Wakf

[Dazzling Eyes]

Waqf

1. Introduction

Waqf is an important social institution of Islam. It is a permanent dedication by a Muslim of some specific property for religious and pious purpose. Every Muslim of sound mind may dedicate his property by way of waqf. It may be made verbally or in writing. The real purpose of making a waqf is to acquire merit in the eyes of the Lord; all other purposes are subsidiary.

2. Meaning

Literal meaning is “tying up or detention”.

3. Definition

Waqf Act 1954

According to Sec 3 (i) waqf means the permanent dedication by a person professing Islam of any moveable and immovable property for any purpose recognized by the Muslim Law as pious, religious or charitable.”

Imam Abu Hanifa

Waqf is the detention of a specific thing in the ownership of the waqf or appropriator, and the devoting or appropriator’s of its profits or usufruct in charity on the poor or other good objects.

Thomas Patrick Hughes

Waqf means literally “Standing, stopping, halting”. A term which in the language of the law, signifies the appropriation or dedication of property to charitable uses and the service of God.

Qadi Abu Yusuf and Imam Muhammad

Waqf is the tying up of the substance of a thing under the rule of the property of Almighty God, so that the proprietary right of the waqf becomes extinguished and is transferred to Almighty God for any purpose by which its profits may be applied to the benefit of His creatures.

The Shara’I ul-Islam (Shiite Law)

A contract, the fruit or effect of which is to tie up the original of a thing and to leave its usufruct free.

4. Classification of Waqf

a. According to Ameer Ali, waqf may be divided into three classes.

i For the affluent and the indigent alike.
ii For the affluent and thereafter for the indigent alike.
iii For the indigent alone.

b. As regards relationship

i The waqif (but only in Hanafi Law)
ii The family or decedents of the waqif (Waqf’ Ala’l-awlad)
iii Unrelated persons

The law on the subject of waqf is in favour of descendents may be divided conveniently two parts: the law before, and the law after the Waqf Act 1913.

The Law before the Waqf Act 1913

Case Law
Abul Fata Mahmod Ishak v/s Russomoy Dhur Chowdhry
The result of this decision was that if the gifts to charity were substantial, not illusory, the waqfs were held valid; but where the waqfs were founded for the aggrandizement of a family, or where the gifts to charity were illusory or merely nominal, the waqfs were held to be void.

The Law after the Waqf Act 1913

This act purported to restore the law of the shari’at in India and to overrule the law as laid down by the Privy Council.

c. A non Muslim

A non-Muslim is entitled to take the benefit of a waqf, provided that he is not an alien enemy.

5. Kinds of Waqf

Following are the kinds of waqf.

i Private Waqf : It is waqf which is made for private individual.
ii Public Waqf : It is dedicated to the public at large. It is made purely for some religious or pious purpose.
iii Quasi Waqf : It is partly public and private.

6. Subject of a valid Waqf

A immoveable or moveable, dividable or undividable property having certainty of which the waqf is the owner may be the subject matter of the waqf. The subject of the waqf must be clearly defined.

7. Subjects not for a valid Waqf

i Rights of usufructuary mortgage.
ii A dower debt, which may or may not be paid.
iii A simple money decree
iv A waqf will not be upheld which is in fraud of the rights of certain heirs.

8. Valid Objects of Waqf

Following are the valid objects of waqf.

i Mosques and for imam to conduct worship therein.
ii The distribution of alms to the poor.
iii Grant of takia
iv Observance of the anniversaries of the waqif and members of his family members of his family, involving as it does the feeding of the poor.
v Prayer ground
vi Dargahs
vii Hospitals and dispensaries
viii Construction of the free boarding houses.
ix Eidgahs
x Reading of Holy Quran in public
xi For making and keeping Tazias
xii Celebrating the birth of the Hazrat Ali Murtaza (RAA)

9. Form of Waqf

i Verbal
ii Oral

10. Parties to a Waqf

i Waqif
A person who makes waqf is called Waqif.
ii Mutawalli
A person who is appointed to look after the waqf is called Mutawalli. He acts like a manager of the waqf property.

Case Law
Jahana vs. Chief Administrator Auqaf Punjab 1992 CLC 2054
It was held that the definition of Mutawalli includes a person who for the time being manages Waqf property.

11. Qualification of Waqif

i A Muslim
ii Who have Sound mind
iii Who have attained Majority

Disqualification

i Minor
ii Unsound Mind

Extent of Waqif’s Power

A person under Islamic Law may declare the whole of his property a waqf.

13. Qualification of Mutawalli

A person can be a Mutawalli who:
i may be a Muslim or Non-Muslim.
ii has sound mind.
iii should be of the age of majority.

14. Appointment of Mutawalli

A Mutawalli can be appointed by:

i The waqif himself.
ii The executor

15. Who can be appointed Mutawalli

Following can be appointed as Mutawalli:

i The Waqif himself
ii His children
iii His descendents
iv A female
v Non-Muslim
vi Sunni in Shia Waqf and Shia in Sunni Waqf

16. Rights of Mutawalli

i If there is no provision in waqfnama about for succession of the office of Mutawalli, he has right to appoint his successor on his death bed.
ii He has right to appoint his successor if waqf deed authorize him to do so.
iii He can appoint his successor if Waqif and Executor are both dead.
iv He had right to manage the waqf property.
v He has right of remuneration.
vi He has right to do any thing that is reasonable for administration and betterment of the waqf.

