Abdullah Dissertation1 Libre

8/11/2019 Abdullah Dissertation1 Libre

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Mohammad Abdullah MA Islamic Banking, Finance and Management

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Table of contents

Acknowledgements........................................................................................................ 3

Abstract .......................................................................................................................... 4

Chapter 1: A Critical Examination of WaqfManagement Practices in India: Special

Reference to FiqhofAwqf....................................................................................... 5

1.1 Introduction .......................................................................................................... 5

1.2 The Aims and Objectives of the Study ................................................................ 6

1.3 The Rationale of the Study................................................................................... 7

1.4 An Overview of IndianAwqafand Related Findings .......................................... 8

1.5 Organisation of the Study ............................................................................... 10

Chapter 2: Research Methodology .............................................................................. 11

2.1 Introduction ........................................................................................................ 11

2.2 Research Design ................................................................................................. 11

2.3 Data Collecting Methods ................................................................................... 12

2.4 Ethical Values and Social Considerations: Acknowledgements........................ 12

2.5 Limitations and Difficulties ............................................................................... 13

Chapter 3: An Overview of the Fiqhof Awqaf: Legal Dimensions........................... 14

3.1 Introduction ........................................................................................................ 14

3.2 The Origin, Significance and Background of Waqfin Islam ............................. 15

3.3 The Fundamental Aims and Objectives ofAwqaf............................................. 18

3.4 An Analysis of Basic Rules, Regulations and Principles ofAwqaf................... 20

3.5 The FiqhofAwqafManagement: A Legal Evaluation ...................................... 24

3.6 An Overview of Modern Approach of Waqf Ahli, and the Challenges to its

Viability ................................................................................................................... 26

3.7 Conclusion ......................................................................................................... 30

Chapter 4: History and Origin of Waqfin India: An Investigation ............................. 32


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4.1 Introduction ........................................................................................................ 32

4.2 WaqfManagement Systems in Pre-colonial India: An Examination ................. 35

4.3 WaqfManagement Practices in Colonial India .................................................. 37

4.4 WaqfManagement Model in the post Independent India .................................. 40

4.5 Conclusion ......................................................................................................... 42

Chapter 5: Awqaf Management in India: Current Status and related Statutes ............ 44

5.1 Introduction ........................................................................................................ 44

5.2 Administration ofAwqafin Present India: A Legal Perspective ....................... 45

5.3 The Case of WaqfProtection and their Management in India: Special Reference

to Sachar Committee Report .................................................................................... 47

Chapter 6: Ways Forward: Recommendations ............................................................ 51

Conclusion ................................................................................................................... 55

References.................................................................................................................... 57

Bibliography ................................................................................................................ 64

Glossary ....................................................................................................................... 66


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Abstract

Waqf (endowment) has historically played an instrumental role in the

developments of given societies and in providing the means of sustenance to thesocially backward and downtrodden Muslim and non-Muslim masses. Islamic

Shariah that introduced and promoted the concept of Waqf has also put forth a

set of well established legal frameworks to manage the same. However, Waqf

management practices in India have been a bone of contention between the

Muslim community and successive Governments since long. Arguably, Awqaf in

India have, over the years, attracted a surge of controversies due to not being

managed in conformity with the Fiqh of Awqaf. Of late, though, some

consolidated measures are claimed to have been initiated by the Government of

India to remedy the pathetic condition of Awqaf, yet the majority of leading

Muslim organisations have been sceptical of the sincerity behind them.


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Chapter 1: A Critical Examination of Waqf Management Practices in India:

Special Reference toFiqhofAwqf

1.1 Introduction

Islam strongly subscribes to the notion of endorsing socio-economic and welfare-

friendly practices, and profusely supports and promotes all sorts of philanthropic and

charitable deeds. Among them all, the concept of Waqf1(endowment) in the Shariah

is regarded as an empirical embodiment of this very proposition. Waqf derives its

origin from approximately fourteen centuries back, and is claimed to be first

introduced by the Prophet himself (Karim: 2011). For the public utility or socialcauses, one of the first deeds of Waqfin Islamic history was undertaken by the second

caliph Omar bin-Khattab (R.A) in 6th

Hijri(Ibn e Qudamah: 1997). This initiation of

Omar (R.A) was basically an outcome of inspiration that he had captured on

prophets suggestion to render his palm orchard in Khaiber for the pious cause of

Allah (SWT) (al-Bhukhari). Historically, this initiation was followed by the prophets

companions with great enthusiasm in Arab, and later on the same drew over the

centuries an overwhelming attention of Muslims around the globe. In the subsequent

centuries, Muslims in the different parts of the world profoundly participated in

performing Waqfand other kinds of philanthropic exercises (Isesco: 2011).

In this respect, the shining role of erstwhile affluent Indian Muslims could hardly be

overlooked or underestimated; as they are known to have endowed enormous portions

of their estates in the name of Waqf. India, which is home to more than one hundred

fifty million Muslims, accommodates, hundreds of thousand Waqfproperties (Sachar

Committee Report: 2006). Notably, up till the Mughal regime, Indian Waqf assets

were managed and administered by the appointed Qazis (Islamic jurists) in

accordance with the Shariahlaw (Khan, 1988: 88). However, it is argued, that with

the fall of Mughal Empire, and the subsequent advent of British rule in the

subcontinent, there came a surge of changes in the methods of overall governance

1A special kind of Islamic philanthropy in perpetuity


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and, inter alia, the institution of Waqf was severely affected and lost its special nature

in terms of being regarded as a religious institution (Pirbhai, 2009: 182-83).

Significantly, in the post independent India, on the part of Muslims it was highly

expected that from now on the administrative responsibilities of Awqaf2 should be

handed over to the leading Islamic institutions so that these properties may possibly

be managed according to the well established Shariah law of Awqaf. But,

unfortunately, it never happened. As under the provisions of the 1954 Waqfact, the

Government of India took a drivers seat in managing and administrating the Awqaf

in the country. Thus, arguably, the door of undue political intervention, manipulation

and corruption in this religious institution was deliberately left wide open (Wani:

2004: 109).

Although, in 1995 in response to the ever growing agitated voices of the Muslim

Community, the Government resorted to amend the existing Waqflaw, and ostensibly

sought to democratize the process and mechanism of Waqfadministration, but this in

no way served the purpose; as the Waqf-related Shariahguidelines were put to rest in

the process (Rashid: 2005).

The current study attempts to examine the origin, background, history and mechanism

of Waqfmanagement practices in India. The study first seeks to break the point of

Awqafhistory into three key periods, namely pre-colonial, colonial and post-colonial

era, and then endeavours to examine their management-models and administrative

mechanism in reference to the FiqhofAwqaf.

1.2 The Aims and Objectives of the Study

The aim of this study is to analyse the inefficiencies in the Awqafof India from the

perspective of Shariah, through critical evaluation of the causes contributing towards

these, followed by the examination of the possible remedies recommended within the

literature of Fiqh. The set of objectives required to achieve this aim are as below:

2 Plural of Waqf


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1. To identify and examine the major Shariah-repugnant elements of current

Waqfmanagement practices in India.

2. To explore and assess the potential role ofAwqafin India.

3. To analyse the discourse of Fiqh and examine the historical example of

techniques applied for effective management of Waqf.

4. Recommending the sustainable and feasible tools and techniques to revive and

rejuvenate the dilapidated Waqfproperties in India.

1.3 The Rationale of the Study

India is the second largest populous country of the world and is home to more than

one hundred fifty million Muslims. The number of Muslims living in the country is

second largest as a whole and comes just after Indonesia in terms of biggest Muslim

population in a country (Zissis: 2007). Ironically, given the official facts and figures

pertaining to the community, Muslims in India lag far behind the other fellow citizens

in terms of education, economic conditions, social status and social security

perspective.

Importantly, of late, paying a serious heed towards the continuous deteriorating state

and status of the community, the Government of India, apparently, attempted to

initiate some appropriate actions to tackle the major problems faced by the

community as a hurdle in the way of its positive progression. In this regard, on March

9, 2005 on the initiative of the Prime Minister, a high level official committee was set

up under the chairmanship of ex-high court judge Mr. Rajendra Sacher, and was

entrusted with the task of empirically surveying and assessing the social, economic

and educational status of the Muslim community in the country. Importantly, after

taking fifteen months to critically study and examine the ground realities and the

factors pushing the community towards abject conditions, the Committee produced its

report in June 2006 (SCR: 2006).


