"Wakf means the permanent dedication by a person professing the Muslim faith of any property, for any purpose, recognised by the Mohammedan Law as religious, Pious, or charitable. Comment upon this statement and explain the essentials; of a valid Wakf under Muslim Law. Examine the validity of the following Wakfs. Giving reasons for your answers:- 1. The Wakf of a Muslim for a mosque or a burial ground." 2. The Wakf of a dower debt. 3. A Wakf for erecting and maintaining a Church opposite the house of the "Wakf". 4. A Wakf to maintain a college for teaching Muslim and Hindu Jurisprudence.

Question: "Wakf means the permanent dedication by a person professing the Muslim faith of any property, for any purpose, recognised by the Mohammedan Law as religious, Pious, or charitable. Comment upon this statement and explain the essentials; of a valid Wakf under Muslim Law. Examine the validity of the following Wakfs. Giving reasons for your answers:-
1. The Wakf of a Muslim for a mosque or a burial ground."
2. The Wakf of a dower debt.
3. A Wakf for erecting and maintaining a Church opposite the house of the "Wakf".
4. A Wakf to maintain a college for teaching Muslim and Hindu Jurisprudence.

Find the question and answer of Muslim Law only on Legal Bites. ["Wakf means the permanent dedication by a person professing the Muslim faith of any property, for any purpose, recognised by the Mohammedan Law as religious, Pious, or charitable. Comment upon this statement and explain the essentials; of a valid Wakf under Muslim Law. Examine the validity of the following Wakfs. Giving reasons for your answers:-

1. The Wakf of a Muslim for a mosque or a burial ground." 2. The Wakf of a dower debt. 3. A Wakf for erecting and maintaining a Church opposite the house of the "Wakf". 4. A Wakf to maintain a college for teaching Muslim and Hindu Jurisprudence.]

Answer

The literal meaning of the word Wakf is "detention". In the legal context, wakf means the detention of a property so that its produce or income may always be available for religious or charitable purposes. Wakf Act, of 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 Waqf

a. Waqf Under Sunni Law

The essential conditions of a valid waqf, according to the Hanafi Law (Sunni Law) are:

1. A permanent dedication to any property.

2. The dedicator (waqif) should be a person professing the Mussalman faith and of sound mind and not a minor or lunatic.

3. The dedication should be for a purpose recognised by the Mussalman law as religious, pious or charitable.

1. Permanent dedication of property

The most important essential of a valid waqf is that it should be a permanent dedication of property.' It has the following prerequisites:

• There must be a dedication
  
• The dedication must be permanent.
• The dedication must be of any property.

The Waqf himself has the right to donate such property and give it for any purpose recognized under Muslim Law. If the wakf is made for a limited period, it cannot be considered a valid wakf.

In the case of Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, AIR 1982 Kant 309, it was held that if a Muslim man provides his house to the travellers irrespective of their religion and status for their stay, this cannot be considered as a valid Wakf on the ground that under Muslim law a Wakf has a religious motive, that it should be created for the benefit of Muslim community. When a Wakf is constituted, it is always a presumption that it is a gift of some property, made in favour of God. This is legal fiction.

2. By a person professing Mussalman faith: The person creating a waqf should be an adult Muslim of sound mind.

3. For any purpose recognised by Muslim Law: The main objective behind creating a waqf is that it should be dedicated to a purpose recognised as religious, pious or charitable under Muslim law.

b. Waqf Under Shia law

The essential conditions for creating a valid Waqf according to Shia Law are:

• It must be perpetual.
  
• It must be absolute and unconditional.
• Possession of the thing appropriated must be given.
• The waqf property should be entirely taken out of waqif.

The Dedication must be Permanent

The dedication must be permanent. A wakf, therefore, for a limited period, e.g. twenty years, is not valid. Further, the purpose for which a wakf is created must be of a permanent character.

Baillie, 565; Hedaya, 234 say the dedication is not permanent and the wakf is invalid if the wakfnama contains a condition that in case of mismanagement the property should be divided among the heirs of the settlor. Nor can the dedication be permanent if the wakif is only a usufructuary mortgagee and has no permanent control over the property.

To constitute a valid wakf it is thus necessary that there must be a dedication of property and secondly, it must be permanent. It means that once a wakf is created relating to any property, it remains a wakf property forever. This was affirmed by the Supreme Court in Sayyed Ali v. A.P. Wakf Board, Hyderabad A.I.R. 1998 SC 972.

The Court in the instant case observed that a wakf is a permanent dedication of property for purposes recognized by Muslim law as pious, religious or charitable and the property having been found as wakf would always retain its character as a wakf. In other words, once a wakf always a wakf and the grant of 'patta' in favour of Mokhasadar under the Inams Act does not, in any manner, nullify the earlier dedication made of the property constituting the same as wakf. After a wakf has been created, it continues to be so for all time to come and further continues to be so governed by the provisions of the Wakf Act and the grant of patta does not affect the original character of the wakf.

1. The Wakf of a Muslim for a mosque or a burial ground."

A musha or an undivided share in property may, according to the more approved view, form the subject of the wakf, whether the property is capable of division or not.

Exception —The wakf of a musha for a mosque or burial ground is not valid, whether the property is capable of division or not.

Hedaya, 233; Baillie, 573. The approved opinion above referred to is that of Abu Yusuf. According to Muhammad, the wakf of a musha in property capable of partition is not valid, for he holds that delivery of possession by the endower to a mutawalli is a condition necessary for the validity of a wakf. But though Abu Yusuf holds that a wakf of musha is valid though the property may be capable of partition, he has declared that a wakf of a musha for a mosque or burial ground is invalid. He gives two reasons, one of which is that "the continuance of a participation in anything is repugnant to its becoming the exclusive right of God."

It follows from what has been stated above that one of several heirs of a deceased Mohammedan cannot make a valid wakf of his undivided share of the inheritance for a mosque or burial ground though he may do so for other purposes.

2. The Wakf of a dower debt.

A dower debt which may or may not is paid to the widow at the option of the residuary, cannot be made the subject of a wakf. This was clarified in the case of Nosh Ali v. Shamsunnissa Bibi, (1939) All. 322.

3. A Wakf for erecting and maintaining a Church opposite the house of the "Wakf".

According to Baillie, 560, one of the objects prohibited by Islam for the creation of wakf is erecting or maintaining a church or a temple. Thus, erecting and maintaining a church opposite the house of the Wakf is an invalid object of the wakf.

4. A Wakf to maintain a college for teaching Muslim and Hindu Jurisprudence.

According to Baillie, 527, maintaining colleges and provisions for professors to teach in colleges is a valid object of Wakf. Hence, a wakf created to maintain a college for teaching Muslim and Hindu Jurisprudence will be valid in law.

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