Once the dedication of property is made to the wakf, the ownership of the wakf is extinguished, and it is transferred to God. Or, figuratively speaking, “Property is God’s acre”.
Under the Shia law also property of wakf vests in God. In Md. Ismalia v. Thakur Sabif Ali, the question before the Supreme Court was: when the wakf is governed by the Mussalman Wakf Validating Act, 1913 (i.e., when the wakf is a family wakf), then in whom does property vest? The Supreme Court observed that even in a wakf for alal-aulad (family wakf) there is a transfer in favour of God in whom the wakf property vests. The Supreme Court rejected the contention that in a wakf for alal-aulad, the wakf property vests in the mutawalli or the beneficiaries.
In Moather Raza v. Joint Director, Consolidation, Kirty J. rightly observed: “There is nothing in this Act (the Mussalman Wakf Validating Act, 1913) from which it can be spelled out that in the case of a wakf for alal-aulad the wakf property does not vest in God Almighty or the wakf itself but vests in the mutawalli or mutawallis”.
The learned judge further observed: Apparently, there does not exist any rational basis upon which a distinction may be made between a public wakf and a private wakf in regard to the vesting of the wakf property and none has been shown to us.
The creation of a wakf is essentially based on a legal fiction, the fiction being that the property vests in God in perpetuity, but income from the property is permitted to be utilized for certain specified purposes, which under the Muslim law are recognised as pious or religious. His Lordship further observed that the difficulties are bound to arise if it is held that in a wakf for alal aulad, the properties vest in the beneficiaries or the mutawalli.
If such a vesting takes place, then it will legally create a heritable and transferable estate in the hands of the person in whom the title has been vested and once such vesting takes place, there cannot be any divesting of proprietary title, so as to ultimately vest the property in God.
In such a case the permanency of the dedication which is basically the fundamental principle involved in a wakf cannot exist or be ensured, if it is held that the proprietary title does not vest in God but in the beneficiaries or the mutawalli.
In this case the wakif created a wakf of his zamindari property in 1918. The U.P. Zamindari Abolition and Land Reforms Act, 1951, abolished zamindaries and sought to vest the zamindari rights in the cultivators.
Gyanendra Kumar J said that on account of creating of wakf of zamindari land in 1918, God became the Zamindar of the land (since the proprietary rights vests in God.) On abolition of Zamindari, God became an intermediary.
Under S. 18(l)(a) for Zamindari Abolition and Land Reforms Act, 1951, the land should have been the Khudast of the intermediary before bhumidari rights could accrue in his favour. And, his Lordship opined that if the mutawalli was cultivating the land, then it would be deemed to be the cultivation on behalf of God. If that was so, the bhumidari rights could be conferred on God.
Thus, it seems to be clear that in respect of vesting of wakf property in God, there is no distinction between a Shia wakf and a Sunni wakf, or a public wakf or a private wakf.
Wakf must be permanent:
A Muslim wakf must be created for an unlimited period. Wakfs for limited periods are unknown to, and are not recognized by Muslim law. In short, perpetuity is an essential and outstanding feature of a wakf. Even the case of a family wakf (wakf for alal aulad), the ultimate benefit must be “expressly or impliedly reserved for the poor or for any other purpose of a permanent character.”
Thus, a gift of an usufructuary mortgage by the mortgagee or of a house standing on land leased for a fixed term is void, being of temporary nature. Similarly, a wakf will not be permanent if the wakf-nama contains a condition that if the properties are mismanaged, then the property should be divided among the descendants of the wakif.
In what circumstances could a wakf be said to be permanent “impliedly”? The Muslim authorities take divergent views. According to Abu Hanifa and Mohammad, it is necessary that the ultimate benefit for the poor must be stated expressly. On the other hand, Abu Yusuf held the view that it may be given impliedly, and this may be done by the mere use of the word wakf.
Thus, if a person says, “I give the land by way of wakf to Zyed”, the wakf is complete. Zyed will have the usufruct of land for his life, and after his death, the income will go to the poor, even though not expressly mentioned.
Ameer Ali, following the view of Abu Yusuf said that once property is dedicated by way of a wakf, the right of the wakif or the founder automatically stands extinguished forever, and, therefore, where appropriate and technical words are used, the dedication will be implied to be permanent. Thus, where the legal terms such as wakf of mawkufa are used, a wakf will be implied, as a matter of law, and the ultimate benefit will go to the poor, even though not specified.
Ameer Ali’s view was followed by the Madras High Court in Syed Ahmed v. Julaiha Bibi. On the other hand, the High Court of Bombay expressed a preference for the view of Abu Hanifa and Mohammad, and decided accordingly.
This view was confirmed by the Privy Council which held that in the absence of ultimate gift to charity, the deed was not valid as a wakf. The Allahabad and the Calcutta High Courts and the Oudh Chief Court considered the question whether the word “impliedly” used in S. 3, Wakf Act, 1913, gives effect to Abu Yusufs view, and answered the question negatively.
The Privy Council also took this view in Ghulam Md. v. Ghulam Husain. After the coming into force of the Wakf Validating Act, 1913, this is the accepted view in India.
Wakf must be irrevocable:
The irrevocability is another characteristic feature of a wakf. Once constituted validly, a wakf cannot be revoked. If in a wakf-nama a condition is stipulated that the wakif reserves to himself the right of revoking the wakf, or that the wakf will stand revoked on the happening of any event, then such a wakf is void.
In Abdul Sattar v. Noorbai, the wakf-nama contained a condition that at any time the wakf could be revoked by a deed or a will or a codicil by anyone of the two wakifs, the wakf was held void. Beument CJ observed: “It is impossible to contemplate property transferred to Almighty God subject to a condition enforceable in the temporal courts for recovering that property for the benefit of the settler”.
However, a wakif has the right at the time of dedication to reserve to himself the power of altering the beneficiaries either by adding to their number or by excluding some of them. Such a condition does not amount to the revocation of the wakf.
Similarly, the power to amend the wakf may be reserved, but not absolute of changing the subjects of the wakf. The following condition in a wakf deed was also held valid: “If during my life, I so desire, I shall be competent to rescind or alter by a fresh wakf-nama, the provisions as to the appointment of the mutawalli other rules and procedure”.
The position of testamentary wakf is different. A testamentary wakf may be revoked by the settler at any time before his death. It is because a testamentary wakf is nothing more than a bequest and, therefore, it can be revoked like any other bequest.
A testamentary wakf comes into existence only after the death of the wakif. For the same reason, a testamentary wakf is not invalid on the ground that the deed contains a clause under which it is stipulated that the wakf will not come into existence if the wakif is blessed with a child.
Wakf properties are inalienable:
It is a concomitant to the doctrine of permanency of wakfs that once the properties are dedicated to God, they cannot be alienated. However, this rule is not absolute, and in certain circumstances, it is permissible that a mutawalli may alienate the wakf properties; a mutawalli may sell or grant a lease of the wakf properties, with the prior permission of the court.
When a wakf-nama allows a mutawalli to sell wakf properties in certain circumstances, then the mutawalli has the power to alienate wakf properties in those circumstances. This aspect of the matter has been discussed under the head, “Mutawalli’s power of alienation”.
Muslim law recognizes not merely public wakfs but also family wakfs or private wakfs. Under Muslim law a wakf may also come into existence by immemorial usage. Besides these, Muslim law recognizes certain special religious institutions for which wakfs also be made.