Waqf in Muslim Law

The concept of waqf in Muslim law serves as a key mechanism for the permanent dedication of property for religious, charitable or pious purposes. The term waqf originates from the Arabic word “Habs,” meaning “to stop” or “to hold,” and it denotes the act of withholding property from any ownership transfer while dedicating its benefits to the community. 

Rooted in Islamic principles, waqf has evolved to become a vital institution that supports social justice, economic development and religious obligations within Muslim communities.

Origins and Development of Waqf in Muslim Law

The concept of waqf is deeply embedded in Islamic tradition, with its origins traceable to the early days of Islam. Although there is no direct mention of waqf in the Quran, various Quranic injunctions related to charity form the basis for the development of this institution. The Prophet Muhammad’s teachings and practices further reinforced the importance of waqf as a means of achieving social welfare and religious merit.

Historically, waqf emerged as a response to the need for sustainable charitable practices. In the absence of formal state-sponsored welfare systems, waqf served as a tool for redistributing wealth, supporting religious institutions and providing for the needy. Over time, the institution of waqf expanded, encompassing various forms of property, including land, buildings and movable assets.

Meaning of Waqf in Muslim Law

Under Muslim law, waqf is defined as the permanent dedication of property by a person professing the Islamic faith for purposes recognised as religious, pious or charitable. This dedication results in the extinction of the owner’s rights over the property, with the ownership being transferred to God. The property is then managed by a mutawalli (manager or trustee), who ensures that the benefits of the waqf are distributed according to the donor’s intentions.

Definition of Waqf under Hanafi Law

According to the Hanafi school of thought, which is one of the four major Sunni schools of Islamic jurisprudence, waqf is defined as the extinction of the proprietor’s ownership in the thing dedicated and its detention in the implied ownership of God, in such a manner that the profits may revert to and be applied for the benefit of mankind.

Definition under the Mussalman Waqf Validating Act, 1913

The Mussalman Waqf Validating Act of 1913 provides a legal definition of waqf as “the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by Mussalman Law as religious, pious or charitable.”

Definition under the Waqf Act, 1954

The Waqf Act of 1954 further elaborates on the concept, defining waqf as “the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by Muslim Law as religious, pious or charitable.” This Act also outlines the legal requirements for the creation and management of waqf properties, including the appointment of mutawallis and the powers of the Waqf Board.

Essentials of a Valid Waqf in Muslim Law

For a waqf to be considered valid under Muslim law, certain essential conditions must be met:

Permanent Dedication of Property

The most crucial element of a valid waqf is the permanent dedication of property. The dedication must be absolute and irrevocable, meaning that once the property is designated as waqf, it cannot be transferred, sold or inherited. The property is essentially “frozen” for the purpose for which it was dedicated and its benefits must be used exclusively for that purpose.

Capacity of the Waqif (Donor)

The person creating the waqf (known as the waqif) must have the legal capacity to do so. This includes being of sound mind, having reached the age of majority and being a Muslim. The waqif must also have the legal right to dispose of the property in question. In certain cases, non-Muslims may create a waqf as long as the purpose of the waqf aligns with Islamic principles.

Religious, Pious or Charitable Purpose

The purpose of the waqf must be recognised under Muslim law as religious, pious or charitable. This includes, but is not limited to, the construction and maintenance of mosques, educational institutions, orphanages, hospitals and other facilities that benefit the community. The purpose of the waqf must be clear and specific and it must align with the teachings of Islam.

Delivery of Possession

In the case of a waqf involving movable property, the delivery of possession to the beneficiaries or the mutawalli is necessary for the waqf to be considered complete. For immovable property, a declaration of waqf and the intention to dedicate the property are sufficient.

Types of Waqf in Muslim Law

Waqf can be classified into various types based on the purpose for which it is created and the nature of the beneficiaries. The following are the primary types of waqf recognised under Muslim law:

Public Waqf

A public waqf is created for the benefit of the general public and is typically established for religious or charitable purposes. Examples of public waqfs include mosques, schools, hospitals and other institutions that serve the community at large. The beneficiaries of a public waqf are not limited to any specific group and the benefits are intended to reach as many people as possible.

