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CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA 824236

Family Law Project


Wakf – a critical study

School of Law and Governance

Submitted to: - Name- Jata Shankar

Dr. Ram Chandra Oraon CUSB1713125017

[WAKF – A critical study] Page1


ACKNOWLEDGEMNT

Every project big or small is successful largely due to the effort of a number of wonderful souls
who have always given their valuable advice and lent their helping hands.

I owe my sense of gratitude to almighty god for showing his blessing throughout the completion
of this project. I am highly indebted to “Dr. Ram Chandra Oraon” for his guidance and constant
supervision as well as for providing necessary information regarding the project during class
lectures. However, it would not have been possible without the kind support and help of many
individuals and organizations. I would also like to extend my gratitude to my colleague,
librarian, and non- teaching staff who have willingly helped me out with their abilities. This
research would not have been possible without all mentioned above. The subject matter of the
project work is very revolutionary and it helped me a lot to know and learn about sections and
provisions mentioned under Muslim Waqf Act.

Last but not the least I place a deep sense of gratitude to my family members who has been
constant source of inspiration during the presentation of this project.

Jata Shankar

[WAKF – A critical study] Page2


CHAPTERISATION

CHAPTER I :- Introduction, Research Methodology, Scope & objective

Scope---------------------------------------------------------------------------------------------------------- 4

Research Methodology & Objective ------------------------------------------------------------------- 4

Introduction------------------------------------------------------------------------------------------------- 5

Origin History and Development----------------------------------------------------------------------- 6

CHAPTER II: - WAQF

 ESSENTIAL CONDITIONS FOR A VALID WAQF---------------------------------- 9


 KINDS OF WAKF------------------------------------------------------------------------- 11
 CREATON OF WAKF---------------------------------------------------------- 12
 LEGAL CONSEQUENCES OF WAKF------------------------------------- 13

CHAPTER III: - MUTAWALLI------------------------------------------------------------------14-17

CHAPTER IV: - CASE LAWS----------- -----------------------------------------17-21

CHAPTER V: - Inference

 Conclusion-------------------------------------------------------------------------- 22
 References-------------------------------------------------------------------------- 23

[WAKF – A critical study] Page3


CHAPTER I :- Introduction, Research Methodology, Scope & objective

SCOPE

This project talks about the development of concept of Waqf from the inception of Islam to the
concurrent situation. It reflects the evolving behaviour of society with some rigidity left in it
associated with devotional aspects.

RESEARCH METHODOLOGY
Subject: Muslim Law
Topic: WAKF – a critical study

The research method which I opted for doing this project is Doctrinal research from primary and
secondary sources. I researched on web database having articles and reports related to my topic.
In addition to that, I also referred books available on Waqf. This research is descriptive and
analytical in nature. Footnotes have been provided wherever needed to acknowledge the source

OBJECTIVES

Meaning and various types of Waqf

Object behind making a Wakf. Office of Mutawalli (manager).

Modes to create Waqf

To study the evolution of its essential with case laws.

Legal consequences of Waqf

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INTRODUCTION

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. When a waqf is created, the property is detained or, is ‘tied up’ forever and thereafter
becomes non-transferable. A waqf also called wakf1 or mortmain property is under the context
of 'sadaqah', an absolute religious grant in Islamic law, typically donating a building or plot of
land or even cash for Muslim religious or charitable purposes. The donated belongings are held
by a charitable trust. The grant is known as “mushrut-ul-khidmat” while a person making such
dedication is known as “wakif”.23

The subject of "Wakf" is relative 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, Control over the
management of wakfs is, therefore, the duty of both the Central government as well as 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 govern the properties of these institutions in
accordance with the law. Subject of course, to such regulations as the law might choose to
impose. But if a law takes the whole right of supervision is null and void. The monitoring laws
assume their importance out of the fact that in case of public trusts and grants, some amount of
control over their management is necessary in the interest of the public as a whole. Such laws are
valid as they do not interfere with the internal matters of the institutions. The State cannot

1
Hisham Yaacob, 2006, Waqf Accounting in Malaysian State Islamic Religious Institutions: The Case of
Federal Territory SIRC, unpublished Master dissertation, International Islamic University Malaysia.

