It is an accepted doctrine of the English law of trusts that a trust is void if the object of the trust is not certain. This doctrine has been applied by the Indian courts to trusts, Hindu endowments and Muslim wakfs. The Bombay High Court held that a bequest by a Khoja Muslim for “dharma” was void for uncertainty.
In Mariambiv. Fatmabi, a bequest for dharma-kherat was held void. But in a will using English language the words, “to be disposed of in charity as May executors think right” were construed to create a valid trust.
In Abdul Sakur v. Abubakker, a Cutchi Memon used the words, “dharmakriya” (religious ceremonies in connection with death). It was held that the purpose of the Wakf for “such charitable object as the trustees should think proper and for such purposes as that settlor should obtain certain bliss therefrom” was held valid.
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In Mukkaram v. Anjumanunnissa, it was held that a Wakf for fateha and for amar-i-kkair including the maintenance of poor relations was not void for uncertainty. In Md. Yusuf v. Azimuddin, it was of opinion that a Wakf for khairat or for khairat-kam was valid, and no specification of the object of charity was necessary.
However, the court said that whether a Wakf for umure khair or khare khair was valid depended upon the construction of these words, as to in what sense these have been used, and if these words were used to denote benevolent purposes or good purposes, then the Wakf would be void for uncertainty.
Similarly, a Wakf for kar-khair which means any good act is void for uncertainty, unless a Wakf for kar-khair is construed to mean “purposes recognized by Muslim law as religious, pious or charitable”. The latter construction has been accepted in Sheik Ramzan v. Rahman.
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But this decision has been overruled by a full Bench where it was held that the words “charitable purpose highly commendable according to the Hanafi School of Muslim law” were not sufficient to constitute a valid wakf.
The Lahore High Court held that the general words like “religious and charitable objects” do not constitute sufficient specification of the object. However, in Md. Afzan v. Din Md, the court observed that the words “mazhabi and khairati karri” (religious and charitable works) were sufficiently indicative of the object of the wakf, and therefore the Wakf was not void for uncertainty.
In Hashim Ali v. Iffat Ara Hamidi, the Calcutta High Court held that the use of general words such as “religious, pious or charitable” (as used in the proviso to S. 3 of the Wakf Validating Act, 1913) without specifying the object of charity did not invalidate a Wakf as these words contemplated in ultimate gift to charity effective in law.
These words mean that impliedly the purposes are not clearly expressed in the wakf-nama In this case the ultimate gift, on the failure of the descendants of the wakf, was given to “proper acts of charity”. The Wakf was held valid.
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Similarly, a dedication of property for the benefit of the Muslim community on the occasion of rejoicings and mourning’s was held to be valid; it was, considering the congested conditions of the settlor’s town, construed to mean the provisions for buildings for accommodating marriage and funeral parties.
Fyzee opines that “once it is clear that there is a bona fide intention on the part of the wakif to create a wakf, and divest himself completely of the property, there is a good Wakf which will not be allowed to fail.
A valid Wakf thus may be constituted: (i) where the objects are not specified at all, or (ii) where the object fails as being impracticable, or (iii) where the objects are partly valid and partly not valid. In cases: (i) and (ii) the cypres doctrine may be applied; and in case (iii) the valid objects may be accepted by the court and the other rejected”. In Garib Das v. M.A. Hamid, the Supreme Court considered this question.
In this case under a wakf-nama a Muslim settled his “whole and entire property to the mosque and madarsa at mohalla Nathnagar”, and the surplus of usufruct thereof was to be spent on the same. It was established that there were two mosques at Nathnagar.
The Supreme Court observed that if the matter stood at that there was a scope for holding that the Wakf was void for uncertainty, but there was another document in which the wakif had clarified by identifying the mosque that he meant out of the two. In view of this, the Supreme Court held that the Wakf was not invalid for uncertainty.
In Abdul Karim v. Rahimat Bai, a Muslim created a Wakf with the declaration that the usufruct should be used for the benefit of the descendants of the Prophet. The Wakf was held void for uncertainty as, the court observed, it was well nigh impossible to ascertain who the descendants of the Prophet were.
When the object of a Wakf is partly valid and partly invalid, then the Wakf may be valid as to the former and void as to the latter. In such case the property dedicated for invalid purpose will revert back to the wakif.
However, where no demarcation of property is made, i.e., it is not stated as to how much is to be spent for a valid purpose and how much for an invalid purpose, then the entire amount may be applied for the valid purpose.
Doctrine of Cypres:
It has been held that the English doctrine of cypres applies to wakif. Literally meaning “as near as possible”, the doctrine lays down that if a charitable intention has been expressed by the dedicator, a Wakf (or trust) will not be allowed to fail because the object specified by the settlor has failed; in such a case the income will be applied for the benefit of the poor or to objects as near as possible to the object that had failed. The doctrine applies only if the original Wakf is valid. A Wakf which is already void for uncertainty cannot be validated by the application of the doctrine.