V SEM.

– MUSLIM LAW
II UNIT
WAQF
ORIGIN AND UNDERLYING PHILOSOPHY
Waqf (which is also known as Habs) is an Arabic infinitive noun (masdar)
which means "detention", "to prevent", "restrain". That is, to hold property in
such a manner that for all times to come its corpus cannot be given away by
way of any mode of transfer (sale, exchange, gift, will, mortgage, etc.) and its
income is used for charity in perpetuity.
Quran contains no specific provision concerning waqf but it abounds in
injunctions in the matter of charity. In more than 20 different verses of the
Quran, it pleads Muslims to give in charity (called Infaq), It increases wealth
instead of decreasing it; it brings happiness, guarantees success in this world
and the world hereinafter; and above all, it brings divine rewards.
Quranic Injunctions regarding charity
By way of sampling, here are just two of the numerous Quranic verses:
It is not righteousness that ye turn your face to the East or the West, but
righteous is he who believeth in Allah and the last day and the angles, and the
scripture and the Prophets, and giveth his wealth for love of Him, to kinsfolk
and to orphans, and the needy and the wayfarer (traveller) and to those who ask,
and to set slaves free, and observeth proper worship and payeth the poor their
due… Such are they who are sincere. Such are the God fearing.
[Quran: Surah Al-Baqarah
(2), ayat 177]
Ye shall never attain to goodness till ye give alms of that which ye love, and
whatever ye give, of a truth God knoweth it.
[Quran: Surah Ali Imran
(3), ayat 86]
During the early days of Islamic history, the State used to be poor, unable to
afford even simple social welfare measures. At that time, the newly ignited urge
for charity among the Arabs resulted in the creation of millions of charitable
transfers.
The institution of Wakf has developed with Islam. There were no wakfs or any
such parallel institutions in Arabia before the advent of Islam. Credit must be
given to the Muslim Jurists for having developed the jurisprudence of Wakf.
Waqf has its origin in the words of prophet

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The almighty reserved the honour of originating waqf to his beloved Prophet.
He created a new perpetual form of charity which lasts from generation to
generations and is quite different from other temporary forms of charity such as
sadaqa, fitraf or alms etc.
Once one of the disciple of prophet Omar had acquired a piece of land in
Khaiber, and proceeded to the Prophet, and sought his counsel to make the most
pious use of it, (whereupon) the Prophet declared, "tie up the property (asp, -
corpus) and devote the usufruct to human being and it is not to be sold or make
the subject of gift or inheritance; devote its produce to your children, your
kindred and the poor in the way of God".
Thus, waqf under the Muslim Law owes its origin to a rule laid down by
the Prophet of Islam; and means "the tying up of property in the ownership of
God the Almighty and the devotion of the profits for the benefit of human
beings. As the result of the creation of a waqf, the right of waqif (settler) in the
property is extinguished and the ownership is transferred to the Almighty The
manager of the waqf is the Mutawalli, the Governor, Superintendent or Curator.
But in that capacity he has no right in the property belonging to the waqf, the
property is not vested in him and he is not a trustee in the legal sense.

DEFINITION
Literal meaning.–‘Waqf’ literally means detention', 'stoppage", up. Technically
it means a dedication in perpetuity of some specific property for a pious purpose
or succession of pious purposes.
As defined by Muslim Jurists.—1. According to Imam Abu Hanifa, "It is the
detention of a specific thing in the ownership of the waqif or appropriator, and
the devoting its profits or usufruct to charity, the poor, or other good objects, in
the manner of arrest or accommodate loan". The two elements to be noted are
that the right of the owner continues and that the usufruct is to be devoted to
some charitable or pious purpose.
According to Imam Abu Yusuf (Disciple of Abu Hanifa), "Waqf is the
detention of a thing in the implied ownership of almighty God in such a manner
that its profits may revert to or be applied to the benefit of His creatures". There
are three elements in this definition:
i. Ownership of God;
ii. The extinction of the founder's right and
iii. The benefit to mankind.
Imam Mohammad does not agree to this view. He thinks that the right of the
way gif does not cease in the property until he has appointed a Mutawalli and
delivered its possession into his hands.

