WAKF:
A Wakf formally
known as Wakf-alal-aulad is
an inalienable religious
endowment in Islamic law,
typically denoting a building or plot of land for Muslim religious
or charitable purposes. The donated assets are
held by a charitable trust. ‘Wakf’
means detention and the detention contemplated is the detention of the property
in the ownership of God. In other words, the property is dedicated to God for
religious or charitable purposes. The Wakif is the person who dedicates the
property. The effect of the dedication is the extinction of his ownership. The
Wakif may appoint himself as the Mutawalli, i.e., manager of the Wakf. This
does not mean that he becomes the owner in the eye of law. The Wakif or
Mutawalli is not the legal owner but only the manager of the property, which is
treated as vested in God according to the Islamic concept of Wakf. That is the
fundamental difference between a Trust under English Law and a Wakf under
Muslim Law. A trustee is he legal owner but a Wakif (Mutawalli) is not the
legal owner.
BENEFICIARIES
The
beneficiaries of the Wakf can be persons and public utilities. The founder can
specify which persons are eligible for benefit (such the founder's family,
entire community, only the poor, travelers). Public utilities such as mosques,
schools, bridges, graveyards and drinking fountains, can be the beneficiaries
of a Wakf. Modern legislation divides the Wakf as "charitable
causes", in which the beneficiaries are the public or the poor) and
"family" Wakf, in which the founder makes the beneficiaries his
relatives. There can also be multiple beneficiaries. For example the founder
may stipulate that half the proceeds o for his family, while the other half go
to the poor.
Valid beneficiaries must satisfy the
following conditions:
§ They must be identifiable. At least
some of the beneficiaries must also exist at the time of the founding of the
Wakf. The Malikis, however, hold that a Wakf may exist for some time without
beneficiaries, whence the proceeds accumulate are given to beneficiaries once
they come into existence. An example of a non-existent beneficiary is an unborn
child.
§ The beneficiaries must not be at war
with the Muslims. Scholars’ stress that non-Muslim citizens of the Islamic
state (dhimmi) can definitely be beneficiaries.
§ The beneficiaries may not use the Wakf
for a purpose in contradiction of Islamic principles.
There is
dispute over whether the founder himself can reserve exclusive rights to use
Wakf. Most scholars agree that once the Wakf is founded, it can't be taken
back.
The Hanafis hold that
the list of beneficiaries include a perpetual element; the Wakf must specify
its beneficiaries in case
TYPES OF WAQF
In
India
Ø
Waqf by User,
Ø
Mashrut-ul-Khidamat,
Ø
Waqf-al-Al-Aulad
- Waqf by user: where any piece of land or portion of a building has been used continuously for any religious or pious purpose the owner had no objection to it or has an intention to allow to continue such practice is called a Waqf by user; example Mosque, Madrasah, etc…
- Mashrut-ul-Khidmat is a Public Waqf where the Waqf has devoted the property for the general benefit of Muslim community
- Waqf-al Al Aulad is that unique feature of Islamic law where a property is made Waqf
for the welfare of the Waqif's own family or his children or children of
his children. It is called Waqf-al A/Aulad or Waqf for progeny.
WAQF AND COOPERATIVE
MOVEMENT: DISTINGUISHED
Islam strongly supports the idea of
mutual help, coordinated effort and efficient management for the sake of common
good. Thus the modern cooperative movement has close affinities with the
Islamic concepts and of course, it (Cooperative movement) can be very useful in
the healthy development of the economy.
However, the Islamic institution Waqf differs from the
cooperative movements. Only the members of the cooperative society are the
beneficiaries. In the Islamic Wafq System the Waqf (Investor) transcends his
personal interests and dedicates his personal property not for himself but for
the welfare of the entire community mostly economically weaker sections of the
society.