Private Waqf (Waqf-ulal-Aulad)

A private waqf, also known as waqf-ulal-aulad, is created for the benefit of the waqif’s own family and descendants. While the initial beneficiaries of a private waqf may be the waqif’s family members, the ultimate benefit must eventually go to a charitable or religious purpose. This type of waqf is often used as a form of family settlement, ensuring the welfare of the waqif’s descendants while also fulfilling religious obligations.

Waqf Ahli

Waqf Ahli is a type of private waqf specifically created to cater to the needs of the waqif’s children and descendants. The beneficiaries of a waqf ahli are typically the waqif’s family members and the property cannot be sold or transferred. The income generated from the waqf is used to support the family and any remaining funds may be directed toward charitable purposes.

Waqf Khayri

Waqf Khayri is established for purely charitable and philanthropic purposes. The beneficiaries of a waqf khayri may include individuals from economically disadvantaged sections of society. This type of waqf is often used to fund the construction of mosques, schools, shelter homes and other facilities that provide essential services to the community.

Waqf al-Sabil

Waqf al-Sabil is a type of waqf established for the benefit of the general public, particularly for the construction and maintenance of public utilities such as water supplies, power plants and roads. While similar to waqf khayri, waqf al-sabil specifically focuses on public infrastructure and services that benefit society as a whole.

Waqf al-Awaridh

In waqf al-awaridh, the income generated from the waqf is reserved for emergency situations or unexpected events that may affect the community. This type of waqf serves as a financial safety net, providing funds for medical treatment, disaster relief and other urgent needs. Waqf al-awaridh may also be used to maintain and repair public utilities and infrastructure.

Modes of Creation of Waqf in Muslim Law

The process of creating a waqf involves several steps, each of which must be carefully followed to ensure the validity of the waqf. The following sections outline the key elements involved in the creation of a waqf:

Waqf can be created through various modes, depending on the nature of the property and the intention of the waqif. The primary modes of creating waqf include:

Inter Vivos (During the Lifetime of the Waqif)

A waqf created during the lifetime of the waqif is known as inter vivos. This type of waqf takes effect immediately upon the waqif’s declaration of dedication. The waqif must have the legal capacity to transfer ownership of the property and the dedication must be made with the intention of creating a permanent waqf.

Testamentary Waqf (By Will)

A testamentary waqf is created through a will and takes effect after the death of the waqif. This type of waqf is also known as a waqf by will. It is important to note that a testamentary waqf cannot operate upon more than one-third of the waqif’s net assets without the consent of the heirs.

Waqf During Marz-ul-Maut (Deathbed Illness)

A waqf created during the waqif’s deathbed illness, known as marz-ul-maut, is similar to a testamentary waqf in that it takes effect after the waqif’s death. However, the waqif may only dedicate up to one-third of their property without the consent of their heirs.

Waqf by Immemorial Use

A waqf may also be created through immemorial use, where property is dedicated to a religious or charitable purpose over an extended period. In such cases, the property becomes waqf by virtue of its long-standing use for religious or charitable purposes, even without a formal declaration by the waqif.

Essentials for Creation Waqf in Muslim Law

To create a valid waqf, the waqif must fulfil several essential requirements, including:

Intention (Niyyah)

The waqif must have a clear and specific intention to create a waqf. This intention, known as niyyah, is a crucial element in the creation of a valid waqf. The waqif must demonstrate a genuine desire to dedicate the property for a religious, pious or charitable purpose.

Declaration of Waqf

The waqif must make a formal declaration of waqf, indicating their intention to dedicate the property. This declaration may be made orally or in writing, depending on the circumstances. In the case of an oral declaration, the words used must clearly express the waqif’s intention to create a waqf.

Delivery of Possession

For a waqf involving movable property, the waqif must deliver possession of the property to the beneficiaries or the mutawalli. In the case of immovable property, a formal declaration and intention to create a waqf are sufficient and physical possession is not required.

Purpose of Waqf

The purpose of the waqf must be religious, pious or charitable, as recognised under Muslim law. The waqif must specify the purpose of the waqf in the declaration, ensuring that the benefits of the waqf are directed toward the intended purpose.