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In India the view of Imam Abu Yusuf is followed.
As defined in the Mussalman Waqf Validating Act, 1913. – The most
comprehensive and simple definition of 'waqf is given in the Mussalman Waqt
Validating Act of 1913. Section 2 of the Act, says, "waqf means the permanent
dedication by a person professing the Mussalman faith of any property for
purpose recognised by Mussalman Law as religious, pious or charitable".
As defined in the Waqf Act, 1954.- The Waqf Act, 1954 defines Waqf in the
following words. -
"Waqf means the permanent dedication, by a person professing Islam, of
any movable or immovable property for any purpose recognised by the Muslim
Law as pious, religious or charitable."
ESSENTIAL OF WAQF
Sunni Law. - The essentials of a valid waqf according to Hanafi Law, (Sunni
Law) are as follows:
1. A permanent dedication of any property;
2. The dedicator (waqif) should be a person professing the Mussalman faith
and of sound mind and not a minor or lunatic and
3. The dedication should be for a purpose recognised by the Mussalman law
as religious, pious or charitable.
4. The ownership vests in Allah
(1) Permanent dedication of any property.—The first essential of a valid
waqf is, that it should be a 'permanent dedication of property. This phrase
implies three things:
(i) There must be a dedication,
(ii) the dedication must be permanent, and
(iii) the dedication must be of any property.
(i) There must be a dedication.-It means that there must be a substantial
dedication of the usufruct of the property to religious, pious or charitable
purposes as understood by Muslim Law. The dedication implies a declaration of
the dedication. No particular form of words is necessary for makingdeclaration
of dedication. It may be either oral or in writing.
Long User- Where land has for long been used as a waqf, proof of
expression Vis dedication is not necessary, and the legal dedication will be
inferred. The watts to mosques and graveyards have been upheld on this ground.
(Mazhar Hussain v. Adiya Saran, 1948 PC 42).
(ii) The dedication must be permanent.-Perpetuity is a necessary condition
for the validity of Waqf. If it is for a limited period, or for a temporary purpose,
it is void.

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(iii)The dedication must be of any property. (Subject of waqf).- The subject
of waqf may be any tangible property (mal) capable of being used without being
consumed. Abdur Rahim lays down that the property dedicated must be (i)
(mal) tangible property, and (ii) it must be capable of being used without being
consumed.
Subject of waqf must belong to waqif. - The property to be dedicated
must character. be in the ownership of the dedicator (waqif). One cannot
dedicate another's property of waqf. In other words, waqif must be the owner of
the property dedicated.
(2) By a person professing Mussalman faith. -As mentioned above, the
second essential of a valid waqf is that it should be created by a person
professing Muslim faith. By 'person', is meant, a person who has attained the
age of majority under the Indian Majority Act, i.e., 18 years and who is of
sound mind. Such a person is competent to dedicate the whole or part of his
property. The waqif may be a men or women. He or she must not act under any
coercion, fraud or undue influence and must create the waqf voluntarily. It is
also necessary that the waqif must not suffer via death illness while creating
waqf, in that case, the waqf will be governed by the same rule which govern a
waqf via will. If a non muslim creates a waqf than it can be made only for the
purposes not prohibited by the waqif’s religion as well as the by Islam. In case a
waqf is created by a pardanashin Lady, it was held by Privy Council in Delroos
banoo Begum v. Nawab sayud Ashgur Ally Khan, 1875 SCC Online Cal 30
that it will be a suspected waqf which she can revoke any time afterwards
saying that she could not understood the real meaning of words creating waqf at
the time of creation of it.
(3) For any purpose recognised by Muslim Law.-This is also called the object
of waqf. Thus the third essential of a valid waqf is that the dedication should be
for a purpose recognised as religious, pious of charitable, under Muslim Law.
However, on the basis of the decided cases and the text of eminent
Mohammedan Jurists, we give below certain objects which had been declared to
be valid objects of waqf:
1. Mosques and provisions for Imams to conduct worship.
2. Celebrating the birth of Ali Murtaza.
3. Repairs of Immambaras.
4. Maintenance of Khankahs.
5. Burning lamps in mosques.
6. Reading the Quran in public places and also at private house.
7. Maintenance to poor relations and dependants.
8. Payment of money to Fakirs.
9. Celebrating the death anniversary of the settler and of the members of the
family.

