wa wakf kf Dr. Shahista Inamdar Asst. Prof. Navjeevan Law College, Nashik
Synopsis 1) Introduction. 2) Definition. 3) Origin and Development Of Wakf. 4) Essentials, Kinds, Formalities For creation, the Wakif , Object and Purposes of Wakf. 5) Administration of Wakf Under the Wakf Act, Appointment, Removal, Powers and Duties Of Mutawalli.
1) Introduction : A wakf is a dedication of property for charitable and religious of purposes. A Wakf is a public Trust U. Sec. 2 (19) Of Bombay public. Trust Act 1950 Wakf is the most primitive and internal meaning is Detention
2) Definition i) Abu Hanifa :- " The detention of specific thing in the ownership of property with the appropriator and devoting or appropriating of its profits or usufructs in charity on the poor or other good objects” ii) Abu Yusuf :-" It signifies the extinction of the appropriators ownership in the things dedicated and the detection and the things in the implied ownership of God in such a manner that its profit may revert to or be applied for the benefit of mankind.. iii) Prophet" Tie up the property and leave the usufruct to human beings "
Development of the Law of Wakf in India. The development of the law of Wakf in India are following :- 1913 1923 1984 1995 1954
3) Origin Of the institutions Of Wakf:- The term wakf is not found anywhere in the Quran. Thus the whole law of wakf is built on the basis of few Quranic Verses and also on the practice and percepts of prophet. It has it's origin from prophet. 4) Development of the Law of Wakf in India. The development of the law of Wakf in India are following, i) 1913 :- The First legislation that referred to wakf specially was the 'Musalman wakf validating Act 1913. This Act came into existence as a result of decision of privy Council in Abdul Fata Vs. Russomy ILR (1894) 22 cal 619 [PC] Which was s case where 2 brothers and the poor. The privy council held the wakf to be invalid. This decision caused a lot of hue and cry among Muslims and hence Act of 1913 was passed which made a wakf created by a person professing Islam. Even for his family alone lawful if it was in accordance with the provision of Muslim law.
ii) 1923:- -It was the Musalman wakf Act 1923, that deal with proper control and management of wakf properties. It directed Mutawalli to notify District Judge within 6 months form formation of wakf about all administrate and financial details of the wakf. But the act did not confer power on court to take action against mutawalli in case of default. iii) 1954:- In such diminishing state of affairs of wakf institutions Parliament passed the wakf Act in 1954. This was comprehensive legislation providing for survey, publication, registration of wakfs. iv) 1984:- - Amending Act of 1984 was passed for appointment of wakf commissioners enhancement of powers of state Govt. as regards to control over wakf institutions. V) 1995:- - Finally in the year 1995 Wakf Act was passed by Parliament incorporating amendments to earlier legislation.Thus wakf Act 1995 is present legislation that governs all the matters related to wakf but at the same time, the ground work legislation remains the wakf Act 1913
4)Essentials of Valid Wakf :- • i) Sunni Law :- • 1) Dedication Of property. • 2) competency of the Wakf. • 3) Religious or charitable or pious purpose or object. • 4) Unconditional dedication • 5) Inalienability. • 6) Irrevocability • ii) Shia Law:- • 1) It must be perpetual. • 2) It must be absolute & unconditional. • 3) Possession of the property must be given to beneficiary. • 4) The Wakf should not retain any interest in the property.
