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THE WAQF ACT 1941
THE WAQF ACT 1941
Act 9/1941

Date in Force: 25
th April 1941
ARRANGEMENT OF SECTIONS

PART I – PRELIMINARY
1.
Short title
2.
Interpretation
3.
Deleted
4.
Scope of Act

PART II – DECLARATION OF WAQF
5.
Provisions as to form
5A.
Creation of waqf
5B.
Effect of document in respect of waqf
5C.
Effect of waqfnama drawn up abroad
5D.
Where waqf created abroad is not declared
6.
Waqf may be made inter vivos or by will
7.
Life interests and limited estates
8.
Defeasible interest
9.
Capacity
10.
Intention to be given effect to
11.
References to generations
12.
Proximity of relationship
13.
Deleted
14.
Terms of description when applicable
15.
Interpretation of child
16.
Equal and concurrent shares
17.
Lapse of share of beneficiaries

PART III – NATURE, SUBJECT AND ALTERATION OF WAQF

18.
Waqf must be in perpetuity
19.
Completion of waqf
20.
Unlawful alienation of waqf set aside
21.
Subject of waqf
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THE WAQF ACT 1941
22. Waqif must own subject of waqf
23.
Undivided property as subject of waqf
24.
Court to give effect to charitable objects
25.
Objects which may not be dedicated as
26.
Waqf cannot be revoked or altered
27.
Power to exchange subject of waqf

PART IV – APPLICATION OF THE INCOME OF WAQF PROPERTY

28.
Repairs a first charge on income
29.
Failure of some objects
30.
Interest disclaimed accrues to poor

PART V – APPOINTMENT OF MUTAWALLI AND MANAGEMENT OF WAQF
PROPERTY
31.
Provision for appointment of mutawalli
32.
Persons to be appointed as mutawalli
33.
Who may appoint successor to mutawalli
34.
Removal or resignation of mutawalli
35.
Deleted
36.
Right to receive remuneration
37.
Quantum of remuneration
38.
Employment of agents
38A
Borrowing with authorisation of Board
39.
Borrowing with permission of court
40.
Breach of trust
41.
Power to grant lease for 3 or 9 years
42.
Erection of buildings
43.
Provision in waqfnama no longer applicable
44.
Mutawalli to file annual audited accounts
44A
Compulsory registration of waqf property

PART VI – SPECIAL PROVISIONS RELATING TO MOSQUES
45.
Mosque property must be divided off
46.
Waqif cannot benefit under waqf for mosque
47.
Provision for poor not necessary
48.
Provision for poor on endowment for mosque

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THE WAQF ACT 1941
PART VII – BOARD OF WAQF COMMISSIONERS
49.
Establishment of Board
50.
Powers of the Board
51.
Conflict of interest
52.
Vesting of waqf property in the Board

PART VIII – LEGAL PROCEEDINGS AND GENERAL
53.
Procedure on breach of trust
54.
Disciplinary jurisdiction
55.
Who may sue in case of breach of trustwaqf
55A
Proceedings concerning waqfs
56.
Waqf property not liable to attachment
57.
Donations and legacies
58.
Succession duties payable on all waqfs
58A.
Change in person to be notified
59.
Application of the Bankruptcy Act
60.
Undivided share of waqf property
61.
Judges may make rules
62.
Regulations
63.
Application to other islands
————

PART I – PRELIMINARY

1. Short title

This Act may be cited as the Waqf Act.

2. Interpretation

(1) In this Act –
“beneficiaries under the waqf” means any person or class of persons that
are to benefit by
the object of the waqf;
‘Board” means the Board of Waqf Commissioners established under section
49;

“charity” means any charitable or religious object or purpose;

“court” means the Supreme Court;
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THE WAQF ACT 1941
“declaration of waqf” means the statement by the owner of any specific p
roperty that he
has declared the property to be waqf, or has dedicated it in perpetuity
by way of charity;
‘Hanafi Muslim” means a Muslim who conforms to the tenets and doctrines
of the Hanafi
school of Muslim law;
“mutawalli” means the person entrusted with the fulfilment of the obj
ect of the waqf and the
carrying out of the directions given at the time of the declaration of w
aqf;
“object of the waqf” means the purpose to which the waqif declares that
the profits, income
or benefit of the subject of the waqf shall be devoted;
‘Shiah Muslim” means a Muslim who conforms to the tenents and doctrines
of the Shiah
sect of Muslims;

“subject of the waqf” means the property dedicated by way of waqf;
‘Sunni Muslim” means a Muslim who conforms to the tenents and doctrines
of the Sunni
sect of Muslims;
“testamentary waqf” means a declaration of waqf expressed to come into e
ffect after the
death of the waqif,
“waqf” means the permanent dedication by a person professing the Musl
im faith of any
property in order that the use of, or the income accruing from, such pro
perty may be
devoted to any purpose recognised by Muslim law as religious, pious or c
haritable;

“waqfnama” means the document evidencing a declaration of waqf;

“waqif” means the person making a declaration of waqf.
(2)
This Act shall be interpreted in accordance with the principles of Musli
m law.

3. –

4. Scope of Act

(1) This Act shall apply to –
(a) all waqfs created by members of the Sunni Muslim commun
ity;
(b) subject to subsection (IA), all waqfs created by mem
bers of the
Shiah Muslim community.
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THE WAQF ACT 1941
(1A) Where, in any matter, the law governing waqfs created by memb
ers of the
Shiah Muslim community in any way differs from the corresponding provisi
ons of law
governing waqfs created by members of the Sunni Muslim community, as set
out in
this Act, that matter shall be decided by the court in accordance with t
he Shiah
Muslim law of waqf.
(2) All questions relating to waqfs dedicated by members of the
Sunni or Shiah
Muslim communities shall be within the jurisdiction of the court and, su
bject to
subsection (1A), shall be decided in accordance with this Act.

