Islam encourages stress on working hard and investment for earning a livelihood.
For extremely poor who have no means to meet basic needs, no sources to invest,
and no opportunity to earn, Islam suggested voluntary and compulsory endowments
[Zakat, waqf, sadqa] for catering the needs of different degrees of poor from
destitute to less poor, and also causing, circulation of wealth leading to it
equal distribution, which is also another way to reduce poverty.
Wakf is the most important branch of Muslim law as it is interwoven with the
entire religious life and social economy of Muslims. Wakf means detention
scale of the involvement of the waqf in Muslim societies was enormous. Between
one-half and two-thirds of the landed property in the Ottoman Empire was held by
awqaf in the early twentieth century. At the same time, one-half of the land in
Algeria and one-third in Tunisia was made waqf. A similar percentage of real
estate was also vested in awqaf in Egypt.
According to Muslim law, it means
- inalienable lands used for charitable purposes and
- pious endowments.
Wakf is the tying-up of the substance of the property in the ownership of the
founder (Wakif) and the usufruct (use) for a charitable purpose.
The Wakf Act of 1913 defines wakf. According to it, it means the permanent
dedication by a Muslim, of any movable or immovable property for any purpose
recognized by the Muslim law as pious, religious or charitable.
It is not possible to translate the term waqf
with a single English word
conveys a myriad of meanings. Sometimes a waqf is translated as a 'charitable
trust', which has a public dimension and at other times it is translated as an
, which resembles a will
that has a private
The word waqf
is literally translated as confinement, prohibition
In fact, the term describes charitable foundations or pious
endowments. In a brief introduction to the nature, history, and prospects of waqf in The Encyclopedia of Islam, Monzer Kahif defines waqf as
the holding and preservation of a certain property for the confined benefit of
certain philanthropy with the intention of prohibiting any use or disposition of
the property outside of that specific purpose.
Under Islamic law, it refers to an institutional arrangement whereby the founder
endows his property in favor of some particular persons or objects. Such
property is perpetually reserved for the stated objectives and cannot be
alienated by inheritance, sale, gift, or otherwise.
In the case of Kassimiah
charities v. Secy., Madras State Waqf Board:
it has been held that waqf means
detention of the corpus in the ownership of God in such a manner that its
profits may be applied for the benefit of his servants. The object of dedication
must be religious or charitable.
Waqf is described as the most important institution, which provided the
foundation for Islamic civilization, as it was interwoven with the entire
religious life and the social economy of Muslims. First and foremost the waqf is
a religious institution that is established to benefit the poor.
elsewhere in an account of Muhammadan law, Asaf A.A. Fyzee says the real
purpose of making a waqf is to acquire merit in the eyes of the Lord; all other
purposes are subsidiary. Therefore every purpose considered by the Muhammadan
law as religious, pious or charitable
would be considered valid.
The waqf was not limited to the provision of public services. A large number of
waqf properties were reserved in favor of the founders and their family members,
generation after generation. However, even in such private awqaf, the ultimate
beneficiaries were the poor of society or public services. Therefore, the waqf
is an institution encompasses both private and public functions.
The Mussulman Waqf Validating Act 1913,
Defines waqf as:
Waqf means the
permanent dedication by a person professing the Mussalman faith of any property
for any purpose recognized by Mussulman Law as religious, pious, or charitable.
The physical form of waqfs varies immensely, ranging from buildings (including,
and especially mosques), to parks, roads, bridges, dams, school buildings, and
Origin and development
The precise origin of the waqf appears to be unclear, with various commentators
attributing slightly different motivations for their initial establishment
within a broad
range of religiously inspired pious motives.
Fyzee says that the first account
noted by the legal authorities pertains to Omar the Second Caliph:
Ibn Omar reported, Omar ibn al-Khattab got land in Khaybar; so he came to the
Prophet, peace, and blessings of Allah be on him, to consult him about it. He
said, O Messenger of Allah! I have got land in Khaybar that which I have
never obtained more valuable property; what dost thou advise about it?
thou likest, make the property itself to remain inalienable, and give (the
profit from) it in charity.
