Author: Urmika Manjrekar, G J Advani Law College, Mumbai, Maharashtra
Introduction
“In every waqf lies a silent promise: that the wealth of one can serve the welfare of many, guided by faith, protected by law.”
In India, this promise has endured for centuries, with waqf institutions shaping education, welfare, and religious life. Rooted in Islamic law yet woven into the fabric of a secular legal system, waqf is not just a charitable act—it is a legal and historical institution, often marked by complexity and conflict.
Waqf Boards, tasked with managing these endowments, operate between public duty and private devotion. Despite their purpose, they are frequently mired in mismanagement and litigation. This article explores the legal framework of waqf boards in India—their origins, evolution, and the pressing need for reform.
Abstract
A waqf (plural: awqaf) is a perpetual endowment of property—whether movable or immovable—made under Islamic law (Shari’ah) for objectives considered religious, charitable, or otherwise pious in nature.The waqf property becomes non-transferable, and any income or benefits generated from it must be permanently utilized for the specified religious or charitable purposes. Historically, waqfs have often been established through long-standing communal use and public recognition, without the necessity of a formal written deed or express declaration. Waqf by User, also known as Waqf by Usage, arises when a property is treated as waqf due to its continuous and customary use for religious or charitable purposes, even in the absence of formal dedication,with ownership vested in Allah for eternity. Indian jurisprudence has affirmed the validity of this concept, particularly under the Waqf Acts of 1954 and 1995.
This article discusses the legal nature and evolution of waqf by user, as well as its proposed abolition under current legislative developments.The Waqf (Amendment) Act, 2025 eliminates the legal recognition of the waqf by user doctrine.It would require a formal deed for the creation of any new waqf and disallow acknowledgment of waqf status based merely on extended religious or charitable use. Existing waqf properties that were registered under the user-based model will remain safeguarded, so long as they are free from legal disputes and do not fall under government ownership. The amendment is intended to enhance procedural transparency, minimize discretionary claims, and establish clearer legal standards in the administration of waqf assets across India.
Different types of Waqfs:
From an etymological perspective, the word waqf (also spelled wakf) originates from the Arabic root “waqafa,” which implies to halt, restrain, or confine—reflecting the concept of permanently setting aside property for a fixed religious or charitable purpose.
Waqf may be broadly categorized into three types based on the nature of its beneficiaries: Public Waqf, Private Waqf, and Joint (Hybrid) Waqf.
Public Waqf : An endowment for charitable or religious purposes benefiting the general public, such as funding schools, hospitals, mosques, and public utilities.
Private Waqf: An endowment created to benefit the founder’s family or specific individuals, typically supporting their education, healthcare, or financial needs in line with waqf principles.
Joint or Hybrid Waqf: Joint or Hybrid Waqf: Combines elements of both public and private waqf, distributing benefits between the founder’s family and the wider community to support both familial needs and public welfare.
Waqf (Amendment) Act, 2025:
The Waqf (Amendment) Bill, 2024 aimed to improve the management of waqf properties by addressing the limitations and gaps present in the Waqf Act of 1995. Key changes include:
Creation of separate Waqf Boards for different Muslim communities.
A centralized digital registration system for transparency.
The Bill clarifies that trusts created by Muslims under any law are not classified as Waqf, thereby maintaining individual control over such trusts and distinguishing them from dedicated Waqf properties.
The Bill enhances accountability, protects heritage sites, and aims to improve social welfare, especially for Muslim women and widows. However, concerns remain about lack of judicial oversight and the 15-year bar on religious claims to Waqf land.
Improved accountability and asset management through stronger safeguards to prevent misuse or misappropriation.
Creation of separate Waqf Boards for different Muslim communities (e.g., Agha Khanis, Bohras) and inclusive representation of various groups, including marginalized communities.
Introduction of a centralized digital registration system for improved transparency and efficiency.
Clarification that Muslim trusts are not classified as Waqf, preserving individual control.
Benefits:
More transparent management and public accountability.
Increased emphasis on social welfare, particularly for Muslim women and widows.
Upholding the integrity of culturally significant areas
Criticism:
Absence of judicial supervision over Waqf Tribunal decisions, potentially hindering due process.
The enforcement of a 15-year limitation period on raising religious claims to Waqf land may potentially undermine legitimate ownership rights, particularly in cases where the Waqf status of a property was either not officially documented or came to light only after a significant lapse of time. This provision risks excluding rightful stakeholders who, due to historical oversight or lack of access to records, were unable to assert their claims within the stipulated timeframe.
The Bill secured approval from the Lok Sabha on April 3, 2025, and was subsequently passed by the Rajya Sabha on April 4, 2025. It received Presidential assent on April 8, 2025, thereby completing the legislative process. It became the Waqf (Amendment) Act, 2025, aimed at improving Waqf property governance.