PART II – DECLARATION OF WAQF

5. Provisions as to form
(1) (a) A declaration of waqf may be made in any approp
riate words
which show an intention to make a dedication by way of waqf.
(b) The use of the word waqf is neither essential for the
validity of a
declaration of waqf, nor conclusive to show that a dedication by way of
waqf
was intended to be made.
(2) (a) (i) Where a declaration of waqf is made whether by a Sunni
or Shiah
Muslim, a waqfnama shall be drawn up in English or French and shall be
signed or marked by the declarant in presence of at least 2 Waqf
Commissioners who shall attest it after having satisfied themselves as t
o the
identity of the declarant.
(ii) Where the declarant is unknown to the Waqf Commissioners, his id
entity
shall be certified by 2 witnesses known to the Waqf Commissioners.
(b) (i) Subject to paragraph (e), the waqfnama shall
be
registered by, and shall remain in the custody of, the Board.
(ii)
The waqfnama shall, to all intents and purposes, have
the same force and effect as if it were a notarial deed.
(c) (i) The declaration of waqf may also be evidenced by a deed
drawn
up by a notary public.
(ii) A certified copy expedition of the notarial deed shall, within o
ne
month of the drawing up of the original, be forwarded by the notary to t
he
Board by which it shall be registered and in whose custody it shall
remain.
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THE WAQF ACT 1941
(d) No fee or stamp duty shall be payable in respect of the registra
tion by the
Board of the waqfnama or copy of the notarial deed expedition.
(e) All declarations of waqf shall be registered in the Office of th
e Registrar-
General and transcribed with the Conservator of Mortgages.
(f) Except in the case of declarations under section 7, registration
and
transcription under paragraph (e) shall be exempt from duty.
(3) A declaration of waqf not so evidenced, signed and witnesse
d shall be null
and void.
(4) Notice of the creation of any waqf registered with the Boar
d shall be
published by the Board in the Gazette, containing the name of the waqif
and
particulars of the nature of the waqf property.

5A. Creation of waqf

(1) Where property in Mauritius is the subject of a waqf create
d by a Sunni
Muslim or a Shiah Muslim, not subject to the jurisdiction of the court,
in virtue of a
waqfnama drawn up abroad, the Board may, on the application of –
(a) the waqif;
(b) the mutawalli or any of the mutawallis appointed for the managem
ent or
administration of the waqf;
(c) the agent of the waqif or mutawalli or of one of the mutawallis;
or
(d) any person having the management, administration, con
trol or
possession of the subject of the waqf,
register a declaration of the waqf, in accordance with subsection (2).
(2) For the purpose of subsection (1) a declaration of waqf s
hall be registered on
production –
(a)
where the waqfnama –
(i) is drawn up in English or French, of a copy of the waqfnama dul
y
certified by the waqif or his agent or by the mutawalli or his agent or
by
one of the mutawallis or his agent, as the case may be;

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THE WAQF ACT 1941
(ii) is not drawn up either in English or in French, of a duly certif
ied
translation into English by one of the interpreters of the court, of the

document or of a certified copy of it;
(b) of a written declaration setting out the particulars of the waqf
drawn up in
English and signed or marked by the waqif or his agent, or by the mutawa
lli or
his agent, or by one of the mutawallis or his agent, appointed under the

waqfnama, in presence of at least 2 Waqf Commissioners who shall attest
it
after having satisfied themselves as to the identity of the declarant or
where
the declarant is unknown to the Waqf Commissioners, his identity shall b
e
certified by 2 witnesses known to the Waqf Commissioners.
(3) The copy or translation of the waqfnama mentioned in subsec
tion (2) shall
be certified by an officer of the court having jurisdiction in the count
ry where the waqf
was created as being a true copy of the original.

5B. Effect of document in respect of waqf
The certified copy of the waqfnama or the certified translation of the w
aqfnama or of a
certified copy of it, as the case may be, together with the written decl
aration specified in
section5A (2), shall, on registration by the Board and subject to sect
ion 5 (2) (e), have to
all intents and purposes, the same force and effect as if they were nota
rial deeds and shall
remain in the custody of the Board.

5C. Effect of waqfnama drawn up abroad
All property the subject of a waqf registered by the Board as waqf prope
rty in virtue of any
waqfnama drawn up abroad by a Sunni Muslim or a Shiah Muslim whether sub
ject to the
jurisdiction of the court or not, shall be deemed to constitute a waqf i
n accordance with the
prescription of the Muslim law governing waqfs, notwithstanding the fact
that no waqfnama
has been drawn up in accordance with this Act.

5D. Where waqf created abroad is not declared
(1) Where any property in Mauritius is the subject of a waqf cr
eated by a Sunni
Muslim or a Shiah Muslim, not subject to the jurisdiction of the court,
in virtue of a
waqfnama drawn up abroad, and any party who could under section SA apply
for
registration of such waqf fails to do so and is subject to the jurisdict
ion of the court,
the Board may apply to the court for an order compelling such party to r
egister the
waqf.
(2) Where within a month from the date on which the court order
s a party to
register a waqf under subsection (1), the party fails to comply with t
he order, the
Board may apply to the court for an order vesting in the Board any prope
rty in
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THE WAQF ACT 1941
Mauritius which is the subject of the waqf, and on proof of failure to c
omply with the
order of the court, the court shall make the vesting order prayed for.
(3) Where a vesting order is made under subsection (2), the B
oard shall, in
respect of the property affected by such order, exercise all the powers
and perform
all the duties of the mutawalli appointed by the waqfnama and the mutawa
lli shall
resume office only when the vesting order is set aside.
(4) (a) A vesting order granted under subsection (2)
shall only be set
aside by the court on proof that the registration of the declaration of
waqf has
been made.
(b) The setting aside of the vesting order shall in no way
affect anything
done by the Board before the order is set aside.

