WAQF AND MARZ UL MAUT

This article is written by Jiya Aggarwal of 5^th Semester of BA.LLB of Vivekananda Institute of Professional Studies, Delhi, an intern under Legal Vidhiya

ABSTRACT

This article delves into two significant concepts in Muslim law which are practised in India-waqf and Marz-ul-Maut. Waqf is type of gift permanently given for religious or charitable purposes to God. This type of gift cannot be sold, inherited, or altered once given. It is intended for the benefit of the poor or for religious purposes, and must meet essential conditions such as being irrevocable, permanent, and unconditional. It can be categorised into two types, public and private with different legal implications. On the other hand, Marz-ul-Maut pertains to gifts made under the apprehension of eminent death. It differs from ordinary gifts because it requires a special condition that it should be made during serious illness that is likely to result in death and causes death.

This article explores meaning of waqf and Marz-ul-Maut and examines essential conditions required for them. By examining both waqf and Marz-ul-Maut, this article provides comprehensive understanding of these concepts, their legal requirements, and the significance in the framework of Muslim personal law.

KEYWORDS

Gift, Personal Law, Deathbed, Marz-ul-Maut, Will, Waqf, Muslim Law, testamentary gift, public waqf, private waqf

INTRODUCTION

In India, everyone is allowed to follow their personal law. This is a legacy which British raj left behind as they let all religions be governed according to their own personal laws. Muslim personal law provides provisions for each and every aspect of life. Waqf and Marz-ul-Maut are two types of gifts which are made according to some conditions and essentials elements mentioned under Muslim personal law. In this article we will explore the meaning, features, essential conditions to gain the holistic knowledge of both the concepts waqf and Marz-ul-Maut. Waqf is a gift dedicated to God permanently with the intention that the produce out of the property will be utilised for religious bias or charitable purposes It only belongs to the god and cannot be consumed for selfish purposes. It is dedicated for a particular cause For example, it might be set up to fund the mosque, school, or hospital. The key characteristic of waqf is that it is perpetual i.e., once given it continues for indefinitely. This article will elaborate on various aspects of waqf such as its kinds, legal incidents, requirements, etc. Marz-ul-Maut is the gift made during deathbed illness in the apprehension of death and is different from ordinary gift. The apprehension is of grave nature but it is not made under the influence of anyone or by fraud but due to realisation that death is quite close. The basic idea is to ensure that the property is distributed in a fair manner and according to Islamic principles. Marz-ul Maut basically deals with legal and inheritance issues which affect how a person’s property is divided after his death.

WAQF

In Muslim law, the law of waqf is quite important as it is interwoven with the entire religious life and social economy of Muslims. Its origin is in the traditions of the prophet as during the lifetime of the prophet, he himself made waqf of land for the travellers. Although it was not compulsory for every Muslim to make waqf but this tradition encouraged Muslims to make waqf for different purposes all over the world.

MEANING OF WAQF

The literal meaning of waqf is detention or stoppage. In India, Abu Yusuf views are accepted and he believes that waqf is the detention of a thing given in the ownership of the almighty god in such a way that its profits are used for the benefit of the people. The detention once given is absolute and cannot be sold, given, or inherited and thus it becomes non-transferable.

The person who transfers the property is called Waqif, the person who manages and looks after the property is called Mutawalli and the person who gets benefit under waqf is called Alaihim.

A simple definition of waqf is provided in Section 2(1) of Mussalman Waqf Validating Act, 1913. According to this section,

Waqf” means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious, or charitable.[1]

KINDS OF WAQF[2]

There are 2 types of waqf:

1. Public Waqf– It is that waqf which is made by public at large and the object is mainly religious or charitable.

2. Private Waqf– In this type of waqf the beneficiaries are the members of the family and it is private in nature. It is also called family waqf.

