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This article has been written by Aparajita Balaji, a student of Vivekananda Institute Of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University, Delhi. In this article, she has emphasised upon the concept of Waqf under Muslim Law. The focus is upon the creation of waqfs, its types and its management. The appointment, powers and duties of the Mutawalli have also been dealt with.

The concept of Waqf has been developed under Islamic Law. There was no concept of waqfs in Arabia before the advent of Islam. Although there is no mention of Waqf as such in Quran such Quranic injunctions which deal with the charity are at the root of the development and extension of wakfs. Ameer Ali describes the law of Waqf as, “the most important branch of Muslim Law, for it is interwoven with the entire religious life and social economy of Muslims Waqf in  its literal sense means detention or stoppage .”

The definition of Waqf according to the accepted doctrine of the Hanafi school is the extinction of the proprietor’s ownership in the thing dedicated and its detention in the implied ownership of God in such a manner that the profits may revert to and be applied for the benefit of mankind.

Waqf under the Muslim Law owes its origin to a rule laid down by the Prophet and means “ the tying up of property in the ownership of the God, the Almighty and the devotion of the profits for the benefit of human beings.

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What is the meaning of Waqf?

If we look at the word ‘Waqf’, in its literal sense it is referred to as ‘detention’, ‘stoppage’ or ‘tying up’. According to the legal definition, it means a dedication of some property for a pious purpose in perpetuity. The property so alienated should be available for religious or charitable purposes. Such a property is tied up forever and becomes non-transferable.

It has been observed in the case of M Kazim vs A Asghar Ali that waqf in its legal sense means the creation of some specific property for the fulfilment of some pious purpose or religious purpose.

A lot of eminent Muslim jurists have defined Waqf in their own way. According to 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.”

“As defined by Abu Yusuf, waqf has three main elements. They are-

  • Ownership of God
  • The extinction of the founder’s right
  • The benefit of mankind

Definition under Mussalman Waqf Validating Act, 1913-  Section 2 of the Act defines waqf as, “the permanent dedication by a person professing the Mussalam faith of any property for any purpose recognised by Musalman Law as religious, pious or charitable.”

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.”

A waqf can be either in writing or can be made by an oral presentation. In the case of an oral agreement, the presence of words emphasising on the intention of the parties is a prerequisite.

Essentials of Waqf

Waqf Under Sunni Law

The essential conditions of a valid waqf, according to the Hanafi Law  (Sunni Law) are:

  1. A permanent dedication to any property.
  2. The dedicator (waqif) should be a person professing the Mussalman faith and of sound mind and not a minor or lunatic.
  3. The dedication should be for a purpose recognised by the Mussalman law as religious, pious or charitable.

1. Permanent dedication of property

The most important essential of a valid waqf is that it should be ‘a permanent dedication of property.’ It has the following prerequisites.

  • There must be a dedication.
  • The dedication must be permanent.
  • The dedication must be of any property.

The Waqf himself has the right to donate such property and give it for any purpose recognized under the Muslim Law. If the wakf is made for a limited period, it cannot be considered as a valid wakf.

In the case of Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, it was held that “if a Muslim man provides his house to the travellers irrespective of their religion and status for their stay, this cannot be considered as a valid Wakf on the ground that under Muslim law a Wakf has a religious motive, that it should be created for the benefit of Muslim community. When a Wakf is constituted, it is always a presumption that it is a gift of some property, made in favour of God. This is a legal fiction.  

2.  By a person professing Mussalman faith

The person creating a waqf should be an adult Muslim of sound mind.

3. For any purpose recognised by Muslim Law

The main objective behind creating a waqf is that it should be dedicated for a purpose recognised as religious, pious or charitable under Muslim law.

Waqf Under Shia law

The essential conditions for creating a valid Waqf according to Shia Law are:

  1. It must be perpetual.
  2. It must be absolute and unconditional.
  3. Possession of the thing appropriated must be given.
  4. The waqf property should be entirely taken out of waqif.
  • Who Can Create a Waqf?

  1. The person constituting the waqf of his own properties is known as the ‘founder of waqf’ or Waqif. To become a waqif, a  person dedicating the property must be competent enough to do so according to the provisions of law. Following are the conditions, which need to be fulfilled to become a waqif and constitute a waqf.

(i) The person constituting the waqf should be a Muslim.

(ii) Should be a person of sound mind.

(iii) Should have attained the age of majority.

