SESSION-2020-21

Class – BBA LL.B 4 Sem

th

Subject – Muslim Personal Law

Topic – WAQF

SUBMITTED BY- SUBMITTED TO-

Manisha Patidar. Prof. Eman Hayaat
Siddiqui.
Table of content-
1. Introduction.
2. Definition.
3. Origin of the institutions of Waqf.
4. Essential elements of Waqf.
5. Kinds of Waqf.
6. Valid objects of Waqf.
7. Creation of Waqf.
8. Legal consequences of Waqf.
9. Office of Mutawalli.
10. Powers of Mutawalli.
11. Removal of Mutawalli.
12. Difference between Waqf and Trust.
13. Conclusion.
WAQF
Introduction:-
All over the world humans are known to establish charitable institutions through various ways for acquiring
merit and value in the eyes of god in this life. These institutions are called by different names in various
religions. Waqf is an important social institution of Islam. It is permanent dedication by a person who is
muslim or professing Islam of some specific property for religious or charitable purpose. If we look at the
word ‘Waqf’, in its literal sense it is ‘detention’, ‘stoppage’ or ‘tying up’. Although, Waqf is not mentioned
in Quran. But, it pleads Muslim to give charity. It increases wealth instead of decreasing it, it brings
happiness, guarantees success in this world and above all it brings divine rewards. In the legal context Waqf
means detention of a property so that all the income gained from the property may always be available for
religious or charitable purposes. It is not necessary that Waqf should be created by a Muslim person only,
any person who is Muslim or professing Islam can create a Waqf.

Waqf has its origin in the words of Prophet. Waqf under the Muslim Law owes its origin to a rule laid down
by the Prophet of Islam; and means "the tying up of property in the ownership of God the Almighty and the
devotion of the profits for the benefit of human beings. As the result of the creation of a Waqf, the right of
Waqif (settler) in the property is extinguished and the ownership is transferred to the Almighty. The
manager of the Waqf is the Mutawalli, the Governor, Superintendent or Curator. But in that capacity he has
no right in the property belonging to the waqf, the property is not vested in him and he is not a trustee in the
legal sense. The reason that the institution of Waqf has given so much important because it serves a two-fold
purpose, on the one hand it satisfies human instinct for charity and on the other hand it makes provisions for
the weaker sections of society.

When a Waqf is constituted, it is presumed that a gift of some property has been made in favor of God. This
is ensured through a legal fiction that Waqf property becomes the property of God. An essential for the
validity of Waqf is that the dedication should be for a purpose recognized as religious, pious or charitable,
under Muslim Law.

Waqfs in India are governed by the Waqf Act, 1995. A survey commissioner under the Act lists all
properties declared as Waqf by making local investigation, summoning witnesses and requisitioning public
documents. The Waqf is managed by a mutawali, who acts as a supervisor. It is similar to a trust established
under the Indian Trusts Act, 1882, but trusts can be set up for a broader purpose than religious and charitable
uses. A trust established can also be dissolved by the board unlike a Waqf.

Indeed, it is interesting to note that Fyzee considers Islam a socialist and democratic worldview. He says it is
socialistic because it divides the estate of a person after his death compulsorily and distributes among his
nearest relations, male and female; democratic because it preaches equality among human beings and the
brotherhood of man.

In the organizational structure of a Waqf, there are three major parties. The founder is called the waqif, who
creates a Waqf either by writing or pronouncing his intention to make a Waqf of his property in favor of the
beneficiary or beneficiaries, called mawqufalayh, who, according to some jurists must be capable of owing
property.

A Waqf can also be created for a specific purpose, e.g., promotion of religious education or the welfare of
the needy and the poor. The third party is the administrator, called the mutawalli, who administers the Waqf
according to the conditions laid down by the founder. The qadi performs the duty of supervision over the
Waqf by keeping a check on the administrator. A specialized government department (diwan) to govern the
public Waqf. The law of Waqf is very important branch of Mohammedan Law, as it is interwoven and
connected with the entire religious, social and economic life of Muslims. There is always an objective
behind creating a Waqf, which is to ensure that its usufruct is made continuously available for certain
purposes, generally religious and charitable purposes.

