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An Overview of Waqf

7 min read

By: Ayushi Budholia

Published on: May 14, 2022 at 21:00 IST

INTRODUCTION

The name of Prophet Muhammad is associated with the origin of Islam, a monotheistic religion. He was born in Mecca in 570 CE. It is believed that when he was 40 years old he began hearing voices and visuals of divine angels. To better understand these visions, he would go to Mount Hira and meditate. On one such journey in 610, the Archangel Gabriel appeared to him and told him that there was only one god, Allah, and he had chosen him as a prophet.[1]

Muhammad soon through his preaching gained lot of followers. In 622 CE, the people who worship Pagan gods were upset by his preaching. As a result, the Prophet and his followers were prosecuted and were forced to flee to Medina. It 632 CE, the war ended and he returned to Mecca with 1500 converts and took the control of the city. He died in 632 CE.

Waqf is an Arabic word which means “detention”. It means to hold the property in such a manner that for all times to come its corpus cannot be given away by way of any mode of transfer and its income is used for charity in perpetuity. There is no specific provision regarding Waqf in Quran, but its essence can be found in different verses of it in the form of charity.[2]

DEFINITION OF WAQF

The word Waqf literally means “detention” or “typing up of property” for a religious, educational or charitable cause. There are different definitions of Waqf given by different jurists and according to different Acts. Some of the important ones are discussed below:

  • Abu Hanifa

Abu Hanifa (699 – 767 CE) was one of the famous Sunni Muslim jurist. He was the founder of the Hanafi school of sunni jurisprudence. This school is one of the most widely practiced school in India and other parts of the world.

According to the Great Imam, Abu Hanifa, Waqf is the tying up of the substance of property in the ownership of the waqif. According to him Waqf 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.[3] He was of the view that the tying up of property is not permanent in nature. The property reverts back to its owner or its heir in case the object fails.

  • Abu Yusuf

Yaqub ibn Ibrahim al-Ansari, also known as Abu Yusuf is a disciple of jurist Abu Hanifa. He helped in spreading the Hanafi School. His views on Waqf are quite different from the views of Abu Hanifa.

According to him Wakf is the tying up of the substance of a thing under the rule of the property of Almighty God for any purpose by which its profit may be applied for the benefit of His creatures. According to him, the tying up of property is absolute in nature and can neither be sold nor inherited.

  • The Mussalman Wakf Validating Act, 1913

According to Section 2(1) of the Mussalman Wakf Validating Act, 1913,

“(1) “Wakf” means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable.”

Thus, this definition provides for the permanent dedication of property only by those person who practice the Mussalman faith.

  • The Waqf Act, 1955

According to Section 3(r) of the Waqf Act, 1955,Waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes—

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;

(iii) “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and

(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and “waqif” means any person making such dedication;”

ESSENTIALS OF WAQF

According to the Sunni Law, there are three essentials of a valid waqf:

  • Permanent dedication of any property

The first essential element of a valid Waqf according to Sunni law is that it should be a permanent dedication of property. Thus, if it is made for a limited period of time, then it is not a valid Waqf. The dedication of property is made by Waqif himself for any religious, educational or charitable purpose.

  • Competency of the Waqif

The permanent dedication of the property must be made by a Waqif competent under law. The Waqif must be an adult person professing mussalman faith, i.e. the person should be above 18 years of age. He should not be of unsound mind.

  • For the purpose recognised by Muslim Law

This is also called the object of Waqf. Thus, the third essential of a valid Waqf is that the dedication should be for a purpose recognised as religious, pious or charitable under Muslim Law.[4]

According to Shia law, there are the following three essentials of a valid Waqf:

  • Perpetual
  • Absolute and unconditional
  • Possession of the things appropriated must be given
  • it must be taken out from the dedicator. That is, he should not retain any interest.

WHO MAY CREATE A WAQF?

A Waqf is created by a Waqif. In order to create a Waqf, the Waqif can be any competent Muslim or a non-Muslim. However, such a Waqf must not be created by fraud, coercion or undue influence.