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 (4) The ownership vests in Allah
In Mohammad Ismail v. Sabir Ali, 1962 SC 1722, the Supreme Court
confirmed this rule. It is a universally recognised rule that the ownership of
the waqf property vests in Allah. He is the owner f the property and the
waqif will not have any over it.
Essentials according to Shia Law.–According to Shia Law, "waqf is a
contract, the fruit or effect of which is to tie up to the original and to have
itsusufruct free" (Sharya-ul-Islam).
The 'Sharya-ul-Islam' mentions four conditions as being required in the
subject of waqf. These are as follows:
1. It must be perpetual (as in Sunni Law).
2. It must be absolute and unconditional.
3. Possession must be given of the thing appropriated (unlike Sunni Law
under which mere declaration is sufficient).
4. It must be entirely taken out of waqif. It means that the waqif should not
reserve any benefit or interest, even the usufruct of the dedicated
property.
LEGAL INCIDENTS OF WAQF
The following are the legal incidents of waqf.
i. Irrevocability,
ii. Perpetuity,
iii. Inalienability,
iv. Pious or charitable use of usufruct, and
v. Absoluteness.
(i) Irrevocability.-The view of Abu Hanifa is that a waqf can be revoked by
waqif, unless the declaration has been confirmed by a decree of a Court. But
Abu Yusuf takes a contrary view and hold that a declaration of waqf is in its
nature irrevocable. The opinion of Abu Yusuf is followed in India.
(ii) Perpetuity.- Perpetuity is an essential condition of a waqf. A waqf for a
limited period is not valid.
(iii) Inalienability.-As the waqfproperty belongs to God, no human being can
alienate it for his own purposes. Therefore, waqf property cannot be sold,
transferred or encumbered. An alienation of the waqfproperty except for the
necessities of the waqfand without the Court's permission is void. Similarly,
waqfproperty is not liable to attachment and sale in execution of a personal
decree against the mutawallinor can the rents and profits thereof be seized in
execution.

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 (iv) Pious or charitable use of usufruct. -The produce and benefits of the waqt
property are utilised for such purposes which are recognised as religious pious
or charitable under Muslim Law.
(v) Absoluteness.-The settlement of the property conditional or contingent waqf
is void.

MODES OF CREATION.
waqf may be created either: -
1. by an act inter vivos; or
2. by will; or
3. during death illness (marz-ul-maut); or
4. by immemorial user.

1. By the "waqif" himself. It was held in Advocate General v Fatima Sultan

Begam45 that the wagif has a right to reserve superintendence of waqf himself,
and to appoint a mutawalli during his lifetime, whenever he likes.
Generally, in cases of private waqfs, the waqf has absolute right to point
munavalli; but, in the case of public charitable or religious, this power may be
subject to the approval of the court, the court may appoint a mutawalli over
and above the waqif, provided it is the interest of the waqf.
2. By his executor. - The power of appointing mutawalli primarily rests with the
waqif and in his absence, it rests with his executor.
3. By the ―mutawalli‖. - A mutawalli can appoint his successor underrestricted
conditions, which are as follows:
a) waqif and his executor are both dead:
b) the waqf deed is silent on the point of succession of mutawalliship;
c) there is no positive custom regarding such devolution,
d) A the mutawalli is on the deathbed or incapacitated from discharging
his duties, or
e) the waqf deed authorised him to this effect.
4. By the court. - It was held by the various High Courts that when a vacancy
occurs and there is none to take office, or when the mutawalliship devolves
upon a minor, the court has the power to appoint a mutawalli.
Is any formality necessary
No specific formality or the use of any express phrase or term requisite for the
constitution of a waqf. The law looks at the intention of the donor, in whatever
language it may be expressed or in whatever term the wish may be formulate. In
Garib Das v. Munshi Abdul Hamid, AIR 1970 SC 1035, the Supreme Court

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held that A waqf is complete by a mere declaration of the endowment by the
owner. This view has been adopted by various High Courts also.

ADMINISTRATION OF WAQFS
When a waqf is validly constituted, there arises the question of its man
appointed waqf or the court. And in order to supervise these mutawalli, there
management and administration for which a mutawalli is generally tain statutes
in India. Thus, the administration of waqfs may be non-statutory (that is,
through mutawalli, sajjadanashin,etc.) and statutory.