The Role of Mutawalli

The mutawalli is the manager or trustee of the waqf property, responsible for overseeing its administration and ensuring that the benefits are distributed according to the waqif’s intentions. The mutawalli plays a crucial role in the functioning of the waqf and their duties and responsibilities are governed by both Islamic law and statutory regulations.

Appointment of Mutawalli

The mutawalli may be appointed by the waqif at the time of creating the waqf or they may be appointed by a court or other authority if the waqif does not specify a mutawalli. The following individuals or entities may appoint a mutawalli:

• The Waqif: The waqif has the primary right to appoint a mutawalli at the time of creating the waqf.
• The Executor of the Waqif: If the waqif dies without appointing a mutawalli, their executor may appoint one.
• The Court: If no mutawalli is appointed by the waqif or their executor, the court may appoint a mutawalli, following certain guidelines.

Powers and Duties of Mutawalli

The mutawalli has several important duties and powers, including:

• Management of Waqf Property: The mutawalli is responsible for managing the waqf property, ensuring that it is used in accordance with the waqif’s intentions.
• Maintenance and Repairs: The mutawalli must maintain and repair the waqf property to ensure its continued use for the intended purpose.
• Distribution of Benefits: The mutawalli is responsible for distributing the benefits of the waqf to the designated beneficiaries, in accordance with the waqif’s instructions.
• Legal Actions: The mutawalli has the authority to file legal actions to protect the interests of the waqf and its beneficiaries.
• Financial Management: The mutawalli must manage the finances of the waqf, including collecting rents and other income, paying expenses and ensuring that the funds are used for the intended purpose.

Removal of Mutawalli

The mutawalli may be removed from their position under certain circumstances, including:

• By the Court: The court may remove a mutawalli if they are found to be mismanaging the waqf property, committing a breach of trust or engaging in other misconduct.
• By the Waqf Board: The Waqf Board may remove a mutawalli under the conditions specified in the Waqf Act, 1995.
• By the Waqif: In some cases, the waqif may have the right to remove the mutawalli if such a right is reserved in the waqf deed.

Legal Distinctions between Waqf and Similar Concepts

While waqf shares some similarities with other legal concepts, such as Sadqah, Hiba and trusts, there are key differences that distinguish waqf from these institutions. The following sections provide a comparison of waqf with these related concepts:

Waqf vs. Sadqah

• Ownership: In Sadqah, the legal estate is transferred to the charity, whereas in waqf, the ownership is transferred to God, with the property being managed by the mutawalli.
• Transferability: In Sadqah, the property can be sold or transferred by the charity, while in waqf, the property is inalienable and cannot be sold or transferred.
• Purpose: Both waqf and Sadqah are created for charitable purposes, but waqf has a religious and perpetual nature, while Sadqah is a form of voluntary charity that may not necessarily have a religious motive.

Waqf vs. Hiba

• Ownership: In Hiba, ownership of the property is transferred from one person to another, whereas in waqf, ownership is transferred to God and the mutawalli manages the property.
• Possession: Hiba requires the delivery of possession for the transfer to be complete, while waqf does not require physical possession for immovable property.
• Purpose: Hiba can be made for any lawful purpose, while waqf must be created for a religious, pious or charitable purpose.

Waqf vs. Trust

• Religious Motive: A trust does not require a religious motive, whereas waqf is inherently tied to religious and charitable purposes.
• Ownership: In a trust, the trustee holds legal ownership of the property, while in waqf, ownership is vested in God, with the mutawalli acting as a manager.
• Perpetuity: Trusts may not necessarily be perpetual, while waqf is intended to be perpetual, irrevocable and inalienable.

Doctrine of Cypress

The doctrine of cypress is a principle of English trust law that is also applicable to waqf. The term “cypress” means “as nearly as possible,” and the doctrine is used to ensure that a trust or waqf is carried out according to the settlor’s or waqif’s intentions, even if the original purpose cannot be fulfilled.

