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Meaning and definition of waqf
The word wakf literally means "detention" and connotes tying up of property in perpetuity. The dominant characteristics of wakf are:
(1) Religious or pious motive. - As should be clear from the words of Section 2 of the Mussulam Wakf Validating Act, 1913, the purpose of the wakf must be religious, pious or charitable according to the tenets of Islam. The dedication need not specifically be in favour of a place of worship, Khankah, dargah, cemetery, etc. It is enough if the dedication is made for the purpose recognised by Muslim Law as pious, chartiable or religious.
(2) Permanent nature. - A pious dedication which is not permanent may be sadaqa but cannot in law be termed as wakf. A dedication must not be bound by time period in order to be a wakf. It should also not be conditional.
(3) Ownership of the property vests in God. - In wakf the property is dedicated to God, therefore, its ownership is transferred from the donor to God.
(4) The usufruct is utilised for the benefit of mankind.- The corpus is tied up in the name of God and the income accruing from that capital is the thing which is spent for the realisation of the object for which that wakf was created. Thus, the property remains fixed and its outcome is in flow.
Kinds of wakf
(i) Public wakfs.- Those which are dedicated to the public at large having no restriction of any kind regarding its use: for example, bridges, wells roads, etc.
(ii) Quasi-public wakfs.- Those which are partly public and partly to provide for the benefit of a particular individual or class of individuals which may be the settlor's family.
(iii) Private wakf (wakf-alal-aulad).- Those which are for the benefit of private individuals, including the settlor's family or relations.
Legal incidents of wakf
There are three legal incidents of wakf: irrevocability, perpetuity and inalienability.
(i) Irrevocability. - A declaration of wakf is, in its nature, irrevocable. That is, a wakf cannot be revoked after the declaration has been made, nor can the power to revoke by validly reserved.
The creation of a wakf may be questioned if it is shown that the wakif had no intention to create a wakf but had done so to avoid a liability.
(ii) Perpetuity.- Wafk must be perpetual. If it is for a limited period, or for a temporary purpose, it is void. The perpetuity of wakf does not imply perpetuity of its object.
(iii) Inalienability.- As the wafk property belongs to God, no human being can alienate it for his own purposes. Consequently, wakf property cannot be the subject of sale, mortgage, gift, inheritance or any alienation whatsoever. This general rule has two exceptions: wakf property may be exchanged for an equivalent property, or sold, subject to compulsory reinvestment of the price in another property. The power of exchange and sale is subject to the permission of the court.
Creation of wakf (formalities)
It is not necessary that a wakf should be made in writing. All that is necessary in constituting a wakf is that some sort of declaration, either oral or in writing must be made. Although oral wakf is permitted, yet when the terms of a wakf are reduced to writing, no evidence except wakf is permitted, yet when the terms of a wakf are reduced to writing, no evidence except the document itself would be sufficient to prove it. Ordinarily, no registration is required for a wakf deed. Yet when it relates to an immovable property worth more than Rs 100, registration is essential.
Who can create wakf
A major person of sound mind can validly create a wakf, provided there is no fraud, undue influence or coercion, and he should not be suffering from death-illness (maraz-ul-maut), whereas he cannot dedicate more than one-third of his estate unless heirs give their consent. Muslim Law recognises maraz-ul-maut gifts (infra) and also maraz-ul-maut wafks. When a person suffering from such illness as culminates in his death creates a wakf on his deathbed and dies, it is called maraz-ul-maut wakf. Such wakf takes effect as a bequest and only one-third of the property gifted is treated as given in wakf. However if his heirs consent, the whole property is covered by the wakf. So also if he survives his illness. If some of his heirs consent while others do not, then the wakf is valid in proportion to the share of the consenting heirs. The wakif (who creates the wakf) can be Muslim or a non-Muslim. The only restriction is that the object of wakf should not be opposed to the creed of dedicator. Thus, a Muslim cannot dedicate in favour of an idol or temple, and a Hindu or Christian in favour of a mosque.
The wakif should be the owner of the property he is dedicating.
Where the wakif is a pardanashin lady, it is presumed that she does not understand the full implications flowing from the act of her creating a wakf, and hence, if she later on denies saying that she did not intend to create wakf, it will be rendered void.
What can be made as wakf
All articles or movables that can be subjected to the dealings and transactions of men, may lawfully be dedicated as wakf. Thus, wakfs of the following movables are valid: Koran for reading in mosques, etc.; (ii) Working cattles and instruments of husbandry; War horses, camels and other animals; Swords; Chest of money for loans to the poors; Shares in companies; (vii) Securities, etc., etc.