NON-STATUTORY ADMINISTRATION
Mutawalli
Waqf property does not vest in the mutawalli but in God. He is only a manager
or superintendent of the property.
"Mutawalli of a waqf is merely a manager of the waqf property. He
neither has any proprietary right nor any beneficial interest of any kind in the
property, being nothing more than a servant of the founder of the waqf”, as held
by the Allahabad High Court in Adab Ali v. Distt. Judge, Allahabad (2008) 70
All LR 75.
Competence
Anyone, of any faith, female or male, who is competent to administer property
may become mutawalli. But where religious duties are involved, a person of
another religion or a woman may be disqualified. Nevertheless, a woman may
be allowed to hold this office provided her duties could be separated from the
religious duties, and the latter could be performed by a substitute. But for
example, where the duties of mutawalli include imamat (leading the prayers,
woman is wholly disqualified from this office.
It is well settled that the following may act as mutawalli:
1. Waqif himself and his descendants
2. Females
3. Non-Muslims
4. Sunni in a Shia waqf and vice versa

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Appointment
A mutawalli may be appointed by-
1. the waqif himself- Generally in case of private waqfs, the waqif has
absolute right to appoint mutwalli but in case of public charitable or
religious waqf, this power may be subject to the approval of court. It was
held in Advocate General v. Fatima Sultan Begum, 9 Bom. HCR 19
that the waqif has right to reserve superintendence of waqf to himself and
to appoint a mutwalli during his lifetime.
2. failing him, his executor,
3. failing him, the mutawalli, when the waqif and his executor both are dead
and the waqf deed is silent on the point of succession of mutwalliship or
the mutwalli is on death bed or incapable of performing his functions or
the waqf deed authorises him to do so.
4. failing him, the court when there is a vacancy of office of mutwalli and
nobody is there to take the office or when the mutwalliship devolves upon
a minor.
―Mutawalliship‖ whether hereditary- The office of mutawalli is not
hereditary. If, however, there is a custom to the contrary, the hereditary
succession would be allowed but the custom has to be proved strictly.
Moreover, a mutawalli could neither sell nor transfer his office.
Powers and duties of Mutawalli.
A mutawalli, may do all acts that are reasonable and proper for the protection of
the waqf property and for the administration of the waqf under the
circumstances of the case. In regard to his powers and duties, his position is
akin to that of trustee. But the legal incident governing the two are not the same.
In the case of a trust, the ownership in the property vests in the trustees though
this vesting is for the benefit of others. Unlike a trustee, the mutawalli is not an
owner of the waqf property, mutawalli may employ agents where necessary or
customary. He cannot alienate or charge the waqf property except -
i. by provision in the deed of waqf empowering him to do so,
ii. by permission of the Court, and
iii. by reason of any urgent necessity.
The Law of limitation applies to waqfs, but the liability his legal
representative towards waqf property is not barred by any length of time.
A mutawalli may do the following things with the permission of the Court: -
i. borrow money,
ii. sell mortgage or dispose of waqf property, in any other way.

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 A mutawalli is perfectly competent to file a suit for protecting waqf
property and for administering the waqf property. He can file a suit in respect of
ex-waqf property.
A Mutawalli should not lease out waqf property, if it is for agricultural
purposes for a term exceeding three years and if for non-agricultural purposes
for a term exceeding one year, unless expressly authorised by (a) the waqfnama,
or (b) by leave of Court.
A mutawalli is entitled to remuneration, if any, fixed by the sector. If the
amount fixed is too small, the mutawalli increasing the allowance.
Limitations of the power of ―mutawalli”
A mutawalli can do everything that is reasonable and necessary for the
protection and administration of the wagf. He has the power of management and
administration of waqf properties. The administration of waqfpredominantly
vests with the mutawalli, appointed through succession or otherwise. No
committee can be appointed (for administration) as long as the mutawalli
functions for a waqf.
1. He cannot sell, mortgage or alienate waqf property, without the
permission of the court or the Waqf Board.
2. He cannot transfer his duties, functions and powers to anybody else ad
make him the trustee, unless authorised by the waqf deed or any positive
custom.
3. He cannot borrow money for spending it on beneficiaries, but can do
soonly for necessities, such as repairs, etc.
4. He cannot grant a lease of waqf property for more than a year in case of
non-agricultural land, and for more than three years in case of agricultural
lands, unless the court gives sanction.
5. He cannot spend on mere improvements of waqf properties.
Removal of ―mutawalli‖
1. By the court.-Neglect of duties and breach. The authority of a court of law in
matters of removal is first and final. The court can remove even the waqif
himself if he happens to be the mutawalli and guilty of some offence.
2.By the Waqf Board.- Under section 64 of the waqf Act, 1995, the movWaqf
Board can remove the mutwalli from his office under certain conditions.
3. By the waqif. – Abu Yusuf says that even if the waqif has not reserved the
right to remove the mutawalli in the waqf deed, he can, nevertheless, Remove
him. Imam Muhammad, however, says that unless there is such a reservation,
the waqif cannot do so. This latter view has been adopted in Fatawa-i-Alamgiri
and is approved generally in India.

