Wakf.docx

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FAMILY LAW TOPIC – WAKF

SUBMITTED TO Dr. K.Y. DANYAL

BY FAHIMUDDIN AHMED KAHN B.A. L.L.B – 4th SEMESTER

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TABLE OF INDEX Acknowledgement

3

Table of Cases

4

Books Referred

4

Introduction

5-6

- Origin History and Dvelopment Wakf

6-8 9

Meaning and Definaton

9-11

Kind of wakf

11-13

Essential Requisite of a WAKF

13-16

Legal Incident of wakf

16-18

Creation of wakf

19-20

Other formalities

21-22

Administration of wakf

22-24

Current Status of wakf’s in India. Conclusion 26

24-25 25-

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ACKNOWLEDGMENT I would like to extend my heartfelt gratitude to my teacher, DR. K.Y. DANYAL, without whose able guidance and support this project would not have been possible. The resources of my college library as well as the internet have been extremely contributory in the completion of my project. I want to express my sincere thanks to my parents and friends for their love, support, cooperation and help during the making of this project.

FAHIMUDDIN AHMED KHAN

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TABLE OF CASES Abdul Satar v. Advocate General, AIR 1933 Bom. 87. Ali Zamin v. Akbar Ali Khar Chhedi Lal Misra v. Civil Judge, (2007) 4 SCC 632 Fuaad Musvee v. M. Shuaib Musvee, (2008) 4 CTC 59 (Mad) H. Idayatulla v. Larabsha Dharga, (2007) 2 MLJ 1034. Jewun Dass v. Shah Kubeer-Ooddin Kanti v. Mirza Hossani Kassimiah Charities v. Secy. Madras State Wakf Board, AIR 1964 Mad 18 Mohd. Mazhar Shaheed v. Distt. Collector, Mahboobnagar, (2005) 2 An LT 234. Mohd. Yusuf v. Mohd. Sadiq, AIR 1933 Lah 501 Syed Ahmed v. Julaiha Bivi, 1947 Mad 480 T.N. Wakf Board v. Larabsha Darga, (2007) 13 SCC 416 Zain Yar Jung v. Director of Endowments, AIR 1963 SC 985

BOOKS REFERRED Khalid Rashid : Muslim Law (Eastern Book Company, Lucknow) Fifth Edition 2010. Diwan, Paras : Muslim Law (1997, Allahabad) Fyzee, A.A.A. : Outlines of Mohammadan Law (1974, New Delhi)

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INTRODUCTION One and a half thousand years ago, long before the birth of the doctrine of uses and trusts in English Law, Islamic Law recognized and developed a legal expedient under the name of wakf, which permitted an owner to settle his property for the use of beneficiaries in perpetuity. The doctrine of Wakf which is "interwoven with the entire religious life and social economy of Muslims”1 has laid down the foundations of one of the most important institutions of the community. In India alone there are more than a 4.9 lakh wakfs valued at more than a Rs. 1.2 lakh crores (1,200 billion) of rupees.2 Considering their number and resources, [a] wakf can become a strong instrument not only for the preservation of religious and charitable institutions, but

also

for

[the]

educational

and

economic

development

of

the

community. Wakfs constitute a national asset for a very large number of these support schools, colleges, technical institute, libraries, reading-rooms, charitable dispensaries and Musafirkhanas, etc., which benefit the public irrespective of their religion or creed. It is of utmost importance, therefore, that wakfs should be maintained properly and their resources should be utilised for the objects and the purposes of dedications. But unfortunately, many of the existing wakfs have not escaped the process of decadence brought in by the twin impact of neglect and misuse. The subject [of] "Wakf" is relat[ive] to Entry No. 10 "Trust and trustees" and No. 28 "Charities and charitable institutions, charitable and religious endowments and religious institutions" in the concurrent list attached to the 7th Schedule to the Constitution of India. Supervision over the administration of

1 2

Ameer Ali, Vol. I at p. 193 PM’s High Level Committee on the status Indian Muslims

