Family Law Project

Wakf – a critical study

Project
Submitted To
Tamil Nadu National Law School
Tiruchirappalli
In fulfillment of the internal components
In
Family Law - I
By
Shobhit Agrawal
Reg No: BA0130055

DECLARATION

1
I do hereby declare that the project research entitled “Wakf”
submitted to the Tamil Nadu National Law School in fulfilment
of the requirement of the internal component is a record of the
original work done by me under the supervision and guidance
of Prof. Sanitta and that the project submitted has not been
formed on the basis of any other project submitted by any
other university or college.

Place: Tiruchirappali
Date:

CERTIFICATE

2
This is to certify that the project entitled “Wakf” submitted to
the Tamil Nadu National Law School in fulfilment of the internal
component done by Shobhit Agrawal under the supervision of
Prof. Sanitta.

Place: Tiruchirappali
Date:

Acknowledgement

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I would like to thank my family law teacher Prof. Sanitta for
giving me this topic and guiding me throughout the project.
Through this research project I have learned a lot about the
aforesaid topic and this in turn has helped me grow as a
student.

My heartfelt gratitude also goes out to the staff and

administration of TNNLS for the infrastructure in the form of
the library that was a source of great help in the completion of
this project.

I also thank my friends for their precious inputs which have

been very helpful in the completion of this project.

Contents

 Introduction………………………………………………………………………….5
 Origin History and Development……………………………………………………6
 Wakf- Meaning………………………………………………………………………7

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 Essential Requisites of a Wakf……………………………………………………….9
 Kinds of Wakf………………………………………………………………………..11
 Creation of Wakf……………………………………………………………………..12
1. Declaration…………………………………………………………………...13
2. Delivery of possession……………………………………………………….14
3. Appointment of Mutawalli……………………………………………………
14
 Case Analysis
1. Garib Das and Ors. v. Munshi Abdul Hamid and
Ors………………………..15
2. Punjab Wakf Board v. Shakur Masih…………………………………………
16
3. Ahmed Ariff v. CWT…………………………………………………………
17
4. Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan………………
18
5. Mohammad Sabir Ali v. Tahir Ali……………………………………………
18
6. Syed Mohd. Salie Labbai v. Mohd. Hanifa…………………………………..18
7. Allaha Rakhi v. Shah Md. Abdul Rahim……………………………………..18
8. M. A. Namazie Endowment v. CIT…………………………………………..18
 Conclusion……………………………………………………………………………19
 Bibliography………………………………………………………………………….21

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 CHAPTER-01

Introduction
A waqf also called wakf1 or mortmain property is under the context of 'sadaqah', an absolute
religious grant in Islamic law, typically donating a building or plot of land or even cash for
Muslim religious or charitable purposes. The donated belongings are held by a charitable
trust. The grant is known as “mushrut-ul-khidmat” while a person making such dedication is
known as “wakif”.23 Before one and a half thousand years, before the birth of the principle of
uses and trusts in English Law, Islamic Law acknowledged and established a legal expedient
under the name of wakf, which allowed an owner to settle his property for the use of heirs in
eternity. The subject of "Wakf" is relative to Entry No. 10 "Trust and trustees" and No. 28
"Charities and charitable institutions, charitable and religious endowments and religious
institutions" in the concurrent list attached to the 7th Schedule to the Constitution of India.
Control over the management of wakfs is, therefore, the duty of both the Central government
as well as State Governments. Article 26 of the Constitution gives freedom to every religious
denomination to establish and maintain its religious and charitable institutions subject to
public order, morality and health. They are also allowed the right to govern the properties of
these institutions in accordance with the law. Subject of course, to such regulations as the law
might choose to impose. But if a law takes the whole right of supervision is null and void.
The monitoring laws assume their importance out of the fact that in case of public trusts and
grants, some amount of control over their management is necessary in the interest of the
public as a whole. Such laws are valid as they do not interfere with the internal matters of the
institutions. The State cannot interfere in the formation or looking after of religious and
charitable institutions" or in the controlling of religious matters. The number of religious
denominations or parties are allowed to manage them in accordance with the beliefs of their
religions. The only intervention possible is on grounds of public order, health and morality.
The principle of wakf which is linked with the full 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 100 crore

1
Hisham Yaacob, 2006, Waqf Accounting in Malaysian State Islamic Religious Institutions: The Case of Federal
Territory SIRC, unpublished Master dissertation, International Islamic University Malaysia.
2
Introduction Tamil Nadu Wakf Board website.
3
Ariff, Mohamed (1991), The Islamic voluntary sector in Southeast Asia, Institute of Southeast Asian Studies,
p. 42, ISBN 981-3016-07-8

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of rupees. An general survey of wakf properties all over the country is close to finishing
point.

