CASE COMMENT: MAHOMED HAMIDULLA KHAN V.

LOTFUL HUQ AND ORS. (1881) ILR 6 Cal 744

(4.3) FAMILY LAW- II

Submitted by-

Vivaswan Deekshit

UID No.:UG-17- 112

Academic Year 2018-19

Semester IV

Submitted to-

Prof. (Dr.) Vijendra Kumar, Professor of Law

Ms. Debashree Debnath, Research Associate
Ms. Ashwini Kelkar, Research Associate

Maharashtra National Law University, Nagpur

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Table of Contents
RESEARCH METHODOLOGY .............................................................................................3

RESEARCH QUESTIONS......................................................................................................3

OBJECTIVES OF THE RESEARCH ......................................................................................3

INTRODUCTION ...................................................................................................................4

ISSUES ...................................................................................................................................6

JUDGEMENT .........................................................................................................................6

RATIO DECIDENDI ..............................................................................................................8

CONCLUSION .......................................................................................................................8

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RESEARCH METHODOLOGY

Doctrinal research has been followed for the completion of this project. The research
started in the library of the university. Textbooks related to this topic have been referred
to. Several primary sources such as statutes have also been referred for this project. The
other major source of information is the internet. Articles available on the internet
concerning the project have been taken into account for this project through the
internet. Major source of information for this project have been books and internet.
Those websites have been referred to which have information regarding the topic to
explain the relevance of this topic.

RESEARCH QUESTIONS
 Whether the four annas, or rather the fourth share of the property which he appropriated
under that deed to his daughter Budrunnessa, is, under Mahomedan law, a valid “waqf,".

 What is considered Waqf under Mahomedan Law?

OBJECTIVES OF THE RESEARCH

The objective of this project is to critically analyze the case.

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 INTRODUCTION

The word wakf ' (waqf) and its plural from awkaf are derived from Arabic root Verb “
waqafd", “ uqifu", “ waqfan" or “ ruqufa" which means “to stop”, or “ to hold” “ to keep” or
to prevent property from passing into the hands of a third person. In a religious connotation,
the term wakf means to protect and preserve the property in such a way that (Asl) corpus
remains intact but its usufruct is dedicated for charitable purposes in perpetuity. When the
word is used in the legal sense with regard to land or building, it means that henceforth such
property ‟ is stopped.1 It is a contract the fruit or effect of which is to tie up the original of a
thing and to leave its usufruct free.2

The term “Wakf‟ is defined in the Encyclopedia of Islam as „a thing which while retaining
its substance yields a usufruct and of which the owner has surrendered his power of disposal
with the stipulation that the yield is used for permitted good purposes. 3 It is observed in M
Kazim vs A Asghar Ali4 that technically, it means dedication of some specific property for a
pious purpose or secession of pious purposes. As defined by Muslim jurists such as Abu
Hanifa, Wakf is the detention of a specific thing that is in the ownership of the waqif or
appropriator, and the devotion of its profits or usufructs to charity, the poor, or other good
objects, to accommodate loan. Wakf Act, 1954 defines Wakf as, “Wakf means the
permanent dedication by a person professing the Islam, of any movable or immovable
property for any purpose recognized by Muslim Law as religious, pious, or charitable.”

The essential conditions for a valid waqf are as follow:

1. Permanent dedication: The dedication of waqf property must be permanent and Waqf
himself must devote such property and give it for any purpose recognized by Muslim
law, like religious, pious or charitable. If the wakf is made for a limited period it won‟t be
a valid wakf and also there should be no condition or contingency attached otherwise it
will become invalid. The motive behind Wakf is always religious. When a Wakf is

1
Kozlowshi, George C. Muslim Endowments and Society in British India, (Cambridge University Press) 1985.
2
Neil B.E Baillie, A Digest of Mohummadan Law P 221.
3
Encyclopedia of Islam.
4
AIR 1932 11 Patna 238.

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 constituted, it is presumed that a gift of some property has been made in favor of God.
This is ensured through a legal fiction that waqf property becomes the property of God.

2. Competency of the Waqif:

Who Can Create a Waqf? : The person who constitutes the waqf of his properties is
called the „founder of waqf or, Waqif. The waqif must be a competent person at the time
of dedicating the property in waqf. For being a competent waqif a person must possess
the capacity, as well as the right to constitute the waqf.

there are only two requirements:

(i) soundness of mind and,

(ii) majority.

A person of unsound mind has no capacity to create any waqf because he or she is
incapable of knowing the legal consequences of the transaction. Waqf constituted by an
insane or minor person is void.

