Muslim Law 2 WAKFS

WAKFS
A waqf (Arabic: ‫;و ْقف‬ [ˈwɑqf]),
َ also known as hubous (‫)حُبوس‬
[1]
or mortmain property is
an inalienable charitable endowment under Islamic law. It typically
involves donating a building, plot of land or other assets
for Muslim religious or charitable purposes with no intention of
reclaiming the assets.[2] A charitable trust may hold the donated
assets. The person making such dedication is known as a waqif (a
donor). In Ottoman Turkish law, and later under the British Mandate
of Palestine, a waqf was defined as usufruct state land (or property)
from which the state revenues are assured to pious foundations.
[3]
Although the waqf system depended on several hadiths and
presented elements similar to practices from pre-Islamic cultures, it
seems that the specific full-fledged Islamic legal form
of endowment called waqf dates from the 9th century AD
(see § History and location below).
A Wakf under Muslim Law is essentially a religious and pious obligation,
though sometimes also made for charities and for the benefit of oneself.
- Wakf originated during prophet is tenure-
- Basis of tradition of wakf – During the lifetime of Prophet, one Omer Ibn
al-khatiab made wakf of lands in Khyaber on the guidance of prophet.
- Definition of Wakf –
a. Abu Haufa – the tying up of the substance of a property in the ownership
of the wakif and the devotion of usufruct, amounting to aryia/ commodate
loan for some charitable purpose. i.e. ownership in the Wakf property
continued to be vested in the owner and its usufruct was spent for
charitable/ pious purpose.
By definition there are 3 essentials –
i) ownership of founder / wakif is extinguished
ii) ii) the property is vested in the ownership of God perpetually and
irrevocably.
iii) iii) the usufruct of the property is used for the benefit of mankind.
b. Under Shia Law Wakf is defined as a contract, the fruit/ effect of which is
to tie up the original of a thing and to leave its usufruct free is known as
Wakf.
c. Sec. 2 of the Wakf Act 1913 defines ‘Wakf means the permanent
dedication by a person professing the Mussalman faith of any property for
any purposes recognized by Mussalman law as religious, pious/ charitable.
Characteristic features of a Wakf
i) Property vests in God - Under both Shia & Sunni law, property under wakf
vests in god, The Supreme court also held that in a wakf for family also
property vests in God and not in Mutawalli
ii) Wakf must be permanent – i.e. perpetual and
iii) Wakf must be irrevocable- In Abdul Sattar V Noorbai 1933 Bom 8 :
Wakfnama contained a condition that at anytime the Wakf would be
revoked by a deed/ will / codicil by anyone of two wakfs, but said
clause was held as void.
However; a wakif has right at the time of dedication to reserve to

himself the power of altering the beneficiaries either by adding to
their no/ by excluding some of them.
A testamentary wakf may be revoked by the settler at any time

before his death. Therefore a testamentary wakf is nothing more
than a bequest and therefore it can be revoked like any other
bequest. It comes into existence after death of wakif.
iv) Wakf properties are inalienable :

but sometimes, it is permissible that a Mutawalli (Manager of Wakf)
may alienate, may sell/ lease with prior permission of court. When a
Wakfnama allows a Mutawalli to sell wakf properties in certain
circumstances, then the Mutawalli has power to alienate wakf
properties during these circumstances.
Family wakfs/ wakfs for Alal-Aulad- This type of Wakf is based on ijma
and is valid from the Prophet’s time but in 1894 the Privy Council
held it as invalid, in Abu Fata case.
- A family wakf in substance is an institution under which a Muslim
can provide for himself his family, descendants, children and kindred
for an indefinite period to which there can’t be an end.
- The Privy Council held such Wakf are invalid since they go against
the public policy of not allowing a person to tie up the corpus of this
property pertaining and resume the income of it for his children
indefinitely.
- But this decision created dissatisfaction in Muslim community and
obtained Mussalman Wakf validating Act, 1913, which validate family
wakf. - Act of 1913 requires following conditions to create family
wakf
i) It may be created wholly /partially for family, children and
descendants of settler.
ii) Ultimate benefit must go expressly / impliedly to poor/ religious,
pious / charitable purpose
Wakf for family - Act of 1913 doesn’t define the term ‘family’
- it has been given a fairly wide interpretation
- a family include daughter –in-law and adopted son of consanguine
brother or son of paternal uncle or son of consanguine sister also.
- Wakf to a stranger is void.
- Wakf for wages and provisions of servants and dependents is valid.-
these persons be living under one roof and brought up as a family.
Ultimate benefit of Wakf property is for charity that may be express/

implied benefit for charity.
Muslim religious institutions for which Wakf can be created are as
below:
1) Mosques: is a place where Muslims offer prayer in congregation /
individually.
- a valid dedication for public mosque require
i) the founder must declare his intention to dedicate property for the
purpose of a mosque- no specific form of deduction.
ii) the founder must divest himself completely of the ownership of
the prop- divestion can be inferred from the fact that he had
delivered possession to mutawalli/ imam of mosque – even if there is
no actual delivery still permission to offer prayer within azan will
create irrevocable wakf.
iii)the founder must make a separate entrance to the mosque which
is to be used by the public to enter it.
Public and private mosque and right to worship :

