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Administration In General: -
Usually a wakf has a range of beneficiaries. Thus, the founder makes arrangements beforehand by
appointing an administrator (called nāẓir or mutawallī or ḳayyim) and lays down the rules for
appointing successive administrators. The founder may himself choose to administer the wakf during
his lifetime. In some cases, however, the numbers of beneficiaries are quite limited. Thus, there is no
need for an administrator, and the beneficiaries themselves can take care of the wakf (since they are
regarded the virtual owners).
The administrator, like other persons of responsibility under Islamic law, must have capacity to act
and contract. In addition, trustworthiness and administration skills are required. Some scholars
require that the administrator of this Islamic religious institution be a Muslim, though the Hanafis drop
this requirement.
As per Wakf Act 1954 (later Wakf Act 1993) enacted by Government of India, Wakfs are categorized
as
· Wakf by user such as Graveyards, Musafir Khanas (Sarai) and Chowltries etc.,
· Wakf Alal-aulad is dedicated by the Donor (Wakif) for the benefit of their kith and kin and for any
purpose recognised by Muslim law as pious, religious or charitable.
After the enactment Wakf Act 1954, the Union government directed to all the states governments to
implement the Act for administering the wakf institutions like Mosques,Dargah, Ashurkhanas,
Graveyards, Takhiyas, Iddgahs, Imambara, Anjumans and various religious and charitable
institutions.
In India, the management of Wakf is undertaken by the Central Wakf Council, India, a statutory body
under Government of India, which also oversees State Wakf Boards. In turn the State Wakf Boards
work towards management, regulation and protect the Wakf properties by constituting District Wakf
Committees, Mandal Wakf Committees and Committees for the individual Wakf Institutions. As per
the report of Sachar Committee (2006) there are about 5 lakh registered Wakfs with 600,000 acres
(2,400 km2) land in India, and Rs. 6,000 crore book value.
The Council is headed by a Chairperson, who is the Union Minister Incharge of Wakfs, while
Secretary is the Chief Executive of the Council, there are maximum 20 other members, appointed by
Government of India as stipulated in the Wakf Act. Presently the chairperson is Salman Khursheed,
the Minister of State for Ministry of Minority Affairs, which overlooks its functioning.
Administration Of Wakf: -
The Central Government is responsible for the implementation of the Wakf Act. It has been taking up
issues of common concern to promote the interests of Wakfs in the country. The Wakf Act, 1954 had
provisions for survey of Wakfs, constitution of Central Wakf Council and State Wakf Boards etc. For
better interpretation of the provision of the Act keeping in view the objective of the legislation, the
Wakf Act, 1954 was amended many times. Finally a comprehensive and land mark legislation i.e.
Wakf Act, 1995 was enacted by the Government of India in November, 1995, which became
effective from 01.01.1996. In contrast to the previous Act, this Act is applicable throughout the
country except for Jammu & Kashmir and Dargah Khwahja Saheb, Ajmir.
The provision is of general nature but the directions of the board must be lawful and fall within the
competence of the board as the superintending authority of the wakfs.
The board has to maintain a record containing the details regarding the origin, income, object and
beneficiaries of every wakf [sec 32 (2) (a)]. It is one of the basic functions of the board to see to the
proper application of the income of the wakf properties, in accordance with the objects and purpose
of the wakf. Misapplication and misappropriation of the income from the wakf properties have
become a common feature and the board has to make a lynx eyed scrutiny of the income and the
expenses of every wakf [Sec 32(2)(b)]. The inspectors and superintendents of wakfs should make
periodical and surprise scrutiny of the accounts of the wakfs and must be held responsible for any
lapse on their part. The power to frame schemes for management of wakfs is conferred on the board
and this power has to be excercised after due notice to the Mutawalli and to all parties affected and
after giving them sufficient opportunities of being heard [Sec 32 (2)(d)]. This is done by the Board on
its own motion or on the application of not less than 5 persons interested in any wakf to frame a
scheme for the administration of that wakf in consultation with the mutawalli and the applicants, if it
is satisfied that the framing of a scheme is necessary or desirable [Sec 69]. The Board has power to
issue directions: -
i. For the utilisation of the surplus income consistent with the objects of the wakfs
ii. For the manner of utilising the income where the object of the wakf is not disclosed in any written
instrument
iii. Where any object of a wakf has ceased to exist or has become incapable of achievement [Sec 32
(2)(e)].