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wakfs is, therefore, the responsibility of both the Central and State Governments. Article 26 of the Constitution gives freedom to every religious denomination to establish and maintain its religious and charitable institutions subject to public order, morality and health. They are also allowed the right to administer the properties of these institutions in accordance with the law. In other words, the right of administration is left to the institutions themselves. Subject of course, to such regulations as the law might choose to impose. But a law which takes the whole right of administration is null and void. The regulatory laws assume their importance out of the fact that in [the] case of public trusts and endowments, some amount of control or supervision over their administration is necessary in the interest of the public as a whole. Such laws are valid insofar as they do not interfere with the internal matters of the institutions. The State cannot, however, interfere in the establishment or maintenance of religious and charitable institutions" or in the management of religious affairs. The various religious denominations or sects are allowed to manage them in accordance with the tenets of their religions. The only interference possible is on grounds of public order, health and morality.

ORIGIN HISTORY AND DEVELOPMENT The institution of wakf has developed with Islam. There are no Wakfs or any such parallel institution in Arabia before the advent of Islam. Credit must be given to the Muslim jurists for having developed the legal theory of wakf.3

3

L.M.E. at p. 205.

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The Quran contains no reference to wakf but it abounds in injunctions in the matter of charity, "And in their wealth the beggar and the outcaste had due share." (Koran, 26:19) The true measure of charity is indicated in the following Quranic verses: "Ye shall never attain to goodness till ye give alms of that which ye love, and whatever ye give, of a truth, God knoweth." (Koran, 3:86).

A tradition on which jurist lay great stress and which may be assumed as the basis of wakf, is that at the time of partition of Khyber, Caliph Omar acquired some lands which were very valuable to him and asked the Prophet whether he should give them away as sadaqa. The Prophet replied: “Retain the thing itself and devote its fruit (usufruct) to pious purposes” (Habis asle wa sabbil samarat). Omar did dis with the provision that the land should neither be sold nor bequeathed. He reserved it for the poor, needy relatives, slaves, wanderers, guests, and for the propagation of the faith (fi sabl Allah).4 The institution of wakf came into its own after the death of the Prophet, in the course of first century A.H. and assumed rigid legal forms in the second century. Writing on wakfss in the Encyclopedia of Islam, Heffening doubts that some foreign influence might have worked on the development of this institution. He observes that after the spread of Islam in various parts of the world,

4

Heffening in Ency. Of Islam, Vol. II at p. 1097

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“…the Arabs found in the conquered lands foundation for the public benefit, for churches, monasteries, orphanages and poor-houses (piacausac) and may have adopted this form for the practice of charity recommended by their religion. These endowments of Byzentine period were alienable, and managed by ‘administrators’, and were under the supervision of Bishops…” But this view is not acceptable to all. Very recently, a prominent authority on wakf refuted this contention by observing thet “the institution of wakf has developed with Islam and …there is no evidence that such a complex system of appropriating usufruct as a life interest to varying and successive classes of beneficiaries existed prior to Islam”

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WAKF MEANING AND DEFINATION The word wakf literally means ‘detention’ and connotes tying up of property in perpetuity. The term wakf as defined in clause (1) of Section 3 of the Wakf Act, 1954, means a permanent dedication made by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes a wakf by the user, mashruulkhidmat and wakf-alal-aulad to the extent the property is dedicated for any of the purposes mentioned above. For creation of wakf it is not necessary that the settler should be a Muslim. Any non-Muslim can also create under the Muslim law a wakf provided the object of the wakf is one which is recognised by Muslim Law as pious, religious or charitable and his own religion treats the object in the same manner. The words 'professing Islam' in clause (1) of Section 3 have been purposely retained for otherwise all charitable and many pious endowments of other communities would have come within the purview of the Act because the purposes for which they stand are also regarded as charitable or pious under the Muslim Law. The Wakf (Amendment) Act, 1964, has amplified this definition by treating all grants made for religious, pious and charitable purposes including mashru-ulkhidmat as wakf and also as permanent dedications made for mosques, dargahs, imambaras, takias, musafirkhanas, etc., by non-Muslims. Under the Muslim Law, these dedications were always wakf but the definition contained in clause (1) Section 3 had excluded them from the purview of the Act. In Kanti v. Mirza Hossani, it has been held that land used for Masjids and for the

