MUTAWALLI, ITS POWERS AND FUNCTIONS Page |1

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

FAMILY LAWII PROJECT

MUTAWALLI, ITS
POWERS AND
FUNCTIONS
NAME : VIKALP BHARDWAJ
ROLL NO : 1446
SEMESTER : 4th BBA.LLB
FACULTY : MR. RAVI RANJAN (FAMILY LAW-II)

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TABLE OF CONTENTS
PAGE
S.No PARTICULARS

3
1. ACKNOWLEDGEMENT
2. RESEARCH METHODOLOGY 4

3. INTRODUCTION 5-6

4. FACTS, ISSUES AND ORDER 7-13

5. CRUELTY : A GROUND FOR DIVORCE 14-20

6. JUDICIAL SEPARATION 21-22

7. CASE LAWS 23-27

8. CONCLUSION 28

9. BIBLIOGRAPHY 29

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ACKNOWLEDGEMENT

I take this opportunity to express my humble gratitude and personal regards to faculty of
FAMILY LAW-II for inspiring me and guiding me during the course of this project work and
also for his cooperation and guidance from time to time during the course of this project work on
the topic

The Present Project Report is attempted to explain for the benefit of the general readers. Dealing
with this topic in a material form has naturally involved a great deal of compression and
omission of many matters of interest. I hope that my selection of material will give a fair outline
of the general picture.

MUTAWALLI, ITS POWERS AND FUNCTIONS

I EXPRESS MY GRATITUDE TO THE FACULTY OF, FAMILY LAW-II, MR. RAVI

RANJAN SIR FOR THE CONCEPTS GIVEN BY HIM IN THE SUBJECT WHICH HAS
BEEN THE BASE FOR THIS SMALL PIECE OF WORK.

THANK YOU,

VIKALP BHARDWAJ

ROLL NO. 1446

4th SEMESTER

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RESEARCH METHODOLOGY

AIMS AND OBJECTIVES

The aim of the project is to present a detailed study of the case of MUTAWALLI, ITS POWERS
AND FUNCTIONS

RESEARCH PLAN
The researcher has followed both Doctrinal and Non-Doctrinal method.

SOURCES OF DATA
The following secondary sources of data have been used in the project-

Articles/Journals/Law Reports

Books

Websites

MODE OF CITATION
The method of writing followed in the course of this research project is primarily analytical. The
researcher has followed Uniform method of citation throughout the course of this research
project.

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INTRODUCTION
Mutawalli is a manager of the waqf-property. After dedication, ownership of the property is
vested in God and becomes His property. There must be some person or a human agency who
could look after the dedicated property on behalf of God.
The person, who supervises or takes over the management of a waqf, is called the mutawalli. He
is superintendent of the property. He also distributes the benefits of the property according to the
directions laid down in the waqf. A Mutawalli has no beneficial interest in the property. He is
merely a servant of God, managing the property for the good of His creatures.

Therefore, besides legal duties, a mutawalli has also the religious and moral obligation to take
care of the waqf- property. Any mismanagement or negligence on his part may amount
disrespect towards God. The office of a mutawalli is similar to that of a trustee, but his powers
and functions are different.

The Masaajid of Allah are only to be maintained by those who believe in Allah and the
Last Day and establish prayer and give Zakaah and do not fear except Allah, for it is
expected that those will be of the (rightly) guided. QURAN

Mutwalli job is to see that the usufructs of the property are being utilized for valid purposes as
desired by the wakif. He has to see that the intended beneficiaries are indeed getting the benefits.
Thus he also has a limited control over the usufructs. While these individuals were the ones who
actually preserved the magnificent Islamic heritage through the centuries and enabled many
waqfs to survive for centuries, it was also they who ended up being accused ruthlessly and held
responsible for the demise of the system. It can be argued that all the major changes in the
administration of the waqf system throughout history were undertaken in order to put these
trustees under stricter control and end their opportunities for misuse and embezzlement.
Sometimes accusations against them were justified, after all the trustees were only humans, but
sometimes they were simply used as scapegoats and served the more sinister schemes of the
state.

https://www.islamicbanker.com/education/mutawalli

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WAQF
A waqf (Arabic: )also known as habous or mortmain property, is an inalienable charitable
endowment under Islamic law, which typically involves donating a building, plot of land or other
assets for Muslim religious or charitable purposes with no intention of reclaiming the assets.[1]
The donated assets may be held by a charitable trust. The person making such dedication is
known as waqif, a donor. In Ottoman Turkish law, and later under the British Mandate of
Palestine, the waqf was defined as usufruct State land (or property) of which the State revenues
are assured to pious foundations. [2] Although based on several hadiths and presenting elements
similar to practices from pre-Islamic cultures, it seems that the specific full-fledged Islamic legal
form of endowment called waqf dates from the 9th century CE (see paragraph "History and
location").The term waqf literally means "confinement and prohibition" or causing a thing to
stop or stand still. The legal meaning of Waqf according to Imam Abu Hanifa, is the detention of
a specific thing in the ownership of waqf and the devoting of its profit or products "in charity of
poors or other good objects".

