Originally the subject-matter of the Wakf consisted of properties of a permanent nature, such as land, fields, gardens, etc. But gradually all sorts of properties were made subject-matter of the wakf, and there is an instance when even a camel was made the subject-matter of the wakf. We find that a stage was reached when all types of movable properties which were unconsumable by use were made subject-matter of wakf.
Thus, working cattle, implements of husbandry, copies of the Koran for reading in mosques, warhoses, swords, and chest of money for loan to poor were made subject-matter of wakfs. Barring aside a few decisions, in which it was held that the land or immovable property alone could be subject-matter of wakfs, the Indian courts have taken a fairly wide view, and have followed the following two formulations of Abdur Rehman: (a) the subject-matter of Wakf must be male, or tangible property, and (b) it must be capable of being used without being consumed.
The Mussalman Wakf Validating Act, 1913, lays down that a Wakf may be made of “any property” and the Wakf Act, 1954 also lays down that Wakf may be made of “any immovable or movable” property. In Md. Sadiq v. Fakhr Jahan Begum, the question before the Privy Council was whether a valid Wakf can be made of government promissory notes, and it answered the question affirmatively.
It has been held that cash, a grove, and offerings made in a shrine are valid subject-matters of a wakf. But it has been held that a Wakf of money decree is not valid, as the decretal amount may or may not be realized.
The same view has been taken in respect of a Wakf of dower debt or rights of a usufructuary mortgagee. Fyzee opines that the expression “any property” should be given a wide interpretation so as to include forms of property “expendable and consumable in themselves but capable of being converted into more or less permanent investments bringing in a regular income”.
He says that “on this analogy, a usufructuary mortgagee or the holder of a money decree could sell his interest and invest the proceeds in a profitable form”. It is submitted that this view is not in consonance with the policy of containing wakfs.
It is necessary that at the time when a Wakf of a properly is made it must be under the ownership of the person making it. The criterion is to see whether the dedicator has the power of disposition over the property.
Thus, a person who is in fact the owner of the property but believes that he is only its mutawalli, may validly dedicate the property of the wakf. A valid Wakf may also be made of the property which has been given in possession to the wakif pursuant to an agreement to purchase it provided that the sale is completed eventually.
In order to create a wakf; it is not necessary that the wakif should have full proprietary interest in the property. What is necessary is that the wakif must have permanent dominion over the subject-matter of the wakf. A Wakf may validly be made of the property subject to mortgage or lease. But a usufructuary mortgagee cannot validly make a Wakf of his rights.
A Wakf which forms part of a transaction to fraud on the heirs is void and totally ineffective.
Wakf of Musa:
Imam Muhammad expressed the opinion that of Wakf of musa in property which is capable of division is not valid. Imam Muhammad held this view, because, according to him, delivery of possession of the property, the subject-matter of wakf, was obligatory for the creation of a valid wakf. On the other hand, Abud Yusuf held the view that a Wakf of musa whether capable of division or not, was valid. However, he recognized certain exceptions to this rule.
According to him a Wakf of musa, whether capable of division or not, could not be made for a mosque or a burial ground, as “continuance of a participation in anything is repugnant to its becoming the exclusive right of God”. It is this view which is followed in India. In Mad Ayub Ali v. Amir Khan, it was held that a Wakf of musa for the maintenance of a mosque is valid.