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Discussing the role of undue political intervention and interference in Waqf

management, Raza (2011) meticulously attempted to draw the attention of the present

government and the general masses towards the root causes of the mismanagement.

Furthermore, Wani (2005:133) contends that there is nothing questionable in the

states policies pertaining to the Awqafmanagement, but the problems arise at the

time of their implementation in letter and spirit. However, Ahmadullah, (2004: 134)

disputes to agree with this notion as he holds the view that:

Awqaf properties in India suffer irretrievable loss often because of the

incompetence and dishonesty of the management staff, nevertheless the

weakness in theAwqaflaws is no less responsible.

Moreover, Ahmad and Khan (1998:23) argue that the institution of Waqfin India is

most misunderstood and Waqfproperties mismanaged. Furthermore, they claim that,

what reflects the glaring mal-practices of Waqfmanagement in the country is the fact

that most of the Waqf properties are either severely subject to encroachment of

influential individuals, or are left into the state of dilapidation. Pertaining to this,

Bakht (2010) claims that almost seventy per cent of Indian Waqfproperties have been

encroached upon while the rest are subject to the pathetic mismanagement of

administration. Also, Wani finds (2005: 116) that in most cases the Mutawaliswho

are supposed to be the custodians of these Waqfproperties do trickily extend their

own appropriateness on them.

Shedding a little light over the current mismanagement practices of Awqaf

administration in India, Rashid (2005), Mushtaq (2005: 17) and Bakht (2010) believe

that the mismanagement is the major cause why Muslims in the country have, of late,

ceased to exercise new Waqfdeeds.

In addition to it, Giving the reasons and causes of Awqafmismanagement in India,

Siddiqui (2005:143) expresses that Awqafin India are administered by the State level

such Waqf Boards, a majority of whose members are political appointees, and

arguably most of them neither have the thorough knowledge of the concerned laws

nor have the will to attain. Consequently, due to this, Awqafsuffer directly and their

potential beneficiaries indirectly.


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1.5 Organisation of the Study

The current study consists of six chapters. The first and second chapters of the study

deal with the introduction and with the research methodologies respectively. The thirdchapter seeks to discuss the essentials of the Fiqhof Awqaf in a good detail. The

chapter four of the work attempts to trace the origin and history of Waqfin the Indian

sub-continent, and endeavours to explore the system of Waqfmanagement in the

mediaeval and Mughal periods. In the fifth chapter attempts have been made to

examine the current Waqfmanagement model in India, and efforts have been put to

analyse the Waqfrelated statutes. In the final chapter, recommendations and

suggestion have been given.


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Chapter 2: Research Methodology

2.1 Introduction

Research methodology occupies a cardinal status in all sorts of social researches. A

transparent and successful research requires abiding by certain well-established

methodological parameters and structural frameworks that determine the nature and

approaches of the research. According to Kothari (2008: 8) Research methodology is

a way to systematically solve the research problem. In addition to it, a proposed

research methodology provides the legal structure upon which the whole concerned

argumentative reasoning lies (Singh: 2007)

2.2 Research Design

In fact, keeping the fact in view that initially the selection and adoption of a viable

research design is of paramount significance in a social research, in the current study,

out of the four major types of qualitative research designs namely phenomenology,

ethnography, grounded theory and case study, a design having closer resemblance

with the case study has been sought after. And this is so, because the current study

primarily aims to examine the ways and methods of Waqfmanagement practices

applied in Indian sub-continent over the years.

Moreover, with an objective to deduce a better insight of the issue, an inductive and

analytical approach has been followed. Also, a comparative evaluation of current

management practices in India, and desired management model in reference to Fiqh

ofAwqafhas been conducted.

Furthermore, throughout the study a large part of the research problems have been

evaluated and presented in an interpretative manner, as application of this method

seemed to entail a better comprehension of the research question and related

solutions. Also, since the central research questions of the study were in demand of

qualitative method to be used, it has been adopted and applied. In the nutshell,

qualitative method was required in the study as the same involves a detailed


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description and depiction of the underlying problems and their possible solutions

while at the same time being within the contextual ambit of the research questions.

2.3 Data Collecting Methods

A wide range of written materials and printed documents of the related area have

been explored and examined. A great deal of focus was given to cover most of the

highly authentic books in the related area. Also to supplement the overall

comprehensiveness, articles from peered journals, highly refereed journals and

different educational papers and magazines have been taken into study. In addition to

it, some of the related official data (that is available on the websites of the Indian

Government) have been extracted from online resources.

As far as the Fiqhof Aqwaf is concerned, utmost attempts have been made to take

them from the primary sources. And to facilitate this task, related chapters of the

primary and secondary sources of Islamic jurisprudence have been critically explored.

Additionally, with a view to broaden the horizon of comprehension and

understanding, different countries Waqfmanagement modes and models have been

searched, researched, assessed and used to suggest the possible remedies. Most

significantly, prior to drawing any ultimate conclusion, serious and sincere attempts

have been made to ensure that a full-length critical analysis of the collected data has

been done.

2.4 Ethical Values and Social Considerations: Acknowledgements

In the current study, utmost care has been taken to make sure that the standard social

and ethical norms and integrity criteria have been carefully followed. Also, with a

view to abide by the social research criteria in the best possible manner, during the

current study great cautions were put in place to not breach or violate any of the

ethical laws or norms. Moreover, efforts were made to throughout remain within the

ambit of the regulations, and to follow all sorts of related and relevant instructions

earnestly. Also, where ever applicable, the anonymity of the participants have been

respected and the confidentiality of the information been maintained. Also it has been

severely ensured that no ones independence, privacy or self respect is affected by


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any means or any manner. Additionally, all kinds of partiality, biasness or

discrimination have been strictly avoided in deducing the final conclusions. Likewise,

all necessary measures have been adopted to make sure that all data providing sources

are acknowledged in appropriate terms and credit be given to the right entities.

2.5 Limitations and Difficulties

Although, the researcher has earnestly tried to put utmost efforts, and to utilize

available time and resources in the best possible manner to make this study a success,

yet by no means it could be claimed that the study completely encompasses all the

related dimensions flawlessly. Also, due to the fact that the researcher was far away

from the home country, India, many empirical aspects of the related study could not

be covered in good detail and in desired manner. Moreover, the factor of time-

constraint too is believed to have taken its toll on the quality of the research as the

limited time was bound to confine the boundaries for the researcher, and to set the

limits and scope of the study.


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Chapter 3: An Overview of theFiqhof Awqaf: Legal Dimensions

3.1 Introduction

One of the distinctive features of Islamic Shariah lies in its unique method of

introducing a law or a deed followed by its practical prescriptions that lead to the best

application and implementation of the prescribed act. The fundamental principles

pertaining to any of the Shariah- prescribed act may be safely traced back just by

resorting to the corpus of the Shariah itself. Once, with the due contemplation of

Shariahcorpus in the light of Ijtihad (legal reasoning) rules, the basic objectives and

principles of a specific deed or act is established, this is known as the Fiqh of the

related action (Hassan, 2005: 2-3).

Literally, Fiqh is translated as understanding, but with reference to the Shariah it

implies on the knowledge of the rules and objectives of the Shariah. Fiqh, by

implication guides through the practical aspects of certain Shariahlaws. In a nutshell,

as Kamali (1998: 3) puts it, Fiqhis knowledge of the practical rules of the Shariah

acquired from the detailed evidence in the sources.

Basically, like all other Shariah-endorsed supererogatory charitable acts and deeds,

Awqaftoo entail a number of well-defined Shariahprinciples. And adhering to these

principles (known as Fiqhof Awqaf) is essential in order to achieve the targeted end

of the practice. Moreover, it is FiqhofAwqafthat lays down the basic conditions and

qualifying criteria for a Waqf (endowment), Waqif (endower), Mauqoof Alayh

(beneficiaries) Mauqoof Bihi (subject matter of Waqf) and Mutawalis (care-taker/

custodian). Thus, it is almost clear from the aforementioned definitions that the Fiqh

ofAwqafrefers to the sets of Islamic jurisprudential rules and laws that govern and

regulate the terms and conditions of a valid Waqf, and facilitate in accomplishing its

proclaimed aims and objectives.


