Topic: WAQF

Mohd. Aqib
Ba.llb(Self-finanace)
4th Semester

Roll no.34
 Acknowledgement

Writing the Acknowledgement for the project in the subject of Islamic Personal
Laws is a fairly simple undertaking for anyone who has attended even a single
class of Dr. Kehkashan Y. Daniyal. The clarity, the command and the humour she
brings into every class is infectious, making any student believe that there can be
no easier subject that the one she so teaches and that anyone can master it,
provided he gives the subject the respect and recognition that Ma’am herself gives
the subject.

Furthermore I would like to thank all those people who gave the subject their time
and wrote books which I eventually referred.

Without the contribution of the above said people I could have never completed
this project.

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 Table of Contents

S. No. Title P. No.

1. Introduction 4
2. Development of Wakfs 6
3. Meaning of a Wakf 7
4. Essential Requisites of a Wakf 9
5. Kinds of Wakf 12
6. Creation of Wakf 14
7. Other Requirements 16
8. Case Analysis 18
9. Other Judicial Precedents 21
10. Conclusion 23
11. Bibliography 25

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 Introduction

Wakf can be seen as a strong instrument not only for the preservation of religious, charitable and
philanthropic institutions, but also for the educational and economic development of a
community which is fast falling behind in both these spheres. The institution of Wakf has seen its
development and extension out of the Quranic injunctions which deal with charity.

Islamic Jurists have laid great stress on a tradition in relation to the development of Wakfs, i.e. At
the time of partition of Khyber, CaliphOmar acquired some lands which were very valuable to
him and asked the Prophet whether he should give them away as sadaqa. In response the Prophet
advised the Caliph to retain the thing itself and devote its usufruct to pious purposes 1. The Caliph
did the same with the provision that the land should neither be sold nor bequeathed. He reserved
it for the poor, needy relatives, slaves, wanderers, guests, and for the propagation of the faith.2
The word wakf literally means ‘detention’ and connotes tying up of property in perpetuity. The
function and the idea that the term ‘wakf’ connotes differs in the understanding from one jurist to
another.

According to Abu Yusuf, wakf is the detention of a thing in the implied ownership of Almighty
God, in such a way that its profits may be applied for the benefit off human beings, and the
detention once made, is absolute, so that the thing dedicated can neither be sold, nor given, nor
inherited.

Imam Muhammad does not subscribe to this view. He thinks that the right of the wakif does not
cease until he has appointed a mutawalli and delivered its possession into his hands. For him,
wakf is the tying up of the substance of property in the ownership of the wakif (founder of the
wakf). The ownership of the wakif is not extinguished unless the kazi pronounces an order to that
effect. He fortified his view by reference to a tradition of the Prophet for the validity of sale of a
wakf property, and that no spiritual benefit could be derived unless a wakif remained the owner
of the wakfproperty. According to him, the wakf property revets back to the owner or his heirs in

1
Hablisaslewasabbilsamarat
2
Fi sabil Allah; Heffening, Encyclopedia of Islam,Vol. 2, p. 1098

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case the object fails. Moreover, Abu Hanifa’s thesis is that the wakif’s right could not come to an
end without the ownership being transferred to some other person, for the law does not admit the
idea of a thing during its existence going out of the ownership of one person without falling into
the ownership or possession of another person.

In the cases of Kassimaiah Charities v. Secy., Madras Wakf Board3and Moti Shah v. Abdul
Gahffar Khan,4 it has been held that wakfmeans detention of the corpus in the ownership of god
in such a manner that its profits may be applied for the benefit of his servants. The object of
dedication must be religious or charitable. The above view of two different High Courts, i.e.
Madras and Nagpur, show that in India there is adherence to the views expressed by Abu Yusuf.

