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Law of Waqf

Islam encourages stress on working hard and investment for earning a livelihood. For extremely poor who have no means to meet basic needs, no sources to invest, and no opportunity to earn, Islam suggested voluntary and compulsory endowments [Zakat, waqf, sadqa] for catering the needs of different degrees of poor from destitute to less poor, and also causing, circulation of wealth leading to it equal distribution, which is also another way to reduce poverty.

Wakf is the most important branch of Muslim law as it is interwoven with the entire religious life and social economy of Muslims. Wakf means detention.The scale of the involvement of the waqf in Muslim societies was enormous. Between one-half and two-thirds of the landed property in the Ottoman Empire was held by awqaf in the early twentieth century. At the same time, one-half of the land in Algeria and one-third in Tunisia was made waqf. A similar percentage of real estate was also vested in awqaf in Egypt.
According to Muslim law, it means
  1. inalienable lands used for charitable purposes and
  2. pious endowments.
Wakf is the tying-up of the substance of the property in the ownership of the founder (Wakif) and the usufruct (use) for a charitable purpose.
The Wakf Act of 1913 defines wakf. According to it, it means the permanent dedication by a Muslim, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable.

Definition
It is not possible to translate the term waqf with a single English word because it conveys a myriad of meanings. Sometimes a waqf is translated as a 'charitable trust', which has a public dimension and at other times it is translated as an endowment, which resembles a will or settlement that has a private dimension.

The word waqf  is literally translated as confinement, prohibition or detention. In fact, the term describes charitable foundations or pious endowments. In a brief introduction to the nature, history, and prospects of waqf in The Encyclopedia of Islam, Monzer Kahif defines waqf as the holding and preservation of a certain property for the confined benefit of certain philanthropy with the intention of prohibiting any use or disposition of the property outside of that specific purpose.

Under Islamic law, it refers to an institutional arrangement whereby the founder endows his property in favor of some particular persons or objects. Such property is perpetually reserved for the stated objectives and cannot be alienated by inheritance, sale, gift, or otherwise.

In the case of Kassimiah charities v. Secy., Madras State Waqf Board:
it has been held that waqf means detention of the corpus in the ownership of God in such a manner that its profits may be applied for the benefit of his servants. The object of dedication must be religious or charitable.

Waqf is described as the most important institution, which provided the foundation for Islamic civilization, as it was interwoven with the entire religious life and the social economy of Muslims. First and foremost the waqf is a religious institution that is established to benefit the poor.

Indeed, elsewhere in an account of Muhammadan law, Asaf A.A. Fyzee says the real purpose of making a waqf is to acquire merit in the eyes of the Lord; all other purposes are subsidiary. Therefore every purpose considered by the Muhammadan law as religious, pious or charitable would be considered valid.

The waqf was not limited to the provision of public services. A large number of waqf properties were reserved in favor of the founders and their family members, generation after generation. However, even in such private awqaf, the ultimate beneficiaries were the poor of society or public services. Therefore, the waqf is an institution encompasses both private and public functions.
The Mussulman Waqf Validating Act 1913,

Defines waqf as:
 Waqf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by Mussulman Law as religious, pious, or charitable.

The physical form of waqfs varies immensely, ranging from buildings (including, and especially mosques), to parks, roads, bridges, dams, school buildings, and books.

Origin and development
The precise origin of the waqf appears to be unclear, with various commentators attributing slightly different motivations for their initial establishment within a broad
range of religiously inspired pious motives.

Fyzee says that the first account noted by the legal authorities pertains to Omar the Second Caliph:

Ibn Omar reported, Omar ibn al-Khattab got land in Khaybar; so he came to the Prophet, peace, and blessings of Allah be on him, to consult him about it. He said, O Messenger of Allah! I have got land in Khaybar that which I have never obtained more valuable property; what dost thou advise about it?

He said: If thou likest, make the property itself to remain inalienable, and give (the profit from) it in charity.

