Therefore, besides legal duties, a mutawalli has also the religious and moral obligation to take care of the waqf- property. Any mismanagement or negligence on his part may amount disrespect towards God. The office of a mutawalli is similar to that of a trustee, but his powers and functions are different.
Who Can Appoint Mutawalli?
A mutawalli may be appointed by any one of the following:
(i) By founder of the waqf,
(ii) By executor of the founder,
(iii) By a mutawalli on his death-bed,
(iv) By the court, and
(v) By congregation.
The above-mentioned list of persons entitled to appoint mutawalli is in the order of priority. Primarily, the right to appoint a mutawalli is given to the waqif himself. Failing him, mutawalli may be appointed by the executor of the waqif if the waqif has no executor, the existing mutawalli may appoint his successor provided he is on his deathbed.
Failing this, the court has an authority to appoint the mutawalli. Sometimes a mutawalli is appointed also by congregation i.e. by assembly of religious people. It is significant to note that under Shia law, the founder himself must appoint a mutawalli. Without appointment of mutawalli, the waqf under Shia law is void.
(i) Appointment by Founder:
The founder of a waqf has absolute power to appoint a mutawalli. He may appoint himself to be the first mutawalli of the waqf constituted by him. The founder may appoint any other person to be the mutawalli. He is also authorised to lay down the scheme according to which the subsequent mutawallis are to be appointed in future.
The fouader may specify the names of persons who are to act as mutawallis one after the other. He may also provide for the selection of certain persons .from community, having specific qualifications, which are to act as mutawallis. The founder may also give to an existing mutawalli, the authority to appoint next mutawalli. The founder of waqf may make the office of mutawalliship hereditary.
In such a case, after the death of first mutawalli the office would be held by his descendants from generation to generation. It may be stated therefore, that during his life a waqif has full authority in the matter of appointment of mutawalli. In Ali Ashgar v. Fariduddin, the founder of a waqf appointed himself as the first mutawalli.
The waqf-deed provided that after his death A would act as mutawalli. For some reason, the founder resigned from the office of first mutawalliship and in his place appointed Â as mutawalli. A contested the appointment of B. The Allahabad High Court observed that during his life the founder was competent to appoint any person of his choice as mutawalli.
Accordingly, the court held that after his resignation, the founder had lawfully appointed Â as mutawalli, because that office fell vacant while the founder was still alive. The court further held that A would be entitled to hold the office only after the death of the founder.
(ii) Appointment by Executor:
If a waqif dies without appointing any mutawalli and the waqf-deed is silent about the appointment to this post, then the executor of the waqif is entitled to appoint a mutawalli. Thus, where this office falls vacant either because of death of ail existing mutawalli or, because he has refused to hold that office or, because he has been removed by a court and, it is not clear as to how a mutawalli is to be appointed, then the executor has a right to appoint any person as mutawalli. In this situation, the founder’s executor possesses the same powers as the founder himself, had he been alive. However, this is possible only where founder has an executor.
(iii) Appointment by Mutawalli on Death-bed:
Generally an existing mutawalli has no right to appoint his successor. As to who would be the next mutawalli after him, is to be determined by the waqf-deed or, by the executor, if any, or by the court of law. But, where an existing mutawalli finds that there is no possibility of appointment of his successor by any of the above-mentioned methods and he is now already on his deathbed, then he himself can appoint his successor.
A mutawalli can appoint his successor subject to two conditions (i) that he is on his death-bed and there is no chance of his survival and, (ii) that the office of Mutawalli would remain vacant if he does not appoint his successor before his death. A dying mutawalli must appoint his successor ex necessitate rei (i.e. because of urgent necessity).
It may be noted that appointment of a mutawalli by existing mutawalli in his death-illness, is an emergency appointment, therefore, when he is in health he cannot appoint his successor. Similarly, where the office of mutawalli is hereditary under local custom, the mutawalli on death-bed has no right to appoint his successor.
(iv) Appointment by Court:
If no mutawalli could be appointed by any of the methods referred above, the court has to appoint the mutawalli. Court here means the District Court within the jurisdiction of which waqf property is situated. Under Muslim law, the court has got wide powers in respect of supervision and management of a waqf. This power includes also the authority to appoint a suitable mutawalli for carrying out its objects.
