JAMIA MILLIA ISLAMIA

UNIVERSITY

2019-2020

SUBJECT: FAMILY LAW

TOPIC: WAQF UNDER MUSLIM LAW

SUBMITTED TO: Prof. Kahkashan Y. Danyal

SUBMITTED BY: Mohd. Altmash
BATCH:2017-2022{SECOND YEAR,REGULAR}
INDEX
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 Headings Page no.
1) Introduction 3

2) Objectives of Wakf 3

3) Meaning and Definition 4-6

4) Genesis and development of wakf 6-8

5) Characteristics of Waqf 8-9

6) Nature of wakf property 9

7) Creation of Wakf 9-10

8) Modes of creation 10

9) Essential conditions for valid wakf 10-12

10) Legal Consequences of Wakf 13

11) Types of Wakf 14-15

12) ADMINISTRATION OF WAKFS 16-22

 Non-statutory administration
 Statutory administration

13) Conclusion and suggestion 23

14) Bibliography 23-24

Introduction:

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The institution of wakf is the best manifestation of Islamic concept of human rights and
human duties in realizing a society which is envisioned of by every order of secular
governance in the contemporary circumstances.1

It is absolutely an Islamic concept and is one of the institutional charities to help poors,
underprivileged and aims at to bring about a just and balanced socio-economic order in
the society.

It is an acknowledged fact that no political, legal or religious-economic system could

bring out a charitable institution parallel and competing to the objects of Wakf in Islam.2
The western legal system conceived and developed the notion of public trust but still it
could not conceptually compete with the institution of Wakf. 

Objectives of Wakf:
Making a wakf is considered only a virtuous act, an act of spending in the way of Allah,
which carries perpetual reward but is a welfare scheme instituted to attain social justice
and economic parity by eradicating poverty from human society and makes the “Haves”
to realize that a share in their wealth and property is for the needy, poor and helpless.3

The Wakf is aimed at to help the persons in distress, orphans, resourceless widows and
poverty-stricken people.

The income of Wakf properties is extremely helpful in eliminating poverty and

starvation, feeding the hungry, caring of sick, looking after orphans, widows, burial of
deads, maintenance of mosque, funding of children education, establishing schools and
vocational training centers, hospitals, clinics, enabling the indebted to repay their debts
and such other good acts as constitute the basic welfare scheme of any society.4

Meaning and Definition:

1
Syed Khalid Rashid, Law of Wakf in India in the Light of Certain Existing Legal Realities, 6-17 ALJ
(2001-02) 35
2
Ibid.
3
Dr. Ahmedullah Khan, Commentary on The Law Waqf In India, Asia Law House, 6th edition, 2014.
4
Supra note 3.

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The word Wakf, in Arabic language, means to hold, confinement, prohibition or
detention. In Shariah, the word Wakf is used in the meaning of holding, detaining or
preventing certain property and preserving it for the application of the benefit accruing
thereon for certain good and pious purposes.5

The Wakf literally means tying-up of an animal, such as horse or camel and in the
language of law in signifies the dedication or consecration of some specific movable or
immovable property either in express terms or by implication for any religious, pious or
charitable object or to secure any benefit to human beings.

Wakf, according to classical Islamic Jurists, means dedication or tying up of property for
some good purpose recognized by Shariah to gain divine pleasure such a way that as
(corpus) remains intact and only its usufruct is spent on the objects specified by Wakif.

Imam Abu Hanifa:

According to Abu Hanifa, the legal meaning of Wakf is the tying up or detention of a
specific thing in the ownership of wakif and devotion of its profit in charity on poor or
other good objects.

Imam Abu Yusuf:

For the purpose of judicial decision, the enunciation of Imam Abu Yusuf, the great
disciple of Abu Hanifa, the chief Kazi of Baghdad in the regime of Harun Ar-Rashid are
recognized as Law throughout the Sunni world.

According to Abu Yusuf, Wakf is the detention of a thing in the implied ownership of
Almighty God, in such a manner that its profits may be applied for the benefit of Human
beings and the dedication when once made is absolute so that thing dedicated can
neither be sold, nor given nor inherited.

