What is Wakf? How far is it correct to say that the conditions laid down by the Wakf are equivalent to the command of the lawgiver?

Question: What is Wakf? How far is it correct to say that the conditions laid down by the Wakf are equivalent to the command of the lawgiver? [BJS 1977]

Find the question and answer of Muslim Law only on Legal Bites. [What is Wakf? How far is it correct to say that the conditions laid down by the Wakf are equivalent to the command of the lawgiver?]

Answer

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 the accepted doctrine of the `Hanifi' school `Waqf' is the detention of things 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.

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

It is observed in M Kazim v. A Asghar Ali, AIR 1932 that technically, it 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.

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."

According to Hanafi school essentials for creating valid Waqf are:

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

(b) Declaration to this effect. Therefore mere declaration to create Waqf by the 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.

Permanent Dedication of any Property

The pledge of property for waqf must be for life. Moreover, the waqif sacrifices property as religious, charitable or pious for self-recognized reasons. If the waqf made by the waqf is for a limited period, then such waqf is not valid and also does not have to be attached to any condition or emergency; otherwise, it will be cancelled or become invalid.

Furthermore, in the Karnataka board of Waqfs v. Mohammad Najwar Ahmed, AIR 1982 Kant 309, the house was dedicated by a Muslim to travellers regardless of their religion and location. The court said it was not a waqf under Muslim law, a waqf must have religious and pious reasons and it would only be for the benefit of the Muslim community. If it is secular, then charitable work should only be for the poor.

'Shariah-ul-Islam' presents the requirements of five types of conditions in the context of waqf:

• According to Sunni law, it must be permanent or permanent.
  
• It must always be absolute and unconditional.
  
• Possession or ownership must be paid for the allotted thing (from Sunni law where the only declaration is sufficient) unlike
  
• It must be taken out of the waqf. This implies that the waqf should not be transferred to any rights or interests or dedicated property.
• Absoluteness – The contract of waqf property is fixed or absolute. Conditional or emergency waqf cancelled or invalid

Also, under section 64 of the Wakf Act 1995, the Wakf board can remove mutawalli i.e. manager of wakf from his office under the conditions mentioned therein. The Board of Wakfs is established by the State Government as a body corporate having perpetual succession and a common seal with power to acquire, hold and transfer property (Section 9). The members of the Board are appointed by the State Government (Section 11).

Section 15 which enumerates the functions of the Board says that the general superintendence of all Wakfs in a State shall vest in the Board. The Board has the duty to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and its income is duly applied to the objects and purposes for which the Wakfs were created or intended. In exercising its powers in respect of Wakf, the Board is expected to act in conformity with the directions of the Wakf, the purposes of the Wakf and the usage or custom of the Wakf sanctioned by Muslim law. Section 15(2) which specifically enumerates the functions of the Board empowers it to issue necessary directions for the administration of the Wakfs and the utilisation of their surplus income, to settle schemes of management for a Wakf, to appoint and remove mutawallis, to administer the Wakf fund, and other acts which are necessary for the due control, maintenance and administration of the Wakfs

Analyzing the aforesaid legal position regarding the creation and managing of wakfs under Muslim Law, it is clear that the basic four fundamental conditions to determine its validity are gauged from the determinants i.e., perpetuity, irrevocability, unconditionally, and inalienability of waqf property. This explains that the said conditions laid down by the Wakf are equivalent to the command of the lawgiver.

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