Imam Abu Yusuf and Muhammad say: Waqf signifies the extinction of the waqif's ownership in
the thing dedicated and detention of all the thing in the implied ownership of God, in such a
manner that its profits may revert to or be applied "for the benefit of Mankind".[citation needed]

Bahaeddin Yediyldz defines the waqf as a system which comprises three elements: hayrat,
akarat and waqf. Hayrat, the plural form of hayr, means goodnesses and refers to the
motivational factor behind vakf organization; akarat refers to corpus and literally means real
estates implying revenue-generating sources, such as markets (bedestens, arastas, hans, etc.),
land, baths; and waqf, in its narrow sense, is the institution(s) providing services as committed in
the vakf deed such as madrasas, public kitchens (imarets), karwansarays, mosques, libraries, etc.
There is no direct injunction of the Qur'an regarding Waqf, which is derived from a number of
hadiths (traditions of Muhammad). One says, "Ibn Umar reported, Umar Ibn Al-Khattab got land
in Khaybar, so he came to the prophet Muhammad and asked him to advise him about it. The
Prophet said, 'If you like, make the property inalienable and give the profit from it to charity.'" It
goes on to say that Umar gave it away as alms, that the land itself would not be sold, inherited or
donated. He gave it away for the poor, the relatives, the slaves, the jihad, the travelers and the
guests. And it will not be held against him who administers it if he consumes some of its yield in
an appropriate manner or feeds a friend who does not enrich himself by means of it.

In another hadith, Muhammad said, "When a man dies, only three deeds will survive him:
continuing alms, profitable knowledge and a child praying for him."

1. http://www.awqafsa.org.za/what-is-waqf/
2. chapter 8, section 1, British Mandate Government of Palestine: Jerusalem 1946, pp. 226228

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Who Can Appoint Mutawalli? [3]

A mutawalli may be appointed by any one of the following:

1. By founder of the waqf,

2. By executor of the founder,

3. By a mutawalli on his death-bed,

4. By the court, and

5. By congregation.

The above-mentioned list of persons entitled to appoint mutawalli is in the order of priority.
Primarily, the right to appoint a mutawalli is given to the waqif himself. Failing him, mutawalli
may be appointed by the executor of the waqif if the waqif has no executor, the existing
mutawalli may appoint his successor provided he is on his death-bed.

Failing this, the court has an authority to appoint the mutawalli. Sometimes a mutawalli is
appointed also by congregation i.e. by assembly of religious people. It is significant to note that
under Shia law, the founder himself must appoint a mutawalli. Without appointment of
mutawalli, the waqf under Shia law is void.

(i) Appointment by Founder:

The founder of a waqf has absolute power to appoint a mutawalli. He may appoint himself to be
the first mutawalli of the waqf constituted by him. The founder may appoint any other person to
be the mutawalli. He is also authorised to lay down the scheme according to which the
subsequent mutawallis are to be appointed in future.

The founder may specify the names of persons who are to act as mutawallis one after the other.
He may also provide for the selection of certain persons .from community, having specific
qualifications, which are to act as mutawallis. The founder may also give to an existing
mutawalli, the authority to appoint next mutawalli. The founder of waqf may make the office of
mutawalliship hereditary.

In such a case, after the death of first mutawalli the office would be held by his descendants from
generation to generation. It may be stated therefore, that during his life a waqif has full authority
in the matter of appointment of mutawalli. In Ali Ashgar v. Fariduddin, the founder of a waqf
appointed himself as the first mutawalli.

3. http://hanumant.com/Wakf.html

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The waqf-deed provided that after his death A would act as mutawalli. For some reason, the
founder resigned from the office of first mutawalliship and in his place appointed as
mutawalli. A contested the appointment of B. The Allahabad High Court observed that during
his life the founder was competent to appoint any person of his choice as mutawalli.

Accordingly, the court held that after his resignation, the founder had lawfully appointed as
mutawalli, because that office fell vacant while the founder was still alive. The court further held
that A would be entitled to hold the office only after the death of the founder.

(ii) Appointment by Executor:

If a waqif dies without appointing any mutawalli and the waqf-deed is silent about the
appointment to this post, then the executor of the waqif is entitled to appoint a mutawalli. Thus,
where this office falls vacant either because of death of ail existing mutawalli or, because he has
refused to hold that office or, because he has been removed by a court and, it is not clear as to
how a mutawalli is to be appointed, then the executor has a right to appoint any person as
mutawalli. In this situation, the founders executor possesses the same powers as the founder
himself, had he been alive. However, this is possible only where founder has an executor.

(iii) Appointment by Mutawalli on Death-bed:

Generally an existing mutawalli has no right to appoint his successor. As to who would be the
next mutawalli after him, is to be determined by the waqf-deed or, by the executor, if any, or by
the court of law. But, where an existing mutawalli finds that there is no possibility of
appointment of his successor by any of the above-mentioned methods and he is now already on
his death-bed, then he himself can appoint his successor.

A mutawalli can appoint his successor subject to two conditions (i) that he is on his death-bed
and there is no chance of his survival and, (ii) that the office of Mutawalli would remain vacant
if he does not appoint his successor before his death. A dying mutawalli must appoint his
successor ex necessitate rei (i.e. because of urgent necessity).