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Muharram festival from time immemorial is wakf and evidence of express dedication is not necessary. When a long period has elapsed since the origin of the alleged wakf, the user can be the only available evidence to show if the property is wakf or not. When there is no evidence to show how and when the alleged wakf was created, the wakf may be established by the evidence of a user. Moreover, according to the Wakf Act, ‘Wakf’ means the permanent dedication by a person professing Islam". The words “professing Islam" are purposely kept here to exclude charitable and pious endowments of other communities from the purview of the Act. However, Section 60-C of the Act makes a special provision for the creation of Wakf by non-Muslims, provided the object of the wakf does not carry the words of a person professing Islam. In Zain Yar Jung v. Director of Endowments,5 the Supreme Court held that the objects of public utility which may constitute beneficiaries under the wakf must be objects for the benefit of the Muslim community. There can be no doubt that the wakfs with which the Act deals are trusts which are treated as wakfs under the definition of Section 3 (1) and as such, a trust which does not satisfy the tests prescribed by the said definition would be outside the Act. According to Abu Yusuf, wakf is the detention of a thing in the implied ownership of Almighty God in such a way that its profits may be applied for the benefit of human beings, and the dedication when once made, is absolute, so that the thing dedicated can neither be sold, nor given or inherited. In India the view of Kazi Abu Yusuf is adopted. In Jewun Dass v. Shah Kubeer-Ooddin, the Privy Council held that after the creation of wakf, the right of the wakif is extinguished and the ownership is transferred to the Almighty. Fatawa-i-

5

AIR 1963 SC 985

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Alamgiri declares that “decrees in this country are given according to Abu Yusuf." In a recent case, Kassimiah Charities v. Secy. Madras State Wakf Board, the meaning of wakf was taken as the detention of the corpus in the ownership of God in such a manner that its profits may be applied for the benefits of His servants. The objects of dedication must be pious or charitable. Hence, the three dominant characteristics of ‘wakf' can be summarized as under: 1. In the first instance, the motive must be religious; a merely secular motive would render the dedication a gift or a trust, but not a wakf. 2. Secondly, it must be of a permanent nature. A pious gift which is not a permanent foundation may be a Sadaqa but cannot, in law, be termed as a wakf. 3. And lastly, the usufruct is to be utilized for the good of mankind.

KINDS OF WAKF Broadly speaking wakfs can be of two kinds: Public and private. But the most accepted is its three-fold classification -- public, quasi-public and private. 1. Public wakfs - those which are dedicated to the public at large having no restriction of any kind regarding its use, e. g., bridge, well, road, etc. 2. Quasi-public wakfs - those, the primary object of which is partly to provide for the benefit of particular individuals or class of individuals which may be the settler's family, and partly to public, so they are partly public and partly private. 3. Private wakfs - those which provide benefit to private individuals, including the settler's family or relations. Such a wakf is termed as wakf-alal-aulad.

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Muslim law gives eual recognition to public and private wakfs. Both are subject to the rules of divine property whence the right of wakif are extinguished and it becomes the property of God. Both of these are created in perpetuity and the property becomes inalienable. Like a public wakf, a private wakf can under no circumstances fail and when the line of descent becomes extinct, the entire corpus goes to charity. A very clear definition and distinction is given by the Supreme Court in the latest judgment in Fuaad Musvee v. M. Shuaib Musvee6: ‘in case of Public wakf corpus as well as usufruct vest in God since usufruct becomes immediately and enjoyment of usufruct (for pious purpose) is postponed till extinction of wakif, his family and descendants. A Private wakf to be valid shall reserve ultimate benefit for a purpose recognized by Muslim Law as religious, pious and charitable. Private wakf is not invalid, merely because ultimate benefit reserved for religious, pious and charitable purpose is postponed until after extinction of family/descendant of the wakif.’ Note, that ‘if under the wakf deed, a portion from the income from wakf property is to be spent for the family apart from pious etc. purposes, it satisfies the character of Private wakf i.e. Wakf-alal-aulad.’7

