A Brief Study of Wakf under Muslim Law

This article is written by Pooja Lakshmi, studying BBA LLB at Bennett University, Greater Noida.

ABSTRACT

The institution of Wakf is a unique characteristic of the socio-economic foundation of Mohammedan law. Wakf means to dedicate or devote a movable or immovable property in Allah’s name for religious, pious, and charitable purposes. The present study is confined to explore Wakf under Muslim law and its emergence. The role of Wakf has been evaluated critically in this article. This article discusses a large variety of ideas on this issue. The wakf laws and the elements concerning it are discussed thoroughly to clarify the topic.

INTRODUCTION

A wakf, under Muslim law, seems to be a religious, spiritual, and pious obligation. However, the provision also includes charities and the advantage of oneself, children, and descendants (alal-aulad).[1] The origin of Wakf is traced to an utterance of the Prophet[2]. In the earlier days of Islam, the law of wakfs suffered from several considerable uncertainties. It was only in the second century after the flight, that a body of rules supporting ijma (consensus) was developed, considered to be the idea of the law of wakfs.

Vast stretches of land and various other forms of properties were dedicated to wakfs everywhere in the Muslim world. In India, there are about 1 lakh wakfs valued at over 100 crore rupees. In the centuries that go behind, not only the land but all the types of property, movable and immovable, were considered the topic matter of wakfs. Within the course time, the Muslim world found that “dead hand” (as wakfs were figuratively called and had become) was trying to strangle all progress and prosperity. Instances of mismanagement of the wakfs are countless; the incompetence and corruption of the mutawallis are appalling and atrocious; more often than not, the properties of the wakfs are squandered away. Under Muslim law, there are several religious institutions for which a wakf can be created. Prominent among them are a mosque, graveyard, dargah, takia, khanqah, and imambara.[3]

Definition

A glance at the word ‘Waqf,’ in its literal sense, remarks it as ‘detention,’ ‘stoppage,’ or ‘tying up.’ Consistent with the legal definition, it means a dedication of some property for a divine purpose in perpetuity. The property so alienated should be available for religious or charitable purposes. Such a property is said to be occupied forever and becomes non-transferable.

It has been observed in the case of M Kazim vs. A Asghar Ali[4], that waqf in its legal sense means the creation of some specific property for the fulfilment of some divine or religious purpose.

S. 2 of the Mussalman Waqf Validating Act 1913 defines waqf as “the permanent dedication of an individual, professing the Mussalman faith of any property for any purpose recognized by Musalman Law as religious, pious or charitable.” Thus, the aim must be religious, pious, or charitable. The dedication of property must be permanent, and therefore, the usufruct must be utilized for the divine life of humankind.[5]

Wakf Act 1954 defines Wakf as, “the permanent dedication of an individual professing the Islam, of any movable or immovable type of property for whichever reason recognized by Muslim Law as religious, pious, or charitable.” A waqf is usually made in writing or by a speech.

Modes of Creation of Waqf

Subsequent manners often create waqf-

By an act inter vivos – It means ‘between living voices, i.e., during the lifespan. A waqf under this method is constituted during a lifetime of the waqif and takes effect from that very time.
By will – it is contradictory to the waqf created by an act inter vivos, which implies that it get hold of impact after the death of the waaqif.
During death or illness (marz-ul-maut) – because the gifts are made while the donor is on death bed, it will operate till the extent of one-third of the property without the prior consent of the heirs.
By immemorial user- Waqf property is established by the way of a traditional user. However, limitation of the time also applies to the creation of the waqf.[6]

Kinds of Waqf

Under Muslim Law, waqfs are classified into two categories :

Public waqf – A public waqf is for general, religious, or charitable purposes.
Private waqf – it is for the settlor’s family and descendants, and is technically called waqf-ulal-aulad. However, it is also a way of family settlement.[7]

Essentials of Waqf

The essentials of a legitimate waqf consistent with the Hanafi School (Sunni Law) are as follows:

Permanent dedication of any property – The commitment of property for waqf must be lifelong. Moreover, the waaqif himself devotes property such as religious, charitable, or pious for the recognized causes. If waqf made by a waaqif is for a finite period, then such waqf is not a legitimate one, and also, there must not be any condition or contingency attached; otherwise, it will become void or invalid. Additionally, in Karnataka Board of Waqfs v. Mohammad Nazwer Ahmed[8], the house was dedicated by a Muslim solely for the utilization of it by the travelers regardless of their religion and standing. The Court stated that it was not a waqf as under Muslim Law, a Waqf should have a religious and pious reason, and it must be for the advantage of Muslim community only. If it is secular, then the charity should be for the poor only.
Competency of Waqf – The dedicator (waaqif) should be an individual professing Mussalman faith and having a sound mind, and must not be a minor or a lunatic.
For any purpose recognized by Muslim Law – this can also be called the object of waqf. Thus, the third essential of a legitimate waqf is that the dedication should be for a purpose recognized as religious, pious, or charitable under Muslim Law.

