Waqf and its implications

January 6, 2024

SUBMITTED BY: HEMA GARIYA

Introduction

Waqf, an Islamic tradition of endowing property or assets for charitable and communal purposes, carries profound significance within the Muslim community in India. Rooted in religious principles, Waqf has historically served as a cornerstone of philanthropy, facilitating the establishment of mosques, schools, healthcare facilities, and other public amenities aimed at benefiting society at large.

The implications of Waqf on Muslims in India encompass a multifaceted spectrum. Economically, it acts as a vital resource for funding education, healthcare, and social welfare initiatives specifically designed to support the Muslim populace. Culturally, Waqf contributes to the preservation of heritage by maintaining historic mosques, shrines, and educational institutions, reinforcing communal identity.

However, challenges such as mismanagement, encroachment, legal disputes, and administrative inadequacies have hindered the optimal utilization of Waqf assets. The mismanagement of these properties has often resulted in the deprivation of intended beneficiaries from the resources earmarked for their upliftment. Consequently, the failure to effectively administer Waqf assets has impeded the socio-economic progress of the Muslim community in India.

Beyond its economic and cultural significance, Waqf holds political implications, serving as a symbol of communal identity and empowerment. The efficient management and utilization of Waqf properties have the potential to uplift the socio-economic status of the Muslim population, fostering a sense of inclusivity and empowerment within Indian society.

WHAT IS WAQF?

Derived from Islamic law, waqf is a type of property devoted to altruistic and religious activities in God’s name. Waqf, that is defined legally as the permanent donations of any moveable or immovable property by an individual practicing Islam for uses authorised by Islamic law as pious, religious, or benevolent, is an important aspect of charity among the Muslim community.

A waqf can be established through the official execution of a deed or other instrument, but properties may also qualify as waqfs if they have been continuously used for religious or humanitarian reasons for a considerable amount of time. The money that is generated from waqf properties is usually used to fund mosques, schools, funeral homes, and shelters in order to benefit society as entirety.

Waqf is a fundamentally irreversible entity—that is, once it is established, the person who initiated it cannot take back the property that was dedicated. It’s interesting to take into account that a non-Muslim can also establish a waqf, despite it being mainly connected to Islam. But this person needs to embrace Islam and make sure the goals of the waqf are in line with Islamic teachings.

Waqf serves as a key aspect of Islamic generosity, securing the eternal use of property for religious and charitable purposes. It is a singular institution that shapes the socio-religious surroundings and promotes the welfare and sustenance of communities because of its persistent nature and adherence to religious principles.

DEFINITION OF WAQF

The Muslim Waqf Validating Act of 1913, Section 2, establishes waqf as the enduring allocation of property by a practicing Muslim for purposes acknowledged in Muslim Law as religious, virtuous, or benevolent. In alignment with this, the Waqf Act of 1954 further defines waqf as the lasting commitment by an adherent of Islam, encompassing both tangible and intangible assets, for objectives recognized by Islamic Law as religious, virtuous, or philanthropic. These laws uphold the sanctity of waqf, emphasizing the perpetual dedication of resources by individuals of the Muslim faith towards endeavors that serve the greater good following the principles outlined in Islamic jurisprudence.

What are the Essentials of Waqf

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 Muslim faith and of sound mind and not a minor or lunatic.
The dedication should be for a purpose recognized by Muslim law as religious, pious or charitable.

Permanent dedication of property

The most important vital of a valid waqf is that it should be ‘a permanent dedication of property.’ It has the following prerequisites-

There must be a dedication, which should be permanent and should be concerning any property.

The Waqf himself has the right to donate such property and give it for any purpose recognized under the Muslim Law. If the wakf is made for a limited period, it cannot be considered as a valid wakf.

Must be by a person professing Muslim faith

The person shall be an adult Muslim of sound mind.

For any purpose recognized by Muslim Law

The main objective behind creating a waqf is that it should be dedicated for a purpose recognized as religious, pious or charitable under Muslim law.

Waqf under Shia law

The essential conditions for creating a valid Waqf according to Shia Law are:

It must be perpetual, absolute, and unconditional, and possession of the thing appropriated must be given.

The waqf property should be entirely taken out of waqif.

Who Can Create a Waqf?

The individual who creates the waqf from his holdings is referred to as the waqif, or “founder of waqf.” Following the legislation, the individual dedicating the property must be competent enough to do so to become a waqif. The requirements listed below must be met for something to qualify as a waqif and make up a waqf:
A person admits capacity but lacks the right to constitute a waqf. Waqf ownership should be owned by the waqif, and creation depends on the legal right of the dedicator to transfer property ownership.
A person can dedicate his entire property for the creation of waqf but in the case of the testamentary waqf, more than one-third of the property cannot be dedicated.

In the case of Zain Yar Jung v. Director of Endowments It is evident that for a waqf to be established, it must serve a purpose that is acknowledged by Islamic law as pious, religious, or benevolent. Additionally, any public utility benefits that may arise from a waqf must serve the interests of the Muslim community.

It is not required for the dedication to be expressly in support of a cemetery, dargah, khankah, or other site of worship. If the dedication is done for a cause that is deemed pious, charitable, or religious under Islamic law, that suffices.

While not waqf, a temporary, devout devotion can be called sadaqa. A dedication cannot have a temporal limit to qualify as waqf, It is the unique quality of a waqf.

