More on Waqf

A waqf

  • is a permanent dedication of property
  • the dedicator should be Muslim of age, of sound mind, full right of disposal over propert
  • the purpose must be religious, pious or charitable
    • can be for immediate descendants ‘and for collaterals with the remainder to go to the poor’

The property of a waqf

  • must be capable of legal ownership and legal transfer
  • must be in existence at time of creation of waqf, and must be capable of immediate delivery

Creation of a waqf

  • divesting of ownership – founder loses title in property settled; not recoverable
  • verbal or in writing
  • by will: subject to same restrictions as and does not have any priority over other gifts or legacies
  • must not be subject to condition that is not in existence at the time of the constitution of the waqf
  • cannot be timed to commence after death (otherwise it is a will)
  • shall not be subject to an option
  • shall not be subject to a condition that is inconsistent with the essence of the waqf
  • must indicated either explicitly or implicitly the permanence of the waqf and cannot be revoked after its dedication has been completed

Mutawalli (trustee)

‘The first administrator is the founder himself, and he shall be deemed the mutawali if he does not appoint another person to act in that capacity. He may appoint one or more mutawali during his lifetime, or provide for this to take place after his death. He may repeatedly dismiss any mutawali he has appointed on any grounds. On the death of the founder, the mutawali shall be dismissed unless otherwise stated.’

  • Judge may appoint a mutawalli in the absence of one, preferably a descendant or relative of the founder
  • mutawalli may be male or female, may be non-Muslim
  • mutawali represents waqf in all legal actions, and acts on behalf of beneficiaries

 

Jamal J. Nasir, The Islamic Law of Personal Status (Graham and Trotman,  1990), 275-276