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Wakf[1]

Table of Contents

QUESTION BANK

Q.1 What is the meaning of Wakf? What are its characteristics of it?

Q.2 What is Wakf? What are the formalities for the creation of Wakf?

Q.3 Who acts as a Mutwalli? What are the powers of Mutwalli?

Q.4. Explain Muslim religious institutions and officers.

Q.5 What are the legal incidents of waqf? How is the Doctrine of cypress applicable to waqf?

Q.6 Explain the meaning of ‘waqf’. What are the modes of creation of waqf?

SHORT NOTES

1 Sajjadanashin and Mutwalli.

SYNOPSIS

Introduction-
Definition and Meaning of “Wakf”-
According to the Mussalman Waqf Validating Act, 1913-
According to Abu Yusuf-

III. Ingredients of Wakf-

Permanent dedication-
Property to be dedicated.
Person making Wakf-
Purpose of Wakf-

(a) Public Wakf-

(b) Private Wakf-

The Doctrine of Cypres-

Cases to which Doctrine of cy-pres does not apply-

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Short Notes

Formalities for creation of Wakf-

(a) Registration of Wakf-nama-

(b) Modes of creation of Wakf-

(i) Wakf by an act inter vivos (i.e. During lifetime)-

(ii) Wakf through will-

(iii) Wakf made in death-illness-

***

Mutwalli-

(i) Appointment of Mutwalli-

(ii) Who can appoint Mutwalli-

(iii) Powers and duties of Mutwalli-

(iv) Removal of Mutwalli-

(a) By the Court-

(b) By the Wakf Board-

***

Sajjadanashin-
a) Powers and Functions of Sajjadanashin-

(1) Performing religious rites-

(2) Power to dispose of income-

(3) Duty to apply property for endowment-

(4) he may provide for indigent members of the funds.

b) Comparision between Sajjadanashin and Mutwalli-

(1) As to secular or spiritual head-

(2) As to Superiority-

(3) As to binding trust funds to debt-

(4) As to the right in funds-

(5) As to women-

I. Introduction-

“Wakf” has its origin in Islam. It is an Arabic word. The origin of ‘Wakf’ is found in the utterance of the Prophet Mohammad. Wakf is one of the most important institutions among Muslims. In India, more than lakh wakfs are valued at over a hundred crores of rupees. The concept of Wakf is developed subsequently by consensus.

II. Definition and Meaning of “Wakf”-

The word ” Wakf” literally means ‘detention’ (specifical property).

1. According to the Mussalman Wakf Validating Act, 1913-

“Wakf” means-

(a) the permanent dedication

(b) by a person professing the Mussalman faith

(d) for any purpose recognised by the Mussalman law as religious, pious or charitable.

2. According to Abu Yusuf-

“Wakf is- a) the dedication of a thing

b) in the implied ownership of almighty God.
c) in such a manner that its profit may revert to or be applied to the benefit of his creatures.

Thus, from the above definitions, we may lay down the following ingredients or essentials of Wakf.

III. Ingredients of Wakf-

1. Permanent dedication-

The donor’s permanent dedication of property is essential for Wakf. The Wakif (donor) must divest himself from such property. Dedication in perpetuity and not for a limited period is essential for Wakf. Dedication for a limited purpose is not recognised.

Moreover, such dedication is final and not revocable at the option of Wakif. It is presumed that the property vests in God; therefore, it cannot be reverted.

In Abdul Sattar v. Advocate General of Bombay[2] Held– the power of revocation reserved by the donor renders the deed of wakf void. Property vested in God cannot be divested.

Thus, the dedication of property in perpetuity to God makes the property inalienable.

2. Property to be dedicated-

The subject of Wakf is tangible property. Such property must be capable of use without being consumed. Thus, immovable as well as movable properties are the subject of Wakf, like shares, promissory notes, money, etc. However, eatables are not Wakf property.

3. Person making Wakf-

The person making Wakf is called “Wakif”. Only a Muslim makes Wakf. He must also be major and of sound mind.

Thus, Wakf made under coercion, undue influence, fraud, etc., is void. According to Muslim law, there is no obligation on a Muslim to create a wakf. However, he must be the owner of the property creating Wakf.

4. Purpose of Wakf-

The dedication of property by Muslims for any purpose recognised as religious, pious or charitable under Muslim law is proper. Every good purpose which God approves, or by which approach (Kurbat) is attained to Him, is a fitting purpose for a valid and lawful wakf. The Wakfs are divided into the following classes according to their object-

(a) Public Wakf[3]–

A Wakf created for the general public for religious and charitable purposes is called ‘Public Wakf’. ‘Public Wakf’ is a wakf where the property is dedicated to the general benefit of the Muslim community, such as mosques, graveyards, schools, trusts, etc.