6. Waqf may be made inter vivos or by will
(1) Notwithstanding article 920 of the Code Napol6on, a dedicat
ion by way of
waqf may be made inter vivos of property of the waqif and the dedication
shall not be
reducible at the time of the opening of the succession of the waqif.
(2) Subject to subsection (3), a declaration of waqf may be m
ade by will.
(3) (a) Where the waqf is purported to be made of pro
perty which
exceeds in value that portion of the waqif’s estate which may be bequeat
hed
by will, it is valid and effective as to such portion, and void as to th
e excess,
unless the heirs of the waqif consent to the waqf.
(b) Where a waqf so made is for the benefit of a mosque it
is –
(i) wholly valid if the heirs of the waqif consent to the waqf; and
(ii) wholly void if the heirs of the waqif do not consent t
o the waqf.
(c) Where a testamentary waqf is purported to be made, and
any of the
beneficiaries under it are the heirs of the waqif, the portion of the in
come to
which the heirs are purported to be entitled under the waqf shall be div
isible
among all the heirs of the waqif in the proportion of their rights of in
heritance,
notwithstanding any other direction that the waqif may have given in the
waqf
unless, after the death of the waqif, the heirs whose rights are affecte
d by the
waqf consent to the waqf being given effect to in accordance with the
directions.

7. Life interests and limited estates
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THE WAQF ACT 1941
(1) Subject to subsection (3), provision may validly be made
in a declaration of
waqf for the benefit of a succession of persons, during their lives, or
during specified
periods and notwithstanding that at the time of the declaration of waqf
those persons
are not in being.
(2) Subject to subsection (3), provision may in particular be
made in a
declaration of waqf for the maintenance and support wholly or partially
of the family,
children, or descendants of the waqif and, where the person creating a w
aqf is a
Hanafi Muslim, also for the maintenance and support of the waqif during
his life time,
or for the payment of his debts out of the rents and profits of the prop
erty dedicated.
(3) The ultimate benefit is in such cases expressly or impliedl
y reserved for the
poor or for any other purpose recognized by Muslim law as a religious, p
ious or
charitable purpose of a permanent character.
(4) The share provided by the waqif for the benefit of any of h
is male children or
descendants may be double the share provided by him for the benefit of a
ny of his
female children or descendants respectively.

8. Defeasible interest
A declaration of waqf may provide that a beneficiary named in it shall c
ease to take any
benefit under it on the happening of some future event.

9. Capacity
(1) Any Muslim who has attained the age of 18 and is of sound m
ind may create
a waqf.
(2) A husband may, with the concurrence of his wife, create a w
aqf of property
belonging to the community.

(3) Any waqf under this Act shall be invalid –
(a) where a waqf is created or declared in such circumstanc
es that the
rights of creditors are, or may be, defeated or delayed; or
(b) where at the time the waqf was created the waqif was in
terdicted,
insolvent or bankrupt.
(4) Any person claiming that his interests are prejudicially af
fected by the
creation or declaration of a waqf, or otherwise, may, within 3 years fro
m the creation
of the waqf, apply to the court for an order declaring the waqf to be vo
id.
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THE WAQF ACT 1941

10. Intention to be given effect to
A declaration of waqf shall be construed in accordance with the intentio
n of the waqif, and
not according to the strict interpretation of any particular word.

11. References to generations
(1) Where the declaration of waqf refers to one or 2 generation
s of the
descendants of a specified person as being entitled to the benefit of th
e waqf, the
benefit shall be confined to those generations.
(2) Where 3 generations or more are referred to, the benefit sh
all be for the
descendants in perpetuity, so long as they exist.

12. Proximity of relationship
Where the waqf is dedicated to the nearest relatives of a named person,
nearness of
relationship is to be reckoned in the following order of priority, each
excluding all those
below them-
(a)
sons and daughters;
(b)
father and mother;
(c)
grandchildren;
(d)
grandparents;
(e)
greatgrandchildren;
(f)
greatgrandparents;
(g)
brothers;
(h)
sisters.

13. –

14. Terms of description when applicable
(1) Unless there is anything in a declaration of waqf to show a
contrary intention,
where the beneficiaries are referred to or identified by some quality or
description
which is of a permanent nature, or which cannot be acquired again after
it has once
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THE WAQF ACT 1941
been lost or ceased to be
applicable, those persons alone are entitled to benefit under the waqf w
ho can be
identified or described in the manner referred to in the declaration at
the time it was
made.
(2) Where the quality or description is such that it may be los
t or cease to be
applicable, all those persons are entitled to take the benefit of the wa
qf who can be
referred to or identified in the same manner, when the produce or income
accrues.