On the pattern of cooperative movement various activities can
be introduced in Awqaf and the scope of Awqaf can be extended so as to include
a chain of stores, cottage and major industries, hotels, public transport,
health clinics, industrial training centres and schools etc. For this purpose
the scope of the objects of waqf can be expanded and standard waqf deeds can be
introduced. If this experiment is successfully implemented the high ideals for
which the sacred institution of waqf stands will be fully achieved. This
experiment will be much better and nobler
than that of the corporate movement. If the enterprises as enumerated
above are taken up on behalf of waqf
institutions the spirit of selflessness and an awareness of the benefit of sharing the property with
the have-nots will be generated.
TRUST AND WAQF
DIFFERENTIATED
The Wakf in Islamic law,
which developed in the medieval Islamic world from the 7th to 9th
centuries, bears a notable resemblance to the English trust law. Every waqf
was required to have a waqif (founder), mutawillis (trustee), qadi (judge) and
beneficiaries. Under both a waqf and a trust,
"property is reserved, and its usufruct
appropriated, for the benefit of specific individuals, or for a general charitable purpose; the corpus
becomes inalienable; estates for
life in favor of successive beneficiaries can be created" and
"without regard to the law of inheritance or
the rights of the heirs; and continuity is secured by the successive appointment
of trustees or mutawillis."
The only significant
distinction between the Islamic waqf and English trust was
"the express or implied reversion of the waqf to
charitable purposes when its specific object has ceased to
exist", though this difference only applied to the waqf ahli (Islamic
family trust) rather than the Wakf khairi (devoted to a
charitable purpose from its inception). Another difference was the English
vesting of "legal estate" over the trust property in the trustee,
though the "trustee was still bound to administer that property for the
benefit of the beneficiaries." In this sense, the "role of the
English trustee therefore does not differ significantly from that of the Mutawalli."
The trust law developed
in England at
the time of the Crusades, during the 12th and 13th centuries. The trust was
introduced by Crusaders who may have been influenced by the Wakf institutions
they came across in the Middle East.
There are certain points in which Wakf and Trust differed.
The points are as follows:
TRUST
- No particular motive is necessary.
- The founder may himself be a
beneficiary.
- It may be for a lawful object.
- The property vests in the Trustee.
- A trustee has got larger powers
than a Mutawalli.
- It is not necessary that Trust
may be a perpetual, irrevocable or inalienable.
- It results for the benefit of
the founder when it is incapable of execution and the property has not
been exhausted.
WAQF
- It is generally made with a
pious religious or charitable motive.
- The Waqif cannot reserve any
right to benefit for himself; except to some extent under Hanafi law.
- The object must be recognized
by Muslim law as pious, religious and charitable and in case of family
settlement, the ultimate object must be some benefit to mankind.
- The property vests in God.
- A Mutawalli is not a manager
or Superintendent.
- A Waqf is perpetual,
irrevocable and inalienable.
- The "Cy-pres"
doctrine is applied and the property may be applied to some other objects.
Thus, the Islamic law of waqf differed
substantially from the English law of Trusts. Probably this was the reason
apart from religious bias, which persuaded English Courts to pronounce judgments
contradictory to or in violation of the Islamic rules of law. Since the English
Courts in British India followed the English
law, this bent of mind ulminated in the most revolutionary and controversial
judgment which came in direct conflict with Islamic law of waqf in the year
1894. Under the Islamic law, a waqf could be created not only for public charity
but also for the purpose of benefit to one's own family which is
called
Waqf-al Al-Aulad, whereas the English law knew only of public charity. Thus
their Lordships of Privy Council deciding the case of Abul Fatah Mohammad Ishak Vs. Russamoy Dhur Chowdhry held that, if
the primary object of the waqf was the aggrandizement of the family and the
gift to charity was illusory whether from its small amount or from its
uncertainty and remoteness, the Wakf, for the benefit of the family was invalid
and, thus, has no effect. This decision caused a great furore in the Muslim community
as this pronouncement, particularly, paralyzed the power of a Muslim to make a
settlement in favor of his family, children and descendants and what is
recognized by Islamic law of Waqf al
Al-Aulad.