A valid Wakf of movable property, such as cash, bonds, shares, debentures, etc., may be created.

(b) Private Wakf[4]–

A Wakf in favour of one’s family and descendants is called Wakf-alal-aulad or a ‘Private Wakf’. Private Wakf is also called ‘Wakf for Progeny’. In other words, it is a family settlement by way of Wakf. According to Prophet Mohammad, “a pious offering to one’s family is more pious than giving alms to a beggar”.

As per The Wakf Validating Act, 1913-

(i) All Wakfs that are substantially for a family with some provision for charity may be made.

(ii) Hanifi Muslim may create a wakf for his own maintenance and support during his lifetime or for paying debts out of the rents and profits of the property dedicated (S. 3).

(iii) The ultimate benefit of the property for the public may be postponed until after the extinction of the family or descendants of Wakif (S. 4).

Thus, after the coming into force of the above Act, private Wakf for one’s own or for one’s own family is permitted, and ultimate benefit for the public may be reserved either expressly or impliedly. The ultimate benefit for charity may be postponed till the extinction of the whole family. Thus, the ultimate benefit for the charity of private Wakf may be illusory, and the property may be utilised as private Wakf from generation to generation within the family of Wakif.

The Doctrine of Cypres[5]–

The Cypress literally means “as nearly as possible”. In detail, the term ‘Cypres’ means if the wishes of the Wakif in the Wakf deed cannot be carried out literally due to its vagueness, it will be carried out as nearly as possible in the way desired by the author.

In Salebhai v. Bai Safiabu[6] held that where the testator has indicated a general charitable intention in the Wakf, and the gift fails, the Court can devote the property to religious, charitable purposes, according to the Cypres doctrine.

Thus, as per the Doctrine, if the specified object of a Wakf fails, the Wakf will not fail thereby, but the income mentioned in Wakf will be applied for the benefit of the poor or to the objects as near as possible the object which has failed. In other words, we may say the wakf income should be applied to the objects similar in characters to the objects named by the wakif. The discretion to apply the Cypress doctrine is given to the Court.

Under Shia law, the Doctrine is read more liberally; it authorises applying wakf income for any good purpose generally as near as possible to the original object.

Wakif may later remove ambiguity in Wakf’s deed by specifying the object if he is alive. In Garib Das v.M.A. Hamid[7]

Facts—the Wakif created a wakf for the “mosque and madrasa at Mohalla Nathnagar.” It was found that there were two mosques in the area. Later, the Wakif executed a document specifying the mosque that had to take the benefit.

The Supreme Court observed that- when the Wakif himself has clarified which mosque the fund is to be applied for, no intention contrary to it can be drawn.

Cases to which Doctrine of Cypres does not apply-

The doctrine cannot be applied to divert wakf funds dedicated to one purpose to another purpose. The intention of the wakif is always to be taken into consideration. Thus, where the dedication was illusory or not intended for charity but to benefit only one’s family, the dedication should be applied by the family and not for general purposes. Similarly, the Doctrine does not apply to the objects prohibited by Muslim law, such as the construction of a church or temple etc.

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Short Notes

1. Formalities for the creation of Wakf-

Muslim Law does not prescribe any particular form for creating Wakf. Wakf may be either verbal or in writing. A dedication by way of Wakf is complete merely by declaration; neither delivery of possession nor appointment of Mutwalli is essential. Any word conveying a clear intention to make a wakf is sufficient.

(a) Registration of Wakf-nama-

If Wakf is in writing, the wakf-name by which immovable property of the value of Rs. One hundred or more are dedicated by way of Wakf and must be registered under the Indian Registration Act. 1908.

(b) Modes of creation of Wakf-

There are three modes of creation of Wakf viz.

(i) Wakf by an act inter vivos (i.e. During lifetime)-

A person during his lifetime may create a wakf without any limitation.

(ii) Wakf through will-

A Muslim may make a wakf through a will called a testamentary wakf. Such Wakf takes place after the death of the wakif. Such Wakf is subject to all the conditions pertaining to the testamentary capacity of the Wakif. The testamentary Wakf of more than one-third of the property is invalid unless the heirs of the Wakif consent to it.

(iii) Wakf made in death-illness-

A wakf in death illness occurs only when Wakif dies due to illness. If Wakif survives, he may revoke a wakf either expressly or impliedly.

***

2. Mutwalli[8]–

The manager or superintendent of the Wakf is called Mutawalli. In fact, the Wakf property vests in God; therefore, Mutwalli is not the owner but just a manager or superintendent of the Wakf property. It is his duty to see that the beneficiaries get the advantages of the usufruct.

