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Definition of Wakf :- Wakf means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by Muslim Law as pious, religious, or charitable, and includes any other endowment or grant for the aforesaid purposes, a Wakf by user, and a Wakf created by a non-Muslim. Warjf, in Arabic language, means hold, confinement or prohibition. The word Wakf is used in Islam in the meaning of holding certain property and preserving it for the confined benefit of certain philanthropy and prohibiting any use or disposition of it outside that specific objective. This definition accords perpetuity to Waqf, i.e., it applies to non-perishable property whose benefit can be extracted without consuming the property itself. Therefore, Wakf widely relates to land and buildings. However, there are Wakf of books, agricultural machinery, cattle, shares and stocks and cash money. Section 2(1) of the Mussalman Wakf Validating Act, 1913, defines a Wakf:- Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by Mussalman law as religious, pious or charitable. Section 3(r) of the Wakfs Act, 1995 defines it as follow: Wakf means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes: (i) A Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) Grant, for any purpose recognised by the Muslim law as pious, religious or charitable; and (iii) A Wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable.

Essentials of Wakf :- Followings are the essentials of wakf ; 1. Permanent dedication of any property.The first essential of a valid waqf is, that it should be a permanent dedication of property. This phrase implies three thing: (i) there must be a dedication, (ii) the dedication must be permanent, and (iii) the dedication must be of any property. (i) There must be a dedication..It means that there must be a substantial dedication of the usufruct of the property to religious, pious or charitable purposes as understood by Muslim Law. The dedication implies a declaration of the dedication. No particular form of words is necessary for making a declaration of dedication. It may be either oral or in writing. Neither delivery of possession nor appointment of mutawalli is necessary. Under Shia Law, no doubt, delivery of

2 possession to the first person in whose favour the waqf has been created is essential. Long User.Where land has for long been used as a wakf, proof of express dedication is not necessary, and the legal dedication will be inferred. The waqfs to mosques and graveyards have been upheld on this ground. Land used from time immemorial for the purpose of a masjid and for its courtyard which formed part and parcel of the masjid and for celebration of Moharram festival has been held to constitute a waqf by user. Where a mosque was used as a place of worship for a long time and the worship was also performed, it will be presumed that the property was dedicated as waqf property. Where to the original mosque, which is proved to be a waqf property, an area is added by the mutawalli by way of construction of rooms and this area is used by the public for religious purposes alongwith the old mosque, then it must be regarded as one unit and treated as such. The whole property will be treated as waqf property user. Mohd. ismail Faruqui v. Union of india (Ayodhya Case),AIR 1994 SC 605 the Supreme Court has observed that where a mosque has been adversely possessed by non-Muslims, it lost its sacred character as mosque. Hence the view that once a consecrated mosque, it remains always a place of worship as a mosque was not the Mohamedan Law of India as approved by the Indian courts. It was further held that a mosque in India was an immovable property and the right of worship at a particular place is lost when the right to property on which it stands is lost by adverse possession. In Chhedi Lal Misra v. Civil Judge, the Supreme Court observed that it is a well established principle that once a wakf AIR 2007 SCC 632 is created, the wakif stands divested of his title to the properties which after the creation of the wakf vests in the Almighty. It is, no doubt, true that in a given case the creation of a wakf may be questioned if it is shown that the wakif had no intention to create a wakf but had done so to avoid a liability. But in the instant case, such a stand is not available to the wakif or the Mutawalli since the wakf was created in 1926 and was registered under Section 38 of the Act, 1936 and was also notified in the Official Gazette in Jan. 1954. It was only thereafter in 1958, that is, after 32 years that the wakif filed a collusive suit which was decreed on compromise. The wakif did not, however, question the registration of the wakf under the provision of the 1936 Act, nor did he challenge the gazette notification published in January 1954. The Court also did not find any force in the submission that since the revenue records were altered to show the properties to be the secular properties of the appellant, the wakf character of the properties had been obliterated. The law is well settled that once a wakf is created it continues to retain such character which cannot be extinguished by an act of the Mutawalli or anyone claiming through him.

3 (ii) The dedication must be permanent.Perpetuity is a necessary condition for the validity of Waqf.4 If it is for a limited period, or for a temporary purpose, it is void. A dedication, say for ten or twenty years, being limited in point of times, is not valid. Similarly, a contingent or conditional waqf is not valid. According to Fatawa-iAlamgiri, perpetutiy is also among the conditions of waqf according to all opinions, though according to Abu Yusuf the mention of it is not a condition., and this is correct. Wherever the term waqf is used permanence will be presumed as a matter of law. In Mohd. Khasim v. Mohd. Dastagir AIR (2006) 13 SCC 497 the Supreme Court in unequivocal terms held that according to Mohammedan Jurists, the term wakf literally means dedication by a person professing the Mussalman faith of any property for any purpose recognised by Mussalman law as religious, pious or charitable. The Court further observed that in order to constitute a wakf, there must be a permanent dedication of the properties in question of favour of God Almighty and while the objects of the wakf may initially be for the benefit of the wakifs family and other descendants, the ultimate beneficiary has to be God... The other important lays test in the nature of inalienability of the properties forming the nucleus of the wakf. Once a wakf is created the title of the wakif in the dedicated property is extinguished and vests in God. The wakif is entitled to reserve power to alienate any portion of the properties, but for the benefit of the wakf. In the instant case, the executant had reserved to himself the power to alienate the trust properties, but one of the conditions stipulated in the dead was that his two minor daughters were to be given immovable properties worth Rs. 8000. A further direction was given by the executant that after his death, the daughters were to be given the properties only when they had made issues. In the absence of any male issue the properties would return to the trust. The court held that the said directions run contrary to the concept of wakf and indicate that the executant intended to create a simple English trust. Although, in order to create a valid wakf it is not to use the term wakf in the document in question, except for providing for the performance of certain religious ceremonies, pious and charitable duties, there was no mention that the dedicator had ever intended that the properties forming the subject-matter of the trust should constitute a wakf. The executant appears to have deliberately used the expression trustee and not Mutawalli. Moreover, there is no bar to a Mohammedan creating a simple English trust. It is not always necessary that in order to make a settlement of his properties, a Mohammedan has always to create a wakf. (iii) The dedication must be of any property. (Subject of waqf). The subject of waqf may be any tangible property (mal) capable of being, used without being consumed. Abdur Rahim lays down that the property dedicated must be (i) (ma!) tangible property, and (ii) it must be capable of being used without being consumed. there are no further restrictions. This means that a valid waqf can be created not only of