The Madras and Nagpur High Courts have held that a non-Muslim can also create a valid Waqf provided the objective of the Waqf so created is not against the principles of Islam. According to the Patna High Court, a valid Waqf can also be constituted by a non-Muslim. However, such a Waqf would only be constituted under a public Waqf ie.  a non-Muslim cannot create any private waqf (e.g., an Imambara).[5]

A Waqf of any property held by a widow in lieu of her unpaid dower cannot be constituted by her because she is not an absolute owner of that property.[6]

In case a Waqif is a pardanashin lady, it is the duty of the beneficiaries and the mutawalli to prove that the women had exercised her mind independently for constituting the Waqf after fully understanding the nature of the transaction.[7]

LANDMARK CASES

  • M Kazim Vs A Asghar Ali[8]

Meaning of Waqf

In this case, the court opined that the meaning of Waqf is the dedication of some specific property with some pious, religious or social purpose.

  • Vidya Varuthi Swamigal Vs Balusami Ayyar[9]

Right of Wakif after dedication of property

According to Justice Ameer Ali “It (Waqf) owes its origin to a rule laid down by the Prophet of Islam; and means “the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings.

When once it is declared that a particular property is Wakf, or any such expression is used as implies Wakf, or the tenor of the document shows, as in the case of Jewun Doss Sahoo Vs Shah Kubeerood-deen (1840) 2 Moo. I.A. 390 that “a dedication to pious or charitable purposes is meant, the right of the wakif is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit.

  • The Karnataka Board Of Wakfs Vs Mohd. Nazeer Ahmad And Anr[10]

Essentials of Waqf

In this case, the house was dedicated by a Muslim merely for the use of travellers irrespective of their religion and status. The Court was of the opinion that it was not a Waqf on the ground that under Muslim Law a Waqf must have a religious and pious motive and it must be for the benefit of Muslim community only and even if is secular in nature then the charity should be for the poor only.[11]

  • Delroos Banoo Begum Vs Nawab Syud Ashgur Ally Khan[12]

Who is a Pardhanashin Woman?

In this case the Waqf was created by a Muslim lady who was a pardhanashin woman, unable to read and write as most of her classes. She swears positively that she did not understand the meaning of the deed which she executed. The Court that the validity of such a Waqf which is created by a pardhanashin women.

  • Cheddi Lal Misra Vs Civil Judge, Lucknow[13]

Continuity of original character of Waqf

The Supreme Court in this case observed that after the creation of Waqf, its original character will continue in existence and cannot be changed by any act of mutawalli or anyone claiming through him.

CONCLUSION

Waqf means the permanent dedication or tying up of property for religious, social or charitable purpose. It is defined by different scholars, jurists and in different Acts from time to time. It can be made by both Muslim and non-Muslim without contradicting the principles of Islam. The essentials for the creation of Waqf are different in Sunni Law and in Shia Law. The person creating the Waqf should be a competent Wakif. He should be of sound mind, and age of majority.

ABOUT THE AUTHOR

Ayushi Budholia is a third-year, B.A.LL.B Student of Lloyd Law College, Greater Noida.

Edited By: Advocate Ramsha Shaikh, Associate Editor at Law Insider

Reference:

  1. Student if History, “the origins of Islam”.
  2. SYED KHALID RASHID, MUSLIM LAW 139, (EBC Explorer ed., 2020).
  3. Aparajita Balaji, Concept of waqf under Muslim Law.
  4. Chitrarekha Bharadwaj, Waqf under Muslim law – analysis.
  5. Aparajita Balaji, Concept of waqf under Muslim Law.
  6. Aparajita Balaji, Concept of waqf under Muslim Law.
  7. Aparajita Balaji, Concept of waqf under Muslim Law.
  8. M Kazim Vs A Asghar Ali, AIR 1932.
  9. Vidya Varuthi Swamigal Vs Balusami Ayyar,  (1922) 24 BOMLR 629.
  10. The Karnataka Board Of Wakfs Vs Mohd. Nazeer Ahmad And Anr, AIR 1982 Kant 309.
  11. Chitrarekha Bharadwaj, Waqf under Muslim law – analysis.
  12. Delroos Banoo Begum Vs Nawab Syud Ashgur Ally Khan, 1875 SCC OnLine Cal 30.
  13. Cheddi Lal Misra Vs Civil Judge, Lucknow, (2007) 4 SCC 632.