Waqf an Arabic word, which literally means tying up or dedication (to keep a property in safe custody protecting it free from private ownership). The system of waqf has been recognised in islam from the very beginning of the new Islamic state built in Arab. According to the definition given in the Mussalman Waqf Validating Act 1913 in India, waqf means the permanent endowment by a Muslim of any of his property for a purpose recognised by the Muslim Law as 'religious, pious or charitable'. It is in Muslim Law what nearly is 'bequeath' and 'bequest' in the Roman Law and 'dan' in Hindu Law. All are endowments in some form or other. Personal property is endowed in waqf for religious, educational, or any other benevolent purpose under specific terms and conditions. In general, these terms and conditions in case of a valid waqf are: (1) it is a permanent arrangement; (2) it becomes immediately effective, and cannot be kept in abeyance; (3) it is an irrevocable legal contact; and (4) waqf property can never be confiscated.
Waqfs are of three types: waqf fi lillah or public waqf, waqf alal aulad or private waqf, and mixed waqf. A waqf created solely for the public purpose of religious or charitable nature is called waqf fi lillah. When dedication is made substantially for the benefit of the dedicator himself, his family or descendants, it is called waqf alal aulad. A mixed waqf has both the public purpose of religious or charitable nature and private purpose of maintenance of dedicator, his family and descendants.
The most notable public waqf is the mohsin fund. Haji Muhammad Mohsin of Hughli, India and a zamindar of Saidpur estate, endowed in 1806 the whole of his estate income to the maintenance of religious and educational establishments of the imambara, Hughli. A member of the family challenged the legal validity of the waqf and consequently, the government attached the estate under the Regulation XIX of 1810 until the suits were disposed of at the Sadar Diwani Adalat. The case went upto the Privy Council where it was resolved in 1835 in favour of the testator's right to endow property in the manner he did.
The waqf for the benefit of the family is permitted in Islam and it was an institution until it was challenged in the court. The Privy Council declared waqf alal aulad invalid in 1894 in the famous case of Abul Fata Mohomed-versus-Russomoy. The decision of the Privy Council caused considerable stir among the Muslims who believed that the verdict was an infringement of the Muslim personal law. A representation was made to the government of India thanks to which a new act called the Mussalman Waqf Validating Act was passed in 1913, which eliminated the disability created by the Privy Council decision.
Subsequently, the Bengal Waqf Act 1934 made some changes in the management structure of the waqf estates. It was further amended under the East Pakistan Waqf Ordinance 1962, which consolidated and amended the law relating to the administration and management of waqf properties. The ordinance is still in operation barring some minor amendments made in it by the Waqf Ordinance 1988 and Waqf Ordinance 1998. The waqf properties are administered by the government through a Waqf Directorate.
The manager appointed to look after the waqf property is called the mutawalli, who is treated as the manager or agent of the Almighty Allah. He is appointed orally or under a deed by which a waqf is created. The dedicator or wakif himself may become the mutawalli. In the waqf instrument, he may lay down the manner as to the succession of mutawallis. As the property stands transferred to the ownership of Allah, the dedicator, like any other mutawalli stands in the position of a manager of the trust property and he can not claim the ownership of the property. A mutawalli may appoint his successor when the instrument of waqf provides otherwise.
Similar to a Muslim dedicator, a Hindu individual may also dedicate property for religious or charitable purposes like establishment and worship of an idol, feeding of brahmans and the poor and performance of a religious ceremony like the durga puja. Such property is called debottar formed usually by will or gift. No writing is necessary for creation of debottar. But in case of an endowment created by will, the will must be a written document attested by at least two witnesses. No religious ceremony or formation of trust is required for purpose of debottar. All that is necessary is an unambiguous declaration that the property is set apart for this purpose. However, a trust may be created in favour of public religious charity.
Debottar property dedicated absolutely for religious purposes is often transferred to a temple and the manager of such temple is called shebait. A math or abode for students of religious studies receiving such property manages it by a mohanta. A temple is not a juridical person but a deity has a juridical status. Both the temple and deity can sue and be sued through the shebait or mohanta. No shebait can alienate the debottar property except for legal necessity. A shebait may be removed from his office by the court on ground of misconduct. Court can also direct him to render accounts. [Md Mamtazuddin Ahmed and Aminul Huq]