The Waqf (Amendment) Act, 2025 marks a substantial shift from previous jurisprudence, particularly in its abolition of the principle of waqf by user. Historically, this doctrine allowed property to be considered waqf merely on the basis of its prolonged use for religious or charitable purposes. Under this revised framework, however, a property can only be recognized as waqf if it is formally established through a clear and deliberate act of dedication, which requires either a formal declaration or the execution of a deed of endowment. This amendment ensures that the creation of waqf is no longer subject to informal or retrospective recognition but instead is based on a defined and intentional act by the waqif.
Furthermore, the Act introduces specific qualifications for the valid creation of a waqf. The waqif must, at the time of the endowment, hold lawful ownership over the property in question and must also be a practicing Muslim for at least five continuous years immediately prior to the dedication. These provisions are designed to prevent unauthorized or unfounded claims of waqf status, offering a much-needed legal certainty regarding the ownership and use of waqf properties. By tightening the requirements, the Act seeks to ensure that waqf assets are created with genuine intent and are not subject to arbitrary or retrospective claims.
In addition, the Act introduces significant protections for the inheritance rights of female heirs, particularly in relation to waqf-alal-aulad (family waqf). It expressly mandates that the creation of a family waqf shall not diminish or undermine the rightful share of female heirs in the estate. This provision aligns with principles of equality and ensures that female heirs receive their lawful entitlements under both personal and succession laws, thereby promoting fairness and gender justice in waqf administration.
Judicial Precedents and Case Laws in Waqf Jurisprudence
1.Abul Fata Mohamad Ishak & Others v. Rasamaya Dhur Chowdhari & Others (1891)
Issue: The case dealt with the validity of a family waqf dedicated for the benefit of descendants, with a contingent provision for charity.
Judgment: The Privy Council ruled that the family waqf was invalid, emphasizing that a waqf must primarily serve religious or charitable purposes, not just family interests.
2. Mohd Yasin v. Rahmat Ilahi (1947)
Issue: Validity of waqf without transferring possession to the Mutawalli.
Judgment: The Court held that a waqf is valid upon mere declaration by the waqif; physical possession transfer is not required under Hanafi law.
3. Rashid Wali Beg v. Farid Pindari (2021)
Issue: The case questioned whether disputes over Waqf properties could be heard in civil courts or if they fell under the jurisdiction of Waqf Tribunals.
Judgment: The Supreme Court ruled that Waqf Tribunals have exclusive jurisdiction over disputes concerning Waqf properties, barring civil courts from hearing such matters under the Waqf Act, 1995.
4. S.V. Cheriyakoya Thangal v. S.V.P Pookoya & Ors (2024)
Issue: The case dealt with whether the Waqf Board or the Waqf Tribunal has jurisdiction to appoint a Mutawalli for a Waqf property.
Judgment: The Supreme Court ruled that the Waqf Board has the authority to appoint a Mutawalli for administrative matters, while the Waqf Tribunal handles disputes. The case was remanded to the High Court for further review.
5. Md. Ismail v. Thakur Sabir Ali (1966)
Key Facts:
Md. Ismail contested the management of waqf property by Mutawalli Thakur Sabir Ali, alleging mismanagement and violation of the waqf deed’s terms. The central issue was whether the Mutawalli’s actions complied with the religious and legal obligations governing waqf properties.
Issue: The case dealt with the validity of a wakf-alal-aulad (family-endowment) deed, in light of the Oudh Estates Act, 1869, and the rule against perpetuities.
Judgment: The Supreme Court upheld the High Court’s decision, declaring the wakf deed invalid under the Oudh Estates Act. The Court ruled that statutory laws on talukdari estates take precedence over personal or religious laws, and the property reverted to Thakur Asghar Ali’s legal heirs.
6. Khalil Uddin v. Sir Ram & Others (1933)
Issue: The case dealt with the validity of a contingent waqf deed under Mahomedan Law.
Judgment: The Allahabad High Court upheld the waqf’s validity, stating that contingent waqfs are permissible as long as they meet the legal criteria, including absolute dedication without reserving ownership for the settlor.
7. Ali Mohammad Waqf v. State of U.P. (2000)
Issue: The case concerned the Mutawalli’s powers regarding the sale of waqf property without approval from the Waqf Board.
Judgment: The Supreme Court ruled that the Mutawalli cannot sell or transfer waqf property without prior consent from the Waqf Board, as per the U.P. Muslim Waqf Act, 1960.
8. Mst. Peeran v. Hafeez Mohammad (1966)
Issue: Validity of a waqf over an undivided share on leased land.
Judgment: The Court held the waqf invalid due to lack of permanence, as the property was on leased land and did not meet the requirements of a valid waqf under Muslim law.
9.Board of Muslim Wakfs, Rajasthan v. Radha Kishan (1979)
Issue: The case addressed the Waqf Board’s authority to list properties as waqf under the Wakf Act, 1954, and its effect on third-party claims.
Judgment: The Supreme Court affirmed the Waqf Board’s authority to list properties but ruled that such listings are not automatically binding on third parties, who can challenge them in civil court.