It may be noted that appointment of a mutawalli by existing mutawalli in his death-illness, is an

emergency appointment, therefore, when he is in health he cannot appoint his successor.
Similarly, where the office of mutawalli is hereditary under local custom, the mutawalli on
death-bed has no right to appoint his successor.1

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(iv) Appointment by Court:

If no mutawalli could be appointed by any of the methods referred above, the court has to
appoint the mutawalli. Court here means the District Court within the jurisdiction of which waqf
property is situated. Under Muslim law, the court has got wide powers in respect of supervision
and management of a waqf. This power includes also the authority to appoint a suitable
mutawalli for carrying out its objects.

The primary duty of the court of law is to see that the interests of the beneficiaries for whom the
waqf has been created, is reasonably safeguarded. Therefore, if it finds that the existing
mutawalli is not discharging his duties properly it may remove him and appoint another
mutawalli at its discretion. However, while making the appointment of a mutawalli, the court
must take into account the following principles:

(a) As far as possible, the court should not disregard the directions of the founder. But, where the
court finds that appointment by directions of the founder may be against the interests of the
beneficiaries, it may appoint any person of his choice.

(b) So long as there is a qualified member of the founders family, the court should not appoint a
stranger.

(c) In the case of any contest between a lineal descendant of the founder and a person who is not
his lineal descendant, the court is not bound to appoint the lineal descendant.

(v) Appointment by Congregation:

Sometimes, a mutawalli is appointed by a congregation. Congregation means assembly of

specific group of persons. An assembly of the persons of a particular locality, having beneficial
interest in the waqf-property, is also authorised to appoint the mutawalli. But mutawallis
appointment by this method is possible only in the case of a local-waqf such as a mosque or, a
graveyard for the members of a particular locality.

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Who May Be Appointed as a Mutawalli?

Any person who is,

(a) of sound mind and,

(b) has attained the age of majority, is qualified to be appointed as a mutawalli.

Under Muslim law, the general rule is that soundness of mind and majority are the only
qualifications for being a competent mutawalli. Any person, whether male or female, Muslim or
non-Muslim, may be appointed as a mutawalli.

Minor Mutawalli:

Generally a minor cannot be appointed as mutawalli. But, where the office of mutawalli is
hereditary and, after the death of last mutawalli the person entitled to succeed to that office is a
minor, then the office may be held by that minor.

The office of mutawalli is hereditary in following two cases: (a) Where the founder has laid
down the line of succession in the waqf-deed and; (b) Where the succession to this office is
allowed by a local custom.

Females and Non-Muslim Mutawalli:

Females and the non-Muslims are legally qualified to be appointed as a mutawalli. A mutawalli
is primarily concerned with the superintendence or management of the waqf- property.
Supervision and management is a non-religious activity. Therefore, a female or a non-Muslim is
not disqualified for discharging the functions of mutawalli.

But, where the mutawalli is required to discharge also some religious functions, a female or a
non- Muslim cannot act as mutawalli. Accordingly, in the following cases, a female and a non-
Muslim cannot be appointed as mutawalli:

(i) Where the mutawalli is to act as Sajjadnashin or a spiritual head.

(ii) Where the mutawalli is to act as imam, i.e. where he is required to lead the assembly of
people for religious prayers.

(iii) Where the mutawalli is to act as a Mulla. A land assigned to a Mulla as remuneration of his
office, cannot be succeeded by any female successor.

(iv) Where the mutawalli is required to give religious preaching i.e. where he has to act as
Khatib.

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(v) Where the mutawalli is required to act as mujavar of a Durgah.

In the above-mentioned cases, as the nature of the functions to be discharged are religious, the
mutawalli must be a male and a Muslim. But, where the functions are not purely religious, a
female is not disqualified to be appointed as mutawalli. Thus, in the following instances a female
is competent to be appointed as a mutawalli.

(i) Where the office of mutawalli is purely secular in nature and no religious performance is
required to be done under the waqf, a female can be appointed as mutawalli.

(ii) A woman can be appointed as head mujavar of Astan (a platform where Muharram
ceremonies are performed annually). The religious duties in some cases may be delegated by a
female mutawalli to any male Muslim. It has been held that if certain religious functions were
such as could be performed by a proxy, the woman may hold the office of mujavar.

(iii) Similarly, it has been held that a woman in the Nellore District is not disqualified to hold the
office of Khatiba.

Note:

In Syed Mohamed Ghouse v. Sayabiran Sahib, the Madras High Court has held that where
a court of law has to appoint any mutawalli, it should give preference to a male over a
female even though the functions to be discharged are non-religious.

It was further observed that Muslim females generally live in seclusion and avoid public
appearance, therefore, where a court has direction to appoint a mutawalli; it would give
preference to a male irrespective of the nature of duties to be performed by such mutawalli.

Remuneration of Mutawalli:

A mutawalli is entitled to get some remuneration in return of the services discharged by him.
Generally, the founder himself provides for the remuneration of mutawalli. The founder may
provide a fixed amount to be paid periodically to the mutawalli.

