Wakf Under Muslim Law (The Wakf Act,1955) | Family Law - CLAT PG PDF Download

Wakf Under Muslim Law

A Wakf, according to Muslim Law, is primarily a religious and pious commitment, although it can also be established for charitable causes or personal benefits.

Origin of Wakf

• The concept of Wakf traces back to the time of the Prophet Muhammad. A notable instance is when Omer Ibn al-Khattab established a Wakf of lands in Khyber under the Prophet's guidance.

Definition of Wakf

• Abu Haufa's Perspective: Wakf involves tying up the substance of a property in the ownership of the wakif (founder) while dedicating the usufruct (benefit) for charitable purposes. The ownership remains with the wakif, but the benefits are used for charitable or pious reasons.
• Essentials of Wakf:
  • Ownership of the founder/wakif is extinguished.
  • Property is vested in the ownership of God perpetually and irrevocably.
  • Usufruct of the property is used for the benefit of mankind.
• Shia Law Perspective: Under Shia Law, Wakf is viewed as a contract that ties up the original ownership of a thing while leaving its usufruct free.
• Wakf Act 1913: According to Section 2 of the Wakf Act 1913, Wakf is defined as the permanent dedication by a Muslim of any property for purposes recognized by Muslim law as religious, pious, or charitable.

Characteristic Features of a Wakf

1. Property Vests in God

• Under both Shia and Sunni law, property in a wakf is considered to vest in God.
• The Supreme Court has also ruled that in a family wakf, the property vests in God and not in the Mutawalli (manager).

2. Wakf Must Be Permanent

• A wakf must be perpetual, meaning it is intended to last indefinitely.

3. Wakf Must Be Irrevocable

• A wakf is irrevocable, as established in the case of Abdul Sattar v. Noorbai. In this case, a condition in the wakfnama that allowed for revocation by deed, will, or codicil was deemed invalid.
• However, a wakif (the person creating the wakf) has the right at the time of dedication to reserve the power to alter the beneficiaries by adding to or excluding some of them.
• A testamentary wakf can be revoked by the settler at any time before their death. It is essentially a bequest and can be revoked like any other bequest. A testamentary wakf comes into existence after the death of the wakif.

4. Inalienability of Wakf Properties

• Wakf properties are generally inalienable, meaning they cannot be sold or transferred. However, in certain circumstances, a Mutawalli (manager of the wakf) may have the authority to alienate, sell, or lease the properties with prior permission from the court.
• If the wakfnama (deed of wakf) grants the Mutawalli the power to sell wakf properties under specific conditions, then the Mutawalli can exercise this power during those circumstances.

5. Family Wakfs/Wakfs for Alal-Aulad

• Family wakfs, also known as wakfs for Alal-Aulad, have a historical basis in ijma(consensus) and were considered valid since the time of the Prophet. However, in 1894, the Privy Council declared them invalid in the Abu Fata case.
• A family wakf is essentially an institution that allows a Muslim to provide for themselves, their family, descendants, children, and kindred for an indefinite period, with no end specified.
• The Privy Council deemed such wakfs invalid because they contradicted public policy by preventing a person from tying up the corpus of the property and reserving the income for their children indefinitely.
• This ruling caused dissatisfaction within the Muslim community, leading to the Mussalman Wakf Validating Act, 1913, which validated family wakfs.
• The Act of 1913 stipulates the following conditions for creating a family wakf:
• It can be created wholly or partially for the family, children, and descendants of the settler.
• The ultimate benefit must expressly or implicitly go to a poor, religious, pious, or charitable purpose.
• The Act does not define the term "family," but it has been interpreted broadly to include relatives such as daughters-in-law, adopted sons, and sons of paternal uncles or consanguine sisters, provided they live under one roof and are raised as a family.
• A wakf to a stranger is considered void.
• A wakf for the wages and provisions of servants and dependents is valid.
• The ultimate benefit of the wakf property must be for charity, either express or implied.