15. Interpretation of child
(1) Subject to subsection (2), in a declaration of waqf “chil
d of the waqif’-
(a) means a legitimate or acknowledged child of the waqif b
efore or
after the declaration; but
(b) does not include grandchildren and more remote descenda
nts.
(2) (a) At the time of the declaration where there is no child l
iving, but the
child of a son, or other agnatic descendant is living, that child or des
cendant,
but no person in a lower generation, shall be deemed to be a child of th
e waqif.
(b) Where in the circumstances described in paragraph (a)
a child is
born to the waqif after the declaration of waqf, that child shall become
entitled
to the produce of the waqf.
(c) Where there is no descendant in the first and second ge
nerations,
all those who are in the third or any lower generation shall be deemed t
o be
children of the waqif.
(3) (a) “Orphan” means a minor who has no father living
, though the
mother and grandfather are alive.
(b)
The condition of orphanage shall cease on the attainment of majority.

16. Equal and concurrent shares
(1) Where several objects or beneficiaries are referred to in a
declaration of
waqf, they shall take the benefit of the waqf concurrently or simultaneo
usly and in
equal shares, unless there is anything to show an intention that they sh
ould benefit
in a different proportion, or in succession to one another.
(2) Where the beneficiaries under a waqf consist of a class of
persons who are
individually identified, they are entitled to the benefit of the waqf eq
ually among
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THE WAQF ACT 1941
themselves, and where one of them dies, his share goes to the poor.
(3) Where a waqf is for the benefit of a person’s son and his c
hildren, and the
children of his children forever, so long as there are descendants, the
benefit
accrues to them per capita, males and females being on the same footing,
the
children of daughters being included.
(4) (a) Where a declaration of waqf purports to be in f
avour of the
children of a named person and in default of them, in favour of the poor
, and
some of the children die, the survivors are entitled to the whole of the
profits of
the waqf property.
(b) Where the children are individually identified in the
declaration, the
share of each child lapses, on his death, to the poor or other ultimate
charity.
(5) Where the declaration of waqf provides that the beneficiari
es should take
specified shares consisting of fractions of the total income of the waqf
property and –
(a) those fractions added together amount to more than unit
y, the share
of each beneficiary shall abate proportionately;
(b) there is any remainder left after giving them their spe
cified shares,
the remainder shall be divided among each of the beneficiaries in equal
shares, provided that the intention is shown to give the whole of the in
come of
the waqf property to the said beneficiaries.

17. Lapse of share of beneficiaries

(1) In the absence of anything showing a contrary intention, th
e interest of a
beneficiary under a waqf lapses on his death and accrues to the benefit
of the poor
or other ultimate charitable object of the waqf.
(2) Where it is provided, either expressly or impliedly, in a d
eclaration of waqf,
that the descendants of the beneficiaries under a waqf shall succeed to
the
respective interests of the beneficiaries, and there is nothing to show
a contrary
intention, the descendants succeed per stirpes and not per capita and ma
les and
females take equal shares.

PART III – NATURE, SUBJECT AND ALTERATION OF WAQF

18. Waqf must be in perpetuity

(1) A dedication by way of waqf shall be in perpetuity.

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THE WAQF ACT 1941
(2) In cases where a waqf is not expressed, or does not purport
, to be limited in
point of duration, it shall be presumed to be made in perpetuity, and ef
fect will be
given to it accordingly.

19. Completion of waqf

(1) A waqf is completely created by the simple declaration of i
ntention on the
part of the waqif, and the completion of the formalities prescribed in s
ection 5 (2).
(2) (a) After the completion of a waqf the subject pass
es out of the
ownership of the waqif.
(b) Subject to sections 40 and 53, it shall not be alienate
d or
transferred, either by the waqif or the mutawalli, nor may their heirs t
ake it by
way of inheritance.

20. Unlawful alienation of waqf set aside
Where the subject of a waqf is unlawfully alienated, any person interest
ed in the object of
the waqf may apply to the court to have the alienation set aside and eff
ect given to the
waqf.

21. Subject of waqf
The subject of waqf may consist of any property other than things which
are consumed by
use.

22. Waqif must own subject of waqf
The subject of waqf must be owned by the waqif at the time when the waqf
is made.

23. Undivided property as subject of waqf
(1) The subject of waqf may consist of an undivided part of pro
perty
notwithstanding that the property is divisible.
(2) Where the object of the waqf is a mosque or a tomb, an undi
vided part of
any property cannot validly form the subject of the waqf.

24. Court to give effect to charitable object

(1) Where a waqf is purported to be made expressing a general i
ntention of
charity, but either particularizing no objects, or particularizing objec
ts which have
failed, the property may, by an order of the court, be devoted to the po
or, or to
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charitable objects as near as possible to those that have failed.
(2) Making a declaration of waqf is conclusive proof for inferr
ing a general
charitable intention.

25. Objects which may not be dedicated as waqf
(1)
A declaration of waqf is void where it is made –
(a)
for a limited period of time;
(b)
for objects which will fail;
(c)
subject to a contingency;
(d)
when the subject of the waqf is not defined with certainty;
(e)
for any object which is prohibited by Islam;
(f)
for the repair and upkeep of a private tomb;
(g)
a waqf made in favour of the rich alone.
(2) Subject to subsection (1) (f), the tomb of a saint may
be the object of a valid
waqf.
(3) Where the beneficiaries consist of a class of persons some
of whom are
poor and others rich, the benefit of the waqf property shall be applied
for the poor
class alone.

26. Waqf cannot be revoked or altered
(1) (a) A waqf inter vivos cannot be revoked after it h
as been
completed.
(b) Where at the time of creating a waqf inter vivos the wa
qif reserves to
himself the powers of revoking the waqf, the waqf is void.
(2)
No portion of the declaration of waqf can be altered by the waqif after
the
waqf has been declared, unless the power to alter has been reserved in t
he
declaration of waqf.
(3) A testamentary waqf may be revoked by the waqif at any time
before his
death.
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(4) A waqf created with a power reserved to sell the subject of
the waqf and to
expend its proceeds on the waqif is void.

