VIVEKANADA INSTITUTE OF PROFESSIONAL STUDIES

Department
VIVEKANANDA SCHOOL OF LAW AND LEGAL STUDIES

Topic- Waqf
Submitted by- Reeya Prakash

Enrollment no.- 00717703819

Semester- 4, Section-A

Subject – Family Law-II

Submitted to-

Prof. Ms. Rajni Kheria

INDEX
1.Meaning of Waqf

2. Origin and Historical Background of Waqf

3. Essential Requisites of Valid waqf

4. Waqif’s Competency
4.1. Waqf by Non-Mulim
4.2. Right to make a Waqf
4.3. Amount of property which can be dedicated
5. Creation of Waqf
5.1. Modes of Creation of Waqf

6. Kinds of Waqf
6.1. Kinds of Waqf from the view of their purpose
6.2. Kinds of waqfs from the view of its output nature

7. Legal Consequences of Waqf

8. Judicial Precedents

9. Conclusion

10. References
Introduction
1. Meaning of Waqf

Waqf is an Arabic word which means “dedication” or “tying up” or the initiative to lead the way
to end the ownership of the proprietor .According to the Waqf Act the term waqf means that an
individual having faith in Islam made a permanent dedication of any movable or immovable
property for any cause accepted as pious, charitable or religious according to the Muslim law and
comprise waqf by user, waqf-alal- aulad and ulkhidmat to the extent the property is dedicated for
any aforementioned purposes. For the creation of waqf, it is not essential that the settler should
be a Muslim; even a Non-Muslim can create waqf under Muslim law as long as the object of
waqf is pious, religious or charitable according to Muslim law and the objects are given by his
own religion in the same manner. To avoid uncertainty, all charitable and pious grants of other
societies does not come within the scope of the Act, the word ‘professing Islam’ have been
explicitly used. This definition has been enlarged by the Waqf (Amendment) Act, 1964 by taking
into account all grants made for pious, charitable, and religious purposes comprising mashru-ul-
khidmat as waqf and also permanent dedications created for dargahs, mosques, takias,
imambaras, musafirkhanas etc by the Non-Muslims. These dedications were always considered
as waqf under Muslim law but these had been excluded within the purview of the Act, according
to the definition contained in clause (1) Section 3 of the Act.
The observation is made in the case of M Kazim v. A Asghar Ali that in legal sense waqf means
it is creation of some specific property for the accomplishment of some pious, religious, and
charitable purposes.

Some prominent Muslim jurists have interpreted the term Waqf in different ways. Such as
according to Abu Hanifa, “Wakf is the detention or tie up of a particular thing that is in the
ownership of the waqif or appropriator, and the devotion of its benefits or usufructs to public
charity, the poor, or other good causes, to accommodate loan.”The three main element of waqf
has been defined by Abu Yusuf. They are-

 The extinction of the founder’s right

 The benefit of mankind
 Ownership of God
 2. Origin and Historical Background of Waqf

The customs and traditions which were recognized by Muhammad have contributed and helped
the institution of Waqf from the very beginning of Islamic olden age. The origin of the institution
of waqf in the history of Muslims can be traced backed to the period of life of Prophet
Mohammad. The Prophet himself on his property created the Waqf and also he inspires his
companions and his followers to create waqf of their property. The institution of waqf is a
distinguishing characteristic of the socio-economic structure of Islamic society as the foundation
of waqf or the provisions of dedication of whether movable or immovable property for religious,
pious, or charitable purposes helps in improving the poorer segments of the society. The main
reason for the origin and advancement of the institution of waqf is the devotion to the way of
God or the way of goodness and a strong aspiration to win Divine consent. The Quran does not
include waqf but it exists in large number in injunctions with respect to charity. There are some
injunctions such as, " and in their wealth the beggar and the outcaste had due share." (Sunah 51,
Ver. 19) "They ask the (O Muhammad) what they shall spend, say; that which ye spend for good
(must go) to parents and near kindred and orphans and the needy and wayfarer. And whatever
good ye do, to I Allah is Aware of it." (Sunah 2, Ver. 215). Ordinarily, it is from the prescription
of Prophet the source of waqf is drawn. A piece of land had been obtained by Omar in the canton
of Khaibar and he went to the Prophet and ask for his advice to make maximum pious use of the
land, upon which the Prophet declared that don’t sell or make the property subject of inheritance
or gifts but to devote the produce of the land to his kinfolks, his children and other poor people in
the way of god. In compliance with this rule the land was dedicated by Omar as Waqf which
lasted for several centuries until that piece of land become waste.

