Waqf: Meaning, Kinds, Creation and Legal Effects under Muslim Law

Introduction

Waqf (وقف) is a unique and significant institution in Muslim law that reflects the deep social, religious, and charitable values of Islam. Derived from the Arabic root word waqafa, meaning "to stop" or "to restrain," waqf refers to the permanent dedication of property for religious, pious, or charitable purposes as recognized under Muslim law. Once a waqf is created, the ownership of the property is transferred from the individual to God (Allah), and its usufruct is used for the benefit of society.

The Holy Qur’an encourages acts of charity, and the Prophet Muhammad (peace be upon him) is reported to have emphasized in several Hadith the virtues of providing perpetual benefits to others. The institution of waqf thus serves as a bridge between individual wealth and collective welfare, ensuring that wealth continues to benefit the community for generations.

Before we understand the kinds, creation, and legal effects of waqf, it is helpful to recall related Islamic legal concepts like Hiba (Gifts) and Wasiyat (Wills) which also deal with property transfer but differ in nature. (Read: Gifts (Hiba) under Muslim Law: Essentials and Revocation)

Meaning and Definition of Waqf

In Sharia, waqf is defined as the permanent dedication of any property (movable or immovable) by a Muslim for purposes recognized by Islamic law as religious, pious, or charitable.

Classical Definition (as per Abu Hanifa):
“Waqf is the detention of property in the ownership of the waqif (founder) and the devotion of its usufruct to pious or charitable purposes.”

Modern Legal Definition (as per Section 3 of the Mussalman Waqf Validating Act, 1913):
Waqf means the permanent dedication by a person professing the Muslim faith of any property for any purpose recognized by Muslim law as religious, pious, or charitable.

The difference from a gift (hiba) is that in waqf, the corpus of the property cannot be sold, transferred, or inherited—it becomes inalienable and is meant for perpetual use.

Qur’anic and Hadith Basis of Waqf

The concept of waqf is supported indirectly by the Qur’an and directly through the Sunnah:

Qur’an, Surah Al-Baqarah (2:261):
“The example of those who spend their wealth in the way of Allah is like a seed of grain that sprouts seven ears; in every ear there are a hundred grains…”
Hadith (Sahih Muslim):
The Prophet (PBUH) said: “When a man dies, his deeds come to an end except for three things: ongoing charity (sadaqah jariyah), beneficial knowledge, or a righteous child who prays for him.”
Waqf is considered one of the most important forms of sadaqah jariyah.

Historical Development of Waqf in India

The institution of waqf in India traces back to the Delhi Sultanate period when Muslim rulers and nobles dedicated large tracts of land to build mosques, madrasas, khanqahs, and for maintaining public utilities. During the Mughal era, waqfs became even more prominent, with a well-defined administrative system under the office of the Mutawalli (manager).

In colonial times, disputes over waqf properties prompted the British government to enact laws such as the Mussalman Waqf Validating Acts of 1913 and 1930, and later the Waqf Act, 1954. The current legislation governing waqfs in India is the Waqf Act, 1995, as amended in 2013.

Kinds of Waqf

Muslim law recognizes different types of waqfs based on their purpose and beneficiaries:

1. Waqf for Religious Purposes

This includes waqfs created for building mosques, providing for Imams, and funding religious education. Such waqfs are considered the most meritorious as they directly promote the worship of Allah.

2. Waqf for Charitable Purposes

A waqf can be established for the poor, orphans, widows, or for purposes such as hospitals, orphanages, and public welfare facilities.

3. Waqf alal Aulad (Waqf for Family)

This is a waqf created primarily for the benefit of the settlor’s descendants, with a provision that ultimately the income is spent for charitable purposes after the extinction of the family line. This type of waqf was upheld in Abdul Fata Mahomed Ishak v. Russomoy Dhur Chowdhury (1894) by the Privy Council, but subject to restrictions.

4. Public Waqf

When the benefit of the waqf is open to the public or a section of the public (e.g., a school or hospital), it is a public waqf.

5. Private Waqf

Created for the benefit of specific individuals or a closed group, but must have an ultimate charitable purpose to be valid.

Creation of Waqf

For a waqf to be valid, certain essential conditions must be fulfilled:

Competency of the Waqif (Founder)The waqif must be a Muslim of sound mind, a major, and the owner of the property.
Permanent DedicationThe property must be permanently dedicated—it cannot be for a limited period.
Lawful PurposeThe objective must be one recognized as pious, religious, or charitable under Muslim law.
Inalienable PropertyThe property once dedicated cannot be sold, mortgaged, or inherited.
Declaration of WaqfThere must be a clear declaration by the waqif, either orally or in writing, showing the intention to create a waqf.
Delivery of PossessionThe property must be transferred from the waqif’s control to Allah’s ownership, with a Mutawalli appointed for its management.

Legal Effects of Waqf

Once created, a waqf has the following legal consequences:

Ownership vests in Allah — The property is considered the property of God.
Corpus becomes inalienable — It cannot be sold, gifted, or inherited.
Perpetuity — A waqf is irrevocable and perpetual.
Management by Mutawalli — The Mutawalli acts as a manager, not an owner.
Application of income — Must be used strictly for the purposes specified in the waqf deed.

Role and Powers of Mutawalli

The Mutawalli is the custodian and administrator of the waqf property. While he has the power to manage and spend the income according to the waqf deed, he has no right to sell or mortgage the property unless expressly allowed by the court.

Case Laws on Waqf

Abdul Fata Mahomed Ishak v. Russomoy Dhur Chowdhury (1894) – Defined limits of waqf alal aulad.
M Kazim v. A Asghar Ali (1932) – Clarified that waqf is irrevocable and perpetual.
Board of Muslim Wakfs v. Radha Kishan (1979) – Supreme Court upheld that waqf property is dedicated to God and cannot revert to the founder’s heirs.

Interlink with Next Topic

The doctrine of waqf often intersects with other property-related concepts in Muslim law, such as pre-emption (shufa) where certain rights arise over property transfers. (Read next: Pre-Emption (Shufa) under Muslim Law)

For a comparative understanding of related institutions, you can also see: