Essentials of a Valid Wakf
- Define Wakf and explain the essentials of a valid Wakf.
- What are the different kinds of Wakf?
- How is Wakf created?
- Can a Wakf be created only for the benefit of one’s family?
- What is the difference between contingent and conditional Wakf?
- When is Wakf complete? What are the legal consequences of a valid Wakf?
- Can a Wakf be revoked?
- Define Mutawalli. Who can be a Mutwalli?
- Who are incompetent to be Mutwalli?
- By whom can he be appointed? Can a Mutwalli be removed? How?
The literal meaning of Wakf is detention, stoppage, or tying up as observed in M Kazim vs A Asghar Ali AIR 1932. Technically, it means a dedication of some specific property for a pious purpose or secession of pious purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf is the detention of a specific thing that is in the ownership of the waqif or appropriator, and the devotion of its profits or usufructs to charity, the poor, or other good objects, in the manner of great or commodate loan.
Wakf Act 1954 defines Wakf as, “Wakf means the permanent dedication by a person professing the Islam, of any movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable.”
Essentials of a valid Wakf
1. Permanent Dedication of any property – There are actually three aspects to this requirement. There must be a dedication, the dedication must be permanent, and the dedication can be of the property. There is no prescribed form of dedication. It can be written or oral but it must be clear to convey the intention of dedication. According to Abu Yusuf, whose word is followed in India, a mere declaration of dedication is sufficient for the completion of Wakf. Neither delivery of possession nor appointment of Mutawalli is necessary.
The dedication must be permanent. A temporary dedication such as for a period of 10 yrs or until the death of someone is invalid.
The subject of Wakf can be any tangible property (mal) that can be used without being consumed. In Abdul Sakur vs Abu Bakkar 1930, it was held that there are no restrictions as long as the property can be used without being consumed, and thus, a valid Wakf can be created not only of immovable property but also of movable property such as shares of a company or even money. Some subjects that Hanafi law recognizes are immovable property, accessories to immovable property, or books.
The subject of the Wakf must be in the ownership of the dedicator, wakif. One cannot dedicate someone else’s property.
2. By a Muslim – A Wakf can only be created by a Muslim. Further, the person must have attained the age of majority as per Indian Majority Act and should be of sound mind.
3. For any purpose recognized by Muslim Law – The purpose is also called the object of Wakf and it can be any purpose recognized as religious, pious, or charitable, as per Muslim Law. It is not necessary that a person must name a specific purpose. He can also declare that the property may be used for any welfare works permitted by Shariat.
In Zulfiqar Ali vs Nabi Bux, the settlers of a Wakf provided that the income of certain shops was to be applied firstly to the upkeep of the mosque and then the residue, if any, to the remuneration of the mutawalli. It was held to be valid however, it was also pointed out that if a provision of remuneration was created before the upkeep of the mosque, it would have been invalid.
The following are some of the objects that have been held valid in several cases – Mosques and provisions of Imam to conduct worship, celebrating the birth of Ali Murtaza, repairs of Imambaras, maintenance of Khanqahs, burning lamps in mosques, payment of money to fakirs, grant to an idea, grant to colleges and professors to teach in colleges, bridges and caravan sarais.
In Kunhamutty vs Ahman Musaliar AIR 1935, Madras HC held that if there are no alms, the performing of ceremonies for the benefit of the departed soul is not a valid object.
Some other invalid objects are – building or maintaining temple or church, providing for the rich exclusively, objects which are uncertain.
Shia Law – Besides the above requirements, Shia law imposes some more requirements for a valid Wakf. There are –
- Delivery of possession to the first person in whose favour the Wakf has been created is essential.
- Dedication must be absolute and unconditional.
- The property must be completely taken away from the wakif. It means that the wakif cannot keep or reserve any benefit or interest, or even the usufructs of the dedicated property.
Creation of Wakf
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 –
- By an act of a living person (inter vivos) – when a person declares his 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.
- 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.
- By Usage – when a property has been in use for charitable or religious purpose for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.
Kinds of Wakfs
A Wakf can be classified into two types – Public and Private. As the name suggests, a public Wakf is for the general religious and charitable purposes while a private Wakf is for the creators own family and descendants and is technically called Wakf alal aulad. It was earlier considered that to constitute a valid wakf there must be a complete dedication of the property to God and thus private wakf was not at all possible. However, this view is not tenable now and a private wakf can be created subject to certain limitation after Wakf Validating Act 1913. This acts allows a private wakf to be created for one’s descendants provided that the ultimate benefits are reserved for charity. Muslim Law treats both public and private wakfs alike. Both types of wakf are created in perpetuity and the property becomes inalienable.
Wakf alal aulad (can a wakf be created for one’s family?)
Wakf on one’s children and thereafter on the poor is a valid wakf according to all the Muslim Schools of Jurisprudence. This is because, under the Mohammedan Law, the word charity has a much wider meaning and includes provisions made for one’s own children and descendants. Charity to one’s kith and kin is a high act of merit and a provision for one’s family or descendants, to prevent their falling into indigence, is also an act of charity. The special features of wakf-alal-aulad is that only the members of the wakif’s family should be supported out of the income and revenue of the wakf property. Like other wakfs, wakf alal-aulad is governed by Muhammadan Law, which makes no distinction between the wakfs either in point of sanctity or the legal incidents that follow on their creation. Wakf alal aulad is, in the eye of the law, Divine property and when the rights of the wakif are extinguished, it becomes the property of God and the advantage accrues to His creatures. Like the public wakf, a wakf-alal-aulad can under no circumstances fail, and when the line of descendant becomes extinct, the entire corpus goes to charity.
