Waqf 1

Family Law

WAQF

FAMILY LAW ASSIGNMENT

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TABLE OF CONTENTS

ACKNOWLEDGEMENT ............................................................................................................................ 3
INTRODUCTION ........................................................................................................................................ 4
MEANING.................................................................................................................................................... 4
ESSENTIAL CONDITIONS FOR A VALID WAQF ................................................................................. 5
KINDS OF WAQF ....................................................................................................................................... 7
VALID OBJECTS OF WAQF ..................................................................................................................... 8
CREATION OF WAQF ............................................................................................................................. 10
LEGAL CONSEQUENCES OF WAQF .................................................................................................... 11
OFFICE OF MUTAWALLI ....................................................................................................................... 12
DIFFERENCE BETWEEN WAQF AND TRUST .................................................................................... 15
CONCLUSION ........................................................................................................................................... 16
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ACKNOWLEDGEMENT
I would like to express my deepest gratitude to all those who provided me with the
possibility of complete this assignment. A special thanks to my teacher, Prof.
Kahkashan Y. Danyal, whose contribution in providing suggestions and
encouragement, helped me coordinate this assignment.

Furthermore, I would also like to acknowledge with much appreciation the crucial
role of the staff of Jamia Millia Islamia, who gave me the permission to use all the
necessary equipment and the required materials to complete this assignment.

A special thanks goes to my classmates and friends who helped me assemble the
parts and gave their valuable suggestions.

Tanisha
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INTRODUCTION
Literal meaning of the word waqf is ‘detention’. In the language of law, waqf
means detention of a property so that its produce or income may always be
available for religious or charitable purposes. When a waif is created, the property
is detained or, is ‘tied up’ forever and thereafter becomes non-transferable.
Meaning and various types of the waqf is defined in this projects. There is object
behind making a waqf. Office of Mutawalli (manager) is very important. There are
many modes to create waqf, which are dealt in this project. Waqf is binding and
enforceable by law, it has legal consequences which are dealt in this project. The
law of waqf is “the most important branch of Mohammedan Law for it is
interwoven with the entire religious life and social ecomony of Muslims.

MEANING
When Muslim a person who is working for charitable purpose under religious faith
and sentiments and for the benefit and upliftment of the society, has donate his
property in the name of Allah is called waqf.
Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the
ownership of dedicated property is taken away from the person making waqf and
transferred and detained by God. Details are given in old texts about waqf made by
prophet. It is observed in M Kazim vs A Asghar Ali that technically, it means a
dedication of some specific property for a pious purpose or secession of pious
purposes. As defined by Muslim jurists such as Abu Hanifa, Waqf is the detention
of a specific thing that is in the ownership of the waqif or appropriator, and the
devotion of its profits or usufructs to charity, the poor, or other good objects, to
accommodate loan.
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Waqf Act 1954 defines Waqf as, “Waqf means the permanent dedication by a
person professing the Islam, of any movable or immovable property for any
purpose recognized by Muslim Law as religious, pious, or charitable.”

ESSENTIAL CONDITIONS FOR A VALID WAQF

The essential conditions for a valid waqf are as follow:

1. Permanent dedication: The dedication of waqf property must be permanent

and Waqif himself must divot of such property and gave it for any purpose
recognized by Muslim law, like religious, pious or charitable. If the waqf is made
for limited period it won’t be a valid waqf and also there should be no condition or
contingency attached otherwise it will become invalid. The motive behind Waqf is
always religious.

In Karnataka board of waqfs v. Mohd. Nazeer Ahmad , the dedication of house by

a Muslim for use of all travelers irrespective of religion and status was held not to
be a Waqf on the ground that under Muslim law a Waqf 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 Waqf is constituted, it
is presumed that a gift of some property has been made in favor of God. This
is ensured through a legal fiction that waqf property becomes the property of God.

2. Competency of the Waqif: Who Can Create a Waqf? : The person who
constitutes the waqf of his properties is called the ‘founder of waqf or, Waqif. The
waqif must be a competent person at the time of dedicating the property in waqf.
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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.

A person of unsound mind has no capacity to create any waqf because he or she is
incapable of knowing the legal consequences of the transaction. Waqf constituted
by an insane or minor person is void.

Waqf by Non-Muslims: The dedicator must profess Islam i.e., believes in the
principles of Islam’, he need not be a Muslim by religion. The Madras and Nagpur
High Courts have held that a non-Muslim can also create a valid waqf provided the
object of waqf is not against the principles of Islam. Patna High Court has also
held that a valid waqf may be constituted by a non- Muslim. However, according
to Patna High Court a non-Muslim waqf may constitute only a public waqf; a non-
Muslim cannot create any private waqf (e.g. an Imambara).

3. Right to make waqf: A person having the capacity but no right cannot
constitute a valid waqf. The subject metter of waqf should be owned by wakif at
the time when waqf 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
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ownership of the property or not.

