication to God – The property vests in God in the sense that nobody can claim ownership of it. In Md. Ismail vs Thakur Sabir Ali, SC held that even in wakf alal aulad, the property is dedicated to God and only the usufructs are used by the descendants.
2. Irrevocable – In India, a wakf once declared and complete, cannot be revoked. The wakif cannot get his property back in his name or in any other’s name.
3. Permanent or Perpetual – Perpetuality is an essential element of wakf. Once the property is given to wakf, it remains for the wakf forever. Wakf cannot be of a specified time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahabad HC that the wakf of a house built on land leased for a fixed term was invalid.
4.Inalienable – Since Wakf property belongs to God, no human being can alienate it for himself or any other person. It cannot be sold or given away to anybody.
5. Pious or charitable use – The usufructs of the wakf property can only be used for pious and charitable purpose. It can also be used for descendants in case of a private wakf.
6. Extinction of the right of wakif – The wakif loses all rights, even to the usufructs, of the property. He cannot claim any benefits from that property.
7. Power of court’s inspection – The courts have the power to inspect the functioning or management of the wakf property. Misuse of the property of usufructs is a criminal offense as per Wakf Act.1995.
OFFICE OF MUTAWALLI
Mutawalli is nothing but the manager of a wakf. He is not the owner or even a trustee of the property. He is only a superintendent whose job is the see that the usufructs of the property are being utilized for valid purpose as desired by the wakif. He has to see that the intended beneficiaries are indeed getting the benefits. Thus, he only has limited control over the usufructs.
In Ahmad Arif vs Wealth Tax Commissioner, SC held that a mutawalli has no power to sell, mortgage, or lease wakf property without prior permission of the Court or unless that power is explicitly provided to the mutawalli in wakfnama.
Who can be a mutawalli – A person who is a major, of sound mind, and who is capable of performing the functions of the wakf as desired by the wakif can be appointed as a mutawalli. A male or female of any religion can be appointed. If religious duties are a part of the wakf, then a female or a non-muslim cannot be appointed.
In Shahar Bano vs Aga Mohammad, Privy Council held that there is no legal restriction on a woman becoming a mutawalli if the duties of the wakf do not involve religious activities.
Who can appoint a mutawalli – Generally, the wakif appoints a mutawalli. He can also appoint himself as a mutawalli. If a wakf is created without appointing a mutawalli, in India, the wakf is considered valid and the wakif becomes the first mutawalli in Sunni law but according to Shia law, even though the wakf remains valid, it has to be administered by the beneficiaries. The wakif also has the power to lay down the rules to appoint a mutawalli. The following is the order in which the power to nominate the mutawalli transfers if the earlier one fails –
2. executor of the founder, &
3. mutawalli on his death bed.
4. the Court, which should follow the guidelines –
1. It should not disregard the directions of the settler but public interest must be given more importance.
2. Preference should be given to the family member of the wakif instead of an utter stranger.
Powers of a mutawalli –
Being the manager of the wakf, he is in charge of the usufructs of the property. He has the following rights –
1. He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose of the wakf. He can take all reasonable actions in good faith to ensure that the intended beneficiaries are benefited by the wakf. Unlike a trustee, he is not an owner of the property so he cannot sell the property. However, the wakif may give such rights to the mutawalli by explicitly mentioning them in wakfnama.
2. He can get a right to sell or borrow money by taking permission from the court upon appropriate grounds or if there is an urgent necessity.
3. He is competent to file a suit to protect the interests of the wakf.
4. He can lease the property for the agricultural purpose for less than three years and for the non-agricultural purpose for less than one year. He can exceed the term by permission of the court.
5. He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can apply to the court to get an increase.
Removal of a mutawalli –
Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif. However, a mutawalli can be removed in the following situations –
1. By Court –
1. if he misappropriates wakf property.
2. Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.
3. Knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs Mahmood Hasan, SC held that using wakf money to buy property in wife’s name is such breach of trust as is sufficient ground for removal of mutawalli.
4. he becomes insolvent.
2. By wakf board – Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli from his office under the conditions mentioned therein.
3. By the wakif – As per Abu Yusuf, whose view is followed in India, even if the wakif has not reserved the right to remove the mutawalli in wakf deed, he can still remove the mutawalli.
DIFFERENCE BETWEEN WAQF AND TRUST
Both, in waqf as well as in trusts, the property is detained and its usufruct is utilized for religious or charitable purposes. But, a waqf under Muslim personal law may be distinguished from a trust at least on the following matters:
(1) A waqf may be constituted only for those purposes which are recognized as religious, pious or charitable in Islam whereas, a trust may be constituted for any lawful object.
(2) Except under Hanafi law, the founder of a waqf cannot reserve any benefit for himself, but the founder of a trust may himself be a beneficiary.
(3) The powers of a mutawalli (manager of the waqf-property) are very limited as compared to the powers of a trustee.
(4) A waqf is generally perpetual and irrevocable, whereas, a trust need not be perpetual and may also be revoked under certain conditions.
Because of the above-mentioned differences between waqf and trust, the Indian Trust, Act, 1882, is not applicable to Muslim waqf sin so far as the nature and operation of waqfs are concerned. But, for purposes of instituting any suit in the cases of irregularities and mismanagement of waqf property, a waqf has been regarded as a ‘trust’ within the meaning of Section 92 of the Civil Procedure Code, 1908.
However, it must be noted that the Indian Trusts Act is applicable also to Muslims. Therefore, if a Muslim wants to settle his properties in a trust he may do so under this Act instead of creating waqf under Muslim personal law.
Wakf is detention which is permanent and binding and enforceable by law also, any person interested may seek remedy in Civil Court. Office of mutawalli is very important in waqf, power can be exercised when there is a clear vacancy of mutawalliship or there is a dispute as to competence or eligibility of existing mutawalli. A Muslim wakf is distinguished from an English trust or a Hindu endowment of dharma.
Formatted on February 13th, 2019.
1. MANZAR SAEED, Commentary on Muslim Law in India, (Orient Publishing Company. 2011, New Delhi)
2. I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009, Allahabad)
3. Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency, 2010 Allahabad)
4. Prof. G.C.V. SUBBA RAO, Family Lawin India, (10th Ed, S. Gogia & Company, 2012 Hyderabad)
Cases as appearing in the article:
Ameer Ali. Muslim Law. (Vol.I). p. 207
AIR 1982 Kant 309
I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009, Allahabad) Page no. 638
Available at: < http://hanumant.com/Wakf.html> Last visited: 18.00 24th March, 2015
1962 AIR 1722, 1963 SCR (1) 20
 2 SCR 19
1978 AIR 1362, 1978 SCR (3) 886.