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3.2 The Origin, Significance and Background of Waqfin Islam

Islam repeatedly encourages its followers to actively engage in all sorts of social and

welfare related activities. To this end, the Quran and Sunnah provide severalinjunctions motivating believers to voluntarily participate in charitable and

philanthropic practices. The concept of charity and philanthropy in Islam that is

primarily introduced with the objective of providing the poor and needy with the

means of sustenance and basic necessities of life could be traced back in numerous

verses of the holy Quran and prophetic traditions as well (Mahmud: 2006). Although,

Waqfthat is believed to be a form of perpetual philanthropy (Sadqa e Jariyah) is not

mentioned in the Quran in this sense, yet it has indirect roots and origin in the book. It

is argued that the Quranic verse you can never attain the piety unless you spend the

property you love most (Chapter, 3 verse: 92) has been an instrumental one in

inspiring the spirit of generous endowment and charity among the companions of the

prophet. According to Al- Shafai, the first institution of Waqfcame to be known with

the advent of Islam; as in the period of ignorance no similar kind of benevolent deed

was in practice (1990: 52).

Literally, Waqfis translated as confinement, detention, holding and prohibition (Ibn eManzoor 2002). In the juristic terms, Waqfis a special kind of philanthropic deed in

perpetuity that is exercised in a non-perishable tangible property by designating the

specific categories of beneficiaries to receive its usufructs or revenues (Zaid, 1996).

Importantly, Waqfis distinguished from all other forms of charity, endowments and

alms in terms of its unique principles, objectives and method of application.

Though there is almost a consensus that the first instance of Waqf in the Islamic

history is found in the prophetic era itself, opinions of scholars diverge in ascertaining

the specific one which was exercised the first. Islamic scholars, historians and jurists

supply a number of narrations and evidences to prove and substantiate their respective

claims regarding which one was the first instance of Waqf and who was the first

Waqif3of Islamic history. In this regard, to some, the Mosque of Qubah that was

established at the time of prophets arrival to the place while he was migrating from

3The endower who performs the Waqfdeed


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Makah to Madinah in 622 AC, is the first Waqf, whereas for others, the land for the

mosque of the Prophet in Madinah was, in essence, the product of the first Waqfdeed

(Kahf: 2003). Moreover, contrary to these two claims, as far as Islamic jurisprudential

books are concerned, most of them begin their chapters of Waqfby relating the story

of Omar, who in the wake of having acquired a piece of land in Khaiber came to the

prophet for seeking his consultation regarding the way of treating that land in the best

Shariah recommended manner so that he might earn Allahs utmost pleasure (Ibn

Qudamah: 1997, Aljazayri: 2000). And afterwards, complying with the prophets

suggestion Omar (R.A) rendered the land as Waqf. In fact, according to the most of

jurists this was the first example of exercising a Waqf in the Islamic history (Al-

Shawkani: 2008).

Furthermore, some scholars believe that the first act of Waqf was exercised in a

famous well of Madinah; known as Byr-e Romah(Kahf: 2003). The background and

context of this narration is referred to be a situation where the prophet asked his

companions to buy the well and designate it as a free public utility for drinking water.

Othman (R.A) is reported to have responded to this call and was known as the first

Waqif(Musnad Ahmad 1/75).

Nonetheless, prior to all these, there are some narrations that seek to assert a totally

different account. According to them, it was the prophet himself who founded the

first Waqfin the aftermath of the battle of Uhad in 3 Hijri. Aisha (R.A) reports that

there was a Jewish companion of the prophet named Mukhairiq; he had gifted his

seven orchards to the prophet in Madinah. And later on, the prophet endowed all of

them for the cause of Allah (SWT) (Albaihaqi: 2003). Also, there are opinions that

the land of Kabah and Baitul Muqaddas should be considered the first instances of

Waqfin the Islamic history (Abu Zuhra: 2004).

Interestingly, in the presence of all the aforementioned diverse views and opinions of

scholars pertaining to the first deed of Waqf, apparently it seems complex to define

and affirm which one was the first in the Islamic history. However, after having paid

a diligent perusal to the primary and secondary sources of Islamic history, possibly,

there seem two ways to sort out and determine the specific case of Waqfthat might

have occurred as first of them all. In this respect, first, it needs to be asserted that


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Furthermore, as far as the Waqfof Omar (R A) is concerned, perhaps it is treated by

most of the Islamic jurists as the first example of Waqfbecause it is in this case that

the basic jurisprudential principles of Waqfand its objectives had been defined and

explained by the prophet himself for the first time (Al-sayed: 1994). Also, perhaps it

is in this context that Ibn-e-Hajar has maintained that the Hadith of Omar bin Khattab

(R.A) is the fundamental in proving the legality of Waqf in Islam (as referred by

Zuhaili, 1996: 135).

3.3 The Fundamental Aims and Objectives ofAwqaf

Islamic Shariah, since its inception, has profusely emphasized on the need of

establishing such an environment of the society that could be conducive to the mutual

co-operation and solidarity among the fellow beings. For this, the Shariahrepeatedly

attempts to imbue the believers with the sense of being kind, considerate, generous

and affectionate to the creatures of Allah (SWT). Also, with the fact in view that to

this effect, a society greatly requires the kind of people to whom altruism holds

greater status than their personal material gain in the course of actions; the Shariah

seeks to instil and infuse the spirit of these attributes into the believers by various

means (Zuhaili: 1998).

To this end, while on one hand the Quran and Sunnah highly encourage the believers

to engage in charitable and philanthropic activities, on the other, they immensely

appreciate, in a number of occasions, the actions of those who prefer to practice

charity and philanthropy in the normal course of their lives (Quran, Ch: Al-Baqarah:

177, 195, 215, 219, 254).

In addition to it, on the practical ground, Shariah introduces two major kinds of

pecuniary obligations on rich and wealthy believers towards their underprivileged and

downtrodden fellow beings. These include obligatory Zakat, and non-obligatory but

highly recommended Sadaqat (charities). Further, Sadaqat are sub-divided into

spontaneous Sadaqah for the need-fulfilment of certain needy, and into perpetual

Sadaqahfor the provision of basic necessities to the specific sections of the society in

long-term. In fact, according to the interpretations of Shariahscholars (Uyuni: 2010),


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it is the latter kind of Sadaqah that is meant in the famous prophetic tradition that

when a child of Adam dies, his chapter of deeds is closed forever except for three, a

perpetual charity (that he has established during his life time), a scholar who left

behind him a legacy of knowledge that benefits people at large and a pious child of

the deceased who constantly asks for mercy for him (Muslim: 1631). Thus, Shariah

jurists unanimously view the deed of Waqfas Sadaqahin perpetuity and they agree

on the notion that this comes under the category of the perpetual Sadaqahmentioned

in the Hadith (Swaleh: 2001).

Most importantly, though in a general sense Waqf too is reckoned to be a kind of

Sadaqah(charity), but there are two fundamental differences between the Waqfand a

common Sadaqah. Firstly, while in a common Sadaqah, the ownership of the subject

matter is immediately transferred from the giver to the beneficiary, in a Waqfneither

beneficiary nor the philanthropist remain the owner of the property as the ultimate

ownership rests with Allah forever. Secondly, a general Sadaqahjust fulfils a need of

needy for time being, while the Waqf provides with the means of sustenance and

constant maintenance fund to the specific beneficiaries and to the stipulated purposes

(Abu Zuhra: 2004).

Notably, as discussed earlier, basically the philanthropic Waqf is divided into two as

(1) religious Waqf and (2) general welfare-related. Significantly, the limits and

boundaries of religious Waqf are restricted to a limited and certain, but, highly

significant deeds. The immediate objectives of religious Waqf constitute

establishment of Mosques and graveyards, and the provision of the compensation to

their respective employees. Also this includes all sorts of expenses accrued in the

maintenance of these buildings and the charges required for the purchase of the

related equipments (Kahf: 2003).