27. Power to exchange subject of waqf

(1) A declaration of waqf may validly empower the waqif to exch
ange any land
forming the subject of the waqf for other land, or to sell the land and
to purchase
other land in exchange for it and the land so taken in exchange or purch
ased shall
become subject of the waqf.
(3)
The waqif shall not validly exchange or sell the waqf land except in
strict accordance with the terms of the declaration.

PART IV – APPLICATION OF THE INCOME OF WAQF PROPERTY

28. Repairs a first charge on income
(1) The benefit, income, or proceeds of the waqf property shall
be applied for the
following purposes, in the following order –
(a)
for the maintenance and repairs of the subject of the waqf,
(b)
for the specified object of the waqf,
(c)
for that which is necessary for the general purpose of the specified
objects;
(d)
for the benefit of the poor.

(2) In this section, ‘repairs”-
(a) means the preservation of the waqf property in the stat
e in which it
was at the time when it was dedicated; but
(b) does not include improvements in the property.
(3) Where the repairs of the subject of waqf are not made the f
irst charge on its
income or proceeds, the court may order that the income or proceeds be s
uspended
from being applied to the objects specified in the waqfnama and that the
repairs
should be made from it, but neither the mutawalli nor the beneficiaries
may do so
without an order of the court.
29.
Failure of some objects
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(1) Where some objects for which a waqf is purported to be made
fails or cannot
be given effect to, the validity of the other objects of the waqf is not
affected, except
as provided in this section.
(2) Where a waqf is created for mixed purposes, some of which a
re unlawful,
effect shall be given to those purposes which are lawful, and so much of
the property
as is dedicated for unlawful purposes shall revert to the waqif.
(3) Where in construing the terms of a declaration of waqf the
terms in which the
beneficiaries under a waqf or its objects are referred to in the declara
tion cannot
apply to any existing person or object, the benefit of the waqf property
shall be given
to the poor, provided that if thereafter the terms apply accurately to a
ny person or
objects, he or it shall be entitled to the benefit.

30. Interest disclaimed accrues to poor

Where the beneficiaries under a waqf consist of a number of persons, and
–
(a) they all disclaim their interest under the waqf, the whole
of the benefit shall
be divided to the poor;

(b) some of them disclaim and others accept it –
(i) where the beneficiaries are identified in the waqfnama
as a class,
under a general description, which applies to those who have accepted, t
hey
shall take the whole of the benefit;
(ii) where the beneficiaries are named or otherwise specifi
cally identified
in the waqfnama, the share in the benefit of those who disclaim must be
distributed among the poor.

PART V – APPOINTMENT OF MUTAWALLI AND MANAGEMENT OF WAQF PROPERTY
31.
Provision for appointment of mutawalli

The waqif may –

(a) provide in the declaration of waqf for the appointment
of –
(i) a mutawalli to act as manager or administrator of the w
aqf;

(ii)
a successor to the mutawalli; and
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(b) specify –
(i) the conditions on which;

(ii) the manner in which;
(iii) the period for which; and(iv) the person by whom,
the mutawalli and his successor may be appointed.

32. Persons to be appointed as mutawalli
(1) A mutawalli shall be appointed for the management or admini
stration of
every waqf.
(2) A mutawalli may do all acts which are reasonable and proper
for the
protection of the waqf property and for the management or administration
of the waqf
property.

(3) Subject to subsections (4) and (5) –
(a) any person appointed to be mutawalli by the founder of
the waqf,
including a female or a non-Muslim;
(b) the founder of the waqf himself;
(c)
the children or descendants of the founder of the waqf,
may become mutawallis of a waqf.
(4) Where the mutawalli has to perform religious or spiritual f
unctions which
cannot be performed by a female, a female may not be appointed as mutawa
lli.
(5) Where a person of unsound mind is purported to be appointed
as a
mutawalli his appointment is void.
(6) Where the office of mutawalli devolves upon a person who is
a minor, the
court may appoint another mutawalli to act in his place during his minor
ity.

33. Who may appoint successor to mutawalli

(1) In the absence of any express provision in the declaration
of waqf for the
appointment of successive mutawallis –
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(a) the waqif is entitled to make the appointment;
(b) after the death of the waqif, the executor or the sur
vivor of several
executors of the waqif is so entitled;
(c) on the death of the surviving executor the court may
appoint a
mutawalli;
(d) subject to paragraphs (a) to (c), the mutawalli m
ay appoint a
successor to himself, and
(e) the executor of the last mutawaiii, as his legal repr
esentative, may
administer the waqf property after his death in the absence of appointme
nt by
a competent authority.
(2) An application for the appointment of a mutawalli shall be
instituted in
conformity with section 53.
34.
Removal or resignation of mutawalli
(1) (a) Where the Board considers that a person perform
ing the
functions of mutawalli is unfit to perform such functions, the Board may
remove
such person from the office of mutawalli and appoint another person in h
is
place.
(b) Any person removed from the office of mutawalli under paragraph
(a)
may, within 21 days of the notification to him of the decision of the Bo
ard,
appeal from the decision to the District Court of Port Louis in the exer
cise of its
civil jurisdiction.
(c) An appeal by any person under paragraph (b) or by t
he Board, as
the case may be, shall lie to the Supreme Court from the decision of the

District Court within 21 days of the decision.
(2) A mutawalli once appointed cannot be removed by the waqif u
nless in the
waqfnama he has expressly reserved that power to himself.
(3) A mutawalli cannot discharge himself from his office withou
t the permission
of the waqif, the Board or the court.
(4) Where a mutawalli has been removed from his office by the w
aqif in
accordance with a provision in the waqfnama to that effect, or has resig
ned his
functions with the permission of the Board, the Board may appoint a pers
on to fill the
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office of mutawalli until the vacancy is filled by a substantive appoint
ment.