The Madras and Nagpur High Courts have held that a non-Muslim can also create a valid waqf provided the objective of the waqf so created is not against the principles of Islam. According to the Patna High Court, a valid waqf can also be constituted by a non-Muslim. However, such a waqf would only be constituted under a public waqf ie.  a non-Muslim cannot create any private waqf (e.g. an Imambara).

A person of unsound mind is incompetent to constitute a waqf property as such a person cannot judge the legal consequences of such a  transaction. Therefore, a waqf constituted by an insane or minor person is void.

  1. A person may profess the capacity but may not have any right to constitute a waqf. Such a person cannot constitute a valid waqf. The subject matter of waqf should be owned by the waqif at the same time when waqf is being constituted. Whether a waqf can be created by a particular person depends upon whether there exists a legal right for the dedicator to transfer the ownership of the property or not.

A waqf of any property held by a widow in lieu of her unpaid dower cannot be constituted by her because she is not an absolute owner of that property.

In case a waqif is a pardanashin lady, it is the duty of the beneficiaries and the mutawalli to prove that the women had exercised her mind independently for constituting the waqf after fully understanding the nature of the transaction.

  1.  A person can dedicate his entire property for the creation of waqf but in the case of the testamentary wakf, more than one-third of property cannot be dedicated.

Doctrine of Cypress

The word cypress means ‘as nearly as possible.’ The doctrine of cypress is a principle of the English law of trusts. Under this doctrine, a trust is executed, or carried out as nearly as possible, according to the objects laid down in it.

Where a settlor has specified any lawful object which has already been completed or the object cannot be executed further, the trust is not allowed to fail. In such cases, the doctrine of cypress is applied and the income of the property is utilised for such objects which are as nearly as possible to the object already given.

The doctrine of cypress is applicable also to waqfs. Where it is not possible to continue any waqf because of (a) lapse of time or, (b) changed circumstances or, (c) some legal difficulty or, (d) where the specified object has already been completed, the waqf may be allowed to continue further by applying the doctrine of cypress.

Legal Incidents of Waqf

The following are the legal incidents of Waqf.

  • Irrevocability
  • Perpetuity
  • Inalienability
  • Pious or charitable use of usufruct
  • Absoluteness

Modes  Of Creation of Waqf

Waqf can be created in the following ways.

  1. By an act inter vivos–  This type of waqf is created between living voices, constituted during the lifetime of the waqif and takes effect from that very moment.
  2. By will–  A waqf created by will is contradictory to a waqf created by an act inter vivos. It takes effect after the death of the waqif and also known as ‘testamentary waqf’. Such a waqf cannot operate upon more than one-third of the net assets, without the consent of the heirs.
  3. During death or illness (marz-ul-maul)– Like the gifts made while the donor is on the death bed, will operate till the extent of one-third of the property without the consent of the heirs of the property.
  4. By immemorial user–  Limitation of time also applies to the creation of waqf property, but waqf property can be established by way of immemorial use.

Completion Of Waqf

Waqf can be completed by the following modes.

  1. Where a third person is appointed as the first mutawalli.
  2. Where the founder constitutes himself as the first mutawalli.

Kinds Of Waqf

  1. Public Waqf– It is created for the public, religious or charitable purposes.
  2. Private Waqf- This type of Waqf is created for the settlor’s own family and his descendants and is also known as ‘Waqf-ulal-Aulad’. It is a kind of family settlement in the form of waqf.

Kinds Of Waqf from the view of their purpose

  • Waqf Ahli: The waqf is basically created to cater to the needs of the waqf’s founder’s children and their descendants. But, the nominees do not have a right to sell or dispose of the property which is the subject-matter of waqf.
  • Waqf Khayri:  This kind of waqf is established for charitable and philanthropic purposes. The beneficiaries in such a kind of waqf may include the people belong to the economical sections of the society. It is used as an investment for building mosques, shelter homes, schools, madrasas, colleges and universities. All of this is built to help and uplift the economically challenged individuals.
  • Waqf al-Sabil: The beneficiaries of such a waqf, is the general public. Although similar to Waqf Khyari, this type of Waqf is generally used to establish It is very similar to waqf khayri, though generally used for establishment and construction of the public utility (mosques, power plants, water supplies, graveyards, schools, etc).
  • Waqf al-Awaridh: In such a kind of waqf, the yield is held in reserve so that it can be used in case of emergency or any unexpected events that affect the livelihood and well-being of a particular community, in a negative manner. For example, waqf may be assigned to cater to the specific needs of the society like providing medication for sick people, who cannot afford expensive medicines. Waqf al-awaridh may also be used to finance the maintenance of the utility services of a  particular village or a neighbourhood.

