WAQF

Submitted By:

Rahul Gupta

Roll No 47, B.A. LL.B. (Hons.) (REGULAR)

Faculty of Law

Jamia Millia Islamia

April, 2019

Under the guidance of

Dr. K.D. Mam

Assistant Professor

Faculty of Law,

Jamia Millia Islamia

New Delhi, 110025

 Table of Contents

1. Introduction

2. Meaning of Waqf

3. Kinds of waqf

4. Essentials of a valid Waqf

5. Creation of a Waqf

6. Revocation of Waqf

7. Conclusion
 Introduction

Waqf is described as the most important institution, which provided the foundation for Islamic
civilization, as it was interwoven with the entire religious life and the social economy of
Muslims.1 From mosques, schools and hospitals to markets and inns, most of the public sector
was financed through awqaf The waqf provided the only permanent organisational form under
Islamic law which did not explicitly have the concept of impersonal juristic personality. 2
Therefore, the waqf was the most suitable legal form for financing long-lasting services. Small
wonder if the entire sector of public services in the Muslim world was managed through awqaf
before the advent of the modern state in the twentieth century.3 Interest ingly, the waqf was not
limited to the provision of public services. A large number of waqf properties were reserved in
favour of the founders and their family members, generation after generation. However, even in
such private awqaf the ultimate beneficiaries were the poor of society or public services.
Therefore, the waqf is an institution encompasses both private and public functions.

The literal meaning of the word waqf is ‘detention’. In the legal context, waqf means detention
of a property so that its produce or income may always be available for religious or charitable
purposes. When a waqf is created, the property is detained or, is ‘tied up’ forever and thereafter
becomes non-transferable. . There is an object behind making a wakf. Office of Mutawalli
(manager) is very important. There are many modes to create waqf. Wakf is binding and
enforceable by law, it has legal consequences.

Meaning.

When Muslim, a person who is working for a charitable purpose under religious faith and
sentiments and for the benefit and upliftment of the society, has donated his property in the name
of Allah is called Waqf.

1
Ameer Ali, vol. I at p.193
2
M.A. Qureshi: Muslim Law, Central Law Publication, Allahabad
3
Tahir Mahmood: Fyzee’s outline of Muhammedan Law, New Delhi
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 wakf made by the prophet.

It is observed in M Kazim vs A Asghar Ali that technically, it means 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.

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.

In some cases like Kassimiah Charities v. Secy. Madras State Waqf Board and Moti Shah v.
Abdul Gaffar Khan it has been held that waqf means detention of corpus in the ownership of God
in such a manner that its profit may be applied for the benefit of his servants. The object of
dedication must be charitable or religious.

Objectives of Waqf

As per section 1784 the purpose for which waqf may be created must be one recognised by the
Mahomedan Law as “religious, pious or charitable”. A Waqf may also be created in favour of the
settlor’s family, children and descendants.

In case where a Waqf is created, for the mixed purposes, some of which are lawful and some are
not, section 180 of the same act says that it is valid as to the lawful purposes, but invalid as to the
rest, and so much of the property as is dedicated for invalid purposes will revert to the waqif.
Where the property is not specifically dedicated to an object which fails, the whole amount will
be devoted to the valid object of charity.

As per Doctrine of cy-pres, where a clear charitable intention is expressed in the instrument of
waqf, it will not be failed because the objects, if specified, happen to fail, but the income will be
applied for the benefit of the poor or to objects as near as possible to the objects which failed.

4
Sec 178, Mulla’s Principle of Mohammedan Law
Though a waqf may be created orally, yet when the terms of a dedication have been reduced to
writing no evidence can be given to prove the terms except the document itself or secondary
evidence of its contents.5

It is not absolutely necessary that the writing by which a Waqf is created should exist or there
should be direct evidence about the creation of a waqf and its terms. A waqf can be proved by
showing immemorial user of the property as waqf.6

As per section 184 of the said act, A waqf may be created by act inter vivos or by will.

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 the testator. The reason is that a testator has power in law to revoke or modify
his will at any time he likes, and he may therefore revoke a waqf created by will even without
reserving any express power in that behalf7

Shia law— It was held at one time that a Shia cannot create a waqf by will. But this view
erroneous, and it has been held by the Privy Council that a Shia may create a waqf by will8

There is a distinction between a waqf-bil-wasiyat, i.e., a will which conveys the property o death
of the testator to the mutawalli as waqf and a wasiyat-bil-waqf, i.e., a will which makes of the
property with a direction to the donee to create the waqf desired. The distinction is of not of
substance. In the later case the property is not impressed with the character of immediately9

Categories of waqf from the perspective of it’s nature:

• Waqf ahli: the proceeds of waqf are designated for the waqf founder’s children and their
offspring. 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.

