The term waqf originates from the Arabic verb Waqafa, which means to detain, to hold or to tie-up. The term waqf literally means “tying up or detention” and is an important social institution of Islam. It is a permanent dedication of some specific property for the religious and pious purpose by a Muslim. Every Muslim of sound mind may dedicate his property by way of waqf either verbally or in writing. The real intent behind making a waqf is to receive virtue in the eyes of the Lord.
When we talk about the term ‘Waqf”, it literally means ‘detention, ‘stoppage’ or ‘tying up. Technically it means a dedication in perpetuity of some specific property for a pious purpose or a succession of pious purposes.
The Waqf (Amendment) Act, 2013 has substituted the definition of ‘Waqf’ in Section 3(r) of the Act 1995. It defines Waqf as the permanent dedication by any person of any movable or immovable property for any purpose recognised by the Muslim Law as religious, pious or charitable.
ESSENTIALS OF WAQF
The essentials of a valid waqf according to the Hanafi School (Sunni Law) are as follows:
1. Permanent dedication of any property – The dedication of property for waqf must be permanent and the waaqif himself devote such property for the recognized purpose like religious, charitable or pious. If waqf made by the waaqif is for a limited period then such waqf is not a valid one and also there must not be any such condition or contingency should be attached otherwise then it will become invalid..
2. Competency of the Waqf – The dedicator (waaqif) should be a person professing Mussalman faith and of sound mind and must not be a minor or lunatic.
3. For any purpose recognised by Muslim Law – This is also called te object of waqf. Thus the third essential of a valid waqf is that the dedication should be for a purpose recognised as religious, pious or charitable under Muslim Law.
According to Shia Law, ” waqf is a contract, the fruit or effect of which is to tie up to the original and to have its usufruct free” (Sharya-ul-Islam) .
- It must be perpetual.
- It must be absolute and unconditional.
- Possession of the thing appropriated must be given.
- The waqf property should be entirely taken out of waqif.
Who can make a waqf : Capacity to make a wakf
Any Muslim who has attained the age of majority i.e. 18 years, and who is of sound mind, may make a wakf. A wakf cannot be made by a guardian on behalf of the minor, such a wakf is void. [Commissioner of Wakf vs. Md. Mohsin, (1953) 58 Cal WN 252]
Modes Of Creation of Waqf – Waqf can be created in the following ways.
- By an act inter vivos– This type of waqf is created between living voices, constituted during the lifetime of the waqif and takes effect from that very moment.
- By will– A waqf created by will is contradictory to a waqf created by an act inter vivos. It takes effect after the death of the waqif and also known as ‘testamentary waqf’. Such a waqf cannot operate upon more than one-third of the net assets, without the consent of the heirs.
- During death or illness (marz-ul-maul)– Like the gifts made while the donor is on the death bed, will operate till the extent of one-third of the property without the consent of the heirs of the property.
- By immemorial user– Limitation of time also applies to the creation of waqf property, but waqf property can be established by way of immemorial use.
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