Abstract.

The institution of Waqf has developed with Islam. There were no auqaf or any such parallel
institutions in Arabia before the advent of Islam. Credit must be given to the Muslim jurists
for having developed the jurisprudence of Waqf.

Although there is no mention of Waqf in Quran but such Quranic injunctions which deal with
charity are at the root of the development and extension of auqaf. One of such Quranic verse
is, ” Giving alms to the poor has the reward to one alms, but that giving to kindred has two
rewards”.

The law of Waqf, writes Ameer Ali, is “most important branch of Muslim Law, for it is
interwoven with the entire religious life and social economy of Muslim. Waqf in its literal
sense means detention or stoppage”.

Khawaja Mohammad Noor observes that the legal meaning of Waqf according to the
accepted Doctrine of the Hanafi School is the extension of the proprietor’s ownership in the
thing dedicated and its detention in the implied ownership of God in such a manner that the
profits may revert to and be applied for the benefits of the mankind”. Waqf under the Muslim
Law owes its origin to a rule laid down by the Prophet of Islam; and means, “the tying up of
property in the ownership of the God almighty and the devotion of the profits for the benefit
of human beings”. As the result the creation of a waaqif in the property is extinguished and
the ownership is transferred to the Almighty.

DEFINITION

When we talk about the term ‘Waqf”, it literally means ‘detention, ‘stoppage’ or ‘tying up.
Technically it means a dedication in perpetuity of some specific property for a pious purpose
or a succession of pious purposes.

As defined by a Muslim Jurist, Abu Hanifa, Waqf means it is the detention of a specific thing
in the ownership of the waaqif or appropriator, and the devoting its profits or usufruct to
charity, the poor, or other good objects, in the manner of areeat or commodate loan.

Another eminent Muslim Jurist, Abu Yusuf defined Waqf as the detention of a thing in the
implied ownership of almighty God in such a manner that its profits may revert to or be
applied to the benefit of hid creatures.
The Shara-ya-ul-Islam says, “Waqf is a contract the fruit or effect of which is to tie up the
original and to leave its usufruct free”.

The most comprehensive and simple definition of ‘Waqf’ is given in the Mussalman Waqf
Validating Act, 1913 under Section 2 explains that waqf is the permanent dedication by a
person professing the Mussalman faith by any property for any purpose recognised by
Mussalman Law as religious, pious or charitable.

The Waqf (Amendment) Act, 2013 has substituted the definition of ‘Waqf’ in Section 3(r) of
the Act 1995. It defines Waqf as the permanent dedication by any person of any movable or
immovable property for any purpose recognised by the Muslim Law as religious, pious or
charitable.

ESSENTIALS OF WAQF

SUNNI LAW

The essentials of a valid waqf according to the Hanafi School (Sunni Law) are as follows:

1. Permanent dedication of any property – The dedication of property for waqf must be
permanent and the waaqif himself devote such property for the recognized purpose like
religious, charitable or pious. If waqf made by the waaqif is for a limited period then such
waqf is not a valid one and also there must not be any such condition or contingency should
be attached otherwise then it will become invalid. Further, in Karnataka Board of Waqfs v.
Mohammad Nazwer Ahmed, the house was dedicated by a Muslim merely for the use of
travellers irrespective of their religion and status. The Court was of the opinion that it was not
a waqf on the ground that under Muslim Law a Waqf must have a religious and pious motive
and it must be for the benefit of Muslim community only and even if is secular in nature then
the charity should be for the poor only.

2. Competency of the Waqf – The dedicator (waaqif) should be a person professing

3. For any purpose recognised by Muslim Law – This is also called the object of waqf. Thus
the third essential of a valid waqf is that the dedication should be for a purpose recognised as
religious, pious or charitable under Muslim Law.
SHIA LAW

According to Shia Law, ” waqf is a contract, the fruit or effect of which is to tie up to the
original and to have its usufruct free” (Sharya-ul-Islam) .

The ‘Sharya-ul-Islam’ mentions four conditions aa being required in the subject of waqf.
These are as follow:

1. As in Sunni law, it must be perpetual.

2. It must be absolute and unconditional.

3. The possession must be given of the thing appropriated (unlike Sunni law where mere
declaration is sufficient).

4. It must be entirely taken out of waaqif. It means that the waaqif should not reserve any
right or interest, even the usufruct of the dedicated property.

WHO CAN CREATE WAQF?

1. The person who is constituting waqf out of his own properties is called the founder of waqf
or waaqif. The person who is dedicating his property must be competent enough to do so.
There are some following conditions which need to be followed to become a waaqif and
constitute a waqf-

The person must be a Muslim. The High Courts of Madras and Nagpur have observed that a
non-Muslim can also constitute a valid waqf provided that the objective of such waqf must
not be against the principles of Islam. Further, the Patna High Court was of the opinion that a
valid waqf can be constituted by a non-Muslim but such a waqf would only be created under
a public waqf and cannot be a private waqf, for example, an Imambara.

