Concept of Waqf under Muslim Law
Authored by - Prachi Ganeriwala
Keywords - Waqf, Muslim Law, Mohammadan Law.
The institution of waqf is a unique feature of the Mohammadan law. To waqf, a property means to dedicate a movable or immovable property in the name of Allah for religious, pious and charitable purposes. The reason that the institution of waqf is of such importance is because it serves a dual purpose. On the one hand, it satisfies human instinct for charity and on the other, it makes a provision for the weaker section of society.
The term waqf originates from the Arabic verb Waqafa, which means to detain, to hold or to tie-up. The term waqf literally means “tying up or detention” and is an important social institution of Islam. It is a permanent dedication of some specific property for the religious and pious purpose by a Muslim. Every Muslim of sound mind may dedicate his property by way of waqf either verbally or in writing. The real intent behind making a waqf is to receive virtue in the eyes of the Lord.
It is pertinent to note that waqf is the unconditional and permanent dedication of properties in the ownership of God, such that the rights of the owner over the property happen to be extinguished. The waqf property becomes non-transferable and hence cannot be sold, gifted or given to charity. It is only managed and the manager simply acts as the custodian of the property.
The Mussalman Waqf Validating Act, 1913 defined waqf as a permanent dedication by a person professing the Mussalman faith of any property, for any purpose recognized by Mussalman law as religious, pious or charitable. This definition was criticized by the Privy Council in Ma Mi and another v. Kallander Ammal by the reason of it being non-exhaustive and its failure to accept it as complete definition representing the true character of the waqf as envisaged by the Islamic scholars. A better definition was provided in Section 3(i) of Waqf Act 1954, whereby, waqf means the “permanent dedication by a person professing Islam of any moveable and immovable property for any purpose recognized by the Muslim Law as pious, religious or charitable.”
The origin of waqf is cloaked in controversy. Joseph Schacht observed that “the origin of the institution of waqf cannot be traced to any single source. It is, as Heffening and Santillana have seen, the result of the combination of several factors and various elements which were intimately fused during the formative period of Muhammadan law” .
According to Ameer Ali,“the principles of the law of pre-emption, with its fine distinctions regarding servitudes. Coparcenaries etc. gave rise to an impression that though foundations of the law were laid in Hijaz, the finishing touches were given in places where foreign conceptions had grown up round purely Saracenic ideas.”
Shibli Nuniani has opined that during the days of Abu Hanifa there did not exist any Arabic translation of the Roman laws, the claim of the orientalists that Islam had borrowed its law from the Roman law is unfounded.
Different scholars had different observations regarding the origin of waqf. The controversy relating to the origin of the waqf can be attributed to the absence of any express commandment in the Holy Quran.
The inherent object behind every waqf is to please Allah and to be bestowed by his blessings. It is because of this reason that a property dedicated to pleasing the ruler or any person does not fall in the category of waqf. The waqf is said to have been created only when a property is dedicated for religious and charitable purposes to get a reward for the hereafter. According to all the Schools of Mohammedan Law, a waqf may be created for the benefit of any person or class of persons, or any object of piety or charity. The purpose for which waqf may be created must be one recognized by the Muslim Law as pious, religious or charitable and may also be created in favour of the settlers' family and descendants.
Essentials of Waqf
According to the Sunni Law (Hanafi School) following are construed as the essentials of a valid waqf:
1. Permanent Dedication of any Property – The dedication of property for waqf must be permanent and the waaqif himself devotes such property for the recognized purpose like religious, charitable or pious.
2. Competency – The dedicator (waaqif) should be a person of sound mind, professing Mussalman faith and must not be minor or lunatic.
3. Object – The third essential of a valid waqf is that the dedication should be for a purpose recognised as religious, pious or charitable under Muslim Law.
According to Shia Law, “waqf is a contract, the fruit or effect of which is to tie up to the original and to have its usufruct free.”
The most authoritative textbook ‘Sharaya-ul-Islam’ sets out four essential conditions required in the subject of waqf. These can be enumerated as follows:
· It must be perpetual.
· It must unconditional andabsolute.
· The possession of the property must be passed on.
· It must be entirely taken out of waaqif, that is to say, that the waaqif should not reserve any right or interest, even the usufruct of the property.
Who can Createa Waqf?
• The person who is constituting waqf out of his properties is called the founder of waqf or waaqif. The person who is dedicating his property must be competent enough to do so, i.e. he should have attained the age of majority and should be of sound mind.
• The person must be a Muslim. The High Courts of Madras and Nagpur have observed that a non-Muslim can also constitute a valid waqf provided that the objective of such waqf must not be against the principles of Islam.
• Any individual who professes the capacity to constitute a waqf but not the right to constitute a waqf cannot constitute a valid waqf. The subject matter of the waqf constituted should be owned by the Waaqif at the time of its creation. Hence, a waqf of any property which is held by a widow in lieu of her unpaid dower cannot be constituted by her because she is not an absolute owner of such property.
• If a pardanashin lady desires to dedicate her property for the creation of waqf then it is the duty of the beneficiary and the mutawalli to prove that woman had exercised her right after fully understanding the nature and consequences of such transaction.
• A person can dedicate his entire property to constitute waqf but in case of testamentary waqf, not more than one-third of the property can be dedicated for such purpose.
Features of Waqf
1. Irrevocability – In India, declaration of waqf is irrevocable.
2. Inalienability – As the waqf property belongs to God, human beings cannot alienate it for their purposes.
3. Perpetuity – A waqf is made for perpetuity and hencewaqf fora limited period is invalid.
4. Pious or charitable use of usufruct – The product and benefits of the waqf property are utilised for such purposes which are recognized as religious, pious or charitable under Muslim Law.
5. Absoluteness – The settlement of the property in waqf is absolute and any conditional or contingent waqf is deemed as void.
Modes of Creation of Waqf
Waqf can be created by the following modes-
1. By an Act Inter Vivos – A waqf under this mode is which is constituted during the lifetime of the waaqif and takes effect from that very time.
2. By Will – It is contradictory to the waqf created by an Act inter vivos, and takes effect after the death of the waaqif.
3. During Death or Illness (marz-ul-maut) – As the gifts are made while the donor is on the death bed, it will operate till the extent of one-third of the property without the prior consent of the heirs.
4. By Immemorial User - Waqf property can be established by way of the immemorial user although the limitation of time also applies to the creation of waqf.
The law of waqf is a crucial branch of Mohammedan Law as it knits there ligious, social, and economic life of Muslims together. Waqf is that property which is created by the waaqif for religious, charitable or pious purposes and is permanent. It is binding in nature and is enforceable by law. If any individual feels that his rights are violated then he may appeal to the Court for justice.
 Joseph Sachacht , "Early Doctrines on wakf of S.Athar Hussain & S. Khalid Rashid; Wakf Laws and Administration in India (2nd 1973) P7  Ameer Ali, "Administration of Wakfs in India: Some suggestions", in Islamic Law in Modem India, ed by T. Mehmood P213  See Furqan Ahmads " Background of the Mussalman Vakf Validating Act, 1913 - Shibili Numain's contribution", Islamic and CLQ Vol 6 (1986) P 191
1. Ahmad Aqil, A Textbook on Mohammedan Law, Central Law Agency, Twenty-Sixth Edition Allahabad-2
2. Tyabji Muslim Law