WAKF

One and a half thousand years ago, long before the birth of the doctrine of uses and trusts in English Law, Islamic Law recognized and developed a legal expedient under the name of wakf, which permitted an owner to settle his property for the use of beneficiaries in perpetuity.

The doctrine of Wakf which is "interwoven with the entire religious life and social economy of Muslims has laid down the foundations of one of the most important institutions of the community. In India alone there are more than a lakh wakfs valued at more than a hundred crore [1 crore = 10 million rupees] of rupees. An extensive survey of wakf properties throughout the country is nearing completion. There is reason to believe that wakf property valuing another fifty crores would be traced.

Considering their number and resources, [a] 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 utilised 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.

The subject [of] "Wakf" is relat[ive] to Entry No. 10 "Trust and trustees" and No. 28 "Charities and charitable institutions, charitable and religious endowments and religious institutions" in the concurrent list attached to the 7th Schedule to the Constitution of India. Supervision over the administration of wakfs is, therefore, the responsibility of both the Central and State Governments.

Article 26 of the Constitution gives freedom to every religious denomination to establish and maintain its religious and charitable institutions subject to public order, morality and health. They are also allowed the right to administer the properties of these institutions in accordance with the law. In other words, the right of administration is left to the institutions themselves. Subject of course, to such regulations as the law might choose to impose. But a law which takes the whole right of administration is null and void. The regulatory laws assume their importance out of the fact that in [the] case of public trusts and endowments, some amount of control or supervision over their administration is necessary in the interest of the public as a whole. Such laws are valid insofar as they do not interfere with the internal matters of the institutions. 

The State cannot, however, interfere in the establishment or maintenance of religious and charitable institutions" or in the management of religious affairs. The various religious denominations or sects are allowed to manage them in accordance with the tenets of their religions. The only interference possible is on grounds of public order, health and morality.

Origin History and Development 

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 have 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) 

"Ye shall never attain to goodness till ye give alms of that which ye love, and whatever ye give, of a truth, God knoweth." (Surah 3, Ver. 92). 

"It is not righteousness that ye turn your faces to the East and the West; but righeous is he who believeth in Allah and the Last day and the angels and the Scripture and the Prophets, and giveth his wealth, for love of Him, to kinsfolk and to orphans and the needy and the wayfarer and to those who ask, and to set slaves free; and observeth proper worship and payeth the poor-due (i.e, zakat). And those who keep their treaty when they make one, and the patient in tribulation and adversity and time of stress. Such are they who are sincere. Such are the God-fearing." (Q. 2:177) 

In a tradition narrated by Anas bin Malik, [it] is stated that the Prophet wished to purchase gardens from the Banu Najjar in order to build a mosque; [but] they refused to take the purchase money and gave the land for sake of God.

Mamal-el-Din el Siwasi (died, 861 A.H.), the author of Fath-ul-Kadir, also traces the origin of wakf to the Prophet himself who is reported to have declared that all human actions end with the life of the individual, except such benefactions as are perpetual in their character; and that in accordance with these principles, trusts or dedications were frequent in the lifetime of the Prophet and the early centuries of Islam. He also gives a list of wakf, created by the Prophet himself and his companies.

A third tradition of Aans bin Malik concerns a family endowment. In keeping with the pronouncement in Surah 111, 86, Abu Talha gave the Prophet his favourite piece of ground, the Bairuha garden in Medina. The Prophet, however, gave it back to him with the observation that he should make it an endowment for his relatives. Abu Talha gave the garden as a sadaka for Ubaiy and Hassan.

The origin of wakf is to be sought, says Heffening, in the strongly marked impulse to charitable deeds which is characteristic of Islam. The institution, however. began to develop in the first century A.H. and assumed rigid legal form in the second century. Hetfening feels that some foreign influence might have also worked on the development of the institution. 

Henry Cattan does not agree with this view and says that the institution of wakf has developed with Islam and there is no evidence that such a complex system of appropriating usufruct as a life interest to varying and successive classes of beneficiaries existed prior to Islam. Although the separation of ownership from the usufruct was not a new legal concept, the settlement of usufruct of property on successive generations in perpetuity for an immediate or ultimate charitable purpose, is an institution developed by the jurists during the first three centuries of Islam."

He further states that "the close resemblance between [a] trust and [a] wakf, naturally leads to an enquiry as to whether the English trust was derived from the Islamic wakf. There is no doubt that wakf is the earlier of the two institutions. The legal theory of wakf was developed during the eighth and ninth centuries and there are wakf, today that were established more than one thousand years ago. The origin of English trusts or uses, as they were first called, is of a later date, i.e. the thirteenth century ... It seems reasonable to suggest that the early English uses may have been derived from the Islamic system of wakf."

Family endowments are almost as old as those for the public good. The earliest example is a wakf document in which Shafi’i makes his house in Fustat wakf for his descendants.

Joseph Schacht in his paper 'Early Doctrines on Wakf" says:

"The origin of the institution of wakfs cannot be traced to any single source. It is, as Heffening and Santillana have seen, the result of [a] combination of several factors and various elements which were intimately fused during the formative period of Muhammadan Law."

A study of the early doctrines relating to wakf throws light on the development of its theory. The main sources for the early doctrines are the Mudauwana of Salmon (d. 240) in which he has collected the opinions of Malik (d. 179), of Ibn Qasim (d. 191) and of other early authorities of Medina; the Kitab Ahkam-al-Wakf by Hilal (d. 125), which contains authentic information on the doctrines of Abu Hanifa (d. 150), Abu Yusuf (d. 182) and other early Iraqi authorities: the Kitab-al-Siyar-el-Kabir of Shaibani (d, 189). The latter deals mainly with the law of war but it also deals with an important aspect of wakf. 

The fourth is Kitab-al-Umm of Shafi’i (d. 204). In the doctrine of Malik as expounded in the Madauwana, contributions to the holy war, and habs fi sabil-al Allah, take an important place and both movable and immovable property could be dedicated. Shaibani also deals at length with contributions to the holy war in his Kitab-al-Siyar-el-Kabir.

Hilal in his Kitab ahkam-al-wakf says that Sadaqa Mauqufa (wakf) of animals, merchandise and garments is not valid except of houses, mules, or weapons made Sadaqa Mauqufa fi sabil-Allah and that wakfs of houses and land only is valid. Exclusion of movable represents the Hanafi doctrine of his time.

In Shafi’i's doctrine too, this ancient kind of wakf or habs has left its traces. He distinguishes between the ordinary wakf which according to him is permanent, its use or profit only being devoted to the purpose for which the wakf has been created and the consumable contribution to the holy war.

The ancient Medinese doctrine, which has survived in the Maliki School, recognises a temporary habs in favour of a determined person or persons after whose death it reverts to the original owner or his heirs. The reversible habs or sadaqa was called mauquf from Rabia onwards. In Rabia's archaic doctrine and terminology, a sadaqa mauqufa or a habs mauquf is a charity which reverts to the original owner or his heirs after the limited beneficiaries have of died out. The term mauquf did not, till then, express the later concept of wakf.

The term mauquf acquired its later meaning as [a] consequence of doctrinal development. On [the] one hand, the term mauquf was transferred (or perhaps extended) to charities in favour of undetermined groups of beneficiaries, as in the doctrine of anonymous scholars; on the other [hand], the doctrine gradually prevailed that such a charity should revert to the original owner not as a full property to be inherited by his heir. but only as a habs, that is to say, in usufruct, to be transmitted to his next of kin, or that, even as a habs it should not revert to the original owner at all but only to his next of kin.

