Introduction

• In Islamic Law ‘Waqf’ means:
  • State land which is inalienable and used for charitable purposes; and
  • Pious endowments.
• ‘Waqf’ means ‘detention of a property’ so that its produce or income may always be available for religious or charitable purposes.

Definition

• According to Waqf Act, 1954, waqf means permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by Muslim law as pious, religious or charitable.
• A ‘Waqf’ may be made in writing, or the dedication may be oral. There must, however, be appropriate words to show an intention to dedicate the property. It is not necessary to use the word waqf.

Essential of Waqf

• Perpetuity: In a ‘Waqf’, the property is settled permanently so that its usufruct is always available for an indefinite period. There cannot be a ‘Waqf’ for a limited period.
• Irrevocability: Once it is created, the ‘Waqf’ cannot be revoked. As the property is deemed to vest in God.
• Inalienability: When a ‘Waqf’ is created, the property vests in the implied ownership of the God. Therefore, ‘Waqf’ property cannot be sold, transferred or encumbered. An alienation of the ‘Waqf’ property except for the necessities of the ‘Waqf’ and without the court’s permission is void.
• Absoluteness: The settlement of the property in ‘Waqf’ is unconditional and absolute. A conditional or contingent ‘Waqf’ is void.
• Religious or Charitable Use of Usufruct: The produce and benefits of the ‘Waqf’ property are utilized only for such purpose which are recognized as religious, pious or charitable under Muslim law.

Kinds of Waqf

• Public Waqf: - This is for public, religions or charitable purposes.

• Private Waqf: - This is for the settler’s family and descendants and is technically called wakf-alal- aulad.

Valid Objects of Waqf

• Mosque and provisions for Imams to conduct worship.
• Celebrating the birth of Ali Murtaza
• Repairs of Imambaras.
• Maintenance of Khankahs.
• Reading the ‘Quran’ in public places and also at private houses.
• Maintenance of poor relations and dependant.
• Payment of money to ‘Fakirs’.
• Grant to an ‘Idgah’.
• Grant to the college and provisions for professors to teach in colleges.
• Bridges and Caravan Sarais.
• Distribution of alms to poor persons, and assistance to the poor to enable them to perform pilgrimage to ‘Mecca’.
• Keeping ‘Tazias’ in the month of ‘Moharram’, and provisions for camels for religious processions during ‘Moharram’.
• Celebrating the death anniversary of the settler and of the members of the family.
• Performance of ceremonies known as ‘Kadam Sharif’.
• The construction of a cobat or free boarding house for pilgrims at ‘Mecca’.
• Performing the annual ‘Fateha’ of the members of his family.

The following are not recognized as valid objects of the waqf, by the Muslim law.

• Objects prohibited by ‘Islam’, e.g., erecting or maintaining a church or temple.
• A waqf for the repairs of the waqif’s secular property is invalid according to Shia law.
• Providing for the rich exclusively.
• Objects which are uncertain.
• A direction to spend a certain sum of money for feasting ‘Cutchi Memons’ every on the anniversary of the anniversary of the settlor’s death is not valid.

Creation of Waqf

• Muslim law does not prescribe any specific way of creating a ‘Waqf’. If the essential elements as described above are fulfilled, a ‘Waqf’ is created. Though it can be said that a ‘Waqf’ is usually created in the following ways –
  • By an act of a living person (inter vivos) – when a person declares the dedication of his property for ‘Waqf’. 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 Waqf.
• 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 waqf by will but now it has been approved.
• Life gifts made which donor labours under mazr-ul-maut, the waqf made during death illness will operate only to the extent of one third of the property without the consent of the heirs of the waqif.
• Lapse of time frequently renders it difficult or impossible to establish dedication by direct evidence but waqf may be established by evidence of immemorial user.

Legal Incidents of Waqf

• Dedication to God - The property vests in God in the sense that nobody can claim ownership of it. In Md. Ismail v. Thakur Sabir Ali (1962), Supreme Court held that even in waqf alal aulad, the property is dedicated to God and only the usufructs are used by the descendants.
• Irrevocability - In India, a waqf once declared and complete, cannot be revoked.
• Permanent or Perpetual - Perpetuality is an essential element of waqf. Once the property is given to waqf, it remains for the waqf forever. Waqf cannot be of a specified time duration.
• Inalienable - Since waqf 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.
• Pious or Charitable Use - The usufructs of the waqf property can only be used for pious and charitable purposes. It can also be used for descendants in case of a private waqf.
• Power of Court’s Inspection - The courts have the power to inspect the functioning or management of the waqf property. Misuse of the property of usufructs is a criminal offense as per Wakf Act.1995.

Case Laws

• Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, (1982):
  • The Karnataka High Court held that the dedication of house by a Muslim for use of all travelers irrespective of religion and status was held not to be a ‘Waqf’ on the ground that under Muslim law a ‘Waqf’ 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.
• Baqa Ullah Khan v. Ghulam Siddique Khan, (1955):
  • There was no express mention of any ultimate gift to charity, but the Allahabad High Court held that the waqf was valid because an ultimate gift to charity was implied in the very word ‘Waqf’.