Wakf under Muslim Law

Introduction:

A wakf under Muslim law is basically a religious and devout obligation, however, provisions are here and there likewise made for a noble cause and to help oneself, one’s youngsters and Descendents (alal-aulad). The beginning of wakf is followed to an expression of the Prophet The expression is most often cited and is seen as the briefest meaning of the Wakf – “Tie up the substance and give away the fruit”. Be that as it may, at the very beginning of Islam, the law of wakfs had experienced very uncommon vulnerability. It was extraordinarily in the second century after the flight that an assortment of rules that were based on ijma (agreement) was created which might be seen as the premise of the law of wakfs.

In the hundreds of years that followed not simply the land however wide range of property, movable and immovable were made the subject matter of wakfs. Over the span of time, the Muslim community found that the “dead hand” (as wakfs were allegorically called and which in truth they had become) was attempting to crush all advancement and success. Tremendous stretches of land and all different sorts of properties were devoted to the wakfs everywhere over the Muslim community. There are around 1 lakh wakfs esteemed at in excess of a hundred crores of rupees in India.

Occasions of the botch of the wakfs are various; the inadequacy and deceit of the mutawallis are shocking and horrifying; not more than often, the properties of the wakfs are wasted away.

Under Muslim law, there are a few religious organizations for which a wakf can be made. Significant among them are a mosque, burial ground, dargah, takia, khanqah, and imambara.

Meaning

When a Muslim a person who is working for a charitable purpose under devout faith and sentiments and for the benefit and welfare of the society, has donated his property in the name of Allah is known as waqf.

Waqf in its true sense signifies ‘confinement’ stoppage or tying up, which means in this way that the responsibility for property is detracted from the individual making waqf and moved and kept by God. details about the wakf are given in old texts that ere made by the prophet.

It is seen in the case of M Kazim vs A Asghar Ali[1], that it implies the commitment of some particular property for some devout reason or severance of devout purposes. As characterized by Muslim law jurists, for Abu Hanifa, Wakf is the confinement of a particular thing that is in the ownership of the waqif or appropriator, and the dedication of its benefits or usufructs to a noble cause, poor people, or other good items, to oblige loan.

The Wakf Act of 1954 characterizes 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.”

Essentials conditions of a Legitimate Waqf

Waqf Under Sunni Law

Essential condition of a legitimate waqf, as indicated by the Sunni Law are:

1. Perpetual commitment to any property.
2. The dedicator (waqif) must be an individual who maintains the Mussalman faith and he is of a sound psyche and is a major and not a neurotic.
3. The devotion ought to be for a reason perceived by the Mussalman law as religious, devout, or altruistic.

1. Perpetual commitment of any property

The most significant importance of a valid waqf is that it ought to be ‘a permanent dedication of property’. It has these requirements.

• A commitment ought to be there.
• The commitment ought to be perpetual.
• The perpetual should be of any particular property.

The Waqf himself has the privilege to give away such property and give it for any reason perceived under the Muslim Law. In the event that the wakf is made for a restricted period, it can’t be considered as a legitimate wakf.

In the case of Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad,[2] it was held that “if a Muslim man gives his home to the voyagers regardless of their religion and status for them to stay, this can’t be considered as a legitimate Wakf on the ground that under Muslim law a Wakf has a religious thought process, that it ought to be made to help Muslim population. At the point when a Wakf is being constituted, it’s always an assumption that it is a gift of some property, made for God. This is a lawful fiction.

2. By a person professing Mussalman faith

The individual making a waqf ought to be an adult Muslim of the sound psyche.

3. For any purpose recognized by Muslim Law

The primary target behind making a waqf is that it ought to be committed for a reason perceived as religious, devout, or altruistic under Muslim law.

The Doctrine Of Cypress

Cypres truly signifies “as near as possible”, the doctrine sets out that if a beneficent expectation has been communicated by the dedicator, a wakf (or trust) won’t be permitted to fail on the grounds that the item specified by the settlor has failed; in such a case the payment will be applied to serve poor people or to objects as close as could be possible under the circumstances.

Legal Consequences Of Wakf

After a wakf  has been complete, the following are the consequences:

1. Dedication to God: The property is vested in the name of God in the sense that no person can claim the ownership rights of the same. In the case of Md. Ismail v. Thakur Sabir Ali[3], the SC has held that even in wakf alal aulad, the property is committed to God and just the usufructs are utilized by the descendants.
2. Irrevocability: In India, a wakf once announced and complete, can’t be disavowed. The wakif can’t get his property back in his name in any other’s name.
3. Permanent or Perpetual: Perpetuality is a basic component of the wakf. When the property is given to wakf, it stays for the wakf for eternity. Wakf can’t be of a predetermined time length. The Allahabad HC in the case of Mst Peeran versus Hafiz Mohammad[4], the court had held that the wakf of a house that has been built on a land that was leased for a fixed term was invalid.
4. Inalienable: Since Wakf property is owned by God, no individual can estrange it for himself or some other individual. It can’t be sold or offered away to anyone.
5. Pious or beneficent use: The usufructs of the wakf property must be utilized for devout and charitable reasons. It can likewise be utilized for descendants if there should arise an occurrence of a private wakf.
6. Extinction of the privilege of wakif: The wakif loses all rights, even to the usufructs, of the property. He can’t claim any advantages from that property.
7. Power of court’s examination: The courts have the ability to review the working or the executives of the wakf property. Abuse of the property of usufructs is a criminal offense according to Wakf Act.1995.