Kinds of waqfs from the view of its output nature

  • Waqf-Istithmar: Such a kind of waqf is created for using the assets for investment purposes. The said assets are managed in such a way so that the income is applied for constructing and reconstructing waqf properties.
  • Waqf-Mubashar: The assets of such a waqf are used to generate services which would be of some benefit to some charity recipients or other beneficiaries. Examples of such assets include schools, utilities, etc.

Waqf Act, 1913

  • The Mussalman Waqf Validating Act of 1930 came into effect on July 25, 1930, which was applied retrospectively on the waqfs created before March 7,1913.
    1. Under this act, a Muslim can tie his property for perpetuity for the support of his family, children and descendants, provided that he makes a provision in such a manner that the ultimate benefits go to a charitable object of a permanent nature, made either expressly or impliedly.
    2. Under this act, a Hanafi Muslim cannot enjoy the whole income or a life interest in the income of trust property.
    3. A Hanafi Muslim selling the property can make payments of his debts out of the rents and the profits of the property dedicated.
  • The objective of the Act

According to Section 3 of this Act, it is lawful for a Muslim person to create a waqf which in all other aspects in accordance with the provisions of Muslim Law, for the following purposes

  1. For the maintenance and support wholly or partially of his family, children or descendants.
  2. Where the person creating a waqf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated:

In the case of Radha Kanta Deb v. Commissioner AIR 1981 SC 798, Hindu Religious Endowments, Orissa, the Hon’ble Supreme Court observed that the Muslim Law recognises the existence and creation of a private trust as a charitable trust. It is also known as ‘waqf-allal-aulad’. In this type of Waqf, the ultimate benefit is reserved for God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the family of the founder and his descendants.

The Administrative And Statutory Control Of Waqfs In India

The following enactments provide for the creation and protection of public endowments:

  • Official Trustees Act II of 1913.
  • Charitable Endowments Act VI of 1890.
  • Religious Endowments Act XX of 1863, Section 14.
  • The Code of Civil Procedure, 1908, Sections 92-93. 
  • Charitable and Religious Trusts Act XIV of 1920

Mutawalli

The manager or the superintendent of the waqf is known as the ‘Mutawalli’. Such a person appointed has no powers, either to sell or exchange or mortgage the waqf property, without the prior permission of the court, unless he has been empowered by the waqf deed expressly to do so.

  • Who can be appointed as a Mutawalli?

Any person who has attained the age of majority, is of a sound mind and is capable of performing the functions to be discharged under a particular waqf, can be appointed as a mutawalli of the waqf.  A foreigner cannot be appointed as theTrustee of a property in India.

  • Who can appoint a Mutawalli?

According to the general rule, the founder of the waqf appoints at the time of the creation of the waqf. But, in case a waqf is created without the appointment of a mutawalli then the following persons are eligible to appoint the Mutawaali:

  • The executor of the founder;
  • The mutawalli on his death-bed;
  • The Court, which shall be guided by the following rules:
  1. As far as possible, the Court should not disregard the directions of the settlor.
  2. Preference should be given to a member of the settlor’s family over an utter stranger.
  3. In case of a contest between settlor’s lineal descendant and the one who is not a lineal descendant, the court is free to exercise its discretion.

Under some circumstances, a mutawalli may also be appointed by congregation.

  • Powers and Duties of Mutawalli

Being the manager of the wakf, he is in charge of the usufruct of the property. He has the following rights –

  • He has the authority to use the usufructs to the best interest of the wakf. He is authorised to take all reasonable actions in good faith to ensure that the end beneficiaries are able to enjoy all the benefits from the wakf. As he is not the owner of the property, therefore he is barred from selling the property. However, he could be bestowed upon such rights by the wakif by the explicit mention of them in waqf nama.
  • He can take authorisation from the court to sell or borrow money by showing the existence of appropriate grounds or the existence of urgency.
  • He can file a suit to protect the interests of the wakf.
  • He also has the power to 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 get the term extended with due permission from the court.
  • He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can apply to the court for getting it enhanced.