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 PRIVATE AND PUBLIC WAQF
Private waqfs. –
Waqfs in favour of one’s own family may be termed as private waqfs. They may
be:
a) Exclusively for the family, or
b) Substantially for the family with some provision for charity or
c) Substantially for charity with some provision for the family.

(a) Exclusively for family: Delivering the judgment in Bikani Mia v. Shuk Lal
Poddar ILR(1893) 20 Cal 116, Justice Ameer Ali observed that a waqf
exclusively for the benefit of waqif's family without any provision for charity
was valid. But this view was disapproved by the Privy Council which held that
a waqf exclusively for one's family was no waqf. This view still holds good. The
MussalmanWakf Validating Act, 1913, does not validate such was which have
no provision reserving ultimate benefit to charity. Thus, for example, where a
Muslim creates a war in favour of his two wives of his daughters by those
wives, and for their respective descendants, saying nothing as to the ultimate
disposal of the property on total failure of those descendants, the waqf is
altogether invalid.
(b) Substantially for family with some provision for charity: WAQF-ALAL-
AULAD
During the last several centuries, wakf-alal-aulad or family waqf was very
popular and thousands of such awqaf were created, largely by the big Muslim
landlords (zamindars) to protect their landed properties. Generally, these lands
were cultivated by poor tenants on crop-sharing basis. So, in the early 1950s
when land reform legislation came in the States, it invariably provided that the
land would go to the ownership of tenants who were actually cultivating it. So
thousands of acres of lands went to the ownership of tenants, while the real
owners were given nominal compensation bonds. Family waqf lands also came
within its ambit.
The law before 1913- In Abul Fath Muhammad Ishak v. Russo Moy Dhur
Chowdhury 1894 SCC Online PC 24, Their Lordships of the Judicial
Committee, while dealing with war which was mainly for the family with an
ultimate benefit to charity, observed:
A gift to the poor might be illusory from the smallness of its amount or from
itsuncertainty or remoteness, and that the period when this gift was to take
effect wasso uncertain, and probably so remote, that the gift was illusory.
Therefore, according to Muhammadan Law, it did not establish a wakf.

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The Privy Council had thus held that as the gift to charity in waqf-alal-aulad
was illusory and that the object of the settlor was to create a family settlement in
perpetuity, the wag was invalid. This decision was based on a faulty
appreciation of the principles of Muslim law and led to great uproar in India.
Muslim public opinion was totally against it. The government was compelled
and convinced to enact a special legislation-MussalmanWakf Validating Act,
1913-to validate such waqfs which stood invalidated by virtue of the Privy
Council's decision and all such future waqfs.
The law after 1913 - The Wakf Validating Act, 1913 laid down that private
waqfs which are substantially for family with some provision for charity may be
made, and it could even be inferred from the terms of the deed and e
circumstances of the case. Section 3 of the Act provides, a Hanafi may create
awaqf for his own maintenance and support during his lifetime or for payment
of debts out of the rents and profits the property dedicated (This clause does not
apply to Shias). The ultimate benefit may be postponed until after the extinction
of the family or descendants of the creator (S. 4), and it is not necessary that
there should be a concurrent gift to charity The uh mate gift need not be
express, it may be only an implied gift [proviso. S. 3(1)(b)]. Section 5 further
exempts from the provisions of the Act any local custo prevalent among any
class or sect of the Muslims.

