Family Law Project

Wakf – a critical study

Project
Submitted To
Tamil Nadu National Law School
Tiruchirappalli
In fulfillment of the internal components
In
Family Law - I
By
Shobhit Agrawal
Reg No: BA0130055

1
 DECLARATION

I do hereby declare that the project research entitled “Wakf”

submitted to the Tamil Nadu National Law School in fulfilment of
the requirement of the internal component is a record of the
original work done by me under the supervision and guidance of
Prof. Sanitta and that the project submitted has not been formed
on the basis of any other project submitted by any other
university or college.

Place: Tiruchirappali
Date:

2
 CERTIFICATE

This is to certify that the project entitled “Wakf” submitted to the

Tamil Nadu National Law School in fulfilment of the internal
component done by Shobhit Agrawal under the supervision of
Prof. Sanitta.

Place: Tiruchirappali
Date:

3
 Acknowledgement

I would like to thank my family law teacher Prof. Sanitta for

giving me this topic and guiding me throughout the project.
Through this research project I have learned a lot about the
aforesaid topic and this in turn has helped me grow as a student.

My heartfelt gratitude also goes out to the staff and

administration of TNNLS for the infrastructure in the form of the
library that was a source of great help in the completion of this
project.

I also thank my friends for their precious inputs which have been
very helpful in the completion of this project.

4
 Contents

 Introduction………………………………………………………………………….5
 Origin History and Development……………………………………………………6
 Wakf- Meaning………………………………………………………………………7
 Essential Requisites of a Wakf……………………………………………………….9
 Kinds of Wakf………………………………………………………………………..11
 Creation of Wakf……………………………………………………………………..12
1. Declaration…………………………………………………………………...13
2. Delivery of possession……………………………………………………….14
3. Appointment of Mutawalli……………………………………………………14
 Case Analysis
1. Garib Das and Ors. v. Munshi Abdul Hamid and Ors………………………..15
2. Punjab Wakf Board v. Shakur Masih…………………………………………16
3. Ahmed Ariff v. CWT…………………………………………………………17
4. Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan………………18
5. Mohammad Sabir Ali v. Tahir Ali……………………………………………18
6. Syed Mohd. Salie Labbai v. Mohd. Hanifa…………………………………..18
7. Allaha Rakhi v. Shah Md. Abdul Rahim……………………………………..18
8. M. A. Namazie Endowment v. CIT…………………………………………..18
 Conclusion……………………………………………………………………………19
 Bibliography………………………………………………………………………….21

5
 CHAPTER-01

Introduction
A waqf also called wakf1 or mortmain property is under the context of 'sadaqah', an absolute
religious grant in Islamic law, typically donating a building or plot of land or even cash for
Muslim religious or charitable purposes. The donated belongings are held by a charitable trust.
The grant is known as “mushrut-ul-khidmat” while a person making such dedication is known
as “wakif”.23 Before one and a half thousand years, before the birth of the principle of uses and
trusts in English Law, Islamic Law acknowledged and established a legal expedient under the
name of wakf, which allowed an owner to settle his property for the use of heirs in eternity.
The subject of "Wakf" is relative 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. Control over the
management of wakfs is, therefore, the duty of both the Central government as well as 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 govern the properties of these institutions in
accordance with the law. Subject of course, to such regulations as the law might choose to
impose. But if a law takes the whole right of supervision is null and void. The monitoring laws
assume their importance out of the fact that in case of public trusts and grants, some amount of
control over their management is necessary in the interest of the public as a whole. Such laws
are valid as they do not interfere with the internal matters of the institutions. The State cannot
interfere in the formation or looking after of religious and charitable institutions" or in the
controlling of religious matters. The number of religious denominations or parties are allowed
to manage them in accordance with the beliefs of their religions. The only intervention possible
is on grounds of public order, health and morality. The principle of wakf which is linked with
the full religious life and social economy of Muslims has laid down the foundations of one of
the most important institutions of the community. In India alone there are more than a lakh

1
Hisham Yaacob, 2006, Waqf Accounting in Malaysian State Islamic Religious Institutions: The Case of Federal
Territory SIRC, unpublished Master dissertation, International Islamic University Malaysia.
2
Introduction Tamil Nadu Wakf Board website.
3
Ariff, Mohamed (1991), The Islamic voluntary sector in Southeast Asia, Institute of Southeast Asian Studies,
p. 42, ISBN 981-3016-07-8

6
wakfs valued at more than a 100 crore of rupees. An general survey of wakf properties all over
the country is close to finishing point.