In the Privy Council decision in the case of VidyaVaruthiv.BalusamiAyyar5,Ameer Ali, J. said,

“The Muslim Law relating to wakfs owes its origin to a rule laid down by the Prophet of Islam;
and means ‘the tying up of property in the ownership of God the almighty and the devotion of the
profits for the benefit of human beings’. When once it is declared that a particular property is
wakf, or any such expression is used as implies wakf, or the tenor of the document sshows, as in
Jivan Doss Sahuv. Shah Kubeeruddin6,that a dedication to pious or charitable purposes is
meant, the right of the wakif is extinguished and the ownership is transferred to the almighty.
The donor may name any meritorious object as the recipient of the benefit.”

The MussulmanWakf Validating Act, 1913 defines Wakf in sec. 2, it reads as follows,

‘Wakf means the permanent dedication by a person professing the Mussulman faith of any
property for any purpose recognized by the Mussulman law as religious, pious or charitable.

3
AIR 1964 Mad 18
4
AIR 1956 Nag 38
5
(1921) 48 IA 302
6
(1840) 2 MIA 390

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  Development of Wakfs

The institution of Wakf or the provision of dedication of property, movable or immovable, for
religious purposes and for waqf the uplift of the poorer sections of the society have been a
distinguishing feature of the socio-economic structure of Islam. Devotion to the way of God or
the way of goodness or piety and a strong desire to win Divine approbation has been the root
cause of the origin and development of the institution.

The Quran contains no reference to wakf but it abounds in injunctions in the matter of charity,
"And in their wealth the beggar and the outcaste had due share." (Surah 51, Ver. 19)
"They ask thee (O Muhammad) what they shall spend, say; that which ye spend for good (must
go) to parents and near kindred and orphans and the needy and wayfarer. And whatever good ye
do, to I Allah is Aware of it." (Surah 2, Ver. 215)

Historically, the origin of wakf is traced to the prescriptions of the Prophet. Omar had acquired a
piece of land in the canton of Khaibar and proceeded to the Prophet and sought his counsel to
make the most pious use of it, whereupon the Prophet declared, "Tie up the property (as-corpus)
and devote the usufruct to human beings that it is not to be sold or made the subject of gift or
inheritance; devote its produce to your children, your kindred and the poor in the way of God."
In accordance with this rule Omar dedicated the property in question as wakf which continued in
existence for several centuries until the land became waste.

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  Meaning of a Wakf

The term wakf as defined in clause (1) of Section 3 of the Wakf Act, 1954, means a permanent
dedication made by a person professing Islam of any movable or immovable property for any
purpose recognized by the Muslim Law as pious, religious or charitable and includes a wakf by
the user, mashru-ulkhidmat and wakf-alal-aulad to the extent the property is dedicated for any of
the purposes mentioned above.

For creation of wakf it is not necessary that the settler should be a Muslim. Any non-Muslim can
also create under the Muslim law a wakf provided the object of the wakf is one which is
recognized by Muslim Law as pious, religious or charitable and his own religion treats the object
in the same manner. The words 'professing Islam' in clause (1) of Section 3 have been purposely
retained for otherwise all charitable and many pious endowments of other communities would
have come within the purview of the Act because the purposes for which they stand are also
regarded as charitable or pious under the Muslim Law.

The Wakf (Amendment) Act, 1964, has amplified this definition by treating all grants made for
religious, pious and charitable purposes including mashru-ul-khidmat as wakf and also as
permanent dedications made for mosques, dargahs, imambaras, takias, musafirkhanas, etc., by
non-Muslims. Under the Muslim Law, these dedications were always wakf but the definition
contained in clause (1) Section 3 had excluded them from the purview of the Act. In Kanti v.
MirzaHossani, it has been held that land used for Masjids and for the Muharram festival from
time immemorial is wakf and evidence of express dedication is not necessary. When a long
period has elapsed since the origin of the alleged wakf, the user can be the only available
evidence to show if the property is wakf or not. When there is no evidence to show how and
when the alleged wakf was created, the wakf may be established by the evidence of a user.
Moreover, according to the Wakf Act, ‘Wakf’ means the permanent dedication by a person
professing Islam". The words “professing Islam" are purposely kept here to exclude charitable
and pious endowments of other communities from the purview of the Act. However, Section 60-
C of the Act makes a special provision for the creation of Wakf by non-Muslims, provided the
object of the wakf does not carry the words of a person professing Islam.