In Abdul Satar v. Advocate General8, Beumont, C.J. observed: “it is impossible to contemplate property transferred to Almighty God subject to condition enforceable in the temporal court for recovering that property for benefit of settler.” However, the rule of irrevocability does not apply to the following conditions- Wakif reseving power to alter the beneficiaries, add to 6

(2008) 4 CTC 59 (Mad). T.N. Wakf Board v. Larabsha Darga, (2007) 13 SCC 416 8 AIR 1933 Bom. 87. 7

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their names, exclude some names, change the mutawalli, change the procedure and rules, modify instruction for its management. But we must distinguish between an inter vivos wakf and a testamentary wakf. The latter is technically only a bequest- a will, and comes into operation after the death of the wakif. The settler can change or revoke it before his death. He may provide that the testamentary wakf will not come into force if he begets a child.

ESSENTIAL REQUISITES OF A WAKF Under the Muslim law a wakf means dedication by a person embracing the Muslim faith of any property for any purpose recognized by the Muslim law as religious, pious or charitable. The dedication must be permanent and by the owner of the property who by reason of such dedication of the property should divest himself of such property and hand over the possession thereof to the mutawalli. There is nothing in the Mohammedan law to invalidate a wakf, where the objects of the endowment are clear and certain, simply for the reason that no certain portion of the property or specified amounts of the usufruct have been dedicated to charity or other religious, pious or charitable pur¬pose of a permanent character recognized by the Mohammedan law. It will appear from the definitions given above that a wakf should possess the following features : (1) There should be dedication in perpetuity.—Perpetuity is a necessary condition for the validity of a wakf according to all opinions. A wakf is not governed by rules against perpetuity . If a wakf is made and is silent as to

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whether it is to be in perpetuity a difference of opinions exists as to its validity. According to Abu Hanifa and Muhammad, a wakf is not com¬plete unless the wakif destines the ultimate dedication to objects which are not liable to become extinct. Abu Yusuf maintains that an express mention is not necessary. Thus, if the wakif makes a wakf to Zaid, the wakf is valid, and the property passes to the poor on the death of Zaid. So also, according to him, if a wakf is made for a month or any specified time without further addition, the wakf would be valid and perpetual. But if it is further provided that the wakf would be void after the expiry of the specified time, the wakf would be void according to all. The view of Abu Yusuf seems to have been approved. The view of Abu Yusuf had not been followed. (2) The wakf should be immediate.—Except in the case of testamentary wakfs the law insists on a immediate transfer of property and a wakf postponing the coming into effect of the wakf would be void. The wakf must be made to take immediate effect absolutely for ever. A wakf must not toe deferred to any future date. (3) It should not be contingent.—A wakf is invalid if it is made contingent on the happening of an event. Thus, if the wakf is made contingent on the death of a person without leaving children it will be void. But a direction that the wakf will not come into effect till certain debts of the wakif are paid off or that it was necessary to ascertain the residue whichwas dedicated. or that all the heirs decided to partition the property among themselves, the equivalent in cash of one-third of his property should be reserved for reigious purposes or expended on works acceptable to God will not make the wakf contingent. Shia law.—Contingent wakfs are invalid under the Shia law also.