Origin History and Development

The practices recognized to Muhammad, have helped the institution of waqf from the initial
part of Islamic olden times.4 The foundation of Wakf or the provision of dedication of property,
movable / immovable, for religious purposes and for waqf improve the poorer sectors of the
society have been a distinguishing feature of the socio-economic structure of Islam. Devotion
to the way of God or the way of goodness and a strong desire to win Divine consent have been
the core cause of the origin and development of the institution. The Quran contains no place
to wakf but it abounds in injunctions in the matter of charity, " and in their wealth the beggar
and the outcaste had due share." (Surah 51, Ver. 19) "They ask the (O Muhammad) what they
shall spend, say; that which ye spend for good (must go) to parents and near kindred and
orphans and the needy and wayfarer. And whatever good ye do, to I Allah is Aware of it."
(Surah 2, Ver. 215) Generally, the source of wakf is drawn to the prescriptions of the Prophet.
Omar had acquired a piece of land in the canton of Khaibar 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 (asl-corpus) and devote the usufruct to human beings that it is not to be sold or
made the subject of gift or inheritance; devote its produce to your children, your kindred and
the poor in the way of God." In accordance with this rule Omar dedicated the property in
question as wakf which continued in existence for several centuries until the land became
waste.

CHAPTER-02

Wakf- Meaning

As defined in Wakf Act5 the term wakf 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, mashru-
ulkhidmat and wakf-alal-aulad to the extent the property is dedicated for any of the purposes

4
Sait, 2006, p.149
5
Section 3(1) of the Wakf Act 1954.

7
mentioned above. It is not necessary that the settler should be a Muslim for creation of wakf.
Any non-Muslim can also create under the Muslim law a wakf provided the object of the wakf
is one which is known by Muslim Law as pious, religious or charitable and his own religion
gives the object in the same manner. The words 'professing Islam' have been expressly taken
for otherwise all charitable and many pious grants of other societies would have come within
the purview of the Act because the purposes for which they stand are also considered as
charitable or pious under the Muslim Law.6 The Wakf (Amendment) Act, 1964, has enlarged
this definition by considering all grants made for religious, pious and charitable purposes
including mashru-ul-khidmat 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 Muharram festival from time immemorial is wakf and
evidence of express dedication is not necessary. When a long period has gone since the origin
of the purported wakf, the user can be the only available proof to show if the property is wakf
or not. When there is no proof to show how and when the purported wakf was created, the wakf
may be recognized by the proof of a user. Also, according to the Wakf Act, ‘Wakf’ means the
perpetual dedication by a person professing Islam". The words “professing Islam" are
purposely kept here to exclude charitable and pious grants 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
recognizing Islam. The definition of a receiver as given in Section 3(a) of the Wakf Act, 1954,
had unreasonably limited its scope. The receiver was defined as a person or object for whose
benefit a wakf is created and includes religious, pious and charitable objects and any other
objects of public service established for the benefit of the Muslim community. The use of the
words “objects of public utility” recognized for the benefit of the Muslim community' was
wholly needless for they are covered by the previous clause and include religious, pious or
charitable objects. The addition of these words had made the definition of ‘beneficiary’ uneven
with the definition of wakf in clause (1) which incorporated no such restrictions. In Zain Yar
Jung v. Director of Endowments7, the Supreme Court held that the objects of public
usefulness which may constitute receivers under the wakf must be objects for the benefit of the

6
Section 3(1) of the Wakf Act 1954.
7
1963 AIR 985, 1963 SCR Supl. (1) 469.

8
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 fulfil the tests prescribed by the said definition would be outside the Act. The same view
was held by Madras High Court when it stated that a ‘wakf,’ created as an object of public
usefulness is excluded from the operation of the Act if it does not benefit the Muslim
community exclusively! Though the word ‘exclusively' has not been used in the definition in
clause (a) of Section 3 and though this ruling tended to ignore the main clause in the definition
and include ‘religious, pious and charitable objects,' there is no doubt that the words 'objects
of public utility established for the benefit of Muslim community' were creating difficulty.
They faint the actual concept of charity in Islam which makes no difference between Muslim
and non-Muslim among the receivers of charity. Wherever there is an injunction or inducement
in the Quran or Hadith on charity, the receivers are stated as the poor, indigent, orphans,
travellers, the down-trodden and poor neighbour without making any difference on the basis of
religion, caste or creed. For all these explanations, the Wakf (Amendment) Act, 1964 replaced
the words “objects of public utility established for the benefit of Muslim community” with the
words “objects of public utility sanctioned by Muslim Law."

