The family wakfs or wakfs for alal-aulad are primarily based on ijma, though a tradition of the Prophet is also cited in their favour. The Prophet is reported to have said, “When a Muslim bestows on his family and kindred, hoping for reward in the next world, it becomes alms, although he has not given to the poor, but to his family and children”.
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Writing after the Privy Council decision in Abdul Fata Md. v. Russomony Dhur Chowdhary (in which family wakfs were held void) with much fervour and zeal, Ameer Ali wrote thus about family wakfs: “From the promulgation of Islam upto the present day there has been an absolute consensus of opinion regarding the validity of wakfs for one’s children, kindred and neighbours. Practical lawyers, experienced judges, high officers of every sect and school under Mussalman sovereigns are all in unison on this point.
There are minor differences, viz., whether a wakf can be created for one’s self, whether the unfailing object should be designated, whether the property should be partitioned or not, whether consignment is necessary or not; but so far as the validity of a wakf constituting one’s family or children, the recipients of the benefaction, in whole or in part, is concerned there is absolutely no difference.
A wakf is a permanent benefaction for the good of God’s creatures, the wakif may bestow the usufruct, but not the property, upon whomsoever he chooses and in whatever manner he likes, only it must endure forever.
If he bestows the usufruct, in the first instance upon those whose maintenance is obligatory on him, or if he gives it to his descendants so long as they exist to prevent their falling into indigence, it is a pious act-more pious, according to the Prophet, than giving to the general body of the poor.
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He laid down one’s family and descendants are fitting objects of charity, and that to bestow on them and to provide for their future subsistence is more pious and obtains greater reward than to bestow on the indigent strangers.
And this is insisted upon so strongly that when a wakf is made for the indigent or the poor generally, the proceed of the endowment is applied to relieve the wants of the endower’s children and descendants and kindred in the first place.
When a wakf is created constituting the family or descendants of the wakf [sic. wakif], the recipients of the charity so long as they exist, the poor are expressly or impliedly brought in not for the purpose of making the wakf charitable (for the support of the family and descendants is a part and parcel of the charitable purpose for which the dedication is made), but simply to impart permanency to the endowment. When the wakifs descendants fail, it must become to the poor. So it is an enduring benefaction—an act of idabat’.
In 1894 the Privy Council in Abul Fata Md. v. Russomony Dhur Chowdhary, held the family wakf invalid. Their Lordships of the Privy Council gave the reason thus: “It would be doing wrong to the great law giver (the Prophet) to suppose that he is commending gifts for which the donor exercises no self-denial; in which he takes back with one hand what he appears to put away with the other; which are in form the centre of attraction for accumulations of income and further accessions of family property; which carefully protect so-called managers for being called to account…. and which do not seek the benefit of others beyond the use of empty words”.
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The family wakf, in substance, is an institution under which a Muslim can provide for himself, his family, his descendants children and kindred for an indefinite period to which there cannot be an end.
The Privy Council held such wakfs invalid since they go against the public policy of not allowing a person to tie up the corpus of this property or perpetuity and reserve the income of it for his children and descendants indefinitely.
But the decisions of Abul Fata’s case caused great dissatisfaction in the Muslim community dominated as it was then by feudal elements, and the Muslims launched a powerful agitation against the decision, and eventually obtained from the legislature the Mussalman Wakf Validating Act, 1913 which validated family wakfs. By an amendment of 1930 to the Act of 1913, the family wakfs were validated retrospectively.
Before the decision in Abu Fata’s case, the family wakfs of two kinds existed: (i) where the wakf was exclusively for the benefit of the settler, his children, descendants and kindred in perpetuity.
Such wakfs have been invalid in Muslim law from the very beginning and continue to be invalid even today. For instance, where under a wakf-nama a settler settles property for the benefit of his wife, daughter and descendant of the daughter. In this wakf since no benefit is given to charity, the wakf is void.
Such a wakf is not valid even after the coming into force of the Wakf Validating Act, 1913 (ii) A wakf for the benefit of the settler, his children and descendants as well as for charity. Such wakfs fall under two categories: (a) a wakf where there is substantial dedication of property for charitable purposes at some period of time or other, howsoever remote it may be. Prior to 1913, such wakfs were valid, (b) A wakf which was for the aggrandisement of the family in which the gift for charity was illusory; either on account of amount being too small, or on account of its uncertainty and remoteness, such wakfs were invalid before 1913.
