This article has emphasized the concept of Waqf under Muslim Law. The article focuses on the creation of Waqf’s, its types, and its management. The article would be sustained with suitable case laws and legal aspects of it.
Introduction
Waqf according to the Webster dictionary means an Islamic endowment of property to be held in trust and used for a charitable or religious purpose. In legal terms, it means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by Muslim Law as pious, religious, and charitable.
A waqf can be formed through a deed or instrument, or a property can be deemed waqf if it has been used for religious or charitable purposes for a long period of time. The proceeds are typically used to finance educational institutions, graveyards, mosques, and shelter homes.
A person creating the waqf cannot take back the property and the waqf would be a continuing entity. A non-Muslim can also create a waqf but the individual must profess Islam and the objective of creating the waqf has to be Islamic.
A Waqf Board is a juristic person with the power to acquire and hold property and to transfer any such property. The board can sue and be sued in court as it is recognized as a legal entity or juristic person.
Each state has a Waqf Board headed by a chairperson, one or two nominees from the state government, Muslim legislators and parliamentarians, Muslim members of the State Bar Council, recognized scholars of Islamic theology, and mutawalis of the waqfs with an annual income of Rs 1 lakh and above.
History/Origin
Since the beginnings of Islam, waqf or religious endowments have been the medium through which various public services (i.e. schools, hospitals, and mosques) have been provided to communities. Historically, endowments were both insulated from state authority and emanation of imperial and/or state power.
Waqf Under Sunni Law
The essential conditions of a valid waqf, according to the Hanafi Law (Sunni Law) are:
- A permanent dedication to any property.
- The dedicator (waqif) should be a person professing the Mussalman faith and of sound mind and not a minor or lunatic.
- The dedication should be for a purpose recognized by the Mussalman law as religious, pious, or charitable.
Waqf Under Shia law
The essential conditions for creating a valid Waqf according to Shia Law are:
- It must be perpetual.
- It must be absolute and unconditional.
- Possession of the thing appropriated must be given.
- The waqf property should be entirely taken out of waqif.
Kinds Of Waqf
- Public Waqf– It is created for the public, religious or charitable purposes.
- Private Waqf- This type of Waqf is created for the settlor’s own family and his descendants and is also known as ‘Waqf-ulal-Aulad’. It is a kind of family settlement in the form of waqf.
Explanation With Statues
The Mussalman Waqf Validating Act of 1930
The Mussalman Waqf Validating Act of 1930 came into effect on July 25, 1930, which was applied retrospectively on the waqfs created before March 7, 1913. The Mussalman Wakf Validating Act, 1913 says that “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.[1]
Then came the Waqf Act, 1995. Waqf Act 1995 defines waqf as the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious, or charitable and includes—
(i) a wakf by the user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) “grants”, including mashrut-ul-khidmat for any purpose recognized by the Muslim law as pious, religious, or charitable; and
(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious, or charitable, and “wakif” means any person making such dedication.[2]
The objective of the Act
According to Section 3 of this Act, it is lawful for a Muslim person to create a waqf which in all other aspects in accordance with the provisions of Muslim Law, for the following purposes
- For the maintenance and support wholly or partially of his family, children, or descendants.
- Where the person creating a waqf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated.
Section 9 of The Waqf Act, 1995 authorizes the Central Government to establish a Central Waqf Council.[3]
Functions of Central Waqf Council
The functions of the Central Waqf Council in relation to The Waqf Act, 1995 are listed as follows:
- The Central Waqf Council is empowered to issue directives to The State Waqf Boards on the matter of their financial performance, maintenance of waqf deeds, revenue records, surveys, etc.
- It is authorized to advise the Central Government and the State Waqf Boards.
- To render legal advice in matters of protection and retrieval of waqf properties.
- To maintain and regulate the Central Waqf Fund as the Council may deem fit.
- The Council is required to maintain all the books of accounts in the manner prescribed by the Central Government.
Composition of Central Waqf Council
The Union Minister in charge of waqf shall be the ex-officio chairperson of the Council, and The Central Government will appoint the following members; three-person of national importance representing Muslim organization, four individuals each from the field of administration or management, financial management, engineering, or architecture and medicine, three Members of Parliament, Chairpersons of three Boards by rotation, two individuals who are or have been judges of Supreme Court or High Court, one advocate of national importance, one person to represent the mutawallis and three eminent scholars of Muslim Law.