CHAPTER-03

Essential Requisites of a Wakf

Under the Muslim law a wakf means dedication by a person embracing the Muslim trust 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 ownership
thereof to the mutawalli. There is nothing in the Mohammedan law to nullify a wakf, where
the objects of the grant 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 purpose of a permanent character accepted by the Mohammedan
law. It will appear from the definitions given above that a wakf should hold the following
features:

9
1. There should be dedication in eternity- Eternity is a essential condition for the
validity of a wakf according to all ideas. A wakf is not directed by rules against eternity.
If a wakf is made and is silent as to whether it is to be in eternity a difference of views
exists as to its validity. According to Abu Hanifa and Muhammad, a wakf is not
complete unless the wakif decides the final dedication to objects which are not liable to
become dead. Abu Yusuf continues that an express mention is not compulsory. 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, according to him, if a wakf is made for a month or any stated
time without supplementary addition, the wakf would be valid and permanent. But if it
is further provided that the wakf would be void after the finishing of the stated 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 direct - Apart from the case of testamentary wakfs the law
maintains on a direct transfer of property and a wakf delaying the coming into effect of
the wakf would be void. The wakf must be made to take instant effect absolutely for
ever. A wakf must not toe delayed to any future date.
3. It should not be conditional - A wakf is invalid if it is made conditional on the
happening of an event. Thus, if the wakf is made provisional 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 compulsory to determine
the residue which was 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 religious purposes or expended on works satisfactory to God will not make
the wakf provisional.
Shia law - Provisional wakfs are invalid under the Shia law also.
4. It should not be uncertain - The misappropriation 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 requirements, 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.

10
 But where some rights which cannot be reserved are reserved in respect of a part of the
dedicated property which is different and independent, the wakf as to the rest of the
property would be valid.
5. The wakif should completely deprive himself of ownership of the property - There
is a difference of views 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 finishes 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 separate all connection with the property as an owner.
It the wakif keeps any control or power over the property as such the wakf becomes
invalid.
It is a question of construction of the deed whether the wakif has wholly separated
himself of all property. The essential 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.
Shia law- The wakif must be entirely denied of the property.
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 ownership is necessary as laid down in Sec. 186 of the Mulla's
Mohammedan Law. The Privy Council also held in Ali Zamin v. Akbar Ali Khar that
under Shia law actual delivery of ownership by or by direction of the wakif is a
condition precedent to the wakf having validity and effect.

CHAPTER-04

Kinds of Wakf

Generally wakfs can be of two kinds: Public and private. But the most recognized is its three-
fold classification -- public, quasi-public and private. Public trusts are those which are
dedicated to the public at large having no restraint of any kind regarding its use, e. g., bridge,
well, road, etc. Quasi-public wakfs are those, the primary object of which is partly to provide

11
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. Private wakfs are those which
provide benefit to private individuals, including the settler's family or relations. Such a wakf is
termed as wakf-alal-aulad. The Mutawalli manages the wakf but he cannot separate the
property. He is, however, more than a manager or administrator, as he does not hang on the
pleasure of anybody else or to anybody. Under Muslim Law a private wakf is subject to the
same restraints as any public wakf as the Law makes no difference between public and private
wakfs. Both are subject to the rules of divine property where the rights of the wakf are
extinguished and it becomes the property of God. Both the wakfs are created in eternity and
the properly becomes undisputable. Like public wakfs, a private wakf can under no conditions
fail and when the line of descent becomes extinct, the entire corpus goes to charity.
It may be clarified here that the term ‘private’ is used to suggest wakfs for private individuals.
It does not include wakfs which are of public nature, such as, a mosque. According to Muslim
Law, there is nothing like a "Private Mosque". A person can set apart an apartment for his own
prayers, but if he allows others to say their prayers in it, it assumes & public character. The test
whether a building is a mosque, it is enough to make it "wakf" provided that public prayers are
even once said with the permission of the settler. According to Abu Yusuf, wakf is the
confinement 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
possession is transferred to the Almighty. Fatawa-i-Alamgiri declares that “decrees in this
country are given according to Abu Yusuf." In a recent case, Kassimiah Charities v. Secy.
Madras State Wakf Board8, the meaning of wakf was taken as the detention of the corpus in
the possession 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 case, 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.

