Waqf and other Religious Institutions

Waqf and other Religious Institutions

Author: Prabhuti Mandhyan, LCD, Uttaranchal University.

Introduction:

The institution of waqf was developed in Islam, Muslim jurists have developed this jurisprudence of waqf. Omar has acquired a piece of land in Khaiber, proceeded to the prophet and sought his counsel to make the most pious use of it. Where prophet declared ‘tie up the property and devote usufruct to the human being, and accordance with this rule of Omar dedicated the property in question, and waqf continued in existence for several centuries, until the land became waste, Waqf literally means ‘detention and particularly it means a dedication of perpetuity of some specific property for some pious purpose. According to Abu Yusuf “waqf is the detention of thing in the implied ownership of Almighty God in such a manner that the profit may revert to be or be applied in benefit of his creatures. Waqf act 1954 defines Waqf means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by Muslim law as religious, pious, or charitable. The important features of this definition are:

  • There should be a religious motive as a secular motive would render the dedication of a gift or a trust but not a waqf.
  • Endowment should be of permanent character as a pious which is not a foundation in perpetuity will be Sadagah but not a waqf and
  • The profit or usufruct must be utilized for good of humanity.

This definition of waqf is not to be granted as exhaustive and it is given only for the limited purposes of the Waqf Act,1913 and is operative with certain parameters.

Essentials of Waqf

Essentials of waqf according of Hanafi law(Sunni law) are three fold:

  • Permanent Dedication of any property
  • By a person professing Mussalman  faith
  • For any person recognized by Muslim law as religious pious or charitable.

(a) Permanent Dedication of any property is where there should be the dedication of property and it should be permanent, dedication can be of any property. Waqf himself has the right to donate such property recognized under the Muslim Law. If Waqf is made for a limited period, it cannot be considered as a valid waqf.

(b) Person professing Musalman faith means a person should be Muslim and of sound mind, have attained the age of majority

(c)Waqf should be dedicated and it should be recognized as religious, pious, or charitable under Muslim law. A widow cannot constitute any waqf of the property which she holds in lieu of her unpaid dower because she is not an absolute owner of that property.

Where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove that she had exercised her independent mind in constituting the waqf and had fully understood the nature of the transaction.

Essentials under Shia Law for creating valid Waqf are:

  • It must be perpetual
  • It must be absolute and unconditional
  • Waqf property should be entirely taken out of waqif

Kinds of Waqf

Waqf are of two types:

  • Public waqf is those which are dedicated to the public at large having no restriction of any kind regarding its use eg. Bridges, wells, roads, etc.
  • Private Waqf is those which are for benefit of a private individual or class of individuals which may be the settler’s family.

Valid objects of Waqf

The object for the validity of waqf is based on dedication which should be for religious, pious and religious purposes, on basis of views of certain eminent Mohammaden jurists and case laws objects of waqf are

  • Mosque and provisions for Imamas to conduct worship.
  • Celebrating the birth of Ali Murtaza
  • Repairs of Imambaras.
  • Maintenance of Khankahs.
  • Reading the Koran in public places and also at private houses.
  • Maintenance of poor relations and dependant.
  • Payment of money to Fakirs.
  •  Grant to an Idgah.
  •  Grant to the college and provisions for professors to teach in colleges.
  •  Distribution of alms to poor persons, and assistance to the poor to enable them to perform pilgrimage to Mecca.
  • Celebrating the death anniversary of the settler and of the members of the family.
  •  Performance of ceremonies known as Kadam Sharif.
  •  Performing the annual Fateha of the members of his family.

Creation of Waqf

Muslim law does not prescribe any specific way of creating a Waqf. It may be verbal or in writing, though it can be said that a Waqf is usually created in the following ways –

  • By an act of a living person (inter vivos) – when a person declares the dedication of his property for Waqf. This can also be done while the person is on a death bed (marj-ul-maut), in which case, he cannot dedicate more than 1/3 of his property for Waqf.
  • By will – when a person leaves a will in which he dedicates his property after his death. Earlier it was thought that Shia cannot create Waqf by will but now it has been approved.
  • By Usage – when a property has been in use for the charitable or religious purpose for time immemorial, it is deemed to belong to Waqf.