He may also provide that instead of any fixed sum, he would get the residue of the benefits of the
waqf-property. In such a case, the remuneration is not a fix sum. After distribution of the income
of waqf-property and after meeting the necessary expenditure in its maintenance etc. the
remaining income is given to the mutawalli as his remuneration.

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If the founder has not made any provision for remuneration, the mutawalli may work without any
remuneration. But, if he wants to get some allowances, he may make application to the court to
fix some remuneration for him.

The court may fix any amount taking into account the work-load of the mutawalli and the
income of the property. But, the remuneration fixed by the court cannot exceed one-tenth of the
income of waqf- property.

In All India Imam Organization v. Union of India, the Supreme Court held that the Imam who
looks after the religious activities and offers prayers is entitled to reasonable emoluments even in
the absence of statutory provisions.

POWERS AND ITS FUNCTIONS

The mutawalli is manager of the waqf-property. His primary duty is to preserve the property like
his own, but to manage and spend it like a servant of God. As discussed earlier, a mutawalli is
not owner of the waqf-property, the property vests in God, not in him. Although his functions are
similar to that of a trustee under the Indian Trust Act, 1882 yet, he is not a trustee in its technical
sense. Unlike a trustee, the property does not vest in mutawalli.

The mutawalli simply holds the office as manager of the property. But, he is not allowed to
manage the property at his own choice. He has to administer the property strictly according to
the objects and directions laid down by the founder.

He has no right to spend the benefits of waqf for purposes which may be religious or charitable
according to him but are not specified as objects of the waqf. For example, a mutawalli has no
right to construct a school building on the lands attached to mosque of which he is the mutawalli.

Mutawalliship Non-Transferable:

A Mutawalli has no power to transfer his office to any other person. His office is not transferable
during his life. The office of mutawalliship (Tawliyat) is created on the basis of certain personal
qualifications; therefore, it would be against the nature of this office to allow a mutawalli to
alienate his assignment to some other person. Mutawalliship cannot be regarded as a property.
As this office is not any property, it cannot be subject of any transfer.

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He is also not empowered to appoint any co- mutawalli to share his responsibilities. But, if the
founder has given the power of transferring his office, he can lawfully transfer his assignment to
another person.

Similarly, with an authority from the founder a mutawalli can appoint co-mutawallis. However,
in the absence of any express prohibition by founder, the mutawalli has a right to appoint his
deputy or assistants to help him in the management of the dedicated property.

A mutawalli has no right to appoint any official or servant against any express direction by the
founder. Where such officials or servants have already been appointed by the founder, the
mutawalli has no power to make any change in those appointments.

Moreover, the mutawalli has no right to make any changes in the salaries and allowances of the
officials who have already been appointed by the founder. This power is vested in the court of
law; the mutawalli can neither remove those officials nor increase their allowances where it has
already been fixed by the founder.

Possessory Right:

In respect of the waqf-property, the mutawalli has only a possessory right. But, his right to
possess the property is perfect and absolute against all other persons. The possession of a
mutawalli can never be regarded as an adverse possession against the founder of the waqf.
Therefore, if a mutawalli has been dispossessed by the founder or any other person, he is entitled
to maintain an action in a court of law for getting back his possession.

Power of Sale and Mortgage:

A mutawalli is not owner of the waqf-property. Therefore, as a general rule, he has no right to
transfer the property by sale, exchange, gift, or mortgage. However, a mutawalli can transfer the
waqf-property in following situations:

(a) Where the founder has expressly authorised the mutawalli to sell, exchange etc., or mortgage
the property, or

(b) Where, the mutawalli has taken a prior permission of a court of law for transferring the
property.

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In other words, where a waqf-deed has not authorised the mutawalli for any transfer, he cannot
sell or mortgage the property without permission of the court. If a mutawalli finds that he must
sell or mortgage some of the properties of waqf because of an imminent necessity, he may make
an application to the court for giving him the required authority.

If the court realises the urgency, it may grant the permission for transfer. Where the court finds
no justification for such transfer, it may refuse to give permission. For getting the permission
from the court, a mutawalli need not file any regular suit; merely an application is sufficient.

However, the transfer of waqf-property by a mutawalli without prior permission of the court is
not void ab-initio. If the transfer is for the benefit of the waqf ox is urgently required in the given
circumstances, the mutawalli may alienate the property first and thereafter get the permission.

The court of law is competent to give the permission retrospectively. Accordingly, in many cases
where the court felt that mortgage of the property was urgently needed, it gave the permission
afterwards and the mortgages were held valid.

Power to grant Lease:

Lease is a transfer of the right of enjoyment of an immovable property on rent. The mutawalli
has power to grant leases of the waqf-property. But, his power is limited as regards the period of
lease. In the case of a tenement i.e., residential place, he can grant lease only up to one year.

In the case of agricultural lands, he can grant lease only up to three years. In other words, the
mutawalli has right to grant lease of the waqf-property for a maximum term of one year in case
of houses ; and, for a maximum period of three years in the case of agricultural lands.

For granting leases for longer durations, there must either be (i) authority in the waqf-deed or (ii)
prior permission of the court. Thus, where the deed itself gives to a mutawalli the power to grant
lease for a period exceeding one year or three years, as the case may be, he can grant leases for
longer durations.

