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Definition of Wakf :- Wakf means the permanent dedication by a person professing Islam of any
movable or immovable property for any purpose recognized by Muslim Law as pious, religious,
or charitable, and includes any other endowment or grant for the aforesaid purposes, a Wakf by
user, and a Wakf created by a non-Muslim.
Warjf, in Arabic language, means hold, confinement or prohibition. The word Wakf is used in
Islam in the meaning of holding certain property and preserving it for the confined benefit of
certain philanthropy and prohibiting any use or disposition of it outside that specific objective.
This definition accords perpetuity to Waqf, i.e., it applies to non-perishable property whose
benefit can be extracted without consuming the property itself. Therefore, Wakf widely relates to
land and buildings. However, there are Wakf of books, agricultural machinery, cattle, shares and
stocks and cash money.
Section 2(1) of the Mussalman Wakf Validating Act, 1913, defines a Wakf:- Wakf
means the permanent dedication by a person professing the Mussalman faith of any property for
any purpose recognised by Mussalman law as religious, pious or charitable.
Section 3(r) of the Wakfs Act, 1995 defines it as follow: Wakf means the permanent dedication
by a person professing Islam, of any movable or immovable property for any purpose recognised
by the Muslim law as pious, religious or charitable and includes:
(i) A Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having
ceased irrespective of the period of such cesser;
(ii) Grant, for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) A Wakf-alal-aulad to the extent to which the property is dedicated for any purpose
recognised by Muslim law as pious, religious or charitable.

Essentials of Wakf :- Followings are the essentials of wakf ;

1. Permanent dedication of any property.—The first essential of a valid waqf is, that it
should be a ‘permanent dedication of property’. This phrase implies three thing:
(i) there must be a dedication,
(ii) the dedication must be permanent, and
(iii) the dedication must be of any property.

(i) There must be a dedication.—.It means that there must be a substantial dedication of the
usufruct of the property to religious, pious or charitable purposes as understood by Muslim Law.
The dedication implies a declaration of the dedication. No particular form of words is necessary
for making a declaration of dedication. It may be either oral or in writing. Neither delivery of
possession nor appointment of mutawalli is necessary. Under Shia Law, no doubt, delivery of
possession to the first person in whose favour the waqf has been created is essential.

Long User.—Where land has for long been used as a wakf, proof of express dedication is not
necessary, and the legal dedication will be inferred. The waqfs to mosques and graveyards have
been upheld on this ground. Land used from time immemorial for the purpose of a masjid and for
its courtyard which formed part and parcel of the masjid and for celebration of Moharram
festival has been held to constitute a waqf by user. Where a mosque was used as a place of
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worship for a long time and the worship was also performed, it will be presumed that the
property was dedicated as waqf property. Where to the original mosque, which is proved to be a
waqf property, an area is added by the mutawalli by way of construction of rooms and this area is
used by the public for religious purposes alongwith the old mosque, then it must be regarded as
one unit and treated as such. The whole property will be treated as waqf property user.

Mohd. ismail Faruqui v. Union of india (Ayodhya Case),AIR 1994 SC 605 the Supreme Court
has observed that where a mosque has been adversely possessed by non-Muslims, it lost its
sacred character as mosque. Hence the view that once a consecrated mosque, it remains always a
place of worship as a mosque was not the Mohamedan Law of India as approved by the Indian
courts. It was further held that a mosque in India was an immovable property and the right of
worship at a particular place is lost when the right to property on which it stands is lost by
adverse possession.

In Chhedi Lal Misra v. Civil Judge,’ the Supreme Court observed that it is a well established
principle that once a wakf AIR 2007 SCC 632 is created, the wakif stands divested of his title to
the properties which after the creation of the wakf vests in the Almighty. It is, no doubt, true that
in a given case the creation of a wakf may be questioned if it is shown that the wakif had no
intention to create a wakf but had done so to avoid a liability. But in the instant case, such a stand
is not available to the wakif or the Mutawalli since the wakf was created in 1926 and was
registered under Section 38 of the Act, 1936 and was also notified in the Official Gazette in Jan.
1954. It was only thereafter in 1958, that is, after 32 years that the wakif filed a collusive suit
which was decreed on compromise. The wakif did not, however, question the registration of the
wakf under the provision of the 1936 Act, nor did he challenge the gazette notification published
in January 1954. The Court also did not find any force in the submission that since the revenue
records were altered to show the properties to be the secular properties of the appellant, the wakf
character of the properties had been obliterated. The law is well settled that once a wakf is
created it continues to retain such character which cannot be extinguished by an act of the
Mutawalli or anyone claiming through him.

(ii) The dedication must be permanent.—Perpetuity is a necessary condition for the validity of
Waqf.’4 If it is for a limited period, or for a temporary purpose, it is void. A dedication, say for
ten or twenty years, being limited in point of times, is not valid. Similarly, a contingent or
conditional waqf is not valid. According to Fatawa-i-Alamgiri, ‘perpetutiy is also among the
conditions of waqf according to all opinions, though according to Abu Yusuf the mention of it is
not a condition., and this is correct’. Wherever the term ‘waqf” is used permanence will be
presumed as a matter of law.
In Mohd. Khasim v. Mohd. Dastagir AIR (2006) 13 SCC 497 the Supreme Court in
unequivocal terms held that according to Mohammedan Jurists, the term “wakf” literally means
dedication by a person professing the Mussalman faith of any property for any purpose
recognised by Mussalman law as religious, pious or charitable. The Court further observed that
in order to constitute a wakf, there must be a permanent dedication of the properties in question
of favour of God Almighty and while the objects of the wakf may initially be for the benefit of
the wakif’s family and other descendants, the ultimate beneficiary has to be God... The other
important lays test in the nature of inalienability of the properties forming the nucleus of the
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wakf. Once a wakf is created the title of the wakif in the dedicated property is extinguished and
vests in God. The wakif is entitled to reserve power to alienate any portion of the properties, but
for the benefit of the wakf. In the instant case, the executant had reserved to himself the power to
alienate the trust properties, but one of the conditions stipulated in the dead was that his two
minor daughters were to be given immovable properties worth Rs. 8000. A further direction was
given by the executant that after his death, the daughters were to be given the properties only
when they had made issues. In the absence of any male issue the properties would return to the
trust. The court held that the said directions run contrary to the concept of wakf and indicate that
the executant intended to create a simple English trust. Although, in order to create a valid wakf
it is not to use the term “wakf” in the document in question, except for providing for the
performance of certain religious ceremonies, pious and charitable duties, there was no mention
that the dedicator had ever intended that the properties forming the subject-matter of the trust
should constitute a wakf. The executant appears to have deliberately used the expression
“trustee” and not “Mutawalli”. Moreover, there is no bar to a Mohammedan creating a simple
English trust. It is not always necessary that in order to make a settlement of his properties, a
Mohammedan has always to create a wakf.