Wakf of mushaa or undivided shares in a property which is capable of division is valid. But about wakf of mushaa for a burial ground, he has declared that it is valid. A wakf of mushaa for the maintenance of a mosque, however, is valid.
In whose favour can wakf be made
Muslim Law does not insist that a man must necessarily be poor to have benefit of a wakf. All persons, whether rich or poor, may be beneficiaries. But, when the objects of wakf become impossible or extinct, the inherent ultimate purpose of every wakf is, no doubt, the relief of the poor and destitute.
Following may be the beneficiaries:
(i) The wakif himself (only in Hanafi Law);
(ii) The family and descendants of wakif; and
(iii) General public.
Objects of wakfs
Wakf may be for the benefit of persons or for any object of piety and charity. The term "charity" includes every purpose which is recognised as "good" or "pious".
Objects of a wakf may be religious, charitable or private.
(i) Religious and charitable objects.- Religious and charitable objects of wakf are so intimately connected with each other that sometimes it may not be possible to make a distinction between them. Charitable objects include giving to one's own family and descendants, and such things in which rich and poor may be equally interested.
Section 2(1) of the Waqf Act, 1913 permits wakf for any purpose recognised by Muslim Law as religious, pious of the charitable. Section 3(a) recognises wakf for maintenance and support, wholly or partly of the settlor's family, children or descendants.
The object of some wakfs is to provide for supporting the needy relatives of the grantor, and the surplus of the income of the property towards religious purposes.
(ii) Private wakfs.- Wakfs in favour of one's own family may be termed as private wakfs. They may be:
a) exclusively for the family, or
b) substantially for the family with some provision for charity, or
c) substantially for charity with some provision for the family.
Some of the typical objects for the establishment of wakfs are as follows:
i. Distribution of alms to poor persons, and assistance to the poor to enable them to perform the pilgrimage to Mecca.
ii. Celebrating the birth of Ali Murtaza.
iii. Keeping tazias in the month of Muharram.
iv. Celebrating the death anniversaries of the settlor and of the members of his family.
v. Burning lamps in a mosque.
vi. Performance of annual fatehah (for the welfare of the soul of the deceased person) of the settlor and of the members of his family.
vii. Construction of a robat or free boarding house for pilgrims at Mecca,
viii. Maintenance of poor relations and relatives
Wakfs for certain Muslim religious institutions
Mosque.- The following conditions are necessary for a valid dedication for a public mosque- (a) Founder's intention to dedicate property, either declared or inferred from his conduct. (b) Founder divesting himself of the property, either by delivering possession to the Imam or mutawalli, or by permitting the public to offer prayers therein. (c) The founder must provide a separate entrance to the mosque for the entry by the devotees. There can be a private mosque wherein 'outsiders' may be denied entry; Muslim Law allows a wakf for a private mosque.
Qabristan (graveyard). - A wakf may be created by dedicating property for a graveyard. A qabristan may also be private or public. A land, by long user, may be established to be a public graveyard under wakf.
Durgah.- Under the classical Muslim Law durgah is not mentioned as one of the objects of wakf.
Takia.- The connotations of Takia include- a burial ground, a platform for prayers in a qabristan an abode of a Fakir in the qabristan. Takia is recognised by law as a religious institution and endowment to it is a valid wakf, or a public trust for a religious purpose.
Khankah or Khanqah.- It is a place where religious instructions are imparted, a Muslim monastery where darvesh and other seekers after truth congregate for spiritual lessons. By long usage it becomes a wakf. The head of the Khanqah is known as the Sajjadanashin. He is a manager of the durgah.
Imambara.- It is a Shia religious institution where an apartment is set aside to perform certain ceremonies in Muharram. It is essentially a private wakf, but by long usage, may also be established as a public wakf.
i. Object prohibited by Islam, for example, constructing or maintaining a church or a temple.
ii. A wakf in favour of utter strangers, though there was an immediate and substantial gift to charity.
iii. A provision for the repair of the wakif's secular property is invalid according to the Shiite Law.
iv. eeding Kutchi Memons every year on the anniversary of the settlor's death.
Wakf with uncertain objects
The objects of wakf are not always indicated with reasonable certainty. To say that wakfs are void for uncertainty, is to make a classical statement. There are many exceptions to the rule. Reasonable certainly is expected, but is not necessary that the objects must be named or the sum to be spent on each of the specified objects must be named.