DIFFERENCE BETWEEN
HANAFI AND SHIA LAW:
The
following points of difference between the Hanafi and Shia Law in egard to the
Law of Wakf are noteworthy:
- Creation of Wakf:- Under the
Hanafi Law a Wakf may be created by a mere declaration of intention to do
so. The Shia Law requires, in addition, transfer of possession to the
Mutawalli except when the Wakif appoints himself the first Mutawalli
(Manager of the Wakf): Avadi Begum v.
Kaniz Zainab[1]
- Reservation of Life Interest
for Wakif:- A Hanafi Muslim may reserve for himself a life
interest for his own maintenance and support during his lifetime. Under
Shia Law this cannot be done. Among Shias, a Wakf reserving a benefit to
the Wakif from out of the income of the Wakf is void. A Shia Mohammedan
can create a Wakf-alal-aulad so long as he does not reserve for himself
personally any interest out of income, i.e., he can provide for his
children and descendants but not for himself.
- Provision for Payment of debts
of Wakif:- A Hanafi Muslim may direct that the usufruct of
the Wakf property should be used for paying his personal debts. This
cannot be done by a Shia Mohammedan. If the debt is not a personal debt,
but is in the form of a mortgage over property, the mortgaged property may
be the subject matter of a Wakf, whether the mortgagor is a Hanafi or a
Shia. This is because the debts in question in such cases are not mere
unsecured debts.
DIFFERENCE BETWEEN
PRIVATE WAKF AND PUBLIC WAKF:
A public Wakf is a trust fo public
religious or charitable purposes. A private Wakf is one for the benefit of the
family and descendants of the settler. At one time it was thought that a
private Wakf was always invalid. This view is wrong. If the Wakf is for the
benefit of a settlor’s family and also substantially in favour of charity, it
is valid. But if the gift to charity is illusory, it would not e valid. The
privy council held that a Wakf for the family members though coupled with a
gift to charity on the failue of the line of descendants is not one
substantially for charity and so was invalid. Abdul Fata Mahomed v. Russomoy[2].
But this has been statutorily superseded by the Mussalman Wakf Validating
Act, 1913.
THE RELEVANT SECTIONS
OF THE CODE OF CIVIL PROCEDURE, 1908
Although sections 92 and 93 of the
Civil Procedure Code of 1908 specifically refer to Public charity they,
however, did not successfully apply to Muslim Wakfs with all its derivative
forms. However, they were applicable to Muslim Wakfs also in as much as they
contained public purposes within the meaning of section 92. If the relief
mentioned in the section are claimed with reference to a Wakf property or its
trustee (in Islamic law, Mutawalli), the section does apply.
Section 92 of he Civil Procedure Code
1908, dealing with "Public Charities" gave crucial power to the
Advocate General, or two or more persons having an interest in the trust, with
the prior consent of the Advocate General, to invoke the Principal Civil Court
of original jurisdiction in the case of any alleged breach of any trust created
for public purposes of a charitable or religious nature. In such cases, the
direction of the court could be obtained for the purposes of:
a) removing a trustee;
b) appointing a new trustee;
c) vesting any property in a trustee; directing
a trustee who has been removed or a person who has ceased to be a trustee, to
deliver possession of any trust property in his possession to the person
entitled to the possession of such property;
d) directing accounts and enquiries;
e) declaring what proportion of the trust
property or the interest therein shall be allocated to any particular object of
the trust;
f) authorizing the whole or any part of the
trust property to be left, sold, mortgaged or exchanged;
g) setting a scheme or in general; and
h) granting such orders as the circumstances of
the case may demand.
While the Advocate General was empowered to invoke court
under sections 91 and 92 of Civil Procedure Code, within the presidency towns,
in the muffasils, the same power under section 93 of Civil Procedure Code with
the previous sanction of the State Government, was exercised also by the
Collector or by such Officer as the State Government may appoint in this
behalf.
THE MUSSALMAN WAQF
VALIDATING ACT, 1913
To allay the apprenhensions of the Mussalmans who were
agitated by the Privy Council decision in Russomoy’s case, the Mussulman Wakf
Validating Act, 1913, was passed. It came into force from 7-3-1913 but was
given retrospective effect by the Mussulman Wakf Validating Act of 1913. By
giving retrospective effect even Wakfs created prior to 7-3-1913 would be saved
by this legislation.