The primary duty of the court of law is to see that the interests of the beneficiaries for whom the waqf has been created, is reasonably safeguarded. Therefore, if it finds that the existing mutawalli is not discharging his duties properly it may remove him and appoint another mutawalli at its discretion. However, while making the appointment of a mutawalli, the court must take into account the following principles:
(a) As far as possible, the court should not disregard the directions of the founder. But, where the court finds that appointment by directions of the founder may be against the interests of the beneficiaries, it may appoint any person of his choice.
(b) So long as there is a qualified member of the founder’s family, the court should not appoint a stranger.
(c) In the case of any contest between a lineal descendant of the founder and a person who is not his lineal descendant, the court is not bound to appoint the lineal descendant.
(v) Appointment by Congregation:
Sometimes, a mutawalli is appointed by a congregation. Congregation means assembly of specific group of persons. An assembly of the persons of a particular locality, having beneficial interest in the waqf-property, is also authorised to appoint the mutawalli. But mutawalli’s appointment by this method is possible only in the case of a local-waqf such as a mosque or, a graveyard for the members of a particular locality.
Who May Be Appointed as a Mutawalli?
Any person who is, (a) of sound mind and, (b) has attained the age of majority, is qualified to be appointed as a mutawalli. Under Muslim law, the general rule is that soundness of mind and majority are the only qualifications for being a competent mutawalli. Any person, whether male or female, Muslim or non-Muslim, may be appointed as a mutawalli.
Generally a minor cannot be appointed as mutawalli. But, where the office of mutawalli is hereditary and, after the death of last mutawalli the person entitled to succeed to that office is a minor, then the office may be held by that minor.
The office of mutawalli is hereditary in following two cases: (a) Where the founder has laid down the line of succession in the waqf-deed and; (b) Where the succession to this office is allowed by a local custom.
Females and Non-Muslim Mutawalli:
Females and the non-Muslims are legally qualified to be appointed as a mutawalli. A mutawalli is primarily concerned with the superintendence or management of the waqf- property. Supervision and management is a non-religious activity. Therefore, a female or a non-Muslim is not disqualified for discharging the functions of mutawalli.
But, where the mutawalli is required to discharge also some religious functions, 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:
(i) Where the mutawalli is to act as Sajjadnashin or a spiritual head.
(ii) Where the mutawalli is to act as imam, i.e. where he is required to lead the assembly of people for religious prayers.
(iii) 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.
(iv) Where the mutawalli is required to give religious preaching i.e. where he has to act as Khatib.
(v) Where the mutawalli is required to act as mujavar of a Durgah.
In the above-mentioned cases, as the nature of the functions to be discharged are religious, the mutawalli must be a male and a Muslim. But, where the functions are not purely religious, a female is not disqualified to be appointed as mutawalli. Thus, in the following instances a female is competent to be appointed as a mutawalli.
(i) Where the office of mutawalli is purely secular in nature and no religious performance is required to be done under the waqf, a female can be appointed as mutawalli.
(ii) A woman can be appointed as head mujavar of Astan (a platform where Muharram ceremonies are performed annually). The religious duties in some cases may be delegated by a female mutawalli to any male Muslim. It has been held that if certain religious functions were such as could be performed by a proxy, the woman may hold the office of mujavar.
(iii) Similarly, it has been held that a woman in the Nellore District is not disqualified to hold the office of Khatiba.
In Syed Mohamed Ghouse v. Sayabiran Sahib, the Madras High Court has held that where a court of law has to appoint any mutawalli, it should give preference to a male over a female even though the functions to be discharged are non-religious.
It was further observed that Muslim females generally live in seclusion and avoid public appearance, therefore, where a court has direction to appoint a mutawalli; it would give preference to a male irrespective of the nature of duties to be performed by such mutawalli.
Remuneration of Mutawalli:
A mutawalli is entitled to get some remuneration in return of the services discharged by him. Generally, the founder himself provides for the remuneration of mutawalli. The founder may provide a fixed amount to be paid periodically to the mutawalli.
He may also provide that instead of any fixed sum, he would get the residue of the benefits of the waqf-property. In such a case, the remuneration is not a fix sum. After distribution of the income of waqf-property and after meeting the necessary expenditure in its maintenance etc. the remaining income is given to the mutawalli as his remuneration.