Definitions of Waqf:
i) Abu Hanifa: “The detention of specific thing in the ownership of property with the appropriator and
devoting or appropriating of its profits or usufructs in charity on the poor or other good objects”

ii) Abu Yusuf: “It signifies the extinction of the appropriators ownership in the things dedicated and the
detection and the things in the implied ownership of God in such a manner that its profit may revert to or be
applied for the benefit of mankind”.

iii) Prophet: “Tie up the property and leave the usufruct to human beings”.

iv) 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 Mussalman Law as religious, pious or charitable.”

v) Waqf Act, 1954 defines Waqf as, “Waqf 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.”

.
It is observed in the case1that technically, it means dedication of some specific property for a pious purpose
or secession of pious purposes.

ORIGIN OF THE INSTITUTIONS OF WAQF:

The term wakf is not found anywhere in the Quran. Thus the whole law of wakf is built on the basis of few
Quranic Verses and also on the practice and percepts of Prophet. It has its origin from prophet.

Development of the Law of Waqf in India-

i) 1913:- The First legislation that referred to wakf specially was the 'Mussalman Waqf validating Act 1913.
This Act came into existence as a result of decision of Privy Council in a case2, which was the case where 2
brothers and the poor. The Privy Council held the wakf to be invalid. This decision caused a lot of hue and
cry among Muslims and hence Act of 1913 was passed which made a wakf created by a person professing
Islam. Even for his family alone lawful if it was in accordance with the provision of Muslim law.

ii) 1923:- -It was the Mussalman wakf Act 1923, that deal with proper control and management of wakf
properties. It directed Mutawalli to notify District Judge within 6 months form formation of wakf about all
administrate and financial details of the wakf. But the act did not confer power on court to take action
against mutawalli in case of default.

iii) 1954:- In such diminishing state of affairs of wakf institutions Parliament passed the Waqf Act in 1954.
This was comprehensive legislation providing for survey, publication, registration of Waqf.

iv) 1984:- Amending Act of 1984 was passed for appointment of wakf commissioners’ enhancement of
powers of state Govt. as regards to control over wakf institutions.

1
M Kazim vs. A Asghar Ali
2
Abdul Fata Vs. Russomy ILR (1894) 22 cal 619 [PC]
v) 1995:- Finally in the year 1995 Wakf Act was passed by Parliament incorporating amendments to earlier
legislation. Thus wakf Act 1995 is present legislation that governs all the matters related to wakf but at the
same time, the ground work legislation remains the wakf Act 1913

Essential elements of Waqf –

i) Sunni Law:-

1) Dedication Of property.
2) Competency of the Waqif.
3) Religious or charitable or pious purpose.
4) Inalienability.
5) Irrevocability.

ii) Shia Law:-

1) It must be perpetual.
2) It must be absolute & unconditional.
3) Possession of the property must be given to beneficiary.
4) The Wakf should not retain any interest in the property.

The essential conditions for a valid Waqf are as per Sunni Law:

1) Dedication of property: 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 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. The motive behind Waqf is always religious.

The dedication of house by a Muslim for use of all travelers irrespective of religion and status was held not to
be a Waqf on the ground that under Muslim law a Waqf 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. 3

When a Waqf is constituted, it is presumed that a gift of some property has been made in favor of God. This
is ensured through a legal fiction that Waqf property becomes the property of God. 4

2) Competency of the Waqif:

Who Can Create a Waqf?

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 competency to make a valid Waqf.

As regards the capacity of a Muslim for making a Waqf, there are only two requirements:

3
In the case of Karnataka Board of Waqfs v. Mohd. Nazeer Ahmad.
4
www.lawctopus.com/concept-waqf-muslim-law/
i) Soundness of mind and,

ii) Majority-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 Imbabura).5

3) Right to make Waqf: A person having the capacity but no right cannot constitute a valid Waqf. The
subject matter of Waqf should be owned by Waqif at the time when Waqf 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 Waqf, more
than one-third of property cannot be dedicated.

