Impact of waqf on muslims

INTRODUCTION

Waqf is an unconditional and perpetual dedication of something out of dedicators and vested in the ownership of God, dedicating usufruct of the property for the benefit of mankind, or for institutions, mosques or for any purpose not forbidden by Islam, with the intention of obtaining God’s pleasure.  According to Abu Hanifa, waqf is “the tying up of the substances of a property in the ownership of the Waqif and the devocaion of its usufruct, amounting to an ariya or commodate loan, for some charitable purpose”. It means that according to Imam Abu Hanifa, the ownership in the property continued to be vested in the founder or Waqif and its usufruct or profits were used for charitable or pious purposes.[1] Even the typing up of the substances of the property was not irrevocable and perpetual. The Waqif could revoke it any time and, dispose it of to anyone else.[2] Once a waqf is created will remain a waqf forever.[3] Waqf is recognized since the time of Prophet Mohammad.[4]

According to Sharia-ul-Islam, “Waqf is a contract, the fruit or effect of which is to tie up the original of a thing and to leave its usufruct free”. In this definition, the substance is tied up and the usufruct is spent for pious, religious or charitable purposes or in other words for the benefit of mankind.[5] This definition has come to be an established view of Waqf under the Shia Law of Modern India. Though in this definition it is not clear as to in whom does the property vest. But now it is established that even under Shia Law the ownership of the property vests in God.[6]

Section 3 (r) of the Waqfs Act, 1995 defines it as follows:

“Waqfs means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim Law as pious, religious or charitable and includes:

i. Waqf by user but such Waqf shall not cease to be a Waqf by reason only of the user having ceased irrespective of the period of such cesser;

ii. “grants”, including Mashrut-ul-Khidmat for any purpose recognized by the Muslim Law as pious, religious or charitable; and

iii. a Waqf-alal-aulad to the extent to which the propert is dedicated for any purpose recognized by Muslim Law as pious, religious or charitable.” And ‘Waqif’ means any person making such dedication.

SCOPE OF THE ACT

A definition in a statute is but a key for the understanding of it. It has to be read with the due regard to the scheme of the Act to accord with the intention of the legislature. In Arunachalam Chettiar v. Annamalai Chettiar,[7] a bench of Madras High Court, observed that if the scope of an enactment itself were limited, the apparently wide terms of a definition therein could not enlarge it. In other words, the definition like any other word in statute has to be read in the light of the context having regard to the scheme of the Act and that if the scope of the enactment and the context in which the defined terms is used has provided only a limited operation such definition could only have that limited meaning.[8] In other words, wide as the term waqf is, its meaning should be correlated to the term beneficiary under the Act, for there can be no waqf without a beneficiary or an object. From the terms of the definition of the latter term, it is fairly evident that public utilities are not under the Act intended to be comprehended by the words religious, pious and charitable ad they are specifically and separately referred to therein.[9] Therefore, public utility charities can come under the Act only if they partake of the character mentioned in the Act, i.e. if they are intended for Muslims alone. For Section 3 (a) save that a public utility in order to constitute a valid object within the Act should be intended exclusively for the Muslim community.[10]

According to Shariat law any immovable property can be transferred.[11]

ESSENTIALS OF A VALID WAQF

For a valid waqf, there must be a proper subject matter of waqf and the waqf property must vest in God, the Waqif must extinguish his ownership of the property, waqf property must be inalienable, waqf must be made for an object pious, religious and charitable, under the Shia law, delivery of possession must be there, waqf must be unconditional, waqf must be irrevocable, waqf must be perpetual, waqf must be immediate and uncontingent.[12]