As far as the objectives of the welfare-related Waqf are concerned they are non-

exhaustive. According to the most of Shariah jurists, welfare-related Waqf may be

specified and utilised for the purpose of promoting all sorts of human prosperity

unless the purpose contradicts and violates any of the Shariahrulings (Ibn-e Qudama

1998). Discussing the philanthropic Waqf, Kahf (2010: 3) explains that


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It aims at supporting the poor segment of the society and all activities which are of

interest to people at large as libraries, scientific research, education, health services,

care of animals and environment, lending to small businessmen, parks, roads,

bridges, dams etc.

However, it is worth noting here that fundamentally a Waqfcannot be exercised for

the purposes other than the ones approved as Shariah-compliant. In this respect, the

above-quoted explanation of Kahf could rightly be challenged for being an open-

ended and incomplete one. From Kahfs explanation, evidently, it appears that

according to him, philanthropic Waqftargets to serve the peoples needs and purposes

at large without being subject to any restrictions or Shariahprescribed regulations.

And this implies that there is no substantial difference between a Waqf deed and a

trust or all other sorts of philanthropic deeds performed by a secular entity, in terms

of their worldly aims and objectives. However, contrary to this, according to Abu

Zuhra (2004: 48), there is almost a consensus among the Shariahjurists that a Waqf

deed cannot be performed in favour of Shariah-prohibited, Shariah-non-compliant or

Shariahreproachable activities at all. Form this ruling it is evident that Waqfcan be

used to support only those needs of the society that do not violate an explicit or

implicit Shariah law or that fall within the ambit of Shariah-approved legal andethical dimensions.

3.4 An Analysis of Basic Rules, Regulations and Principles ofAwqaf

Waqf is distinguished from all other forms of non-obligatory charities and alms in

terms of its unique principles, objectives and legal requirements. The institution ofphilanthropic Waqf is believed to be premised on a different structural framework

from the ones those were already in practice in the forms of other charities. The

fundamental legal aspects of this new structure of perpetual philanthropy is vividly

introduced in 7th

year ofHijrahwhen the prophet suggested Omar (R.A) to endow the

earnings and revenues of his newly acquired land in Khaiber on poor and needy while

holding back the ownership of its corpus; as the same may neither be sold nor be

gifted or inherited (Zuhaili: 1996). Basically, this tradition of the prophet regarding


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the philanthropic Waqf is believed to be instrumental in terms of setting Waqfs

principles.

Keeping the tradition in view, Shariahjurists have reached almost a consensus that a

Waqf property may neither be subjected to a sale, nor gift or inheritance (Ibn e

Qudama: 1998). However, since the tradition does not give an explicit explanation

pertaining to the ownership of the Waqf, it has been historically a matter of debate

and divergence among the jurists that to whom the ultimate ownership of a Waqf

property belongs. Abu Hanifa opines that the Waqif(deed performer) himself is the

owner of the property except in three cases; (1) if the Waqf is for the purpose of

establishing a Mosque (2) if the Waqifhas attached his will with his death (like he

stipulates that after his demise the property is Waqf) (3) if there arises a dispute

regarding Waqfdeed between the Waqifand Mutawalli that impels them to make a

recourse to the state-appointed Qazi, and the Qazi gives a verdict affirming the

irrevocability of the same (Ibn e Humam: 1995). However, in contrast to the Imams

opinion, according to the two disciples of Imam Abu Hanifa, Abu Yusuf and

Muhammad al-Shaybani, the ownership of a Waqfrests with Almighty Allah forever;

as the same ceases to remain in any ones appropriateness immediately after the Waqf

is effected (Ibn e Abidin: 1966). This opinion is claimed to be supported by ImamMalik and Imam Shafai too (Ibn e Humam: 1995). Third opinion in this regard has

been given by Imam Ahmad Ibn Humble, who is of the view that the ownership of

the corpus belongs to the beneficiaries of the Waqf. In some other places Imam Malik

has also been referred to hold a similar view (Al Saleh: 2001). But, since according

to them, despite this opinion, the beneficiaries are not entitled to exercise their

ownership rights in terms of selling the property or by gifting the same, there seems

no major difference in the ultimate outcome of holding this view.

As a matter of fact, since the primary sources do not explicitly guide through the

other minute aspects of the Waqfprinciples, most of them have been derived by the

jurists with the application of analogical reasoning, and hence are in several aspects

debated and disputed. According to al-Zuhaili (1996: 137) only a little portion of

Waqfprinciples are proven from the Sunnah, and a vast portion of the related guiding

principles have been deduced in the light of the primary sources with the application


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of the rules of Istihsan (preference over rigidity) Istislah ( public interest) and Urf

(customs of the society).

Furthermore, in his observation Mustafa Zarqa (2003) has rightly pointed out that

there is only one aspect of Waqf that is undisputed among the jurist; and it is its

objective, that a Waqfmust be an act of benevolence (as referred by Kahf: 2003).

Primarily a Waqf deed involves four key characters, namely; Waqif (endower)

Maqoof Alayh (beneficiaries) Maqoof Bihi (endowed property) and Mutawalli

(custodian/ care-taker of Waqf). Interestingly, the classical Fiqh literatures have

discussed and analysed all the four major components of the Waqf in great details,

and jurists have also meticulously formulated their respective regulating principles

under the guidelines of the Quran and Sunnah.

There is almost a consensus among the jurists that for a Waqif to be eligible to

perform the deed, all the major criteria and stipulations of a charity giver are applied.

This includes the qualification of maturity, sanity, freedom, free will and legal

eligibility to transact for the Waqif(Saleh, 2004: 61).

Notably, if the Waqfdeed is pronounced by the Waqifwhile he was on his death-bed,

it must not exceed from one third of his total property; as any excess to this point

would not be implemented (Ibn e Qudama: 1997). This is so because in this situation

all the related pecuniary pronouncements of the Waqifwould be treated as Wasiyyah

(death-will). And Wasiyyah principles are bound to be regulated by the famous

prophetic tradition in which the prophet explicitly explained that the Wasiyyahshould

be made up within one third of the deceaseds belongings, and in fact, one third is a

big portion (Malik: 1994).

As far the potential beneficiaries of a Waqfare concerned, they may include all sorts

of extremely needy people such as the poor, widows, divorcee, orphans, handicaps,

olds, terminally-ills, or may be from the normal group of people who are in the need

of financial assistance for some specific purposes, projects, tasks and undertakings

such as for the studies, researches, marriages, pilgrimages and whatsoever is

considered as Shariah-compliant deeds and acts (Abu Zuhra: 1972). A Waqfmay also

be founded for the pious causes of promoting social, cultural, intellectual, vocational,


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professional, spiritual and moral development and well-being of humanity at large.

This includes establishments of schools, colleges, libraries, Madrasas, cultural

centres, conference halls, hospitals and shelters for homeless. Also, the Waqif may

stipulate a certain ratio of Waqfrevenues to be given to his children, family members,

descendents and offspring. This kind of Waqffalls under the category of Waqfe Ahli

(posterity/ family Waqf) (Zuhaili: 1996). Majority of Hanafi and Shafai jurists hold

the view that it is mandatory on the part of the Waqif to clearly define the specific

categories of the beneficiaries in the Waqfwill itself; as in the otherwise case, the

validity of the Waqfmay be in question (Sheerazi: 1997). However, contrary to this

ruling, Malikis, Hanabilah and Abu Yusuf are of the opinion that it is preferred but

not essential to specify the beneficiaries in the pronouncement of the deed. As in the

absence of this specification, all categories of the needy and poor people would

automatically qualify as the potential beneficiaries (Ibn e Humam: 1995).

Importantly, it is worth bearing in mind that in the process of determining the

beneficiaries and their respective entitlement from the Waqf revenues, primarily all

the stipulations and conditions put forth by the Waqifmust be followed in letter and

spirit. This is in view of the famous legal maxim that the Waqifholds the status of

the legislator, in terms of his specific conditions and stipulations in the Waqf(Zuhaili,1996: 156). Nonetheless, it is extremely important to note that all the related

conditions stipulated by the Waqif must be in compliance with the Shariah; as in an

otherwise case the Waqfwould lose its legality and validity. Ibn e Qudama( 1996: 67)

explains if a Waqfdeed is designated for a purpose that is not in consistency with the

rules of Shariah, this would render the Waqf as null and void. Also, in the same

place, he further articulates that if a Waqfis founded for the purposes that ultimately

contradict the Shariah principles or result into the disobedience of Allah, such a

practice would not merit to a Waqfdeed in the eyes of Shariah. This implies on the

fact that a Waqffor the establishment of churches, synagogues, temples and for the

places of other deities worship is strongly disallowed. Notably, this ruling is in the

starkest contrast of what Sait and Lim (2006: 156-57) have claimed and asserted that:

Awqaf supported many churches and synagogues and these were equally admissible

in the Muslim courts of law. Waqf law, after all, insisted only that the property be

given into the ownership of God for the benefit of mankind.


