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FAMILY LAW
TOPIC – WAKF

SUBMITTED TO
Dr. K.Y. DANYAL

BY
FAHIMUDDIN AHMED KAHN
B.A. L.L.B – 4th SEMESTER
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TABLE OF INDEX
Acknowledgement 3

Table of Cases 4

Books Referred 4

Introduction 5-6

- Origin History and Dvelopment 6-8

Wakf 9

Meaning and Definaton 9-11

Kind of wakf 11-13

Essential Requisite of a WAKF 13-16

Legal Incident of wakf 16-18

Creation of wakf 19-20

Other formalities 21-22

Administration of wakf 22-24

Current Status of wakf’s in India. 24-25

Conclusion 25-
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ACKNOWLEDGMENT

I would like to extend my heartfelt gratitude to my teacher, DR. K.Y.


DANYAL, without whose able guidance and support this project would not
have been possible. The resources of my college library as well as the internet
have been extremely contributory in the completion of my project. I want to
express my sincere thanks to my parents and friends for their love, support, co-
operation and help during the making of this project.

FAHIMUDDIN AHMED KHAN


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TABLE OF CASES
Abdul Satar v. Advocate General, AIR 1933 Bom. 87.

Ali Zamin v. Akbar Ali Khar

Chhedi Lal Misra v. Civil Judge, (2007) 4 SCC 632

Fuaad Musvee v. M. Shuaib Musvee, (2008) 4 CTC 59 (Mad)

H. Idayatulla v. Larabsha Dharga, (2007) 2 MLJ 1034.

Jewun Dass v. Shah Kubeer-Ooddin

Kanti v. Mirza Hossani

Kassimiah Charities v. Secy. Madras State Wakf Board, AIR 1964 Mad 18

Mohd. Mazhar Shaheed v. Distt. Collector, Mahboobnagar, (2005) 2 An LT


234.

Mohd. Yusuf v. Mohd. Sadiq, AIR 1933 Lah 501

Syed Ahmed v. Julaiha Bivi, 1947 Mad 480

T.N. Wakf Board v. Larabsha Darga, (2007) 13 SCC 416

Zain Yar Jung v. Director of Endowments, AIR 1963 SC 985

BOOKS REFERRED
Khalid Rashid : Muslim Law (Eastern Book Company, Lucknow) Fifth
Edition 2010.

Diwan, Paras : Muslim Law (1997, Allahabad)

Fyzee, A.A.A. : Outlines of Mohammadan Law (1974, New Delhi)


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INTRODUCTION

One and a half thousand years ago, long before the birth of the doctrine of uses
and trusts in English Law, Islamic Law recognized and developed a legal
expedient under the name of wakf, which permitted an owner to settle his
property for the use of beneficiaries in perpetuity.

The doctrine of Wakf which is "interwoven with the entire religious life and
social economy of Muslims”1 has laid down the foundations of one of the most
important institutions of the community. In India alone there are more than a 4.9
lakh wakfs valued at more than a Rs. 1.2 lakh crores (1,200 billion) of rupees.2

Considering their number and resources, [a] wakf can become a strong
instrument not only for the preservation of religious and charitable institutions,
but also for [the] educational and economic development of the
community. Wakfs constitute a national asset for a very large number of these
support schools, colleges, technical institute, libraries, reading-rooms, charitable
dispensaries and Musafirkhanas, etc., which benefit the public irrespective of
their religion or creed. It is of utmost importance, therefore, that wakfs should
be maintained properly and their resources should be utilised for the objects and
the purposes of dedications. But unfortunately, many of the existing wakfs have
not escaped the process of decadence brought in by the twin impact of neglect
and misuse.

The subject [of] "Wakf" is relat[ive] to Entry No. 10 "Trust and trustees" and
No. 28 "Charities and charitable institutions, charitable and religious
endowments and religious institutions" in the concurrent list attached to the 7th
Schedule to the Constitution of India. Supervision over the administration of

1
Ameer Ali, Vol. I at p. 193
2
PM’s High Level Committee on the status Indian Muslims
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wakfs is, therefore, the responsibility of both the Central and State
Governments.

