NALSAR UNIVERSITY OF LAW

HYDERABAD

Presentation
On

Law of Wakfs
Under Muslim Law

By

Dr. Shaik Nazim Ahmed Shafi

B.Com., P.G.D.I.R.P.M.,D.C.A. (ERP-9),B.L.,LL.M. (Alig.) L.I.I.I., CCITM (Exports & Imports), Ph.D.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
1
 CONTENTS

1. Importance 10. Delivery of Possession …

2. Constitutional Position 11. Who can Create Wakf

3. Meaning and Definition of Wakf 12. What can be made as Wakf

4. Characteristics 13. In whose favour can wakf be made

5. Kinds of Wakfs 14. Objects of Wakf

6. Legal Incidents of Wakfs 15. Wakf with Uncertain Objects

7. Creation of Wakf 16. Essentials of a Valid Wakf

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
2
 IMPORTANCE
 The doctrine of wakf which is “interwoven with the entire religious
life and social economy of Muslims” has laid down the foundations of
one of the most important institutions of the community.

 In India alone, “there are more than a lakh wakfs valued at more than
a hundred crores of rupees”.

 Considering their number and resources, wakf can become a strong

instrument not only for the preservation of religious , charitable and
philanthropic institutions, but also for the educational and economic
development of a community which is fast falling behind in both these
spheres.
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law
NALSAR University of Law
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 CONSTITUTIONAL POSITION
 Concurrent List-Entry 10: Trust and Trustees

 Concurrent List-Entry 28: Charities and Charitable Institutions,

Charitable endowments and religious institutions.

 Supervision over the administration of wakfs, is, therefore, the

responsibility of both the Central and State governments.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 MEANING AND DEFINITION OF “WAKF”
 The wakf literally means ‘detention’ and connotes tying up of property
in perpetuity.

 According to Abu Yusuf, wakf is the detention 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 detention when once made, is
absolute, so that the thing dedicated can neither be sold, nor given, nor
inherited.

 In India, the view of Abu Yusuf is accepted. In some cases like Kassimiah
Charities v. Secy. Madras State Wakf Board AIR 1964 Mad. 18, held that

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 wakf means detention of the corpus in the ownership of God in such a
manner that its profits may be applied for the benefit of His servants.
The objects of dedication must be religious or charitable.

 The Mussulman Wakf Validating Act, 1913 defines wakf in Section 2

thus: ‘Wakf means the permanent dedication by a person professing
the Mussulman faith of any property for any purpose recognized by the
Mussulman Law as religious, pious or charitable.(PC: Held definition
not exhaustive)

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 CHARACTERISTICS
 Religious or Pious Motive:

 Karnataka State Board of Wakfs v. Mohd. Nazeer Ahmad, AIR 1982

Kant 309; One Fatima Bi dedicated her house by will for use of all travellers
irrespective of their caste, creed or religion and whether they were rich or
poor. On these facts it was held – under Muslim Law a wakf should have a
religious motive and it should be only for the benefit of the Muslim
community. If it is secular, the charity should be to the poor alone. The
Muhammadan Law recognizes the dedication the ultimate benefit of which is
expressly or impliedly reserved for the poor or for any other purpose
recognized by Muslim law as religious, pious or charitable.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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2. Permanent Nature: Whether expressly or impliedly mentioned that
the dedication is permanent, it will be presumed once the word ‘wakf’
is used. However, express condition or time limit should not be there.

 The dedication of property is based on evidence. In the absence of

any documentary evidence, an overall view of the evidence on record
is to be taken to establish that there is permanent dedication of the
property as a wakf. If the nature of the dedication of the property does
not constitute a wakf within the meaning of the provisions of the Act,
it must be proved that it became a wakf by reason of long user.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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3. Ownership of the Property vests in God: In wakf the property is dedicated to
God, therefore, its ownership is transferred from the donor to God. (Wakf
signifies the extinction of transferor’s ownership in the thing dedicated and
the detention of the corpus in the implied ownership of God in such a manner
that its profits may revert to the benefit of mankind.

