INTRODUCTION TO WAQF AND ITS KINDS

INTRODUCTION TO WAQF AND ITS KINDS 

Author :- Dhruvi Jain, a Student at B.M Law College, Jodhpur 

Introduction

Under Islamic Law, the notion of Waqf has evolved. Before Islam, the idea of Waqfs did not exist in Arabia. Waqfs have their origins in the Quranic injunctions that deal with charity, even if Waqfs themselves are not mentioned. 

According to Ameer Ali, "Waqf in its literal sense means detention or stoppage," making it "the most important branch of Muslim Law, for it is interwoven with the entire religious life and social economy of Muslims."

Definition 

The Shara-ya-ul-islam says, “Waqf is a contract the fruit or effect of which is to tie up the original and to leave its usufrust free”, and later on it is stated: “the waqf or subject of appropriation is transferred, so as to become the property of the Mowqoof Alahi (person on whom the settlement is made) for he has a right to the advantage or benefits to be derived from it.”

As defined in the Mussalman Wakf Validating Act, 1913: The most comprehensive and simple definition of waqf is given in the Mussalman Wakf Validating Act of 1913. Section 2 of the Act, says, “waqf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by Mussalman Law as religious, pious or charitable”. This definition is for the purposes of the Act and is not exhaustive.

Kinds of Waqf:

There are two types of waqf recognized by Islamic law:

1. Public Waqfs: 

A Public Waqf is one for public, religious or charitable purposes. 

A Public Waqf is where the beneficiaries are the public at large. In other words, the Waqf’s proceeds or usufruct will be used for public interest such as hospitals, mosques, public restrooms, public water dispensers, etc.

In the case of the deceased individual, Wali Mohd. In the case of L.Rs v. Smt. Rahmat Bee and others, it was observed that the act of offering prayers was not limited to prayers conducted just at the tomb of the grantor or his immediate family members. The concession was issued by the leader of the religious organization and pertained to the recitation of prayers at many burial sites inside the cemetery. Hence, it is evident that a public waqf was established. Hence, the guidelines pertaining to the performance of Fateha at the cemetery and the use of the Rouse for such purposes are undeniably legitimate subjects of a waqf. 

2. Private Waqfs:

The aforementioned arrangement is intended for the benefit of the settlor's immediate family and future generations, and is formally referred to as waqf-ulal-aulad. Nevertheless, this particular transaction might be classified as a familial settlement executed using the mechanism of waqf.

Muslim law recognizes the existence of a private trust of a charitable nature, generally known as waqf-allal-aulad, where 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 family of the founder and his descendants, as stated in the case of Radha Kanta Deb v. Commissioner, Hindu Religious Endowments, Orissa (1 SC 58). If the family dies out, the wakf turns becomes a public wakf and belongs to God. 

Conclusion

Waqf refers to permanent property created for religious or philanthropic reasons. Additionally, it is legally binding and enforceable. Any individual who believes his rights have been violated may sue in civil court. Understanding the idea, powers, and obligations of mutawalli is crucial for understanding waqf. These powers may only be used if there is a clear vacancy for the mutawalli position or if there is a question about their competence or eligibility.