Waqf

Family Law II - Module 5 Part A, Part B

Part B (1-3)
Part B -1
 Waqf
• The literal meaning of the word wakf is ‘detention’.

• 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.

• 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.”
• According to the legal definition, Waqf means a dedication of some
property for a pious purpose in perpetuity. The property so
alienated should be available for religious or charitable purposes.
Such a property is tied up forever and becomes non-transferable.
• It has been observed in the case of M Kazim vs A Asghar Ali that
waqf in its legal sense means the creation of some specific property
for the fulfilment of some pious purpose or religious purpose.
• A waqf can be either in writing or can be made by an oral
presentation. In the case of an oral agreement, the presence of words
emphasising on the intention of the parties is a prerequisite.
Waqf
 ESSENTIAL CONDITIONS FOR A VALID WAQF

1. There must be a permanent dedication of a property

(movable or immovable).
2. By a person professing Islam.
3. For any purpose recognised by Islam.
 ESSENTIAL CONDITIONS FOR A VALID WAQF

Other Elements
1. There must be a clear intention on the part of the Wakif to create the Wakf.
(Wakif is a creator of Wakf.)
2. Wakif must declare his intention either orally or in writing.
3. The Wakf must be perpetual, which means there should not be a fixed
period.
4. The Wakif must be the owner of the property
5. The object of Wakf should not be in conflict with Islamic principles.
6. The Wakif must be of Muslim, major, and of sound mind. Wakf by minor is
void ab initio. The guardian cannot create a Wakf on behalf of a minor.
 ESSENTIAL CONDITIONS FOR A VALID WAQF

7. Wakf should be by a person who is professing Islam.

Exceptionally, Wakf by a non-Muslim is recognised under certain conditions. It
means a Wakf may be created by a person belonging to any religion, but in
such a case, the object of Wakf must not be opposed to the creed (faith) of
the Wakif.
It means a Muslim cannot create a Wakf for the construction of a Hindu
temple, nor can a Hindu create a Wakf for the construction of a mosque.
But where the objects are secular in nature such as college, hospital, etc. then
whether the Wakif is a Hindu or Muslim or Christian, the Wakf would be valid.
8. Wakf must not be contingent or conditional.
9. The subject matter of wakf should be owned by wakif at the time when wakf is
made.
 ESSENTIAL CONDITIONS FOR A VALID WAQF

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, and if it is secular in character, the
charity should be to the poor alone.
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.
• 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.
• A person can dedicate his entire property,
• In the case of the testamentary wakf, more than one-third of
property cannot be dedicated.
 Modes of Creation of Wakf

1. Inter vivos: transfer or gift made during one’s lifetime

2. By will (only one third)
3. By immemorial use
4. On death bed – Wakif can create only one third.
• Note: Generally, a Wakf is irrevocable, but if the Wakf is created by
will, then it may be revoked before the death of the testator.
 Modes of Creation of Wakf

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.
4. During death or illness (marz-ul-maut) – As the gifts are made while the
donor is on the death bed, it will operate till the extent of one-third of the
property without the prior consent of the heirs.
 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 Mst 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.
 LEGAL CONSEQUENCES OF WAKF

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. Extinction of the right of wakif – The wakif 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 wakf property. Misuse of the property of
usufructs is a criminal offense as per Wakf Act.1995.
 Central Waqf Council

• Central Waqf Council, India is an Indian statutory body established in

1964 by the Government of India under the Waqf Act, 1954.

• It advices on matters pertaining to the working of the State Waqf Boards and
proper administration of the Waqfs in the country.

• The Council is headed by a Chairperson, who is the Union Minister in

charge of Wakfs and there are maximum 20 other members, appointed by
Government of India as stipulated in the Wakf Act.
 State Waqf Boards

• The State Waqf Boards are established by the State Governments in view of
the provisions of Section 9(1) the Waqf Act, 1954.
• It administer the work towards management, regulation and protect the Waqf
properties by constituting District Waqf Committees, Mandal Waqf
Committees and Committees for the individual Waqf Institutions.
• The Waqf Boards shall be body corporate having perpetual succession and
common seal with power to acquire and hold property.
• In the case that more than fifteen percent of the total number of waqf
property is Shia waqf, or the income thereof is more than fifteen percent, the
Act envisages a separate Shia Waqf Board.