Liaquat Ali Sidddiqui.


Muslim as well as a non muslim can make a valid wakf (Ordinance 1962). A wakf may be made for any good purpose not prohibited by Islam. The following are some lawful purposes of wakf mentioned in the texts of Islamic law.17

  1. maintenance of mosques, including the remuneration of imams and muazzins,
  2. maintenance of educational institutions, including salaries of their staff;
  • giving of alms to the poor and the needy;
  1. financing Haj pilgrimage for the poor;
  2. construction or maintenance of bridges; aqueducts,etc.

A wakf may be made either orally or in writting. In the latter case the Registration Act 1908 will can be created either by an act inter vivos, non-testamentory form i. e. gift or by testamentory instrument i. e. will, taking effect after the death of the wakif. In the former form (gift) a muslim can wakf his entire property. In the latter form (will) he can wakf only to the extent of one-third of his property normally.

Any property which has value,whether moveable or immoveable, may be the subject of wakf. Hanafi law does not insist on Transfer of property to Mutawali, so musha i. e. , Undivided share of a property which is capable of being separated, can be the subject of wakf. But musha, whether it is capable of devision or not, is not a valid subject of making wakf for musque or burial ground. 18

The wakif must be the actual owner or must have a permanent dominion over the property, a temporary interest will not do.[1] [2] [3] [4]

A wakf for a limited period of time is void.2^

According to Abu Hanifa the ownership of the property even after the dedication continues to be with wakif and as auch the wakif is at liberty to resume the wakf, while according to the disciples the wakif ceases to be an owner and hence can not be revoked. The view of Abu Hanifa is not accepted. An inportant characteristics of wakf is perpetuity and irrevocability. When a wakf is created through a will, before the death of the testator like any other will it can be revoked,[5] but after the death of the testator as soon as it becomes operative it can no more be revoked being a perpetual thing.

All the schools of muslim law are in agreement that a contingent wakf is invalid. [6]

a wakf created during death illness (maraz-ul-maut) is – as in the case of gift – regarded as a testamentory wakf-[7]

Wakf can broadly be divided into two

  • Wakf benefitting the public at large,
  • Wakf benefitting the family, children or descendants.
  • wakf benefitting the public at large : Wakf for public purposes (Masliah -al aama) e. g. mosques, graveyards, dargahs, takias etc.

In Bangladesh the major law on this public wakf is wakf ordinance, 1962 (Ord No. 1 of 1962) which was enacted to consolidate and amend the law relating to the administration and management of wakf properties in Bangladesh.

  • wakf benefitting the family, children or descendanrts : These may be of three kinds
  • Exlusively for the family :

Wakfs for the family are recognised by the Muslim Law. The view is expressed by Ameer All relying on a number of traditions of the prophet (sm) that a Wakf even exclusively for the benefit of the wakif’s family (without any provision for charity) is a valid one. Bikani

Mia vs. Shuk Lai I. L. R. 20 Cal, 116. But this view of Ameer’ Ali was disapproved by the Privy Council and it was held that wakf,exclusively for one’s family was not a wakf for charitable purposes and was therefore invalid. Abul Fata Mohammad vs. Rasamaya 1LR 22 Cal. 619 (P.C.)

  • wakfs substantially for the familly

With some provisions for charity :

Prior to the passing of the Act 1913 it was held by the privy Council that if the primary object of the wakf was the aggrandizement of the family, there the wakf would be invalid even if there was some gift of an illusory kind for charity.

Abdul Fata Mohammad vs. Rasamaya (I. L. R 22 Cal. 619 (PC) It was held that a wakf both for the charity and for the benefit of the family was valid only if there was a substantial dedication of the property to charitable uses but not otherwise. Under Act, 1913 wakf substantially for family is recognized the only condition being as ultimate dedication to charity. The Act is intended to expand the law relating to wakfs and not to restrict.

  • Wakfs substantially for charity with some provision for the family :

Even before the Act, 1913; wakf, the primary object of which was a permanent dedication of the property to charity held to be valid even though there was private settlement in favour of the wakif himself or his family.

Mohammad Ahsnullah v. Amarchand 1.1. R. 17 Cal. 498. (P. C.)

Such wakfs have thus been always valid and are valid even now without invoking the provisions of the wakf Act of 1913.

Thus we see that law relating to wakfs in Bangladesh is guided and governed partially by the Statutes, Judicial decisions and partially by the personal laws of Muslims.