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The definition of a beneficiary as given in clause (a) of Section 3 of the Wakf Act, 1954, had
unnecessarily restricted its scope. The beneficiary was defined as a person or object for whose
benefit a wakf is created and includes religious, pious and charitable objects and any other
objects of public utility established for the benefit of the Muslim community. The use of the
words “objects of public utility” established for the benefit of the Muslim community' was
wholly unnecessary for they are covered by the preceding clause and include religious, pious or
charitable objects. The addition of these words had made the definition of ‘beneficiary’
inconsistent with the definition of wakf in clause (1) which incorporated no suchrestrictions.
In ZainYar Jung v. Director of Endowments, the Supreme Court held that the objects of public
utility which may constitute beneficiaries under the wakf must be objects for the benefit of the
Muslim community. There can be no doubt that the wakfs with which the Act deals are trusts
which are treated as wakfs under the definition of Section 3 (1) and as such, a trust which does
not satisfy the tests prescribed by the said definition would be outside the Act.
The same view was held by Madras High Court when it stated that a ‘wakf,’ created as an object
of public utility is excluded from the operation of the Act if it does not benefit the Muslim
community exclusively. Though the word ‘exclusively' has not been used in the definition in
clause (a) of Section 3 and though this ruling tended to ignore the main clause in the definition
and include ‘religious, pious and charitable objects,' there is no doubt that the words 'objects of
public utility established for the benefit of Muslim community' were creating difficulty. They
blurred the real concept of charity in Islam which makes no distinction between Muslim and
non-Muslim among the recipients of charity. Wherever there is an injunction or inducement in
the Quran or Hadith on charity, the recipients are stated as the poor, indigent, orphans, travellers,
the down-trodden and poor neighbour without making any distinction on the basis of religion,
caste or creed. For all these reasons, the Wakf (Amendment) Act, 1964 substituted the words
“objects of public utility established for the benefit of Muslim community” with the words
“objects of public utility sanctioned by Muslim Law."

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  Essential Requisites of a Wakf

Under the Muslim law a wakf means dedication by a person embracing the Muslim faith of any
property for any purpose recognized by the Muslim law as religious, pious or charitable. The
dedication must be permanent and by the owner of the property who by reason of such
dedication of the property should divest himself of such property and hand over the possession
thereof to the mutawalli.

There is nothing in the Mohammedan law to invalidate a wakf, where the objects of the
endowment are clear and certain, simply for the reason that no certain portion of the property or
specified amounts of the usufruct have been dedicated to charity or other religious, pious or
charitable purpose of a permanent character recognized by the Mohammedan law.
It will appear from the definitions given above that a wakf should possess the following features:

(1) There should be dedication in perpetuity—Perpetuity is a necessary condition for the

validity of a wakf according to all opinions. A wakf is not governed by rules against
perpetuity. If a wakf is made and is silent as to whether it is to be in perpetuity a
difference of opinions exists as to its validity. According to Abu Hanifa and Muhammad,
a wakf is not complete unless the wakif destines the ultimate dedication to objects which
are not liable to become extinct. Abu Yusuf maintains that an express mention is not
necessary. Thus, if the wakif makes a wakf to Zaid, the wakf is valid, and the property
passes to the poor on the death of Zaid. So also, according to him, if a wakf is made for a
month or any specified time without further addition, the wakf would be valid and
perpetual. But if it is further provided that the wakf would be void after the expiry of the
specified time, the wakf would be void according to all. The view of Abu Yusuf seems to
have been approved in many parts of the world but in the Indian context, The view of
Abu Yusuf had not been followed.

