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KEY TAKEAWAYS

  • A Muslim can give away his property, create a wakf, or use his testamentary powers, such as establishing a Will,under Islamic law.
  • It is permissible for a Muslim to make a wakf, according to Section 3 of the Wakf Act 1955.
  • A waqf can be made in writing or by an oral representation. The existence of words emphasising the parties' intentions is required in the case of an oral agreement.
  • The cypress doctrine is a trust theory in English law. A trust is implemented, or carried out as closely as practicable, according to the goals set forth in it under this notion.

INTRODUCTION

In both Hindu and Islamic law, there are numerous ways to dispose of property. A Muslim can give away his property, create a wakf, or use his testamentary powers such as establishing a Willunder Islamic law.

Under Islamic law, the concept of a Will is a form of compromise between two opposing tendencies. One, according to the prophet, a person's property must be distributed to his heirs after his death, and this rule is regarded as divine law, and any interference with it is unacceptable. On the other hand, every Muslim has a moral obligation to make adequate arrangements for his or her possessions after death.

UNDERSTANDING WILL

According to Section 3 of the Wakf Act 1955, it is legal for a Muslim to make a wakf for the following purposes that is in all other respects in accordance with Muslim Law.

  • For the upkeep and support of his complete or half-family, children, or relatives.
  • If the person making the wakf is a Hanafi Mussalman, the wakf may also be made for his sustenance and support during his lifetime, or for the payment of his responsibilities from the revenues and profits of the property committed:

The Hon'ble Supreme Court said in Radha Kanta Deb v. Commissioner (AIR 1981 SC 798), Hindu Religious Endowments, Orissa, that the Muslim Law considers the presence and production of a private trust to be a beneficent trust. 'wakf-alal-aulad' is another name for it. A decisive benefit is saved for God in this type of Wakfbut the property vests in the receivers and the income from the property are used for the upkeep and support of the originator's group and his relatives.

"A will or Wassiyat" is a device or, to put it another way, an instrument with which a property owner makes a disposition of his property, that is, to take effect after the death of such a person, and it is rescindable by its own nature.

It must be signed and attested in accordance with the law. After the testator's death, a will becomes an enforceable document. In practice, it gives the legatee no rights (the individual that inherits till the loss of life of the testator). It makes no difference to the testator's life expectancy. The law governing Muslim Wills is distinct from the law governing Hindu Wills or Wills established under the Indian Succession Act, 1925. This is because, according to Muslim law, the testamentary disposition of property is Divine in nature and is based on the Quran. The Indian Succession Act, 1925 does not necessarily apply to Muslim Wills.The Shariat law, or Muslim personal legal principles in India, establishes particular restrictions, rules, and methods by which a man or woman can dispose of his or her belongings. A will that has been carried out by someone can be cancelled if that person loses his sanity and becomes mentally ill after the will has been carried out.

Under Islamic Law, the notion of Waqf was formed. Before the arrival of Islam, there was no concept of waqfs in Arabia. Despite the fact that the Quran makes no mention of Waqf as such, Quranic injunctions dealing with charity are at the heart of the formation and expansion of wakfs.

UNDERSTANDING WAQF

According to Hanafi school theology, Waqf is defined as the extinction of the proprietor's ownership in the thing dedicated and its detention in the implied ownership of God in such a way that the earnings revert to and are employed for the benefit of mankind.

When we examine the word 'Waqf,' we can see that it literally means 'detention’, ‘stoppage,' or 'tying up.' It means a perpetual commitment of certain property for a pious purpose according to the legal meaning. The property should be available for religious or philanthropic uses after it has been alienated. Such a property becomes permanently encumbered and non-transferable.

In the case of M Kazim vs. A Asghar Ali [AIR 1932], it was determined that waqf in its legal sense refers to the formation of a specific property for the fulfilment of some pious or religious purpose.

Many distinguished Muslim jurists have defined Waqf in their own unique way. "Wakf is the detention of a specified thing in the waqif or appropriator's ownership, and the devotion of its profits or usufructs to charity, the impoverished, or other good purposes, to accommodate borrowing," Abu Hanifa says. Waqf includes three main components, according to Abu Yusuf.