4 immovable property but also of movables, such as, shares in joint stock companies, promissory notes and even money., Hanafi Law recognises the following as valid subjects of waqf: (a) immovable property. (b) accessories to inimovable property. (c) Quran or other books. (d) such other things as it is customary to make the subject of waqf: Provided always that things that are consumed by use cannot validly be the subject to waqf, i.e., the thing must be of reasonable permanent character. Subject of waqf must belong to waqif. The property to be dedicated must be in the ownership of the dedicator (waqif). One cannot dedicate anothers property of waqf. In other words, waqif must be the owner of the property dedicated. A person who is in fact the owner of the property but is under the belief that he is only a mutawalli thereof is competent to make a valid waqf of the property. What is to be seen in such cases is whether or not that person had a power of disposition over the property. A valid waqf may be made of the property though it is subject to a mortgage, or a lease. A usufructuary mortgagee cannot make a valid waqf as he is not the owner of the mortgaged property and such a mortgage is an evasion of the Muslim Law against usury. A widow cannot dedicate her dower debt. Registration.A waqf-nama, by which immovable property of the value of Rs. 100 or more is dedicated by the way of waqf requires to be registered under the Indian Registration Act, 1908. This provision will be applicable even if the dedicator has himself appointed as the first mutawalli of the said waqf. 2. Wakf must be irrevocable: Once a valid Wakf is constituted, it cannot be revoked. When the Wakf reserves to himself, the right of revoking the Wakf, such a Wakf would be void. The Wakif as a human being cannot subsequently revoke it because this would amount to taking back from God whatever is given to him. Any provision in the Wakf that founder may revoke it whenever he likes, would be un-Islamic and also inconsistent with the very concept of Wakf Therefore, it is presumed that once a Wakf always a Wakf A testamentary Wakf is revocable. It may be revoked by the settler any time before his death. This is because a testamentary Wakf is like a Will and, therefore, it comes into existence only after the death of the Waktf4 Before the death of the settler, the property continues to remain with the Wakif it is transferred to God only after Wakf death. 3. Wakf must be absolute and unconditional: it is impossible to contemplate property transferred to Almighty God subject to a condition enforceable in the temporal courts for recovering that property for the benefit

5 of the settlor. Dedication to God cannot be permanent if its existence depends on some condition. Thus, the constitution of a Wakf must absolute, not depending on any condition or contingency. Where the creation of Wakf itself is dependent on some condition or contingency, the Wakf is void. 4. Wakf must be immediate and not contingent: A Wakf must take immediate effect absolutely and for ever, except where the Wakf is created by Will. Law requires immediate transfer of property and any effort to postpone the transfer of Wakf property would be void. A Wakf cannot be deferred to a future date. It must not be contingent to some future date. Therefore, if a person says that this property is a Wakf after my death, the Wakf would not be valid on the ground that it would not cover the period from the declaration and his death. But a testamentary Wakf comes into existence only after the death of the Wakif. If a Wakf is made on the contingency of happening of an event, it would be valid. A Wakf would be invalid, if made on the contingency that the property would be dedicated, if no children are born to the Wakf till his death or he leaves children. 5. Wakf not to be conditional: The important rule is that the dedication must not be suspended on any conditional thing, or if the Wakf reserves a right to resume the possession the Wakf would be invalid. But Wakif may reserve some rights of benefit to himself or to some other person. In such a situation Wakf would be valid. Where some rights for Wakf are reserved on part of dedicated property, which are not allowed by the law and considered as a condition, the Wakf in ,respect of rest part of the property would be valid and for that particular part would be invalid. According to Abu Yusuf, if a Wakf reserves the right of revocation of Wakf to himself it is considered a condition and as such invalid. 6. The Wakif must extinguish his ownership of the property: Another salient features of Wa/cf is that the Wakif must divest himself of the ownership of the property. Once, the dedication of property is made to the Wa/cf. the ownership of the Wakif is extinguished. Object must be Religious or charitable: The produce and benefits of the Wakf property are utilised only for such purposes which are recognosed as religious, pious or charitable under Muslim Law.


Persons entitled to make a Wakf :- The person who creates a Wakf is called, Wakf A Wakif must have the following qualifications: 1. The Wakif must profess Islam: According to section 2(1) of the Mussalman Wakf Validating Act, 1913, Wakf means the permanent dedication by a person professing the Mussalman faith..... Under section 3(L) of the Wakf Act, 1954, Wakf means the permanent dedication by a person professing Islam.....

6 Both these two Acts contemplate that a Wakf can be created by a Muslim only. But either of these Acts, professing of Islam was not a condition precedent for creating a Wakf. Wakf by non-Muslim: Wakf is an institution of Muslim personal law therefore, t the dedicator is generally a Muslim. But a non-Muslim can also constitute a valid Wakf. In Moti Shah v. Abdul Gafar Khan, it has been held that the object for which dedication is made must be lawful according to the religion of the dedicator as well as the Islamic doctrine. Whether a non-Muslim really believes in the Islamic doctrines, may be evidenced from the object for which he constitutes the Wakf. If a non-Muslim constituted any Wakf for a temple it is clear that he has no faith in Islam. It, therefore, says that a non-Muslim is also competent to make a Wakf provided its object is not un-Islamic. 2. The Wakif may be a male or female: A pardanashin lady may be a competent Wakf Such a lady has right to make a Wa/cf of her properties provided she possesses the required capacity and right. But where the Wakf is pardanashin lady, the beneficiaries and the Mutawalli have to prove that she had exercised her independent mind in constituting the Wakf and had fully understood the nature of the transaction. 3. The Wakif must be a major: The Wakf should be a major under section 3 the Indian Majority Act, 1875. The age of majority under this Act is 18 years. Wakf cannot be created by a guardian on behalf of the minor, such a Wakf is valid. So Wakf constituted by guardians on behalf of minors are void ab initio. 4. The Wakif must be sound mind and free consent: The Wakf should have sound mind. Similarly, a Wakf created under coercion or undue influence is not valid. The Wakf must apply his independent mind in dedicating the property. It means that the Wakf must have been made with free consent of its founder. 5. The Wakif must be of the owner of the property: It is necessary that the property being given in Wakf should belong to Wakif at the time of declaration or deed as the case may be, and if it is not so then the Wakf would be invalid. So, Wakif should be the owner of the property in respect of which the Wakf is created, A Wakf of property which is in possession of the Wakif as a usufructuary mortgagee is invalid. It is, therefore, the important thing is that the Wakf must be a permanent dominion over the subject-matter of the Wakf. 6. Good Manners: The Mutawalli should be pious who is honest, avoids major sins and has good manners.

7 7. Efficiency: The Mutawalli should be able to handle the properties he looks after. He must be observe that efficiency in managing the Wakf property is the important element to ensure the Wakf property is not wasted. This is especially important under todays dynamic financial system which requires lot of expertise ii managing funds. Mutawalli should be able to handle the properties he looks after.