(2) The wakf should be immediate—except in the case of testamentary wakfs the law insists on
an immediate transfer of property and a wakf postponing the coming into effect of the wakf
would be void. The wakf must be made to take immediate effect absolutely forever. A wakf must
not toe deferred to any future date..

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(3) It should not be contingent—Awakf is invalid if it is made contingent on the happening of
an event. Thus, if the wakf is made contingent on the death of a person without leaving children
it will be void. But a direction that the wakf will not come into effect till certain debts of the
wakif are paid off or that it was necessary to ascertain the residue which was dedicated or that all
the heirs decided to partition the property among themselves, the equivalent in cash of one-third
of his property should be reserved for reigious purposes or expended on works acceptable to God
will not make the wakf contingent.

Shia law—Contingent wakfs are invalid under the Shia law also.

(4) It should not be conditional —The appropriation must not be suspended on anything and its
real test is to see whether the dedication was complete at once at the time. Thus, if a condition is
imposed that if the property is mismanaged, it should be divided among the heirs of the wakif or
that the property would be sold for wakifs necessities, the wakf would be invalid. If a right to
assume possession and divide the property according to ancestral shares is reserved in a family
agreement even though some provisions are made for meeting the expense of a dargah, the wakf
would be invalid.

The wakif has got the power to make the reservation of some rights and benefit for himself. If a
right is reserved otherwise than as permitted under that section the wakf would be invalid. But
where some rights which cannot be reserved are reserved in respect of a part of the dedicated
property which is distinct and separable, the wakf as to the rest of the property would be valid.

(5) The wakif should completely divest himself of ownership of the property—There is a
difference of opinion between Abu Yusuf and the disciples. According to Abu Hanifa the
ownership of the property even after the dedication continues to be with the wakif while
according to the disciples the wakif ceases to be an owner. The view of Abu Hanifa has not been
accepted. From the time of the dedication, the property ceases to be that of the wakif. He should
sever all connection with the property as an owner. It the wakif retains any control or dominion
over the property as such the wakf becomes invalid.

It is a question of construction of the deed whether the wakif has wholly divested himself of all
property. The fundamental idea is that the ownership of the property vests in God and is placed

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in his implied ownership as a juristic person. If the legal and beneficial interest is reserved during
the lifetime of the person making the wakf it is invalid.

Shia law—Thewakif must be entirely divested of the property.

(6) It must be made for objects mentioned in the Act.

(7) There must be a proper subject of wakf.

In the case of wakf made by a Shia Muslim delivery of possession is necessary as laid down in
Sec. 1867. The Privy Council also held in Ali Zamin v. Akbar Ali Khar that under Shia law actual
delivery of possession by or by direction of the wakif is a condition precedent to the wakf having
validity and effect.

7
Mulla's Mohammedan Law, 16th Ed. at p. 180

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  Kinds of Wakf

Broadly speaking wakfs can be of two kinds: Public and private. But the most accepted is its
three-fold classification -- public, quasi-public and private.

Public trusts are those which are dedicated to the public at large having no restriction of any kind
regarding its use, e. g., bridge, well, road, etc. Quasi-public wakfs are those, the primary object
of which is partly to provide for the benefit of particular individuals or class of individuals which
may be the settler's family, and partly to public, so they are partly public and partly private.
Private wakfs are those which provide benefit to private individuals, including the settler's family
or relations. Such a wakf is termed as wakf-alal-aulad. The Mutawalli manages the wakf but he
cannot alienate the property. He is, however, more than a manager or superintendent, as he does
not hang on the pleasure of anybody else or to anybody. Under Muslim Law a private wakf is
subject to the same restrictions as any public wakf as the Law makes no distinction between
public and private wakfs. Both are subject to the rules of divine property where the rights of the
wakf are extinguished and it becomes the property of God. Both the wakfs are created in
perpetuity and the properly becomes inalienable. Like public wakfs, a private wakf can under no
circumstances fail and when the line of descent becomes extinct, the entire corpus goes to
charity.
It may be clarified here that the term ‘private’ is used to connote wakfs for private individuals. It
does not include wakfs which are of public nature, such as, a mosque. According to Muslim
Law, there is nothing like a "Private Mosque". A person can set apart an apartment for his own
prayers, but if he allows others to say their prayers in it, it assumes & public character. The test
whether a building is a mosque, it is enough to make it "wakf" provided that public prayers are
even once said with the permission of the settler.