“As defined by Abu Yusuf, waqf has three main elements. They are-

  • Ownership of God
  • The extinction of the founder’s right
  • The benefit of mankind

Waqf is defined in Section 2 of the Mussalman Wakf Validating Act, 1913, as "the permanent donation of any property by a person professing the Mussalam faith for any purpose recognised by Musalman Law as religious, pious, or benevolent."

"Wakf denotes the permanent commitment by a person professing Islam of any movable or immovable property for any purpose recognised by Muslim Law as religious, pious, or benevolent," according to the Wakf Act of 1954. A waqf can be made in writing or by an oral presentation. The existence of words emphasizing the parties' intentions is required in the case of an oral agreement.

DOCTRINE OF CYPRESS

In the subject of law, a single set of important rules or a group of laws or principles are generally obeyed. Doctrines are merely rules or principles with such a long history in the law that they have been given the more prestigious moniker of "doctrine" by lawyers and scholars.

The word cypress literally means "as close as possible." The cypress doctrine is a trusts theory in English law. A trust is implemented, or carried out as closely as practicableaccording to the goals set forth in it under this notion.

The trust cannot fail if a settlor has identified any lawful object that has already been completed or that cannot be done further. In such circumstances, the cypress philosophy is applied, and the property's income is used for objects that are as close as feasible to the object already given.

The doctrine of cypress applies to waqfs in the following situations:

  • lapse of time or changed circumstances,
  • extraordinary legal problems,
  • or where the particularised object has already been fulfilled.

The waqf may be allowed to continue further by applying the doctrine of cypress.

RELATED CASE LAWS

M. Kesava Gounder & Ors vs. D.C Rajan & Ors, 1976 MLJ 1 56

The Supreme Court in the case of State of U.P. vs. Bansi Dhar[(1973) INSC 235]was reiterated: "Where the donor has determined with specificity a special object or mode for the course of his benefaction, the Court cannot innovate and undo, but where a general charitable goal is projected and particular objects and modes are indicated, the Court, acting to fulfill the donor's broader benevolence and to avoid the frustration of the good to the community, rescinds the grant."

Smt. Faiqa Khatoon vs Riyazur Rahman Khan Sherwani and Anr, 2008 SCC Online All 1277

In this case, the Court held that while using the Cypress Doctrine, which means "as nearly as feasible," the wakf's money should be utilised and spent as nearly as possible in furtherance of the wakif's objective, which is to help his sons' offspring, including sons' girls.

As a result, the defendant, who is the daughter of one of the wakif's sons, is one of the heirs who falls under the definition of a 'beneficiary' under section 3 of the Waqf Act.

Paschim Singicherra Gram Panchayat and Anr vs Sailendra Kumar Bhattaacharjee and Anr., 2012 AIR CC 2627

It was held thatbecause the plaintiff is alive and he himself prayed for revocation of the gift deed, the defendants violated the terms and conditions and did not construct the stadium during the last 25 years, for which the plaintiff executed the gift deed. As a result, the Doctrine of Cypress is not applicable in this case because the plaintiff is alive and he himself prayed for revocation of the gift deed.

CONCLUSION

Waqf is a permanent property that is formed by the waqif for charitable, or religious purposes. It is legally enforceable and has the force of law behind it. If a person believes his or her rights have been infringed, he or she may seek justice through the courts. Furthermore, the principles, abilities, and responsibilities of mutawalli are extremely important to learn about this topic.

Wakf refers to the permanent establishment of property for religious or charitable reasons. It also has a legal basis, i.e., it is legally binding and enforceable. If a person believes his or her right has been violated, he or she may seek redress in the Civil Court.

The concept, powers, and responsibilities of mutawalli are crucial to understanding while studying waqf. Such powers can only be used if there is a definite vacancy for the position of mutawalli or if there is a disagreement about the competence or eligibility of the current mutawalli.

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