Monday, 4 May 2020

Notes on Wakf under Muslim law

Basic concept of Wakf

Wakf literally means dedication. In its legal sense,it means dedication in perpetuity of some specific property for a pious purpose.Perpetuity is the essence of a wakf. Once a wakf is created,the ownership of the Wakif that is the dedicator,is extinguished, and the wakf is irrevocable.

According to S 2(1) of the Mussalman Wakf Validating Act,1913."Wakf means the permanent dedication by a person professing the Mussalman faith,of any property,for any purpose recognised by the Mussalman law as religious,pious or charitable.

How created

A wakf may be testamentary or inter vivos. A testatmentary wakf,which may be made either verbally or in writing,comes into effect after the death of wakif( that is the declarant) and is subject to the same restriction as a bequest to an individual.

No formality is necessary to constitute a valid wakf. It may be created either orally or by a deed. It is enough if the intention to create a wakf is unequivocally declared by the language used.

Where a wakf is created for mixed purposes,some of which are lawful and some are not lawful,the wakf is valid as regards lawful purposes,but fails as to the unlawful purposes,and the property which is dedicated for unlawful purposes reverts to the wakif.

For creation of a valid wakf,the dedication should not depend on a contingency,and the appropriation must at once be complete;it must not be made to depend on anything.But the provision for the payment of debts of the wakif does not import a contingency,and the wakf is valid.

Although a wakf may be created either orally or in writing,where a wakf of immovable property of the value of Rs.100/- or upwards is created by a written instrument,it requires compulsory registration under the provisions of the Indian Registration Act.

Wakf by immemorial user: A wakf may be inferred from immemorial user,even though there may be no direct evidence to show when and how it was originally set apart,e.g.,when a land has been from time immemorial used for the purpose of a burial ground,then the land is by user,wakf.

But the mere burial of a saintly person in a plot of land does not convert that land into trust property.In the absence of an intention to dedicate,or a dedication by the owner,mere user will not divest land of its private character and make it wakf. There must be proof of dedication or of user,such as saying of prayers in a congregation.

Essentials of a valid Wakf under Hanafi law

According to Hanafi law the following are the five essentials of a valid wakf,

1) Permanent dedication of property

2) The Wakif must be competent:- The dedicator should be a person,1)professing Islam,2)of sound mind,and 3)not a minor.

3) The Wakif must be the owner of the property

4) Object must be religious.
Doctrine of Cy-pres
When a clear charitable intention is expressed in an instrument of wakf,it will not fail because the specified objects happen to fail; rather such an infirmity will be cured by the application of the doctrine of cy-pres,and the income will be applied for the benefit of the poor or to objects as nearly as possible to the objects which failed.
Cy-pres literally means "as nearly as possible".The doctrine of cypres lays down that if the wishes of the donor or testator can not be carried out literally,they will be carried out as nearly as possible in the way desired. Thus if a charitable trust is initially impossible or impracticable,or if it subsequently becomes so,the trust will not fail,and the court will apply the property cy-pres,that is apply it to some other charitable purpose as nearly as possible resembling the original trust.
5) The wakf must be unconditional and must not be subject to any option.
Wakf and family settlement(Walf-ul-aulad)

 The most excellent sadaquah is that which a man bestows upon his family.Therefore under pure muslim law, a wakf exclusively for the benefit of the settlor's family is valid.

Prior to the coming into effect of the mussalman wakf validating Act 1913,a wakf for the benefit of the settlor's family was not valid if the ultimate gift to charity was illusory,whether from its small amount or from its remoteness and uncertainty.After coming into force of  mussalman wakf validating Act 1913, such a wakf is valid even if the ultimate gift to charity is illusory.

Whether it is revocable
A wakf cannot be revoked after its dedication has been completed,however, a testamentary wakf is revocable at any time before the death of the testator.Likewise,a wakf created during death-illness may be cancelled on recovery.But a wakf inter vivos, other than a wakf created during death-illness,cannot be revoked.
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