WHAT IS THE LAW OF WAKF ?

source: thehansindia

The law of wakf, is the most important branch of Mohammedan Law for it is interwoven with the entire religious life and social economy of Muslims. Omar had acquired a piece of land in caution of Khaiber and proceeded to the Prophet and sought his counsel to make the most pious use of it, (whereupon) the  Prophet declared,"tie up the property  (Asl-corpus) and devote the usufruct to human beings; and it is not to be sold or made the subject of gift  or inheritance, devote its produce to your children, your kindred, and the poor in the way of God. In  accordance with this rule Omar dedicated the property in inquisition and the wakf continued in existence for several centuries, until the land became waste. ( Amaeer Ali) 

Thus Wakf under the Mohammedan Law owes its origin to a rule laid down by the Prophet of Islam : and means" the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. As the result of the creation of a wakf the right of waqif(settler) in the property is extinguised and the ownership is transferred  to the Almighty. The manager of the wakf is the Mutawalli, the Governor, Superintendent or Curator. But in that capacity he has no right in the property belonging to the wakf ; the property is not vested in him and he is not a trustee in the legal sense. Wakfs did not exist in the pre-Islamic Arabia. The origin of the institution of wakfs is traced to an utterance of the Prophet. It is said that one Omer Ibn-al-Khattab, on getting a piece of land in the canton of Khyber went to the Prophet and enquired from the Prophet by saying:

"O Messenger of Allah! have got land in Khyber that which I have obtained more valuable property; what does thou advise me?"

The Prophet, Whereupon, is said to have spoken:

" If thou likest make the property itself inalienable and give the profits from it to the Charity...tie up the corpus (asl or corpus) and devote the unsufruct to human being and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children. Your kindred and the poor in the way of God. "

Omar, in accordance with the direction of the Prophet,laid down that the property would not be sold, or given away in gift, or inherited but he directed that out of the income of the property , Charity should be given to the needy and the relatives; slaver should be set free; provision should be made for travelers; and guests should be entertained. Fyzees's statement that "it is tolerably certain that prior to Islam there were no wakfs in Arabia does not seem to be correct, because old Testament, which is copy of Torah of Moses, contains-

"(14) And when a man shall sanctify his house to be holy unto the Lord, then priest shall estimate it, whether it be good or bad: as the priest shall estimate it, so shall it stand."

"(16) And if a man shall sanctify unto the Lord some part of a field of his possession, then their estimation shall be according to the seed thereof: an homer of barley seed shall be valued at fifty shekels of silver."  Old Testament-Leviticus- Chapter 27  lines 14 and 16. 

In all countries where Muslim Law is applicable law of wakfs is given much importance. In India Shariat Act ( Dection 2) gives legal sancitity to wakfs. This is so because of commands of Quran and traditions of Prophet had encouraged Muslims to make wakfs. Though it was not compulsory for every Muslim to make wakfs of their properties but traditions of Prophet encouraged Muslims the world over to make wakfs for different purposes. He said, " there is one Dinar which you have bestowed in the road of God, and another in freeing a slav and another in alms to the poor, and another given to your family and children that is the greatest Dinar in point of reward which you gave to your family. " As in the sequence of giving alms lto needy, ones family has been ordered to be put in top place.

The rule applicable to wakfs are exempted from scope of the Indian Trusts Act of 1882. However, wakf is a trust for purpose of section 92 of Civil Procedure Code. The Charitable and religious Trust Act applies to trusts of Muslims. The wakf becomes a divine property whether it is for mosque or graveyard. The doctrine of wakf is inter woven with the entire religious life and social economy of Mohammedans. 

According to Abu Yusuf and Imam Mohammed the wakf is an appropriation in such a manner as a subject to rules of divine property whence the appropriator's right is extinguised and it becomes property of God by the advantage of its resulting to his creature. The purpose for which a wakf can be created must be one which is recognised by Muslim Law as pious, religious, or charitable, and the objects of public utility which may constitute beneficiaries under the  wakf must be objects for the benefit of the Muslim community. The wakfs eith which the Act deals are trusts which are treated as wakfs under the definition of Section 3(1)  and as such, a trust which does not satisfy the tests prescribed by the said defiinition would be outside the Act.

It is to be remembered that a trust in the sense in which the expression is used in 'English Law' is unknown to the Hindu system, pure and simple. Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind and for all purposes considered meritorious in the Hindu social and religious system to Brahimins, Goswamis, Sanyasis, etc., When the gift is directly to an idol or a temple the seisin to complete the gift is necessarily effected by human agency. Called by whatever name he is only the manager or custodian of the idol or the institution.. In no case is the property conveyed to or vested in him, nor is he a trustee in the English sense of the term although in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for mal-administration. 

The Mohammedan law owes it origin to a rule laid down by the Prophet of Islam and emans the tying up a property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. As a result of the creation of a wakf, the right of wakif is extinguised and the ownership is transferred to the Almighty. The manager of the wakf is the mutawali, the governor, superintendent, or curator. But in that capacity he has no right in the property belonging to the wakf, the property is not vested in him and he is not as trustee in the legal sense. 

Therefore, there is no doubt that the wakf to which the Act applies is in essential features, different from the trust as is known to English Law. The Mussalman wakfs Act applies to wakfs other than those under the wakf Act of 1913. A Muslim wakf must be distinguished from and English trust or a Hindu endowment to Dharma. The fundamental rights guaranteed under the constitution of India pertaining to a religion cannot be waived.  The fundamental rights guaranteed under the Constitution of India pertaining to a religion cannot be waived.