KINDS OF WAQF BASED ON THEIR PURPOSE[3]

1. Waqf Ahli: This waqf is primarily established to benefit the children and descendants of the waqf. But the beneficiaries cannot sell or dispose of the property which is basically the subject matter of the waqf.
2. Waqf Khayri:  This type of waqf is established for charitable and philanthropic purposes. This is created for people of various economic sections of the society and is utilised as investment for building mosques, shelter homes, schools, colleges, etc.
3. Waqf al-Sabil: In this type of waqf, the beneficiaries are general public and is usually created for the purpose of construction of public utility, such as mosques, power plants, water supplies, graveyards, etc.
4. Waqf al-Awaridh: This type of waqf maybe creator for emergency or unforeseen situations that negatively impact livelihood and well-being of a community. For example, it might be created for medication purposes or to fund maintenance of utility service of a village or neighbourhood.

KINDS OF WAQFS BASED ON THEIR NATURE OF OUTPUT

1. Waqf-Istithmar: This type of waqf is created for using assets for investment purposes. These assets generate income which is utilised for construction and renovation of waqf properties.
2. Waqf-Mubashar: This type of waqf is used to provide services for the benefit of charitable recipients for example, schools, utilities, or public services.

LEGAL INCIDENTS OF VALID WAQF[4]

Under Hanafi law following conditions are required such as permanent dedication of property to God, competent person and purpose must be for charitable, pious, or religious purposes. Following are legal incidents of a Valid Waqf

1. Permanently Dedicated to God- Once a waqf is given, it is permanently created for forever in dedication of God. It cannot be given for unlimited or for temporary purposes, as it would be considered as void.
2. Irrevocable- Waqf cannot be removed or altered when it is done. It cannot be repudiated in the future. If the maker of the waqf reserves the right to revoke it, the it will be considered as void ab initio.
3. Absolute And Unconditional- Where waqf is created depending upon certain future date, events, then it will be held void ab initio. A property cannot be transferred to all Almighty God subjected to a condition.
4. Application Of Income of Waqf Property- The waqf is used for benefit of the poor or for religious, pious, or charitable purposes. It cannot be used for non-charitable purposes and it is essential that ultimate benefit must be for poor or for charitable purposes.

ESSENTIALS OF A VALID WAQF[5]

The following are essential conditions for a Valid Waqf:

1. There Must Be Permanent Dedication of The Property- The Supreme court in the case Mohd Ismail vs Thakur Sabir Ali[6], observed that the expression permanent dedication in the definition of waqf under Section 2(1) of the act signifies that the waqf property is permanently vested with God. The legal effects of pub property to God have the following legal effect: perpetual, irrevocable, inalienable, unconditioned.
2. The Waqif Must Be a Competent Person- At the time of dedicating the property, the Waqf must be a completed person that is, he must have the right to constitute the waqf and he must possess the capacity. Capacity to constitute waqf include person who is of sound mind and have attained the age of majority. On the other hand, he must possess the property which means he must be owner of the property and should have absolute interest in the property vested for waqif.
3. Subject Matter of The Property Must Be Transferable Property[7]– The subject matter can be any moveable or immoveable but important thing is that it should be of the waqif.
4. The Object of Waqif Must Be Religious, Pious, And Charitable- Waqf is made for getting religious and spiritual benefits and it may be created for any object which is recognised in Islam as religious, pious, or charitable. The object must not be un-Islamic and if it is un-Islamic, then it will be void. Certain lawful objects of making waqf are construction or Maintenance of mosque, Imam bara, burning lamps in mosques, construction of schools, etc.
5. Formalities and Modes of Creation of the Waqf- As such, there are no prescribed special formalities in the Muslim law for the creation of waqf. The intention to make waqf must be clear. Registration of waqf is not necessary even if it is an immoveable property.

MODES OF CREATION OF WAQF[8]

Waqf can be created either:

• By Inter-Vivos- It means during lifetime i.e., it can be created during the lifetime of waqif and is complete as soon as the declaration is made.
• By Will- waqf can be made through a testamentary Will, which takes place after the death of the Wakif which comes into effect after his lifetime. But there are certain restrictions, as he cannot give more than one third of his property in waqf in testamentary Will unless consented by the heirs.
• During Death Illness- Waqf can be made during the death- illness, which will operate only to the extent of 1/3 of the property, without the consent of the heirs of the wakif.

