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CHANAKYA NATIONAL LAW UNIVERSITY

PROJECT ON WAQF

Name:Anvesh Malhotra Roll:7531 nd th 2 year 4 semester


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Introduction A waqf, also spelled wakf, is, under the context of 'sadaqah', an inalienable religious endowment in Islamic law, typically donating a building or plot of land or even cash for Muslim religious or charitable purposes. The donated assets are held by a charitable trust. The grant is known as mushrut-ul-khidmat, while a person making such dedication is known as wakif. The term waqf literally means "confinement and prohibition" or causing a thing to stop or stand still. The legal meaning of Waqf according to Imam Abu Hanifa, is the detention of specific thing in the ownership of waqf and the devoting of its profit or products "in charity of poors or other good objects". A waqf was used to keep money or property together in private hands; a pooling of wealth to maintain private ownership. It is a pious and perpetual endowment that is free from tax. Waqf signifies the extinction of the waqif's ownership in the thing dedicated and detention of all the thing in the implied ownership of God, in such a manner that its profits may revert to or be applied "for the benefit of Mankind"
Definition of Wakf : A Wakf is an unconditional and permanent dedication of property with implied detention in the ownership of God in such a manner, that the property of the owner may be extinguished and its profits may revert to or be applied for the benefit of mankind except for purposes prohibited by Islam. For the purpose of the Musalman Wakf validating act of 1913, a Wakf means "a permanent dedication by a person professing the Musalman faith of any property for any purpose recognized by the muslim Law as religious, pious or Charitable". SHIA LAW- Wakf is a contract, the fruit of effect of which is to tie up the origin of thing and to leave its usufruct free. The subject of the Wakf is transferred so as to become the property of the beneficiaries.

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A wakf for a limited period time is void. According to better opinion Wakf in favour of descendants without any provision in the event of failures of successors is void. Who may make a wakf - Subject to the provision of any one for the time being in force, a Mohammadan who is a major and is of sound mind, make a Wakf in respect of any property of which be is the owner. An indispensable companion for all concerned with this subject.

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Meaning of Waqf: The literal meaning of Wakf is detention. According to Abu Hanifa, the ownership in the Wakf propert y continued to be vester in the owner. As per section 2 (e) of the The Mussalman Wakf Act, 1923 , "Wakf" means the permanent dedication by a person professing the Mussalman faith of an y propert y for any purpose recognised by the Mussalman law as religious, pious or charitable, but does not include any wakf, such as is described in section 3 of the Mussalman Wakf Validating Act, 1913, under which an y benefit is for the time being claimabl e for himself by the person by whom the wakf was created or by any of his famil y or descendants. 1 Also as per the definition of mutawalli given under the Mahomedan law, the moment a waqf is created, all rights of propert y pass out of the waqif and vest in the almight y. According to the two disciples, Abu Yusuf and Muhammad, waqf signifies the extinction of the appropriator's ownership in the thing dedicated and the detention of thing in the implied ownership of God, in such a manner that its profits may revert to or be "for the benefit of mankind." A wakf, however, is a trust for the purposes of s. 92 of the Code of Civil Procedure. Wakf may be made in writing or the dedication may be oral. There must, however, be appropri ate words to show an intention to dedicate the propert y. The use of the word 'wakf is neither necessary nor conclusive. The word wakf means detention or stoppage. There is extinction of the proprietor's ownership and detention in the implied ownership of G od. 2

Objects of Waqf:

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sec tio n 2 ( e) o f t he T he M ussa l ma n Wa kf Act, 1 9 2 3 Ma r ia m Ba i v . Ja ffa r A b d u l Ra h ma n S a i t ( '7 3 ) A. M ad . 1 9 1 .

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As per section 178 3, the purpose for which waqf may be created must be one recognised by the Mahomedan Law as religious, pious or charitable. A Waqf may also be created in favour of the settlors famil y, children and descendants. In case where a Waqf is created, for the mixed purposes, some of which are lawful and some are not, section 180 of the same act says that it is valid as to the lawful purposes, but invalid as to the rest, and so much of the propert y as is dedi cated for invalid purposes will revert to the waqif. Where the propert y is not specificall y dedicated to an object which fails, the whole amount will be devoted to the valid object of charit y. As per Doctrine of cy-pres, where a clear charitable intention is expressed in the instrument of waqf, it will not be failed because the objects, if specified, happen to fail, but the income will be applied for the benefit of the poor or to objects as near as possible to the objects which failed. Though a wakf may be created orall y, yet when the terms of a dedication have been reduced to writing no evidence can be given to prove the terms except the document itself or secondary evidence of its contents . 4 It is not absolutel y necessary th at the writing by which a Wakf is created should exist or there should be direct evidence about the creation of a wakf and its terms. A wakf can be proved by showing immemorial user of the propert y as wakf . 5 As per section 184 of the said act, A wakf may be created by act inter vivos or by will. A wakf created by will is not invalid because it contains a clause that the wakf shall not op erate if a child is born to the testator. The reason is that a testator has power in law to revoke or m odify his will at any time he