Modes Of Creation Of Waqf

Waqf can be made by these modes:

1. By an act inter vivos: It signifies ‘between living voices, i.e., during the lifetime. A waqf under this mode is which is established during the lifetime of the waaqif and comes into effect from that very time
2. By will: It is conflicting to the waqf made by an act inter vivos, which implies that it comes into effect after the waaqif had passed away.
3. During death or illness (marz-ul-maut): As the blessings are made while the benefactor is on the death bed, it will work till the degree of 1/3rd of the property without the prior assent of the beneficiaries.
4. By immemorial user: Waqf property can be built up by a method of the immemorial user despite the fact that restriction of time is even applied to the making of waqf.

Completion of Waqf

The question with regards to how a waqf is finished might be studied from these two points

1. Where a third individual is selected as the first mutawalli.

2. Where the founder appoints himself as first mutawalli, i.e., administrator or director.

Kinds of Waqf

1. Public Waqf–It is made for the general population, devout or charitable purposes.
2. Private Waqf-This sort of Waqf is made for the settlor’s own family and his descendants and is even called ‘Waqf-ulal-Aulad’. It is a sort of family settlement as waqf.

Categories of Waqf from the Perspective of its Purpose

• Waqf ahli: the returns of waqf are assigned for the waqf organizer’s kids and their offspring. Nonetheless, these recipients can’t sell or discard the property subject-matter of waqf.
• Waqf khayri: the returns of waqf are reserved to good cause and charity. examples of recipients incorporate poor people and the penniless. Waqf khayri is commonly used to finance mosques, asylums, schools, and colleges. This is intended to help monetarily challenged people and communities.
• Waqf al-sabil: a waqf whose recipients are the overall population. It is fundamentally the same as waqf khayri, however, waqf al-sabil is typically used to set up and build the open utility (mosques, power plants, water supplies, cemetery, schools, and so on).
• Waqf al-awaridh: the yield of waqf is held available for later so it tends to be utilized now and again during a crisis or unforeseen occasions that adversely impact the business and prosperity of a network of individuals. For instance, waqf might be assigned as per the general inclination of some specific needs, for example, medicine for sick individuals who can’t pay medical costs and education of helpless kids. Waqf al-awaridh may likewise be utilized to fund support of the utilities of a town or neighborhood.

Kinds of Waqfs from the Perspective on its Yield Nature

• Waqf-Istithmar: Such a sort of waqf is made for utilizing the assets for investment. The said resources are looked after in such a manner with the goal that the money earned is applied for building and reproducing waqf properties.
• Waqf-Mubashar: The monetary assets of such a waqf are utilized to create services that would be of some benefit to some charity beneficiaries or different recipients. Examples of such resources incorporate schools, utilities, and so forth.

Waqf Act, 1913

The notable highlights of The Mussalman Waqf Validating Act, 1913 are as follows:

1. As indicated by this Act, a Muslim can tie up his property in ceaselessness to help his family and kids, given that he makes an arrangement that a definitive advantage ought to go to the altruistic object of a perpetual sort.
2. Under this Act, it isn’t fundamental that there ought to likewise be a simultaneous blessing to a noble cause. A Muslim need not accommodate any blessing to noble cause until after the elimination of the entire line of relatives of the settlor’s family.
3. As indicated by this Act, a Hanafi Muslim can’t appreciate the entire pay or a daily existence enthusiasm for the pay of the trust property. He can just partake in the pay by a method of support.
4. The target of the Act is clarified under Section 3 of the Act, it expresses that it is legitimate for a Muslim individual to establish a waqf which in all different perspectives as per the arrangements of Muslim law, for the accompanying purposes:
   1. For keeping up and supporting his family, youngsters, or relatives completely or halfway.
   2. If an individual who is making a waqf is Hanafi Muslim, likewise for his own upkeep and backing during his lifetime or for the installment of his obligations our of rents and benefits of the property committed.