If the founder has not made any provision for remuneration, the mutawalli may work without any remuneration. But, if he wants to get some allowances, he may make application to the court to fix some remuneration for him.
The court may fix any amount taking into account the work-load of the mutawalli and the income of the property. But, the remuneration fixed by the court cannot exceed one-tenth of the income of waqf- property.
In All India Imam Organization v. Union of India, the Supreme Court held that the Imam who looks after the religious activities and offers prayers is entitled to reasonable emoluments even in the absence of statutory provisions.
Powers and Functions of Mutawalli:
The mutawalli is manager of the waqf-property. His primary duty is to preserve the property like his 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 vests in God, not in him. Although his functions are similar to that of a trustee under the Indian Trust Act, 1882 yet, he is not a trustee in its technical sense. Unlike a trustee, the property does 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 objects and directions laid down by the founder.
He has no right to spend the benefits of waqf for purposes which may be religious or charitable according to him but are not specified as objects of the waqf. For example, a mutawalli has no right to construct a school building on the lands attached to mosque of which he is the mutawalli.
Mutawalliship Non-Transfer able:
A Mutawalli has no power to transfer his office to any other person. His office is not transferable during his life. The office of mutawalliship (Tawliyat) is created on the basis of certain personal qualifications; therefore, it would be against the nature of this office to allow a mutawalli to alienate his assignment to some other person. Mutawalliship cannot be regarded as a property. As this office is not any property, it cannot be subject of any transfer.
He is also not empowered to appoint any co- mutawalli to share his responsibilities. But, if the founder has given the power of transferring his office, he can lawfully transfer his assignment to another person.
Similarly, with an authority from the founder a mutawalli can appoint co-mutawallis. However, in the absence of any express prohibition by founder, the mutawalli has a right to appoint his deputy or assistants to help him in the management of the dedicated property.
A mutawalli has no right to appoint any official or servant against any express direction by the founder. Where such officials or servants have already been appointed by the founder, the mutawalli has no power to make any change in those appointments.
Moreover, the mutawalli has no right to make any changes in the salaries and allowances of the officials who have already been appointed by the founder. This power is vested in the court of law; the mutawalli can neither remove those officials nor increase their allowances where it has already been fixed by the founder.
In respect of the waqf-property, the mutawalli has only a possessory right. But, his right to possess the property is perfect and absolute against all other persons. The possession of a mutawalli can never be regarded as an adverse possession against the founder of the waqf. Therefore, if a mutawalli has been dispossessed by the founder or any other person, he is entitled to maintain an action in a court of law for getting back his possession.
Power of Sale and Mortgage:
A mutawalli is not owner of the waqf-property. Therefore, as a general rule, he has no right to transfer the property by sale, exchange, gift, or mortgage. However, a mutawalli can transfer the waqf-property in following situations:
(a) Where the founder has expressly authorised the mutawalli to sell, exchange etc., or mortgage the property, or
(b) Where, the mutawalli has taken a prior permission of a court of law for transferring the property.
In other words, where a waqf-deed has not authorised the mutawalli for any transfer, he cannot sell or mortgage the property without permission of the court. If a mutawalli finds that he must sell or mortgage some of the properties of waqf because of an imminent necessity, he may make an application to the court for giving him the required authority.
If the court realises the urgency, it may grant the permission for transfer. Where the court finds no justification for such transfer, it may refuse to give permission. For getting the permission from the court, a mutawalli need not file any regular suit; merely an application is sufficient.
However, the transfer of waqf-property by a mutawalli without prior permission of the court is not void ab-initio. If the transfer is for the benefit of the waqf ox is urgently required in the given circumstances, the mutawalli may alienate the property first and thereafter get the permission.
The court of law is competent to give the permission retrospectively. Accordingly, in many cases where the court felt that mortgage of the property was urgently needed, it gave the permission afterwards and the mortgages were held valid.
Power to grant Lease:
Lease is a transfer of the right of enjoyment of an immovable property on rent. The mutawalli has power to grant leases of the waqf-property. But, his power is limited as regards the period of lease. In the case of a tenement i.e., residential place, he can grant lease only up to one year.
