waqf in muslim law

8/6/2019 Waqf in Muslim Law

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Submitted to-Mrs. Abhilasha Kataria,

Submitted by- Ajit Singh Parihar, Roll no-565, B.Sc. LL.B(Hons.)

Family Law Assignment

Waqf in Muslim Law

Meaning of Waqf:

The literal meaning of Wakf is detention. According to Abu Hanifa, the

ownership in the Wakf property continued to be vester in the owner. As per

section 2 (e) of the The Mussalman Wakf Act, 1923, "Wakf" means the

permanent dedication by a person professing the Mussalman faith of any

property for any purpose recognised by the Mussalman law as religious,

pious or charitable, but does not include any wakf, such as is described in

section 3 of the Mussalman Wakf Validating Act, 1913, under which any

benefit is for the time being claimable for himself by the person by whom

the wakf was created or by any of his family or descendants.1

Also as per

the definition of mutawalli given under the Mahomedan law, the moment a

waqf is created, all rights of property pass out of the waqif and vest in the

almighty. According to the two disciples, Abu Yusuf and Muhammad, waqf

signifies the extinction of the appropriator's ownership in the thing

dedicated and the detention of thing in the implied ownership of God, in

such a manner that its profits may revert to or be "for the benefit of

mankind." A wakf, however, is a trust for the purposes of s. 92 of the Code

of Civil Procedure.

Wakf may be made in writing or the dedication may be oral. There must,

however, be appropriate words to show an intention to dedicate the

property. The use of the word 'wakf is neither necessary nor conclusive. The

word wakf means detention or stoppage. There is extinction of the

proprietor's ownership and detention in the implied ownership of God.2

1sec t ion 2 (e) of the The Mussalman Wakf Act , 19232Mariam Bai v. Jaffar Abdul Rahman Sai t( '73) A. Mad. 191.


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Objects of Waqf:

As per section 178 3, the purpose for which waqf may be created must be

one recognised by the Mahomedan Law as religious, pious or charitable.

A Waqf may also be created in favour of the settlors family, children and

descendants.

In case where a Waqf is created, for the mixed purposes, some of which are

lawful and some are not, section 180 of the same act says t hat it is valid as

to the lawful purposes, but invalid as to the rest, and so much of the

property as is dedicated for invalid purposes will revert to the waqif. Where

the property is not specifically dedicated to an object which fails, the wholeamount will be devoted to the valid object of charity.

As per Doctrine of cy-pres, where a clear charitable intention is expressed

in the instrument of waqf, it will not be failed because the objects, if

specified, happen to fail, but the income will be applied for the benefit of

the poor or to objects as near as possible to the objects which failed.

Though a wakf may be created orally, yet when the terms of a

dedication have been reduced to writing no evidence can be given to prove

the terms except the document itself or secondary evidence of its

contents .4

It is not absolutely necessary that the writing by which a Wakf is

created should exist or there should be direct evidence about the creation

of a wakf and its terms. A wakf can be proved by showing immemorial

user of the property as wakf.5

As per section 184 of the said act, A wakf may be created by act inter

vivos or by will.

3 Sec 178 , Mullas Principles of Mahomedan Law4

Shaikh Muhammad v. Bibi Mariam (1929) 8 Pat. 4845 Chief Administrator of Auqaf v. Rashid-ud-daula 1961 (W.P.) Lah. 993


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A wakf created by will is not invalid because it contains a clause that

the wakf shall not operate if a child is born to the testator. The reason is

that a testator has power in law to revoke or modify his will at any time he

likes, and he may therefore revoke a wakf created by will even without

reserving any express power in that behalf. 6

Shia law It was held at one time that a Shia cannot create a wakf by

will. But this viev erroneous, and it has been held by the Privy Council

that a Shia may create a wakf by will.7

There is a distinction between a wakf-bil-wasiyat, i .e. , a will which

conveys the property o death of the testator to the mutawalli as wakf and a

wasiyat-bil-wakf, i.e., a will which makes of the property with a direction

to the donee to create the wakf desired. The distinction is of not of

substance. In the later case the property is not impressed with the

character of immediately. 8

Requirement:

According to Muhammad, the wakf is not complete unless, besides a

declaration rakf, a mutawalli (superintendent) is appointed by the owner

and possession tie endowed property is delivered to him. The founder of a

wakf may constitute himself the first mutawalli (superintendent). The

founder and the mutawalli being the same person, no transfer of physical

possession is necessary, whichever of the two views is upheld. Nor is it

necessary that the property should be transferred from his name as owner

to his name as mutawalli.9

Intention. Where there is neither a declarat ion of wakf nor deli very

of possession, a mere intention to set apart property for charitable

purposes is not sufficient, to creat e a wakf, even if the income of the

property is applied to the intended purpos e.If the document purporting

6Muhammad Ahsan v. Umardaraz (1906) 28 All. 663

7 Baqar Ali Khan v. Anjuman Ara Begum (1902) 25 All. 2368

Mahabir Prasad v. Mustafa (1937) 41 Cal. W.N. 9339 Beliram V. Muhammad Afzal 50 Bom. L.R. 846


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to create wakf is invalid, subsequent conduct proving the intention to

treat the property as wakf cannot render the endowment valid.10

Rights of waqif:

According to section 190 11 of Principles of Mahomedan Law, the waqif, may

reserve to himself the power to alt er the b eneficiaries either by aiding to

their number or excluding some, and to increase or reduce their shares. Also

as per section 1712

of the Indian Trusts Act, 1882, the trustee of the trust has

a discretionary power and the court is not authorized to control the exercise

reasonably and in good faith of such discretion. Section 36 13 of the same act

gives the power to the trustee that a trustee may do all acts which are

reasonable and proper for the realization, protection or benefit of the trust-

property, and for the protection or support of a beneficiary who is not

competent to contract.

A trustee, as per section 3714

of the act is even empowered to sell any trust-

property, he may sell the same subject to prior charges or not, and either

together or, in lots, by public auction or private contract, and either at one

time or at several times, unless the instrument of trust otherwise directs.

10 Mahomad Safi v. Khadim Ali (1944) A.O. 29111

Sec 190, Mulla on Principles of Mahomedan Law12 Where there are more beneficiaries than one, the trustee is bound to be impartial, and must not execute the

trust for the advantage of one at the expense of another.

Where the trustee has a discretionary power, nothing in this section shall be deemed to authorize the Court to

control the exercise reasonably and in good faith of such discretion.

Illustration

A, a trustee for B, C and D, is empowered to choose between several specified modes of investing the trust-

property. A in good faith chooses one of these modes. The Court will not interfere, although the result of the

choice may be to vary the relative rights of B, C and D.

13General authority of trustee.

Sec 36. In addition to the powers expressly conferred by this Act and by the instrument of trust, and subject tothe restriction, if any, contained in such instrument, and to the provisions of section 17, a trustee may do all acts

which are reasonable and proper for the realization, protection or benefit of the trust -property, and for the

protection or support of a beneficiary who is not competent to contract.

14Power to sell in lots and either by public auction or private contract.

Sec 37. Where the trustee is empowered to sell any trust-property, he may sell the same subject to prior charges

or not, and either together or ,in lots, by public auction or private contract, and either at one time or at several

times, unless the instrument of trust otherwise directs.


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As per section 11815

of Principles of Mahomedan Law, a Mahomedan cannot

dispose of more than a thir d of the surplus of his estat e after payment of

funeral expenses and debts. Under Mahomedan law, he property bequeathed

must be capable of being transferred and the testator should be the owner of

the said property. The property bequeathed should be in existence at the time

of death of the testator, even if it was not in existence at the time of

execution of the will or trust deed. Under Shia Law, the consent by the heirs

should be free and a consent given under undue influence fraud, coercion or

misrepresentation is no consent and the person who has given such consent is

not bound by such consent. The consent by the heirs can be given either

expressly or impliedly. If the heirs attest the will and acquiesce in the legatee

taking possession of the property bequeathed, this is considered as sufficient

consent. If the heirs do not question the will for a very long time and the

legatees take and enjoy the property, the conduct of heirs will amount to

consent. When the heir gives his consent to the bequest, he cannot rescind it

later on.

In a case of Daulatram v. Abdul Kayum16, the court said that the consent need

not be expressed; it may be signified by conduct showing a fixed and

unequivocal intention. It was held that where the property was disposed of by

the father and no objection was made by his heirs during the time of

formation of such a deed, it is assumed that there was an implied consent

from them. Lat er on after the death of the father, the sons cannot contend that

their consent at the formation of deed was not taken.

15Sec 118, Mulla on Principles of Mahomedan Law

16 (1902) 26 Bom. 497

waqf in muslim law

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