SUBMITTED BY: MAHAM AMIR (01-177132-024)

SUBMITTED TO: ADNAN ARIF

CLASS: LLB 6

TOPIC: ADMINSTRATION OF PROPERTY THROUGH WAQF

ABSTRACT: This assignment will look into the concepts of waqf starting from the basic
definition to the essentials of it. I have tried my best to incorporate all the possible aspects of the
area in my assignment.
 ADMINISTRATION OF PROPERTY THROUGH WAQF

DEFINITION:

The literal meaning of waqf is to stop, contain, or to preserve. In legal terms it means ‘to protect
a thing, to prevent it from becoming the property of a third person.’1

A waqf is an unconditional and permanent dedication of property with implied detention in the
ownership of God in such a manner, that the property of the owner may be extinguished and its
profits may revert to or be applied for the benefit of mankind except for purposes prohibited by
Islam.

In shariah a waqf is a voluntary, permanent, irrevocable dedication of a portion of one’s wealth

in cash or kind to Allah. Once a property is transferred through waqf, it never gets gifted,
inherited, or sold. It belongs to Allah and the corpus of the waqf always remains intact.

For the purpose of the Musalman waqf validating act of 1913, a waqf means:

"a permanent dedication by a person professing the Musalman faith of any property for any
purpose recognized by the Muslim Law as religious, pious or Charitable."2

Imam Abu Hanifa defined it as:

‘Waqf is the detention of a specific thing in the ownership of the waqf or appropriator, and the
devoting or appropriator’s of its profits or usufruct in charity on the poor or other good objects.’

ORIGINS OF WAQF

“Ibn ‘Umar reported: “Umar acquired land in Khaibar. He came to Allah’s Apostle (saw) and
sought his advice in regard to it. He said: “Allah’s Messenger, I have acquired land in
Khaibar. I have never acquired more valuable for me than this, so what do you command I do
with it? Thereupon the Prophet (saw) said: If you like, you may keep the corpus intact and give
its produce as Sadaqah. So Umar gave it as Sadaqah declaring that the property must not be sold
or inherited or given away as gift. And ‘Umar devoted it to the poor, to the nearest of kin, to the
emancipation of slaves, to wayfarers/guests, and in the way of ALLAH.3

The essential conditions for a valid waqf are given below:

1
Sarakhsi,mabsut, XII, P.27
2
Musalman waqf validating act of 1913
3
Sahih Muslim.
  There must be a permanent dedication.
 The founder of the waqf must be a competent person.
 The subject-matter must be a transferable property.
 The object of the waqf must be religious, pious or charitable, under Muslim law.
 The formalities required to constitute the waqf must be duly completed.

(1) Permanent Dedication:

Waqf is a transfer of ownership without any consideration made generally with religious
motives. This gratuitous transfer is made in such a manner that after constitution of the waqf, the
substance or corpus of the property must be detained. In order to detain the property, it is
dedicated to God. When a waqf is constituted, it is presumed that a gift of some property has
been made in favor of God.

As the ownership of the property is vested in God, the corpus is detained for ever and usufruct is
utilized continuously for its objects. By transferring the ownership to God, the dedication
becomes permanent. Under Muslim law, perpetuity is an essential condition for every waqf.

This is ensured through a legal fiction that waqf property becomes the property of God. Waqf for
limited duration say, for ten years or eight years, is void. The theory of vesting the property in
God has been accepted also under the Shia law.

Although the definition of waqf under the Act does not require that there should be an express
dedication to God, but, it is implied that dedication becomes permanent only by vesting the
property in God. In the case of Muhammad. Ismail v. Thakur Sabir Ali the Supreme Court
observed that the expression, “permanent dedication” in the definition of waqf under Sec. 2(1) of
the Musalman Waqf Validating Act, 1913, signifies that the waqf property is vested in God.

The court further observed that even in the Family Waqf, (Waqf-al-al-Aulad), the property
remains in the implied ownership of God. Thus, for constituting a lawful waqf, it is necessary
that there should be a permanent settlement of a property for some religious or charitable
purpose.