(i) Appointment of Mutwalli-

Males or women of any religion can be appointed as Mutwalli. Such a person should be of sound mind, have attained majority, and be capable of performing the functions required to be discharged under a particular wakf. However, if religious duties or spiritual functions are part of the duties of Mutwalli, a female or non-Muslim cannot be appointed Mutwalli. In Mohd. Sheik v. Mohd. F. Yousuff[9] , the Madras High Court held that- a woman could be appointed as a Mutwalli, except where the duties are such that they cannot be performed by a female such as Sajjadanashin, Mujawar, Imam or Khatib.

(ii) Who can appoint Mutwalli-

The following person may appoint Mutwalli-

(a) wakif himself.

(b) Executor of Wakf.

(d) the Court.

(iii) Powers and duties of Mutwalli-

Mutwalli’s position is like that of a trustee of the trust, with the difference that the ownership of trust property is vested with the trustee. However, Mutwalli is not the owner of wakf property; he is just a manager. Property vests in God.

Mutwalli cannot sell, mortgage wakf properties except-

(i) by a provision in the deed empowering Mutwalli to do so, or

(ii) by permission of the Court or the Wakf Board,

A Mutwalli can perform all the powers reasonably necessary for protecting and administering wakf property. He has the power to manage and administer wakf property.

He can use the property to achieve wakf objects.

56 of the Wakaf Act 1995 restricts Mutwalli’s powers to lease or sublease property. Mutwalli cannot lease or sublease Wakaf property for more than three years, and to use the property for less than three years, Mutwalli needs the sanction of the Wakaf Board.

The prime duty of Mutwalli is to administer wakf property to achieve objects set out in Wakf.

61 of the Wakf Act 1954 even prescribes penalties for Mutwalli’s non-performance or improper performance of duties.

(iv) Removal of Mutwalli-

Mutwalli can be removed-

(a) By the Court-

If Mutwalli (i) denies the wakf character of the property and sets up an adverse title in himself, (ii) even though sufficient funds are in his hand, neglects to repair the property. (iii) Knowingly and intentionally causes damage or loss to the wakf property.

(b) By the Wakf Board-

The Wakf Board can remove Mutwalli as per S. 65 of the Wakf Act, 1995.

(c) By the Wakif-

Wakif, if alive, can remove Mutwalli, if he has reserved the right to remove him.

***

3. Sajjadanashin[10]–

A Sajjadanashin is the religious head of a Khankah. He sits (nation) on the carpet of prayer (sajjada). Unlike Mutwalli, he is a spiritual head and a spiritual preceptor. The position of Sajjadanashin is akin to that of the Hindu Mahant.

A khankah is a Muslim monastery or religious instruction where dervishes.[11] and other seekers of truth congregate for religious institutions and devotional experiences. A Khankah is generally under the governance of a Sajjadanashin. A woman, non-Muslim, cannot be Sajjadanashin.

a) Powers and Functions of Sajjadanashin-

Sajjadanashin has the following powers and functions-

(1) Performing religious rites-

Sajjadanashin performs all the religious duties and rites related to Khankah, of which he is Sajjadanashin.

(2) Power to dispose of income-

Sajjadanashin has full power of disposition over Wakf’s income. However, he cannot spend on wicked living or objects alien to his office.

(3) Duty to apply property for endowment-

It is Sajjadanashin’s duty to apply the income of Wakf property for the purpose of endowment (i.e., the object of Wakf).

(4) he may provide for indigent members of the funds.

b) Comparison between Sajjadanashin and Mutwalli-

(1) As to secular or spiritual head-

Mutwalli is a secular head, whereas Sajjadanashin is a spiritual head.

(2) As to Superiority-

If different persons hold the two parts, the Sajjadanashin holds a superior post.

(3) As to binding trust funds to debt-

Sajjadanashin is better positioned than Mutwalli to bind ‘trust funds to debt’.

(4) As to the right in funds-

A Sajjadanashin has a larger right in the funds of the income than a Mutwalli.

(5) As to women-

A woman cannot be Sajjadanashin, but she can become Mutwalli.

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[1] वक्फ

[2] (1932) 35 Bom. LR 18

[3] सार्वजनिक वक्फ [ सार्वजनिक वक्फ ]

[4] व्यकतीगत वक्फ [व्यक्तिगत वक्फ]

[5] व्यकतीगत वक्फ [व्यक्तिगत वक्फ]

[6] AIR (1912) 36 Bom. 111.

[7] AIR 1970 SC 1036

[8] व्यकतीगत वक्फ [ व्यक्तिगत वक्फ]

[9] IV (2000) CLT 435

[10] मुस्लीम मठाचा प्रमुख [ एक मुस्लिम मठ के मुखिया]

[11] Dervishes are those persons who have renounced the world for spiritual path.