Origin History and Development

The practices recognized to Muhammad, have helped the institution of waqf from the initial
part of Islamic olden times.4 The foundation of Wakf or the provision of dedication of
property, movable / immovable, for religious purposes and for waqf improve the poorer
sectors of the society have been a distinguishing feature of the socio-economic structure of
Islam. Devotion to the way of God or the way of goodness and a strong desire to win Divine
consent have been the core cause of the origin and development of the institution. The Quran
contains no place to wakf but it abounds in injunctions in the matter of charity, " and in their
wealth the beggar and the outcaste had due share." (Surah 51, Ver. 19) "They ask the (O
Muhammad) what they shall spend, say; that which ye spend for good (must go) to parents
and near kindred and orphans and the needy and wayfarer. And whatever good ye do, to I
Allah is Aware of it." (Surah 2, Ver. 215) Generally, the source of wakf is drawn to the
prescriptions of the Prophet. Omar had acquired a piece of land in the canton of Khaibar and
proceeded to the Prophet and sought his counsel to make the most pious use of it, whereupon
the Prophet declared, "Tie up the property (asl-corpus) and devote the usufruct to human
beings that it is not to be sold or made the subject of gift or inheritance; devote its produce to
your children, your kindred and the poor in the way of God." In accordance with this rule
Omar dedicated the property in question as wakf which continued in existence for several
centuries until the land became waste.

CHAPTER-02

Wakf- Meaning

As defined in Wakf Act5 the term wakf 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
mentioned above. It is not necessary that the settler should be a Muslim for creation of wakf.
4
Sait, 2006, p.149
5
Section 3(1) of the Wakf Act 1954.

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Any non-Muslim can also create under the Muslim law a wakf provided the object of the
wakf is one which is known by Muslim Law as pious, religious or charitable and his own
religion gives the object in the same manner. The words 'professing Islam' have been
expressly taken for otherwise all charitable and many pious grants of other societies would
have come within the purview of the Act because the purposes for which they stand are also
considered as charitable or pious under the Muslim Law.6 The Wakf (Amendment) Act,
1964, has enlarged this definition by considering 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 gone since the origin of the purported wakf, the user can be the only available proof to
show if the property is wakf or not. When there is no proof to show how and when the
purported wakf was created, the wakf may be recognized by the proof of a user. Also,
according to the Wakf Act, ‘Wakf’ means the perpetual dedication by a person professing
Islam". The words “professing Islam" are purposely kept here to exclude charitable and pious
grants 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 recognizing Islam. The definition of a receiver
as given in Section 3(a) of the Wakf Act, 1954, had unreasonably limited its scope. The
receiver 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 service established for
the benefit of the Muslim community. The use of the words “objects of public utility”
recognized for the benefit of the Muslim community' was wholly needless for they are
covered by the previous clause and include religious, pious or charitable objects. The addition
of these words had made the definition of ‘beneficiary’ uneven with the definition of wakf in
clause (1) which incorporated no such restrictions. In Zain Yar Jung v. Director of
Endowments7, the Supreme Court held that the objects of public usefulness which may
constitute receivers 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