(iii) The dedication must be of any property. (Subject of waqf).— The subject of waqf may be
any tangible property (mal) capable of being, used without being consumed. Abdur Rahim lays
down that the property dedicated must be (i) (ma!) tangible property, and (ii) it must be
capable of being used without being consumed.
there are no further
restrictions. This means that a valid waqf can be created not only of immovable property but also
of movables, such as, shares in joint stock companies, promissory notes and even money.’,
Hanafi Law recognises the following as valid subjects of waqf:
(a) immovable property.
(b) accessories to inimovable property.
(c) Quran or other books.
(d) such other things as it is customary to make the subject of waqf:
Provided always that
things that are consumed by use cannot validly be the subject to waqf, i.e., the thing must be of
reasonable permanent character.

Subject of waqf must belong to waqif.— The property to be dedicated must be in the ownership
of the dedicator (waqif). One cannot dedicate another’s property of waqf. In other words, waqif
must be the owner of the property dedicated. A person who is in fact the owner of the property
but is under the belief that he is only a mutawalli thereof is competent to make a valid waqf of
the property. What is to be seen in such cases is whether or not that person had a power of
disposition over the property. A valid waqf may be made of the property though it is subject to a
mortgage,’ or a lease. A usufructuary mortgagee cannot make a valid waqf as he is not the owner
of the mortgaged property and such a mortgage is an evasion of the Muslim Law against usury.
A widow cannot dedicate her dower debt.

Registration.—A waqf-nama, by which immovable property of the value of Rs. 100 or more is
dedicated by the way of waqf requires to be registered under the Indian Registration Act, 1908.
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This provision will be applicable even if the dedicator has himself appointed as the first
mutawalli of the said waqf.

2. Wakf must be irrevocable: Once a valid Wakf is constituted, it cannot be revoked. When
the Wakf reserves to himself, the right of revoking the Wakf, such a Wakf would be void.
The Wakif as a human being cannot subsequently revoke it because this would amount to
taking back from God whatever is given to him. Any provision in the Wakf that founder
may revoke it whenever he likes, would be un-Islamic and also inconsistent with the
very concept of Wakf Therefore, it is presumed that once a Wakf always a Wakf
A testamentary Wakf is
revocable. It may be revoked by the settler any time before his death. This is because a
testamentary Wakf is like a Will and, therefore, it comes into existence only after the
death of the Waktf4 Before the death of the settler, the property continues to remain with
the Wakif it is transferred to God only after Wakf death.

3. Wakf must be absolute and unconditional: it is impossible to contemplate property

transferred to Almighty God subject to a condition enforceable in the temporal courts for
recovering that property for the benefit of the settlor. Dedication to God cannot be
permanent if its existence depends on some condition. Thus, the constitution of a Wakf
must absolute, not depending on any condition or contingency. Where the creation of
Wakf itself is dependent on some condition or contingency, the Wakf is void.

4. Wakf must be immediate and not contingent: A Wakf must take immediate effect
absolutely and for ever, except where the Wakf is created by Will. Law requires
immediate transfer of property and any effort to postpone the transfer of Wakf property
would be void. A Wakf cannot be deferred to a future date. It must not be contingent to
some future date. Therefore, if a person says that ‘this property is a Wakf after my death’,
the Wakf would not be valid on the ground that it would not cover the period from the
declaration and his death. But a testamentary Wakf comes into existence only after the
death of the Wakif. If a Wakf is made on the contingency of happening of an event, it
would be valid. A Wakf would be invalid, if made on the contingency that the property
would be dedicated, if no children are born to the Wakf till his death or he leaves
children.

5. Wakf not to be conditional: The important rule is that the dedication must not be
suspended on any conditional thing, or if the Wakf reserves a right to resume the
possession the Wakf would be invalid. But Wakif may reserve some rights of benefit to
himself or to some other person. In such a situation Wakf would be valid. Where some
rights for Wakf are reserved on part of dedicated property, which are not allowed by the
law and considered as a condition, the Wakf in ,respect of rest part of the property would
be valid and for that particular part would be invalid. According to Abu Yusuf, if a Wakf
reserves the right of revocation of Wakf to himself it is considered a condition and as
such invalid.
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6. The Wakif must extinguish his ownership of the property: Another salient features of
Wa/cf is that the Wakif must divest himself of the ownership of the property. Once, the
dedication of property is made to the Wa/cf. the ownership of the Wakif is extinguished.

7. Object must be Religious or charitable: The produce and benefits of the Wakf property
are utilised only for such purposes which are recognosed as religious, pious or charitable
under Muslim Law.

Persons entitled to make a Wakf :- The person who creates a Wakf is called, Wakf A Wakif
must have the following qualifications:
1. The Wakif must profess Islam: According to section 2(1) of the Mussalman Wakf Validating
Act, 1913, ‘Wakf means the permanent dedication by a person professing the Mussalman
faith....’. Under section 3(L) of the Wakf Act, 1954, ‘Wakf means the permanent dedication by a
person professing Islam....’.
Both these two Acts contemplate that a Wakf can be created by a Muslim only. But either of
these Acts, professing of Islam was not a condition precedent for creating a Wakf.

Wakf by non-Muslim: Wakf is an institution of Muslim personal law therefore, t the dedicator is
generally a Muslim. But a non-Muslim can also constitute a valid Wakf.

In Moti Shah v. Abdul Gafar Khan, it has been held that the object for which dedication is made
must be lawful according to the religion of the dedicator as well as the Islamic doctrine. Whether
a non-Muslim really believes in the Islamic doctrines, may be evidenced from the object for
which he constitutes the Wakf. If a non-Muslim constituted any Wakf for a temple it is clear that
he has no faith in Islam. It, therefore, says that a non-Muslim is also competent to make a Wakf
provided its object is not un-Islamic.

2. The Wakif may be a male or female: A pardanashin lady may be a competent Wakf Such a
lady has right to make a Wa/cf of her properties provided she possesses the required capacity and
right. But where the Wakf is pardanashin lady, the beneficiaries and the Mutawalli have to prove
that she had exercised her independent mind in constituting the Wakf and had fully understood
the nature of the transaction.

3. The Wakif must be a major: The Wakf should be a major under section 3 the Indian Majority
Act, 1875. The age of majority under this Act is 18 years. Wakf cannot be created by a guardian
on behalf of the minor, such a Wakf is valid. So Wakf constituted by guardians on behalf of
minors are void ab initio.

4. The Wakif must be sound mind and free consent: The Wakf should have sound mind.
Similarly, a Wakf created under coercion or undue influence is not valid. The Wakf must apply
his independent mind in dedicating the property. It means that the Wakf must have been made
with free consent of its founder.

5. The Wakif must be of the owner of the property: It is necessary that the property being given
in Wakf should belong to Wakif at the time of declaration or deed as the case may be, and if it is
not so then the Wakf would be invalid. So, Wakif should be the owner of the property in respect
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of which the Wakf is created, A Wakf of property which is in possession of the Wakif as a
usufructuary mortgagee is invalid. It is, therefore, the important thing is that the Wakf must be a
permanent dominion over the subject-matter of the Wakf.

6. Good Manners: The Mutawalli should be pious who is honest, avoids major sins and has good
manners.

7. Efficiency: The Mutawalli should be able to handle the properties he looks after. He must be
observe that efficiency in managing the Wakf property is the important element to ensure the
Wakf property is not wasted. This is especially important under today’s dynamic financial system
which requires lot of expertise ii managing funds. Mutawalli should be able to handle the
properties he looks after.