Whatever family awqaf remain are not supervised by the existing status,
administrative set-up under the Waqf Act, 1995 (and before this by the Wakf
Act, 1954). These are left to their own devices and nominal control of y art; that
is, if something goes wrong, the affected beneficiary could ta erring member of
the family to court. Much of the expenses on litigationeat the available waqf
resources which is generally used by the mutawalli on defence. The number of
family waqfs in existence in India is not known as the survey of waqfs
conducted under the Waqf Act does not cover family waqfs.
Section 3(r)(iv), Waqf Act, 1995 states:
(r) "waqf" means the permanent dedication by any person, of any movable or
immovable property for any purpose recognised by the Muslim law as pious
religious or charitable and includes ―
(iv) a waqf-alal-aulad to the extent to which the property is dedicated fs
purpose recognised by Muslim law as pious, religious or charitable, provided
the line of succession fails, the income of the waqf shall be spent for education
development, welfare and such other purposes as recognised by Muslim law.

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The Patna High Court in Bihar State Sunni Wakf Board v. Sunita Singh, held
that a pure waqfalal aulad is not included in the definition of wages given in
Section 3(r)(iii) of the Waqf Act, 1995 and the Board has got authority only
over the wages as defined under the Act.
What appears to be a way out of this is that the Waqf Act, 1995 may be
amended to provide that the lifespan of a family waqf shall be fixed for 30
years. It may provide the owner of valuable properties to save it from the
wasting hands of a spoilt progeny. Abolition of family waqf would not be a
good idea as its origin is traced back to the Prophet's time, and also to the very
wide concept of charity in Islam.
(c) Substantially for charity: The decision of the Privy Council in Mohamed
Ahsanullah Chowdhry v. Amarchand Kunchu 1899 SCC Online PC 23 shows
that before the passing of the Waqf Validating Act, 1913, such waqfs were
considered valid and they are so even today.
Waqf for the benefit of humanity at large without reference to religion. -
When the Supreme Court observed in Zain Yar Jung v. Director of
Endowments AIR 1963 SC 985 that the beneficiary must be a member of the
Muslim community, the law in force was the pre-amendment 1954 Act, Section
3(a) of which defined a beneficiary as a per son or object for whose benefit a
waqf is created and includes religious and charitable object and any other object
of public utility "established for benefit of Muslim Community".
However, through an amendment in 1964 to the Wakf Act, 1954, a public
waqf is no more for the exclusive benefit of Muslim community but for the
benefit of everyone, irrespective of considerations of caste, creed and religion
This is what Islamic law provides, notwithstanding a narrow-minded waqifs
wish to restrict the benefit to his own community or caste. Justice Ameer Ali in
one of his judgments clarified that a public waqf is for the benefit of human
beings", and for any "meritorious object". (Vidya varuthi Thirtha Swamigal v.
Baluswami Ayyar, 1921 SCC Online PC 58).
A few examples of such awqaf:
1. Free langar (soup kitchen) for feeding poor
2. Free dialysis clinic
3. Free clinics of unani, ayurvedic, homoeopathic medicines
4. Free tuition fees for school children
5. Free rickshaws or taxis for needy
6. Free shelters for footpath sleepers 7. Free cool water during the summer
season
7. Free child delivery facilities in hospitals
8. Free marriage expenses of poor girls

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 9. Free burial expenses of those dying on
10.Free winter clothing for poor
11.Free sewing machines for poor women, the street etc.
A Mosque as a waqf- The Supreme Court in Syed Mohd. Salie Labbai v.
Mohd. Hanifa, (1976) 4 SCC 780 has laid down the following conditions for
the dedication of a public mosque:
a) Waqif must exhibit his clear intention either through declaration,
written deed or through his conduct:
b) he must divest himself from the ownership of this property;
c) he must permit public in general to offer prayers there, and
d) provide a separate entrance for the public to enter the mosque.

