Muslim Law:- WAQF

CHAPTER

WAQF

The word ‘wakf’, in its literal sense it is referred to as ‘detention’, ‘stoppage’ or ‘tying up’. According to the legal definition, it means a dedication of some property for a pious purpose in perpetuity. The property so alienated should be available for religious or charitable purposes. Such a property is tied up forever and becomes non-transferable.

It has been observed in the case of M Kazim vs. A Asghar Ali, AIR 1932 11 Patna 238, that wakf in its legal sense means the creation of some specific property for the fulfilment of some pious purpose or religious purpose.

A lot of eminent Muslim jurists have defined wakf in their own way.

According to Abu Hanifa, “Wakf is the detention of a specific thing that is in the ownership of the Wakif or appropriator and the devotion of its profits or usufructs to charity, the poor, or other good objects to accommodate loan”.

Further, as defined by Abu Yusuf, wakf has three main elements:

Ownership of God,

Extinction of the founder’s right and

Benefit of the mankind

Section 2 of the Mussalman Wakf Validating Act, 1913, defines wakf as “the permanent dedication by a person professing the Mussalam faith of any property for any purpose recognised by Musalman Law as religious, pious, or charitable.”

The Wakf Act, 1954, Section 3(l) defines wakf as the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by Muslim law as religious, pious, or charitable”.

A wakf can be either in writing or can be made by an oral presentation. In the case of an oral agreement, the presence of words emphasising the intention of the parties is a prerequisite.

PARTIES TO A WAKF

There are majorly three parties to a wakf:

The founder of a waqf is known as ‘wakif’.

The beneficiary for whom the wakf is created is known as the ‘Mawquf ‘alayh’. A beneficiary must be legally capable of owning a property.

The person appointed for the administration of the wakf is known as ‘Mutawalli’.

ESSENTIALS OF A VALID WAKF

WAKF UNDER SUNNI LAW

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

FORMALITIES

There are no formalities as such for the creation of a wakf.

It can be created orally or by a deed.

However, the intention to give property in wakf should be proved.

The Privy Council in the case of Beli Ram & Brothers and others vs. Chaudari Mohammad Afzal and others (1948) observed that the validity of the wakf completely depends upon the intention with which the wakif creates that wakf.

WAKF MUST BE UNCONDITIONAL

The wakf created must not be contingent.

The giving away of the property must be immediate and complete and should not be based on any condition.

Contingent wakfs are invalid.

WAKF MUST BE IRREVOCABLE

Once the property is given for the purpose of wakf, it becomes inalienable, that is, it cannot be further sold, leased, or mortgaged. The property thereafter vests with god or allah.

PERMANENT DEDICATION OF THE PROPERTY

The most important essential of a valid wakf is that it should be a permanent dedication of the property. It has the following prerequisites:

There must be a dedication,

The dedication must be permanent and

The dedication must be of any property.

If the wakf is made for a limited period, it cannot be considered as a valid wakf.

COMPETENCE OF WAKIF

Wakif must be a Muslim

He must be of a sound mind, meaning he should be able to understand the repercussions of his act.

He should be a major (18 years or above) as per the Indian Majority Act, 1875.

The subject matter of wakf should be owned by the wakif at the same time when wakf is being constituted.

WAKIF MUST BE THE OWNER OF THE PROPERTY

Wakif must be the owner of the property; thereby, the property must belong to the dedicator completely.

A leased or any mortgaged property cannot be given for the purpose of wakf.

However, an anticipated property can be allowed for the purpose of wakf, provided the sale of the property is eventually completed.

WAKF UNDER SHIA LAW

The essential conditions for creating a valid wakf according to Shia law are:

1. It must be perpetual,

2. It must be absolute and unconditional,

3. Possession of the thing appropriated must be given and

4. The wakf property should be entirely taken out of wakif.

DOCTRINE OF CYPRESS

The word cypress means ‘as nearly as possible.’

The doctrine of cypress is a principle of the English law of trusts. Under this doctrine, a trust is executed, or carried out as nearly as possible, according to the objects laid down in it.

Where a settlor has specified any lawful object that has already been completed or the object cannot be executed further, the trust is not allowed to fail. In such cases, the doctrine of cypress is applied, and the income of the property is utilised for such objects that are as nearly as possible to the object already given.