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Similarly, a Waqffor establishing the training centres of music, dance, action, filming

and similar sorts of education would be considered as void. In addition to it, the Waqf

revenues cannot be used for purchasing their related instruments, tools, equipments

and books (Al Zuhaili: 1996).

Apart from this, one of the most disputed and debated aspect of a Waqfdeed lies in

determining the nature and characteristics of the potential Maqoof Bihi (Waqf

property). Interestingly, the evaluating criteria for a Waqfobject substantially differ

among the various schools of Islamic jurisprudence. A vast number of jurists

including Hanafis, Shafais and Hanbalis assert that a Waqfis valid only in a tangible

and non-consumable thing. Also, they further maintain that a Waqfmust be forever

instead of being time-bound to qualify the Waqf criteria (Ibn e Humam: 1995).

Moreover, as contrary to the Malikis opinion in this regard, they further believe that

a Waqffor a specific period of time is against the very nature of Waqfobjectives, and

hence is invalid. In contrast,Maliki Jurists contend that any sort of valuable item that

is fit to become an object of Sadaqah(charity) is also eligible for Waqf, and a Waqf

may be for a certain period of time as well (Al Saleh: 2001). Significantly, the

concept of cash Waqf and its legality is, in fact, referred to be premised on this

reasoning of Maliks; as in all other schools of Fiqhit is not allowed (Kahf: 1999).

Finally, a Waqf deed is only applicable in those objects and properties that are

allowed for a Muslim to deal with in a transactional exchange (Ibn e Abidin: 1966).

This condition totally excludes all sorts of the Shariah-prohibited items like

intoxicating elements, swine and whatsoever is composed of some Shariah-

disapproved aspects as Waqfof the properties that are not in the absolute control and

ownership of the Waqifat the time of pronouncing the deed as well.

3.5 TheFiqhofAwqafManagement: A Legal Evaluation

The institution of Waqfprimarily seeks to achieve two kinds of objectives; one relates

to the spiritual and the other is concerned with the material aspects. Ideally, the first

objective of a Waqf deed is the attainment of spiritual blessings and the moral

elevation for the Waqf founder. This is, in fact, almost assured and achieved


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immediately after the deed is officially effected (Mahdi: 2010). By founding a Waqf,

while the founder, one the one hand, spiritually ascends one step closer to Allah

(SWT) and attains a sense of accomplishment, on the other, also he grows in

compassion and affection towards the creatures of Allah (SWT). But, as the second

objective of the Waqfaims at the facilitation and provision of the basic necessities to

the needy and deserving entities, it demands for the efficient deployment of an

effective management mechanism to accomplish the desired-end in a material way.

From the beneficiaries perspective, the efficient administration and management of

Waqf properties is almost of the equivalent significance as its foundation. In fact,

ultimately they receive a share of what is generated as the revenues of the Waqf

corpus, and hence are generally more concerned about its effective management, and

also about the fair distribution of its recurring incomes amongst them. Though, in

essence, the basic principles of Waqfmanagement have also been derived from the

aforementioned tradition of Omar (R.A), but as a matter of fact, the tradition itself

does not provide complete guidance and instructions in this respect.

Historically, with the gradual expansion of the Islamic territories towards the non

Arab countries, and with the increased interest of Muslims to overwhelmingly

participating in this philanthropic deed, a greater need for the evolution of the Fiqhof

Waqf management was felt at a later stage and was subsequently attended and

addressed by the Shariah jurists (Abu Zuhra: 1972). In principle, according to the

majority of jurists, with slight divergences in the methods of their reasoning, the

primary right to administer the Waqf rests with the founder himself, and he is also

entitled to appoint an administrator on his behalf. This ruling is, in fact, premised on

the example of Omar (R.A) as he is believed to have administered his Waqf by

himself and later appointed his daughter Hafsa (R.A) as the custodian and care-taker

of the same (Al Sarakhsi: 1986). Also, there is almost a consensus that in the process

of appointing a manager or administrator of Waqf, the terms and conditions stipulated

by the founder would be strictly observed. This is in addition to the general

agreement of the jurists that in the appointment of a proxy administrator it is

mandatory to ascertain that along with being a Muslim he also possesses the attributes

of maturity, sanity, piousness and eligibility to manage the things uprightly (Ibn e

Abidin: 1966).


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Most importantly, the primary responsibilities of the Mutawalli (administrator of

Waqf) include putting the property into best productive uses, safeguarding the corpus

of the Waqf, protecting it against any sort of encroachments on it, arranging its

repairmen when and as needed and distributing its revenues among the beneficiaries

proportionately. Significantly, according to the majority of jurists the protection of

the Waqfcorpus should be primary concern of the Mutawalliand this aspect of Waqf

must be given priority even if this contradicts and contravenes the stipulations of the

Waqifhimself (Al Saleh: 2001).

3.6 An Overview of Modern Approach of Waqf Ahli, and the Challenges to its

Viability

The classical Fiqh literature has classified Waqf into three categories known as (1)

Waqf Khairi (for general philanthropy) (2) Waqf Ahli (for posterity or family) and

Waqf Mushtarak(a hybrid of both) (Mahdi: 2010). The concept and background of

the first kind of Waqf, as already been discussed in good detail, derives its origin from

authenticAhadith, and has totally agreed upon precedence in the prophetic era itself.

As far as the background of second type of Waqf(family Waqf) is concerned, that is

believed to have been devised by jurists in a later period, and is deemed to have been

introduced with the objectives of inculcating into a prospective Waqif the idea and

significance of providing the pecuniary safeguards for his descendants (Khallaf:

1948). According to the majority of Shariahjurists, if a Waqif stipulates at the time of

founding a Waqf deed that the proceedings and revenues from the Waqf must be

directed to his own descendants and offspring, this condition would be complied

with, and the deed would be regarded as Waqf Ahli (family Waqf) (Badran: 1982)

In this context, prior to proceeding further, it is worth mentioning that in the practical

terms the concept of family Waqfhas been, historically, at the receiving end of severe

criticism from Western academia and practitioners alike due to, arguably, being

economically inefficient and also for being a non-viable model in longer terms. The

gist of this objection may be best summarized in what Sait and Lim (2006: 161) have

referred to Carroll (2001: 261) in pointing out that:


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The perpetual nature of Waqf Ahli, for example, meant that as generation succeeded

generations, the number of beneficiaries increased to a point where benefits accruing

to an individual were insignificant. As a consequence, interest in maintaining the

property diminishes; the property falls into disuse and ruin.

Significantly, a similar sort of contention has also been presented by judiciaries of

some jurisdictions in concluding that this form of Waqfis practically non-sustainable

in long terms, and hence, have also been invalidated in some Muslim countries such

as Syria and Egypt etc in 1949 and 1952 respectively (Zuhaili, 1996: 178).

Furthermore, in another example, it is argued that at the time of declaring the family

Waqfinvalid in the colonial India in 1873, the Bombay High court had observed in its

final verdict, that:

A Waqf for a family settlement creates a perpetuity of the worst description, for it

prevents the alienation of the house forever and necessitates its use in a manner

which, with the natural increase in the number of descendants would probably render

impossible, even if they would be willing (which could hardly be expected) to live

amicably under one roof throughout the generations (Diwan, 1992: 132).