In the case of agricultural lands, he can grant lease only up to three years. In other words, the mutawalli has right to grant lease of the waqf-property for a maximum term of one year in case of houses ; and, for a maximum period of three years in the case of agricultural lands.
For granting leases for longer durations, there must either be (i) authority in the waqf-deed or (ii) prior permission of the court. Thus, where the deed itself gives to a mutawalli the power to grant lease for a period exceeding one year or three years, as the case may be, he can grant leases for longer durations.
In the absence of any such authority from the waqf-deed, the mutawalli will have to take prior permission of the court. The court is competent to give permission to a mutawalli for leases of longer terms even if there is an express prohibition in the deed for such leases.
That is to say, even if the waqf-deed specially provides that the waqf-property cannot be given on lease for more than one year, the court may, in the interest of the waqf, authorise a mutawalli to grant lease for longer period.
Moreover, unauthorised leases by mutawalli may be approved retrospectively by the court. While giving permission for longer periods or while approving unauthorised leases retrospectively, the courts are required to take into account: (a) the interest of the waqf or, (b) the interest of its beneficiaries or, (c) any legal necessity for the transaction.
Thus, a court of law is not only competent to give permission for leases of longer periods against any express prohibition in the deed, but it is also competent to approve such leases without any prior permission. An unauthorised lease is not void. It is simply voidable. Therefore, such a lease is binding on the mutawalli in his personal capacity and he cannot repudiate or eject the tenants.
But, where the court has validated any such unauthorised lease the mutawalli is not personally liable for it. An unauthorised transaction by a mutawalli may be challenged by any person interested in the waqf. Thus, the beneficiary can challenge such alienations, representative’s suit is not necessary for this purpose.
Power of taking Loans:
A mutawalli cannot borrow money for the waqf. Unless the dedication itself or the court authorises the mutawalli, he cannot borrow money for any purpose whatsoever. If a mutawalli takes some loan even for carrying out the purposes of the waqf he would be personally liable. The property of waqf would not be liable for such loans.
A creditor who gives money to a mutawalli cannot claim the repayment from the waqf-property. As the loans taken by mutawalli without having any authority i.e., without authority from the deed or permission of the court, do not create any charge in the waqf-property; a money decree against a mutawalli will not bind the waqf-property. However, where a waqf- deed authorises the mutawalli to take loans or where the court gives permission for taking loans, the mutawalli is not personal liable.
Right of Pre-emption:
A mutawalli cannot exercise right of pre-emption for the waqf-property. Where a land which is adjacent to the waqf-property has been sold, the mutawalli cannot claim repurchase or substitution under the right of pre-emption.
As regards his powers and functions, although a mutawalli is not a trustee in true sense of the term yet, he is still bound by various obligations of a trustee under the Trusts Act. In Bibi Sadique Fatima v. Mahmood Hasan, the Supreme Court has held that use of the waqf-money for purchasing some property in the name of his wife would amount to breach of trust within the meaning of the Indian Trusts Act.
Removal of Mutawalli:
Once a mutawalli has duly been appointed, he cannot be removed by the founder for misconduct etc. except where the founder has expressly reserved such a right. But, the court has an absolute power to remove a mutawalli.
Even though the waqf-deed specifically provides that mutawalli should not be removed in any circumstance, the court may remove him in the larger interest of the waqf. The courts of law are regarded as the protector of all the waqfs.
Therefore, the court is competent to do all such things which it deems necessary for proper administration of the waqf-property. The court has unrestricted power to remove a mutawalli from his office in any of the following circumstances:
(i) Where a mutawalli has become insolvent;
(ii) Mismanagement of the waqf-property due to negligence or dereliction of duty;
(iii) Failure of a mutawalli to perform religious services where it is an essential part of his duties;
(iv) Where the mutawalli utilises the waqf-property or its benefits for his private use;
(v) Where a mutawalli applies the income of the waqf-property against directions of the waqf-deed;
(vi) Where a mutawalli otherwise exceeds his powers in dealing with the property, or
(vii) Where the mutawalli suffers from any physical or mental incapacity.
It is to be noted that a mutawalli ban be removed by the court only by maintaining a regular suit against him. He cannot be removed by the court merely on the basis of any application made before it. Moreover a mutawalli cannot be removed by the court against the principles of natural justice.