This Act defines Wakf as he permanent dedication by a
Mohammedan of any property for purposes recognized by the Mohammedan Law as
religious, pious and charitable[3].
A wakf may be created for the maintenance and support of the settlor’s family,
children or descendants provided the ultimate benefit is reserved for
religious, pious or charitable purposes[4].
Section 4 expressly supersedes Russomoy’s decision by providing that “No such
Wakf shall be deemed to be invalid merely because the benefit reserved therein
for the poor, or other religious, pious or charitable purpose of a permanent
nature is postponed until after the extinction of the family, children or
descendants of the person creating the Wakf”.
The ultimate gift to charity may be express or implied. It
cannot be implied by the mere use of the word ‘Wakf’[5].
In Tamilnadu Wakf Board
v. Ebrahim Musuee, Mutawalli[6],
the question arose whether a Wakf-alal-aulad with no dedication in presenti
for any religious or charitable purpose recognized as such by Muslim Law is
within the jurisdiction of the Wakf Board set up by the Wakf Act. The Wakf Act
defines a Wakf as including “Wakf-alal-aulad to the extent to which the
property is dedicated for any purpose recognized by the Muslim Law as pious,
religious or charitable,” Ismail, J., held that the expression ‘Muslim Law’ in
this context means only ‘Muslim Law’ as interpreted by the Privy Council in Abdul Fata v. Russomoy[7], though
that interpretation was at variance with the orthodox Muslim Law. So he
concluded that a family Wakf where the family is the exclusive beneficiary
while it existed is not a Wakf recognized by the Muslim Law as pious, religious
or charitable. Hence, the Wakf Board had no jurisdiction to protect the
property against improper alienation by the Mutawalli (in collusion with the
beneficiaries) to defeat the ultimate gift to charity on extinction of the
family of the author of the Wakf. It is respectfully submitted that the
ultimate gift to charity is sufficient to give a locus standi to the Wakf Board to protect the property from
improper alienation by the Mutawalli.
LAWS RELATING TO WAQF ADMINISTRATION
Since 1913, a good number of Acts have
been passed both by Central and State Legislatures to regulate administration
of waqfs, a brief introduction of these Acts is being furnished hereunder:
THE OFFICIAL TRUSTEES
ACT, 1913
By virtue of section 4 of the Official Trustees
Act, 1913, certain persons specified therein, could be appointed as trustee by
any person intending to create a waqf for a purpose other than the religious
purpose.
It covered in its scope waqfs created
mainly for charitable purposes. The trustees of any such trust, except
religious ones, and all beneficiaries of the trust could transfer their charge
to the official trustee with his consent.
THE CHARITABLE AND
RELIGIOUS TRUSTS ACT, 1920
This Act provided more purposeful
control over the administration of charitable and religious trusts. Although
this Act did not provide for any administrative machinery to exercise
supervision over the waqfs, any interested person could apply to the court of
the District Judge to seek information, from the trustee regarding value,
condition, management, nature and object of waqf. The court direction could be
obtained to get the accounts examined and audited. However, this Act applied
only to waqfs created for public charity, and in particular, it did not apply
to private waqfs.
THE MUSSALMAN WAQF ACT,
1923
In 1923, the Mussalman Waqf Act was passed
requiring mutawalli or every waqf, except of a waqf -al A/Aulad, to furnish to
the court of the District Judge, a statement giving information regarding
description of the property, gross annual income, gross income accumulated
during previous five years, amount payable as revenue, or rents, annual
estimate or expenditure incurred, etc. This Act did ensure auditing of the
accounts of mutawallis, but resulted in causing heavy burden of work of Civil
Courts. Since no separate administrative machinery was contemplated for the
supervision of Waqf administration, the Act could not help improving waqf
administration.
