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Pre-Independence Legislation Of Wakf In India (The Origin And Development)

This article is based on the analysis of the legislation of the Wakf in pre-independent India. Now what is known as Wakf? Wakf means detention of a property so that its produce or income may always be available for religious or charitable purposes. When a wakf is created, the property is detained or, is ‘tied up’ forever and thereafter becomes non-transferable. The analysis will be on the state of wakf in India before independence including the types of Wakfs its essentials and conditions and its difference in different law.

Introduction
Wakf means dedication of property to the ownership of god, for religious or charitable purposes. The person who dedicates the property is called the wakif. Wakf can be created either by dedication or by means of a will. 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 Wakf (endowment) in the Shariah is regarded as an empirical embodiment of this very proposition. Wakf derives its origin from approximately fourteen centuries back, and is claimed to be first introduced by the Prophet himself.

Wakf is a practice that has been going on for hundreds of years in our history, the earliest known wakf in India can be traced back to the last years of the twelfth century when Muhammad ibn-Sam, one of the Ghurid Sultans, established a wakf in his name. there havebeen significant changes in the legal aspect of wakf over the years especially during the colonial era of our country’s history where the laws of inheritance and religious laws where changed for the comfort of the British.

Wakf plays a very important role in Muslim societies. It has been the main source for various public services provided to communities. It has been marginalized as a mere charity, although it has historically been successful in producing sustainable income and reducing poverty levels in Muslim countries. Traditionally, the creation of Wakf is inculcated in Muslims’ culture, and included all walks of life. It has also contributed to the service of man in various areas of development.

Nonetheless, in modern times, Wakf has seen a declining role, which raises a number of questions as to what factors actually led to an earlier growth of Wakf, and what was the factor associated with its later decline. This review propagates a historical narrative of Wakf, highlighting the reasons for its decline and the need for reform.

The paper concludes that if Muslims have good governments that can manage the funds are transparent, reformulates the laws governing Wakf, and design an integrated network of sciences to monitor issues and problems; they can realistically revive the practice of Wakf.

History
The ancient nations used to Wakif their properties and made it places of worship. The Wakf was not limited those days to places of worship; it was more than that, as one of the rulers of Nubia (Punut), during the reign of the fourth Ramesses, locked up his land and made a Willed, that the revenue of that land is to be used for buying a calf every year and sacrificed to his soul after his death.

In the Roman era the government appointed a public servant to oversee the execution of the Wakf and in the Jaahiliyyah, the Arabs had houses of worship and temples where they stored what was offered as gifts then use it as a Wakf.

Wakf was created during the lifetime of the Prophet (Pbuh). Whenever the Prophet (Pbuh) identified any need in his society, he either fulfilled it by creating Wakf or encouraged his companions to fulfill it via the creation of Wakf. Thus, Muslims knew of Wakf, andidolized it during the lifetime of the Prophet (Pbuh), because the Prophet himself created many Wakf.

The need for financial solidarity and social cooperation among Muslims emerged in the early age of Islamic history, due to many requirements and needs for the nascent Islamic state. The prophet and his companions worked very hard to find a source of money to fulfill these needs. Many verses of the Quran called upon the working and cooperation among Muslims and the in interdependence. The Messenger of Allah (Pbuh) said to his companions.

He who has land should cultivate it, but if he does not find it possible to cultivate it, or finds himself helpless to do so, he should lend it to his Muslim brother, but he should not accept rent from him. One of the greatest verses that encourages spending in the way of Allah is what Allah also the origin of wakf.

The earlier Muslims hastened in giving the best they have, and choose the best charity for building mosques and other facilities.

This is 'Umar (may Allah bless him) when he earned land in Khaybar, he came it to the Prophet (pbuh) and ask what to do with it, the Prophet 8 (Pbuh) advised him to make it as a Wakf:
If you wish, you should locked to its original and use the revenue for charity. Indeed, almost all companions of the prophet (pbuh) have created Wakf.

According to Al- Khasaf ((1322), from Muhammad Ibn Abd-Al-Rahman, from Sa'd ibn Zaraat:
All companions of the Messenger of Allah (Pbuh); from the people of Badr, immigrants (Muhajereen), and supporters (Ansaar), have made Wakf from what they earn, its neither be sale, nor be inherited, Until Allah inherits the earth and everything upon it. Indeed, the era of the Caliphs was the best Islamic era after the era of prophet, where the people took part into different charity. There were many Islamic Wakfs in various fields that have impacted Islamic civilization.

The Wakf of the Islamic community in the era of prophet Muhammad (pbuh) and his companion (Caliphate) fulfilled the needs of the society at that time, whether in terms of charity or the jihad requires for the sake of Allah. The purpose of creating Wakf varied from the 2 nd century AH to include social, scientific, and religious life. It began from the simple endowment for a family to what is known in the history of Wakf as a comprehensive end that benefits the Ummah.