There should be a regular enquiry regarding the allegations made against him and he must be given reasonable opportunity to defend himself. The court here means the Court of a District Judge.
Family Waqf: Waqf-Alal-Aulad:
A waqf may either be public or private. A public waqf is that in which the beneficiaries are public generally. Where the beneficiaries are only the members of the founder’s family or his descendants, the waqf is private.
A private-waqf is also called as a family-waqf or a waqf-alal-aulad. Through a family-waqf, the founder may make provisions for the maintenance of his children and descendants of coming generations. The origin of such waqfs may be traced back to the traditions of the Prophet where he said:
“A pious offering to one’s family (to provide against their getting into want) is more pious than giving alms to beggars. The most excellent of Sadqah is that which a man bestows upon his family” and
“Giving alms to the poor has the reward of one alms, but that given to kindred has two rewards.”
There are several other traditions (Sunna) in which the Prophet allowed creation of family-waqfs. According to him the support of one’s family and children was the first duty and necessity of every Muslim.
The philosophy of Islam has been that provision for maintenance of one’s own parents and children must be made obligatory so that they may not be burden on the society. If the children would get into want and have nothing for themselves, they would beg for their livelihood and would become a liability for the society.
In order to avoid such unpleasant situation, a Muslim is allowed to make adequate arrangements for the maintenance of his children and descendants through the medium of a trust. Accordingly, under Muslim law, making provisions for the maintenance, comfort, and dignity of one’s own children, is also regarded as an act equal to that of ‘charity’. As against the common notion that charity means ‘doing something for others’, the Islamic philosophy, sets an example of the English proverb ‘charity begins at home’.
Explaining the nature of a family-waqf, the Supreme Court has observed that in a waqf-alal-aulad, the ultimate benefit is reserved to God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the founder and his descendants. In case the family becomes extinct, the waqf becomes a public-waqf and property is vested in God.
It is therefore clear that for the validity of a family-waqf there must also be some charity for others. Benefit for settler’s family, without any reference to charity for others, has always been invalid. However, the courts in India have recognised family waqfs subject to certain limitations. But, the judicial limitations regarding the nature and extent of the charity referred in such waqfs have created certain doubts as regards its applicability.
Accordingly, the Mussalman Waqf Validating Act, 1913 was enacted to remove these doubts. The Act now clearly lays down the provisions of Muslim law on this point. It is convenient to study the law relating to waqf-alal-aulad under two separate heads: law prior to the Act of 1913 and, law after this enactment.
Law Prior to Waqf Validating Act, 1913:
Before 1913, the law relating to family-waqfs was very strict. A family-waqf in which there was no provision also for some charity or, benefit to poors, was never regarded a valid waqf. The Anglo-Indian courts laid down that for a valid waqf-alal-aulad it was necessary that together with the maintenance and support of the family, there should also be some religious or charitable work from the income of waqf-property.
Application of the whole income only for the benefit of founder’s children and descendants was not permissible in the name of a family-waqf. Before 1913, the Law relating to waqf-alal-aulad may be summarised as under:
(i) A waqf exclusively for the benefit of the family was void. Some gift to charity was essential.
(ii) The gift to charity must have been of a substantial portion of the income of waqf-property. If the gift to charity was nominal, the family-waqf was void.
(iii) It was also necessary that gift to charity was concurrent. If it was too remote, the waqf was void.
The above-mentioned conditions for validity of family-waqfs were laid down by the Anglo-Indian courts. In Abdul Gafur v. Nizamuddin, a Muslim executed a waqf- deed in which he provided that the income of the property was to be utilised for the benefit of his wife, daughter and descendants of the daughter. There was no provision for any gift to charity at any stage. Moreover, it was also not provided as to how the income would be applied in the event of total extinction of the founder’s family.
The Privy Council held that the waqf was void because there was no gift to charity in it. The court observed that a family-waqf exclusively for the benefit of settler’s family, without any gift to charity, was not valid. Gift to charity was necessary to validate a family- But, in some cases, this judicial condition was only technically fulfilled.