Imam Mohammad:

5
Moti Shah v Abdul Ghaffar khan, 56 Nagpur.

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Imam Mohammed, the fellow disciple of Abu Yusuf agrees with him on the point of
definition of Wakf property but he thinks that right of Wakif does not cease in the
property until he has appointed a Mutawalli and delivered it into his hands.

Definition given by judiciary:

Their Lordship of Privy council in Vidya Varuthi v. Baluswami iyer observed:6 The

Mohammadan Law relating to trust differs fundamentally from the English Law. It owes
its origin to a rule laid down by the Prophet of Islam; and means the tying up of property
in the ownership of God the Almighty and devotion of Profits for benefit of human
beings.

When once it is declared that a particular property is wakf or any such expression is used
as implies wakf; or tenor of documents shows, as in the case of Jeewan Dass
Sahi v. Shah Kubeeruddin7 that a dedication to pious or charitable purpose is meant, the
right of wakif is extinguished and the ownership is transferred to Almighty8.

Supreme Court of India in Sayyed Ali v. A.P Wakf Board,9 held that a wakf is a
permanent dedication of property for the purpose recognized by Muslim law as pious
religious or charitable and property having been found as wakf would always retain its
character as a wakf. In other words, once a wakf always a wakf continues to be so far all
the time to come

Legislative definition of Wakf:

 Section 3(r) of the wakf Act 1995 defines the term Wakf in the following words:

Wakf means the permanent dedication by a person professing Islam, of any movable

or immovable property for any purpose recognized by the Muslim Law as pious,
religious or charitable 

6
(1921) 48 IA-302.
7
(1998) 2 SCC 642
8
Kassimiah Charirties v Secretry Madras Stete Wakf Board, 64 Mad.
9
1998 2 SCC 642. 

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This definition by and large is same as is found in section 2(1) of the Musalman Wakf
Validating Act 1913, section 2(e) of the Musalman Wakf Act 1923 and section 3(1) of
Wakf Act 1954.

 Section 2(1) of the Mussalman Wakf Validating Act 1913:

“Wakf means the permanent dedication by a person professing Mussalman faith of any
property for any purpose recognized by Mussalman law as religious, pious or charitable”.

 Section 3(1) of the Wakf Act, 1954,

“Wakf means the permanent dedication, by a person professing Islam, of any movable or
immovable property for any purpose recognized by the Muslim law as pious, religious or
charitable”.

Thus, the definition of the wakf as given in section 3(r) of the Wakf Act 1995, is
restrictive as it includes only a dedication by a person professing Islam and therefore
according to the Act only a Muslim may create wakf and a non-Muslim is prohibited to
create wakf.

Genesis and development of wakf:

According to Imam Shafi there was no custom of creating wakf in Arabia before advent
of Islam either of house or lands10. However, the institution of wakf developed on the
lines of advice given by Holy Prophet to Hazrat Umar. So, nothing like wakf was ever
known before the advice given by Holy Prophet to Hazrat Umar when he asked Holy
Prophet how to make best use of his land by giving it in charity.11

The Prophet made Wakf of seven orchards. It became the first Waqf Khair (charitable
endowment) of Islam. These orchards originally belonged to a Jew, Mukhaira who was
killed while fighting along with the Muslims in the battle of Uhad.

10
Dr. Mohd. Wasim Ali, Institution of Wakf in Islam: Genesis and Development, 18 ALJ (2007-08) 125
available at: [Link]
11
Supra note 1.

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Following the footsteps of the Prophet, Abu Bakar Siddiq the first caliph made Wakf of
his house for his children. Sa'ad Abi Wakkas made Wakf of his land in Madina and Egypt
for his children and other companions also dedicated their properties as Waqf.

Quarn on Wakf:

Historically the origin of the Wakf is not directly traceable to any specific verse of the
Holy Quran. The juristic edifice of Wakf is built mostly on the precepts and prescriptions
of the Holy Prophet. Though the term Wakf is found nowhere directly in the Holy Book,
yet the concept of Wakf is rooted in the Quranic injunctions which deal with social,
economic and spiritual significance of charity.12 The Quranic verses which exhort the
Muslims to give in charity their wealth and properties giving rise to concept of Wakf are
as under:

 “And in their wealth the beggar and the outcaste had due share.” (Surah 51,
Verse. 19)
 “They ask thee (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, Verse. 215)

The true measure of charity is indicated in the following Quranic verses:

 “Ye shall never attain to goodness till ye give alms of that which ye love, and
whatever ye give, of a truth, God know eth.” (Surah 3, Verse. 92).