The Wakf also played a major role in the scientific and cultural achievements of Islamic countries, (Hamish, 2008).
These achievements are as follows:
  1. Dissemination of knowledge, building of schools, mosques, public libraries and Katateb to memorize the Holy Quran, and paying for the students’ upkeep.
  2. Wakf of astronomical laboratories, science laboratories, and educational hospitals; to teach medicine, nursing, and pharmacology.
  3. The Wakf has also contributed to the preservation of the principles of Islam and the advancement of Islamic society, as well as spreading Islam.
  4. Prevent evangelized (the enemies) from the intellectually and destroying Islamic centuries
Wakf also helps organize human life, and elevates the status of the poor, strengthens the weak, employs the jobless, and preserves the life of the needy. It fulfils the expansion, progress and development of Ummah, by supporting their meaningful projects and scientific researches.

Wakf in India is believed to be as an old phenomenon as Islam itself to the country. Though, there is no such documented evidence that may suggest exactly to the earliest Wakf deed in the country, some scholars have attempted to pin point the one with the help of historical chronology of Islamic monuments identified as the products of earliest Wakf deeds. Cizacka (2000: 169) in his endeavour to sort out the first recorded deed of Wakf in the country notes that the earliest known Wakf in India can be traced back to the last years of the twelfth century when Muhammad Ibn Sam, one of the Gaurid Sulatans, established a Wakf in his name.

However, to the shorn of accuracy, he utterly fails to ascertain what sort of Wakf or establishment was that, and also where did it stand. Kozlowski (1985: 22) in his notes gives a little more detail of the same narration, and asserts that this Wakf by Ibn Sam was meant to support the functioning and maintenance of a mosque in Multan that now falls within the territory of Pakistan.

This very story is further substantiated by Ahmad and Khan (1999: 32) with the additional dimensions of the related information as they record that the first known Wakf in Indian sub-continent was rendered by the Ghaurid Sulatan in 1185-95 and were in the form of two properties dedicated in the favour of the Jama Masjid of Multan.

Nonetheless, some scholars have asserted that one of the highly probable earliest Wakf establishments inthe sub-continent is the famous monumental tomb, Qutub Minar, built by Sultan Qutubuddin Aibak in 1193 (Cizacka: 2000). However, contrary to this claim, few historians contend that Qutub Minar was built just as a sign of victory over Hindu rulers and hence should not be counted as a product of Wakf (Sanjani: 2003).

Notwithstanding this contention, keeping the fact in view that at the foot of this minaret there is a Mosque built at the same time, and known as Quwatul Islam Mosque, it could be safely inferred that Qutub Minar was the minaret of the mosque and hence is included in the corpus of the Wakf itself (Bansal: 2005). Also, some historians are of the opinion that the Dargah of the famous Sufi Sayed Salar Masud in Baihraich district of north-east Utter Pradesh is first example if noted.

Importantly, Wakf in 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, Madras’s, 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 Wakf in the history of Indian sub-continent.

They have premised their claims on the inscriptions carved out on one of the Dargah’s 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 Wakf 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.

Analysis And Discussion Of Wakf

Wakf' means dedication of property to the ownership of God, for religious or charitable purposes. The person who dedicates the property is called the Wakif. The Wakif may appoint a Manager to administrate the property. Such a person is called Mutawalli.

The Wakif himself may become the Mutawalli. He is not the legal owner, but only an administrator. The difference between a trustee and Wakif is that the trustee may be legal owner. But a Wakif is cannot be:
  • Wakf can be created by dedication, by means of will, an intention to create wakf, a declaration a wakf is being created.
  • Before moving onto the legislation of wakf, let us understand few basic concepts of wakf.

Following are some essential characteristics of a valid wakf:

  1. The Wakif should be the owner of the dedicated property. He may be a part owner.
    E.g., an undivided share in property called Mushaa can be the subject matter of wakf, except if it is for the purpose of mosques and for purposes of a burial ground. He should be a Mahomedan, of sound mind and not a minor.
     
  2. The dedication of property should be for religious, pious or charitable purposes.
    Eg., giving alms to poor, reading quran at public places, etc.
  3. The property of Wakf must be of permanent character:
    1. A contingent Wakf or conditional Wakf is void.
    2. The object of the wakf must be clear and certain.
    3. The subject may be both movable or immovable property.

     

Following are the formalities of Wakf:

  1. The Wakf may be created orally or in writing. If the value of the Wakf is above Rs. 100/- it must be written and registered. The written deed is known as Wakfnama.
  2. In Shafei and Hanafi laws, transfer of the dedicated property to a Mutawalli is not necessary. His intention and a declaration to create a Wakf are enough.
  3. In the Ithna Ashari Law, the settler must invest himself of the dedicated property and transfer it to the Mutawalli.
  4. In the case of a testamentary Wakf, transfer of dedicated property by the settler to the Mutawalli is not necessary.
  5. An orally made Wakf is valid. But if a Wakf is made in writing, such writing is admissible as evidence for the terms to the Wakf.
  6. A land, which is used as a Wakf from time immemorial, is legally recognised and accepted as Wakf, though there is no evidence of its creation.