In Abdul Fata’s case, the wakif directed that the income of the wakf property was to be applied at the first instance for the benefit of the settler’s descendants from generation to generation and the wakf in favour of the charity was not to come into existence until after the extinction of the whole line of the settler’s descendants.
The Privy Council held that since dedication for charity was illusory (since the sole object of the wakf was the settlement of the property in perpetuity in favour of settler’s descendants), the wakf was invalid. The decision in Abdul Fata’s case did not affect the wakfs falling under category (i), and they continue to be valid.
It shall be lawful for any person professing the Mussalman faith to create a wakf which in all respects is in accordance with the provisions of Mussalman law, for the following among other purposes:
(a) For the maintenance and support, wholly or partially, of his family, children or descendants, and
(b) Where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his life time, or for the payment of his debts out of the rents and profits of the property dedicated:
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any purpose recognized by the Mussalman law as a religious, pious or charitable purposes of a permanent character.
Section 4 of the Act runs:
No such wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purposes of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf.
Thus, under the Act of 1913, the requirement for the creating of a family wakf are that : (a) it may be created wholly or partially for the family, children and descendants of the settler, and (b) ultimate benefit must go, expressly or impliedly, to the poor or a religious, pious or charitable purpose.
Wakf for family:
The Wakf Validating Act, 1913, does not define “family”. It is not clear what precisely it means; it has been given a fairly wide interpretation. Thus, it has been held that a family includes a daughter-in-law and an adopted son.
Its ambit is wide and it is not confined to those people who are dependent for their maintenance and support on the wakf. The son of a half brother, the son and grandson of a paternal uncle and the son of a half sister are included within the term “family” for the purpose of creation of a family wakf.
In Abdul Qavi v. Asraf Ali, the Allahabad High Court observed that the term “family” has to be given wide and not restricted interpretation, and a person may belong to the family, either because he is from a common progenitor, or if he is living under the same roof, and is being supported and maintained by the settlor.
Thus, a stepdaughter or wakifs sister brought up and maintained by the wakif as a member of the family, so is the provision for the maintenance of settlor’s nephew and his descendants generation after generation is valid.
When a wakf deed provided that every heir of the settlor was entitled to be benefitted by the wakf and also heirs of descendants, it was held that heirs of the pre-deceased son were also entitled to be beneficiary.
It is not necessary that a family wakf must be created for all members of the family. It may be created for some members, males or females, to the exclusion of others, generation after generation. A wakf can be made specifically to deprive an heir of his inheritance, and, for that reason, it cannot be held void.
In Mohiuddin Ahmed v. Sofia Khatun, the Calcutta High Court opined that if a wakf is to take effect on the extinction of the heirs how-low-soever, then the wakf will be invalid, though it will be valid if charity is postponed till after the extinction of the family, children and descendants.
In Md. Afzal v. Din Md., the Lahore High Court opined that if inter alia, a life interest is given to a stranger such a provision is void, though wakf is valid, but the Privy Council has overruled this view. However, a wakf in favour of an utter stranger is void.
Ameer Ali expressed the view that a provision for wages and provisions of servants and dependants is valid. This view was approved by the Allahabad High Court in Ghulam Md. v. Ghulam Hussain, In this case, on appeal the Privy Council observed that a wakf for slaves and dependants is not within the terms of the Wakf Validating Act, 1913.
The Oudh Chief Court in Akhtar Panu v. Kanhiya Lai held the view that a wakf providing for maintenance of servants is valid. In Hashim Ali v. Hamidi Beagum, the Calcutta High Court held that where the main purpose of the wakf was charity, the wakf will not be invalid because of i the provision of small pension in favour of three faithful servants. Under the Shia law a wakf for the repair of wakif s property is void.
Ultimate benefit for charity:
A family wakf is valid only if the ultimate benefrt is given to charity. Proviso to S. 3 of the Mussalman Wakf Validating Act, 1913 lays down that the ultimate benefit should be given expressly or impliedly “for the poor or other religious, pious or charitable purpose of a permanent nature”.
West J., Farran, J., and Ameer Ali, J in cases coming before the Act of 1913 observed that the gift to charity may be provided after the extinction of the line of descendants of the wakif.
West J. put it thus: “If the condition of an ultimate dedication to pious and unfailing purposes be satisfied, wakf is not made invalid by an intermediate settlement on the founder’s children and their descendants. The benefits these successively take may constitute perpetuity.
In the sense of the English law: but according to the Mohommedan Law, that does not vitiate the settlement, provided the ultimate charitable object be clearly designated”. It was this view which was upset by the Privy Council in Abdul Fata’s case; and it is this view which has now been restored by the Act of 1913.