STATUTORY SUPERVISION OF "AWQAF" IN INDIA

Enactments for supervising "awqaf" in India
Presently, the following enactments deal with the administrative supervision of
awqaf in the country. It is important to know that the substantive law of waqf is
not touched by any of these laws, which govern their administration alone, and
not the substantive law of waqf.
Mussalman Wakf Validating Act, 1913
This enactment does not touch even the administrative side of family waqf as s
sole objective is to declare that waqf-alal-aulad, notwithstanding any judicial or
declaratory pronouncement, shall be regarded as valid. The law aims at undoing
the negative effect of the Privy Council's judgment in Abul Fata Mohamed
Ishak v. Rosomoy Dhur Chowdry 1894 SCC Online PC 24. Because of its
utility, this Act is adopted as their own law by Pakistan, Bangladesh and
Myanmar.
Waqf Act, 1995 (as amended by Act 34 of 2019)
This Act applies to awqaf in the whole of India.50 Earlier Jammu and Kashmir a
only State having its own waqf law, vis. Jammu and Kashmir Wakafs Act, 2001
and Jammu and Kashmir Specified Wakafs and Specified Wakaf properties
(Management and Regulation) Act, 2004. These enactments have Propeen
repealed by Jammu and Kashmir Reorganisation Act, 2019.
Durgah Khawaja Saheb Act, 1955

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In view of the great respect the Dargah of Ajmer enjoys, the first Central
legislation enacted for it by the British Government was passed in 1936,
followed by the present law passed in 1955.

THE WAQF ACT, 1995: ITS OUTLINE

1. Waqf Boards: ― The Waqf Act, 1995 provides (in Sec. 14) for the
establishment of a Board of Auqaf for each State. The Board for a State and the
National Capital Territory of Delhi consists mostly of non-official members,
some of whom are elected by certain electoral colleges. Other members of the
Board are nominated by the State Government. An officer of the State
Government not below the rank of Joint Secretary is also included in the Board.
In the case of Union Territories other than Delhi, the Board consists of
appointees by the Central Government. The members of the Board elect the
Chairperson. The members of the Board are appointed by the State Government
keeping in view the expectations of various sections amongst the classes
eligible appointment. The Act contemplates representation to any one or more
of the following categories: 1) MLAS and MPs; 2) persons having knowledge
of Muslim law and representing State Jamait and Shia conference, 3) person
having knowledge of administration, finance or law; and 4) mutawallisof waqfs
situate in the State.
States cannot avoid elections and resort to nominations arbitrarily.
Procedural safeguards laid down by Parliament for the said purpose are ma. date
and States are obliged to fulfil the same before effecting nomination Reaching
of a subjective satisfaction by the State that it is not reasonably practicable to
constitute an electoral college for any one or more of the categories mentioned
in Section 14(1)(b)(i) to (iii) and recording of reasons thereof is sine qua non.
Persons to be so nominated have to be such as the State deems folk the post of
member on the Waqf Board. Hence, the State is duty-bound to consider even
background and status of the person being chosen by it.
2. Delegation of powers by the Board:― The Board may, by order in writing,
delegate to the Chairperson, any other member, the Chief Executive Officer or
any other officer or servant of the Board or any area committee, subject to
limitations specified in that order, such of its powers and duties und Act as may
be deemed necessary. But this power of delegation under the Section 27 does
not contemplate total delegation of powers of the Board to other sons to sit by
itself quiet and watch the fun of the consequences. Vague, t ambiguous and too

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general delegation is beyond the meaning of delegation of power by a statutory
authority. The Board is a statutory authority, it cannot totally disassociate itself
from the management of the Committee.
The Boards are bodies corporate having perpetual succession and a
common seal with power to acquire, hold and transfer property and can sue and
be sued. The general superintendence of all waqfs in the State vests in the
Board. The Board can appoint and remove mutawallis in accordance with the
provisions of the Act.
3. Mutawallis: ― It must be remembered that under normal circumstances a
mutawalli is named and appointed by the waqif in the waqf deed itself. It is only
when there is a vacancy and there is no one to be appointed under the terms of
the waqf deed, and where there is any dispute regarding any person's right to act
as a mutawalli, that the Act empowers the Board to appoint one and that too
"temporarily". The appointment shall be made for the period and o conditions as
the Board may think fit: this is indicative of the fact that it is not a regular
appointment that is contemplated by Section 42, Waqf Act. If there is a
successor named in the waqf deed, the Act nowhere provides for appointing a
mutawalli by the Board.
The Waqf Act, 1995 places numerous checks on mutawalli, For example,
the Act makes it obligatory for mutawallis to let the waqf property and its
accounts be audited by auditors appointed by the Board and at the discretion of
the State Government, also by the State Examiner of Local Funds or any other
officer designated for that purpose by the State Government; (Sec. 46 and 47) to
furnish reports, returns and other documents to the Board; (Sec. 32(2)(l) and
(m) & 50(b) and (c)) to obey the directions given by the Board and prepare and
submit an annual budget to the Board (32(2)(c) and 50 (a)) and the Board can
give such directions for making alterations, omissions or additions in the budget
as it deems fit consistent with the objects of the waqf and the provisions of the
Act. (Sec. 44(1)&(3)) As defined under Section 3 of the Act, the mutawalli is
merely a manager of the waqf. By the Wakf (Amendment) Act, 2013, mutawalli
shall be a citizen of India and shall fulfil such other qualifications as may be
prescribed. Mutawallis are barred from compromising any suit or proceeding in
any court relating to the title of waqf property without the sanction of the Board.
Under Section 61, the mutawalli may be penalised for failure to do the acts
specified therein. Under Section 64 the mutawalli can be removed from his
office.

