Meaning of wakf

The literal meaning of the word waqf is ‘detention’. In the legal context, waqf means
detention of a property so that its produce or income may always be available for
religious or charitable purposes.
When a waqf is created, the property is detained or, is ‘tied up’ forever and
thereafter becomes non-transferable.

ESSENTIAL CONDITIONS FOR A VALID WAQF

1. Permanent dedication: The dedication of waqf property must be permanent and

Waqf himself must devote such property and give it for any purpose recognized by
Muslim law, like religious, pious or charitable. If the wakf is made for a limited period
it won’t be a valid wakf and also there should be no condition or contingency
attached otherwise it will become invalid. The motive behind Wakf is always
religious.
2. Competency of the Waqif:

Who Can Create a Waqf? : The person who constitutes the waqf of his properties is
called the ‘founder of waqf or, Waqif. The waqif must be a competent person at the
time of dedicating the property in waqf.

there are only two requirements:

(i) soundness of mind

(ii)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 transaction. Waqf constituted by an
insane or minor person is void.

3. Right to make waqf: A person having the capacity but no right cannot constitute a
valid waqf. The subject matter of wakf should be owned by wakif at the time when
wakf is made. Whether a person has the 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.
CREATION OF WAKF

Wakf is usually created in the following ways –

1. By an act of a living person (inter vivos) – when a person declares the dedication of
his property for Wakf. 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 Wakf.

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 Wakf by will but now it has been
approved.

3. By Usage – when a property has been in use for the charitable or religious purpose
for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and
Wakf is inferred.

LEGAL CONSEQUENCES OF WAKF

Once a wakf 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.

2. Irrevocable – In India, a wakf once declared and complete, cannot be revoked. The
wakif cannot get his property back in his name or in any other’s name.

3. Permanent or Perpetual – Perpetuality is an essential element of wakf. Once the

property is given to wakf, it remains for the wakf forever. Wakf cannot be of a specified
time duration.

4. Pious or charitable use – The usufructs of the wakf property can only be used for
pious and charitable purpose. It can also be used for descendants in case of a private
wakf.
Mutawalli
The manager or the superintendent of the waqf is known as the ‘Mutawalli’. Such
a person appointed has no powers, either to sell or exchange or mortgage the
waqf property, without the prior permission of the court, unless he has been
empowered by the waqf deed expressly to do so.

Section3(i)Waqf Act,1995( Amendment Act,2013) mutawalli means any person

appointed, either verbally or under any deed or instrument by which a Waqf has
been created

• Power of Mutawalli under Muslim Law Section

50.Waqf Act,1995

 He can file a suit to protect the interests of the wakf.

 He has the authority to use the usufructs to the best interest of the wakf.
He is authorised to take all reasonable actions in good faith to ensure
that the end beneficiaries are able to enjoy all the benefits from the
wakf.
 He also has the power to lease the property for the agricultural purpose
for less than three years and for the non-agricultural purpose for less
than one year.
 As he is not the owner of the property, therefore he is barred from selling
the property.

Removal of Mutawalli
 By the Court– Once a mutawalli is appointed, he cannot be removed by
the waqif. But the mutawalli can be removed by the Court only on
following grounds.

a)he denies the waqf character of the property and sets up an adverse title to
himself

b)He causes damage or loss to the waqf property or commits a breach of trust
knowingly and intentionally.
c)The mutawalli is rendered insolvent.

d)He although having sufficient funds neglects to repair the waqf premises and
allows them to fall into despair;

Revocation of Waqf
• If a valid waqf has once been created , it cannot be revoked by the waqif
for it is in the power of nobody to divest god of his ownership of the
property. Thus –
• A testamentary waqf may be revoked by the author of the waqf any time
before his death. But in this case there is no revocation in facts as the
waqf comes into existence only at the death of the testator. It is in fact
revocation of the will rather than of the waqf.
• A waqf during the illness without consent of heirs is valid only to the
rd
extent of 1/3 of the property and invalid beyond this limit. There is no
revocation involved here too.
A waqf created by an act inter vivos is irrevocable. If the waqif reserves
the powers of revocation , the waqf is invalid.