3. Essential Requisites for Valid Waqf

The waqf should have the following features:

a. Permanent dedication of any property - The essential condition for the validity of waqf
is that there should be “permanent dedication of property”. The devotion of property
whether movable or immovable shall be by the waqif himself, and for pious, charitable or
religious purpose as recognized by the Muslim law. Waqf will be invalid, if it is made for
a limited time period. The incentive behind waqf shall always be religious.
 Karnataka Board of Waqfs v. Mohd. Nazeer Ahmad1
In this case a house which was dedicated by a Muslim for all the travelers regardless of
their religion and status was held to be not a waqf on the basis that waqf under Muslim
law should be made for religious motive and for the benefit of Muslim community, and if
it’s character is secular then the charity should be to the poor alone.

b. Waqf should be direct- For the waqf to be valid there should be direct transfer of
property and if there is delay for the waqf to come into effect, it will be void, with an
exception of testamentary waqf.
c. Waqf should not be conditional- A waqf is invalid if it is made conditional on the
happening of the event.
d. Waqf should be absolute- It is essential that the dedication should be completed at once
at the time. There should not be any uncertainty in the waqf.
e. There should be complete deprivation by waqif of ownership of the property.
f. The waqif must be completely denied of the property
g. Waqf must be made for the mentioned objects in the Act.
h. Waqf must have proper subject. As in case of waqf created by Shia Muslim delivery of
ownership is essential according to Sec. 186 of the Mulla’s Mohammedan Law. It was
held by Privy Council in the case of Ali Zamin v. Akbar Ali khan 2 that actual delivery
of ownership by or by the direction of waqif under the Shia Law is an essential condition
for a valid waqf.

4. Waqif’s Competency:

The person who made the waqf of his property is known as the Waqif or the founder of waqf. At
the time of dedicating the waqf, the waqif must be a competent person. There are requirements
for the Muslim to be a valid waqif:

i. Mentally sound person

ii. Majority

A mentally unsound person does not have the capacity to make any waqf because such person is
incapable to understand the legal consequences of such transaction. Therefore, a waqf made by
an unsound person or minor is void.

1
AIR 1982 Kant 309, 1982 (2) KarLJ 176

2
 (1937) 39 BOMLR 970
4.1 Waqf by Non-Muslim: The person who makes the waqf or the dedicator must profess
Muslim faith i.e., the person who believes in the principles of Islam, it’s not necessary for
him/her to be of Muslim religion. It was held by the Madras and Nagpur High Court that a waqf
can be created by a non-Muslim provided waqf’s object is not against the principles of Islam.

Patna High Court also held that a non-Muslim can create a valid waqf. However4 he can only
make a public waqf and not a private waqf.( For example an Imambara).

4.2 Right to make a waqf: A person, who has the capacity to make waqf but does not have the
right, cannot make a valid waqf. At the time when waqf is created the subject matter of it should
be owned by the waqif. The question that whether a person has the right to make a waqf or not
relies on the fact that whether the legal right to transfer the ownership of the property is with the
dedicator or not.

A waqf cannot be constituted by a widow of the property which she holds instead of her unpaid
dower as she does have absolute ownership of the property. In case where the waqif is a
pardanashin lady, it has to be prove by the beneficiaries and the mutawalli that for constitution
the waqf she has exercised her independent mind and completely understood the nature of the
transaction.

4.3 Amount of property which can be dedicated; a person can dedicate his entire property, but
in testamentary waqf not more than one-third can be dedicated.

5. Creation of Waqf

For the creation of waqf, no specific way has been prescribed by the Muslim law. It may either
be made in writing or verbally.

5.1 Modes of creation of Waqf

1. Inter vivos – It means “between living voices”. When a waqf is created during the
lifetime of waqif and come into force from that very time such waqf is said to be made by
inter vivos. There are different opinions with respect to when the waqf is completed such
as waqf is complete by mere declaration according to Aby Yusuf; according to Imam
Mohammad waqf is complete after the declaration of appointment of mutawalli, and
delivery of possession to him. And according to Abu Hanifa for competition of waqf
decree of the court in necessary expect in case of testamentary waqf.
Shia Law- According to Shia law for the completion of waqf the waqf property should
be given either to the mutwalli, or to first beneficiary.
2. By will (Wasiyat) – When a individual dedicated his property after death by leaving a
will. It comes into force after the death of waqif. Such waqf is also known as
 testamentary waqf. Without the approval of the heirs such waqf does not operate upon
beyond one-third of net asset.
Shia law- Once it was held that shia cannot make waqf by will but later Privy Council
held that a waqf by will can be created by a Shia.
3. Death bed gift (marz-ul-maut)- It means gift made when the waqif or donor is on death
bed and without the approval of the heirs it will operate to the extent of 1/3rd of property.
4. By immemorial user – For the creation of waqf property limitation of time is also
applicable but a waqf property can be established through the evidence of immemorial
user. For example when from a immemorial time a land has been used as a burial ground,
then it will be a waqf by immemorial user. It is a settled law, in case where since the
origin of the alleged waqf a long time has been elapsed, the only available evidence to
proof that the property is waqf or not can be the user. Similarly, where for a significant
number of years prayers were offered by public in a mosque nearby a tomb of a Muslim
saint, the mosque was held to be duly dedicated by the court.