• 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).
5
Shaikh Muhammad v Bibi Mariam (1929)8 pat484.
6
Chief Administrator of Aufaq v Rashid-ud-daula 1961 (W.P.)lah,993.
7
Muhammad Ahsam v Umardaraz (1906)28 All.663.
8
Baqar Ali Khan v Anjuman Ara Begum (1902)25 All. 236.
9
Mahabir Prasad v Mustafa (1937)41 Cal.W.N. 933.
• 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:

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

• Waqfmubashar: 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.

Essentials of a valid Waqf

Permanent Dedication of any property –

There are actually three aspects in this requirement. There must be a dedication, the dedication
must be permanent, and the dedication can be of the property. There is no prescribed form of
dedication. It can be written or oral but it must be clear to convey the intention of dedication.
According to Abu Yusuf, whose word is followed in India, mere declaration of dedication is
sufficient for completion of Waqf. Neither delivery of possession or appointment of Mutawalli is
necessary. The dedication must be permanent . A temporary dedication such as for a period of 10
yrs or until death of someone is invalid.

The subject of Waqf can be any tangible property (mal) which can used without being consumed.
In Abdul Sakur vs Abu Bakkar 1930, it was held that there are no restrictions as long as the
property can be used without being consumed and thus, a valid Waqf can be created not only of
immovable property but also of movable property such as shares of a company or even money.
Some subjects that Hanafi law recognizes are immovable property, accessories to immovable
property, or books.
The subject of the Waqf must be in the ownership of the dedicator, wakif. One cannot dedicate
someone else's property.

By a Muslim.

A Waqf can only be created by a Muslim. Further, the person must have attained the age of
majority as per Indian Majority Act and should be of sound mind.

For any purpose recognized by Muslim Law –

The purpose is also called the object of Wakf and it can be any purpose recognized as religious,
pious, or charitable, as per Muslim Law. It is not necessary that a person must name a specific
purpose. He can also declare that the property may be used for any welfare works permitted by
Shariat.

In Zulfiqar Ali vs Nabi Bux, the settlers of a Wakf provided that the income of certain shops was
to be applied firstly to the upkeep of the mosque and then the residue, if any, to the remuneration
of the mutawalli. It was held to be valid however, it was also pointed out that if a provision of
remuneration was created before the upkeep of the mosque, it would have been invalid.

The following are some of the objects that have been held valid in several cases - Mosques and
provisions of Imam to conduct worship, celebrating birth of Ali Murtaza, repairs of Imambaras,
maintenance of Khanqahs, burning lamps in mosques, payment of money to fakirs, grant to an
idgah, grant to colleges and professors to teach in colleges, bridges and caravan sarais.

In Kunhamutty vs Ahman Musaliar AIR 1935, Madras HC held that if there are no alms, the
performing of ceremonies for the benefit of the departed soul is not a valid object.

Some other invalid objects are - building or maintaining temple or church, providing for the rich
exclusively, objects which are uncertain.

Shia Law - Besides the above requirements, Shia law imposes some more requirements for a
valid Waqf.

1. Delivery of possession to the first person in whose favour the Waqf has been created is
essential.
2. Dedication must be absolute and unconditional.

3. The property must be completely taken away from the wakif. It means that the wakif cannot
keep or reserve any benefit or interest, or even the usufructs of the dedicated property.

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 (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.

Kinds of waqf.

A Waqf can be classified into two types.

1. Public waqf.
2. Private waqf.

As the name suggests, a public Waqf is for the general religious and charitable purposes while a
private Waqf is for the creators own family and descendants and is technically called Waqf alal
aulad. It was earlier considered that to constitute a valid waqf there must be a complete
dedication of the property to God and thus private waqf was not at all possible. However, this
view is not tenable now and a private waqf can be created subject to certain limitation after Waqf
Validating Act 1913. This acts allows a private waqf to be created for one's descendants provided
that the ultimate benefits are reserved for charity. Muslim Law treats both public and private
waqfs alike. Both types of waqf are created in perpetuity and the property becomes inalienable.

Waqf alal aulad (can a waqf be created for one's family?)

Waqf on one's children and thereafter on the poor is a valid waqf according to all the Muslim
Schools of Jurisprudence. This is because, under the Mohammedan Law, the word charity has a
much wider meaning and includes provisions made for one's own children and descendants.
Charity to one's kith and kin is a high act of merit and a provision for one's family or
descendants, to prevent their falling into indigence, is also an act of charity. The special features
of wakf-alal-aulad is that only the members of the wakif’s family should be supported out of the
income and revenue of the waqf property. Like other waqfs, waqf alal-aulad is governed by
Muhammadan Law, which makes no distinction between the waqfs either in point of sanctity or
the legal incidents that follow on their creation. Waqf alal aulad is, in the eye of the law, Divine
property and when the rights of the waqif are extinguished, it becomes the property of God and
the advantage accrues to his creatures. Like the public waqf, a waqf-alal-aulad can under no
circumstances fail, and when the line of descendant becomes extinct, the entire corpus goes to
charity.

