Any Muslim who has attained the age of majority, i.e., eighteen years, and who is of sound mind, may make a wakf. A Wakf cannot be made by a guardian on behalf of the minor; such a Wakf is void.
The Mussalman Wakf Validating Act, 1913, and the Wakf Act, 1954, contemplate that a Wakf can be made only by a Muslim. The former statute lays down that “Wakf means the permanent dedication by a person professing the Mussalman faith”. Similarly, the Wakf Act, 1954 defines a Wakf as meaning a permanent dedication by a person professing Islam. But the Nagpur High Court has expressed the view that a non-Muslim can also make a wakf the law only requires that “the object for which dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines”.
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Ameer Ali also observed that according to the classical jurists of Islam, a non-Muslim could make a wakf. It is submitted that in view of the clear provisions in the statutes, and in view of the fact that wakfs essentially form part of personal law of Muslims, the Nagpur view is not correct.
Marz-ul-maut wakfs:
Just as marz-ul-maut gifts are valid under Muslim law, so are the marz-ul-maut wakfs. If a person makes a Wakf of his entire property and dies, then it takes effect as a bequest and operates only with respect to one-third of his property. But if the wakif recovers from his illness, then the Wakf is valid as to the entire property.
The Wakf of the whole of the property, too, will be valid on the death of the wakif, if the heirs consent. If only some heirs consent and the others do not, then the Wakf will be valid in proportion to the shares of the consenting heirs.