Professional Documents
Culture Documents
Rising Community by Lifting Others
Rising Community by Lifting Others
Rising Community by Lifting Others
School of Law
Auro University
Auro University
RESEARCHERS
Anuja Shah
Ravi Shah
1
UNDERTAKING
ANUJA SHAH
RAVI SHAH
ACKNOWLEDGEMENT
Apart from the group Members, the success of our project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express
my gratitude to the people who have been instrumental in the successful
completion of the project. We would like to show our greatest appreciation to Prof.
Ankita Kumar Gupta
Thank you so much for the tremendous support and help you provided us for
carrying out a research project.The blessing, help and guidance given by you time
to time shall carry us a long way in the journey of life which we are about to
embark. Without their encouragement and guidance this project would have not
been materialized .
The guidance and support received from all the members who contributed to this
project, was vital for the success of the project. We are grateful for the constant
support and help.
CONTENT
Page No
1.1
1.2
1.3
1.4
1.5
2.
3.
4.
5.
Introduction.
General introduction to the topic..
Objectives of the Study.
Hypothesis of the Study............
Research Methodology.
OBJECTIVE
The doctrine of Wakf which is interwoven with the entire religious life and social economy of
Muslims has laid down the foundations of one of the most important institutions of the
community. In India alone there are more than a lakh wakfs valued at more than a hundred crore
of rupees. An extensive survey of wakf properties throughout the country is nearing completion.
The study is carried out with following objective
1)
2)
3)
4)
HYPOTHESIS
1.
2.
3.
4.
RESEARCH METHODOLOGY
Doctrinal research method is being proposed for framing this report .Legally Doctrinal Research
is concerned with legal prepositions and doctrines
The doctrinal research methodology developed intuitively within the common
law a research method at the core of practice.
METHOD OF DATA COLLECTION
a. In case of doctrinal research field work is not needed library is sufficient ,so we
went through Various Family law books, magazines bare-acts available in Law
library .
b. Use of Modern Technology/ Computer Assisted Research
c. All sources the data collected are legal and appelate court decisions .
d. Most focus is laid on sections case laws and documents rather than society and
people living in it.
INTRODUCTION
The term wakf as defined in clause (1) of Section 3 of the Wakf Act, 1954, means a
permanent dedication made by a person professing Islam of any movable or immovable property
for any purpose recognised by the Muslim Law as pious, religious or charitable and includes a
wakf by the user, mashru-ulkhidmat and wakf-alal-aulad to the extent the property is dedicated
for any of the purposes. For creation of wakf it is not necessary that the settler should be a
Muslim. Any non-Muslim can also create under the Muslim law a wakf provided the object of
the wakf is one which is recognised by Muslim Law as pious, religious or charitable and his own
religion treats the object in the same manner. The words 'professing Islam' in clause (1) of
Section 3 have been purposely retained for otherwise all charitable and many pious endowments
of other communities would have come within the purview of the Act because the purposes for
which they stand are also regarded as charitable or pious under the Muslim Law.
The Wakf (Amendment) Act, 1964, has amplified this definition by treating all
grants made for religious, pious and charitable purposes including mashru-ul-khidmat as wakf
and also as permanent dedications made for mosques, dargahs, imambaras, takias,
musafirkhanas, etc., by non-Muslims. Under the Muslim Law, these dedications were always
wakf but the definition contained in clause (1) Section 3 had excluded them from the purview of
the Act. In Kanti v. Mirza Hossani , it has been held that land used for Masjids and for the
Muharram festival from time immemorial is wakf and evidence of express dedication is not
necessary. When a long period has elapsed since the origin of the alleged wakf, the user can be
the only available evidence to show if the property is wakf or not. When there is no evidence to
show how and when the alleged wakf was created, the wakf may be established by the evidence
of a user.
The words professing Islam" are purposely kept here to exclude charitable and
pious endowments of other communities from the purview of the Act. However, Section 60-C of
the Act makes a special provision for the creation of Wakf by non-Muslims, provided the object
of the wakf does not carry the words of a person professing Islam.
The definition of a beneficiary as given in clause (a) of Section 3 of the Wakf Act,
1954, had unnecessarily restricted its scope. The beneficiary was defined as a person or object
for whose benefit a wakf is created and includes religious, pious and charitable objects and any
other objects of public utility established for the benefit of the Muslim community. The use of
the words objects of public utility established for the benefit of the Muslim community' was
wholly unnecessary for they are covered by the preceding clause and include religious, pious or
charitable objects. The addition of these words had made the definition of beneficiary
inconsistent with the definition of wakf in clause (1) which incorporated no such restrictions.
