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Concept And Essentials of A Valid WAKF

By Hitaishee | Views 68383 (author-4151-hitaishee.html)

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The institution of wakf is a unique feature of the socio-economic framework of Mohommadan law. To
wakf a property means to dedicate a movable or immovable property in the name of Allah for religious,
pious and charitable purposes. The reason that the institution of wakf is of such import is because it
serves a two-fold purpose, on the one hand it satisfies human instinct for charity and on the other
makes provision for the weaker section of society. This research article purports to throw light on the
concept and origin of wakf. It further deals with the essentials of a valid wakf under Sunni law. The paper
concludes with the legal consequences of a valid wakf.

Introduction
The institution of wakf is a sui generis feature of the socio-economic framework of Mohommadan law.
To wakf a property means to dedicate a movable and immovable property in the name of Allah for
religious, pious and charitable
-6% purposes.
-6% The reason that the institution
-8% -8% of wakf is of such import is
because it serves a two-fold purpose, on the one hand it satisfies human instinct for charity and on the
other makes provision for the weaker section of society.
It is pertinent to note that wakf is the unconditional and permanent dedication of properties in the
ownership of God. This permanent dedication of property is of such a nature that the rights of the owner
are extinguished. The wakf property becomes non transferable and therefore, cannot be sold, gifted or
given to charity. It is only managed and the manager is simply the custodian, he is neither the owner nor
a trustee.

The term wakf has its root in the Arabic verb WAQAFA which means to detain or to hold or to tie-up.
Thus its origin is traced back to the tradition of the Prophet Mohammad, habis al-asl wa Sabbil al-
thamara ie. Tie-up the substance and give away the fruit[1] According to Imam Abu Hanifa, wakf is 'the
tying-up of the substance of a property in the ownership of the wakif and the devotion of its usufruct,
amounting to an ariya, or accommodate loan, for some charitable purpose.[2]

The Sharai al-lslam defines wakf as follows:

A contract, the fruit effect of which is to tie up the original of a thing and to leave its usufruct free.[3]

It is observed in M Kazim vs A Asghar Ali[4] that technically, it means dedication of some specific
property for a pious purpose or secession of pious purposes. As defined by Muslim jurists such as 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.

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.

The important features of this definition are:

1. There should be religious motive as a secular motive would render the dedication of a gift or a
trust, but not a wakf,
2. the endowment should be of permanent character as a pious which is not a foundation in
perpetuity will be Sadaqah but not a wakf and
3. the profit or usufruct must be utilized for good of humanity.

However, this definition of wakf is not to be regarded as exhaustive and it is given only for the limited
purposes of the Wakf Act, 1913 and is therefore operative within the parameters of the Act. Technically,
it means a dedication in perpetuity of some specific property for a pious purpose.[5]

The historical origins of wakf can be traced back to the direct Hadis of the founder of Islam, The validity
of wakfs says the Ghait-ul-Bayan, is founded on the rule laid down by the Prophet himself under the
following circumstances, and handed down in succession by Ibn Auf Nafe and Ibn Omar as stated in the
]amaa ut-Tirmizi. Omar had acquired a piece of land in (the canon of) Khaiber and, proceeded to the
Prophet and sought his counsel, to make the most pious use of it, (whereupon) the Prophet declared,
'tie up the property (asl or corpus) and devote the usufruct to human beings, and it is not to be sold or
made the subject of gift or inheritance, devote its produce to your children, your kindred, and the poor in
the way of God'. In accordance with this rule Omar dedicated the property in question, and the wakf
continued in existence for several centuries until the land became waste.[6] The Quran does not enshrine
verses enjoying creation of wakfs, the essence of wakf which is charity, however, may undoubtedly be
regarded as one of the cardinal Quranic Principles.
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Some of the verses in Holy Quran, which are relevant as they promote charity, may be stated as follows:
They ask thee lohat they should spend (in charity) say; whatever wealth ye spend that is good for
parents and kindred and orphans and those in want and for wayfarers. And Wlwtever good ye do,
that IS good. Allah knozveth it loell.[7]
And in their wealth there is due share for the beggar and tlie deprived.[8]
Ye shall never attain to goodness till ye give alms of that which ye love, and whatever ye give, of a
truth, Allah knoweth.[9]

Essentials of A Valid Wakf

T he essentials of a valid Wakf according to Hanafi Law, (Sunni Law) are three fold:
1. A permanent dedication of any property;
2. the dedicator (wakif) should be a person professing the Mussahnan faith and of sound mind and
not a minor or lunatic; and
3. the dedication should be for a purpose recognized by the Muslim law as religious, pious or
charitable.

