Submitted to-Mrs.

Abhilasha Kataria,
Submitted by- Ajit Singh Parihar, Roll no-565, B.Sc. LL.B(Hons.)

Family Law Assignment

Waqf in Muslim Law

Meaning of Waqf:

The literal meaning of “Wakf” is detention. According to Abu Hanifa, the

ownership in the Wakf property continued to be vester in the owner. As per
section 2 (e) of the The Mussalman Wakf Act, 1923, "Wakf" means the
permanent dedication by a person professing the Mussalman faith of any
property for any purpose recognised by the Mussalman law as religious,
pious or charitable, but does not include any wakf, such as is described in
section 3 of the Mussalman Wakf Validating Act, 1913, under which any
benefit is for the time being claimable for himself by the person by whom
the wakf was created or by any of his family or descendants. 1 Also as per
the definition of mutawalli given under the Mahomedan law, the moment a
waqf is created, all rights of property pass out of the waqif and vest in the
almighty. According to the two disciples, Abu Yusuf and Muhammad, waqf
signifies the extinction of the appropriator's ownership in the thing
dedicated and the detention of thing in the implied ownership of God, in
such a manner that its profits may revert to or be "for the benefit of
mankind." A wakf, however, is a trust for the purposes of s. 92 of the Code
of Civil Procedure.

Wakf may be made in writing or the dedication may be oral. There must,
however, be appropriate words to show an intention to dedicate the
property. The use of the word 'wakf is neither necessary nor conclusive. The
word wakf means detention or stoppage. There is extinction of the
proprietor's ownership and detention in the implied ownership of God. 2

1
sect i on 2 (e) of t he The Mussal m an Wakf Act , 1923
2
Mari am Bai v. Jaf f ar Abdul Rahman Sai t ('73) A. Mad. 191.
Submitted to-Mrs. Abhilasha Kataria,
Submitted by- Ajit Singh Parihar, Roll no-565, B.Sc. LL.B(Hons.)

Objects of Waqf:

As per section 178 3 , the purpose for which waqf may be created must be
one recognised by the Mahomedan Law as “religious, pious or charitable”.
A Waqf may also be created in favour of the settlor’s family, children and
descendants.

In case where a Waqf is created, for the mixed purposes, some of which are
lawful and some are not, section 180 of the same act says that it is valid as
to the lawful purposes, but invalid as to the rest, and so much of the
property as is dedicated for invalid purposes will revert to the waqif. Where
the property is not specifically dedicated to an object which fails, the whole
amount will be devoted to the valid object of charity.

As per Doctrine of cy-pres, where a clear charitable intention is expressed

in the instrument of waqf, it will not be failed because the objects, if
specified, happen to fail, but the income will be applied for the benefit of
the poor or to objects as near as possible to the objects which failed.

Though a wakf may be created orally, yet when the terms of a

dedication have been reduced to writing no evidence can be given to prove
the terms except the document itself or secondary evidence of its
contents . 4

It is not absolutely necessary that the writing by which a Wakf is

created should exist or there should be direct evidence about the creation
of a wakf and its terms. A wakf can be proved by showing immemorial
user of the property as wakf. 5

3
Sec 178 , Mulla’s Principles of Mahomedan Law
4
Shaikh Muhammad v. Bibi Mariam (1929) 8 Pat. 484
5
Chief Administrator of Auqaf v. Rashid-ud-daula 1961 (W.P.) Lah. 993
Submitted to-Mrs. Abhilasha Kataria,
Submitted by- Ajit Singh Parihar, Roll no-565, B.Sc. LL.B(Hons.)

As per section 184 of the said act, A wakf may be created by act inter
vivos or by will.

A wakf created by will is not invalid because it contains a clause that

the wakf shall not operate if a child is born to the testator. The reason is
that a testator has power in law to revoke or modify his will at any time he
likes, and he may therefore revoke a wakf created by will even without
reserving any express power in that behalf. 6

Shia law— It was held at one time that a Shia cannot create a wakf by
will. But this viev erroneous, and it has been held by the Privy Council
that a Shia may create a wakf by will. 7

There is a distinction between a wakf-bil-wasiyat, i.e., a will which

conveys the property o death of the testator to the mutawalli as wakf and a
wasiyat-bil-wakf, i.e., a will which makes of the property with a direction
to the donee to create the wakf desired. The distinction is of not of
substance. In the later case the property is not impressed with the
character of immediately. 8

Requirement:

According to Muhammad, the wakf is not complete unless, besides a

declaration rakf, a mutawalli (superintendent) is appointed by the owner
and possession tie endowed property is delivered to him. The founder of a
wakf may constitute himself the first mutawalli (superintendent). The
founder and the mutawalli being the same person, no transfer of physical
possession is necessary, whichever of the two views is upheld. Nor is it
necessary that the property should be transferred from his name as owner
to his name as mutawalli. 9

6
Muhammad Ahsan v. Umardaraz (1906) 28 All. 663
7
Baqar Ali Khan v. Anjuman Ara Begum (1902) 25 All. 236
8
Mahabir Prasad v. Mustafa (1937) 41 Cal. W.N. 933
9
Beliram V. Muhammad Afzal 50 Bom. L.R. 846
Submitted to-Mrs. Abhilasha Kataria,
Submitted by- Ajit Singh Parihar, Roll no-565, B.Sc. LL.B(Hons.)

