Definition of Waqf
Section 2(1) the Musslaman Waqf Validating Act, 1913, defines waqf as under:
“Waqf means the permanent dedication, by a persons protesting mussalman faith, of any property for any purpose recognized by the mussalman law as religious, pious or charitable.”
The Muslim jurists have also defined waqf almost in the same world. Abu Yusuf and Imam Muhammad defined waqf in the following words:
Waqf is permanent dedication of specific things in the implied ownership of god whence the appropriations rights s extinguished and it become the property of god for the advantage of this creature. According to his jurists, Waqf is a religions Act the effect of which is to tie up the corpus or substance of things and to leave its usufruct free.
Kinds of waqf
Broadly, waqfs are of two kinds: public and private. But the most accepted is its three fold classification i. public ii. queasy public and private.
i. Public waqfs
Those which are dedicated to the public at large having no restriction of any kind regarding its use: for example, constructing wells, roads, etc.
ii. Quays public waqfs
Those which are partly public and partly to private for the benefit of a particular individual or class of individuals which may be the settlors family.
iii. Private waqfs
Those which are for the benefit of private individuals including the settlers family or relation. Such a waqf is termed as waqf alat aulad.
Characteristic of waqf
i. Perpetuity-In a waqf the property is settled permanently so that its retract is always available for an identifies period. There can not be waqf for a limited period.
ii. Non transferability-When a waqf is created, the property vested in the implied ownership of god. The result is that its property becomes non transferable. Even according to Abu Hanifa, who holds that property does not vest in god, the founder has no right to transfer the waqf property.
iii. Irrevocability -Once it is created, the waqf can not be revoked. As the property is deemed to vest in god, the waqf can not revoke it subsequently.
iv. Absoluteness -The settlement of the property in waqf is unconditional and absolute. A conditional on contingent waqf is void.
v. Religions or charitable use of usufruct -The produce and benefits of the waqf property are utilized only for such purposes which are recognized as religions, pious or charitable under Muslim law.
Essentials of a valid Waqf
The essentials o a valid waqf may be briefly summarized as follows
- There must be clear intention on the part of waqif to create the waqf.
- Waqif must declare his intention either orally or is writing.
- Waqif must be the owner of the property to be dedicated as waqf.
- The waqf must be perpetual; although no express mention of perpetuity waqf is essential and it is presume a nevertheless it waqfnama says that the waqf is for, say, 50 years, it is invalid.
- The objects of waqf should not be in conflict with the Islamic principles.
- The waqf must be of sound mind and major and a Muslim, However waqfs by non Muslims are recognized under certain conditions.
- Waqf must not be contingent or conditional.
Who can make a waqf
The person who constitutes the waqf of his properties is called the founder of waqf or waqf. The waqf must be a competent persons at the time of dedicating the property in waqf for being a competent waqf a person must possess the capacity as well as the rights to constitute the waqf.
a. Capacity to make waqf:
Every Muslim who is of sound mind and has attained the age of majority, has capacity to constitute a waqf.
In other words a regards capacity of a Muslim for making a waqf the are only tow requirements.
- Soundness of mind and
- majority
A person of unsound mind has no capacity to create any waqf because he or she is incapable of knowing the legal consequences of the transactions. Waqf constituted by an insane prison is void. The waqif must also be adult. For the purpose of making waqfs the age of majority is eighteen years (on twenty one years it the mains is under supervision of courts of wards). Thus, a person below the age of eighteen years on twenty are years as the every may be is a minor and has no capacity to constitute any waqf. Waqfs constituted by minors are void ab initio and can not be validated by any subsequent notification. They guardian of a minor can not make any waqf on behalf on the minor. Waqfs constituted by guardian’s ob behalf of minor are void ab initio.