Hadith (tradition) on Wakf:

Historically, the origin of wakf is traced to the prescriptions of the Prophet; “The validity
of wakfs” says the author of Ghait-ul-Bay” is founded on the rule laid down by the

12
Supra note 10.

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Prophet himself under the following circumstances and handed down in succession by
Ibn Ant Nafey and Ibn Omar as stated in the lame Tirmizi.

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, the Prophet declared,
“Tie up the property (all-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. (Ameer Ali)

The Prophet further declared;

“That the best of all pious offerings is a provision for one's self, so that one may not need
and the giving of sadaka should commence with those whose subsistence is obligatory”.

“Giving alms to the poor has the reward of one alms, but that giving to kindred has two
rewards”.

Characteristics of Waqf:
1) Irrevocable:
The endower or the waqif cannot revoke the endowment if it has already been declared
a waqf is created solely for philanthropic purposes and always benefits.
2) Perpetuity:
This guarantees that it will benefits generation after generation and also prohibits it from
being confiscated.
3) Inalienable:
It is although the benefits of the donation are beneficial to man the property itself is
consider to be returned to god. No person can ever become the owner, so the waqf
become common assets. It cannot be sold mortgaged, gifted or inherited.
Waqf involves converting private ownership to public ownership of a property, fund or
asset which disallows the original owner to use the property and anyone to change its
ownership. The benefits, however, is for everyone and it is not limited. 

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Nature of wakf property:
Any property which has value, whether moveable or immoveable, shres of company and
securities may be the subject of wakf. Abdur Rahim said property must be productive and
capable of being used without the subject of consumption. He excludes movable property
like money.

If the property or corpus is subject to any type of consumption then it will be Sadka. It
can not be treated as wakf.

The wakif must be the actual owner or must have a permanent dominion over the
property, a temporary interest will not do.13

Creation of Wakf:
Muslim law does not prescribe any specific way of creating a Wakf. If the essential
elements as described above are fulfilled, a Wakf is created. Though it can be said that a
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.14
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.

Modes of creation:

13
Rahiman v. Bagndan, (1936) 11 Luck. 735; 5 D.L.R 109.
14
Gaib Das v M. A Hamid

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A wakf may be made either orally or in writing. In the case of writing if the value of
property is more than 100 rupees then the section 17(1)(b) of the Indian Registration Act
1908 will apply. It can be created either by an act inter vivos, non-testamentary form i.e.
gift or by testamentary instrument i.e. will, taking effect after the death of the wakif. In
the former form (gift) a muslim can wakf his entire property but in the latter form (will)
he can wakf only to the extent of one-third (1/3) of his property normally.15

When a wakf is created through a will, before the death of the testator like any other will
it can be revoked,16 but after the death of the testator as soon as it becomes operative it
can no more be revoked being a perpetual thing.

In case of oral pronouncement of wakf intention must be clear.

Essential conditions for valid wakf:

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. A wakf for a limited period of time is void.17

In  Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad 18, 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.

15
A.A.A Fyzee, Outlines Of Muhammdan Law, oxford University Press, 4th Edition, 1974.
16
D.F Mulla, Mahomedan Law, 18th Edition, 207 (1977)
17
Mst. Peeran v. Hafiz Mahd, (66) A. All. 201.
18
AIR 1963 SC 985

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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:

(a) soundness of mind and,

(b) 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.

Thus, the definition of the wakf as given in section 3(r) of the Wakf Act 1995, is
restrictive as it includes only a dedication by a person professing Islam and therefore
according to the Act only a Muslim may create wakf and a non-Muslim is prohibited to
create wakf. Whereas Hanafi law clearly allows a non-Muslim to create a wakf so also
other schools of Islamic Law.19

3) 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 20 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.

19
Supra note 1.
20
Moti Shah v Abdul Gaffar.

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Patna High Court has also held that a valid waqf may be constituted by a non-Muslim. 21
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 Imam bara).