So Omar made it a charity on the condition that it shall not be sold, or given away as a gift, or inherited, and made it a charity among the needy and the relatives and to set free slaves and in the way of Allah and for the travelers and to entertain guests; there being no blame on him who managed it if he ate out of it and made (others) eat, not accumulating wealth thereby.
The waqfs political importance for leaders to secure power and influence among their people. Waqfs were used by rulers as an instrument of public policy, that is, as a means to secure their influence and prestige with the public, promote ties in outlying provinces and strengthen the hold of the state on the beneficiary population. The creation of endowments, particularly for the establishment of madarsas and Sufi lodges, was also an effective instrument for local governors and grandees to spread their influence and gain political legitimization or support among the population.

The waqf provided a mechanism for the preservation of property for family members. By making a waqf of his property in favor of his family or some public cause the founder divested himself of the legal ownership. As the waqf was legally a charitable institution, rulers could not lay their hands on it without invoking public anger. The charitable (sadaqa) element of waqf conferred sanctity upon the waqf property. It was the sanctity attached to the waqf property, which protected it from either outright confiscation or heavy taxation. This understanding is endorsed by the synonymous

expressions of waqf which are found in classical texts such as sadaqa mawqilfa (reserved charity), sadaqa jdriya (unceasing charity) and sadaqa Muharram (sacred charity) and the traditions of the Prophet that sanctify the sadaqa. Moreover, the majority of jurists regard waqf property as the property of God reserved for the benefit of the poor.

The prophet is said to have spoken to Umar ibn al-Khattab and told him to convert the land he received into waqf, transferring the ownership from himself to the
Muslim community: Obeying the enjoinment of the Prophet, Umar turned the land into a sadaqa (charitable or pious act): it shall not be sold, nor given away, nor inherited, and its usufruct should be spent on the poor, the relatives [of the Prophet], and those who fight in God's wars.

Fundamentals of the Islamic Law of Waqf

Indeed, it is interesting to note that Fyzee considers Islam a socialist and democratic worldview. He says it is socialistic because it divides the estate of a person after his death compulsorily and distributes among his nearest relations, male and female;

democratic, because it preaches equality among human beings and the brotherhood of man.All dealings of the waqf must comply with the shariah (Islamic law).
In the organizational structure of a waqf, there are three major parties. The founder is called the waqif, who creates a waqf either by writing or pronouncing his intention to make a waqf of his property in favor of the beneficiary or beneficiaries, called mawquf'alayh, who, according to some jurists must be capable of owning property.

A waqf can also be created for a specific purpose, e.g., promotion of religious education or the welfare of the needy and the poor. The third party is the administrator, called the mutawalli, who administers the waqf according to the conditions laid down by the founder. The qadi performs the duty of supervision over the waqf by keeping a check on the administrator. A specialized government department (diwan) to govern public awqaf.

The institution of waqf is not mentioned in the Quran, which is considered the primary source of Shari'a. However, the general verses that emphasize charity are taken to be the legal authority from the Quran for the validity of the Waqf. There are traditions of the Prophet and his Companions who established the waqf-as sadaqa (charity). Although such traditions provided the basis for waqf law, the detailed law was developed by jurists on the basis of secondary sources of Islamic law such as qiyas (analogy), ijma (consensus), istihsan (juristic preferences), istishab (continuity)and urf (custom) and reflects the socio-political developments of the time. The principle of istislah (public good) was also applied in the later periods in order to legalize new practices such as cash awqaf.

The majority of jurists, which includes Shafi'i, Ahmad ibn Hanbal and two disciples of Abu Hanifa, Abu Yusuf and Muhammad al-Shaybanl, hold that a waqf signifies the extinction of the ownership of the founder in the dedicated assets, which are detained in the implied ownership of God and their profits are applied for the benefit of mankind. The ownership of the founder extinguishes and the waqf property cannot be sold, gifted, or inherited by either him or the beneficiaries. Thus the substance of the waqf property ceases to be a subject of private property. The beneficiaries are ipso facto proprietors of the usufruct of property.