Amended by [
Act No. 29 of 1992]

35. –

36. Right to receive remuneration
(1) (a) The declaration of waqf may validly authorise t
he mutawalli
appointed by the waqif, and each succeeding mutawalli, to receive the
remuneration specified in it.

(b) In the absence of anything to the contrary, the remun
eration
specified in the declaration of waqf shall only be payable to the first
mutawalli,
and the succeeding mutawallis are not entitled to it in the absence of a
n order
of the court.
(2) (a) Subject to paragraph (b), the mutawalli may take from
the income of
the waqf such remuneration as the waqif may have authorised him to recei
ve
for administering the waqf.
(b) The mutawalli shall never acquire such an interest in
the waqf
property as to make it capable of being attached and sold in execution o
f a
judgment against him.
(3) Where no provision is made in the declaration of waqf for t
he remuneration
of the mutawalli, the court may, upon an application being made to that
effect, fix the
remuneration which he may
authorise the mutawalli to receive.

37. Quantum of remuneration
(1) The remuneration to which a mutawalli is entitled shall not
exceed one tenth
of the income where the mutawalli has no beneficial interest in the subj
ect of the
waqf.
(2) Where, after the religious or charitable objects of the waq
f have been and
continued to be duly maintained, and an application is made to the court
by the
mutawalli for a grant of higher remuneration the court may, where it is
satisfied that
there is a sufficient surplus left, and upon a consideration of the natu
re of the waqf, if
it is of opinion that higher remuneration would be just and proper, gran
t such higher
remuneration as it thinks fit.
38.
Employment of agents
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(1) The mutawalli may employ agents for the administration of t
he waqf, where
he is empowered to do so by the declaration of waqf or where it is neces
sary, or in
accordance with the usual course of business so to do.
(2) The authority of the agent or manager so appointed ceases o
n the death or
removal of the mutawalli so appointing him.

38A. Borrowing with authorisation of Board
(1) Subject to subsection (2), where a mutawalli has been aut
horised in the
declaration of waqf to borrow money on mortgage or without mortgage, or
to sell or
exchange waqf property, he shall only borrow money, or sell or exchange
the waqf,
after obtaining the authorisation of the Board.
(2) The amount of any loan or mortgage or the proceeds of any s
ale of waqf
property shall be deposited in the name of the waqf at a bank designated
by the
Board and shall not be withdrawn in whole or in part except with the wri
tten
authorisation of the Board.
39.
Borrowing with permission of court
(1) In the absence of any express provision to that effect in t
he declaration of
waqf, the mutawalli shall not borrow money for any purpose, or sell or e
xchange the
waqf property, except with the authorisation of the court.
(2) (a) The court may, upon an application being made
in that behalf
by the mutawalli, authorise him to borrow money and mortgage the waqf
property where it is in the interest of the waqf to do so.
(b) The court may confirm, with retrospective effect, a m
ortgage made
by the mutawalli without the sanction of the court, where the court is s
atisfied
that the mortgage was of urgent necessity and was properly made in the
circumstances.
(3) The court may order the sale or exchange of any waqf proper
ty when
satisfied that it has become unfit for the objects of the waqf.
(4) Where any person, other than the mutawalli, who is in any w
ay concerned in
the waqf property, is desirous of obtaining an order for the sale or exc
hange of the
waqf property or an order authorising a loan on mortgage or without mort
gage, he
shall proceed in accordance with section 53.

40. Breach of trust
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THE WAQF ACT 1941
Any mutawalli who contravenes section 38A or 39 shall commit a breach of
trust for which
he may be removed by order of the court.

41. Power to grant lease for 3 or 9 years
(1) Where the waqf property consists of a house dedicated to th
e poor or other
charitable object, the mutawalli may validly grant a lease thereof for 3
years and
where it consists of land, he may validly-grant a lease for 9 years, the
lease not
being determined by his death.

(2) Where –
(a) the mutawalli purports to grant a lease for a longer
term than of 3
years or 9 years respectively, the lease is voidable;
(b) it is necessary for the purpose of the waqf, the cour
t may authorise
a lease to be made for any longer term, notwithstanding that the declara
tion of
waqf expressly provides that the lease shall not be made for a longer te
rm
than a term specified in it.
(3) Except as provided in the declaration of waqf, no person ma
y occupy the
waqf property without paying a reasonable rent for it, and if the mutawa
lli purports to
allow any person so to occupy the waqf property, reasonable rent will ne
vertheless
become due and payable by the person for occupation of the property.

42. Erection of buildings
The mutawalli may erect buildings on the waqf property, or cultivate lan
ds appertaining to
the waqf, if it is beneficial to the objects of the waqf so to do.
43.
Provision in waqfnama no longer applicable
Where the existing conditions relating to the appointment of a successor
to the mutawalli
or to the administration of the waqf are no longer applicable owing to t
he altered
circumstances of the waqf property, or of society, or of the position of
the parties, and
persons are actually in the administration of the waqf property, by the
tacit consent of the
beneficiaries, such persons, if acting without dishonesty and without im
proper dealings
with the funds of the waqf property, shall not be held responsible for m
ere errors of
judgment in which the beneficiaries have acquiesced but they are answera
ble for money
actually received, and for defalcations which they would have discovered
but for their
default or neglect.
44.
Mutawalli to file annual audited accounts
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(1) Every mutawalli of a waqf shall –
(a) prepare once every year and in any case not later than
I March, a
true statement in English of the accounts of the waqf property in respec
t of the
preceding year;
(b) cause such statement of accounts to be audited by an
auditor
approved by the Board in respect of such period;
(c) submit a certified copy of such audited accounts to t
he Board not
later than 1 April of each year.
(2) Any mutawalli who fails to comply with subsection (1) or
who furnishes any
statement of accounts which he knows or has reason to believe to be fals
e,
misleading or untrue in any material particular, shall commit an offence
and shall, on
conviction, be liable to a fine not exceeding 500 rupees.
(4)
Any such offences shall be within the jurisdiction of a District Magistr
ate.

