The essential conditions for a valid waqf are given below:
(1) There must be a permanent dedication.
(2) The founder of the waqf must be a competent person.
ADVERTISEMENTS:
(3) The subject-matter must be a transferable property.
(4) The object of the waqf must be religious, pious or charitable, under Muslim law.
(5) The formalities required to constitute the waqf must be duly completed.
(1) Permanent Dedication:
Waqf is a transfer of ownership without any consideration made generally with religious motives. This gratuitous transfer is made in such a manner that after constitution of the waqf, the substance or corpus of the property must be detained. In order to detain the property, it is dedicated to God. When a waqf is constituted, it is presumed that a gift of some property has been made in favour of God.
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ADVERTISEMENTS:
As the ownership of the property is vested in God, the corpus is detained for ever and usufruct is utilised continuously for its objects. By transferring the ownership to God, the dedication becomes permanent. Under Muslim law, perpetuity is an essential condition for every waqf.
This is ensured through a legal fiction that waqf property becomes the property of God. Waqf for limited duration say, for ten years or eight years, is void. The theory of vesting the property in God has been accepted also under the Shia law.
Although the definition of waqf under the Act does not require that there should be an express dedication to God, but, it is implied that dedication becomes permanent only by vesting the property in God. In Mohd. Ismail v. Thakur Sabir Ali the Supreme Court observed that the expression, “permanent dedication” in the definition of waqf under Sec. 2(1) of the Musalman Waqf Validating Act, 1913, signifies that the waqf property is vested in God.
ADVERTISEMENTS:
The court further observed that even in the Family Waqf, (Waqf-al-al-Aulad), the property remains in the implied ownership of God. Thus, for constituting a lawful waqf, it is necessary that there should be a permanent settlement of a property for some religious or charitable purpose.
‘Permanent dedication’ or, the concept of vesting of the waqf-property in God has following legal effects:
(a) Non-Transferability:
After completion of the Wakf the waqf-property becomes non-transferable i.e., it is ‘tied up’ forever.
(b) Irrevocability:
By permanent dedication the waqf becomes irrevocable. Once a waqf has lawfully been constituted, it cannot be revoked. In the creation of waqf it is implied that since the ownership of the property is presumed to vest immediately in God, the settlement is irrevocable. The waqif as a human being cannot subsequently revoke it because this would amount to taking back from God whatever is given to Him.
Any provision in the waqf that founder may revoke it whenever he likes, would be un-Islamic and also inconsistent with the very concept of waqf. Therefore, it is presumed that once a waqf always a waqf. Where a settlor reserves to himself the power of revocation, the waqf is void ab initio.
A deed of waqf provided that one of its waqif was authorised to change completely the trusts created under the deed and was also authorised to create a new waqf of the same property. It was held by the court that the power of revocation rendered the whole waqf void.
But it must be noted that revocation means cancellation of a waqf or to make a complete change in it. Some alteration in respect of the beneficiaries or in the rules of procedure is not regarded as ‘complete change’ and, the waqf is not deemed to be revoked.
Where a settlor reserves to himself the power of amending the Waqf-deed only for appointing a new mutawalli or to alter the rules relating to administration, there is no complete change in the waqf and it does not amount to revocation; the waqf is therefore, valid. But, if the settlor reserves to himself the power to change the very object of the waqf, there is a revocation and waqf as such is void.
A testamentary waqf is revocable. It may be revoked by the settlor any time before his death. The reason is simple. A testamentary waqf is like a will and therefore, it comes into existence (i.e. begins to operate) only after the death of the waqif.
Before the death of the settlor, the property continues to remain with the waqif; it is transferred to God only after waqif s death. A waqf constituted during death-illness is regarded as a testamentary waqf. Therefore, a waqf constituted during death-illness may also be revoked by the settlor any time during his life.
(c) Absolute and Unconditional:
Another important feature of ‘permanent dedication’ is that the dedication is absolute and unconditional. There cannot be any waqf subject to any condition or contingency. A conditional or contingent waqf is void. Dedication cannot be permanent if its existence depends on some condition.
Thus, where the waqf deed provided a condition that in the case of any mismanagement, the property would be divided among the descendants of the waqif it was held that the waqf was void.
It is therefore; clear that the existence of a waqf must not depend upon any uncertain future event. Similarly, the creation of a waqf must also not be conditional. The constitution of a waqf must be absolute, not depending on any condition or contingency.
Where the creation itself is dependent on some condition or contingency, the waqf is void or, more properly, the waqf is not created at all. In Muhammad Arif v. State of Gujarat, the Supreme Court has confirmed the law that where the creation of Waqf is dependent on any future event, the waqf is void ab initio. Facts of this case are as under.
