LAW OF EQUITY, TRUSTS AND RELIGIOUS ENDOWMENTS

WAQF – DEFINITION, OBJECT AND ESSENTIALS

ARMY INSTITUTE OF LAW, MOHALI

IN PARTIAL FULFILLMENT FOR SEMESTER X OF B.A.LLB 5 YEARS COURSE

Submitted By Submitted To
Animesh Puneet Gupta Dr Anmolpreet Kaur
1710 Asst. Prof. of Law
 ACKNOWLEDGEMENT

This project consumed a huge amount of work, research, and dedication. I would like to
express my deepest appreciation to all those who provided me with the possibility to
complete this project work. Sincere gratitude to our Professor, Dr. Anmolpreet Kaur whose
superior knowledge and contribution in stimulating suggestions helped me to coordinate my
full effort in achieving the project.

ANIMESH P. GUPTA

Roll No. – 1710

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 INTRODUCTION

The concept of Waqf has been developed under Islamic Law. Waqf under the Muslim Law
owes its origin to a rule laid down by the Prophet and means “the tying up of property in the
ownership of the God, the Almighty and the devotion of the profits for the benefit of human
beings. 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 person professing Islam, 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 such donation is called wakf. Wakf Act, 1954 provides that
“Wakf 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.

The essentials of a valid waqf that can be made out by a bare reading of its definition are –

1. Permanent dedication of property

2. Waqif i.e., the founder of the wakf must a person professing Islam or Mussalman faith
and must possess the capacity, which is, soundness of mind and majority by age and
also the right to constitute a valid wakf
3. The property must be dedicated for a purpose which is religious, pious and charitable
according to Islam.

There is an object behind making a waqf. On basis of decided cases and the text of eminent
Mohammedan Jurists, certain objects have been declared to be valid objects of waqf such as
mosques, grant to colleges, dargah of a pir which has long been held in veneration by the
public, payment of money to Fakirs etc. The Waqif himself has the right to donate such
property and give it for any purpose recognized as religious, pious and charitable under the
Muslim Law. If the waqf is made for a limited period, it cannot be considered as a valid
waqf.

A waqf can be either in writing or can be made by an oral presentation. In the case of an oral
agreement, the presence of words emphasising on the intention of the parties is a prerequisite.
Waqf is binding and enforceable by law and it has legal consequences which are dealt with in

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this project. Waqf is thus very unique and beneficial for poverty alleviation programmes.
This project will portray the meaning and essential elements of a valid waqf.

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 HISTORICAL BACKGROUND OF WAQF

Wakf – spelt in religious circles as waqf, plural auqaf – which literally means property
dedicated “in the name of God” is a form of sadqa – e- jariyah based on a Hadith. The
Prophet was approached by one of his companions to know how he could spend his riches
perpetually in the service of humanity. The Prophet’s advice to the companion was “habbis-
il-asla wa sabbil-is-samarat” [freeze the corpus and let the usufruct flow].1 Although there is
no mention of Waqf in Quran but such Quranic injunctions which deal with charity are at the
root of development and extension of waqfs.2 The Quran repeatedly speaks of and encourages
people to use their earnings and assets for religious and charitable purposes.

DEFINITION OF WAQF

1. Abu Yusuf – Waqf is the detention of a thing in the implied ownership of almighty God in
such a manner that its profits may revert to or be applied for the benefit of His creatures.
There are 3 elements in this definition – (i) Ownership of God; (ii) the extinction of the
founder’s right; and (iii) the benefit to mankind.

2. Waqf Act, 19953 – Waqf means the permanent dedication by any person, of any movable
or immovable property for any purpose recognised by Muslim Law as religious, pious or
charitable and includes –

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user
having ceased irrespective of the period of such cesser;

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue
record;

(iii) grants, including mashrat-ul-khidmat for any purpose recognised by the Muslim Law as
pious, religious or charitable; and

(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose
recognised by Muslim law as pious, religious or charitable, provided when the line of
succession fails, the income of the waqf shall be spent for education, development, welfare
and such other purposes as recognised by Muslim law, and waqif means any person making
such dedication.

1
Tahir Mahmood and Saif Mahmood, Introduction to Muslim Law 193 (Lexis Nexis, Gurgaon, 2018)
2
Aqil Ahmed, Mohammedan Law 294 (Central Law Agency, Allahabad, 2015)
3
The Waqf Act, 1995 (Act 43 of 1995)

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 ESSENTIALS OF WAQF

According to Sunni Law

1. Permanent dedication of any property – The dedication of waqf property must be

permanent and Waqif himself must devote such property. Dedication implies declaration and
according to Abu Yusuf, a mere declaration is sufficient which may be either oral or in writing
and neither possession nor appointment of mutawalli (manager of the Waqf) is necessary.

If the waqf is made for a limited period it won’t be a valid waqf and also there should be no
condition or contingency attached otherwise it will become invalid. 4 Perpetuity is a necessary
condition for the validity of waqf. The subject of waqf must belong to the waqif i

Case Laws – 1. Mohd. Shah v. Fasihuddin5 - Long user – where the land has been long used
as waqf, 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.

