(3) Possession of the property must be given.
(4) The wakf should not retain any interest in the property.
The last requirement had been expressed in direct and homely language by saying that “the wakif must not eat out of the wakf.” It is essential, under Shia law, therefore, that the wakif should not retain any interest, even in the usufruct of the dedicated property. And, if he does retain any benefit, the wakf is bad, not merely in respect of the reservation, but in its entirety.
It is essential to the validity of a wakf that the dedication should not be conditional or contingent. It is further essential that the dedication should be permanent. A dedication limited as to time, e.g., a period of five years, is invalid. The property dedicated must be of a reasonably permanent character.
Above all, the wakif must be the owner of the property. Unless the wakif is the owner of the dedicated property, he has no permanent control over that property, and a dedication thereof will be invalid. Thus, a widow cannot dedicate a property of which she acquires possession in the exercise of her right of retainer for her dower debt.
Similarly, dedication of her dower debt due from the estate of the deceased husband cannot be recognised. The recovery of the debt is problematical, because it is at the option of the residuary heirs to pay it or not, and hence, it is not tangible property available to the widow, and she has no control over it.
Are the following wakfs valid?
(a) A, aged fifteen, creates a wakf for 75 years of 500 Gold Sovereigns.
(b) A creates a wakf of property belonging to B. At that time, A was negotiating a purchase the property from B. A purchases the property from B, a month after the creation of wakf.
(c) A creates a wakf by will. A puts a clause in the will that the wakf shall not operate if a child is born to him.
(d) A makes a wakf by will of all his property during marz-ul-maut.
(e) A Muslim executes a deed of wakf, which contains a direction that a reserve fund be created for preserving and extending the wakf properties.
(f) A Hanafi Muslim executes a deed of wakf, dedicating his entire estate to a mosque. By the same deed, he reserves the whole of the income for his maintenance during his life-time. Would it make any difference if such a wakf was created by a Shia Muslim?
(a) This wakf is void for three reasons. Firstly, A, the wakif, is a minor. Except in respect of dower, divorce and marriage, Muhammadan law on the question of minority is governed by the Indian Majority Act of 1875, according to which the age of majority is the completion of the age of 18 years.
Secondly, it is one of the essentials of a valid wakf that the property dedicated must be of a permanent character. If, as here, a sum of a money itself is dedicated and if it is to be spent on the maintenance of the objects of the wakf, it will be exhausted before long, and it cannot be said that the property dedicated is of a permanent character as required by law.
Thirdly, to constitute a valid wakf, there must be a permanent dedication of property. A wakf for 75 years is a wakf for a limited period, and therefore, invalid.
(b) A person who is not the owner of a particular property cannot make a wakf of it. The mere negotiation with Â to purchase the property does not create any interest in the property. The subsequent purchase by A of the said property will not validate the wakf, which was invalid in its inception, on the ground that the property did not belong to A, the wakif, at the time the wakf was created. (Masih-ud-din v. Ballabh Das, (1913) I.L.R. 35 All. 68.)
(c) A testamentary wakf may be revoked or modified any time the testator pleases, even without reserving power to do so in the will. Therefore, a testamentary wakf is not invalid simply because it contains a clause that the wakf shall not operate if a child is born to the testator. (Muhammad Ashan v. Urhardareiz, (1906) I.L.R. 28 All. 633) Therefore, the wakf is valid.
(d) A wakf may, if created during the lifetime of the wakif and otherwise than by will or on the death-bed, exceed one-third of the whole estate; even the whole of the property may be dedicated. But wakfs created on the death-bed or by a will are subject to the ordinary rule which bind the testator’s powers of free disposition to one-third of his whole estate. A’s wakf, therefore, cannot operate upon more than one-third of his property, unless his heirs consent to it.
(e) It has been held in Hashim AH v. If fat Ara Hamidi Begum, (1942) 46 C.W.N. 564, that a direction in the deed of wakf to create a reserve fund intended for preserving, improving and extending the wakf properties does not invalidate the wakf. Therefore, this is a valid wakf.
(f) Under the Hanafi law, the dedicator or wakif may provide for his maintenance out of the income of the wakf property. He may, if he wishes, reserve even the whole income for his life [Casamally v. Currimbhoy, (1912) I.L.R. 36 Bom. 214 and Fatamabibi v. Advocate-General of Bombay, (1881) I.L.R. 6 Bom. 42, 51-52].
Therefore, this is a valid wakf under Hanafi law. However, under Shia law, the wakif cannot retain any interest in the property or the income thereof. Therefore, such a wakf by a Shia Muslim would be invalid.