4) Religious or Charitable or Pious or Object:

The purpose of the wakf must for the benefit of human kind and for objects which are recognized by the
mohammedan law as religious, pious, or Charitable.

5) 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.

6) Irrevocability:

In India a wakf once declared and complete, cannot be revoked. The wakif cannot get his property back in his
name or in any others name.

KINDS OF WAQF

Generally, there are two types of Waqf:

5
www.lawctopus.com/concept-waqf-muslim-law/
1. Public Waqf.

2. Private Waqf.

1. Public Waqf – A public waqf is one for public, religious or charitable purposes.

2. Private Waqf – It is one for the settler’s own family and descendants and is technically called, waqf-ulal-
aulad. However, it is a family settlement by way of waqf.6

Categories of Waqf from the perspective of its purpose:

• Waqf ahli: The proceeds of waqf are designated for the waqf founder’s children and their offspring.
However, these beneficiaries cannot sell or dispose of the property subject-matter of waqf.

• Waqf khayri: The proceeds of waqf are earmarked to charity and philanthropy. Examples of beneficiaries
include the poor and the needy. Waqf khayri is typically used to finance mosques, shelters, schools, and
universities. This is meant to help financially-challenged individuals and communities.

• Waqf al-sabil: a waqf whose beneficiaries are the general public. It is very similar to waqf khayri, though
waqf al-sabil is usually used to establish and construct the public utility (mosques, power plants, water
supplies, graveyards, schools, etc).

• Waqf al-awaridh: the yield of waqf is held in reserve so that it can be used at times of emergency or
unexpected events that negatively influence the livelihood and well-being of a community of people. For
example, waqf may be assigned to the satisfaction of specific needs such as medication for sick people who
are unable to pay medication expenses and education of poor children. Waqf al-awaridh may also be used to
finance maintenance of the utilities of a village or neighborhood.

Categories of waqf from the perspective of its output nature:

• Waqf-istithmari: the waqf assets are intended for investment. Such assets are managed to produce income
that will be used in constructing and reconstructing waqf properties.

• Waqf-mubashar: the waqf assets are used to generate services to the benefit of some charity recipients or
other beneficiaries. Examples of such assets include schools, utilities, etc.

VALID OBJECTS OF WAQF:

An essential for the validity of waqf is that the dedication should be for a purpose recognized as religious,
pious or charitable, under Muslim Law.

On basis of decided cases and the text of eminent Mohammedan Jurists, certain objects which had been
declared to be valid objects of waqf are:-

1. Mosque and provisions for Imamas to conduct worship.

6
www.ourlegalworld.com/waqf-under-muslim-law-analysis/
2. Celebrating the birth of Ali Murtaza.

3. Repairs of Imambaras.

4. Maintenance of Khankahs.

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

6. Maintenance of poor relations and dependant.

7. Payment of money to Fakirs.

8. Grant to an Idgah.

9. Grant to the college 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 Durgahor or shrine of a Pir which has long been held in veneration by the public 7.

The following are not recognized as valid objects of the Waqf, by the Muslim law.

1. Objects prohibited by Islam, e.g. erecting or maintaining a church or temple.

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

3. Providing for the rich exclusively.

4. Objects which are uncertain.

7
www.lawctopus.com/concept-waqf-muslim-law
5. A direction to spend a certain sum of money for feasting Cutchi Memons every on the anniversary of the
anniversary of the settlor’s death is not valid.

CREATION OF WAQF:
Muslim law does not prescribe any specific way of creating a Waqf. If the essential elements as described
above are fulfilled, a Waqf is created. Though it can be said that a Waqf 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 Waqf.
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 Waqf.

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 Waqf by will but now it has been approved.

3. By Usage – when a property has been in use for the charitable or religious purpose for time immemorial, it
is deemed to belong to Waqf. No declaration is necessary and Waqf is inferred.