Article 26 of the Constitution gives freedom to every religious denomination to


establish and maintain its religious and charitable institutions subject to public
order, morality and health. They are also allowed the right to administer the
properties of these institutions in accordance with the law. In other words, the
right of administration is left to the institutions themselves. Subject of course, to
such regulations as the law might choose to impose. But a law which takes the
whole right of administration is null and void. The regulatory laws assume their
importance out of the fact that in [the] case of public trusts and endowments,
some amount of control or supervision over their administration is necessary in
the interest of the public as a whole. Such laws are valid insofar as they do not
interfere with the internal matters of the institutions.

The State cannot, however, interfere in the establishment or maintenance of


religious and charitable institutions" or in the management of religious affairs.
The various religious denominations or sects are allowed to manage them in
accordance with the tenets of their religions. The only interference possible is
on grounds of public order, health and morality.

ORIGIN HISTORY AND DEVELOPMENT

The institution of wakf has developed with Islam. There are no Wakfs
or any such parallel institution in Arabia before the advent of Islam.
Credit must be given to the Muslim jurists for having developed the
legal theory of wakf.3

3
L.M.E. at p. 205.
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The Quran contains no reference to wakf but it abounds in injunctions in the


matter of charity,

"And in their wealth the beggar and the outcaste had due share." (Koran,
26:19)

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 knoweth." (Koran, 3:86).

A tradition on which jurist lay great stress and which may be assumed
as the basis of wakf, is that at the time of partition of Khyber, Caliph
Omar acquired some lands which were very valuable to him and
asked the Prophet whether he should give them away as sadaqa. The
Prophet replied: “Retain the thing itself and devote its fruit (usufruct)
to pious purposes” (Habis asle wa sabbil samarat). Omar did dis with
the provision that the land should neither be sold nor bequeathed. He
reserved it for the poor, needy relatives, slaves, wanderers, guests, and
for the propagation of the faith (fi sabl Allah).4

The institution of wakf came into its own after the death of the
Prophet, in the course of first century A.H. and assumed rigid legal
forms in the second century. Writing on wakfss in the Encyclopedia of
Islam, Heffening doubts that some foreign influence might have
worked on the development of this institution. He observes that after
the spread of Islam in various parts of the world,

4
Heffening in Ency. Of Islam, Vol. II at p. 1097
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“…the Arabs found in the conquered lands foundation for the public
benefit, for churches, monasteries, orphanages and poor-houses
(piacausac) and may have adopted this form for the practice of
charity recommended by their religion. These endowments of
Byzentine period were alienable, and managed by ‘administrators’,
and were under the supervision of Bishops…”

But this view is not acceptable to all. Very recently, a prominent


authority on wakf refuted this contention by observing thet “the
institution of wakf has developed with Islam and …there is no
evidence that such a complex system of appropriating usufruct as a
life interest to varying and successive classes of beneficiaries existed
prior to Islam”
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WAKF

MEANING AND DEFINATION

The word wakf literally means ‘detention’ and connotes tying up of property in
perpetuity.

The term wakf as defined in clause (1) of Section 3 of the Wakf Act, 1954,
means a permanent dedication made by a person professing Islam of any
movable or immovable property for any purpose recognised by the Muslim Law
as pious, religious or charitable and includes a wakf by the user, mashru-
ulkhidmat and wakf-alal-aulad to the extent the property is dedicated for any of
the purposes mentioned above.

For creation of wakf it is not necessary that the settler should be a Muslim. Any
non-Muslim can also create under the Muslim law a wakf provided the object of
the wakf is one which is recognised by Muslim Law as pious, religious or
charitable and his own religion treats the object in the same manner. The words
'professing Islam' in clause (1) of Section 3 have been purposely retained for
otherwise all charitable and many pious endowments of other communities
would have come within the purview of the Act because the purposes for which
they stand are also regarded as charitable or pious under the Muslim Law.

