Waqf under Muslim Law

Introduction

The institution of waqf is an exclusive feature of the Mohammadan law. To waqf, 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 waqf is of such importance is because it serves a double purpose. On side, it satisfies human instinct for charity and on the other, it makes a provision for the weaker section of society.

What is a Waqf?

Waqf is the property given in the name of God for religious and charitable purposes. In legal terms, permanent devotion by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable. A waqf can be formed through a deed or instrument, or a property can be deemed waqf if it has been used for religious or charitable purposes for a long period of time. The proceeds are typically used to finance educational institutions, graveyards, mosques and shelter homes.

A person creating the waqf cannot revoke the property and the waqf would be a continuing entity. A non-Muslim can also create a waqf but the individual must admit Islam and the objective of creating the waqf has to be Islamic.

Definition of Waqf

Definition under Muslim Waqf Validating Act, 1913,?Section 2?of the Act defines waqf as the permanent dedication by a person professing the Muslim faith of any property for any purpose recognized by Muslim Law as religious, pious or charitable.

Waqf Act, 1954 defines?Waqf as, “Waqf?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.”

Essentials of Waqf

Waqf under Sunni Law

The essential conditions of a valid waqf, according to the?Hanafi Law (Sunni Law)?are:

·??A?permanent dedication?to any property.

· The?dedicator (waqif)?should be a person professing the Muslim faith and of sound mind and not a minor or lunatic.

· The dedication should be for a purpose recognized by the Muslim law as?religious, pious or charitable.

1. Permanent dedication of property

The most important vital of a valid waqf is that it should be ‘a permanent dedication of property.’?It has the following prerequisites-

• There must be a dedication.
• The dedication must be permanent.
• The dedication must be of any property.

The Waqf himself has the right to donate such property and give it for any purpose recognized under the Muslim Law. If the wakf is made for a limited period, it cannot be considered as a valid wakf.

2.?By a person professing Muslim faith

The person creating a waqf should be an adult Muslim of?sound mind.

3. For any purpose recognized by Muslim Law

The main objective behind creating a waqf is that it should be dedicated for a purpose recognized as?religious, pious or charitable?under Muslim law.

Waqf under Shia law

The essential conditions for creating a valid Waqf according to?Shia Law?are:

• It must be?perpetual.
• It must be?absolute and unconditional.
• Possession of the thing?appropriated?must be given.
• The waqf property should be entirely?taken out of waqif.

?Who Can Create a Waqf?

1. The person constituting the waqf of his own properties is known as the?‘founder of waqf’ or Waqif. To become a waqif, a person dedicating the property must be competent enough to do so according to the provisions of law. Following are the conditions, which need to be fulfilled to become a waqif and constitute a waqf-

(i) The person constituting the waqf should be a Muslim.

(ii) Should be a person of sound mind.

(iii) Should have attained the age of majority.

2. A person may admit the capacity but may not have any right to constitute a?waqf. Such a person cannot constitute a valid waqf. The subject matter of waqf should be owned by the waqif at the same time when waqf is being constituted. Whether a waqf can be created by a particular person depends upon whether there exists a legal right for the dedicator to transfer the ownership of the property or not.

?3. A person can dedicate his entire property for the creation of waqf but in the case of the testamentary waqf, more than one-third of property cannot be dedicated.

?Legal Incidents of Waqf

The following are the legal incidents of Waqf-

• Irrevocability
• Perpetuity
• Inalienability
• Pious or charitable use of usufruct
• Absoluteness

Modes of Creation of Waqf

Waqf can be created in the following ways-

1. By an act inter vivos – This type of waqf is created between living voices, constituted during the lifetime of the waqif and takes effect from that very moment.
2. By will – A waqf created by will is contradictory to a waqf created by an act inter vivos. It takes effect after the death of the waqif and also known as testamentary waqf. Such a waqf cannot operate upon more than one-third of the net assets, without the consent of the heirs.
3. During death or illness (marz-ul-maul) – Like the gifts made while the donor is on the death bed, will operate till the extent of one-third of the property without the consent of the heirs of the property.
4. By immemorial user – Limitation of time also applies to the creation of waqf property, but waqf property can be established by way of immemorial use.

Completion of Waqf

Waqf can be completed by the following modes-

I. Where a third person is appointed as the first mutawalli

II. Where the founder constitutes himself as the first mutawalli.

?Kinds of Waqf

1. Public Waqf– It is created for the public, religious or charitable purposes.
2. Private Waqf-?This type of Waqf is created for the settlor’s own family and his descendants and is also known as ‘Waqf-ulal-Aulad’. It is a kind of family settlement in the form of waqf.

Kinds Of Waqf from the view of their purpose

·?Waqf Ahli:?The waqf is basically created to cater to the needs of the waqf’s founder’s children and their descendants. But, the nominees do not have a right to sell or dispose of the property which is the subject-matter of waqf.