So Omar made it a charity on the condition that it shall not be sold, or given
away as a gift, or inherited, and made it a charity among the needy and the
relatives and to set free slaves and in the way of Allah and for the travelers
and to entertain guests; there being no blame on him who managed it if he ate
out of it and made (others) eat, not accumulating wealth thereby.
The waqfs political importance for leaders to secure power and influence among
their people. Waqfs were used by rulers as an instrument of public policy, that
is, as a means to secure their influence and prestige with the public, promote
ties in outlying provinces and strengthen the hold of the state on the
beneficiary population. The creation of endowments, particularly for the
establishment of madarsas and Sufi lodges, was also an effective instrument for
local governors and grandees to spread their influence and gain political
legitimization or support among the population.
The waqf provided a mechanism for the preservation of property for family
members. By making a waqf of his property in favor of his family or some public
cause the founder divested himself of the legal ownership. As the waqf was
legally a charitable institution, rulers could not lay their hands on it without
invoking public anger. The charitable (sadaqa) element of waqf conferred
sanctity upon the waqf property. It was the sanctity attached to the waqf
property, which protected it from either outright confiscation or heavy
taxation. This understanding is endorsed by the synonymous
expressions of waqf which are found in classical texts such as sadaqa mawqilfa (reserved
charity), sadaqa jdriya (unceasing charity) and sadaqa Muharram (sacred charity)
and the traditions of the Prophet that sanctify the sadaqa. Moreover, the
majority of jurists regard waqf property as the property of God reserved for the
benefit of the poor.
The prophet is said to have spoken to Umar ibn al-Khattab and told him to
convert the land he received into waqf, transferring the ownership from himself
Muslim community: Obeying the enjoinment of the Prophet, Umar turned the land
into a sadaqa (charitable or pious act): it shall not be sold, nor given away,
nor inherited, and its usufruct should be spent on the poor, the relatives [of
the Prophet], and those who fight in God's wars.
Fundamentals of the Islamic Law of Waqf
Indeed, it is interesting to note that Fyzee considers Islam a socialist and
democratic worldview. He says it is socialistic because it divides the estate
of a person after his death compulsorily and distributes among his nearest
relations, male and female;
democratic, because it preaches equality among human beings and the brotherhood
of man.All dealings of the waqf must comply with the shariah (Islamic law).
In the organizational structure of a waqf, there are three major parties. The
founder is called the waqif, who creates a waqf either by writing or pronouncing
his intention to make a waqf of his property in favor of the beneficiary or
beneficiaries, called mawquf'alayh, who, according to some jurists must be
capable of owning property.
A waqf can also be created for a specific purpose, e.g., promotion of religious
education or the welfare of the needy and the poor. The third party is the
administrator, called the mutawalli, who administers the waqf according to the
conditions laid down by the founder. The qadi performs the duty of supervision
over the waqf by keeping a check on the administrator. A specialized government
department (diwan) to govern public awqaf.
The institution of waqf is not mentioned in the Quran, which is considered the
primary source of Shari'a. However, the general verses that emphasize charity
are taken to be the legal authority from the Quran for the validity of the Waqf.
There are traditions of the Prophet and his Companions who established the waqf-as sadaqa (charity).
Although such traditions provided the basis for waqf law, the detailed law was
developed by jurists on the basis of secondary sources of Islamic law such as qiyas (analogy), ijma (consensus), istihsan (juristic
preferences), istishab (continuity)and urf (custom) and reflects the
socio-political developments of the time. The principle of istislah (public
good) was also applied in the later periods in order to legalize new practices
such as cash awqaf.
The majority of jurists, which includes Shafi'i, Ahmad ibn Hanbal and two
disciples of Abu Hanifa, Abu Yusuf and Muhammad al-Shaybanl, hold that a waqf
signifies the extinction of the ownership of the founder in the dedicated
assets, which are detained in the implied ownership of God and their profits are
applied for the benefit of mankind. The ownership of the founder extinguishes
and the waqf property cannot be sold, gifted, or inherited by either him or the
beneficiaries. Thus the substance of the waqf property ceases to be a subject of
private property. The beneficiaries
are ipso facto proprietors of the usufruct of property.
