What is meant by Waqf? How the Waqf is created and maintained?

Question: What is meant by Waqf? How the Waqf is created and maintained? [Punj JS 2003]

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Answer

Wakf, the term `Wakf' literally means `detention'. The meaning of Wakf, in the legal sense, according to Abu Hanifa, is "the detention of a specific thing in the ownership of the Wakif or appropriator and the devoting or appropriating of its profits or usufruct in charity on the poor or other good objects".

Asaf A.A. Fyzee said that wakf is a pious endowment which is inalienable and therefore supposed to be perpetual although in actual practice this quality of perpetuity is cut down by several limitations.

The term Wakf has been defined in Section 2 of the Mussalman Wakf Validation Act, 1913 in these words "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."

Essential elements of a Wakf

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.

Creation of Wakf

A wakf is created by a mere declaration of endowment by the owner of the property, and upon such declaration, the property immediately vests in God Almighty. Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements described above are fulfilled, a Wakf is created. Though it can be said that a Wakf is usually created in the following ways –

1. By an act of a living person (inter-vivos) – when a person declares the dedication of his property for Wakf. This can also be done while the person is on a death bed (marz-ul-maut), in which case, he cannot dedicate more than 1/3 of his property to Wakf.

2. By Will – when a person leaves a Will in which he dedicates his property after his death. Earlier it was thought that Shia cannot create Wakf by Will but now it has been approved.

3. By Usage – when a property has been in use for charitable or religious purposes for time immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.

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 as follows:

"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."

Managing a Wakf

Mutawalli is nothing but the manager of a wakf. He is not the owner or even a trustee of the property. He is only a superintendent whose job is the see that the usufructs of the property are being utilized for valid purposes as desired by the wakif. He has to see that the intended beneficiaries are indeed getting the benefits. Thus, he only has limited control over the usufructs.

In Ahmad Arif v. Wealth Tax Commissioner, 1969 (2) SCC 471, Supreme Court held that a mutawalli has no power to sell, mortgage, or lease wakf property without prior permission of the Court or unless that power is explicitly provided to the mutawalli in wakfnama.

Who can be a mutawalli?

A person who is a major, of sound mind, and who is capable of performing the functions of the wakf as desired by the wakif can be appointed as a mutawalli. A male or female of any religion can be appointed. If religious duties are a part of the wakf, then a female or a non-muslim cannot be appointed.

Being the manager of the wakf, he is in charge of the usufructs of the property. He has the following powers and rights:

1) He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose of the wakf. He can take all reasonable actions in good faith to ensure that the intended beneficiaries are benefited by the wakf. Unlike a trustee, he is not an owner of the property so he cannot sell the property. However, the wakif may give such rights to the mutawalli by explicitly mentioning them in wakfnama.

2) He can get a right to sell or borrow money by taking permission from the court upon appropriate grounds or if there is an urgent necessity.

3) He is competent to file a suit to protect the interests of the wakf.

4) He can lease the property for the agricultural purpose for less than three years and for the non-agricultural purpose for less than one year. He can exceed the term by permission of the court.

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