The board is empowered to scrutinise and approve the budget submitted by the mutawallis and to
arrange for the auditing of the accounts of the Wakfs. This power must be exercised by the board
not in a casual or cavalier manner, but with a deep sense of duty. In case of public trusts and
endowments which are administered under schemes framed by the courts, the annual accounts and
budget estimates submitted to the courts were never seriously scrutinised but were merely recorded
[Sec 32 (2)(f)]. The Board has power to remove Mutawallis in accordance of the Provision of Wakf
Act, 1995(Sec 63 & 64) [Sec 32 (2)(g)]. The board is empowered to take measures to recover lost
properties of any wakf [Sec 32 (2)(h)]. The board has the power to institute and defend suits and
proceedings relating to wakfs. The board is a body corporate and shall by the said name sue and be
sued. This power is inherent in the every constitution of the board in which is vested and general
superintendence of all wakfs in the state [Sec 32 (2)(i)]. One of the most important function of the
board is to sanction any transfer of immovable property of a wakf by way of sale, gift, mortgage,
exchange or lease, in accordance with the provisions of this Act: Provided that no such sanction
shall be given unless at least two- thirds of the members of the Board vote in favour of such
transaction [Sec 32 (2)(j)]. The Board is entrusted with the administration of wakf fund in accordance
with the sec 76 of this act [Sec 32 (2)(k)]. The Board is entitled to call for such returns, statistics,
accounts and other information from the mutawallis with respect to the wakf property as the Board
may, from time to time, require under their management. [Sec 32 (2)(l)]. The Board has the power to
inspect, or cause inspection of, wakf properties, accounts, records or deeds and documents [Sec 32
(2)(m)]. The Board is empowered to investigate and determine the nature and extent of wakf and
wakf property, and to cause, whenever necessary, a survey of such wakf properties [Sec 32 (2)(n)].
And finally it gives residuary power to the Board to do generally all such acts as may be necessary
for the control, maintenance and administration of the wakfs in the state [Sec 32 (2)(o)].
According to PM’s High Level Committee on the status Indian Muslims, there are:
· More than 4.9 lakh registered Wakfs spread over different states and union territories of India.
· The total area under Wakf properties all over India is estimated at about 6 lakh acres and the book
value at about Rs 6,000 crores.
· A recent estimate of the current value of Wakf properties in Delhi alone is in excess of Rs. 6,000
Crores (Rs. 60 billion).
· A good number of the Wakf properties in urban areas are found to be located in city centres where
the current value is many times more than the book value.
· The current annual income from these properties is only about Rs. 163 crores, which amounts to a
meagre rate of return of 2.7 per cent.
· The current market value of the Wakf properties can be put at Rs. 1.2 lakh crores (1,200 billion). So
the current return of 163 crores on the current market value comes out to be meagre 0.135 percent
which is pathetic.
· If these properties are put to efficient and marketable use they can generate at least a minimum
return of 10 per cent which is about Rs. 12,000 crores per annum.
· If some of these Wakf properties situated in prime locations across the country are developed and
put to commercial use, their market value and annual income will shoot up.
· The enhanced Wakf income could be utilized to upgrade the educational status and improve other
human development dimensions of the beneficiaries of Wakfs.
The author can be reached at: ankita.paul@legalserviceindia.com
Concept Of Waqf Under Muslim Law
On October 8, 2017 By admin
Madhubala Solanki
Editor’s Note: Waqf is very unique and beneficial for poverty alleviation programmes.This project
will portray the meaning and essential elements of a valid waqf. Evolution of the concept of waqf
and Various kinds of waqf under Muslim law. In this project Conseqences of waqf will be dealt
and the powers which a mutawali enjoys. Waqf board Wakf Act 1954 This paper would be
substantiated by suitable case laws and legal aspects. How waqf can be created? And Objects of
waqf will be given in the paper.
