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. When a waqf is created, the property is detained or, is ‘tied up’ forever and thereafter becomes non-transferable. A waqf also called wakf or mortmain property is under the context of ‘sadaqah‘, an absolute religious grant in Islamic law, typically donating a building or plot of land or even cash for Muslim religious or charitable purposes. The donated belongings are held by a charitable trust. The grant is known as “mushrut-ul-khidmat” while a person making such dedication is known as “wakif”.
The subject of “Wakf” is relative to Entry No. 10 “Trust and trustees” and No. 28 “Charities and charitable institutions, charitable and religious endowments and religious institutions” in the concurrent list attached to the 7th Schedule to the Constitution of India, Control over the management of wakfs is, therefore, the duty of both the Central government as well as State Governments. Article 26 of the Constitution gives freedom to every religious denomination to establish and maintain its religious and charitable institutions subject to public order, morality and health. They are also allowed the right to govern the properties of these institutions in accordance with the law. The subject of course, to such regulations as the law, might choose to impose. But if a law takes the whole right of supervision is null and void. The monitoring laws assume their importance out of the fact that in the case of public trusts and grants, some amount of control over their management is necessary for the interest of the public as a whole. Such laws are valid as they do not interfere with the internal matters of the institutions. The State cannot interfere in the formation or looking after of religious and charitable institutions” or in the controlling of religious matters. The numbers of religious denominations or parties are allowed to manage them in accordance with the beliefs of their religions. The only intervention possible is on grounds of public order, health and morality. The principle of wakf which is linked with the full religious life and social economy of Muslims has laid down the foundations of one of the most important institutions of the community.
Section 2(1) of the Mussalman Wakf Validating Act, 1913, defines a Wakf: – Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by Mussalman law as religious, pious or charitable.
Section 3(r) of the Wakfs Act, 1995 defines it as follow: Wakf means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes:
(i) A Wakf by the user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser,
(ii) Grant, for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) A Wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable.
As defined in Wakf Act the term wakf means, a permanent dedication made by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes a wakf by the user, mashru-ulkhidmat and wakf-alal-aulad to the extent the property is dedicated for any of the purposes mentioned above. It is not necessary that the settler should be a Muslim for creation of wakf. Any non-Muslim can also create under the Muslim law a wakf provided the object of the wakf is one which is known by Muslim Law as pious, religious or charitable and his own religion gives the object in the same manner. The words ‘professing Islam’ have been expressly taken for otherwise, all charitable and many pious grants of other societies would have come within the purview of the Act because the purposes for which they stand are also considered as charitable or pious under the Muslim Law. The Wakf (Amendment) Act, 1964, has enlarged this definition by considering all grants made for religious, pious and charitable purposes including mashru-ul-khidmat as wakf and also as permanent dedications made for mosques, dargahs, imambaras, takias, musafirkhanas, etc., by non-Muslims. Under the Muslim Law, these dedications were always wakf but the definition contained in clause (1) Section 3 had excluded them from the purview of the Act.
ESSENTIAL CONDITIONS FOR A VALID WAQF
The essential conditions for a valid waqf are as follow:
Permanent dedication: The dedication of waqf property must be permanent and Waqf himself must devote such property and give it for any purpose recognized by Muslim law, like religious, pious or charitable. If the wakf is made for a limited period it won’t be a valid wakf and also there should be no condition or contingency attached otherwise it will become invalid. The motive behind Wakf is always religious.
In Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, 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.
Competency of the Waqif: 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. For being a competent waqif a person must possess the capacity, as well as the right to constitute the waqf.
As regards the capacity of a Muslim for making a waqf, there are only two requirements:
(i) soundness of mind and,
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).
Right to make waqf: A person having the capacity but no right cannot constitute a valid waqf. The subject matter of wakf should be owned by wakif at the time when wakf is made. Whether a person has the right to constitute a waqf or not depends on the fact whether the dedicator has a legal right to transfer the 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 his entire property, but in the case of the testamentary wakf, more than one-third of property cannot be dedicated.
Kinds of Wakf
Generally, wakfs can be of two kinds: Public and private. But the most recognized is its three-fold classification — public, quasi-public and private. Public trusts are those which are dedicated to the public at large having no restraint of any kind regarding its use, e. g., bridge, well, road, etc. Quasi-public wakfs are those, 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 the public, so they are partly public and partly private.