Importantly, in the wake of having discussed the opponents critical contentions

challenging the very objective of the family Waqf, along with its ultimate economic

sustainability, the demand for critically revisiting the fundamentals of its concept in

technical terms has increased many folds for the Shariahpractitioners. In this regard,

though several counter-arguments and possible remedies have been offered by some

Islamic scholars, however, keeping in view the empirical evidences witnessing the

real-time inefficiency embedded in the nature and idea of WaqfAhli,there seems no

way out but to re-examine the origins and objectives of the whole idea, and if possible

to present its re-structured model in the light of the Maqasid-us-Shariah(Mahmoud

and Shah: 2011). In this regard, Rashid (2002: 51) and Majid (1976), for example,

suggest re-structuring the idea of open-ended family Waqf as a restricted model;

where the beneficiaries of the deed should be limited to the one or two generations of

the Waqif,and in their aftermath the revenues must be diverted to all kinds of needy

and deprived masses. In this way, according to them, on the one hand the Waqif

would qualify for a perpetual reward from Allah; on the other, his immediate family


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members would reap the financial benefits in a more economically efficient manner.

Also, after all, this proposition constitutes the inclusion and first priority of other

poverty-ridden descendants of the Waqifin the share of the revenues generated from

the underlying property.

Furthermore, in the same context, Kahf (1998, 2001) have presented an extended

argument stressing on the need of having a fresh exploration of the traditional

mechanism of Waqf that necessarily requires a clause of perpetuity in all sorts of

philanthropic Waqfdeeds.

Apart from these arguments, it is interesting to note that in the corpus of the

authenticAhadithliterature, there is no prophetic tradition authenticating the current

form or modal of family Waqf. It is to be noted that in the modern form of family

Waqf, the property is rendered as Waqfon the chosen family members of the Waqif,

and the underlying revenues of the same continue to be shared by generations after

generations of their descendants (Doumani, 1998: 26). Interestingly, in this way,

often some of the nominated family members; who are rich and wealthy enough, are

also included in the list of beneficiaries and receive the proportionate rewards.

Furthermore, in some instances, the Waqifrenders a family Waqfon certain members

in an attempt to circumvent the Islamic law of inheritance (Carroll, 2001: 257-9).

Thus keeping in view all these aspects and dimensions of the modern family Waqf

practices, Islamic scholars should be prompted to re-examine the origin and purpose

of this practice. In fact, as discussed above, the fundamental Hadith proving the

legality and authenticity of Waqf in Shariahis the one narrated by Ibn Omar (R.A)

discussing the case of Omar (R.A). The content of thatHadithbears testimony that it

was a philanthropic Waqf, and among the potential beneficiaries of the deed were

relatives and family members of Omar (R.A) too. Hence, this Waqfdeed cannot be

regarded as a pure precedence for the modern family Waqfmodel.

In another way, one may argue that, the example of pure family Waqfmay rightly be

found in the Waqfdeed performed by the prophets companion Abu Talha (R.A). Ibn

e Katheer (1998) narrates that when the verse No. 92 of chapter 3 revealed, Abu

Talha came to the prophet and inquired that, O prophet since this verse of Quran

explains that you may never achieve the piety unless you spend from what is most


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beloved to you and I find my orchard ofBayruhamost cherish-able to me, hence I

have decided to dedicate it for the sake of Allah (SWT). On this offering, the prophet

had suggested him to distribute the same among his immediate relatives as charity.

However, from jurisprudential point of view, this deed should not be counted as

Waqf, because there is an explicit indication in the narration itself suggesting that Abu

Talha (R.A) distributed the orchard among his relatives and did not render it as Waqf

on them.

Also, prior to this, one may tend to substantiate his/her contention in support of the

legality and authenticity of the modern form of family Waqffrom what the prophets

wife Aysha (R.A) has narrated that the prophet had dedicated his seven orchards to

Bani Abdul Muttalib and Bani Hashim in Madinah (Sunan al Kubra 160/6). However,

it is of significance here that, the word used in the narration just speaks of the

prophets making Sadaqah, and does not explicitly implies on Waqf. Hence to

conclude that it was an example of family Waqfwould be subjected to the scrutiny of

authenticity.

In addition to it, although, there are several narrations suggesting that the companions

of the prophet dedicated their properties to their sons and relatives. But, literally no

scholar has ever been able to conclusively distinguish between what were a normal

gift/ Sadaqah, and which was made a Waqfby them. Most importantly, the modern

categorization of Waqf into the three categories, in itself, has been carried-out in a

later period of time and was not known as such in the prophetic or the companions

era. Saleh (2001: 55) explains that The modern categories of Waqfand their names

like Waqf Ahliand Waqf Khairiwere not existent in the prior phase of Islam but all

sorts of philanthropies were known as Sadaqat. More than this, Abu Zuhra (1972:

50) contends that as far as the family Waqf is concerned, we do not find any

convincing evidence or proof in this regard except from what is comprehended by the

jurists in the deeds of the companions.

Thus, the modern form of family Waqf that is believed by some scholars equally

acceptable in all cases, irrespective of whether the nominated beneficiaries are rich

and wealthy or poor and needy should be further scrutinised in the light of primary

sources. In fact, this contention is also supported by what the majority of the Hanafi


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and Hanbali jurists opine; that a Waqf in the favour of rich and wealthy people is

invalid (Zuhaili: 1996). Moreover, according to Al Amin (1994: 97-98), though the

majority of jurists have approved the idea of family Waqfin Shariah, the legality and

validity of the concept has always been in question to some other scholars. Moreover,

Al Amin (1994) further explains that there is a section of modern jurists which

asserts that the legality of family Waqf must be subjected to the legal criteria

fulfilment process. According to them, the legality of family Waqfvaries case to case

and depends on the underlying circumstances of the Waqif and the nominated

beneficiaries.

In a nutshell, the model of the modern family Waqf, that has attracted some severe

criticism over the years from the academia and legal practitioners alike for being

economically inefficient and non-sustainable in longer terms, also lacks authenticity

from the Shariahperspective. Therefore, there exists an acute need to re-examine the

legal structure of this model in the light of Shariah, and if possible to propose a better

alternative in the form of an economically efficient and a viable structure. All in all,

the debate over the efficiency and sustainability of family Waqfcontinued to be the

focal point of jurists and scholars in the post independent India too, and no one

seemed bothered to evaluate and analyse the legality of its current model fromShariahperspective.

3.7 Conclusion

This chapter attempted to shed a little light over all the major components and

elements of FiqhofAwqaf. Initially, the chapter endeavoured to introduce the general

Shariah-adopted techniques for recommending and instituting an injunction to the

believers, and sought to analyse the significance of philanthropy-related exhortations

available in the corpuses of the Quran and Sunnah. Later on, the chapter undertook to

trace the origin of Awqaf and its historical background, and aimed at thoroughly

discussing the different kinds of Waqfand their historical order of initiation in a good

detail.


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Also, attempts were made to thoroughly examine the aims and objectives of various

kinds of Awqaf, and efforts were made to analyse the best possible ways and

approaches to accomplish them.

In addition to it, as the theme of the chapter was in a demand of bringing together

some of the essential jurisprudential aspects ofAwqaf and the related diverging views

and opinions of Shariah-jurists, a number of fundamental and basic principles of

Awqafwere evaluated and analysed in the light of authentic classical Fiqhliterature.

Moreover, the origin and legality of current family Waqf model was appraised with

reference to Fiqh of Awqaf, and detailed arguments were made to elaborate its

apparent fragility from both the economic and Shariahperspectives alike.

To sum up, keeping the fact in view that in the subsequent chapters, the Waqf

management practices in India would be evaluated and analysed with reference to the

Fiqh of Awqaf, the need and significance of this chapter as the Fiqhi parameter-

defining block may hardly be overstated.


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Waqfin the history of Indian sub-continent. They have premised their claims on the

inscriptions carved out on one of the Dargahs door stating the date of its

establishment as 424 AH (Ahmad and Khan, 1999: 32-33). However, the authenticity

of this claim is questionable, as the door must have been subjected to change since

then several times.

Apart from these claims, as a matter of fact, Muslims had started visiting Indian-sub

continent as merchants far earlier and had been able to found the first Muslim state in

the Sindh region as early as eighth century A.D (Kozlowski, 1985: 22). Hence, in

view of this historically recorded fact, it is obviously unmindful to conclude that the

first Waqf deed would have come into being after almost four-hundred years of

Muslims mighty presence in the sub-continent. Also, it defies a sound reason and an

astute logic to believe that during this long period of four centuries they did not have

a need for mosques and graveyards.

