126718487 Wakf Muslim LAw

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Definition of Wakf :- Wakf means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by Muslim Law as pious, religious, or charitable, and includes any other endowment or grant for the aforesaid purposes, a Wakf by user, and a Wakf created by a non-Muslim. Warjf, in rabic language, means hold, confinement or prohibition. !he word Wakf is used in Islam in the meaning of holding certain property and preserving it for the confined benefit of certain philanthropy and prohibiting any use or disposition of it outside that specific ob"ective. !his definition accords perpetuity to Waqf, i.e., it applies to non-perishable property whose benefit can be e#tracted without consuming the property itself. !herefore, $a%f widely relates to land and buildings. &owever, there are Wakf of boo%s, agricultural machinery, cattle, shares and stoc%s and cash money. 'ection ()1* of the Mussalman Wakf +alidating ct, 11, defines a Wakf:- Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by Mussalman law as religious, pious or charitable. 'ection )r* of the Wakfs ct, 1 defines it as follow/ Wakf means the permanent dedication by a person professing Islam, of any movable or immovable property property for any purpose recognised by the Muslim law as pious, religious or charitable and includes/ )i*  Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective irrespective of the period of such cesser0 )ii* rant, for any purpose recognised by the Muslim law as pious, religious or charitable0 and )iii*  Wakf-alal-aulad to the e#tent to which the property is dedicated for any purpose recognised recognised by Muslim law as pious, religious or charitable.

2ssentials of Wakf :- 3ollowings are the essentials of wa%f 0

Perm anentt dedication dedicat ion of any propert pro perty y.— !he first essential 1. Permanen essential of a valid waqf is, that it should be a 4permanent dedication of property5. !his phrase implies three thing/ )i* there must be a dedication, )ii* the dedication must be permanent, and )iii* the dedication must be of any property. (i) There must be a dedication.—.It means that there must be a substantial dedication of the usufruct of the property to religious, pious or charitable purposes as understood by Muslim Law. Law. !he dedication implies a declaration of the dedication. 6o particular form of words is necessary for ma%ing a declaration of dedication. It may be either oral or in writing. 6either delivery of possession possession nor appointment of mutawalli is necessary. 7nder 'hia Law, no doubt, delivery of

( possession to the first person in whose favour the waqf has been created is essential. Long 7ser.8$here land has for long been used as a wakf, proof of e#press dedication is not necessary, and the legal dedication will be inferred. inferred. !he waqfs to mos9ues and graveyards have been upheld on this ground. Land used from time immemorial for the purpose of a mas"id and for its courtyard which formed part and parcel of the mas"id and for celebration of Moharram festival has been held to constitute a waqf by user. $here a mos9ue was used as a place of worship for a long time and the worship was also performed, it will be presumed that the property was dedicated as waqf property. $here to the original mos9ue, which is proved to be a waqf property, an area is added by the mutawalli by way of construction of rooms and this area is used by the public for religious purposes alongwith the old mos9ue, then it must be regarded as one unit and treated as such. !he whole property will be treated as waqf property user. Mohd. ismail Faruqui v. Union of india (Ayodhya :ase*,I; 1< ': => the 'upreme :ourt has observed that where a mos9ue has been adversely possessed by non-Muslims, it lost its sacred character as mos9ue. &ence the view that once a consecrated mos9ue, it remains always a place of worship as a mos9ue was not the Mohamedan Law of India as approved by the Indian courts. It was further held that a mos9ue in India was an immovable property and the right of worship at a particular place is lost when the right to property on which it stands is lost by adverse possession. In hhedi !al Misra v. i"il #ud$e,% the 'upreme :ourt observed that it is a well established principle principle that once a wakf AI& ') * +' is created, the wakif stands divested of his title to the properties which after the creation of the wakf vests in the lmighty. It is, no doubt, true that in a given case the creation of a wakf may be 9uestioned if it is shown that the wakif had no intention to create a wakf but had done so to avoid a liability. ?ut in the instant case, such a stand is not available to the wakif or the Mutawalli since the wakf was created in 1(= and was registered under 'ection @ of the ct, 1= and was also notified in the Afficial azette in Ban. 1@.

