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Understanding The Concept And Distinction Of Waqf And Trust

Introduction about Waqfs

The foundation of wakfs is traced to an utterance of the Prophet;" However, the guidelines regarding wakfs were advanced in a while by way of ijma (consensus). The following culture is taken into consideration to be the idea on which the law of wakfs has been evolved. One Omer Inal-Khattab on getting lands in Khyber went to the Prophet and entreating him stated, "O Messenger of Allah! I have been given land in Khyber than which I've obtained more valuable assets; What does thou advise me?" The Prophet whereupon spoke as a result,

"If thou likest make the property itself inalienable and give the profits from it to the charity." Omer appearing therefore, laid down that the property could not be offered, or given away in present, or inherited. He directed that out of the earnings of the assets, charity should take delivery of to the needy and the relatives, slaves must be set free, provision ought to be made for the visitors, and guests ought to be entertained.

In India, there are about one lakh wakfs worth more than 100 in crores of rupees. times of the mismanagement of wakfs are several; the incompetency and corruption of the mutawallis is appalling and abysmal greater regularly than not, the homes of the wakfs are squandered away.

In its primitive experience, actually, the word "wakf" means "detention". Up to the time of Abu Hanifa, it become now not clear as in whom did the possession of the wakf assets vest. Abu Hanifa defined wakf as "the tying up of the substance of a property inside the possession of the wakf and the devotion of its usufruct, amounting to an aria, or commodate mortgage, for some charitable reason.

The Shia regulation defines a wakf in an exceptional way in keeping with the sharia-ul-Islam, "A contract, the fruit or effect of that's to tie up the unique of an aspect and to leave its usufruct unfastened; is referred to as wakf. This definition has elements first, tying up or immobilization of the corpus, the subject-depend of the wakf, and second, the use of the usufruct for the gain of mankind. It isn't always clear from this definition as to in whom does the property vest.

The manager or the superintendent of the Waqf is called the 'Mutawalli'. Such someone appointed has no powers, either to sell or exchange or loan the Waqf belongings, without the prior permission of the court docket, until he has been empowered with the aid of the Waqf deed expressly to do so.

Being the manager of the wakf, he's in charge of the usufruct of the property. He has the following rights;
  • He has the authority to use the usufructs to the best interest of the wakf. he's approved to take all affordable actions in correct faith to make sure that the end beneficiaries are capable of enjoy all the benefits from the wakf. As he isn't the owner of the assets, therefore he's barred from promoting the belongings. but he will be bestowed upon such rights by using the wakif with the aid of the specific mention of them in Waqf nama.
  • He can take authorisation from the court docket to sell or borrow money through displaying the existence of suitable grounds or the life of urgency.
  • He can report a fit to defend the interests of the wakf.
  • He also has the power to rent the belongings for the rural reason for much less than 3 years and for the non-agricultural cause for less than 12 months. He can get the time period extended with due permission from the court docket.
  • He's entitled to remuneration as furnished by using the wakif. If the remuneration is too small, he can observe to the courtroom for purchasing it more advantageous.

Wakf Act, 1954 defines Wakf as, "Wakf way the permanent determination by way of someone professing the Islam, of any movable or immovable belongings for any motive identified by Muslim regulation as religious, pious, or charitable." A Waqf may be both in writing or can be made through an oral presentation. within the case of an oral settlement, the presence of phrases emphasising at the intention of the parties is a prerequisite.

Essential conditions of a valid Waqf

The important situations for a valid Waqf are as observe:
  1. Permanent Dedication: The dedication of Waqf assets need to be permanent and Waqf himself have to commit such assets and give it for any motive recognized by Muslim regulation, like religious, pious or charitable. If the wakf is made for a constrained length it received be a legitimate wakf and also there have to be no situation or contingency attached in any other case it turns into invalid. The reason behind Wakf is always religious.