In Tamil Nadu Wakf Board v S. Inam Sahib22 case it was held that non- muslim, cannot
create any wakf after relying on the acts of 1954 and 1955.

In Abdul Aziz v Golla Bhumayya23 case it was held that the wakf was valid.

Whereas Hanafi law clearly allows a non-Muslim to create a wakf so also other schools
of Islamic Law.

4) 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.

A wakf created during death illness (maraz-ul-maut) is-as in the case of gift-regarded as a
testamentary wakf.24

Legal Consequences of Wakf:

Once a wakf is complete, the following are the consequences –

21
Mundariya v Shayam Sundar, 1996.
22
83, Madras.
23
1982 (1) APLJ, Page 379.
24
Dr. Tahir Mahmood: The Muslim law of India, 271 (1980).

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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 Ali25, 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 26, it was held by Allahabad HC that
the wakf of a house built on land leased for a fixed term was invalid.

[Link] – 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.

Types of Wakf:
Wakf can broadly be divided into two parts:

a) Public wakf: such wakf gives benefit the public at large. Wakfs of such type do
not impose any kind of restriction e.g. Hospital, Bridges etc.

25
AIR1962SC1722
26
 (66) All 201

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  Quasi-public wakf: such wakf gives benefit party to the public and to the
private. Sometimes they give benefit to particular individual or a class of
individual.
b) Contingent wakf: If at the time of creation of wakf there is any kind of
contingency then it will be void. All the schools of muslim law are in agreement
that a contingent wakf is invalid.27
c) Private wakf: This wakf is also known as Alal-Aulad. It gives benefit to the
family, children or descendants. The Wakf Validating Act of 1913 was the first
legislation which talked about the private wakf. Prior to this Act private wakfs
were held void. But now it came to be recognized.

As pointed out by the Court in Tamil Nadu Wakf Board v. M. Ebrahim

Musuee28 Wakfs-alal-aulad are of two kinds:

(1) Wakf-alal-aulad simpliciter where the entire income is dedicated for the benefit, of
the wakif (if he is a Hanafi) his family, children and descendants, with the ultimate
benefit for the poor or for other purposes recognized by Mussalman Law as pious,
religious or charitable, after the extinction of the family, children or descendants of the
settler.

(2) Wakf-ala-aulad composite where a portion of the income is dedicated for the poors or
other purposes recognized by Muslim Law as religious, pious or charitable and the
remaining portion for the benefit of the wakif (if he is Hanafi) his family, children and
descendants, with that remaining portion being reserved for the poor or for other purposes
recognized by Muslim Law as religious, pious or charitable after the extinction of the
family, children or descendants of the founder.

The Wakf Act does not apply to Wakf-alal-aulad simpliciter as there is no immediate
benefit to objects of a public nature. The Act applies only to wakf-alal-aulad of a
composite nature and that too to the extent to which the property is dedicated for
purposes recognized by Muslim Law as pious, religious or charitable.29
27
Habib Ashraff v. Syed Wajibuddin, (1933) 144 I.C 654. Baillie; 564.
28
AIR 1979 Mad. 231.
29
The laws of Wakf: An analytical and critical study by S.A Kader, p. 98.

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Kinds of private wakf:

These may be of three kinds: —

(i) Exclusively for the family:

Wakfs for the family are recognized by the Muslim Law. The view is expressed by
Ameer Ali relying on a number of traditions of the prophet that a wakf even exclusively
for the benefit of the wakif's family (without any provision for charity) is a valid one 30.
But this view of Ameer Ali was disapproved by the Privy Council and it was held that
wakf exclusively for one's family was not a wakf for charitable purposes and was
therefore invalid.31 

(ii) Wakfs substantially for the family with some provisions for charity:

Prior to the passing of the Act 1913 it was held by the privy Council that if the primary
object of the wakf was the aggrandizement of the family, there the wakf would be invalid
even if there was some gift of an illusory kind for charity.

A wakf both for the charity and for the benefit of the family was valid only if there was a
substantial dedication of the property to charitable uses but not otherwise. 32 Under Act,
1913 wakf substantially for family is recognized the only condition being as ultimate
dedication to charity. The Act is intended to expand the law relating to wakfs and not to
restrict.

