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Creation of Wakf in India

Creation of Wakf
Creation of Wakf


Wakfs and its Creation

Wakf, derived from the Arabic term meaning dedication or detention, represents the perpetual dedication of specific property for a pious purpose, forming the essence of this institution.

As per Section 2(1) of the Mussalman Wakf Validating Act, 1913, a "wakf" denotes the permanent dedication by a follower of the Mussalman faith of any property for purposes recognized by Mussalman law as religious, pious, or charitable.

Wakfs can be established either testamentary or inter vivos. Testamentary wakfs, which can be oral or written, take effect after the wakif's death and are subject to similar restrictions as bequests to individuals. In Hanafi law, a wakf is considered a unilateral declaration.

Thus, an inter vivos wakf can be established solely through the owner's declaration of endowment, without the need for appointing a manager (Mutawalli) or delivering possession to them. If the dedicator remains in possession after creating the wakf, they do so as a trustee for the wakf's beneficiaries.

Creating a valid wakf does not require specific formalities. It can be done orally or through a deed (wakfnama), with the intention to create a wakf clearly expressed. However, if the wakf involves immovable property worth Rs. 100 or more, a written instrument requires compulsory registration. 

In cases where a wakf is established for both lawful and unlawful purposes, it remains valid for lawful purposes but fails for unlawful ones. The property dedicated to unlawful purposes reverts to the wakf. For a valid wakf, the dedication must be immediate, without depending on any contingency.

A wakf becomes contingent if its establishment relies on uncertain events. For instance, a wakf provision dependent on the existence of children becomes contingent if the dedicator dies childless. However, provisions for wakf debts do not create contingency, rendering the wakf valid.


Wakf by Immemorial User

A wakf may be inferred from immemorial usage, even in the absence of direct evidence showing when and how the property was originally dedicated. For instance, if land has been used as a burial ground from time immemorial, it is considered wakf by virtue of its use.

Similarly, if the public has offered prayers in a mosque adjacent to the tomb of a Muslim saint for many years, and an annual anniversary (Urs) attended by a specific Muslim sect (Momins) is regularly held there, it can be presumed that the mosque has been duly dedicated as a wakf.

However, the mere burial of a saintly person on a plot of land does not automatically convert that land into trust property. Without evidence of the owner's intention to dedicate the land, or a formal dedication, mere usage does not transform the land from private property to wakf. Proof of dedication, or consistent use for religious purposes such as congregational prayers, is necessary.

The Supreme Court has ruled that when Shias acquire a customary right to perform religious ceremonies and functions on certain land owned by a zamindar, such a right cannot be overridden by any derivative title claimed by another party under the superior title-holder, the zamindar. This prescriptive right benefits all members of the Shia sect, regardless of the zamindar's superior title【Ghulam Abbas v. State of U.P. (1982) 1 SCC 711】.


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