Define Waqf in Muslim Law ? What are its essentials and characteristic features? What are the legal and illegal objects of Waqf?
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In Muslim law, a waqf is the permanent dedication of movable or immovable property to God for religious, pious, or charitable purposes. Once created, ownership transfers entirely to God, rendering the property inalienable and irrevocable.
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Definition of Waqf
Define Waqf in Muslim Law
1. According to S.2 (1) of the Mussalman Waqf Validating Act, 1913,
“Waqf means the permanent dedication, by a person professing Mussalman faith, of any property, for any purpose recognised by the Mussalman law as religious, pious or charitable.’
Define Waqf in Muslim Law
2 . According to Abu Yusuf and Imam Muhammad ,
One permanently dedicates a specific thing in the implied ownership of God, thereby extinguishing the appropriator’s (Waqif’s) right, and it becomes the property of God for the advantage of His creatures.
Define Waqf in Muslim Law
3 . According to Ameer Ali,
“Waqf is a religious act of the effect of which is to tie up the corpus or substance of a thing, and to leave its usufruct free.”
Here we will learn the topic Define Waqf in Muslim Law ? in detail
Characteristic Features of Waqf
Define Waqf in Muslim Law
(i) Perpetuity
Define Waqf in Muslim Law
In a waqf, the settlor settles the property permanently so that its usufruct remains always available for an indefinite period. There cannot be a waqf for a limited period.
Define Waqf in Muslim Law
(ii) Non-Transferability
Define Waqf in Muslim Law
Creating a waqf vests the property in the implied ownership of God. The result is that its property becomes non-transferable.
Define Waqf in Muslim Law
(iii) Irrevocability
Define Waqf in Muslim Law
Once created, one cannot revoke the waqf.
Define Waqf in Muslim Law
(iv) Absoluteness
Define Waqf in Muslim Law
The settlement of the property in waqf is unconditional and absolute. A conditional or contingent waqf is void.
Define Waqf in Muslim Law
(v) Religious or Charitable Use of Usufruct
Muslim law recognises only religious, pious, or charitable purposes, and the waqf property’s produce and benefits serve only such purposes.
Here we will learn the topic Define Waqf in Muslim Law ? in detail
Define Waqf in Muslim Law
Essentials of a Valid Waqf
Define Waqf in Muslim Law
The essentials of a valid waqf are
There must be a permanent dedication.
The founder of the waqf must be a competent person.
The subject-matter must be a transferable property.
The object of the waqf must be religious, pious or charitable.
One must duly complete the formalities of waqf. Explanation of the above points
Define Waqf in Muslim Law
Permanent Dedication
A person constitutes waqf by transferring ownership of property without any consideration, generally with religious motives. When someone constitutes a waqf, they presume that they have made a gift of some property in favour of God.God holds the ownership of the property, so the corpus remains detained forever and its objects continuously utilize the usufruct. By transferring the ownership to God, the dedication becomes permanent. Under Muslim law, perpetuity is an essential condition for every waqf. This is ensured through a legal fiction that waqf property becomes the property of God. Waqf for limited duration say, for ten years or eight years, is void.
Define Waqf in Muslim Law
(a) Irrevocability
By permanent dedication the Waqf becomes irrevocable.
Once a Waqf in Muslim Law has lawfully been constituted, the founder cannot revoke it.
Define Waqf in Muslim Law
(b) Testamentary Waqf
But a testamentary waqf is revocable. The settlor may revoke it any time before his death. The reason is, however, that a testamentary waqf is like a will and therefore, it comes into existence (i.e. begins to operate) only after the death of the waqf. Before the settlor dies, the waqf continues to hold the property; God receives it only after the waqif’s death.
Define Waqf in Muslim Law
(c) Absolute and Unconditional
It is to be noted that there cannot be any waqf subject to any condition or contingency. A conditional or contingent waqf in Muslim Law is void.
Define Waqf in Muslim Law
Competency of the Waqf
A waqf is competent if he possesses (a)the capacity, as well as the (b) right to constitute the waqf. (a) Capacity to Make Waqf- Regarding the capacity of a Muslim for making a waqf, there are only two requirements- (i) soundness of mind and, (ii) majority. A person of unsound mind has no capacity to create any waqf because he or she is incapable of knowing the legal consequences of the transaction. Waqf constituted by an insane person is void. The waqif must also be an adult. For purposes of making waqfs, the age of majority is eighteen years (or twenty-one years if the minor is under supervision of courts of wards).The guardian of a minor cannot make any waqf on behalf of the minor. Waqf by Non-Muslims – Waqf is an institution of Muslim personal law, therefore, the dedicator is generally a Muslim. But a non-Muslim can also constitute a valid waqf. According to the Waqf Act, 1954, and the Waqf Validating Act, 1913 the waqif must be a person professing Islam. The dedicator must profess Islam i.e., believe in the principles of Islam; he need not be a Muslim by religion.
(b) Right to Make Waqf
The waqif must possess the right to make the waqf. If the settlor does not own the subject-matter of waqf at the time when they make the waqf, they have no right to make waqf. A lessee or a tenant has no right to make any waqf of the property under his possession because, he has no ownership. Similarly, a widow cannot constitute any waqf of the property which she holds in lieu of her unpaid dower because she is not an absolute owner of that property. Some of the other conditions regarding the right to make Waqf are as follows:-
(i) Waqf by Pardanashin Lady- But where the waqif is a pardanashin lady, the beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the waqf and had fully understood the nature of the transaction.
The founder must have created the waqf with his free consent.
If anyone proves that the founder constituted the waqf under compulsion, undue influence, coercion, force, or any other similar circumstance, the law considers the waqf void.