Nazaf khan had executed a will in favour of the mother-in-law of his deceased son (Mst. Kariman) saying that he has neither any child alive nor any legal heir and that Mst. Kariman who herself is issueless has been taking care of me in my old age.
The will provided further that “after the death of Mst. Kariman, my all properties would become waqf-property” and its income would be spent for the maintenance of the mosque situated in Jatog. The will also provided that (after becoming waqf-properties) no person can mortgage or sell these properties.
On the basis of these statements in the will, it was pleased that the will was a ‘testamentary- waqf. But, rejecting this argument the Supreme Court held that since the constitution of Waqf was dependent on the death of a specified person (Mst. Kariman) therefore the Waqf is void ab inito.
However, it must be remembered that where the waqf is to operate and come into existence upon the death of the waqif himself, the waqf is valid because it would be treated as a testamentary waqf.
(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.
(a) Capacity to Constitute Waqf:
Every Muslim, who is of sound mind and has attained the age of majority, has capacity to constitute a waqf. In other words, as regards capacity of a Muslim for making a 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 person is void.
The waqf must also be adult. For purposes of making waqfs, the age of majority is eighteen years (or twenty-one years if the minor is under supervision of courts of wards). Thus, a person below the age of eighteen years (or twenty-one years as the case may be) is a minor and has no capacity to constitute any waqf.
Waqfs constituted by minors are void ab initio and cannot be validated by any subsequent ratification. The guardian of a minor cannot make any waqf on behalf of the minor. Waqfs constituted by guardians on behalf of minors are void ab initio.
Waqf by Non-Muslims:
Waqf is an institution of Muslim personal law; therefore, the dedicator is generally a Muslim. But a non-Muslim can also constitute a valid waqf. According to the Waqf Act, 1954, and the Waqf Validating Act, 1913 the waqif must be a person professing Islam. The dedicator must profess Islam i.e., believes in the principles of Islam’, he need not be a Muslim by religion. Ameer Ali observes:
“Islam is not a necessary condition for the constitution of a waqf. Any person of whatever creed may create a waqf but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines.”
Accordingly, the Madras and Nagpur High Courts have held that a non-Muslim can also create a valid waqf provided the object of waqf is not against the principles of Islam. Patna High Court has also held that a valid waqf may be constituted by a non- Muslim. However, according to Patna High Court a non-Muslim waqf may constitute only a public waqf; a non-Muslim cannot create any private waqf (e.g. an Imambara).
It is submitted that a non-Muslim cannot constitute also a family-waqf (Waqf-al-al- aulad). As regards the religion of waqif the statutory provisions in the Waqf Validating Act, 1913, and also in the Waqf Act, 1954, contain the expression ‘professing Islam.’ This may be liberally interpreted to include any non-Muslim having faith also in the principles of Islam.
Whether a non-Muslim really believes in the Islamic doctrines, may be evidenced from the object for which he constitutes the waqf. If a non-Muslim constituted any waqf for a temple it is clear that he has no faith in Islam. It is, therefore, submitted that a non-Muslim is also competent to make a waqf provided its object is not un-Islamic.
(b) Right to Make Waqf:
Capacity alone is not sufficient. The waqif must also possess the right to make the waqf. When a waqf is constituted there is a permanent transfer of ownership of the property. Therefore, the settlor must be owner of the property dedicated. If the subject- matter of a waqf is not owned by the settlor at the time when the waqf is made, the settlor has no right to make waqf. A person having the capacity but no right cannot constitute a valid waqf.
For example, a Muslim of sound mind and having attained the age of majority cannot dedicate the properties owned by others. It is therefore necessary that absolute interest in the dedicated property must be vested in the waqf whether a person has 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 person, who was actually the owner of a property but was under a wrong impression that he was only its mutawalli. It was held by the court that he had the right to constitute a waqf of that property.
A lessee or a tenant has no right to make any waqf of the property under his possession because, he has no ownership. Similarly, a usufructurary mortgagee has no right to constitute any waqf of the property in his possession because he has no dominion over that property.
In brief, the dedicator must have the title or absolute interest in the subject-matter at the time of making of waqf. 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.
Waqf by Pardanashin Lady:
A Pardanashin lady is that lady who generally lives in seclusion (pardah) and does not move in public. A pardanashin lady may be a competent waqif. Such a lady has right to make waqf of her properties provided she possesses the required capacity and right.
But where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the waqf and had fully understood the nature of the transaction.