8
AIR 1964 Madras 18.

12
 3. And lastly, the usufruct is to be utilized for the good of mankind.

CHAPTER-05

Creation of Wakf

There is no necessary formality or the use of any express phrase or term necessary for the
constitution of wakf. The law looks to the intention of the giver 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 essential in creating a wakf is that some kind 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 proof can be given to prove the terms except the document itself or secondary proof
of its contents, when it is acceptable. Where a wakf deed is executed, it must fulfil with the
provisions of the Registration Act. Thus, a wakf deed of immovable property of Rs. 100 or
upwards would require registration. Sometimes, conditions are also to be considered to
ascertain a wakf: the statement and conduct of the wakif and his heirs and the method in which
the property has been treated are conditions which though not conclusive are appropriate. It
was constantly held by the Privy Council and the different High Courts of India that for creating
a valid wakf, it is not necessary to use the word °•wakf'." Neither the use of the word wakf nor
express dedication of the property to the possession 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. A wakf can also be created by long user. In a case where
there is no proof to show how and when the alleged wakf was created, the wakf may be
established by proof 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 Imambara9 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 belief of dedication will be made. But it would be erroneous to think that
the funeral 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.

9
AIR 1934 All 1013.

13
Other formalities

1) Declaration - As far as the courts in India are concerned, a declaration of grant and delivery
of ownership 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 undertaking 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.
2) Delivery of ownership - According to Abu Yusuf a dedication of wakf is complete by a
mere declaration. Neither delivery of ownership 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
separating himself of the ownership of the property which he intends to dedicate:
i) 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.
ii) The fact that no person is selected as Mutawalli does not essentially 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 disproved by
evidence that the wakif did not act as such, and neither himself gave nor requested
another to give any effect to his declaration.
3) Appointment of Mutawalli - In its earlier decision, the Allahabad High Court followed
the view of Imam Muhammad: that a wakf is not complete unless:
 there is a declaration, coupled with
 appointment of Mutawalli ; and
 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 essential to transfer the
property from his name as owner into his name as Mutawalli. The mere delay in transferring
ownership or getting the name mutated could not have invalidated the wakf.

14
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 appainted to the possession.

CHAPTER-06

Case Analysis –

Garib Das and Ors. v. Munshi Abdul Hamid and Ors.10

a) Facts
One Tassaduk Hussain was the owner of the disputed house had admittedly executed a
deed of wakf on June 21, 1914 in respect of the same for the benefit of a mosque and
Madrasa at Nathnagar and had the same registered. In terms of the deed the donor was
to remain in ownership of the house as Mutawalli and his wife was to be the Mutawalli
after his death. The document provided that after the death of both the husband and
wife the Mutawalli would be elected by the panchas of the muslim community of
Nathnagar and so long as the donor and his wife were living they would maintain
themselves from the income of the property and spend the balance left for the mosque
and the Madrasa. Tassaduk Hussain executed and registered three deeds on 10th
December, 1949 by one of which he purported to cancel a gift deed dated November 4,
1939 executed in favour of some of his relations in respect of the disputed house. By
the second document he cancelled another registered deed of gift dated August 2, 1948
executed in favour of another relation of his in respect of the identical property. And by
the third document he purported to cancel the deed of wakf of 1914. Thereafter he
executed and registered three separate sale deeds on March 27, 1949 one in favour of
the appellant Garib Das, a second in favour of Shamlal and a third in favour of Gobind
Lal. All these three deeds were in respect of portions of the disputed property. Tassaduk
Hussain died in July, 1950. The suit was filed by the first plaintiff as the elected
Mutawalli of the wakf created by Tasaduk Hussain joining with him plaintiffs 2 and 3
as members of the Sadar Nathnagar Masjid Committee. Garib Das, Shyam Lal and
Gobind Lal, the alienees from Tasaduk Hussain were impleaded as defendants first

