What are the Essentials of a Valid Wakf under Hanafi Law?

According to Hanafi law, the following are the five essentials of a valid wakf:

1. Permanent dedication of property.

2. The wakif must be competent.

3. The wakif must be the owner of the property.

4. The object must be religious.

5. It must be unconditional.

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1. Permanent Dedication of Property:

The first requirement of a valid wakf is permanent dedication of the property to charitable, religious or pious purposes, as understood in Muslim law, and ownership in the property must be extinguished. A wakf, therefore, for a limited period, e.g., twenty years, is not valid. Property may be movable or immovable.

Thus, if a wakfnama contains a condition that in the case of mismanagement, the property should be divided amongst the heirs of the settlor, the dedication is non-permanent and the wakf is invalid. (Habib Ash raff v. Syed, 1933 144 I.C. 654)

So also, the wakf of a house standing on land which is leased for a fixed term would be invalid, as the dedication cannot be said to be of property of a permanent character. (Mst. Peeran v. Hafiz Mohammed. A.I.R. 1966 All. 201)

Shia Law:

According to the Shia law (which is discussed later), it is further necessary (i) that possession of the thing dedicated must be given to the Mutawalli; and (ii) that the settlor cannot reserve for himself a life-interest in the income or any portion thereof. In other words, the wakif must not eat out of the wakf.

2. The Wakif Must be Competent:

The dedicator should be a person, (i) professing Islam, (ii) of sound mind, and (iii) not a minor.

Thus, a widow and her sons made a dedication of their inheritance, some of the heirs are minors Is the Wakf valid? Yes, but partially. The Wakif, i.e., dedicator, must be a person who has attained majority and is of sound mind. Therefore, the wakf is valid to the extent of the shares of the widow and her sons who have attained majority. It is however, not valid as regards the shares of the sons who are minors.

3. The Wakif Must be the Owner of the Property:

The subject-matter of the wakf, i.e.. The property, whether movable or immovable, must belong to dedicator at the time of dedication.

A valid wakf may be made even where the property is subject to a lease or a mortgage.

So also, if the wakif has been put into possession of property, under a contract for the purchase thereof by him, a valid wakf can be made of such property, provided the sale is eventually completed. (Musammat Bismilla v. Mohammad Ali, A.I.R. 1927 Oudh, 162)

4. Object must be Religious:

The wakf must have an object which (i) must not fail, (ii) must be expressly set forth, and (iii) must be recognised by Muhammadan law, as religious, pious or charitable. This includes a wakf created in favour of the settlor’s family, children and descendants.

Purpose of a Wakf:

A wakf may be created for any purpose recognised by Muhammadan Law as religious, pious or charitable. Thus, the purpose must not be opposed to the general religious policy of Islam.

The following are examples of valid objects of a wakf:

(i) Hospitals, alms-houses, schools, universities, or public libraries;

(ii) Creation and upkeep of Mosques and maintenance of worship therein;

(iii) Prayers of the dead at the tomb of a saint or at the grave of a private person or the burning of lamps at a Mosque;

(iv) Support of the settlor’s family;

(v) Colleges, and provisions for professors to teach in colleges;

(vi) Assistance to poor Muslims, to enable them to perform the pilgrimage to Mecca;

(vii) Burning lamps in a mosque;

(viii) Reading the Koran in public places and private houses;

(ix) Payment of alms to fakirs;

(x) An Imambara.

Imambara:

An Imambara is not a place of public worship as is a mosque. It is an apartment in a private house, set apart for the performance of certain Mohurrum ceremonies, for the use of the owner and members of his family. As a matter of fact, strangers are ordinarily excluded from these ceremonies, though they may be admitted with the permission of the owner. An Imambara may be the subject of a valid wakf.

Doctrine of Cy-Pres:

When a clear charitable intention is expressed in an instrument of Wakf, it will not fail because the specified objects happen to fail; rather such an infirmity will be cured by the application of the doctrine of су-pres, and the income will be applied for the benefit of the poor or to objects as nearly as possible to the objects which failed.

Су-pres literally means “as nearly as possible”. The doctrine of cy­pres lays down that if the wishes of the donor or testator cannot be carried out literally, they will be carried out as nearly as possible in the way desired.

Thus, if a charitable trust is initially impossible or impracticable, or if it subsequently becomes so, the trust will not fail, and the Court will apply the property су-pres, i.e., apply it to some other charitable purpose, as nearly as possible resembling the original trust.

In a case decided in Pakistan, it was held that were a fund was collected with the object of establishing a Missionary University, but the funds were not sufficient for the purpose, the wakf did not fail just because its object was not achieved. (Abdul Hamid v. Fateh Muhammad, 1958 P Lah. 824)

However, the doctrine of су-pres is not applicable if the original wakf itself is not valid. Thus, a wakf that is void for uncertainty cannot be validated by applying this doctrine.

5. Unconditional:

The wakf must be unconditional, and must not be subject to any option.

Problem:

A Muslim wife conveys her property to her husband upon trust to maintain herself and her children out of the income, and to hand over the property to the children on their attaining majority, and in the event of her death without children, to devote the income to certain religious users. Is this a valid wakf?

Ans:

This is not a valid wakf, as it is contingent on the settlor’s death without leaving any issue. (Pathukutti v. Avathalakutti, (1883) I.L.R. 13 Mad. 66)