Foilwing are the Enactments on the law on wakfs in Bangladesh : —

  1. Mussalman wakf validating Act, 1913
  2. Mussalman Wakf validating Act, 1930
  3. The Mussalman Wakfs Act (XLII of 1923)
  4. Wakf Act, 1934
  5. Official Trustees Act, 11 of 1913
  6. Charitable Endowments Act. VI of 1890, Secs. 2, 3, 4, 5, 6, and 8.
  7. Religious Endowments Act, XX of 1863 Sec. 14.
  8. Charitable and Religious Trusts Act, XIV of 1920.
  9. Civil Procedure code, 1908, Sec. 92-93
  10. East Bengal Non-agricultural Tenancy Act, 1949 Sec.85
  11. Wakf ordinance of 1962.

Religious and charitable endowments under Hindu Law

Religious endowments like Debottar (property dedicated to the ownership of Deity) and Mutts (religious educational institution) can be created both orally and in writting. And can take the form of both gift and will (in case of a will section 57 of the succession Act, will apply if the case is governed by theAct). [8] Endowments for charitable purposes can be created for feeding the poor or Brahmans etc. Formal Deeds of Endowments for religious or charitable purposes must comply with the provisioins of T.P. Act, 1882. and registration Act, 1908. Religious Dedication may be of two types i. e. complete or partial. In case of a complete dedication the owner loses his title completely and diety becomes the absolute owner and in case of a partial dedication the ownership is retained by the owner and only a charge is created in favour of the object [9] Where the dedication is of absolute nature any surplus money can be utilised by applying the doctrine of cypres.[10] Debottar may take two forms i. e.

public and private. In public debottar,[11] the right of worship is open to the public at large, In Private debottar the right is confined to the members of a particular family or the members of a definite group of persons and public are not entitled to as of right. In an English model of trust, the beneficiaries with common consent, can put an end to the trust. Privy council by applying this principle has decided that in a private debottar, the interested members,with common agreements, may change the debottar character of the property into an ordinary secular property; although this was criticised. [12]

Generally no formalities are required for the creation of a Hindu Religious or charitable endownent. But according to some authorities[13] [14]

(A) The object or purpose of the trust must be a valid religious or charitable purposes according to the rules of Hindu law.

  • The founder should be capable under Hindu law of creating a trust in respect of the particular property,
  • The founder should indicate with sufficient precision the purpose of the trust and the property in question,
  • The trust must not be opposed to the provisions of law for the time being in force.

In Bangladesh it is held that the Government can not take possession of such debottar property as an enemy property merely because the shebait has left the country^ . Thus apart from the Hindu religious rules, and judicial decisions, following enactments apply to the Hindu Public or private religious and charitable endowments

  • Religious endowments Act, 1863,
  • Charitable and Religious Trusts Act, 1920,
  • 92 of Civil Procedure Code, 1908,
  • Transfer of property Act, 1882,
  • Registration Act, 1908
  • Succession Act, 1925

It will not be irrelevant here to try to make a comperative examination of these three, institutions i. e. (i) Trust in the English sense, (ii) Wakf under Islamic Law, (lii) Debottar under Hindu law.

The privy council[15] examined the fundamental differences of Muslim and Hindu system with the English juridical conception of trust. In an English trust, the legal interest is given to the trustee but equitable interest is given to the beneficiary. But neither under Muslim few[16] nor under Hindu law [17]> the legal interest is given to the Mutwalfi or Shebait although they have certain obligations and duties like a trnstee. Mutwalli is not a trustee in the legal sense.[18] In case of wakf, the ownership of the wakif is extinguished and transferred to the Almighty. In Hindu law the property is vested to the idol or deity. The idol or temple etc in Hindu law, are juridical persons[19] The juridical person acts through Shebait o. manager. But under the trust the property vests in the trustee. In the case of a Kahankas the head is called sajjadanashin althoug he enjoys more facilities, he is of the same legal character. Certain enactments have, after considering wakf and Debottar etc, as trust of public nature, given remedies for breach of trust by trustees of Muslim or Hindu religious endowments of public nature i. e. section 92 of C, P. C. 1908, section. 14 of Religious endowments Act, 1863.

The privy council[20] has held that.since the property is not vested in the Shebait, Mutwalli, they are entiled to plead limitation in a suit to recover endowed property form 1heir head. But a legislative amendment (Second paragraph to Sec .10 limitation Act, 1929} has changed the position saying “shall be deemed to be property vested in trust” and “shall be deemed to be the trustee.” It attempts to equalize Shebait and Mutwalli to a trustee in respect of liabilities. Like a trustee a Mutwalli or a Shebait can sue or be sued for legal matters.