(iii) )eclaration of Wakf: Mere intention to create a Wakf is not sufficient. Declaration of Wakf ma%es the dedication complete. !here were differences of opinion among the Muslim authorities on this matter. ccording to bu Gusuf, a Wakf inter "i"os comes into e#istence by a mere declaration of endowment by the owner of the property. ?ut Imam Muhammad held the view that a Wakf is not complete unless declaration of endowment is accompanied by the appointment of Mutawalli and delivery of possession to him. !he view of bu Gusuf has been accepted. (iv) )elivery of possession:  Wakf may be lawfully constituted only by declaration. Delivery of possession and the appointment of Mutawalli is not an essential condition for its validity. in the case of ift, delivery of possession is

1@ considered for completion of dedication, while others contend that simple declaration is sufficient to complete the transaction of property from Wakif In this regards bu &anifas5s view is that a Wakf is complete when a decree is made which has e#tinguished the rights of $a%if in the property.

4evocation of#waqf  /- If a valid waqf has once been created, it cannot be revo%ed by the waqif for it is in the power of nobody to divest od of his ownership of the property. An the creation of the waqf the property at once passes to od and neither it can be reverted later nor can od be divested of the property and the waqif or his successor-in-interest restored to it by any subse9uent breaches of the terms of the waqf mutawalli of his office. !hus8 1.  testamentary waqf may be revo%ed by the author of the waqf any time before his death. ?ut in this case there is no revocation in facts as the waqf comes into e#istence only at the death of the testator. It is in fact revocation of the will rather than of the waqf. (.  waqf during death illness without consent of heirs is valid only to the e#tent of 1rd of the property and invalid beyond this limit. !here is no revocation involved here too. .  waqf created by an act 0inter "it%os% is irrevocable. If the waqif reserves the power of revocation, the waqf is invalid.

-ppointment '+ M2T*W*33i $T*23'*T& !he Wakf en"oys full power of appointment of Mutawalli and he may appoint the first Mutawalli. &e may also appoint himself as the first Mutawalli. ?ut if the Wakif does not appoint himself as the first Mutawalli, the first Mutawalli shall be appointed in the following manner/ 5. ppointment by the Wakif II. ppointment by e#ecutor of the founder ifi. ppointment by the outgoing Mutawalli I+. ppointment by the court +. ppointment according to :ustom or usage 5. -ppointment by the Wakif :- !here is a difference of opinion under anafi law as to what would happen if no Mutawalli was appointed at the time of dedication of property as Wakf. ccording to bu Gusuf Wakf would be valid and the Wakif would become the Mutawalli. ?ut in the opinion of bu &anifa and his disciple Imam Mohammed, Wakf would be unlawful if no Mutawalli is appointed. 7nder *hia law as the transfer of possession is necessary hence Wakif may appoint a Mutawalli before transfer of possession and not after transfer of possession. fter transfer of

1 possession the Wakf cannot appoint a Mutawalli or give any scheme and in such a case beneficiaries are entitled to administer the Wakf.&owever, the Wakif or founder of a Wakf has absolute power to appoint a Mutawalli. If the Wakif has made a provision in the $a%f-deed for the appointment of the Mutawalli, the Mutawalli shall be appointed in accordance with the directions of the Wakf-deed. In the Wakf-nama, the Wakf may lay down the following direction/ )i* &e may reserve the right of management of the Wakf to himself and he can appoint a Mutawalli during his life time whenever he li%es.5 )ii* &e may lay down a scheme for succession to the office of Mutawalli. )iii* &e may nominate a successor by Wakfnama, or he may indicate the class of persons who may succeed to Mutawalliship. )iv* &e may confer the power Af nomination of successor on the Mutawalli. )v* &e may lay down the 9ualification for the Mutawalli. )vi* &e may constitute a hereditary line of successors to the office of Mutawalli. It is, therefore, stated that primary right of appointing a Mutawalli is that the Wakijf who is creating the Wakf. &e may give a scheme and ascertain succession of future Mutawallis. Wakif is empowered to indicate 9ualifications of a Mutawalli or a class out of which a Mutawalli may be appointed. &e may also give powers to a Mutawalli to appoint his successor after his death or in case of his relin9uishing the office, but the Mutawalli is entitled to appoint his successor only on his death-bed. It may be noted here that office of Mutawalli is not transferable< and Muslim law does not recognise the office to be hereditary unless there is a custom.