Form of Wakf:
The general rule is that the form of a wakf is immaterial. A wakf can be made either verbally or in writing. Even when it is made in writing, it is not necessary that the term “wakf be used in the document, if from the general nature of the grant, such a dedication can be inferred. (Jeewan Das v. Shah Kubeer-un-deen, 1840 2 M.I.A. 390)
When it is not clear as to whether a particular grant constitutes a wakf, the statements and the conduct of the grantee and his successors, and the method in which the property has been treated, are circumstances which are relevant, though not conclusive.
Contingent Wakfs, Not Valid:
It is essential to the validity of a wakf that it should not be made to depend on a contingency. In other words, contingent wakfs are not valid.
A Muhammadan woman conveyed her property to her husband upon trust to maintain herself and her children, if any, out of the income, and to hand over the property to such children on their attaining majority, and in the event of her death without leaving any children, to apply the income to certain religious uses.
The Court held that this was not a valid wakf, as it was made contingent on the death of the settlor without leaving any issues. (Pathukutti v. Avathalakutti, (1883) 13 MAd. 66)
In another case, a Muhammadan executed a deed of wakf, which contained a direction that until payment of certain specified debts, no proceedings under the wakfnama would be enforceable. Here, it will be seen that the provision for payment of debts does not import a contingency, and the wakf was therefore held to be valid. (Khalil-ud- din v. Shri Ram, A.I.R. 1934 All. 176)
Whether it is Revocable:
A wakf cannot be revoked after its dedication has been completed; a testamentary wakf is revocable at any time before the death of the testator. A wakf created during death-illness may be cancelled on recovery. But a wakf inter vivos, other than a wakf created during death-illness, cannot be revoked.
A wakf must not be subject to any option or condition. A non- testamentary wakf which reserves to the settlor the power of revoking it is void. (Abdul Satturv. Advocate-General, Bombay (1933) 35 Bom. L.R. 18)
A wakf, once it is validly constituted, is irrevocable, if, therefore, a condition is inserted in a deed of wakf, that the wakif reserves to himself the power of revoking the wakf, the wakf is void ab initio.
But inasmuch as a testamentary wakf operates only from the death of the testator, there is nothing to prevent a man from revoking his will and making another; such a revocation is not the revocation of a wakf, but only the revocation of a will. Therefore, a testamentary wakf is revocable before the death of the testator.
Wakf of Mushaa:
According to Abu Yusuf, a wakf, except for a mosque or burial ground, of an undivided share (mushaa) in property is valid, whether the property capable of division or not.
According to Imam Muhammad, however, the wakf of a mushaa in property capable of partition is not valid.
Wakfs and Family Settlements (Wakf-ul-Aulad):
“The most excellent of Sadaquah is that which a man bestows upon his family”. Therefore, under the pure Muhammadan law, a wakf exclusively for the benefit of the settlor’s family is valid. Such a wakf is also known as wakf-ul-aulad.
But the law, as settled by the decided cases, is that a wakf exclusively for the benefit of the settlor’s family, children, kindred or posterity, is invalid; but if on the extinction of the family, the residue is to go to the poor, i.e., if there is an ultimate gift to charity, such a wakf is valid.
Prior to the coming into effect of the Mussalman Wakf Validating Act, 1913, a wakf tor the benefit of the settlor’s family was not valid if the ultimate gift to charity was illusory, whether from its small amount or from its remoteness and uncertainty.
After the Act, such a wakf is valid, even if the ultimate gift to charity is illusory.
Abdul Fata v. Rasamaya, (1894) 22 I.A. 76 (89):
In this case (which was decided before the Mussalman Wakf Validating Act), two Muslim brothers executed a deed, purporting to make a wakf of their immovable property for the benefit of their children and their descendants from generation to generation, and, on total failure of their descendants, for the benefit of widows, orphans, beggars and the poor.
It was held that the wakf was void, and the Court observed as follows:
“If a man were to settle a crore of rupees, and provide ten for the poor, that would be at once 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; certainly, not so long as there exists on the earth one of those objects whom the donors really cared to maintain in a high position. Their Lordships agree that the poor have been put into this settlement to give it colour of piety, and so legalise arrangements meant to serve for the aggrandisement of a family.”
The view taken by the Privy Council in Abdul Fata’s case (above) was not in keeping with the established ideas of the Muslims in India, who made a representation to the Government of India, and as a result, the Wakf Validating Act of 1913 was passed, with a view to reverse the decision in Abdul Fata’s case. Under that Act, a wakf for the benefit of the family is valid, even if the gift to charity is illusory, provided that there is an ultimate gift to charity.