Consent of Waqf Must is Free:
The waqif must apply his independent mind in dedicating the property. That is to say, the waqf must have been made with free consent of its founder. Where it is proved that waqf was constituted under compulsion, undue influence, coercion, force etc., the waqf is void.
Amount of Property Dedicated:
A dedicator has right to constitute a waqf of his entire properties without leaving anything for his heirs. But, in the case of a ‘testamentary- waqf, the founder has no right to constitute a waqf of more than one third of his properties.
In other words, in the cases of inter vivos waqfs the founder is competent to constitute a waqf of his entire properties whereas, in respect of testamentary waqf the founder has no right to constitute waqf of more than one-third of his properties without consent of his legal heirs.
(3) Subject-Matter of Waqf: The Property:
Any property, whether movable or immovable, tangible or intangible, may be the subject-matter of a waqf. But, the earlier Muslim jurists had given conflicting opinions regarding the nature of the waqf property.
According to Abu Hanifa, only immovable property could be dedicated in waqf. On the other hand, the Shafie and the Shia jurists held that lands and everything lawfully saleable such as horse, arms etc. may be a valid property for a waqf.
But, after some time, almost all the Muslim jurists agreed that besides lands, following properties were also the subject of a waqf: (i) cattles (ii) implements of husbandry (iii) Quran for public reading in the mosques and, (iv) other movable articles not necessarily consumed in the using. War-horse, camels and even a sword was regarded as subject-matter of waqf.
Before the Waqf Validating Act, 1913, the opinions of the various High Courts of India were divided. The Calcutta, Bombay and Madras High Courts held that essentially only the immovable properties could be dedicated in waqf; but those movables could also be subject-matter which was accessories to the dedicated immovable property.
Thus, according to these High Courts, a movable property could not be a waqf property if such movable was not accompanied with some immovable property. A movable property could not be dedicated independently unless its waqf was allowed by custom.
On the other hand, Allahabad High Court had held that a movable property could be independently dedicated in waqf; even coins and shares of Joint Stock Company were valid subject-matter.
What can be Subject-Matter of Waqf?
After 1913, the courts in India have followed the definition of waqf given in the Waqf Validating Act. Under Section 2(1) of this Act, ‘any property’ may be dedicated in waqf. At present, a waqf may be constituted of both the kinds of properties, movables as well as immovable.
Moreover, the expression ‘any property’ means not only tangible property but, it also includes intangible properties. Any beneficial interest, which is owned by the dedicator, may be a lawful subject-matter of waqf. Accordingly, it has been held that a valid waqf may be constituted of the following properties:
(i) Government promissory note.
(ii) Money in cash.
(iii) Offerings in a shrine or dargah.
(iv) Proprietary rights held as a grove holder.
(v) Shares in a company, and
(vi) Government securities.
What cannot be Subject-matter of Waqf?
It has been held by the courts that the following kinds of property cannot be subject-matter of a waqf:—
(i) A dower-debt.
(ii) Right to recover money from debtor under a simple money decree.
(iii) Rights of a usufructuary mortagagee.
Unpaid dower is like a debt in which husband is like a debtor and wife is like a creditor. Right to claim dower from husband is wife’s ‘beneficial interest’ and as such, it is her ‘property’. But, until it is realised by the wife, the dower-debt is regarded as future- property.
Therefore, the courts have held that since dower-debt or the decree for recovery of this debt is a future-property and does not exist at the time of making of waqf, therefore, a dower-debt cannot be subject matter of waqf.
Right to recover money under a simple money-decree is also a future proper which does not exist at the time of constitution of waqf. Therefore, right to realise money (from debtor) under a simple money-decree is not a subject-matter of waqf. However according to Fyzee, the right to recover money from the debtors under a money decree, may be dedicated in waqf because the decree holder is entitled to sell his interest and invest the proceeds in a profitable form.
Similarly, right of usufructuary-mortgagee to recover his debt being a future- property is not a subject-matter of waqf. But Tyabji holds that the rights of an usufructuary mortgagee may be a lawful subject-matter of waqf because in this case the waqf is not constituted of the property mortgaged but of the ‘rights of mortgagee’ and the rights of the mortgagee are his beneficial interest owned by him; therefore, a waqf of rights of an usufructuary mortgagee is not invalid.
It is submitted that in view of the wide meaning given to expression ‘any property’ in Section 2(1) of the Waqf Validating Act, 1913, anything transferable may be dedicated in waqf provided it is owned by the Waqif. The subject-matter of a waqf may be a tangible or iritangible (i.e. any beneficial interest) or, movable or immovable property provided it is owned by the waqif.