Subject-matter of Wakf or what can be dedicated as wakf (Mauquf)

Originally the idea of property which could be the subject of Wakf was extremely restricted.
When the institution of Wakf came into being, the oldest known Wakf was of a reasonably
permanent character and consisted of land, fields and gardens. But very soon thereafter the jurists
came to the conclusion that in addition to immovable properties, some sort of movable properties
could also be made Wakf For instance, working cattle and instruments of husbandry, Qurans for
reading in mosques other movables not necessarily consumed in their use, i.e., war horses,
camels and swords and a chest of money for loans to the poor. followed and Wakfs of movables
were held to be valid. From the above, the following property may be a subject-matter of a Wakf

1. Immovable Property: Immovable property may be the subject-matter of a Wakf. It includes

land, fields, garden and also the buildings and trees standing on the land.’ All, all accretions and
appurtenances become a part of the Wakf property.

2. Movable Property: Originally, only immovable properties were the subject- matter of the
Wakf but gradually the movables such as camel, workmg cattles, warhorses, swords, copies of
Holy Quran for reading in mosques were made the subject-matter of Wakfs. After coming into
force of the Wakf Act, 1913 movable property such as share in Joint Stock companies,
Government Promissory Notes and even money, a grove and offering made in a Shrine has been
the subject-matter of Wakf. But the following movables are not the subject of Wakfs. These are
money decree, dower: debt, and rights of usufructuary mortgagee and Wakf profits apart from
the land.

3. Divisible or indivisible property: The subject-matter of a Wakf may include a divisible or

indivisible property. Indivisible property includes well, canal or stream, small houses and private
road, etc.’It is submitted that in view of the wide meaning given to expression ‘any property’ in
section 2(1) of the Wakf Validating Act, 1913, anything transferable may be dedicated in Wakf
provided it is owned by the Wakf The subject-matter of a Wakf may be a tangible or intangible or
movable or immovable property provided it is owned by the Wakif
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4. Wakf of Musha: A Musha, an undivided share in property, may be a subject of Wakf There is
divergence of opinion among Muslim authorities on this point. Abu Yusuf is of the opinion that
the Wakf of Musha, divisible or indivisible is valid but according to Imam Muhammad a Wakf of
property capable of division is invalid. Thus, a Muslim may : constitute a Wakf of his undivided
share in the property without separating it from the rest. The Wakf of Musha is valid even if the
property is divisible. Thus, when a co-owner constitute any Wakf of undivided part of his share
in a joint property, he need not separate it from the rest of the property even though its separation
is possible. However, this general rule is subject to following exception:
(i) Wakf for construction of Mosque: Where an undivided share is dedicated in Wa/cf for the
construction of a mosque, the Wakf is not valid if the undivided share had not been separated
from the rest of the joint property.

(ii) Wakf for Graveyard: Where the Wakf is constituted for a grave yard for the general public,
the Wakf is not valid unless the undivided share has been partitioned.

(iii) Wakf of leasehold property: Where the Musha is a share in any leasehold property the Wakf
is not valid without partition.

Doctrine of Cypress :- Cypress literally means ‘as nearly as possible’. It is an English doctrine
which applies to Mohammedan Wakfs also. The doctrine is based on the reason that rights and
benefits of poor and needy should not be hampered only on technicalities of law through which
an object may fail. The only condition required is that the Wakf is valid otherwise.
The doctrine of Cypress lays down that if the wishes of the Wakf cannot be carried out literally,
they will be carried out as nearly as possible in the way desired. In other words this doctrine lays
down that if a charitable intention has been expressed by the dedicator (Wakif) the Wakf will not
be void because the object specified by the founder has already been completed or failed and in
such cases the income will be applied for the benefit of the poor or to objects as near as possible
to the object that has failed. The doctrine is applicable only if the Wakf is originally valid but if
the Wakf itself is invalid, the doctrine of Cypress will not apply.
Once it is clear that there is a bonafide
intention on the part of the Wakf to create a Wakf, and divest himself completely of the property,
there is good Wakf which will not be allowed to fail. A valid Wakf thus may be constituted:
(i) Where the objects are not specified at all, or
(ii) Where the objects meets its goal, or
(iii) Where the object fails as being impracticable, or
(iv) Where the objects are partly valid and partly not valid.

In Salebhai Abdul Kader v. Bai Safiabu,’ the court held that where the particular object laid
down in a Wakf fails because of some reason, the Wakf would not come to an end. It would
continue and income of the property may be utilised for such other objects which are very similar
to the object laid down in the Wakf. Therefore, where it is not possible to use the property exactly
in the manner directed by the founder, the court may apply this doctrine and direct a Cypress
application of the income of Wakf property. For example, if a Wakf is created for removing
illiteracy among the adults of a locality but after some time it is found that all the adults of that
locality have become literate then the income of that property may be utilised for giving them
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further education or for educating children of that locality.

In such cases, every effort must be made that the income is applied for those purposes only
which are as nearly as possible similar to the purpose intended in the Wakf. Even if the object is
not specified but a clear charitable intention is expressed in a Wakf, the doctrine of Cypress may
be applied and the income of property may be used for any purpose recognised under Muslim
law as beneficial to mankind.

OBJECT OF WAKF :- Section 3(r) of the Wakf Act, 1995 provides that the purpose or object of
Wakf must be ‘pious, religious or charitable’ and also included by user, Mashrut-ul-. Khidmat,
for any purpose recognised by Muslim law, and Wakf-Alal-Aulad (family Wakf).
Wakf is a permanent dedication of any property in the ownership of the Wakif. Under Muslim
law, such dedication is lawful if it is in consonance with the provisions of the Muslim law.
Generally, Wakfs are created for religious, pious or charitable purposes but family Wakfs may
also be created.
Under the Muslim law, Wakfs in respect of object may be classified into three cotegories:
1. Family Wakfs (Wakfs-Alal-Aulad)
2. Public Wakfs (Wakfs-Sabi-Lil-Lah)
3. Wakfs under statutes

1. Family Wakfs (Wakfs-Alal-Aulad) :- Right from the Mussalman Wakf Validating Act, 1913
to the Wakf Act, 1995 all legislative enactments have recognised Wakf-Alal-Aulad. Family Wakfs
were recognised by the Muslim law. The Prophet is reported to have said, ‘when a Muslim
bestows on his family and kindred, hoping for reward in the next world, it becomes alms,
although he has not given to the poor, but to his family and children’.
So the philosophy of Islam is the support of one’s
family and children was the first duty and necessity of every Muslim so that they may not be
burden on the society. If the children would get into want and have nothing for themselves, they
would beg for their livelihood and would become a liabffity for the society. In order to avoid
such unpleasant situation, a Muslim is allowed to make adequate arrangement for the
maintenance of his children and descendants through the medium of a Wakf. Under Muslim law,
making provisions for the maintenance, comfort and dignity of one’s own children is also
regarded as an act equal to that of charity. As against the common notion that charity means
‘doing something for others’, the Islamic philosophy sets an example of the English proverb
‘charity begins at home’. Right from the start the object of created Wakf has to be for objects
limited within parameters of ‘pious, religious or charitable’.

