The Concept of Waqf Under Muslim Law

This article was originally written as an academic paper and is republished here as a knowledge-sharing resource. It has been lightly formatted; statutory references reflect the law as it stood at the time of writing.

“Concept of Waqf under Muslim Law”

Introduction

Waqf is an unconditional and perpetual dedication of something out of dedicators and vested in the ownership of God, dedicating usufruct of the property for the benefit of mankind, or for institutions, mosques or for any purpose not forbidden by Islam, with the intention of obtaining God’s pleasure.

According to Abu Hanifa, waqf is “the tying up of the substances of a property in the ownership of the Waqif and the devocaion of its usufruct, amounting to an ariya or accommodate loan, for some charitable purpose”. It means that the ownership in the property continued to be vested in the founder or Waqif and its usufruct or profits were used for charitable or pious purposes.1 The Waqif could revoke it any time and, dispose it off to anyone else.2 Once a waqf is created will remain a waqf forever.3 Waqf is recognized since the time of Prophet Mohammad.4

According to Sharia-ul-Islam, “Waqf is a contract, the fruit or effect of which is to tie up the original of a thing and to leave its usufruct free”. In this definition, the substance is tied up and the usufruct is spent for pious, religious or charitable purposes or in other words for the benefit of mankind.5 This definition has come to be an established view of Waqf under the Shia Law of Modern India. Though in this definition it is not clear as to in whom does the property vest. But now it is established that even under Shia Law the ownership of the property vests in God.6

Section 3 (r) of the Waqfs Act, 1995 defines it as follows:

“Waqfs means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim Law as pious, religious or charitable and includes:

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 ;

“grants”, including Mashrut-ul-Khidmat for any purpose recognized by the Muslim Law as pious, religious or charitable; and

Waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim Law as pious, religious or charitable.” and

‘Waqif’ means any person making such dedication.

[1] Mulla, Principles of Mahomedan Law, 19th Ed., Lexis Nexis Butterworths p. 74

[2] Manzar Saeed, Muslim Law in India, p. 826 Orient Publishing Company.

[3] Furqan Ahmad, Muslim Law, Annual Survey of Indian Law (Indian Law Institute) 2007 p. 603

[4] A Historical Study of Mohammedan Law, The Law Quarterly Review 1911, p.32

[5] M. Afzal Wani, Waqf Laws, Annual Survey of Indian Law (Indian Law Institute) 1999 p. 428

[6] Abadi Begum v. Kaniz Zainab, AIR 1927 PC 2.

Scope Of The Act

In Arunachalam Chettiar v. Annamalai Chettiar, 7 a bench of Madras High Court, observed that if the scope of an enactment itself were limited, the apparently wide terms of a definition therein could not enlarge it. In other words, the definition like any other word in statute has to be read in the light of the context having regard to the scheme of the Act and that if the scope of the enactment and the context in which the defined terms is used has provided only a limited operation such definition could only have that limited meaning.8that is if wide as the term waqf is, its meaning should be correlated to the term beneficiary under the Act, for there can be no waqf without a beneficiary or an object.9

Therefore, public utility charities can come under the Act only if they are intended for Muslims alone. For Section 3 (a) save that a public utility in order to constitute a valid object within the Act should be intended exclusively for the Muslim community.10According to Shariat law any immovable property can be transferred.11

Essentials Of A Valid Waqf

For a valid waqf, there must be a proper subject matter of waqf and the waqf property must vest in God, the Waqif must extinguish his ownership of the property, waqf property must be inalienable, waqf must be made for an object pious, religious and charitable, under the Shia law, delivery of possession must be there, waqf must be unconditional, waqf must be irrevocable, waqf must be perpetual, waqf must be immediate and uncontingent.12

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 ways13

[7] 74 Mad LW 593.

[8] Asaf A.A Fyzee, Outlines of Muhammadan Law, 5th Ed. Oxford University Press p. 123

[9] Supra note 1 at p. 830

[10] Kassimiah Charities Rajgiri v. Madras State Waqf Board, AIR 1964 Mad 18 at 20, 22.

[11] Supra note 4

[12] M. Afzal Wani, Waqf Laws, Annual Survey of Indian Law (Indian Law Institute) 1999 p. 451

[13] Reference taken from www.hanuman.com

By an act of a living person (inter vivos) - when a person declares his dedication of his property for Waqf. This can also be done while the person is on death bed (marj-ul-maut), in which, he cannot dedicate more than 1/3 of his property for Waqf.

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.

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

Kinds of Waqfs

A Waqf can be classified into two types - Public and Private.