(iii) Amount of Property Dedicated: The dedicator may constitute a waqf of his entire property without leaving any portion of it for his heirs. But, in the case of a testamentary waqf, the founder has no right to constitute a waqf of more than one third of his properties without consent of his legal heirs.
Define Waqf in Muslim Law
Subject-matter of Waqf
Define Waqf in Muslim Law
Any property, whether movable or immovable, tangible or intangible, may be the subject-matter of a waqf. But, the earlier Muslim jurists had given conflicting opinions regarding the nature of the waqf property. But after some time, almost all the Muslim jurists agreed that besides lands, following properties were also the subject of a waqf-(i) cattles, (ii) implements of husbandry, (iii) Quran for public reading in the mosques and, (iv) other movable articles not necessarily consumed in the using. People regarded war-horses, camels, and even swords as subjects of waqf. It should be noted that a person may validly constitute a waqf of the following properties.
Define Waqf in Muslim Law.
(i) Government promissory note.
(ii) Money in cash.
(iii) Offsprings in a sharine or dargah.
(iv) Proprietary rights held as a grove holder.
(v) Shares in a company and Government securities.
Define Waqf in Muslim Law
What Cannot be Subject-matter of Waqf?
It is to be noted that we cannot consider the following kinds of property as subject-matter of a waqf-
(i) A dower-debt
(ii) Right to recover money debt under a simple money decree.
(iii) Rights of a usufructuary mortgage.
The Object of Waqf
Section 2(1) of the Waqf Validating Act, 1913, provides that a person may constitute a waqf “for any purpose that Muslim law recognises as religious, pious, or charitable.”
The Act does not specify which objects Muslim law regards as religious, pious, or charitable. The courts decide this question on the basis of Islamic principles.
Lawful Objects of Waqfs
The authorities have recognised the following objects as lawful for the creation of a valid waqf.
(i) Construction or maintenance of mosque and Imambara and provision for the conduct of worship or religious prayers.
(ii) Keeping Tazias during the month of Muharram and provision for camels and Duldul for religious procession.
(iii) Burning lamps in mosques and maintenance of Khankah .
(iv) Construction of a free boarding-house for pilgrims at Meсса.
A shrine or tomb of any Pir or Fakir or a holy person receives profound respect from the public.
(vi) Reading Quran in public or private places.
(vii) Celebrating the birth of Ali, the fourth caliph and son-in-law of the Prophet.
(viii) Construction and maintenance of schools and colleges and providing for the teachers therein.
(ix) Works of general utility such as bridges, drains, wells, tanks, burying grounds, hospitals etc.
(x) Distribution of money to the poor and help for the poor to enable them to go on a holy pilgrimage.
(xi) A feast for the community or a feast in honour of a saint.
(xii) Provision for the residence of the founder’s brother and his descendants in the waqf property.
(xiii) Provision for the maintenance and support wholly or partially of waqf’s family, children or descendants. Where waqif is Hanafi Muslim, provision for his own maintenance and support during his lifetime or, for the payment of his debts out of the income of the property dedicated.
It may be noted that the provision for celebrating the death-anniversary or performance of annual Fatiha for the welfare of the soul of the deceased Muslim is a valid object provided the ceremony accompanies the distribution of aims to the poor. The various objects of valid waqf, given in the above mentioned list, is not exhaustive. There may be other objects that can constitute a lawful waqf. Any object which is religious, pious or charitable under Muslim law, may be a valid object.
Unlawful Objects of Waqf
(i) Objects which are against the basic principles of Islam/For example, construction or maintenance of a temple or, a church, or, provision for idol-worshipping, are unlawful objects.
(ii) Construction or maintenance of a gambling-den or a wine-shop or a shop for the sale of pork.
(iii) Benefit for the utter strangers.
(iv) Benefit for the lawyers.
(v) Benefit only for the rich people. However, incidental benefits also to the rich people does not render the object unlawful.
(vi) Celebrating death-anniversary of the settlor or his family members without any provision for reading of Quran and distribution of alms to poor.
(vii) Provision for spending income of the property for feasting Cutchi Memons on the death-anniversary of the settlor.
(viii) Provision for the repair of settlor’s secular properties is invalid under the shia law.
Objects Partly Legal and Partly Illegal
Where the objects of a waqf are partly lawful and partly unlawful, the waqf for the legal part of the objects is valid but as regards the illegal part, it is void. For example, if a property is constituted in waqf in such a manner that usufruct of its one-third is to be utilised for construction of a mosque and two-third for construction of a temple then, the waqf of only one-third of that property would be valid and enforceable. The waqf of the remaining two-third is not valid. This two-third of the property would revert back to the dedicator.
Object Must be Certain
The object of a waqf must also be certain. But according to ancient Muslim jurists, a waqf is not void if its objects are uncertain. According to them, once it is established that a valid waqf has been constituted, it should not be allowed to fail only because its objects are not ascertainable. In such a circumstance, the income of waqf property may be used for the benefit of the poor.
Formalities
No special formality is required to create valid waqf. It may be made orally or in writing. It is fully established that if a dedicator has intended to make a waqf its form is immaterial.
Registration
Where a waqf of some immovable property is constituted through writing and the amount of the property is Rs. one hundred or more, the deed must be registered. If such a deed is unregistered it would not be accepted as a deed of waqf by any court of law. 17(1)(b) of the Indian Registration Act 1908, provides that a non- Testamentary document which purports to create any title or interest of an immovable property of the value of Rs. one hundred and upwards, must be registered.
Delivery of Possession
According to Abu Yusuf, a Waqf may be completed without appointment of mutawalli and without any delivery of possession of waqf property to him. However, under Shia Law, a waqf cannot be created by mere declaration. Delivery of possession of the property is necessary for the completion of waqf. Therefore, the mutawalli must also be appointed simultaneously so that he may accept the property.
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