Removal Of Mutawalli

  • By the Court– Once a mutawalli is appointed, he cannot be removed by the waqif. But the mutawalli can be removed by the Court only on following grounds.
    • he denies the waqf character of the property and sets up an adverse title to it in himself.
  • He although having sufficient funds neglects to repair the waqf premises and allows them to fall into despair;
  • He causes damage or loss to the waqf property or commits a breach of trust knowingly and intentionally.
  • The mutawalli is rendered insolvent.
  1.  By the Wakf Board– According to section 64 of the Wakf Act, 1995, the Wakf Board has the authority to remove the mutawalli from his office under the conditions mentioned therein.
  2.  By the Wakif – There are different views related to this concept. According to   Abu Yusuf, even if the wakif has not reserved a right to remove the mutawalli in the wakf deed he can, nevertheless, remove the mutawalli. However, Imam Mohammed differs on this and believes that unless there is a reservation, the wakif cannot do so.
  3. Management of Waqf Property

De Facto Mutawalli- If a person who has not been authorised to act as a mutawalli by the waqif or the Court, assumed the status to manage the property, he becomes a ‘trustee de son tort’ as is so responsible as such.

  1. Liability of Mutwalli to account

Under the waqf deed, if there exists a clause exempting the mutawalli from accountability, that has to be respected. Each beneficiary has the right to claim an account from a mutawalli at any time. Such a beneficiary has also the right to claim his share of income and can sue for such an amount.

Waqf distinguished from Sadqah, Hiba and Trust

 

 

Sadqah

Waqf

1.

The legal estate and not merely the beneficial interest passes to the charity to be held by the trustees appointed by the donor.

The legal estate or the ownership is not vested in the trustee or the mutawalli but is transferred to God.

2.

Both the corpus and the usufruct is age given away. Therefore, the trustee has the right to sell away the property itself.

The trustees of a waqf cannot alienate the corpus of the property, except in the case of necessity with the prior permission of the Court or when authorised by the settlor to do so.

3.

It is in the form of a donation or a gift.

It is an endowment.

 

 

Hiba

Waqf

1.

The dominion over the object passes from one human being to another.

The right of waqif is extinguished and passes in favour of the Almighty.

2.

Delivery of possession is essential.

In a waqf inter vivos, no delivery of possession is essential. It is created by the mere declaration of endowment by the owner.

3.

There is no limitation with regard to the object for which it has been created.

It is contracted only for religious, charitable or pious purposes. A waqf for family purposes should also be charity.

4.

The property passes from one person to another and the absolute right is transferred.

The right of waqif is absolutely extinguished and passes in favour of the Almighty, and a mutawalli is appointed to administer the waqf. The beneficiaries have only the interest in the trust to the extent mentioned in the trust.

 

 

Trust

Waqf

1.

The existence of a religious motive is not necessary for trust.

There should exist a religious motive behind creating a waqf.

2.

A trustee may be beneficiary.

A settlor, except a Hanafi one, is not entitled to keep aside any benefit for himself.

3.

There has to a lawful object.

The object has to be one which is charitable, pious or religious according to the Muslim faith.

4.

Involves double ownership- equitable and legal. The property vests in the trustee.

The ownership of the waqf is extinguished and the ownership is vested in God.

5.

The trustee has superior powers of alienation because he is the legal owner.

Mutawalli is a mere receiver and manager.

6.

A trustee does not have the power to demand remuneration.

Mutawalli has the power to demand remuneration.

7.

It is not necessary that a trust may be perpetual, irrevocable or inalienable.

Property is inalienable, irrevocable and perpetual.

8.

Indian Trusts Act, 1882 applies to trust.

Indian Trust Act, 1882 is not applicable to

Conclusion

Wakf is the creation of property for religious or charitable purposes which is established permanently. It also has the backing of law ie.binding  in nature and enforceable by law. If any person is of the view that his right has been infringed then he may seek remedy from the Civil Court. The concept, powers and duties of mutawalli are of great importance to study under the topic of waqf. Such powers can only be exercised if there exists a clear vacancy for the post of the mutawalli or in case of a dispute as to the competence or eligibility of existing mutawalli.

References

  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. https://www.lawctopus.com/academike/concept-waqf-muslim-law/
  5. http://legumpraxis.com/waqf-a-poverty-alleviation-programme-under-muslim-law
  6. http://www.shareyouressays.com/knowledge/what-are-the-essential-conditions-for-a-valid-waqf/117465
  7. AIR 1932 Part 288

 

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