Characteristics for the validity of Waqf

Generally, perpetuity, irrevocability, unconditionally, and inalienability of waqf property are the four fundamental conditions for the validity of a waqf. There are some other conditions specific to the various parties involved in the waqf, its objects, its subject matter, its administration, the deed of Waqf, and the dissolution of waqf.

The majority of jurists regard perpetuity as a mandatory condition for the validity of a waqf and only the Maliki School allows a temporary waqf. Abu Yusuf regards a waqf as irrevocable and perpetual because, according to him, the waqf signifies the termination of ownership as in the case of divorce and manumission, which takes effect by the mere pronunciation of words and there is no requirement for the acceptance of waqf property. Any waqf that does not provide such an object (ghayr munqta') is invalid.

S.2 of The Mussulam waqf Act that a waqf must be religious, pious, or charitable. In the case of Zain Yar Jung v. Director of Endowments it was explained by Gajendragadkar, J.:
 it is clear that the purpose for which waqf can be created must be one which is recognized by Muslim Law as pious, religious or charitable, and the objects of public utility which may constitute benefits under the waqf must be the objects of the benefit of Muslim Community.

The dedication need not specifically be in favor of a place of worship, khankah, dargah, cemetery, etc. It is enough if the dedication is made for the purpose recognized by Muslim Law as pious, charitable, or religious.

A pious dedication that is not permanent may be sadaqa but cannot be termed as waqf. A dedication must not be bound by time in order to be termed as waqf.

It is the special characteristic of a waqf that the ownership is tied up in God and the profits are devoted to the benefit of human beings. The income accruing from the property is the thing that is spent for the realization of the object for which that waqf was created. Thus property remains fixed and the outcome is in the flow. However, the definition of waqf by Shias does not make it clear as to whom the corpus belongs.

The major question also remains:

Who can create waqf?

to answer that, any person who is competent to contract whether Muslim or non- Muslim can create a waqf. A major person of sound mind cam validly create a waqf, provided that there is no fraud, undue influence or coercion, and should not be suffering from death illness, whereas he cannot dedicate more than one-third of his estate unless his heirs give their consent. A wakif must be the owner of the property he is dedicating.

Role of waqf in reducing poverty

Lipton and Ravallion were of the view that poverty exists when people fall short of economic welfare fare, deemed to constitute a reasonable minimum, either by the standards of a specific society or in some absolute sense. Reasonable minimum, is defined by pre-determined basic consumption needs especially nutrition.

The United Nations Development Programme (UNDP) has introduced the concept of human poverty meaning 'deprivation of essential capabilities such as long and healthy life, knowledge, economic resources, and community participation’.community participation'. Adequate levels of health, education, water, sanitation, and social protection are the social progress objectives of human development.

Ali expressed that in Islam the institution of Waqf is augmented by the prevailing spirit of altruism, which forms an integral part of the Islamic way of life. Islam views a charity as a means of transfer of wealth from the rich to the poor as well as a mechanism for self-development and a way for achieving the pleasure of Allah Almighty and also his reward in the hereafter world.
Islamic endowments (Waqf and Zakat) have played a positive supportive and remedial role in the reduction of poverty in history. Zuki quoted from some studies that establishing a waqf is the idea for the cause of humanity and the mosque of Quba was first established waqf in the Muslim world.

Bello suggested that the institution of Waqf according to its past history can be used for poor sections of the society by mobilizing additional resources to address socio-economic issues like:
  1. Education
  2. Health care,
  3. Skills and micro-entrepreneurial development, and
  4. Water and sanitation facilities in rural areas.
A wqaf can also maintain a fund, properly invested, and utilized during the famine and other crises to help extreme poor to survive the crisis.

Administration of Waqf

Non- Statutory

Mutawalli-

he is merely a manager of the waqf property. He neither has any proprietary right nor any beneficial interest of any kind in the property. Anyone of any faith, female or male who is competent to administer property may become mutawalli. However, where the duties of mutawalli include imamat, women are wholly disqualified from holding this office.