    In Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad[1], the dedication of house with the aid of a Muslim for use of all vacationers irrespective of religion and standing became held now not to be a Wakf on the floor that underneath Muslim regulation a Wakf have to have a non-secular purpose and it must be best for advantage of Muslim network, and if it's miles secular in man or woman, the charity ought to be to the negative alone. When a Wakf is constituted, its miles presumed that a present of some assets has been made in choose of God. this is ensured through a legal fiction that Waqf belongings becomes the belongings of God.
  2. Competency of the Waqif: Who Can Create a Waqf? the person that constitutes the Waqf of his properties is referred to as the 'founding father of Waqf or, Waqif. The waqif should be a ready man or woman at the time of dedicating the property in Waqf. For being an able waqif, a person needs to possess the capability, in addition to the proper to constitute the Waqf.
As regards the ability of a Muslim for making a Waqf, there are only requirements:
  1. soundness of mind and,
  2. majority.
Someone of unsound thoughts has no ability to create any Waqf because he or she is incapable of knowing the criminal effects of the transaction. Waqf constituted by way of an insane or minor man or woman is void.

Waqf by way of Non-Muslims: The dedicator has to profess Islam i.e., believes in the principles of Islam', he need not be a Muslim by means of faith. The Madras and Nagpur high Courts have held that a non-Muslim can also create a legitimate Waqf furnished the item of Waqf isn't always towards the standards of Islam.

Patna high court docket has additionally held that a valid Waqf may be constituted with the aid of a non-Muslim. but, in step with Patna excessive court docket, a non-Muslim Waqf might also represent simplest a public Waqf; a non-Muslim cannot create any private Waqf (e.g., an Imam Bara). right to make Waqf: a person having the capacity however no right cannot represent a valid Waqf. The subject rely of wakf ought to be owned by wakif at the time when wakf is made, whether or not someone has the proper to represent a Waqf or now not relies upon at the fact whether the dedicator has a prison proper to transfer the ownership of the assets or not.

A widow cannot constitute any Waqf of the property which she holds in lieu of her unpaid dower because she isn't an absolute proprietor of that property.

Where the waqif is, a pardanashin girl, the beneficiaries and the mutawalli need to show that she had exercised her independent thoughts in constituting the Waqf and had completely understood the character of the transaction. quantity of belongings: a person can devote his entire assets, but inside the case of the testamentary wakf, more than one-third of belongings can't be devoted.

Difference between Waqf and Trust

It is relevant to notice that Waqfs underneath Muslim regulation are nearly just like the trusts below English law and the Indian Trusts Act, 1882. each, in Waqf as well as in trusts, the property is detained and its usufruct is utilised for non-secular or charitable purposes. however, a Waqf under Muslim non-public regulation can be distinguished from a believe at least on following matters:

A Waqf may be constituted only for the ones functions which are known as religious, pious or charitable in Islam while, a consider may be constituted for any lawful item.
  1. Except underneath Hanafi law, the founding father of a Waqf cannot reserve any gain for himself, however the founding father of a agree with may also himself be a beneficiary.
  2. The powers of a mutawalli (manager of the Waqf-belongings) are very limited as compared to the powers of a trustee.
  3. Waqf is typically perpetual and irrevocable, while, a believe want not be perpetual and can also be revoked beneath sure situations.
Because of the above stated variations among Waqf and a accept as true with, the Indian agree with, Act, 1882, isn't always applicable to Muslim Waqf sin to date because the nature and operation of Waqfs is worried. but, for purposes of instituting any healthy in the instances of irregularities and mismanagement of Waqf property, a Waqf has been appeared as a 'accept as true with' in the meaning of segment 92 of the Civil procedure Code, 1908.

However, it should be mentioned that the Indian Trusts Act is applicable additionally to Muslims. therefore, if a Muslim desire to settle his residences in a accept as true with he may additionally accomplish that below this Act rather than developing Waqf below Muslim non-public law.

A Muslim, who transfers his assets for a Waqf, is known as its founder or Waqif the person who seems after the assets and manages to distribute the usufruct in step with its object, is called Mutawalli. the ones persons who get the advantage below a Waqf are called the beneficiaries (Alaihim).