44A. Compulsory registration of waqf property
(1) Any mutawalli or any person having the administration, cont
rol or possession
of waqf property not registered with the Board shall cause such waqf pro
perty to be
so registered within one month of his assuming the functions of mutawall
i or the
administration, control or possession of such waqf property.
(2) Any person bound to register waqf property under subsection
(1) who fails to
do so without a valid excuse shall commit an offence and shall, on convi
ction, be
liable to a fine not exceeding 500 rupees or to imprisonment for a term
not
exceeding 6 months.
(3) The validity of any excuse advanced by a person prosecuted
for the offence
provided under this section shall be a question for the trial court.

PART VI – SPECIAL PROVISIONS RELATING TO MOSQUES
45.
Mosque property must be divided off
Where a person erects or designates a building for the purpose of dedica
ting it as a
mosque, the waqf is not completed by such erection or designation and th
e ownership of
such person in the land and building does not cease, until he has divide
d it off from the
rest of his property, and provided a means of access thereto and either
permits public
prayers to be said in it, or delivers possession of the mosque to a muta
walli.
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46. Waqif cannot benefit under waqf for mosque
Where the object of a waqf is a mosque, the waqif cannot reserve any ben
efit to himself
under the waqf and a waqf with any such reservation is void.

47. Provision for poor not necessary

Where the object of the waqf is a mosque –
(a) the declaration of waqf need not contain any provision as t
o any ultimate
dedication to the poor;
(b) provision may be made for expenses connected with the use a
nd upkeep of
the mosque as a place of worship.

48. Provision for poor on endowment for mosque
Property may be dedicated by way of waqf for supplying an existing mosqu
e with its
necessary expenses and –
(a) with a provision that where the mosque is not in need of th
e expenses, the
income of the waqf property should be expended on the poor; or
(b) with provisions for the benefit of objects which must in ti
me cease, and the
lapse of which will leave the whole benefit available for the benefit of
the mosque.

PART VII – BOARD OF WAQF COMMISSIONERS

49. Establishment of Board
(1) (a) The President may set up a Board of Waqf Commis
sioners,
consisting of not less than 4 persons of the Muslim faith as he thinks f
it to
appoint.
(b) The President may appoint a Chairman of the Board, who
shall be a
senior Government official, or a person employed in State’s service, and
who
shall be paid by the Board such fee for his services as the President ma
y
direct.
(c) Such Chairman may be a person not belonging to the Mus
lim faith.
(2) The members of the Board shall retire on 31 December of eac
h year, but
shall all be eligible for reappointment by the President for the next en
suing period of
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12 months.
(3) The President may remove any Commissioner, including the Ch
airman, at
any time after appointment.
(4) Where a vacancy occurs in the membership of the Board by re
ason of the
death, resignation, or removal from office, of the Chairman or any membe
r of the
Board, the President may appoint a successor for
the remainder of the period of 12 months.
(5) Three members shall constitute a quorum at meetings of the
Board, in
addition to the Chairman, who shall have a casting vote.

(6) (a) The Board shall be a body corporate.
(b)
Service of process on the Chairman of the Board shall be deemed to
be service on the Board.
(7) (a) Subject to paragraph (b), the Board may levy
yearly on all waqf
properties registered with the Board such sum of money, not exceeding 3
per
cent of the gross total income of each waqf property, as the Board may d
ecide
for the purpose of defraying any expenses which may be incurred by the B
oard
in the execution of its duties.
(b) With respect to any waqf which is also registered as
a registered
association, any sum payable to the Registrar of Associations shall be
deducted from the contribution payable to the Board under paragraph (a)
.
(c) Every decision of the Board under paragraph (a) sha
ll be taken on
or before 15 December in the year preceding that in respect of which the
levy
shall be payable, and shall be published in the Gazette.
(8) The President may make such regulations as he thinks necess
ary for the
execution of the duties of the Board.

Amended by [
Act No. 48 of 1991]

50. Powers of the Board
(1) The Board may, without prejudice to any of the powers veste
d in the court by
this Act –
(a) supervise generally the administration of any waqf pr
operty by its
mutawaiii, in accordance with the terms of the waqfnama, and for that pu
rpose
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have access to the waqf property;
(b) supervise the finances of all waqf property, require
the submission
each year of properly audited accounts relating to every waqf, and submi
t to
the President an annual report upon the financial position of all waqf p
roperties;
(c) keep a register of all waqfs;
(d) call for all information, whether documentary, or ora
l, of which they
may be in need, and summon by registered letter any person before them,
including the mutawalli, for this purpose, and examine witnesses on oath
;
(e) apply to the court in any of the cases provided for i
n section 53.
(2) Any person who fails to comply with any requirements of the
Board under
subsection (1) (a), (b) and (d) shall commit an offence and shal
l, on conviction, be
liable to a fine not exceeding 500 rupees.
(3)
Any such offences shall be within the jurisdiction of a District Magistr
ate.