‘Permanent dedication’ or, the concept of vesting of the waqf-property in God has following
legal effects:
(a) Non-Transferability:
After completion of the Waqf the waqf-property becomes non-transferable i.e., it is ‘tied up’
forever.

(b) Irrevocability:
By permanent dedication the waqf becomes irrevocable. Once a waqf has lawfully been
constituted, it cannot be revoked. In the creation of waqf it is implied that since the ownership of
the property is presumed to vest immediately in God, the settlement is irrevocable. The waqif as
a human being cannot subsequently revoke it because this would amount to taking back from
God whatever is given to Him.

Any provision in the waqf that founder may revoke it whenever he likes, would be un-Islamic
and also inconsistent with the very concept of waqf. Therefore, it is presumed that once a waqf
always a waqf. Where a settler reserves to himself the power of revocation, the waqf is void
abinitio.

A testamentary waqf is revocable. It may be revoked by the settler any time before his death. The
reason is simple. A testamentary waqf is like a will and therefore, it comes into existence (i.e.
begins to operate) only after the death of the waqif.

(c) Absolute and Unconditional:

Another important feature of ‘permanent dedication’ is that the dedication is absolute and
unconditional. There cannot be any waqf subject to any condition or contingency. A conditional
or contingent waqf is void. Dedication cannot be permanent if its existence depends on some
condition. Thus, where the waqf deed provided a condition that in the case of any
mismanagement, the property would be divided among the descendants of the waqif it was held
that the waqf was void. The constitution of waqf must be absolute.

In Muhammad Arif v. State of Gujarat, the Supreme Court has confirmed the law that where the
creation of Waqf is dependent on any future event, the waqf is void ab initio.

However, it must be remembered that where the waqf is to operate and come into existence upon
the death of the waqif himself, the waqf is valid because it would be treated as a testamentary
waqf.
(2) Competency of the Waqif: Who Can Create a Waqf?
The person who constitutes the waqf of his properties is called the ‘founder of waqf or, Waqif.
The waqif must be a competent person at the time of dedicating the property in waqf. For being a
competent waqif a person must possess the capacity, as well as the right to constitute the waqf.

(a) Capacity to Constitute Waqf:

Every Muslim, who is of sound mind and has attained the age of majority, has capacity to
constitute a waqf. A person of unsound mind has no capacity to create any waqf because he or
she is incapable of knowing the legal consequences of the transaction.

Waqf constituted by minors are void ab initio and cannot be validated by any subsequent
ratification. The guardian of a minor cannot make any waqf on behalf of the minor. Waqf
constituted by guardians on behalf of minors are void ab initio.

Waqf by Non-Muslims:
Waqf is an institution of Muslim personal law; therefore, the dedicator is generally a Muslim.
But a non-Muslim can also constitute a valid waqf. According to the Waqf Act, 1954, and the
Waqf Validating Act, 1913 the waqif must be a person professing Islam. The dedicator must
profess Islam i.e., believes in the principles of Islam’, he need not be a Muslim by religion.
Ameer Ali observes:

“Islam is not a necessary condition for the constitution of a waqf. Any person of whatever creed
may create a waqf but the law requires that the object for which the dedication is made should be
lawful according to the creed of the dedicator as well as the Islamic doctrines.”

Accordingly, the Madras,Patna and Nagpur High Courts have held that a non-Muslim can also
create a valid waqf provided the object of waqf is not against the principles of Islam. However,
according to Patna High Court a non-Muslim waqf may constitute only a public waqf; a non-
Muslim cannot create any private waqf (e.g. an Imambarga).

(b) Right to Make Waqf:

Capacity alone is not sufficient. The waqif must also possess the right to make the waqf. When a
waqf is constituted there is a permanent transfer of ownership of the property. Therefore, he must
be owner of the property dedicated. If the subject- matter of a waqf is not owned by the settler at
the time when the waqf is made, the settler has no right to make waqf. A person having the
capacity but no right cannot constitute a valid waqf.

A lessee or a tenant has no right to make any waqf of the property under his possession because,
he has no ownership. Similarly, a usufructuary mortgagee has no right to constitute any waqf of
the property in his possession because he has no dominion over that property.