Just to overcome this judicial limitation, some nominal amount of income was directed to be used for charity whereas; practically most of the income was applied for benefit of the family. In such family-waqfs, although there used to be a reference of gift to charity, but that used to be illusory. Those family-waqfs, in which the gift to charity was illusory i.e. nominal, were also held by the courts as invalid.
In Mahomed Ahsanulla v. Amarchand Kundu, the deed provided that members of the founder’s family as mutawallis would retain the control and management of the whole income of the waqf-property. The deed further provided that the family-members in the capacity of mutawallis, would spend a small portion of the income for religious purposes and may take as much of it as they liked, for themselve and for other members of the family.
The Privy Council held that the deed of waqf-alal-aulad was not valid because the main purpose of waqf was enhancement of the wealth of family-members from generation to generation rather than any gift to charity.
The court further observed that a family-waqf was valid only if there was a ‘substantial dedication of the property to charitable use at some period of time or other.’ As the gift to charity was not substantial (it was illusory) the waqf was held to be void.
But, this was not the end of the judicial limitations on family-waqfs. In some of the cases although the founders made provision for substantial gifts to charity but, it was illusory because its application was too remote. In other words, although, the amount for charitable purposes was substantial but its application was not immediate, it was only after a very long time.
Abdul Fata Mohammed’s case, given below, is an example of the family-waqf where gift to charity was illusory because of its remoteness. This is a leading case on the law relating to waqf-alal-aulad before the commencement of the Waqf Validating Act, 1913.
Abdul Fata Mohammed v. Russomoy Dhur Choudhury:
Two Muslim brothers executed a deed of family-waqf under which they dedicated their entire immovable property. The waqf was constituted for the benefit of their children, children of their children, and other members and their descendants, in the male and female lines. The deed provided that in the absence of any of the above- mentioned persons, the income was to be applied for the benefit of widows, orphans, beggars and the poor’s.
It was held by the Privy Council that as the gift for charitable purposes was to take effect only after the total extinction of all the descendants and relatives of the two brothers, it was invalid. The gift to charity was held to be too remote and there was no concurrent benefit for the widows, orphans and poor’s. Delivering the judgment, their Lordships of the Privy Council observed:
“A gift may be illusory whether from its small amount or from its uncertainty and remoteness. If a man were to settle a crore of rupees and provide ten for the poor that would at once be recognised as illusory.
It is equally illusory to make a provision for the poor under which they are not entitled to receive a rupee till after the total extinction of a family, possibly not for hundreds of years, possibly not until the property had vanished away under the wasting agencies of litigation or malfeasance or misfortune the poor have been put into this settlement merely to give it a colour of piety, and so to legalize arrangements meant to serve for the aggrandizement of a family”.
The judgment of the Abdul Fata Mahomed’s case created great resentment among the Indian Muslims. It was thought by the Muslim community that there had been an unreasonable judicial interference with their traditional law on Family-waqfs. They protested against the strict conditions laid down by the courts for the validity of a waqf for children and family.
The Muslim jurists argued that the Anglo-Indian Courts were interpreting family-waqfs in the light of western jurisprudence and have ignored their personal law. It was apprehended by them that this amounted to an encroachment on their personal law on family-waqfs. Accordingly, the government had to intervene and the Mussalman-Waqf Validating Act, 1913 was enacted. Law relating to family-waqfs under this enactment is given below.
Law under the Waqf Validating Act, 1913:
The Family-waqf is now being governed by the Mussalman Waqf Validating Act, 1913. This enactment has removed the strict judicial conditions for the validity of a family-waqf. Under this Act, it is now lawful for a Muslim to constitute a waqf-alal- aulad for the benefit of his family or children without any concurrent and substantial gift to charity the relevant provisions regarding family-waqfs are given in Sections 3 and 4 of the Act. A brief account of these provisions may be stated as under:
Section 3 of the Act:
Section 3 of the Act lays down that it shall be lawful for any person, professing Mussalman faith to create a waqf, which in all other respects is in accordance with the provisions of Muslim law, for the following, among other, purposes:
“(a) For the maintenance and support wholly or partially of his family, children or descendants, and
(b) Where the person creating a waqf is a Hanafi Mussalman, also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated:
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.”