In the context of waqf, the doctrine of cypress allows for the continuation of a waqf if the original purpose has been completed, is no longer feasible or if there are legal or practical difficulties in carrying out the original purpose. The income from the waqf property is redirected to a similar purpose that closely aligns with the waqif’s original intentions.

 Legal Incidents of Waqf in Muslim Law

Waqf has several legal incidents that distinguish it from other forms of property dedication. These incidents include:

• Irrevocability: Once a waqf is created, it is irrevocable, meaning that the waqif cannot reclaim the property or revoke the dedication. The property is permanently dedicated to the intended purpose and any attempt to reverse the waqf is considered void.
• Perpetuity: A waqf is intended to be perpetual, meaning that it continues indefinitely, even after the death of the waqif. The property remains dedicated to the religious, pious or charitable purpose for which it was created and the benefits continue to be distributed according to the waqif’s intentions.
• Inalienability: The property dedicated as waqf is inalienable, meaning that it cannot be sold, transferred or inherited. The mutawalli is responsible for managing the property, but they do not have the authority to dispose of it without the permission of the court or the Waqf Board.
• Pious or Charitable Use of Usufruct: The income or usufruct generated from the waqf property must be used exclusively for the religious, pious or charitable purpose for which the waqf was created. The mutawalli must ensure that the benefits are distributed to the designated beneficiaries and that the property is maintained for the intended purpose.
• Absoluteness: A waqf is absolute, meaning that once the property is dedicated, the waqif relinquishes all rights and control over it. The property is transferred to God and the mutawalli is responsible for managing it according to the waqif’s instructions.

Contemporary Challenges and Reforms Related to Waqf in Muslim Law

The institution of waqf faces several challenges in the modern era, including issues related to the management and protection of waqf properties, legal disputes and the need for reforms to ensure the effective functioning of waqf institutions. Some of the key challenges and potential reforms include:

Management and Mismanagement

One of the primary challenges facing waqf institutions is the effective management of waqf properties. In many cases, mutawallis lack the necessary skills and resources to manage large and complex waqf estates, leading to mismanagement, neglect and loss of revenue. 

To address this issue, there is a need for professional training and capacity-building programs for mutawallis, as well as increased oversight by the Waqf Board and other relevant authorities.

Legal Disputes and Litigation

Legal disputes over waqf properties are common, often involving questions of ownership, management and the validity of waqf declarations. These disputes can lead to lengthy and costly litigation, which can drain the resources of waqf institutions and undermine their ability to fulfill their charitable purposes. 

To reduce the incidence of disputes, there is a need for clearer legal definitions and guidelines, as well as alternative dispute resolution mechanisms that can resolve conflicts more efficiently.

Reforms to Waqf Legislation

In many countries, waqf legislation is outdated and does not adequately address the challenges facing waqf institutions in the modern era. There is a need for comprehensive reforms to waqf laws, including the introduction of new regulations that address issues such as transparency, accountability and the protection of waqf properties. 

Reforms should also focus on enhancing the role of the Waqf Board and other regulatory bodies in overseeing waqf institutions and ensuring that they operate in the best interests of the community.

Modern Uses of Waqf

In addition to traditional forms of waqf in Muslim Law, there is growing interest in exploring new and innovative uses of waqf properties in areas such as education, healthcare and social services. Modern waqf institutions can play a critical role in addressing contemporary social and economic challenges, such as poverty, inequality and access to education and healthcare. 

To support these efforts, there is a need for greater collaboration between waqf institutions, government agencies and non-governmental organisations, as well as increased investment in waqf projects that have the potential to generate significant social and economic benefits.

Conclusion

The concept of waqf is a cornerstone of Islamic law, providing a framework for the permanent dedication of property for religious, pious or charitable purposes. Over the centuries, waqf has played a vital role in promoting social justice, economic development and religious obligations within Muslim communities.

Despite the challenges facing waqf institutions in the modern era, the enduring principles of waqf continue to offer valuable insights into the importance of charitable giving and the ethical management of resources. By addressing the contemporary challenges and implementing necessary reforms, waqf can continue to serve as a powerful tool for achieving social and economic justice, fostering community development and fulfilling the religious and moral obligations of Muslims around the world.