Intention. — Where there is neither a declaration of wakf nor delivery

of possession, a mere intention to set apart property for charitable
purposes is not sufficient, to create a wakf, even if the income of the
property is applied to the intended purpose. If the document purporting
to create wakf is invalid, subsequent conduct proving the intention to
treat the property as wakf cannot render the endowment valid. 1 0

Rights of waqif:

According to section 190 1 1 of Principles of Mahomedan Law, the waqif, may

reserve to himself the power to alter the beneficiaries either by aiding to their
number or excluding some, and to increase or reduce their shares. Also as per
section 17 1 2 of the Indian Trusts Act, 1882, the trustee of the trust has a
discretionary power and the court is not authorized to control the exercise
reasonably and in good faith of such discretion. Section 36 1 3 of the same act
gives the power to the trustee that a trustee may do all acts which are
reasonable and proper for the realization, protection or benefit of the trust-
property, and for the protection or support of a beneficiary who is not
competent to contract.

10
Mahomad Safi v. Khadim Ali (1944) A.O. 291
11
Sec 190, Mulla on Principles of Mahomedan Law
12
Where there are more beneficiaries than one, the trustee is bound to be impartial, and must not execute the
trust for the advantage of one at the expense of another.
Where the trustee has a discretionary power, nothing in this section shall be deemed to authorize the Court to
control the exercise reasonably and in good faith of such discretion.
Illustration
A, a trustee for B, C and D, is empowered to choose between several specified modes of investing the trust-
property. A in good faith chooses one of these modes. The Court will not interfere, although the result of the
choice may be to vary the relative rights of B, C and D.

13
General authority of trustee.
Sec 36. In addition to the powers expressly conferred by this Act and by the instrument of trust, and subject to
the restriction, if any, contained in such instrument, and to the provisions of section 17, a trustee may do all acts
which are reasonable and proper for the realization, protection or benefit of the trust-property, and for the
protection or support of a beneficiary who is not competent to contract.
Submitted to-Mrs. Abhilasha Kataria,
Submitted by- Ajit Singh Parihar, Roll no-565, B.Sc. LL.B(Hons.)

A trustee, as per section 37 1 4 of the act is even empowered to sell any trust-
property, he may sell the same subject to prior charges or not, and either
together or, in lots, by public auction or private contract, and either at one
time or at several times, unless the instrument of trust otherwise directs.

As per section 118 1 5 of Principles of Mahomedan Law, a Mahomedan cannot

dispose of more than a third of the surplus of his estate after payment of
funeral expenses and debts. Under Mahomedan law, he property bequeathed
must be capable of being transferred and the testator should be the owner of
the said property. The property bequeathed should be in existence at the time
of death of the testator, even if it was not in existence at the time of
execution of the will or trust deed. Under Shia Law, the consent by the heirs
should be free and a consent given under undue influence fraud, coercion or
misrepresentation is no consent and the person who has given such consent is
not bound by such consent. The consent by the heirs can be given either
expressly or impliedly. If the heirs attest the will and acquiesce in the legatee
taking possession of the property bequeathed, this is considered as sufficient
consent. If the heirs do not question the will for a very long time and the
legatees take and enjoy the property, the conduct of heirs will amount to
consent. When the heir gives his consent to the bequest, he cannot rescind it
later on.

In a case of Daulatram v. Abdul Kayum 1 6 , the court said that the consent need
not be expressed; it may be signified by conduct showing a fixed and
unequivocal intention. It was held that where the property was disposed of by
the father and no objection was made by his heirs during the time of
formation of such a deed, it is assumed that there was an implied consent

14
Power to sell in lots and either by public auction or private contract.
Sec 37. Where the trustee is empowered to sell any trust-property, he may sell the same subject to prior charges
or not, and either together or ,in lots, by public auction or private contract, and either at one time or at several
times, unless the instrument of trust otherwise directs.

15
Sec 118, Mulla on Principles of Mahomedan Law
16
(1902) 26 Bom. 497
Submitted to-Mrs. Abhilasha Kataria,
Submitted by- Ajit Singh Parihar, Roll no-565, B.Sc. LL.B(Hons.)

from them. Later on after the death of the father, the sons cannot contend that
their consent at the formation of deed was not taken.