When Muslim a person 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 is called waqf.
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. Details are given in old texts about wakf made by the prophet.
A lot of eminent Muslim jurists have defined Waqf in their own way. According to Abu Hanifa, “Wakf is the detention of a specific thing that is in the ownership of the waqif or appropriator, and the devotion of its profits or usufructs to charity, the poor, or other good objects, to accommodate loan.”
“As defined by Abu Yusuf, waqf has three main elements. They are-
- Ownership of God
- The extinction of the founder’s right
- The benefit of mankind
Definition under Mussalman Waqf Validating Act, 1913– Section 2 of the Act defines waqf as, “the permanent dedication by a person professing the Mussalam faith of any property for any purpose recognised by Musalman Law as religious, pious or charitable.”
Wakf Act, 1954 defines Wakf as, “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.”
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.
Essentials of Waqf
- Waqf Under Sunni Law
The essential conditions of a valid waqf, according to the Hanafi Law (Sunni Law) are:
- Permanent dedication of property
The most important essential of a valid waqf is that it should be ‘a permanent dedication of property.’ It has the following prerequisites.
- There must be a dedication.
- The dedication must be permanent.
- The dedication must be of any property.
The Waqf himself has the right to donate such property and give it for any purpose recognized under the Muslim Law. If the wakf is made for a limited period, it cannot be considered as a valid wakf.
2. By a person professing Mussalman faith
The person creating a waqf should be an adult Muslim of sound mind.
3. For any purpose recognised by Muslim Law
The main objective behind creating a waqf is that it should be dedicated for a purpose recognised as religious, pious or charitable under Muslim law.
- Waqf Under Shia law
The essential conditions for creating a valid Waqf according to Shia Law are:
- 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.
KINDS OF WAQF
Waqf are of two kinds :
Public waqf.- Those which are dedicated to the public at large having no restriction of any kind regarding its use: for example, bridges, wells, roads, etc.
Private waqf.- Those which are for the benefit of private individual or class of individual which may be settler’s family.
CREATION OF WAKF
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 –
1. 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 death bed (marj-ul-maut), in which case, he cannot dedicate more than 1/3 of his property for Wakf.
2. 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.
Subject-matter of Wakf
1. In the beginning, the subject matter of wakf consisted of properties of a permanent nature, such as land, fields, gardens, etc. But gradually all sorts of properties were made the subject matter of the wakfs. It is necessary that at the time when a wakf of a property is made it must be under the ownership of the person making it. [Commissioner of Wakf vs. Md. Mohsin, (1953) 58 Cal WN 252].
- A property subject-matter to mortgage or lease can also be given for the creation of valid wakf.A wakf which forms part of a transaction to fraud on the heirs is void and totally ineffective. [Har Prasad vs. Fayaz Ahmed, 1933 PC 83]
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.
Completion Of Waqf
Waqf can be completed by the following modes.
- Where a third person is appointed as the first mutawalli.
- Where the founder constitutes himself as the first mutawalli.
Revocation of waqf
If a valid waqf has been created, it can not be revoked by the waqif for it is in the power to divest God of his ownership of the property.
A testamentary may be revoked by the author of the waqf before his death.
A waqf during death illness without the consent of heirs is valid only to the extent 1/3rd of the property and invalid beyond this limit.
A waqf created by ‘inter vivos’ is irrevocable. If the waqif reserves the power of revocation.
Registration of Wakfs
(Section 36, The Wakf Act, 1995)
The Act makes registration of every wakf compulsory. Mutawallis of wakfs are required to move an application for registration of wakfs. Such an application can also be made by a wakf or his descendants or a beneficiary of a wakf. The application should state the following particulars:
- A description of the wakf properties sufficient for the identification thereof.
- The gross annual income from such properties.
- The amount of land revenue, cesses, rates and taxes annually payable in respect of the wakf properties.
- An estimate of the expenses annually incurred in the realization of the income of the wakf properties.
The amount set apart under the wakf for—
- The salary of the mutawalli and allowances to the individuals.
- Purely religious purposes.
- Charitable purposes.
- Any other purposes.
- Any other particulars provided by the Board by regulations.
The manager or the superintendent of the waqf is known as the ‘Mutawalli’. Such a person appointed has no powers, either to sell or exchange or mortgage the waqf property, without the prior permission of the court, unless he has been empowered by the waqf deed expressly to do so.
- It has been observed in the case of M Kazim vs A Asghar Ali that waqf in its legal sense means the creation of some specific property for the fulfilment of some pious purpose or religious purpose.
- In the case of Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, it was held that “if a Muslim man provides his house to the travellers irrespective of their religion and status for their stay, this cannot be considered as a valid Wakf on the ground that under Muslim law a Wakf has a religious motive, that it should be created for the benefit of Muslim community. When a Wakf is constituted, it is always a presumption that it is a gift of some property, made in favour of God. This is a legal fiction.
- In Moti Shah v. Abdul Gaffar Khan:- It has been held that the waqf means detention of property in the ownership of God in such a manner that its profits may be applied for the benefit of his Servants. The object of dedication must be religious or charitable
Conclusion Wakf is the creation of property for religious or charitable purposes which is established permanently. It also has the backing of law ie.binding in nature and enforceable by law. If any person is of the view that his right has been infringed then he may seek remedy from the Civil Court. The concept, powers and duties of mutawalli are of great importance to study under the topic of waqf. Such powers can only be exercised if there exists a clear vacancy for the post of the mutawalli or in case
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