3. Right to make waqf: A person having the capacity but no right cannot constitute a valid
waqf. The subject matter of wakf should be owned by wakif at the time when wakf is
made. Whether a person has the right to constitute a waqf or not depends on the fact
whether the dedicator has a legal right to transfer the ownership of the property or not.
A widow cannot constitute any waqf of the property which she holds in lieu of her unpaid
dower because she is not an absolute owner of that property.

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 ISSUES

 Whether the four annas, or rather the fourth share of the property which he appropriated
under that deed to his daughter Budrunnessa, is, under Mahomedan law, a valid " waqf,"
or, in other words, that it is inalienable and incapable of being attached and sold in
execution of a decree against Budrunnessa

JUDGEMENT

Justice Morris in the following judgement said that there has been much argument before us as to
the real signification of the term "waqf." There is no doubt that there is a conflict of authority
between Baillie and the other writers on Mahomedan law, Macnaghten and Hamilton, on this
subject. But looking to the principal authority, the "Hidaya" as read by Abu Hanifa, who was
undoubtedly a Sunori, to which sect the family of Golam Sharuff belong, and looking to the
doctrines of his disciples, it seems to us that the balance of authority is strongly in favour of the
view as stated by the Bombay Court in the case of Abdul Ganne Kasam v. Hussen Miya
Rahimtulla (10 Bom. H. C. R., 7 at p. 18)-viz., that "to constitute a valid waqf there must be a
dedication of the property solely to the worship of God, or to religious or charitable purposes."
Abu Hanifa, undoubtedly, in two Hidaya, Hamilton, p. 334, points out that the appropriation, that
is waqf, must to be some "charitable" purpose. Now here it is manifest that the appropriation in
favour of Budrunnessa is not in the nature of a charity. It is simply in the nature of a settlement
upon the ¦daughter-a settlement of property which was to be heritable and to be taken by
Budrunnessa's descendants in certain shares. The words are clear; each daughter is to take four
annas, and in the terms of the deed "four annas share has been endowed in favour of each of the
said ladies." If, therefore, the principle underlying a waqf is charity, and if the ultimate
applications of property, the subject of "waqf," must be to objects which never become extinct,
and those objects are all of a religious and charitable character, then this particular appropriation
fails to answer to this description. Consequently the appropriation of the one-fourth share, which
is the subject of this appeal, is invalid, and cannot be held to be " waqf."

There is, however, some force in the argument which has been addressed to us, that

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appropriations in the nature of settlement of property upon a man and his descendants have been
treated by various exponents of Mahomedan law as legitimate appropriations under the
designation of " waqf." But these settlements are all under Mahomedan law termed sadukah, and
in the view apparently, Baillie, when a settlement of property is made in this way by a man in
favour of his descendants, the term sadukah must be used.

But we do not gather that this term is employed in the deed of 1st Bhadro 1248. But further, even
admitting that, under Mahomedan law, appropriations or rather settlements of this character can
be made, it seems to us clear that the present appropriation falls outside the principle of "waqf."
As explained in the case of Abdul Ganne Kasam v. Russen Miya Rahimtulla (10 Bom. H. C. R.,
7, at p. 18), the doctrine of settlement rests entirely upon a saying attributed to the prophet-"a
man giving subsistence to himself is giving alms"; but this doctrine only holds good according to
Hamilton (2 Hidaya, 351, note), "where a man appropriates the whole of his property, and so
reduces himself to poverty; in which case the charity is as effectual with respect to him (where
he necessarily reserves a sufficiency from the product for his own sustenance) as with respect to
any other pauper." So that to validate a "waqf" by making a settlement of his property on himself
or his descendants, a man must, in the view taken by the prophet, reduce himself to a state of
absolute poverty. In the present case it is clear, and it is admitted by the both sides, that there are
other properties vested in the appropriator besides those which are the subject of this deed.
Consequently, it cannot be said that Budrunnessa has received this property as a pauper. In both
points of view, therefore, it seems to us that this appropriation of a one-fourth share, or two
annas out of eight annas of Lot Kantabari, cannot be treated as a valid waqf. We, therefore,
dismiss the appeal with costs.

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 RATIO DECIDENDI

In the following judgement court said that to validate a "waqf" by making a settlement of his
property on himself or his descendants, a man must, in the view taken by the prophet, reduce
himself to a state of absolute poverty.

CONCLUSION

With the help of the following case we can say that the literal meaning of the word waqf is
„detention‟. In the legal context, waqf means detention of a property so that its produce or
income may always be available for religious or charitable purposes. property donated in name
of allah is considered Waqf. he law of waqf is “the most important branch of Mohammedan Law
for it is interwoven with the entire religious, social, and economic life of Muslims.