Wakfs and Family Endowment

This post has been written by Anjali Krishnan, a 2nd year student pursuing B.B.A., LL.B. from JEMTEC School of Law. 

Introduction

Wakf is a pious endowment which is inalienable and perpetual, it is an influential institution that provides the Muslim community with social, economic and educational services. A Wakfs is established by waqif, a living man or woman, who owns the revenue producing property and makes it inalienable in perpetuity. It is inalienable in nature and therefore, once the property is bestowed as Wakf, it cannot be gifted or sold and is deferred from inheritance.

The Sharia-ul-Islam defines Wakf as “A contract, the fruit or effect of which is to tie up the original of a thing and to leave its usufruct free”, this definition elaborates two elements (i) immobilization of corpus of the property and (ii) the benefits from the property is used and  finally, the profit or the income from the property should be used for the benefit of mankind.

Objects of Wakfs 

Any purpose that is considered to be ‘religious, pious or charitable’ is valid object of Wakf. The beneficiaries of the endowment can be made for (i) the rich and the poor (ii) the rich and thereafter to the poor and (iii) the poor alone, however, it cannot be for the purposes prohibited by Islam. Although the beneficiary’s wealth is not considered, poverty is recognized as an important quality of the beneficiary, the relief and benefit to the poor is therefore the ultimate purpose of this institution

Law of Wakf

There are about one lakh wakfs in India, valued more than a hundred crore of rupees and can prove to be a strong instrument of public welfare. It can be categorized as Public wakfs and private wakfs. A public wakf is the one for public, religious and charitable purposes and private wakf is one for the waqif’s own family and descendants, also called waqf-ulal-aulad, this is essentially a family settlement by way of wakf. Earlier, only the property dedicated to god or to religious or charitable duty was held to be valid which soon changed. The family endowment can be easily divided into two parts, pre and post The Wakf Act, 1913.

Essential Conditions of Valid Waqf

1. Permanent dedication: The dedication of waqf property must be intended as of permanent in nature and Waqf himself must devote such property and give it for any purpose recognized by Muslim law, like religious, pious or charitable.
2. Competency of the Waqif:

• soundness of mind and,
• majority

Kind of Waqf

1. Public Wakf
2. Private Wakf

Categories of waqf are enlisted with the purposes as:

• Waqf ahli: The proceeds being entrusted within the waqf are designated for the waqf founder’s children and their offspring. However, these beneficiaries of the waqf even in a contingent circumstance cannot sell or eliminate the property subject-matter of waqf.
• Waqf khayri: the proceeds of waqf are established to charity and philanthropy. samples of beneficiaries include the poor and therefore the needy. Waqf khayri is usually wont to finance mosques, shelters, schools, and universities. this is often meant to assist financially-challenged individuals and communities.
• Waqf al-sabil: a waqf whose beneficiaries are the overall public. it’s very almost like waqf khayri, though waqf al-sabil is typically wont to establish and construct the general public utility (mosques, power plants, water supplies, graveyards, schools, etc).
• Waqf al-awaridh: the yield of waqf is held in reserve in order that it are often used sometimes of emergency or unexpected events that negatively influence the livelihood and well-being of a community of individuals.for instance, waqf could also be assigned to the satisfaction of specific needs like medication for sick people that are unable to pay medication expenses and education of poor children. Waqf al-awaridh can also be wont to finance maintenance of the utilities of a village or neighbourhood.

Categories of waqf from purpose of its output nature:

• Waqf-istithmari: the waqf assets are pre-determined for investment. Such assets are managed to supply income which will be utilized in constructing and reconstructing waqf properties.
• Waqf-mubashar: the waqf assets are wont to generate services to the advantage of some charity recipients or other beneficiaries. samples of such assets include schools, utilities, etc.

Judicial Interpretation

It is observed in M Kazim vs A Asghar Ali that wakf means dedication of some specific property for a pious purpose or secession of pious purposes in favour of mankind.

In Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, the dedication of house by a Muslim to be used of all travellers regardless of religion and standing was held to not be a Wakf on the bottom that under Muslim law a Wakf should have a spiritual motive and it should be just for advantage of Muslim community, and if it’s secular in character, the charity should be to the poor alone.

In Md. Ismail vs Thakur Sabir Ali, SC held that even in wakf alal aulad, the property shall be only devoted to God.

Conclusion

India have a significance presence of institution of wakf. The law of the land are laid with the broadening acknowledgement that these institutions can play a significant role in alleviation of poverty. In Indian Family law, Family endowments are allowed and in my opinion is not a hindrance to eliminate poverty, as the wakf shall be valid only if the ultimate benefit is made for the purpose recognized by the Law. India, though has not expressly stated, it can be understood through the laws and regulation that the state has recognized it to be instrumental to the welfare of the country.

It has also recognized that benefit of mankind is inclusive of benefit to the waqif’s family, In light of this, it can be safely concluded that wakf is an essential instrument to eliminate poverty, though the laws of the country decide the mode in which the institution can be used for the benefit of the mankind. Its role as a socio-development institution, that can positively contribute to alleviate poverty and provide various services such as health, education and public services, should be recognized and accepted by the Government for the benefit of humankind.

The institution has stood the test of time and hence, it can be transformed into an institution that is not merely a religious charitable institution. The secularism in India does not exclude religion from the scope of governance or law making therefore such an institutionalization of the wakf is possible and beneficial for the society at large.