The Hyderabad High Court holds the view that the dedication to the poor must be bona fide.
The Act of 1913 does not validate a wakf for alal-aulad which is void being violative of a statute constitutes a code in itself.
Thus, in Md. Ismail v. Sabir Ali, a wakif made a family wakf for the benefit of himself and his descendants in respect of his Talukdari property. The Talukdari property is governed by the Oudh Estates Act, 1899, which contains a rule against perpetuity. The Supreme Court held the wakf void.
Although it is no longer necessary that there should be a concurrent gift to charity, yet the question arises as to whether is it necessary that the particular religious, pious or charitable purpose must be specified?
The Lahore High Court in Punjab & Sind Bank v. Anjuman Himayat Islam answered the question affirmatively, but in Beli Ramv. Md. Afzal, the Privy Council said that even if it is stated that the ultimate benefit will go to “religious, pious or charitable purposes” the wakf will be valid.
In Abdul Rauf v. Shamshul Haq, under a wakf deed the wakif was to remain in possession of the wakf property as the first mutawalli for his life time, and to utilize its income for his own needs and the maintenance of his family and thereafter his wife was to remain in possession as mutawalli and likewise to utilize the income of the properly.
After her death the mutawalliship was to devolve on certain persons who did not belong to the family of the wakif and thereafter, on their descendants generation after generation. But in case their line became extinct the entire income was to be spent for the upkeep of a Madarsa. Gangeshwar Prasad, J. said that under the Act of 1913 the requisite condition for the validity of a wakf for alal-aulad is that its ultimate benefit should be reserved for the poor, or for any other religious, pious or charitable object of a permanent nature, and not that its benefit should be substantially for any such object.
The benefaction may be so negligible or so remote in point of time that the purpose of the wakf may not appear to be substantially devoting the income of the dedicated property to any of the aforesaid objects; but that would not impair the validity of the wakf, if any such object is to be the ultimate recipient of the benefaction. His Lordship then observed: “The reservation of ultimate benefit for any such object imparts to a disposition of property character of a wakf under the Act and exercises a validating influence upon the disposition, inspite of the remoteness of the benefit or its problematical nature”.
In the case of a family wakf also the property vests in God Almighty and not in the wakif or the beneficiaries. A family wakf is meritorious and pious, but it cannot be regarded as a wakf for religious or charitable purpose.
The Mussalman Wakf Validating Act lays down that the ultimate benefit to charity may be by an implied gift. What does the expression “implied gift” means? Abu Hanifa and Muhammad held the view that wakf will not be valid if the ultimate benefit of the poor is not stated expressly.
On the other hand, Abu Yusuf held the view that such benefit may be reserved impliedly. The mere declaration that the wakif gives the property to X in wakf is enough to imply a wakf. The Fatwai Alamgiri is to the same effect.
Does the Act of 1913 give effect to Abu Yusufs view? The Allahabad and Calcutta High Courts and the Chief Court of Oudh have answered the question negatively. In Ghulam Md. v. Ghulam Hussain, the Privy Council also said that by the mere use of the word “wakf, no wakf can be implied.
But an implied gift to charity may be implied from the intention of the settlor as expressed in the wakf deed and the surrounding circumstances. In Thanga Mayil v. Pappa, the wakif created a wakf for the maintenance of his children and descendant and concurrently for charity. The Madras High Court held that the ultimate benefit to charity may be implied on the failure of descendants. Similarly, the Baqa Ullah v. Gulam Siddique, a wakf was implied from the intention of the settlor as expressed, and from the facts as stated, in the deed.
Some Muslim opinion is now turning against the family wakfs. In the words of Danial Latifi: “Modern Muslim jurists tend to the view that the enactment of this Act in 1913 was a physical victory for the Muslims. Its social consequences were devastating.
It blocked any initiative by the Muslim upper class in the direction of industry. It perpetuated a pathetic class of pensioners devoid of economic initiative who were bound in the long run to become a drag on the community.
Distressed by these evils, modern jurists favour repeal of the Act of 1913 restoring thereby the law as it stood declared by the Privy Council in Abdul Fata’s case in 1894. It may be noted that the said decision is already, and has ever since 1894, the law of the Muslims in Kenya.
It is submitted that in view of the amendments introduced into the law of family wakfs in Egypt, Syria, Tunisia and Lebanon, the Muslims should review their attitude and adopt a realistic approach”.