Mutwalli and Shebait like a trustee are held liable for breach of their duties and are liable to be removed almost for similar grounds. [21] [22]

A Trustee has got wider power than a Mutawalli. A mutwalli acts like a manager. A wakf is perpetual, irrevocable and inalienable but it is not necessary that a Trust may be perpetual, irrevocable or inalienable.

Conclusion :

It appears that the consequencs of repealing the law of Benami Transactions were not given due thought There is no exhaustive definition of wakf. Even the criteria used for deciding public or private wakf is confusing. Explanation to Section 2 (10) of the Ordinance of 1962 says,” when more than fifty percent of the net available income of wakf is exclusively applied for religious and charitable oruposes, such a wakf shall be deemed to be a public wakf withing the meaning of clause (e) of sub-section (1) of Section 85 of the East Bengal Non- agricultural Tenancy Act, 1949. Whereas under the Bengal wakf Act. 1934 section 2(11) says wakf al-al-aulad means a wakf under which not less than seventy-five percent of the net available income is for the time being payable to the wakif for himself or any member of this family or descendants.

Well-known authorities like Ameer Ali and D. F. Mulla claim that under pure Islamic Law wakf to the family, children or descendants is valid, even though there is no dedication to charity but this view in not legally recognised. Privy Council’s decisions hold that to be a valid wakf there shold be a substaintial dedication to the charity and illusory or remote dedication to charity with substantial dedication to the family children or descendants is not valid, Although Mussalmen

Wakf validating Act, 1913 has validated such kind of wakf, it is claimed that the Act of 1913 does not operate to validate waLf exclusively for the family, children or descendants’s without any dedication to charity and on this subject privy Council’s decision is still the law. Nearly on hundred years have passed since the decision of privy Council (1894) so, in my view, the matter demands special attention of the legislative body of Bangladesh, so as to make the law according to islamic Sharia. The Law on the whole subject is not clear and systematic. Ordinanc of 1962 in not clear about the functioning of other enactments. By the ordinance, none of the previous enactments, i. e. Bengal wakf Act, 1934 or the wakf validating Act, 1913 has been repealed. Different enactments, originated for different purposes have piled on the subject.

Legal sanctions and remedies are spread haphazardly in different enactments. There can be a complete legislation regulating the whole subject within one and the same system of administration.

[1]        278 (1980) ibid.

[2]        Mohd. Ayub V. Amir Khan. A. i. R. 1939 cal 268 19 Rahiman V Bagndan (1936) 11 Luck. 735; 5 DLR 109.

[4]        Mst. Peeran V Hafiz Mahd, (66) A. All. 201.

[5]        D. F. Mulla: Mahomedan Law, 18 th Edn; 207 (1977)

[6]        Habib Ashraff V. Syed Wajibuddin (1933) 144 I. C. 654. Baillie; 564.

[7]        Dr. Tahir Mahmood: The Muslim law of India, 271 (1980).

[8]        D. F. Mulla : Hindu Law, 9th Edn. P. 475.

[9]        Hemantakumari V, Gourishankar (1940) C. W. N. 637 P. C.

[10]       Pillayan V. Commrs, H. R. E…. Board) A. I. R. 1948 P. C. 25.

[11]      Venkataramana V. State of MysoreA-1. R. 1958 S C. 255

[12]      Mukherja: “Hindu Law of Religious and chantable Trusts” (Tagore Law lectures), 3rd Edn. PP-193-194.29– Mukherjea: P. 52 ibid.

[14]      Shuk Deb V. Province of East Pakistan 22 . D. L. R. P-245.

[15]       Vidyavaruthi v. Balusamy (1921) 44 Mad. 831. P. C.

[16]      Alla Rokhi V. Abdur Rahim. A. I. R 1934 P. C. 77

[17]       Vidyavaruthi V. Balusamy (1921) 44 Mad. 831 P. C.

[18]       Nawab V. Directo of Endowments, A. 1963 S. C. 985.

[19]       Pramatha V. Pradyumnal (1925) 30 C. W. N. 25 P C

[20]      Vidyavaruthi V. Balusamy (1921) 44 Mad 832 — 1 1

[21]      Jayadivdra V. Hemartakumari (1904) 8. C. W. N. 809 P. C.

[22]       Husain V. Nur Hussain (1928) 32 C W. N.