Waqf of Mushaa:
The Sunni doctrine of mushaa is not applicable to waqfs. A mushaa property may be a lawful subject-matter of Waqf. A Muslim may constitute a waqf of his undivided share in the property without separating it from the rest.
The waqf of mushaa is valid even if the property is divisible. This rule is based on the opinion of Abu Yusuf and is generally enforced by the courts in India. Thus, when a co-owner constitutes any waqf of undivided part of his share in a joint property, he need not separate it from the rest of the property even though its separation is possible. However this general rule is subject to following exceptions:
Exceptions:
A waqf of the mushaa property is not valid in the following cases:
(1) Waqf for construction of Mosque:
Where an undivided share is dedicated in waqf for the construction of a mosque, the waqf is not valid if the undivided share had not been separated from the rest of the joint property. In Gayasuddin v. Allahtala Waqf Mausuma, a Muslim died leaving his widow, two sons and three daughters.
The widow constituted a waqf of her undivided share (Mushaa) in the property for Mosque. The Allahabad High Court held since a waqf for Mosque cannot be constituted from undivided (Mushaa) property therefore, the waqf is not valid.
(2) Waqf for Graveyard:
Where the waqf is constituted for a graveyard for the general public, the waqf is not valid unless the undivided share has been partitioned.
(3) Waqf of Leasehold Property:
Where the, mushaa is a share in any leasehold property the waqf is not valid without partition. In other words, where one of the co-owners of a property, which is leased to someone, makes a waqf of his share in that joint property, the waqf is not valid unless the waqif has separated his share.
It may be concluded that waqf of undivided share of a joint property is valid except where the waqf is for (i) mosque (ii) for a grave-yard, or (iii) where the joint property is a leasehold property.
(4) The Object of Waqf:
The purpose for which a waqf is constituted is called its object. The object of a waqf must be religious, pious or charitable. Under Muslim law, a waqf is constituted for getting spiritual or religious benefits. Therefore, a waqf may be created for any object which is recognised in Islam as religious, pious or, charitable.
The object of a waqf must not be un-Islamic. If the object of any waqf is un-Islamic, the waqf is void. Section 2(1) of the Waqf Validating Act, 1913, provides that a waqf may be constituted “for any purpose recognised by the Musalman law as religious, pious or charitable.” The Act does not lie down as to what objects are regarded as religious, pious or charitable under Muslim law.
This is to be decided by the courts on the basis of the principles of Islam. There is no exhaustive list of the objects of which a waqf is permissible under Muslim law. The reason is that the word ‘religious’ does not signify only those purposes which are laid down in the religious books of Islam. It includes also the way of life. In Durghah Committee, Ajmer v. Syed Hussain Ali, the Supreme Court observed:
“a religion may not only lay down a code of rules for its followers… it might prescribe rituals and observance, ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extend to matters of food and distress.”
Therefore, any practice, ceremony or ritual which is common among the Muslims, may be regarded as ‘religious’. A waqf for all such activities are permissible under Muslim law. Similarly, the words ‘pious’ and ‘charitable’ too have wide meanings under Muslim law and include every purpose which may be recognised as ‘good’ in Islam. According to Ameer Ali, the test of what is pious or charitable is the approval of the Almighty.
Every ‘good purpose’ (wajah-ul-khair) which God approves or, by which approach is attained to Deity (God), is a fitting purpose (i.e. pious and charitable object) for a lawful dedication. It may be stated, therefore, that any object which is intended for the benefit of the human beings, may be a valid object of a waqf. However, it must be noted that those purposes which are against the principles of Islam, are not regarded as beneficial to mankind and a waqf cannot be created for such purposes.
For example, construction of a mosque, hospital, school etc. is regarded in Islam as beneficial to mankind therefore; a waqf may be validly constituted for these purposes. But, use of liquor, gambling, idol worship etc. is not regarded as beneficial to mankind under the religion of Islam. Therefore, a waqf for the construction of a wine-shop or, for a gambling house or, for construction of a temple, is void.
It is significant to note that under Muslim law, making provisions for the maintenance of one’s own children and descendants is also regarded as a pious work. Therefore, provision for the maintenance of exclusively the family members of the dedicator, is a lawful object. Such waqf is called a family-waqf, or waqf-al-aulad.
Secondly, according to Muslim jurists, benefit of the poor is the most approved form of charity. Therefore, in the absence of any purpose or upon the extinction of an object laid down in a waqf, the usufruct of the dedicated property may be lawfully utilised for the poors. In Bikani Mia v. Sukh Lai Poddar, Ameer Ali, J., has rightly observed:
“In every waqf, the benefication of which is bestowed upon any individual or upon one’s descendants, the charity is continued, upon their extinction, expressly or by implication of law, to the general poor.”