According to Abu Yusuf, wakf is the detention of a thing in the implied ownership of Almighty
God in such a way that its profits may be applied for the benefit of human beings, and the
dedication when once made, is absolute, so that the thing dedicated can neither be sold, nor given
or inherited. In India the view of Kazi Abu Yusuf is adopted. In JewunDass v. Shah Kubeer-
Ooddin, the Privy Council held that after the creation of wakf, the right of the wakif is
extinguished and the ownership is transferred to the Almighty. Fatawa-i-Alamgiri declares that

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“decrees in this country are given according to Abu Yusuf."
In a recent case, Kassimiah Charities v. Secy. Madras State Wakf Board , the meaning of wakf
was taken as the detention of the corpus in the ownership of God in such a manner that its profits
may be applied for the benefits of His servants. The objects of dedication must be pious or
charitable. Hence, the three dominant characteristics of ‘wakf' can be summarized as under:

1. In the first instance, the motive must be religious; a merely secular motive would render the
dedication a gift or a trust, but not a wakf.

2. Secondly, it must be of a permanent nature. A pious gift which is not a permanent foundation
may be a Sadaqa but cannot, in law, be termed as a wakf.

3. And lastly, the usufruct is to be utilized for the good of mankind.

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  Creation of Wakf

There is no essential formality or the use of any express phrase or term requisite for the
constitution of wakf. The law looks to the intention of the donor alone. Where a dedication is
intended, the law will give effect to it in whatever language it may be expressed or in whatever
terms the wish may be formulated.

It is not necessary that a wakf should be made in writing. All that is necessary in constituting a
wakf is that some sort of declaration, either oral or in writing must be made. Though oral wakf is
permitted yet when the terms of a wakf are reduced into writing, no evidence can be given to
prove the terms except the document itself or secondary evidence of its contents, when it is
admissible.
Where a wakf deed is executed, it must comply with the provisions of the Registration Act. Thus,
a wakf deed of immovable property of Rs. 100 or upwards would require registration.
Sometimes, circumstances are also to be considered to ascertain a wakf: the statement and
conduct of the wakif and his successors and the method in which the property has been treated
are circumstances which though not conclusive are relevant. It was repeatedly held by the Privy
Council and the different High Courts of India that for creating a valid wakf, it is not essential to
use the word ‘wakf’, " Neither the use of the word wakf nor express dedication of the property to
the ownership of God is essential for the creation of a wakf where the tenor of the document may
show that a wakf was intended. Any implied expression is enough for the purpose.
FatawaKazi Khan says, “If a man says, this land is mauqoofa 'for God in perpetuity', it will
create a valid wakf.” And even if there is no mention of ‘perpetuity', it will create a valid wakf,
and perpetuity will be presumed.

“And if a man were to say, that this land is dedicated, consecrated, not to be sold, inherited or
given by a gift, all these words would create a wakf according to Abu Yusuf," says Radd-ul-
Mukhtar.

Similar are the observations of Wajiz - ulMuhit,

‘A wakf can also be created by long user. In a case where there is no evidence to show how and
when the alleged wakf was created, the wakf may be established by evidence of the user. Where

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land had been used from time immemorial for religious purposes, say a mosque, the land
becomes wakf, even though there is no evidence of express dedication.’
In the case of Imambara it was held by the Oudh High Court that if 'majalises' were celebrated
and "Quran Khani' was done and the building had never been used as a residential house, the
presumption of dedication will be made. But it would be erroneous to think that the burial of a
saint on a particular spot would make it wakf, in spite of the fact that 'Urs' was held there without
the proprietor's objections.