(iii) Wakfs substantially for charity with some provision for the family:

Even before the Act, 1913; wakf, the primary object of which was a permanent
dedication of the property to charity held to be valid even though there was private
settlement in favor of the wakif himself or his family.

Such wakfs have thus been always valid and are valid even now without invoking the
provisions of the wakf Act of 1913.33

30
Bikani Mia v. Shuk Lal Poddar and another I.L.R. 20 Cal. 116 (p. 341)
31
Abul Fata Mohammad v. Rasamaya, I.L.R 22 Cal. 619 (P.C)
32
Abdul Fata Mohammad v. Rasamaya (I.L.R 22 Cal. 619 (PC)
33
Mohammad Ahsnullah v. Amarchand, I.I.R 17 Cal. 498. (P.C)

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ADMINISTRATION OF WAKFS34
This concept has evolved over more than one and a half thousand years before the birth
of the English doctrine of trusts and uses. No parallel system ever existed anywhere in
this world before the advent of Islam. 

In India alone there are over a lakh wakfs with an estimated value of over 10 million 35.
Taking into account this vast public asset wakf can become successful machinery not
only for the preservation of religious and charitable institutions but also for educational
and economic development of the community

Mal-administration, encroachment and neglect of the wakf properties have prompted to

pen down certain things in this regard. 

After the creation of wakf the next important aspect is that of its administration.
Generally, it is administered by mutawalli appointed either by the waqif or the Court.
However, for the purposes of checks and balances there are certain statues. Thus, a wakf
can be administered in two ways:

 Non-statutory
 Statutory

1) Non-statutory administration

 Mutawalli:

The mutawalli is the manager of the wakf. The property does not vest in him but in the
Almighty. He is there only to manage and superintend the property in consonance with
the objects of the wakf. Any person who is competent to administer property may
become a mutawalli irrespective of faith or sex. This rule however is not applicable

34
Prof. Iqbal Ali Khan and Saba Alam, Administration of Wakf's Properties - Fallacies and Realities, 18
ALJ (2007-08) 189
35
Report on the working of the Central Wakf Council available at: Central Wakf [Link]

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where performance of religious duties is coupled with mutawalli ship. Thus, the
following persons may act as mutawalli:

 Waqif himself and his descendants

 Females
 Non-Muslims
 Sunni in a Shia wakf or vice versa36

 Powers of a Mutawalli:

A mutawalli can do everything that is necessary and reasonable for the protection and
administration of the wakf. He has the following powers:

 He has the power of management and administration of wakf properties.

 He can utilize the properties and spend them towards the achievement of the
objects of wakf.
 He can manage and supervise the wakf properties.
 Subject to certain conditions he can grant lease.

 Limitations:

The powers of the mutawalli are in no case absolute. They are subject to the following
limitations:

 He cannot sell, mortgage or alienate wakf property, without the permission of the
Court of Wakf Board.
 He cannot transfer his duties, functions and powers to anybody else, unless
authorized by the wakf deed or any positive custom.
 He cannot borrow money for spending it on beneficiaries, but can do so only for
necessities, e.g. repairs.

36
Syed Khalid Rashid: Muslim Law, Eastern Book Company, 5th edition 2016

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  He cannot lease wakf property for more than year in case of non-agricultural land,
and for more than three years in case of agricultural lands, unless sanctioned by
the court.
 He cannot spend on mere improvements of the wakf properties.
 He cannot sue for the possession of wakf properties. The power is now vested in
the Wakf Board by virtue of the Wakf Act 1954.37

Despite all these limitations, the Mutawallis are acting like a king and perhaps there is no
reported case low showing any action against them.

 Removal of Mutawalli:

A mutawalli can be removed either by the waqif or by the court.

 By the waqif: Abu Yusuf says that even the waqif has not reserved the right to
remove the mutawalli in the wakf deed, he can nevertheless remove him.
However, Imam Mohammed has said that unless there is such a reservation, the
waqif has no right to remove the mutawalli.
 By the court: The court can remove the mutawalli on the grounds of breach and
neglect of duties. The court can remove even the waqif himself if he happens to
be the mutawalli and guilty of some offence. The authority of the court of law in
matters of removal is first and final.