Legal Objects:
The following objects have been recognised as lawful for the creation of a valid waqf:
(1) Construction or maintenance of mosque and Imambara and provision for the conduct of worship or religious prayers.
(2) Keeping Tazias during the month of Muharram and provision for camels and Duldul for the religious procession.
(3) Burning lamps in mosques and maintenance of Khankah.
(4) Construction of a free boarding-house for pilgrims at Mecca.
(5) A shrine or tomb of any Pir or Fakir or a holy person, which has been given profound respect by the public.
(6) Reading Quran in public or private places.
(7) Celebrating the birth of Ali, the fourth caliph and son-in-law of the Prophet.
(8) Construction and maintenance of schools and colleges and providing for the teachers therein.
(9) Works of general utility such as bridges, drains, wells, tanks, burying grounds, hospitals etc.
(10) Distribution of money to the poor’s and helps for the poor’s to enable them to go on a holy pilgrimage.
(11) A feast for the community or a feast in honour of a saint.
(12) Provision for the residence of founder’s brother and his descendants in the waqf property.
(13) Provision for the maintenance and support wholly or partially of waqif’s family, children or descendants. Where waqif is Hanafi Muslim, provision for his own maintenance and support during his life-time or, for the payment of his debts out of the income of the property dedicated.
Death—Anniversary (Barsi) of Waqif etc:
In Islam a ceremony only for the benefit of the soul of a deceased person is prohibited. But, generally, in the death-anniversary of a Muslim, reading of the verses of Quran and other religious and charitable activities form a greater part of the celebration. Therefore, the object of a waqf which consists of mostly the religious and charitable deeds is valid although the occasion for such religious and charitable activities happens to be a death-anniversary.
But the celebration of death-anniversary of any Muslim only for the welfare of his soul is a celebration which is against Islam. Thus, where the waqf provides for the celebration of death-anniversary of the waqif or, his family, for the welfare of the soul and there is no provision for reading of Quran and distribution of alms to poor’s, the waqf is void because its object is un-Islamic.
The performance of Fatiha is a function in which the first Chapter of Quran is read. The performance of Fatiha forms part of almost every religious ceremony of Muslims. But generally the annual Fatiha is performed on the death-anniversary of a Muslim for the welfare of the soul of deceased Muslim and it is accompanied with distribution of alms to the poor. Provision for annual Fatiha for the welfare of the soul of a Muslim is a valid object of waqf provided the ceremony includes distribution of alms to poor.
In brief, it may be stated that the provision for celebrating the death-anniversary or performance of annual Fatiha for welfare of the soul of deceased Muslim, is a valid object provided the ceremony is accompanied with distribution of alms to poor’s.
It is significant to note that the various objects of a valid waqf, given in the abovementioned list, is not exhaustive. There may be other objects for which a lawful waqf may be constituted. Any object which is religious, pious or charitable under Muslim law may be a valid object.
The test is, whether the object may be included in the category of ‘religious, pious and charitable’ under the principles of Islam? If not, the object is un- Islamic and as such not a valid object. Where the object of a waqf is not valid under Muslim law, the waqf is void.
Illegal Objects:
Where the object of waqf is against the principles of Islam or, is prohibited in Islam, the object is illegal. The following objects have been held to be illegal objects of a waqf:
(1) Objects which are against the basic principles of Islam. For example, construction or maintenance of a temple or, a church or, provision for idol-worshipping, are un-lawful objects.
(2) Construction or maintenance of a gambling-den or a wine-shop or a shop for the sale of pork.
(3) Benefit for the utter strangers.
(4) Benefit for the lawyers.
(5) Benefit only for the rich people. However, incidental benefits also to the rich people do not render the object unlawful.
(6) Celebrating death-anniversary of the settlor or his family members without any provision for reading of Quran and distribution of alms to poor’s.
(7) Provision for spending income of the property for feasting Cutchi Memons on the death-anniversary of the settlor.
(8) Provision for the repair of settlor’s secular properties is invalid under the Shia law.
Objects Partly Legal and Partly Illegal:
Where the objects of a waqf are, partly lawful and partly unlawful, the waqf for the legal part of the objects is valid but as regards the illegal part,-it is void. In other words, if any waqf is constituted where a specific share of the property is to be devoted to an unlawful object, the waqf as regards the unlawful part of that property is void; that part of the property reverts back to the dedicator.
