“It is the detention of a thing in the implied ownership of almighty god in such a manner that its profits may revert to or be applied to the benefit of his creatures.”
The statement can be validly considered under the Muslim law of Wakf. The usufruct of the corpus is used for a religious or pious or charitable purpose. When a person transfers any immovable property for the creation of wakf he/she loses ownership in the property and it vests in the god or Allah. The property remains the same but the benefits out of it i.e. the usufruct is used for the intended purpose. It can be given for any purpose which is not against the ideals of Islam and also not be against public policy or any other law in force.
- the religious or pious or charitable purpose should be recognised by Muslim law and can be for poor but always has a Muslim colour and cannot be given to other religion and if the person gives then should have been for a secular reason.
- it is of permanent nature and no restrictions can be imposed by way of the time limit. It comes as a whole without any conditions.
- the ownership of the property vest in the god and not in any person. Its benefit is always for the good of the public or even in some cases, a private wakf can be created.
- the corpus remains as it is and no change takes place except according to the wishes of the wakif and the usufruct from it is used for the benefit of humankind.
However, in Shia is it still unclear whether the property rests with the god or with any other person.
- irrevocable – once the wakf is created it cannot be revoked by anyone not even by the wakif and it one of the important feature of wakf creation.
- perpetuity – once it is created it is perpetual in nature and the heirs of the wakif have no right in it except if they are appointed as the Mutawalli.
- inalienability – the wakf property cannot be alienated except if the power is given by the wakf-deed and if the court authorises it in certain conditions. However, if the property gets damaged it can be sold and new property can be purchased with the money for the same original purpose.
Modes of creation – it can be created by way of gift, will, upon death bed and by an immemorial user. The gift is given of immovable property. The will can be made of 1/3rd property of the wakif. During death illness, a person can create wakf of his 1/3rd property with immediate possession. The immemorial user is the wakf-property in existence from time immemorial. The power, duties and removal of Mutawalli is given in Wakf Act, 1995.
The wakf or vesting of property in god is completed when the first mutawalli is appointed. The person can be wakif himself or any person he wished to appoint by wakf-deed. Through him, the management and affairs of the wakf are carried out and wishes of the wakif implemented.
Since it is the vesting of property in god the wakf can’t be revoked after creation because no one deprive god of his own interest. If it is a gift it can be revoked before possession is given. If another Will be made then Will of wakf is revoked. In every case, the instrument is revoked before the creation of wakf and not the institution of the wakf.