1. As to Completion:
Under the Sunni law, a wakf inter vivos is completed by a mere declaration of endowment by the owner, whereas, under the Shia law, a wakf inter vivos cannot be created by a mere declaration.
There must also be delivery of possession. If the settlor appoints himself as mutawalli, he must declare that he intends to hold the property thereafter as a trustee, and not as an owner.
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2. As to Reservation of any Interest in Property:
ADVERTISEMENTS:
Under the Sunni law, the settlor (i) may provide for his maintenance out of the income of the wakf property, or (ii) may reserve the whole income for himself for his life, (iii) may provide for the payment of his own debts out of the income of the wakf property.
Under the Shia law, the settlor cannot (i) reserve for himself a life- interest in the income (or any portion thereof) of the wakf property, or (ii) provide for the payment of his personal debts out of the income of the wakf property. In short, a wakif should not eat out of the wakf.
Problem:
X, a Hanafi Muslim, executed a deed of wakf, by which he directs his debts to be paid out of the rents and profits of the wakf property. Is the wakf valid? What would be the position if X were a Shia Muslim?
Ans:
Under S. 3 of the Mussalman Wakf Validating Act, 1913, the above wakf is perfectly valid. Under Shia law, however, this wakf would not be valid, as the wakif cannot, under Shia law, provide for payment of his debts out of the wakf property.
Inherent Right of Muslims to Pray in Mosques:
ADVERTISEMENTS:
When a mosque is built and consecrated for public worship, it ceases to be the property of the builder, and vests in God in such a manner as subjects it to the rules of Divine Property. The appropriator’s right in it is extinguished, and it becomes property of God by the advantage of it resulting to His creatures.
A mosque does not belong to a particular community; if it is reserved for the people of a particular sect, the reservation is void, and persons not belonging to that sect are also entitled to worship in it. Every Muslim has a legal right to enter it and offer prayers according to his tenets, so long as the form of worship is strictly in conformity with the recognised rules of Muhammadan law.
Thus, in Jivan Khan v. Habib, (1933, I.L.R. 14 Lah. 518), several Sunni Muslims collected a fund amongst themselves and built a mosque, reserving it solely for benefit of Sunni Muslims and to the exclusion of Shias. Thereafter, one Shia attempted to enter into that mosque to offer prayers according to the tenets of a Shia sect, but strictly in conformity with Muslim law. It was held that he had the right to do so.