6
Section 3(1) of the Wakf Act 1954.
7
1963 AIR 985, 1963 SCR Supl. (1) 469.

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wakfs under the definition of Section 3 (1) and as such, a trust which does not fulfil 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 usefulness is
excluded from the operation of the Act if it does not benefit the Muslim community
exclusively! Though the word ‘exclusively' has not been used in the definition in clause (a) of
Section 3 and though this ruling tended to ignore the main clause in the definition and include
‘religious, pious and charitable objects,' there is no doubt that the words 'objects of public
utility established for the benefit of Muslim community' were creating difficulty. They faint
the actual concept of charity in Islam which makes no difference between Muslim and non-
Muslim among the receivers of charity. Wherever there is an injunction or inducement in the
Quran or Hadith on charity, the receivers are stated as the poor, indigent, orphans, travellers,
the down-trodden and poor neighbour without making any difference on the basis of religion,
caste or creed. For all these explanations, the Wakf (Amendment) Act, 1964 replaced the
words “objects of public utility established for the benefit of Muslim community” with the
words “objects of public utility sanctioned by Muslim Law."

CHAPTER-03

Essential Requisites of a Wakf

Under the Muslim law a wakf means dedication by a person embracing the Muslim trust of
any property for any purpose recognized by the Muslim law as religious, pious or charitable.
The dedication must be permanent and by the owner of the property who by reason of such
dedication of the property should divest himself of such property and hand over the
ownership thereof to the mutawalli. There is nothing in the Mohammedan law to nullify a
wakf, where the objects of the grant are clear and certain, simply for the reason that no
certain portion of the property or specified amounts of the usufruct have been dedicated to
charity or other religious, pious or charitable purpose of a permanent character accepted by
the Mohammedan law. It will appear from the definitions given above that a wakf should
hold the following features:

1. There should be dedication in eternity- Eternity is a essential condition for the

validity of a wakf according to all ideas. A wakf is not directed by rules against

9
 eternity. If a wakf is made and is silent as to whether it is to be in eternity a difference
of views exists as to its validity. According to Abu Hanifa and Muhammad, a wakf is
not complete unless the wakif decides the final dedication to objects which are not
liable to become dead. Abu Yusuf continues that an express mention is not
compulsory. Thus, if the wakif makes a wakf to Zaid, the wakf is valid, and the
property passes to the poor on the death of Zaid. So, according to him, if a wakf is
made for a month or any stated time without supplementary addition, the wakf would
be valid and permanent. But if it is further provided that the wakf would be void after
the finishing of the stated time, the wakf would be void according to all. The view of
Abu Yusuf seems to have been approved. The view of Abu Yusuf had not been
followed.
2. The wakf should be direct - Apart from the case of testamentary wakfs the law
maintains on a direct transfer of property and a wakf delaying the coming into effect
of the wakf would be void. The wakf must be made to take instant effect absolutely
for ever. A wakf must not toe delayed to any future date.
3. It should not be conditional - A wakf is invalid if it is made conditional on the
happening of an event. Thus, if the wakf is made provisional on the death of a person
without leaving children it will be void. But a direction that the wakf will not come
into effect till certain debts of the wakif are paid off or that it was compulsory to
determine the residue which was dedicated or that all the heirs decided to partition the
property among themselves, the equivalent in cash of one-third of his property should
be reserved for religious purposes or expended on works satisfactory to God will not
make the wakf provisional.
Shia law - Provisional wakfs are invalid under the Shia law also.
4. It should not be uncertain - The misappropriation 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
requirements, the wakf would be invalid. If a right to assume possession and divide
the property according to ancestral shares is reserved in a family agreement even
though some provisions are made for meeting the expense of a dargah, the wakf
would be invalid. The wakif has got the power to make the reservation of some rights
and benefit for himself. If a right is reserved otherwise than as permitted under that
section the wakf would be invalid. But where some rights which cannot be reserved

10
 are reserved in respect of a part of the dedicated property which is different and
independent, the wakf as to the rest of the property would be valid.
5. The wakif should completely deprive himself of ownership of the property -
There is a difference of views between Abu Yusuf and the disciples. According to
Abu Hanifa the ownership of the property even after the dedication continues to be
with the wakif while according to the disciples the wakif finishes to be an owner. The
view of Abu Hanifa has not been accepted. From the time of the dedication, the
property ceases to be that of the wakif. He should separate all connection with the
property as an owner. It the wakif keeps any control or power over the property as
such the wakf becomes invalid.
It is a question of construction of the deed whether the wakif has wholly separated
himself of all property. The essential idea is that the ownership of the property vests
in God and is placed in his implied ownership as a juristic person. If the legal and
beneficial interest is reserved during the lifetime of the person making the wakf it is
invalid.
Shia law- The wakif must be entirely denied of the property.
6. It must be made for objects mentioned in the Act.
7. There must be a proper subject of wakf. In the case of wakf made by a Shia Muslim
delivery of ownership is necessary as laid down in Sec. 186 of the Mulla's
Mohammedan Law. The Privy Council also held in Ali Zamin v. Akbar Ali Khar
that under Shia law actual delivery of ownership by or by direction of the wakif is a
condition precedent to the wakf having validity and effect.