Statutory control on Waqf

The following enactments provide for the creation and protection of public endowments:

  • Official Trustees Act 11 of 913
  • Charitable Endowment Act V1 of 1890
  • Religious Endowments Act XX of 1863,Section 14
  • The Code of Civil Procedure,1908,Sections 92-93
  • Charitable and Religious Trusts Act X1V of 1920

Mutawali

The manager and superintendent of the waqf are known as Mutawalli, he does not have the power to sell or exchange or mortgage the waqf property without the permission of the Court, or if in Waqf deed it is empowered then he can do this. Mutawalli can be any person of sound mind and capable to perform functions to be discharged under a particular waqf. Foreigners cannot be provided as trustees of property in India. Founder of Waqf appoints him at the time of the creation of the waqf but if waqf is created without the appointment of Mutawali then the executor of the founder, mutawali on death bead, the court shall be guided by the following rules:

  • Court should not discharge directions to settler,as far as possible
  • Preference should be given to member of the settlor’s family over stranger
  • In case  of a consent between setlor’s lineal descendent and who is not a lineal decendent ,court is free to exercise its jurisdiction.

Mutawalli has the authority to use usufructs for the best interest of the waqf he can take bonafide actions so that beneficiaries could enjoy the benefits of waqf. He can also take authorization from the court to sell or borrow money by showing the existence of appropriate grounds or on urgent grounds. He can file suit to protect the interest of parties of the waqf, also has the power to lease property for agricultural purposes for less than three years, for the nonagricultural purpose for less than one year can get time extended with the permission of the court.

Revocation of waqf

If a valid waqf has been created it cannot be revoked by the waqif for it is in the power to divest god from its ownership of the property. Thus, a testamentary may be revoked by the author of the waqf before his death. Waqf during death illness without the consent of heirs is valid only to the extent 1/3 rd of the property and invalid beyond this limit. Waqf created by inter vivos is unrevocable, if walif reserves the power of revocation.

Case Laws.

  • Moti Shah v. Abdul Gaffar Khan– It was held that waqf means detention of property in the ownership of god in such a manner that its profit may be applied for the benefit of its servants. The object of dedication must be charitable or religious
  • N.R Abdyul Azeez vs. E. Sundaresa– Madras High Court held that it is fundamental principle of Muslim Law that when a mosque is built and consecrated by public worship, it ceases to be the property of the builder and vests to God. It cannot be revert to the founder.
  • Mohd. Khasim v Mohd. Dastageer– Supreme Court held that according to Mohammedan jurists, the term literally means dedication by a person professing a Mussalman faith of any property for any purpose recognized by the Musalman law as religious, pious, or charitable.
  • Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, it was held that “if a Muslim man provides his house to the travelers irrespective of their religion and status for their stay, this cannot be considered as a valid Waqf on the ground that under Muslim law a Waqf has a religious motive, that it should be created for the benefit of Muslim community. When a Waqf is constituted, it is always a presumption that it is a gift of some property, made in favour of God.

Other religious institutions

Other religious institutions under Muslim law include

  • Mosque-A mosque is a place where the Muslims offer prayers in the congregation or individually. To consecrate a mosque, dedication is essential; mere construction of its building is not enough.
  • Public and Private Graveyard- the dedication of property may be made for a qabristan or graveyard. If the dedication is complete, a waqf will come into existence, a graveyard may be:
  • a public graveyard, or
  •  private graveyard.

A graveyard is private when its use is confined to the burial of corpses of the founder, his children, descendants, and relatives. In such a qabristan, no person who does not belong to the family of the founder is permitted to bury his dead. A public graveyard is one open for the burial of any Muslim.

  • Dargah- means a shrine, i.e., a tomb of a Muslim sain, used for religious prayer. According to Yule’s Dictionary, “dargah’ means “the shrine of a saint, a place of religious resort and prayers”.In India, it is an established meaning of dargah that it is a shrine or tomb of a saint; such a tomb is respectively referred to as the portal to the spiritual place of the saint. It generally includes a group of buildings of which the tomb is the nucleus.
  • Takia- The word “takia” literally means a “resting place”. Among the Muslims, the burial ground is sometimes called a takia. Sometimes a takia is only a place of assembly in a village and is devoid of all religious connotations. Sometimes it is a platform in a Muslim graveyard where prayers are offered. Sometimes a fakir builds his hut near a takia in a graveyard and takes up his residence there, functions there and calls it Khanqah.
  • Khankah- It is a religious institution, also known as a ribat where Muslim monastery wishes and other seekers after truth congregate for religious instructions and devotional, is founded by holy men, it may come into existence after long usage and dedication then it becomes Waqf, a typical case of waqf  by long usage is the Multan shrine or Mai Pak Daman
  • Imambara- It is a Shia religious institution. It is a private apartment set apart for the performance of certain ceremonies at Moharram and other occasions. It is a private apartment, and no public worship, like a mosque, meant to be used by the owner and members of his family, though the public may be admitted with the permission of the owner

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