A mutawalli can also be removed by the Wakf Board in the exercise of its statutory
powers. The same will be dealt later under the head statutory administration of wakfs.38

2) Statutory administration:

The history of statutory administration of wakfs can be studied under the following
heads:

 The period of non-intervention 1765-1863

37
Supra note 5 p. 204.

38
Supra note 5 p. 204.

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  The period of partial intervention 1863-1923
 The period of legislative efforts 1923-1954.

 The period of non-intervention:

The statutory administration of wakfs can be traced back to the year 1765. This period
saw the dawn of British administrative control in india. From the very beginning the
British adopted a policy of noninterference so far as the personal laws of the Indians were
concerned.39 Thus, for a while the company did nothing to interfere either in the
administration of wakfs or trusts that continued to be run on similar lines as under the
Mughals.40 

 Period of partial intervention:

The Act of 1863 unburdened the Government officers from directly governing the native
endowments. As a result, the following consequences ensued:

 Regulation XII of 1810 of the Bengal Code and Regulation VII of 1817 of the
Madras Code were repealed.
 The Act was applicable only to public endowments.
 The Government was divested of all responsibilities of managing the native
endowments.
 Endowed properties were transferred to trustees or managers and local
committees were constituted in accordance with the wishes of those interested in
the maintenance of such institutions.
 The jurisdiction to try all disputes relating to wakfs was conferred on the District
Courts. (S. 14 and 15)

However, this step did not much better result. The most important reason for its failure
was the abolition of the posts of Qazis and Pundits who were earlier appointed to assist
the English judges in matters of personal law. This led to gross miscarriage of justice.

39
M.B Ahmed: Administration of Justice in Medieval india,Aligarh 1941 p. 281.
40
Syed Khalid Rashid: Wakf Administration in india: 1978 p. 11.

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Later, the Madras Government made in 1876 and the Government of India the act 1863
made but failed in preventing the maladministration of wakfs.

Similar proposals were made to the Governments of Bengal and Bombay. As a result,
several Bills were introduced both in the Councils and the Council of the Governor
General of India.

Later in 1890, the Charitable Endowments Act was enacted for the administration of
public endowments of a non-religious character. The Act provided for the appointed of a
Treasurer of Charitable Endowments for the whole of the country.

In 1908 the Code of Civil Procedure was enacted. Provisions were made in this code by
virtue of Sections 92 and 93 to prevent the mal administration of wakfs. But this step
made the administration of wakfs more cumbersome in more ways than one. By the turn
of the century, dissatisfaction gave way to agitation. There were recommendations,
representations and resolutions from every corner of the country.

Thus, the government was forced to abandon its old policy of non-interference and the
Wakf Validating Act of 1913 was Enacted.

 1913-Present Day:

All the regulatory or supervisory enactments referred to as above were of a general

nature, governing endowments of every community and having limited scope.

 The Mussalman Wakf Act 1913: As above-mentioned Acts had failed to curb
malversation the Mussalman Wakf Act 1913 was passed “to make provisions for
the better management of wakf property and for ensuring the keeping and
publication of proper accounts”.

Section 3 of the Act made it mandatory for the mutawalli of every wakf, to furnish to the
court, a statement containing such particulars of the wakf as description of property,
income and expenditure. It provided for-penalties for furnishing false accounts.

Reasons of failure: The Act suffered from the following drawbacks:

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  It relied heavily on the Civil Courts in all matters which failed to strictly
implement its provisions due to scarcity of time.
 It did not confer any authority on the court to direct a mutawalli to file a statement
of accounts.
 It did not lay down a remedy in case the holder of property denied its wakf
character.41

 Post-independent legislations:

 The Bihar Wakf Act 1947

 The Bombay Public Trusts Act 1950
 The Dargah Khwaja Saheb Act 1955
 The Public Wakfs (Extension of Limitation) Act 1959
 The UP Muslim Wakfs Act 1960

 The Wakf Act 1954: The Wakf Act 1954 is a substantive piece of legislation. It
is a landmark in the history of wakf administration in india. By constituting
unofficial Boards vested with considerable authority and powers, by imposing a
precise 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.

 The wakf act 1995:

The Wakf Act 1995 is an exhaustive piece of legislation which is in force all over india
barring the state of Jammu and Kashmir and Dargah Khwaja Saheb, Ajmer which has a
separate legislation to manage its affairs.

