What is waqf

When u declare a prop as waqf and it is given for some religious/pious

purposes or dedicated to God.
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.
It is observed in M Kazim vs A Asghar Ali that technically, it means dedication
of some specific property for a pious purpose or secession of pious purposes.
• Any major person with a sound mind can be a waqif
• Can be oral or written but if in writing it is known as waqfnama.

ESSENTIAL CONDITIONS FOR A VALID WAQF

The essential conditions for a valid waqf are as follow:

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.

In Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, the dedication of house by a

Muslim for use of all travelers irrespective of religion and status was held not to be a
Wakf on the ground that under Muslim law a Wakf should have a religious motive and
it should be only for benefit of Muslim community

When a Wakf is constituted, it is presumed that a gift of some property has been made
in favor of God. This is ensured through a legal fiction that waqf property becomes the
property of God.
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. For being a competent waqif a person must
possess the capacity, as well as the right to constitute the waqf.
As regards the capacity of a Muslim for making a waqf, there are only two requirements:

(i) soundness of mind and,

(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.

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 (e.g. an Imambara).

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.
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 exercised her independent mind in constituting the waqf and had
fully understood the nature of the transaction.
Amount of property: a person can dedicate his entire property, but in the case of the
testamentary wakf, more than one-third of property cannot be dedicated.

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. In Md. Ismail vs Thakur Sabir Ali, SC held that even in wakf alal
aulad, the property is dedicated to God and only the usufructs are used by the
descendants.
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. In Peeran vs Hafiz Mohammad, it was held by Allahabad HC that the
wakf of a house built on land leased for a fixed term was invalid.

4.Inalienable – Since Wakf 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 wakf property can only be used for
pious and charitable purpose. It can also be used for descendants in case of a private
wakf.

6. Power of court’s inspection – The courts have the power to inspect the functioning
or management of the wakf property. Misuse of the property of usufructs is a criminal
offense as per Wakf Act.1995.

Creation of waqf
Waqf can be created in the following ways.
• By an act inter vivos– This type of waqf is created between living persons,
constituted during the lifetime of the waqif and takes effect from that very
moment.
• By will– A waqf created by will is contradictory to a waqf created by an act
inter vivos. It takes effect after the death of the waqif and also known as
‘testamentary waqf’. Such a waqf cannot operate upon more than one-third of
the net assets, without the consent of the heirs.
• During death or illness (marz-ul-maul)– Like the gifts made while the
donor is on the death bed, will operate till the extent of one-third of the
property without the consent of the heirs of the property.
• By immemorial user– Limitation of time also applies to the creation of waqf
property, but waqf property can be established by way of immemorial use.
 Features of waqf
• 1. Allah is the complete owner and this is unchangeable (If the intention of
the waqf is secular then it is not a waqf, it is a trust)
• 2. Ownership of the establisher is wiped out.
• 3. Used for the welfare of the mankind.
• 4. It is irrevocable, inalienable, perpetual in nature.
Types of Waqf
• Public- eg wells, bridges, buldings for madarsas etc
• Private- Waqf created for benefit of a private person or a specific group of
persons or for their own family members. Eg imambara
Categories of waqf from the perspective of its purpose:
• Waqf ahli: the proceeds of waqf are designated for the waqf founder’s children
and their offspring. However, these beneficiaries cannot sell or dispose of the
property subject-matter of waqf.

• • Waqf khayri: the proceeds of waqf are earmarked to charity and philanthropy.
Examples of beneficiaries include the poor and the needy. Waqf khayri is
typically used to finance mosques, shelters, schools, and universities. This is
meant to help financially-challenged individuals and communities.

• • Waqf al-sabil: a waqf whose beneficiaries are the general public. It is very
similar to waqf khayri, though waqf al-sabil is usually used to establish and
construct the public utility (mosques, power plants, water supplies, graveyards,
schools, etc).

• • Waqf al-awaridh: the yield of waqf is held in reserve so that it can be used at
times of emergency or unexpected events that negatively influence the livelihood
and well-being of a community of people. For example, waqf may be assigned
to the satisfaction of specific needs such as medication for sick people who are
unable to pay medication expenses and education of poor children. Waqf al-
awaridh may also be used to finance maintenance of the utilities of a village or
neighborhood.

Subject matter of waqf

 • Earlier only immovable properties were subject matter like gardens, buildings,
graveyard, mosque, takia (a resting place)
• Now movable properties also included like animals, agricultural instruments,
koran for reading in masjid, etc. Basically anything non perishable by use can
be included under waqf.
Because of differences between waqf and trust the Indian Trust Act, 1882 is not
applicable to muslim waqf so far as the nature and operation of waqfs is concerned.
But, for purposes of instituting any suit in the cases of irregularities and
mismanagement of waqf property, a waqf has been regarded as a trust within the
meaning of S.92 of CPC.
However, it must be noted that the Indian Trust Act is applicable also to muslims.
Therefore, if a muslim wants to settle his properties in a trust he may do so under
this Act instead of creating waqf under Muslim personal law.
Doctrine of Cypress
• The word cypress means ‘as nearly as possible.’ The doctrine of cypress is a
principle of the English law of trusts. Under this doctrine, a trust is executed,
or carried out as nearly as possible, according to the objects laid down in it.
• Where a settlor has specified any lawful object which has already been
completed or the object cannot be executed further, the trust is not allowed to
fail. In such cases, the doctrine of cypress is applied and the income of the
property is utilised for such objects which are as nearly as possible to the
object already given.
• The doctrine of cypress is applicable also to waqfs. Where it is not possible to
continue any waqf because of (a) lapse of time or, (b) changed circumstances
or, (c) some legal difficulty or, (d) where the specified object has already been
completed, the waqf may be allowed to continue further by applying the
doctrine of cypress.