Report No. 250

Chapter 2

Laws Recommended for Complete Repeal

This Chapter lists 73 statutes that warrant complete repeal, with recommendations and notes on each:

1. Mussalman Wakf Validating Act, Act 6 of 1913 and the Mussalman Wakf Validating Act, Act 32 of 1930

Category: Charitable and Religious Institutions; Co-operative Societies

Recommendation: Repeal

The Mussalman Wakf Validating Act declared the rights of Mussalmans to make settlements of property by way of 'wakf' in favour of their families, children and descendants. The Act declared that no such wakf shall be deemed invalid merely because the benefit reserved therein for the poor or of other religious, pious or a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf.

This Act was enacted to statutorily supersede the position taken by the Privy Council in Abdul Fata Mahomed Ishak v. Russomoy Dhur Chowdhry [1894 (22) Cal 619 (PC)] that a wakf for the family members though coupled with a gift to charity on the failure of the line of descendants is not one substantially for charity and so was invalid. The Mussalman Wakf Validating Act, 1930 clarified that the Mussalman Wakf Validating Act, 1913 shall be deemed to apply to wakfs created before its commencement.

Hence, the Validating Act of 1913 was given retrospective application by the 1930 Act. The Wakf Act, 1995 has now been enacted to provide for the better administration of wakfs and for matters connected therewith. The 1995 Act applies to all wakfs, whether created before or after the commencement of the Act. Private wakfs are considered valid by the Act of 1995. Hence, the purpose of the Validating Acts of 1913 and 1930 has been subsumed by the Act of 1995. Wakfs of a private nature created any time before 1995 are valid under the Wakf Act, 1995.

The Central Government should repeal both the 1913 and the 1930 Acts. However, since the Validating Acts of 1913 and 1930 are still used to validate wakfs created before 1913, a provision saving the wakfs validated by these Acts should be inserted into the 1995 Act. This Act has also been recommended for repeal by the PC Jain Commission Report (Appendix A-1) and by the Ministry of Minority Affairs in its letter No. 12/10/2014-Wakf dated 9th September 2014 to the Member Secretary, Law Commission of India.