In such a case, the whole property is not regarded as waqf-property; only that part of the property which has been mentioned to be used for lawful objects is regarded as waqf-property. For example, if a property is constituted in waqf in such a manner that usufruct of its one-third is to be utilised for construction of a mosque and two-third for construction of a temple then, the waqf of only one-third of that property would be valid and enforceable. The waqf of the remaining two-third is not valid. This two-third of the property would revert back to dedicator.
But, where any specific part of the property has not been allotted for any unlawful object, the whole property is regarded as waqf property and its whole income is used for the lawful objects. Nothing reverts back to the dedicator; as if no unlawful objects were mentioned at all. Thus, in the above example, if it is not mentioned as to what part of the property is to be used for construction of temple then, the whole income would be utilised for construction of mosque.
Object must be certain:
Besides being lawful, the object of a waqf must also be certain. The purpose, for which a waqf has been created, must be reasonably clear. There are many lawful objects for which a waqf may be created e.g., advancement of religion, benefit to the poors, works of public utility etc.
By certainty of object, we mean that there is no difficulty in ascertaining as to what is to be done in furtherance of the waqf. But it is not necessary that the name of a particular object must be specifically mentioned in the waqf.
All that is required to make an object ‘certain’ is that the specific purpose, for which the income of property is to be spent, is not ambiguous or vague. That is to say, the particular object intended by the dedicator must be identified out of the several lawful purposes. Where it is not possible, the object is uncertain.
According to ancient Muslim jurists, a waqf is not void if its objects are uncertain. According to them, once it is established that a valid waqf has been constituted, it should not be allowed to fail only because its objects are not ascertainable. In such a circumstance, the income of waqf property may be used for the benefit of poor’s.
Thus, these jurists held that even though the objects are uncertain the waqf may continue to exist for giving religious merits to the dedicator. This view has been accepted by Tyabji, Ameer Ali and Fyzee. But, the modern jurists, following the English law, hold that if the object is vague and uncertain, the waqf is void. This view has been followed by Wilson and Mulla.
The judgments of the Indian Courts on the point of invalidity of a waqf for want of certainty are also conflicting. The Bombay High Court had held that a waqf for the benefit of Sayyads (descendants of the Prophet) was void because its object was not certain.
The court held that as it would be impossible to specify the persons who may genuinely be called as members of the Prophet’s family, the object was not certain. Where a waqf was constituted for Dharma, Khairat Vagaira, (religion, charity, etc.) it was held to be void because its object was too vague and uncertain to be enforced.
Similarly, where the waqf was constituted for such charitable objects which trustees should think proper and, for those purposes from which the settlor should obtain religious merits, it was held that the object was uncertain and the waqf was void.
The Chief Court of Oudh has also held that ‘charitable purposes’ as such, may be highly commendable under the Hanafi school but, if a waqf is created by using such general words as ‘for charitable purposes,’ the waqf must be void because of uncertainty in the objects.
As regards waqf constituted for umure khair or kare khair, the Allahabad High Court has held that validity of waqf for these objects depends upon the construction of these words. If these terms are interpreted as ‘benevolent purposes,’ ‘any good act’ and ‘good purposes’ respectively, the waqf would be void for want of certainty.
But a waqf constituted for ‘khairat or for khairati kam’ was regarded as a waqf for charity and it was held that specification of charitable purposes was not necessary. Thus the Allahabad High Court held that the waqf for khairat or for khairati kam was valid.
Calcutta High Court has observed that use of the general words, ‘purposes recognised as religious, pious or charitable’ in the Waqf Act, 1913 does not invalidate any waqf (including a family waqf). The purposes recognised as religious, pious or charitable, need not be expressed in clear terms in a waqf-deed.
The court further observed that ultimate gift to “proper acts of charity” was valid because it implied a gift to the poor which is the prime concern of Muslim jurists. A waqf for ‘Muzhabi aur Khairati kam ’ was interpreted as a dedication for ‘religious and charitable work’ by the Lahore High Court which held this object as reasonably certain and sufficient to uphold the waqf.
In Fazal Sheikh v. Abdur Rahman, the object of the waqf was “any object recognised by Shariat to be welfare”, Guwahati High Court held that this object was certain and the waqf was valid. The court observed that use of merely ‘welfare’ may cause some uncertainty but ‘welfare’ recognised by Shariat makes it evidently clear that object may be any purpose which is permissible in Islam. Accordingly, the waqf was held valid.
In view of the conflicting opinions, we find that law on this point is not uniform. Following the English concept of trusts, some courts have held that if the object is not certain, a waqf is void. On the other hand, some of the courts following the opinion of Muslim jurists, have held that even though the object of a waqf is laid down in too general terms to be certain, the waqf is valid and would not be allowed to fail for want of certainty.