Shafi’i used the expressions sadaqa muharrama mauqufa and sadaqa muharrama and in his time also mauquf had not acquired the normal attribute of the kind of charity which later became known as wakf. Hilal states that the people and judges of Basra have always insisted that every wakf must finally go to the poor and that some lawyers demand that the poor should be explicitly mentioned as [the] ultimate beneficiaries of each wakf and do not consider it sufficient that this ultimate destination be implied by the term sadaqa lillahi, etc. This remark refers to the Hanafis who took the ultimate reversion of every wakf to the poor for granted and contented themselves with an implicit allusion to the final purpose.

Abu Hanifa considered a wakf to be invalid if it was not made under a legacy and therefore subject to the limit of one-third of the estate and revocable by the benefactor during his lifetime. He also held that for wakf to be valid and systematically feasible, the ownership must be transferred to some one other than the owner and a transfer to the indeterminate body of the poor could not be envisaged. He, however, recognised wakf in favour of one's own relatives or to one's poor neighbours.

Malik's doctrine is essentially similar, except that he recognises the taking of possession on behalf of the poor by an appointed administrator, whereas according to Abu Hanifa, the presence of the poor as ultimate beneficiaries invalidates even a wakf that can be handed over to a determined first beneficiary. The doctrine of Ibn Abi-Laila, a Qazi of Kufa and contemporary of Abu Hanifa, is similar to that of
Malik. If a man makes a Sadaqa mauqufa and makes the poor the ultimate beneficiaries, and does not hand it over to an administrator but makes himself one of the administrators it is null and void, 'batil.' It is revocable and he can sell it as part of his estate.

Abu Yusuf, the famous disciple of Abu Hanifa, differed from the latter and his views came to prevail among the later jurists.

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

Summarising the various points of difference among different jurists, it may be observed that according to Abu Hanifa, the ownership of a wakf vests in the wakif, while his disciples, Abu Yusuf and Imam Muhammad, contend that it abates in favour of God. The disciples are supported by Shafi'i. The Shi'ites, on the other hand, hold that ownership of wakf vests in beneficiaries. On the question of revocability, Abu Hanifa says that a wakf is revocable unless confirmed by a court decree or is testamentary. Imam Muhammad maintains that once possession of wakf property has been given to the mutawalli, it is irrevocable; Shi'ites hold it revocable unless possession is transferred either to the beneficiaries or mutawalli. According to Abu Yusuf, who is supported by Malik, Shafi'i and Hanbal, mere declaration is enough to make a wakf irrevocable. As to the legal incident of perpetuity, Abu Hanifa feels that an express mention of perpetuity is essential to complete a wakf. He is supported by Imam Muhammad, but not [by] Abu Yusuf who presumes [the] wakf to be perpetual. In the event of failure of [the] object of wakf or [the] object being such that it may fail, the wakf is void according to Abu Hanifa and Imam Muhammad, but it goes to [the] poor according to Abu Yusuf. The Shi’ite [view] and Imam Muhammad agree that a wakf cannot himself be a beneficiary, but [a] contrary view has been taken by Abu Yusuf. Once the wakf has been created, and no mutawalli has been appointed, the beneficiaries would act as mutawalli, except in [the] case of [the] wakf of general utility, where the appointment of a mutawalli is necessary. This is the Shi’ite view. 

Whereas Imam Muhammad declares a wakf without mutawalli to be void, Abu Yusuf considers the wakf to be mutawalli under such a situation. According to Abu Yusuf, if the power to remove mutawalli has not been expressly reserved, it is presumed to be so vested in the wakf. Imam Muhammad, however, is not ready to presume the vesting of such a power. The jurists of Bukhara agree with Imam Muhammad, while those of Balkh adopt the view of Abu Yusuf. There are scores of other differences which will be mentioned at their appropriate places.

Under the doctrines finally evolved under Hanafi School, the conditions required for the validity of a wakf are:

a) the wakf must posses the requisite capacity to dedicate the property;
(b) the property to be made wakf must be tangible. It can be movable or immovable;
(c) the property must be declared wakf by the owner.  No particular form is necessary and the declaration may be either oral or written. Declaration is sufficient and delivery of possession[s] to the mutawalli is not an essential condition of validity;
(d) the dedication must be irrevocable, unconditional and permanent
(e) the object of the wakf must be charitable in the general sense, capable of gaining favour (sawab) with the Almighty. The charitable purpose of the wakf serves as its legal justification and constitutes the basic condition of its validity. Wakf has been variously defined by different writers on Muhammadan Law. Mr. Justice Ameer Ali in his "Muhammadan Law" says that wakf literally means detention, stopping or tying up. Whereas Wilson looks at it as `…specified property … permanently devoted to specific objects ... such a permanent dedication is termed wakf". Mulls has adopted the definition of wakf as contained in the Mussalman Wakf Validating Act, 1913. According to this definition, "Wakf means the permanent dedication by a person professing the Mussalman faith of any purpose recognized by the Mussalman Law as religious, pious or charitable." 

The Privy Council, however, has held that the above definition is for the purposes of the Act and [is] not necessarily exhaustive. Hence it is necessary, says Fyzee, to consider briefly the three dominant characteristics of a wakf. 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. Secondly, it is a permanent endowment; a pious gift. which is not a permanent foundation, maybe a Sadaqa, but cannot in law be turned [into] a wakf.

And lastly, the usufruct is to be utilised for the good of mankind. The definition given in Wakf Act [of] 1954, is more elaborate: 

‘Waqf' means a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim Law as pious or charitable and includes:

(i) wakf by [the] user,
(ii) mashrut-ul-khidmat; and
(iii) a wakf-alal-aulad to the extent to which property is dedicated for any purpose recognised by Muslim Law as pious, religious or charitable."

Though the Wakf Act, 1954, has laid down that the wakif must be a Muslim, this has been primarily done with a view to exclude charitable and pious institutions set up by non-Muslims from the purview of the Wakf Act. But for the inclusion of the words, "professing Islam" in the definition of wakf, these institutions would have also come under the purview of the Act, for the Muhammadan Law regards such a purpose as pious or charitable.

For the constitution of a wakf or dedication of any property, Islam is not a necessary condition. Any person of whatever creed may create a wakf, but the law requires that the object for which the dedication is made must be valid according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being essential element in the constitution of wakf, if the object for which a dedication is made is sinful, either according to the Law of Islam or to the creed of dedicator, it would not be valid. Consequently, a Muslim cannot make a dedication in favour of an idol, or a non-Muslim place of worship, or any other object which is recognised as unlawful or sinful in his law, nor can a non-Muslim validly make a dedication or a Muslim place of worship.

Existence of Wakfs During Muslim Rule in India

The earliest descriptions of wakf in India are found in a rare book, Insba-i-Mahru written by Aynul Mulk Mulltani, who is described by Barni as one of the officers of Jalaluddin Firoz Khilji (1290-1296). The author of the book says that Sultan Muizuddin Sam Ghaor (who reached his zenith of power during 1195-95 A.D.) dedicated two villages in favour of Jama Masjid Multan, and, handed its administration to the Shaikhul Islam (highest ecclesiastical officer of the Empire). After the establishment of the Delhi Sultanate in 1206 A.D. many more wakfs were created. 

A description by Ibn Batista affords interesting evidence as to the mode of administration and discretionary powers of the Mutawallis during the Sultanate period. Ibn Batuta himself was appointed the Mutawalli of the wakf in favour of the tomb of Sultan Quib-ud-Din. Describing the wakf in favour of the tomb of Sultan Qutb-ud-Din he says:

“As for me, the Sultan (Muhammad bin Tughlaq) ordered that I should supervise the tomb of Sultan Qutbud-Din... I said, “As for the tomb of Sultan Qutb-ud-Din, I have enrolled these four hundred and sixty persons, but the revenue of its wakfs does not come up to the amount of their salaries, nor does it suffice to feed them.” 

