What Is Waqf Under Muslim Law?

A unique aspect of the socioeconomic structure under Mohammedan law is the institution of waqf. Waqf means "detention." Waqf, in legal terms, refers to the holding of property for the everlasting availability of its products or income for charitable or religious uses.

Waqf is an important institution because it serves two purposes: it supports the less fortunate people of society while also satisfying the human need for almsgiving. It is crucial to keep in mind that waqf refers to the lifelong and permanent dedication of assets that belong to God. This irreversible commitment of land results in the loss of the owner's rights.

You cannot sell, donate, or gift waqf property to a charity since it is no longer transferable. It is simply handled; the manager does not act as the owner or trustee; they are only the custodian. In this blog, we will discuss waqf in more detail, including its types, purpose and more. Let's get started…

History of Waqf

The notion of waqf under Muslim law originates from the early Islamic era when the Prophet Muhammad initiated the practice. He supported the practice of donating the property to charity in a way that prevented it from being sold, inherited, or given away and ensured that the earnings benefited the neighbourhood.

After Islam arrived in India, Muslims started to register their holdings as Waqf. Waqf has developed throughout time to become a fundamental component of Islamic charity and social welfare, providing funding for mosques, hospitals, schools (madrasas), and other public facilities all over the Muslim world. Islamic jurists created intricate legal frameworks to regulate the creation, administration, and succession of a waqf, and as Islamic empires grew, so did the waqf system.

The waqf system is still essential to modern Muslim communities, despite obstacles brought about by colonialism and governmental involvement. It has managed to adapt to changing socio-economic environments while upholding its core religious and altruistic values.

Understand the Purpose of Waqf

The main goal of establishing a “waqf” is to give continuous, unending assistance to humanitarian, social, and religious activities in a community. Based on the principle of “sadaqah jariyah” (ongoing charity), the “waqf” aims to provide long-term social benefits by allocating assets or property for public use.

Generally, these assets are meant to produce revenue or offer services to support various community welfare initiatives, fund healthcare facilities, maintain mosques, finance educational institutions, and assist the underprivileged.

The donor hopes to embody the Islamic ideals of charity, community service, and social justice by establishing a “waqf”, which is a legacy of goodwill and social responsibility that benefits society long after the donor's death.

Types of Waqf

There are various kinds of Waqf based on their perspective. The following are some of them:

• Public Waqf: Waqfs established for philanthropic, religious, or public objectives are called public waqfs.
• Private Waqf: "Waqf-ulal-Aulad" is another name for private waqf. This kind of waqf is created for the settlers' heirs and immediate family. It is a sort of family settlement in the form of waqf.

The main difference between public waqf and private waqf is the recipients and purpose of each. A public waqf is formed to benefit the whole community or a sizable portion of it. It might pay for public services like hospitals, schools, mosques, etc.

In contrast, a private waqf is established for the heirs or relatives of the donor. Private waqfs prioritize the welfare of the founder's family members; but, they may ultimately return to public use if there are no more qualifying family beneficiaries. Public waqfs are intended to meet larger social requirements.

Based on its output characteristics, waqf may be classified into the following categories:

• Waqf-Istithmari: It is intended to invest in waqf assets. The purpose of managing these assets is to produce revenue that will be used for the construction and renovation of waqf properties.
• Waqf-Mubashar: Services for beneficiaries or charity recipients are produced using Waqf assets. These assets include things like utilities and schools.

Waqf types concerning their purposes are as follows:

• Waqf Ahli: The main intent of the waqf is to provide for the heirs and offspring of its creator. However, the nominees are not allowed to sell or otherwise dispose of the property covered by the waqf.
• Waqf Khayri: This type of waqf is created for altruistic and kind reasons. Those who belong to the economically disadvantaged segments of society may be among the beneficiaries of this type of waqf. It is invested in the construction of colleges, universities, madrasas, mosques, and shelter houses. Everything in this is designed to support and elevate those who are struggling financially.
• Waqf al-Sabil: The general public is the waqf's beneficiary. This kind of Waqf is typically utilized to establish, despite being comparable to Waqf Khyari. It is a lot like waqf khayri, except that it is often utilized for building and establishing public utilities.
• Waqf al-Awaridh: Under this type of waqf, the produce is reserved for use in the event of an emergency or other unforeseen circumstance that may negatively impact a community's way of life and general well-being. Waqf might be tasked with meeting certain societal requirements, such as giving sick individuals who cannot afford pricey medications. It is also possible to utilize this waqf to pay for the upkeep of a village's or neighbourhood's utility services.