Capacity alone is not sufficient. The waqif must also possess the right to make the waqf when a waqf is constituted there a permanent transfer of ownership of the prosperity. Therefore the settler must be owner of the property dedicated. If the subject matter of a waqf is not owned by the settler at the time when the waqf is made, the settler has no right to make waqf. A person having the capacity but so right, can not constitute a valid waqf. For example a Muslim of sound mind and having attained the age of majority can not dedicated the properties owned by other. It is therefore necessary that absolute interest in the dedicated property must be vested in the waqf. Whether a person has right to constitute a waqf or not depends on the fact whether the dedicator has a legal right to transfer the ownership of the property on not. A person, who was actually the owner of the a property but was under a wrong impression that we was only its mutually. It was held by the court that he had the right to constitute a waqf at that property. A lessee or a tenant has no right to make any waqf on the property under his possession because, he has no ownership, similarly a usufructrary mortgage has no right to constitute any waqf of the property in his no right to constitute any waqf of the property in his possession because he has no dominion over that property. In brief, the dedication must have the title or absolute interest in the subject matter at the time of making of waqf. A widow can not constitute any waqf of the property which she holds in lieu of her unpaid down of the property. Consent of waqf must be free. The waqf must apply his independent mind in dedicating a property.
That is to say, the waqf must have been made with free consent6 of its founder. Where it is proved that waqf was constituted under compulsion, under influence, coercion, force etc. The waqf is void.
Amount of property dedicated
A dedication is entitled to constitute a waqf of his entire properties without leaving anything for his heir. But is the case of a testamentary waqf the founder has no right to constitute a waqf of more than one third of his properties. In other records, in the case of inter vivo waqfs the founder is competent to constitute a waqf of his entire properties whereas in respect of testamentary waqf the founder has no right to constitute waqf of more than one their of his properties without consent of this legal heir.
Subject of waqf
The subject of waqf under waqf Act may be “any properties”. A valid waqf may, there fore, be made only of immovable property, but also of movables, such as shares in joint stock companies government promissory notes and even money.
The property dedicated by way of waqf must belong to the waqif (dedicator) at the time of dedication. A periods who is in fact the owner of the property but is under the benefit that he is only a mutawalli there of is competent to make a valid waqf of the prosperity to make a valued waqf of the property. What is to be seen in such cases is whether or not that person had a power of disposition over the property.
Objects of waqf
The purpose for which waqf may be created must be one recognized by the Mohammedan law as “religious, pious on charitable” (Musslaman Waqf Validating Act, 1913, Sec. 2 (1)]. A waqf may also be created in favor of the settlior’s family, children and descendants(Musslaman Waqf Validating Act, 1913, Sec.3)[11]
The following are valid objects of a waqf
- Mosques and provision for imams to conduct worship therein.
- College and provision for professors to teach in colleges.
- Aqueducts bridges and caravanserais.
- Distribution of alms to poor persons, and assistance to the poor to enable them to perform the pilgrimage to macca.
- Celebrating the birth of Ali murtza
- Keeping tazias in month muharram and provision for camels and dulled for religions procession during Muaharram.
- Repairs of imambarars.
- The maintenance of a khankah
- Burning lamps in a mosque
- Maintenance of poor relations and dependents
Doctrine of Cypress
Cypress literally means “as nearly as possible” this term is essentially applicable to trusts and in its technical sense means the it the wishes of the author of a thrust can not be carried out literally, they will be carried out as nearly as possible in the way desired by he author.
The above doctrine is applicable to waqfs also. Thus it from change of circumstances and lapse of time or for some others proper reasons, it has become impossible to apply the property of the waqf is the manner directed by the waqf, the court may apply for similar purposes by different means nearly as possible, to the original intentions of the guarantor or for the benefit of the poor by various means and it is also the power to very the scheme accordingly.
In Sulebhai v. Bai Safiabu,[13] their lordship held where the testator has indicated a general charitable intention in the bequest made by him, and it these bequests fail, the court can devote the property to religions charitable purposes, according to the cypress doctrine.
In Kulsoom Bibee v. Chaulam Hussain,[14] it was held that where the clear intention is expressed in the instrument of waqf, it will not be permitted to fail become the objects, it specified, happen to fail, but the income will be applied for the benefits of the poor or as near as possible to the objects which failed.
