Author: Isha Mittal Student, University of Petroleum and Energy Studies Editor: Gaurav Anand Gogia Founder-cum-Publishing Editor, The Legal Vidya
Abstract
The word “wakfs” means detention, stoppage or tying up. It is the detention of the property that is made by the person called wakif, that is used for the religious, pious, or charitable purposes. Once a wakf is created, it cannot be transferred or revoked, as on creating a wakf, the ownership of the property is transferred from the wakif to the god. The usufruct that is obtained from the property, is for the benefit of the mankind.
The origin of wakf is traced by the utterance of the prophet, as once wakf was quoted as: “Tie up the object, and give away the fruit.” The wakf term was developed with the advent of Islam. There was no concept of wakf in Arabia before Islam religion was born. Once the wakif creates a wakf, it gets tied up forever and becomes non-transferable. The main objective behind creating a wakf is that its usufruct is made available for the purposes that are valid under the Muslim Law.
For creating a wakf, there are certain essentials, that needs to be followed.
The wakf should be for religious, pious and/or charitable purposes
It should be of permanent nature, i.e., absolute, irrevocable, non-transferable, and unconditional.
Once the wakf is created, the ownership vests in god, i.e., the detention of the thing is implied ownership of the almighty.
The usufruct that is obtained from the property, is for the benefit of the mankind.
Wakf cannot be created by every person, there are only certain people who can create a wakf. The wakf can be created by a major person, with no fraud, undue influence or coercion, or any deadly illness. There are only certain things that can be made wakfs like the Koran, swords, war camels and horses, shares in companies and money for loans to the poor.
Thus, wakf under Muslim Law, is created by a wakif orally or in writing and then the God becomes the owner of the property which is irrevocable and later cannot be transferred back. Hence, wakf can be only those objects that are considered valid under Muslim law.
Keywords: Wakf, Wakif, Religious or Charitable Purposes, Ownership to God, Usufruct, Non-transferable, Irrevocable, Muslim Law, Sound mind, Major, Benefit of mankind, Perpetual
Introduction
The meaning of the word “wakfs[1]” under Muslim Law means “detention”. In legal terms, wakf is the detention of the property that is made with a purpose that its produce or income will be used for charitable or any religious purposes. Once a wakf is created, it cannot transfer back to the owner who created the wakf. It is tied up forever for the purpose it is created for. There is always an objective behind creating a wakf, which is to ensure that its usufruct is made continuously available for certain purposes, generally religious and charitable purposes.
The law of wakf is very important branch of Mohammedan Law, as it is interwoven and connected with the entire religious, social and economic life of Muslims.
Meaning
In Muslim Law, the word wakf, plays a very important role as it is made for charitable purposes. When a Muslim person is working for some charitable or religious purposes with religious faith in him, and works for the benefit and the upliftment of the society and he donates the property in the name of the god Allah, then that property is termed as “wakf”.
The word “wakf” means detention, stoppage or tying up with the god. In other words, it means that the ownership of the property is taken away from the person creating the wakf and is transferred and obtained by the God forever, i.e., it cannot be transferred back. All these details of wakf are written by the prophet in the earlier times, and from since then, it is being followed.
In the case [2], it was observed that wakf technically means that there is a dedication of some specific property for religious and pious purposes. A Muslim jurist Abu Hanifa defines wakf as tying up the substance of the property to the wakif and giving its ownership to him and the devotion of the usufruct, or accommodate loan for some charitable purpose.
Apart from the Muslim Law, where wakf is defined, there is a Wakf Act, 1954[3], which defines wakf as “Wakf is permanent dedication done by a person professing the Islam religion, of any movable or immovable property for any purpose that is recognized by the Muslim law as religious, pious or charitable.”
The Muslim Jurists like Abu Yusuf and Imam Mohammed, they defined wakf as “tying up of the substance of the thing under the rule of Almighty God for any purpose by which the profit is applied for the benefit of his devotes.” Abu Yusuf’s definition established wakf in the view of the people and also of the Hanafi School. It established the three essential elements for wakf[4]:
The ownership of the wakif is extinguished
The property is in the ownership of the God always, and is revocable.
The usufruct obtained from the property is used for the benefit of the mankind (charitable or religious purposes).