CHAPTER-04

Kinds of Wakf

Generally wakfs can be of two kinds: Public and private. But the most recognized is its three-
fold classification -- public, quasi-public and private. Public trusts are those which are
dedicated to the public at large having no restraint 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

11
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
separate the property. He is, however, more than a manager or administrator, 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 restraints as any public wakf as the Law makes no difference 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
eternity and the properly becomes undisputable. Like public wakfs, a private wakf can under
no conditions 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 suggest 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. According
to Abu Yusuf, wakf is the confinement of a thing in the implied ownership of Almighty God
in such a way that its profits may be applied for the benefit of human beings, and the
dedication when once made, is absolute, so that the thing dedicated can neither be sold, nor
given or inherited. In India the view of Kazi Abu Yusuf is adopted. In Jewun Dass v. Shah
Kubeer-Ooddin, the Privy Council held that after the creation of wakf, the right of the wakif
is extinguished and the possession is transferred to the Almighty. Fatawa-i-Alamgiri declares
that “decrees in this country are given according to Abu Yusuf." In a recent case, Kassimiah
Charities v. Secy. Madras State Wakf Board8, the meaning of wakf was taken as the
detention of the corpus in the possession 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:

1. In the first case, the motive must be religious; a merely secular motive would render
the dedication a gift or a trust, but not a wakf.
2. 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.

8
AIR 1964 Madras 18.

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 3. And lastly, the usufruct is to be utilized for the good of mankind.

CHAPTER-05

Creation of Wakf

There is no necessary formality or the use of any express phrase or term necessary for the
constitution of wakf. The law looks to the intention of the giver alone. Where a dedication is
intended, the law will give effect to it in whatever language it may be expressed or in
whatever terms the wish may be formulated. It is not necessary that a wakf should be made in
writing. All that is essential in creating a wakf is that some kind of declaration, either oral or
in writing must be made. Though oral wakf is permitted yet when the terms of a wakf are
reduced into writing, no proof can be given to prove the terms except the document itself or
secondary proof of its contents, when it is acceptable. Where a wakf deed is executed, it must
fulfil with the provisions of the Registration Act. Thus, a wakf deed of immovable property
of Rs. 100 or upwards would require registration. Sometimes, conditions are also to be
considered to ascertain a wakf: the statement and conduct of the wakif and his heirs and the
method in which the property has been treated are conditions which though not conclusive
are appropriate. It was constantly held by the Privy Council and the different High Courts of
India that for creating a valid wakf, it is not necessary to use the word °•wakf'." Neither the
use of the word wakf nor express dedication of the property to the possession of God is
essential for the creation of a wakf where the tenor of the document may show that a wakf
was intended. Any implied expression is enough for the purpose. A wakf can also be created
by long user. In a case where there is no proof to show how and when the alleged wakf was
created, the wakf may be established by proof of the user. Where land had been used from
time immemorial for religious purposes, say a mosque, the land becomes wakf, even though
there is no evidence of express dedication. In the case of Imambara9 it was held by the
Oudh High Court that if 'majalises' were celebrated and "Quran Khani' was done and the
building had never been used as a residential house, the belief of dedication will be made. But
it would be erroneous to think that the funeral of a saint on a particular spot would make it
wakf, in spite of the fact that 'Urs' was held there without the proprietor's objections.

