Waqf literally means “detention”. Waqf is the legal definition of detention. It refers to the holding of property indefinitely so that it produces or income can be used for charitable or religious purposes. The property becomes non-transferable after a waqf has been created.
This project defines the meanings of various types waqf. Making a wakf is important. The Office of Mutawalli, or manager, is extremely important. This project will cover all the possible ways to make waqf. Wakf is binding, enforceable by law and has legal consequences. These are addressed in this project. Waqf law is the most important branch in Mohammedan Law because it is interwoven into all aspects of Muslim religious, economic, and social life.
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MEANING
A Muslim is a person who works for charity under religious sentiments and the benefit of the society. Waqf is the act of donating property to Allah. The prophet also provided details in his old texts on wakf.
In M Kazim and A Asghar Ali it is clear that this means the dedication of property to a pious purpose, or the secession of property for pious purposes. According to Muslim jurists like Abu Hanifa Wakf can be defined as the holding of a particular thing in the waqif’s ownership or appropriator and the giving of its profits or usufructs for charity, the poor or other good objects to cover loan.
Wakf Law, 1954 defines Wakf to be “The permanent dedication by an individual professing Islam, of any immovable or movable property for any purpose recognised by Muslim Law as religious or charitable.”
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Waqf is an important part of Islam
Waqf is a key institution within the Islamic social structure. It can use the potential for selfless charitable giving to make a better economic impact on the targeted social groups of society.
Waqf in Qur’an & Hadith
Jurists inferred that the endowment was legitimate from the majority of texts encouraging charity. This includes the Almighty’s statement: “And those who, when spending, are neither extravagant nor greedy but hold a middle (way) between these (extremes).” Al-Furqan, 65.
Ibn Katheer stated that “The Almighty commanded us to have faith and trust in Him and His Messenger most completely, and to persevere in that pursuit and to continue.”
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ESSENTIAL CONDITIONS TO A VALID WAQF
These are the essential conditions to a valid waqf:
1. Permanent dedication: Waqf must dedicate waqf property permanently and Waqf must give it to any charitable or religious purpose as permitted by Muslim law. A wakf that is only valid for a short time will not be valid. Also, it should not be subject to any condition or contingency. Wakf has always been religious in its motives.
Mohd v. Karnataka Board of Wakfs Nazeer Ahmad devoted a house to Muslims for the use of all travelers, irrespective of their religion or status. This was a Wakf because it violated Muslim law. It should only be for the benefit of the Muslim community and not for the benefit of secular people.
A Wakf is considered to be a gift of property made in God’s favor when it is created. This legal fiction ensures that waqf property is God’s property.
2. Competency of the Waqif
Who can create a waqf? The person who creates the waqf from his properties is known as the “founder of waqf” or Waqif. At the time of dedicating the property to waqf, the waqif must have the ability. To be a competent waqif, a person must have the capacity and the right to make the waqf.
There are two requirements for waqf making ability in Muslims:
(i) Soundness of mind and.
(ii) majority.
Unsound minds cannot create waqf as they are unable to understand the legal implications of any transaction. Waqf made by an insane or minor is null.
Waqf by non-Muslims Madras High Courts and Nagpur High Courts ruled that waqf can be created by non-Muslims, provided the object is compatible with the principles of Islam.
The Patna High Court also ruled that a valid waqf can be created by non-Muslims. Patna High Court states that a non Muslim waqf can only be a public waqf. A non-Muslim, however, cannot create any private waqf. An Imambara
3. Waqf is valid if the person has the right to do so. At the time of making wakf, the subject matter should be owned by the wakif. The legal rights of a person to create a waqf depend on whether they have the legal right to transfer ownership.
Because she is not the absolute owner of that property, a widow cannot make any waqf of it.
The waqif, which is a pardanashin lady must be proven by the beneficiaries and the muwali that she was independent in forming the waqf, and fully comprehending the nature of the transaction.
Property amount: A person can give away his entire property but, in the case of the testamentary wakef, not more than one third.
KINDS of WAQF
There are generally two types of wakf.
1. Public Wakf
2. Private Wakf
The purpose of the categories of waqf:
* Waqf al-i: The proceeds of waqf go to the children and offspring of the founder. These beneficiaries can’t sell or dispose off the property subject to waqf.