In Zain Yar Jung v. Director of Endowments , the Supreme Court held that
the objects of public utility which may constitute beneficiaries under the wakf must be objects
for the benefit of the Muslim community. There can be no doubt that the wakfs with which the
Act deals are trusts which are treated as wakfs under the definition of Section 3 (1) and as such, a
trust which does not satisfy the tests prescribed by the said definition would be outside the Act.
The same view was held by Madras High Court when it stated that a wakf, created as an object
of public utility is excluded from the operation of the Act if it does not benefit the Muslim
community exclusively.
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In the case of wakf made by a Shia Muslim delivery of possession is necessary as laid down in
Sec. 186 of the Mulla's Mohammedan Law. 16th Ed. at p. 180. The Privy Council also held in
Ali Zamin v. Akbar Ali Khar that under Shia law actual delivery of possession by or by direction
of the wakif is a condition precedent to the wakf having validity and effect.
2) Wakf must be irrevocable. : Once a valid Wakf is constituted, it cannot be revoked. When
the Wakf reserves to himself, the right of revoking the Wakf, such a Wakf would be void. The
Wakif as a human being cannot subsequently revoke it because this would amount to taking back
from God whatever is given to him. Any provision in the Wakf that founder may revoke it
whenever he likes, would be un-Islamic and also inconsistent with the very concept of Wakf
Therefore, it is presumed that once a Wakf always a Wakf
3)Wakf must be absolute and unconditional :It is impossible to contemplate property
transferred to Almighty God subject to a condition enforceable in the temporal courts for
recovering that property for the benefit of the settlor. Dedication to God cannot be permanent if
its existence depends on some condition.. Where the creation of Wakf itself is dependent on
some condition or contingency, the Wakf is void.
4) Wakf must be immediate and not contingent: A Wakf must take immediate effect
absolutely and for ever, except where the Wakf is created by Will. Law requires immediate
transfer of property and any effort to postpone the transfer of Wakf property would be void. A
Wakf cannot be deferred to a future date. It must not be contingent to some future date.
Therefore, if a person says that this property is a Wakf after my death, the Wakf would not be
valid on the ground that it would not cover the period from the declaration and his death. But a
testamentary Wakf comes into existence only after the death of the Wakif. If a Wakf is made on
the contingency of happening of an event, it would be valid. A Wakf would be invalid, if made
on the contingency that the property would be dedicated, if no children are born to the Wakf till
his death or he leaves children.
5)The Wakif must extinguish his ownership of the property:
6) Object must be Religious or charitable: The produce and benefits of the Wakf property are
utilised only for such purposes which are recognosed as religious, pious or charitable under
Muslim Law.
7) It should not be conditional The appropriation must not be suspended on anything and its
real test is to see whether the dedication was complete at once at the time. Thus, if a condition is
imposed that if the property is mismanaged, it should be divided among the heirs of the wakif or
that the property would be sold for wakifs necessities, the wakf would be invalid. If a right to
assume possession and divide the property according to ancestral shares is reserved in a family
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agreement even though some provisions are made for meeting the expense of a dargah, the wakf
would be invalid .
B. Wakf by non muslim: In Moti Shah v. Abdul Gafar Khan, it has been held that the object
for which dedication is made must be lawful according to the religion of the dedicator as well
as the Islamic doctrine. Whether a non-Muslim really believes in the Islamic doctrines, may
be evidenced from the object for which he constitutes the Wakf. If a non-Muslim constituted
any Wakf for a temple it is clear that he has no faith in Islam. It, therefore, says that a nonMuslim is also competent to make a Wakf provided its object is not un-Islamic.
C. The Wakif may be a male or female: A pardanashin lady may be a competent Wakf Such a
lady has right to make a Wakf of her properties provided she possesses the required capacity
and right. But where the Wakf is pardanashin lady, the beneficiaries and the Mutawalli have to
prove that she had exercised her independent mind in constituting the Wakf and had fully
understood the nature of the transaction.
D. The Wakif must be a major : The Wakf should be a major under section 3 the Indian
Majority Act, 1875. The age of majority under this Act is 18 years. Wakf cannot be created
by a guardian on behalf of the minor, such a Wakf is valid. So Wakf constituted by guardians
on behalf of minors are void ab initio.
E. The Wakif must be sound mind and free consent: The Wakf should have sound mind.
Similarly, a Wakf created under coercion or undue influence is not valid. The Wakf must apply
his independent mind in dedicating the property.
