Wakf and the mutawalli

1. Definition

Abu Hanifa described wakf as the tying up of the substance of a thing in the ownership of the wakif and the devotion of its usufruct to charity. His disciples Abu Yusuf and Imam Muhammad, whose view prevails, held that the wakif's ownership is extinguished and vests in God, the usufruct being applied for the benefit of mankind. Section 3(r) of the Waqf Act, 1995 defines waqf as the permanent dedication of any movable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable. Wakfs (other than charities and charitable and religious endowments) are among the matters in section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.

2. Essentials of a valid wakf

• Competent wakif. Classical law required only that the wakif be of sound mind, a major, and the owner of the property. Since 2025 the statutory definition requires the dedication to be made by a person showing or demonstrating that he is practising Islam for at least five years and who owns the property (see section 7 below for the stay).
• Dedication of property owned by the wakif. Any property, movable or immovable, may be dedicated, provided the wakif owns it and it is capable of yielding a usufruct. A wakf of property belonging to another is void.
• Pious, religious or charitable object. Mosques, schools, the poor, pilgrims, the maintenance of the wakif's family (by the 1913 Act). An object not recognised by Muslim law, or one that is uncertain, fails.
• Permanence. A wakf for a limited period is void. If the immediate objects can fail, the ultimate benefit must go to a purpose that cannot fail, such as the poor.
• Irrevocability. A wakf once completed cannot be revoked, and a power of revocation reserved by the wakif makes the wakf void.
• Unconditional and immediate. A wakf contingent on an uncertain event is void. A testamentary wakf is valid but takes effect on death and is limited to one-third, like any bequest.

Completion. Under Hanafi law (Abu Yusuf's view, followed in India) a wakf is complete on a declaration; delivery of possession to a mutawalli is not necessary, and no writing is required. Under Shia law delivery of possession is essential. A wakf made in death-illness is valid up to one-third of the estate without the heirs' consent.

3. Kinds

• Public wakf (wakf-alal-khair): for public religious or charitable purposes from the outset, such as a mosque, an idgah or a madrasa.
• Private or family wakf (wakf-alal-aulad): for the wakif's family and descendants, with the ultimate benefit reserved for a charitable purpose.
• Quasi-public wakf: primarily for a class of persons, such as the poor among the wakif's kindred, and partly public.

4. Wakf-alal-aulad and the 1913 Act

In Abul Fata Mahomed Ishak v. Russomoy Dhur Chowdhry (1894) the Privy Council held a family wakf invalid where the gift to charity was postponed until the extinction of the wakif's family, so that the charitable element was illusory. The decision was felt to be contrary to Muslim law, and the Mussalman Wakf Validating Act, 1913 reversed it. Section 3 permits a Muslim to create a wakf for the maintenance and support, wholly or partially, of his family, children or descendants, and even of himself during his lifetime, provided the ultimate benefit is expressly or impliedly reserved for the poor or for another purpose recognised by Muslim law as religious, pious or charitable of a permanent character. The Mussalman Wakf Validating Act, 1930 gave the 1913 Act retrospective effect. Since 2025 the Waqf Act also provides that a waqf-alal-aulad shall not result in the denial of the inheritance rights of the wakif's heirs, including women heirs.

5. The mutawalli

Who may be appointed. Any person of sound mind who has attained majority and is capable of performing the duties. A woman, or even a non-Muslim, may be mutawalli where the duties are secular. Where the office carries religious duties (a sajjadanashin or the khatib of a mosque), only a person qualified to perform them can hold it.

Appointment. In order of priority: by the wakif in the deed of wakf, who may also lay down a line of succession; by the executor of the wakif; by the mutawalli on his death-bed if the deed is silent; and by the court (and under the Waqf Act, the Board) where no one else can appoint. The wakif may name himself as the first mutawalli. The office is not hereditary unless the deed makes it so.

Powers. The mutawalli is a manager or superintendent. He may collect the income, do what is reasonable for the benefit of the wakf, and sue and be sued. He may not sell, mortgage or exchange wakf property without the sanction of the court or the Board; the Waqf Act now forbids sale, gift, exchange or mortgage of waqf property outright (section 51(1A), inserted in 2013), and leases need the Board's sanction. He may claim remuneration fixed by the deed or by the court.

Duties. To carry out the directions of the wakif, keep the property in repair, apply the income to the objects, keep accounts and file returns, and, under the Waqf Act (section 50), obey the lawful directions of the Board and get the waqf registered.

Removal. The wakif cannot remove a mutawalli he has appointed unless he has reserved the power. The court may remove him for misconduct, breach of trust, misappropriation, claiming the property as his own, or unfitness. Section 64 of the Waqf Act empowers the Board to remove a mutawalli on grounds such as conviction of a specified offence, unsoundness of mind, insolvency, persistent default in submitting accounts, and mismanagement.

6. The Waqf Act, 1995 framework

The 1995 Act (amended substantially in 2013) provides for a survey of auqaf and a published list, a Central Waqf Council to advise the Union, a State Waqf Board in each State with a Chief Executive Officer, compulsory registration of every waqf with the Board (section 36), control of alienation by mutawallis, and Waqf Tribunals (section 83) to decide disputes about waqf property, with the jurisdiction of civil courts barred in those matters (section 85).

7. The 2025 amendment and the interim order

The Waqf (Amendment) Act, 2025 (Act 14 of 2025) received assent on 5 April 2025 and was brought into force on 8 April 2025. Its main changes, so far as they are settled:

• New name. The 1995 Act is renamed the Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995.
• Waqf by user abolished prospectively. “Waqf by user” (property treated as waqf because of long religious use, without a deed) is omitted from the definition. A proviso protects waqfs by user registered before the commencement, except where the property is wholly or partly in dispute or is government property.
• Five-year practice. A waqf may be created only by a person practising Islam for at least five years who owns the property.
• Government property and the designated officer. Section 3C provides that government property identified or declared as waqf shall not be deemed waqf, and an officer designated by the State Government decides whether it is government property and corrects the revenue records.
• Composition. Non-Muslim members are included in the Central Waqf Council and the State Boards.

In In Re: the Waqf (Amendment) Act, 2025, 2025 INSC 1116, decided on 15 September 2025 (B.R. Gavai C.J. and Augustine George Masih J.), the Supreme Court refused to stay the Act as a whole, but by an interim order:

• stayed the five-year practice requirement until the State Governments frame rules for determining it, observing that without such a mechanism the provision would lead to arbitrary exercise of power;
• held that the designated officer cannot adjudicate title, and that until title is finally decided by the Waqf Tribunal and the High Court, a waqf shall not be dispossessed nor the revenue records altered, and no third-party rights created;
• directed that non-Muslim members shall not exceed four in the Central Waqf Council and three in a State Board;
• declined to stay the omission of waqf by user and the requirement of registration, which the Court noted had existed under the earlier law as well.

The observations are prima facie. The challenge to the validity of the Act is pending, so any answer should present these points as the interim position.

How this is examined

The January 2026 paper asked for wakf and its essentials as a 10-mark question. Write the definition (Abu Yusuf, section 3(r)), the essentials one by one, the mode of completion under Hanafi and Shia law, the kinds, a paragraph on Abul Fata and the 1913 Act, and a closing paragraph on the 2025 amendment and the interim order. Short notes are set on the mutawalli (appointment, powers and removal) and on wakf-alal-aulad. A problem may ask whether a wakf for the founder's children “and after them for whoever my son chooses” is valid: it fails for want of a permanent ultimate charitable object.