Permanent dedication of any property:

The first essential of a valid wakf is, that it should be a permanent dedication of property. This implies
three things:
i. there must be a dedication,
ii. the dedication must be permanent, and
iii. the dedication must be of any property

Explanation:
(i) There must be a dedication: It means that there must be a substantial dedication of the usufruct of
the property to religious, pious or charitable purposes as understood by Muslim Law. The dedication
implies a declaration of the dedication. No particular form of words is necessary for making a declaration
of dedication.

It may be either oral or in writing. According to Abu Yusuf a dedication of wakf is complete by mere
declaration. Neither delivery of possession nor appointment of mutawalli is necessary.

According to Imam Mohammad, however, a wakf is not complete unless there is declaration coupled
with:
1. appointment of mutawalli, and
2. delivery of possession.

In India, the view of Abu Yusuf is followed and views of Imam Mohammad, is not adopted. Under Shia
Law no doubt, delivery of possession to the first person in whose favour the xoakf has been created is
essential.

Long User.-Where land has for long been used as a wakf proof of express dedication is not necessary,
and the legal dedication will be inferred.

Recently the Madras High Court in NR. Abdul Azeez v. £. Sundaresa Chettiar[10] it was held that it is a
fundamental principle of the Muslim Law of Wakf that when a mosque is built and consecrated by public
worship, it ceases to be the property of the builder and vests in God.

A mosque once so consecrated cannot in any case revert to the founder and every Muslim has the legal
right to enter it and perform Namaz. Further, no Muslim can be denied the right to offer prayers therein
on the ground that the mosque fall into disuse long back.

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Therefore when the dilapidated structure was proved to be old mosque, it became a wakf by user and
though there was no evidence of an express dedication of the structure by the owner for the purpose of
Mosque and no evidence that any member of Muslim community said prayers there, the subsequent
owner cannot prevent any other Muslim from coming over to the structure and offer prayers. It becomes
Wakf by user.

But in Mohd. Ismail Faruqui v. Union of India (Ayodhya case)[11] the Supreme Court has observed that
where a mosque has been adversely possessed by non-Muslims, it lost its sacred character as mosque.
Hence the view that once a consecrated mosque, it remains always a place of worship as a mosque was
not the Mohammedans Law of India as
approved by the Indian courts. It was further held that a mosque in India was an immovable property and
the right of worship at a particular place is lost when the right to property on which it stands is lost by
adverse possession.

(ii) The dedication must be permanent: Perpetuity is a necessary condition for the validity of Wakf if it is
for a limited period, or for a temporary purpose, it is void. Similarly, a contingent or conditional wakf is
not valid.

(iii) The dedication must be of any property: The subject of wakf may be any tangible property (mal)
capable of being used without being consumed. Abdur Rahim lays down that the property dedicated
must be:

(i) (mal) tangible property, and

(ii) (ii) it must be capable of being used without being consumed. Subject to this, there are no further
restrictions. This means that a valid wakf can be created not only of immovable property but also of
movables such as, shares in joint stock companies, promissory notes and even money.[12]

To be more precice, Hanafi Law recognises the following as valid subjects of wakf :
a. immovable property.
b. accessories to immovable property.
c. Quran or other books.
d. such other things as it is customary to make the subject of wakf

Provided always that things that are consumed by use cannot validly be the subject to wakf i.e., the thing
must be of reasonably permanent character.

Subject of wakf must belong to waqif: The property to be dedicated must be in the ownership of the
dedicator (waqif). One cannot dedicate another's property to wakf. A person who is in fact the owner of
the property but is under the belief that he is only a mutawalli thereof is competent to make a valid wakf
of the property.

What is to be seen in such cases is whether or not that person had a power of disposition over the
property[13]A valid wakf may be made of the property though it is subject to a mortgage[14] or a lease.
[15] A usufructuary mortgagee cannot

make a valid wakf as he is not the owner of the mortgaged property and such a mortgage is an evasion
of the Muslim Law against usury.[16] A widow cannot dedicate her dower debt.

Registration: A wakf nama, by which immovable property of the value of Rs. 100 or more is dedicated by
the way of wakf requires to be registered under the Indian Registration Act, 1908. This provision will be
applicable even if the dedicator has himself appointed as the first Mutawalli of the said wakf.