A widow cannot constitute any waqf of the property which she holds in lieu of her
unpaid dower because she is not an absolute owner of that property.
Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have
to prove that she had exercised her independent mind in constituting the waqf and
had fully understood the nature of the transaction.
Amount of property: a person can dedicate entire property but in case of
testamentary waqf more than one third of his property cannot be dedicated.

KINDS OF WAQF

Generally there are two types of waqf:

1. Public Waqf

2. Private Waqf

Categories of waqf from the perspective of its purpose:

• Waqf ahli: the proceeds of waqf are designated for the waqf founder’s children
and their off-spring. However, these beneficiaries cannot sell or dispose of the
property subject-matter of waqf.

• Waqf khayri: the proceeds of waqf are earmarked to charity and philanthropy.
Examples of beneficiaries include the poor and the needy. Waqf khayri is typically
used to finance mosques, shelters, schools, and universities. This is meant to help
financially-challenged individuals and communities.
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• Waqf al-sabil: a waqf whose beneficiaries are the general public. It is very similar
to waqf khayri, though waqf al-sabil is usually used to establish and construct the
public utility (mosques, power plants, water supplies, graveyards, schools, etc).

• Waqf al-awaridh: the yield of waqf is held in reserve so that it can be used at
times of emergency or unexpected events that negatively influence the livelihood
and well-being of a community of people. For example, waqf may be assigned to
the satisfaction of specific needs such as medication for sick people who are unable
to pay medication expenses and education of poor children. Waqf al-awaridh may
also be used to finance maintenance of the utilities of a village or neighborhood.

Categories of waqf from the perspective of its output nature:

• Waqf istithmari: the waqf assets are intended for investment. Such assets are
managed to produce income that will be used in constructing and reconstructing
waqf properties.

• Waqf mubashar: the waqf assets are used to generate services to the benefit of
some charity recipients or other beneficiaries. Examples of such assets include
schools, utilities, etc.

VALID OBJECTS OF WAQF

An essential for the validity of waqf is that the dedication should be for a purpose
recongnised as religious, pious or charitable, under Musalman Kaw.
On basis of decided cases and the text of eminent Mohammedan Jurists, certain
objects which had been declared to be valid objects of waqf are:-
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1. Mosque and provisions for Imamas to conduct worship.

2. Celebrating the birth of Ali Murtaza

3. Repairs of Imambaras.

4. Maintenance of Khankahs.

5. Reading the Koran in public places and also at private houses.

6. Maintenance of poor relations and dependant.

7. Payment of money to Fakirs.

8. Grant to an Idgah.

9. Grant to the college and provisions for professors to teach in colleges.

10. Bridges and Caravan Sarais.

11. Distribution of alms to poor persons, and assistance to the poor to enable them
to perform pilgrimage to Mecca.

12. Keeping Tazias in the month of Moharram, and provisions for camels and
Duldul for religious processions during Moharram.

13. Celebrating the death anniversary of the settler and of the members of the
family.

14. Performance of ceremonies known as Kadam Sharif.

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15. The construction of a Cobat or free boarding house for pilgrims at Mecca.

16. Performing the annual Fateha of the members of his family.

17. A Durgahor or shrine of a Pir which has long been held in veneration by the
public.

The following are not recognized as valid objects of waqf, by the Musalman law:

1. Objects prohibited by Islam, e.g. erecting or maintaining a church or temple.

2. A waqf for the perairs of the waqifs secular property is invalid according to Shea
law.

3. Providing for the rich exclusively.

4. Objects which are uncertain.

5. A direction to spend a certain sum of money for feasting Cutchi Memons every
on the anniversary of the anniversary of the settler’s death is not valid.

CREATION OF WAQF

Muslim law does not prescribe any specific way of creating a Waqf. If the essential
elements as described above are fulfilled, a Waqf is created. Though it can be said
that a Waqf is usually created in the following ways –

1. By an act of a living person (inter vivos) – when a person declares his dedication
of his property for Waqf. This can also be done while the person is on death bed
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(marj ul maut), in which case, he cannot dedicate more than 1/3 of his property for
Waqf.

2. By will – when a person leaves a will in which he dedicates his property after
his death. Earlier it was thought that Shia cannot create Waqf by will but now it
has been approved.

3. By Usage – when a property has been in use for charitable or religious purpose
for time immemorial, it is deemed to belong to Waqf. No declaration is necessary
and Waqf is inferred.

LEGAL CONSEQUENCES OF WAQF

Once a waqf is complete, the following are the consequences –

1. Dedication to God – The property vests in God in the sense that nobody can
claim ownership of it. In Md. Ismail vs Thakur Sabir Ali , SC held that even in
waqf alal aulad, the property is dedicated to God and only the usufructs are used by
the descendants.

2. Irrevocable – In India, a waqf once declared and complete, cannot be revoked.

The wakif cannot get his property back in his name or in any other’s name.

3. Permanent or Perpetual – Perpetuality is an essential element of waqf. Once

the property is given to waqf, it remains for the waqf for ever. Waqf cannot be of a
specified time duration. In Mst Peeran vs Hafiz Mohammad, it was held by
Allahbad HC that the waqf of a house built on a land leased for a fixed term was
invalid.
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4. Inalienable – Since Waqf property belongs to God, no human being can alienate
it for himself or any other person. It cannot be sold or given away to anybody.

