What is waqf and discuss the essentials of a waqf?
According to our Indian legal system, if a person acquires right of ownership then along with this right, he also acquires various other rights like right to have possession, right to alienate the property etc. The owner of a property has right to dispose of the property and he can dispose of the property by any manner. In Muslim religion, if a person wants to use that property for any religious or charitable purpose then he can transfer the ownership of that property to Allah and can create a waqf over that property.
Under Muslim religion, if a person transfers the ownership of his property to Allah and uses the income of that property for some religious or charitable purposes that is known as waqf. According to Abu Yusuf, Waqf is the detention of a thing in the implied ownership of Almighty God in such a manner that its profit may revert to or be applied to the benefits of his creatures.
There are three main elements of waqf and these are:-
(1) Ownership must be transferred to God
(2) There must be extinction of the founder’s right
(3) The benefit of the property must be used for mankind
It means that the person must transfer the ownership to Allah and by transferring his right of ownership to Allah, his all the rights in property must be extinct and the income of the waqf property must be used for specific religious or charitable purpose.
Under Muslim religion, if a person dedicate the property to Allah that dedication should be permanent. It means that he must transfer the property to Allah permanently. According to Muslim religion dedication may be either oral or in writing.
In the leading case of Mohammad Shah vs Fasihuddin (AIR 1956 SC 713) the Supreme Court held that, where Moscow was used as a place of worship for a long time and the worship was also performed it will be presumed that property was dedicated as waqf property.
Moreover according to Muslim law the person who transfers the ownership must be Muslim and of a sound mind and must be major. According to Muslim law, the transfer of ownership must be for a particular purpose and that purpose must be recognised by the Muslim religion.