Introduction
The origin of wakfs is traced to an utterance of the Prophet. However, the rules relating to wakfs were developed later on by ijma. Literally, the word wakf in its primitive sense means detention.
Abu Hanifa defined wakf as the ” tying up of the substance of a property in the ownership of the wakf and the devotion of usufruct, amounting to an aryia, or commodate loan, for some charitable purposes.”
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This means that the ownership in wakf property continued to be vested in the owner and its usufruct was spent for the charitable or pious purpose.
The definition of wakf has three essential elements:
- The ownership of the founder is extinguish
- The property vest in the ownership of God perpetually and irrevocably.
- The usufruct of the property is used for the benefit of mankind.
The wakf act 1913, section 2 defines wakf thus ” wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by Mussalman law as a religious, pious or charitable.”
The purpose of wakf must be religious, pious or charitable, the dedication of property must be permanent, and the usufruct must be utilized for the good of mankind.
Characteristic features of a wakf
- Property vests in God:- the outstanding feature of wakf is that the ownership of property dedicated for the wakf vests in God. The tying up of property in the ownership of God, the almighty, and devotion of the profits for the benefit of human beings. Once the dedication of property is made to the wakf, the ownership of wakif is extinguished and it is transferred to God.
- The creation of a wakf is essentially based on a legal fiction, the fiction, being that the property vests in God in perpetuity, but income from the property is permitted to be utilized for certain specified purposes, which under the Muslim Law are recognised as pious or religious.
- Wakf must be permanent:- a Muslim wakf must be created for an unlimited period. Wakfs for limited periods are unknown to and are not recognised by Muslim Law. In short, perpetuity is an essential and outstanding feature of the wakf .
- Wakf must be irrevocable:- the irrevocability is another characteristic feature of a wakf. Once constituted validly, a wakf cannot be revoked. If in wakf nama a condition is stipulated that the wakif reserves the right of revoking wakf to himself, or that the wakf will stand revoked on the happening of any event, then such a wakf is void.
- Wakf properties are inalienable:- it is natural corollary to the doctrine of permanency of wakfs that once the properties are dedicated to God, they cannot be alienated. However this rule is not absolute and in certain circumstances, it is permissible that mutawalli may alienate the wakf properties.
Conclusion
Thus a wakf is the permanent dedication of property the ownership of which vests in God and the benefit arising out of it is used for the betterment and benefit of mankind.
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The usufruct of the corpus is assigned to the benefit of mankind.
Once a wakf is done it cannot be undone it is irrevocable if it can be revoked it is void.