2
Introduction Tamil Nadu Wakf Board website.

3
Ariff, Mohamed (1991), The Islamic voluntary sector in Southeast Asia, Institute of Southeast Asian
Studies, p. 42, ISBN 981-3016-07-8

[WAKF – A critical study] Page5


interfere in the formation or looking after of religious and charitable institutions" or in the
controlling of religious matters. The numbers of religious denominations or parties are allowed
to manage them in accordance with the beliefs of their religions. The only intervention possible
is on grounds of public order, health and morality. The principle of wakf which is linked with
the full religious life and social economy of Muslims has laid down the foundations of one of the
most important institutions of the community.

Origin History and Development

The practices recognized to Muhammad, have helped the institution of waqf from the initial part
of Islamic olden times. 4 The foundation of Wakf or the provision of dedication of property,
movable immovable, for religious purposes and for waqf improve the poorer sectors of the
society have been a distinguishing feature of the socio-economic structure of Islam. Devotion to
the way of God or the way of goodness and a strong desire to win Divine consent have been the
core cause of the origin and development of the institution. The Quran contains no place to wakf
but it abounds in injunctions in the matter of charity, " and in their wealth the beggar and the
outcaste had due share." (Surah 51, Ver. 19) "They ask the (O Muhammad) what they shall
spend, say; that which ye spend for good (must go) to parents and near kindred and orphans and
the needy and wayfarer. And whatever good ye do, to I Allah is Aware of it." (Surah 2, Ver. 215)
Generally, the source of wakf is drawn to the prescriptions of the Prophet. Omar had acquired a
piece of land in the canton of Khaibar and proceeded to the Prophet and sought his counsel to
make the most pious use of it, whereupon the Prophet declared, "Tie up the property (asl-corpus)
and devote the usufruct to human beings that it is not to be sold or made the subject of gift or
inheritance; devote its produce to your children, your kindred and the poor in the way of God."
In accordance with this rule Omar dedicated the property in question as wakf which continued in
existence for several centuries until the land became waste.

4
Sait, 2006, p.149

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CHAPTER II: - WAKF

Wakf- Meaning

Section 2(1) of the Mussalman Wakf Validating Act, 1913, defines a Wakf: - Wakf means the
permanent dedication by a person professing the Mussalman faith of any property for any
purpose recognised by Mussalman law as religious, pious or charitable.

Section 3(r) of the Wakfs Act, 1995 defines it as follow: Wakf means the permanent dedication
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:

(i) A Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having
ceased irrespective of the period of such cesser,

(ii) Grant, for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) A Wakf-alal-aulad to the extent to which the property is dedicated for any purpose
recognised by Muslim law as pious, religious or charitable.

As defined in Wakf Act5 the term wakf 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. It is not necessary that the settler should be a Muslim for creation of wakf. Any non-
Muslim can also create under the Muslim law a wakf provided the object of the wakf is one
which is known by Muslim Law as pious, religious or charitable and his own religion gives the
object in the same manner. The words 'professing Islam' have been expressly taken for otherwise
all charitable and many pious grants of other societies would have come within the purview of
the Act because the purposes for which they stand are also considered as charitable or pious

5
Section 3(1) of the Wakf Act 1954.

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under the Muslim Law. 6 The Wakf (Amendment) Act, 1964, has enlarged this definition by
considering 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 Muharram
festival from time immemorial is wakf and evidence of express dedication is not necessary.
When a long period has gone since the origin of the purported wakf, the user can be the only
available proof to show if the property is wakf or not. When there is no proof to show how and
when the purported wakf was created, the wakf may be recognized by the proof of a user. Also,
according to the Wakf Act, ‘Wakf’ means the perpetual dedication by a person professing
Islam". The words “professing Islam" are purposely kept here to exclude charitable and pious
grants 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 recognizing Islam. The definition of a receiver as
given in Section 3(a) of the Wakf Act, 1954, had unreasonably limited its scope. The receiver
was defined as a person or object for whose benefit a wakf is created and includes religious,
pious and charitable objects and any other objects of public service established for the benefit of
the Muslim community. The use of the words “objects of public utility” recognized for the
benefit of the Muslim community' was wholly needless for they are covered by the previous
clause and include religious, pious or charitable objects. The addition of these words had made
the definition of ‘beneficiary’ uneven with the definition of wakf in clause (1) which
incorporated no such restrictions. In Zain Yar Jung v. Director of Endowments7, the Supreme
Court held that the objects of public usefulness which may constitute receivers under the wakf
must be objects for the benefit of the Muslim community