The Wakf (Amendment) Act, 1964, has amplified this definition by treating all
grants made for religious, pious and charitable purposes including mashru-ul-
khidmat as wakf and also as permanent dedications made for mosques, dargahs,
imambaras, takias, musafirkhanas, etc., by non-Muslims. Under the Muslim
Law, these dedications were always wakf but the definition contained in clause
(1) Section 3 had excluded them from the purview of the Act. In Kanti v.
Mirza Hossani, it has been held that land used for Masjids and for the
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Muharram festival from time immemorial is wakf and evidence of express


dedication is not necessary. When a long period has elapsed since the origin of
the alleged wakf, the user can be the only available evidence to show if the
property is wakf or not. When there is no evidence to show how and when the
alleged wakf was created, the wakf may be established by the evidence of a
user.

Moreover, according to the Wakf Act, ‘Wakf’ means the permanent dedication
by a person professing Islam". The words “professing Islam" are purposely kept
here to exclude charitable and pious endowments of other communities from the
purview of the Act. However, Section 60-C of the Act makes a special
provision for the creation of Wakf by non-Muslims, provided the object of the
wakf does not carry the words of a person professing Islam.

In Zain Yar Jung v. Director of Endowments,5 the Supreme Court held that
the objects of public utility which may constitute beneficiaries under the wakf
must be objects for the benefit of the Muslim community. There can be no
doubt that the wakfs with which the Act deals are trusts which are treated as
wakfs under the definition of Section 3 (1) and as such, a trust which does not
satisfy the tests prescribed by the said definition would be outside the Act.

According to Abu Yusuf, wakf is the detention of a thing in the implied


ownership of Almighty God in such a way that its profits may be applied for the
benefit of human beings, and the dedication when once made, is absolute, so
that the thing dedicated can neither be sold, nor given or inherited. In India the
view of Kazi Abu Yusuf is adopted. In Jewun Dass v. Shah Kubeer-Ooddin,
the Privy Council held that after the creation of wakf, the right of the wakif is
extinguished and the ownership is transferred to the Almighty. Fatawa-i-

5
AIR 1963 SC 985
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Alamgiri declares that “decrees in this country are given according to Abu
Yusuf."

In a recent case, Kassimiah Charities v. Secy. Madras State Wakf Board, the
meaning of wakf was taken as the detention of the corpus in the ownership of
God in such a manner that its profits may be applied for the benefits of His
servants. The objects of dedication must be pious or charitable. Hence, the three
dominant characteristics of ‘wakf' can be summarized as under:

1. In the first instance, the motive must be religious; a merely secular motive
would render the dedication a gift or a trust, but not a wakf.

2. Secondly, it must be of a permanent nature. A pious gift which is not a


permanent foundation may be a Sadaqa but cannot, in law, be termed as a wakf.

3. And lastly, the usufruct is to be utilized for the good of mankind.

KINDS OF WAKF

Broadly speaking wakfs can be of two kinds: Public and private. But the most
accepted is its three-fold classification -- public, quasi-public and private.

1. Public wakfs - those which are dedicated to the public at large having no
restriction of any kind regarding its use, e. g., bridge, well, road, etc.
2. Quasi-public wakfs - those, the primary object of which is partly to provide
for the benefit of particular individuals or class of individuals which may be
the settler's family, and partly to public, so they are partly public and partly
private.
3. Private wakfs - those which provide benefit to private individuals, including
the settler's family or relations. Such a wakf is termed as wakf-alal-aulad.
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Muslim law gives eual recognition to public and private wakfs. Both are subject
to the rules of divine property whence the right of wakif are extinguished and it
becomes the property of God. Both of these are created in perpetuity and the
property becomes inalienable. Like a public wakf, a private wakf can under no
circumstances fail and when the line of descent becomes extinct, the entire
corpus goes to charity.

A very clear definition and distinction is given by the Supreme Court in the
latest judgment in Fuaad Musvee v. M. Shuaib Musvee6: ‘in case of Public
wakf corpus as well as usufruct vest in God since usufruct becomes immediately
and enjoyment of usufruct (for pious purpose) is postponed till extinction of
wakif, his family and descendants. A Private wakf to be valid shall reserve
ultimate benefit for a purpose recognized by Muslim Law as religious, pious
and charitable. Private wakf is not invalid, merely because ultimate benefit
reserved for religious, pious and charitable purpose is postponed until after
extinction of family/descendant of the wakif.’

