The Waqf (Amendment) Act, 2025, has made several significant changes to the law of waqf as applied in India. One of the aspect, it appears , has not drawn as much attention as it deserves. The amendment made the law of limitation applicable to the law of waqf. Its impact on the law is not less devastating than any other changes made to the law. Here is a bird’s eye view on how law of limitation undermines the islamic law of waqf.
There is a doctrine in Islamic law relating to Waqf known as “once a waqf always a waqf”. It is a fundamental principle governing the institution of waqf. This doctrine underscores the perpetual and irrevocable nature of a waqf once it is validly created.
A brief descriptive definition of waqf can be given as waqf is a voluntary, permanent dedication of property (movable or immovable) by a Muslim for a purpose recognized as pious, charitable, or religious under Islamic law. The property is placed in a trust-like arrangement, and its benefits are used for the intended purpose, such as supporting mosques, schools, hospitals, or the poor, while the principal remains intact.
The doctrine of “once a waqf , always a waqf” establishes that once a property is dedicated as a waqf, it remains so perpetually.
This means:
1. The donor (waqif) cannot revoke or reclaim the waqf property after its creation, as it is considered a dedication to Allah for the benefit of the community or specified beneficiaries. It is called irrevocability which the doctrine entails.
2. The waqf must endure indefinitely, and the property cannot be sold, gifted, inherited, or otherwise alienated except in exceptional circumstances permitted by Islamic law. This is known as perpetuity.
3. The waqf property is removed from the personal ownership of the donor and cannot be transferred or used for purposes other than those specified in the waqf deed (waqf-nama).
This principle known as “once a waqf always a waqf” ensures that the charitable intent of the donor is preserved and that the benefits of the waqf continue to serve the community or purpose for which it was established.
The doctrine is rooted in Islamic jurisprudence (fiqh) and draws from the Quran, Hadith, and scholarly consensus.
First, while the Quran does not explicitly mention waqf, verses encouraging charity (sadaqah) and spending for the sake of Allah (e.g., Surah Al-Baqarah 2:261, Surah Aal-E-Imran 3:92) provide the spiritual basis for waqf as an act of perpetual charity (sadaqah jariyah).
Second, a well-known Hadith narrated by Abu Hurairah (Sahih Muslim) states that when a person dies, their deeds cease except for three, one of which is a “continuous charity” (sadaqah jariyah). Waqf is considered a prime example of such charity.
Third, Islamic scholars across major schools of thought (Hanafi, Maliki, Shafi’i, Hanbali) agree on the perpetual and irrevocable nature of waqf, emphasizing its role in serving public welfare and religious objectives.
In simple language, the doctrine means that the waqf property is dedicated “forever” to the specified purpose. Even if the original purpose becomes obsolete, the property must be redirected to a similar charitable cause rather than reverting to private ownership. The waqf property cannot be sold, gifted, or inherited. Its ownership is effectively transferred to Allah, with the benefits accruing to the designated beneficiaries. Once the waqf is created through a valid declaration (oral or written) and the property is delivered to the trustee (mutawalli), it becomes legally binding and cannot be undone by the donor or their heirs. The waqf property is managed by a trustee or administrator who ensures its upkeep and that its income or benefits are used as per the donor’s intent.
So, how does the Waqf (Amendment) Act, 2025, affected this important doctrine of the law of waqf?
One of the significant changes brought about by the amendment is making the Limitation Act, 1963, applicable to waqf properties by omitting Section 107 of the 1995 Act. Prior to the amendment, Section 107 of the Waqf Act, 1995, exempted waqf properties from the Limitation Act, allowing Waqf Boards to pursue claims (e.g., for encroachment or recovery of property) without any time bar. This meant that even long-standing encroachments could be legally challenged at any time.
The 2025 amendment removes this exemption, making the Limitation Act, 1963, applicable. Under this Act, claims related to property disputes, such as recovery of possession, are generally subject to a limitation period of 12 years from the date the cause of action arises (e.g., when the property was encroached upon). After this period, claims may be barred, and encroachers could potentially claim ownership through adverse possession if they have occupied the property openly and continuously for over 12 years.
Application of the Limitation Act severely restricts Waqf Boards’ ability to reclaim encroached properties, especially in cases where encroachments have gone unchallenged for decades. For instance, if a waqf property has been illegally occupied for more than 12 years, the Waqf Board may lose its legal right to recover it, potentially legitimizing encroachments and undermining the inalienable nature of waqf properties (the doctrine of “once a waqf, always a waqf”). This change could lead to significant losses for Waqf Boards, as many waqf properties in India have been subject to prolonged encroachments due to mismanagement or lack of timely action.
The application of law of limitation severely undermines the aspect of inalienability of the doctrine of “once a wqf, always a waqf”. Under the doctrine Waqf properties are traditionally considered inalienable, dedicated perpetually for religious or charitable purposes. The application of the Limitation Act introduces a legal framework that conflicts with this principle, as it allows for the possibility of waqf properties being lost to adverse possession.
In sum, the application of the Limitation Act, 1963, to waqf properties under the Waqf (Amendment) Act, 2025, introduces time-bound restrictions on legal claims. This measure outright undermines the inalienable nature of waqf properties by allowing adverse possession after 12 years, potentially leading to significant losses for Waqf Boards. This change has sparked legal and constitutional challenges as it infringes on religious and property rights. This aspect of the amendment was not given as much attention as it deserves.
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