The word waqf means ‘detention’. In the legal context, it means permanent dedication of some property for a religious or charitable purpose. The property so alienated is tied up forever and it becomes non-transferable. A waqf can be made either in writing or orally.
Section 2 of Mussalman Waqf validating Act, 1913 defines waqf as, “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.”
Essentials of Waqf
The following are the essential conditions of a valid waqf:
1. Permanent Dedication of Property
There must be a permanent dedication of property and the creator of waqf must devote the property for any purpose recognized under Muslim Law. If the waqf is made for a limited time period, then it is not considered as a valid waqf. There should be no condition attached to it, otherwise it becomes invalid.
In the case of, Karnataka Board of Waqfs vs Mohd. Nazeer Ahmad[1], it was held that if a Muslim person provides his house to outside travellers irrespective of their religion for stay, this will not be considered as a valid waqf because according to Muslim law waqf should be created for a religious purpose and for the benefit of the Muslim community.
2. Competency of Waqif
The person who makes waqf is known as ‘Waqif’. The waqif should be created by a person who is Muslim and is major and of sound mind.
A person of unsound mind cannot make waqf because he/she is not able to understand the legal consequences of the transaction.
The Nagpur and Madras High Courts have held that a non-muslim also can create a waqf as long as the object of the waqf isn’t against the principles of Islam. Patna High Court has also held that a non-muslim can create a waqf but he/she can make only make a public waqf; a non-muslim cannot make private waqf.
3. Purpose recognized under Muslim Law
The main reason behind creation of waqf is that the property should be dedicated for a religious, pious, or charitable purpose recognized under Muslim Law.
Kinds of Waqf
There are mainly 2 types of waqf:
(i) Public Waqf
This type of waqf is usually created for public, religious or charitable purposes.
(ii) Private Waqf
It is also known as ‘Waqf-ulal-Aulad’. This kind of waqf is created for the founder’s own family and his/her descendants.
Modes of Creation of Waqf
The following are the ways in which waqf can be created:
(i) By an act inter vivos
When a person declares that his/her property should be used for religious, charitable purposes. Then it can be said that waqf is created.
(ii) During Death or illness
When a person is on the death bed then he can only give one third of his/her property. It is known as marj-ul-maut.
(iii) By will
When a person dedicates his/her property to an individual by way of will after death, then it leads to creation of waqf. But such a person cannot give more than one third of his/her property through will.
(iv) By usage
When a property is already being used for some charitable purpose then such property belongs to waqf. In such cases no declaration is required.
Mutawalli
The manager of the waqf property is known as Mutawalli. Such a person does not have any power to sell, exchange the waqf property, without the permission of the court. He/she can sell or mortgage or exchange the waqf property only when they are empowered by the waqf deed.
Appointment of Mutawalli
Any person can be appointed as a mutawalli provided he has attained the age of majority, is of sound mind and is capable to perform the functions.
Generally, waqif (founder of waqf) appoints the mutawalli at the time of creation of waqf. But if waqif does not appoint anyone as mutawalli then the following people can appoint mutawalli:
- Executor of the founder
- Mutawalli on his deathbed.
- The Court
Removal of Mutawalli
(i) By the Court:
Once the mutawalli is appointed, then he/she cannot be removed by the waqif. But the Courts have the power to remove the mutawalli on the following grounds:
- If there is any mismanagement of the property.
- If the waqf property is not maintained properly, despite having sufficient funds.
- If he/she is intentionally causing loss to the waqf property.
- If mutawalli is declared insolvent.
(ii) By waqf board
Section 64 of the Wafk Act, 1995[2] gives the power to the waqf board to remove the mutawalli.
[1] AIR 1982 Kant 309
[2] https://indiankanoon.org/doc/426233/ (Last visited on 27th August, 2021 at 3:30 PM)
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