Shia Law, also defines wakf but in a different manner. Sharia-ul-Islam also defines wakf, where wakf is a contract, a fruit or is an effect of which is to tie up the specific thing and leave behind the usufruct for mankind. The Wakf Act, 1913- section 2 also defines wakf as a permanent dedication of the property by the person professing faith for any purpose which is recognized by the Muslim Law as religious, charitable or pious. In the case, Kani Ammal vs. Tamil Nadu Wakf Board[5], it was observed that the purpose of the person and the dedication of the property made by the person must be permanent and the usufruct obtained from it must be utilized for the purpose of the mankind.
Essential Conditions for a Valid Wakf
Under Sunni Law
Essential conditions for a valid wakf under Sunni Law are:
There must be a permanent dedication of the property – One of the most important and the essential element for creating a valid wakf is that the wakf should be with a permanent dedication, as at the later moment of time, it cannot be revoked or transferred back to the wakif. Certain preconditions are:
Dedication should be present
The dedication should be permanent in nature
The dedication must be of any property
The wakif has the right to donate the dedicated property and can give it for any purpose recognized under Muslim Law. If a relative of a wakif donates the property, it is not a valid wakf. Since, the wakf once created cannot be revoked or transferred back to the owner, it has to be for unlimited time. If the wakf is for a limited time period, it is not a valid wakf.
In the case, Karnataka Board of Wakfs vs Mohd. Nazeer Ahmad[6], it was observed that if a Muslim man provides a shelter in his houses to the travellers irrespective of any discrimination on the grounds of religion, and status, it would not be considered as a valid wakf, as under Muslim Law, a wakf has a religious motive and is created for the benefit of the mankind. Thus, when a wakf is created, it is presumed that it is a gift of some property made to the God. If the property is not gifted in favour of God, or is not used for the benefit of the mankind, it is not a valid and a legal wakf.
The wakif (the creator of the wakf) should be of sound mind, and should not be a lunatic or insane person– The creator of the wakf, should be an adult Muslim who is of sound mind. He should not be a lunatic person or an insane person. If a person is suffering from sudden attacks of insanity at some intervals, and creates a wakf, it is also not a valid wakf.
He/she should be professing Muslim faith– The wakif should have faith and should create wakf only for the benefit of the mankind. In case of the family wakf, the wakif must expressly or impliedly mention the ultimate beneficiaries of the wakf, that is either reserved for the poor, or for any other purpose that is of permanent character[7].
The wakf should be created for the purpose that is recognized in Muslim Law as religious, pious, and/or charitable– The main objective behind the creation of the wakf is that the wakif should possess a Muslim faith and the wakf that is created should be of a property that is recognized as religious, pious and /or charitable under Muslim Law. The property should be dedicated in favour of the God, and not for personal profits and gains. Thus, once the wakf is created, the ownership of the property is transferred to the God from the wakif[8].
Under Shia Law
Essential elements for a valid wakf under Shia Law are:
The wakf made should be perpetual.
The wakf should be absolute and without any conditions
The possession of the thing of which the wakf has to be made, must be given
The wakif should have a clear intention to create a wakf, and must declare his intention in either writing or orally.
The wakif should be the owner of the property. He could not create the wakf of some other property.
The wakf property that has to be taken, should be taken out by the wakif only.
Who can make/create a wakf?
The person who possesses the wakf of his own property is called the “creator of the wakf” or “wakif”. There must be a competency of the wakif at the time, when he dedicates his property as wakf. For being competent, he must be in the capacity, and as well as have the right to create a wakf. For a Muslim, the capacity for making a wakf should fulfil two requirements:
Soundness of mind
Majority age
The person who is of unsound mind and of minor age, cannot create a wakf, as he/she is incapable to know the legal consequences. So, if a wakf is created by an insane person or a minor person, it is considered void. Wakf cannot be created by the guardian on behalf of the minor, if made, it is void[9]. It was also held by the Madras and the Nagpur High Courts that a non-Muslim can also create a valid wakf but it should not be against the principals of Islam. Patna High Court also held that non-Muslim can constitute a valid wakf, but it will only be considered under a public wakf, which means that a non-Muslim cannot create a private wakf.
If a person possesses a capacity but does not right to constitute a wakf, such wakf is an invalid wakf. At the time of creation of the wakf, the subject matter of the wakf should be owned by the wakif. If a wakf is held by a widow in regard to her unpaid dower, it cannot be constituted by her as she is not an absolute owner of that property.