A Wakf may either be public or private. A public Wakf is that in which

the beneficiaries are public generally. Where the beneficiaries are only the members of the
founder’s family or his descendants, the Wakf is private. A private Wakf is also called as a family
Wakf or a Wakf-Alal-Aulad. The family Wakf is an institution which a Muslim can provide for
himself, his children, his descendants and other relations for an indefinite period. There arose a
great dissatisfaction in the Muslim community which led the Legislature to pass an Act for
validating the family Wakf and consequently, the Mussalman Wakf Validating Act, 1913 has
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been passed. Later on the Family Wakfs were validating retrospectively by an amendment to this
Act in 1930.

After the coming into force of the

Mussalman Wakf Validating Act, 1913, the Wakfs falling under category (i) are not valid, though
earlier also it was void, but the Wakfs falling under categories (ii) and (iii) continued to be valid.

(i) Wakfs exclusively for the Family: Such type of Wakf is perfectly valid under pure Muslim
law. So making provisions for oneself and his family is a pious act and amounts to charity under
Islamic law. According to Baillie,3 also the family Wakf exclusively for the benefit of the settlor,
his children, descendants and other relations were recognised by Imam Muhammad. Ameer Ali
also holds such Wakf to be valid.

A Wakf-Alal-Aulad is a contract
and the property vests in the beneficiaries. Muslim law recognizes Wakf-Alal-Aulad where
ultimate benefit is reserved to God but the property vests in beneficiaries and the income from
the property is used for the maintenance and support of family and descendants. In case the
family becomes extinct then Wakf becomes public property vesting in God. But the Privy
Council disapproved these Wakf. In such Wakfs the benefit of Wakf goes to only his wife, sons
and daughters and grand-daughter etc., but no benefit is given to charity, so these were void. In
Abdul Fata Mohammad v. Rasamaya, such Wakfs were held invalid by the Privy Council. So,
after coming into force of the Mussalamari Wakf Validating Act, 1913, Wakfs exclusively for the
family are not recognised and have been invalid and continue to be so even now-a-days.

(ii) Wakfs substantially for the family as well as for charity: Before coming into force of the
Mussalaman Wakf Validating Act, 1913, the Privy Council in Abdul Fata Mohammad v.
Rasamaya, held that if the primary object of the Wakf was the aggrandizement of the family then
the Wakf object be invalid even if there was some gift of an illusory kind for charity. A Wakf
both for the benefit of the family and for charity was valid only if there was a substantial
dedication of the property to charitable uses but not otherwise. So those Wakf having illusory
provisions for charity but otherwise mainly for the benefits of family were held invalid. For
example, in a leading case, where the Wakf directed that the income of the Wakf property was to
be applied at the first instance for the benefit of the Wakifs descendants from generation to
generation and the Wakf in favour of the charity was not to come into existence until after the
extinction of the whole line of the Wakif s descendants, the Wakf was held invalid.

(iii) Wakfs substantially for charity as well as for the family: Though Wakfs for family
exclusively have not been recognized by courts in India as they do not recognize pure Muslim
law in this regard, according to which dedication for children, kiths and kins is a pious act, a
Wakf deed may be constructed where ample provisions may be made for the benefit of poor
Muslims for charity. Prophet himself and Quran give much importance to Wakf-Alal-Aulad and
the very few first Wakfs created during life time of Prophet of Islam and just after him, recorded
in Islamic history, are of this kind. So, before coming into force of the Mussalaman Wakf
Validating Act, 1913, where Wakfs were created providing substantial dedication of property for
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charitable purposes at some period of time or other, howsoever, remote it may be, such Wakfs
were held valid and continued to be so even after passing of the Act.

In Sheikh Mohd. Ahsanullah v. Amar Chand, the Privy Council held that WakfAlal-Aulad was
valid if there was ‘substantial dedication of the property to charitable uses at some period of time
or other. Explaining the nature of a
family-Wakf, the Supreme Court has observed that in a Wakf-Alal-Aulad, the ultimate benefit is
reserved to God but the property vests in the beneficiaries and the income from the property is
used for the maintenance and support of the founder and his descendants. In case the family
becomes extinct, the Wakf becomes a public Wakf and property is vested in God.
The ultimate test being that Wakf-Alal-Aulad must reserve the ultimate benefit
for the poor or any other purpose which is pious, religious or charitable of a permanent nature. It
is not necessary that such benefit should be substantial. The deed would not be void, simply
because the immediate beneficiary is outside the class for whom provisions are made. In such a
case the benefit may be cut out and rest of the provisions may be given effect. So that charitable
disposition is accelerated, provided there is a provision for it beforehand.

Shia Law: If the condition of ultimate disposition in favour of charity is not satisfied the Wakf
would be invalid and the effect would be to give the property back to Waktfs descendants.
In Smt. Faiqa Khatoon v. Riyazur Rahman Khan Sherwani, where the issue was who is
beneficiary under section 3A of the Wakf Act. The court held that intention of Wakif creating
Wakf-Alal-Aulad was for benefit of his family and all his heirs by implication daughter or sons or
sons of sons were not excluded. So consequently daughter of son of Wakf being of heir would
fall within ambit of beneficiary as defined section 3A of the Wakf Act.

Mosques :- A mosque is a place where the Mu offer prayers in congregation or individually. To

consecrate a mosque. dedication is essential; mere construction of its building Is not enough.’

In M S. Labha v. Md. Harufa, 1976 SC 1569. Fazl All J, after a review of authoritf on Muslim
law, views of textbook writers and judicial decisions, said that for a valid dedication for a public
mosque (or of any other institution of a public nature) the following conditions must be satisfied
: (a)
the founder must declare his intention to dedicate property for the purpose of a mosque, though
no specific form of declaration Is necessary, not any is laid down. The declaration may be
inferred from the conduct of the founder.

(b) The founder must divest himself completely of the ownership of the property. The divestment
may be inferred from the fact that he had delivered possession to the mutawalli or the irnam of
the mosque. Even if no actual delivery of possession takes place, the mere fact that members of
public permitted to offer prayers with azart and ikmat will be enough, and a complete and
irrevocable wakf for mosque will come Into existence.

(c) The founder must make a separate entrance (of any sort) to the mosque which is to be used by
the public to enter It. Under the Ithana Asharl law, dedication is complete by a formal declaration
 11

coupled with the fact that the members of public are permitted to offer prayers.
Any adjuncts to a mosque also belongs to the mosque.
Thus, properties attached to. a mosque or any additions or alteration (either structural or
otherwise) made to it which are incidental to the offering of prayer, or for other religious purpose
are part of the mosque and constitute one single unit so as to be the part of mosque. Any money
given for the repair of the mosque, or for its maintenance, or for its benefit, operates as a gift to
the mosque and becomes part of the wakf of the mosque, but no separate wakf comes to offer
existence.
Where a mosque has been in existence for a long time and the prayers have been offered therein,
it will be Inferred that dedication for mosque is complete and the property no longer belongs to
the owner.