The doctrine of cypress is also applicable to wakfs. Where it is not possible to continue any wakf because of

Lapse of time,

Changed circumstances,

Some legal difficulty or

Where the specified object has already been completed

The wakf may be allowed to continue further by applying the doctrine of cypress.

MODES OF CREATION OF WAKF

Wakf can be created in the following ways:

INTER-VIVOS

This type of wakf is created between living persons, constituted during the lifetime of the wakif, and takes effect from that very moment. Hanafi law provides the creation of a wakf through unilateral declaration.

REVOCATION:

A wakf created inter-vivos cannot be revoked.

BY WILL

A wakf created by will is contradictory to a wakf created by an act inter-vivos.

It takes effect after the death of the wakif and is also known as ‘testamentary waqf’.

Such a wakf cannot operate upon more than one-third of the net assets without the consent of the heirs.

REVOCATION:

A testamentary wakf can be revoked by the testator at any time before his death.

DURING DEATH OR ILLNESS (MARZ-UL-MAUT)

Similar to gifts made while the donor is on the deathbed, a wakf created under these circumstances can apply to up to one-third of the property without the consent of the heirs.

REVOCATION:

A wakf created during illness can be revoked only in the circumstance where the wakif recovers from the illness.

COMPLETION OF WAKF

A wakf can be completed by the following modes:

1. Where a third person is appointed as the first Mutawalli. In such a case, the wakf gets completed only when the possession of the endowed property is delivered to the appointed Mutawalli.

2. Where the founder appoints himself as the first Mutawalli. In this case, there is no need for either the physical transfer of the property or the transfer of property from the name of the owner to the name of the Mutawalli.

KINDS OF WAKF

There are broadly two kinds of wakf:

PUBLIC WAKF

It is created for the public, religious, or charitable purposes. The end benefit goes directly to the people at large, and the descendants and children of the wakif cannot take its benefit.

PRIVATE WAKF

This type of wakf is created for the settler’s own family and his descendants and is also known as ‘wakf-alal-Aulad’.

It is a kind of family settlement in the form of a wakf.

In the words of the Prophet, “the most excellent sadaqua that a man can bestow upon his family is wakf-alal -aulad”.

Till the heirs are alive, the property remains with them. On extinction of the family, the residue goes to the poor; that is, the ultimate benefit goes to charity.

KINDS OF WAKF FROM THE VIEW OF THEIR PURPOSE

WAKF AHLI

A Wakf Ahli is a type of waqf (Islamic trust) where a person donates property not to the public, but for the support of their own family (like children, grandchildren, etc.). and after them to the poor.

WAKF KHAYRI

This kind of wakf is established for charitable and philanthropic purposes. The beneficiaries in such a kind of wakf may include people belonging to the upper economic sections of 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.

WAKF AL-SABIL

The beneficiaries of such a wakf are the general public. Although similar to wakf Khyari, this type of wakf is generally used for the establishment and construction of public utilities (mosques, power plants, water supplies, graveyards, schools, etc.).

WAKF AL-AWARIDH

In such a kind of wakf, 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, wakf may be assigned to cater to the specific needs of society, like providing medication to sick people who cannot afford expensive medicines.

Wakf al-awaridh may also be used to finance the maintenance of the utility services of a particular village or a neighbourhood.

ADMINISTRATION OF WAKF

MUSSALMAN WAKF VALIDATING ACT, 1913

This Act of 1913 legalised and recognised wakf-alal-aulad. The objective of the Act was to declare the rights of Muslims to make settlements of their property in favour of their family, children, or descendants. Furthermore, the term ‘family’ has been given a wider interpretation and also includes daughter-in-laws or other people connected with the other Muslim family members.

As per Section 3 of the Act, wakf-alal-aulad would be deemed to be a wakf for religious purposes. However, the ultimate benefit is to expressly or impliedly help the poor, give the usufruct in charity, or fulfil the pious or religious obligations.

Hanafis can create a wakf for their own maintenance or support during their lifetime or for payment of debt out of such property, of which the wakf has been created.

WAKF ACT, 1995

The Act provides for the constitution and establishment of a Central Wakf Council (under Section 9) and the State Wakf Board (under Section 14).