6
Section 3(1) of the Wakf Act 1954.

7
1963 AIR 985, 1963 SCR Supl. (1) 469.

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ESSENTIAL CONDITIONS FOR A VALID WAQF

The essential conditions for a valid waqf are as follow:8

1. Permanent dedication:

The dedication of waqf property must be permanent and Waqf himself must devote such
property and give it for any purpose recognized by Muslim law, like religious, pious or
charitable. If the wakf is made for a 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 benefit of
Muslim community, and if it is secular in character, the charity should be to the poor alone.

2. Competency of the Waqif:

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 the capacity of a Muslim for making a waqf, there are only two requirements:

(i) soundness of mind and,

(ii) majority.

8
Prof. G.C.V. SUBBA RAO, Family Lawin India, (10th Ed, S. Gogia & Company, 2012
Hyderabad).PG NO-271
[WAKF – A critical study] Page9
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 matter of
wakf should be owned by wakif at the time when wakf is made. Whether a person has the 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
beneficiaries 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 his entire property, but in the case of the testamentary wakf, more than
one-third of property cannot be dedicated.

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Kinds of Wakf

Generally wakfs can be of two kinds: Public and private. But the most recognized is its three-
fold classification -- public, quasi-public and private9. Public trusts are those which are
dedicated to the public at large having no restraint of any kind regarding its use, e. g., bridge,
well, road, etc. Quasi-public wakfs are 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.

Private wakfs are those which provide benefit to private individuals, including the settler's
family or relations. Such a wakf is termed as wakf-alal-aulad. The Mutawalli manages the wakf
but he cannot separate the property. He is, however, more than a manager or administrator, as he
does not hang on the pleasure of anybody else or to anybody. Under Muslim Law a private wakf
is subject to the same restraints as any public wakf as the Law makes no difference between
public and private wakfs. Both are subject to the rules of divine property where the rights of the
wakf are extinguished and it becomes the property of God. Both the wakfs are created in eternity
and the properly becomes undisputable. Like public wakfs, a private wakf can under no
conditions fail and when the line of descent becomes extinct, the entire corpus goes to charity.

It may be clarified here that the term ‘private’ is used to suggest wakfs for private individuals. It
does not include wakfs which are of public nature, such as, a mosque. According to Muslim
Law, there is nothing like a "Private Mosque". A person can set apart an apartment for his own
prayers, but if he allows others to say their prayers in it, it assumes & public character. The test
whether a building is a mosque, it is enough to make it "wakf" provided that public prayers are
even once said with the permission of the settler. According to Abu Yusuf, wakf is the
confinement 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,

9
AQIL AHMED Mohammedan Law, Central Law Agency 27 th Edition, ISBN: 978-93-84852-
50-4

[WAKF – A critical study] Page11


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 possession is transferred to the Almighty. Fatawa-i-
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 10, the meaning of
wakf was taken as the detention of the corpus in the possession 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 case, 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.

CREATON OF WAQF

Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements as
described above are fulfilled, 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 the dedication of his
property for Wakf. 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 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.

10
AIR 1964 Madras 18.

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3. By Usage – when a property has been in use for the charitable or religious purpose for time
immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.

In the case of Imambara11 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
belief of dedication will be made. But it would be erroneous to think that the funeral 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.

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 forever. Wakf cannot be of a specified time duration. In
Mst Peeran vs Hafiz Mohammad, it was held by Allahabad HC that the wakf of a house built on
land leased for a fixed 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.