Graveyard (qabristan, takia and dargah) .— Public and private graveyards.—Under Muslim
law, dedication of
property may be made for a qabristci.n or graveyard. If dedication is complete, a wakf will come
into existence. Like Mosque, a graveyard may be: (I) a public graveyard, or (II) private
graveyard. A graveyard is private when Its use is confined to burial of corpses of the founder, his
children, descendants and relatives. In such a qabristart, no person who does not belong to the
family of the founder is permitted to bury his dead. A public graveyard is one open for the burial
of any Muslim.
It can happen that by long usage a private burial place may become a
public burial place. Thus, where members of public are permitted to be buried and the practice
grows so that by Instances adequate in character, number and extent, the presumption will be that
the dedication is complete and the graveyard has been in existence for a long time, and it is
admittedly a fact that it has been used by the public as qabristan, this by itself will be sufficient
presumptive evidence to show that the land has been set apart for use as a burial ground, and by
user, if not by dedication, the land Is wakf,

In Md. S. Labhia v. Md. Hart fa, the Supreme Court observed: “Once a qabristan has been held
to be a public graveyard then It vests In the public and constitutes a wakf, and it cannot be
divested by non-user but will always continue to be so”. Similarly, If a burial ground Is
mentioned either in the revenue records or historical papers as a public graveyard, then it will be
a conclusive proof of that fact. A graveyard once created continues to be so even when there
remains no trace of dead, not even the bones.

Dargah.—In India “dargah” means a shrine, i.e., a tomb of a Muslim saitit. It is mostly used as
a place of religious prayer. It appears that an endowment to a dargah is not mentioned among the
religious and charitable objects, nor is it mentioned in connection with wakfs. In Persian, the
term “Dargah’ means ‘the way out, a court before a place or great houses a large bench or a
place for reclining upon, a mosque”.’ According to Yule’s Dictionary, ‘dargah” means “the
shrine of a saint, a place of religious resort and prayers’.
In India, it is ‘an established meaning of
dargah that it is a shrine or tomb of a saint; such a tomb is respectively referred to as the portal
to the spiritual place of the saint. It generally includes a group of buildings of which the tomb is
the nucleus. The Prophet was against the erectiOn of an elaborate mausoleum, or excessive
 12

outlay for a tomb. This is the reason why Mughal Emperor Aurangazeb chose a simple grave of
earth even without bricks and mortar. However, in India, a belief has grown that great religious
reverence may be shown to the burial place of a saint, and, so much so that it has come to be
established that dedication of property can be made to a dargah and a wakf can be constituted.
The term “dargah’ is used in two senses :
(i) it may refer to the tomb itself (this is the strict view), or
(ii) it may include the whole group of buildings of which the tomb is the nucleus.

A dargah in
the former sense is an institution in a very different sense from a mosque or khanqo.h as an
institution. Sometimes, Institutions like a khanqah or a mosque spring up in the vicinity of a
ciargah and dedication of property is made for their maintenance and upkeep. In such a case
question of administration arises. Sometimes a mutawalli may be appointed. But in a dargah
there is usually a mujawar, Le., a servant of the shrine, who also looks after its administration
and management.
According to Wilson’s Glossary : “mujawar” is a servant or sweeper of a Muslim shrine.
Richardson’s Persian and Arabic Dictionary defines him as a person fixed to the shrine. His
duties are to sit by the tomb, to read Fatawa to devotees, to invoke blessings for the pir for the
devotees, to keep lights burning at the shrine, to put up incense, to place flowers on the tomb, to
weigh children, to put ghflaf (covering) on the tomb and to act generally as Intermediary
between the devotees and the pir (which is opposed to basic tenets of Islam, but nonetheless has
become a well established practice). Fyzee rightly says that the office of rnujawar as an integral
part of a dargah is not known to Muslim law.’ But it has come into existence by usage, and
sometimes even a hereditary office of mujawar exists by custom.

Takia:- The word “takia” literally means a “resting place”. Among [ the Muslims a burial
ground is sometimes called a takia. Sometimes a takia is only a place of assembly in a village
and is devoid of all religious connotation. Sometimes It is a platform in a Muslim graveyard
where prayers are offered. Sometimes a fakir builds his hut near a takia in a graveyard and takes
up his residence there. In course of time he starts imparting religious instructions there, and starts
calling it a khanqah. May be, in course of time, the fakir is able to collect disciples at his
residence and ultimately it develops into a public institution of sine importance, and thus may
become a real khanqah.

Khanqah.A Khanqah is a religious institution analogous to Hindu math. Just as religious

Instructions are imparted in a math, so are In a khanqah. is a Muslim monastery where dervishes
and other seekers after tnith congregate for religious instructions and devotional exercises.
A khannqah Is founded by a holyman In a place where esoetric teaching acquires a certain fame
and sanctity. A khanqah may come into existence by long usage or by dedication. Then It
becomes a wakf. A typical case of wakf by long usage is the Multan shrine of Mat Pak Daman.

SaJJadanashin.—The religious head of a khanqah Is called sqjjadanashin. Literally the word

means the one who sits at the head of a prayer-carpet. In the words ofAnieerAli, ‘The
sajjadanashin is not only a mutawalil but also a spiritual preceptor. He Is the curatQr of the
durgah where his ancestors he buried, and In him Is supposed to continue the spiritual line. The
 13

dargahs are the tombs of celebrated dervishes, who, In their life time, were regarded as saints.
Some of these men have established khanqahs where they lived, and their disciples congregated.
Many of them never rose to the Importance of khanqah, and when they died and were burled,
their mausoleums in course of time became shrines or dargahs. These dervishes professed
esoteric doctrines and distinct system of initiation”.’
The founder of a khanqah Is usually its first sajjadanashin and after his
death the spiritual line Is continued by a succession of scdJadanashjns. In the absence of a
scheme of succession in the wakf-nama, the succession to the office of sajjadanashin is regulated
by custom. One such custom is that an electoral body consisting of falcirs and murids elects a
competent person (usually a son or nominee of the late sajjadano.shin as sajjadanashin. Fyzee
says, “The special feature of the office of a sajJadartashin) Is that the original founder has the
right to nominate his successor, who In turn enjoys the same rights. Thus, a chain of preceptors
(called silsila) comes into being, and the followers, known as muricis, pay homage not only to
the founder but also to the whole lIne, including the present link, callec pii or murshlcl.
Theoretically the most illustrious disciple is to be installed as heir apparent, but according to
custom, In the majority of cases the officer becomes hereditary.” Sometimes by usage or custom
a sajfadanashin has the power to nominate his successor. In the absence of any instructions in
the wakf-rtama or custom, the court has power to appoint a sajjadanashin. In appointing a
sajjadanashin. the court should take into consideration the spiritual traditions of the kho.nqah.