It is submitted that the correct law is that if the object of a waqf is lawful but is not certain, the waqf may be held valid because in the absence of any specified object the benefit of the poor is an object which is always certain and usufruct may be used for this purpose.
According to Fyzee, once a clear and bona fide intention on the part of the waqif to create a waqf is established there is a good waqf which will not be allowed to fail. A valid waqf may thus be constituted where the objects are not specified at all because the poor, by necessary implication, constitute the ultimate beneficiaries of every waqf.
Doctrine of Cypres:
The word cypres means ‘as nearly as possible.’ Doctrine of cypres is a principle of the English law of trusts. Under this doctrine, a trust is executed, or carried out as nearly as possible, according to the objects laid down in it.
Where a settlor has specified any lawful object which has already been completed or, the object cannot be executed further, the trust is not allowed to fail. In such cases, the doctrine of cypres is applied and the income of the property is utilised for such objects which are as nearly as possible to the object already given.
The doctrine of cypres is applicable also to waqfs. Where it is not possible to continue any waqf because of (a) lapse of time or, (b) changed circumstances or, (c) some legal difficulty or, (d) where the specified object has already been completed, the waqf may be allowed to continue further by applying the doctrine of cypres.
In Salebhai Abdul Kader v. Bai Safiabu, the Bombay. High Court has held that where the particular object laid down in a waqf fails because of some reason, the waqf would not come to an end; it would continue and income of the property may be utilised for such other objects which are very similar to the object laid down in the waqf. Therefore, where it is not possible to use the property exactly in the manner directed by the founder, the court may apply this doctrine and direct a cypres application of the income of waqf property.
For example, if a waqf is created for removing illiteracy among the adults of a locality but, after some time it is found that all the adults of that locality have become literate then the income of that property may be utilised for giving them further education or, for educating children of that locality.
However, care must be taken that the income is applied for those purposes only which are as nearly as possible similar to the purpose intended in the waqf. Even if the object is not specified but a clear charitable intention is expressed in a waqf, the doctrine of cypres may be applied and the income of property may be used for any purpose recognised under Muslim law as beneficial to mankind.
However, the doctrine of cypres cannot be applied to validate any void waqf. Where the object is un-Islamic, the waqf is void and it can never be validated by applying this doctrine. Similarly, if the waqf is void because of uncertainty in its object, it cannot be validated and continued to exist by application of the doctrine of cypres.
Where a family-waqf (waqf-al-al-aulad) failed because of some legal defect, the Allahabad High Court held that the waqf cannot be continued as a public-waqf by application of the doctrine of cypres.
(5) The Formalities: Modes of Creation:
Formalities:
Muslim law does not prescribe any special formality for the creation of a waqf. It may be made orally or in writing. Writing is not necessary even if the property dedicated is an immovable property of high valuation.
A waqf of an immovable property worth several thousand rupees may be lawfully constituted by an oral declaration. If it is fully established that a dedicator has intended to make a waqf, its form is immaterial. It may be noted that even the use of the word ‘waqf’ is not necessary. A waqf-deed may be lawfully constituted by using any expression provided it is clear that the dedicator has intended to create waqf.
Registration:
Registration is not necessary for the validity of a waqf even though the property dedicated is immovable. As discussed earlier, even writing is not necessary. But, where a waqf of some immovable property is constituted through writing and the value of property is Rs. one hundred or more, the deed must be registered. If such a deed is unregistered it would not be accepted as a deed of waqf by any court of law.
Section 17(l) (b) of the Indian Registration Act 1908 provides that a non-testamentary document which purports to create any title or interest of an immovable property of the value of Rs. one hundred and upwards, must be registered.
Thus, where a waqf is created through a document (i.e. in writing) and the property dedicated is an immovable property worth Rs. one hundred or more, the existence of the waqf cannot be proved on the basis of that document.
Such a document would not be admissible by court of law as an evidence of the creation of waqf. But, this provision does not apply to a testamentary document (i.e. will). Therefore, a testamentary waqf is not compulsorily registerable. In other words, registration is not necessary in the oral and testamentary-waqfs.
Delivery of Possession:
A waqf may be lawfully constituted only by declaration. Delivery of possession and the appointment of mutawalli (manager of the waqf-property) is not an essential condition for its validity. According to Abu Yusuf, a waqf may be completed without appointment of mutawalli and without any delivery of possession of waqf-property to him.