As the name suggests, a Public Waqf is for the general religious and charitable purposes while a Private Waqf is for the creators own family and descendants and is technically called Waqf-alal-aulad.

Muslim Law treats both public and private waqfs alike. Both types of waqf are created in perpetuity and the property becomes inalienable.

Quasi-public Waqf

Sometimes a third kind of waqf is also identified. In a Quasi-public waqf, 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 public, so they are partly public and partly private.

Contingent Waqf

A waqf, the creation of which depends on some event happening is called a contingent waqf and is invalid. For example, if a person creates a waqf saying that his property should be dedicated to god if he dies childless is an invalid waqf. Under Shia law also, a waqf depending on certain contingencies is invalid.

In Khaliluddin vs Shri Ram 1934, a Muslim executed a deed for creating a waqf, which contained a direction that until payment of specified debt by him, no proceeding under the waqfnama shall be enforceable. It was held that it does not impose any condition on the creation of the waqf and so it is valid.

Conditional Waqf

If a condition is imposed that when the property dedicated is mismanaged, it should be divided amongst the heirs of the waqf, or that the waqif has a right to revoke the waqf in future, such a waqf would be invalid. But a direction to pay debts, or to pay for improvements, repairs or expansion of the waqf property or conditions relating to the appointment of Mutawalli would not invalidate the waqf. In case of a conditional waqf, it depends upon the waqif to revoke the illegal condition and to make the waqf valid, otherwise it would remain invalid.

Completion of waqf

The formation of a waqf is complete when a mutawalli is first appointed for the waqf. The mutawalli can be a third person or the waqif himself. When a third person is appointed as mutawalli, mere declaration of the appointment and endowment by the waqif is enough. If the waqif appoints himself as the first mutawalli, the only requirement is that the transaction should be bona fide. There is no need for physical possession or transfer of property from his name as owner to his name as mutawalli.

In both the cases, however, mere intention of setting aside the property for waqf is not enough. A declaration to that effect is also required.

In Garib Das vs M.A Hamid AIR 1970, it was held that in cases where founder of the waqf himself is the first mutawalli, it is not necessary that the property should be transferred from the name of the donor as the owner in his own name as mutawalli.

Shia law -

Delivery of possession to the mutawalli is required for completion when the first mutawalli is a third person.

Even when the owner himself is the first mutawalli, the character of the ownership must be changed from owner to mutawalli in public register.

Legal Consequences (Legal Incidents) of Waqf

Once a waqf 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 AIR 1962, SC held that even in waqf-alal-aulad, the property is dedicated to God and only the usufructs are used by the descendants.

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.

Permanent or Perpetual - Perpetuity 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 Mst Peeran vs Hafiz Mohammad, it was held by Allahabad HC that the waqf of a house built on a land leased for a fixed term was invalid.

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.

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.

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.

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 offence as per Waqf Act.1995.

Revocation of Waqf

In India, once a valid waqf is created it cannot be revoked because nobody has the power to divest God of His ownership of a property. It can neither be given back to the waqif nor can it be sold to someone else, without court's permission.

A waqf created inter vivos is irrevocable. If the waqif puts a condition of revocability, the waqf is invalid. However, if the waqf has not yet come into existence, it can be canceled. Thus, a testamentary waqf can be canceled by the owner himself before his death by making a new will. Further, waqf created on death bed is valid only up till 1/3 of the waqif's property. Beyond that, it is invalid and the property does not go to waqf but goes to heirs instead.

Mutawalli

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 a limited control over the usufructs.

In Ahmad Arif vs Wealth Tax Commissioner AIR 1971, 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.

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 Shahar Bano vs Aga Mohammad 1907, 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 -

founder

executor of founder

mutawalli on his death bed

the court, which should follow the guidelines -

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

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

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

He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose of the waqf. He can take all reasonable actions in good faith to ensure that the intended beneficiaries are benefited by the waqf. Unlike a trustee, he is not an owner of the property so he cannot sell the property. However, the waqif may give such rights to the mutawalli by explicitly mentioning them in waqfnama.

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.

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

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

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 -

By court -

If he misappropriates waqf property.

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

Knowingly or intentionally causes damage or loss to waqf property. In Bibi Sadique Fatima vs Mahmood Hasan AIR 1978, SC held that using waqf money to buy property in wife's name is such breach of trust as is sufficient ground for removal of mutawalli.

He becomes insolvent.

By waqf board - Under section 64 of Waqf Act 1995, the Waqf board can remove mutawalli from his office under the conditions mentioned therein.

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.