Waqf how created. :- Muslim Law does not prescribe any form for creating waqJ. It may be
either verbal or in writing.
Modes of creation.— waqf may be created either :—
1. by an act inter vivos; or
2. by will; or
3. during death illness (marz-ul--maut); or
4. by immemorial user.
1. “Inter vivos” means, ‘between living voices’, i.e., during the lifetime. Thus a waqf by an inter
vivos is a waqf which is constituted during the lifetime of the waqif and takes effect from that
very time. There are no limitations on creating a waqf by an act ‘inter z’ivos’. A waqf is
completed, according to Abu Yusuf, by the mere declaration; according to Imam Mohammad it
is not completed unless, after the declaration a mutawalli is appointed, and possession is
delivered to him, and according to Abu Hanifa it is not completed without a decree of the Court
unless it is a testamentary waqf.
Shia Law.—Under Shia Law of waqf is not complete unless possession of the waqf property is
given either to the mutawalli, or to the first beneficiary. Where there is no document expected by
the waqif at the time of making the
alleged waqf it must be proved by cogent evidence that he had delivered the possession to the
mutawalli.
2. A waqf by will (wasiyat) stands in contradiction to a waqf, created by an act inter vivos. It
takes effect after the death of the waqif and is also called ‘testamentary, waqf A waqf by will
cannot operate upon more than one-third of net assets, without the consent of the heirs. A waqf
created by will is not invalid because it contains a clause that the waqf shall not operate if a child
is born to testator. The reason is that a testator has power in law to revoke or modify this will at
any time he likes, and he may, therefore, revoke a waqf created by will even without reserving
any express power in that behalf.
 14

Shia Law.— It was held at one time that a Shia cannot create a waqf by will. But this view was
erroneous and it has been held by the Privy Council that a Shia can create a waqf by will.

3. Like gifts made while the donor labours under marz-ul-maut, the waqf made during death-
illness (marz-ul--maut) will operate only to the extent of one-third of the property without the
consent of the heirs of the waqif.
Shia Law.— The same is the rule of Shia Law.

4. Lapse of time frequently renders difficult or impossible to establish dedication by direct

evidence, but waqf may be established by evidence of immemorial user, e.g., when a land has
been from time immemorial used for the purpose of a burial ground, it is a waqf by immemorial
user. It is a settled law that in a case where a long period has elapsed since the origin of an
alleged waqf, user can be the only available evidence to show whether the property is waqf or
not. Similarly, where for a considerable number of years the public offered prayer in a mosque
close by a tomb of a Muslim saint, it was held that the mosque was duly dedicated.

Completion of waqf.—The problem as to how a waqf is completed, may be studied from the
following two angles :—
1. where third person is appointed as the first mutawalli,
2. where founder constitutes himself as first mutawalli (manager or superintendent).
1. Third person as first mutawalli.—As to how a waqf is completed in a case where a third
person is appointed as first mutawalli of the waqf, the following two views exist on the point :
(a) declaration of waqf,
(b) appointment of mutawalli, and
(c) delivery of possession to mutawalli.

2. Founder himself first mutawalli.—The founder may himself constitute as first mutawafli. In
such cases, the founder and the .mutawalli being the same person.—
(i) no physical possession is necessary,
(ii) nor is it necessary that the property be transferred from his name as owner into his name as
Mutawalli.

The transaction must, however, be bona fide. The onus of proving the contrary is on the person
alleging that the waqf was not bona fide one. The settlor and those claiming under him can
however argue that no wanf was created.
Thus it is clear that here too, the only condition for the completion of waqf is the declaration of
waqf showing intention to that effect. Another important point which arises in this connection is
whether a mere intention to set apart property for charitable purposes is sufficient to create a
waqf. The answer is ‘No’. Declaration is also essential for it.

The Supreme Court in Garib Das case held that in such cases (where the founder is the first
mutawalli) it is not necessary that the property should be transferred from the name of the donor
as owner in his own name as mutawalli. In such cases, an apparent transaction must be presumed
to be real and onus of proving the contrary is on the person alleging that the waqf was not
intended to be acted upon.
 15

Shia Law.— According to Shia Law, the character of the waqf possession should be changed
from that of the founder of the waqf to that of mutawalli of the waqf, e.g., by mutation of names
in a public register. Where there is neither a declaration of waqf nor delivery of possession, a
mere intention to set apart property for charitable purposes is not sufficient to create a waqf even
if the income of the property is applied to the intended purpose.

Formalities for Wakf :-

(i) Wakf made orally or in writing: Wakf may be made in writing or it may be oral. When it is in
writing, a Wafknama or Wakf-deed is prepared. According to section 2(M) of the Wakf Act,
1954, ‘Wakf deed means any deed or instrument by which a Wakf has been cra ted and includes
any valid subsequent deed or instrument by which any of the terms of the original dedication
have been varied.’

(ii) Registration of Wakf It is not necessary that a Wakf should be in writing, it may be made
orally. But if a Wakf is in writing then it must comply with the provisions of the Indian
Registration Act, 1908. If a Wakf of immovable property worth rupees one hundred or more is
created by a deed, the deed requires registration under section 17(i)(b) of the Indian Registration
Act, 1908.

(iii) Declaration of Wakf: Mere intention to create a Wakf is not sufficient. Declaration of Wakf
makes the dedication complete. There were differences of opinion among the Muslim authorities
on this matter. According to Abu Yusuf, a Wakf inter vivos comes into existence by a mere
declaration of endowment by the owner of the property. But Imam Muhammad held the view
that a Wakf is not complete unless declaration of endowment is accompanied by the appointment
of Mutawalli and delivery of possession to him. The view of Abu Yusuf has been accepted.

(iv) Delivery of possession: A Wakf may be lawfully constituted only by declaration. Delivery of
possession and the appointment of Mutawalli is not an essential condition for its validity. in the
case of Gift, delivery of possession is considered for completion of dedication, while others
contend that simple declaration is sufficient to complete the transaction of property from Wakif
In this regards Abu Hanifas’s view is that a Wakf is complete when a decree is made which has
extinguished the rights of Wakif in the property.

Revocation of-waqf :- If a valid waqf has once been created, it cannot be revoked by the waqif
for it is in the power of nobody to divest God of his ownership of the property. On the creation of
the waqf the property at once passes to God and neither it can be reverted later nor can God be
divested of the property and the waqif or his successor-in-interest restored to it by any
subsequent breaches of the terms of the waqf mutawalli of his office. Thus—
1. A testamentary waqf may be revoked by the author of the waqf any time before his death. But
in this case there is no revocation in facts as the waqf comes into existence only at the death of
the testator. It is in fact revocation of the will rather than of the waqf.

2. A waqf during death illness without consent of heirs is valid only to the extent of 1/3rd of the
property and invalid beyond this limit. There is no revocation involved here too.
 16

3. A waqf created by an act ‘inter vit’os’ is irrevocable. If the waqif reserves the power of
revocation, the waqf is invalid.

Appointment OF MUTAWALLi (TAULIAT) The Wakf enjoys full power of appointment of

Mutawalli and he may appoint the first Mutawalli. He may also appoint himself as the first
Mutawalli. But if the Wakif does not appoint himself as the first Mutawalli, the first Mutawalli
shall be appointed in the following manner:
I. Appointment by the Wakif
II. Appointment by executor of the founder
ifi. Appointment by the outgoing Mutawalli
IV. Appointment by the court
V. Appointment according to Custom or usage