Subject-matter of Wakf or what can be dedicated as wakf (Mauquf) Originally the idea of property which could be the subject of Wakf was extremely restricted. When the institution of Wakf came into being, the oldest known Wakf was of a reasonably permanent character and consisted of land, fields and gardens. But very soon thereafter the jurists came to the conclusion that in addition to immovable properties, some sort of movable properties could also be made Wakf For instance, working cattle and instruments of husbandry, Qurans for reading in mosques other movables not necessarily consumed in their use, i.e., war horses, camels and swords and a chest of money for loans to the poor. followed and Wakfs of movables were held to be valid. From the above, the following property may be a subject-matter of a Wakf 1. Immovable Property: Immovable property may be the subject-matter of a Wakf. It includes land, fields, garden and also the buildings and trees standing on the land. All, all accretions and appurtenances become a part of the Wakf property. 2. Movable Property: Originally, only immovable properties were the subjectmatter of the Wakf but gradually the movables such as camel, workmg cattles, warhorses, swords, copies of Holy Quran for reading in mosques were made the subject-matter of Wakfs. After coming into force of the Wakf Act, 1913 movable property such as share in Joint Stock companies, Government Promissory Notes and even money, a grove and offering made in a Shrine has been the subject-matter of Wakf. But the following movables are not the subject of Wakfs. These are money decree, dower: debt, and rights of usufructuary mortgagee and Wakf profits apart from the land. 3. Divisible or indivisible property: The subject-matter of a Wakf may include a divisible or indivisible property. Indivisible property includes well, canal or stream, small houses and private road, etc.It is submitted that in view of the wide meaning given to expression any property in section 2(1) of the Wakf Validating Act, 1913, anything transferable may be dedicated in Wakf provided it is owned by the Wakf The subject-matter of a Wakf may be a tangible or intangible or movable or immovable property provided it is owned by the Wakif 4. Wakf of Musha: A Musha, an undivided share in property, may be a subject of Wakf There is divergence of opinion among Muslim authorities on this point. Abu Yusuf is of the opinion that the Wakf of Musha, divisible or indivisible is valid but according to Imam Muhammad a Wakf of property capable of division is invalid.

8 Thus, a Muslim may : constitute a Wakf of his undivided share in the property without separating it from the rest. The Wakf of Musha is valid even if the property is divisible. Thus, when a co-owner constitute any Wakf of undivided part of his share in a joint property, he need not separate it from the rest of the property even though its separation is possible. However, this general rule is subject to following exception: (i) Wakf for construction of Mosque: Where an undivided share is dedicated in Wa/cf for the construction of a mosque, the Wakf is not valid if the undivided share had not been separated from the rest of the joint property. (ii) Wakf for Graveyard: Where the Wakf is constituted for a grave yard for the general public, the Wakf is not valid unless the undivided share has been partitioned. (iii) Wakf of leasehold property: Where the Musha is a share in any leasehold property the Wakf is not valid without partition. Doctrine of Cypress :- Cypress literally means as nearly as possible. It is an English doctrine which applies to Mohammedan Wakfs also. The doctrine is based on the reason that rights and benefits of poor and needy should not be hampered only on technicalities of law through which an object may fail. The only condition required is that the Wakf is valid otherwise. The doctrine of Cypress lays down that if the wishes of the Wakf cannot be carried out literally, they will be carried out as nearly as possible in the way desired. In other words this doctrine lays down that if a charitable intention has been expressed by the dedicator (Wakif) the Wakf will not be void because the object specified by the founder has already been completed or failed and in such cases the income will be applied for the benefit of the poor or to objects as near as possible to the object that has failed. The doctrine is applicable only if the Wakf is originally valid but if the Wakf itself is invalid, the doctrine of Cypress will not apply. Once it is clear that there is a bonafide intention on the part of the Wakf to create a Wakf, and divest himself completely of the property, there is good Wakf which will not be allowed to fail. A valid Wakf thus may be constituted: (i) Where the objects are not specified at all, or (ii) Where the objects meets its goal, or (iii) Where the object fails as being impracticable, or (iv) Where the objects are partly valid and partly not valid. In Salebhai Abdul Kader v. Bai Safiabu, the court held that where the particular object laid down in a Wakf fails because of some reason, the Wakf would not come to an end. It would continue and income of the property may be utilised for such other objects which are very similar to the object laid down in the Wakf. Therefore, where it is not possible to use the property exactly in the manner directed by the

9 founder, the court may apply this doctrine and direct a Cypress application of the income of Wakf property. For example, if a Wakf is created for removing illiteracy among the adults of a locality but after some time it is found that all the adults of that locality have become literate then the income of that property may be utilised for giving them further education or for educating children of that locality. In such cases, every effort must be made that the income is applied for those purposes only which are as nearly as possible similar to the purpose intended in the Wakf. Even if the object is not specified but a clear charitable intention is expressed in a Wakf, the doctrine of Cypress may be applied and the income of property may be used for any purpose recognised under Muslim law as beneficial to mankind.

OBJECT OF WAKF :- Section 3(r) of the Wakf Act, 1995 provides that the purpose or object of Wakf must be pious, religious or charitable and also included by user, Mashrut-ul-. Khidmat, for any purpose recognised by Muslim law, and Wakf-AlalAulad (family Wakf). Wakf is a permanent dedication of any property in the ownership of the Wakif. Under Muslim law, such dedication is lawful if it is in consonance with the provisions of the Muslim law. Generally, Wakfs are created for religious, pious or charitable purposes but family Wakfs may also be created. Under the Muslim law, Wakfs in respect of object may be classified into three cotegories: 1. Family Wakfs (Wakfs-Alal-Aulad) 2. Public Wakfs (Wakfs-Sabi-Lil-Lah) 3. Wakfs under statutes 1. Family Wakfs (Wakfs-Alal-Aulad) :- Right from the Mussalman Wakf Validating Act, 1913 to the Wakf Act, 1995 all legislative enactments have recognised WakfAlal-Aulad. Family Wakfs were recognised by the Muslim law. The Prophet is reported to have said, when a Muslim bestows on his family and kindred, hoping for reward in the next world, it becomes alms, although he has not given to the poor, but to his family and children. So the philosophy of Islam is the support of ones family and children was the first duty and necessity of every Muslim so that they may not be burden on the society. If the children would get into want and have nothing for themselves, they would beg for their livelihood and would become a liabffity for the society. In order to avoid such unpleasant situation, a Muslim is allowed to make adequate arrangement for the maintenance of his children and descendants through the medium of a Wakf. Under Muslim law, making provisions for the maintenance, comfort and dignity of ones own children is also regarded as an act equal to that of charity. As against the common notion that charity means doing something for others, the Islamic philosophy sets an example of the English proverb charity begins at home. Right from the start the object of

