CHANAKYA NATIONAL LAW UNIVERSITY

FINAL DRAFT

SUBJECT:-FAMILY LAW-II
TOPIC:-WAKF- A CRITICAL STUDY

13 APRIL 2018

CNLU, PATNA

NYAYA NAGAR, MITHAPUR, PATNA

SUBMITTED BY :- SUBMITTED TO :- MITESH

KUMAR POOJA SRIVASTAVA ROLL NO.-

151344 LECTURER OF FAMILY LAW BA.LLB

4thSEMESTER

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 CONTENTS
• Acknowledgement………………………………………3
• Introduction……………………………………………..4
• Origin History and Development of Wakf in India……..5
• Essential Requisites of Wakf……………………………6
• Object and purpose of Wakf…………………………….7 Kind of
Wakf…………………………………………....8
• Office of Mutawalli……………………………………..9
• Case Analysis……………………………………………11
• Conclusion ………………………………………………13

• Bibliography……………………………………………..15

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 ACKNOWLEDGEMENT
Writing a project is one of the most significant academic challenges, I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who
gave their all support and helped me to complete this project.
First of all I am very grateful to my subject teacher Pooja Srivastava without the kind support
and help of whom the completion of the project was a herculean task for me. He donated his
valuable time from his busy schedule to help me to complete this project and suggested me
from where and how to collect data.
I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project. I acknowledge my friends who gave their valuable and
meticulous advice which was very useful and could not be ignored in writing the project. Last
but not the least I am very much thankful to my parents and family, who always stand aside me
and helped me a lot in accessing all sorts of resources. I thank all of them!

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A. OBJECTIVE OF THE STUDY:-
• To make descriptive and analytical study of matter related to wakf
Understand the validity of wakf.
• To provide adequate information about wakf.
B. HYPOTHESIS:-
• 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.
• 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.
C. RESEARCH METHODOLOGY:-
Doctrinal method:- Books, internet, journals, judgements etc.
Researcher is mainly rely on library based study.
D. SOURCES OF DATA COLLECTION:-
• Primary sources- judgements of Apex court, statute, precedent & other official
document.
• Secondary sources- statement of judges, websites, articles, News Paper, books,
journals etc. .
E. LIMITATION & SCOPE OF THE STUDY:-
• Due to lack of time, finance and lack of resources my research work is wholly
based on doctrinal method of research, my research work doesn’t rely on
nondoctrinal research or empirical research.
• For further research this can be a means of doctrinal research.

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 INTRODUCTION
Islam strongly subscribes to the notion of endorsing socio-economic and welfare-friendly
practices, and profusely supports and promotes all sorts of philanthropic andcharitable deeds.
Among them all, the concept of Waqf1 (endowment) in theShariah is regarded as an empirical
embodiment of this very proposition. Waqf derives its origin from approximately fourteen
centuries back, and is claimed to be firstintroduced by the Prophet himself. For the public utility
or socialcauses, one of the first deeds of Waqf in Islamic history was undertaken by the
secondcaliph Omar bin-Khattab (R.A) in 6th Hijri. This initiation of Omar (R.A) was basically
an outcome of inspiration that he had captured onprophet’s suggestion to render his palm
orchard in Khaiber for the pious cause of Allah. Historically, this initiation was followed by
the prophet’scompanions with great enthusiasm in Arab, and ‘later on’ the same drew ‘over
thecenturies’ an overwhelming attention of Muslims around the globe. In the
subsequentcenturies, Muslims in the different parts of the world profoundly participated
inperforming Waqf and other kinds of philanthropic exercises.

In this respect, the shining role of erstwhile affluent Indian Muslims could hardly beoverlooked
or underestimated; as they are known to have endowed enormous portionsof their estates in the
name of Waqf. India, which is home to more than one hundredfifty million Muslims,
accommodates, hundreds of thousand Waqf properties. Notably, up till the Mughal regime,
Indian Waqf assets were managed and administered by the appointed Qazis(Islamic jurists) in
accordance with the Shariah law. However, it is argued, that withthe fall of Mughal Empire,
and the subsequent advent of British rule in thesubcontinent, there came a surge of changes in
the methods of overall governanceand, inter alia, the institution of Waqf was severely affected
and lost its special naturein terms of being regarded as a religious institution.

Significantly, in the post independent India, on the part of Muslims it was highlyexpected that
from now on the administrative responsibilities of Awqaf should behanded over to the leading
Islamic institutions so that these properties may possiblybe managed according to the well-
establishedShariahlaw of Awqaf2. But,unfortunately, it never happened. As under the
provisions of the 1954Waqf act, theGovernment of India took a driver’s seat in managing and
administrating theAwqaf in the country. Thus, arguably, the door of undue political
intervention, manipulationand corruption in this religious institution was deliberately left wide
open.