A valid wakf may thus be constituted:
i. Where the objects are not specified at all, or
ii. Where the objects fail as impracticable, and
iii. Where the objects are partly valid and partly invalid.
In cases (i) and (ii), Cy pres doctrine will be applied, and in case (iii), the valid objects may be accepted by the court and the others rejected. The portion of the property relating to invalid objects will revert back to the wakif.
Cy pres doctrine.- If the specified objects of a wakf fail, the wakf will not be allowed to fail, but the income will be applied for the benefit of the poor or to objects as near as possible, to the objects which failed. It must, however, be remembered that a wakf that is void for uncertainty cannot be validated by the application of this doctrine.
Mere vagueness or uncertainty will not lead to the failure of a wakf, for under such circumstances, the law itself would cure the defect by supplying the objects of dedication. In case the object is not specified at all, the wakf will be for the support of the poor. When the wakf is for a religious or charitable institution which in course of time ceases to exist, the wakf property will not revert to the wakif or his descendants, but which be applied to some other similar religious institution or to any other object by which human beings may be benefited. The main care that has to be taken in those cases is that the wakf income should be applied to objects as similar in character as the objects named by the wakif.
Moreover, the discretion given to the courts to apply the Cy pres doctrine does not mean that where the donor's intentions can be given effect to, the court may exercise the power of applying the wakf property or its income to other purposes, simply because it considered them to be more expedient or more beneficial than that the settlor had directed.
Contingent or conditional wakfs
When the creation and validity of a wakf are subjected to a contingency, it becomes void.
The wakf should also not be conditional. Thus, if a condition is imposed that when the property dedicated is mismanaged, it should be divided among the heirs of the wakif, or that the wakif has a right to revoke the wakf in future, such wakf would be invalid. But a direction to pay debts, or to pay for improving, repairing and or expanding the wakf property, or conditions relating to the appointment of mutawalli, etc. would not invalidate the wakf.
In case of a conditional wakf, it entirely depends on the wakifi to revoke the condition, if it is illegal, and to make the wakf valid, otherwise it would remain invalid.
Essentials of a valid wakf
From whatever has been discussed so far, the essentials of a valid wakf may be briefly summarised as follows:
i. There must be a clear intention on the part of wakif to create the wakf.
ii. Wakif must declare his intention, either orally or in writing.
iii. Wakif must be the owner of the property to be dedicated as wakf.
iv. The wakf must be perpetual; although, no express mention of perpetuity of wakf is essential and it is presumed, nevertheless if wakfnama says that the wakf is for, say, 50 years, it is valid.
v. The objects of wakf should not be in conflict with the Islamic principles.
vi. The wakif must be of sound mind and major, and a Muslim. However, wakfs by non-Muslims are recognised under certain conditions.
vii. Wakf must not be contingent or conditional.
Administration of wakfs
When a wakf is validly constituted, management and administration of wakf is normally managed through statutes, and a mutawalli is generally appointed by the wakif or the Court.
Mutawalli.- Wakf property does not vest in the mutawalli but in God. He is only a manager or superintendent of the property. Mutawalli of a wakf is merely a manager of the wakf property. He neither has any proprietary right nor any beneficial interest of any kind in the property.
(i) Competence.- Anyone, of any faith, female or male, who is competent to administer property may become mutawalli. But where religious duties are involved, a person of another religion or a woman may be disqualified. Nevertheless, a woman may be allowed to hold his office provided her duties could be separated from the religious duties and the latter could be performed by a substitute.
(ii) Appointment of mutawalli.- A mutawalli may be appointed by:
a) the wakf himself;
b) his executor;
c) the mutawalli; and
d) the court.
(a) By the wakif himself.- The wakif has a right to reserve superintendence of wakf to himself, and to appoint a mutawalli during his lifetime, whenever he likes.
In cases of private wakfs, the wakif has absolute rights to appoint a mutawalli, but in case of public wakfs, this power may be subject to the approval of Court, which may appoint a mutawalli over and above the wakif.
(b) By his executor.- The power of appointing the mutawalli primarily rests with the wakif, and in his absence, it rests with his executor.
(c) By the mutawalli.- A mutawalli can appoint his successor under the following restrictive conditions:
Wakif and his executor are both dead;
Wakf deed is silent on the point of succession of mutawalliship;
There is no positive customer regarding such devolution;
The mutawalli is on the deathbed, or incapacitated from discharging his duties.