Note, that ‘if under the wakf deed, a portion from the income from wakf
property is to be spent for the family apart from pious etc. purposes, it satisfies
the character of Private wakf i.e. Wakf-alal-aulad.’7

In Abdul Satar v. Advocate General8, Beumont, C.J. observed: “it is


impossible to contemplate property transferred to Almighty God subject to
condition enforceable in the temporal court for recovering that property for
benefit of settler.” However, the rule of irrevocability does not apply to the
following conditions- Wakif reseving power to alter the beneficiaries, add to

6
(2008) 4 CTC 59 (Mad).
7
T.N. Wakf Board v. Larabsha Darga, (2007) 13 SCC 416
8
AIR 1933 Bom. 87.
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their names, exclude some names, change the mutawalli, change the procedure
and rules, modify instruction for its management.

But we must distinguish between an inter vivos wakf and a testamentary wakf.
The latter is technically only a bequest- a will, and comes into operation after
the death of the wakif. The settler can change or revoke it before his death. He
may provide that the testamentary wakf will not come into force if he begets a
child.

ESSENTIAL REQUISITES OF A WAKF

Under the Muslim law a wakf means dedication by a person embracing the
Muslim faith of any property for any purpose recognized by the Muslim law as
religious, pious or charitable. The dedication must be permanent and by the
owner of the property who by reason of such dedication of the property should
divest himself of such property and hand over the possession thereof to the
mutawalli.
There is nothing in the Mohammedan law to invalidate a wakf, where the
objects of the endowment are clear and certain, simply for the reason that no
certain portion of the property or specified amounts of the usufruct have been
dedicated to charity or other religious, pious or charitable pur¬pose of a
permanent character recognized by the Mohammedan law.

It will appear from the definitions given above that a wakf should possess the
following features :

(1) There should be dedication in perpetuity.—Perpetuity is a necessary


condition for the validity of a wakf according to all opinions. A wakf is not
governed by rules against perpetuity . If a wakf is made and is silent as to
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whether it is to be in perpetuity a difference of opinions exists as to its validity.


According to Abu Hanifa and Muhammad, a wakf is not com¬plete unless the
wakif destines the ultimate dedication to objects which are not liable to become
extinct. Abu Yusuf maintains that an express mention is not necessary. Thus, if
the wakif makes a wakf to Zaid, the wakf is valid, and the property passes to the
poor on the death of Zaid. So also, according to him, if a wakf is made for a
month or any specified time without further addition, the wakf would be valid
and perpetual. But if it is further provided that the wakf would be void after the
expiry of the specified time, the wakf would be void according to all. The view
of Abu Yusuf seems to have been approved.

The view of Abu Yusuf had not been followed.

(2) The wakf should be immediate.—Except in the case of testamentary wakfs


the law insists on a immediate transfer of property and a wakf postponing the
coming into effect of the wakf would be void. The wakf must be made to take
immediate effect absolutely for ever. A wakf must not toe deferred to any future
date.

(3) It should not be contingent.—A wakf is invalid if it is made contingent on


the happening of an event. Thus, if the wakf is made contingent on the death of
a person without leaving children it will be void. But a direction that the wakf
will not come into effect till certain debts of the wakif are paid off or that it was
necessary to ascertain the residue whichwas dedicated. or that all the heirs
decided to partition the property among themselves, the equivalent in cash of
one-third of his property should be reserved for reigious purposes or expended
on works acceptable to God will not make the wakf contingent.

Shia law.—Contingent wakfs are invalid under the Shia law also.
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(4) It should not be conditional —The appropriation must not be suspended on


anything and its real test is to see whether the dedication was complete at once
at the time. Thus, if a condition is imposed that if the property is mismanaged, it
should be divided among the heirs of the wakif or that the property would be
sold for wakifs necessities, the wakf would be invalid. If a right to assume
possession and divide the property according to ancestral shares is reserved in a
family agreement even though some provisions are made for meeting the
expense of a dargah, the wakf would be invalid.