10
AIR 1970 SC 1035.

15
 party.. The first three defendants were described as tenants in the suit properties. The
plaintiffs claimed to set aside the deeds in favour of the said persons on the ground that
as a valid wakf had already been created in favour of the mosque and Madrasa and had
been acted upon, the deed of cancellation of December 10, 1949 and the sale deeds in
favour of the first three defendants could not affect the wakf. A prayer was also made
that as the said three defendants who were tenants had repudiated their tenancy they
had forfeited the same and they had become trespassers and were liable to eviction as
such.
b) Lower Court Proceedings - The Subordinate Judge who tried the suit found the deed
or wakf to be invalid holding, inter alia, that there could be no reservation for the benefit
of the donor in the case of an endowment purportedly in favour of a mosque. He also
held that the endowment was bad for uncertainty on the ground that the mosque and the
Madrasa mentioned in the wakf could not be identified and that Tasaduk Hussain never
had any intention to create a wakf.
c) High Court - The High Court's conclusions were:
i) That Tasaduk Hussain had created the wakf in question in 1914 and he continued
to be the mutawalli of the same until his death.
ii) The wakf was not a sham or illusory transaction.
iii) It was not bad for uncertainty or vagueness.
iv) It was not bad or void on account of reservation of some benefit in favour of himself
and his wife.
d) Supreme Court - Appeals Dismissed.
e) Ratio- The founder of a wakf may constitute himself the first mutawalli and when the
founder and the mutawalli are the same person, no transfer of physical possession is
necessary. Nor is it necessary that the property should be transferred from the name of
the donor as owner into his name as mutawalli. An apparent transaction must be
presumed to be real and the onus of proving the contrary is on the person alleging that
the wakf was not intended to be acted upon.

16
2) Punjab Wakf Board v. Shakur Masih 11
a) Facts
The admitted facts are that Najaf Khan was the owner of the properties, namely, houses
and shops situated in Jutog. He had executed a will on August 29, 1949 bequeathing all
his properties to his son's mother-in-law, namely, Smt. Musamat Kariman. He added a
note to the Will on dated 29-9-1949 stating thus: "After the death of Masomat Kariman,
my entire property would become wakf and the income from that would be spent for
the maintenance of the Mosque at Jatog. Nobody shall have the right either to mortgage
or sell these properties." The appellant filed the suit for declaration that it is a wakf
properly and the respondent has no manner of right whatsoever. All the Courts below
have concurrently held that the wakf has not been created by Najaf Khan and, therefore,
the will is void and the wakf thereby has not been created. The question is; whether the
view taken by the Courts below including the High Court is correct in law?
b) Supreme Court Appeal Dismissed.The hon’ble court relied on Chapter XII of the
principles of Mohomedan Law, Nineteenth Edition edited by M. Hidayatullah, former
Chief Justice of this Court, it is slated that a wakf means 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. Under Section 174, the dedication
must be permanent. Under Section 176, the subject to wakf must belong to the wakif,
namely, the property dedicated by way of wakf must belong to the wakif (dedicator) at
the time of dedication. Under Section 191, contingent wakf is not valid. It is essential
to the validity of a wakf that the appropriation should not be made to depend on a
contingency.
c) Ratio- that bequest creating a wakf contingent upon the life time of a lady is invalid
and therefore the contingent wakf is not valid as per Section 191 of the principles of
Muslim Law

11
AIR 1997 SC104, AIR 1996 SCW 4261, 1996 (4) CurCC 299, JT 1996 (9) SC 460, 1997 (2) LJR 16, 1997 MarriLJ
125, 1997 (2) RecCivr 42, 1996 (11) SCC 245, 1996 (3) SCJ 602, 1997 (1) UJ 453 (SC).

17
Other Judicial Precedents

Ahmed Ariff v. CWT12

Wakf 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".

Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan13

The ownership of the wakf property has no jural conception with any exactitude and the corpus
is tied down and is made non-alienable. Only the usufruct and the income from the corpus of
the wakf property is available for carrying out the objects of the wakf.