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  Other Requirements

 Declaration

As far as the courts in India are concerned, a declaration of endowment and delivery of
possession to the Mutawalli are essentials of a wakf. When the first Mutawalli happens to be
wakif himself, a mere declaration is sufficient to constitute a wakf. Where the wakif after
creating a bonafidewakf treats the wakf property as his own and commits certain wrongful acts
in pursuance of this notion, these acts will only amount to a breach of trust and would not in any
way affect the validity of the wakf.

 Delivery of possession

According to Abu Yusuf a dedication of wakf is complete by a mere declaration. Neither

delivery of possession nor appointment of Mutawalli is essential. The view has been adopted by
most of the High Courts in India. Dedication by way of a wakf is completed when the wakif
makes a dedication in good faith with a real intention of divesting himself of the ownership of
the property which he intends to dedicate:

(1) If he nominates another person as Mutawalli such an intention is ordinarily evidenced by

delivery of the wakf property to himself or Mutawalli; the failure to deliver needs at least some
explanation : want of such an intention may be inferred if there is no explanation.

(2) The fact that no person is nominated as Mutawalli does not necessarily show a want of such
an intention; it may be presumed in proper cases that the wakif himself intended to act as a
Mutawalli; but this last presumption may be rebutted by evidence that the wakif did not act as
such, and neither himself gave nor requested another to give any effect to his declaration.

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  Appointment of Mutawalli

In its earlier decision, the Allahabad High Court followed the view of Imam Muhammad: that a
wakf is not complete unless:

(1) Thereis a declaration, coupled with

(2) Appointment of Mutawalli; and

(3) Delivery of possession.

Even according to the previous view of the Allahabad High Court, a mere declaration was
sufficient where the wakif himself was the Mutawalli. It was not necessary to transfer the
property from his name as owner into his name as Mutawalli. The mere delay in transferring
possession or getting the name mutated could not have invalidated the wakf.
Under Shia law the possession has to be delivered to the first person in whose favor the wakf has
been made. In the case of a public wakf, a Mutawalli must be appointed to the possession.

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  Case Analysis

 Garib Das and Ors. v. Munshi Abdul Hamid and Ors. AIR 1970 SC 1035

Facts

One TassadukHussain was the owner of the disputed house had admittedly executed a deed of
wakf on June 21, 1914 in respect of the same for the benefit of a mosque and Madrasa at
Nathnagar and had the same registered. In terms of the deed the donor was to remain in
possession of the house as Mutawalli and his wife was to be the Mutawalli after his death. The
document provided that after the death of both the husband and wife the Mutawalli would be
elected by the panchas of the muslim community of Nathnagar and so long as the donor and his
wife were living they would maintain themselves from the income of the property and spend the
balance left for the mosque and the Madrasa. TassadukHussain executed and registered three
deeds on 10th December, 1949 by one of which he purported to cancel a gift deed dated
November 4, 1939 executed in favor of some of his relations in respect of the disputed house. By
the second document he cancelled another registered deed of gift dated August 2, 1948 executed
in favor of another relation of his in respect of the identical property. And by the third document
he purported to cancel the deed of wakf of 1914. Thereafter he executed and registered three
separate sale deeds on March 27, 1949 one in favor of the appellant Garib Das, a second in favor
of Shamlal and a third in favor of GobindLal. All these three deeds were in respect of portions of
the disputed property. TassadukHussain died in July, 1950.

The suit was filed by the first plaintiff as the elected Mutawalli of the wakf created by
TasadukHussain joining with him plaintiffs 2 and 3 as members of the SadarNathnagar Masjid
Committee. Garib Das, ShyamLal and GobindLal, the alienees from TasadukHussain were
impleaded as defendants first party. The first three defendants were described as tenants in the
suit properties. The plaintiffs claimed to set aside the deeds in favor of the said persons on the
ground that as a valid wakf had already been created in favor of the mosque and Madrasa and had
been acted upon, the deed of cancellation of December 10, 1949 and the sale deeds in favor of
the first three defendants could not affect the wakf. A prayer was also made that as the said three

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defendants who were tenants had repudiated their tenancy they had forfeited the same and they
had become trespassers and were liable to eviction as such.