6. Extinction of the right of wakif – The wakif loses all rights, even to the usufructs, of the
property. He cannot claim any benefits from that property.

11
AIR 1934 All 1013.

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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 offense as
per Wakf Act.1995.

CHAPTER -III

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
beneficiaries are indeed getting the benefits. Thus, he only has limited control over the
usufructs.12
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.

12
AQIL AHMED Mohammedan Law, Central Law Agency 27th Edition, ISBN: 978-93-84852-
50-4.PG NO- 326
[WAKF – A critical study] Page14
Who can appoint a mutawalli 13 – 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 first mutawalli in Sunni law but according to
Shia law, even though the wakf remains valid, it has to be administered by the beneficiaries. The
wakif also has the power to lay down the rules to appoint a mutawalli. The following is the order
in which the power to nominate the mutawalli transfers if the earlier one fails –

1. founder,

2. executor of the founder, &

3. mutawalli on his death bed.

4. the Court, which should follow the guidelines –

1. It should not disregard the directions of the settler but public interest must be given more
importance.
2. Preference should be given to the family member of the wakif instead of an utter stranger.

Powers of a mutawalli 14

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 fit in the best interest of the purpose
of the wakf. He can take all reasonable actions in good faith to ensure that the intended
beneficiaries are benefited 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.

13
AQIL AHMED Mohammedan Law, Central Law Agency 27th Edition, ISBN: 978-93-84852-
50-4.PG NO- 327

 14
AQIL AHMED Mohammedan Law, Central Law Agency 27th Edition, ISBN: 978-93-
84852-50-4 PG NO-328

[WAKF – A critical study] Page15


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 file a suit to protect the interests of the wakf.

4. He can lease the property for the agricultural purpose for less than three years and for the 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. 15

Removal of a mutawalli 16

Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif. However, a
mutawalli can be removed in the following situations –

A. By Court

1. if he misappropriates wakf property.

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.

15
AQIL AHMED Mohammedan Law, Central Law Agency 27th Edition, ISBN: 978-93-84852-
50-4.PG NO- 326.
16
I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009,
Allahabad)Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency, 2010, PG NO-
134. AQIL AHMED Mohammedan Law, Central Law Agency 27th Edition, ISBN: 978-93-
84852-50-4, PG NO-320

[WAKF – A critical study] Page16


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.

CASE LAWS

Case Analysis –
Garib Das and Ors. v. Munshi Abdul Hamid and Ors.17
a) Facts
One Tassaduk Hussain was the owner of the disputed house had admittedly executed a
deed of wakf on June 21, 1914 in respect of the same for the benefit of a mosque and
Madrasa at Nathnagar and had the same registered. In terms of the deed the donor was to
remain in ownership of the house as Mutawalli and his wife was to be the Mutawalli after
his death. The document provided that after the death of both the husband and wife the
Mutawalli would be elected by the panchas of the muslim community of Nathnagar and
so long as the donor and his wife were living they would maintain themselves from the
income of the property and spend the balance left for the mosque and the Madrasa.
Tassaduk Hussain executed and registered three deeds on 10th December, 1949 by one of
which he purported to cancel a gift deed dated November 4, 1939 executed in favour of
some of his relations in respect of the disputed house. By the second document he
cancelled another registered deed of gift dated August 2, 1948 executed in favour of
another relation of his in respect of the identical property. And by the third document he
purported to cancel the deed of wakf of 1914. Thereafter he executed and registered three
separate sale deeds on March 27, 1949 one in favour of the appellant Garib Das, a second
in favour of Shamlal and a third in favour of Gobind Lal. All these three deeds were in
respect of portions of the disputed property. Tassaduk Hussain died in July, 1950. The
suit was filed by the first plaintiff as the elected Mutawalli of the wakf created by
Tasaduk Hussain joining with him plaintiffs 2 and 3 as members of the Sadar Nathnagar
Masjid Committee. Garib Das, Shyam Lal and Gobind Lal, the alienees from Tasaduk
Hussain were impleaded as defendants first party.. The first three defendants were