“Pinjah hazar (fifty thousand)” and added “La bud Ink mann ghalla bideh (give him one hundred thousand maunds of cereals, namely wheat and rice) which he may consume this year, till the land of the tomb produces its own.",

"It is a custom among Kings, while they are on the throne, to appropriate villages and lands to religious men in order to provide means for the maintenance and repairs of their (sic) tombs. But these endowments (wakfs) had been destroyed, and the grantees being divested of them, were reduced to distress ... Sultan Alauddin carefully repaired all the tombs and restored the lands and villages after bringing into cultivation such as had been laid waste."

Implications of the Wakf Act, 1954

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.

Definitions of wakf and beneficiary

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 recognised 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.

As has been shown before, 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 recognised 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 dedication[s] 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. Mirza Hossani, it has been held that land used for Masjid[s] 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.

The definition of [a] wakf given in the Wakf Act, 1954 is more exhaustive as compared with the definition of this term in the U.P. Wakf Act. 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.

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 such restrictions.

In Zain Yar 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. (Zain Yar lung v. Director of Endowments, AIR 1963 SC 985). 

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 th[is] ruling tend[ed] 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."

The scope of the definition of 'Wakf’ in the U.P. Act, is much curtailed by the definition of the term beneficiary which is confined only to [the] Muslim community". So a wakf by a non-Muslim in U.P. has to be for the benefit of the “Muslim community".

Assumption of direct management

A very useful provison regarding the assumption of direct management of wakf by the Board is contained in the Central Act, which provides that the Board may assume direct management of the wakf for such period or periods not exceeding [an] aggregate [of] five years, as may be deemed necessary in the following cases:

(i) Where a vacancy in the office of the Mutawalli exists but no suitable person is available to be appointed under the terms of [the] deed of the wakf, or
(ii) Where the right of any person to act as [a] Mutawalli is disputed, or
(iii) Where a committee managing a wakf has exceeded or abused its powers or has failed in performing its duties (Section 43-A read with Sections 42 and 43 (2)].

The U. P. Act gives the Board very limited power [in] assuming the direct management of a wakf. According to it, whenever the supervision or management of [the] wakf is vested in any committee appointed by the wakf or any competent court or authority, and such committee is not, in the opinion of the Board, functioning "properly and satisfactorily", it may either supersede it and appoint a fresh committee or may assume direct management of the wakf.

Recovery of wakf properties illegally transferred

The Central Act expressly debars Mutawallis from transferring in any way immovable wakf property without the previous sanction of the Board (Sec. 36-A). [If] a Mutawalli defies this rule, the Board may send a requisition to the Collector within whose jurisdiction the property is situate[d] to obtain and deliver possession of the property to it. On receipt of such a requisition, the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order. Any person aggrieved by the order of the Collector may within a period of thirty days prefer an appeal to the District Court within whose jurisdiction the property is situate[d].

Removal of Mutawallis

The provisions regarding removal of [the] Mutawalli as contained in the Central Act are as follows:

(i) That no Mutawalli can be removed unless [three-quarters] of the total members of the Board support the move (Sec. 43 (4) );
(ii) That for the purposes cf taking possession of wakf property from the person removed from Mutawalliship, the order of the Board is deemed to be a decree of a Civil Court and shall be executed by the Civil Court as if it has passed the decree; and
(iii) That the Mutawalli aggrieved by the Board's decision can appeal to the State Government within one month from the date of receipt by him of the order;
(iv) That a Mutawalli so removed is not eligible for re-appointment as a Mutawalli of [the] wakf for a period of five years from the date of such removal [Sec, 43 (4), (5) and (6)].

Although the U.P. Act is equally elaborate in laying down various grounds for the removal of Mutawallis and gives ninety-days to file an appeal to the Tribunal against such a removal (Section 55), yet it neither prescribes any specific majority by which the Board may take such a decision, nor does it lay down any period for which the Mutawalli [who has been]  removed from his office may not be eligible for re-appointment to the same office. There was also no procedure in the U.P. Act as it exists in the Central Act, for obtaining possession of wakf property from a person who has been removed from his office. This has been provided [for] by an amendment.

Mutawalli and Wakf Accounts

A Mutawalli of a wakf should every year prepare and submit a budget to the Board for approval for the next financial year showing the estimated receipts and expenditures in respect of the wakf during that financial year. The budget should be prepared in the form prescribed by the Wakf Board in the regulations made by them under Section 68 of the Central Act and the by-laws framed under Section 79 of the U. P. Act.

It is the duty of every Mutawalli to keep [a] regular account of the money received and expended by him. He should furnish to the Board before the first day of May every year a full and true statement of accounts in the form prescribed by the Board showing [the] particulars of money received and expended during the period of twelve months ending on the 31st day of March. 

The accounts submitted by the Mutawalli will be audited and examined by an auditor appointed by the Board. Failure on the part of a Mutawalli to furnish the budget and statement of accounts is [penalized] under Section 41 of the Central Act and Section 54 of the U. P. Act. The Mutawallis should deposit the money in their possession in the State Bank or in any scheduled bank or in the postal savings bank.

A Mutawalli of a wakf is supposed to administer the wakf property and its income in the same way as a prudent man would deal with his own property. He is required to be always vigilant because in the case of wakf properties, he is managing a property which has been vested in God. He should remember all the time that the intention of the wakf in dedicating the property was to get "Sawab" and any negligence, carelessness or misuse on his part is a great sin under Islamic Law. 

If on account of neglect or misconduct or irregular, illegal or improper expenditure, a loss is caused to the wakf, the Mutawalli is liable to make good the loss under Section 33 of the Central Act and Section 53 of U.P. Act. No Mutawalli is competent to sell or mortgage or exchange wakf properties or to sanction leases thereof for more than three years in [the] case of agricultural land and for more than one year in case of non-agricultural land. According to clause (1) of sub-section (2) of Section 15 of the Central Act, only the Wakf Boards are competent to do go.

It is among the functions of the Wakf Board to give directions to Mutawallis in the following specified cases:

(i) for the administration of wakfs,
(ii) in what manner the surplus income of a wakf, the objects of which are not evident from any written deed or the objects for which it was created have ceased to exist or have become inoperative, should be utilised. Under Section 36 of the Wakf Act, it is the duty of the Mutawalli to carry out the directions of the Board. Failure to comply with these directions is made penal under Section 41 of the Act.

Under Section 36 of the Act, it is the duty of the Mutawalli to furnish returns, statistics, accounts and other information called by the Board. Failure to do so is made penal under Section 41 of the Act. The Wakf Board is empowered to settle schemes for management of a wakf having no scheme. No such sett!ement is, however, to be made without giving the parties affected an opportunity of being heard. Any person interested in the wakf or affected by such settlement may institute a suit in a court of competent jurisdiction for setting aside such settlement and the decision of the Civil Court thereon shall be final.

The Board has also power under Section 42 of the Act to appoint when there is vacancy in the Office of the Mutawalli or when the right of any person to act as a Mutawalli is disputed, any person to act as a Mutawalli for such period and on such conditions as it may think fit.

The Madras High Court has held that under Section 43 of the Wakf Act, the Board has jurisdiction to enquire into allegations, if made against some Mutawalli, for his removal. The Mutawalli could not defend himself under the shelter of Article 226 of the Constitution, the application for which is premature, unless the Board enquires into allegations and gives its decision. More or less similar functions are discharged by the Board under Section 19 of the U.P. Act.

Institution of Certain Suits

The Wakf Act, 1954, contains provisions in Sections 55 to 57 for filing of suits relating to wakfs. The corresponding provisions in the U. P. Act are Sections 64-66. As stated before, the previous consent in writing of the Board is necessary for instituting a suit for obtaining any of the remedies mentioned in Section 92 of the Code of Civil Procedure (Section 14 of the Religious Endowment Act, 1863, having been omitted by the Wakf Amendment Act, 1964).

