This article has been written by Saurav Narayan, Practicing Advocate, Delhi High Court. The article has been evaluated by Yashprada (Associate, Lawsikho).
This article has been published by Rachit Garg.
Table of Contents
Introduction
The institution of waqf is a unique aspect of Mohommadan law’s socio-economic system. Waqfing a property entails dedicating both movable and immovable property in Allah’s name for religious, pious, and philanthropic reasons. The institution of waqf is significant because it fulfils a dual purpose: on the one hand, it satisfies the human desire for charity, and on the other, it provides for the weaker members of society.
It is important to remember that waqf is the unconditional and everlasting devotion of properties in the ownership of God. The owner’s rights are lost because of this permanent dedication of land. Because the waqf property is no longer transferable, it cannot be sold, donated, or given to charity. It is just managed, and the manager is merely the custodian, not the owner or trustee.
The word waqf comes from the Arabic verb WAQAFA, which means to retain, hold, or bind. Thus, it may be traced back to the Prophet Mohammad’s tradition, habis al-asl -wa Sabbil al-thamara, which means “tie up the substance and give out the fruit.”
According to Imam Abu Hanifa, the tying-up of the substance of a property in the ownership of the wakif and the devotion of its usufruct, equal to an ariya, or financial loan, for some charitable purpose”.
Conditions for a valid Waqf
The essential conditions for a valid waqf are as follow:
Permanent dedication
Waqf property must be permanently dedicated, and the Waqf must devote and grant it for any purpose authorised by Muslim law, such as religious, pious, or charitable purposes. If the waqf is only valid for a certain amount of time, it isn’t a genuine waqf, and there should be no conditions or contingencies connected, otherwise, it will become invalid. Wakf has always had a religious motivation.
The dedication of a house by a Muslim for use by all travellers irrespective of religion and status was held not to be a Wakf in Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad on the basis that under Muslim law, a Wakf must have a religious motive and be solely for the
the benefit of the Muslim community, and if it is secular, the charity must be limited to the poor.
When a Wakf is established, it is assumed that a property donation has been made in God’s favour. This is accomplished by a legal fiction in which waqf property becomes God’s property.
The Waqif’s Competence
Who can establish a Waqf? The individual who establishes a waqf on his property is known as the “founder of waqf” or “Waqif.” At the moment of waqf dedication, the waqif must be a qualified individual. To be a competent waqif, a person must have both the competence and the right to establish the waqf.
There are just two prerequisites in terms of a Muslim’s ability to make waqf:
(i) Sound mind
(ii) Majority
A person of unsound mind is unable to establish a waqf because he or she is unable to comprehend the legal implications of the transaction. Waqf established by an insane individual or by a minor is null and invalid.
Non-Muslim Dedicators of Waqf: The dedicatee must profess Islam, that is, believe in the ideals of Islam; nevertheless, he does not have to be a Muslim by religion. The Madras and Nagpur High Courts have ruled that a non-Muslim can establish a legal waqf if the goal of the waqf does not violate Islamic precepts.
According to the Patna High Court, a non-Muslim waqf can only be a public waqf; a non-Muslim waqf cannot be private (e.g., an Imambara).
Right to make waqf
A person who has the ability but not the right to make waqf cannot make a lawful waqf. At the time waqf is created, the subject matter of waqf should be held by wakif. Whether or not a person has the legal authority to establish a waqf is determined by whether the dedicator has the legal right to transfer ownership of the property.
A widow cannot constitute any waqf of the property that she holds in lieu of her unpaid dower because she is not an absolute owner of that property.
The beneficiaries and the mutawalli must prove that the waqif was established by a pardanashin lady who exercised her thought and fully grasped the nature of the transaction.
Amount of property
A person can dedicate his entire estate, but more than one-third of his estate cannot be dedicated under the testamentary waqf.
Different kinds of Waqf
Public waqf: Waqfs created for public, religious, or charitable purposes are known as public Waqfs.