The Statutory and Administrative Control of Waqfs in India

There are certain enactments which are provided for the creation and protection of public endowments, some of them are:

• Official Trustees Act II of 1913.
• Charitable Endowments Act VI of 1890.
• Religious Endowments Act XX of 1863, Section 14.
• The Code of Civil Procedure, 1908, Sections 92-93.
• Charitable and Religious Trusts Act XIV of 1920

Mutawalli

The chief or director of the waqf is known as Mutawalli. Under the Muslim framework, if there should arise an occurrence of a waqf, all the rights of proprietorship to the property vest in God. The Mutawalli has no privilege in the property. He is just a chief of the property.

In the case of Allah Rakhi v. Shah Mohammad[5], the judicial committee called Mutawalli as a ‘procurator’. It isn’t right to state that holder of the post of a Mutawalli isn’t the holder of a simple office yet is the holder of a property.

Who can be a Mutawalli

An individual who is not a minor and is of sound psyche, and who is fit for carrying out the functions of the wakf as wanted by the wakif can be designated as a mutawalli. A male or female from any religion can be appointed as a  mutawalli.  In the event where religious obligations are an aspect of the wakf, at that point, a female or a non-muslim can’t be designated.

In the case of Shahar Bano v/s. Aga Mohammad[6], Privy Council held that there is no lawful limitation on a lady turning into a mutawalli if the obligations of the wakf don’t include devout activities.

Who can appoint a Mutawalli?

As per the overall guideline, the person who founded the waqf delegates at the time of the formation of the waqf. In any case, in the event that a waqf is made without the arrangement of a mutawalli then these people are qualified to choose the Mutawaali:

• The executor of the founder;
• The mutawalli on his passing bed;
• The Court, which will be guided by the accompanying guidelines:

1. As far as could reasonably be expected, the Court ought not to dismiss the directions of the settlor.

2. Preference ought to be given to an individual from the settlor’s family over a stranger.

3. In an instance of a challenge between the settlor’s lineal relative and the person who is not a lineal descendant, the court of law is allowed to exercise its discretion.

Under certain conditions, a mutawalli may likewise be delegated by a religious gathering.

Powers and Duties of Mutawalli

A mutawalli may do all demonstrations that are sensible and appropriate for the assurance of the waqf property and the organization of the waqf considering the present situation of the case. With respect to his power and obligations, his position is much the same as that of a trustee. Being an administrator or director of the waqf, he has these rights:

1. Mutawalli has the option to utilize the usufruct for the wellbeing of waqf. Mutawalli is having the power to take every sensible choice and activities in good faith and guarantee that the end recipients are getting all the called profits by the waqf. Mutawalli isn’t the proprietor of the property so he is disallowed from selling the property.
2. Mutawalli can take authorisation from the Court with respect to sell and borrow cash by indicating the Court the presence of suitable grounds or presence of such a crisis.
3. A suit can even be filed by the Mutawalli for the protection of waqf’s interest.
4. While holding such a position the Mutawalli has the ability to rent the property for agricultural purposes for a term of less than 3 years and for a term of less than a year for non-agrarian purposes. The term can even be extended by taking a prior consent from the court of law.
5. The Mutawalli is qualified for payment as provided by the waqif. In the cases where the payment is exceptionally small, at that point he can move to the court of law for getting the payment upgraded.

Removal of a Mutawalli

When a mutawalli has been properly selected, then the wakif can’t eliminate him. The mutawalli can be eliminated in the following circumstances:

1. By the Court
   1. if the mutawalli is found to be misusing the wakf property.
   2. subsequently even after having adequate funds, if the mutawalli doesn’t repair the wakf premises due to which they falls into deterioration.
   3. If he purposefully causes harm or losses to the wakf property. The SC in the case of Bibi Sadique Fatima v Mahmood Hasan,[7] had held that using wakf cash for purchasing a property in the name of once spouse amounts to breach of trust as the same is a sufficient ground for the purpose of eliminating the mutawalli.
2. By a wakf board: As it has been mentioned u/s 64 of the Wakf Act 1995, a mutawalli can  be eliminated from his post by the Wakf board under any of the conditions that has been referenced herein.
3. By the wakif: According to Abu Yusuf, regardless of whether the wakif has not maintained the right to eliminate the mutawalli in the deed, he still has the right to eliminate him.

Conclusion

Wakf is the formation of property for devout or magnanimous purposes which is set up permanently. It likewise has the support of law i.e. binding in nature and enforceable by law. On the off chance that any individual is of the view that his rights have encroached then the individual may seek remedies from the Civil Court. The idea, powers, and obligations of mutawalli are vital to be studied under the subject of waqf. Such powers must be practiced if there exists a vacancy for the post of the mutawalli or in the event of a dispute with respect to the capability or qualification of existing mutawalli.

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References:

[1] AIR 1932 11 Patna 238

[2] AIR 1982 Kant 309

[3] 1963 SCR (1) 20

[4] AIR 1966 All 201

[5] (AIR 1934 PC 77).

[6] (1907) 9 BOMLR 85

[7] (AIR 1978 SC 1362)