In the absence of any such authority from the waqf-deed, the mutawalli will have to take prior
permission of the court. The court is competent to give permission to a mutawalli for leases of
longer terms even if there is an express prohibition in the deed for such leases.

That is to say, even if the waqf-deed specially provides that the waqf-property cannot be given
on lease for more than one year, the court may, in the interest of the waqf, authorise a mutawalli
to grant lease for longer period.

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Moreover, unauthorised leases by mutawalli may be approved retrospectively by the court.

While giving permission for longer periods or while approving unauthorised leases
retrospectively, the courts are required to take into account: (a) the interest of the waqf or, (b) the
interest of its beneficiaries or, (c) any legal necessity for the transaction.

Thus, a court of law is not only competent to give permission for leases of longer periods against
any express prohibition in the deed, but it is also competent to approve such leases without any
prior permission. An unauthorised lease is not void. It is simply voidable. Therefore, such a lease
is binding on the mutawalli in his personal capacity and he cannot repudiate or eject the tenants.

But, where the court has validated any such unauthorised lease the mutawalli is not personally
liable for it. An unauthorised transaction by a mutawalli may be challenged by any person
interested in the waqf. Thus, the beneficiary can challenge such alienations, representatives suit
is not necessary for this purpose.

Power of taking Loans:

A mutawalli cannot borrow money for the waqf. Unless the dedication itself or the court
authorises the mutawalli, he cannot borrow money for any purpose whatsoever. If a mutawalli
takes some loan even for carrying out the purposes of the waqf he would be personally liable.
The property of waqf would not be liable for such loans.

A creditor who gives money to a mutawalli cannot claim the repayment from the waqf-property.
As the loans taken by mutawalli without having any authority i.e., without authority from the
deed or permission of the court, do not create any charge in the waqf-property; a money decree
against a mutawalli will not bind the waqf-property. However, where a waqf- deed authorises the
mutawalli to take loans or where the court gives permission for taking loans, the mutawalli is not
personal liable.

Right of Pre-emption:

A mutawalli cannot exercise right of pre-emption for the waqf-property. Where a land which is
adjacent to the waqf-property has been sold, the mutawalli cannot claim repurchase or
substitution under the right of pre-emption.

Note:

As regards his powers and functions, although a mutawalli is not a trustee in true sense of
the term yet, he is still bound by various obligations of a trustee under the Trusts Act. In
Bibi Sadique Fatima v. Mahmood Hasan, the Supreme Court has held that use of the waqf-

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money for purchasing some property in the name of his wife would amount to breach of
trust within the meaning of the Indian Trusts Act.

Removal of Mutawalli:

Once a mutawalli has duly been appointed, he cannot be removed by the founder for misconduct
etc. except where the founder has expressly reserved such a right. But, the court has an absolute
power to remove a mutawalli.

Even though the waqf-deed specifically provides that mutawalli should not be removed in any
circumstance, the court may remove him in the larger interest of the waqf. The courts of law are
regarded as the protector of all the waqfs.

Therefore, the court is competent to do all such things which it deems necessary for proper
administration of the waqf-property. The court has unrestricted power to remove a mutawalli
from his office in any of the following circumstances:

(i) Where a mutawalli has become insolvent;

(ii) Mismanagement of the waqf-property due to negligence or dereliction of duty;

(iii) Failure of a mutawalli to perform religious services where it is an essential part of his duties;

(iv) Where the mutawalli utilises the waqf-property or its benefits for his private use;

(v) Where a mutawalli applies the income of the waqf-property against directions of the waqf-
deed;

(vi) Where a mutawalli otherwise exceeds his powers in dealing with the property, or

(vii) Where the mutawalli suffers from any physical or mental incapacity.

It is to be noted that a mutawalli ban be removed by the court only by maintaining a regular suit
against him. He cannot be removed by the court merely on the basis of any application made
before it. Moreover a mutawalli cannot be removed by the court against the principles of natural
justice.

There should be a regular enquiry regarding the allegations made against him and he must be
given reasonable opportunity to defend himself. The court here means the Court of a District
Judge.

Family Waqf: Waqf-Alal-Aulad:

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A waqf may either be public or private. A public waqf is that in which the beneficiaries are
public generally. Where the beneficiaries are only the members of the founders family or his
descendants, the waqf is private.

A private-waqf is also called as a family-waqf or a waqf-alal-aulad. Through a family-waqf, the

founder may make provisions for the maintenance of his children and descendants of coming
generations. The origin of such waqfs may be traced back to the traditions of the Prophet where
he said:

A pious offering to ones family (to provide against their getting into want) is more pious than
giving alms to beggars. The most excellent of Sadqah is that which a man bestows upon his
family and

Giving alms to the poor has the reward of one alms, but that given to kindred has two rewards.

There are several other traditions (Sunna) in which the Prophet allowed creation of family-waqfs.
According to him the support of ones family and children was the first duty and necessity of
every Muslim.

The philosophy of Islam has been that provision for maintenance of ones own parents and
children must be made obligatory so that they may not be burden on the society. If the children
would get into want and have nothing for themselves, they would beg for their livelihood and
would become a liability for the society.