The ‘Sharya-ul-Islam’ brings up mainly five types of conditions required within the subject of waqf that incorporates:

According to Sunni law, it must be everlasting or perpetual.
It must always be absolute and unconditional.
The possession or ownership must be given for the thing appropriated (unlike Sunni law where a mere declaration is enough).
It must be taken out of waaqif. It implies that the waaqif should not reserve any right or interest or the usufruct of the dedicated property.
Absoluteness – The agreement of the property in waqf is fixed or absolute. A conditional or contingent waqf is void or invalid.[9]

Three main elements of Waqf

Ownership of God
The extinction of the founder’s right
The benefit of mankind

Completion of Waqf

Two angles of completing a Waqf are-

1. Where another person is appointed because of the first mutawalli.

2. Where the founder constitutes himself as initial mutawalli, i.e., manager or superintendent.[10]

Governance of Waqf Property

The Waqf property is governed and protected by Official Trustees Act II of 1913, Charitable Endowments Act VI of 1890, Religious Endowments Act XX of 1863 (Section 14), The Code of Civil Procedure 1908 (Sections 92-93), andCharitable and Religious Trusts Act XIV of 1920.[11]

CONCLUSION

Wakf is a kind of creation or formation of property for religious or charitable deeds established forever. 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.

REFERENCES

Anchal Chhallani, Wakf Board Land Scam, The Company Ninja.
Mayank Shekhar, Wakf under Muslim Law: Concept, Creation, Control
Mayank Shekhar, Wakf under Muslim Law: Concept, Creation, Control and Registration, LEGALBITES
M Kazim vs A Asghar Ali AIR 1932 11 Patna 238.
Kani Ammal vs. Tamil Nadu Wakf Board [1983 AP 188]
Chitrarekha Bharadwaj, Waqf under Muslim Law- Analysis, Our Legal World
Madhubala Solanki, concept of Wakf in muslim law,
Karnataka Board of Waqfs v. Mohammad Nazwer Ahmed AIR 1982 Kant 309, 1982 (2) KarLJ 176
Chitrarekha Bharadwaj, Waqf under Muslim Law- Analysis – Our Legal World.
Hitaishee , Concept And Essentials of A Valid WAKF, legalserviceindia , Law of Waqf.
V. Hariharan,Actions that can be taken for/against a Waqf property in India, lawtimesjournal.

[1] Anchal Chhallani, Wakf Board Land Scam, The Company Ninja. https://thecompany.ninja/wakf-board-land-scam/

[2] Mayank Shekhar, Wakf under Muslim Law: Concept, Creation, Control and …. https://www.legalbites.in/muslim-law-notes-wakf-concept/

[3] Mayank Shekhar, Wakf under Muslim Law: Concept, Creation, Control and Registration, LEGALBITES, https://www.legalbites.in/muslim-law-notes-wakf-concept/

[4] M Kazim vs A Asghar Ali AIR 1932 11 Patna 238.

[5] Kani Ammal vs. Tamil Nadu Wakf Board [1983 AP 188]

[6] Chitrarekha Bharadwaj, Waqf under Muslim Law- Analysis, Our Legal World, https://www.ourlegalworld.com/waqf-under-muslim-law-analysis/

[7] Madhubala Solanki,LAWCTOPUS, concept of wakf in muslim law, https://www.lawctopus.com/academike/concept-waqf-muslim-law/

[8] Karnataka Board of Waqfs v. Mohammad Nazwer Ahmed AIR 1982 Kant 309, 1982 (2) KarLJ 176.

[9] Chitrarekha Bharadwaj, Waqf under Muslim Law- Analysis – Our Legal World. https://www.ourlegalworld.com/waqf-under-muslim-law-analysis/

[10] Hitaishee , Concept And Essentials of A Valid WAKF, legalserviceindia , Law of Waqf. http://legalserviceindia.com/legal/article-2057-law-of-waqf.html

[11] V Hariharan, Actions that can be taken for/against a Waqf property in India, lawtimesjournal, http://lawtimesjournal.in/actions-that-can-be-taken-for-against-a-waqf-property-in-india/#_ftn1

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