Although, in 1995 in response to the ever growing agitated voices of the MuslimCommunity,
the Government resorted to amend the existingWaqf law, and ostensiblysought to democratize
the process and mechanism of Waqf administration, but this inno way served the purpose; as
theWaqf–relatedShariahguidelines were put to rest in the process.

The current study attempts to examine the origin, background, history and mechanism of Waqf
management practices in India. The study first seeks to break the point of a waqf history into
three key periods, namely pre-colonial, colonial and post-colonialera, and then endeavours to

1
A Special kind of Islamic philanthropy in perpetuity
2
Plural of waqf

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examine their management-models and administrativemechanism in reference to the Fiqh of
awaqf.

1. ORIGIN HISTORY AND DEVELOPMENT OF WAKF IN

INDIA
The history of development of Muslim wakf in India is spread over aperiod of almost eight
hundred years. The earliest description of wakf in hidiaare found in a rare book. "Insha-iMahru"
written by Aynul-MulkMultani,which contains letters written by him primarily to serve as
models for elegantofficial correspondence, nevertheless it throws light on the social, economic
and political Hfe of that period. Letter number sixteen describes Wakfs of Multan classified as
- (a) those created by "Salateen-e-Maaziah", i.e.. Kings of tlie pastand (b) those created by
DanishmandaneMashaikh and Um'ara i.e., men ofwisdom, Saint and nobles.

Sultan Muiz Uddin Muhammad Sam Ghaori made an endowment of two villages to meet the
expenses of the Jama masjid of Multan, and for the fivepublic lectures by the teachers for
Mukabbiran and students, the functionaries ofthe mosque, e.g., the muazzins and mukabbiran,
and for the (incidental) expenses on prayer carpets, Mussalla, Boriya, lighting and repairs of
the mosque. Allthese charitable foundations are related to the above. (Since) the efficient
management of the aforesaid mosque was in the hands of Hazrat-e-Ala (the King); till at last at
the request of Sheikh-ul-Islam. who was the Mutwalli of that wakf, he
(the King) entrusted this duty to him. As a lot of expenditure wasincurred over the building
(mosque), so it was ordered that a part of it be met byland revenue, and thereafter it shall be
met with the income of the two villages,which were assigned for the building of the Mosque.2
The same king created a wakf in favour of the mosque Talbina.

The wakf of Jama Masjid Talbina, which is also known as the wakf ofSultan Muizuddin
Muhammad Sam, is a village, and its expenses are similar innature.

Evidence of the existence of wakfs during later periods is found in manyhistorical books and
documents. Sultan Mohammad bin Tughlaq appointed IbnBattuta, the famous traveller, as the
Mutwalli of wakf in favour of the tomb ofSultan Qutb-Uddin Mubarik Shah.''3

The Tarikh-e-Ferozshahi establishes the existence of a large number ofwakfs during the time
of Sultan Ala'uddin (1296-1316 A.D).''5

2
"liisha-i-Mahrii or Tarassul-i-AyiiulMiilk" in transaction of the Indian History Congress (V Session, Hyderabad,
1941) pp.32-33.
3
The Rehla of Ibn Battuta, translation and commentary by Mahdi Husain, Baroda, 1953, p.40

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A farman dated 797 A.H. (1365 A.D), issued by Sultan SikanderKashmiri, declares an
4
endowment of three villages in favour of the Khangah ofHazrat Syed Muhammad.5

Three villages out of the villages of Kashmir, namely, Oochi of parganahShawvaiTa;

Vonunavani of parganah Martaiid and, Tral of parganahWoolar, arewakf (in favour) of the
Khangah (of) Hazrat Syed Muhammad bin Hazrat MirSyed Ali Hamdani. And the above three
villages and the land written heretoforeare endowed for this place of worship of high and low
alike.

Evidence relating to the existence of wakfs during the Muglial periodabound, and are too well
known to be repeated here. Many of these wakfs are inexistence even today.

2. ESSENTIALS OF WAKF
The essential conditions for a valid waqf are as follow:

1. Permanent dedication: The dedication of waqf property must be permanent and Wqif
himself must divot of such property and gave it for any purpose recognized by Muslim law,
like religious, pious or charitable. If the wakf is made for 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. Nazeerahmad,6 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. Thisis ensured through a legal fiction that waqf property becomes the property of God.7

2. Competency of the Waqf: Who Can Create a Waqf? : The person who constitutes the
waqf of his properties is called the ‘founder of waqf or, Waqf. 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 capacity of a Muslim for making a waqf, there are only two requirements:

(i) soundness of mind and, (ii) majority.