In brief, the dedicator must have the title or absolute interest in the subject-matter at the time of
making of waqf. A widow cannot constitute any waqf of the property which she holds in lieu of
her unpaid dower because she is not an absolute owner of that property.

Waqf by Pardanashin Lady:

A Pardanashin lady is that lady who generally lives in seclusion (pardah) and does not move in
public. A pardanashin lady may be a competent waqif. Such a lady has right to make waqf of her
properties provided she possesses the required capacity and right.

But where the waqif is, a pardanashin lady, the beneficiaries and the mutawalli have to prove that
she had exercised her independent mind in constituting the waqf and had fully understood the
nature of the transaction.

Consent of Waqf Must is Free:

The waqif must apply his independent mind in dedicating the property. That is to say, the waqf
must have been made with free consent of its founder. Where it is proved that waqf was
constituted under compulsion, undue influence, coercion, force etc., the waqf is void.

Amount of Property Dedicated:

A dedicator has right to constitute a waqf of his entire properties without leaving anything for his
heirs. But, in the case of a ‘testamentary- waqf, the founder has no right to constitute a waqf of
more than one third of his properties.

(3) Subject-Matter of Waqf: The Property:

Any property, whether movable or immovable, tangible or intangible, may be the subject-matter
of a waqf. But, the earlier Muslim jurists had given conflicting opinions regarding the nature of
the waqf property.
According to Abu Hanifa, only immovable property could be dedicated in waqf. On the other
hand, the Shafi and the Shia jurists held that lands and everything lawfully saleable such as
horse, arms etc. may be a valid property for a waqf.

But, after some time, almost all the Muslim jurists agreed that besides lands, following properties
were also the subject of a waqf: (i) cattles (ii) implements of husbandry (iii) Quran for public
reading in the mosques and, (iv) other movable articles not necessarily consumed in the using.
War-horse, camels and even a sword was regarded as subject-matter of waqf.

Accordingly, it has been held that a valid waqf may be constituted of the following properties:

 Government promissory note.

 Money in cash.

 Offerings in a shrine or dargah.

 Proprietary rights held as a grove holder.

 Shares in a company, and

 Government securities.

What cannot be Subject-matter of Waqf?

The following kinds of property cannot be subject-matter of a waqf:—

(i) A dower-debt.

(ii) Right to recover money from debtor under a simple money decree.

(iii) Rights of a usufructuary mortagagee.

Unpaid dower is like a debt in which husband is like a debtor and wife is like a creditor. Right to
claim dower from husband is wife’s ‘beneficial interest’ and as such, it is her ‘property’. But,
until it is realised by the wife, the dower-debt is regarded as future- property.
Right to recover money under a simple money-decree is also a future proper which does not exist
at the time of constitution of waqf. Therefore, right to realize money (from debtor) under a
simple money-decree is not a subject-matter of waqf.

Similarly, right of usufructuary-mortgagee to recover his debt being a future- property is not a
subject-matter of waqf.

Waqf of Mushaa:
The Sunni doctrine of mushaa is not applicable to waqf. A mushaa property may be a lawful
subject-matter of Waqf. A Muslim may constitute a waqf of his undivided share in the property
without separating it from the rest.

The waqf of mushaa is valid even if the property is divisible. This rule is based on the opinion of
Abu Yusuf and is generally enforced by the courts in India. Thus, when a co-owner constitutes
any waqf of undivided part of his share in a joint property, he need not separate it from the rest
of the property even though its separation is possible. However this general rule is subject to
following exceptions:

Exceptions:
A waqf of the mushaa property is not valid in the following cases:

(1) Waqf for construction of Mosque:

Where an undivided share is dedicated in waqf for the construction of a mosque, the waqf is not
valid if the undivided share had not been separated from the rest of the joint property. In
Gayasuddin v. Allahtala Waqf Mausuma, a Muslim died leaving his widow, two sons and three
daughters.

The widow constituted a waqf of her undivided share (Mushaa) in the property for Mosque. The
Allahabad High Court held since a waqf for Mosque cannot be constituted from undivided
(Mushaa) property therefore, the waqf is not valid.