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Sec 178 , Mullas Principles of Mahomedan Law Shaikh Muhammad v. Bibi Mariam (1929) 8 Pat. 484 5 Chief Administrator of Auqaf v. Rashid-ud-daula 1961 (W.P.) Lah. 993

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likes, and he may therefore revoke a wakf created by will even without reserving any express power in that behalf . 6 Shia law It was held at one time that a Shia cannot create a wakf by will. But this viev erroneous, and it has been held by the Privy Counc il that a Shia may create a wakf by will . 7 There is a distinction between a wakf-bil-wasiyat, i.e., a will which conveys the propert y o death of the testator to the mutawalli as wakf and a wasiyat-bil-wakf, i.e., a will which makes of the propert y with a direction to the donee to create the wakf desired. The distinction is of not of substance. In the later case the propert y is not impressed with the character of immediatel y. 8 Requirement: According to Muhammad, the wakf is not complete unless, besides a declaration rakf, a mutawalli (superintendent) is appointed by the owner and possession tie endowed propert y is delivered to him . The founder of a wakf may constitute himself the first mutawalli (superintendent) . The founder and the mutawalli being the same person, no transfer of physical possession is necessary, whichever of the two views is upheld. Nor is it necessary that the propert y should be transferred from his name as owner to his name as mutawalli . 9 Intention. Where there is neither a declaration of wakf nor delivery of possession, a mere intention to set apart propert y for charitable purposes is not sufficient, to create a wakf, even if the income of the propert y is applied to the intended purpos e. If the document purporting to create wakf is invalid, subsequent conduct proving the intention to treat the propert y as wakf cannot render the endowment valid . 10 Rights of waqif:
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Muhammad Ahsan v. Umardaraz (1906) 28 All. 663 Baqar Ali Khan v. Anjuman Ara Begum (1902) 25 All. 236 8 Mahabir Prasad v. Mustafa (1937) 41 Cal. W.N. 933 9 Beliram V. Muhammad Afzal 50 Bom. L.R. 846 10 Mahomad Safi v. Khadim Ali (1944) A.O. 291

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According to section 190 11 of Principles of Mahomedan Law, the waqif, may reserve to himself the power to alter the beneficiaries either by aiding to their number or excluding some, and to increase or reduce their shares. Also as per section 17 12 of the Indian Trusts Act, 1882, the trustee of the trust has a discretionary power and the court is not authorized to control the exercise reasonabl y and in good faith of such discretion. Section 36 13 of the same act gives the power to the trustee that a trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the trust propert y, and for the protection or support of a beneficiary who is not competent to contract. A trustee, as per section 37 14 of the act is even empowered to sell any trust propert y, he may sell the same subject to prior charges or not, and either together or, in lots, by public auction or private contract, and either at one time or at several times, unless the instrument of trust otherwise directs. As per section 118 15 of Principles of Mahomedan Law, a Mahomedan cannot dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Under Mahomedan law, he propert y bequeathed must be capable of being transferred and the testator should be the ow ner of
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Sec 190, Mulla on Principles of Mahomedan Law Where there are more beneficiaries than one, the trustee is bound to be impartial, and must not execute the trust for the advantage of one at the expense of another. Where the trustee has a discretionary power, nothing in this section shall be deemed to authorize the Court to control the exercise reasonably and in good faith of such discretion. Illustration A, a trustee for B, C and D, is empowered to choose between several specified modes of investing the trustproperty. A in good faith chooses one of these modes. The Court will not interfere, although the result of the choice may be to vary the relative rights of B, C and D.
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General authority of trustee.

Sec 36. In addition to the powers expressly conferred by this Act and by the instrument of trust, and subject to the restriction, if any, contained in such instrument, and to the provisions of section 17, a trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the trust-property, and for the protection or support of a beneficiary who is not competent to contract.
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Power to sell in lots and either by public auction or private contract.

Sec 37. Where the trustee is empowered to sell any trust-property, he may sell the same subject to prior charges or not, and either together or ,in lots, by public auction or private contract, and either at one time or at several times, unless the instrument of trust otherwise directs.
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Sec 118, Mulla on Principles of Mahomedan Law

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the said propert y. The propert y bequeathed should be in existence at the time of death of the testator, even if it was not in existence at the time of execution of the will or trust deed. Under Shia Law, the consent by the heirs should be free and a consent given under undue influence fraud, coercion or misrepresentation is no consent and the person who has given such consent is not bound by such consent. The consent by the heirs can be given either expressl y or impliedly. If the heirs attest the wil l and acquiesce in the legatee taking possession of the propert y bequeathed, this is considered as sufficient consent. If the heirs do not question the will for a very long time and the legatees take and enjoy the propert y, the conduct of heirs will amount to consent. When the heir gives his consent to the bequest, he cannot rescind it later on. In a case of Daulatram v. Abdul Kayum 16, the court said that the consent need not be expressed; it may be signified by conduct showing a fixed and unequivocal intention. It was held that where the propert y was disposed of by the father and no objection was made by his heirs during the time of formation of such a deed, it is assumed that there was an implied consent from them. Later on after the death of the father, the sons cannot contend that their consent at the formation of deed was not taken.

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(1902) 26 Bom. 497

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