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(4) It should not be conditional —The appropriation must not be suspended on anything and its real test is to see whether the dedication was complete at once at the time. Thus, if a condition is imposed that if the property is mismanaged, it should be divided among the heirs of the wakif or that the property would be sold for wakifs necessities, the wakf would be invalid. If a right to assume possession and divide the property according to ancestral shares is reserved in a family agreement even though some provisions are made for meeting the expense of a dargah, the wakf would be invalid. The wakif has got the power to make the reservation of some rights and benefit for himself. If a right is reserved otherwise than as permitted under that section the wakf would be invalid. But where some rights which cannot be reserved are reserved in respect of a part of the dedicated property which is distinct and separable, the wakf as to the rest of the property would be valid. (5) The wakif should completely divest himself of ownership of the property—There is a difference of opinion between Abu Yusuf and the disciples. According to Abu Hanifa the ownership of the property even after the dedication continues to be with the wakif while according to the disciples the wakif ceases to be an owner. The view of Abu Hanifa has not been accepted. From the time of the dedication, the property ceases to be that of the wakif. He should sever all connection with the property as an owner. It the wakif retains any control or dominion over the property as such the wakf becomes invalid. It is a question of construction of the deed whether the wakif has wholly divested himself of all property. The fundamental idea is that the ownership of the property vests in God. and is placed in his implied ownership as a juristic person. If the legal and beneficial interest is reserved during the lifetime of the person making the wakf it is invalid.

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Shia law.—The wakif must be entirely divested of the property.5 (6) It must be made for objects mentioned in the Act. (7) There must be a proper subject of wakf. In the case of wakf made by a Shia Muslim delivery of possession is necessary as laid down in Sec. 186 of the Mulla's Mohammedan Law. 16th Ed. at p. 180. The Privy Council also held in Ali Zamin v. Akbar Ali Khar that under Shia law actual delivery of possession by or by direction of the wakif is a condition precedent to the wakf having validity and effect.

LEGAL INCIDENT OF WAKF There are three legal incidents of wakf: irrevocability, perpetuity and inalienability. I.

Irrevocability.- according to Abu Hanifa, a wakf can be revoked by its founder unless the declaration has been confirmed by a court decree. However, Abu Yusuf took a contrary view and held that a declaration of wakf is, in its nature, irrevocable. That is, a wakf cannot be revoked after the declaration has been made, nor can the power to revoke be validity reserved. It is the opinion of Abu Yusuf which prevails which prevails in India. The Supreme Court once more declared that once a wakf iss created it continues to retain such character which cannot be extinguished by any act of the Mutawalli or anyone claiming through him. A wakf can be created by one M of his entire properties in 1926 and registered under U.P. Muslim Wakf Act and also notified iin Official Gazette. M appointed his son P as mutawalli. 32 years later the wakf filled a collusive sut which was decreed on compromise; immedietly M and P transferred the disputed plots to the present appellant. When these facts came to the notice of the Shia Central

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Board of Wakf, Lucknow, it requested the Deputy Commissioner to direct the appellant to hand over the plot of the secretary of the Board. In the legal battle the appellant lost in the High Court and the Supreme Court also. The Supreme Court held that wakif stands diverted of his title of the properties which after creation of the wakf vest in the Almighty. The Supreme Court also said that the creation of a wakf may be questioned if it is shown that the wakif had no intention to create a wakf but had done so to avoid liability.9 II.

Perpetuity.- Wakf must be perpetual. If it is for limited period, or for a temporary purpose, it is void. According to Fatwa-i-Alamgiri, ‘perpetuty is also among the conditions of wakf according to all opinions, though according to Abu Yusuf the mention of it is not a condition, and is correct’.10 Thus, if a man says ‘I make this dedication, on my children’ and adds nothing further, it is a valid wakf. Wherever the term wakf is used, permanence will be presumed as a matter of law. The rule against perpetuities does not apply over wakfs. The perpetuity of wakf does nt imply perpetuity of its object. Thus, if wakf is created for purposes which may fail or which are not perpetual, the view\of Abu Yusuf is that the wakf is valid, and that its benefit will accrue to the poor after the named objects ceases. About the implied permanency of a wakf there were two school of opinion. One school that of the follower of Abu Hanifa, maintained that to impart permanency, it must be expressly mentioned that the benefit was reserved for the poor. Abu Yusuf, on the other hand was of the view that permanence was implied in the use of the word wakf by the settler. His view was follosed by Ameer Ali and accepted

9

Chhedi Lal Misra v. Civil Judge, (2007) 4 SCC 632 Fatawa-i-Alamgiri, Vol. II at p. 459 cited by Ameer Ali, Vol. I at p.187

10

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by the Madras High Court in Syed Ahmed v. Julaiha Bivi11. Bombay High Court preferred Hanifa,s view. Nnow the controversy is settled in favour of Yusuf’s view with the use of the expression ‘expressly or impliedly reserved for the poor or any other purpose recognized bu the Mussulman Law as religious, pious and charitable purpose of a permanent character’ in section 3 of the Mussalman Wakf Validating Act, 1913. III.