F. The Wakif must be of the owner of the property: It is necessary that the property being
given in Wakf should belong to Wakif at the time of declaration or deed as the case may be,
and if it is not so then the Wakf would be invalid. A Wakf of property which is in possession
of the Wakif as a usufructuary mortgagee is invalid. It is, therefore, the important thing is that
the Wakf must be a permanent dominion over the subject-matter of the Wakf.
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G. Good Manners: The Mutawalli should be pious who is honest, avoids major sins and has
good manners.
H. Efficiency: The Mutawalli should be able to handle the properties he looks after. He must be
observe that efficiency in managing the Wakf property is the important element to ensure the
Wakf property is not wasted. This is especially important under todays dynamic financial
system which requires lot of expertise ii managing funds. Mutawalli should be able to handle
the properties he looks after.
KINDS OF WAKF
Broadly speaking wakfs can be of two kinds: Public and private. But the most accepted is its
three-fold classification -- public, quasi-public and private.
Public trusts are those which are dedicated to the public at large having no restriction of any kind
regarding its use, e. g., bridge, well, road, etc.
Quasi-public wakfs are those, the primary object of which is partly to provide for the benefit of
particular individuals or class of individuals which may be the settler's family, and partly to
public, so they are partly public and partly private.
Private wakfs are those which provide benefit to private individuals, including the settler's family
or relations. Such a wakf is termed as wakf-alal-aulad. The Mutawalli manages the wakf but he
cannot alienate the property. He is, however, more than a manager or superintendent, as he does
not hang on the pleasure of anybody else or to anybody. Under Muslim Law a private wakf is
subject to the same restrictions as any public wakf as the Law makes no distinction between
public and private wakfs. Both are subject to the rules of divine property where the rights of the
wakf are extinguished and it becomes the property of God. Both the wakfs are created in
perpetuity and the properly becomes inalienable. Like public wakfs, a private wakf can under no
circumstances fail and when the line of descent becomes extinct, the entire corpus goes to
charity.
It may be clarified here that the term private is used to connote wakfs for private individuals. It
does not include wakfs which are of public nature, such as, a mosque. According to Muslim Law,
there is nothing like a "Private Mosque". A person can set apart an apartment for his own
prayers, but if he allows others to say their prayers in it, it assumes & public character. The test
whether a building is a mosque, it is enough to make it "wakf" provided that public prayers are
even once said with the permission of the settler.
In a recent case, Kassimiah Charities v. Secy. Madras State Wakf Board , the meaning of
wakf was taken as the detention of the corpus in the ownership of God in such a manner that its
profits may be applied for the benefits of His servants. The objects of dedication must be pious
or charitable. Hence, the three dominant characteristics of wakf' can be summarized as under:
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In the first instance, the motive must be religious; a merely secular motive would
render the dedication a gift or a trust, but not a wakf.
Secondly, it must be of a permanent nature. A pious gift which is not a permanent
foundation may be a Sadaqa but cannot, in law, be termed as a wakf.
And lastly, the usufruct is to be utilized for the good of mankind.
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5 Doctrine of Cypress :- Cypress literally means as nearly as possible. The doctrine is based
on the reason that rights and benefits of poor and needy should not be hampered only on
technicalities of law through which an object may fail. The only condition required is that the
Wakf is valid otherwise.
The doctrine of Cypress lays down that if the wishes of the Wakf cannot be carried out literally,
they will be carried out as nearly as possible in the way desired. Once it is clear that there is a
bonafide intention on the part of the Wakf to create a Wakf, and divest himself completely of the
property, there is good Wakf which will not be allowed to fail. A valid Wakf thus may be
constituted:
(i) Where the objects are not specified at all, or
(ii) Where the objects meets its goal, or
(iii) Where the object fails as being impracticable, or
(iv) Where the objects are partly valid and partly not valid.
In Salebhai Abdul Kader v. Bai Safiabu, the court held that where the particular object laid
down in a Wakf fails because of some reason, the Wakf would not come to an end. It would
continue and income of the property may be utilised for such other objects which are very
similar to the object laid down in the Wakf. Therefore, where it is not possible to use the
property exactly in the manner directed by the founder, the court may apply this doctrine and
direct a Cypress application of the income of Wakf property.