A Mutawalli may be appointed by:
  1. wakif himself,
  2. his executor
  3. by mutawalli, or
  4. by the court.
He can be removed by:
  1. the court
  2. the waqf board,
  3. the wakif.

Statutory
Prior to the enactment of Waqf Act, 1995, the following laws dealt with the administration and supervision of waqfs:
  1. Waqf Act 1954
  2. U.P Waqf Act, 1950
  3. Bengal Waqf Act, 1934
  4. Bihar Waqf Act, 1947
  5. Bombay Public Trust Act, 1950
  6. Dargah Khwaja Saheb Act, 1955
The Waqf Act 1995 provides for the establishment of a Board of Waqfs for each state.

Central Waqf Council, India is an Indian statutory body established in 1964 by the Government of India under Waqf Act, 1954 (now a subsection the Waqf Act, 1995) for the purpose of advising it on matters pertaining to working of the State Waqf Boards and proper administration of the Waqfs in the country.

Waqf is a permanent dedication of movable or immovable properties for religious, pious or charitable purposes as recognized by Muslim Law, given by philanthropists. The grant is known as mushrut-ul-khidmat, while a person making such dedication is known as Wakif.

Conclusion:
Wakf is the creation of property for religious or charitable purposes which is established permanently. It also has the backing of law ie.binding in nature and enforceable by law. If any person is of the view that his right has been infringed then he may seek remedy from the Civil Court.

The concept, powers, and duties of mutawalli are of great importance to study under the topic of waqf. Such powers can only be exercised if there exists a clear vacancy for the post of the mutawalli or in case of a dispute as to the competence or eligibility of existing mutawalli.

Wakf is detention which is permanent and binding and enforceable by law also, any person interested may seek a remedy in Civil Court. Office of mutawalli is very important in waqf, power can be exercised when there is a clear vacancy of mutawalliship or there is a dispute as to competence or eligibility of existing mutawalli. A Muslim wakf is distinguished from an English trust or a Hindu endowment of dharma.

There is no direct injunction of the Qur'an regarding Waqf, which is derived from a number of hadiths (traditions of Muhammad). One says, Ibn Umar reported, Umar Ibn Al-Khattab got land in Khaybar, so he came to the prophet Muhammad and asked him to advise him about it.

The Prophet said, If you like, make the property inalienable and give the profit from it to charity.

It goes on to say that Umar gave it away as alms, that the land itself would not be sold, inherited, or donated. He gave it away for the poor, the relatives, the slaves, the jihad, the travelers, and the guests. And it will not be held against him who administers it if he consumes some of its yields in an appropriate manner or feeds a friend who does not enrich himself by means of it.

Presently there are thirty Wakf Boards across the country in twenty-eight states/Union territories. The State like Goa, Arunachal Pradesh, Mizoram, Nagaland and Sikkim, and the UT Daman & Dieu have no wakf Board at present. the Waqf Act 1995 is not applicable to J&K.

Bibliography
Books:
  • MANZAR SAEED, Commentary on Muslim Law in India, (Orient Publishing Company. 2011, New Delhi)
  • I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009, Allahabad)
  • Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency, 2010 Allahabad)
  • Syed Khalid Rashid, Muslim Law,(5th ed, Eastern Book Company, 2009, Lucknow)
  • Asaf. A.A. Fyzee, Outlines of Muhammadan Law (Third Edition), (London: Oxford University Press, 1964)
    Journals:-
  • P.G. Hennigan, The Birth of a Legal Institution: The Formation of the Waqf in Third Century A.H. Hanafi Legal Discourse (Leiden: Brill, 2004) xiii; S.A. Ali, Mahommedan Law (Lahore: Law Publishing Company, 1976 (first published 1892))
  • MiriamHoexter, Waqf Studies in the Twentieth Century: The State of the Art. Journal of Economic and Social History of the Orient (1998)
  • MosheGill, The Earliest Waqf Foundation, Journal of Near East Studies
  • Muhammad Zubair Abbasi, The Classical Islamic Law of Waqf: A Concise Introduction, Arab Law Quarterly, Vol. 26, No. 2 (2012)

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