Waqf

CRITICAL ANALYSIS OF THE CONCEPT OF WAQF

In This Blog we will do deep Analysis of the concept of Waqf.  You can click on the link below to read particular topic from blog.

ABSTRACT

waqf, additionally called hubous or mortmain property is an inalienable charitable endowment under Islamic law.

It involves donating a property either immovable or movable for Muslim religious or charitable purposes.

The blog aims to deal with concept of waqf, characteristics, essentials, its formalities, how it is executed, appointment, functions, removal of Mutawalli and the concept of Waqf-Ulal-Aulad.

KEYWORDS: charitable, pious, religious, mutawalli, waqf-ulal-aulad

INTRODUCTION

According to Section 2(1) of Mussalman Wakf Validating Act, 1913,

“Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable.”

waqf means :

According to legal definition:

Waqf implies tie or bind the property in the name of God and the devotion of wealth for the benefit of mankind.

PARTIES OF THE WAQF

  • Waqif’- the person who makes waqf.
  • Mutawalli’- the person who looks after the property.
  • Alahin’- the persons for whose benefit waqf is made.

SUBJECT MATTER

The topic of Waqf is property. There was a distinction in perspectives of various researchers about which property would be the subject matter i.e. movable or immovable but that was put to rest by the Mussalman Waqf Validating Act 1913 which expresses that waqf can be made of any property.

OBJECT OF WAQF

It has to be charitable, pious and religious.

It must not be non Islamic. Object must be certain and indicated with reasonable certainty and should be mentioned in deed.

Object should always be legal. Illegal objects can never be allowed.

CHARACTERISTICS OF WAQF

  • Perpetual– A waqf for a limited time period is not allowed. Any property turned into waqf must stay waqf.
  • Non-transferability– Waqf is an indefinite devotion of property to God that can’t be transferred.
  • Irrevocability– A declaration of waqf is in its nature irrevocable. The property once donated to God cannot be reclaimed.
  • Absoluteness– The arrangement of the property in waqf is absolute. God is the sole owner.
  • Charitable and Pious– The benefits of the waqf property are utilized for various purposes like religious, pious, or charitable under Muslim Law.

In Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, it was held that “if a Muslim man gives his home to the tourists regardless of their religion and status for their stay,

this can’t be considered as a legitimate Wakf on the ground that under Muslim law a Wakf has a strict rationale that it ought to be made to support the Muslim people group.

At the point when a Wakf is established, it is consistently an assumption that it is an endowment of some property, made for God. This is a lawful fiction.

ESSENTIALS OF WAQF

  • Permanent Dedication– The most significant essential of a legitimate waqf is that it should be a ‘permanent dedication of property’ to religious, pious, or charitable purposes. Waqf must not be conditional.

In Mohd. Arif v. State of Gujarat, the court observed that Waqf cannot be made conditional.

If there is a condition then it is not a valid waqf.

  • Competence of Waqif– Waqif should not be of unsound mind, should be major and a Muslim.
  • Owner of Property– Owner of the property must create waqf. Guardians cannot make waqf on behalf of the minor because the guardian is not the owner.

FORMALITIES

Waqf may be created either:

(a) Orally

(b) In Writing

In the case of an oral agreement, the presence of words emphasizing on the intention of the parties is a prerequisite.

Registration is not required but if it is written waqf deed and value of property is more than Rs.100 then registration is compulsory.

If a person has created a waqf by a will, then registration is not required.

HOW IS WAQF EXECUTED

Under Sunni Law-

To complete waqf, it is important to deliver possession.

Under Shia Law-

Delivery of possession and appointment of Mutawalli is necessary.

Who is Mutawalli?

The representative of the Waqf property is called Mutawalli, who manages and maintains the property.

Who can appoint a Mutawalli?

  • Generally, waqif appoints Mutawalli at the time of the creation of the waqf. However, in the event that a waqf is formed without the appointment of a mutawalli, the following parties may appoint the Mutawali:
  • The executor of the will (if waqif has made a will);
  • The mutawalli on his death;
  • The Court;

By congregation which is represented by Waqf Board (Generally, the court leaves it on the Waqf Board to appoint Mutawalli and then the Board gets it approved by the court).

Who can be appointed as Mutawalli?

  • Any individual can become Mutawalli if he is a major, of sound mind, and is equipped for carrying out the functions to be released under a specific waqf.
  • Minor cannot become Mutawalli but if the post of Mutawlli is hereditary so minor can become Mutawalli.
  • Non-Muslim can become Mutawalli in the light of the fact that waqf isn’t solely religious.
  • Female can become Mutawalli but in exceptional situations which are co-religious, she cannot.

POWERS AND FUNCTIONS OF MUTAWALLI

  • Possession– Nobody but Mutawalli has a right to possess the property.
  • Mortgage or Sell– Mutawalli cannot sell or mortgage the property, however, if the Waqf deed empowers him to do so, he can do it, but if Waqf deed is silent about mortgaging or selling the property then Mutawalli can do so with the permission of the court.
  • Lease– Mutawalli has the option to put the property on lease for one year in the event that it is residential and for a period of three years if it is agricultural, nonetheless, the authorization of the court is important if needs to lease for more than that.
  • Loan– If waqf deed allows then Mutawalli can take a loan but if waqf deed is silent then he cannot.

REMOVAL OF MUTAWALLI

  • He can be removed by Waqif;
  • Mutawalli can be removed if he has become unsound;
  • If he is misusing the powers or exercising extra powers;
  • If he is disobeying the waqf property;
  • If he has become insolvent;
  • In the event that he isn’t performing obligations steadily;
  • On the off chance that he is utilizing the waqf property;
  • In the event that he is transformed (if waqf is for a beneficent reason and isn’t identified with religion then transformation isn’t ground).

WAQF-ULAL-AULAD

It is a waqf in favour of one’s own family and descendants. Here alahin is family members.

Before Mussalman Waqf Validating Act 1913
WAQF-ULAL-AULAD solely for family members was not allowed.

Where the substantial portion of the property was for family members and smaller portion for general public, waqf was not allowed.

Where the substantial portion of the property was for general public and smaller portion for family members, waqf was allowed.

After the Act of 1913

WAQF-ULAL-AULAD– Where the substantial portion of the property was for general public and smaller portion for family members, waqf was allowed.

CONCLUSION

Waqf is a perpetual devotion of the property for religious, charitable, and pious purposes. Mutawalli plays a major role in the study of waqf.

The waqf object must be valid and legal, and the property must be the subject matter of the waqf.

The waqf that is made in favor of the family members is Waqf-Ulal-Aulad. It additionally has legitimate support for example legally binding and enforceable by resolution.

Special Credits : Anshika Goel

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