17
AIR 1970 SC 1035.

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described as tenants in the suit properties. The plaintiffs claimed to set aside the deeds in
favour of the said persons on the ground that as a valid wakf had already been created in
favour of the mosque and Madrasa and had been acted upon, the deed of cancellation of
December 10, 1949 and the sale deeds in favour of the first three defendants could not
affect the wakf. A prayer was also made that as the said three defendants who were
tenants had repudiated their tenancy they had forfeited the same and they had become
trespassers and were liable to eviction as such.
b) Lower Court Proceedings - The Subordinate Judge who tried the suit found the deed or
wakf to be invalid holding, inter alia, that there could be no reservation for the benefit of
the donor in the case of an endowment purportedly in favour of a mosque. He also held
that the endowment was bad for uncertainty on the ground that the mosque and the
Madrasa mentioned in the wakf could not be identified and that Tasaduk Hussain never
had any intention to create a wakf.
c) High Court - The High Court's conclusions were:
i) That Tasaduk Hussain had created the wakf in question in 1914 and he continued to
be the mutawalli of the same until his death.
ii) The wakf was not a sham or illusory transaction.
iii) It was not bad for uncertainty or vagueness.
iv) It was not bad or void on account of reservation of some benefit in favour of himself
and his wife.
d) Supreme Court - Appeals Dismissed.
e) Ratio- The founder of a wakf may constitute himself the first mutawalli and when the
founder and the mutawalli are the same person, no transfer of physical possession is
necessary. Nor is it necessary that the property should be transferred from the name of the
donor as owner into his name as mutawalli. An apparent transaction must be presumed to
be real and the onus of proving the contrary is on the person alleging that the wakf was
not intended to be acted upon.

[WAKF – A critical study] Page18


2) Punjab Wakf Board v. Shakur Masih 18
a) Facts
The admitted facts are that Najaf Khan was the owner of the properties, namely, houses
and shops situated in Jutog. He had executed a will on August 29, 1949 bequeathing all
his properties to his son's mother-in-law, namely, Smt. Musamat Kariman. He added a
note to the Will on dated 29-9-1949 stating thus: "After the death of Masomat Kariman,
my entire property would become wakf and the income from that would be spent for the
maintenance of the Mosque at Jatog. Nobody shall have the right either to mortgage or
sell these properties." The appellant filed the suit for declaration that it is a wakf properly
and the respondent has no manner of right whatsoever. All the Courts below have
concurrently held that the wakf has not been created by Najaf Khan and, therefore, the
will is void and the wakf thereby has not been created. The question is; whether the view
taken by the Courts below including the High Court is correct in law?
b) Supreme Court Appeal Dismissed.The hon’ble court relied on Chapter XII of the
principles of Mohomedan Law, Nineteenth Edition edited by M. Hidayatullah, former
Chief Justice of this Court, it is slated that a wakf means permanent dedication by a
person professing the Mussalman faith of any property for any purpose recognized by the
Mussalman law as religious, pious or charitable. Under Section 174, the dedication must
be permanent. Under Section 176, the subject to wakf must belong to the wakif, namely,
the property dedicated by way of wakf must belong to the wakif (dedicator) at the time of
dedication. Under Section 191, contingent wakf is not valid. It is essential to the validity
of a wakf that the appropriation should not be made to depend on a contingency.
c) Ratio- that bequest creating a wakf contingent upon the life time of a lady is invalid and
therefore the contingent wakf is not valid as per Section 191 of the principles of Muslim
Law
d) Other Judicial Precedents

18
AIR 1997 SC104, AIR 1996 SCW 4261, 1996 (4) CurCC 299, JT 1996 (9) SC 460, 1997 (2) LJR 16, 1997
MarriLJ 125, 1997 (2) RecCivr 42, 1996 (11) SCC 245, 1996 (3) SCJ 602, 1997 (1) UJ 453 (SC).