55. -ppointment by e6ecutor of the founder /- If a Wakif dies without appointing any Mutawalli and the $a%f-deed is silent about the appointment to this office, then the e#ecutor of the Wakijf is entitled to appoint a Mutawalli. !hus, where the office of Mutawalli falls vacant for any reason such as by the date of the Mutawalli or by his refusal to act or by his removal by the court and, it is not clear as to how a Mutawalli to be appointed, then the e#ecutor has a right to appoint any person as Mutawalli. In this situation, the founder5s e#ecutor possesses the same powers as the founder himself, had he been alive. &owever, this is possible only where founder has an e#ecutor. 555. -ppointment by the outgoing utawalli on $eath#bed &# enerally, an e#isting Mutawalli has no right to appoint his successor. ?ut when the Wakif and his e#ecutor both are dead and the Wakfnama does not lay down any scheme of succession, then the outgoing Mutawalli, may appoint his successor on his deathbed, but he has no such power when healthy. !hus, a Mutawalli may appoint his successor sub"ect to two conditions, )i* that he is on his death-bed and there is no chance of his survival and )ii* that the office of Mutawalli would remain vacant if he does not appoint his successor before his death.

(> It may be noted here that appointment of a Mutawalli by a e#isting Mutawalli in his deathbed is an emergency appointment, therefore, when he is in health he cannot appoint his successor. 'imilarly, where the office of Mutawalli is hereditary under local custom, the Mutawalli on death-bed has no right to appoint his successor.

57. ppointment by %ourt &# If no Mutawalli could be appointed by any of the aforesaid manner, the court has the power of appointing Mutawalli. It may be recalls that under pure Muslim law powers of 7aCi or Jing are very wide as far as administration of Wakfs are concerned. An the same lines under 2nglish law :hancery :ourts have been given powers to govern the trust and trustees. Bustice meer u, 4while delivering a "udgment for Crivy :ouncil has 9uoted an old authority as saying, 4were the WakCf to ma%e a condition that Jing or 2aCi should not interfere in the management of the Wakf, still the 2aCi will have his superintendent over it, for his supervision is above everything5. :ourt here means the District :ourt within the "urisdiction of which Wakf;ro;erty is situated. $hile appointing a Mutawalli, the court shall ta%e into consideration the following facts/ )i* Directions of the Wakif if any, given by the Wakf. but if the court feels that disregarding the directions of the Wakif while to the manifest advantage of the Wakif then it can ignore such directions. )ii* !he court can appoint a stranger to the office of the Mutwalli only if there is not available any 9ualified member of the Wakif family. !he term 4family5 includes persons descendent from one common progenitor and ta%es in both agnates and cognates. )iii*mong the family-members of the Wakf. who are available for appointment, the court shall appoint the most appropriate person irrespective of the nearness of %in to the Wakf. i.e., when the choice is between lineal descendant and remoter relations, the court is not bound to appoint the former.

7. -ppointment according to %ustom or usage &#  !he office of Mutawalli may be hereditary by custom or usage, only if there is no provision in the WakfrCama.  !hough such a custom is opposed to general law, hence it must be strictly proved through supporting evidence.  custom may be prevalent that a Mutawalli may be appointed through an election or through a congregation of locality through some procedure which must be lawful and reasonable. $here a $a%f is a purely local $a%f such as a graveyard or a mos9ue, then the appointment of Mutawalli may be made by the congregation of the locality.

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Md. Taiyab v. The Meghalaya oard of Wakf5 court held that for the appointment of Mutawalli as lineal descendants it is necessary that person must be descendant through direct or right line without any deviation as from father to son, etc. In Md. *brar v. The Meghalaya oard of Wakf, where the issue regarding to appointment of Mutawalli by succession. !he court held that one of the "oint Mutawalli dies-survivor alone would be entitled to be appointed as sole Mutawalli for time being. &e can only nominate his successor. In absence of any usage of appointment of "oint Mutawalli or any clause in Wakfnama, sole surviving Mutawalli has no right or obligation to appoint a "oint Mutawalli. +I. ppointment by ?oard of Wakfs :- 'ection = of the $a%f ct empowered the $a%f ?oard to appoint a Mutawalli where there is a vacancy provided the terms of $a%f deed has to be observed in such an appointment. !he ?oard may also appoint a Mutawalli on such conditions and for such period as it thin%s fit where a dispute e#ists between two or more persons to be appointed as Mutawalli. $a%f ?oard is also empowered to ta%e over the management of $a%f where no suitable person is available to be appointed as Mutawalli. !his provision is given in section = of the ct. $hat were once powers of the 7aCi has been given to Wall ?oard and it is competent even to appoint a person as Mutawalli against the wish of Wakf if such appointment in the changed circumstance is for the benefit of those for whom the Wakf was created. !his would be an e#ceptional case because as a general rule any conditions laid down by the Wakif shall be respected. :apacity of a Mutawalli :-  Mutawalli must have the following 9ualification/ (i) Mohammedan or non-Mohammedan: !he Mutawalli may be a Muslim or nonMuslim. !he office of Mutawalli does not re9uire any religious or spiritual obligations, so a non-Muslim can also be appointed as Mutawalli.