Section 59 of the Wakf Act

In proceedings under Section 145, Cr. P. C., regarding wakf properties in Mysore State, to which Section 59 applies, the Mysore Wakf Board as a party vitally interested in the unkeep, management and functioning of the wakf, has a right under Section 59 to appear, and in case it desires, to be impleaded as a party. The Board can approach the court during the pendency of those proceedings to be made a party thereto. Similar provisions are contained in Section 67 of the U. P. Act.

Registration of Wakf Properties

Chapter IV of the Wakf Act, 1954, contains provisions for the registration of wakfs The registration is mad., essential for the wakf properties because this is the only way through which Board may come to know about the creation or existence of a wakf within its jurisdiction.

It is the duty of every Mutawalli to apply to the State Wakf Board for registration of the wakf of which he is the Mutawalli whether such wakf was created before or after the commencement of the Wakf Act, 1954. [Section 25 (1) and (2 ) ]. In the case of [a] wakf [being] created before the commencement of the Act, the application should be made within three months from such commencement, and in the case of wakf created after such commencement, within three months from the date of creation of the wakf. Where any wakf has been registered before the commencement of the Act under any law for the time being in force, such wakf shall be deemed to be registered under the Act.

The State Wakf Board is empowered under Section 28 of the Act to direct a Mutawalli to apply for registration for a wakf or to supply any information regarding a wakf or may itself
cause the wakf to be registered or at any time amend the register
of wakfs.

Substantive Law of Wakf

The 'wakf'  literally means 'detention' and connotes [the] tying up of property in perpetuity in a manner that no proprietary rights can be exercised over the corpus but only over the usufruct.

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 Jewun Dass 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 “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 tered as [a] waqf.
3. And lastly, the usufruct is to be utilized for the good of mankind.

Kinds of Wakfs

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.

Further, the Bombay High Court has held that when a mosque is always open to the public for worship, it must be presumed to be a ‘public mosque' . It is immaterial as to who made the mosque or who met its expenses; all that is needed to prove is that if the building is set apart as a mosque and if public prayers were held, it is a mosque “”in its entirety."

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.

Fatawa Kazi 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 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. It was held by the Supreme Court that a land adjacent to a mosque would become wakf by user[s] if it had been used by the public for religious purposes along with the mosque. A burial ground may be established as wakf by [the] evidence of [a]user. But where the evidence shows no more than that certain persons, many years ago, used it as a burial place, it does not amount to an evidence of public user and hence does not constitute a wakf. 

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 

Similarly, property occupied solely for residential purposes by a 'Muazzin' of a certain mosque with the leave and licence of a third party and which is at some distance away from the mosque and not a part of it, does not become wakf property by long user.

Who can Create a Waqf?

"The same conditions which are essential for the validity
of mere acts of bounty," says Fath-ul-Kadir, “are requisite for the valid constitution of a wakf, that is, the wakif must be free, must be [an] adult and must be possessed of understanding." The wakf so created should not be dependent for its operation upon a contingency which may or may not happen.

"And to the wakif," says Sharaya, “it is required that he be of full age, [of] sound understanding, and unrestrained in the use or disposition of his property." So are the observations of Fatwa-i-Alamgiri and Radd-ul-Mukhtar.

Wakf can, therefore, be created by any person who has attained majority and is of sound mind, and there is no fraud, undue influence, coercion, etc. Also the wakif should be in good health and should not be suffering from Marz-ul-Maut (death-illness), because in that case, he cannot dedicate more than a third of his estate unless the heirs give their consent. This consent need not be express but may be implied.

It is not necessary that the person constituting a wakf should be a Muslim; non-Muslim[s] can also validly create a wakf. "As a general rule it may be stated," observed the Nagpur High Court in Mori Shah's ease "that all persons who are competent to make a valid gift are also competent to constitute a valid wakf. Islam is not a necessary condition of a wakf."

The law requires that the object for which a dedication is made must be lawful according to the creed of the dedicator as well as the Islamic doctrines, and the essential element should be Divine approbation. Therefore, a Muslim cannot create a wakf in favour of an idol or temple or any other object opposed to the spirit of Islam. Similarly, a Hindu cannot dedicate in favour of a mosque. The wakif should be the owner of the property be makes wakf of.

If the property does not belong to the wakif, at the time of making the wakf, the wakf would be invalid! If a trespasser makes a wakf even though he subsequently purchases the property from the owner and takes possession or if a legatee makes a wakf before the death of the testator, the wakf would be void in the following cases the wakf created was held to be valid: 

(1) Where the wakif is the owner of the property but the property is leased to or mortgaged with some other person.
(2) Where the wakif is in possession of the property under a contract of sale with no option to the seller and ultimately purchase it.
(3) Where the wakif is not the owner but the true owner ratifies the wakf.
(4) Where he is in fact the owner but is under the belief that he is only a Mutawalli s
Where a wakf is validly created by a competent wakif, it cannot be revoked or avoided. In Fatima Bibi v. The Advocate General, (1881) 6 Bom 42, where a Sunni lady after creating a wakf primarily for herself and alal-aulad, wanted to revoke it, it was held that she could not do so, and the case of Delroos Bano would not apply.

Since, it is well established that no-one but the owner of the property can make [a] wakf, a Court cannot approve the creation of wakf of a minor's property by the guardian under Section 29 of the Guardian and Wards Act, 1890.  Such an approval, if given, will be without jurisdiction. The guardian
under the Muslim Law has no power to make a wakf of his ward's properties.

It is also one of the principles of Muslim Law that the first duty of those who are governed by that law is to arrange for the payment of their debts before they make [the] gift or create [the] wakf.

The question [as to] whether a transfer was made with intent to defeat or delay creditors is a mixed question of law and fact, and the decision must depend upon consideration of the entire circumstances surrounding the execution of the deed of transfer.

What can be Dedicated as [a] Wakf

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 ;$ Korans for reading in mosques ;s other movables not necessarily consumed in their use ;e war horses, camels and swords;? and a chest of money for loans to the poor. Abu Hanifa has laid down that only immovable property can be made wakf, and even Abu Yusuf maintained that no movables were valid as wakf except beasts of burden and weapons of war. On the other hand, according to Imam Muhammad, all articles or movables that can be subjected to the dealings and transactions of men, may lawfully be dedicated as wakf.

In many of the cases the opinion of Imam Muhammad was followed and wakfs of movables were held to be valid. In this connection mention may be made of a paper--"The Wakf of Movables' by A. AI-Ma'mun Suhrawardy-in which the author has collected many original texts and Fatwa of the Muftis of different Islamic countries to show[s] the validity of wakf' of movables. 

In the beginning of the paper he states: “A careful perusal of this paper - the result of considerable labour and research - containing excerpts from works of highest authority, will, I venture to hope, leave no doubts in the minds of the readers about the validity of the wakf of movables, including money-shares in companies, securities, stock etc."

The doubt, which one or two of the ancient Hanafi doctors had expressed as to the validity of wakf of certain kinds of movable property was the outcome of the primitive and archaic conditions of society, and was founded on the notion that as perpetuity was essential to the validity of wakf', it could hardly be secured by the dedication of movable things generally. But as the Muslim community progressed, it came to be recognised that the wakf of everything to which practice appertains or where it is customary in any particular locality to do so, would be valid.

There is also a kind of wakf of money where the money is used for business and the profits are applied to the wakf.* Before the passing of the Wakf Validating Act, 1913, there was a conflict of opinion on the validity of wakf of movables. The High Courts of Madras, Bombay and Calcutta, held that a wakf cannot be made of movables, unless the movables were accessories to immovable property or unless such a wakf was allowed by custom. Allahabad High Court took the view that a wakf of profits apart from the land was invalid. The Privy Council left the question undecided.