4. The Usufruct is utilized for the benefit of mankind: That is, the corpus is tied
up in the name of God and the income accruing from that capital is the thing
which is spent for the realisation of the object for which that wakf was
created. Thus, the property remains fixed and its outcome is in flow.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 KINDS OF WAKF
 Broadly, wakfs are of two kinds: public and private. But the most
accepted is its threefold classification – public, quasi-public and
private.

 Public Wakf: Those which are dedicated to the public at large having
no restriction of any kind regarding its use: for example, bridges, wells,
roads, etc.

 Quasi-Public Wakf: Those which are partly public and partly to

provide for the benefit of a particular individual or class of individuals
which may be the settlor’s family.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 Private Wakf: Those which are for the benefit of private individuals,
including the settlor’s family or relations. Such a wakf is termed as
wakf-alal-aulad.

 Note: Muslim law gives equal recognition to public and private wakfs.
Both are subject to the rules of divine property whence the rights of
wakif are extinguished and it becomes the property of God. Both of
these are created in perpetuity and the property becomes inalienable.
Like a public wakf, a private wakf can under no circumstances fail and
when the line of descent becomes extinct, the entire corpus goes to
charity.
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law
NALSAR University of Law
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 LEGAL INCIDENTS OF WAKF

 There are three legal incidents of wakf: irrevocability, perpetuity and

inalienability.

1. Irrevocability: The final rule today is that a wakf cannot be revoked

after the declaration has been made, nor can the power to revoke be
validly reserved. It is the opinion of Abu Yusuf which prevails in India.

2. Perpetuity: Wakf must be perpetual. If it is for a limited period, or for

a temporary purpose, it is void. Ex: If a man says ‘I make this
dedication, on my children’ and adds nothing further, it is a valid wakf.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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3. Inalienability: As the wakf property belongs to God, no human being
can alienate it for his own purposes. Consequently, wakf property
cannot be the subject of sale, mortgage gift, inheritance or any
alienation or any alienation whatsoever.

 Exception: This general rule has two exceptions: wakf property may
be exchanged for an equivalent property, or sold, subject to
compulsory reinvestment of the price in another property. The power
of exchange and sale is subject to the permission of the Court.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 Authorization of Mutawalli: Legally his position is that of a manager
only; he is not an owner of the wakf property. Therefore he cannot
alienate the wakf property without express authorization by either the
settlor or the Court.

 Thus in Modh. Yusuf v. Mohd. Sadiq; the wakf deed directed the
Mutawalli to sell the wakf property and construct a rest house at
Mecca from the sale proceeds. The Court upheld this authorization. The
Court can also grant him permission, and with such prior sanction he
can transfer the property by way of sale or mortgage etc.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 Any alienation without the prior sanction is not void ab initio, but
voidable on challenge by any beneficiary.

 A lease of the wakf land for more than three years if agricultural land
and for more than one year for other land also requires prior
permission of the court or authorization by the settlor.

 Any lease of immovable property of wakf exceeding 3 years is void ab

initio.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 CREATION OF WAKF
 Formalities: The question here is “Is any formality necessary”?: No.
There is no essential formality or the use of any express phrase or
term requisite for the constitution of wakf. The law looks at the
intention of the donor, in whatever language it may be expressed or in
whatever term the wish may be formulated.

 A wakf inter vivos is completed by a mere declaration of endowment

by the owner.

 It is not necessary that a wakf should be made in writing. All that is

necessary in constituting a wakf is that some sort of declaration,
either oral or in writing must be made.
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law
NALSAR University of Law
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 Although oral wakf is permitted, yet when the terms of a wakf are
reduced to writing, no evidence except the document itself would be
an immovable property worth more than Rs. 100, registration is
essential.