Financing of the Central Waqf Council
The provisions for the financing of the Central Waqf Council are laid down in The Waqf Act, 1995. Section 10 of the act states that every state waqf board should pay from its waqf fund annually to the council that is equivalent to one percent of the aggregate of the net annual income of the waqf. All the funds received by the council by the state waqf boards and all the funds received as donations, benefactions and grants will be deposited in the Central Waqf Fund. The Central Waqf Council will be directly controlling the Central Waqf Fund and it is also authorized to make rules pertaining to the Central Waqf Fund.
Provisions for Accounts and Audit
According to Section 11of the Waqf Act, 1995 the Central Waqf Council is liable to maintain such books of account in the form and manner which is prescribed by the Central Government. These books are to be audited and examined annually by the auditor appointed by the Central Government. The costs of the audit shall be paid from the Central Waqf Fund.
The act empowers every State government to establish a State Waqf Board each for Shia and Sunni schools of Muslim Law under Section 13 of the Waqf Act, 1995.
Section 32 of the act, guides the power and functions of the board. General superintendence of all waqf in a State shall vest in the Board established by the concerned State and it is the duty of the board:
- To ensure proper administration, maintenance, and control of the waqf.
- To ensure income and income of other properties of waqf are applied to the objects for the key purpose, the waqf was created.
- To give directions in the administration of waqf and to settle schemes for management of waqf.
- To appoint and remove mutawallis and also to scrutinize and approve the budget submitted by mutawallis.
- To take necessary measures for recovery of waqf property.
- Authorized to institute and defend suits in relation to waqf property.
- To administer the waqf fund.
- Power to inspect and investigate waqf properties, accounts, records, and documents.
- And to carry out all the necessary activities in relation to maintenance, administration, and control of waqf properties.
Under Section 72, the mutawallis are liable to pay 7% of the net annual income derived from waqf properties of which the net annual income is not less than 5000 rupees. Chapter VII, Section 73 of the act authorizes the Chief Executive Officer to direct banks or any other person, with whom any money belonging to a waqf is deposited. The board with the previous sanction of the State Government can borrow money for giving effect to any provisions of the act.
Section 77 states that all the money, benefaction, grants, and donations received by the board shall be deposited in the Waqf Fund which is to be controlled by the board. The fund shall be used under the following circumstances:
- Repayment of loan,
- Payment of the cost of the audit,
- Payment of the salary and allowances to the officers and staffs of the board,
- Payment of traveling allowances of Chairperson, members,
- Payment of expenses incurred by the board while performing the duties,
- Payment of maintenance to Muslim Women as directed by a court of competent jurisdiction under The Muslim (Protection of Rights on Divorce) Act, 1986.
Every year the board shall prepare the budget of the next financial year and forward a copy of it to the State Government under Section 78. The State Government shall examine the receipt of the budget and recommend altercations, corrections, a modification that is to be considered by the board. Furthermore, the board shall be responsible to maintain all the books of account in the manner as provided by regulations.
According to Section 36, it is mandatory to register all waqf at the office of the board. The application of registration shall be made by the mutawalli and the form and manner of registration shall be prescribed by the board keeping in mind some pertinent factors such as; description of the waqf property, the gross annual income of such properties, the amount of land revenue, the estimate of expenses, etc.
Section 83of the Waqf Act, 1995 authorizes the State Government by notification to the Official Gazette to constitute as many tribunals as they deem fit for the administration of waqf and waqf property. The Tribunals are deemed to be a civil court and required to exercise all the powers and functions exercised by a civil court under the Code of Civil Procedure, 1908. The decision of a Tribunal shall be final and binding on the parties. No suit or legal proceedings shall lie under any civil court which this act requires to be determined by a Tribunal.
According to Section 3(i)mutawalli, is defined as the person appointed by a competent authority for managing and administering waqf. Duties of mutawalli
Section 50states the required duty of a mutawalli:
- To carry out the directions of the board in accordance with the said act.
- To furnish such returns and supply such information which is needed by the board.
- To allow inspection of waqf properties, accounts, documents, and records.
- To discharge all the public dues, and to carry out all the necessary activities which are lawfully required under this act.