By a person professing Mussalman faith:

The second essential of a valid wakf is that it should be created by a person professing Muslim faith. By
'person', is meant, a person who has attained the age of majority under the Indian Majority Act, i.e., 18
years and who is of sound mind. Such a person is competent to dedicate the whole or part of his
property.
For any purpose recognised by Muslim Law: This is also called the object of wakf. Thus the third
essential of a valid wakf is that the dedication should be for a purpose recognised as religious, pious or
charitable, under Muslim Law. A person who dedicates his property by way of wakf may, instead of
enumerating the objects for which the income of zvakf may be used, provide that it may be used for any
welfare works permitted by Shariat, that is Mohammedan law.[17]

Every good purpose which God approves, or by which approach Qurbat (proximity) is attained to Him, is
a fitting purpose for a valid and lawful wakf. Every purpose considered by the Mohammedan Law as
'religious', pious or charitable would be valid.

A property is dedicated to the purpose of supporting mosque, feeding travellers, and educating poor
students and it is provided that the remaining profits are to go towards defraying the expenses of the
marriages, burials and circumcisions of the members of the family of the person named as the first
manager of the endowment. This is a valid wakf.

In Zulfiqar Ali v. Nabi[18] the settlers provided that the income of certain shops was to apply in the first
instance to the upkeep of the mosque; and that the residue, if any, was to be the remuneration of the
Mutawalli, this was held to be a valid wakf but it was pointed out that it would have been otherwise if the
Mutawalli had been allowed to appropriate, in the first instance whatever amount they pleased, and had
only been bound to apply the remainder, if any, for the purposes of the mosque.

There must be a declaration of dedication contemporaneously made with the act of dedication and the
wakif must divest himself of the ownership of the property when physical possession is not essential but
such possession as is possible must be given. Absolute and unconditional transfer of property in the
name of God is necessary and in case of wakf inter-vivos, transfer of possession from wakif to
mutawalli is necessary. If the wakif is himself a mutawalli, some overt act indicating change of tenure of
property is sufficient.

Mere declaration without transfer of possession is sufficient where the settler is the first mutawalli and a
wakf once made could not be invalidated by the subsequent inaction of the mutawalli. Therefore,
relinquishment of ownership in favour of God is necessary.

Legal Consequences of Wakf

Once a wakf 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 Md. Ismail vs Thakur Sabir Ali[19], SC held that even in wakf alal aulad, the property is dedicated
to God and only the usufructs are used by the descendants.
2. 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 other’s name.
3. Permanent or Perpetual - Perpetuality is an essential element of wakf. Once the property is given
to wakf, it remains for the wakf forever. Wakf cannot be of a specified time duration. In Mst
Peeran vs Hafiz Mohammad[20], it was held by Allahabad HC that the wakf of a house built on
land leased for a fixed term was invalid.
4. 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.
5. Pious or charitable use - The usufructs of the wakf property can only be used for pious and
charitable purpose. It can also be used for descendants in case of a private wakf.
6. Extinction of the right of wakif - The wakif 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 wakf property. Misuse of the property of usufructs is a criminal offense as per
Wakf Act.1995.

End-Notes:
1. Bailie Nell B.E., Digest of Mohummudan Law, Part First (Hanafi Law), Second Revised Edition,
London, 1875, Vol. II, p. 212.
2. Rahim Abdur, The Principles of Muhammadan Jurisprudence, Luzac & Co. London, 1911, pp. 303-
304, Ibid. Vol. I, pp. 557-8.
3. Sarkar, Shaua Churn, Muhammadan Law, Tagore Law Lecture, 1873, Vol. 11, Calcutta, 1875, p.
463.
4. AIR 1932.
5. Iqbal Ali Khan (Dr.) Professor of Law, on Aquil's Mohammadan Law, CLA, Allahabad, W^ Ed. 1999,
p. 260.
6. Ameer AH, Mohammedan Law, Vol. I, Ed., 1904, p. 1
7. Quran Verses 215 of Surah 11.
8. Quran Verses 19 of Surah 51.
9. Quran Verses 92 of Surah 111
10. AIR 1993, Madras. 169.
11. AIR, 1994 SC 605.
12. Abdul Sakur v. Abu Bakkar, (1930) 54 Bombay 358
13. Haider Husain v. Sudama Prasad (1909) 15 Luck 30
14. Shahzadee v. Khwaja Hussain (1869) 12 W.R. 498
15. Hashim Ali v. Iffat Ara Hamidi Begum (1942) 46 C.W.N. 561
16. Rahman v. Bakridan (1936) 11 Luck. 735. 49. (1920) 47 l.A. 224
17. Fajal Sheikh v. Abdur Rahman, A.I.R. 1991 Gau. 17
18. 80 I.A. 234
19. 1963 SCR (1) 20
 20. AIR 1966 All 201

Written By: Hitaishee Gaur

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