A person has the right to dedicate his entire property when he creates a wakf, but if the wakf is testamentary, the wakif cannot dedicate more than one-third of the property.
Thus, a major person, who is of sound mind, under no undue influence, coercion, or fraud, and not suffering from any death illness like Maraz-ul-maut, can dedicate his one-third property as wakf, but for more than one-third property needs consent from the heirs. The wakif can be a Muslim as well as a non-Muslim, but just the object of wakf should not be opposed by the creed, and a Muslim man cannot create a wakf in favour of a temple or an idol and a Hindu or a Christian cannot dedicate his property in favour of a mosque.
Doctrine of Cypress
The word “cypress” means “as nearly as possible.” Generally, it is used for the English law of trusts, but is also applicable for wakfs. This doctrine applies to wakfs, as if in case a wakf is not possible to continue, either due to the lapse of time or occurrence of some uncertain circumstances, or any legal difficulty or where the object mentioned as wakf has already been completed, then the wakf can be allowed to continue with the help of this doctrine.
When the wakf is for religious or charitable institution, which ceases and does not exist, then the wakf created won’t be returned back to the wakif or to his heirs but will be applied to some other institution or object which benefits the people around. But if a wakf is void-ab-initio, then this doctrine is not applicable for such wakfs. Thus, where the lawful object has already been completed, or the object is not possible to be executed further, the trust is not allowed to fail, hence, with the help of the doctrine of cypress, the income of property is utilized for the benefit of the poor and the mankind.
Kinds of Wakfs
Public Wakfs: Public wakfs are the wakfs, that are created for the public at large and do not have any kind of restriction regarding its use. These wakfs are created for the public, religious and/or charitable purposes. Example: Bridges, wells, roads, etc.
Quasi-public wakfs: These wakfs, are partly public and partly private, i.e., to provide benefit to a particular individual or class which can be the wakif’s family.
Private Wakfs: Private wakfs are the wakfs, that are for the benefit of private individuals that include the wakif’s family or relatives. Such wakfs are also called wakf-alal-aulad. These wakfs are generally a kind of family settlement.
Valid objects of wakfs
The main essential for the validity of the wakf, is its object. If the object is unlawful, the wakf would be void. So, the object of the wakf should be recognized as religious, pious, or charitable under Muslim Law.
According to the Islamic texts, certain objects are declared as valid objects for wakf. Those are:
Celebrating the birth of Ali
Construction of free boarding house for the Mecca pilgrims
Burning lamps in the mosque
Reading Quran in public places and at private houses
Grant to college and provisions for professors to teach in the colleges
Distribution of alms to poor persons and assisting them to perform pilgrimage to Mecca
Repairs of Imambaras
Mosque to conduct worships
Invalid objects of wakfs
There are certain objects that are declared invalid according to the Islamic texts. So, these objects are not recognized as valid objects for wakfs by the Muslim Law.
Objects prohibited by Islam, like constructing a church or a temple
Uncertain objects
Provision for the repair of the wakf’s secular property is invalid
Wakf in favour of strangers, even though it is a substantial gift to charity
Legal Incidents of wakfs
Once the wakf is complete, there are certain consequences that needs to the followed:
Irrevocability– Once the wakf is created and declared, it cannot be revoked. The wakif does not get the property back, once the wakf is created.
Perpetuity– One of the essential elements of wakf is that it should be perpetual, i.e., forever. If the wakf is for a limited time or is temporary, it is void. Once the property is given as wakf, the owner is changed from the wakif to the god. In the case, Mst Peeran vs Hafiz Mohammad[10], it was held by the Allahabad High Court that the wakf of the house that is built on land, is leased for a fixed time, is invalid.
Inalienability– Since, once the wakf is created, the God becomes the owner of the property, so no one can alienate it for his own benefits or purpose nor for any other person. It cannot be sold or given to any other person.
Charitable use– Since the wakf that is created is for the religious and charitable purposes, its usufruct is also used for only such purposes. Only in the case of private wakf, it can be used by the descendants.
Dedication to God– Wakf is created to dedicate the substance to the God. Thus, when the wakf is created, the property vests in the God, hence, no one can claim its ownership.
Extinction of the right of the wakif– Once the wakf is created, even the wakif cannot claim his right over the property nor can he enjoy the usufructs from the property. After the creation of the wakf, no benefit from the property can be claimed by the wakif.