10 created Wakf has to be for objects limited within parameters of pious, religious or charitable. A Wakf may either be public or private. A public Wakf is that in which the beneficiaries are public generally. Where the beneficiaries are only the members of the founders family or his descendants, the Wakf is private. A private Wakf is also called as a family Wakf or a Wakf-Alal-Aulad. The family Wakf is an institution which a Muslim can provide for himself, his children, his descendants and other relations for an indefinite period. There arose a great dissatisfaction in the Muslim community which led the Legislature to pass an Act for validating the family Wakf and consequently, the Mussalman Wakf Validating Act, 1913 has been passed. Later on the Family Wakfs were validating retrospectively by an amendment to this Act in 1930. After the coming into force of the Mussalman Wakf Validating Act, 1913, the Wakfs falling under category (i) are not valid, though earlier also it was void, but the Wakfs falling under categories (ii) and (iii) continued to be valid. (i) Wakfs exclusively for the Family: Such type of Wakf is perfectly valid under pure Muslim law. So making provisions for oneself and his family is a pious act and amounts to charity under Islamic law. According to Baillie,3 also the family Wakf exclusively for the benefit of the settlor, his children, descendants and other relations were recognised by Imam Muhammad. Ameer Ali also holds such Wakf to be valid. A Wakf-Alal-Aulad is a contract and the property vests in the beneficiaries. Muslim law recognizes WakfAlal-Aulad where ultimate benefit is reserved to God but the property vests in beneficiaries and the income from the property is used for the maintenance and support of family and descendants. In case the family becomes extinct then Wakf becomes public property vesting in God. But the Privy Council disapproved these Wakf. In such Wakfs the benefit of Wakf goes to only his wife, sons and daughters and grand-daughter etc., but no benefit is given to charity, so these were void. In Abdul Fata Mohammad v. Rasamaya, such Wakfs were held invalid by the Privy Council. So, after coming into force of the Mussalamari Wakf Validating Act, 1913, Wakfs exclusively for the family are not recognised and have been invalid and continue to be so even now-a-days. (ii) Wakfs substantially for the family as well as for charity: Before coming into force of the Mussalaman Wakf Validating Act, 1913, the Privy Council in Abdul Fata Mohammad v. Rasamaya, held that if the primary object of the Wakf was the aggrandizement of the family then the Wakf object be invalid even if there was some gift of an illusory kind for charity. A Wakf both for the benefit of the family and for charity was valid only if there was a substantial dedication of the property to

11 charitable uses but not otherwise. So those Wakf having illusory provisions for charity but otherwise mainly for the benefits of family were held invalid. For example, in a leading case, where the Wakf directed that the income of the Wakf property was to be applied at the first instance for the benefit of the Wakifs descendants from generation to generation and the Wakf in favour of the charity was not to come into existence until after the extinction of the whole line of the Wakif s descendants, the Wakf was held invalid. (iii) Wakfs substantially for charity as well as for the family: Though Wakfs for family exclusively have not been recognized by courts in India as they do not recognize pure Muslim law in this regard, according to which dedication for children, kiths and kins is a pious act, a Wakf deed may be constructed where ample provisions may be made for the benefit of poor Muslims for charity. Prophet himself and Quran give much importance to Wakf-Alal-Aulad and the very few first Wakfs created during life time of Prophet of Islam and just after him, recorded in Islamic history, are of this kind. So, before coming into force of the Mussalaman Wakf Validating Act, 1913, where Wakfs were created providing substantial dedication of property for charitable purposes at some period of time or other, howsoever, remote it may be, such Wakfs were held valid and continued to be so even after passing of the Act. In Sheikh Mohd. Ahsanullah v. Amar Chand, the Privy Council held that WakfAlalAulad was valid if there was substantial dedication of the property to charitable uses at some period of time or other. Explaining the nature of a family-Wakf, the Supreme Court has observed that in a Wakf-Alal-Aulad, the ultimate benefit is reserved to God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the founder and his descendants. In case the family becomes extinct, the Wakf becomes a public Wakf and property is vested in God. The ultimate test being that Wakf-Alal-Aulad must reserve the ultimate benefit for the poor or any other purpose which is pious, religious or charitable of a permanent nature. It is not necessary that such benefit should be substantial. The deed would not be void, simply because the immediate beneficiary is outside the class for whom provisions are made. In such a case the benefit may be cut out and rest of the provisions may be given effect. So that charitable disposition is accelerated, provided there is a provision for it beforehand. Shia Law: If the condition of ultimate disposition in favour of charity is not satisfied the Wakf would be invalid and the effect would be to give the property back to Waktfs descendants. In Smt. Faiqa Khatoon v. Riyazur Rahman Khan Sherwani, where the issue was who is beneficiary under section 3A of the Wakf Act. The court held that intention of Wakif creating Wakf-Alal-Aulad was for benefit of his family and all his heirs by implication daughter or sons or sons of sons were not excluded. So

12 consequently daughter of son of Wakf being of heir would fall within ambit of beneficiary as defined section 3A of the Wakf Act.

Mosques :- A mosque is a place where the Mu offer prayers in congregation or individually. To consecrate a mosque. dedication is essential; mere construction of its building Is not enough. In M S. Labha v. Md. Harufa, 1976 SC 1569. Fazl All J, after a review of authoritf on Muslim law, views of textbook writers and judicial decisions, said that for a valid dedication for a public mosque (or of any other institution of a public nature) the following conditions must be satisfied : (a) the founder must declare his intention to dedicate property for the purpose of a mosque, though no specific form of declaration Is necessary, not any is laid down. The declaration may be inferred from the conduct of the founder. (b) The founder must divest himself completely of the ownership of the property. The divestment may be inferred from the fact that he had delivered possession to the mutawalli or the irnam of the mosque. Even if no actual delivery of possession takes place, the mere fact that members of public permitted to offer prayers with azart and ikmat will be enough, and a complete and irrevocable wakf for mosque will come Into existence. (c) The founder must make a separate entrance (of any sort) to the mosque which is to be used by the public to enter It. Under the Ithana Asharl law, dedication is complete by a formal declaration coupled with the fact that the members of public are permitted to offer prayers. Any adjuncts to a mosque also belongs to the mosque. Thus, properties attached to. a mosque or any additions or alteration (either structural or otherwise) made to it which are incidental to the offering of prayer, or for other religious purpose are part of the mosque and constitute one single unit so as to be the part of mosque. Any money given for the repair of the mosque, or for its maintenance, or for its benefit, operates as a gift to the mosque and becomes part of the wakf of the mosque, but no separate wakf comes to offer existence. Where a mosque has been in existence for a long time and the prayers have been offered therein, it will be Inferred that dedication for mosque is complete and the property no longer belongs to the owner. Graveyard (qabristan, takia and dargah) . Public and private graveyards.Under Muslim law, dedication of property may be made for a qabristci.n or graveyard. If dedication is complete, a wakf will come into existence. Like Mosque, a graveyard may be: (I) a public graveyard, or (II) private graveyard. A graveyard is private when Its use is confined