(2) Waqf for Graveyard:

Where the waqf is constituted for a graveyard for the general public, the waqf is not valid unless
the undivided share has been partitioned.
(3) Waqf of Leasehold Property:
Where the, mushaa is a share in any leasehold property the waqf is not valid without partition. In
other words, where one of the co-owners of a property, which is leased to someone, makes a
waqf of his share in that joint property, the waqf is not valid unless the waqif has separated his
share.

It may be concluded that waqf of undivided share of a joint property is valid except where the
waqf is for (i) mosque (ii) for a grave-yard, or (iii) where the joint property is a leasehold
property.

(4) The Object of Waqf:

The purpose for which a waqf is constituted is called its object. The object of a waqf must be
religious, pious or charitable. Under Muslim law, a waqf is constituted for getting spiritual or
religious benefits. Therefore, a waqf may be created for any object which is recognized in Islam
as religious, pious or, charitable.

The object of a waqf must not be un-Islamic. If the object of any waqf is un-Islamic, the waqf is
void. Section 2(1) of the Waqf Validating Act, 1913, provides that a waqf may be constituted
“for any purpose recognized by the Musalman law as religious, pious or charitable.” The Act
does not lie down as to what objects are regarded as religious, pious or charitable under Muslim
law.

This is to be decided by the courts on the basis of the principles of Islam. There is no exhaustive
list of the objects of which a waqf is permissible under Muslim law. The reason is that the word
‘religious’ does not signify only those purposes which are laid down in the religious books of
Islam. It includes also the way of life.

Similarly, the words ‘pious’ and ‘charitable’ too have wide meanings under Muslim law and
include every purpose which may be recognized as ‘good’ in Islam. According to Ameer Ali, the
test of what is pious or charitable is the approval of the Almighty.

Every ‘good purpose’ (wajah-ul-khair) which God approves or, by which approach is attained to
Deity (God), is a fitting purpose (i.e. pious and charitable object) for a lawful dedication. It may
be stated, therefore, that any object which is intended for the benefit of the human beings, may
be a valid object of a waqf. However, it must be noted that those purposes which are against the
principles of Islam, are not regarded as beneficial to mankind and a waqf cannot be created for
such purposes.

For example, construction of a mosque, hospital, school etc. is regarded in Islam as beneficial to
mankind therefore; a waqf may be validly constituted for these purposes. It Is significant to note
that under Muslim law, making provisions for the maintenance of one’s own children and
descendants is also regarded as a pious work. Therefore, provision for the maintenance of
exclusively the family members of the dedicator, is a lawful object. Such waqf is called a family-
waqf, or waqf-al-aulad.

Secondly, according to Muslim jurists, benefit of the poor is the most approved form of charity.
Therefore, in the absence of any purpose or upon the extinction of an object laid down in a waqf,
the usufruct of the dedicated property may be lawfully utilized for the poor. In Bikani Mia v.
Sukh Lai Poddar, Ameer Ali, J., has rightly observed:

“In every waqf, the beneficiation of which is bestowed upon any individual or upon one’s
descendants, the charity is continued, upon their extinction, expressly or by implication of law, to
the general poor.”

On the basis of object i.e. the purpose recognized in Islam, waqf can be divided into:

 Family waqf (waqf-alal-aulad)

 Public waqf (waqf sabi-lil-lah)

 Waqf under statutes

Doctrine of Cypress:

The word cypress means ‘as nearly as possible.’ Doctrine of cypress is a principle of the English
law of trusts. Under this doctrine, a trust is executed, or carried out as nearly as possible,
according to the objects laid down in it.
Where a settler has specified any lawful object which has already been completed or, the object
cannot be executed further, the trust is not allowed to fail. In such cases, the doctrine of cypres is
applied and the income of the property is utilized for such objects which are as nearly as possible
to the object already given.

The doctrine of cypress is applicable also to waqf. Where it is not possible to continue any waqf
because of (a) lapse of time or, (b) changed circumstances or, (c) some legal difficulty or, (d)
where the specified object has already been completed, the waqf may be allowed to continue
further by applying the doctrine of cypress.