Waqf Khayri is a charitable organization that uses waqf to support philanthropy and charity. The poor and the less fortunate are examples of beneficiaries. Waqf Khayri is used to fund mosques, shelters and schools as well as universities. This is meant to help financially-challenged individuals and communities.
* Waqf al sabil: A waqf whose beneficiaries include the general public. Although it is similar to waqf Khayri, waqf Al-Sabil is used to create and construct public utilities (mosques power plants, water supply, graveyards etc.).
* Waqf al–awaridh: The yield of waqf can be kept in reserve to make it available for use during an emergency or other unexpected circumstances that could adversely affect the livelihood or well-being of a group of people. Waqf can be used to meet specific needs, such as the payment of medication costs for those who cannot pay them or education for children in poverty. Waqf alawaridh can also be used for the maintenance of utilities in a village or neighbourhood.
The output nature of waqf is what defines the categories of waqf
* Waqfistithmari is a type of waqf asset that can be used to invest. These assets can be managed to generate income which will be used for the construction and reconstruction of waqf properties.
* Waqfmubashar is a type of waqf asset that can be used to generate services for charity recipients or other beneficiaries. Schools, utilities, and others are examples of such assets.
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WAKF VALID OBJECTS
For a wakf to be valid, it must be dedicated for a religious, pious, or charitable purpose under Muslim Law.
Based on the decisions of Mohammedan Jurists and the text of eminent Mohammedan jurists, some objects were declared valid objects of wakf.
- Provisions for Imamas to worship in the Mosque
- Celebrate the birth of Ali Murtaza
- Repairs to Imambaras
- Maintenance of Khankahs
- You can read the Koran both in public and private places.
- Maintaining poor relationships and being dependent.
- Fakirs can be paid money
- Grant an Idgah
- Grant to the college, and provisions for professors to instruct in colleges
- Bridges and Caravan Sarais.
- Distribution of alms and assistance to the poor in order to allow them to make pilgrimage to Mecca.
- Provisions for camels and Duldul during religious procesions in Moharram include Tazias to be kept during the month of Moharram.
- Celebrate the death anniversary of the settler as well as the relatives.
- Kadam Sharif is the performance of ceremonies.
- Construction of a Cobat, a free boarding house for pilgrims in Mecca.
- Perform the annual Fateha for his family members.
- The public has long venerated the Durgahor, or shrine to a Pir, for many years.
These are not valid objects of the wakf as per Muslim law.
- Islamic prohibitions on objects, e.g. Maintaining or erecting a temple or church.
- Shea law says that a wakf is not valid for secular property perairs of the waqif.
- Only for the wealthy.
- Uncertain objects
- It is invalid to direct someone to spend money on Cutchi Memons each anniversary of the death of the settlor.
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WAKF CREATION
The Wakf is not a way to be established in Muslim law. A Wakf can only be created if all the elements listed above are met. Although it is possible to say that Wakfs are usually created in these ways,
1. Inter vivos – When a person declares his dedication of property to Wakf by an act of a living individual. This can be done even if the person is in death (marj-ulmaut). In this case, he must dedicate no more than 1/3 his property to Wakf.
2. By will – When a person leaves his will to designate his property following his death. It was believed that Shia could not create Wakf through wills, but it has now been approved.
3. By Usage – a property is considered to be Wakf if it has been used for a charitable or religious purpose since time immemorial. Wakf can be inferred without a declaration.
LEGAL CONSEQUENCES – WAKF
The following are the consequences of a wakf once it is over.
1. Dedication to God-The property is given to God so that no one can claim it. Md. In Md.
2. It is irrevocable – A wakf, once it has been declared and completed, can’t be rescinded in India. The property of the wakif cannot be returned to him or any other person.
3. Permanent or Perpetual? Perpetuality is an essential element in wakf. The property remains with the wakf until it is given. Wakf can’t be for a specific time. Allahabad HC ruled that the wakf for a house built on land leased to a fixed term was invalid in Mst Peeran vs Hafiz Mohammed.
4.Inalienable – Since Wakf property is God’s, no one can take it away from him or anyone else. It cannot be given or sold to anyone.
5. Use for charitable or pious purposes – The usufructs from the wakf property cannot be used for any other purpose than charitable and pious. In the case of a privatewakf, it can also be used to benefit descendants.
