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WAKF
Literal meaning of the word waqf is ‘detention’. In the
language of law, waqf means detention of a property so that
its produce or income may always be available for religious
or charitable purposes. When a waif is created, the property
is detained or, is ‘tied up’ forever and thereafter becomes
non-transferable.. There is object behind making a wakf.
Office of Mutawalli (manager) is very important. There are
many modes to create waqf. The law of waqf is “the most
important branch of Mohammedan Law for it is interwoven
with the entire religious life and social economy of Muslims.

MEANING

When Muslim a person who is working for charitable

purpose under religious faith and sometimes for the beneft
and upliftment of the society, has donate his property in the
name of Allah is called waqf. 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. Details are given
in old texts about wakf made by prophet. It is observed in M
Kazim vs A Asghar Ali that technically, it means a
dedication of some specifc property for a pious purpose . As
defned by Muslim jurists such as Abu Hanifa, Wakf is the
detention of a specifc thing that is in the ownership of the
waqif or appropriator, and the devotion of its profts or
usufructs to charity, the poor, or other good objects, to
accommodate loan. Wakf Act 1954 defnes Wakf as, “Wakf
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.”
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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 Wqif himself must
divot of such property and gave it for any purpose
recognized by Muslim law, like religious, pious or
charitable. If the wakf is made for 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 beneft 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 fction 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 capacity of a Muslim for making a waqf,
there are only two requirements:

(i) soundness of mind and,

(ii) majority.
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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
metter of wakf should be owned by wakif at the time
when wakf is made. Whether a person has 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

benefciaries 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 entire

property but in case of testamentary wakf more than
one third of his property cannot be dedicated.
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KINDSOFWAQF

Generally there are two types of wakf:

1. PublicWakf
2. PrivateWakf

VALID OBJECTS OF WAKF

An essential for the validity of wakf is that the

dedication should be for a purpose recognized as religious,
pious or charitable, under Musalman. On basis of decided
cases and the text of eminent Mohammedan Jurists, certain
objects which had been declared to be valid objects of wakf
are:

1. Mosque and provisions for Imamas to conduct

worship.
2. Celebrating the birth of Ali Murtaza
3. Repairs of Imambaras.
4. Maintenance of Khankahs.
5. Reading the Koran in public places and also at private
houses.
6. Maintenance of poor relations and dependant.
7. Payment of money to Fakirs.
8. Grant to an Idgah.
9. Grant to the college and provisions for professors to
teach in colleges.
10. Bridges and Caravan Sarais.
11. Distribution of alms to poor persons, and assistance to
the poor to enable them to perform pilgrimage to
Mecca.
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12. Keeping Tazias in the month of Moharram, and

provisions for camels and Duldul for religious
processions during Moharram.
13. Celebrating the death anniversary of the settler and of
the members of the family.
14. Performance of ceremonies known as Kadam Sharif.
15. The construction of a Cobat or free boarding house for
pilgrims at Mecca.
16. Performing the annual Fateha of the members of his
family.
17. A Durgahor or shrine of a Pir which has long been held
in veneration by the public.

The following are not recognized as valid objects of

wakf, by the Musalman law.

1. Objects prohibited by Islam, e.g. erecting or

maintaining a church or temple.
2. A wakf for the perairs of the waqifs secular property is
invalid according to Shea law.
3. Providing for the rich exclusively.
4. Objects which are uncertain.
5. A direction to spend a certain sum of money for
feasting Cutchi Memons every on the anniversary of
the anniversary of the settler’s death is not valid.

CREATIONOFWAKF

Muslim law does not prescribe any specifc way of

creating a Wakf. If the essential elements as described
above are fulflled, 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 his dedication of his property for Wakf.
This can also be done while the person is on death bed
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(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
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. 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 for ever. Wakf cannot be of a
specifed time duration. In Mst Peeran vs Hafz
Mohammad, it was held by Allahbad HC that the wakf
of a house built on a land leased for a fxed 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.
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6. Extinction of the right of wakif – The wakif loses all

rights, even to the usufructs, of the property. He
cannot claim any benefts 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 ofence as per Wakf Act.1995.

OFFICE OF MUTAWALLI

Mutawalli is nothing but the manager of a wakf. He is

not the owner or even a trustee of the property. He is only a
superintendent whose job is the see that the usufructs of
the property are being utilized for valid purpose as desired
by the wakif. He has to see that the intended benefciaries
are indeed getting the benefts. Thus, he only has a limited
control over the usufructs. In Ahmad Arif vs Wealth Tax
Commissioner, SC held that a mutawalli has no power to
sell, mortgage, or lease wakf property without prior
permission of the court or unless that power is explicitly
provided to the mutawalli in wakfnama.

Who can be a mutawalli – A person who is a major, of

sound mind, and who is capable of performing the functions
of the wakf as desired by the wakif can be appointed as a
mutawalli. A male or female of any religion can be
appointed. If religious duties are a part of the wakf, then a
female or a non-muslim cannot be appointed. In Shahar
Bano vs Aga Mohammad , Privy Council held that there is
no legal restriction on a woman becoming a mutawalli if the
duties of the wakf do not involve religious activities.

Who can appoint a mutawalli – Generally, the wakif

appoints a mutawalli. He can also appoint himself as a
mutawalli. If a wakf is created without appointing a
mutawalli, in India, the wakf is considered valid and the
wakif becomes the frst mutawalli in Sunni law but
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according to Shia law, even though the wakf remains valid,

it has to be administered by the benefciaries. The wakif also
has the power to lay down the rules to appoint a mutawalli

Powers of a mutawalli – Being the manager of the wakf, he

is in charge of the usufructs of the property. He has the
following rights –

1. He has the power to utilize the usufructs as he may

deem ft in the best interest of the purpose of the wakf.
He can take all reasonable actions in good faith to
ensure that the intended benefciaries are benefted by
the wakf. Unlike a trustee, he is not an owner of the
property so he cannot sell the property. However, the
wakif may give such rights to the mutawalli by
explicitly mentioning them in wakfnama.
2. He can get a right to sell or borrow money by taking
permission from the court upon appropriate grounds
or if there is an urgent necessity.
3. He is competent to fle a suit to protect the interests of
the wakf.
4. He can lease the property for agricultural purpose for
less than three years and for non-agricultural purpose
for less than one year. He can exceed the term by
permission of the court.
5. He is entitled to remuneration as provided by the
wakif. If the remuneration is too small, he can apply to
the court to get an increase.

Removal of a mutawalli –

Generally, once a mutawalli is duly appointed, he

cannot be removed by the wakif. However, a mutawalli can
be removed in the following situations –

1. By court –

1. if he misappropriates wakf property.

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2. Even after having sufficient funds, does not

repair wakf premises and wakf falls into
disrepair.
3. Knowingly or intentionally causes damage or loss
to wakf property. In Bibi Sadique Fatima vs
Mahmood Hasan , SC held that using wakf
money to buy property in wife’s name is such
breach of trust as is sufficient ground for removal
of mutawalli.
4. he becomes insolvent.

2. By wakf board – Under section 64 of Wakf Act 1995,

the Wakf board can remove mutawalli from his office
under the conditions mentioned therein.
3. By the wakif – As per Abu Yusuf, whose view is
followed in India, even if the wakif has not reserved the
right to remove the mutawalli in wakf deed, he can still
remove the mutawalli.