This view has been accepted by the Indian courts. In Garib Das v. Munshi A. Ahmaaf, the Supreme Court held that for the validity of a waqf it is not necessary that a mutawlli is appointed simultaneously. Mutawalli may be appointed subsequently. The delivery of possession, actual or constructive, is also not necessary.
Shia Law:
Under the Shia law a waqf cannot be created by mere declaration. Delivery of possession of the property is necessary for the completion of waqf. Therefore, the mutawalli must also be appointed simultaneously so that he may accept the property. Thus, where the dedicator is a Shia Muslim, the waqf is completed by: (1) declaration, (2) Appointment of mutawalli and (3) delivery of possession to such mutawalli, However, where the dedicator appoints to himself as the first mutawalli, delivery of possession is not needed. But, after declaration the character of dedicator’s possession should be changed from owner of that property to that of a mutawalli.
Modes of Creation:
A waqf may be created by any of the following methods:
(a) By dedicating the property immediately i.e. inter-vivos.
(b) By dedicating the property under a will i.e. testamentary waqf; and
(c) By immemorial user.
Waqf Inter-Vivos:
Where the dedicator creates any waqf either orally or in writing and intends that it is to be constituted during his life, the waqf is inter vivos. Where a waqf is inter vivos, the ownership of the property is divested from the dedicator and is vested in God immediately after its constitution. The waqf is complete as soon as the declaration has been made and comes into being with immediate effect. Such waqfs are irrevocable.
Testamentary Waqf:
Where a waqf is created through a will, it is called a testamentary waqf. A testamentary waqf does not become complete before the death of the dedicator. Like a will, a testamentary waqf becomes operative only after the death of its dedicator.
The result is that before the waqif s death, the ownership continues to vest in him. As such, a testamentary waqf may be revoked by a waqif at any time during his life. Another significant feature of a testamentary waqf is that it is subject to the Muslim law of wills. The rule of bequeathable one-third is applicable also to such waqfs.
Thus, where a dedication is made through a will, not more than one-third of the total property may be given for waqf without consent of dedicator’s legal heirs. For the waqf of a property exceeding one third of the waqif s total assets, consent of his legal heirs is necessary. The difference between a non-testamentary (inter-vivos) and a testamentary waqf may be summarised as under:
(i) An inter-vivos waqf takes place immediately whereas, a testamentary waqf operates only after the dedicator’s death.
(ii) An inter vivos waqf is irrevocable but a waqf constituted through a will may be revoked by the waqif any time during his life.
(iii) In a non-testamentary waqf there is no restriction regarding the quantity of property dedicated. The dedicator may constitute the waqf of his entire property. In the case of a testamentary waqf, a property in excess of one-third may be constituted in waqf only upon the approval of legal heirs of the dedicator.
(iv) Under the Indian Registration Act, a non-testamentary waqf of immovable property must be registered if the waqf is created in writing and the value of property is Rs. 100 or more. But registration of testamentary-war is not compulsory whatsoever be the nature and value of the property.
Waqf by Immemorial User:
Waqf may also be constituted by a continued use of any property for some religious or charitable purpose. Where an immovable property is being used as a waqf property since a very long time, it is presumed that the waqf has always been in existence. The very fact that a property is being used for any religious or charitable purpose from time immemorial creates a lawful waqf.
Such a property is presumed to have been constituted in waqf by its immemorial user. Where a land is being used for a religious purpose, e.g. for a mosque or a burial ground or for the maintenance of a mosque, from time immemorial, the land is by user waqf although, there is no evidence of an express dedication.
Basis of the constitution of a waqf by immemorial user is the continued use of a property since such a long time that no person could remember as to when this waqf did not exist. In other words, if some property had always been used as a waqf property without any objection, then the presumption is that waqf must have been constituted sometime in the past but its evidence is not available because of long duration.
It is a settled law that in a case where long period has elapsed since the origin of an alleged waqf, user can be the only available evidence to show whether property is waqf or not.
Where there is sufficient proof that a property has been used in the past by general public as a mosque or a place for religious prayers, there is strong presumption that the owner of that property has no right over that property and that it has now become a waqf.
In such a case it cannot be said that the original owner has given merely any licence or personal permission to the public to use his property. But, it must be remembered that waqf by immemorial user is constituted only where it would be proved that the property was used continuously by the public and that there was no break. Thus, a mosque in a private house can never be recognised and accepted as waqf by user if it was occasionally used by public or, that it was never used by the public generally.
Where a piece of land has been used from time immemorial as a burial place by the public, the piece of land becomes a public graveyard by long user. But, if it has been proved that for some-time this practice was discontinued or that there had been only one or two burials by the public on that ground, there is no waqf by immemorial user.