The Wakf Validating Act, 1913, has permitted a wakf of "any property", including movable e.g, shares in joint stock companies, G. P. notes, and even money.

The property dedicated should be specified distinctly so as to [not] leave room for any doubt, otherwise this uncertainty would render the wakf invalid.

As regards the wakf of a building without the land on which it is built, there seems to have been some difference of opinion on the part of ancient jurists. The modern doctrine, however, now in force, is that the wakf of a building without the land is valid. 

In the wakf of land, the buildings and trees standing thereon are included, but not the fruits then on the trees, nor the crop if the land has already been sown. Canes and other plants that are cut annually are not included, but such as are cut biannually are included in the wakf of the land.

The appropriation of things which are consumed in usiing, such as gold and silver, or eatables and drinkables are not lawful according to the generality of lawyers; but by gold and silver are to be understood dinars and dirhams or what [are]  not ornament[s]. But where there is a custom regarding the creation of such wakf', it is valid. Thus everything which may lawfully form the subject of [a] bargain and sale may validly form the subject of wakf. 

There is [a] difference of opinion on the validity of wakf of 'musha,' that is of undivided shares in a property which is capable of division. According to Abu Yusuf the wakf of musha is valid, while according the Imam Muhammad it is unlawful. The view of Abu Yusuf has been accepted by Hedaya and DurrulMukhtar, etc. It has, therefore, been held by the Assam High Court in Tamjid Ali v. Manadhar Ali that a co-sharer who is not in separate possession of any part of undivided property cannot dedicate a specific part of the property so as to create a valid wakf.
In Whose Favour Wakf can be Made
The first and foremost natural question which arises is : Is poverty a necessary condition for obtaining benefit from wakf? The law does not insist that a man must necessarily be poor to get benefit of a wakf. Poverty is one of the many qualities that are recognised as being capable of attracting the benefit of a wakf, but it is by no means a •sine qua non'. Therefore, all persons. regardless of consideration of wealth, are entitled to come in as beneficiaries. Nevertheless, it is perfectly correct to say that when all other purposes fail, the relief of the poor is the ultimate purpose of every wakf.' The possible beneficiaries may be:

(1) the wakif himself (only in Hanafi Law), 
(2) the family and  descendants of wakif, 
(3) [the] general public.

The Hanafi jurists allow the wakif to take some or the whole of the usufruct for his life or for a lesser period, and also to provide for the payment of his debts. The Shia Law, however, does not permit such a reservation in favour of the settler. On the same reasoning a wakf was held to be invalid where an Ithna-Ashari woman provided in the wakf deed that she should ba the first Mutawalli and have remuneration of Rs. 1,500 a year and the succeeding Motawallis should have Rs. 350.

The reasoning on which Abu Hanifa allowed the wakif to be one of the beneficiaries is that the wakif's interest in the dedicated property continues in some measure even after the creation of [the] wakf, hence, there is no difficulty in allowing him to share the usufruct of the property with others.

Imam Muhammad and the Ithna Ashari authorities insist that possession should be handed over to the Mutawalli before the dedication is complete. Accordingly, the wakif, having once relinquished his proprietary rights in favour of God, cannot take any benefit from such property.

In Mst. Bibi Kubra v. Jainandan Prasad, it was held that a wakf for the benefit of the wakif's family and his descendants, if created exclusively for their benefit, would be invalid. But if it is created for their benefit as well as for charity, the position before and after the Mussalman Wakf Validating Act, 1913, is different. Before the Act, a wakf was valid if there was a "substantial dedication of the property to charitable uses at some period of time or other." But, if the primary object of the wakf was "for the aggrandisement" of the family and the gift to charity was only illusory, the entire wakf would be invalid. 

With the passing of the WakF Validating Act, 1913, the above anomaly was corrected. Under this Act a wakf for the benefit of the family bec[ame] valid even if the gift to charity is illusory, but the ultimate gift should necessarily go to charity.

Mohammadan Law allows wakfs in favour of [the] general public. Such wakfs may either be of [a] religious or secular nature (e.g., mosques, colleges, etc.). Therefore, a wakf may be constituted for any object which is for the benefit of mankind and is not prohibited by Islam.

Other formalities

(a) Declaration,
(b) Delivery of possession, and 
(c) Appointment of Mutawalli. 

(a) 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 bonafide wakf 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.

(b) 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.

Tyabji summarizes the position thus:

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. 

(c) 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) there is a declaration, coupled with 
(2) appointment of Mutawalli ; and 
(3) delivery of possession,

[The] Allahabad High Court has now overruled this view and has accepted the view of Abu Yusuf,

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 favour the wakf has been made. In the case of a public wakf, a Mutawalli must be appainted to the possession.

Illusory Wakfs

A dedication cannot be validly made so as to defeat or delay the rights of creditors and a dedication having such effects may be avoided by any creditor whose rights are defeated or delayed.

It is up to the persons challenging a wakf to show that the wakf,  even though formally declared, was never intended to be acted upon. For that purpose, the Court has to look primarily to the surrounding facts and circumstances as well as to the conduct of wakif after the wakfnama has been executed. The question whether the wakfnama was in fact acted upon or not, is not strictly relevant except as a means of and by way of a step towards determining that intention.

Section 53 of the Transfer of Property Act will govern the illusory transaction under the name of wakf to defraud the creditors. In Mst. Bibi Kubra v. Jainandan (AIR 1955 Pat. 270) it was held that where a wakif who was greatly indebted created two wakf' without making any provision for the payment of his debts and the two deeds of wakf were with the intention to defeat or delay his creditors, the transfer was declared void as being against his creditors.

Contingent or Conditional Wakfs

When the creation and validity of a wakf are subjected to a contingency, it becomes void. For example, if the wakf is made contingent on the death of a person without leaving children, it will be void. Similarly if a Muslim lady creates a wakf for herself and her children, and provides that the children should take possession of property on attaining majority, and in the event of her death without leaving children, the wakf income should be devoted to certain religious usages, it was held that the wakf was void, as it depended upon a contingency, namely, the event of her death without children.

The wakf should also not be conditional. Thus, if a condition is imposed that when the property dedicated is mismanaged, it should be divided amongst the heirs of the wakf, or that the wakif has a right to revoke the wakf in future, such [a] wakf would be invalid. But a direction to pay debts, or to pay for improvements, repairs or expansion of the wakf property or conditions relating to the appointment of Mutawalli would not invalidate the wakf.

In [the] case of a conditional wakf, it depends upon the wakif to revoke the illegal condition and to make the wakf valid, otherwise it would remain invalid.

Private and Public Wakf

Essentially and substantially there is no distinction in Muslim Law between a private wakf and public wakf. All authorities on Muslim Law, like the Hedaya, Fatuwa-i-Kazi Khan and other authoritative treatises have unanimously laid down on the basis of [the] Traditions that a subsistence by a wakif for himself and for his family and children is lawful, provided the ultimate dedication is for some purpose which is recognized as pious, religious or charitable by Isiam. 

The special features of wakf-alal-aulad is that only the members of the wakif’s family should, be supported out of the income and revenue of the wakf property. Muslim Law treats both public and private wakfs alike. Like other wakfs, wakf alal-aulad is governed by Muhammadan Law, which makes no distinction between the two either in point of sanctity or the legal incidents that follow on their creation. Both are in the eye of the law, Divine property and when the rights of the wakif are extinguished, they become the property of God and the advantage accrues to His creatures. Both types of wakf are created in perpetuity and the property becomes inalienable. Like the public wakf, a wakf-alal-aulad can [under] no circumstances fail, and when the line of descendant becomes extinct, the entire corpus goes to charity.