Thus, section 3(a) of the Act expressly overrules the decisions of Abdul Fata Mahomed’s case and now a valid family-waqf may be constituted subject to only one condition that there is reference of an ultimate gift to charity. As regards the statutory provision on family-waqf as given in section 3(a) of the Act, following significant points may be noted.
First, the word “family” has not been defined in the Act. However, the courts of law have interpreted this word in its general sense. No specific meaning has been attributed by the courts. The word “family” has been held to include all the members of the founder’s household and it is not confined to his children and descendants.
For purposes of section 3 (a), a person may belong to the family of the founder either (i) because he is from a common progenitor having common line of descent or, (ii) because he is living with the founder and is being maintained by him. Therefore, family of the settlor includes not only his children and descendants but also the members of his household.
The son of a half-brother, son of a half-sister and sons or grandsons of paternal uncle, are included in the family of a waqif even though these persons are not maintained by such waqif. The daughter-in-law of the founder has been held to belong to the family of the settlor.
The sister’s son, who lives and is, being supported by the settlor, may be included in the settlor’s family. According to Madras High Court, the term ‘family’ includes also the servants and the boarders of the waqifs family and a waqf for them may be constituted lawfully.
However, it is not necessary that a waqf is created for the benefit of the whole family of the settlor. Even if a provision has been made for the maintenance and support of only some specific members of the family excluding others, the family-waqf is valid. But a family-waqf for the benefit of utter strangers is not valid.
Secondly, under the Act of 1913, a waqf exclusively for the benefit of settlor’s family or children is void. The proviso to section 3 lays down in clear words that a waqf for the family, children or descendants is lawful only where ultimate benefit has been reserved for some charitable purpose. If there is no reference of any gift to charity, the family-waqf is void.
Thirdly, a gift to charity may be express or implied. Where the dedicator has expressly made a provision that ultimate benefit of the family-waqf is reserved for some religious, pious or charitable purpose, there is no difficulty. But in certain cases the dedicator may not expressly provide for any religious or charitable purpose in the waqf.
In such a situation, there might be two things. Either the waqf may be invalidated for want of express provision for charity or, the provision for charity may be implied and the waqf is held valid. The word “impliedly” as used in section 3 of the Act, suggests that under the Waqf Validating Act, 1913, an ultimate gift to charity may be implied even if there is no express mention for the same.
However, despite a clear provision in the Act, opinion of the Courts is conflicting. According to the High Courts of Calcutta, Chief Court of Oudh and the Privy Council a waqf which is silent about any gift to charity cannot be validated by presuming an implied gift to charity.
But, in Jhanga Mayil Ammal v. Pappa, where a waqf provided for the maintenance of founder’s descendants and concurrently for some charity, the Madras High Court held that in case of the failure of descendants, an ultimate gift to charity may be implied.
Similarly, in Baqa Ullah Khan v. Ghulam Siddique Khan there was no express mention of any ultimate gift to charity but the Allahabad High Court held that waqf was valid because an ultimate gift to charity was implied in the very word “waqf”.
In view of these conflicting opinions, it may be stated in the words of Fyzee that’ “the question is not free from doubt, but the recent tendency is to hold that even if the document is absolutely silent as regards the ultimate objects, the very use of the world ‘waqf is a sufficient indication.”
It is submitted that this statement of Fyzee represent the correct law and in the absence of any express mention, an implied gift to charity may be presumed by the courts.
Remoteness of Gift to Charity:
Section 4 of the Waqf Act, 1913, now provides that remoteness of the gift to charity will not invalidate a family-waqf. That is to say, a concurrent gift to charity is not necessary. Even if the benefit reserved for religious, pious or charitable purposes is too remote, the family-waqf is valid. As stated above, this provision has negatived the decision of the Privy Council in Abdul Fata Mahomed’s case. Section 4 of the Act provides:
“No such waqf (i.e. family-waqf) shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the waqf.”
We notice that under the Waqf Validating Act, 1913, a family-waqf may be lawfully constituted with a provision that gift to charity is to take effect upon total extinction of the children and descendants. Even if the total extinction of all the descendants of the settlor take place say, after two or three hundred years, the waqf is not void because of remoteness in its charitable objects.