(ii) Male or ,emale: !he Mutawalli may be either a male or a female, a woman is not debarred from acting as Mutawalli because the office does not involve any religious or spiritual obligation. It means a female and the non-Muslim are legally 9ualified to be appointed as a Mutawalli. It is because a Mutawalli is primarily concerned with the superintendence or management of the Wakf property. 'upervision and management is a non-religious activity. ?ut, where the Mutawalli is re9uired to discharge also some religious function, a female or a non-Muslim cannot act as Mutawalli. ccordingly, in the following cases, a female and a non- Muslim cannot be appointed as Mutawalli: )a* $here the Mutawalli is to act as *ajjadnashin or a spiritual head. )b* $here the Mutawalli is to act as imam, i.e., where he is re9uired to lead the assembly of people for religious prayers. )c* $here the Mutawalli is to act as a Mulla.  land assigned to a Mulla as remuneration of his office, cannot be succeeded by any female successor. )d* $here the Mutawalli is re9uired to give religious preaching i.e.5 where he has to

(( act as 2hati. )e* $here the Mutawalli is re9uired to act as muja"ar of a 3ur$ah. )iii* Any *e8t: !he Mutawalli may belong to any sect or sub-sect.  *hia may be appointed as Mutawalli of a *unni Wakf )iv* *ound-mind: !he Mutawalli must not be of unsound-mind.  blind person may also be appointed as Mutawall )v* A$e of Majority: !he Mutawalli must have attained the age of ma"ority. ?ut, a minor may be a Mutawalli where the office of Mutawalli is hereditary and the person entitled to succeed is a minor, or where the line of succession is laid down in the wakfnama and the office fall on a minor, and then the office may be held by that minor.

4emuneration of a Mutawalli :- ;emuneration may be fi#ed either by the Wakif or court. . emuneration not a right :  Mutawalli cannot claim remuneration as a matter of right. ?ut a Wakif may provide for remuneration for the Mutawalli. ;emuneration may consist of anything such as fi#ed amount or residue for the income of Wakf property after meeting all the e#penses of the Wakf 'uch provision is made in the Wakflwma. 0. emuneration fi6ed by the court: In the absence of any provision in the Wakfnama, the court has the power to allow remuneration to the Mutawalli. ?ut the court cannot fi# a sum e#ceeding one-tenth of the income of the Wakf property. !he court also has the power to increase the salary if the amount fi#ed by the Wakif is small, but the court can increase it up to but not above one-tenth of the income.7nder the *hin law, the Wakf may appoint himself the first Mutawalli and ta%e a reasonable remuneration not e#ceeding that which is payable to other Mutawallis Power and +unction of a Mutawalli :- s said above and held by different courts the property of Wakf vests in lmighty and he is simply manager of it. &owever, a Mutawalli has the power to do all acts for the management and administration of the $a%f-properties. !he Mutawalli is manager of the $a%f-property. &is primary duty is to preserve the property li%e his own, but to manage and spend it li%e a servant of od. Mutawalli is not owner of the $a%f-property, the property vests in od. Cowers of a Mutawalli are as following/ 1. (ower of management and administration:  Mutawalli has the power of management and administration of $a%f-property. &is legal position is that he is a manager having no beneficial interest in the $a%f-properties. &e is only a

( superintendent of the property. &e can only hold the property and control it. !he $a%f property does not vest in him but he can sue for possession of the Wakf  !he 'upreme :ourt in 7ain 8ar 9ung v. )irector of #ndowment, I; 1= sc @ has held, 4the manager of the Wakf is the Mutawalli, the overnor, 'uperintendent or :urator. ?ut in that capacity, he has no right in the property belonging to the Wakf, the property is not vested to him and he is not a trustee in legal sense.  !herefore, there is no doubt that the Wakf to which the ct applies is, in essential features, different from the trust as is %nown to 2nglish law.5