Contingent or conditional Waqf
When the creation and validity of a waqf are subjected a contingency, It becomes void. For example, if the waqf is made Contingent on the death of a person without leaving children, it will be void. similarly if a Mohammedan lady creates a waqf for herself and her children, and provides that the children should take possession of property on attaining majority and the event of her death without leave children, the waqf income should be devoted to certain religious usages, it was held that the waqf was void, it is depend upon a contingency, namely, the event of her death without leaving children. The waqf should also not be conditional. Thus, if a condition is imposed that when the property dedicated ins mismanaged, it should be divided among the heirs of the waqif, or that the waqif has a right to revoke the waqf in future, such waqfs would be invalid. But a direction to pay debts, or to pay for improving, repairing and or expanding the waqf property or conditions relating to the appointment of mutawalli, etc. Would not invalidate the waqf.
When a waqf is created, all rights in the property vest in the Almightily. The mutually is the person who has the right to administer the waqf property. The property of the waqf does not vest in the mutually, as it does in a trustee. He is merely entrusted with the fulfillment of the objects of the waqf and his liability is that of trustee. He is not bound to allow such use of the waqf property however laudable, as is not shown to have been one of the objects of the waqf.
Appointment of Mutawalli
The powers of appointment can be exercised only when there is no one appointed under the term of the deed of waqf and when the right of any peons to act as mutawalli is disputed, provided, of course, their is an existing vacancy in the office of the mutawalli of the waqf. Such appointment shall be made for such period and on such condition as the board may think fit, is indicative and suggestive of the fact that it is not a regular appointment of the muttawalii that is contaminated by section 42 of the waqf act. There is no provision in the waqf act for appointing a person as mutawalli under section 42 of the waqf act it there is a successor named in the waqf deed.
Who can appointed as Mutuwalli
A mutuwalli can be appointed by the following in the given order:
a. The waqif himself.
b. His exceutior
c. The mutuwalli
d. The Court
a. By the waqif himself: It is lawful for the waqif to reserve the mutuwalliship for himself. And where a waqf has been created, but the waqif has appointed on mutawalli for the administration of the waqf , nor has reserve the mutuwalliship for himself, the office would nevertheless appertain to him qua waqif. In Ali Azghar v. Farid Uddin, the waqif appointed himself as the first mutaualli and after his death Ali Asghar.
b. His executor: Should the waqif die without making any express appointment, the power of appoint a mutawalli devolves upon lies executor
c. By the mutawalli: A mutawalli can appoint his successor under very restricted conditions, which are as follows-
i. Waqif and his executor both dead
ii. Waqif deed is silent on the point of succession of mutawalliship
- There is no positive custom regarding such devolution.
iv. The waqf deed authorizes him to this effect.
d. By the court : It no such appointment is made the court may appoint a mutawalli. But court should select by preference a member of the founder family. It there by any fit persons possessing that qualification. If the members of the founders family is not a person possessing that qualification, the court may appoint a stranger, as happened in the case of Shabar Banoo v. Aga mahomed.
Powers and functions of Mutawalli
The mutawalli is manager of the waqf property. His primary duty is to preserve the property like this own, but to manage and spend it like a servant of God. As discussed earlier a mutawalli is not owner of the waqf property, the property vest in God, not in him. Although his functions are similar to that of a trustee under the Indian trust Act, 1882 yet, the not a trustee is its technical senses unlike a trustee, the property close not vest in mutawalli. The mutwalli simply holds the office as manager of the property. But, he is not allowed to manage the property at his own choice. He has to administer the property strictly according to the object and direction laid down by the founder. He has no right to spend the benefit of waqf for purposes which may be religious or charitable according to him but are not specified as objects or the waqf.
Power of mutawalli to sell or montage
A mutalwalli has no power, without the permission of the court, to mortgage, sell or exchange waqf property or any part there of unless he is expressly empowered by the deed of waqf to do so.[20]
Removal and new appointment of Mutawalli
If a mutawalli is incapable of carrying on the duties of a mutuawalli the court shall have the power of removing him on reasonable grounds. At the time of appointing a mutuwalli, however, the court as far as possible shall have to the wishes of the creator of waqf and shall appoint as for as possible, a suitable person as mutuwalli from the family of the waqif.