In Salebhai Abdul Kader v. Bai Safiabu, the Bombay High Court held that where the particular
object laid down in a waqf fails because of some reason, the waqf would not come to an end; it
would continue and income of the property may be utilized for such other objects which are very
similar to the object laid down in the waqf. Therefore, where it is not possible to use the property
exactly in the manner directed by the founder, the court may apply this doctrine and direct a
cypress application of the income of waqf property.

For example, if a waqf is created for removing illiteracy among the adults of a locality but, after
some time it is found that all the adults of that locality have become literate then the income of
that property may be utilized for giving them further education or, for educating children of that
locality.

However, care must be taken that the income is applied for those purposes only which are as
nearly as possible similar to the purpose intended in the waqf. Even if the object is not specified
but a clear charitable intention is expressed in a waqf, the doctrine of cypress may be applied and
the income of property may be used for any purpose recognized under Muslim law as beneficial
to mankind.

However, the doctrine of cypress cannot be applied to validate any void waqf. Where the object
is un-Islamic, the waqf is void and it can never be validated by applying this doctrine. Similarly,
if the waqf is void because of uncertainty in its object, it cannot be validated and continued to
exist by application of the doctrine of cypress.
Where a family-waqf (waqf-al-al-aulad) failed because of some legal defect, the Allahabad High
Court held that the waqf cannot be continued as a public-waqf by application of the doctrine of
cypress.

(5) The Formalities: Modes of Creation:

Formalities:
Muslim law does not prescribe any special formality for the creation of a waqf. It may be made
orally or in writing. Writing is not necessary even if the property dedicated is an immovable
property of high valuation.

A waqf of an immovable property worth several thousand rupees may be lawfully constituted by
an oral declaration. If it is fully established that a dedicator has intended to make a waqf, its form
is immaterial. It may be noted that even the use of the word ‘waqf’ is not necessary. A waqf-deed
may be lawfully constituted by using any expression provided it is clear that the dedicator has
intended to create waqf.

Registration:
Under Islamic law, registration is not necessary for the validity of a waqf even though the
property dedicated is immovable. However, it must be notified, that the law of land requires
registration if the value of the property being transferred through waqf is more than 100 rupees.

Delivery of Possession:
A waqf may be lawfully constituted only by declaration. Delivery of possession and the
appointment of mutawalli (manager of the waqf-property) is not an essential condition for its
validity. According to Abu Yusuf, a waqf may be completed without appointment of mutawalli
and without any delivery of possession of waqf-property to him.

In Garib Das v. Munshi A. Ahmaaf, the Supreme Court held that for the validity of a waqf it is
not necessary that a mutawlli is appointed simultaneously. Mutawalli may be appointed
subsequently. The delivery of possession, actual or constructive, is also not necessary.

Shia Law:
Under the Shia law a waqf cannot be created by mere declaration. Delivery of possession of the
property is necessary for the completion of waqf. Therefore, the mutawalli must also be
appointed simultaneously so that he may accept the property. Thus, where the dedicator is a Shia
Muslim, the waqf is completed by: (1) declaration, (2) Appointment of mutawalli and (3)
delivery of possession to such mutawalli, However, where the dedicator appoints to himself as
the first mutawalli, delivery of possession is not needed. But, after declaration the character of
dedicator’s possession should be changed from owner of that property to that of a mutawalli.

MODES OF CREATION:
A waqf may be created by any of the following methods:

(a) By dedicating the property immediately i.e. inter-vivos.

(b) By dedicating the property under a will i.e. testamentary waqf; and

(c) By immemorial user.

Waqf Inter-Vivos:
Where the dedicator creates any waqf either orally or in writing and intends that it is to be
constituted during his life, the waqf is inter vivos. Where a waqf is inter vivos, the ownership of
the property is divested from the dedicator and is vested in God immediately after its
constitution. The waqf is complete as soon as the declaration has been made and comes into
being with immediate effect. Such waqfs are irrevocable.

Testamentary Waqf:
Waqf created on death bed i.e. marzul maut will have a status of will.
Where a waqf is created through a will, it is called a testamentary waqf. A testamentary waqf
does not become complete before the death of the dedicator. Like a will, a testamentary waqf
becomes operative only after the death of its dedicator.