Wakf on one's children and thereafter on the poor is a valid wakf according to all the Muslim Schools of Jurisprudence. Imam Abu Yusuf adds that a wakf on oneself and [one’s] children alone without the ultimate benefit to the poor is valid.  According to Hedaya, the view of Abu Yusuf is the governing authority. The main difficulty which had arisen in the way of English Judges was in understanding the meaning of word "charity" as understood in Islam. They interpreted charity according to its ordinary acceptance, viz., its object must be the relief of the poor, and support to [a] member of one's family was outside its purview. Under the Mohammedan Law, however, the word charity has [a] much wider meaning and includes provisions made for one's own children and descendants. 

Charity to one's kith and kin is a high act of merit and a provision for one's family or descendants, to prevent their falling into indigence, is also an act of charity. Accordingly, family benefactions or wakfs, providing for the maintenance and support of the descendants, either as the sole beneficiary or in conjunction with other pious objects, have existed for the last fourteen centuries in all Muslim countries and all sects and schools are unanimous in upholding their validity. The institution is traced to the Prophet himself who created a benefaction for the support of his daughter and her descendants and, in fact, placed it in the same category as a dedication to a mosque.

For a fuller grasp of the sanctity attached to wakf alal-aulad, it may not be out of place to quote the following precepts of the Prophet:

The Apostle of God said, “When a Musalman bestows on his family and kindred, with the intention of rewards, it becomes alms, although he had not given it to the poor, but to his family and children."

“The most excellent Sadaqa is that which a man bestows upon his family."

"The greatest Sadaqa is that which you give to your family."

"Support of one's self and his children and family is the first duty and necessity."

“When their Lordships so lightly dismissed the precepts quoted by Justice Ameer Ali, they might have remembered that there was not much difference between them and the eighth verse of the fifth Chapter of the Ist Epistle of Paul to Timothy: "But if any person provides not for his own and especially for those of his own house, he  hath denied the faith and is worse than an infidel."

The query raised by the Privy Council was answered in the decision of the Calcutta High Court in Mofazzul Karim v. Mohd. that the law of wakf is based on the principle that wakf is a disposition for consideration (sawab) whereas gift is one without consideration and that makes all the difference between wakf and a gift.

For the Privy Council to lay down that a Mohammedan should be deprived of the privilege of availing himself of any class of disposition left open to a Mohammedan and expressly sanctioned by the Sharia, was to overstep the bounds of a court and trespass not only upon the functions of the legislature but also on the functions of the Creator himself according to the Mohammedan notions.

It was for these weighty reasons that the Wakf Validating Act, 1913, was enacted restoring the validity of wakf alal-aulad. The result of the Act was that family wakfs with ultimate reservation[s] for charity are now recognised because according to Allahabad High Court, the benefit of the family is in itself a religious and charitable object.

The term ‘family' occurring in the phrase - for the benefit of the family' has been liberally construed and is not confined to persons who are dependant for maintenance on the wakf,' In a recent case, the Allahabad High Court held that the word ‘family' in Section 3 (a) of the Wakf Validating Act, 1913, has to be given a wide and not restricted meaning, and a person may belong to a 'family' if he is either an heir from a common progenitor or is living under the same roof and is being supported and maintained by the settler. As long as one of these two conditions are satisfied, the beneficiary would be a member of the family within the meaning of the Act. The three separate words used in the Act viz. “family", "children" or "descendants" would appear to exhaust the categories of persons on whom normally a settlor would out of love and affection create a wakf for their maintenance and support.

The following persons were expressly namel[d] by the different High Court of India to belong to [a] 'family,' children' or ‘descendant' :
1. Brother's widow and children. 
2. Sister's son. 
3.  Daughter-in-law.
4. Son of a half-brother, son and son's son of a paternal uncle, son of a half-sister.
5. Nephews and their descendants.

Another important feature of the Wakf Act of 1913 is that a Hanafi wakif is given the right to reserve some of the benefits for himself. The wakif may not only provide for his maintenance but if he wishes he may even reserve the whole income for his lifetime. A Hanafi wakif is entitled to spend the whole income of the wakf for the payment of his debts. Under Shia law, however, the wakif cannot reserve the whole or any portion of the income for his personal use. The early view of the Allahabad High Court was that the reservation of the entire income by the Shia wakf would invalidate the endowment, but the reservation of a portion of the income would invalidate the wakf to that extent alone. But their Lordships of the Privy Council have laid down that any reservation whether of a portion or of the whole would make the wakf void.

Other valid objects

Mosque

In India many wakfs are created for the support and maintenance of mosques. Radd-ul-Mukhtar says, "The proprietary right of the wakif in a building or ground set apart for prayer becomes extinguished either on the declaration of the wakif that he has constituted it as a mosque or consecrated it for worship, or on the performance of prayers therein or thereon." This is the view of Abu Yusuf which is generally accepted. According to Abu Hanifa and Imam Muhammad, a wakf for a mosque is completed only when the wakif permits public prayers to be offered once in it with Azan [the call to prayer] or delivers possession of it to the Mutawalli or the judge. But this view has not found favour in India. In order to consecrate a mosque it is not sufficient merely to construct it, but:

(1) the building must be separated from the other properties of the wakif ;
(2) a way must be provided to the mosque,
(3) either public prayers must be said or possession must be delivered to the Mutawalli.

Under Shia law, however, the dedication is complete where a formal declaration has been made and prayers ha[ve] been said. A mosque is deemed to be open to all particularly for the people of [the] locality in which it stands. In a leading case, Mr. Justice Mahmood observed that a mosque cannot be restricted to the followers of a particular school or sub-school. A mosque, being dedicated to God, is for the use of all Muhammadans and cannot be lawfully appropriated to the use of any particular sect.

Fatawa-i-Alamgiri also lays down that if a masjid is reserved for the people of particular locality or sect. the reservation is void and every Muslim without any regard to sect or locality can say his prayers there.

In a recent case, the Allahabad High Court held, however, that the mere fact that Friday prayers have been offered in a mosque built by the Government in Police Lines for the Muslim personnel, does not make it a public mosque, and the general public have no right of entry in it.

This view is in marked contradiction to the settled law. The analogy of a defence area is hardly appropriate. For reasons of security, entry to any particular area can certainly be restricted or regulated and if a mosque happens to be situated in that area naturally only those can enter it who have permission to enter that area but this does not make the mosque less public. A mosque situated in an area where entry is not regulated or where [a] security reason does not prevail is undoubtedly a public mosque if Friday congregational prayers have been held in it.

Hasan reports from Abu Hanifa, that if the lower storey be mosque end the upper storey a dwelling, the former continues to be a mosque for ever.

If the mosque has become so dilapidated that it is no more fit for offering prayers, even then its old material cannot lawfully be used for building or repairing another mosque.

According to Hedaya, if the place in which a mosque is situated should become deserted, or uninhabited so much so that there is no further use for the mosque as no person comes to worship therein, still it continues to stand as a mosque, and does not revert to the wakif. It is the view of Abu Yusuf, which has recently been affirmed by a special high powered committee appointed by the Central Wakf Council [in]  New Delhi, to consider the cases of such mosques in the Punjab and Haryana where there are now no more Muslims after the partition riots. After discussing the question in detail at two of its meetings hid on April 19, 1968 and July 1, 1968 and after taking into consideration the Fatwas received from Ulama, and also their opinion, the Committee recommended [that] where there are deserted mosques, whether in a good condition or [in a] dilapidated [condition], or whether what remains of them is only the sites on which they existed, they must be protected at all costs. They can neither be trasferred nor utilised for any other purpose.