Characteristics for the validity of Waqf
Generally, perpetuity, irrevocability, unconditionally, and inalienability of
waqf property are the four fundamental conditions for the validity of a waqf.
There are some other conditions specific to the various parties involved in the
waqf, its objects, its subject matter, its administration, the deed of Waqf, and
the dissolution of waqf.
The majority of jurists regard perpetuity as a mandatory condition for the
validity of a waqf and only the Maliki School allows a temporary waqf. Abu Yusuf regards
a waqf as irrevocable and perpetual because, according to him, the waqf
signifies the termination of ownership as in the case of divorce and
manumission, which takes effect by the mere pronunciation of words and there is
no requirement for the acceptance of waqf property. Any waqf that does not
provide such an object (ghayr munqta') is invalid.
S.2 of The Mussulam waqf Act that a waqf must be religious, pious, or
charitable. In the case of Zain Yar Jung v. Director of Endowments
explained by Gajendragadkar, J.:
it is clear that the purpose for which waqf can
be created must be one which is recognized by Muslim Law as pious, religious or
charitable, and the objects of public utility which may constitute benefits
under the waqf must be the objects of the benefit of Muslim Community.
dedication need not specifically be in favor of a place of worship, khankah,
dargah, cemetery, etc. It is enough if the dedication is made for the purpose
recognized by Muslim Law as pious, charitable, or religious.
A pious dedication that is not permanent may be sadaqa but cannot be termed as
waqf. A dedication must not be bound by time in order to be termed as waqf.
It is the special characteristic of a waqf that the ownership is tied up in God
and the profits are devoted to the benefit of human beings. The income accruing
from the property is the thing that is spent for the realization of the object
for which that waqf was created. Thus property remains fixed and the outcome is
in the flow. However, the definition of waqf by Shias does not make it clear as
to whom the corpus belongs.
The major question also remains:
Who can create waqf?
to answer that, any
person who is competent to contract whether Muslim or non- Muslim can create a waqf. A major person of sound mind cam validly create a waqf, provided that
there is no fraud, undue influence or coercion, and should not be suffering from
death illness, whereas he cannot dedicate more than one-third of his estate
unless his heirs give their consent. A wakif must be the owner of the property
he is dedicating.
Role of waqf in reducing poverty
Lipton and Ravallion were of the view that poverty
exists when people fall
short of economic welfare fare, deemed to constitute a reasonable minimum,
either by the standards of a specific society or in some absolute sense.
, is defined by pre-determined basic consumption needs
The United Nations Development Programme (UNDP) has introduced the concept of
human poverty meaning 'deprivation of essential capabilities such as long and
healthy life, knowledge, economic resources, and community
participation’.community participation'. Adequate levels of health, education,
water, sanitation, and social protection are the social progress objectives of
Ali expressed that in Islam the institution of Waqf is augmented by the
prevailing spirit of altruism, which forms an integral part of the Islamic way
of life. Islam views a charity as a means of transfer of wealth from the rich to
the poor as well as a mechanism for self-development and a way for achieving the
pleasure of Allah Almighty and also his reward in the hereafter world.
Islamic endowments (Waqf and Zakat) have played a positive supportive and
remedial role in the reduction of poverty in history. Zuki quoted from some
studies that establishing a waqf is the idea for the cause of humanity and the
mosque of Quba was first established waqf in the Muslim world.
that the institution of Waqf according to its past history can be used for poor
sections of the society by mobilizing additional resources to address
socio-economic issues like:
- Health care,
- Skills and micro-entrepreneurial development, and
- Water and sanitation facilities in rural areas.
A wqaf can also maintain a fund, properly invested, and utilized
during the famine and other crises to help extreme poor to survive the crisis.
Administration of WaqfNon- Statutory
he is merely a manager of the waqf property. He neither has any
proprietary right nor any beneficial interest of any kind in the
property. Anyone of any faith, female or male who is competent to administer
property may become mutawalli. However, where the duties of mutawalli include
imamat, women are wholly disqualified from holding this office.