·?Waqf Khayri:??This kind of waqf is established for charitable and philanthropic purposes. The beneficiaries in such a kind of waqf may include the people belong to the economical sections of the society. It is used as an investment for building mosques, shelter homes, schools, madrasas, colleges and universities. All of this is built to help and uplift the economically challenged individuals.

·?Waqf al-Sabil: The beneficiaries of such a waqf, is the general public. Although similar to Waqf Khyari, this type of Waqf is generally used to establish. It is very similar to waqf khayri, though generally used for establishment and construction of the public utility.

·?Waqf al-Awaridh:?In such a kind of waqf, the yield is held in reserve so that it can be used in case of emergency or any unexpected events that affect the livelihood and well-being of a particular community, in a negative manner. For example, waqf may be assigned to cater to the specific needs of the society like providing medication for sick people, who cannot afford expensive medicines. Waqf al-awaridh may also be used to finance the maintenance of the utility services of a particular village or a neighborhood.

Waqf Act, 1913

Under this act, a Muslim can secure his property for?perpetuity for the support?of his family, children and descendants, provided that he makes a provision in such a manner that the ultimate benefits go to a charitable object of a permanent nature, made either?expressly or impliedly.

Under this act, a?Hanafi Muslim?cannot enjoy the whole income or a life interest in the income of trust property.

A Hanafi Muslim selling the property can make payments of his?debts out of the rents?and the profits of the property dedicated.

The objective of the Act

According to?Section 3?of this Act, it is lawful for a Muslim person to create a waqf which in all other aspects in accordance with the provisions of Muslim Law, for the following purposes-

??For the maintenance and support wholly or partially of his family, children or descendants.

??Where the person creating a waqf is a Hanafi Muslim, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated

?Mutawalli

The manager or the superintendent of the waqf is known as the ‘Mutawalli’. Such a person appointed has no powers, either to sell or exchange or mortgage the waqf property, without the prior permission of the court, unless he has been empowered by the waqf deed expressly to do so.

Who can be appointed as a Mutawalli?

Any person who has attained the age of majority, is of a sound mind and is capable of performing the functions to be discharged under a particular waqf, can be appointed as a?mutawalli?of the waqf.?A foreigner cannot be appointed as theTrustee of a property.

Who can appoint a Mutawalli?

According to the general rule, the founder of the waqf appoints at the time of the creation of the waqf. But, in case a waqf is created without the appointment of a mutawalli then the following persons are eligible to appoint the Mutawaali:

• The executor of the founder
• The mutawalli on his death-bed
• The Court, which shall be guided by the following rules:

i. As far as possible, the Court should not disregard the directions of the settler.

ii.?Preference should be given to a member of the settler’s family over an utter stranger.

iii. In case of a contest between settler’s lineal descendant and the one who is not a lineal descendant, the court is free to exercise its discretion.

Under some circumstances, a mutawalli may also be appointed by congregation.

Powers and Duties of Mutawalli

Being the manager of the waqf, he is in charge of the usufruct of the property. He has the following rights –

• He has the authority to use the best interest of the waqf. He is authorized to take all reasonable actions in good faith to ensure that the end beneficiaries are able to enjoy all the benefits from the waqf. As he is not the owner of the property, therefore he is barred from selling the property. However, he could be bestowed upon such rights by the waqif by the explicit mention of them in waqf nama.
• He can take authorization from the court to sell or borrow money by showing the existence of appropriate grounds or the existence of necessity.
• He can file a suit to protect the interests of the waqf.
• He also has the power to lease the property for the agricultural purpose for less than three years and for the non-agricultural purpose for less than one year. He can get the term extended with due permission from the court.
• He is entitled to remuneration as provided by the waqif. If the remuneration is too small, he can apply to the court for getting it enhanced.

Removal of Mutawalli

By the Court – Once a mutawalli is appointed, he cannot be removed by the waqif. But the mutawalli can be removed by the Court only on following grounds-

• He denies the waqf character of the property and sets up an adverse title to it in himself.
• He although having sufficient funds neglects to repair the waqf premises and allows them to fall into despair;
• He causes damage or loss to the waqf property or commits a breach of trust knowingly and intentionally.
• The mutawalli is rendered insolvent.

?By the Waqf Board – According to section 64 of the Waqf Act, the Waqf Board has the authority to remove the mutawalli from his office under the conditions mentioned therein.

?By the Waqif –?There are different views related to this concept. According to??Abu Yusuf, even if the wakif has not reserved a right to remove the mutawalli in the waqf deed he can, nevertheless, remove the mutawalli. However, Imam Mohammed differs on this and believes that unless there is a reservation, the waqif cannot do so.

Management of Waqf Property

De Facto Mutawalli- If a person who has not been authorized to act as a mutawalli by the waqif or the Court, assumed the status to manage the property, he becomes a?‘trustee’ as is so responsible as such.

Conclusion

Waqf is that property which is created by the waqif for religious, charitable or pious purposes and is permanent one. It is binding in nature and has a law backing its enforcement. If any individual feels that his rights are violated then he may knock the doors of the Court for justice.?