13 to burial of corpses of the founder, his children, descendants and relatives. In such a qabristart, no person who does not belong to the family of the founder is permitted to bury his dead. A public graveyard is one open for the burial of any Muslim. It can happen that by long usage a private burial place may become a public burial place. Thus, where members of public are permitted to be buried and the practice grows so that by Instances adequate in character, number and extent, the presumption will be that the dedication is complete and the graveyard has been in existence for a long time, and it is admittedly a fact that it has been used by the public as qabristan, this by itself will be sufficient presumptive evidence to show that the land has been set apart for use as a burial ground, and by user, if not by dedication, the land Is wakf, In Md. S. Labhia v. Md. Hart fa, the Supreme Court observed: Once a qabristan has been held to be a public graveyard then It vests In the public and constitutes a wakf, and it cannot be divested by non-user but will always continue to be so. Similarly, If a burial ground Is mentioned either in the revenue records or historical papers as a public graveyard, then it will be a conclusive proof of that fact. A graveyard once created continues to be so even when there remains no trace of dead, not even the bones. Dargah.In India dargah means a shrine, i.e., a tomb of a Muslim saitit. It is mostly used as a place of religious prayer. It appears that an endowment to a dargah is not mentioned among the religious and charitable objects, nor is it mentioned in connection with wakfs. In Persian, the term Dargah means the way out, a court before a place or great houses a large bench or a place for reclining upon, a mosque. According to Yules Dictionary, dargah means the shrine of a saint, a place of religious resort and prayers. In India, it is an established meaning of dargah that it is a shrine or tomb of a saint; such a tomb is respectively referred to as the portal to the spiritual place of the saint. It generally includes a group of buildings of which the tomb is the nucleus. The Prophet was against the erectiOn of an elaborate mausoleum, or excessive outlay for a tomb. This is the reason why Mughal Emperor Aurangazeb chose a simple grave of earth even without bricks and mortar. However, in India, a belief has grown that great religious reverence may be shown to the burial place of a saint, and, so much so that it has come to be established that dedication of property can be made to a dargah and a wakf can be constituted. The term dargah is used in two senses : (i) it may refer to the tomb itself (this is the strict view), or (ii) it may include the whole group of buildings of which the tomb is the nucleus.

A dargah in the former sense is an institution in a very different sense from a

14 mosque or khanqo.h as an institution. Sometimes, Institutions like a khanqah or a mosque spring up in the vicinity of a ciargah and dedication of property is made for their maintenance and upkeep. In such a case question of administration arises. Sometimes a mutawalli may be appointed. But in a dargah there is usually a mujawar, Le., a servant of the shrine, who also looks after its administration and management. According to Wilsons Glossary : mujawar is a servant or sweeper of a Muslim shrine. Richardsons Persian and Arabic Dictionary defines him as a person fixed to the shrine. His duties are to sit by the tomb, to read Fatawa to devotees, to invoke blessings for the pir for the devotees, to keep lights burning at the shrine, to put up incense, to place flowers on the tomb, to weigh children, to put ghflaf (covering) on the tomb and to act generally as Intermediary between the devotees and the pir (which is opposed to basic tenets of Islam, but nonetheless has become a well established practice). Fyzee rightly says that the office of rnujawar as an integral part of a dargah is not known to Muslim law. But it has come into existence by usage, and sometimes even a hereditary office of mujawar exists by custom. Takia:- The word takia literally means a resting place. Among [ the Muslims a burial ground is sometimes called a takia. Sometimes a takia is only a place of assembly in a village and is devoid of all religious connotation. Sometimes It is a platform in a Muslim graveyard where prayers are offered. Sometimes a fakir builds his hut near a takia in a graveyard and takes up his residence there. In course of time he starts imparting religious instructions there, and starts calling it a khanqah. May be, in course of time, the fakir is able to collect disciples at his residence and ultimately it develops into a public institution of sine importance, and thus may become a real khanqah. Khanqah.A Khanqah is a religious institution analogous to Hindu math. Just as religious Instructions are imparted in a math, so are In a khanqah. is a Muslim monastery where dervishes and other seekers after tnith congregate for religious instructions and devotional exercises. A khannqah Is founded by a holyman In a place where esoetric teaching acquires a certain fame and sanctity. A khanqah may come into existence by long usage or by dedication. Then It becomes a wakf. A typical case of wakf by long usage is the Multan shrine of Mat Pak Daman. SaJJadanashin.The religious head of a khanqah Is called sqjjadanashin. Literally the word means the one who sits at the head of a prayer-carpet. In the words ofAnieerAli, The sajjadanashin is not only a mutawalil but also a spiritual preceptor. He Is the curatQr of the durgah where his ancestors he buried, and In him Is supposed to continue the spiritual line. The dargahs are the tombs of celebrated dervishes, who, In their life time, were regarded as saints. Some of these men have established khanqahs where they lived, and their disciples congregated. Many of

15 them never rose to the Importance of khanqah, and when they died and were burled, their mausoleums in course of time became shrines or dargahs. These dervishes professed esoteric doctrines and distinct system of initiation. The founder of a khanqah Is usually its first sajjadanashin and after his death the spiritual line Is continued by a succession of scdJadanashjns. In the absence of a scheme of succession in the wakf-nama, the succession to the office of sajjadanashin is regulated by custom. One such custom is that an electoral body consisting of falcirs and murids elects a competent person (usually a son or nominee of the late sajjadano.shin as sajjadanashin. Fyzee says, The special feature of the office of a sajJadartashin) Is that the original founder has the right to nominate his successor, who In turn enjoys the same rights. Thus, a chain of preceptors (called silsila) comes into being, and the followers, known as muricis, pay homage not only to the founder but also to the whole lIne, including the present link, callec pii or murshlcl. Theoretically the most illustrious disciple is to be installed as heir apparent, but according to custom, In the majority of cases the officer becomes hereditary. Sometimes by usage or custom a sajfadanashin has the power to nominate his successor. In the absence of any instructions in the wakf-rtama or custom, the court has power to appoint a sajjadanashin. In appointing a sajjadanashin. the court should take into consideration the spiritual traditions of the kho.nqah. Waqf how created. :- Muslim Law does not prescribe any form for creating waqJ. It may be either verbal or in writing. Modes of creation. waqf may be created either : 1. by an act inter vivos; or 2. by will; or 3. during death illness (marz-ul--maut); or 4. by immemorial user. 1. Inter vivos means, between living voices, i.e., during the lifetime. Thus a waqf by an inter vivos is a waqf which is constituted during the lifetime of the waqif and takes effect from that very time. There are no limitations on creating a waqf by an act inter zivos. A waqf is completed, according to Abu Yusuf, by the mere declaration; according to Imam Mohammad it is not completed unless, after the declaration a mutawalli is appointed, and possession is delivered to him, and according to Abu Hanifa it is not completed without a decree of the Court unless it is a testamentary waqf. Shia Law.Under Shia Law of waqf is not complete unless possession of the waqf property is given either to the mutawalli, or to the first beneficiary. Where there is no document expected by the waqif at the time of making the alleged waqf it must be proved by cogent evidence that he had delivered the possession to the mutawalli. 2. A waqf by will (wasiyat) stands in contradiction to a waqf, created by an act inter vivos. It takes effect after the death of the waqif and is also called testamentary, waqf A waqf by will cannot operate upon more than one-third of net