Private Waqf: Private waqf are also known as ‘Waqf-ulal-Aulad.’ This type of Waqf is established for the settler’s own family and successors. In the form of waqf, it is a type of family settlement.
From the standpoint of its output nature, the following are the categories of waqf:
• Waqf-istithmari: Waqf assets are meant to be invested in. These assets are managed to generate money that will be utilised to build and restore waqf properties.
• Waqf-mubashar: Waqf assets are utilised to generate services for charitable recipients or other beneficiaries. Schools, utilities, and other assets are examples of such assets.
Waqf characterstics
1. Irrevocability — In India, waqf declarations are final.
2. Inalienability – Because the waqf property belongs to God, it cannot be alienated for personal gain.
3. Perpetuity – A waqf is established in perpetuity, hence a waqf established for a certain length of time is illegitimate.
4. Usufruct for religious, pious, or charitable reasons – The waqf property’s product and advantages are used for religious, pious, or charitable purposes as defined by Muslim law.
5. Absoluteness – Waqf property settlement is absolute, and any conditional or dependent waqf is considered invalid.
Mutawalli
The Waqf’s manager or supervisor is known as the ‘Mutawalli.’ Without the prior authorization of the court, such a person designated has no power to sell, exchange, or mortgage the waqf property unless the waqf deed specifically authorises him to do so.
Who is eligible to be a mutawalli?
A mutawalli of a waqf can be appointed as a waqf who has reached the age of majority, is of sound mind, and can complete the tasks that must be performed under the waqf. In India, a foreigner cannot be named as the Trustee of a property.
Who has the authority to nominate a mutawalli?
The founder of the waqf appoints when the waqf is established, according to the general rule. However, if a waqf is established without the appointment of a mutawalli, the following individuals are qualified to serve as Mutawalli:
• Executor of the founder’s will;
• On his deathbed, the Mutawalli;
• The following rules will be followed by the Court:
1) As much as practicable, the Court should follow the settlor’s instructions.
2) A member of the settler’s family should be given preference over a stranger.
3) In the event of a dispute between a lineal descendant of the settlor and a non-lineal descendant, the court is allowed to use its discretion.
Mutawalli’s roles and responsibilities
As the waqf’s manager, he is responsible for the property’s usufruct. He is granted the following privileges:
1) He has the power to employ the usufructs in the waqf’s best interests. He is authorised to take all reasonable steps in good faith to guarantee that the waqf’s end beneficiaries get all of the waqf’s benefits. He is unable to sell the property since he is not the owner of the property. The wakif, on the other hand, might grant such rights to him by explicitly mentioning them in the waqf Nama.
2) By demonstrating the existence of acceptable circumstances or urgency, he can obtain court permission to sell or borrow money.
3) He can bring a lawsuit to safeguard the waqf’s interests.
4) He also has the authority to lease the land for fewer than three years for agricultural purposes and less than one year for non-agricultural purposes. With the proper consent from the court, he can have the term extended.
5) He is entitled to payment in accordance with the wakif’s provisions. If the payment is insufficient, he might petition the court to have it increased.
Conclusion
Waqf is a kind of confinement that is permanent, binding, and enforceable by law; anybody who is affected may seek redress in a civil court. In waqf, the office of mutawalli is highly significant; authority can be exercised when there is a clear vacancy of mutawalliship or when there is a disagreement about the competence or eligibility of the present mutawalli. A Muslim waqf differs from an English trust or a Hindu dharma endowment.
References
- https://www.legalserviceindia.com/legal/article-1746-concept-and-essentials-of-a-valid waqf.html
- Bailie Nell B.E., Digest of Mohummudan Law, Part First (Hanafi Law), Second Revised Edition, London, 1875, Vol. II, p. 212.
- Rahim Abdur, The Principles of Muhammadan Jurisprudence, Luzac & Co. London, 1911, pp. 303-304, Ibid. Vol. I, pp. 557-8.
- https://www.lawctopus.com/academike/concept-waqf-muslim-law/
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