The wakif has got the power to make the reservation of some rights and benefit
for himself. If a right is reserved otherwise than as permitted under that section
the wakf would be invalid. But where some rights which cannot be reserved are
reserved in respect of a part of the dedicated property which is distinct and
separable, the wakf as to the rest of the property would be valid.

(5) The wakif should completely divest himself of ownership of the


property—There is a difference of opinion between Abu Yusuf and the
disciples. According to Abu Hanifa the ownership of the property even after the
dedication continues to be with the wakif while according to the disciples the
wakif ceases to be an owner. The view of Abu Hanifa has not been accepted.
From the time of the dedication, the property ceases to be that of the wakif. He
should sever all connection with the property as an owner. It the wakif retains
any control or dominion over the property as such the wakf becomes invalid.

It is a question of construction of the deed whether the wakif has wholly


divested himself of all property. The fundamental idea is that the ownership of
the property vests in God. and is placed in his implied ownership as a juristic
person. If the legal and beneficial interest is reserved during the lifetime of the
person making the wakf it is invalid.
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Shia law.—The wakif must be entirely divested of the property.5

(6) It must be made for objects mentioned in the Act.

(7) There must be a proper subject of wakf.

In the case of wakf made by a Shia Muslim delivery of possession is necessary


as laid down in Sec. 186 of the Mulla's Mohammedan Law. 16th Ed. at p. 180.
The Privy Council also held in Ali Zamin v. Akbar Ali Khar that under Shia
law actual delivery of possession by or by direction of the wakif is a condition
precedent to the wakf having validity and effect.

LEGAL INCIDENT OF WAKF

There are three legal incidents of wakf: irrevocability, perpetuity and


inalienability.

I. Irrevocability.- according to Abu Hanifa, a wakf can be revoked by its


founder unless the declaration has been confirmed by a court decree.
However, Abu Yusuf took a contrary view and held that a declaration of
wakf is, in its nature, irrevocable. That is, a wakf cannot be revoked after the
declaration has been made, nor can the power to revoke be validity reserved.
It is the opinion of Abu Yusuf which prevails which prevails in India.

The Supreme Court once more declared that once a wakf iss created it
continues to retain such character which cannot be extinguished by any act
of the Mutawalli or anyone claiming through him. A wakf can be created by
one M of his entire properties in 1926 and registered under U.P. Muslim
Wakf Act and also notified iin Official Gazette. M appointed his son P as
mutawalli. 32 years later the wakf filled a collusive sut which was decreed on
compromise; immedietly M and P transferred the disputed plots to the
present appellant. When these facts came to the notice of the Shia Central
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Board of Wakf, Lucknow, it requested the Deputy Commissioner to direct


the appellant to hand over the plot of the secretary of the Board. In the legal
battle the appellant lost in the High Court and the Supreme Court also. The
Supreme Court held that wakif stands diverted of his title of the properties
which after creation of the wakf vest in the Almighty.

The Supreme Court also said that the creation of a wakf may be questioned if
it is shown that the wakif had no intention to create a wakf but had done so to
avoid liability.9

II. Perpetuity.- Wakf must be perpetual. If it is for limited period, or for a


temporary purpose, it is void. According to Fatwa-i-Alamgiri, ‘perpetuty is
also among the conditions of wakf according to all opinions, though
according to Abu Yusuf the mention of it is not a condition, and is correct’.10
Thus, if a man says ‘I make this dedication, on my children’ and adds
nothing further, it is a valid wakf. Wherever the term wakf is used,
permanence will be presumed as a matter of law. The rule against
perpetuities does not apply over wakfs.