0. (ower of incurring )ebt:  Mutawalli has no power of incurring a debt unless he is permitted either by a provision of the Wakfnama or by the court.  person who gives loan to a Mutawalli for carrying out the purposes of the Wakf has no remedy against the $a%f properties, he can not claim to be indemnified out of the Wakf funds. . (ower of alienation of Wakf properties: s already discussed, a Mutawalli is not owner of the $a%f-property. 'o, he cannot transfer the property by sale, e#change, gift or mortgage. &owever, a Mutawalli can transfer the $a%f-property in following situations/ )a* $here the founder has e#pressly authorised the Mutawalli to sell, e#change, mortgage etc., the property, or )b* $here the Mutawalli has ta%en prior permission of a court for transferring the property. 'o, a Mutawalli may alienate by way of selling, mortgaging or e#changing the Wakf properties only if there is provision in the Wakfnama related to alienation or he must obtain the prior permission of the court. &owever, prior permission of the court is not hard and fast rule. If the transfer is for the benefit of the Wakf or is urgently re9uired in the given circumstances, the Mutawalli may alienate the property first and thereafter get the permission.  !he :ivil :ourt is entitled to control the Wakf for its power administration. It is duty of the court to give effect to the e#press wishes of the Wakif. !he court has general power of superintendence over 'o if the Wakf restricts the court for e#ercising such power by any provision in the Wakfnama, then such a provision is null and void.

3. (ower to grant 3ease: Lease is a transfer of the right of en"oyment of an immovable property on rent. !he Mutawalli has power to grant leases of the Wakf  property5 but his power is limited as regards thK period of lease. If the Wakf  property is an agricultural land then Mutawalli cannot grant a lease of the Wakf;ro;erty for more than three years. In case of non-agricultural land, i.e.5 residential place, he can grant lease only upto one year.  lease for more than the allowed period may be granted only if either the Wakfnama specifically allows him

(< to do so or the court has granted permission.< $hile giving permission for longer periods or approving unauthorised leases retrospectively, the courts are re9uired to ta%e into account, )a* the interest of the Wakf or, )b* the interest of its beneficiaries, or )c* any legal necessity for the transaction.  ight of (re-emption:  Mutawalli cannot e#ercise right of pre-emption for the $a%f-property. $here a land which is ad"acent to the $a%f-property has been sold, the Mutawalli cannot claim repurchase or substitution under the right of preemption. =. (ower to ompromise: 'ection  of the Wakf ct, 1, even bars a Mutawalli%s right to compromise hi a suit or proceedings without the sanction of the ?oard.

$uties of Mutawalli :- 'ection > of the Wakf ct, 1, provides for duties of Mutawallli as/ I !o carry out directions of the ?oard according to law, II. !o furnish returns and information as re9uired by the ?oard provided under the ct and rules made thereunder, iii. !o allow inspection of Wakf property, accounts, records, deeds and documents, lv. !o discharge of public dues, +. !o do any other act which is lawfully re9uired to be done under the provisions of the ct. ;emoval of a Mutawalli:- 7nder pure Islamic law 4power to appoint a Mutawalli rests with the founder and after him with the e#ecutor.F ?ut, once a Mutawalli has duly appointed, he cannot be removed by the founder for misconduct, etc., e#cept where the founder has e#pressly reserved such a right. &owever, under following circumstances, Mutawalli can be removed from his office/ 1. &emo"al y the Wakij If the $a%f reserved the power of removing the Mutawalli in the Wakfnama, then only he can removed him from Mutawalliship. 'o, in the absence by any e#press reservation of the power of removing a Mutawalli, the Wakf has no such power related to the removal. (.

&emo"al y the ourt: !he court has absolute power to remove a Mutawalli.  !he court may remove him on the ground of misfeasance, breach of trust or for his unfitness such disabilities, etc. !herefore, the court is competent to do all such things which it deems necessary for proper administration of the $a%f-property. !he court has power to remove the Mutawalli from his office of the following circumstances/ )i* 6on-payment of ta#es, spending money rec%lessly, failure to produce accounts. )ii* $here a Mutawalli has become insolvent. )iii* Ma%ing unauthorised transfers of the Wakf property and fraudulently

( selling $a%f-property. )iv* uilty of malversation. )v* Misfeasance and breach of trust. )vi* rave dereliction of duty.  !he court5s power of removal is unfettered and the court can remove a Mutawalli even if the settlor has specifically laid down that he should not be removed.

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