Legal Framework Related to Waqf

India has rules related to waqf that are designed to control how waqf properties are managed, protected, and administered. These regulations have changed throughout time to reflect the nation's historical experience with Islamic charity endowments. The following is a summary of the relevant laws:

Waqf Act of 1954

After independence, it was the first extensive law governing waqf properties in India. It made it possible for state-level Boards for Waqf to be established to supervise and manage waqf holdings and ensure that they are put to their intended charitable purposes.

Waqf Act of 1995

This act revised the previous Waqf Act. It provides stricter regulations for the management and defence of waqf holdings. Important sections consist of:

• State and Central Waqf Boards: The Act requires State Waqf Boards to be established. These boards would be in charge of managing and overseeing all waqf holdings under their purview. Additionally, it establishes a Central Waqf Council to supervise State Waqf Board operations and offer advice to the government on waqf problems.
• Survey of Waqf Properties: To guarantee accurate records and stop encroachments or misuse, the Act mandates that state governments survey waqf assets regularly.
• Registration of Waqf Properties: Since these organizations maintain records of these assets, all waqf possessions must be registered with the relevant State Waqf Boards.
• Waqf Holdings Administration: The Act outlines the mutawalli's (the trustee's) responsibilities. Additionally, it offers procedures for getting rid of mutawallis when there is poor management.
• Waqf Property Protection: The Act contains clauses that forbid the unlawful transfer, sale, or infringement of waqf property. It empowers the State Waqf Boards to bring legal action to protect waqf property.

2013 Waqf Amendment Act:

This revising Act improved the 1995 act by introducing numerous noteworthy changes. Here are a few of the most significant updates:

• Enhanced Authority of Boards: The reforms improved the Waqf Committees in the state's capacity to act quickly to stop encroachments and unauthorized transfers of waqf property.
• Establishment of Tribunals: The Act provides this formation to resolve disputes over waqf holdings. These tribunals seek to provide speedier case resolution while reducing the workload of regular courts.
• Notification of Public Properties Waqf: The alteration mandates that public notice be issued before any revisions are made to the records of waqf properties to encourage transparency and prevent unlawful adjustments.
• Penalties for Violations: The Act toughens up the sanctions for incursions and other waqf property-related offences.

People Also Read : The Waqf (Amendment) Bill, 2024

Essentials of Waqf

The "founder of waqf," often referred to as Waqif, is the one who forms the waqf of his possessions. The individual devoting the property must be qualified to do so under the law to become a waqif. The requirements listed below must be met for somebody to qualify as a waqif and make up a waqf:

• The waqf's constituent members must be Muslims.
• Must be a rational individual.
• Ought to have reached majority age.

A person may dedicate all of his assets to the establishment of a waqf, but more than one-third of an asset cannot be dedicated in the case of a testamentary waqf. The legal conditions involving Waqf are as follows:

• Unchangeability
• Continuing
• Unalienable
• uses of usufruct that are pious or compassionate.
• Completeness

Waqf can be established in the manners listed below:

• Through an Act Inter Vivos: This kind of waqf is formed during the waqif's lifetime between living voices, and it becomes effective right away.
• By Will: An act inter vivos waqf and a waqf constituted by will are incompatible. It is also known as testamentary waqf and goes into effect upon the waqif's passing. Without the heirs' permission, a waqf of this kind cannot manage more than one-third of the net assets.
• When a Person Passes Away or Becomes Unwell (marz-ul-maul): Similar to gifts given when a person is dying, these can be used up to one-third of their estate without the heirs' permission.
• By Immemorial User: Waqf property can also be formed by everlasting usage. However, this is subject to temporal limitations.

There are two ways to complete a waqf:

• Appointing a third party as the first mutawalli; or
• Having the founder declare himself to be the first mutawalli.

Understand Mutawalli:

"Mutawalli" refers to the supervisor or manager of the waqf. Unless specifically authorized by the waqf deed, the appointed person lacks the authority to sell, swap, or mortgage the waqf property without first obtaining the consent of the court.

A person can be designated as a mutawalli of a waqf if they meet certain requirements, such as being of sound mind, having reached majority age, and being competent to carry out the duties assigned to them under that waqf. In India, a foreigner cannot be named the Trustee of a property.