Legal consequences of Waqf

As soon as a wakf is whole, the subsequent are the consequences:
  • Willpower to God: The assets vests in God within the feel that no person can claim possession of it. In Md. Ismail vs Thakur Sabir Ali[2], SC held that even in wakf alal aulad, the belongings are dedicated to God and most effective the usufructs are utilized by the descendants.
  • Irrevocable: In India, a wakf once declared and whole, cannot be revoked. The wakif cannot get his belongings lower back in his name or in any other's call.
  • Everlasting or Perpetual: Perpetuality is a crucial detail of wakf. once the belongings are given to wakf, it remains for the wakf forever. Wakf cannot be of a unique time length. In Mst Peeran vs Hafiz Mohammad, it became held by Allahabad HC that the wakf of a house constructed on land leased for a fixed term became invalid.
  • Inalienable: in view that Wakf belongings belongs to God, no human being can alienate it for himself or every other character. It cannot be sold or given away to absolutely everyone.
  • Pious or charitable use: The usufructs of the wakf assets can simplest be used for pious and charitable cause. it could also be used for descendants in case of a non-public wakf.
  • Extinction of the proper of wakif: The wakif loses all rights, even to the usufructs, of the property. He can't declare any advantages from that belonging.
  • Power of courtroom's inspection: The courts have the electricity to look into the functioning or control of the wakf property. Misuse of the property of usufructs is a crime as per Wakf Act.1995.

Classes of Waqf

  • WaqfAhli: the hobbies of Waqfs are assigned for the founder's offspring and their children. despite the fact that, these successors can't sell or distribute the property situation-depend of Waqf.
  • Waqfkhayri: the interests of Waqf are assigned to charity and generosity. Representatives of beneficiaries keep the terrible and the indigent. Waqfkhayri commonly entertained to finance mosques, shelters, colleges, and universities.
  • Waqf al-sabil: a Waqf whose recipients are the overall population. it's miles specifically related to Waqfkhayri, although Waqf al-sabil is generally used to install and assemble the general public software.
  • Waqf al-awaridh: the essence of Waqf is contained in assets in order that it can be used at times of problem or unanticipated events that negatively affect the livelihood and nicely-being of a society of people. as an example, it could be assigned to the nicely-being of precise needs which includes medicine for ill humans, and so forth.
  • Waqf-Istithmar: Its wealth is supposed for buy. Such property is managed to generate earnings that command be used in constructing and transforming it holdings.
  • Waqf-mubashar: Its property is used to provide services to the advantage of some charity beneficiaries or other receivers. times of such belongings contain faculties, utilities, and so forth.

Who can create a Waqf?

The character constituting the Waqf of his personal residences is known as the 'founder of Waqf' or Waqif. To turn out to be a waqif, a man or woman dedicating the belongings need to be ready enough to accomplish that in step with the provisions of regulation. Following are the conditions, which want to be fulfilled to become a waqif and constitute a Waqf.
  1. The person constituting the Waqf should be a Muslim.
  2. Should be a person of sound thoughts.
  3. Ought to have attained the age of majority.

The Madras and Nagpur high Courts have held that a non-Muslim can also create a valid Waqf supplied the goal of the Waqf so created isn't in opposition to the principles of Islam. according to the Patna excessive court docket, a legitimate Waqf can also be constituted by a non-Muslim. however, one of these Waqf would only be constituted beneath a public Waqf i.e. a non-Muslim cannot create any non-public Waqf (e.g., an Imam Bara).

A person of unsound mind is incompetent to represent a Waqf property as such a person can't choose the felony outcomes of any such transaction. therefore, a Waqf constituted with the aid of an insane or minor character is void. A person may profess the capacity but may not have any proper to constitute a Waqf. Such a person can't represent a legitimate Waqf. The problem be counted of Waqf have to be owned through the waqif on the equal time when Waqf is being constituted. whether a Waqf may be created by means of a particular individual depends upon whether there exists a legal right for the dedicator to switch the possession of the belongings or now not.