The perpetuity of wakf does nt imply perpetuity of its object. Thus, if wakf is
created for purposes which may fail or which are not perpetual, the view\of
Abu Yusuf is that the wakf is valid, and that its benefit will accrue to the
poor after the named objects ceases. About the implied permanency of a
wakf there were two school of opinion. One school that of the follower of
Abu Hanifa, maintained that to impart permanency, it must be expressly
mentioned that the benefit was reserved for the poor. Abu Yusuf, on the
other hand was of the view that permanence was implied in the use of the
word wakf by the settler. His view was follosed by Ameer Ali and accepted

9
Chhedi Lal Misra v. Civil Judge, (2007) 4 SCC 632
10
Fatawa-i-Alamgiri, Vol. II at p. 459 cited by Ameer Ali, Vol. I at p.187
P a g e | 18

by the Madras High Court in Syed Ahmed v. Julaiha Bivi11. Bombay High
Court preferred Hanifa,s view. Nnow the controversy is settled in favour of
Yusuf’s view with the use of the expression ‘expressly or impliedly reserved
for the poor or any other purpose recognized bu the Mussulman Law as
religious, pious and charitable purpose of a permanent character’ in section 3
of the Mussalman Wakf Validating Act, 1913.

III. Inalienability.- as the wakf property belongs to God, no human being can
alienate it for his own purposes. Consequently, wakf property cannot be the
subject od sale, mortgage, gift, inheritance or any alienation whatsoever.
This general rule has two exceptions: wakf property may be exchanged for
an equivalent property, or sold, subject to compulsory reinvestment of the
price in another property. The power of exchange and sale is subject to the
permission of the court. These exceptions to the rule of inalienability are
therefore, more apparent than real, since a new corpus is substituted for the
old one and the continuity of wakf is maintained.

What is emphasized is the authorization to the mutawalli. Legally his


position is that of a manager only; he is not an owner of the wakf property.
Therefore he cannot alienate the wakf property without express authorization
by either the settlor or the court. Thus in Mohd. Yusuf v. Mohd. Sadiq12 the
wakf deed directed the Mutawalli to sell the wakf property and construct a
rest house at Mecca from the sale proceeds. The court upheld this
authorization. The court can also grant him permission, and with prior
sanction he can transfer the property by the way of sale or mortgage, etc.
Any alienation without the prior sanction is not void ab initio, but voidable
on challenge by any beneficiary. A lease of the wakf land for more than three

11
1947 Mad 480
12
AIR 1933 Lah 501
P a g e | 19

years if agricultural land and for more than one year for the other land also
requires prior permission of the court or authorization by the settlor.

‘any lease of immovable property of wakf exceeding 3 years is void ab


initio; grant of lease for 11 months with intention to continue as permanent
base is unsustainable. Mutawallis who are hereditarily holding office are
entitled to give on lease jointly--- lease deed executed only by one Mutawalli
is therefore not valid.’13

CREATION OF WAKF

There is no essential formality or the use of any express phrase or term requisite
for the constitution of wakf. The law looks to the intention of the donor alone.
Where a dedication is intended, the law will give effect to it in whatever
language it may be expressed or in whatever terms the wish may be formulated.
It is not necessary that a wakf should be made in writing. All that is necessary in
constituting a wakf is that some sort of declaration, either oral or in writing must
be made. Though oral wakf is permitted yet when the terms of a wakf are
reduced into writing, no evidence can be given to prove the terms except the
document itself or secondary evidence of its contents, when it is admissible.
Where a wakf deed is executed, it must comply with the provisions of the
Registration Act. Thus, a wakf deed of immovable property of Rs. 100 or
upwards would require registration.

Sometimes, circumstances are also to be considered to ascertain a wakf: the


statement and conduct of the wakif and his successors and the method in which
the property has been treated are circumstances which though not conclusive are
relevant . It was repeatedly held by the Privy Council and the different High
Courts of India that for creating a valid wakf, it is not essential to use the word
13
H. Idayatulla v. Larabsha Dharga, (2007) 2 MLJ 1034. Also Mohd. Mazhar Shaheed v. Distt.
Collector, Mahboobnagar, (2005) 2 An LT 234.
P a g e | 20

wakf'." Neither the use of the word wakf nor express dedication of the property
to the ownership of God is essential for the creation of a wakf where the tenor of
the document may show that a wakf was intended. Any implied expression is
enough for the purpose.