Private wakfs are those which provide benefit to private individuals, including the settler’s family or relations. Such a wakf is termed as wakf-alal-aulad. The Mutawalli manages the wakf but he cannot separate the property. He is, however, more than a manager or administrator, as he does not hang on the pleasure of anybody else or to anybody. Under Muslim Law, a private wakf is subject to the same restraints as any public wakf as the Law makes no difference between public and private wakfs. Both are subject to the rules of the divine property where the rights of the wakf are extinguished and it becomes the property of God. Both the wakfs are created in eternity and properly becomes indisputable. Like public wakfs, a private wakf can under no conditions fail and when the line of descent becomes extinct, the entire corpus goes to charity.
It may be clarified here that the term ‘private’ is used to suggest wakfs for private individuals. It does not include wakfs which are of public nature, such as, a mosque. According to Muslim Law, there is nothing like a “Private Mosque”. A person can set apart an apartment for his own prayers, but if he allows others to say their prayers in it, it assumes & public character. The test whether a building is a mosque, it is enough to make it “wakf” provided that public prayers are even once said with the permission of the settler. According to Abu Yusuf, wakf is the confinement of a thing in the implied ownership of Almighty God in such a way that its profits may be applied for the benefit of human beings, and the dedication when once made is absolute so that the thing dedicated can neither be sold nor given or inherited. In India, the view of Kazi Abu Yusuf is adopted.
In Jewun Dass v. Shah Kubeer-Ooddin, the Privy Council held that after the creation of wakf, the right of the wakif is extinguished and the possession is transferred to the Almighty. Fatawa-i-Alamgiri declares that “decrees in this country are given according to Abu Yusuf.”
CREATION OF WAQF
Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements as described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is usually created in the following ways –
By an act of a living person (inter vivos) – when a person declares the dedication of his property for Wakf. This can also be done while the person is on a death bed (marj-ul-maut), in which case, he cannot dedicate more than 1/3 of his property for Wakf.
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 Wakf by will but now it has been approved.
By Usage – when a property has been in use for the charitable or religious purpose for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.
In the case of Imambara it was held by the Oudh High Court that if ‘majalises’ were celebrated and “Quran Khani’ was done and the building had never been used as a residential house, the belief of dedication will be made. But it would be erroneous to think that the funeral of a saint on a particular spot would make it wakf, in spite of the fact that ‘Urs’ was held there without the proprietor’s objections.
LEGAL CONSEQUENCES OF WAKF
Once a wakf is complete, the following are the consequences –
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 wakf alal aulad, the property is dedicated to God and only the usufructs are used by the descendants.
Irrevocable – In India, a wakf once declared and complete, cannot be revoked. The wakif cannot get his property back in his name or in any other’s name.
Permanent or Perpetual – Perpetuality is an essential element of the wakf. Once the property is given to wakf, it remains for the wakf forever. Wakf cannot be of specified time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahabad HC that the wakf of a house built on land leased for a fixed term was invalid.
Inalienable – Since Wakf 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.
Pious or charitable use – The usufructs of the wakf property can only be used for a pious and charitable purpose. It can also be used for descendants in case of a private wakf.
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.
Power of court’s inspection – The courts have the power to inspect the functioning or management of the wakf property. Misuse of the property of usufructs is a criminal offence as per Wakf Act.1995.
Conclusion: It can be promptly said that the enactment of the Wakf Act. 1954, made a landmark in the history of wakf organization in India. By establishing informal Boards vested with considerable authority and powers, by imposing an exact obligation upon mutawallis and making their violation a penal offence, by associating the State Governments in the supervisory responsibility and by conferring authority on the Central Government to lay down the policies to be adopted by the Boards, the Act has laid down a sound administrative structure to ensure proper administration of wakfs in the country. Whatever lacunae or weaknesses existed in the Act have been removed by the Wakf (Amendment) Act, 1964 and the Act as amended is a very sound piece of legislation. Considering their number and resources, wakf can become a strong instrument not only for the preservation of religious and charitable institutions but also for the educational and economic development of the community. Wakfs constitute a national asset for a very large number of these support schools, colleges, technical institute, libraries, reading-rooms, charitable dispensaries and Musafirkhanas, etc., which benefit the public irrespective of their religion or creed. It is of utmost importance, therefore, that wakfs should be maintained properly and their resources should be utilised for the objects and the purposes of dedications. But unfortunately, many of the existing wakfs have not escaped the process of decadence brought in by the twin impact of neglect and misuse.
 AIR 1934 All 1013.
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 Prof. G.C.V. SUBBA RAO, Family Lawin India, (10th Ed, S. Gogia & Company, 2012 Hyderabad).PG NO-271
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 Section 3(1) of the Wakf Act 1954.
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