 What happens in not registered?: Central Law and Local Law (Ex: U.P.
Muslim Wakf Act, 190)-It cannot be pleaded that non-registration of
the wakf within the period as provided by the U.P. Act will cancel the
wakf or prevent the Courts from recognizing it.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
17
 DELIVERY OF POSSESSION AND
APPOINTMENT OF MUTAWALLI

 A dedication of wakf is complete by mere declaration.

 Neither delivery of possession nor appointment of Mutawalli is

necessary.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 WHO CAN CREATE WAKF
 A major person of sound mind can validly create a wakf, provided
there is no fraud, undue influence or coercion, and he should not be
suffering from death-illness (maraz-ul-maut), whereas he cannot
dedicate more than one-third of his estate unless heirs give their
consent.

 Muslim law recognizes maraz-ul-maut gifts and also maraz-ul-maut

wakfs. When a person suffering from such illness as culminates in his
death creates a wakf on his deathbed and dies, it called marz-ul-maut
wakf. Such wakf takes effect as a bequest and only one third of the
property gifted is treated as given in wakf.
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law
NALSAR University of Law
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 Note: However, if some of his heirs consent, the whole property is
covered by the wakf. So also if he survives his illness.

 If some of his heirs consent while other do not, then the wakf is valid
in proportion to the shares of the consenting heirs.

 The wakif (who creates the wakf) can be a Muslim or a Non-Muslim.

 The only restriction is that the object of wakf should not be opposed
to the creed of dedicator. Thus, a Muslim cannot dedicate in favour
of an idol or temple, and a Hindu or Christian in favour of a mosque.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 WHAT CAN BE MADE AS WAKF
 The Wakf Validating Act, 1913 has permitted a wakf of “any
property”. This broad term naturally includes movable property.

 Koran for reading in mosques;

 Working cattle's and instruments of husbandry;

 War horses, camels and other animals;

 Swords;

 Chest of money for loans to the poor;

 Shares in companies;

 Securities etc.
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law
NALSAR University of Law
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 IN WHOSE FAVOUR CAN “WAKF” CAN BE MADE
 Muslim law does not insist that a man must necessarily be poor or
have benefit of a wakf. All persons, whether rich or poor, may be
beneficiaries. But, when the objects of wakf become impossible or
extinct, the inherent ultimate purpose of every wakf is, no doubt, the
relief of the poor and destitute. Following may be the beneficiaries:

 The wakif himself

 The family and descendants of wakif; and

 General Public

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 OBJECTS OF WAKFS
 Objects of a wakf may be religious, charitable or private:

 Religious and charitable objects

 Private wakfs: Exclusively for family; or substantially for the family

with some provision for charity; or substantially for charity with some
provision for .the family

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 VALID OBJECTS
 Distribution of alms to poor persons, and assistance to the poor to
enable them to perform the pilgrimage to Mecca;

 Celebrating the birth of Ali Murtaza;

 Keeping tazias (passion play) in the month of Muharram;

 Burning lamps in a mosque;

 Performance of annual fateha (for welfare of the soul of the deceased)

 Wakfs for certain Muslim religious Institutions (Mosque; Qabristan;

Durgah)

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 INVALID OBJECTS

 Objects prohibited by Islam (Ex: Construction of temple or Church)

 A wakf in favour of utter strangers, though there was an immediate

and substantial gift to charity.

 A provision for the repair of the wakif’s secular property is invalid

according to the Shiite law.

 Feeding Kutch Memons every year on the anniversary of the settlor’s

death.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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 ESSENTIALS OF A VALID WAKF
 There must be a clear intention on the part of wakif to create the wakf;

 Wakif must declare his intention, either orally or writing;

 Wakif must be the owner of the property to be dedicated as Waqf;

 The wakf must be perpetual;

 The objects of wakf should not be in conflict with the Islamic Principles.

 The wakif must be of sound mind and major and a Muslim. However,
wakfs by non-Muslims are recognized under certain conditions;

 Wakf must not be contingent or conditional

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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END SLIDE

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law

NALSAR University of Law
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