Fatawa Kazi Khan says, “If a man says, this land is mauqoofa' for God in
perpetuity', it will create a valid wakf.” And even if there is no mention of
‘perpetuity', it will create a valid wakf, and perpetuity will be presumed.
“And if a man were to say, that this land is dedicated, consecrated, not to be
sold, inherited or given by a gift, all these words would create a wakf according
to Abu Yusuf," says Radd-ul-Mukhtar. Similar are the observations of Wajiz-
ulMuhit.
A wakf can also be created by long user. In a case where there is no evidence to
show how and when the alleged wakf was created, the wakf may be established
by evidence of the user. Where land had been used from time immemorial for
religious purposes, say a mosque, the land becomes wakf, even though there is
no evidence of express dedication.

In the case of Imambara it was held by the Oudh High Court that if 'majalises'
were celebrated and "Quran Khani' was done and the building had never been
used as a residential house, the presumption of dedication will be made. But it
would be erroneous to think that the burial of a saint on a particular spot would
make it wakf, in spite of the fact that 'Urs' was held there without the
proprietor's objections
P a g e | 21

OTHER FORMALITIES

(a)Declaration
As far as the courts in India are concerned, a declaration of endowment and
delivery of possession to the Mutawalli are essentials of a wakf. When the first
Mutawalli happens to be wakif himself, a mere declaration is sufficient to
constitute a wakf. Where the wakif after creating a bonafide wakf treats the wakf
property as his own and commits certain wrongful acts in pursuance of this
notion, these acts will only amount to a breach of trust and would not in any
way affect the validity of the wakf.

(b) Delivery of possession

According to Abu Yusuf a dedication of wakf is complete by a mere declaration.


Neither delivery of possession nor appointment of Mutawalli is essential. The
view has been adopted by most of the High Courts in India. Dedication by way
of a wakf is completed when the wakif makes a dedication in good faith with a
real intention of divesting himself of the ownership of the property which he
intends to dedicate:

(1) If he nominates another person as Mutawalli such an intention is ordinarily


evidenced by delivery of the wakf property to himself or Mutawalli; the failure
to deliver needs at least some explanation : want of such an intention may be
inferred if there is no explanation.

(2) The fact that no person is nominated as Mutawalli does not necessarily show
a want of such an intention; it may be presumed in proper cases that the wakif
himself intended to act as a Mutawalli; but this last presumption may be
rebutted by evidence that the wakif did not act as such, and neither himself gave
nor requested another to give any effect to his declaration.
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(c) Appointment of Mutawalli

In its earlier decision, the Allahabad High Court followed the view of Imam
Muhammad: that a wakf is not complete unless:

(1) there is a declaration, coupled with

(2) appointment of Mutawalli ; and

(3) delivery of possession,

Even according to the previous view of the Allahabad High Court, a mere
declaration was sufficient where the wakif himself was the Mutawalli. It was not
necessary to transfer the property from his name as owner into his name as
Mutawalli. The mere delay in transferring possession or getting the name
mutated could not have invalidated the wakf.

Under Shia law the possession has to be delivered to the first person in whose
favour the wakf has been made. In the case of a public wakf, a Mutawalli must
be appointed to the possession.

ADMINISTRATION OF WAKF

When the wakf is validly constituted, there arises the question of management
and administration for which a mutawalli is generally appointed by the
dedicator of the court. And in order to have a check and supervision of these
mutawallis, there exist certain statues. Thus, the administration of wakfs may be
non-statutory (i.e., through mutawallis and sajjada nashins, etc.,) and statutory.

Mutawalli

1. General – A mutawalli is not a trustee, but a manager or superintendent of


the wakf property. Wakf property does not vest in him but in God. Apart from
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legal responsibilities, the performance of his obligation is a moral and religious


duty and disregard of such duties is morally and ethically reprehensible.

2. Competence – Generally speaking, every adult sane is entitled to be a


mutawalli, unless there is a specific bar. But when religious duties are involved,
a female or a non-muslim may be disqualified (e.g., Immat or leadership in
prayers).

It is well settled that the following may act as mutawallis :

i. The dedicator himself;


ii. His descendents;
iii. Females;
iv. Non-Muslims;
v. Sunni in a Shia wakf and vice-versa.