(d) By the court.- When a vacancy occurs and there is none to take the officer, or when the mutawalliship develop upon a minor, the court has the power to appoint a mutawalli.
(iii) Mutawalliship whether hereditary.- The office of mutawalli is not hereditary. If, however, there is a customer to the contrary, hereditary succession would be allowed. A mutawalli cannot sell or transfer his office.
(iv) Removal of mutawalli.- (a) By the court.- Neglect of duties and breach. The authority of a court of law in matters of removal is first and final. The court can remove even the wakif himself if he happens to be the mutawalli and guilty of some offence.
(b) By the Wakf Board.
(c) By the Wakif.- Unless the wakif has reserved the right to remove the mutawalli, the wakif has no power to remove him.
(v) Limitations of power of mutawalli.- A mutawalli can do everything that is reasonable and necessary for the protection and administration of the wakf. He has the power of management and administration of wakf properties. He can spend the properties or utilise them towards the achievement of the objects of the wakf. He can manage and supervise the wakf properties. He can grant lease, subject to the conditions already mentioned above. His power of filing a suit has been taken over now by the Wakf Board under the Wakf Act, 1954. But his powers are subject to certain important limitations, which are as follows:
(i) he cannot sell, mortgage or alienate wakf¸ property, without the permission of the Court or the Wakf Board;
(ii) he cannot transfer his duties, functions and powers to anybody else and make him the trustee, unless authorised by the wakf deed, or any positive custom;
(iii) he cannot borrow money for spending it on beneficiaries, but can do only for necessities, such as repairs, etc.;
(iv) he cannot grant a lease of wakf property for more than a year, in case of non-agricultural land, and for more than three years, in case of agricultural lands, unless the Court gives sanction;
(v) he cannot spend on mere improvements of wakf properties.
The Waqf Act, 1995 provides for the establishment of a Board of Auqaf for each State. The Board for a State and the National Capital Territory of Delhi consists mostly of non-official members, some of whom are elected by certain electoral colleges. Other members of the Board are nominated by the State Government. One person from amongst Muslim, nominated by the State Government from amongst the officers of the State Government not below the rank of Joint Secretary to the State Government, is also included in the Board. In the case of the Union Territory other than Delhi the Board consists of appointees of the Central Government. The members of the Board elect the Chairperson.
The Act contemplates representation to any one or more of following categories in the Waqf Board: (a) MLA's and MPs, (b) Persons having knowledge of Muslim Law and representing State Jamait and Shia conference, (c) Persons having knowledge of administration, finance or law, and (d) Mutawallis of wakfs situate in the State.
There is no prohibition for a woman as mutawalli of the wakf. A mutawalli is named and appointed by the wakif in the wakf deed itself.
The Wakf Act, 1995 places numerous checks on mutawallis. For example, the Act makes it obligatory on mutawallis to let the wakf property and its accounts be audited by auditors appointed by the Board and at the discretion of the State Government, also by the State Examiner of Local Funds or any other officer designated for that purpose by the State Government, to furnish reports, returns and other documents to the Board, to obey the directions given by the Board and to prepare and submit annual budget to the Board. The mutawalli is merely a manager of the wakf. There is nothing in the Act which empowers a mutawalli to institute and defend a suit and proceedings in a court of law relating to wakf on his own. The power is vested in the Board, which is a corporate body that must sue and be sued in its own name.
Waqf Act, 1995 provides for the constitution of the Waqf Tribunal. It says that the State Government shall by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under the Waqf Act and the define the local limits and jurisdiction of such Tribunals.
The jurisdiction of the Wakf Tribunal is not restricted to determine the nature of the wakf property alone, it can determine whether the wakf property has been rightly leased or wrongly, or any other questions relating to wakf property. All disputes relating to wakf property are to be decided by the Tribunal. The jurisdiction of the Tribunal is an original jurisdiction. It cannot be contended that the Tribunal is clothed with the jurisdiction only when an order is passed by the Wakf Board.
Application of the income of wakf
The income of the wakf must be applied for the following purposes in the order they are mentioned below:
i. for the preservation and protection of wakf property;
ii. for carrying out the objects of the wakf as laid down by the wakif;
iii. for doing what is essential for the general purposes of the specified objects; and
iv. (where it is not possible to apply the income for the purposes specified by the wakif) for objects are near as possible to those intended by the wakif.