The result is that before the waqif s death, the ownership continues to vest in him. As such, a
testamentary waqf may be revoked by a waqif at any time during his life. Another significant
feature of a testamentary waqf is that it is subject to the Muslim law of wills. The rule of
bequeath able one-third is applicable also to such waqf.

Thus, where a dedication is made through a will, not more than one-third of the total property
may be given for waqf without consent of dedicator’s legal heirs. For the waqf of a property
exceeding one third of the waqif s total assets, consent of his legal heirs is necessary. The
difference between a non-testamentary (inter-vivos) and a testamentary waqf may be
summarized as under:

(i) An inter-vivos waqf takes place immediately whereas, a testamentary waqf operates only after
the dedicator’s death.

(ii) An inter vivos waqf is irrevocable but a waqf constituted through a will may be revoked by
the waqif any time during his life.

(iii) In a non-testamentary waqf there is no restriction regarding the quantity of property

dedicated. The dedicator may constitute the waqf of his entire property. In the case of a
testamentary waqf, a property in excess of one-third may be constituted in waqf only upon the
approval of legal heirs of the dedicator.

Waqf by Immemorial User:

Waqf may also be constituted by a continued use of any property for some religious or charitable
purpose. Where an immovable property is being used as a waqf property since a very long time,
it is presumed that the waqf has always been in existence. The very fact that a property is being
used for any religious or charitable purpose from time immemorial creates a lawful waqf.

Such a property is presumed to have been constituted in waqf by its immemorial user. Where a
land is being used for a religious purpose, e.g. for a mosque or a burial ground or for the
maintenance of a mosque, from time immemorial, the land is by user waqf although, there is no
evidence of an express dedication.

Basis of the constitution of a waqf by immemorial user is the continued use of a property since
such a long time that no person could remember as to when this waqf did not exist. In other
words, if some property had always been used as a waqf property without any objection, then the
presumption is that waqf must have been constituted sometime in the past but its evidence is not
available because of long duration.

It is a settled law that in a case where long period has elapsed since the origin of an alleged waqf,
user can be the only available evidence to show whether property is waqf or not.
ADMINISTRATION OF PROPERTY THROUGH WAQF

Property through waqf can be administered in two ways:

 Statutory administration

 Non statutory administration

Statutory administration is carried under the provisions of Musalman waqf validating Act 1913
which is the general law applicable throughout Pakistan regarding waqf. Other than this Act,
every province has its own respective Acts under which waqf can be dealt with such as: Punjab
has, Punjab waqf Act 1979, likewise sindh has its own sindh waqf Act. Etc.

Whereas, non statutory administration is carried about by a person named ‘mutawalli’.

MUTAWALLI
A mutawalli is the superintendent or manager of the waqf property. As per the case of Kanib
4
Begum v. Akbar Jan the waqf is not completed unless besides a declaration of waqf, a
mutawalli is appointed by the owner and possession of endowed property is delivered to him.
Competency of Mutawalli
He should have the following attributes:
 Should be Muslim. He may belong to any sect. i.e. a Sunni can be a mutawalli of Shia
waqif and vice versa.
 Of sound mind
 Major
Who can appoint Mutawalli?
A mutawalli can be appointed by the following in the given order:
 The waqif himself: It is lawful for the waqif to reserve the mutuwalliship for him. And
where a waqf has been created, but the waqif has not appointed on mutawalli for the
administration of the waqf, nor has reserve the mutuwalliship for him, the office would
nevertheless appertain to him qua waqif. In Ali Azghar v. Farid Uddin, the waqif
appointed himself as the first mutawalli and after his death Ali Azghar.
 His executor: Should the waqif die without making any express appointment, the power
of appoint a mutawalli devolves upon lies executor

4
1984 SCMR 149
  The mutawalli: A mutawalli can appoint his successor under very restricted conditions,
which are as follows-
1. Waqif and his executor both dead
2. Waqif deed is silent on the point of succession of mutuwalliship
3. There is no positive custom regarding such devolution.
4. The waqf deed authorizes him to this effect.
 The Court: It no such appointment is made the court may appoint a mutawalli. But court
should select by preference a member of the founder family. It there by any fit persons
possessing that qualification. If the members of the founders family is not a person
possessing that qualification, the court may appoint a stranger, as happened in the case
of Shabar Banoo v. Aga Mohamed.