2. Chhedi Lal Misra v. Civil Judge6 - Waqif divested of his title to property upon dedication
and creation of waqf – In this case where a waqf was created in 1926, registered under Sec 38
of the Act,1936 and was notified in Jan 1954 was brought into question in 1958 when the
waqif filed a collusive suit which was decreed on compromise. The Court held that in this
case the waqf character of the properties hadn’t been obliterated even though the revenue
records had been altered. The law is well settled that once a waqf is created it continues to
retain such character which cannot be extinguished by an act of the mutawalli or anyone
claiming through him.

3. Mohd. Ismail Faruqui v. Union of India (Ayodhya Case)7 – Right to property must be
present with Waqif – The Apex 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
Mohammedan 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.

4
Concept of Waqf under Muslim law, available at https://www.lawctopus.com/academike/concept-waqf-
muslim-law (last visited on 9/04/2022)
5
AIR 1956 SC 713
6
(2007) 4 SCC 632
7
AIR 1994 SC 605

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2. Waqf to be created by a person having the right and the capacity to do so - The person
constituting the waqf of his own properties is known as the ‘founder of waqf’ or Waqif.
Following needs to be fulfilled to become a waqif and constitute a waqf - (i) The person
constituting the waqf should be a Muslim.; (ii) Should be a person of sound mind. and (iii)
Should have attained the age of majority.

The Madras and Nagpur High Courts have held that a non-Muslim can also create a valid
waqf provided the objective of the waqf so created is not against the principles of Islam.
According to the Patna High Court, a valid waqf can also be constituted by a non-Muslim.
However, such a waqf would only be constituted under a public waqf i.e., a non-Muslim
cannot create any private waqf (e.g., an Imam bara).

A person may profess the capacity but may not have any right to constitute a waqf. Such a
person cannot constitute a valid waqf. The subject matter of waqf should be owned by the
waqif at the same time when waqf is being constituted. Whether a waqf can be created by a
particular person depends upon whether there exists a legal right for the dedicator to transfer
the ownership of the property or not. For example, a waqf of any property held by a widow in
lieu of her unpaid dower cannot be constituted by her because she is not an absolute owner
of that property.8

3. Waqf to be created for a purpose recognised as religious, pious or charitable under

the Muslim Law – Also called the object of waqf, a person who dedicates this property by
way of waqf may, instead of enumerating the objects for which the income of waqf may be
used, provide that it may be used for any welfare works permitted by Shariat i.e.,
Mohammedan Law.9

In Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad 10 - the dedication of house by a

Muslim for use of all travellers irrespective of religion and status was held not to be a Wakf
on the ground that under Muslim law a Wakf 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.

8
Concept and Explanation of Waqf under Muslim Law, available at https://blog.ipleaders.in/concept-waqf-
muslim-law/ (last visited at 10/04/2022)
9
Fajal Sheikh v. Abdur Rahman AIR 1991 Gau 17
10
AIR 1982 Kant 309

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Valid object of Waqf - On basis of decided cases and the text of eminent Mohammedan
Jurists, certain objects which had been declared to be valid objects of wakf are: -1. Mosque
and provisions for Imams to conduct worship.

2. Celebrating the birth of Ali Murtaza

3. Repairs of Imambara.

4. Maintenance of Khankahs.

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

6. Maintenance to poor relations and dependants.

7. Payment of money to Fakirs.

8. Grant to an Idgah.

9. Grant to the colleges 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.

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

Invalid object of Waqf - 1. Objects prohibited by Islam, e.g., erecting or maintaining a

church or temple.

2. A wakf for the perairs of the waqif’s secular property is invalid according to Shia law.

3. Providing for the rich exclusively.

4. Objects which are uncertain.

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The object of waqf must be indicated with reasonable certainty, if they aren’t, the waqf will
be void for uncertainty. As to whether an object has been indicated with reasonable certainty
or not, the question is mostly based on the terms used and the construction that the Court puts
on those terms.

CONCLUSION

The definition of Waqf according to the accepted doctrine of the Hanafi school is the
extinction of the proprietor’s ownership in the thing dedicated and its detention in the implied
ownership of God in such a manner that the profits may revert to and be applied for the
benefit of mankind.

Ameer Ali describes the law of Waqf as, “the most important branch of Muslim Law, for it is
interwoven with the entire religious life and social economy of Muslims. Waqf in its literal
sense means detention or stoppage.”

Waqf under the Muslim Law owes its origin to a rule laid down by the Prophet and means
“the tying up of property in the ownership of the God, the Almighty and the devotion of the
profits for the benefit of human beings.”

Waqf is the detention of property for religious or charitable purposes which is established
permanently. The title of the Waqif (founder of waqf) extinguishes and the property is
dedicated in perpetuity in the almighty God’s name.

In Md. Ismail vs Thakur Sabir Ali11, the Supreme Court has held that even in wakf-alal-aulad,
the property is dedicated to God and only the usufructs are used by the descendants. Waqf
also has the backing of law which is binding in nature and enforceable. If any person is of the
view that his right has been infringed then he may seek remedy from the Civil Court.

In conclusion the legal consequences of a Waqf are –

1. Irrevocability

2. Perpetuity

3. Inalienability

4. Pious or charitable use of usufruct

5. Absoluteness

11
1963 SCR (1) 20