LEGAL CONSEQUENCES OF WAQF:

Once a waqf is complete, the following are the consequences –

1) Dedication to God – The property vests in God in the sense that nobody can claim ownership of it. In a
case8 SC held that even in waqf alal aulad, the property is dedicated to God and only the usufructs are used
by the descendants.

2. Irrevocable – In India, a waqf once declared and complete, cannot be revoked. The waqif cannot get his
property back in his name or in any other’s name.

3. Permanent or Perpetual – Perpetuality is an essential element of waqf. Once the property is given to waqf,
it remains for the waqf forever. Waqf cannot be of a specified time duration. In the case9, it was held by
Allahabad HC that the waqf of a house built on land leased for a fixed term was invalid.

4. Inalienable – Since Waqf 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.

5. Pious or charitable use – The usufructs of the waqf property can only be used for pious and charitable
purpose. It can also be used for descendants in case of a private waqf.

6. Extinction of the right of waqif – The waqif loses all rights, even to the usufructs, of the property. He cannot
claim any benefits from that property.

7. Power of court’s inspection – The courts have the power to inspect the functioning or management of the
waqf property. Misuse of the property of usufructs is a criminal offense as per waqf act.1995.

OFFICE OF MUTAWALLI:

8
Md. Ismail vs. Thakur Sabir Ali
9
Peeran vs. Hafiz Mohammad,
Mutawalli is nothing but the manager of a waqf. He is not the owner or even a trustee of the property. He is
only a superintendent whose job is the see that the usufructs of the property are being utilized for valid purpose
as desired by the waqif. He has to see that the intended beneficiaries are indeed getting the benefits. Thus, he
only has limited control over the usufructs.

SC held that a mutawalli has no power to sell, mortgage, or lease waqf property without prior permission of
the Court or unless that power is explicitly provided to the mutawalli in waqfnama.10

Who can be a mutawalli?

A person who is a major, of sound mind, and who is capable of performing the functions of the waqf as desired
by the waqif can be appointed as a mutawalli. A male or female of any religion can be appointed. If religious
duties are a part of the waqf, then a female or a non-muslim cannot be appointed.
In the case11, Privy Council held that there is no legal restriction on a woman becoming a mutawalli if the
duties of the waqf do not involve religious activities.

Who can appoint a mutawalli?

Generally, the waqif appoints a mutawalli. He can also appoint himself as a mutawalli. If a waqf is created
without appointing a mutawalli, in India, the waqf is considered valid and the waqif becomes the first
mutawalli in Sunni law but according to Shia law, even though the waqf remains valid, it has to be
administered by the beneficiaries. The waqif also has the power to lay down the rules to appoint a mutawalli.

The following is the order in which the power to nominate the mutawalli transfers if the earlier one fails –

1. founder,

2. executor of the founder, &

3. mutawalli on his death bed.

4. the Court, which should follow the guidelines –

1) It should not disregard the directions of the settler but public interest must be given more importance.

2) Preference should be given to the family member of the waqif instead of an utter stranger.

Powers of a mutawalli –
Being the manager of the wakf, he is in charge of the usufructs of the property. He has the following rights –

1. He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose of the wakf.
He can take all reasonable actions in good faith to ensure that the intended beneficiaries are benefited by the

10
Ahmad Arif vs. Wealth Tax Commissioner
11
Sahara Bano vs. Aga Mohammad
wakf. Unlike a trustee, he is not an owner of the property so he cannot sell the property. However, the wakif
may give such rights to the mutawalli by explicitly mentioning them in wakfnama.

2. He can get a right to sell or borrow money by taking permission from the court upon appropriate grounds
or if there is an urgent necessity.

3. He is competent to file a suit to protect the interests of the waqf.

4. He can lease the property for the agricultural purpose for less than three years and for the non-agricultural
purpose for less than one year. He can exceed the term by permission of the court.

5. He is entitled to remuneration as provided by the waqif. If the remuneration is too small, he can apply to
the court to get an increase.