To maintain a record containing info relating to the origin , income , object and
beneficiaries of every wakf
To ensure that the income and other property of wakfs are applied to the objects and for
the purposes for which wakfs were created
To give direction for the administration of the wakfs
To settle schemes of management for the wakf
To direct the utilization of the surplus income of a wakf consistent with, In what manner
the income of wakf , the objects of which are not evident from any written instrument
shall be utilized
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In any case where the object of wakf has ceased to exist or has become incapable of
achievement that so much of the income of the wakf as was previously applied to that
object shall be applied to any other object , which shall be similar to the original object or
for the benefit of the poor or for the purpose of promotion of knowledge and learning in
Muslim community.
To scrutinize and approve the budgets submitted by the mutawallis and to arrange for the
auditing of accounts of wakfs
To take measures for recovery of any lost properties of any wakf
To institute and defend suits and proceedings relating to wakfs
To sanction any transfer of immovable property of the wakf by the way of sale , gift ,
mortgage ,exchange or lease
To administer the wakf fund
To inspect or cause inspection of wakf properties , accounts , records or deeds and
documents relating there to:
To investigate and determine the nature and the extent of wakf and wakf property ,and to
cause whenever necessary , a survey of such wakf property.
To call for such returns , statistics ,accounts and other information from the mutawallis
with respect to the wakf property as the board may , from time to time , require.
Where the board has settled any scheme of management under clause (d) or given any direction
under clause (e)of the subsection (2) , any person interested in the wakf or affected by such
settlement or direction may institute a suit in a suit in a tribunal for setting aside such settlement
or directions and the decisions of the tribunal thereon shall be final.
When the board is satisfied that any wakf land , which is a wakf property , offers a feasible
potential for development as a shopping centre market, housing flats,and the like , it may serve
upon the mutawalli of the concerned wakf a notice requiring him within such time , but not less
than sixty days , as may be specified in the notice , to convey its decision whether he is willing to
execute the development works specified in the notice.
On the consideration of the reply , if any ,received to the notice issued under sub section (4), the
board if it is satisfied that the mutawalli is the notice willing or is not capable of executing the
works required to be executed in terms of the notice , it may , with the prior approval of the
government , take over the property , clear it ,of a building or the structure thereon , which in the
opinion of the board is necessary for the execution of works and execute such works from the
wakf fund or from the finances which may be raised on the security of the properties of the wakf
concerned ,and control and manage the properties till such time as all expenses incurred by the
board under this section, together with the interest thereon ,the expenditure on maintenance of
such works and other legitimate changes incurred on the property an recovered from income
derived from the property.
In India there 27places have their own wakf boards possessing different powers and functions.
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TESTING OF HYPOTHESIS
1. Yes , a non-muslin can create wakf under a muslim law.
2. No, Once a valid Wakf is constituted, it cannot be revoked. When the Wakf reserves to
himself, the right of revoking the Wakf, such a Wakf would be void
3. Yes , A pardanashin lady may be a competent Wakf Such a lady has right to make a Wakf
of her properties provided she possesses the required capacity and right.
4. Yes , immovable property is a subject matter of wakf. It includes land, fields, garden and
also the buildings and trees standing on the land.
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CONCLUSION
Critically examining of this project will clearly highlight certain aspects about the institution of
wakf, in the present times. The foremost of these aspects is that wakf is only for religious
purpose and is permanent in nature, it cannot be a temporary institute. Also any gain derived out
of a wakf has to be use for the benefit of the mankind.
It can be unhesitatingly said that the enactment of the Wakf Act. 1954, made a landmark in the
history of wakf administration in India. By constituting unofficial Boards vested with
considerable authority and powers, by imposing a precise obligation upon mutawallis and
making their violation a penal offence, by associating the State Governments in the supervisory
responsibility and by conferring authority on the Central Government to lay down the policies to
be adopted by the Boards, the Act has laid down a sound administrative structure to ensure
proper administration of wakfs in the country. Whatever lacunae or weaknesses existed in the
Act have been removed by the Wakf (Amendment) Act, 1964 and the Act as amended is a very
sound piece of legislation.
Considering their number and resources, wakf can become a strong instrument not only for the
preservation of religious and charitable institutions, but also for the educational and economic
development of the community. Wakfs constitute a national asset for a very large number of
these support schools, colleges, technical institute, libraries, reading-rooms, charitable
dispensaries and Musafirkhanas, etc., which benefit the public irrespective of their religion or
creed. It is of utmost importance, therefore, that wakfs should be maintained properly and their
resources should be utilised for the objects and the purposes of dedications.
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RECOMMENDATIONS / SUGGESTIONS
a.
b.
c.
d.
e.
f.
g.
h.
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