I. Appointment by the Wakif :- There is a difference of opinion under Hanafi law as to what
would happen if no Mutawalli was appointed at the time of dedication of property as Wakf.
According to Abu Yusuf Wakf would be valid and the Wakif would become the Mutawalli. But
in the opinion of Abu Hanifa and his disciple Imam Mohammed, Wakf would be unlawful if no
Mutawalli is appointed.
Under Shia law as the transfer of
possession is necessary hence Wakif may appoint a Mutawalli before transfer of possession and
not after transfer of possession. After transfer of possession the Wakf cannot appoint a Mutawalli
or give any scheme and in such a case beneficiaries are entitled to administer the Wakf.However,
the Wakif or founder of a Wakf has absolute power to appoint a Mutawalli. If the Wakif has made
a provision in the Wakf-deed for the appointment of the Mutawalli, the Mutawalli shall be
appointed in accordance with the directions of the Wakf-deed. In the Wakf-nama, the Wakf may
lay down the following direction: (i) He may reserve the right of management of
the Wakf to himself and he can appoint a Mutawalli during his life time whenever he likes.’
(ii) He may lay down a scheme for succession to the office of Mutawalli.
(iii) He may nominate a successor by Wakfnama, or he may indicate the class of persons who
may succeed to Mutawalliship.
(iv) He may confer the power Of nomination of successor on the Mutawalli.
(v) He may lay down the qualification for the Mutawalli.
(vi) He may constitute a hereditary line of successors to the office of Mutawalli.
It is, therefore,
stated that primary right of appointing a Mutawalli is that the Wakijf who is creating the Wakf.
He may give a scheme and ascertain succession of future Mutawallis. Wakif is empowered to
indicate qualifications of a Mutawalli or a class out of which a Mutawalli may be appointed. He
may also give powers to a Mutawalli to appoint his successor after his death or in case of his
relinquishing the office, but the Mutawalli is entitled to appoint his successor only on his death-
bed. It may be noted here that office of Mutawalli is not transferable4 and Muslim law does not
recognise the office to be hereditary unless there is a custom.
 17

II. Appointment by executor of the founder :- If a Wakif dies without appointing any
Mutawalli and the Wakf-deed is silent about the appointment to this office, then the executor of
the Wakijf is entitled to appoint a Mutawalli. Thus, where the office of Mutawalli falls vacant for
any reason such as by the date of the Mutawalli or by his refusal to act or by his removal by the
court and, it is not clear as to how a Mutawalli to be appointed, then the executor has a right to
appoint any person as Mutawalli. In this situation, the founder’s executor possesses the same
powers as the founder himself, had he been alive. However, this is possible only where founder
has an executor.

III. Appointment by the outgoing Mutawalli on Death-bed :- Generally, an existing

Mutawalli has no right to appoint his successor. But when the Wakif and his executor both are
dead and the Wakfnama does not lay down any scheme of succession, then the outgoing
Mutawalli, may appoint his successor on his death-bed, but he has no such power when healthy.
Thus, a Mutawalli may appoint his successor subject to two conditions,
(i) that he is on his death-bed and there is no chance of his survival and
(ii) that the office of Mutawalli would remain vacant if he does not appoint his successor before
his death.

It may be noted here that

appointment of a Mutawalli by a existing Mutawalli in his deathbed is an emergency
appointment, therefore, when he is in health he cannot appoint his successor. Similarly, where
the office of Mutawalli is hereditary under local custom, the Mutawalli on death-bed has no right
to appoint his successor.

IV. Appointment by Court :- If no Mutawalli could be appointed by any of the aforesaid

manner, the court has the power of appointing Mutawalli. It may be recalls that under pure
Muslim law powers of Qazi or King are very wide as far as administration of Wakfs are
concerned. On the same lines under English law Chancery Courts have been given powers to
govern the trust and trustees. Justice Ameer Au, ‘while delivering a judgment for Privy Council
has quoted an old authority as saying, ‘were the Wakzf to make a condition that King or Kazi
should not interfere in the management of the Wakf, still the Kazi will have his superintendent
over it, for his supervision is above everything’.
Court here means the District Court within the jurisdiction of which Wakfproperty is situated.
While appointing a Mutawalli, the court shall take into consideration the following facts:

(i) Directions of the Wakif if any, given by the Wakf. but if the court feels that
disregarding the directions of the Wakif while to the manifest advantage of the Wakif
then it can ignore such directions.

(ii) The court can appoint a stranger to the office of the Mutwalli only if there is not
available any qualified member of the Wakif family. The term ‘family’ includes
persons descendent from one common progenitor and takes in both agnates and
cognates.

(iii) Among the family-members of the Wakf. who are available for appointment, the court
shall appoint the most appropriate person irrespective of the nearness of kin to the
 18

Wakf. i.e., when the choice is between lineal descendant and remoter relations, the
court is not bound to appoint the former.

V. Appointment according to Custom or usage :- The office of Mutawalli may be hereditary

by custom or usage, only if there is no provision in the Wakfrzama. Though such a custom is
opposed to general law, hence it must be strictly proved through supporting evidence. A custom
may be prevalent that a Mutawalli may be appointed through an election or through a
congregation of locality through some procedure which must be lawful and reasonable. Where a
Wakf is a purely local Wakf such as a graveyard or a mosque, then the appointment of Mutawalli
may be made by the congregation of the locality.

Md. Taiyab v. The Meghalaya Board of Wakf, court held that for the appointment of Mutawalli
as lineal descendants it is necessary that person must be descendant through direct or right line
without any deviation as from father to son, etc.
In Md. Abrar v. The Meghalaya Board of Wakf, where the issue regarding to appointment of
Mutawalli by succession. The court held that one of the joint Mutawalli dies-survivor alone
would be entitled to be appointed as sole Mutawalli for time being. He can only nominate his
successor. In absence of any usage of appointment of joint Mutawalli or any clause in
Wakfnama, sole surviving Mutawalli has no right or obligation to appoint a joint Mutawalli.

VI. Appointment by Board of Wakfs :- Section 63 of the Wakf Act empowered the Wakf Board
to appoint a Mutawalli where there is a vacancy provided the terms of Wakf deed has to be
observed in such an appointment. The Board may also appoint a Mutawalli on such conditions
and for such period as it thinks fit where a dispute exists between two or more persons to be
appointed as Mutawalli.
Wakf Board is also empowered to take
over the management of Wakf where no suitable person is available to be appointed as
Mutawalli. This provision is given in section 65 of the Act. What were once powers of the Qazi
has been given to Wall Board and it is competent even to appoint a person as Mutawalli against
the wish of Wakf if such appointment in the changed circumstance is for the benefit of those for
whom the Wakf was created. This would be an exceptional case because as a general rule any
conditions laid down by the Wakif shall be respected.
Capacity of a Mutawalli :- A Mutawalli must have the following qualification:
(i) Mohammedan or non-Mohammedan: The Mutawalli may be a Muslim or non-Muslim. The
office of Mutawalli does not require any religious or spiritual obligations, so a non-Muslim can
also be appointed as Mutawalli.

(ii) Male or Female: The Mutawalli may be either a male or a female, a woman is not debarred
from acting as Mutawalli because the office does not involve any religious or spiritual
obligation.3 It means a female and the non-Muslim are legally qualified to be appointed as a
Mutawalli. It is because a Mutawalli is primarily concerned with the superintendence or
management of the Wakf property. Supervision and management is a non-religious activity. But,
where the Mutawalli is required to discharge also some religious function, a female or a non-
Muslim cannot act as Mutawalli. Accordingly, in the following cases, a female and a non-
 19

Muslim cannot be appointed as Mutawalli:

(a) Where the Mutawalli is to act as Sajjadnashin or a spiritual head.
(b) Where the Mutawalli is to act as imam, i.e., where he is required to lead the assembly of
people for religious prayers.
(c) Where the Mutawalli is to act as a Mulla. A land assigned to a Mulla as remuneration of his
office, cannot be succeeded by any female successor.
(d) Where the Mutawalli is required to give religious preaching i.e., where he has to act as
Khatib.
(e) Where the Mutawalli is required to act as mujavar of a Durgah.