DISTINCTIONS BETWEEN WAQF AND TRUST

BASIS	WAQF	TRUST
Purpose	Restricted to 3 purposes: religious, charitable, and pious purposes	Can be created for any lawful purposes
Founder As Beneficiary	Not possible, only allowed under Hanafi law	Is possible
Revocation	Permanent in nature thus cannot be revoked but if created by Will then can be revoked	Can be revoked any time either by author or the competent beneficiary
Parties	Wakif, Mutawalli, Allahin	Author, Trustee, Beneficiary
Creation	Created through either through Wakfnama or Will	Can be created through deed or Will
Transfer of Property	Only 1/3rd property can be transferred	No such restriction is there

MARZ-UL-MAUT

Different followers from various Islamic schools have different opinions on the concept of Mraz-ul-Maut. For example, the Maliki School does not recognise its applicability, while Safai and Hanafi schools accept it under certain circumstances. Similarly, the doctrine of donatio mortis causa, which refers to a gift of personal property made in anticipation of death, is a legal principle that is valid if the donor dies because of the illness they were anticipating.

In India, Muslims have the right to follow their own personal law. Shariat is the guiding principle of their personal civil law and one of the specific aspects of this law addresses Marz-ul-Maut (deathbed gifts), which can only be carried out if there is a genuine belief that the person making the gift is close to death.

WHAT IS MARZ-UL-MAUT?

Marz means illness, disease, or malady and Maut means death and Marz-ul-Maut means disease that results in death. Gift made during the apprehension of imminent death and the person later dies, then it is called death-bed-gift or Marz-ul-Maut. According to Baillie, Marz-ul-Maut is an illness which in highest probability will result in death.[9] According to Amir Ali, if a disease continues for more than a year, then it cannot be considered as Mraz-ul-Maut because as Durr-ul-Mukhtar puts it, when a person suffers from a melody, which is ordinarily mortal for over a year it seizes to have any apprehensive influence on his mind as it becomes part of his nature.[10] Thus, Marz-ul-Maut is when an illness causes apprehension of death and the person actually dies due to the illness. The illness has the highest probability of causing death ensuing within a short span of time. An older aged man who is not suffering from any disease will not come under this because old age is not a disease.

ESSENTIALS OF MARZ-UL-MAUT

Following are essential conditions which must be fulfilled to constitute Marz-ul-Maut:

• Person must be Suffering from an illness
• They must be apprehension of death in the mind of the patient
• The person actually dies

The supreme court in the case Fazal Ahmed vs Rahim Bibi ((1918)[11] laid down the following test to determine whether an illness is Marz-ul-Maut or not:

1. Proximity of death due to the illness
2. Subjective apprehension in the mind of patient that death is likely to occur
3. External indication that patient would be unable to do ordinary tasks.

GIFTS MADE DURING MARZ-UL-MAUT

Marz-ul-Maut is considered as a combination of both a gift as well as a Will(Wasiyat). All the essential ingredients of a valid gift are followed by the gift of Marz-ul-Maut, such as declaration by the donor, acceptance by the done himself or any competent person on behalf of done, followed by immediate delivery of possession of the gifted property during the lifetime of the donor. It is also considered as a Will because only one-third of the total property can be given as a gift unless the heirs’ consent to bequest their share of the property.

The main reason for combining gifts with Will is because when a person makes a gift under the apprehension of death, the mental faculties are not at par with that of a person not under certain apprehension. Thus, Marz-ul-Maut is a combination of both gift and Will where gift is made under pressure of eminent death and is done to the extent of one-third of the property of the donor.

CONCLUSION

Waqf and Marz-ul-Maut are two concepts of Muslim personal law in India and represent unique aspects of legal and ethical traditions. Examining these concepts helps one to gain holistic view of Muslim personal law and gain valuable insights into legal and ethical frameworks which guides personal and communal responsibilities within Islamic traditions. These concepts provides diverse aspects of life and death in Islamic legal principles. Thus, gaining holistic view of both the concepts is crucial to understand what basically is in Muslim personal law and its various aspects.