SUSTAINABILITY OF THE WAQF

Chhedi Lal Mishra v. Civil Judge, Lucknow[13]: In this case the sustainability of waqf was discussed. A waqf was created by Mirza Mohhamad Haidar of his entire property in question. He appointed his son Piarey Mian, as mutawalli on the waqf. The waqf had been registered under section 38 of the U.P. Muslim Wakfs Act, 1937 and was also notified in the official gazette in January, 1954. The waqf and its properties were duly registered in the register maintained by the board of waqfs. Dishonestly the waqif and the sons who was mutawalli framed a conspiracy to convert the waqf property into their personal and private property. The waqif then filed a suit against the mutawalli for a declaration that the properties in question did not constitute a waqf. The board of waqfs was not made a party to the suit. The waqif and the muttawalli connived at and arrived at a compromise which was decreed. Thereafter, the father and son transferred that property to the appellant.  When the Shia Central Board of waqfs came to know of the conspiracy of extinguishing the waqf, it requested the deputy commissioner to issue notice to the transferee and direct him to handover the possession of the properties in dispute to the secretary of the said board. On receipt of the notice the appellant filed an appeal in the court of District Judge, Lucknow quasging the decree. Dismissing the appeal the court held that the compromise decree affected between the waqif and the mutawalli was not binding on the court as the board had not been made a party to the suit. The appellant went to High Court by the way of writ  petition and challenged the order of the Civil Court. The writ petition was also dismissed by the high court holding that since the registration of the waqf in the register of waqfs maintained by the board, its notification in the official gazette, the notification issued under Section 5 of the U.P. Waqf Act and the entries made in the register had not been challenged before the trial court, such questions could not be raised in the appeal preferred. The petitioner again agrived by the decision of this court went in appeal in the Supreme Court. The Supreme Court upheld the reasons of the High Court. The Supreme Court held that the creation of the waqf may be questioned if it is shown that the waqif had no intention to create a waqf but had done so to avoid a liability.  

WASIYAT OF THE WAQF PROPERTY

Aligarh Muslim University v. Syed Mohammad Sayeed Chishti & Ors.[14]: In this case Hakim Saheb executed a waqf alal aulad in 1942 with regard to his house property. A substantial portion of the earning from the waqf property was for maintainance of waqif and his decendants. Since the waqf was not vague in its object and fulfilled the essential conditions of valid waqf under Hanafi law, it was registred under Wakf Act. After 16 years Hakim Saheb changed his mind and he executed a will in favour of the appellant. Accordingly, the entire suit property was to go to the appellant after Hakim Saheb’s death. The question was whether the will can change the nature of waqf though waqf himself had stated that subsequent waqf of 1966 was a result of fraud and misrepresentation. The division bench of the Rajasthan High Court held that waqf is an unconditional, irrevocable, perpetual dedication of the property vested in God, the ownership of the founder called waqf is extinguished. The usufruct or profit of property are used for the benefit of mankind and for purposes not forbidden by Islam. Its object should be pious, religious or charitable. Thus, Hakiim Saheb could not have bequeathed the suit property through will as claimed. The claim for title over suit property on the basis of will was therefore rejected. The court observed that the waqf property could not have been given by wasiat.

Muslim law does not recognize any right of inheritance or rule of hereditary succession to the office of mutawalli.[15]

ALIENATION OF WAQF PROPERTY

P. Radhakrishnan and others v. Andhra Pradesh Waqf Board[16] : there was a mosque in Nellore and it was a public waqf from time immemorial. Some property had been endowed for its upkeep and performances of khatib and moazzin services in the said mosque. The question before the High Court of Andhra Pradesh was that, whether this property was waqf property or the personal Inam. The case of the waqf board was that the property was given to the mosque and as such was a waqf the income of which was used towards the remuneration of the khatib and moazzin for the services rendered by them. The person who were rendering the services have unlawfully alienated the schedule properties to various vendees. It was the case of the waqf board that the vendors had no right of alienation. The case of the vendees was that the properties given to the vendors was in recognition of the services and as much as the scheduled property inam lands were not waqf property. They submitted that they were originally inam lands and after its abolition ryotwari  pattas were issued to them. The trial court came to conclusion that the plaint scheduled propertiues were endowed to the mosque, therefore, they were waqf properties. Since they were given so as to render services to the mosque it would not confer any ownership on the service holder. It could not be alienated. The alienation were, therefore, not valid. On appeal, the High Court of Andhra Pradesh did not agree with the findings of the trial court and held that the scheduled property was not directly dedicated to the mosque. It was granted to the khatib and moazzain for performing services at the mosque. Therefore the scheduled property was not a waqf but personal inam to the service providers.