What is Waqf Under Muslim Law?

Definition of Wakf

"Wakf" refers to the permanent dedication of specific property for a religious or charitable purpose. The concept of perpetuity is central to a wakf. As per Section 2(1) of the Mussalman Wakf Validating Act of 1913[1], a wakf is a permanent dedication by a person professing the Muslim faith for any purpose recognized under Muslim law as religious, pious, or charitable.

A wakf can either be testamentary (created by will) or inter vivos (created during the lifetime of the dedicator). A testamentary wakf, which can be made either verbally or in writing, only takes effect after the death of the dedicator (the wakif). However, it is subject to the same restrictions as a bequest made to an individual.

Under Hanafi law, wakf is considered a unilateral declaration. Thus, an inter vivos wakf can be created simply by a declaration of endowment by the owner, without needing to appoint a Mutawalli (manager) or transferring possession of the property (Mohammad Yasin v. Rahmat Ilahi[2]). If the dedicator remains in possession of the property, they do so as a trustee for the beneficiaries of the wakf. 

Statutory Provisions Relating to Wakfs

The Mussalman Wakf Validating Act, 1913

This Act legitimizes wakfs made for the benefit of the settlor's family, provided the ultimate benefit is reserved for the poor or other purposes recognized as religious or charitable under Muhammadan law. Prior to this, such wakfs were invalid if the charitable gift was deemed illusory. The Act also affirms the validity of provisions made for the settlor’s maintenance or debt repayment under Hanafi law. 

The Wakfs Act, 1954 (Amended in 1964)

This Act provides for the regulation and supervision of wakfs. Key features include:

1. Application to all states except Bihar, Delhi, Gujarat, Maharashtra, U.P., and West Bengal.
2. Creation of a Wakf Board in every state, with the provision to form a separate Shia Wakf Board if more than 15% of wakfs are Shia.
3. Establishment of the Central Wakf Council.
4. Provisions for the investigation, survey, registration, and audit of wakfs. 

Formality in Wakf Creation

No specific formality is required for a valid wakf; it can be created orally or through a deed (called a "wakfnama"). It suffices that the intention to create the wakf is clearly expressed. If a written instrument creates a wakf for immovable property worth Rs. 100 or more, it must be registered. Where a wakf is for both lawful and unlawful purposes, the wakf is valid only for lawful purposes. The property dedicated for unlawful purposes will revert to the dedicator. (Mazhar Husain v. Abdul[3]) 

Wakf and Contingency

For a wakf to be valid, it cannot be contingent; the dedication must be immediate and complete. For example, a trust conveying property to maintain a family and subsequently transfer the property to children upon reaching majority is not a valid wakf if the dedication depends on the occurrence of a future event (Pathukutti v. Avathalakutti[4]). However, a wakf intended to pay off debts is not contingent and is considered valid (Khalil-ud-din v. Shri Ram[5]). 

Wakf by Immemorial Usage

A wakf can be inferred from long-standing usage, even without direct evidence of how or when the property was originally set apart. For example, if land has been used as a burial ground for time immemorial, it is considered a wakf. Similarly, if for many years the public has offered prayers in a mosque near the tomb of a Muslim saint and held annual religious gatherings, the mosque is presumed to be duly dedicated as a wakf.

However, merely burying a saint in a plot of land does not automatically make that land wakf. In the absence of explicit intent to dedicate, or actual dedication by the owner, mere usage does not divest the property of its private nature. There must be evidence of dedication, such as regular congregational prayers.

The Supreme Court in the case of Ghulam Abbas v. State of U.P.[6], has ruled that a customary right to perform religious ceremonies on land belonging to a zamindar, acquired by Shia Muslims through prescription, cannot be overridden by any party with a superior title from the zamindar. Such a prescriptive right benefits all members of that sect. 

Essentials of a Valid Wakf under Hanafi Law

Under Hanafi law, a valid wakf must meet five key requirements:

1. Permanent Dedication of Property: The property dedicated must be permanently set aside for charitable, religious, or pious purposes as recognized by Islamic law. Once the property is dedicated, the wakif’s ownership must be entirely relinquished. Temporary or limited dedication (e.g., for 20 years) is invalid. A condition that permits the property to revert to the wakif or his heirs upon mismanagement also renders the wakf invalid, as the dedication lacks permanence. Similarly, a wakf involving property tied to a temporary lease or a house standing on leased land for a fixed term is also void, as the dedication is not of a permanent nature.

2. The Wakif Must Be Competent: The dedicator (wakif) must be of sound mind, an adult, and a Muslim. While a non-Muslim can benefit from the wakf, only a Muslim can validly create it. Minors cannot create a wakf. In cases where multiple heirs inherit property and some heirs are minors, the wakf is valid only to the extent of the shares of adult heirs. For minors, the wakf is invalid until they reach the age of majority.

3. Ownership of the Property: The wakif must have full ownership of the property at the time of the dedication. The subject property can be movable or immovable, and it can also be mortgaged or leased. Even if the wakif is in possession of the property under a contract of purchase but has not yet completed the purchase, a valid wakf can be made provided the transaction is finalized later.

4. Religious or Charitable Object: The purpose of the wakf must be religious, charitable, or pious, as recognized by Muslim law. This may include supporting the family, children, or descendants (wakf-ul-aulad), or broader purposes like maintaining mosques, funding schools, or helping the poor. Objects that oppose Islamic principles or are non-charitable render the wakf invalid. Common valid objects include:

• Building and maintaining mosques, hospitals, schools, and public libraries.
• Supporting the settlor’s family.
• Paying for religious rites or the reading of the Quran.
• Assisting the poor or helping Muslims undertake the pilgrimage to Mecca. The doctrine of cy pres applies when the specific charitable purpose fails. The court can redirect the wakf's income to the closest possible charitable purpose if the original objective cannot be fulfilled. However, if the initial wakf was invalid, the doctrine cannot be applied.