In order to avoid such unpleasant situation, a Muslim is allowed to make adequate arrangements
for the maintenance of his children and descendants through the medium of a trust. Accordingly,
under Muslim law, making provisions for the maintenance, comfort, and dignity of ones own
children, is also regarded as an act equal to that of charity. As against the common notion that
charity means doing something for others, the Islamic philosophy, sets an example of the
English proverb charity begins at home.

Explaining the nature of a family-waqf, the Supreme Court has observed that in a waqf-alal-
aulad, the ultimate benefit is reserved to God but the property vests in the beneficiaries and the
income from the property is used for the maintenance and support of the founder and his
descendants. In case the family becomes extinct, the waqf becomes a public-waqf and property is
vested in God.

It is therefore clear that for the validity of a family-waqf there must also be some charity for
others. Benefit for settlers family, without any reference to charity for others, has always been

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invalid. However, the courts in India have recognised family waqfs subject to certain limitations.
But, the judicial limitations regarding the nature and extent of the charity referred in such waqfs
have created certain doubts as regards its applicability.

Accordingly, the Mussalman Waqf Validating Act, 1913 was enacted to remove these doubts.
The Act now clearly lays down the provisions of Muslim law on this point. It is convenient to
study the law relating to waqf-alal-aulad under two separate heads: law prior to the Act of 1913
and, law after this enactment.

Law Prior to Waqf Validating Act, 1913:

Before 1913, the law relating to family-waqfs was very strict. A family-waqf in which there was
no provision also for some charity or, benefit to poors, was never regarded a valid waqf. The
Anglo-Indian courts laid down that for a valid waqf-alal-aulad it was necessary that together with
the maintenance and support of the family, there should also be some religious or charitable
work from the income of waqf-property.

Application of the whole income only for the benefit of founders children and descendants was
not permissible in the name of a family-waqf. Before 1913, the Law relating to waqf-alal-aulad
may be summarised as under:

(i) A waqf exclusively for the benefit of the family was void. Some gift to charity was essential.

(ii) The gift to charity must have been of a substantial portion of the income of waqf-property. If
the gift to charity was nominal, the family-waqf was void.

(iii) It was also necessary that gift to charity was concurrent. If it was too remote, the waqf was
void.

The above-mentioned conditions for validity of family-waqfs were laid down by the Anglo-
Indian courts. In Abdul Gafur v. Nizamuddin, a Muslim executed a waqf- deed in which he
provided that the income of the property was to be utilised for the benefit of his wife, daughter
and descendants of the daughter. There was no provision for any gift to charity at any stage.
Moreover, it was also not provided as to how the income would be applied in the event of total
extinction of the founders family.

The Privy Council held that the waqf was void because there was no gift to charity in it. The
court observed that a family-waqf exclusively for the benefit of settlers family, without any gift
to charity, was not valid. Gift to charity was necessary to validate a family- But, in some cases,
this judicial condition was only technically fulfilled.

Just to overcome this judicial limitation, some nominal amount of income was directed to be
used for charity whereas; practically most of the income was applied for benefit of the family. In

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such family-waqfs, although there used to be a reference of gift to charity, but that used to be
illusory. Those family-waqfs, in which the gift to charity was illusory i.e. nominal, were also
held by the courts as invalid.

In Mahomed Ahsanulla v. Amarchand Kundu, the deed provided that members of the
founders family as mutawallis would retain the control and management of the whole income of
the waqf-property. The deed further provided that the family-members in the capacity of
mutawallis, would spend a small portion of the income for religious purposes and may take as
much of it as they liked, for themselve and for other members of the family.

The Privy Council held that the deed of waqf-alal-aulad was not valid because the main purpose
of waqf was enhancement of the wealth of family-members from generation to generation rather
than any gift to charity.

The court further observed that a family-waqf was valid only if there was a substantial
dedication of the property to charitable use at some period of time or other. As the gift to charity
was not substantial (it was illusory) the waqf was held to be void.

But, this was not the end of the judicial limitations on family-waqfs. In some of the cases
although the founders made provision for substantial gifts to charity but, it was illusory because
its application was too remote. In other words, although, the amount for charitable purposes was
substantial but its application was not immediate, it was only after a very long time.

Abdul Fata Mohammeds case, given below, is an example of the family-waqf where gift to
charity was illusory because of its remoteness. This is a leading case on the law relating to waqf-
alal-aulad before the commencement of the Waqf Validating Act, 1913.

Abdul Fata Mohammed v. Russomoy Dhur Choudhury:

Facts:

Two Muslim brothers executed a deed of family-waqf under which they dedicated their entire
immovable property. The waqf was constituted for the benefit of their children, children of their
children, and other members and their descendants, in the male and female lines. The deed
provided that in the absence of any of the above- mentioned persons, the income was to be
applied for the benefit of widows, orphans, beggars and the poors.

Held:

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It was held by the Privy Council that as the gift for charitable purposes was to take effect only
after the total extinction of all the descendants and relatives of the two brothers, it was invalid.
The gift to charity was held to be too remote and there was no concurrent benefit for the widows,
orphans and poors. Delivering the judgment, their Lordships of the Privy Council observed:

A gift may be illusory whether from its small amount or from its uncertainty and remoteness. If
a man were to settle a crore of rupees and provide ten for the poor that would at once be
recognised as illusory.

