Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

FAMILY LAW

Final Draft
On
The Concept of Waqf in the Indian Muslim law.

Submitted to Submitted by

2019

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Introduction
In the language of law, waqf means detention of a property for religious or charitable
purposes. Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the
ownership of dedicated property is taken away from the person making waqf and transferred
and detained by God. When Muslim a person who is working for charitable purpose under
religious faith and sentiments and for the benefit and upliftment of the society, has donate his
property in the name of Allah is called waqf.
When a waqf is created, the property is detained or, is ‘tied up’ forever and thereafter
becomes non-transferable. Waqf is binding and enforceable by law, it has legal consequences
which are dealt in this project. The law of waqf is “the most important branch of
Mohammedan Law for it is interwoven with the entire religious life and social economy of
Muslims.
In India, the management of Waqf is undertaken by the Central Waqf Council, India, a
statutory body under Government of India, which also oversees State Waqf Boards. In turn
the State Waqf Boards work towards management, regulation and protect the Waqf properties
by constituting District Waqf Committees, Mandal Waqf Committees and Committees for the
individual Waqf Institutions.
As per Waqf Act 1954 (later Waqf Act 1993) enacted by Government of India, Waqfs are
categorized as
1. Waqf by user such as Graveyards, Musafir Khanas (Sarai) and Chowltries etc.,
2. Waqf under Mashrutul-khidmat (ServiceInam)such as Khazi service, Nirkhiservice,
Pesh Imam service and Khateeb service etc.,
3. Waqf Alal-aulad is dedicated by the Donor (Waqif) for the benefit of their kith and
kin and for any purpose recognised by Muslim law as pious, religious or charitable.
It is observed in M Kazim v. A Asghar Ali that technically, it means a dedication of some
specific property for a pious purpose or secession of pious purposes.
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.”
In legal fiction, waqf is a property of God

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Essential conditions for valid waqf
1. Permanent Dedication:
The dedication of waqf property must be permanent and Waqif himself must divot of
such property and gave it for any purpose recognized by Muslim law, like religious,
pious or charitable. A waqf made for a limited period or one with an attached
contingency is an invalid waqf. In Karnataka board of waqfs v. Mohd. Nazeer
Ahmad1, the dedication of house by a Muslim for use of all travellers irrespective of
religion and status was held not to be a Waqf on the ground that under Muslim law a
Waqf should have a religious motive and it should be only for benefit of Muslim
community, and if it is secular in character, the charity should be to the poor alone.
When a Waqf is constituted, it is presumed that a gift of some property has been made
in favour of God.
2. Competency of the Waqf:
The person who constitutes the waqf of his properties is called the ‘founder of waqf
or, Waqif. For being a competent Waqif a person must possess the capacity, as well as
the right to constitute the waqf.
As regards capacity of a Muslim for making a waqf, there are only two requirements:
(i) soundness of mind and, (ii) majority.
Waqf by Non-Muslims- The dedicator must profess Islam i.e., believes in the
principles of Islam’, he need not be a Muslim by religion. The Madras and Nagpur
High Courts have held that a non-Muslim can also create a valid waqf provided the
object of waqf is not against the principles of Islam. Patna High Court has also held
that a valid waqf may be constituted by a non- Muslim. However, according to Patna
High Court a non-Muslim waqf may constitute only a public waqf; a non-Muslim
cannot create any private waqf.
3. Right of make Waqf:
A person having the capacity but no right cannot constitute a valid 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 or not. A widow cannot
constitute any waqf of the property which she holds in lieu of her unpaid dower
because she is not an absolute owner of that property. Where the waqif is, a
pardanashin lady, the beneficiaries and the mutawalli have to prove that she had

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Karnataka board of waqfs v. Mohd. Nazeer Ahmad AIR 1982 Kant 309

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 exercised her independent mind in constituting the waqf and had fully understood the
nature of the transaction.
Amount of property: a person can dedicate entire property but in case of testamentary
waqf more than one third of his property cannot be dedicated.
Creation of Waqf
Muslim law does not prescribe any specific way of creating a Waqf. If the essential elements
as described above are fulfilled, a Waqf is created. Though it can be said that a Waqf is
usually created in the following ways
1. By an act of a living person (inter vivos)
It is when a person declares his dedication of his property for Waqf. This can also be
done while the person is on death bed (marj ul maut), in which case, he cannot
dedicate more than 1/3 of his property for Waqf.
2. By will
When a person leaves a will in which he dedicates his property after his death. Earlier
it was thought that Shia cannot create Waqf by will but now it has been approved.
3. By Usage
When a property has been in use for charitable or religious purpose for time
immemorial, it is deemed to belong to Waqf. No declaration is necessary and Waqf is
inferred.

Legal Consequences of Waqf

Once a waqf is complete, the following are the consequences
1. Dedication to God
The property vests in God in the sense that nobody can claim ownership of it. In Md.
Ismail v. Thakur Sabir Ali2, SC held that even in waqf alal aulad, the property is
dedicated to God and only the usufructs are used by the descendants.
2. Irrevocable
In India, a waqf once declared and complete, cannot be revoked. The waqif cannot get
his property back in his name or in any other’s name.
3. Permanent or Perpetual
Perpetuality is an essential element of waqf. Once the property is given to waqf, it
remains for the waqf for ever. Waqf cannot be of specified time duration. In Mst

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Md. Ismail v. Thakur Sabir Ali 1963 SCR (1) 20

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 Peeran v. Hafiz Mohammad3, it was held by Allahabad HC that the waqf of a house
built on a land leased for a fixed term was invalid.
4. Inalienable
Since Waqf property belongs to God, no human being can alienate it for himself or
any other person. It cannot be sold or given away to anybody.
5. Pious or charitable use
The usufructs of the waqf property can only be used for pious and charitable purpose.
It can also be used for descendants in case of a private waqf.
6. Extinction of the right of waqif
The waqif loses all rights, even to the usufructs, of the property. He cannot claim any
benefits from that property.
7. Power of court’s inspection
The courts have the power to inspect the functioning or management of the waqf
property. Misuse of the property of usufructs is a criminal offence as per Waqf
Act.1995.

Mutawalli
Mutawalli is the manager of a waqf, he is a superintendent whose job is the see that the
usufructs of the property are being utilized for valid purpose as desired by the waqif. In
Ahmad Arif v. Wealth Tax Commissioner4, SC held that a mutawalli has no power to sell,
mortgage, or lease waqf property without prior permission of the court or unless that power is
explicitly provided to the mutawalli in waqfnama.
Who can be a mutawalli – A person who is a major, of sound mind, and who is capable of
performing the functions of the waqf as desired by the waqif can be appointed as a mutawalli.
A male or female of any religion can be appointed. If religious duties are a part of the waqf,
then a female or a non-muslim cannot be appointed. In Shahar Banoo v. Aga Mahomed Jaffer
Bindaneem 5, Privy Council held that there is no legal restriction on a woman becoming a
mutawalli if the duties of the waqf do not involve religious activities.
Who can appoint a mutawalli – Generally, the waqif appoints a mutawalli. He can also
appoint himself as a mutawalli. If a waqf is created without appointing a mutawalli, in India,
the waqf is considered valid and the waqif becomes the first mutawalli in Sunni law but

3
Mst Peeran v. Hafiz Mohammad AIR 1966 All 201
4
Ahmad Arif v. Wealth Tax Commissioner 1970 SCR (2) 19
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Shahar Banoo vs Aga Mahomed Jaffer Bindaneem (1907) 9 BOMLR 85

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according to Shia law, even though the waqf remains valid, it has to be administered by the
beneficiaries.
Guljar Baba Khan & Anr. v. M/s. Sumer Builders & Ors.6; Hon'ble Court issued order or
direction under Article 226 of the Constitution of India, and further directed upon the
Trustees of S.M Munnee Waqf, A.U Botawala Trust and Sumer Builders to produce original
copies of various Agreements, Indentures and Power of Attorney executed between Sumer
Builders and Trustees viz. Agreement dated 10.9.1991, 16.9.1991 and from Exhibits- “J” to
“Z” annexed to this Petition, and after verifying, perusing and going into the propriety and
legality of the same be pleased to declare that all these documents are nominal, hollow and
bogus and not binding on the Petitioners, the entity of Waqf and its beneficiaries.

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Guljar Baba Khan & Anr. v. M/s. Sumer Builders & Ors. 2015 Bom 985

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Conclusion
Waqf is a detention which is permanent and binding and enforceable by law, also, any person
interested may seek remedy in civil court. Office of mutawalli is very important in waqf,
power can be exercised when there is clear vacancy of mutawalliship or there is dispute as to
competence or eligibility of existing mutawalli. A Muslim waqf is distinguished from an
English trust or a Hindu endowment of dharma.