The institution of private waqf is traced to the prophet himself who created a benefaction for the
support of his daughter and her descendants and, in fact, placed it in the same category as a
dedication to a mosque.

Thus, it is clear that a waqf can be created for one's own family. However, the ultimate benefit
must be for some purpose which is recognized as pious, religious or charitable by Islam.

Quasi public waqf.

Some times a third kind of waqf is also identified. In a Quasi public waqf, the primary object of
which is partly to provide for the benefit of particular individuals or class of individuals which
may be the settler's family, and partly to public, so they are partly public and partly private.

Contingent waqf.
A waqf, the creation of which depends on some event happening is called a contingent waqf and
is invalid. For example, if a person creates a waqf saying that his property should be dedicated to
god if he dies childless is an invalid waqf. Under shia law also, a waqf depending on certain
contingencies is invalid.

In Khaliluddin vs Shri Ram 1934, a muslim executed a deed for creating a waqf, which contained
a direction that until payment of specified debt by him, no proceeding under the waqfnama shall
be enforceable. It was held that it does not impose any condition on the creation of the waqf and
so it is valid.

Conditional Waqf.

If a condition is imposed that when the property dedicated is mismanaged, it should be divided
amongst the heirs of the waqf, or that the waqif has a right to revoke the waqf in future, such a
waqf would be invalid. But a direction to pay debts, or to pay for improvements, repairs or
expansion of the waqf property or conditions relating to the appointment of Mutawalli would not
invalidate the waqf. In case of a conditional waqf, it depends upon the waqif to revoke the illegal
condition and to make the waqf valid, otherwise it would remain invalid.

Completion of waqf.

The formation of a waqf is complete when a mutawalli is first appointed for the waqf. The
mutalwalli can be a third person or the waqif himself. When a third person is appointed as
mutawalli, mere declaration of the appointment and endowment by the waqif is enough. If the
waqif appoints himself as the first mutawalli, the only requirement is that the transaction should
be bona fide. There is no need for physical possession or transfer of property from his name as
owner to his name as mutawalli.

In both the cases, however, mere intention of setting aside the property for waqf is not enough. A
declaration to that effect is also required.
In Garib Das vs M A Hamid AIR 1970, it was held that in cases where founder of the waqf
himself is the first mutawalli, it is not necessary that the property should be transferred from the
name of the donor as the owner in his own name as mutawalli.

Under Shia law.

1. Delivery of possession to the mutawalli is required for completion when the first
mutawalli is a third person.
2. Even when the owner himself is the first mutawalli, the character of the ownership must
be changed from owner to mutawalli in public register.

Revocation of Waqf .

In India, once a valid waqf is created it cannot be revoked because no body has the power to
divest God of his ownership of a property. It can neither be given back to the waqif nor can it be
sold to someone else, without court's permission.

A waqf created inter vivos is irrevocable. If the waqif puts a condition of revocability, the waqf
is invalid. However, if the waqf has not yet come into existence, it can be canceled. Thus, a
testamentary waqf can be canceled by the owner himself before his death by making a new will.
Further, waqf created on death bed is valid only up till 1/3 of the waqif's property. Beyond that, it
is invalid and the property does not go to waqf but goes to heirs instead.

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 waqif. 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 AIR 1971, 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 waqif 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 appointed.

In Shahar Bano vs Aga Mohammad 1907, 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 waqif 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 waqif
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 waqif 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 waqif 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 -
 (a) 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 waqif may give such rights to
the mutawalli by explicitly mentioning them in waqfnama.

(b) 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.

(c) He is competent to file a suit to protect the interests of the waqf.

(d) 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.

(e) He is entitled to remuneration as provided by the waqif. 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 waqif. 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 wakf premises and wakf falls into
disrepair.

(c) knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs
Mahmood Hasan AIR 1978, 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.

(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 Waqif.

As per Abu Yusuf, whose view is followed in India, even if the waqif has not reserved

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

(b) 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.

(c) The powers of a mutawalli (manager of the waqf-property) are very limited as compared to
the powers of a trustee.

(d) A waqf is 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 it’s usufruct is utilized for religious
or charitable purposes. But a waqf under Muslim personal law may be distinguished from a trust
atleast on the following matters:

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 trust, the Indian Trust, Act, 1882,
is not applicable to Muslim waqf sin so far as the nature and operation of waqfs are 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.