CENTRAL WAKF COUNCIL

The Central Wakf Council is established by the Central Government. The main role of a Central Wakf Council is to advise the wakf boards of the States and take care of the administration of the waqf. The council consists of:

EX-OFFICIO CHAIRPERSON

The Union Minister responsible for waqf is the ex-officio chairperson of the Central Wakf Council.

STATE WAKF BOARD

The State Wakf Board and its members are appointed by the State Government

WAKF TRIBUNAL

Section 83 of the Wakf Act, 1995, provides for the constitution of the wakf tribunals.

MUTAWALLI

A Mutawalli is the manager or trustee of a waqf (Islamic endowment).

He or she does not own the waqf property — their job is to administer, maintain, and use it according to the purpose of the waqf.

KEY RESPONSIBILITIES OF A MUTAWALLI:

Manage the property (rent it, maintain it, collect income)

Distribute the benefits (to family, poor, or charitable cause — as defined in the waqf)

Keep proper records (accounts of income and expenses)

Protect the waqf property (from misuse, damage, or illegal sale)

IMPORTANT NOTES:

The Mutawalli is not the owner

The founder of the waqf (waqif) can:

Appoint themselves as the first Mutawalli

Appoint someone else

Lay down a succession plan for future Mutawallis

WHO CAN BE A MUTAWALLI?

Any adult Muslim of sound mind

Must be trustworthy and capable of managing property

Can also be a woman, a non-Muslim (in some views), or a minor (with a guardian)

WAKF (AMENDMENT) BILL, 2024

As per the ruling government, the proposed amendments by the Wakf (Amendment) Bill, 2024, to the Wakf Act, 1995 are done with an aim to address the gaps in the Wakf Act, 1995, and to prevent the alleged capture of the wakf boards, which, as per the reports referred to by the government, come across as being controlled by the mafias in some places.

One discernible amendment proposed is to rename Wakf as “Unified Waqf Management Empowerment Efficiency Development” or “UMEED”.

The acronym UMEED is symbolic of the government’s intention to reform the system for better justice and welfare for the Muslim community.

The Bill’s Statement of Objects and Reasons puts forth that despite amendments made in the year 2013, the Wakf Act, 1995, has not significantly improved the management of Wakf properties.

The proposed changes are based on the recommendations from the Sachar Committee, the Joint Parliamentary Committee on wakf, and the Central Wakf Council.

KEY AMENDMENTS PROPOSED BY THE WAKF (AMENDMENT) BILL, 2024

ALTERATIONS IN THE DEFINITIONS

1. The term “Wakf” under Section 3(r) is re-defined to mean the permanent dedication of property, whether movable or immovable, by any individual who has practised Islam for at least five years and owns the property for purposes recognized by Muslim law as pious, religious, or charitable.

2. The concept of Wakf-alal-aulad under Section 3(r)(iv) is clarified,

Stating that if the line of succession ends, the waqf’s income should be directed towards education, development, and welfare, including the maintenance of widows, divorced women, and orphans as prescribed by the Central Government, along with other purposes recognized by Muslim law.

3. Section 3(da) has introduced the role of a collector, who will assume some of the powers previously held by the Auqaf Board.

NEW PROVISIONS ADDED FOR REGULATING THE WAKF PROPERTIES

SECTION 3A

Section 3A sets out two conditions for creating a wakf.

Only individuals who are lawful owners of the property and have the competence to transfer or dedicate the property shall establish a wakf.

The creation of wakf-alal-aulad shall not infringe upon the inheritance rights of heirs, including female heirs.

SECTION 3B

Section 3B mandates that the details of all the wakfs that were registered before the Wakf (Amendment) Act, 2024, must be submitted on an online portal and database within a period of 6 months.

This includes details like the name and address of the wakif, the wakf deed, annual income from the properties, pending court cases, mutawalli’s salary, taxes, and other information prescribed by the Central Government.

SECTION 3C

Section 3C specifies that any government property, whether identified or declared as wakf before or after the amendment, will not automatically be considered wakf property.

In the event of a dispute regarding the ownership of such property, a collector will conduct an inquiry and report to the state government. The property will remain unclassified as wakf until the report is submitted.