6. Extinction of right of wakif- The wakif loses all rights to the property, including the usufructs. He can’t claim any benefits from the property.
7. Power of court inspection – The courts can inspect the management or functioning of the wakf properties. Wakf Act.1995. Misuse of property of usufructs constitutes a criminal offense
OFFICE OF MUTAWALLI
Mutawalli is merely the manager of a Wakf. Mutawalli is not the property’s owner, trustee or trustee. He is merely a superintendent, whose job it is to ensure that the usufructs are used for the valid purposes desired by the wakif.
He must ensure that the intended beneficiaries receive the benefits. He has limited control over the use of his power. In Ahmad Arif and Wealth Tax Commissioner SC ruled that a mutawalli cannot sell, mortgage or lease wakf properties without permission from the Court, or unless such power is specifically provided for by the wakfnama.
A mutawalli is someone who is a major and of sound mind. They can also be capable of carrying out the duties of the wakf, as requested by the wakif. Any religion can appoint a male or female. A female or non-muslim can’t be appointed if religious duties are part of the wakf.
Privy Council ruled in Shahar Baho vs Aga Mohammed that there is no law preventing a woman from becoming a mutawalli, provided the duties of the wakf are not related to religious activities.
A wakif can appoint an mutawalli. The wakif can also appoint himself a mutawalli. A wakf that is not appoints a muthavi in India is valid. However, according to Shia law, although the wakf may still be valid, it must be administered by its beneficiaries. The wakif can also set the rules for appointing a mutawalli. If the previous one fails, the power to nominate a mutawalli is transferred in the following order.
1. founder,
2. Executor of the founder
3. Mutawalli in his final hours.
4. The Court should adhere to the guidelines
1. It shouldn’t ignore the instructions of the settler, but the public interest must be more important.
2. Instead of an utter stranger, preference should be given the family member of a wakif.
The power of a mutatawalli
He is the manager of the wakf and has the responsibility for the use of the property. These rights are his:
1. He can use the usufructs in any way he deems fit for the greater good of the wakf. He can take any reasonable action in good faith to ensure the beneficiaries of the wakf are benefitted. He is not a trustee and cannot sell the property. The wakif can grant such rights to the Mutawalli by mentioning them explicitly in wakfnama.
2. If he has an urgent need or appropriate grounds, he can obtain permission from the court to sell or borrow money.
3. He can file a lawsuit to protect the rights of the wakf.
4. The property can be leased for agricultural purposes for less that three years, and for non-agricultural purposes for less than one. The court can allow him to exceed the term.
5. The wakif provides remuneration. He can request an increase to his remuneration if it is not sufficient.
Mutawalli removal –
The wakif cannot remove a mutawalli once he has been duly appointed. A mutawalli may be removed by the wakif in the following circumstances:
1. Court –
1. If he steals wakf property.
2. Even with sufficient funds, wakf does not have the ability to repair its premises.
3. Intentionally or knowingly causing damage to wakf property. In Bibi Sadique Fatima and Mahmood Hazan, SC ruled that the use of wakf money in order to purchase property in the wife’s name was a breach of trust sufficient to cause removal of mutawalli.
4. He becomes insolvent.
2. By Wakf Board – Section 64 of Wakf Act 95 allows the Wakf Board to remove mutawalli’s office in accordance with the terms and conditions set forth.
3. By the wakif. According to Abu Yusuf (whose views are followed in India), even though the wakif does not reserve the right to remove the Mutawalli from the wakf deeds, he is still able remove the Mutawalli.
DIFFERENCE BETWEEN WAQF & TRUST
In both trusts and waqf, the property is held indefinitely, with its usufruct being used for charitable or religious purposes. A waqf according to Muslim personal law can be distinguished from trusts at least in the following areas:
(1) A waqf can only be created for religious, pious, or charitable purposes in Islam, while a trust can be formed for any lawful purpose.
(2) Hanafi law does not allow the founder to reserve any benefit, but the trust founder may be a beneficiary.
(3) A mutawalli (manager/administrator of waqf-property), has very limited powers compared to a trustee.
(4) A waqf can be irrevocably and generally permanent, while a trust may be revocable under certain conditions.