As per the customary procedure, the appointment of members is made by the person who founded the waqf. However, the following individuals are qualified to designate the Mutawaali if a waqf is established without a mutawalli:

• The founder's executor;
• the mutawalli on his deathbed; and
• the Court, which will adhere to the following guidelines:
  • The Court shouldn't, to the greatest extent feasible, ignore the settlor's instructions.
  • A member of the settlor's family should take precedence over a stranger.
  • The court is allowed to use its judgment in the event of a conflict between the settlor's lineal descendant and the non-lineal descendant.
• A congregation may also appoint a mutawalli in specific situations. He is responsible for the property's access as the wakf manager. The following rights belong to him:
  • He can employ the usufructs in a way that best serves the wakf. He is permitted to behave in good faith and in all reasonable ways to guarantee that the final beneficiaries can profit fully from the wakf. The fact that he is not the property's owner prevents him from selling it. He could be granted these powers by the wakif if they were specifically included in the waqf nama.
  • He can demonstrate the presence of acceptable circumstances or urgency to obtain permission from the court to sell or borrow money.
  • He has the option to sue to defend the wakf's rights.
  • He also has the authority to lease the land for fewer than three years for agricultural use and less than a year for non-agricultural use. With the appropriate court approval, he might request an extension of the term.
  • He has the right to compensation as specified by the wakif. If the compensation is insufficient, he may petition the court to have it increased.

The following are some conditions for the removal of Mutawalli in Muslim law :

• By the Court:The waqif cannot dismiss a mutawalli after he has been appointed. However, the Court may only remove the mutawalli for the reasons listed below.
  • He establishes an adverse claim to the land in himself and disputes its waqf status.
  • Despite having enough money, he fails to make repairs to the waqf premises and lets them go into despair; he willfully and consciously breaches trust or causes damage or loss to the waqf property.
  • If the mutawalli bankrupt.
• By the Wakf Board:
  • The Wakf Board is authorized to dismiss the mutawalli from his office per the terms specified in section 64 of the Wakf Act, 1995.
• By the Wakif:
  • Divergent opinions exist on this idea. Abu Yusuf states that the wakif may still remove the mutawalli even if he hasn't reserved the authority to do so in the wakf deed. Imam Mohammed, on the other hand, holds that the wakif cannot do so in the absence of a reservation.

Requirements for a Valid Waqf Under Sunni and Shia Law

Under Sunni Law

The Hanafi Law, also known as Sunni Law, stipulates that a legal waqf must meet the following requirements:

• A permanent commitment to any property.
• A person who professes Islam and is of sound mind should be the dedicator (waqif), not a child or a madman.
• The commitment must be made to a cause that is generous, religious, or holy according to Islamic law.

Under Shia Law

In Shia Law, the following prerequisites must be met for a Waqf to be regarded as legitimate: It must be permanent.

• It ought to be unconditional and constant.
• The good that was taken must be returned to its rightful owner.
• It is best to remove all waqf property from waqif.

Doctrine of Cypress in Muslim Law

Simply said, doctrines are laws or concepts that have been around for so long in the legal system that scholars and lawyers have bestowed upon them the highly esteemed title of "doctrine."

If a settlor has identified any legal object that cannot be accomplished or has already been completed, the trust cannot fail. Under these conditions, the doctrine of cypress in Muslim law concept is used, and the revenue from the property is allocated towards items that are as near as possible to the previously provided item.

The following circumstances apply to waqfs under the Cypress doctrine:

• time passing or conditions changing,
• unusual legal issues,
• or in cases where the fulfilled particularized object already exists.

The theory of cypress may permit the waqf to endure indefinitely. Now we’ll see some cases related to it:

Case 1: Smt. Faiqa Khatoon vs. Riyazur Rahman Khan Sherwani and Anr, 2008

In this instance, the Court decided that the wakf's funds should be used and spent "as nearly as feasible," under the Cypress Doctrine, to support the wakif's goal of helping his sons' descendants, especially sons' daughters. Because of this, the defendant—the daughter of one of the wakif's sons belongs to the group of heirs that section 3 of the Waqf Act defines as "beneficiaries."

Case 2: Sailendra Kumar Bhattaacharjee and Anr. vs. Paschim Singicherra Gram Panchayat and Anr., 2012

It was decided that the defendants had broken the terms and conditions by not building the stadium over the previous 25 years, for which the plaintiff had completed the gift deed, and that this was because the plaintiff was still living and begged for the deed to be revoked. Because the plaintiff is still living and prayed for the gift deed to be revoked, the Doctrine of Cypress does not apply in this situation.

Process of Establishing a Waqf

Here are the key steps to establish waqf:

Step1: Identify Your Goals and Mission

It is crucial to have a distinct goal and endowment vision before creating a Waqf. Choose a cause or area that you would like to help, such as poverty alleviation, healthcare, education, or any other subject that is in line with the aims of sustainable development. Setting clear objectives can help you organize your Waqf and guarantee its long-term effects.

Step 2: Get Expert Counsel

It needs a thorough grasp of the administrative, financial, and legal factors to establish a waqf. Consult with professionals who specialize in Waqf establishment for help.