Mohammad Sabir Ali v. Tahir Ali14

No formal dedication or use of the word "wakf or an express transfer of the corpus of the
properties to God is necessary for constituting a wakf, the dedication of properties to purposes
recognised by Mohammedan law as religious or charitable may be inferred and that in itself
will give rise to a wakf.

Syed Mohd. Salie Labbai v. Mohd. Hanifa15

Following are the essential conditions for creation of a valid wakf dedication for a mosque of
public nature.

 The founder must declare his intention to dedicate a property for the purpose of a
mosque,
 The founder must divest himself completely from the ownership of the property.
 The founder must make some sort of a separate entrance to the mosque which
may be used by the public to enter the mosque.

Allaha Rakhi v. Shah Md. Abdul Rahim16

Creation of a valid wakf leads to simultaneously passing of all rights of property out of the
wakf and its vesting in God Almighty. The person in the administration of the wakf, whether
mutawalli, Sajjadanashin, or mujawar, or known by any other name, is merely a manager of

12
1966 59 ITR 230 Cal.
13
1978 AIR 1362, 1978 SCR (3) 886.
14
AIR 1957 All 94.
15
1976 AIR 1569, 1976 SCR (3) 721.
16
(1934) 36 BOMLR 408.

18
the wakf. He is not a 'trustee' in the technical sense of the term as understood nor is any property
belonging to the wakf 'vested' in him.

M. A. Namazie Endowment v. CIT17

Where reading the relevant clauses of a deed of wakf, it is held that the wakf was created for
the benefit of the wakif s poor relations and, therefore, it is not a wakf created for charitable or
reli¬gious purposes eligible for exemption, the enactment of the Wakfs Act, 1954 (29 of 1954)
can have no impact on the character of such wakf for the purposes of the Income Tax Act. Even
the fact of inclusion of such wakf in the list of wakfs published in the Gazette as per the
provisions of that Act would not change the character of such wakf.

CHAPTER-07

Conclusion

Whether this institute of religion is able to achieve its main objective of establishment or
not?

Critically examining of this project will clearly highlight certain aspects about the institution
of wakf, in the present times. The primary of these aspects is that wakf is only for religious
purpose and is permanent in nature, it cannot be a provisional institute. Also any gain derived
out of a wakf has to be used for the benefit of the mankind. Though their hasn’t been a great
deal of judicial 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 promptly said that the enactment of the Wakf Act. 1954, made a landmark in the
history of wakf organization in India. By establishing informal Boards vested with considerable
authority and powers, by imposing a exact 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

17
(1988) 174 ITR 58 (Mad.).

19
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. On a detail study of the topic the writer
of the project would like to highlight the problems faced by the wakf boars which need to be
redressed soon. Some of them are-

 Grabbing of wakf properties.

 Matters regarding wakf properties pending in courts for several years.
 Lack of proper supervision of wakf land and properties.
 Need to ensure proper possession of wakf properties.
 Further amendment in wakf Act and legal protection.
 Wakf properties be brought out of the purview of the Rent Control Acts.
 All wakf properties must have boundaries.
 Wakf land be used for the welfare of the people.
 Welfare/Social Welfare and Development institutions or organisations be set up on
wakf land.
 Performance of the wakf board be watched constantly

20
 Bibliography

 Arjomand, Said Amir; Feierman, Steven; Ilchman, Warren Frederick; Katz, Stanley
Nider; Queen, Edward L. (1998), Philanthropy in the World's Traditions, Indiana
University Press, ISBN 0-253-33392-X
 http://en.wikipedia.org/
 Hudson, A. (2003), Equity and Trusts (3rd ed.), London: Cavendish Publishing,
ISBN 1-85941-729-9
 http://legal-dictionary.thefreedictionary.com/
 Morelon, Régis; Rashed, Roshdi (1996), Encyclopedia of the History of Arabic Science
3, Routledge, ISBN 0-415-12410-7.
 http://wiki.answers.com/
 Gaudiosi, Monica M. (April 1988), "The Influence of the Islamic Law of Waqf on the
Development of the Trust in England: The Case of Merton College", University of
Pennsylvania Law Review (University of Pennsylvania Law Review, Vol. 136, No. 4)
136 (4): 1231–1261, doi:10.2307/3312162, JSTOR 3312162

21