16 assets, without the consent of the heirs. A waqf created by will is not invalid because it contains a clause that the waqf shall not operate if a child is born to testator. The reason is that a testator has power in law to revoke or modify this will at any time he likes, and he may, therefore, revoke a waqf created by will even without reserving any express power in that behalf. Shia Law. It was held at one time that a Shia cannot create a waqf by will. But this view was erroneous and it has been held by the Privy Council that a Shia can create a waqf by will. 3. Like gifts made while the donor labours under marz-ul-maut, the waqf made during death-illness (marz-ul--maut) will operate only to the extent of one-third of the property without the consent of the heirs of the waqif. Shia Law. The same is the rule of Shia Law. 4. Lapse of time frequently renders difficult or impossible to establish dedication by direct evidence, but waqf may be established by evidence of immemorial user, e.g., when a land has been from time immemorial used for the purpose of a burial ground, it is a waqf by immemorial user. It is a settled law that in a case where a long period has elapsed since the origin of an alleged waqf, user can be the only available evidence to show whether the property is waqf or not. Similarly, where for a considerable number of years the public offered prayer in a mosque close by a tomb of a Muslim saint, it was held that the mosque was duly dedicated. Completion of waqf.The problem as to how a waqf is completed, may be studied from the following two angles : 1. where third person is appointed as the first mutawalli, 2. where founder constitutes himself as first mutawalli (manager or superintendent). 1. Third person as first mutawalli.As to how a waqf is completed in a case where a third person is appointed as first mutawalli of the waqf, the following two views exist on the point : (a) declaration of waqf, (b) appointment of mutawalli, and (c) delivery of possession to mutawalli. 2. Founder himself first mutawalli.The founder may himself constitute as first mutawafli. In such cases, the founder and the .mutawalli being the same person. (i) no physical possession is necessary, (ii) nor is it necessary that the property be transferred from his name as owner into his name as Mutawalli. The transaction must, however, be bona fide. The onus of proving the contrary is on the person alleging that the waqf was not bona fide one. The settlor and those claiming under him can however argue that no wanf was created.

17 Thus it is clear that here too, the only condition for the completion of waqf is the declaration of waqf showing intention to that effect. Another important point which arises in this connection is whether a mere intention to set apart property for charitable purposes is sufficient to create a waqf. The answer is No. Declaration is also essential for it. The Supreme Court in Garib Das case held that in such cases (where the founder is the first mutawalli) it is not necessary that the property should be transferred from the name of the donor as owner in his own name as mutawalli. In such cases, an apparent transaction must be presumed to be real and onus of proving the contrary is on the person alleging that the waqf was not intended to be acted upon. Shia Law. According to Shia Law, the character of the waqf possession should be changed from that of the founder of the waqf to that of mutawalli of the waqf, e.g., by mutation of names in a public register. Where there is neither a declaration of waqf nor delivery of possession, a mere intention to set apart property for charitable purposes is not sufficient to create a waqf even if the income of the property is applied to the intended purpose. Formalities for Wakf :(i) Wakf made orally or in writing: Wakf may be made in writing or it may be oral. When it is in writing, a Wafknama or Wakf-deed is prepared. According to section 2(M) of the Wakf Act, 1954, Wakf deed means any deed or instrument by which a Wakf has been cra ted and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied. (ii) Registration of Wakf It is not necessary that a Wakf should be in writing, it may be made orally. But if a Wakf is in writing then it must comply with the provisions of the Indian Registration Act, 1908. If a Wakf of immovable property worth rupees one hundred or more is created by a deed, the deed requires registration under section 17(i)(b) of the Indian Registration Act, 1908. (iii) Declaration of Wakf: Mere intention to create a Wakf is not sufficient. Declaration of Wakf makes the dedication complete. There were differences of opinion among the Muslim authorities on this matter. According to Abu Yusuf, a Wakf inter vivos comes into existence by a mere declaration of endowment by the owner of the property. But Imam Muhammad held the view that a Wakf is not complete unless declaration of endowment is accompanied by the appointment of Mutawalli and delivery of possession to him. The view of Abu Yusuf has been accepted. (iv) Delivery of possession: A Wakf may be lawfully constituted only by declaration. Delivery of possession and the appointment of Mutawalli is not an essential condition for its validity. in the case of Gift, delivery of possession is

18 considered for completion of dedication, while others contend that simple declaration is sufficient to complete the transaction of property from Wakif In this regards Abu Hanifass view is that a Wakf is complete when a decree is made which has extinguished the rights of Wakif in the property. Revocation of-waqf :- If a valid waqf has once been created, it cannot be revoked by the waqif for it is in the power of nobody to divest God of his ownership of the property. On the creation of the waqf the property at once passes to God and neither it can be reverted later nor can God be divested of the property and the waqif or his successor-in-interest restored to it by any subsequent breaches of the terms of the waqf mutawalli of his office. Thus 1. A testamentary waqf may be revoked by the author of the waqf any time before his death. But in this case there is no revocation in facts as the waqf comes into existence only at the death of the testator. It is in fact revocation of the will rather than of the waqf. 2. A waqf during death illness without consent of heirs is valid only to the extent of 1/3rd of the property and invalid beyond this limit. There is no revocation involved here too. 3. A waqf created by an act inter vitos is irrevocable. If the waqif reserves the power of revocation, the waqf is invalid.

Appointment OF MUTAWALLi (TAULIAT) The Wakf enjoys full power of appointment of Mutawalli and he may appoint the first Mutawalli. He may also appoint himself as the first Mutawalli. But if the Wakif does not appoint himself as the first Mutawalli, the first Mutawalli shall be appointed in the following manner: I. Appointment by the Wakif II. Appointment by executor of the founder ifi. Appointment by the outgoing Mutawalli IV. Appointment by the court V. Appointment according to Custom or usage I. Appointment by the Wakif :- There is a difference of opinion under Hanafi law as to what would happen if no Mutawalli was appointed at the time of dedication of property as Wakf. According to Abu Yusuf Wakf would be valid and the Wakif would become the Mutawalli. But in the opinion of Abu Hanifa and his disciple Imam Mohammed, Wakf would be unlawful if no Mutawalli is appointed. Under Shia law as the transfer of possession is necessary hence Wakif may appoint a Mutawalli before transfer of possession and not after transfer of possession. After transfer of