Removal of a mutawalli –
Generally, once a mutawalli is duly appointed, he cannot be removed by the waqif. However, a mutawalli can
be removed in the following situations –

1. By court-

1. If he misappropriates wakf property.

2. Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.

3. Knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs. Mahmood
Hasan, SC held that using wakf money to buy property in wife’s name is such breach of trust as is sufficient
ground for removal of mutawalli.

4. If he becomes insolvent.

2. By wakf board – The Wakf board can remove mutawalli from his office under the conditions mentioned
in the Waqf Act, 1995.12

3. By the waqif – As per Abu Yusuf, whose view is followed in India, even if the waqif has not reserved the
right to remove the mutawalli in waqf deed, he can still remove the mutawalli.

DIFFERENCE BETWEEN WAQF AND TRUST:

Both, in waqf as well as in trusts, the property is detained and its usufruct is utilized for religious or charitable
purposes. But, a waqf under Muslim personal law may be distinguished from a trust at least on the following
matters:

(1) A waqf may be constituted only for those purposes which are recognized as religious, pious or charitable
in Islam whereas, a trust may be constituted for any lawful object.

12
Section-64 of Waqf Act, 1995
(2) Except under Hanafi law, the founder of a waqf cannot reserve any benefit for himself, but the founder of
a trust may himself be a beneficiary.

(3) The powers of a mutawalli (manager of the waqf-property) are very limited as compared to the powers of
a trustee.

(4) A waqf is generally perpetual and irrevocable, whereas, a trust need not be perpetual and may also be
revoked under certain conditions.

CONCLUSION:

Waqf is a charitable foundation. It improves life by using the effect of moral and religious motivation. Due to
the fact that Allah encourage human beings to help each other in his Holy Qur’an and with the example of his
prophet, waqf is prominently improved in the Muslim world and plays a significant role in social, political,
and economic life in the Muslim society. Islam is the first religion which implemented the concept of waqf. It
was form as a prime vehicle in causing and to push the society in achieving calmness and, providing good
meal, good high education, serving and offering free healthcare and so on. By this waqf not only make
endowment of the wealth to get closer to God but it also sympathizing the hardship of others as well as
respecting their rights. This is suggested and encourage by Islam, Muslim are encourage to practice waqf. By
implementing the concept of waqf, our societies can become more develop and successful .This is because
waqf contribute much in building human’s life, from the beginning until the day we die.

It also forms a crucial source to develop Islamic countries, especially in term of general infrastructure, it is
free of charge, when that country develops, the nation will also benefits from its development and success. By
this we can see that the concept of waqf plays an important role in upgrading and developing Islamic countries
and its nation. This is because waqf has closed and indirect relationship with the economy. However, in Islam
through waqf it can contribute and help the distribution the wealth between the nations in Islamic countries.

Waqf can help the needy, family members, guests and person in travel and so on. Waqf can provide them to
go on with their lives with more happiness, calmness, like the rest of the society. This is among the best ways
that we can develop human society. Waqf not only distribute the wealth to the needy but make them to have
at least a basic live foundation, such as wealth, loan distribution of healthy, food, libraries, school, universities,
hospitals, welfare house for guests and person who is in traveling and infrastructures. These concepts of course
provide calmness and tranquility for the nation. It also has the backing of law that is binding as well as
enforceable in nature. If an individual is of the perspective that his right has been infringed or taken away,
then the person, if wish, can seek remedy from the Civil Court. The powers, concept, and duties of mutawalli
are of considerable significance under the subject of waqf. Such powers can only be used if there exists a
transparent vacancy for the post of the mutawalli, or just in case of a dispute on the competence or eligibility
of existing mutawalli.

BIBLIOGRAPHY
www.legalbites.in/muslim-law-notes-wakf-concept/

www.lawctopus.com/academike/concept-waqf-muslim-law/

blog.ipleaders.in/concept-waqf-muslim-law/

www.legalserviceindia.com/legal/article-1746-concept-and-essentials-of-a-valid-wakf.