Step 3: Assess the Structure and Assets

Determine which resources will be given to the Waqf. These may consist of assets, money, or other priceless resources. Examine each asset's appropriateness for producing a steady stream of revenue to fund the charity of your choice. Decide if your Waqf will be a single endowment or a cooperative endeavor with several stakeholders. Make sure to also decide on its structure.

Step 4: Write the Deed of Waqf

A legal document known as the Waqf Deed describes the terms, circumstances, and goals of the endowment. Collaborate with attorneys who specialize in Waqf cases to write a thorough and enforceable deed. The beneficiaries, the goal of the Waqf, and the administration and distribution of its revenue should all be spelt out in the deed.

Step 5: Designate Management and Trustees

Choose trustees who are informed, reliable, and dedicated to achieving the Waqf's goals. The trustees will be in charge of overseeing the Waqf's assets, making sure the deed is followed, and choosing wisely what to invest in and payout.

Step 6: Waqf Registration

Register the Waqf with the relevant authorities, following the laws in your jurisdiction. This phase ensures the endowment's sustainability and regulatory compliance by establishing its legal recognition and protection.

Step 7: Expand and Advertise the Waqf

After your Waqf is founded, publicly publicize its goals and mission. Interact with people and organizations who are committed to social justice and sustainable development as well as possible funders.

Administration of Waqf

Public endowments are established and safeguarded by the following norms:

• Act II of 1913, Official Trustees.
• Act VI of 1890, Charitable Endowments.
• Act XX of 1863 Concerning Religious Endowments, Section 14.
• Sections 92–93, Code of Civil Procedure, 1908.
• Act XIV of 1920, Charitable and Religious Trusts

Legal Challenges and Available Solutions

Wakf properties deal with issues including poor administration, unauthorized encroachments, and a lack of transparency, which are frequently made worse by political meddling and corruption. Extended legal processes and inefficient administration exacerbate the situation.

Among the solutions include tightening the legal system, digitizing documentation, enhancing management via responsibility and training, imposing harsher punishments, and setting up expedited courts to settle disputes quickly. Wakf laws must be known to the general public to protect these holdings.

Conclusion

Waqf plays a pivotal role in Islamic law, serving as a lasting commitment to charitable, religious, or community-oriented purposes. By understanding its historical roots, legal framework, and the intricate process of establishing and managing a Waqf, one can appreciate its significance in both Islamic tradition and modern legal contexts. From the roles and responsibilities of a Mutawalli to the various types of Waqf, this guide has covered all essential aspects, providing a comprehensive legal insight into the Waqf system. As you navigate the complexities of Waqf, it’s crucial to stay informed about the legal challenges and case laws that shape its application today. Whether you are looking to create, administer, or simply understand Waqf, this guide serves as a valuable resource for ensuring that the Waqf you establish or manage fulfills its intended purpose and remains compliant with the relevant laws.

FAQ

Q1. Is waqf only for Muslims?

Yes, a Waqf is primarily an Islamic institution, created under Islamic law, and is typically established by Muslims for charitable, religious, or pious purposes. However, the benefits of a public Waqf can be extended to people of all faiths, depending on the intentions of the Waqif (the person who creates the Waqf).

Q2. Who can create waqf?

Yes, a Waqf is primarily an Islamic institution, created under Islamic law, and is typically established by Muslims for charitable, religious, or pious purposes. However, the benefits of a public Waqf can be extended to people of all faiths, depending on the intentions of the Waqif (the person who creates the Waqf).

Q3. What is the validity of waqf?

The validity of a Waqf is established once the Waqif irrevocably dedicates the property for a religious, charitable, or pious purpose under Islamic law. Once created, a Waqf is considered perpetual, meaning it cannot be revoked or altered, and the property remains dedicated to the specified purpose indefinitely. The Waqf is managed by a trustee known as a Mutawalli.

Q4. Difference between public Waqf and private waqf

A public Waqf is established for the benefit of the general public or a community at large, regardless of their religion. Examples include mosques, schools, or hospitals. In contrast, a private Waqf (also known as a family Waqf or Waqf-alal-aulad) is created for the benefit of the Waqif’s family or descendants. While the purpose of a public Waqf is purely charitable, a private Waqf may include provisions for family members with a charitable intent

Q5. Can waqf land be sold?

Generally, Waqf land cannot be sold, mortgaged, or transferred because it is dedicated permanently to a religious or charitable purpose. The property is considered inalienable under Islamic law. However, there are certain exceptional circumstances where a Waqf property might be exchanged or sold if the property becomes unproductive or if it serves the best interest of the Waqf's original purpose. Such transactions typically require legal permission or a decree from a competent authority.