Powers and functions of Mutawalli

The mutawalli is manager of the waqf property. His primary duty is to preserve the property
like this own, but to manage and spend it like a servant of God. As discussed earlier a
mutawalli is not owner of the waqf property, the property vest in God, not in him. Although his
functions are similar to that of a trustee under the Indian trust Act, 1882 yet, the not a trustee is
its technical senses unlike a trustee, the property close not vest in mutawalli. The mutawalli
simply holds the office as manager of the property. But, he is not allowed to manage the
property at his own choice. He has to administer the property strictly according to the object
and direction laid down by the founder. He has no right to spend the benefit of waqf for
purposes which may be religious or charitable according to him but are not specified as objects
or the waqf.
Power of mutawalli to sell or mortgage

A mutawalli has no power, without the permission of the court, to mortgage, sell or exchange
waqf property or any part thereof unless he is expressly empowered by the deed of waqf to do so.
He cannot transfer his duties further to anybody. He cannot make anybody a trustee. He cannot
spend on mere improvements. He cannot grant waqf property on lease for: More than 1 year, n
case of non agricultural land or more than 3 years in case of agricultural land.

Removal and new appointment of Mutawalli

If a mutawalli is incapable of carrying on the duties of a mutawalli the court shall have the power
of removing him on reasonable grounds. At the time of appointing a mutawalli, however, the
court as far as possible shall have to the wishes of the creator of waqf and shall appoint as for as
possible, a suitable person as mutawalli from the family of the waqif.
Male or female

The Mutawalli may be either a male or a female; a woman is not debarred from acting as Mutawalli
because the office does not involve any religious or spiritual obligation. It means a female and
the non-Muslim are legally qualified to be appointed as a Mutawalli.

It is because a Mutawalli is primarily concerned with the superintendence or management of the

Waqfproperty. Supervision and management is a non-religious activity. But, where the Mutawalli is required to
discharge also some religious function, a female or a non-Muslim cannot act as Mutawalli. Accordingly, in
the following cases, a female and a non- Muslim cannot be appointed as Mutawalli:

 Where the Mutawalli is to act as Sajjadnashin or a spiritual head.

 Where the Mutawalli is to act as imam, i.e., where he is required to lead the assembly of
people for religious prayers.
 Where the Mutawalli is to act as a Mulla. A land assigned to a Mulla as remuneration of his
office, cannot be succeeded by any female successor.
 Where the Mutawalli is required to give religious preaching i.e., where he has to act as khatib.
 Where the mutawalli is required to act as mujavar of dargah.

Remuneration of mutawalli

Remuneration may be fixed by the mutawalli or by the court at the time of appointment or it can
be stated that instead of monthly salary, mutawalli can be made entitled to a specified amount of
profit arising out of the property as a part of his salary.

WAQF AND TRUST

Although both the terms i.e. waqf and trust are somewhat similar but they are nonetheless
different. The concept of waqf and trust sometimes create difficulty therefore, it is important to
understand the difference between the two concepts.

 In trust, no particular motive is required. Whereas, waqf has to be made for religious,
pious and charitable purpose.
 In trust, the founder may himself be beneficiary. Whereas, waqif cannot reserve any
benefit for himself.
 Trust may be for any lawful object. In waqf, the ultimate object is the benefit of
mankind.
 Property in trust vests in trustee. Property in waqf vests in God.
 It is not necessary that a trust is perpetual, irrevocable or inalienable. Whereas, waqf is
perpetual, irrevocable and inalienable.
 Trust is regulated by Trust Act. Whereas, waqf is regulated by Musalman law as well as
by Musalman waqf validating Act 1913.
CONCLUSION

From the above discussion, it is hereby concluded, that waqf is a mode of transfer of property
which is permanent in nature i.e. once dedicated, and it cannot be revoked. The purpose of which
is to be pious, charitable or religious. It is a type of transfer by a person called waqif to the
beneficiary which is the general public through mutawalli (at times) who is the manager of the
property.