Landmark Cases
Radha Kanta Deb v. Commissioner
In the case of Radha Kanta Deb v. Commissioner[4], Hindu Religious Endowments, Orissa, the Hon’ble Supreme Court observed that the Muslim Law recognizes the existence and creation of a private trust as a charitable trust. It is also known as ‘waqf-allal-aulad’. In this type of Waqf, the ultimate benefit is reserved for God but the property vests in the beneficiaries and the income from the property are used for the maintenance and support of the family of the founder and his descendants.
Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad
The dedication of house by a Muslim for use of all travelers irrespective of religion and status was held not to be a Wakf on the ground that under Muslim law a Wakf should have a religious motive and it should be only for benefit of the Muslim community, and if it is secular in character, the charity should be to the poor alone.
M Kazim vs A Asghar Ali
It is observed in M Kazim vs A Asghar Ali 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.
Current Scenario
The subject waqf is relative to Entry Number 10, “Trust and Trustees” in Concurrent List attached to the 7th Schedule of Indian Constitution hereby declaring that it is a matter of both Central and State Governments. Prime Minister’s High-Level Committee affirmed, there are more than 4.9 registered waqfs spread over the country, and of which the estimate of the current value of waqf property in Delhi exceeded Rupees 6,000 crores. Therefore, the large number of waqf in India demands the need for strict administration and management of waqf pertaining to The Waqf Act, 1995.
Waqf contributed to the well-being of the people in various areas of development; such as education, health, and other services. Nonetheless, in modern times, the Waqf role has declined significantly. Currently, there is a need to reform it. European colonization significantly influenced the structure of Waqf in Muslim majority countries, Muslim government or/and leaders who misused the Waqf properties, and the poor management of Waqf led to the decline of Waqf itself.
Thus, Waqf revival requires governments who can manage the funds, funds transparency, reformulation of the laws governing Waqf, and an integrated network of sciences that monitoring issues and problems. The theoretical implication of this study is to understand Waqf. This study also provides practical contributions to Waqf research by identifying factors contributing to the decline of Waqf and ways to revive it.
Relevant Links
https://www.igi-global.com/chapter/the-potential-development-of-waqf-in-india-post-covid-19/274460
Conclusion
Waqf is a unique act introduced by Islam; it has played significant socioeconomic, cultural, and religious development roles throughout the history of Islamic civilization. In the past, the collection of a large number of Awqaf created great wealth for the Muslim community; however, due to different historical reasons, the role of Waqf as a useful tool for socioeconomic development has generally been neglected or/and often been forgotten.
Wakf is detention which is permanent and binding and enforceable by law also, any person interested may seek 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.
FAQs
What is Waqf?
In Islamic jurisprudence, a waqf is the dedication of a specified asset by a settlor (waqif) into the administration of a custodian (mutawalli) through a legal instrument (waqfiyyah) such that the income or usufruct of that asset benefits a stated beneficiary (mawquf alaih) or is used for a stated purpose.
A waqf is comparable to an endowment, trust, or foundation except that it must comply with the Shariah rules and principles.
Can non-Muslims contribute to Waqf as well?
Yes. There is no restriction for non-Muslims to contribute to Wakaf. The donor will be able to be part of the effort to assist society apart from getting material benefits such as tax exemption.
What is the limitation to the power of mutawalli?
A mutawalli has no power incurring debt. A person who advances a loan to a mutawalli for carrying out the purpose of Waqf has no remedy against waqf property. Also, mutawalli has no power to file a suit.
Can someone sell waqf property?
Waqf property cannot be sold. If a mutawalli wants to sell, mortgage, or exchange the waqf property, he must obtain prior permission from the court. A waqf alal aulad is for the children of the people who form waqf and it cannot be sold.
Can a waqf be revoked?
Once a waqf has been lawfully constituted, it cannot be revoked. In the creation of Waqf it is implied that since the ownership of the property is presumed to vest immediately in god, the settlement is irrevocable.
How is waqf created?
When a person declares a dedication of his property for waqf the waqf is created. This can also be done when the person is on his death bed, in that case, he cannot dedicate more than one-third of his property for waqf.
[1] Section 2 (1) of The Mussalman Wakf Validating Act, 1913.
[2] Section 3 (r) of Waqf Act,1995.
[3] Section 9 of The Waqf Act, 1995.
[4] AIR 1981 SC 798.