17. Duties of Mutawalli

i It is the duty of Mutawalli to take care waqf property.
ii He is duty bound not to sell or mortgage waqf property without the permission of the court.
iii He is duty bound not to grant a lease of waqf property not exceeding three years in case of agricultural property and one year in case of non-agricultural land.
iv He is duty bound not to increase allowance of officers and servants.
v He is duty bound not to transfer the office of another.

18. Nature of office of Mutawalli

The office of Mutawalli is not hereditary under Islamic Law. Hereditary right is not recognized.

Case Law
Abdul Hamid v/s Govt. of West Pakistan 1985 CLC 58
It was held in this case that as founder of waqf has the power to appoint first Mutawalli and to lay down the scheme for the succession to the office of Mutawalli.

19. Removal of Mutawalli

A Mutawalli can be removed by the court if he/she:

i Becomes unfit for the job.
ii Does not perform the religious services.
iii Becomes insolvent.
iv Commits misconduct.
v Commits breach of trust.

20. Essentials for a valid Waqf

i Permanent
The dedication must be permanent. A waqf which is made for a limited period is not valid. The Waqf Act 1913 Sec 2 (i) and (ii), in waqf, the dedication must be permanent.

ii Irrevocable
Once a valid waqf is made, it can not be revoked.

iii Unconditional
If there is a condtion for making a waqf, it will be invalid. Waqf shoud be unconditional. If a condition is interested in a deed of waqf, that the waqf reserves to him the power of revoking the waqf, the waqf is void ab initio.

iv Inalienable
Waqf should be inalienable. Because perpetuity is ensured by the doctrine that waqf property belongs to God and cannot be alienated by human beings for their own purposes.

v Certainty
Waqf property should be certain. If the objects are uncertain the waqf will be void. The property must be in the ownership of the waqif; it must be in his possession.

For example, A bequeaths certain land to B, who purports to dedicate it in A’s lifetime. Later A dies, the waqf is not valid.

Case Law
Abdul Hamid v/s Fateh Muahmmad, PLD 1958 (W.P), Lahore 824
The Lahore High Court has decided in a well-considered and exhaustive judgment that a fund collected for a religious foundation, but not yet used for the purchase of property for the purpose of the endowment, is to be regarded as a duly constituted waqf.

vi Registration
A waqfnama by which immoveable property of the value of Rs. 100/- or above requires to be registered under the registration act.

21. Completion of a Waqf

Abu Yusuf
A dedication by way of waqf is complete by the mere declaration. Neither delivery of possession, nor appointment of mutawalli is essential.

Imam Muhammad & Ithna Ashari Law
A waqf is not complete unless there is a declaration coupled with appointment of mutawalli and delivery of possession.

22. Primary rules relating to Waqf

Following are the primary rules relating to waqf.

i The subject of the waqf should be dedicated perpetuity.
ii All human rights should be diversted there from.
iii It should be made non heritable and inalienable.

23. Contingent Waqf

There should be no element of contingency in waqf. It is essential to the validity of a waqf that the appropriation should not be made to depend on contingency.

24. When Waqf can not be valid

i Neither a minor nor a guardian on behalf of the minor can make a waqf.
ii A waqf can not be made for an illegal object, for example to dealy or defeat creditors.

25. Revocation of Waqf

i In case of testamentary Waqf
A testamentary waqf that is made by will, may be revoked by the waqf at any time before his death.
ii In case of Non-Testamentary Waqf
Where at the time of creating a non-testamentary waqf, the waqif reserves to himself the power of revoking the waqf, the waqf will be invalid.

26. Waqf during Marzul Maut

A waqf made by will or during Marzul Maut can not operate upon more than one third of the net assets without the consent of heirs.

27. Conclusion

The creation of the waqf represents dedication of some property, according to Muslim legal principles meant it in the way of God.

[Habib orakzai]

Please elaborate the point below:


The law on the subject of waqf is in favour of descendents may be divided conveniently two parts: the law before, and the law after the Waqf Act 1913.
o The Law before the Waqf Act 1913
Case Law
Abul Fata Mahmod Ishak v/s Russomoy Dhur Chowdhry
The result of this decision was that if the gifts to charity were substantial, not illusory, the waqfs were held valid; but where the waqfs were founded for the aggrandizement of a family, or where the gifts to charity were illusory or merely nominal, the waqfs were held to be void.
o The Law after the Waqf Act 1913
This act purported to restore the law of the shari’at in India and to overrule the law as laid down by the Privy Council.

[Mohsin Shah]

As it is superficially evident from the statement that wakf validating act was imposed in 1913 to overrule the laws laid down by the privy council.....and to restore the shariat law which is the title of this specific coure (Muhammadan law)...
As far as the matter of case Abul Fata Mahmod Ishak v/s Russomoy Dhur Chowdhry is concerned it shows that if Wakf is of meager amount of property whether it be movable or immovable or it shows the intent of dedicator(wakif) to get fame for his family is considered to be a void wakf.....

My views r open to addition or subtraction.....If any one wanna ammend it he/she is most welcome...