Inalienability.- as the wakf property belongs to God, no human being can alienate it for his own purposes. Consequently, wakf property cannot be the subject od sale, mortgage, gift, inheritance or any alienation whatsoever. This general rule has two exceptions: wakf property may be exchanged for an equivalent property, or sold, subject to compulsory reinvestment of the price in another property. The power of exchange and sale is subject to the permission of the court. These exceptions to the rule of inalienability are therefore, more apparent than real, since a new corpus is substituted for the old one and the continuity of wakf is maintained. What is emphasized is the authorization to the mutawalli. Legally his position is that of a manager only; he is not an owner of the wakf property. Therefore he cannot alienate the wakf property without express authorization by either the settlor or the court. Thus in Mohd. Yusuf v. Mohd. Sadiq12 the wakf deed directed the Mutawalli to sell the wakf property and construct a rest house at Mecca from the sale proceeds. The court upheld this authorization. The court can also grant him permission, and with prior sanction he can transfer the property by the way of sale or mortgage, etc. Any alienation without the prior sanction is not void ab initio, but voidable on challenge by any beneficiary. A lease of the wakf land for more than three

11 12

1947 Mad 480 AIR 1933 Lah 501

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years if agricultural land and for more than one year for the other land also requires prior permission of the court or authorization by the settlor. ‘any lease of immovable property of wakf exceeding 3 years is void ab initio; grant of lease for 11 months with intention to continue as permanent base is unsustainable. Mutawallis who are hereditarily holding office are entitled to give on lease jointly--- lease deed executed only by one Mutawalli is therefore not valid.’13

CREATION OF WAKF There is no essential formality or the use of any express phrase or term requisite for the constitution of wakf. The law looks to the intention of the donor alone. Where a dedication is intended, the law will give effect to it in whatever language it may be expressed or in whatever terms the wish may be formulated. It is not necessary that a wakf should be made in writing. All that is necessary in constituting a wakf is that some sort of declaration, either oral or in writing must be made. Though oral wakf is permitted yet when the terms of a wakf are reduced into writing, no evidence can be given to prove the terms except the document itself or secondary evidence of its contents, when it is admissible. Where a wakf deed is executed, it must comply with the provisions of the Registration Act. Thus, a wakf deed of immovable property of Rs. 100 or upwards would require registration. Sometimes, circumstances are also to be considered to ascertain a wakf: the statement and conduct of the wakif and his successors and the method in which the property has been treated are circumstances which though not conclusive are relevant . It was repeatedly held by the Privy Council and the different High Courts of India that for creating a valid wakf, it is not essential to use the word 13

H. Idayatulla v. Larabsha Dharga, (2007) 2 MLJ 1034. Also Mohd. Mazhar Shaheed v. Distt. Collector, Mahboobnagar, (2005) 2 An LT 234.

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wakf'." Neither the use of the word wakf nor express dedication of the property to the ownership of God is essential for the creation of a wakf where the tenor of the document may show that a wakf was intended. Any implied expression is enough for the purpose. Fatawa Kazi Khan says, “If a man says, this land is mauqoofa' for God in perpetuity', it will create a valid wakf.” And even if there is no mention of ‘perpetuity', it will create a valid wakf, and perpetuity will be presumed. “And if a man were to say, that this land is dedicated, consecrated, not to be sold, inherited or given by a gift, all these words would create a wakf according to Abu Yusuf," says Radd-ul-Mukhtar. Similar are the observations of WajizulMuhit. A wakf can also be created by long user. In a case where there is no evidence to show how and when the alleged wakf was created, the wakf may be established by evidence of the user. Where land had been used from time immemorial for religious purposes, say a mosque, the land becomes wakf, even though there is no evidence of express dedication. In the case of Imambara it was held by the Oudh High Court that if 'majalises' were celebrated and "Quran Khani' was done and the building had never been used as a residential house, the presumption of dedication will be made. But it would be erroneous to think that the burial of a saint on a particular spot would make it wakf, in spite of the fact that 'Urs' was held there without the proprietor's objections

