What are the essentials of a valid Wakf? What is the difference between Sunni and Shia laws relating to the creation of a Wakf-alal-aulad?

Question: What are the essentials of a valid Wakf? What is the difference between Sunni and Shia laws relating to the creation of a Wakf-alal-aulad? [RJS 1988]

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Answer

The essentials of a Muslim Wakf are:

(1) The motive of a wakf must always be religious. It is generally temporal.

(2) The wakf property belongs to God. Therefore, such dedication must be permanent and irrevocable.

(3) Wakif cannot take any benefit from Wakf property.

(4) A property which is capable of being endowed in perpetuity can only be the subject matter of Wakf.

(5) A 'Mutawalli' is appointed to manage the wakf property for that purpose, he is merely a procurator manager or superintendent. The wakf property is never vested in him, as such, he can never be a trustee.

So for the creation of a 'Waqf', there must be a substantial dedication of usufruct of the property to religious, pious and charitable purposes as understood by Muslim law and it should be a permanent dedication of property.

In Punjab Waqf Board v. Shakur Masih, 1997 Family Law Cases 177 (SC). Supreme Court observed:

"In Section 191 of Mulla's Principles of Mohammedan law, it is provided that it is essential for the validity of Waqf that the appropriation should not be made to depend on a contingency. Therefore a bequest creating waqf contingent upon the lifetime of anybody is invalid". It observed by Supreme Court in para No.4 of the Judgement "Waqf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by Muslim law as religious, pious or charitable."

Essential Conditions for a Valid Waqf

The essential conditions for a valid waqf are as follow:

1. Permanent Dedication

The dedication of waqf property must be permanent and Waqf himself must devote such property and give it for any purpose recognized by Muslim law, like religious, pious or charitable. If the wakf is made for a limited period it won't be a valid wakf and also there should be no condition or contingency attached otherwise it will become invalid. The motive behind Wakf is always religious.

When a Wakf is constituted, it is presumed that a gift of some property has been made in favour of God. This is ensured through legal fiction that waqf property becomes the property of God.

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.

2. Competency of the Waqif

Who Can Create a Waqf: The person who constitutes the waqf of his properties is called the 'founder of waqf or, Waqif. The waqif must be a competent person at the time of dedicating the property to the waqf. For being a competent waqif a person must possess the capacity, as well as the right to constitute the waqf.

As regards the capacity of a Muslim for making a waqf, there are only two requirements:

(i) soundness of mind and,

(ii) majority.

A person of unsound mind has no capacity to create any waqf because he or she is incapable of knowing the legal consequences of the transaction. Waqf constituted by an insane or minor person is void.

Waqf by Non-Muslims: The dedicator must profess Islam i.e., believes in the principles of Islam', he need not be a Muslim by religion. The Madras and Nagpur High Courts have held that a non-Muslim can also create a valid waqf provided the object of waqf is not against the principles of Islam.

Patna High Court has also held that a valid waqf may be constituted by a non-Muslim. However, according to Patna High Court, a non-Muslim waqf may constitute only a public waqf; a non-Muslim cannot create any private waqf (e.g. an Imambara).

3. Right to make waqf

A person having the capacity but no right cannot constitute a valid waqf. The subject matter of wakf should be owned by wakif at the time when wakf is made. Whether a person has the right to constitute a waqf or not depends on the fact whether the dedicator has a legal right to transfer the ownership of the property or not.

A widow cannot constitute any waqf of the property which she holds in lieu of her unpaid dower because she is not an absolute owner of that property.

Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the waqf and had fully understood the nature of the transaction.

Amount of property: A person can dedicate his entire property, but in the case of the testamentary wakf, more than one-third of the property cannot be dedicated.

Difference between Sunni and Shia laws relating to the creation of a Wakf-alal-aulad

Section 3 (r) of The Wakf Act, 1995 defines "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 mashrut-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 recognised by Muslim law as pious, religious or charitable, and "wakif" means any person making such dedication;

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

(i) A permanent dedication to any property.

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

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

Essentials according to Shia Law

According to Shia Law, "waqf is a contract, the fruit or effect of which is to tie up to the original and to have its usufruct free" (Sharya-ul-Islam).

The 'Sharya-ul-Islam' mentions four conditions as being required in the subject of waqf. These are as follows:

1. It must be perpetual (as in Sunni Law).

2. It must be absolute and unconditional.

3. Possession must be given of the thing appropriated (unlike Sunni Law under which mere declaration is sufficient).

4. It must be entirely taken out of waqif. It means that the waqif should not reserve any benefit or interest, even the usufruct of the dedicated property.

According to Shia Law, the wakf is irrevocable after possession is given to the beneficiaries or the Mutawalli. The settler divests himself of the ownership of the property and of everything in the nature of usufruct from the moment the wakf is created. In a purely metaphorical sense the expression "ownership of God" is used but unlike Hindu Law, since the conception of a personal God is not recognized, there is no ownership of God or no property belongs to God in the jural sense, although the ownership of the property becomes reverted in God as he is originally the owner of all things.

The Shia authorities considered the property as transferred to the beneficiaries or to the object of the Wakf. Strictly speaking, the ownership of the wakf property has no jural conception with any exactitude. The corpus is tied down and is made inalienable. Only the usufructs and the income from the corpus of the wakf property are available for carrying out the objects of Mutawalli, who is like a Manager rather than a trustee. The Mutawalli, so far as the wakf property is concerned, has to see that beneficiaries got the advantage of the usufruct.

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