Importantly, Waqfin India enormously developed with the advent and dominance of

Muslim rulers in the country and got great momentum in Mughal era starting from

1526 (Cizacka, 2000: 171). Mughal emperors created huge endowments in favour of

Mosques, Madrasas, Sufi shrines, graveyards, bridges, shelters for homeless, and for

their Sheikhs and religious scholars as well. Significantly, recorded accounts

demonstrate that most of the Mughal emperors were too generous in terms of

extending their philanthropies for both the general public welfare and religious

purposes alike (Ansari: 1974). Also, notably, it is believed that in granting

endowments for a pious cause or to a religious scholar, they never resorted to any sort

of religious biasness or caste-creed related discriminations by any means. In this

regard Cizacka (2000: 170) asserts:

Almost every (Muslim) ruler had a favourite Sheikh and established Waqfs to

support his shrine. But it was not only the Muslim Sheikhs who received grants from

the rulers. Just as the Ottoman supported the Christian churches in the Balkans,

Hindu priests in the sub-continent also received imperial support from the Mughal

rulers. The term Waqf was also used in this case even though referring to a non-

Muslim institution.


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Additionally, Quraishi (1972: 36) goes one step further in claiming that some Mughal

emperors even designated special funds for Hindu Pundits (priests) to pursue

expertise in Sanskiritic lore, and they also founded specific Waqfs for the

maintenance of their temples and monasteries. In the same context Quraishi (1972:

34-36) maintains that despite being designated for non-Muslim institutions, those

funds were also referred as Waqf. Furthermore, according to Kozlowski, (1985: 22-

25) during the regime of Muslim rulers in the country, the endowments of Waqfwere

so common in favour of the Hindus that they picked-up the terminology and used it

to describe their own endowments.

Notably, in view of previously discussed Fiqh of Awqaf, one may be prompted to

express an objection against this assertion, and may rightly question the legality and

validity of such a Waqfin Shariah, founded particularly for the purpose of benefitting

non-Muslims and for maintaining their places of worships. In this respect, there seem

two possible ways to interpret and clarify these sorts of objections. Firstly, from the

Shariahperspective, to the majority of jurists it is permitted to designate a Waqffor

non-Muslim individuals unless they do not use the proceeds explicitly in the purposes

that overtly violate the Shariah-rules or Islamic values (Zuhaili: 1996). This

permission is derived from the act of the prophets wife Safiya (R.A), who haddevoted a portion of her property as Waqffor her Jewish brother (Zuhaili, 1996: 176).

Also, classical Shariah jurists have shown no objection even in making a Waqf for

those who frequently visit the places of their worships irrespective of the religions or

faiths they belong to. However, a Waqf, particularly, for establishing a place of

worship other than Mosque is unanimously prohibited. Thus, if proved that a so-

called Waqfis rendered in the favour of such a building or structure, this sort of deed

would neither be deemed as Waqfnor the rules of Waqfbe applied on the same, as

such kind of Waqfis void and invalid in the domain of Shariahby all means (Zuhaili,

1996: 176).

Secondly, historical accounts reveal that the Mughal emperors were very generous,

and out of their generosity towards the masses, they used to provide them with the

financial patronages in different modes of endowments and philanthropy. And, in this

regard, Muslims and non-Muslims were treated equally by them (Ansari: 1974).

Notwithstanding this, deeds of Waqf were specific for Muslim individuals and


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institutions, and other forms of charitable endowments were used for non-Muslims

(Husain: 1979). However, due to the frequent and wide-spread usage of the term

Waqf by the imperial courts and related officials of the time, for all kind of

philanthropic deeds, the term got recognition in all sorts of endowments and

philanthropies. This notion has also been supported by what Kozlowaski (1985: 24)

has candidly elaborated that in those days different types of grant had a tendency to

shade off into each other. Also, in practice, the distinction between them and a Waqf

was not always clear.

4.2 WaqfManagement Systems in Pre-colonial India: An Examination

The mechanism of Waqf management in India during the medieval period was

generally structured and adopted on individual basis and had no specific documented

or official model. In those periods, most often, the deed of Waqfwere performed by

the verbal pronouncement of the founder to theMuezzin4orImam

5of the locality, or

to the selected gathering of the noble individuals (Cizacka: 2000). However, it is

believed that some pertinent leading clues of their management systems have been

traced in the forms of related historical Waqfnamas6written by the Waqifs to express

their will of philanthropy to the potential Mutawalis. Some of the similar Waqf

documents reveal that in that era, while on the higher level, a special kind of Waqfby

a Muslim Sultan or by an individual having similar status would be managed and

administrated by the specially appointed Qazis-cum-Mutawalis, a Waqfof a smaller

size most often was handed over to the Muezzinor Imam of the area, who was the

sole responsible entity to manage the same under the guidance of Fiqh of Awqaf.

Also, it used to depend totally on the Mutawalis discretion that how to put the

property into most productive way and how to distribute the underlying incurring

revenues among the beneficiaries (Cozlowski: 1985).

4A person who calls Azan

5The leader of congregational prayers

6The written Waqfdeeds


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In addition to it, there are some sporadic evidences suggesting that the erstwhile

Muslim rulers used to be much more careful in appointing the care-taker-cum-

Mutawalisin the extraordinary instances of Waqf. In a similar sort of exercise, Wahab

(2002: 142) claims that Sultan Muhammad bin Tughlaq had appointed Ibn Batuta,

the famous traveller, as the Mutawalli of the tomb of Sultan Qutubuddin Mubarak

Shah.

From the sixteenth century onwards, with the advent of the Mughal Empire in the

sub-continent, the proportion and magnitude of the philanthropic Waqf expanded

enormously. Nonetheless, according to Cizacka, since the preceding Muslim Sultans

had already made ample provisions for the support of the mosques as well as for the

religious notables, the Mughal did not excessively engage in religious Waqf (2000:

170-71). Interestingly, there is no substantial evidence proving that either in the

regime of Sultans or during the initial Mughal period, there was a separate

centralised Waqf management department or state level Waqf controlling official

body appointed with the sole purpose of administrating theAwqaf.

Later on, in the Mughal era, the Ulama or religious scholars rose up to handle the

reigns of all Shariah-related affairs. To this effect, the department of Waqf too fell

under their supervision, as they were the only authority to administer and manage

them in the Shariah prescribed way. Highlighting this point, Pearson (2008: 3-4)

vividly explains:

The Ulama (singular Alim) or religious scholars were directly involved in the

administration as advisers in the court and as jurists. They also operated as teachers

at all levels, as leaders of the congregational prayer, as custodians of mosques and

as managers of charitable organisations.

The Waqfmanagement in that time was normally subjected to a hierarchy of gross-

root to the orderly ascending higher level of administrative entities. At the very

ground level, Imam of a village was entrusted with the administration of the Waqf

from the related locality, and was accountable to the regional Qazi in a disputed

matter. The regional Qazis, who were the only resort in all Shariah-related affairs and

mores of the people, were required to report the functions and administration of the

regional Waqfto the provincial Sadr. These Sadrswere finally entrusted to supervise


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and advise the functionality of the provincial Awqafand were directed to report the

Sudr us Sudur, the highest religious authority of the state (Cizacka, 2000: 171-72).

Thus, in this method of administration, Waqfproperties were in the hands of the high

calibre Ulama-cum-Mutawalis, who, along with being pious and honest, were well

versed with the Fiqh of Awqaf and were deemed as the most eligible in terms of

operating the functionalities of this religiously-motivated pious philanthropic

institution (Lane and Hamadi: 2009). Also, evidently, with the practical application of

Fiqh of Waqf, the Awqafwere put into most efficient ways of production and their

corpuses were highly protected from all sorts of decay, dilapidation, encroachments,

misuse, disuse or abusive exploitations. As a rippling effect, this, generally, would

provide the confidence and moral encouragements for the future founders of Waqf

and potential endowers.