In the case of Muhammad Yusuf And Ors. vs Muhammad Shafi And Ors 3(imambara)- it
was held by the Oudh High Court that if the building was never been used as a residential
house and if ‘majalis celebration’ and “Quran Khani’ were done, then their belief of
dedication will be made. But it will be wrong to assume that if funeral of a saint is done on a
particular spot could make it a waqf, irrespective of the fact that urs was held without the
objection of proprietor.

6. Kinds of Waqf

Generally Waqf’s are of two types that is Public and Private. However the most accepted is the
threefold classification:

o Public Waqf- these are created for the public in general without any restriction with
respect to its use such as bridge, roads, well, etc.
o Quasi-Public Waqf - the primary object of this kind of waqf is partly to offer for the
welfare of a particular individual or class of individuals and partly to the public. Hence
they are partly private and partly public.
o Private Waqf- this kind of waqf is made for the welfare of private individual which also
include settler’s own family and his lineage. This type of waqf is known as ‘Waqf-ulal-
aulad’.

3
AIR 1934 All 1013, 153 Ind Cas 344
 6.1 Kinds of Waqf from the view of their purpose

o Waqf Ahli: The waqf is mainly made to cater to meet the requirements of the waqf’s
founder’s children and their descendants. However, the right to sell or dispose of the
property which is waqf’s subject matter is not given to the nominees.
o Waqf Khayri:  This type of waqf is designated for charitable and philanthropic causes.
The individuals who belong to the economically disadvantage section of the society is
beneficiaries in this type of waqf. It is mainly used for financing mosques, homes,
shelter, school, colleges and universities. This is intended to support and elevate the
economically disadvantaged individuals.
o Waqf al-Sabil: General public are the beneficiaries of such kind of waqf. Waqf al-Sabil
is very similar to waqf khayri. However Waqf al- Sabil is commonly utilized for the
development and construction of the public utility such as graveyards, power plants,
water supplies, mosques, school, etc.
o Waqf al-Awaridh: the yield of waqf is kept in reserve in order to use it in case of any
emergency or any unforeseen circumstances that negatively impact the livelihood and
prosperity of a particular community. For instance, the waqf may be made to provide
definite needs of the society such as providing of medication for sick people who cannot
pay for their medical cost and education for underprivileged children and it can also
serve for financial maintenance of the services of a village or neighborhood.

6.2 Kinds of waqfs from the view of its output nature

o Waqf-Istithmar: This sort of waqf is formed for employing the assets for investment
purposes. These aforementioned assets have to be managed in a manner so that the
income is utilized for waqf’s proper construction and reconstruction.
o Waqf-Mubashar: Waqf assets are utilized to create services to the help of some charity
recipients or other beneficiaries. Such assets comprise schools, utilities, etc.
 7. Legal Consequences of Waqf

After the completion of waqf, following are the legal consequences:-

 Dedication to God –After the completion of waqf, the property bestowed on god in the
sense that the ownership cannot be claimed by anyone.
In Md. Ismail vs Thakur Sabir Ali 4- in this case the Supreme Court has held that even
in case of waqf- alal- aulad the property is dedicated to God and the descendants can only
used the usufructs
 Irrevocable – Once a waqf has been declared and complete in India, then it cannot be
revoked and also the waqf property cannot go back to waqif’s name or in any other’s
name.
 Permanent or Perpetual – Perpetuality is one of the important elements of waqf. Once
the property is created to waqf, it is permanent it will remain waqf property forever. A
waqf cannot be made for specific time period.
In the case Mst Peeran vs Hafiz Mohammad 5the Allahabad High Court held a waqf
made of a house construct on land which is leased for a fixed time period was invalid.
 Inalienable – The waqf property cannot be alienated by anyone for himself or for any
other person because the waqf property belongs to the God. Neither it can be sold nor can
it be given away to any person.
 Pious or charitable use – For charitable and pious purpose only the usufructs of the
waqf property can be used. In case of private waqf it can be used for descendants also.
 Extinction of the right of waqif – Once the waqf is declared and completes all the rights
of waqif become extinct, even to the usufructs of the property. Any benefit from that
property also cannot be claimed by him.
 Power of court’s inspection – The functioning and management of the waqf property
can be inspected by the courts. According to the Waqf Act, 1995 any misuse of the
property of usufructs is claimed to be criminal offence.