4
Zia-al-Din Bumi, Tarikh-e-Firzoshahi, p.283 (Biblio, Ind., 1862).
5
A hand-written true copy of tliisfarman is available in tlie Manuscript Division of tlie
Maulana Azad Library, Aligarh Muslim University.
6
monzer.kahf.com/papers/english/WAQF_A_QUICK_OVERVIEW.pdf
7
www.duhaime.org › Legal Dictionary

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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).8

3. Right to make waqf: A person having the capacity but no right cannot constitute a valid waqf.
The subject metter of wakf should be owned by wakif at the time when wakf is made. Whether
a person has 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.9

Where the waqf 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 entire property but in case of testamentary wakf
more than one third of his property cannot be dedicated.

3. OBJECT AND PURPOSE OF WAKF

All over the world human beings create charitable institutions bywhatever name they may be
called for acquiring merit in the eyes of God inthis life and in the next world. The fundamental
object behind every wakf is to earn pleasure of Allah. Wakf dedicates his property in lieu of
blessings ofGod. It is because of this reason that a property dedicated to please the ruleror any
person does not fall in the category of wakf. Thus the intention ofwakf determines the status of
the donated property. It is only when propertyis dedicated for religious and charitable purposes
to get reward for hereafter,that the w akf is said to have been created.
According to all the Schools of Mohammedan Law, a wakf may be created for the benefit of
any person or class Of persons, or for any object of piety or charity. The words "piety" and
"charity" include every purpose which is recognized as "good" or ’pious". The test of what is
"good" or "pious" or charitable is the approval of Almighty. Every good purpose (Wajjah-
ulKhair) which God approves or by which proximity to him (Qurbat) is attained is a fitting

8
Mohd Ibrahim v-Ahmed Sadiq Khan (1910), 32 All 503
9
Bibijan v Kalab Husain (1909) 31 All. 136

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purpose for a valid and lawful wakf. A wakf may be constituted for “religious and charitable
objects.”
The term “religious and charitable purpose” has a meaning which every Muslim well
understands. It is also defined in the Quran and explained by the Prophet (SAW). It cannot at
all be said that a wakf meant for religious purposes is in any way vague or indefinite and hence
invalid. But the term religious purposes do not include such dedications as "solely for the
worship of God", which is "an unmeaningful phrase in Islam" but the service of man and the
good to humanity constitute pre-eminently the service and worship of God. Everything which
is dedicated to God is in reality for the good of mankind, and everything which is dedicated for
the good of human beings individually or collectively, is for the service of God.

Under the Muslim system, charity has a more general importance than under the English Law.
There is no distinction between religious or pious purposes on the one hand and charitable
purposes on the other in the Muslim system.'10 Religious purposes do not exclude charitable
purposes. The Apostle of God said, 'Every good act is charity - your smile on your brothers'
face is a charity and your exhorting mankind to virtuous deeds is alms; and your prohibiting
the forbidden is alms, and your showing men the road, in the land in which they lose it, is
charity for you, and your assisting the blind is charity for you, and your removing of stones,
thorns and bones which are inconvenient to men, is alms for you. The religious and charitable
objects are so intimately connected with each other that in majority of cases there does not
appear any point of distinction between them. But it is well settled that the object of wakf in no
case should be opposed to the general religious policy of Islam so as to involve sin.11

4. 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 a limited control over the
usufructs.

In Ahmad Arif vs Wealth Tax Commissioner,12 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.

10
Mohd Ibrahim v-Ahmed Sadiq Khan (1910), 32 All 503 & See also Ghulam Husain v.
Muslim Husain (1934) Cal 348
11
Bibijan v Kalab Husain (1909) 31 All. 136.
12
Ghulam Husain v.Muslim Husain (1934) Cal 348
14
M.A.Qureshi, Wakfs in India (1990) pl26 15Re
Macduff (1896) 2 ch. 463.

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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,14 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 wakf 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 – 1. founder

2. executor of 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 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 agricultural purpose for less than three years and for
nonagricultural 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 –

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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,15 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.

5. JUDICIAL INTERPRETATION
Regarding the Modem view, the Indian text writers and judges are not unanimous on the point
as to whether a wakf can be created validly for the vague or uncertain objects. In Morice v.
Bishop of Durham16, a leading case on charities in England, it was held that bequest for
uncertain and vague objects were invalid. Following this decision there was a tendency among
the Indian High Courts to hold that a wakf for "Good object" in general was valid. This opinion
was supported by Wilson and Mulla.17 Ameer Ali’ on the other hand was of the view that the
principle of Morice v Bishop of Durham was not applicable to the law of wakfTyabji18 also
agrees with this view.