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4. Board may assume direct management of a "waqf" in certain
situations:― Section 65, Waqf Act, 1995 stipulates that where no suitable
person is available for appointment as mutawalli, or where the Board is satisfied
that filling the vacancy will be prejudicial to the interests of the waqf, the Board
may assume direct management of the waqf for a maximum period of five
years. The Board must record the reasons in the order for its decision.
5. Waqf Tribunals in every State:― Section 83, Waqf Act, 1995 proves for
the constitution of Waqf Tribunal. It says that the State Government shall
constitute as many tribunals as it may think fit for determination of any dispute
relating to a waqf or its property within the defined local limits. A mutawalli or
any person interested in the waqf may make an application to the Tribunal for
determination of any dispute. This Tribunal is a three-member Tribunal, with a
District, Sessions or Civil Judge Class I as its Chairman and two other
members: one, who shall be an officer from the State Civil Services equivalent
in rank to that of the Additional District Magistrate, and the other having
knowledge of Muslim law and jurisprudence. The Tribunal has been with the
status of a deemed civil court with the powers of a civil court while trying a suit
or executing a decree or order. The Tribunal's decision ok final and binding on
the parties and no appeal shall lie against it, except supervisory power of the
High Court conferred by the Constitution.
The jurisdiction of the Waqf Tribunal is not restricted to determine the nature of
the waqf property alone; it can determine whether the waqf property has been
rightly leased or wrongly, or any other questions relating to the waqf property,
for example, matters falling under Sections 33, 35, 47, 48, 51, 54, 61, 64, 67, 72
and 73. All disputes relating to waqf property are to be decided by the Tribunal;
civil court's jurisdiction is barred. However, the Act is not applicable to pending
suits or proceedings of appeals or revisions which commenced prior to 1
January 1996, i.e. coming into force of the Waqf Act, 1995. The Act was made
prospective and cannot operate retrospectively. (Sardar Khan v. Syed Nazmul
Hasan (2007) 10 SCC 727).

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 WAQF AND TRUST COMPARED
The leading case on this point is Vidya Varuthi Thirtha Swamigal v. Balusam
Ayyar 1921 SCC Online PC 58 in which the Privy Council has laid down
elaborate tests of distinguishing waqf from trust. These distinctions, along with
others, may be for mutilated in a tabular form as follows:

Trust Waqf
No particular motive is necessary. It is generally made with a pious,
religious or charitable motive.
The founder may himself be a The waqf cannot reserve any right to
beneficiary. benefit for himself, except to some
extent under Hanafi law.
It may be for any lawful object. The objects must be recognised by
Muslim law as pious, religious and
charitable and in case of family
settlement, the ultimate object must be
some benefit to mankind.
The property vests in the trustee. The property vests in God.
A trustee has got a larger power than a A mutawalli is only a manager or
mutawalli. superintendent.
It is not necessary that a trust may be A waqf is perpetual, irrevocable and
perpetual, irrevocable or inalienable. inalienable.
It is valid for any object which is not A part from these requisites, it must be
in contravention with any law or for objects recognised as valid by
morality. Muslim law.
Its ultimate benefit is for the founder The cy pres doctrine is applied and the
when it becomes incapable of property may be applied to some other
execution and the property has not objects as near as possible to the
been exhausted. original object.

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