9
AIR 1934 All 1013.

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Other formalities

1) Declaration - As far as the courts in India are concerned, a declaration of grant and
delivery of ownership to the Mutawalli are essentials of a wakf. When the first Mutawalli
happens to be wakif himself, a mere declaration is sufficient to constitute a wakf. Where
the wakif after creating a bonafide wakf treats the wakf property as his own and commits
certain wrongful acts in undertaking of this notion, these acts will only amount to a
breach of trust and would not in any way affect the validity of the wakf.
2) Delivery of ownership - According to Abu Yusuf a dedication of wakf is complete by a
mere declaration. Neither delivery of ownership nor appointment of Mutawalli is
essential. The view has been adopted by most of the High Courts in India. Dedication by
way of a wakf is completed when the wakif makes a dedication in good faith with a real
intention of separating himself of the ownership of the property which he intends to
dedicate:
i) If he nominates another person as Mutawalli such an intention is ordinarily
evidenced by delivery of the wakf property to himself or Mutawalli; the failure to
deliver needs at least some explanation: want of such an intention may be inferred
if there is no explanation.
ii) The fact that no person is selected as Mutawalli does not essentially show a want
of such an intention; it may be presumed in proper cases that the wakif himself
intended to act as a Mutawalli; but this last presumption may be disproved by
evidence that the wakif did not act as such, and neither himself gave nor requested
another to give any effect to his declaration.
3) Appointment of Mutawalli - In its earlier decision, the Allahabad High Court followed
the view of Imam Muhammad: that a wakf is not complete unless:
 there is a declaration, coupled with
 appointment of Mutawalli ; and
 delivery of possession,

Even according to the previous view of the Allahabad High Court, a mere declaration was
sufficient where the wakif himself was the Mutawalli. It was not essential to transfer the
property from his name as owner into his name as Mutawalli. The mere delay in transferring
ownership or getting the name mutated could not have invalidated the wakf.
Under Shia law the possession has to be delivered to the first person in whose favour the

14
wakf has been made. In the case of a public wakf, a Mutawalli must be appainted to the
possession.

CHAPTER-06

Case Analysis –

GARIB DAS AND ORS. V. MUNSHI ABDUL HAMID AND ORS .10

Facts
One Tassaduk Hussain was the owner of the disputed house had admittedly executed a deed
of wakf on June 21, 1914 in respect of the same for the benefit of a mosque and Madrasa at
Nathnagar and had the same registered. In terms of the deed the donor was to remain in
ownership of the house as Mutawalli and his wife was to be the Mutawalli after his death.
The document provided that after the death of both the husband and wife the Mutawalli
would be elected by the panchas of the muslim community of Nathnagar and so long as the
donor and his wife were living they would maintain themselves from the income of the
property and spend the balance left for the mosque and the Madrasa. Tassaduk Hussain
executed and registered three deeds on 10th December, 1949 by one of which he purported to
cancel a gift deed dated November 4, 1939 executed in favour of some of his relations in
respect of the disputed house. By the second document he cancelled another registered deed
of gift dated August 2, 1948 executed in favour of another relation of his in respect of the
identical property. And by the third document he purported to cancel the deed of wakf of
1914. Thereafter he executed and registered three separate sale deeds on March 27, 1949 one
in favour of the appellant Garib Das, a second in favour of Shamlal and a third in favour of
Gobind Lal. All these three deeds were in respect of portions of the disputed property.
Tassaduk Hussain died in July, 1950. The suit was filed by the first plaintiff as the elected
Mutawalli of the wakf created by Tasaduk Hussain joining with him plaintiffs 2 and 3 as
members of the Sadar Nathnagar Masjid Committee. Garib Das, Shyam Lal and Gobind Lal,
the alienees from Tasaduk Hussain were impleaded as defendants first party.. The first three
defendants were described as tenants in the suit properties. The plaintiffs claimed to set aside

10
Garib Das and Ors. v. Munshi Abdul Hamid and Ors., AIR 1970 SC 1035.

15
the deeds in favour of the said persons on the ground that as a valid wakf had already been
created in favour of the mosque and Madrasa and had been acted upon, the deed of
cancellation of December 10, 1949 and the sale deeds in favour of the first three defendants
could not affect the wakf. A prayer was also made that as the said three defendants who were
tenants had repudiated their tenancy they had forfeited the same and they had become
trespassers and were liable to eviction as such.