Muslim Religious Institutions for Wakf Creation

1) Mosques:

• A mosque is a place where Muslims offer prayers, either in congregation or individually. To create a valid dedication for a public mosque, the following requirements must be met:
• Declaration of Intent: The founder must declare their intention to dedicate the property for the purpose of a mosque. There is no specific form of declaration required.
• Divestment of Ownership: The founder must completely divest themselves of ownership of the property. This divestment can be inferred from the fact that they have delivered possession to the mutawalli (caretaker) or imam of the mosque. Even if there is no actual delivery, permission to offer prayers within the mosque, such as through the call to prayer (azan), will create an irrevocable wakf.
• Public Entrance: The founder must establish a separate entrance to the mosque that is to be used by the public.

Public and Private Mosques and the Right to Worship:

• There is no distinction between Shia and Sunni mosques; every mosque is dedicated to God and is open to all sects and schools of thought. The right to pray in a mosque is a legal right that can be enforced by a court of law.
• In the case of Md. Wasi Vs. Bachchan Sahib (1955 All 68), certain Muslims belonging to the Hanafi sect attempted to prevent Shia Muslims from offering their prayers according to their rites and ceremonies in a mosque built by Hanafi Muslims, where the services were conducted in accordance with Hanafi practices. The court dismissed the suit, ruling that a public mosque is dedicated to God and is open to all sects.
• Muslim law permits the creation of wakf for a private mosque, which does not have an entrance open to the public.

Is a Mosque a Juristic Person?

• There is differing opinion on whether a mosque is considered a juristic person. In 1926, the Lahore High Court affirmed this view, while in 1940, the Privy Council rejected it, stating that a mosque was not an artificial person in the eyes of the law. Again, in 1976, the Rajasthan High Court also held that a mosque is not a juristic person.

2) Graveyard/Quabristan, Takia, and Dargah:

• Graveyards, takias, and dargahs can be either public or private under Muslim Law. Dedication of property for a graveyard can lead to the establishment of a wakf upon completion of the dedication.
• Private Graveyard: A private graveyard is one where its use is restricted to the burial of the founder, their children, descendants, and relatives. A wakf for a graveyard does not come into existence merely because the owner of the land has granted permission for the burial of the dead, as such permission can be revoked at any time.
• Shifting of Graves: In the case of Abdul Jalil Vs. State of UP (1984 SC 882), the court ruled that shifting graves is not un-Islamic or contrary to the Quran. Examples include the shifting of the grave of Mumtaz Mahal from Burhanpur to Agra and Jahangir from Kashmir to Lahore. Certain graves have been a constant source of riots between Shia and Sunni communities. The court held that Fundamental Rights guaranteed under Articles 25 and 26 are not absolute, and thus the court's direction to shift controversial graves is in the larger interest of society to maintain public order.
• a) Dargah: A dargah is the tomb of a Muslim saint and is used for religious prayers. The officer in charge of the dargah is called the Mujawar.
• b) Takia: A takia is a resting place or burial place/platform in a graveyard where prayers are offered. J. Banapati Iyer observed that the place or abode of a fakir is called a takia before he attains sufficient public importance. Once the fakir gains public importance and attracts a large number of disciples, the place becomes a Khanqah. After the fakir's death and burial therein, it is referred to as a dargah.
• c) Sajjadanashin: The religious head of a Khanqah is called the Sajjadanashin, meaning one who sits at the head of a prayer carpet.
• d) Imambara: An imambara is a Shia religious institution, a private apartment set apart for the performance of certain ceremonies during Muharram and other occasions. It is considered a public wakf.

Capacity to Make a Wakf

• A Muslim who is of legal age and sound mind can create a wakf of their property.
• A wakf created by a guardian on behalf of a minor is not considered valid.

Subject Matter of Wakf

• Previously, only wakfs of immovable property were recognized, but now movable items such as animals, books, swords, etc., can also be the subject matter of a wakf.
• The subject matter must be tangible property capable of being used without being consumed.
• A wakf of Musha, which involves property capable of division, is not valid.

Object of Wakf

• The object of the wakf should be the same for both rich and poor individuals, aiming to acquire merit in the eyes of God.
• The object must be religious, pious, or charitable in nature.

Formalities of a Wakf

• A wakf can be created inter vivos (during the lifetime of the wakif) or by will.
• If the wakf is created by will, it is only valid upon the bequeathal of one-third of the property.
• No specific form of creation is mentioned for wakf.

Wakif Declaration

• The wakif can declare themselves as the first mutawalli (manager) of the wakf.