The person should be of sound mind. Any person who is not of sound mind is incompetent to
create a waqf property on the ground such person is unable to judge the legal consequences of
such an act. Hence, a waqf created by an insane or minor is void.

The person should have attained the age of majority.

2. Any individual may profess the capacity to constitute a waqf but may not have any right to
constitute a waqf. The person of such kind cannot constitute a valid waqf. The subject matter
of the waqf constituted should be owned by the Waaqif at the time waqf is created. The
question of creation of waqf depends upon that a waqf can be created by a particular person
depends upon whether there exists a legal right for the waaqif to transfer the ownership of the
property or not.

A waqf of any property which is held by a widow in lieu of her unpaid dower then such
property cannot be constituted by her because she is not an absolute owner of such property.

If a pardanashin lady wants to dedicate her property for creation of waqf then it is the duty of
the beneficiary and the mutawalli to prove that woman had exercised such thing with her
mind independently and after fully understanding the nature of such transaction.

3. A person can dedicate his entire property to constitute waqf but in case of the testamentary
waqf, more than one-third of the property cannot be dedicated for such purpose.

LEGAL INCIDENTS OF WAQF

1. Irrevocability – The view of Abu Hanifa is that a waqf can be revoked by waaqif, unless
the declaration has been confirmed by a decree of a Court. But Abu Yusuf takes a contrary
view and hold that a declaration of waqf is in its nature irrevocable. The opinion of Abu
Yusuf is followed in India.

2. Inalienability – As the waqf property belongs to God, no human being can alienate it for
his own purposes.

3. Perpetuity – It is an essential condition of waqf. A waqf for a limit period is invalid.

4. Pious or charitable use of usufruct – The product and benefits of the waqf property are
utilised for such purposes which are recognized as religious, pious or charitable under
Muslim Law.

5. Absoluteness – The settlement of the property in waqf is absolute. A conditional or

MODES OF CREATION OF WAQF

Waqf can be created by the following modes-

1. By an act inter vivos – It means ‘between living voices, i.e., during the lifetime. A waqf
under this mode is which is constituted during the lifetime of the waaqif and takes effect from
that very time
2. By will – It is contradictory to the waqf created by an act inter vivos, which means that it
takes effect after the death of the waaqif.

3. 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.

4. By immemorial user- Waqf property can be established by way of immemorial user

COMPLETION OF WAQF

The question as to how a waqf is completed, may be studied from the following two angles-

1. Where third person is appointed as the first mutawalli.

2. Where founder constitutes himself as first mutawalli, i.e., manager or superintendent.

KINDS OF WAQF

Under Muslim Law, waqfs have been classified into two categories :

1. Public waqf – A public waqf is one for public, religious or charitable purposes.

2. Private waqf – It is one for the settlor’s own family and descendants and is technically
called, waqf-ulal-aulad. However, it is a family settlement by way of waqf.

WAQF ACT, 1913

The salient features of The Mussalman Waqf Validating Act, 1913 are the following-

1. According to this Act, a Muslim can tie up his property in perpetuity for the purpose of
supporting his family and children, provided that he makes a provision that the ultimate
benefits should go to the charitable object of a permanent nature.

2. Under this Act, it is not necessary that there should also be a concurrent gift to charity. A
Muslim need not provide for any gift to charity until after the extinction of the whole line of
descendants of the settlor’s family.

3. According to this Act, a Hanafi Muslim cannot enjoy the whole income or a life interest in
the income of the trust property. He can only share in the income by way of maintenance.
4. The objective of the Act is explained under Section 3 of the Act, it states that it is lawful
for a Muslim person to constitute a waqf which in all other aspects in accordance with the
provisions of Muslim law, for the following purposes:

a) For maintaining and supporting his family, children or descendants wholly or partially.

b) If a person who is creating a waqf is Hanafi Muslim, also for his own maintenance and
support during his lifetime or for the payment of his debts our of rents and profits of the
property dedicated.

THE STATUTORY AND ADMINISTRATIVE CONTROL OF WAQFS

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

1. Charitable Endowments Act, VI of 1890

2. Official Trustees Act II of 1913

3. Religious Endowments Act XX of 1863

4. Section 92 and 93 of The Code of Civil Procedure, 1908

5. Charitable and Religious Trusts Act XIV of 1920

MUTAWALLI.

The manager or superintendent of the waqf is known as Mutawalli. Under the Muslim
system, in case of a waqf, all the rights of ownership to the property vest in God. The
Mutawalli has no right in the property. He is merely a manager of the property.

In Allah Rakhi v. Shah Mohammad (AIR 1934 PC 77), the judicial committee called
Mutawalli as ‘procurator’. It is not correct to say that holder of the post of a Mutawalli is not
the holder of a mere office but is the holder of a property.

Conclusion.

Thus a wakf is the permanent dedication of property the ownership of which vests in God and
the benefit arising out of it is used for the betterment and benefit of mankind.
Bibliography.

1. Mulla, Principles of Mohammedan Law, (New Delhi: Lexis Nexis, 2019).

2. [Link]
muslim-law/

3. [Link]