INTRODUCTION
Literal meaning of the word waqf is ‘detention’. In the language of law, waqf means detention of
a property so that its produce or income may always be available for religious or charitable
purposes. When a waif is created, the property is detained or, is ‘tied up’ forever and thereafter
becomes non-transferable. Meaning and various types of the waqf is defined in this projects. There
is object behind making a wakf. Office of Mutawalli (manager) is very important. There are many
modes to create waqf, which are dealt in this project. Wakf is binding and enforceable by law, it
has legal consequences which are dealt in this project. The law of waqf is “the most important
branch of Mohammedan Law for it is interwoven with the entire religious life and social ecomony
of Muslims.
MEANING
When Muslim a person who is working for charitable purpose under religious faith and sentiments
and for the benefit and upliftment of the society, has donate his property in the name of Allah is
called waqf.
Waqf literally means ‘detention’ stoppage or tying up, meaning thereby that the ownership of
dedicated property is taken away from the person making waqf and transferred and detained by
God. Details are given in old texts about wakf made by prophet. It is observed in M Kazim vs A
Asghar Ali that technically, it means a dedication of some specific property for a pious purpose or
secession of pious purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf is the
detention of a specific thing that is in the ownership of the waqif or appropriator, and the devotion
of its profits or usufructs to charity, the poor, or other good objects, to accommodate loan.
Wakf Act 1954 defines Wakf as, “Wakf means the permanent dedication by a person professing
the Islam, of any movable or immovable property for any purpose recognized by Muslim Law as
religious, pious, or charitable.”
ESSENTIAL CONDITIONS FOR A VALID WAQF
1. By an act of a living person (inter vivos) – when a person declares his dedication of his property
for Wakf. This can also be done while the person is on death bed (marj ul maut), in which case, he
cannot dedicate more than 1/3 of his property for Wakf.
2. By will – when a person leaves a will in which he dedicates his property after his death. Earlier
it was thought that Shia cannot create Wakf by will but now it has been approved.
3. By Usage – when a property has been in use for charitable or religious purpose for time
immemorial, it is deemed to belong to Wakf. No declaration is necessary and Wakf is inferred.
1. Dedication to God – The property vests in God in the sense that nobody can claim ownership of
it. In Md. Ismail vs Thakur Sabir Ali , SC held that even in wakf alal aulad, the property is
dedicated to God and only the usufructs are used by the descendants.
2. Irrevocable – In India, a wakf once declared and complete, cannot be revoked. The wakif cannot
get his property back in his name or in any other’s name.
3. Permanent or Perpetual – Perpetuality is an essential element of wakf. Once the property is
given to wakf, it remains for the wakf for ever. Wakf cannot be of a specified time duration. In
Mst Peeran vs Hafiz Mohammad, it was held by Allahbad HC that the wakf of a house built on a
land leased for a fixed term was invalid.
4.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 anybody.
5. Pious or charitable use – The usufructs of the wakf property can only be used for pious and
charitable purpose. It can also be used for descendants in case of a private wakf.
6.Extinction of the right of wakif – The wakif loses all rights, even to the usufructs, of the property.
He cannot claim any benefits from that property.
7. Power of court’s inspection – The courts have the power to inspect the functioning or
management of the wakf property. Misuse of the property of usufructs is a criminal offence as per
Wakf Act.1995.
OFFICE OF MUTAWALLI
Mutawalli is nothing but the manager of a wakf. He is not the owner or even a trustee of the
property. He is only a superintendent whose job is the see that the usufructs of the property are
being utilized for valid purpose as desired by the wakif. He has to see that the intended
beneficiaries are indeed getting the benefits. Thus, he only has a limited control over the usufructs.
In Ahmad Arif vs Wealth Tax Commissioner , SC held that a mutawalli has no power to sell,
mortgage, or lease wakf property without prior permission of the court or unless that power is
explicitly provided to the mutawalli in wakfnama.
Who can be a mutawalli – A person who is a major, of sound mind, and who is capable of
performing the functions of the wakf as desired by the wakif can be appointed as a mutawalli. A
male or female of any religion can be appointed. If religious duties are a part of the wakf, then a
female or a non-muslim cannot be appointed.