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OTHER FORMALITIES (a)Declaration As far as the courts in India are concerned, a declaration of endowment and delivery of possession to the Mutawalli are essentials of a wakf. When the first Mutawalli happens to be wakif himself, a mere declaration is sufficient to constitute a wakf. Where the wakif after creating a bonafide wakf treats the wakf property as his own and commits certain wrongful acts in pursuance of this notion, these acts will only amount to a breach of trust and would not in any way affect the validity of the wakf. (b) Delivery of possession According to Abu Yusuf a dedication of wakf is complete by a mere declaration. Neither delivery of possession nor appointment of Mutawalli is essential. The view has been adopted by most of the High Courts in India. Dedication by way of a wakf is completed when the wakif makes a dedication in good faith with a real intention of divesting himself of the ownership of the property which he intends to dedicate: (1) If he nominates another person as Mutawalli such an intention is ordinarily evidenced by delivery of the wakf property to himself or Mutawalli; the failure to deliver needs at least some explanation : want of such an intention may be inferred if there is no explanation. (2) The fact that no person is nominated as Mutawalli does not necessarily show a want of such an intention; it may be presumed in proper cases that the wakif himself intended to act as a Mutawalli; but this last presumption may be rebutted by evidence that the wakif did not act as such, and neither himself gave nor requested another to give any effect to his declaration.

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(c) Appointment of Mutawalli In its earlier decision, the Allahabad High Court followed the view of Imam Muhammad: that a wakf is not complete unless: (1) there is a declaration, coupled with (2) appointment of Mutawalli ; and (3) delivery of possession, Even according to the previous view of the Allahabad High Court, a mere declaration was sufficient where the wakif himself was the Mutawalli. It was not necessary to transfer the property from his name as owner into his name as Mutawalli. The mere delay in transferring possession or getting the name mutated could not have invalidated the wakf. Under Shia law the possession has to be delivered to the first person in whose favour the wakf has been made. In the case of a public wakf, a Mutawalli must be appointed to the possession.

ADMINISTRATION OF WAKF When the wakf is validly constituted, there arises the question of management and administration for which a mutawalli is generally appointed by the dedicator of the court. And in order to have a check and supervision of these mutawallis, there exist certain statues. Thus, the administration of wakfs may be non-statutory (i.e., through mutawallis and sajjada nashins, etc.,) and statutory. Mutawalli 1. General – A mutawalli is not a trustee, but a manager or superintendent of the wakf property. Wakf property does not vest in him but in God. Apart from

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legal responsibilities, the performance of his obligation is a moral and religious duty and disregard of such duties is morally and ethically reprehensible. 2. Competence – Generally speaking, every adult sane is entitled to be a mutawalli, unless there is a specific bar. But when religious duties are involved, a female or a non-muslim may be disqualified (e.g., Immat or leadership in prayers). It is well settled that the following may act as mutawallis : i.

The dedicator himself;

ii.

His descendents;

iii.

Females;

iv.

Non-Muslims;

v.

Sunni in a Shia wakf and vice-versa.

3. Appointment of mutawalli – A mutawalli may be appointed by : i.

The wakif himself;

ii.

His lexcecutor;

iii.

The mutawalli, (successor);

iv.

The Court.

4. Removal – Neglect of duties and breach of trudt are the two main grounds on which mutawallis are generally removed. They may be removed i.

By the court;

ii.

By the wakf Board and

iii.

By the wakif.