A Mutawalli may
be appointed by:
He can be removed by:
- wakif himself,
- his executor
- by mutawalli, or
- by the court.
Prior to the enactment of Waqf Act, 1995, the following laws dealt with the
administration and supervision of waqfs:
- the court
- the waqf board,
- the wakif.
- Waqf Act 1954
- U.P Waqf Act, 1950
- Bengal Waqf Act, 1934
- Bihar Waqf Act, 1947
- Bombay Public Trust Act, 1950
- Dargah Khwaja Saheb Act, 1955
The Waqf Act 1995 provides for the establishment of a Board of Waqfs for each
Central Waqf Council, India is an Indian statutory body established in 1964 by
the Government of India under Waqf Act, 1954 (now a subsection the Waqf Act,
1995) for the purpose of advising it on matters pertaining to working of the
State Waqf Boards and proper administration of the Waqfs in the country.
a permanent dedication of movable or immovable properties for religious, pious
or charitable purposes as recognized by Muslim Law, given by philanthropists.
The grant is known as mushrut-ul-khidmat, while a person making such dedication
is known as Wakif.
Wakf is the creation of property for religious or charitable purposes which is
established permanently. It also has the backing of law ie.binding in nature
and enforceable by law. If any person is of the view that his right has been
infringed then he may seek remedy from the Civil Court.
The concept, powers, and
duties of mutawalli are of great importance to study under the topic of waqf.
Such powers can only be exercised if there exists a clear vacancy for the post
of the mutawalli or in case of a dispute as to the competence or eligibility of
Wakf is detention which is permanent and binding and enforceable by law also,
any person interested may seek a remedy in Civil Court. Office of mutawalli is
very important in waqf, power can be exercised when there is a clear vacancy of
mutawalliship or there is a dispute as to competence or eligibility of existing
mutawalli. A Muslim wakf is distinguished from an English trust or a Hindu
endowment of dharma.
There is no direct injunction of the Qur'an regarding Waqf, which is derived
from a number of hadiths (traditions of Muhammad). One says, Ibn Umar
reported, Umar Ibn Al-Khattab got land in Khaybar, so he came to the
prophet Muhammad and asked him to advise him about it.
The Prophet said, If you
like, make the property inalienable and give the profit from it to charity
goes on to say that Umar gave it away as alms, that the land itself would not be
sold, inherited, or donated. He gave it away for the poor, the relatives, the
slaves, the jihad, the travelers, and the guests. And it will not be held
against him who administers it if he consumes some of its yields in an
appropriate manner or feeds a friend who does not enrich himself by means of it.
Presently there are thirty Wakf Boards across the country in twenty-eight
states/Union territories. The State like Goa, Arunachal Pradesh, Mizoram,
Nagaland and Sikkim, and the UT Daman & Dieu have no wakf Board at present. the
Waqf Act 1995 is not applicable to J&K.
- MANZAR SAEED, Commentary on Muslim Law in India, (Orient Publishing
Company. 2011, New Delhi)
- I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency,
- Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency, 2010
- Syed Khalid Rashid, Muslim Law,(5th ed, Eastern Book Company, 2009,
- Asaf. A.A. Fyzee, Outlines of Muhammadan Law (Third Edition), (London:
Oxford University Press, 1964)
- P.G. Hennigan, The Birth of a Legal Institution: The Formation of the
Waqf in Third Century A.H. Hanafi Legal Discourse (Leiden: Brill, 2004)
xiii; S.A. Ali, Mahommedan Law (Lahore: Law Publishing Company, 1976 (first
- MiriamHoexter, Waqf Studies in the Twentieth Century: The State of the
Art. Journal of Economic and Social History of the Orient (1998)
- MosheGill, The Earliest Waqf Foundation, Journal of Near East Studies
- Muhammad Zubair Abbasi, The Classical Islamic Law of Waqf: A Concise
Introduction, Arab Law Quarterly, Vol. 26, No. 2 (2012)