Creation of the Wakf
There is no specific way prescribed by the Muslim Law for the creation of the wakf. If all the essentials of the wakf are satisfied, the wakf is a valid wakf and is thereby created. Thus, a valid wakf is created by looking at the intention of the donor, his way of declaring it, i.e.., either orally or in writing. Although, if a wakf is created by oral means, it is permitted, but if it is in writing, no other evidence is required except for the document, as it is sufficient to prove it. But it can be said that wakf is created through the following methods:
By an act of a living person (inter vivos)– This type of wakf is created by the living human beings, i.e.., a person declares his dedication towards the creation of the wakf. During the lifetime of the wakif, the wakf is created, and comes into the effect from that time itself.
By creating a will– The wakf created by will, stands contrary to the wakf created by the act of inter vivos. Generally, this wakf takes place after the death of the wakif and is generally called “testamentary wakf”. Earlier Shia Law did not accept a wakf through this method, but now it is approved. Through this method, the wakif cannot operate for more than one-third of the property without the consent of the heirs.
By the usage– The limitation of time also applies to the wakf creation but once the wakf property is created, it is established by way of immemorial use. If the property is continuously used for charitable or religious purposes, it is deemed to be a wakf. Example: When a land is use continuously for the purpose of burial ground, it is deemed to be a wakf for immemorial usage by the anonymous user.
During death illness (Maraz-ul-Maut) – Wakf can be made by a person on the death bed, but in this case, he cannot dedicate more than one-third of the property without the consent of the heirs of the wakif.
Contingent Wakfs
When the creation and validity of the wakf are contingent, the wakf created becomes void.
Example: 1. If the wakf is made contingent on the death of the wakif without leaving any children, then that wakf will be a void wakf.
If a Muslim lady creates a wakf for herself and her children and also provides that her children should take the possession of the property when they become major, and during this course of event, she dies without leaving children, then ideally the wakf income should be devoted for religious work, but since this wakf is subjected to contingency, it becomes void.
Conditional Wakfs
On the creation of the wakf, it should be made without any terms and conditions. Thus, if a condition is imposed on the wakf that if the property dedicated as a wakf is mismanaged, it should be divided among the heirs of the wakif, or he can revoke the wakf in future, if he founds mismanagement with the property, such wakfs are invalid, and hence cannot be created.
Administration of the Wakfs
Non-Statutory– Generally, it is seen that for the management and the administration of the wakf, a manager is appointed by the wakif. The manager of the property, not the owner is a person called a “Mutawalli.” Anyone who is competent to administer and manager a wakf, either female or male can become a mutawalli. But if the wakf is to be made for religious purposes, and religious duties are involved, then a person (man or woman) from any other religion may be disqualified. A Mutawalli can be appointed by the wakif, his executor or by the court.
Statutory– The statutory supervision includes the administration and the management of the wakfs through statutes and acts. The Wakf Act, 1995, provides for the establishment of a Board of wakf for each state. This Board of each state and the union territories consists mainly of the non-official members and some of them are elected by the electoral colleges, and few of the members are elected by the state government. This act contemplates representation to any one or more of the following categories: MP, MLA, people having knowledge of Muslim Law, or people with knowledge about administration, finance, law as well as mutawallis.
Conclusion
Wakf means detention of the property which is permanent, binding, and enforceable by the law, and if a person feels that it is violated, can seek remedy from the Civil Court. Wakf once created is transferred to god forever and its usufruct is used by the poor people or used for the benefit of the mankind. The wakif creates a wakf, who should be a major person with soundness of mind and the object thereby used to create a wakf, must be a lawful object and must be used for purposes that are recognized by the Muslim Law.
[2] AIR 1932 11 Patna 238.
[3]https://blog.ipleaders.in/concept-waqf-muslim-law/#:~:text=Wakf%20Act%2C%201954%20defines%20Wakf,made%20by%20an%20oral%20presentation.
[5] 1983 AP 188
[6] AIR 1982 Kant 309, 1982 (2) KarLJ 176
[7] Rahlman vs. Bagridan, 1936 Oudh 213
[8] Md. Ismalia vs. Thakur Sabif Ali, 1962 SC 1722
[9] Commissioner of Wakf vs. Md. Mohsin, (1953) 58 Cal WN 252
[10] AIR 1966 All 201