Concept of Waqf-Its Evolution, Significance, and Essentials Explained

By Vaidehi Sharma, a student of BALLB at Mohanlal Sukhadia University

Introduction

The word ‘Waqf” is derived from the Arabic root "waqafa," meaning "to hold" or "to confine," refers to the endowment or bequest of property or assets for religious or charitable and pious purposes. In Islamic law, once a property is designated as waqf, it is considered inalienable, which means that the holder ceases any right on the said property to sell, hold or transfer such property. The benefits derived from a waqf are intended to serve the community, supporting mosques, schools, orphanages, and other charitable institutions.

A waqf may be testamentary or inter vivos. A testamentary waqf may be created by a verbal pronouncement or in writing which shall come into effect after the death of Waqif. According to Hanifi School, a waqf is a unilateral declaration, and therefore a waqf inter vivos[1] can be created and completed by a mere declaration of endowment by the owner, it need not be followed by the appointment of a mutawalli or a manager of the property.

Historically, waqf has played a significant role in the Muslim community, providing a safe and trusted means for individuals to contribute to the welfare of their community while ensuring the perpetual maintenance of religious and social institutions. The creation of waqf properties has often been seen as a pious act, allowing the donor to gain spiritual rewards while contributing to the public good. It is said that one who endows his property to a Waqf shall attain heaven after his death.

The Waqf Act, enacted in 1995 serves as a significant piece of legislation in India that governs the administration of waqf properties. While the Act plays an important role in the management of waqf assets for religious and charitable purposes, The Act aimed to provide a comprehensive legal framework for the management, supervision, and protection of waqf assets, ensuring that they are used for their intended purposes.

Legislation to Regulate Waqf Property before the enactment of the Waqf Act, 1995

The Mussalman Waqf Validating Act, 1913

The Act validated creation of a wakf in favor of the settlor's family, children, or descendants, with the ultimate benefit reserved for the poor or for a purpose recognized by the Muhammadan law as religious, pious or charitable. Prior to this Act, a wakf for the benefit of the settlor's family was not valid if the ultimate gift to charity was illusory.

The Act removes the doubt, in the case of Hanafi Muslims, as to the validity of a provision in favour of the settlor's own maintenance and support during his lifetime out of the rents and profits of the property dedicated. It also validated, in the case of a Hanafi Muslim, the provision for the payment of the debts of the settlor out of the rents and profits of the property dedicated[2].

The Wakfs Act, 1954

The Wakfs Act, 1954, as amended by the Wakf (Amendment) Act, 1964, provides for control and supervision of wakfs. Its main provisions are the following:

1. It was made applicable to all States, except Bihar, Delhi, Gujarat, Maharashtra, U.P., and West Bengal.
2. It provided for the incorporation of a Board of Wakfs in every State. If there are more than 15 percent of Shia wakfs in number or in proportion to income, a separate Shia Board of Wakfs also can be created.
3. The amendment of 1964 also provides for the establishment of the Central Wakf Council.
4. The Act also provided for investigation, survey, and registration of wakfs, and submission and audit of accounts, etc.

The Wakf (Amendment) Act, 1964 was ultimately replaced by the Waqf Act, 1995.

Essentials of Waqf under the Hanifi School

According to Hanifi School, the following are the five essentials for the constitution of a valid Waqf:

1. Permanent dedication of Property
2. The Wakif must be a competent person
3. The Wakif must be the owner of the property.
4. The Waqf must be religious
5. It must be unconditional

A property for the constitution of a valid Waqf may be movable or immovable. It was held in the case of Habib Ashraff v. Syed[3] that if the waqfnama contains a condition that in case of mismanagement, the property must revert back to the legal heirs was held not to be a valid waqf. Thus, a waqf should be unconditional Regarding the competency of a Waqif, it must be established that he is a person:

1. Professing Islam
2. Must be of sound mind
3. Must not be a minor

Doctrine of Cypress: This doctrine plays a significant role in the endowment of the property of a Muslim man. It secures that in case the wishes of the donor or the testator cannot be carried out literally, they must be carried out as nearly as possible in the way the donor desired. Thus, if a charitable trust is initially impossible or impracticable, or if it subsequently becomes so, the trust will not fail, and the Court will apply the property cy pres i.e. apply it to some other charitable purpose, as nearly as possible resembling the original trust. However, the doctrine is not applicable if the original wakf itself is not valid. Thus, a wakf that is void for uncertainty cannot be validated by applying this doctrine.

Essentials of A Waqf under the Shia Law

There are four conditions for the validity of a wakf, namely,

• it must be perpetual;
• it must be absolute and unconditional
• possession must be given of the thing appropriated, and,
• it must be entirely taken out of the wakif himself (i.e. the wakif must not eat out of the wakf, should not retain any interest, even in the usufruct of the dedicated property. And, if he does so, retains any benefit, the wakf is bad, not merely with respect to the reservation but in its entirety).

The dedication should not be conditional or contingent. And it should be permanent. A dedication limited to time, e.g., five years, is invalid. Above all, the wakif must be the owner of the property.

Distinction Between Shia and Sunni Law of Wakf

Ground of distinction	Sunni Law	Shia Law
As to completion	A wakf inter vivos is completed by a mere (unilateral) declaration of endowment by the owner. There need not be delivery of possession.	, a wakf inter vivos cannot be created by a mere declaration. A wakf is a bilateral contract. There must also be delivery of possession.
As to the reservation of any interest in the property	The settlor (i) may provide for his maintenance out of the income of the wakf property, or (ii) may reserve the whole income for himself for his life, or (iii) may provide for the payment of his own debts out of the income of the wakf property.	The settlor should not eat out of the wakf.

Constitution of a Valid Waqf[4]

Apart from the essentials to constitute a Waqf, the following must be present to make the Waqf a valid waqf.

• Firstly, there must be an intention to create a waqf.
• Secondly, the intention to create a waqf must be unequivocally expressed.
• Thirdly, the waqf must be created for a lawful purpose. When a waqf is created for several and mixed purposes including lawful and unlawful purposes, the waqf will be rendered valid for the lawful purpose and will fail as regards to the unlawful purpose, hence the doctrine of severability shall apply.
• Fourthly, when a waqf of immovable property is created for a value of 100 or upwards it shall be in writing and must be compulsorily registered as per the provisions of Registration Act,1908.

Revocation of a Waqf

A waqf-created inter-vivos once constituted validly is irrevocable. If the Waqfnama contains a condition or is made contingent to a condition reserving the right to revoke to the wakif or any other person, it shall not be a valid waqf and will be rendered void-ab-initio. However, a testamentary waqf can be revoked at any time before the death of the testator. After the death of the testator, the waqf becomes absolute and cannot be revoked.

Conclusion

Thus, waqf is a vital institution in Islamic Law that has evolved over centuries with different schools of Muslim Law playing a crucial role in the social and religious forte of Muslim communities. It serves as a powerful tool for perpetual charity, ensuring that the benefits of endowed properties must reach those in need while the intentions of the donor are in no way hampered. The legal frameworks governing waqf, particularly the distinctions between Sunni and Shia interpretations, highlight the complexity and significance of this institution which are a must to be read in the light of amendments made recently which are under consideration.

---

[1] Meaning between living persons

[2] Muslim Law by Aquil Ahmed

[3] (1933)144 I.C.654

[4]<https://blog.ipleaders.in/concept-waqf-muslim-law/>accessed on August 12, 2024