A wakf may be testamentary or inter vivos. A testamentary wakf, which may be made either verbally or in writing, comes into effect after the death of the wakif and is subject to the same restrictions as a bequest to an individual.
According to Hanafi law, wakf is a unilateral declaration, and therefore, a wakf inter vivos can be created and completed by a mere declaration of endowment by the owner. The Allahabad High Court had once held that the wakf is not complete, unless the declaration of wakf is followed by the appointment of a Mutawalli (i.e., manager) and possession of the property is delivered to him. (Muhammed Aziz-ud- din v. The Legal Remembrancer, (1893) 15 All. 321)
However, a later Full Bench decision of the same Court has laid down that a mere declaration of endowment by the owner would be sufficient to complete the wakf: Mohammad Yasin v. Rahmat lilahi, A.I.R. 1947 All. 201). If, after constituting the wakf, the dedicator continues in possession, he does so as a trustee for the beneficiaries under the wakf.
According to Shia law, a wakf is a bilateral contract. Therefore, a wakf inter vivos cannot be created by a mere declaration. There must also be delivery of possession, unless the wakif, i.e., the dedicator, constitutes himself the first Mutawalli, in which case, the character of his possession should be changed from that of the owner to that of a Mutawalli.
No formality is necessary to constitute a valid wakf. It may be created either orally or by a deed. It is enough if the intention to create a wakf is unequivocally declared by the language used.
Where a wakf is created for mixed purposes, some of which are lawful and some are not lawful, the wakf is valid as regards lawful purposes, but fails as to the unlawful purposes, and the property which is dedicated for unlawful purposes reverts to the wakif. (Mazhar Husain v. Abdul, (1911) I.L.R. 33 All. 400)
For the creation of a valid wakf, the dedication should not depend on a contingency, and the appropriation must at once be complete, and must not be made to depend on anything.
The above principle is illustrated in a case where a Muslim woman conveyed her immovable property to her husband and two other persons as trustees, upon trust to maintain herself and her children out of the income, and to hand over the property absolutely to her children on their attaining majority.
The trust further provided that if she should die without leaving any children, the income of the property was to be used by her trustees for the maintenance of a mosque. Ten years after the date of the trust, she died without leaving any children, and the trustees of the mosque claimed the income. It was held that the trustees could not do so, as the wakf was contingent. (Pathukutti v. Avathalakutti, (1883) 13 Mad. 66)
But the provision for the payment of debts of the wakif does not import a contingency, and the wakf is vaild. (Khalil-ud-din v. Shri Ram. (1934) I.L.R. 56 All. 293) Thus, if a wakfnama (deed of wakf) contains a direction that till the satisfaction of specified debts of the wakif, the wakfnama should not be enforced, and this would be a valid wakf.
A Muslim executes a deed of wakf, which contains a direction that until payment of specified debts due by him, no proceedings under the wakfnama should be enforceable. Is the wakf valid?
Yes, the wakf is valid. (Khalil-ud-din v. Shri Ram, (1934) I.L.R. 56 All. 293, referred to above)
Although a wakf may be created either orally or in writing, where a wakf of immovable property of the value of Rs. 100 or upwards is created by a written instrument, it requires compulsory registration under the provisions of the Indian Registration Act.
Wakf by Immemorial User:
A wakf may be inferred from immemorial user, even though there may be no direct evidence to show when and how it was originally set apart, e.g., when a land has been, from time immemorial, used for the purpose of a burial ground, then the land is, by user, wakf.
Where for a considerable number of years, the public offered prayers in a mosque close by a tomb of a Muslim saint and an annual uras (anniversary), which was attended by persons belonging to a particular sect of M uslim (Momins), was regularly held there, it was held that it must be presumed that the mosque had been duly dedicated, and had become wakf by user.
But the mere burial of a saintly person in a plot of land does not convert that land into trust property. In the absence of an intention to dedicate, or a dedication by the owner mere user will not divest land of its private character and make it wakf. There must be proof of dedication or of user, such as saying of prayers in a congregation.
The Supreme Court has held that when a customary right to perform religious ceremonies and functions over certain land belonging to a zamindar had been acquired by Shias by prescription, such a right cannot be defeated by a derivative title to the land claimed by any other party under the superior title-holder, namely, the zamindar.
The Court observed that, in such a case, the prescriptive right would enure for the benefit of all the persons belonging to that sect i.e., all Shias), notwithstanding the superior title of the zamindar. (Gulam Abbas v. State of U.P., (1982) I S.C.C. 71)