41
Supra note 22 p. 27-28.
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This Act aims to provide for better administration and supervision of wakfs. Although
the Act of 1954 was a good piece of legislation, its actual working revealed several flaws
in it as also in the set-up of the Wakf Boards, in particular the power of superintendence
and control over the management of the individual wakfs.

The Act was amended three times in 1959, in 1964, and in 1969. On the
recommendations of the Wakf Inquiry committee, comprehensive amendments were
made in the Act in 1984. The amendments of 1984 were strongly opposed and it was
decided to enact a new law.

Thus, the Act of 1995 was enacted incorporating the features of the Act of 1954 and such
provisions of the amending Act of 1984 on which there was a near consensus.

 Wakf Boards:

The Act provides for the establishment of Board of Wakf for both states and the Union
Territories.

 Central Wakf Council:

The Act envisages the establishment of a Central Wakf Council for the purpose of
advising the Central Government on matters concerning the working of the Boards and
due administration of wakfs.

 Wakf Tribunals:

The Act has ousted the jurisdiction of civil courts in disputes relating to wakf and has
vested it in the Wakf Tribunals.

Conclusion and suggestion:

The dismal conditions of wakfs calls for administrative and organizational reforms. At
present, the management of Wakf properties is seriously impaired both due to high
incidence of litigation and poor management. Often important Wakf cases, and thereby
valuable properties, are lost because of lack of financial and administrative resources.
Therefore, strengthening Wakf Boards administratively with necessary financial and legal
back-up is absolutely necessary. The following steps are recommended: —

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  The wakfs can be developed on modern lines to grow in consonance with their
objects. For e.g. it can be developed as a shopping center, market, housing flats
and the like. Thus, development and charity both can be attained.
 The administrative and judicial process concerning wakfs should be enhanced and
quickened.
 Frequent reports should be given to the Wakf Board relating to development
works undertaken to improve wakfs.

Bibliography:

Books:

1) Syed Khalid Rashid: Muslim Law, Eastern Book Company, 5th edition 2016
2) A.A.A Fyzee, Outlines of Muhammdan Law, oxford University Press, 4 th Edition,
1974.
3) Dr. Ahmedullah Khan, Commentary on The Law Waqf In India, Asia Law House,
6th edition, 2014.
4) Mulla, Principles of Mahomedan Law, Lexis Nexis, 22nd Edition, 2017

Research articles:

1) Syed Khalid Rashid, Law of Wakf in India in the Light of Certain Existing Legal
Realities, 6-17 ALJ (2001-02) 35 available at: [Link]
2) Dr. Mohd. Wasim Ali, Institution of Wakf in Islam: Genesis and Development, 18
ALJ (2007-08) 125 available at: [Link]
Case Laws:

1) Sayyed Ali v. A.P Wakf Board, 1998 2 SCC 642

2) Vidya Varuthi v. Baluswami iyer (1921) 48 IA-302

3) Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad,AIR 1963 SC 985

4) Tamil Nadu Wakf Board v S. Inam Sahib, 83, Madras.

5) Abdul Aziz v Golla Bhumayya, 1982 (1) APLJ

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6) Md. Ismail vs Thakur Sabir Ali, AIR1962 SC 1722

7) Mst Peeran vs Hafiz Mohammad, (66) All 201

8) Tamil Nadu Wakf Board v. M. Ebrahim Musueen, AIR 1979 Mad. 231.

9) Moti Shah v Abdul Ghaffar khan, 1956 Nagpur.

10) Kassimiah Charities v Secretary Madras State Wakf Board, 64 Mad.

11) Rahiman v. Bagndan, (1936) 11 Luck. 735; 5 D.L.R 109.

12) Habib Ashraff v. Syed Wajibuddin, (1933) 144 I.C 654

13) Bikani Mia v. Shuk Lal Poddar and another, I.L.R. 20 Cal. 116 

14) Abul Fata Mohammad v. Rasamaya, I.L.R 22 Cal. 619 (P.C)

15) Abdul Fata Mohammad v. Rasamaya, (I.L.R 22 Cal. 619 (PC)

16) Jeewan Dass Sahi v. Shah Kubeeruddin (1998) 2 SCC 642

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