Amount of Gift to Charity:
The Waqf Validating Act, 1913, nowhere provides that the gift for religious or charitable purposes should be substantial. As against the law before 1913, now the gift to charity need not be a substantial portion of the usufruct of the waqf-property. Before 1913, if the amount reserved for charity was nominal, the family-waqf was invalid. But Section 3 (a) of the Act now expressly provides that family-waqf may be lawfully created “for the maintenance and support wholly or partially of his family”.
Thus, in a family- waqf the entire income of the waqf may be utilised for the benefit of the family. It may be noted that the expression “maintenance and support” cannot be interpreted to mean provision for bare subsistence.
It means maintenance according to the social position of the family members for whose benefit the waqf has been constituted. Therefore, even if the whole income is reserved for the benefit of family, the waqf is not invalid so long as an ultimate gift to charity has been provided in it. According to Mulla:
“Under the Mussalman Waqf Validating Act, 1913 (Secs. 3 and 4) the ultimate test is that a waqf-alal-aulad must reserve the ultimate benefit for the poor or any other religious, pious or charitable object of a permanent nature and not that its benefit should be substantially for such objects.
It may be concluded that for a valid waqf-alal-aulad, a reference of a gift to charity is sufficient. The gift to charity need not be substantial and concurrent. Even where the gift to charity is illusory, the family-waqf is valid.
The Waqf Validating Act, 1913 makes no difference between Shia and Sunni law in respect of family-waqfs. The provisions of the Act are equally applicable to both. But, Section 2(b) is applicable only to Hanafi Muslims.
Accordingly, a waqf for the benefit of one’s own self may be created only by a Hanafi settlor. If the settlor is Shia, he cannot constitute any waqf for his own benefits such as for his own maintenance or for payment of his debts.
(i) The Mussalman Waqf Validating Act, 1913 contains the general law. In case there is any conflict between the provisions of this Act and any special law containing rule against perpetuity, the special law on rule against perpetuity shall prevail over the Waqf Validating Act, 1913.
(ii) The Mussalman Waqf Validating Act, 1913 is of retrospective operation. Formerly, there was some doubt because the Privy Council had held that Waqf Validating Act 1913 could not be applied retrospectively. But, subsequently another Act (Mussalman Waqf Validating Act, 1930) was enacted to clarify the position.
The Waqf Validating Act of 1930 expressly provides that the Waqf Validating Act, 1913 may be applied retrospectively. Accordingly, at present the provisions of Waqf Validating Act 1913 may be applied to family-waqfs constituted before commencement of the Act.
Contemporary Relevance of Family-Waqfs in the Muslim Society:
Under the Waqf Validating Act, 1913 and Indian Muslim may create a family-waqf for the maintenance of his family and descendants and such waqf is not void even though the ultimate gift to charity is not substantial or is too remote.
Under Section 4 of this Act, it is permissible for an Indian Muslim to postpone the gift to charity (for the poor or other religious or charitable purpose) until after the extinction of the family, children or all descendants.
This enables an Indian Muslim to ‘tie up’ his property for maintenance of his family and children for an indefinite period. The legal effect is that property becomes non-transferable indefinitely. Any of the descendants, for whose maintenance the waqf is created, cannot transfer it for his more beneficial use of the property.
The religious or charitable purpose is also postponed indefinitely’. Accordingly, the progressive Muslim jurists favour repeal of the Waqf Validating Act, 1913, so that law on family-waqfs, as given in Abul Fata Mohmed’s case, once again becomes law on this subject.
According to them the social consequences of this Act have been devastating because it blocked any initiative by Muslims in the direction of industry and other profitable uses of the property. Expressing the views of progressive Indian Muslims on the contemporary relevance of Waqf-Validating Act, 1913, Danial Latifi observes thus:
“Its social consequences were devastating. It blocked any initiative by the Muslim upper class in the direction of industry. It perpetuated a pathetic class of pensioners devoid of economic initiative who were bound in the long run to become a drag on the community. Distressed by these evils modern jurists favour repeal of the Act of 1913 restoring thereby the law as it stood declared by the Privy Council in Abul Fata’s case in 1894.”
It may be noted that the decision in Abul Fata Mohammed’s case still continues to be the law on family-waqfs for the Muslims of Kenya because the Privy Council has reaffirmed Abdul Fata’s decision in a subsequent case from Kenya.