10. Ramesh Gobindram v. Sugra Humayun Mirza Wakf (2010)
Issue: Whether Waqf Tribunals have exclusive jurisdiction over waqf property disputes.
Judgment: The Supreme Court held that only Waqf Tribunals have jurisdiction over waqf property disputes, excluding civil courts.
11. Karnataka Board of Waqfs v. Mohd Nazeer Ahmad (1982)
Issue: Whether a house dedicated for use by all travelers, regardless of religion, qualifies as a valid waqf.
Judgment: The Court held it was not a valid waqf, stating that under Muslim law, waqf must serve a religious or Muslim charitable purpose.
Conclusion:
The Waqf (Amendment) Bill, 2025 represents a pivotal step forward in the development of waqf governance in India, ushering in comprehensive reforms aimed at modernizing, simplifying, and enhancing the transparency and accountability of waqf property management.The proposed changes reflect a deliberate attempt by the legislature to rectify persistent inefficiencies, enhance administrative transparency, and ensure that waqf assets are utilized in alignment with their intended religious, charitable, and pious purposes.
At the heart of the Bill lies the introduction of a critical structural reform: the mandatory requirement for a formal, written declaration or deed of endowment to establish a waqf. This replaces the previously accepted criterion of recognition based on mere user—i.e., prolonged religious or charitable use without formal documentation. By insisting on a clear and legally verifiable basis for the creation of waqf, the Bill seeks to reduce ambiguities surrounding waqf status, prevent fraudulent claims, and ensure greater legal certainty in the administration of endowed properties.
Furthermore, the Bill introduces procedural enhancements aimed at improving the registration, survey, and record-keeping of waqf properties. Accurate and updated land records are essential for safeguarding waqf assets from encroachment, misappropriation, and unlawful transfers. Through digitization initiatives and the integration of waqf data with state revenue and land management systems, the proposed amendments facilitate better oversight, transparency, and inter-departmental coordination.
One of the notable features of the Bill is the restructuring of the roles and responsibilities of key stakeholders, including State Waqf Boards (SWBs), Central Waqf Council (CWC), and Mutawallis (custodians). The redefined framework aims to delineate accountability more clearly, reduce bureaucratic delays, and promote professional management practices. The restructuring of Waqf Tribunals, which have long faced criticism for inefficiency and lack of authority, is intended to improve the speed and effectiveness of dispute resolution mechanisms.
In addition, the Bill seeks to enhance inclusivity and democratic participation in waqf governance by mandating the representation of women and non-Muslim members in waqf institutions. This progressive step not only broadens the scope of community involvement but also aligns the waqf administration with contemporary principles of social justice and equity.
Crucially, the Bill also addresses long-standing concerns about the lack of judicial oversight by proposing mechanisms to strengthen legal scrutiny and institutional checks. It calls for a review of laws related to Evacuee Property and aims to establish systematic and legally sound frameworks for the protection and development of waqf assets.
Nevertheless, the transformative potential of the Waqf (Amendment) Bill, 2025 will depend largely on its effective implementation. Legislative reform, while necessary, is not sufficient on its own. Challenges such as entrenched administrative resistance, resource constraints, and legal ambiguities may hinder enforcement. Moreover, the Bill’s ability to balance state control with respect for community autonomy and property rights remains a subject of critical scrutiny. In particular, concerns regarding the scope of judicial review, the rights of affected parties, and the uniform application of procedural safeguards will need to be addressed to ensure that the reform process is both just and sustainable.
In conclusion, the Waqf (Amendment) Bill, 2025 offers a promising framework for the renewal and revitalization of waqf governance in India. If implemented conscientiously and with adequate stakeholder engagement, the Bill has the potential to transform the waqf sector into a more transparent, inclusive, and efficient system—capable of better serving the spiritual, charitable, and social welfare needs of the Muslim community while upholding the rule of law and constitutional values.
FAQS
1.Who is a ‘Mutawalli’?
A Mutawalli is the fiduciary appointed to manage and administer a waqf, responsible for the upkeep of the waqf property and the distribution of its benefits in accordance with the terms of the endowment.
2. Who is a waqif?
A “waqif” is the person who creates a waqf, establishing a charitable endowment under Islamic law.
3. Can Mutawalli take a debt against the waqf property?
A Mutawalli cannot incur debt against waqf property; any such debt is a personal liability, and waqf property remains immune from execution or alienation.
4.What is ‘mushaa’ and can it be a part of waqf?
“Mushaa” refers to undivided property held jointly without exclusive ownership of any portion. While it may be subject to waqf, it cannot be dedicated for a mosque or burial ground.
5. What are the administrative bodies responsible for Waqf management in India and what are their roles?
Waqf properties in India are governed by the Waqf Act, 1995, as amended by the Waqf (Amendment) Act, 2025. Key bodies include:
CWC: Policy advisory.
SWBs: State-level management.
Waqf Tribunals: Dispute resolution.
The framework ensures efficient and accountable waqf administration.