4.3 WaqfManagement Practices in Colonial India

The majority of Awqaf in India were created in the pre-colonial India. Successive

Muslim Sultans and Mughal emperors had shown enormous support to this Islamic

way of philanthropic foundation and may be rightly considered as the major source of

overall Waqfaugmentation in the country (Rashid: 1997). In the aftermath of Mughal

emperors fragmentation and their consequent complete fall in the early eighteen

century, the reigns of the country fell into the hands of the outsiders, the British

power. In practical terms, the Britishers political ascendancy to the power in the

country, after all, meant a new era of governance and more than that heralded the

implementation of strange sets of regulations for both the religious and secular

masses of the country (Jones: 2011). Though, at the initial stage, there seemed no

political will on the part of the newly set up government to tamper with the religious

laws of either Hindus or Muslims in explicit terms, however, in a gradual but

consistent manner their involvement in this personal domain of the indigenous

citizens became inevitable (Wahab, 1998:142). This process started, as Cizacka

(2000: 173-175) claims with the Bengal regulation vii of 1832 which superseded

both Hindu and Muslim laws of succession. In fact, previously according to the

personal laws of both the community a conversion to other than ones parents

religion would automatically cause the exclusion of the covert from their inheritance.


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But, since this law was perceived by the active Christian Missionaries as a

fundamental hindrance in the way of mass conversion of people to the Christianity,

they successfully attempted to convince the English courts to legislate a law ensuring

the protection of the converts inheritance rights (Cizacka: 2000).

The first major blow that the hierarchal Waqfadministrative system of the country

suffered and sustained was in the shape of the colonial powers new administrative

policy that required an instant abolishment of the institution of Qazi. The Qaziswere

replaced with the newly appointed judges who were educated in the English law of

administration and were just trained in dealing with the related legal systems

(Schacht: 1959). Up to now, the institution of Qazi was theoretically held as an

important unit of the systematic structural chain entrusted with the responsibility of

dealing with the religious affairs of Muslims in the light of Shariahlaw. However,

the decision of abolishing the institution of Qazi, inter alia, deprived the institution of

Awqaf the efficient management and the reliable supervisory controllers (Rashid:

1997).

It is believed that, initially, the religious nature of Waqf and its related underlying

complexities made it difficult for the British judges to interfere with this institution by

their own initiation. However, later, as the government grew desperate to generate

more and more revenues through taxations from all means possible, they introduced,

for the first time in the India history, the policy of private lands subject to the

governmental taxation. Consequently, Zamindari act (conferring the ownership of a

land to its holder at the time) was implemented in 1793. According to this ruling the

legal title of a land was to be transferred to the farmer who had been farming or

possessing the same at the time of decreeing this new law (Cozlowaski: 1985). In a

nutshell, this enactment entailed a surge of negative implications on the future of

Waqf Properties as they had already fallen into the ownerships of individuals

responsible to protect and cultivate them. Also, this decision paved the easy way for

the dishonestMutawalis too, to extend their illegal appropriateness on the Waqfland

under their supervision.

Later on, with the increasing cases of embezzlements and reports of

misappropriations of the Waqfcorpuses by no one other than the so-calledMutawalis,


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the potential beneficiaries were left with no option but to approach the English courts

for the recovery of their beneficial rights. As a result, due to similar sorts of cases

coming too frequently into the courts, the colonial power introduced new legislation

regulating the Waqfproperties. In 1863, the religious endowment act brought a new

change in order; as per this act all the Waqf properties were made subject to their

trustees superintendence and supervision. However, in practical terms this law

implicitly aided and abetted the illegal encroachments of some trustees and facilitated

their final claim on the properties (Cozlowaski: 1985).

Furthermore, in the late nineteenth century, due to the high emphasis of British courts

on land privatisation, they found it necessary to implement the Islamic law of

inheritance among Muslims in the country in letter and spirit, and any obstacle

hindering this process was to be finally removed. From the perspectives of this

policy, the concept of Waqf Alal Awlad appeared to them as one of the major

impediments in the way of private ownership of land, and henceforth was discarded

by the Privy Council in 1894 (Diwan: 1992).

Importantly, according to some scholars, since the idea of WaqfAlal-Awlad has been

approved and been in practice since the prophetic era (Mahdi: 2010), the official

invalidation of this practice hugely enraged the Muslims at the time, and they

expressed their related concerns and grievances in the strongest manner. Finally, the

growing agitation and reactionary sentiments among the Muslim community impelled

the court to reconsider its decision and, at last, this culminated into the introduction of

the Muslim Waqf validating act of 1913. From the perspective of this new law,

Muslims were once again allowed and entitled to create family Waqf without any

kind of legal obstacle in the process (Rashid and Husain: 1979). In fact, this

enactment was the first legislative act in the sub-continent encompassing all kinds of

philanthropic and charitable deeds into its fold and scope. According to this act, any

person fulfilling certain criteria was entitled to be freely appointed as a trustee of a

specific Waqfby the Waqifand there was no condition such as officially registering

the Waqfwith the governmental authorities (Khan and Ahmad: 1998).

The management and administration of Waqfwith reference to the act of 1913, was

left fully vested with the nominated Mutawalis, and in lieu of the act there was no


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scope for gathering official data pertaining to the functionality and efficiency of the

Waqfsystem. However, this caused difficulty in extracting the related information for

a potential Waqifor for someone who might have been sceptical of malfunctioning

with regard to a specific Waqf. In 1920, with a view to bridge this vacuum the

Charitable and Religious Trust Act was introduced to supersede the previous Act of

1913. According to Khan and Ahmad (1998: 43) Although this act did not provide

for any administrative machinery to exercise supervisions over the Waqfs, any

interested person could apply to the court of district judge to seek information, from

the trustee regarding value, conditions, management, nature and object of Waqf.

Finally at a later stage, as deemed necessary, in 1923, the Musalaman Waqfact was

passed necessitating the trustee of every Waqf to furnish all sorts of pertinent

information by default to the district judge. Importantly, in the acts of both the 1920

and 1923 there was nothing mentioned in respect to family Waqfas this was regarded

by the court as private deeds made by individuals to the benefits of their own

descendents (Latifi: 1978).

4.4 WaqfManagement Model in the post Independent India

The Waqf management system in the British India had critically suffered some

unfavourable blows due to being unduly interfered with time and again by the English

courts (Sarkar: 2008). The uncertainty looming large over the ultimate fate of this

socio-religious institution had severely dampened the confidence of the Muslim

community from participating in this method of philanthropy any further since the

beginning of the twentieth century onward (Rashid: 2005). Also, the growingdisillusionment of the community with the evident pathetic condition of the

institution had caused a static halt in the further expansion and development of other

community-based social exercises too.

In the wake of much-desired independence of the country in 1947, it was highly

expected on the part of the Muslim community that from, now on, their religious

affairs should be handed over to the concerned religious seminaries, which would

have the free choice to manage and handle them according to their religious model


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codes. However, as the subsequent chaos and mayhem, that was triggered in the name

of religious fanatics and communal extremism between Hindus and Muslims and that,

ultimately, led the country to the unfortunate point of partition, persisted to have its

strong grip on the state of affairs and things remained into complete disorder for the

next six, seven years. The ensuing repercussions constituted major adversities,

particularly, for those charitable institutions that had been left without supervision

due to the mass exodus of the trustees from their home lands. Indian Waqfs are

believed to be the worst victims of these chaotic situations. Cizacka (2000: 182-83)

has rightly highlighted this scenario while concluding that:

The period 1947-1954 was a critical one for the Waqfs of independent India. In the

wake of partition many Waqfs were left without a trustee or beneficiary, as so many

of them had fled or migrated to Pakistan. Meanwhile, a reverse migration from

Pakistan resulted in the illegal occupation of Waqf properties by displaced persons.

Every one exploited the chaotic situation of those times to gain personal advantage at

the cost of Waqfs.

It is argued that the best thing that happened to Waqfs in India was the legislation of

the Central WaqfAct1954, which encapsulated all the pertinent aspects dealing with

the governance and administration of the Waqfs of the country (Rashid, 1997: 10).This Act, according to Rashid and Husain (1979: 41) laid down a sound

administrative structure to ensure proper administration of the Waqfs. Notably, the

Act required the constitution of the central Waqfboard consisting of state appointed

members who would superintend the affairs of the registered Waqfs being managed

and administered by their assigned trustees. However, arguably, since the Act did

assume the administration of Waqfsimilar to any secular charity or endowments, it

did not necessari

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