Lower Court Proceedings

The Subordinate Judge who tried the suit found the deed or wakf to be invalid holding, inter alia,
that there could be no reservation for the benefit of the donor in the case of an endowment
purportedly in favor of a mosque. He also held that the endowment was bad for uncertainty on
the ground that the mosque and the Madrasa mentioned in the wakf could not be identified and
that TasadukHussain never had any intention to create a wakf.

High Court

The High Court's conclusions were:

(1) That TasadukHussain had created the wakf in question in 1914 and he continued to be the
mutawalli of the same until his death.
(2) The wakf was not a sham or illusory transaction.
(3) It was not bad for uncertainty or vagueness.
(4) It was not bad or void on account of reservation of some benefit in favour of himself and
his wife.

Supreme Court

Appeals Dismissed.

Ratio- The founder of a wakf may constitute himself the first mutawalli and when the founder
and the mutawalli are the same person, no transfer of physical possession is necessary. Nor is it
necessary that the property should be transferred from the name of the donor as owner into his
name as mutawalli. An apparent transaction must be presumed to be real and the onus of proving
the contrary is on the person alleging that the wakf was not intended to be acted upon.

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Punjab Wakf Board v. Shakur Masih

Facts

The admitted facts are that Najaf Khan was the owner of the properties, namely, houses and
shops situated in Jutog. He had executed a will on August 29, 1949 bequeathing all his properties
to his son's mother-in-law, namely, Smt. MusamatKariman. He added a note to the Will on dated
29-9-1949 stating thus:

"After the death of MasomatKariman, my entire property would become wakf and the income
from that would be spent for the maintenance of the Mosque at Jatog. Nobody shall have the
right either to mortgage or sell these properties."

The appellant filed the suit for declaration that it is a wakf properly and the respondent has no
manner of right whatsoever. All the Courts below have concurrently held that the wakf has not
been created by Najaf Khan and, therefore, the will is void and the wakf thereby has not been
created. The question is; whether the view taken by the Courts below including the High Court is
correct in law?

Supreme Court

Appeal Dismissed.

The hon’ble court relied on Chapter XII of the principles of Mohomedan Law, Nineteenth
Edition edited by M. Hidayatullah, former Chief Justice of this Court, it is slated that a wakf
means permanent dedication by a person professing the Mussalman faith of any property for any
purpose recognized by the Mussalman law as religious, pious or charitable. Under Section 174,
the dedication must be permanent. Under Section 176, the subject to wakf must belong to the
wakif, namely, the property dedicated by way of wakf must belong to the wakif (dedicator) at the
time of dedication. Under Section 191, contingent wakf is not valid. It is essential to the validity
of a wakf that the appropriation should not be made to depend on a contingency.

Ratio- that bequest creating a wakf contingent upon the life time of a lady is invalid and therefore
the contingent wakf is not valid as per Section 191 of the principles of Muslim Law

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  Other Judicial Precedents

Ahmed Ariff v. CWT

Wakf means "the tying up of property in the ownership of God, the Almighty and the devotion of
the profits for the benefit of human beings".

BibiSiddique Fatima v. Saiyed Mohammad MahmoodHasan

The ownership of the wakf property has no jural conception with any exactitude and the corpus
is tied down and is made non-alienable. Only the usufruct and the income from the corpus of the
wakf property is available for carrying out the objects of the wakf.

Mohammad Sabir Ali v. Tahir Ali

No formal dedication or use of the word "wakf or an express transfer of the corpus of the
properties to God is necessary for constituting a wakf, the dedication of properties to purposes
recognised by Mohammedan law as religious or charitable may be inferred and that in itself will
give rise to a wakf.

Syed Mohd. SalieLabbai v. Mohd.Hanifa

Following are the essential conditions for creation of a valid wakf dedication for a mosque of
public nature.