19 possession the Wakf cannot appoint a Mutawalli or give any scheme and in such a case beneficiaries are entitled to administer the Wakf.However, the Wakif or founder of a Wakf has absolute power to appoint a Mutawalli. If the Wakif has made a provision in the Wakf-deed for the appointment of the Mutawalli, the Mutawalli shall be appointed in accordance with the directions of the Wakf-deed. In the Wakf-nama, the Wakf may lay down the following direction: (i) He may reserve the right of management of the Wakf to himself and he can appoint a Mutawalli during his life time whenever he likes. (ii) He may lay down a scheme for succession to the office of Mutawalli. (iii) He may nominate a successor by Wakfnama, or he may indicate the class of persons who may succeed to Mutawalliship. (iv) He may confer the power Of nomination of successor on the Mutawalli. (v) He may lay down the qualification for the Mutawalli. (vi) He may constitute a hereditary line of successors to the office of Mutawalli. It is, therefore, stated that primary right of appointing a Mutawalli is that the Wakijf who is creating the Wakf. He may give a scheme and ascertain succession of future Mutawallis. Wakif is empowered to indicate qualifications of a Mutawalli or a class out of which a Mutawalli may be appointed. He may also give powers to a Mutawalli to appoint his successor after his death or in case of his relinquishing the office, but the Mutawalli is entitled to appoint his successor only on his death-bed. It may be noted here that office of Mutawalli is not transferable4 and Muslim law does not recognise the office to be hereditary unless there is a custom. II. Appointment by executor of the founder :- If a Wakif dies without appointing any Mutawalli and the Wakf-deed is silent about the appointment to this office, then the executor of the Wakijf is entitled to appoint a Mutawalli. Thus, where the office of Mutawalli falls vacant for any reason such as by the date of the Mutawalli or by his refusal to act or by his removal by the court and, it is not clear as to how a Mutawalli to be appointed, then the executor has a right to appoint any person as Mutawalli. In this situation, the founders executor possesses the same powers as the founder himself, had he been alive. However, this is possible only where founder has an executor. III. Appointment by the outgoing Mutawalli on Death-bed :- Generally, an existing Mutawalli has no right to appoint his successor. But when the Wakif and his executor both are dead and the Wakfnama does not lay down any scheme of succession, then the outgoing Mutawalli, may appoint his successor on his deathbed, but he has no such power when healthy. Thus, a Mutawalli may appoint his successor subject to two conditions, (i) that he is on his death-bed and there is no chance of his survival and (ii) that the office of Mutawalli would remain vacant if he does not appoint his successor before his death.

20 It may be noted here that appointment of a Mutawalli by a existing Mutawalli in his deathbed is an emergency appointment, therefore, when he is in health he cannot appoint his successor. Similarly, where the office of Mutawalli is hereditary under local custom, the Mutawalli on death-bed has no right to appoint his successor. IV. Appointment by Court :- If no Mutawalli could be appointed by any of the aforesaid manner, the court has the power of appointing Mutawalli. It may be recalls that under pure Muslim law powers of Qazi or King are very wide as far as administration of Wakfs are concerned. On the same lines under English law Chancery Courts have been given powers to govern the trust and trustees. Justice Ameer Au, while delivering a judgment for Privy Council has quoted an old authority as saying, were the Wakzf to make a condition that King or Kazi should not interfere in the management of the Wakf, still the Kazi will have his superintendent over it, for his supervision is above everything. Court here means the District Court within the jurisdiction of which Wakfproperty is situated. While appointing a Mutawalli, the court shall take into consideration the following facts: (i) Directions of the Wakif if any, given by the Wakf. but if the court feels that disregarding the directions of the Wakif while to the manifest advantage of the Wakif then it can ignore such directions. (ii) The court can appoint a stranger to the office of the Mutwalli only if there is not available any qualified member of the Wakif family. The term family includes persons descendent from one common progenitor and takes in both agnates and cognates. (iii)Among the family-members of the Wakf. who are available for appointment, the court shall appoint the most appropriate person irrespective of the nearness of kin to the Wakf. i.e., when the choice is between lineal descendant and remoter relations, the court is not bound to appoint the former.

V. Appointment according to Custom or usage :- The office of Mutawalli may be hereditary by custom or usage, only if there is no provision in the Wakfrzama. Though such a custom is opposed to general law, hence it must be strictly proved through supporting evidence. A custom may be prevalent that a Mutawalli may be appointed through an election or through a congregation of locality through some procedure which must be lawful and reasonable. Where a Wakf is a purely local Wakf such as a graveyard or a mosque, then the appointment of Mutawalli may be made by the congregation of the locality.

21 Md. Taiyab v. The Meghalaya Board of Wakf, court held that for the appointment of Mutawalli as lineal descendants it is necessary that person must be descendant through direct or right line without any deviation as from father to son, etc. In Md. Abrar v. The Meghalaya Board of Wakf, where the issue regarding to appointment of Mutawalli by succession. The court held that one of the joint Mutawalli dies-survivor alone would be entitled to be appointed as sole Mutawalli for time being. He can only nominate his successor. In absence of any usage of appointment of joint Mutawalli or any clause in Wakfnama, sole surviving Mutawalli has no right or obligation to appoint a joint Mutawalli. VI. Appointment by Board of Wakfs :- Section 63 of the Wakf Act empowered the Wakf Board to appoint a Mutawalli where there is a vacancy provided the terms of Wakf deed has to be observed in such an appointment. The Board may also appoint a Mutawalli on such conditions and for such period as it thinks fit where a dispute exists between two or more persons to be appointed as Mutawalli. Wakf Board is also empowered to take over the management of Wakf where no suitable person is available to be appointed as Mutawalli. This provision is given in section 65 of the Act. What were once powers of the Qazi has been given to Wall Board and it is competent even to appoint a person as Mutawalli against the wish of Wakf if such appointment in the changed circumstance is for the benefit of those for whom the Wakf was created. This would be an exceptional case because as a general rule any conditions laid down by the Wakif shall be respected. Capacity of a Mutawalli :- A Mutawalli must have the following qualification: (i) Mohammedan or non-Mohammedan: The Mutawalli may be a Muslim or nonMuslim. The office of Mutawalli does not require any religious or spiritual obligations, so a non-Muslim can also be appointed as Mutawalli. (ii) Male or Female: The Mutawalli may be either a male or a female, a woman is not debarred from acting as Mutawalli because the office does not involve any religious or spiritual obligation.3 It means a female and the non-Muslim are legally qualified to be appointed as a Mutawalli. It is because a Mutawalli is primarily concerned with the superintendence or management of the Wakf property. Supervision and management is a non-religious activity. But, where the Mutawalli is required to discharge also some religious function, a female or a non-Muslim cannot act as Mutawalli. Accordingly, in the following cases, a female and a non- Muslim cannot be appointed as Mutawalli: (a) Where the Mutawalli is to act as Sajjadnashin or a spiritual head. (b) Where the Mutawalli is to act as imam, i.e., where he is required to lead the assembly of people for religious prayers. (c) Where the Mutawalli is to act as a Mulla. A land assigned to a Mulla as remuneration of his office, cannot be succeeded by any female successor. (d) Where the Mutawalli is required to give religious preaching i.e., where he has to

