Examine the validity of the following Wakfs giving reasons in support of your answer:- A Wakf for" the maintenance of a private tomb and burning of a lamp therein, and the maintenance of a tomb of a saint, A Wakf of a property subject to a mortgage.

Question: Examine the validity of the following Wakfs giving reasons in support of your answer:- 

A Wakf for" [BJS 1980]

• the maintenance of a private tomb and burning of a lamp therein, and

• the maintenance of a tomb of a saint,

• A Wakf of a property subject to a mortgage.

Find the question and answer of Muslim Law only on Legal Bites. [Examine the validity of the following Wakfs giving reasons in support of your answer:-

A Wakf for"

• the maintenance of a private tomb and burning of a lamp therein, and
• the maintenance of a tomb of a saint,
• A Wakf of a property subject to a mortgage.]

Answer

Maintenance of a private tomb and burning of a lamp therein

Wakf is a legal concept in Islamic law that refers to the permanent dedication of property or assets for a specific religious or charitable purpose. Wakfs are typically created for the benefit of the Muslim community as a whole, and they are governed by specific laws and regulations.

The validity of a wakf created for the maintenance of a private tomb and the burning of a lamp therein is a matter that is determined by the laws of the jurisdiction in question. In general, a wakf for this purpose is considered to be valid if it meets the requirements of the applicable laws and regulations.

In India, the Wakf Act, of 1954 governs the creation and management of wakfs. Under this Act, a wakf can be created for a lawful purpose and it should be for the benefit of the Muslim community or a section thereof or for the benefit of an individual or for the maintenance of the tomb of a Muslim saint.

In Mazhar Hussain Khan v. Abdul Hadi Khan, 9 Ind Cas 753, Banerji J. held that where a substantial portion of the income of the wakf property was devoted to the expenses of the annual fateha of the founder and the members of her family, the annual expenses of burning lamps in a mosque and the salary of Hefiz and readers of the Koran the wakf was valid. 

The stance was made clear in a later case of Kunhamkutty v. Ahmad Mudaliar, ('35) 22 A.I.R. 1935 Mad. 29, in which the Court held that the dedication of property for the purpose of providing funds for the recitation of the Koran over the tomb of a private person, although be a descendant of the prophet, did not create a valid wakf. It noted that the dedication of property, the income of which is to be devoted merely for the purpose of reciting the Koran over the tomb of a private person or burning a lamp therein does not create a valid wakf under the Mohamedan Law.

In conclusion, the validity of a wakf created for the maintenance of a private tomb and the burning of a lamp therein depends on the laws of the jurisdiction in question. In India, under the Wakf Act, of 1954, a wakf for this purpose is considered to be valid as long as it is for the benefit of the Muslim community or a section thereof or for the benefit of an individual or the maintenance of the tomb of a Muslim saint. In the present case at hand, the wakf is created for the maintenance of a private tomb or burning a lamp on the tomb which is not created for valid purposes.

Maintenance of a tomb of a saint

A Wakf created for the maintenance of a tomb of a saint could be considered valid, as long as it adheres to the guidelines and regulations set forth in Islamic law and complies with the laws and regulations of the country in which it is established.

As per the Wakf Act of 1954, the purpose of Wakf should be for the benefit of:

• Muslims or
• the maintenance of the mosque or
• for the education of Muslims or
• for the benefit of poor Muslims or
• for the purpose of any other object of general public utility in the interest of Muslims.

The maintenance of the tomb of a saint could be considered an object of general public utility in the interest of Muslims, and therefore it would be a valid purpose for a Wakf.

However, it is important to note that the Wakf must be created in accordance with the legal requirements for creating a Wakf, such as being in writing and having the required witnesses. Additionally, the Wakf must be registered with the state Wakf board and should be in compliance with the state Wakf rules and regulations.

In Kaleloola Sahib v. Naseerudeen Sahib, (1894) I.L.R. 18 Mad. 201, the Hon’ble Madras HC has clearly observed that the Darga is a family Darga, that the dedication, even assuming that it had been made out, was only for the annual commemoration of the date of demise of a private person, and that however holy that person might have been considered by the members of his family and his disciples, he could not be deemed to be a saint. Thus, merely reciting Koran near the tomb as a saint in the Darga or performing fatehas, will not constitute a religious, pious or charitable activity for a wakf under Mohammedan Law.

A Wakf of a property subject to a mortgage.

The literal meaning of the word waqf is ‘detention’. In the legal context, waqf means the detention of a property so that its produce or income may always be available for religious or charitable purposes. When a waqf is created, the property is detained or, is ‘tied up’ forever and thereafter becomes non-transferable.

A Wakf created of a property subject to a mortgage could potentially be considered invalid, as the property may not be considered the full and complete ownership of the person creating the Wakf.

In general, the property or assets dedicated to a Wakf must be the full and complete ownership of the person creating the Wakf, and cannot be encumbered by any form of debt or mortgage.

In Md. Ismail v. Thakur Sabir Ali, [1963 SCR (1) 20], SC held that even in wakf alal aulad, the property is dedicated to God and only the usufructs are used by the descendants.

In light of these cases, it can be seen that in India, the Wakf created on a property which is subject to a mortgage, is not considered a valid Wakf.

It is important to note that the laws and regulations regarding Wakfs may vary depending on the country and jurisdiction, so it would be best to consult with a legal expert to determine the validity of a specific Wakf.

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