The institution of private wakf is traced to the prophet himself who created a benefaction for the support of his daughter and her descendants and, in fact, placed it in the same category as a dedication to a mosque.
Thus, it is clear that a wakf can be created for one’s own family. However, the ultimate benefit must be for some purpose which is recognized as pious, religious or charitable by Islam.
Quasi public Wakf
Some times a third kind of wakf is also identified. In a Quasi public wakf, 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.
Contingent Wakf
A wakf, the creation of which depends on some event happening is called a contingent wakf and is invalid. For example, if a person creates a wakf saying that his property should be dedicated to god if he dies childless is an invalid wakf. Under shia law also, a wakf depending on certain contingencies is invalid.
In Khaliluddin vs Shri Ram 1934, a muslim executed a deed for creating a wakf, which contained a direction that until payment of specified debt by him, no proceeding under the wakfnama shall be enforceable. It was held that it does not impose any condition on the creation of the wakf and so it is valid.
Conditional Wakf
If a condition is imposed that when the property dedicated is mismanaged, it should be divided amongst the heirs of the wakf, or that the wakif has a right to revoke the wakf in future, such a wakf would be invalid. But a direction to pay debts, or to pay for improvements, repairs or expansion of the wakf property or conditions relating to the appointment of Mutawalli would not invalidate the wakf. In case of a conditional wakf, it depends upon the wakif to revoke the illegal condition and to make the wakf valid, otherwise it would remain invalid.
Completion of wakf
The formation of a wakf is complete when a mutawalli is first appointed for the wakf. The mutalwalli can be a third person or the wakif himself. When a third person is appointed as mutawalli, mere declaration of the appointment and endowment by the wakif is enough. If the wakif appoints himself as the first mutawalli, the only requirement is that the transaction should be bona fide. There is no need for physical possession or transfer of property from his name as owner to his name as mutawalli.
In both the cases, however, mere intention of setting aside the property for wakf is not enough. A declaration to that effect is also required.
In Garib Das vs M A Hamid AIR 1970, it was held that in cases where founder of the wakf himself is the first mutawalli, it is not necessary that the property should be transferred from the name of the donor as the owner in his own name as mutawalli.
Shia law –
- Delivery of possession to the mutawalli is required for completion when the first mutawalli is a third person.
- Even when the owner himself is the first mutawalli, the character of the ownership must be changed from owner to mutawalli in public register.
Legal Consequences (Legal Incidents) of Wakf
Once a wakf is complete, the following are the consequences –
- Dedication to God – The property vests in God in the sense that no body can claim ownership of it. In Md. Ismail vs Thakur Sabir Ali AIR 1962, SC held that even in wakf alal aulad, the property is dedicated to God and only the usufructs are used by the descendants.
- 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.
- Permanent or Perpetual – Perpetuality is an essential element of wakf. Once the property is given to wakf, it remains for the wakf for ever. Wakf cannot be of a specified time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahbad HC that the wakf of a house built on a land leased for a fixed term was invalid.
- 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.
- 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.
- 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.
- 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 offence as per Wakf Act.1995.
Revocation of Wakf
In India, once a valid wakf is created it cannot be revoked because no body has the power to divest God of His ownership of a property. It can neither be given back to the wakif nor can it be sold to someone else, without court’s permission.
A wakf created inter vivos is irrevocable. If the wakif puts a condition of revocability, the wakf is invalid. However, if the wakf has not yet come into existence, it can be canceled. Thus, a testamentary wakf can be canceled by the owner himself before his death by making a new will. Further, wakf created on death bed is valid only up till 1/3 of the wakif’s property. Beyond that, it is invalid and the property does not go to wakf but goes to heirs instead.
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 a limited control over the usufructs.
In Ahmad Arif vs Wealth Tax Commissioner AIR 1971, 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 1907, 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.
Who can appoint a mutawalli – 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 –
- founder
- executor of founder
- mutawalli on his death bed
- the court, which should follow the guidelines –
- it should not disregard the directions of the settler but public interest must be given more importance.
- preference should be given to the family member of the wakif instead of utter stranger.
Powers of a mutawalli – Being the manager of the wakf, he is in charge of the usufructs of the property. He has the following rights –
- 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.
- 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.
- He is competent to file a suit to protect the interests of the wakf.
- He can lease the property for agricultural purpose for less than three years and for non-agricultural purpose for less than one year. He can exceed the term by permission of the court.
- 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.
Removal of a mutawalli –
Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif. However, a mutawalli can be removed in the following situations –
- By court –
- if he misappropriates wakf property.
- even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.
- knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs Mahmood Hasan AIR 1978, 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.
- he becomes insolvent.
- By wakf board – Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli from his office under the conditions mentioned therein.
- 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.
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