Amended by [
Act No. 48 of 1991]

51. Conflict of interest
(1) Where, in the opinion of the Board, there exists a conflict
of interest between
a person exercising the functions of mutawalli and the waqf managed or
administered by him, the Board shall so notify such person by registered
letter for
the receipt of which such person shall sign an acknowledgment.
(2) As from the receipt of such registered letter, the person e
xercising the
functions of mutawalli shall cease to exercise such functions and the Bo
ard may
appoint another person to fill the office of mutawalli in his place for
such time as in
the opinion of the Board the conflict of interest subsists.

52. Vesting of waqf property in the Board
All waqf property of which there is no properly constituted mutawalli sh
all, pending the
appointment of a mutawalli by the court or otherwise, vest in the Board
as mutawalli of the
property.

PART VIII – LEGAL PROCEEDINGS AND GENERAL

53. Procedure on breach of trust
In case of any alleged breach of trust in the management or administrati
on of a waqf, or
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where the direction of the court is deemed necessary for the management
or
administration of a waqf the Board or any person having an interest in t
he property made
waqf may apply to the court to obtain an order –

(a) removing any mutawalli;

(b) appointing a new mutawalli;

(c) vesting any property in a mutawalli;

(d) directing accounts and inquiries;
(e) declaring what proportion of the waqf property, or of the i
nterest in it, shall be
allocated to any particular object of the waqf;

(f) authorising the whole, or any part of the waqf property to
be sold or
exchanged;

(g) authorising a loan on mortgage or without mortgage;
(h) directing the registration or transcription of a declaratio
n of waqf,

(i) settling a scheme; or
(j) granting such further or other relief as the nature of the
case may require.

54. Disciplinary jurisdiction

The court when making an order under section 53 may –
(a) direct the mutawalli to do any of the things mentioned in t
hat section in cases
where the performance of any act in conformity with such order would be
incumbent
upon the mutawaiii;
(b) in particular, deprive a mutawalli of his remuneration wher
e he has been
guilty of improper conduct in the discharge of his duties; and
(c) further order a mutawalli who has been guilty of waste to f
ile, at stated
intervals, a true and complete account of the income and expenditure of
the waqf,
and of his dealings with the waqf property.

55. Who may sue in case of breach of trust
The Board and any person interested in any mosque, or in the performance
of the worship
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or of the service of it, or the trusts, if any relating to it, may, with
out joining as plaintiff any
of the other persons interested, sue before the court the mutawalli of s
uch mosque for any
misfeasance, breach of trust or neglect of duty, committed by the mutawa
lli in respect of
the trust vested in him and the court may direct the specific performanc
e of any act by the
mutawalli and may grant damages and costs against the mutawalli, and may
also direct
the removal of the mutawaiii.

55A. Proceedings concerning waqfs
Where proceedings before any court may affect the interests of a waqf, n
otice of such
proceedings shall be given to the Board by the party entering the procee
dings in time to
allow the Board to be represented at the proceedings and the Board shall
be entitled to be
represented at the proceedings.

56. Waqf property not liable to attachment
Waqf property shall not be liable to attachment and sale in execution of
a judgment against
the mutawalli, nor may the rents and profits be seized in execution.

57. Donations and legacies

Articles 910, 911 and 931 of the Code Napol6on shall not apply to waqfs.

58. Succession duties payable on all waqfs
Any person acquiring, or succeeding to, the enjoyment of property, the s
ubject of a
dedication by way of waqf, whether made inter vivos or by will, shall be
liable to pay duty
on the full value of such property according to section 3 of the Success
ion and Donation
Duties Act, and the provisions of that Act relating to the payment of su
ccession duties shall
apply in respect of the payment of duty under this section.

58A. Change in person to be notified
(1) Any change occurring in the person enjoying waqf property s
hall be notified
to the Receiver of Registration Dues by the mutawalli of the waqf concer
ned within 3
months of the change.
(2) Any mutawalli who falls to comply with subsection (1) sha
ll commit an
offence and shall, on conviction, be liable to a fine not exceeding 500
rupees.

59. Application of the Bankruptcy Act

Nothing in this Act shall be taken to affect, modify or amend the Bankru
ptcy Act and any
property being the subject of a waqf shall, in the event of the bankrupt
cy of the waqif, be
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THE WAQF ACT 1941
governed by that Act.

60. Undivided share of waqf property
(1) Any person being the owner of an undivided share in propert
y, part of which
has been made waqf, may ask for the sale by licitation of the said prope
rty, the sale
to be prosecuted against the mutawalli.
(2) The mutawalli may apply to the Master for the partition of
the property if the
property can conveniently be divided between the parties.
(3) Where any property, part of which is waqf, has been sold by
licitation, the
share accruing to the waqf in the proceeds of the sale shall be deposite
d in the
name of the waqf in any bank designated by the Board, and the amount sha
ll not be
withdrawn in whole or in part, except with the written authorisation of
the Board.

61. Judges may make rules
The Judges of the court may make rules governing the procedure to be fol
lowed in matters
within the jurisdiction of the court under this Act.

62. Regulations
(1) The President may make such regulations as he thinks fit fo
r the purpose of
this Act.
(2) Any regulations made under subsection (1) may provide tha
t any person who
contravenes them shall commit an offence and shall, on conviction, be li
able to a fine
not exceeding 500 rupees and to imprisonment for a term not exceeding 6
months.

Amended by [
Act No. 48 of 1991]

63. Application to other islands
All declarations of waqf made in any island other than the Island of Mau
ritius shall be
registered with the Board.

Related documents:
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