"(a) in [the] case [of] materials, such as doors, windows, bricks and stones, etc., belonging to such mosques are lying as a result of dilapidation, it can be utilised for mosques at other places,"

"(b) Where there is land, rooms, quarters, etc., apart from the site on which the main place of worship stood, it will be permissible to give them on the basis of exchange, or utilise them in any other manner."

The answer to the question 'whether mosque is a juristic parson' has been given by the Lahore High Court in Masjid Shahidganj's cases in the affirmative. In appeal, their Lordships of the Privy Council reserved their opinion on this point. Nevertheless, they observed that suits cannot be brought [to] or against [the] mosque as artificial persons.

Wakfs in farour of existing mosques

Property may be endowed in favour of an existing mosque for its upkeep, maintenance or repairs with the provision that in case the said mosque is not in need of money, it may be spent for the poor and needy, so also where there are more than one object and [if] one of them fails, the whole benefit will be applied to mosque, if it was one of the recipients of the benefits till then.

Summing up the above discussion, it may be observed that the Indian Courts do not favour (in the absence of special circumstances) sectarian mosques, or reservations in dedication excluding other Muslims from the right to pray in any mosque. It is presumed that every Muslim has a right in good faith, to enter any mosque and offer prayers according to his own religious tenets, so long as he has no intention to cause, and does not in fact cause [a] disturbance for others.

Graveyard

Land dedicated for use as a public graveyard is a wakf property. Ameer Ali says that the dedication becomes complete upon the declaration of the wakif and all his rights in the property cease. The wakf so created has all its legal consequences,  i.e., it cannot be alienated or revoked and lasts up to perpetuity. Therefor e, a graveyard is inalienable even after it has been closed by [a] municipality. And a land dedicated for a graveyard will always remain a graveyard, even if it has fallen into decay and even if traces of the dead are not left. A dead [person] once buried cannot be exhumed. Ameer Ali cites Fatawa-i-Alamgiri to say:

"When a body has been buried in the ground. whether for a long or short [period of] time, it cannot be exhumed without some excuse. Matt it may lawfully be exhumed when it appears that the land was usurped, or another is entitled to it under a right of pre-emption. Auzujundee ... being asked with regard to [a] cemetry in a village, where it had gone to decay, and there remained in it no traces of the dead, not even bones, whether it was lawful to sow the land and take its produce, answered 'NO', for in legal effect it is still a cemetry."

In an important decision handed over by the Patna High Court, it was held that the establishment of [a] graveyard by long[-time] user could be proved under the English rules of justice. equity and good conscience and not through all the rules of the Mobammadan law which are in force under Mohammadan Governments nor by the law as laid down by the Fatawa Alamgiri (sic), the digest of Mohammadan Law. prepared under Emperor Aurangzeb Alamgir. We are bound by Regulation 4 of 1793, except so far as that law has been modified by Regulation 7 of 1832."

In a recent judgement of the Punjab High Court it was held that the fact that land recorded as shamilat deb in the Jamabandis for the years 1909-1910 and 1945-46 to the effect that the land has been used as [a] graveyard does not necessarily make it wakf by [the] user. The village was predominantly a Hindu village in which the Muslims were only a few before the participation and after partition there is none. It has been admitted by the plaintiff's witnesses that no dead body has been buried in this graveyard since 1947. The persons who an defendants in the suits with the Panchayat Deh and Gram Sabha took possession of various plots and constructed houses thereon. If no Muslim is living in the village, it cannot be understood how the entry in the Jamabandi that the Kbasra number is in possession of Ahle-Islam can be taken to be correct. On the spot no graves exist, and houses have been constructed. Therefore, it cannot be said that the entry ghar mumkin kabrastan is in accordance with the facts. 

However, this judgment is not in accord with the law on the subject. It must be read in the light of the Privy Council's decision in Ballabh Das v. Nur Mohammad, where it was held by Sir John Rankin: "When in the (khasra) document of 1868...... one comes across a description of certain land by the word "gabristan" or graveyard in the sense known to the Mohammedan Law, it will continue to be a graveyard. 

Thus, the fact that after partition, Muslims migrated to Pakistan leaving behind [a] graveyard which [has] naturally now [been] in disuse since 1947, could hardly mean that a wakf by user, once created, has come to an end simply because in later years no dead have been buried there. "A cemetery once created continues to be so even though there remain no traces of the dead, not even bones." The nature of the graveyard will not alter simply because it [has not been] used in recent years.

Application of the Cypres doctrine

There can be wakfs whose income cannot be applied to the desired objects because of [a] change of circumstances, or lapse of time, or for any other reason. In such cases the courts may apply their income to similar objects, as nearly as possible to the original one. This is known as [the] Cypres doctrine.

Indeed the English docrine of Cypres is narrower than the doctrine as known in Muslim law. But the doctrines in both these systems have one common feature: there must be a valid trust or wakf in existence before this doctrine is attracted; where there is no valid wakf or trust, there is nothing upon which the doctrine of Cypres can fix itself.

The purposes of a wakf are also not always indicated with reasonable certainty. On the validity of such wakfs, there is [a] divergence of views between [the] modern authorities and ancient doctors. The modern view is that the purposes of a trust must be indicated with reasonable certainty, [and] if they are not, the trust fails. The view of ancient jurists, however, was different. According to them, once a man made a wakf even without designating clearly the purpose for which the income was to be applied. It was a lawful dedication.

Regarding the modern view, Fyzee observes that the Indian text writers and Judges are not unanimous on the points In Morrice v. Bishop of Durhan, a leading case on charities in England, it was held that a bequest for uncertain and vague objects was invalid. This ruling was followed by the Privy Council in Runchordas v. Parvatibai, and following this decision there developed a tendency among the Indian High Courts to hold that a wakf for good objects in general was void. This opinion was supported by Wilson and Mulla.

Ameer Ali, on the other hand, was of the opinion that the principle of Morice v. Bishop of Durham was not applicable to the law of wakfs.

"Mere vagueness or uncertainty will not lead to the failure of a wakf," writes Ameer Ali, "for in such a case, the law itself would supply the defect by declaring that the trust should be in favour of such objects [that] approach nearest in character to the intended object of the wakf; or, even when that is not expressed, [it may] be applied to the support of the poor and needy. In the absence of explicit directions on the part of the wakf, the Judge has the power of framing a scheme by himself or in consultation with the beneficiaries, for the administration of the wakf. The principle therefore laid down in Morice v. The Bishop of Durham, (10 Vessy, 399), which has been occasionally endeavoured to be applied to [a] wakf is not applicable to trusts or consecrations under the Mohammadan Law. For the Cypres doctrine is carried to the utmost limit in the Moslem system, and the failure of the original purpose does not in any case cause the failure of the wakf."

'The poor form, by necessary implication of the law, has the ultimate beneficiaries of every wakf created in favour of individuals or the descendants of the wakf. Where, therefore, the primary object fails, such failure, instead of voiding the wakf 'only accelerates' the ultimate application."

"Again, where the dedication is to [a] religious or charitable institution, which, in [the] course of time, ceases to exist, the property so dedicated, instead of reverting to the grantor or his heirs, would be applied ... to some other religious or pious institution, similar in character to the one which has failed, or to any other object by which benefit may accrue to human beings."

Tyabji agrees with this view.

"In these circumstances", observes Free, "a conflict of decisions was inevitable and some curious results of juristic interpretation may be found in the Indian Law Reports."

Despite the conffict of opinion on the subject, the latest trend appears to be to agree with the views of Ameer Ali and Tyabji and to hold that once it is clear that there is a bonafide intention on the part of wakf to create a wakf and to divest himself completely of the property, a good wakf has been created which will not be allowed to fail. A valid wakf may thus be constituted in cases:

(a) where the objects are not specified at all; 
(b) where the objects fail as impracticable; and 
(c) where the objects are partly valid and partly not valid.