REFERENCES

1. Indian numbered acts LII of India. Available at: http://www.commonlii.org/in/legis/cen/num_act/mwva1913251/ (Accessed: 13 September 2024).
2.  John, J. et al. (2019a) Concept of Waqf under Muslim law, Academike. Available at: https://www.lawctopus.com/academike/concept-waqf-muslim-law/#:~:text=CREATION%20OF%20WAKF&text=the%20following%20ways%20%E2%80%93-,1.,2. (Accessed: 13 September 2024).
3. Asthana, S. (2022) Concept and explanation of Waqf under Muslim law, ipleaders. Available at: https://blog.ipleaders.in/concept-waqf-muslim-law/ (Accessed: 14 September 2024).
4. Law Bhoomi (2024) Waqf in Muslim law, Law Bhoomi. Available at: https://lawbhoomi.com/waqf-in-muslim-law/#Legal_Incidents_of_Waqf_in_Muslim_Law (Accessed: 13 September 2024).
5. John, J. et al. (2019) Concept of Waqf under Muslim law, Academike. Available at: https://www.lawctopus.com/academike/concept-waqf-muslim-law/ (Accessed: 13 September 2024).
6. 1962 AIR 1722, 1963 SCR (1) 20 Thakur Mohd. Ismail vs Thakur Sabir Ali on 26 March, 1962. Available at: https://indiankanoon.org/doc/1827815 (Accessed: 13 September 2024).
7. Waqf- Muslim law. Available at: https://gyansanchay.csjmu.ac.in/wp-content/uploads/2023/06/08-WAQF-2.pdf (Accessed: 13 September 2024).
8. John, J. et al. (2019a) Concept of Waqf under Muslim law, Academike. Available at: https://www.lawctopus.com/academike/concept-waqf-muslim-law/#:~:text=CREATION%20OF%20WAKF&text=the%20following%20ways%20%E2%80%93-,1.,2. (Accessed: 13 September 2024).
9. Baillie digest of Muhammadan law part- 1 1865 p-552
10. Msbrij University. Available at: https://msbrijuniversity.ac.in/assets/uploads/newsupdate/Law of Will (Muslim law).docx (Accessed: 14 September 2024).
11. (1918) ILR 40ALL238

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[1] Indian numbered acts LII of India. Available at: http://www.commonlii.org/in/legis/cen/num_act/mwva1913251/ (Accessed: 13 September 2024).

[2] John, J. et al. (2019a) Concept of Waqf under Muslim law, Academike. Available at: https://www.lawctopus.com/academike/concept-waqf-muslim-law/#:~:text=CREATION%20OF%20WAKF&text=the%20following%20ways%20%E2%80%93-,1.,2. (Accessed: 13 September 2024).

[3] Asthana, S. (2022) Concept and explanation of Waqf under Muslim law, ipleaders. Available at: https://blog.ipleaders.in/concept-waqf-muslim-law/ (Accessed: 14 September 2024).

[4] Law Bhoomi (2024) Waqf in Muslim law, Law Bhoomi. Available at: https://lawbhoomi.com/waqf-in-muslim-law/#Legal_Incidents_of_Waqf_in_Muslim_Law (Accessed: 13 September 2024).

[5] John, J. et al. (2019) Concept of Waqf under Muslim law, Academike. Available at: https://www.lawctopus.com/academike/concept-waqf-muslim-law/ (Accessed: 13 September 2024).

[6] 1962 AIR 1722, 1963 SCR (1) 20 Thakur Mohd. Ismail vs Thakur Sabir Ali on 26 March, 1962. Available at: https://indiankanoon.org/doc/1827815 (Accessed: 13 September 2024).

[7]  Waqf- Muslim law. Available at: https://gyansanchay.csjmu.ac.in/wp-content/uploads/2023/06/08-WAQF-2.pdf (Accessed: 13 September 2024).

[8] John, J. et al. (2019a) Concept of Waqf under Muslim law, Academike. Available at: https://www.lawctopus.com/academike/concept-waqf-muslim-law/#:~:text=CREATION%20OF%20WAKF&text=the%20following%20ways%20%E2%80%93-,1.,2. (Accessed: 13 September 2024).

[9] Baillie digest of Muhammadan law part- 1 1865 p-552

[10] Msbrij University. Available at: https://msbrijuniversity.ac.in/assets/uploads/newsupdate/Law of Will (Muslim law).docx (Accessed: 14 September 2024).

[11] (1918) ILR 40ALL238

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