a) Lower Court Proceedings - The Subordinate Judge who tried the suit found the deed
or wakf to be invalid holding, inter alia, that there could be no reservation for the
benefit of the donor in the case of an endowment purportedly in favour of a mosque.
He also held that the endowment was bad for uncertainty on the ground that the
mosque and the Madrasa mentioned in the wakf could not be identified and that
Tasaduk Hussain never had any intention to create a wakf.
b) High Court - The High Court's conclusions were:
i) That Tasaduk Hussain had created the wakf in question in 1914 and he continued
to be the mutawalli of the same until his death.
ii) The wakf was not a sham or illusory transaction.
iii) It was not bad for uncertainty or vagueness.
iv) It was not bad or void on account of reservation of some benefit in favour of
himself and his wife.
c) Supreme Court - Appeals Dismissed.

Judgement

The founder of a wakf may constitute himself the first mutawalli and when the founder and
the mutawalli are the same person, no transfer of physical possession is necessary. Nor is it
necessary that the property should be transferred from the name of the donor as owner into
his name as mutawalli. An apparent transaction must be presumed to be real and the onus of
proving the contrary is on the person alleging that the wakf was not intended to be acted
upon.

PUNJAB WAKF BOARD V. SHAKUR MASIH 11

Facts

11
Punjab Wakf Board v. Shakur Masih, (1996) 11 SCC 245.

16
The admitted facts are that Najaf Khan was the owner of the properties, namely, houses and
shops situated in Jutog. He had executed a will on August 29, 1949 bequeathing all his
properties to his son's mother-in-law, namely, Smt. Musamat Kariman. He added a note to
the Will on dated 29-9-1949 stating thus: "After the death of Masomat Kariman, my entire
property would become wakf and the income from that would be spent for the maintenance
of the Mosque at Jatog. Nobody shall have the right either to mortgage or sell these
properties." The appellant filed the suit for declaration that it is a wakf properly and the
respondent has no manner of right whatsoever. All the Courts below have concurrently held
that the wakf has not been created by Najaf Khan and, therefore, the will is void and the wakf
thereby has not been created. The question is; whether the view taken by the Courts below
including the High Court is correct in law?

 Supreme Court Appeal Dismissed.The hon’ble court relied on Chapter XII of the
principles of Mohomedan Law, Nineteenth Edition edited by M. Hidayatullah, former
Chief Justice of this Court, it is slated that a wakf means 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. Under Section 174, the
dedication must be permanent. Under Section 176, the subject to wakf must belong to
the wakif, namely, the property dedicated by way of wakf must belong to the wakif
(dedicator) at the time of dedication. Under Section 191, contingent wakf is not valid.
It is essential to the validity of a wakf that the appropriation should not be made to
depend on a contingency.

Ratio

That bequest creating a wakf contingent upon the life time of a lady is invalid and therefore
the contingent wakf is not valid as per Section 191 of the principles of Muslim Law

AHMED ARIFF V. CWT12

Wakf 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".

12
Ahmed Ariff v. CWT, 1966 59 ITR 230 Cal.

17
BIBI SIDDIQUE FATIMA V. SAIYED MOHAMMAD MAHMOOD HASAN 13

The ownership of the wakf property has no jural conception with any exactitude and the
corpus is tied down and is made non-alienable. Only the usufruct and the income from the
corpus of the wakf property is available for carrying out the objects of the wakf.

MOHAMMAD SABIR ALI V. TAHIR ALI14

No formal dedication or use of the word "wakf or an express transfer of the corpus of the
properties to God is necessary for constituting a wakf, the dedication of properties to
purposes recognised by Mohammedan law as religious or charitable may be inferred and that
in itself will give rise to a wakf.

SYED MOHD. SALIE LABBAI V. MOHD. HANIFA15

Following are the essential conditions for creation of a valid wakf dedication for a mosque of
public nature.

 The founder must declare his intention to dedicate a property for the purpose of a
mosque,
 The founder must divest himself completely from the ownership of the property.
 The founder must make some sort of a separate entrance to the mosque which
may be used by the public to enter the mosque.