A Waqf of any assets held by way of a widow in lieu of her unpaid dower cannot be constituted by her because she isn't an absolute proprietor of that property. In case a waqif is a pardanashin female, it's far the obligation of the beneficiaries and the mutawalli to prove that the ladies had exercised her thoughts independently for constituting the Waqf after fully knowledge the character of the transaction. someone can commit his complete belongings for the creation of Waqf but in the case of the testamentary wakf, more than one-1/3 of property cannot be dedicated.

The Waqf Act of 1913

The Mussalman Waqf Validating Act of 1930 got here into effect on July 25, 1930, which changed into carried out retrospectively on the Waqfs created before March 7,1913.

below this act, a Muslim can tie his assets for perpetuity for the aid of his circle of relatives, kids and descendants, supplied that he makes a provision in such a way that the last blessings visit a charitable object of an everlasting nature, made either expressly or impliedly.

Below this act, a Hanafi Muslim can't revel in the entire earnings or an existence interest in the earnings of consider assets. A Hanafi Muslim promoting the assets could make payments of his debts out of the rents and the profits of the assets dedicated.

The goal of the Act in line with section 3 of this Act, it's miles lawful for a Muslim individual to create a Waqf which in all different elements according with the provisions of Muslim regulation, for the following functions

For the renovation and aid wholly or partially of his circle of relatives, youngsters or descendants in which the person growing a Waqf is a Hanafi Mussalman, additionally for his very own renovation and assist at some stage in his lifetime or for the payment of his money owed out of the rents and income of the property committed:

In the case of Radha Kanta Deb v. Commissioner[3], Hindu religious Endowments, Orissa, the Hon'ble ideal court determined that the Muslim law recognises the life and advent of a non-public consider as a charitable trust. it's also known as 'Waqf-allal-aulad'. on this type of Waqf, the remaining advantage is reserved for God however the assets vests inside the beneficiaries and the profits from the belongings is used for the protection and help of the circle of relatives of the founder and his descendants.

In Md. Yusuf v. Azimuddin[4], it become opined that a wakffor khairat or for khairat kam became legitimate and no specification of the object of charity become essential. however, the court stated that whether a wokf for unure khair or khare khair became valid depended upon the development of those phrases as to in what feel those have been used, and if these phrases were used to denote benevolent purposes or precise functions, then the wakf might be void for uncertainty. In addition, a wakffor kar khair because of this any desirable act is void for uncertainty, unless a wakf for kar khair is construed to mean "reason diagnosed by using Muslim regulation as spiritual, pious or charitable.

Wakf is the introduction of assets for spiritual or charitable purposes which is mounted completely. It also has the backing of regulation i.e., binding in nature and enforceable by means of regulation. If any character is of the view that his right has been infringed then he may be seeking for remedy from the Civil court docket.

The idea, powers and duties of mutawalli are of splendid importance to study below the topic of Waqf. Such powers can handiest be exercised if there exists a clear vacancy for the put up of the mutawalli or in case of a dispute as to the competence or eligibility of present mutawalli. A Muslim, who transfers his assets for a Waqf, is known as its founder or Waqif the person who seems after the assets and manages to distribute the usufruct in step with its object, is called Mutawalli. the ones persons who get the advantage below a Waqf are called the beneficiaries.

The manager or the superintendent of the Waqf is called the 'Mutawalli'. a person of unsound mind is incompetent to represent a Waqf property as such a person can't choose the felony outcomes of any such transaction. therefore, a Waqf constituted with the aid of an insane or minor character is void.

Wakf is detention that is everlasting and binding and enforceable by law additionally, any man or woman involved might also are seeking a remedy in Civil courtroom. office of mutawalli could be very crucial in Waqf, strength can be exercised while there's a clear vacancy of mutawalli ship or there is a dispute as to competence or eligibility of present mutawalli. A Muslim wakf is prominent from an English believe or a Hindu endowment of dharma.

  1. The Karnataka State Board of Wakfs v. Mohamed Nazeer Ahmed and Anr. on 4 March, 1982.
  2. Thakur Mohd. Ismail v. Thakur Sabir Ali on 26 March, 1962.
  3. AIR 1981 SC 798.
  4. Mohammad Yusuf And Ors. v. Azim-Uddin and Ors. on 11 March, 1941.

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