It is equally illusory to make a provision for the poor under which they are not entitled to receive
a rupee till after the total extinction of a family, possibly not for hundreds of years, possibly not
until the property had vanished away under the wasting agencies of litigation or malfeasance or
misfortune the poor have been put into this settlement merely to give it a colour of piety, and so
to legalize arrangements meant to serve for the aggrandizement of a family.

The judgment of the Abdul Fata Mahomeds case created great resentment among the Indian
Muslims. It was thought by the Muslim community that there had been an unreasonable judicial
interference with their traditional law on Family-waqfs. They protested against the strict
conditions laid down by the courts for the validity of a waqf for children and family.

The Muslim jurists argued that the Anglo-Indian Courts were interpreting family-waqfs in the
light of western jurisprudence and have ignored their personal law. It was apprehended by them
that this amounted to an encroachment on their personal law on family-waqfs. Accordingly, the
government had to intervene and the Mussalman-Waqf Validating Act, 1913 was enacted. Law
relating to family-waqfs under this enactment is given below.

Law under the Waqf Validating Act, 1913:

The Family-waqf is now being governed by the Mussalman Waqf Validating Act, 1913. This
enactment has removed the strict judicial conditions for the validity of a family-waqf. Under this
Act, it is now lawful for a Muslim to constitute a waqf-alal- aulad for the benefit of his family or
children without any concurrent and substantial gift to charity the relevant provisions regarding
family-waqfs are given in Sections 3 and 4 of the Act. A brief account of these provisions may
be stated as under:

Section 3 of the Act:

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Section 3 of the Act lays down that it shall be lawful for any person, professing Mussalman faith
to create a waqf, which in all other respects is in accordance with the provisions of Muslim 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 waqf 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 other purpose recognised by the Mussalman law as a religious, pious or charitable
purpose of a permanent character.

Thus, section 3(a) of the Act expressly overrules the decisions of Abdul Fata Mahomeds case
and now a valid family-waqf may be constituted subject to only one condition that there is
reference of an ultimate gift to charity. As regards the statutory provision on family-waqf as
given in section 3(a) of the Act, following significant points may be noted.

First, the word family has not been defined in the Act. However, the courts of law have
interpreted this word in its general sense. No specific meaning has been attributed by the courts.
The word family has been held to include all the members of the founders household and it is
not confined to his children and descendants.

For purposes of section 3 (a), a person may belong to the family of the founder either (i) because
he is from a common progenitor having common line of descent or, (ii) because he is living with
the founder and is being maintained by him. Therefore, family of the settlor includes not only his
children and descendants but also the members of his household.

The son of a half-brother, son of a half-sister and sons or grandsons of paternal uncle, are
included in the family of a waqif even though these persons are not maintained by such waqif.
The daughter-in-law of the founder has been held to belong to the family of the settlor.

The sisters son, who lives and is, being supported by the settlor, may be included in the settlors
family. According to Madras High Court, the term family includes also the servants and the
boarders of the waqifs family and a waqf for them may be constituted lawfully.

However, it is not necessary that a waqf is created for the benefit of the whole family of the
settlor. Even if a provision has been made for the maintenance and support of only some specific

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members of the family excluding others, the family-waqf is valid. But a family-waqf for the
benefit of utter strangers is not valid.

Secondly, under the Act of 1913, a waqf exclusively for the benefit of settlors family or children
is void. The proviso to section 3 lays down in clear words that a waqf for the family, children or
descendants is lawful only where ultimate benefit has been reserved for some charitable purpose.
If there is no reference of any gift to charity, the family-waqf is void.

Thirdly, a gift to charity may be express or implied. Where the dedicator has expressly made a
provision that ultimate benefit of the family-waqf is reserved for some religious, pious or
charitable purpose, there is no difficulty. But in certain cases the dedicator may not expressly
provide for any religious or charitable purpose in the waqf.

In such a situation, there might be two things. Either the waqf may be invalidated for want of
express provision for charity or, the provision for charity may be implied and the waqf is held
valid. The word impliedly as used in section 3 of the Act, suggests that under the Waqf
Validating Act, 1913, an ultimate gift to charity may be implied even if there is no express
mention for the same.

However, despite a clear provision in the Act, opinion of the Courts is conflicting. According to
the High Courts of Calcutta, Chief Court of Oudh and the Privy Council a waqf which is silent
about any gift to charity cannot be validated by presuming an implied gift to charity.

But, in Jhanga Mayil Ammal v. Pappa, where a waqf provided for the maintenance of
founders descendants and concurrently for some charity, the Madras High Court held that in
case of the failure of descendants, an ultimate gift to charity may be implied.

Similarly, in Baqa Ullah Khan v. Ghulam Siddique Khan there was no express mention of any
ultimate gift to charity but the Allahabad High Court held that waqf was valid because an
ultimate gift to charity was implied in the very word waqf.

In view of these conflicting opinions, it may be stated in the words of Fyzee that the question is
not free from doubt, but the recent tendency is to hold that even if the document is absolutely
silent as regards the ultimate objects, the very use of the world waqf is a sufficient indication.