In Shahar Bano vs Aga Mohammad , Privy Council held that there is no legal restriction on a
woman becoming a mutawalli if the duties of the wakf do not involve religious activities.
Who can appoint a mutawalli – Generally, the wakif appoints a mutawalli. He can also appoint
himself as a mutawalli. If a wakf is created without appointing a mutawalli, in India, the wakf is
considered valid and the wakif becomes the first mutawalli in Sunni law but according to Shia law,
even though the wakf remains valid, it has to be administered by the beneficiaries. The wakif also
has the power to lay down the rules to appoint a mutawalli. The following is the order in which
the power to nominate the mutawalli transfers if the earlier one fails –
1. founder
2. executor of founder
3. mutawalli on his death bed
4. the court, which should follow the guidelines –
1. It should not disregard the directions of the settler but public interest must be given more
importance.
2. Preference should be given to the family member of the wakif instead of utter stranger.
Powers of a mutawalli – Being the manager of the wakf, he is in charge of the usufructs of the
property. He has the following rights –
1. He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose
of the wakf. He can take all reasonable actions in good faith to ensure that the intended
beneficiaries are benefited by the wakf. Unlike a trustee, he is not an owner of the property so he
cannot sell the property. However, the wakif may give such rights to the mutawalli by explicitly
mentioning them in wakfnama.
2. He can get a right to sell or borrow money by taking permission from the court upon appropriate
grounds or if there is an urgent necessity.
3. He is competent to file a suit to protect the interests of the wakf.
4. He can lease the property for agricultural purpose for less than three years and for non-
agricultural purpose for less than one year. He can exceed the term by permission of the court.
5. He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can
apply to the court to get an increase.
Removal of a mutawalli –
Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif. However, a
mutawalli can be removed in the following situations –
1. By court –
1. if he misappropriates wakf property.
2. Even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.
3. Knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs
Mahmood Hasan , SC held that using wakf money to buy property in wife’s name is such breach
of trust as is sufficient ground for removal of mutawalli.
4. he becomes insolvent.
2. By wakf board – Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli
from his office under the conditions mentioned therein.
3. By the wakif – As per Abu Yusuf, whose view is followed in India, even if the wakif has not
reserved the right to remove the mutawalli in wakf deed, he can still remove the mutawalli.
DIFFERENCE BETWEEN WAQF AND TRUST
Both, in waqf as well as in trusts, the property is detained and its usufruct is utilised for religious
or charitable purposes. But, a waqf under Muslim personal law may be distinguished from a trust
at least on following matters:
(1) A waqf may be constituted only for those purposes which are recognised as religious, pious or
charitable in Islam whereas, a trust may be constituted for any lawful object.
(2) Except under Hanafi law, the founder of a waqf cannot reserve any benefit for himself, but the
founder of a trust may himself be a beneficiary.
(3) The powers of a mutawalli (manager of the waqf-property) are very limited as compared to the
powers of a trustee.
(4) A waqf is generally perpetual and irrevocable, whereas, a trust need not be perpetual and may
also be revoked under certain conditions.
Because of the above mentioned differences between waqf and a trust, the Indian Trust, Act, 1882,
is not applicable to Muslim waqf sin so far as the nature and operation of waqfs is concerned. But,
for purposes of instituting any suit in the cases of irregularities and mismanagement of waqf
property, a waqf has been regarded as a ‘trust’ within the meaning of Section 92 of the Civil
Procedure Code, 1908.
However it must be noted that the Indian Trusts Act is applicable also to Muslims. Therefore, if a
Muslim wants to settle his properties in a trust he may do so under this Act instead of creating
waqf under Muslim personal law.
CONCLUSION
Wakf is a detention which is permanent and binding and enforceable by law also, any person
interested may seek remedy in civil court. Office of mutawalli is very important in waqf, power
can be exercised when there is clear vacancy of mutawalliship or there is dispute as to competence
or eligibility of existing mutawalli. A Muslim wakf is distinguished from an English trust or a
Hindu endowment of dharma.