THE HYDERABAD
H.E.H. the Nizam of Hyderabad promulgated
a Regulation known as Hyderabad Endowment Regulations under which a Nazim
Umoor-e-Mazhabi i.e., Director Ecclesiastical Department was appointed to
supervise waqf administration on behalf of the Government. These Regulations,
though brief, provided for every important aspect of the waqf administration in
the erstwhile Hyderabad Government. It contained sixteen sections and provided
for registration of waqf properties, maintenance of "Kitab-ul-Awqaf "
(Waqf register) in the prescribed manner by the Director Ecclesiastical
Department.
The unique feature of the Hyderabad
Endowment Regulations was its secular character which provided for Registration
and the supervision of not only the Hindu and the Muslim Waqfs but endowments
of all religions. Therefore, the rules made under these Regulations were very
exhaustive numbering about 525.
The Regulations also laid down
procedure for administration of waqf property (S.12), Section 13, dealing with
the duties of the mutawalli, imposed heavy obligation on him, just in two
sentences that "it shall be the duty of the mutawalli to manage the waqf property
in accordance with terms and conditions as if it were his own property".
And in this regard the rights of the mutawalli as per the conditions of waqf
would be same as are given legally to any trustee.
Section 14 of the
Hyderabad Endowments Regulations was a crucial one
providing
for restoring/obtaining the possession of a waqf property (duly registered with
the Registrar of the Ecclesiastical Department) by the First Class Magistrate
in the same manner. The order of Director of Ecclesiastical Department was to
be executed as if it was a decree issued under the relevant provision of law
relating to execution of a court decree. The miscellaneous provisions relating
to the power/procedures of the Ecclesiastical Department, appeals and
supervision were provided under section 15 to 18. However, in pursuance of
Andhra Pradesh Adaptation of laws Order (1 of 1957) the Hyderabad Endowment
Regulations ceased to apply to Muslim Waqfs with effect from the commencement
of the Waqf Act of 1954.
ANOTHER SPADE OF WAQF
LAWS
Despite several statutory efforts to
improve Waqf Administration in India
- United Provinces Muslim Wakf
Act 1936.
Most of the above Acts were repealed and replaced by the
Central Wakf Act, 1954, except the State of West Bengal
where the Bengal Wakf Act, 1934 was applicable, the State of Utter Pradesh Kutch region. In the rest of the areas
of these States, the Bombay Public Trust Act, 1950 was applicable. Thus, there
were two systems of Wakf administration in the same states.
CONCLUSION
The concept of Wakf is rooted to
the Quranic injunctions, which deal with charity. The followers of Islam
transformed this concept of charity into an institution known as Wakf that
formed the "most important branch of Muslim Law for it is interwoven with
the entire religious life and social economy of the Muslims. Propagation and
expansion of Islam for its domination over all the other faiths are known to be
the basic duty of every Muslim whose ultimate aim of life is to derive divine
pleasure after the day of Judgment. Wakf is one of the pious means to achieve
this goal. Literally, the Wakf means endowment of moveable or immovable
property dedicated to God by the Muslims for the welfare of needy and poor
people. The Wakif (settler) in his deed appoints Mutawalli (Manager) for the
administration of the Wakf. The Wakif is having the right either to appoint
himself or any Muslim as Mutawalli.
Theologically, once the properties
are dedicated in the name of Allah (God) and endowed to Wakf they are
perpetual, irrevocable and inalienable and thereby once a Wakf it always
remains a Wakf. ''Wakf is a permanent dedication by a Muslim of any moveable or
immovable property for any purpose recognized by Muslim Law as pious, religious
or charitable. The institution of Wakf emerged during the formative period of
Islamic Law. Its history in India
BIBLIOGRAPHY
Ë Net Sources:
§
www.unhabitat.org
§
www.proz.com
§
en.wikipedia.org
§
arc.gov.in
§
www.turkishculture.org
Ë Books referred:
§ Family
Law in India
9th
edition; Published by: S.Gogia & Co.
Ë Statutes referred:
§ The
Mussalman Wakf Validating Act, 1913
§ The
Code of Civil Procedure, 1908
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