Legal Implications of Waqf

The following are the legal incidents of Waqf-

Dedication to God – Waqf, at its core, involves dedicating assets for the pleasure of the divine. This dedication elevates the sanctity of Waqf, emphasizing its noble, spiritual objectives. By setting aside assets for religious causes, individuals honor their commitment to serving God and fulfilling religious duties. The property vests in God in the sense that nobody can claim ownership of it. In Md. Ismail v. Thakur Sabir Ali AIR 1962 SC 1722, the Supreme Court held that even in waqf alal aulad, the property is dedicated to God and only the usufructs are used by the descendants.

Irrevocability: One of the fundamental legal aspects of Waqf is its irrevocability. Once a Waqf is established, it becomes irrevocable, meaning it cannot be revoked or withdrawn by the Waqif (the person creating the Waqf) or any other party. This permanence ensures the continuity and perpetuity of the Waqf for its intended purpose.

Perpetuity: Waqf is designed to be perpetual, ensuring its continuous existence for the intended beneficiaries or purposes. This perpetuity principle is aimed at safeguarding the assets and resources dedicated to the Waqf, allowing them to serve the community and fulfill charitable or religious objectives indefinitely.

Inalienability: Assets or properties dedicated to a Waqf become inalienable. This means they cannot be sold, transferred, or otherwise disposed of by the Waqif or any subsequent authority. The purpose is to safeguard the integrity of the Waqf assets and prevent any misuse or diversion from the intended charitable or religious purposes. In the case of Bibi Saddiqa Fatima v. Saiyed Mohd. Mahmood Hasan, (1978) 3 SCC 299 para 15 the court said that “Tyabje Muslim Law, Fourth Edn., Chapter X, deals with waqf. According to Shia law the waqf is irrevocable after possession is given to the beneficiaries or the Mutawalli. The settlor divests himself of the ownership of the property and of everything in the nature of usufruct from the moment the waqf is created…..The Shia authorities considered the property as transferred to the beneficiaries or to the object of the waqf. Strictly speaking, the ownership of the waqf property has no jural conception with any exactitude. The corpus is tied down and is made inalienable.”

Pious or charitable use of usufruct: The benefits, income, or proceeds generated from Waqf property are dedicated to pious, religious, virtuous, or charitable causes. While the property itself remains intact and inalienable, its yield or usufruct is utilized to support educational institutions, hospitals, mosques, shelters, or other philanthropic endeavors. In the case of Mian Sahataz Pir v. Sk. Ahmed, (2013) 1 OLR 898 at p. 904 (Orissa) “It is a settled position of law with regard to the Waqfs that the Waqfs may be divided into two classes, i.e. (1) public and (2) private. A public Waqf is one for a public, religious or charitable object. A private Waqf is one for the benefit of the settlor’s family and his descendants, and is called Waqf-alal-aulad.”

Absoluteness: The dedication of Waqf is absolute and unconditional. Once the Waqf is created and its conditions are specified, it becomes binding and immutable. This absolute nature ensures the sanctity and continuity of the Waqf as per the wishes and intentions of the Waqif.

Modes of Creation of Waqf:

Waqf can be established through various means, offering flexibility in its creation:

Declaration: This involves a clear and explicit declaration by the Waqif expressing their intention to dedicate certain assets for Waqf purposes. The declaration outlines the conditions, beneficiaries, and the nature of the Waqf.
Dedication: Waqf can also be created through dedication, wherein assets are set aside or earmarked for religious or charitable purposes without the need for a formal declaration. This dedication can be implied or inferred from the actions or intentions of the Waqif.
Operation of Law: In certain cases, Waqf can be created by operation of law, such as when a religious endowment is established by a government entity or through legal provisions that automatically dedicate certain properties for charitable or religious purposes.

Conclusion:

The legal implications of Waqf are heavily, dependent on its fundamental principles and the intricacies of Islamic law. Central to Waqf is the concept of Dedication to God, highlighting its spiritual foundation. By dedicating assets for divine pleasure, individuals honor their commitment to religious duties, elevating the sanctity of Waqf and emphasizing its noble, spiritual objectives. This dedication reflects in cases like Md. Ismail v. Thakur Sabir Ali (AIR 1962 SC 1722), where the Supreme Court affirmed the property’s dedication to God, even in waqf alal aulad, signifying that the property vests in God, not individuals.

The legal incidents further outline the essence of Waqf. Irrevocability ensures permanence, once established, preventing withdrawal or revocation, ensuring continuity for its intended purpose. Perpetuity safeguards assets for beneficiaries indefinitely, while inalienability protects properties from sale or transfer, maintaining their integrity. The use of usufruct for pious or charitable causes ensures benefits are directed towards religious, virtuous, or philanthropic objectives, contributing to societal welfare.

Absolute dedication guarantees binding and immutable Waqf conditions, ensuring continuity aligned with the Waqif’s intentions. Waqf’s creation modes—declaration, dedication, or operation of law—provide flexibility for the establishment, accommodating various circumstances.

Understanding these legal implications is crucial, anchoring Waqf’s enduring role in religious, charitable, and societal domains. The dedication to God forms the spiritual cornerstone, infusing Waqf with reverence and guiding its perpetuity, benefiting communities in alignment with Islamic principles and legal frameworks.

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