In cases (a) and (b) [the] Cypres doctrine will be applied, and in case (c) the valid objects may be accepted by the court and the others rejected.

The Cypres doctrine aims at a judicial determination of a particular purpose to which the trust fund shall be applied and which is as near to the settlor's s intention as possible. Under Islamic Law there is no provision or machinery for such [a] determination. It is assumed as a basic principle that the ultimate purpose of a wakf is charitable and, therefore, the appropriation of the benefit of the wakf to the poor is a fulfilment of this purpose. Since the benefit of the poor is considered to be a residuary charitable object of a wakf, there is no necessity for a close scrutiny of the settlor's intention and careful construction of the trust instrument, as is required under the Cypres doctrines.

The discretion given to the Courts, to apply the Cypres doctrine, does not mean that where the doctor's intention can be given effect to, the Courts should exercise the power of applying the wakf property or its income to other purposes simply because they considered them to be more expedient or more beneficial than that the settlor had directed.

Section 42 of the Civil Procedure Code does not expressly empower the court to apply the Cypres doctrine in the settling of schemes. The court may rarely apply the doctrine but has no jurisdiction to apply the doctrine extra territorium.

The Shia law extends this doctrine much further than under the Hanafi Law. Where a wakf of some general charitable nature fails, the usufruct of such a wakf may be utilised for "good purposes generally" and preference is to be given to an object as near as possible to the object of the original wakf. Another view is that when a specific charitable wakf fails, the wakf property may be applied for the benefit of the poor and for all pious acts and objects which may be the means of approaching God.

(a) Failure or non-existence of primary or intermediate objects. The failure or non-existence of the initial or primary object of a wakf does not, under the Hanafi Law, effect the operative character or validity of wakf. The failure or extinction of the intermediate objects only accelerates the ultimate reversion but does not cancel or void the wakf. Consequently, when a wakf is made in favour of unborn children, or any nonexisting object, it is valid.

"The object of a wakf may be non-existent," says Radd-ul-Mukhtar, "in two ways: Firstly, the beneficiary may be non-exist[ent] when the wakf is made, when it is called "wakf munkata-ul-aswwal" (cutoff initially); and secondly, the persons for whom the wakf is made may cease to exist after the creation of [the] wakf, when it is called *wakf" munkata-ul-wasaty (cut off in the middle). Examples of both classes of cases are given by Kazi Khan. For example, a man makes a wakf for the children born of his loins, if he has no children at the time, it is a 'wakf mankata-ul-awwal' and the rents and profits will be applied to the benefit of the poor. If children are born to him afterwards, then the rents and profits will be paid to them."

An example of the second or 'wakf munkata-ul-wasat' arises in this way : a wakf is made in favour of two sons and "after them" in favour of their children and children's children. And subsequent thereto one of the sons dies. It is a 'wakf munkata-ul-wasat.' In this case, half of the rents and profits will go to the surviving son and the remainder to the poor and indigent, and when the surviving son dies the entire rents and profits will be given to his children, for the wakif has reserved the interest of the wakf for the grandchildren only after the demise of both the sons. But should it appear that the intention of the wakif was that the surviving son should take the entire benefit, or the interest of the deceased son should descend to his issues, effect would be given to such [an] intention.

(b) Objects partly valid and partly invalid : In cases of wakf where the object is partly valid and partly invalid, it is valid insofar as the valid object is concerned and invalid as to the rest. The portion of the property relating to invalid objects will revert back to the wakif. In Abdul Sattar Ismail v. Abdul Humid, the Madras Court observed that the whole income of such a wakf can be applied to the valid objects.

The fact, that a certain portion of the deed cannot br given effect to, does not make the whole deed invalid.

THE MOSQUE

In Chapter Two of the prestigious book, Islam and the Arab World, edited by Bernard Lewis. Richard Ettinghausen, Consultative Chairman, Islamic Department, Metropolitan Museum of Art, New York, writes about mosques, their origin and meaning.

"The centre of religious life throughout the Muslim world was the mosque, called masjid or place of prostration; in the capitals major ones were designated as Jama gathering-Masjid AI-Juma, (Friday Mosque). There is, however, a universally used structure of Islamic mosque as such; only various original types - as Arab type, Iranian type, or a Turkish type (or types) to which major categories one could add the Mughal, Indian, Kashmiri and Chinese variety and so on. At first the plan of Arab type gained almost universal acceptance; but eventually [the] mosque's architecture came to reflect the traditional domestic architecture of each ethnic or regional entity ... The prototype of the Arab mosque was the simple house of sun-dried bricks or, more specifically Prophet Muhammad's (peace be on him) house in Medina. As reconstructed from historical sources, this consisted of a large courtyard with several entrances. On one side was an open portico which stretched across the full width, but with the depth only of two rows of roof-supporting tree trunks serving as columns. Opposite stood a similar portico, though of less than half the width of courtyard and one row of columns. This served as shelter (suffa) for some of the poorer adherents of the new faith. The private quarters consisting of small square cubicles for each of the Prophet's wives were a mere appendix to the main ensemble. The public parts of this house became a mosque and thus established the oldest of the Muslim house of worship." 

Minarets and domes came into vogue to give the mosque a distinctive feature so that they could be spotted from a distance even by strangers. Minarets were also to serve as towers for saying loudly the call for prayers i.e., the Azan. Their number
varies from place to place and country to country. The writer has visited several Muslim countries. The number of minarets vary from one to four in the same country and the number of domes vary from one to many. In many cities in Egypt, mosques are built like cathedrals in shape but there are no courtyards and whole hall is covered. Even in Delhi the structure of mosques are different in design e.g. the Kali Masjid in Basti Nizamuddin built by Feroze Shah. The design of Masjid in the suburb of Delhi built probably by Firoze Shah is altogether different. The whole area is covered by one roof and there are scores of pillars supporting it and they are so located that sound waves striking a column are diverted towards another column, As a result, if you strike a match at once place or tear a piece of paper anywhere its sound will be heard at the remotest corner. In Kerala the structure of smaller mosques, churches and temples look the same from the outside and only distinctive feature from the outside is that there is an engraved crescent moon and a star in a mosque, a cross on a church and a saffron coloured flag over a temple.

The only common feature of mosques all over the world is that they all face towards the Qibla i. e., towards the Harem Sharif of Mecca. Generally, there is Mihrab i. e., a niche in the western wall in India where the Imam stands to lead the prayers. But for it the space of one row all along the length will be wasted for the other worshippers have to stand behind the Imam. There is a pulpit for the Imam to deliver the sermon. It may be built in[to] the western wall or may be a removable wooden structure or a fixed marble or masonry structure. In the mosque built by me in the compound of my house there is only one minaret, the roof of the room is flat and there is a small dome at the entrance gate after the courtyard.

All mosques are generally public mosques, but if a person reserves an apartment in his house, or erects a mosque in the compound of his house, for saying prayers by himself and his family, it can be a private mosque but if he [just] once allows congregational prayers to be held in it by the general public, it will become a public mosque. Even a raised platform where congregational prayers are regularly held is a mosque, even though it may [have] no walls, [a] covered portion or a minaret.
If a person builds a mosque, his right of property in it is not extinguished so long as he does not separate it from the rest of his property or give general admission to people to come and worship in it but as soon as the people in general or a single outsider say their prayers in it, his right of property is extinguished according to the Hanafi Law.

If a person appropriates ground for the purpose of erecting a mosque, he cannot afterwards resume or sell it, neither can it be inherited because this ground is altogether alienated from the right of individual and appertains solely to God.