The Indian Trust, Act 1882 is not applicable to Muslim Waqf Sins in respect of the operation and nature of waqfs due to the above-mentioned distinctions between trust and waqf. A waqf is considered a trust for the purposes of instigating any suit in cases of irregularities or mismanagement of waqf properties. This is according to Section 92 of Civil Procedure Code 1908.
It is important to note that the Indian Trusts Act also applies to Muslims. This Act may be used by a Muslim to settle his property in trust, as opposed to creating waqf under Muslim personal laws.
Waqf Act, 1913
The Mussalman Waqf Validating Act of 30 was enacted on July 25, 1930. It was retroactively applied to waqfs that were created prior to March 7,1913.
This act allows Muslims to tie their property in perpetuity to support his family, children, and descendants. However, the provision must be made so that the ultimate benefits go towards a charitable object of a perpetual nature, either explicitly or implicitly.
This act prohibits a Hanafi Muslims from obtaining a whole income or a life-interest in income from trust property.
Hanafi Muslims can sell the property to pay his debts using the rents or the profits from the property.
The Act aims to achieve the following:
Article 3 states that it is legal for a Muslim to create a waqf, which in all other aspects is in compliance with Muslim Law. This Act can be used for the following purposes:
To provide support and maintenance wholly or in part of his family, descendants or children.
A Hanafi Mussalman is the one who creates a waqf. He does so for his own support and maintenance during his life, or to pay his debts using the rents and profits from the property he has dedicated.
The case of Radha Kanta Deb v. Commission AIR 1981 SC798 Hindu Religious Endowments Orissa, the Honorable Supreme Court noted that the Muslim Law recognizes the existence of a private trust and allows for the creation of a charitable trust. It is also called ‘waqfal-aulad’. This type of Waqf is a form of Waqf where the ultimate benefit goes to God, but the property vests in the beneficiaries. The income from the property can be used to support the family of founder and his descendants.
Waqf is distinguished from Sadqah and Hiba and Trust
| Sadqah | Waqf | |
| 1. | The legal property and not just the beneficial interest, passes to the charity. | The legal property or ownership are not in the hands of the trustee or mutawalli, but are transferred to God. |
| 2. | The corpus as well as the usufruct are both age-given. The trustee can also sell the property. | A trustee of a waqf can’t alienate the corpus property without the permission of the Court. |
| 3. | It can be in the form of a donation or as a gift. | It is an endowment. |
| Hiba | Waqf | |
| 1. | The object’s dominion passes from one person to the next. | Waqif’s right is lost and passed to the Almighty. |
| 2. | It is vital that possession be delivered. | A waqfi inter vivos is where possession of the property is not required. It can be created by simply declaring endowment by its owner. |
| 3. | It doesn’t matter what object it is created for. | It can only be used for religious, charitable, or pious purposes. Charity should also be considered when a waqf is used for family purposes. |
| 4. | The property is passed from one person to the next and the absolute rights are transferred. | The waqif right is completely extinguished, and the Almighty grants it to the Almighty. A mutawalli is appointed as the administrator of the waqf. The trust only gives the beneficiaries the right to an interest in the trust. |
| Trust | Waqf | |
| 1. | Trust does not require the existence of a religious motive. | A waqf should have a religious motivation. |
| 2. | A trustee can be a beneficiary. | A settlor is not allowed to take benefits for himself, except for a Hanafi one. |
| 3. | A lawful object must exist. | The object must be charitable, pious, or religious in accordance with the Muslim faith. |
| 4. | Double ownership is possible, legal and equitable. The trustee holds the property. | The waqf’s ownership has been extinguished, and God now holds it. |
| 5. | Because he is the legal owner, the trustee has superior alienation powers. | Mutawalli is not a manager or receiver. |
| 6. | A trustee does not have any power to demand remuneration. | Mutawalli can demand remuneration. |
| 7. | A trust can be irrevocable, perpetual or inalienable. | Property is inalienable, irrevocable, and permanent. |
| 8. | Indian Trusts Act, 1882 is for trust. | Indian Trust Act, 1882 not applicable |
CONCLUSION
Wakf refers to detention that is permanent, binding, and enforceable under law. Any person may apply for remedy at Civil Court. The office of the mutawalli plays a vital role in waqf. It can be used to exercise power when there is a clear vacant mutawalli ship, or a dispute about competence or eligibility of an existing mutawalli. An English trust or an Indian endowment for dharma is different from a Muslim wakf.