[WAKF – A critical study] Page19


Ahmed Ariff v. CWT19

Wakf means "the tying up of property in the ownership of God, the Almighty
and the devotion of the profits for the benefit of human beings".

Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan 20

The ownership of the wakf property has no jural conception with any exactitude and the corpus
is tied down and is made non-alienable. Only the usufruct and the income from the corpus of the
wakf property is available for carrying out the objects of the wakf.

Mohammad Sabir Ali v. Tahir Ali 21

No formal dedication or use of the word "wakf or an express transfer of the corpus of the
properties to God is necessary for constituting a wakf, the dedication of properties to purposes
recognised by Mohammedan law as religious or charitable may be inferred and that in itself will
give rise to a wakf.

Syed Mohd. Salie Labbai v. Mohd. Hanifa22

Following are the essential conditions for creation of a valid wakf dedication for a mosque of
public nature.
 The founder must declare his intention to dedicate a property for the purpose of a
mosque,

19
AIR1966 59 ITR 230 Cal.

20
AIR1978 AIR 1362, 1978 SCR (3) 886.

21
AIR 1957 All 94.

22
AIR1976 AIR 1569, 1976 SCR (3) 721.

[WAKF – A critical study] Page20


 The founder must divest himself completely from the ownership of the property.
 The founder must make some sort of a separate entrance to the mosque which
may be used by the public to enter the mosque.

Allaha Rakhi v. Shah Md. Abdul Rahim23

Creation of a valid wakf leads to simultaneously passing of all rights of property out of the wakf
and its vesting in God Almighty. The person in the administration of the wakf, whether
mutawalli, Sajjadanashin, or mujawar, or known by any other name, is merely a manager of the
wakf. He is not a 'trustee' in the technical sense of the term as understood nor is any property
belonging to the wakf 'vested' in him.

M. A. Namazie Endowment v. CIT24

Where reading the relevant clauses of a deed of wakf, it is held that the wakf was created for the
benefit of the wakif s poor relations and, therefore, it is not a wakf created for charitable or
reli¬gious purposes eligible for exemption, the enactment of the Wakfs Act, 1954 (29 of 1954)
can have no impact on the character of such wakf for the purposes of the Income Tax Act. Even
the fact of inclusion of such wakf in the list of wakfs published in the Gazette as per the
provisions of that Act would not change the character of such wakf.

23
AIR(1934) 36 BOMLR 408.

24
AIR (1988) 174 ITR 58 (Mad.).

[WAKF – A critical study] Page21


CHAPTER V: - Inference

Conclusion:

It can be promptly said that the enactment of the Wakf Act. 1954, made a landmark in the history
of wakf organization in India. By establishing informal Boards vested with considerable
authority and powers, by imposing a exact 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.

Wakf is detention which is permanent and binding and enforceable by law also, any person
interested may seek remedy in Civil Court. Office of mutawalli is very important in waqf, power
can be exercised when there is a clear vacancy of mutawalliship or there is a dispute as to
competence or eligibility of existing mutawalli. A Muslim wakf is distinguished from an English
trust or a Hindu endowment of dharma. 25

25
I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009,
Allahabad)Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency, 2010, pg no-123.
[WAKF – A critical study] Page22
References:

BOOKS -

 Hudson, A. (2003), Equity and Trusts (3rd ed.), London: Cavendish Publishing, ISBN 1-
85941-729-9
 Arjomand, Said Amir; Feierman, Steven; Ilchman, Warren Frederick; Katz, Stanley
Nider; Queen, Edward L. (1998), Philanthropy in the World's Traditions, Indiana
University Press, ISBN 0-253-33392-X
 . I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency,
2009, Allahabad)Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency,
2010 Allahabad)
Prof. G.C.V. SUBBA RAO, Family Lawin India, (10th Ed, S. Gogia & Company, 2012
Hyderabad).
 AQIL AHMED Mohammedan Law, Central Law Agency 27 th Edition, ISBN: 978-93-
84852-50-4

INTERNET –

 www.manupatra.com
 https://www.lawctopus.com/academike/concept-waqf-muslim-law/

[WAKF – A critical study] Page23