8. Judicial Precedents

Garib Das and others v. Munshi Abdul Hamid and others 6 – it was observed in this case that
the waqf founder may constitute himself the 1st mutawalli and it is not necessary to transfer the
physical possessions in case when the founder and mutawalli is same person. It is also not
required to transfer the property name from the donor as owner into his name as mutawalli .A
presumption is made that apparent transaction is real and the burden to prove the contrary is on
the person who is claiming that waqf was not intended to be acted upon.

4
1962 AIR 1722, 1963 SCR (1) 20
5
AIR 1966 All 201
6
AIR 1970 SC 1035
Punjab Wakf Board v. Shakur Masih- In this case it was stated that when a individual
professing Muslim faith made a permanent dedication of any property for any cause which are
recognized by Muslim law as pious, religious, or charitable. According to section 174 the
dedication made must be permanent, the property which was dedicated by waqf must belong to
waqif at the time of dedication according to sec 176 and according to section 191, and contingent
waqf is not valid.

Mohammad Sabir Ali v. Tahir Ali7- For the constitution of valid waqf neither a formal
dedication or use of the word “waqf” nor the express transfer of the corpus of property to God is
required. The dedication of properties to grounds recognized by Muslim law as pious, religious
or charitable may be inferred and that in itself will give rise to a waqf.

Syed Mohd. Salie Labbai v. Mohd. Hanifa8- In this case few important requirements were laid
down for the creation of valid waqf dedication for mosque of a public nature.

 A declaration by the founder of his intention must be made to dedicate the property for
the purpose of a mosque.
 The founder must completely dispossess himself from the ownership of the property.
 A separate entrance to the mosque must be made by the founder so it can be used for
entry of public in the mosque.

Allaha Rakhi v. Shah Md. Abdul Rahim 9- The person handling the waqf, whether mutawalli,
mujawar or sajjadanashin is only a manager of waqf. He is neither a ‘trustee’ nor any property of
waqf ‘vested’ in him.

M. A. Namazie Endowment v. CIT 10-It was held in this case that a waqf made for the benefit
of waqif’s poor relations. Such waqf is not considered as waqf made for any pious, charitable, or
religious purpose so, it was not eligible for the exemption, as there was no impact of the
enactment of Waqf Act, 1954 for the purpose of Income Tax Act. The character of such waqf
would not change even after the inclusion of such waqf in the list of waqfs published in Gazette
according to the provisions of

9. Conclusion
7
AIR 1957 All 94

8
1976 AIR 1569, 1976 SCR (3) 721
9
(1934) 36 BOMLR 408
10
(1988)174ITR58(Mad)
Waqf is only for religious and pious purposes and it is permanent in character; it cannot be a
provisional institute. All the benefit which is extract from a waqf is used for the benefit of
humankind. The enactment of the Waqf Act, 1954 was a landmark in the history of waqf
organization in India. Informal boards were established and vested with significant powers and
authority, through imposition of exact obligation on mutawallis and their violations were made a
penal offence, and also by involving State Governments for supervisory responsibility and by
transferring the authority on Central Government to prescribe the policies to be adopted by the
Board, A sound administration has been laid down by the Act for the proper administration of
waqf in the country.

Waqf can be transformed into a strong institution not only for the benefit and preservation of
charitable and religious institutions, but also for the economic and educational progress of the
community. A very large number of national assets constituted by the waqf which help in
supporting schools, colleges, libraries, technical institute, charitable dispensaries, etc., which is
betterment of general public irrespective of their religion. Therefore, it is extremely important
that the waqf should be maintained properly and also the resources should be used for the objects
and purposes of dedications.

10. References

i. https://www.lawctopus.com/academike/concept-waqf-muslim-law/
ii. https://blog.ipleaders.in/concept-waqf-muslim-law/
iii. http://www.legalserviceindia.com/legal/article-1746-concept-and-essentials-of-a-
valid-wakf.html
iv. https://nyaydristi.in/wakf-a-critical-study/#_ftn1
v. Shobit Agrawal, Waqf-a critical study, Tamil Nadu National Law School
vi. https://shodhganga.inflibnet.ac.in/handle/10603/103389