3. Appointment of mutawalli – A mutawalli may be appointed by :

i. The wakif himself;


ii. His lexcecutor;
iii. The mutawalli, (successor);
iv. The Court.

4. Removal – Neglect of duties and breach of trudt are the two main grounds
on which mutawallis are generally removed. They may be removed

i. By the court;
ii. By the wakf Board and
iii. By the wakif.
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5. Limitations of power of Mutawalli – a mutawalli can do everything that is


reasonable and necessary for the protection and administration of the wakf. But
his powers are subject to certain important limitation, which are as follows:-

i. He cannot sell, mortgage or alienate wakf property without the


permission of the court or the Wakf Board.
ii. He cannot transfer his duties, functions and powers to anybody unless
authorized by the Wakf deed or any positive custom.
iii. He cannot borrow money for spending it on the beneficiaries, nut can do
so only for necessities, such as repairs etc.
iv. He cannot grant lease of wakf property for more than one year, in case of
non-agricultural land, and for more than 3 years, in casse of agricultural
lands, unless the court gives sanction.
v. He cannot spend on mere improvement of wakf property.

CURRENT STATUS OF WAKFs IN INDIA14

The subject [of] "Wakf" is relat[ive] to Entry No. 10 "Trust and trustees" and
No. 28 "Charities and charitable institutions, charitable and religious
endowments and religious institutions" in the concurrent list attached to the 7th
Schedule to the Constitution of India. Supervision over the administration of
wakfs is, therefore, the responsibility of both the Central and State
Governments.
According to PM’s High Level Committee on the status Indian Muslims, there
are:
 More than 4.9 lakh registered Wakfs spread over different states and union
territories of India.

14
Wakfwatch.com
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 The total area under Wakf properties all over India is estimated at about 6
lakh acres and the book value at about Rs 6,000 crores.
 The market value of these properties will be higher manifold.
 A recent estimate of the current value of Wakf properties in Delhi alone is in
excess of Rs. 6,000 Crores (Rs. 60 billion).
 A good number of the Wakf properties in urban areas are found to be located
in city centres where the current value is many times more than the book
value.
 The current annual income from these properties is only about Rs. 163
crores, which amounts to a meagre rate of return of 2.7 per cent.
 The current market value of the Wakf properties can be put at Rs. 1.2 lakh
crores (1,200 billion). So the current return of 163 crores on the current
market value comes out to be meagre 0.135 percent which is pathetic.
 If these properties are put to efficient and marketable use they can generate
at least a minimum return of 10 per cent which is about Rs. 12,000 crores per
annum.
 If some of these Wakf properties situated in prime locations across the
country are developed and put to commercial use, their market value and
annual income will shoot up.
 The enhanced Wakf income could be utilized to upgrade the educational
status and improve other human development dimensions of the
beneficiaries of Wakfs.

CONCLUSION
Critically examining of this project will clearly highlight certain aspects about
the institution of wakf, in the present times. The foremost of these aspects is that
wakf is only for religious purpose and is permanent in nature, it cannot be a
temporary institute. Also any gain derived out of a wakf has to be use for the
benefit of the mankind. Though their hasn’t been a great deal of judicial
P a g e | 26

scrutiny on this topic in the recent times but even in the few cases that have
come up the Courts of the country have passed their decisions keeping these
aspects in mind.

It can be unhesitatingly said that the enactment of the Wakf Act. 1954, made 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. Whatever lacunae or
weaknesses existed in the Act have been removed by the Wakf (Amendment)
Act, 1964 and the Act as amended is a very sound piece of legislation.
Considering their number and resources, wakf can become a strong instrument
not only for the preservation of religious and charitable institutions, but also for
the educational and economic development of the community. Wakfs constitute
a national asset for a very large number of these support schools, colleges,
technical institute, libraries, reading-rooms, charitable dispensaries and
Musafirkhanas, etc., which benefit the public irrespective of their religion or
creed. It is of utmost importance, therefore, that wakfs should be maintained
properly and their resources should be utilised for the objects and the purposes
of dedications. But unfortunately, many of the existing wakfs have not escaped
the process of decadence brought in by the twin impact of neglect and misuse.