Home Muslim culture Property rights and cultural references in Muslim personal law

Property rights and cultural references in Muslim personal law


For many, the functioning of the Central Wakf Council and the various State Wakf Councils is a bit of an enigma wrapped in an enigma. Many people are perplexed when they come across seemingly barren land with a sign proclaiming it as Wakf property or hear exaggerated stories that the Wakf is one of the biggest “landowners” in many towns. It might therefore be prudent to first understand precisely what a wakf is, what wakfs were meant to serve, and whether they live up to their theological, social, and benevolent ideal.

Wakf Simplicity

Simply put, wakf is any movable or immovable property “capable of being used without being consumed”[1] where the property belongs to God while the fruit of its usufruct belongs to the community, and especially to the needy. Our country has witnessed a wide range of laws governing the management of wakfs, the disenchantment of which has led to further amendments. Wakf management works as a two-tier mechanism in India[2]. Each state is mandated to have a State Wakf Council[3] with a Central Wakf Council (hereafter referred to as CWC) headed by a Union Minister, to advise the central government on matters relating to the Wakfs[4]. However, it is essential to understand the operation of the Councils of Wakf in each State before knowing if they are really living up to their theological objective, namely “endowment in goods, which implies a handing over of goods to Allah, in assuming that the transfer will benefit the needy”.[5]

In the cause of God

The sentence mentioned above is an English translation of the Arabic word ‘Fi-Sabillah’ which means any act done for charitable or religious purposes that takes the author on the true path indicated by God.

A Wakf can be created for various reasons[6] such as the establishment or maintenance of schools, hospitals, colleges, madrasah, imambara, mosques, but the impulse to do so cannot be limited to pious or religious purposes only. Therefore, a public Wakf may very well be created for secular purposes and its beneficiaries may also be non-Muslims.[7].

The very first requirement of a Wakf is obvious with regard to the testator (also known as wakif) who must mention that he was in a state of perfect lucidity when he dispossessed himself of his property and that the act thus committed was of his own volition since a forced Wakf is automatically disavowed thus fulfilling the criteria required by Article 7 of the Property Transfer Act and Section 11 Indian Contracts Act. However, just like any person entitled to contract under civil law, a testator under Muslim wakf laws must be of legal age, of sound mind and must not be an insolvent person. In addition, the property or the Mawquf, which is transferred must not be obtained illegally or “un-Islamic”[8], for example, it must not be intended for the establishment of a liquor business or a brothel. In the Wakf deed itself, it is imperative, and also practical, that the testator appoints an administrator, or Mutwalli, who shall manage the proceeds of the property in accordance with the deed and ensure the proper execution of the desired reason/genesis of the Wakf.

Two striking characteristics of the Wakf act would be the two essential elements of perpetuity and continuity. Further, in reference to the “bundle of rights” theory often discussed in property law jurisprudence, ownership and title (under a Wakf) are bestowed by the testator in the name of Allah, while the rights of possession and the right to enjoy the proceeds of said immovable property belong to the community. An interesting character of a Wakf act is one that perches along the lines of Section 18 of the Transfer of Property Act (TPA) which deals with the transfer in perpetuity for the benefit of the public. Another similarity between a general transfer of ownership under TPA and a wakf is that not only does one need to be registered with the State Wakf Council, but also needs two competent witnesses similar to Section 3 (3) of the Transfer of Property Act. We are aware of the fact that the LPTh, substantive law, itself aims to codify and modify existing laws relating to the transfer of property”[9]. Therefore, the TPA, with refreshingly accommodating generosity, excludes from its scope certain transfers and gifts made under Muslim law, providing us with Article 129.[10] that is, the law shall not be deemed to affect a rule of Muslim law.

Before delving into the depths of Islamic jurisprudence and property law, revisiting its history will provide some sub-structural context. A high-level committee under the leadership of Justice Rajinder Sachar was formed in 2005 to prepare a comprehensive report on the social, economic and educational status of Muslims in India. According to his report presented to Parliament in 2006, there are over 4.9 lakh of registered Wakf properties in the country with the largest concentration being in West Bengal (1,48,200) followed by Uttar Pradesh (12,839) . Around 6 lakh acres, spread across the country, constitute the Wakf property with a then book value of Rs 6,000 crore[11].

If they are not reinvested in the community, where do these endowments disappear?