ALLAHA RAKHI V. SHAH MD. ABDUL RAHIM16

Creation of a valid wakf leads to simultaneously passing of all rights of property out of the
wakf and its vesting in God Almighty. The person in the administration of the wakf, whether
mutawalli, Sajjadanashin, or mujawar, or known by any other name, is merely a manager of
the wakf. He is not a 'trustee' in the technical sense of the term as understood nor is any
property belonging to the wakf 'vested' in him.

M. A. NAMAZIE ENDOWMENT V. CIT17

Where reading the relevant clauses of a deed of wakf, it is held that the wakf was created for
the benefit of the wakif s poor relations and, therefore, it is not a wakf created for charitable

13
Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan, 1978 AIR 1362, 1978 SCR (3) 886.
14
Mohammad Sabir Ali v. Tahir Ali, AIR 1957 All 94.
15
Syed Mohd. Salie Labbai v. Mohd. Hanifa, 1976 AIR 1569, 1976 SCR (3) 721.
16
Allaha Rakhi v. Shah Md. Abdul Rahim, (1934) 36 BOMLR 408.
17
M. A. Namazie Endowment v. CIT, (1988) 174 ITR 58 (Mad.).

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or reli¬gious purposes eligible for exemption, the enactment of the Wakfs Act, 1954 (29 of
1954) can have no impact on the character of such wakf for the purposes of the Income Tax
Act. Even the fact of inclusion of such wakf in the list of wakfs published in the Gazette as
per the provisions of that Act would not change the character of such wakf.

CHAPTER-07

Conclusion

Whether this institute of religion is able to achieve its main objective of establishment or
not?

Critically examining of this project will clearly highlight certain aspects about the institution
of wakf, in the present times. The primary of these aspects is that wakf is only for religious
purpose and is permanent in nature, it cannot be a provisional institute. Also any gain derived
out of a wakf has to be used for the benefit of the mankind. Though their hasn’t been a great
deal of judicial scrutiny on this topic in the recent times but even in the few cases that have
come up the Courts of the country have passed their decisions keeping these aspects in mind.
It can be promptly said that the enactment of the Wakf Act. 1954, made a landmark in the
history of wakf organization in India. By establishing informal Boards vested with
considerable authority and powers, by imposing a exact 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

19
utmost importance, therefore, that wakfs should be maintained properly and their resources
should be utilised for the objects and the purposes of dedications. But unfortunately, many of
the existing wakfs have not escaped the process of decadence brought in by the twin impact
of neglect and misuse. On a detail study of the topic the writer of the project would like to
highlight the problems faced by the wakf boars which need to be redressed soon. Some of
them are-

 Grabbing of wakf properties.

 Matters regarding wakf properties pending in courts for several years.
 Lack of proper supervision of wakf land and properties.
 Need to ensure proper possession of wakf properties.
 Further amendment in wakf Act and legal protection.
 Wakf properties be brought out of the purview of the Rent Control Acts.
 All wakf properties must have boundaries.
 Wakf land be used for the welfare of the people.
 Welfare/Social Welfare and Development institutions or organisations be set up on
wakf land.
 Performance of the wakf board be watched constantly

Bibliography

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 Arjomand, Said Amir; Feierman, Steven; Ilchman, Warren Frederick; Katz, Stanley
Nider; Queen, Edward L. (1998), Philanthropy in the World's Traditions, Indiana
University Press, ISBN 0-253-33392-X
 http://en.wikipedia.org/
 Hudson, A. (2003), Equity and Trusts (3rd ed.), London: Cavendish Publishing,
ISBN 1-85941-729-9
 http://legal-dictionary.thefreedictionary.com/
 Morelon, Régis; Rashed, Roshdi (1996), Encyclopedia of the History of Arabic
Science 3, Routledge, ISBN 0-415-12410-7.
 http://wiki.answers.com/
 Gaudiosi, Monica M. (April 1988), "The Influence of the Islamic Law of Waqf on the
Development of the Trust in England: The Case of Merton College", University of
Pennsylvania Law Review (University of Pennsylvania Law Review, Vol. 136, No. 4)
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