CRITICAL ASSESMENT OF WAQF IN INDIA AND LEGAL

INCIDENTS SURROUNDING IT

ORIGIN OF WAQF
The term waqf which is also known by the name of habs is basically an Arabic infinitive
noun (masaba) which means to restrain going by the literal sense. It refers to holding the
property in a manner that it becomes non-transferable by any means be it sale , will or
mortgage whose income can be then subsequently used for charitable or pious purposes .
Although no provision in Quran explicitly mentions about waqf but the same is embedded in
the matters of charity. As per Quran it accelerates the wealth and brings divine happiness by a
way of rewards. The origin of waqf lies in the old days of Islamic history during the time
when the state used to be poor unable to afford simple social welfare measures. This new
urge for charity paved the way for social welfare schemes thereby giving birth to waqf which
was used for financing of these schemes. “Waqf finds its origin in the words of prophet ‘’
which instructed to never sold the property or bequeath it and to reserve it for the poor and
needy. It basically prescribes tying of property in the hands of almighty and devoting the
profits therin for the benefit of human beings wherein the manger of waqf is muttawali ,
curator or governor but he has no control over the property within the legal sense. It
accounted for a new form of charity which lasted for generations and were quite different
from the already existing forms of charity which were temporal in nature such as sadaqa ,
fitraf or alms.

WHAT IS WAQF

Waqf in simple words stands for detention of property which is tying up of property in the
hands of almighty. However different muslim jurists are subject to different interpretations
with regards to the same.

As per Abu Yusuf , it stands for dedicating a thing in the favour of almighty in a way that the
profits so derived from the same can be used for human good and it loses the right to be sold ,
bequeath or inherit in itself.
Imam Muhammad on the contrary holds a different view. According to him the process of
waqf is incomplete unless the possession of the same is transferred to the Muttalwali who is
known as the manager of waqf though not in legal sense.

Abu Hanifa on the other hand held a completely different point of view wrt waqf. He stated
that the waqif is not deprived from holding the property until and unless the Qazi passes an
order instructing the same. The logical reasoning provided by him was that no spiritual gains
can be derived unless the property remains within the control of waqif. This is why transfer
of the ownership of the property from waqf to some other person is inherent for extinguishing
his right and be able to claim spiritual gains.

In the case of Motishah V/s Abdul Ghaffar Khan it was held that waqf is detaining the
property in the favour of god in a manner that the profits so generated can be used for the
benefit of his servants , the object of which must be religious or pious.

In India it is the viewpoint of Abu Yusuf which dominates in the matters of waqf. The
elements so led down for waqf are as follows :-

(A) Religious and pious objective

Waqf cannot be for something which Islam opposes or discourages. It has to be
accompanied by a pious or charitable objective was held in the case of Zain yar Juny
V/S Director of endowments
(B) Permanent object
The permanency of waqf is implied. There is no express provision governing the
same. Moreover it is supposed to be unconditional without any terms and conditions
attached with it.
(C) Ownership of Almighty
As per Abu Yusuv the ownership of the property rests in the hands of almighty which
was even confirmed by the supreme court in the Mohammad Ismail case. However
the other two jurists of muslim law held different interpretations pertaining to the
same wherein they held that waqf is revocable at the hands of waqif.

To know more of it please refer the below link :-

https://docs.google.com/document/d/
1ft7W3GHGtB4oSZPTAgrmdDGzld1svHz0jWd-0bbPeew/edit?
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