Doctrine of Cy Pres: When a charitable intention in a wakf is clear but the specific object fails, the doctrine of "cy pres" allows the Court to redirect the property to a purpose as close as possible to the original one. However, this doctrine cannot be applied if the original wakf itself was invalid due to uncertainty.

5. The Wakf Must Be Unconditional The dedication of property must be unconditional and not subject to any contingency or future event. Any condition that allows the wakif to revoke or modify the wakf renders it invalid. A valid wakf is irrevocable once established, although a testamentary wakf (created in a will) can be revoked by the testator before death. However, if the wakif recovers from a deathbed illness after creating a wakf, he may revoke the wakf created during that illness.

Revocability of a Wakf

Once a wakf inter vivos is validly constituted, it becomes irrevocable. If a wakfnama includes a condition that allows the dedicator to revoke the wakf, it is void from the outset. However, testamentary wakfs can be revoked any time before the death of the dedicator, as they only take effect after death. A wakf created during a death-illness can also be cancelled if the dedicator recovers.

Essentials of a Valid Wakf under Shia Law

For a wakf to be valid under Shia law, four essential conditions must be met:

1. Perpetuity: The wakf must be established in perpetuity.
2. Absolute and Unconditional: The dedication must be absolute, without any conditions attached.
3. Transfer of Possession: The property must be transferred, meaning possession of the dedicated property must be given.
4. Complete Transfer: The wakif (the one creating the wakf) must completely relinquish any personal interest in the property, including its usufruct. If the wakif retains any benefit, the entire wakf becomes invalid, not just the portion related to the retained interest.

The dedication should not be conditional, contingent, or temporary. For instance, a wakf limited to a certain period, like five years, would be invalid. Additionally, the wakif must own the property being dedicated. For example, if a widow dedicates her dower debt owed from her late husband's estate, it would not be valid, as she does not have control over that debt, which remains subject to the discretion of the heirs. 

Distinctions between Shia and Sunni Law of Wakf

1. Completion: Under Sunni law, a wakf is complete with a unilateral declaration by the owner, whereas Shia law requires it to be a bilateral contract, accompanied by the transfer of possession.
2. Reservation of Interest: In Sunni law, the settlor can reserve income from the wakf for personal maintenance or debt payment. In contrast, Shia law prohibits the wakif from benefiting from the dedicated property. 

The Role of the Mutawalli in Waqf Management

The mutawalli is the manager or trustee appointed to oversee the administration of waqf property, ensuring its effective management and that the benefits are distributed according to the wishes of the waqif (creator of the waqf). The mutawalli's role is central to the functioning of a waqf, and their responsibilities are governed by both Islamic principles and relevant statutory regulations.

Appointment of Mutawalli

The appointment of a mutawalli can occur in various ways depending on the circumstances at the time of creating the waqf. There are several entities or individuals with the authority to appoint a mutawalli:

1. The Waqif (Creator of the Waqf): The waqif holds the primary right to appoint a mutawalli at the time of creating the waqf.
2. The Executor of the Waqif: If the waqif dies without appointing a mutawalli, their executor has the right to appoint one.
3. The Court: If no mutawalli is appointed by the waqif or their executor, the court may appoint a mutawalli to manage the waqf according to guidelines laid down by law.
4. Waqf Board: In certain cases, a Waqf Board may step in to appoint a mutawalli in the interest of protecting the waqf’s objectives. 

Powers and Duties of the Mutawalli

The mutawalli has several critical duties and powers related to the management and administration of the waqf property. These include:

• Management of Waqf Property: The mutawalli must ensure that the waqf property, whether immovable or movable, is properly maintained and utilized for the purpose intended by the waqif.
• Maintenance and Repairs: The mutawalli is tasked with conducting regular maintenance and repairs of the waqf property to ensure its longevity and continued use.
• Distribution of Benefits: A key responsibility of the mutawalli is to ensure that the benefits or income derived from the waqf property are distributed to the beneficiaries as directed by the waqif. These benefits may be allocated for religious, charitable, or family purposes.
• Legal Actions: The mutawalli has the authority to initiate legal action to protect the waqf property or defend it from any legal challenge. This ensures the preservation of the waqf for future generations.
• Financial Management: The mutawalli must oversee the financial aspects of the waqf, including collecting rents, paying expenses, and ensuring the funds are applied to the purposes outlined in the waqf deed. 

Removal of the Mutawalli

The mutawalli can be removed from their position if they fail to carry out their duties responsibly. Grounds for removal may include mismanagement of the waqf, breach of trust, or other forms of misconduct. The following authorities can remove a mutawalli:

• The Court: If a mutawalli is found to have breached their duties or mismanaged the waqf property, the court may intervene and remove them.
• Waqf Board: Under the Waqf Act, 1995, the Waqf Board has the authority to remove a mutawalli if the conditions specified in the Act are met.
• The Waqif: If a waqif has reserved the right to remove the mutawalli in the waqf deed, they may do so in accordance with the terms of the deed.

[1] The Mussalman Wakf Validating Act of 1913, s. 2(1).

[2] AIR 1947 All 201.

[3] 1911 ILR 33 All 400.

[4] 1883, 13 Mad. 66.

[5] 1934 ILR 56 All 293.

[6] 1982, 1 SCC 711.