- there is no Shia/ Sunni Mosque - every mosque is dedicated to God
and is open to all sects and schools.
- the right to pray in mosque is legal right and can be enforced by
court of law.
-- In Md. Wasi Vs. Bachchan Sahib 1955 All 68 – Certain Muslim
belonging to Hanfi sect sought to prevent Shia from offering their
prayers in accordance with their rites and ceremonies in a mosque
built by Hanafi and where the service was performed in accordance
with the rites and ceremonies of Hanafi- The Court dismissed suit
holding a public mosque is dedicated is open for all the sects. -
Muslim law allows creation of wakf for a private mosque- which has
no entrance opening outside it.
Is mosque a juristic person ?

- There is difference of opinion regarding this as -- in 1926- Lohere
High Court. said Yes, but in 1940 - Privy council said No as it was not
an artificial person in the eyes of law. Again in 1976- Raj High Court
also said No.
(2) Graveyard / quabristan, Takia & dargah

– It may be also public and private
- under Muslim Law dedication of property may be made for
graveyard on completion of dedication Wakf II come into existence.
- private graveyard – when its use is confirmed to burial of corpses of
founder, his children, descendants and relatives.
- a wakf for graveyard doesn’t come into existence merely the owner
of the land had given license for the burial of the dead as a license
can be revoked at any time.
- can the graves be shifted ? Abdul Jalil Vs. St. of UP 1984 SC 882-
shifting was not an un-Islamic / contrary to the Koran. Grave of
Mumtaj Mahal was shifted from Burhanpur to Agra and Jahangir
from Kashmir to Lahore. Certain graves remained constant source of
riots between Shias and Sunni. The court held Fundamental Rights.
guaranteed under Art. 25 and 26 is not absolute and thus the
direction given by the court to shift the controversial graves is in the
larger interest of society for the purpose of maintaining public order.
a) Dargah: A Tomb of a Muslim saint and used for religious prayer

and Mujawar is its officer.
b) Takia –i.e a resting place or burial place/ platform in graveyard
where prayers offered. J. Banapati Iyer observed that the place
/abode of fakir is called takia before he attains sufficient public
importance and when fakir attains public importance and large
number of disciples gather around him, then the place is called
Khanqah it becomes dargah after his death and his burial therein.
c) Sajjadanashin: religious head of Khanqah is called as Sajjadanasin
i.e. one who sits at the head of a prayer carpet.
d) Imambara : is a Shia religious institution and is a private apartment
set apart for the performance of certain ceremonies at Moharam and
other occasions, is a public Wakf.
Capacity to make a Wakf – A muslim who is major and sound minded

can make a Wakf of is property. Wakf created by guardian on behalf
of minor is not valid.
Subject matter of wakf- earlier only wakf of immovable property was

made but now movable like animal, books, swords etc., also the
subject matter of will.
- subject matter be a tangible property and capable of being used

without being consumed.
- Wakf of Musha i.e. property which is capable of division is not valid.
Object of wakf is same for rich and poor or both and is to acquire
merit in the eyes of God. - It must be religious, pious/ charitable.
Formalities of a Wakf – Wakf can be made inter-vioves / by will.

- if Wakf is created by will then valid upon bequeathable 1/3rdonly.
- no specific form of creation is mentioned.
- Wakif can declare himself as first mutawalli
- Registration – for property worth more than Rs.100/- , registration
is compulsory U/Sec. 17(1) of Registration Act.
Conclusion
Wakf is the creation of property for religious or charitable purposes which is
established permanently. It also has the backing of law ie.binding in nature
and enforceable by law. If any person is of the view that his right has been
infringed then he may seek remedy from the Civil Court. The concept,
powers and duties of mutawalli are of great importance to study under the
topic of waqf. Such powers can only be exercised if there exists a clear
vacancy for the post of the mutawalli or in case of a dispute as to the
competence or eligibility of existing mutawalli.

Muslim Law 2 WAKFS

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WAKFS

However; a wakif has right at the time of dedication to reserve to

A testamentary wakf may be revoked by the settler at any time

iv) Wakf properties are inalienable :

Ultimate benefit of Wakf property is for charity that may be express/

Public and private mosque and right to worship :

Is mosque a juristic person ?

(2) Graveyard / quabristan, Takia & dargah

a) Dargah: A Tomb of a Muslim saint and used for religious prayer

Capacity to make a Wakf – A muslim who is major and sound minded

Subject matter of wakf- earlier only wakf of immovable property was

- subject matter be a tangible property and capable of being used

Formalities of a Wakf – Wakf can be made inter-vioves / by will.

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