Submitted by Rohini Kamble
'Wakf' in simple terms means 'detention' of a property and whatever income earned out of it shall be available for religious and pious purpose. It is nothing but dedication of property either movable or immovable. This can be done by a person professing Islam. Such a property may include:
1) A 'wakf' by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such seizure.
2) 'Grant 'including mashrut-ul-khidmat for any purpose recognised by the Muslim Law as pious, religious or charitable.
3) Wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim Law as pious, religious or charitable and Wakf means by person making such dedication.
A Wakf Board was constituted by the State of Maharashtra in the year 2002. The Head-Office is at Panchakki at Aurangabad. It consisted of not less than 7 members and not more than 13 members. Some are elected and some are nominated by the majority elected members. Wakf in legal sense is dedication in perpetuity of a specific property for a pious purpose or succession of pious purpose. It is irrevocable and once created, the ownership of Wakif is extinguished. It may be either testamentary or inter vivos. A testamentary Wakf comes to effect on death of the Wakif and it may be made verbally or in writing. A Wakf, under Hanafi law is unilateral declaration whereas under Shia Law it is a bilateral contract. Therefore, under Hanafi Law a Wakf may be created inter vivos by a mere declaration whereas, under Shia Law a mere declaration is not enough. There has to be a delivery of possession. Once the Wakif declares himself to be a Mutawalli, his possession is shifted from an owner to that of Mutawalli In case of an immovable property of Rs. 100 and above, a wakf is created by writing and it is compulsory that thee wakf is registered as per the provisions of Indian Reregistration Act.
III] ESSENTIALS OF WAKF
There are 5 essentials of a wakf according to Hanafi Law:
1) Permanent dedication of property
2) The Wakif must be competent
3) The Wakif must be the owner of the property
4) The object must be religious
5) It must be unconditional
1) PERMANENT DEDICATION OF PROPERTY:
The very first essential being permanent dedication of the property to charitable, religious or pious purposes. The property may be either movable or immovable and the ownership must be extinguished.
2) THE WAKIF MUST BE COMPETENT:
One who dedicates the property of a valid Wakf must be,
a) A person professing Islam.
b) Of sound mind
c) Not a minor If a widow and her sons make a dedication of their inheritance, the wakf is held partially valid.
3) WAKIF MUST BE THE OWNER OF THE PROPERTY:
Property being the subject matter of the wakf must belong to the dedicator at the time of dedication. Even if the property is subjected to lease or a mortgage a valid wakf may be made.
4) OBJECT MUST BE RELIGIOUS:
There must be an object which;
a) must not fail
b) must be expressly set forth
c) must be recognized by Muslim Law as religious, pious or charitable
The Wakf must not be subject to any options. It must be unconditional. # Following are the essentials of a valid wakf under Shia Law:
a) It must be perpetual
b) It must be absolute and unconditional
c) Possession of the property must be given
d) The wakf must not retain any interest in the property
'Mutawalli' is the manager of the Wakf. All the rights of the property are vested in the Almighty as soon as the Wakf is created. The settlor usually appoints the Mutawalli and if not, then by the
iii) the court A minor or a person of unsound mind cannot be a Mutawalli. But in certain cases a minor can be a Mutawalli if the office is hereditary. A woman can also be appointed as a Mutawalli, provided that there is no performance of any spiritual duties or functions.
# RULES OF APPOINTMENT BY COURT:
There are four general rules of appointment of a Mutawalli by court. They are as follows:
a) The court must not disregard the directions of the settlor and consider the interests of the body for whom interest is credited.
b) The preference should be given to the member of the settlor's family if eligible rather than a stranger
c) In a contest between lineal descendent of the settlor and a non-lineal descendent the court can exercise discretion
d) When the office is held jointly the office passes on to the survivors on the death of the holder in the absence of any other direction.
# POWERS AND DUTIES OF THE COURT:
If the court sanctions, only then can a wakf property be alienated. A Mutawalli cannot do so unless the wakf-nama specifically provides. Without the sanction of the court, the Mutawalli cannot:
i) sell, mortgage or exchange wakf property
ii) to grant;
a) for more than 3 years of property is agricultural
b) for more than 1 year of property is non-agricultural A Wakif may provide for remuneration for the Mutawalli which is fixed. Wakf property can neither be attached nor sold in execution of personal decree against the Mutawalli.
#REMOVAL OF MUTAWALLI:
In following cases the court may remove the Mutawalli
a) If he denies the Wakf character of the property and sets up an adverse title to it in himself.
b) If he neglects to repair wakf premises and allows it to fall in disrepair eventhough he has sufficient funds at his disposal.
c) If he knowingly causes damage or loss to the wakf or misdeals with trust property.
d) If he insolvent.
Submitted by Rohini Kamble