Registration

• For properties worth more than Rs. 100/-, registration is compulsory under Section 17(1) of the Registration Act.

The Mutawalli

• The mutawalli is the manager of wakf property.
• Appointment of Mutawalli:
  • By the founder (wakif).
  • By the mutawalli's own power.
  • By court's authority.
  • By appointment from congregations.
• Eligibility to be a Mutawalli:
  • A major and sound-minded person can be a mutawalli.
  • A minor can be a mutawalli in case of hereditary mutawalli.
  • A female can also hold part of the mutawalli position.
• Nature of Mutawalli: Mutawalli is a manager, not a trustee, as the property vests in God.
• Remuneration: Mutawalli, officers, and servants of wakf are paid through wakfnama.

Powers of Mutawalli

• Management and Administration: The mutawalli has the authority to manage and administer wakf properties.
• Utilization of Property: They can utilize the property for the purposes of the wakf.
• Suing for Possession: The mutawalli has the right to sue for possession of the property.
• Alienation: Alienation of property requires court permission for sale, mortgage, or exchange. Without permission, the alienation is voidable.
• Leasing: The mutawalli can grant leases, not exceeding three years for agricultural land and one year for non-agricultural land.
• Debt: The mutawalli does not have the power to incur debt.
• Filing Suit: After the Wakf Act of 1945, the power to file a suit is vested in the Wakf Board, under whose supervision the mutawalli operates.

Removal of Mutawalli

The founder cannot remove the mutawalli unless such power is reserved in the wakf deed. The court may remove the mutawalli on grounds of misfeasance, breach of trust, unfitness, or any other reason. A mutawalli, even if protected by wakfnama, can be removed by the court in consideration of the wakf's interest. Thus, a mutawalli who is insolvent, neglects duties, or claims adversely to the wakf property can be removed by the court. The procedure for removing a mutawalli is through a suit in the District Court.

Statutory Control Over Wakf (The Wakf Act, 1955)

Most Wakfs are seen as breeding grounds of fanaticism and backwardness. To improve their administration, Parliament enacted the Wakf Act in 1955, replacing the 1923 Act and amending it in 1964 for better management of Wakfs and related matters.

Survey of Wakfs

• Each State Government is required to appoint a survey commission of Wakf, including Additional and Assistant survey officers.
• The commission reports on:
  • Number of Shia and Sunni Wakfs
  • Nature and object of Wakf
  • Gross income of Wakf
  • Land revenues,taxes, etc., to be paid by Wakf
  • Expenses incurred in realization of income and other particulars
• Cost of the survey is borne by the Mutawallies of those Wakfs whose annual income exceeds Rs. 500.

Central Wakf Council

• Established by the State Government to advise the Central Government on matters concerning the working of Wakf Boards and the administration of Wakf.
• Composition:
  • Union Minister in charge of Wakf -Chairman
  • Members:
    • 3 representatives from Muslim Organizations in India
    • 4 members of national eminence in administration/finance
    • 3 members of parliament(1 from Rajya Sabha and 2 from Lok Sabha)
    • Chairpersons of 3 boards
    • 2 persons from judges of High Court or Supreme Court
    • 1 advocate of national eminence
    • 1 representative from Wakf with gross annual income of Rs. 5 Lakhs and above
    • 3 eminent scholars of Muslim Law
• Finance of Council: Each Wakf board pays 1% of its aggregate income from the Wakf fund.

Board of Wakfs

• Each State has one Wakf Board
• If the income of Shia Wakf property is more than 15% of total Wakf property, a separate Wakf Board for Shias is established.
• Composition:
  • Chairperson
  • One or two members elected from each electoral college:
    • Muslim member of Parliament from State
    • Muslim Member of State Legislature
    • Muslim member of State Bar Council
    • Mutawalli of Wakf with income less than 1 lakh
  • One or two members nominated by State Government representing eminent Muslim organizations
  • One or two members nominated by State Government from recognized scholars in Islamic theology
  • Officer of State Government not below the rank of Deputy Secretary
• Chairman is elected by the members.
• Term: Members serve for 5 years.
• Disqualification: Non-Muslims, individuals below 21 years, unsound mind, insolvent, convicted for moral turpitude.
• Chief Executive Officer: Appointed by State Government with special functions of investigation and inspection.