This article focuses on four states namely Delhi, Karnataka, Maharashtra and Tamil Nadu. From Delhi, in 1910, the British government annexed several Wakf properties and built its new capital around it. Thus, it is not surprising that a number of hotels, monuments, markets, schools in the heart of the city are built on wakf land. Some of them include Oberoi Hotel, Commonwealth Games Village Complex, Jawaharlal Nehru Stadium, parts of Delhi Public School on Mathura Road, Press Offices on Bahadur Shah Zafar Marg among others . The case of the unauthorized acquisition of Wakf land in Delhi is particularly significant given the fact that there is evidence in the form of Burney Report of 1974, commissioned by Prime Minister Indira Gandhi, which uncovered almost 300 properties under the effective control of the Delhi government. Accept the Burney Report, the Delhi government in 1974 agreed to return 123 properties out of a total of 300 properties to the Delhi Wakf Board[12]. It is at this point that the Vishwa Hindu Parishad[13] demanded a reprieve from the transfer of these 123 prime properties from government ownership to “religious ownership”. It is ironic to note that the two essential elements of a valid Wakf act – irrevocability and perpetuity – have been called into question since the advent of this vindictive game of municipal politics.

The Delhi High Court in 1984 granted the Vishwa Hindu Parishad a reprieve which lasted 27 years and was recently overturned by a judgment of Judge Valmiki Mehta in 2014.[14]. After that, the Delhi Development Authority issued a public notice denoting 123 properties of its acquisition. Of these 123, 62 belonged to the DDA while the remaining 62 belonged to the Bureau of Land and Planning (Ministry of Housing and Urban Affairs). Emphasis is requested on the fact that it is only by virtue of this notification that these properties could ultimately be returned. to its rightful custodian i.e. the Wakf Board. during which it would have borne fruit passed in a tug-of-war which the trustee fought with the state only to secure his ownership. It is disturbing that the two aforementioned government authorities have spent precious time delineating the right to property that is never saved except in the hands of God.

According to Sachar committee report, the market value of the 123 main properties was Rs 3,000 crore in 2003 and then Rs 6,000 crore in 2006 (when the report was submitted). Imagining the countless educational, infrastructure and employment opportunities that this huge untapped economic reserve could conjure up for the community are not only vast but also economically feasible.

Southern states, like their northern counterparts, are not immune to illegal encroachments and have had to bear the brunt of decade-long court battles coupled with an acute waste of land originally owned by councils in the Wakf. In Pune, 46.4 acres of land has been labeled as ‘disputed property’ when in fact it is registered with the Maharashtra Wakf Board. Although the Central Wakf Board wrote to the Ministry of Minority Affairs, the problem has persisted since 1996 and it was not until November 2017 that an investigation was opened by the CEO of the Maharashtra Wakf Board.[15]. In 2012, a state-appointed committee to investigate Wakf land “came across properties worth Rs 2 lakh crore”. What attracted a lot of attention were the statistics presented in this report. He claimed that approximately 22,000 to 27,000 acres of property out of the 3,37,411 acres owned by the Commission were not being used for their intended purpose.[16]

“Tie down” is often quoted as the literal meaning of wakf. But to tie in a modern sense is to tie the strings of the administrative functioning of councils to the pillar of efficiency and transparency to ensure that a community that has felt excluded for decades, even after independence , is able to stand on his feet. As we saw above, the design of the mandates is not the most delicate part; it is their execution that has proven elusive for governments in the past. But safeguarding not only the interests but also the social progress and economic growth of its minority communities is a rudimentary duty of any government and over time it must be assured that Islamic endowments must reach their target audience. Given the guarantees of minority rights enshrined in the Constitution of India, enacting Wakf laws and ensuring their implementation is only in the order of things.

Aliya Waziri is a barrister in the High Court of Delhi.

[1] Rashid, S. (2006). Waqf Management in India. New Delhi: Institute for Objective Studies.

[2] Jafri, S. and Srivastava, A. (2002). Judge SI Jafri’s Waqf Law in India. 5th ed. Law Publishers (India) Pvt. ltd

[3] Some states such as West Bengal and Uttar Pradesh, which have a relatively higher Muslim population, have a separate Wakf council for Shias and Sunnis.

[4] Rashid, S. (2006). Waqf Management in India. New Delhi: Institute for Objective Studies

[5] Naqvi, S. (2018). Allah left the building. https://www.outlookindia.com. Available at: https://www.outlookindia.com/magazine/story/allahs-left-the-building/261789

[6] The reasons here are specific only to public Wakfs and not Aulad wakf-alal (the Wakf given to his/her child(ren))

[7] Jafri, S. and Srivastava, A. op.cit.

[8] Mahmood, T. and Mahmood, S. (2012). Islamic Law in India and Abroad. Universal Law Publishing CO. TVP. LTD., pp.234-248

[9] Transfer of Property Act 1882