Explain fully the concept of Wakf. Discuss the effects of the Mussalman Wakf Validation Acts of 1913 and 1930.

Question: Explain fully the concept of Wakf. Discuss the effects of the Mussalman Wakf Validation Acts of 1913 and 1930. [HJS 1986]

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Answer

"Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable."

The above is the definition of wakf as given in the Mussalman Wakf Validating Act, No. VI of 1913, section 2. That Act came into force on the 7th March 1913. It has a retrospective effect, and applies to all wakfs, whether created before or after that date. Referring to the above definition, the Judicial Committees observed that it was a definition for the purposes of the Act, and not necessarily exhaustive.

In Mohd. Khasim v. Mohd. Dastagir, (2006) 13 SCC 497, the Supreme Court in unequivocal terms held that according to Mohammedan Jurists, the term "wakf" literally means dedication by a person professing the Mussalman faith of any property for any purpose recognised by Mussalman law as religious, pious or charitable.

The definition given under Section 2 of the Mussalman Wakf Validating Act, 1913 has been slightly changed by the Wakf Act, 1995. Section 3 (r) of the 1995 Act lays down that—

"Wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes—

(i) A wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) "grants", including mushrut-ul-khidmat for any purpose recognised by the Muslim Law as pious, religious or charitable; and

(iii) A wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim Law as pious, religious or charitable, and "Wakf" means any person making such dedication.

The Law of `Waqf' is the most important branch of Muslim Law, as it is interwoven with the entire religious life and social economy of Muslims. Waqf in its literal sense means detention or stoppage. According to accepted doctrine of `Hanifi' school `Waqf' is detention of thing in the implied ownership of almighty God in such a manner that its profits may revert to or be applied to the benefit of His creature."

Most comprehensive definition of `Waqf' is given under Section 2 of `Mussalman Waqf Validating Act 1913' as "Waqf means permanent dedication by a person possessing Mussalman faith of any property for any purpose recognized by Mussalman law as religious pious or charitable.

According to Hanifi school essentials for creating valid Waqf are:

(a) Permanent dedication of any property, dedication implies intention to create waqf and

(b) Declaration to this effect. Therefore mere declaration to create Waqf by owner is sufficient to complete Waqf. Neither appointment of Mutawali nor delivery of possession to him is essential,

(c) Dedicator (Waqif) should be a person professing Mussalman faith and of sound mind and not a minor,

(d) Dedication should be for the purpose recognised by Mussalman law as religious, pious and charitable.

In Mohd. Shah v. Fashiuddin, AIR 1956 SC 713, there must be a substantial dedication of the usufruct of property to religious pious or charitable aims as understood by Muslim law. Such dedication must be perpetual and subject of Waqf may be any tangible property capable of being used without being consumed.

According to Shia Law, four conditions are required to valid `Waqf' :

(i) there must be a perpetual dedication

(ii) it must be unconditional

(iii) possession must be given of thing appropriated (Unlike Sunni Law under which mere declaration is sufficient).

(iv) waqif should not reserve any benefit or interest in a dedicated property.

Before the passing of `Waqf Validating Act 1913' Private Waqf or Waqf alal-aulad were considered to be void. It was necessary for constituting a valid Waqf under Muslim law that dedication of property must be solely to the worship of God and to charitable purpose and Waqf in favour of one's own family and descendants were not considered a valid Waqf.

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