Difference in Wakf under Islamic Law and a Trust under Trusts Act, 1882
S J Tubrazy
Waqf property’ means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not include property of any waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descendants.
No religious motive was necessary in a Trust, whereas a Waqf was generally made with a pious, charitable or religious purposes. Trust could be for any lawful object, whereas ultimate object for a Waqf must be benefit to mankind. Trust property would vest in the Trustees, whereas Waqf would vest in God. Trustee had got a larger power than a Mutawalli of a Waqf, who was only a Manager or Superintendent. Not necessary that a Trust must be perpetual, irrevocable or inalienable, whereas a Waqf was perpetual, irrevocable and inalienable. Trust was regulated by the provisions of Trusts Act, 1882, but the provisions of Trusts Act, 1882 were not applicable to Muslim Waqf. Muslim Waqf would owe its origin to a rule laid down by Prophet Muhammad (p.b.u.h.) and would mean “the tying up of property in the ownership of God and the devotion of the profits for the benefit of human beings”. -Once it was declared that particular property was Waqf or any such expression was used which implies Waqf or the tenor of the document showed that a dedication to pious or charitable purposes was meant, the right of the Waqif was extinguished and the ownership was transferred to God. Donor could name any meritorious object as the recipient of the benefit. Manager of Waqf was the Mutawalli, the Governor, Superintendent or Curator and could be called as prosecutor. Perpetuity was the essential trial of a Waqf, If from change of circumstances and lapse of time or for some other proper reasons, it had become impossible to apply the property in the manner directed by Waqif the Court could apply it for similar purpose by different means as near as possible to the original intention of the grantor by varying the scheme by applying “Cypres doctrine” which had received judicial recognition.