In a Waqf created by one A, the value of Waqf property was Rs. 50,00,000. The Mutawalliship and Naib-Mutawalliship ran in the family of the wakf from generation to generation. The wakf is for religious purposes but it also provided for payment of a substantial allowance for the Mutawallis and Nabi Mutawallis and for family members in various portions.

Question: In a Waqf created by one A, the value of Waqf property was Rs. 50,00,000. The Mutawalliship and Naib-Mutawalliship ran in the family of the wakf from generation to generation. The wakf is for religious purposes but it also provided for payment of a substantial allowance for the Mutawallis and Nabi Mutawallis and for family members in various portions. [BJS 1975]

Find the question and answer of Muslim Law only on Legal Bites. [In a Waqf created by one A, the value of Waqf property was Rs. 50,00,000. The Mutawalliship and Naib-Mutawalliship ran in the family of the wakf from generation to generation. The wakf is for religious purposes but it also provided for payment of a substantial allowance for the Mutawallis and Nabi Mutawallis and for family members in various portions.]

Answer

The literal meaning of the word waqf is 'detention'. In the legal context, waqf means the detention of a property so that its produce or income may always be available for religious or charitable purposes. When a waqf is created, the property is detained or, is 'tied up' forever and thereafter becomes non-transferable. Meaning and various types of waqf are defined in this project. There is an object behind making a wakf.

When a Muslim person who is working for a charitable purpose under religious faith and sentiments and for the benefit and upliftment of the society, has donated his property in the name of Allah is called waqf.

Waqf literally means 'detention' stoppage or tying up, meaning thereby that the ownership of dedicated property is taken away from the person making waqf and transferred and detained by God. Details are given in old texts about wakf made by the prophet.

It was observed in the landmark case of M Kazim v. A Asghar Ali, AIR 1932 11 Patna 238, that technically, waqf means 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, to accommodate loan.

In Kawsar Alam v. State of West Bengal, AIR 1962 Cal 468 at 471 and 472 where a substantial portion of the income of wakf property was permanently dedicated for religious and charitable purposes and the deed also allotted a substantial portion of income for the payment of allowances to Wakfs descendants in perpetuity. The Special Division Bench of the Calcutta High Court observed:

" Nowadays a Wakf-alal-aulad is commonly regarded as a private trust and not as a trust for religious and charitable purposes....
...the provisions in the wakf deed for payment of allowances to the testator's descendants are not for religious or charitable purposes."

When this case went to the Supreme Court, their Lordships observed in Fazul Rabbi v. State of West Bengal, 1965 AIR 1722 at 1726.

"...No religious worship, teaching or service or performance of religious rites is involved when the wakf provides for his family or himself even though a person, giving maintenance to his family or himself is regarded in Mahomadan Law as giving a sadaqah. But even if regarded as a pious act a sadaqah of this kind is not a religious worship or rite."

Their Lordships also quoted the observations of Lord Hobhouse in Abdul Fata Mahomed v. Rasamaya, (1895) I.L.R. 22 Cal. 619, at 632:

"...it would be doing wrong to the great lawgiver to suppose that he is thereby commending gifts for which the donor exercises no self-denial, in which. he takes back with one hand what he appears to put away with the other; which are to form the centre of attraction for accumulations of income and further accessions of family property; which carefully protected so-called managers from being called to account; which seek to give to the donors and their family the enjoyment of property free from all liability to creditors; and which do not seek the benefit of others beyond the use of empty words."

After extracting the above observations, their Lordships observed:

But the intention of the validating Act was not to give a new meaning to the word 'charity' which in common parlance is a word denoting giving to someone in necessitous circumstances and in law giving for the public good. A private gift to one's own self or kith and kin may be meritorious and pious but is not a charity in the legal sense and the Courts in India have never regarded such gifts as for religious or charitable purposes even under the Mahomedan Law.

The Hon'ble Supreme Court in Mohd. Ismail v. Sabir Ali, 1962 AIR 1722 has observed that where a wakf deed provides for an insignificant portion of the income to be used for certain religious purposes, such a wakf though in theory, it vests as the property of God Almighty, is not for charitable or religious purposes.

Moreover in Md. Ibrahim Hassan Sait v. Kerala Wakf Board (2007), where the Kerala Bench had to interpret the words 'net annual income.' The Bench held that the total income in Section 3(g) of the Wakf Act is an income exclusive of the expenses of cultivation and net income under the section is the said total income minus the revenue, cess, rates and taxes payable to the Government or any local authority.

It is also useful to refer to the observations of their Lordships of the Supreme Court in Navnit Lal v. I.T. Appellate Assistant Commissioner,  1965 AIR 1375, at 1380, namely that the Word 'income' must be given its ordinary, natural and grammatical meaning and that income is a thing that comes in. Under these circumstances, the Board cannot claim contribution from mutaWalli without deducting the expenses incurred by him for raising the income from the immovable properties and without, of course, deducting the cess, rates and taxes payable to the Government or any local authority, as defined in Section 3(g) of the Act. That would be the income defined in the Act as 'net income.'

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