(iii) Any Sect: The Mutawalli may belong to any sect or sub-sect. A Shia may be appointed as
Mutawalli of a Sunni Wakf

(iv) Sound-mind: The Mutawalli must not be of unsound-mind. A blind person may also be
appointed as Mutawall

(v) Age of Majority: The Mutawalli must have attained the age of majority. But, a minor may be
a Mutawalli where the office of Mutawalli is hereditary and the person entitled to succeed is a
minor, or where the line of succession is laid down in the wakfnama and the office fall on a
minor, and then the office may be held by that minor.

Remuneration of a Mutawalli :- Remuneration may be fixed either by the Wakif or court.

1. Remuneration not a right: A Mutawalli cannot claim remuneration as a matter of right. But a
Wakif may provide for remuneration for the Mutawalli. Remuneration may consist of anything
such as fixed amount or residue for the income of Wakf property after meeting all the expenses
of the Wakf Such provision is made in the Wakflwma.

2. Remuneration fixed by the court: In the absence of any provision in the Wakfnama, the court
has the power to allow remuneration to the Mutawalli. But the court cannot fix a sum exceeding
one-tenth of the income of the Wakf property. The court also has the power to increase the salary
if the amount fixed by the Wakif is small, but the court can increase it up to but not above one-
tenth of the income.Under the Shin law, the Wakf may appoint himself the first Mutawalli and
take a reasonable remuneration not exceeding that which is payable to other Mutawallis

Power and Function of a Mutawalli :- As said above and held by different courts the property
of Wakf vests in Almighty and he is simply manager of it. However, a Mutawalli has the power
to do all acts for the management and administration of the Wakf-properties. The Mutawalli is
manager of the Wakf-property. His primary duty is to preserve the property like his own, but to
manage and spend it like a servant of God. Mutawalli is not owner of the Wakf-property, the
property vests in God.

Powers of a Mutawalli are as following:

1. Power of management and administration: A Mutawalli has the power of management and
administration of Wakf-property. His legal position is that he is a manager having no beneficial
interest in the Wakf-properties. He is only a superintendent of the property. He can only hold the
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property and control it. The Wakf property does not vest in him but he can sue for possession of
the Wakf

The Supreme Court in Zain Yar Jung v. Director of Endowment, AIR 1963 sc 985 has held,
‘the manager of the Wakf is the Mutawalli, the Governor, Superintendent or Curator. But in that
capacity, he has no right in the property belonging to the Wakf, the property is not vested to him
and he is not a trustee in legal sense. Therefore, there is no doubt that the Wakf to which the Act
applies is, in essential features, different from the trust as is known to English law.’

2. Power of incurring Debt: A Mutawalli has no power of incurring a debt unless he is permitted
either by a provision of the Wakfnama or by the court. A person who gives loan to a Mutawalli
for carrying out the purposes of the Wakf has no remedy against the Wakf properties, he can not
claim to be indemnified out of the Wakf funds.

3. Power of alienation of Wakf properties: As already discussed, a Mutawalli is not owner of

the Wakf-property. So, he cannot transfer the property by sale, exchange, gift or mortgage.
However, a Mutawalli can transfer the Wakf-property in following situations:
(a) Where the founder has expressly authorised the Mutawalli to sell, exchange, mortgage etc.,
the property, or
(b) Where the Mutawalli has taken prior permission of a court for transferring the property.
So, a Mutawalli may alienate by way of selling, mortgaging or exchanging the Wakf properties
only if there is provision in the Wakfnama related to alienation or he must obtain the prior
permission of the court.
However, prior permission of the court is not hard and fast rule. If the transfer is for the benefit
of the Wakf or is urgently required in the given circumstances, the Mutawalli may alienate the
property first and thereafter get the permission.
The Civil Court is entitled to control the Wakf for its power administration. It is duty of the court
to give effect to the express wishes of the Wakif. The court has general power of superintendence
over So if the Wakf restricts the court for exercising such power by any provision in the
Wakfnama, then such a provision is null and void.

4. Power to grant Lease: Lease is a transfer of the right of enjoyment of an immovable property
on rent. The Mutawalli has power to grant leases of the Wakf property, but his power is limited
as regards thç period of lease. If the Wakf property is an agricultural land then Mutawalli cannot
grant a lease of the Wakfproperty for more than three years. In case of non-agricultural land, i.e.,
residential place, he can grant lease only upto one year. A lease for more than the allowed period
may be granted only if either the Wakfnama specifically allows him to do so or the court has
granted permission.4 While giving permission for longer periods or approving unauthorised
leases retrospectively, the courts are required to take into account, (a) the interest of the Wakf or,
(b) the interest of its beneficiaries, or (c) any legal necessity for the transaction.

5 Right of Pre-emption: A Mutawalli cannot exercise right of pre-emption for the Wakf-
property. Where a land which is adjacent to the Wakf-property has been sold, the Mutawalli
cannot claim repurchase or substitution under the right of pre-emption.
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6. Power to Compromise: Section 93 of the Wakf Act, 1995, even bars a Mutawalli’s right to
compromise hi a suit or proceedings without the sanction of the Board.

Duties of Mutawalli :- Section 50 of the Wakf Act, 1995, provides for duties of Mutawallli as:
I To carry out directions of the Board according to law,
II. To furnish returns and information as required by the Board provided under the Act and rules
made thereunder,
iii. To allow inspection of Wakf property, accounts, records, deeds and documents,
lv. To discharge of public dues,
V. To do any other act which is lawfully required to be done under the provisions of the Act.

Removal of a Mutawalli:- Under pure Islamic law ‘power to appoint a Mutawalli rests with the
founder and after him with the executor.” But, once a Mutawalli has duly appointed, he cannot
be removed by the founder for misconduct, etc., except where the founder has expressly reserved
such a right. However, under following circumstances, Mutawalli can be removed from his
office:

1. Removal by the Wakij If the Wakf reserved the power of removing the Mutawalli in the
Wakfnama, then only he can removed him from Mutawalliship. So, in the absence by any
express reservation of the power of removing a Mutawalli, the Wakf has no such power
related to the removal.

2. Removal by the Court: The court has absolute power to remove a Mutawalli. The court
may remove him on the ground of misfeasance, breach of trust or for his unfitness such
disabilities, etc. Therefore, the court is competent to do all such things which it deems
necessary for proper administration of the Wakf-property. The court has power to remove
the Mutawalli from his office of the following circumstances:
(i) Non-payment of taxes, spending money recklessly, failure to produce accounts.
(ii) Where a Mutawalli has become insolvent.
(iii) Making unauthorised transfers of the Wakf property and fraudulently selling Wakf-
property.
(iv) Guilty of malversation.
(v) Misfeasance and breach of trust.
(vi) Grave dereliction of duty.

The court’s power of removal is unfettered and the court can remove a Mutawalli even if the
settlor has specifically laid down that he should not be removed.
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