SURVEY COMMISSIONER’S ROLE TRANSFERRED TO COLLECTOR

SECTION 4

The Wakf Act, 1995, requires the state government to appoint a survey commissioner to conduct a survey of auqaf.

The proposed amendment replaces this role with that of the Collector, who will now oversee jurisdiction.

Further, the classification of wakf has been broadened to include ‘Aghakhani waqf’ or ‘Bohra waqf’ in addition to Shia or Sunni waqf.

SECTION 5

Section 5 provides for the publication of a list of auqaf.

The report prepared by the Survey Commissioner under Section 4 of the Act is examined by the wakf board, and within 6 months, the wakf board forwards the report to the state government for publication, and accordingly, the revenue authorities update the land records.

Now, as per the proposed amendment, prior to updating land records to include waqf properties, revenue authorities must issue a 90-day public notice in two daily newspapers, with one notice in a regional language, to ensure affected parties have the opportunity to raise objections.

LEGAL DISPUTES AND CHALLENGES

As per Section 6 of the Wakf Act, 1995, the disputes over whether a property listed as a wakf is indeed a wakf or not and whether it is Shia or Sunni wakf are resolved by a Tribunal, whose decision is final.

The proposed amendments allow for the Tribunal’s decisions to be challenged within two years of the list’s publication. An application can even be filed after the two-year period if a valid reason for the delay is provided.

Section 40 of the Wakf Act, 1995, which allows the Board to gather information about any property suspected to be waqf, is proposed to be removed.

CHANGE IN CONSTITUTION OF WAKF COUNCIL AND AUQAF BOARD

The composition of the Central Wakf Council as provided under Section 9 has been left mostly unchanged, but it has proposed two requirements:

Inclusion of two non-Muslim members and

Inclusion of two women members among those appointed by the Central Government.

The composition of the Board of Auqaf under Section 14 of the Wakf Act, 1995, is proposed to be revised to include:

Two non-Muslim members

Two women members

At least one representative each from Shia, Sunni, and other backward classes within Muslim communities.

A member from the Bohra or Aghakhani communities shall also be nominated if they have functional auqaf in the state.

REGISTRATION AND AUDIT OF WAKF PROPERTIES

As per the proposed changes under Section 36, no waqf shall be established without an official waqf deed.

The registration process, previously regulated by the Auqaf Board, will now be handled via an online portal.

The collector must verify the legitimacy of the application, and if the property is disputed or government-owned, registration will be suspended until a court resolves the dispute.

As per proposed changes under Section 47, the audit process will be modified and will require that the auditors appointed by the Auqaf Board should be selected from a panel prepared by the State Government.

CRITICISMS OF THE BILL

The proposed bill has sparked significant debate, raising several concerns that highlight the potential flaws. Some of them are mentioned below:

VIOLATION OF CONSTITUTIONAL RIGHTS

Several opposition members have criticised the bill as undermining the secular fabric of the Constitution.

It was argued that the bill violates Articles 25 and 26 of the Indian Constitution, which protect religious freedom and the right of religious communities to manage their own affairs.

It was pointed out that the inclusion of non-Muslim members in the Wakf Council and Auqaf Board comprises religious autonomy.

Further, it was claimed by the opposition members in the Parliament that the bill violates Article 30, which grants minorities the right to manage their institutions.

FEDERALISM AND STATE RIGHTS

It was argued by the opposition that the bill encroaches upon the rights of state governments, as the management of wakf properties falls under the State List in the Constitution.

The central government lacks the authority to make rules for wakf properties, which should remain under state jurisdiction.

Another point of criticism was with regard to the fact that managing wakf properties is an essential religious practice for Muslims. Any interference by the state could lead to religious discrimination, thereby violating Articles 14 and 15(1), which protect the right to equality and prohibit discrimination.

LACK OF CONSULTATION

Another point of criticism concerns the fact that the bill has been introduced without adequate consultation with stakeholders.

The provision allowing the decisions of Wakf Tribunals to be appealed undermines cooperative federalism by giving the Central Government more regulatory control over wakf.

The points of criticism were countered by the government by citing the Wakf Inquiry Report, 1976, which puts forth the significant mismanagement of wakf properties by Mutawallis, resulting in unequal distribution of benefits.

The report has recommended abolishing Wakf Tribunals due to their ineffectiveness.