(i) The founder must declare his intention to dedicate a property for the purpose of a mosque,

(ii) The founder must divest himself completely from the ownership of the property.

(iii) The founder must make some sort of a separate entrance to the mosque which

may be used by the public to enter the mosque.

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AllahaRakhi v. Shah Md. Abdul Rahim

Creation of a valid wakf leads to simultaneously passing of all rights of property out of the wakf
and its vesting in God Almighty. The person in the administration of the wakf, whether
mutawalli, Sajjadanashin, or mujawar, or known by any other name, is merely a manager of the
wakf. He is not a 'trustee' in the technical sense of the term as understood nor is any property
belonging to the wakf 'vested' in him.

M. A. Namazie Endowment v. CIT

Where reading the relevant clauses of a deed of wakf, it is held that the wakf was created for the
benefit of the wakif s poor relations and, therefore, it is not a wakf created for charitable or
religious purposes eligible for exemption, the enactment of the Wakfs Act, 1954 (29 of 1954)
can have no impact on the character of such wakf for the purposes of the Income Tax Act. Even
the fact of inclusion of such wakf in the list of wakfs published in the Gazette as per the
provisions of that Act would not change the character of such wakf.

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  Conclusion
Critically examining of this project will clearly highlight certain aspects about the institution of
wakf, in the present times. The foremost of these aspects is that wakf is only for religious purpose
and is permanent in nature, it cannot be a temporary institute. Also any gain derived out of a
wakf has to be use for the benefit of the mankind. Though their hasn’t been a great deal of
judicial scrutiny on this topic in the recent times but even in the few cases that have come up the
Courts of the country have passed their decisions keeping these aspects in mind.

It can be unhesitatingly said that the enactment of the Wakf Act, 1954, made a landmark in the
history of wakf administration in India. By constituting unofficial Boards vested with
considerable authority and powers, by imposing a precise obligation upon mutawallis and
making their violation a penal offence, by associating the State Governments in the supervisory
responsibility and by conferring authority on the Central Government to lay down the policies to
be adopted by the Boards, the Act has laid down a sound administrative structure to ensure
proper administration of wakfs in the country. Whatever lacunae or weaknesses existed in the
Act have been removed by the Wakf (Amendment) Act, 1964 and the Act as amended is a very
sound piece of legislation.

Considering their number and resources, wakf can become a strong instrument not only for the
preservation of religious and charitable institutions, but also for the educational and economic
development of the community. Wakfs constitute a national asset for a very large number of
these support schools, colleges, technical institute, libraries, reading-rooms, charitable
dispensaries and Musafirkhanas, etc., which benefit the public irrespective of their religion or
creed. It is of utmost importance, therefore, that wakfs should be maintained properly and their
resources should be utilized for the objects and the purposes of dedications. But unfortunately,
many of the existing wakfs have not escaped the process of decadence brought in by the twin
impact of neglect and misuse.

On a detail study of the topic the writer of the project would like to highlight the problems faced
by the wakf boards which need to be redressed soon.

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Some of them are-

 Grabbing of wakf properties.

 Matters regarding wakf properties pending in courts for several years.
 Lack of proper supervision of wakf land and properties.
 Need to ensure proper possession of wakf properties.
 Further amendment in Wakf Act and legal protection.
 Wakf properties be brought out of the purview of the Rent Control Acts.
 All wakf properties must have boundaries.
 Wakf land be used for the welfare of the people.
 Welfare/Social Welfare and Development institutions or organizations be set up on wakf
land.
 Performance of the wakf board be watched constantly.

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  Bibliography
 Syed Khalid Rashid’s Muslim Law, V.P. Bhartiya, 5th Edition, 2010, Eastern Book
Company
 Muslim Law, A.A.F Fayzee
 Fayzee’s guide to the Judicial Precedents in Mohmedan law. Case laws from India,
Pakistan and Bangladesh, TahirMahmood, Universal Law Company

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