It is submitted that this statement of Fyzee represent the correct law and in the absence of any
express mention, an implied gift to charity may be presumed by the courts.

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Remoteness of Gift to Charity:

Section 4 of the Waqf Act, 1913, now provides that remoteness of the gift to charity will not
invalidate a family-waqf. That is to say, a concurrent gift to charity is not necessary. Even if the
benefit reserved for religious, pious or charitable purposes is too remote, the family-waqf is
valid. As stated above, this provision has negatived the decision of the Privy Council in Abdul
Fata Mahomeds case. Section 4 of the Act provides:

No such waqf (i.e. family-waqf) shall be deemed to be invalid merely because the benefit
reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature
is postponed until after the extinction of the family, children or descendants of the person
creating the waqf.

We notice that under the Waqf Validating Act, 1913, a family-waqf may be lawfully constituted
with a provision that gift to charity is to take effect upon total extinction of the children and
descendants. Even if the total extinction of all the descendants of the settlor take place say, after
two or three hundred years, the waqf is not void because of remoteness in its charitable objects.

Amount of Gift to Charity:

The Waqf Validating Act, 1913, nowhere provides that the gift for religious or charitable
purposes should be substantial. As against the law before 1913, now the gift to charity need not
be a substantial portion of the usufruct of the waqf-property. Before 1913, if the amount reserved
for charity was nominal, the family-waqf was invalid. But Section 3 (a) of the Act now expressly
provides that family-waqf may be lawfully created for the maintenance and support wholly or
partially of his family.

Thus, in a family- waqf the entire income of the waqf may be utilised for the benefit of the
family. It may be noted that the expression maintenance and support cannot be interpreted to
mean provision for bare subsistence.

It means maintenance according to the social position of the family members for whose benefit
the waqf has been constituted. Therefore, even if the whole income is reserved for the benefit of
family, the waqf is not invalid so long as an ultimate gift to charity has been provided in it.
According to Mulla:

Under the Mussalman Waqf Validating Act, 1913 (Secs. 3 and 4) the ultimate test is that a
waqf-alal-aulad must reserve the ultimate benefit for the poor or any other religious, pious or

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charitable object of a permanent nature and not that its benefit should be substantially for such
objects.

It may be concluded that for a valid waqf-alal-aulad, a reference of a gift to charity is sufficient.
The gift to charity need not be substantial and concurrent. Even where the gift to charity is
illusory, the family-waqf is valid.

Shia Law:

The Waqf Validating Act, 1913 makes no difference between Shia and Sunni law in respect of
family-waqfs. The provisions of the Act are equally applicable to both. But, Section 2(b) is
applicable only to Hanafi Muslims.

Accordingly, a waqf for the benefit of ones own self may be created only by a Hanafi settlor. If
the settlor is Shia, he cannot constitute any waqf for his own benefits such as for his own
maintenance or for payment of his debts.

Notes:

(i) The Mussalman Waqf Validating Act, 1913 contains the general law. In case there is any
conflict between the provisions of this Act and any special law containing rule against
perpetuity, the special law on rule against perpetuity shall prevail over the Waqf Validating Act,
1913.

(ii) The Mussalman Waqf Validating Act, 1913 is of retrospective operation. Formerly, there was
some doubt because the Privy Council had held that Waqf Validating Act 1913 could not be
applied retrospectively. But, subsequently another Act (Mussalman Waqf Validating Act, 1930)
was enacted to clarify the position.

The Waqf Validating Act of 1930 expressly provides that the Waqf Validating Act, 1913 may be
applied retrospectively. Accordingly, at present the provisions of Waqf Validating Act 1913 may
be applied to family-waqfs constituted before commencement of the Act.

Contemporary Relevance of Family-Waqfs in the Muslim Society:

Under the Waqf Validating Act, 1913 and Indian Muslim may create a family-waqf for the
maintenance of his family and descendants and such waqf is not void even though the ultimate
gift to charity is not substantial or is too remote.

Under Section 4 of this Act, it is permissible for an Indian Muslim to postpone the gift to charity
(for the poor or other religious or charitable purpose) until after the extinction of the family,
children or all descendants.

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This enables an Indian Muslim to tie up his property for maintenance of his family and children
for an indefinite period. The legal effect is that property becomes non-transferable indefinitely.
Any of the descendants, for whose maintenance the waqf is created, cannot transfer it for his
more beneficial use of the property.

The religious or charitable purpose is also postponed indefinitely. Accordingly, the progressive
Muslim jurists favour repeal of the Waqf Validating Act, 1913, so that law on family-waqfs, as
given in Abul Fata Mohmeds case, once again becomes law on this subject.

According to them the social consequences of this Act have been devastating because it blocked
any initiative by Muslims in the direction of industry and other profitable uses of the property.
Expressing the views of progressive Indian Muslims on the contemporary relevance of Waqf-
Validating Act, 1913, Danial Latifi observes thus:

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 Abul Fatas case in 1894.

It may be noted that the decision in Abul Fata Mohammeds case still continues to be the law on
family-waqfs for the Muslims of Kenya because the Privy Council has reaffirmed Abdul Fatas
decision in a subsequent case from Kenya

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