22 act as Khatib. (e) Where the Mutawalli is required to act as mujavar of a Durgah. (iii) Any Sect: The Mutawalli may belong to any sect or sub-sect. A Shia may be appointed as Mutawalli of a Sunni Wakf (iv) Sound-mind: The Mutawalli must not be of unsound-mind. A blind person may also be appointed as Mutawall (v) Age of Majority: The Mutawalli must have attained the age of majority. But, a minor may be a Mutawalli where the office of Mutawalli is hereditary and the person entitled to succeed is a minor, or where the line of succession is laid down in the wakfnama and the office fall on a minor, and then the office may be held by that minor. Remuneration of a Mutawalli :- Remuneration may be fixed either by the Wakif or court. 1. Remuneration not a right: A Mutawalli cannot claim remuneration as a matter of right. But a Wakif may provide for remuneration for the Mutawalli. Remuneration may consist of anything such as fixed amount or residue for the income of Wakf property after meeting all the expenses of the Wakf Such provision is made in the Wakflwma. 2. Remuneration fixed by the court: In the absence of any provision in the Wakfnama, the court has the power to allow remuneration to the Mutawalli. But the court cannot fix a sum exceeding one-tenth of the income of the Wakf property. The court also has the power to increase the salary if the amount fixed by the Wakif is small, but the court can increase it up to but not above one-tenth of the income.Under the Shin law, the Wakf may appoint himself the first Mutawalli and take a reasonable remuneration not exceeding that which is payable to other Mutawallis Power and Function of a Mutawalli :- As said above and held by different courts the property of Wakf vests in Almighty and he is simply manager of it. However, a Mutawalli has the power to do all acts for the management and administration of the Wakf-properties. The Mutawalli is manager of the Wakf-property. His primary duty is to preserve the property like his own, but to manage and spend it like a servant of God. Mutawalli is not owner of the Wakf-property, the property vests in God. Powers of a Mutawalli are as following: 1. Power of management and administration: A Mutawalli has the power of management and administration of Wakf-property. His legal position is that he is a manager having no beneficial interest in the Wakf-properties. He is only a

23 superintendent of the property. He can only hold the property and control it. The Wakf property does not vest in him but he can sue for possession of the Wakf The Supreme Court in Zain Yar Jung v. Director of Endowment, AIR 1963 sc 985 has held, the manager of the Wakf is the Mutawalli, the Governor, Superintendent or Curator. But in that capacity, he has no right in the property belonging to the Wakf, the property is not vested to him and he is not a trustee in legal sense. Therefore, there is no doubt that the Wakf to which the Act applies is, in essential features, different from the trust as is known to English law.

2. Power of incurring Debt: A Mutawalli has no power of incurring a debt unless he is permitted either by a provision of the Wakfnama or by the court. A person who gives loan to a Mutawalli for carrying out the purposes of the Wakf has no remedy against the Wakf properties, he can not claim to be indemnified out of the Wakf funds. 3. Power of alienation of Wakf properties: As already discussed, a Mutawalli is not owner of the Wakf-property. So, he cannot transfer the property by sale, exchange, gift or mortgage. However, a Mutawalli can transfer the Wakf-property in following situations: (a) Where the founder has expressly authorised the Mutawalli to sell, exchange, mortgage etc., the property, or (b) Where the Mutawalli has taken prior permission of a court for transferring the property. So, a Mutawalli may alienate by way of selling, mortgaging or exchanging the Wakf properties only if there is provision in the Wakfnama related to alienation or he must obtain the prior permission of the court. However, prior permission of the court is not hard and fast rule. If the transfer is for the benefit of the Wakf or is urgently required in the given circumstances, the Mutawalli may alienate the property first and thereafter get the permission. The Civil Court is entitled to control the Wakf for its power administration. It is duty of the court to give effect to the express wishes of the Wakif. The court has general power of superintendence over So if the Wakf restricts the court for exercising such power by any provision in the Wakfnama, then such a provision is null and void. 4. Power to grant Lease: Lease is a transfer of the right of enjoyment of an immovable property on rent. The Mutawalli has power to grant leases of the Wakf property, but his power is limited as regards th period of lease. If the Wakf property is an agricultural land then Mutawalli cannot grant a lease of the Wakfproperty for more than three years. In case of non-agricultural land, i.e., residential place, he can grant lease only upto one year. A lease for more than the allowed period may be granted only if either the Wakfnama specifically allows him

24 to do so or the court has granted permission.4 While giving permission for longer periods or approving unauthorised leases retrospectively, the courts are required to take into account, (a) the interest of the Wakf or, (b) the interest of its beneficiaries, or (c) any legal necessity for the transaction. 5 Right of Pre-emption: A Mutawalli cannot exercise right of pre-emption for the Wakf-property. Where a land which is adjacent to the Wakf-property has been sold, the Mutawalli cannot claim repurchase or substitution under the right of preemption. 6. Power to Compromise: Section 93 of the Wakf Act, 1995, even bars a Mutawallis right to compromise hi a suit or proceedings without the sanction of the Board. Duties of Mutawalli :- Section 50 of the Wakf Act, 1995, provides for duties of Mutawallli as: I To carry out directions of the Board according to law, II. To furnish returns and information as required by the Board provided under the Act and rules made thereunder, iii. To allow inspection of Wakf property, accounts, records, deeds and documents, lv. To discharge of public dues, V. To do any other act which is lawfully required to be done under the provisions of the Act. Removal of a Mutawalli:- Under pure Islamic law power to appoint a Mutawalli rests with the founder and after him with the executor. But, once a Mutawalli has duly appointed, he cannot be removed by the founder for misconduct, etc., except where the founder has expressly reserved such a right. However, under following circumstances, Mutawalli can be removed from his office: 1. Removal by the Wakij If the Wakf reserved the power of removing the Mutawalli in the Wakfnama, then only he can removed him from Mutawalliship. So, in the absence by any express reservation of the power of removing a Mutawalli, the Wakf has no such power related to the removal. 2. Removal by the Court: The court has absolute power to remove a Mutawalli. The court may remove him on the ground of misfeasance, breach of trust or for his unfitness such disabilities, etc. Therefore, the court is competent to do all such things which it deems necessary for proper administration of the Wakf-property. The court has power to remove the Mutawalli from his office of the following circumstances: (i) Non-payment of taxes, spending money recklessly, failure to produce accounts. (ii) Where a Mutawalli has become insolvent. (iii) Making unauthorised transfers of the Wakf property and fraudulently

25 selling Wakf-property. (iv) Guilty of malversation. (v) Misfeasance and breach of trust. (vi) Grave dereliction of duty. The courts power of removal is unfettered and the court can remove a Mutawalli even if the settlor has specifically laid down that he should not be removed.