16
Wilson, Anglo Mohammedan Law 322 (citing Hedaya 240) 17
(1805) 10 vessy 399.
18
Supra note 3
19
Mulla, Principles of Mahomedan Law,(17th Ed.)
20
Syed Ameer Ali, Mohammadan Law (Vol I) P 195

Similarly, in Abdul Gone Kasim v. Hussan Miya Rahmatulla19, the learned Judges enunciated
somewhat startling proposition that a wakf in order to be valid must “ be solely to the worship
of Go d '. It is submitted that the meaning of this expression is difficult to understand. If that
view were correct, a wakf to an imambara, to a Khankah, to a Durgahetc would be invalid

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which is in absolute contravention of the Muslim Law. In the Islamic system there is no such
thing as a dedication ‘solely to the worship of God’. A dedication solely to the worship of God
is an unmeaning phrase in Islam. The service of man and the good of humanity constitute pre-
eminently the service and worship of God. Everything which is dedicated to God is in reality
for the good of mankind; and everything which is dedicated for the good of human beings,
individually or collectively is for the service of God, Every pious act is ibadat (worship) “The
service of God”.

In spite of the conflicting opinions, the modem approach is in resonance with the opinion of
Ameer Ali and Tyabji. The position can be summarized as under; "Once it is clear that there is
a bonafide intention on the part of the wakif to create a wakf and divest himself completely of
the property, there is a good wakf which will not be allowed to fail. Mere vagueness or
uncertainty will not lead to the failure of a wakf, for in such a case the law itself would
supply the defect by holding that the trust should be in favour of such objects as are very close
to the intended object of the wakf In absence of explicit directions on the part of the wakif, the
Mutawalli has a power of framing a scheme by himself or in consultation with the beneficiaries
for administration of the wakf The principle as laid down in Morice v. Bishop of Durham has
been occasionally applied to wakfs. But the truth of the matter is that it is not applicable to
trusts or consecrations under the Mohammedan Law. The Cypress doctrine circumscribes the
utmost limit in Muslim system, and the failure of the original purpose does not in any case
cause the failure of the wakf20

Again the dedication is to be religious or charitable which even if, in course of time ceases to
exist, the property so dedicated, instead of reverting to grantor or his heirs, would be applied
to some other religious or pious institution, similar in character to one which has failed, or to
any other object by which benefit may accrue to human being.21

21
Tyabji Muslim Law P 325
22
Tahir Mohmood, The Muslim Law of India (Ed. 2nd ) P 271.

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 CONCLUSION
It has been acknowledged by Muslim economists and scholars that waqf is an integral and
important part of the Islamic socio-economic system. Hence, it is important to rectify the
dominant prevailing perception that waqf properties are meant only for religious purposes.
Waqf institutions should emulate, wherever possible, the approach taken by the foundations, in
order to improve their operations and increase their endowment resources. Waqf institutions
should also consider widening the scope of their activities to include all other programmes that
have positive impacts on the livelihood of the society, but do not go against theShariah. The
waqf institutions should not limit themselves to only religious-based programmes. These
positive impacts on thesociety’s livelihood will ultimately result in improved socio-economic
status of that society.

It cannot be denied that the world has become more complex today than it was during the times
of the Prophet and his companions. Hence, it is not a surprise that waqf flourished easily during
those times. Globalization has brought with it many issues to the Muslim society, but
globalization can also promote knowledge sharing among countries and societies. As a result
of globalization, together with advanced technology, the transfer of knowledge has become
very rapid. Muslims should take advantage of this globalization to enhance their understanding
on waqf, on how other Islamic countries develop their waqf properties and how those countries
solve issues pertaining to waqf. Knowledge on how other voluntary institutions, such as
foundations, trust and endowments thrive in the western countries should also be obtained and,
wherever possible, be emulated to enhance the operations of thewaqf institutions. From the
discussion earlier, it is obvious that thewaqf institutions have a lot to do in order to improve
their operations, especially in the administration and management ofwaqf,the accounting
ofwaqf and the governance of waqf. The legal system relating towaqfalso needs to be refined
so that conflicts between different judicial systems can be avoided. If all the weaknesses
identified in the operations of waqf are rectified, coupled with proper understanding of waqf,
the waqf institutions will, at the very minimum, be at par with the foundations in alleviating
poverty and improving the socio-economic status of the society.

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BIBLIOGRAPHY:-
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Publications, Pvt. Ltd., 2001.
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Oxford University Press, 1974.
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