i) Sunni law:- 1) Dedication Of property :- -There are actually three aspects in this requirement. There must be a dedication the dedication must be permanent, and dedication can be of the property. There is no prescribed form of dedication It can be written or oral but it must be clear to convey the intention of dedication. 2) Competency of the Wakf:- -The wakif must competency divest himself of the ownership of the appropriated property form the time the dedication takes effect. 3) Religious or Charitable or Pious or Object : The purpose of the wakf must for the benefit of human kind and for objects which are recognized by the mohammedan law as religious, pious, or Charitable. 4) Unconditional Dedication :- -The wakf should not be Contingent or conditional. 5) Inalienable:-Since wakf property belongs to god, no human being can alienate it for himself or any other person. It cannot be sold or given away to any body. 6) Irrevocability :- - In India a wakf once declared and complete, cannot be revoked. The wakif cannot get his property back in his name or in any others name
ii) Shia Law 1) It must be perpetual :- - Perpetuality is an essential element of wakf, once the property is given to wakf, it remains for the wakf for ever. Wakf cannot of a specified time duration. 2) It must be absolute & unconditional:- -The wakf is absolute and should not be Contingent or conditional. 3) The possession of the property must be given to beneficiary. 4) The wakf should not retain any interest in the property. 6) Object Of Wakf:- -Wakf is the detention of a specific thing that is in ownership of the wakif of appropriate and the devotion of its profits or usufructs to charity the poor, or other good objects, to accommodate loan. 7) Valid Objects Of Wakf:- - Objects of wakf may be for the benefit of persons of any object of piety and charity. The term charity includes every purpose which is recognized pious. Every good purpose which God approves or by which approach is attained to him, is a fitting purpose for a valid and lawful wakf. Objects of a Wakf May be religious, Charitable or private.
Following are Valid Objects Of a Wakf :- 1] Mosques and provision for Imams to conduct worship therein. 2] Colleges and provisions for professors to teach in them. 3] Aqueducts and bridges:- i) Distribution of alms to poor and assistance to poor to enable them to perform pilgrimage to mecca. ii) Celebrating the birth of Ali Murtaza. iii) Keeping Tazias in the month of Moharram. The following are not valid objects of a wakf:- 1) object prohibited by Islam. 2) payment to lawyers. 3) providing For the rich exclusively. 4) dedication to object which are not certain. 5) A Direction to spend a certain sum of money for feasting cutchi memos every year on the anniversary of the settlors death.
Who can create a Wakf:- Muslim law does not prescribe any specific way for creating a Wakf. If the Essential elements as described about are fulfilled a Wakf is created. Any Muslim who has attained the age of majority 18 years, and who is of sound mind, may make a wakf, A Wakf cannot be made by a guardian on behalf of the minor, such a wakf is void. Contemplate that a Wakf can be made only by a Muslim. * How is wakf created :- Muslim law does not recognize any form of creating a wakf. A wakf May be made by in writing or maybe oral. There must be appropriate words to show an intention to dedicate the property. The use of the word wakf up its neither necessary not can conclusive. A grant to the Kazi is compulsory for the proposes of his performing religious or pious duties to constitute a wakf.
1)By an act inter vivos :- -It means during the lifetime. Thus a wakf created During the lifetime of the wakif And takes effect from that very time. 2) By Will :- -It stands in contradiction with the wakf. It takes effect after the death of the wakif and also called testamentary wakf. A wakf by will cannot operate upon more than one third of net assets, without the consent of the heirs. 3) During death illness [ Marz-ul- Maut] :- - The Wakf made during the deadly illness will operate only to the extent of one third of the property without the consent of the heirs of the wakif. 4) By immemorial user:- - Wakf may be established by evidence of immemorial use for the purpose of a burial ground, it is a wakf by immemorial user.
Subject :- Matter of wakf:- In the beginning, the subject matter of wakf consisted of properties of a permanent nature, such as land, fields, guardians etc. But gradually all sorts of properties were made the subject matters of the wakif. *Wakf of Musa:- A wakf of Musa for the maintenance of a mosque is valid. Who can be beneficiary :- The beneficiaries of the wakf can be persons and public utilities. The founder can specify which persons are eligible for benefit [ Such the founders family, entire eommunity, only the poor, travlers]. Public utilities such as Mosques, schools, bridges, graveyards and drinking fountains can be the beneficiaries of a wakf.
Valid beneficiaries must satisfy the following conditions :- 1] They must be identifiable. At least some of the beneficiaries must also exist at the time of the founding of the wakf. The malikies, however, hold that a Wakf may exist for some time without beneficiaries, unhance the they come into existence. 2] The beneficiaries must not be at war with the Muslims scholars stress that non- muslim citizens of the Islamic state can definitely be beneficiaries. 3) The beneficiaries may not use the wakf for a purpose in contradiction os Islamic principles. The Hanfis hold that the list of beneficiaries include a perpetual element ; the wakf must specify its beneficiaries in case. II] Administration of wakf:- The administrator like other persons of responsibility under Islamic law, must have capacity to act and contract. In addition trust worthiness and administration skills are required.
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