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5. Limitations of power of Mutawalli – a mutawalli can do everything that is reasonable and necessary for the protection and administration of the wakf. But his powers are subject to certain important limitation, which are as follows:i.

He cannot sell, mortgage or alienate wakf property without the permission of the court or the Wakf Board.

ii.

He cannot transfer his duties, functions and powers to anybody unless authorized by the Wakf deed or any positive custom.

iii.

He cannot borrow money for spending it on the beneficiaries, nut can do so only for necessities, such as repairs etc.

iv.

He cannot grant lease of wakf property for more than one year, in case of non-agricultural land, and for more than 3 years, in casse of agricultural lands, unless the court gives sanction.

v.

He cannot spend on mere improvement of wakf property.

CURRENT STATUS OF WAKFs IN INDIA14 The subject [of] "Wakf" is relat[ive] to Entry No. 10 "Trust and trustees" and No. 28 "Charities and charitable institutions, charitable and religious endowments and religious institutions" in the concurrent list attached to the 7th Schedule to the Constitution of India. Supervision over the administration of wakfs is, therefore, the responsibility of both the Central and State Governments. According to PM’s High Level Committee on the status Indian Muslims, there are: 

More than 4.9 lakh registered Wakfs spread over different states and union territories of India.

14

Wakfwatch.com

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The total area under Wakf properties all over India is estimated at about 6 lakh acres and the book value at about Rs 6,000 crores.



The market value of these properties will be higher manifold.



A recent estimate of the current value of Wakf properties in Delhi alone is in excess of Rs. 6,000 Crores (Rs. 60 billion).



A good number of the Wakf properties in urban areas are found to be located in city centres where the current value is many times more than the book value.



The current annual income from these properties is only about Rs. 163 crores, which amounts to a meagre rate of return of 2.7 per cent.



The current market value of the Wakf properties can be put at Rs. 1.2 lakh crores (1,200 billion). So the current return of 163 crores on the current market value comes out to be meagre 0.135 percent which is pathetic.



If these properties are put to efficient and marketable use they can generate at least a minimum return of 10 per cent which is about Rs. 12,000 crores per annum.



If some of these Wakf properties situated in prime locations across the country are developed and put to commercial use, their market value and annual income will shoot up.



The enhanced Wakf income could be utilized to upgrade the educational status and improve other human development dimensions of the beneficiaries of Wakfs.

CONCLUSION Critically examining of this project will clearly highlight certain aspects about the institution of wakf, in the present times. The foremost of these aspects is that wakf is only for religious purpose and is permanent in nature, it cannot be a temporary institute. Also any gain derived out of a wakf has to be use for the benefit of the mankind. Though their hasn’t been a great deal of judicial

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scrutiny on this topic in the recent times but even in the few cases that have come up the Courts of the country have passed their decisions keeping these aspects in mind. It can be unhesitatingly said that the enactment of the Wakf Act. 1954, made a landmark in the history of wakf administration in India. By constituting unofficial Boards vested with considerable authority and powers, by imposing a precise obligation upon mutawallis and making their violation a penal offence, by associating the State Governments in the supervisory responsibility and by conferring authority on the Central Government to lay down the policies to be adopted by the Boards, the Act has laid down a sound administrative structure to ensure proper administration of wakfs in the country. Whatever lacunae or weaknesses existed in the Act have been removed by the Wakf (Amendment) Act, 1964 and the Act as amended is a very sound piece of legislation. Considering their number and resources, wakf can become a strong instrument not only for the preservation of religious and charitable institutions, but also for the educational and economic development of the community. Wakfs constitute a national asset for a very large number of these support schools, colleges, technical institute, libraries, reading-rooms, charitable dispensaries and Musafirkhanas, etc., which benefit the public irrespective of their religion or creed. It is of utmost importance, therefore, that wakfs should be maintained properly and their resources should be utilised for the objects and the purposes of dedications. But unfortunately, many of the existing wakfs have not escaped the process of decadence brought in by the twin impact of neglect and misuse.