5. Pious or charitable use – The usufructs of the waqf property can only be used
for pious and charitable purpose. It can also be used for descendants in case of a
private waqf.

6. Extinction of the right of wakif – The wakif loses all rights, even to the
usufructs, of the property. He cannot claim any benefits from that property.

7. Power of court’s inspection – The courts have the power to inspect the
functioning or management of the waqf property. Misuse of the property of
usufructs is a criminal offence as per Waqf Act.1995.

OFFICE OF MUTAWALLI
Mutawalli is nothing but the manager of a waqf. 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 , SC held that a mutawalli has no
power to sell, mortgage, or lease waqf property without prior permission of the
court or unless that power is explicitly provided to the mutawalli in waqfnama.

Who can be a mutawalli – A person who is a major, of sound mind, and who is
capable of performing the functions of the waqf as desired by the wakif can be
appointed as a mutawalli. A male or female of any religion can be appointed. If
religious duties are a part of the waqf, then a female or a non-muslim cannot be
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appointed.
In Shahar Bano vs Aga Mohammad , Privy Council held that there is no legal
restriction on a woman becoming a mutawalli if the duties of the waqf 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 waqf is created without appointing a
mutawalli, in India, the waqf is considered valid and the wakif becomes the first
mutawalli in Sunni law but according to Shia law, even though the waqf remains
valid, it has to be administered by the beneficiaries. The wakif also has the power
to lay down the rules to appoint a mutawalli. The following is the order in which
the power to nominate the mutawalli transfers if the earlier one fails –

1. founder

2. executor of founder

3. mutawalli on his death bed

4. the court, which should follow the guidelines –

A. It should not disregard the directions of the settler but public interest must be
given more importance.

B. Preference should be given to the family member of the wakif instead of

utter stranger.

Powers of a mutawalli – Being the manager of the waqf, he is in charge of the

usufructs of the property. He has the following rights –
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1. He has the power to utilize the usufructs as he may deem fit in the best interest
of the purpose of the waqf. He can take all reasonable actions in good faith to
ensure that the intended beneficiaries are benefited by the waqf. 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
waqfnama.

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 waqf.

4. He can lease the property for agricultural purpose for less than three years and
for non-agricultural purpose for less than one year. He can exceed the term by
permission of the court.

5. He is entitled to remuneration as provided by the wakif. If the remuneration is

too small, he can apply to the court to get an increase.

Removal of a mutawalli – Generally, once a mutawalli is duly appointed, he

cannot be removed by the wakif. However, a mutawalli can be removed in the
following situations –

1. By court –

A. if he misappropriates waqf property.

B. Even after having sufficient funds, does not repair waqf premises and waqf
falls into disrepair.
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C. Knowingly or intentionally causes damage or loss to waqf property. In Bibi

Sadique Fatima vs Mahmood Hasan , SC held that using waqf money to buy
property in wife’s name is such breach of trust as is sufficient ground for
removal of mutawalli.

D. he becomes insolvent.

2. By waqf board – Under section 64 of Waqf Act 1995, the Waqf 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 waqf deed, he can still
remove the mutawalli.

DIFFERENCE BETWEEN WAQF AND TRUST

Both, in waqf as well as in trusts, the property is detained and its usufruct is
utilised for religious or charitable purposes. But, a waqf under Muslim personal
law may be distinguished from a trust at least on following matters:

(1) A waqf may be constituted only for those purposes which are recognised as
religious, pious or charitable in Islam whereas, a trust may be constituted for any
lawful object.

(2) Except under Hanafi law, the founder of a waqf cannot reserve any benefit for
himself, but the founder of a trust may himself be a beneficiary.
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(3) The powers of a mutawalli (manager of the waqf-property) are very limited as
compared to the powers of a trustee.

(4) A waqf is generally perpetual and irrevocable, whereas, a trust need not be
perpetual and may also be revoked under certain conditions.
Because of the above mentioned differences between waqf and a trust, the Indian
Trust, Act, 1882, is not applicable to Muslim waqf sin so far as the nature and
operation of waqfs is concerned. But, for purposes of instituting any suit in the
cases of irregularities and mismanagement of waqf property, a waqf has been
regarded as a ‘trust’ within the meaning of Section 92 of the Civil Procedure Code,
1908.
However it must be noted that the Indian Trusts Act is applicable also to Muslims.
Therefore, if a Muslim wants to settle his properties in a trust he may do so under
this Act instead of creating waqf under Muslim personal law.

CONCLUSION
Waqf is a detention which is permanent and binding and enforceable by law also,
any person interested may seek remedy in civil court. Office of mutawalli is very
important in waqf, power can be exercised when there is clear vacancy of
mutawalliship or there is dispute as to competence or eligibility of existing
mutawalli. A Muslim waqf is distinguished from an English trust or a Hindu
endowment of dharma.