Following are the purposes of Wakf:

  1. Any purpose, which is permissible according to Muslim law, which may or may not be strictly religious, pious or charitable, is allowed.
    The lawful purposes are:
     
    • Maintenance of mosque or educational institutions giving alms to the poor and needy, financing pilgrimage for the poor, construction of bridges, etc.
      The permissible purposes are:
       
      • Celebration of death anniversaries of the Wakf, Muharam ceremonies, maintenance of public or private Wakif, maintenance of poor relatives, alms giving, performance of religious ceremony, etc.
         
  2. If a Wakf is created for several purposes, some of them valid and others invalid Wakf is effective only to the extent of the valid purposes. 

Legislation Of Wakfs During Pre Independence

Mussalman Wakf Validating act (1913)

An Act to declare the rights of Mussalmans to make settlements of property by way of wakf in favour of their families, children and descendants. if doubts have arisen regarding the validity of wakfs created by persons professing the Mussalman faith in favour of themselves, their families, children and descendants and ultimately for the benefit of the poor or for other religious, pious or charitable purposes; and whereas it is expedient to remove such doubts we can refer the definition provided in the act.

2. In this Act, unless there is anything repugnant in the subject or context,
  1. Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable.
  2. Hanafi Mussalman means a follower of the Mussalman faith who conforms to the tenets and doctrines of the Hanafi school of Mussalman law.


3. Power of Mussalmans to create certain wakfs.

It shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman law for the following among other purposes:
  1. for the maintenance and support wholly or partially of his family, children or descendants, and
  2. where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated:
    Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.

4. Wakfs not to be invalid by reason of remoteness of benefit to poor, etc

No such wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of person creating the wakf

5. Saving of local and sectarian custom

Nothing in this Act shall affect any custom or usage whether local or prevalent among Mussalmans of any particular class or sect.

This Act was given retrospective effect by the Mussalman Wakf Validating Act 32 of 1930, Section 2, ibid, reads thus:
 2. The Mussalman Wakf Validating Act, 1913, shall be deemed to apply to wakf created before its commencement: Provided that nothing herein contained shall be deemed in any way to affect any right, title, obligation or liability already acquired, accrued or incurred before the commencement of this Act.

This Act has been declared to be in force in the Sonthal Parganas by Notification under Section 3 of the Sonthal Parganas Settlement Regulation 3 of 1872

The object of this Act is to remove disability and great hardship that has been created by the recent decisions of the Privy Council in Abdul Fata Mahomad Ishak and others v. Russomoy Dhur Chowdry and others2and other cases. The power of a Mussalman to make a settlement for or in favour of his family, children and descendants or what is known as wakf-alal-aulad to the Mussalman law is paralysed.

In the case above cited it was held that under Mussalman Law is perpetual family settlement expressly made as wakf is not legal and valid merely because there is an ultimate gift to the poor and it confirmed the decision in Ashanulla Chowdry v Amarehand Kundu the principle of which was approved in a subsequent case of Abdul Gafur v. Nizamuddin where it was laid down that a gift is not good as wakf unless there is a substantial dedication of the property to charitable uses at some period of time or other. The decision does not fix any limit of time, it simply says some period of time or other. It does not define what is substantial dedication.

Thus, it introduces the greatest uncertainty in the law and is generally opposed to the true, principles and correct exposition of the Mussalman jurisprudence. This Bill is intended only to reproduce the Mussalman law or wakf- alal-aulad in a codified form with certain safeguards for the authenticity of the wakfnama and for prevention of fraud upon creditors or otherwise. It is not intended to codify or define the general law of wakf which must be governed by the Mussalman Law

Mussalman Wakf Act (1923)

The reason for this legislation due to the growing feeling and demands by the Muslim community that numerous wakfs were being wasted or systematically misappropriated. The legislation did not go in entirety. It was limited to a filing of description of the Wakf properties b. Gross income and expenditure including salaries and other details etc

It had to be filed in the District court and the court was to publish the details. The accounts had to be audited by the Government if it exceeded Rs. 2000.00 and by an officer appointed by the Court if it was less than this amount. The penalties were for violation of the provisions of the Act. The Act did not have any provision for determination of the nature and extent of the Wakf property. It was entirely dependent on the filing of the mutawalli. The courts were burdened with additional responsibility. There was no administrative machinery to control the mutawallis.

To set right this situation, the Provincial legislatures started bringing out their own legislations. This was possible by virtue of Section 100 of the Government of India Act, 1935. As per Entry 34 List II of the Seventh Schedule of the said Act, it was left to the provincial legislature to deal with Charities and charitable institutions; charitable and religious endowments. The Central legislature had the power to deal with trust and trustees since it fell under Entry 9 of List III of Seventh Schedule.

The first was the State of Bengal enacted the Bengal Wakf Act, 1934. It created the board for wakfs for the first time. The mutawallis were restricted while dealing with alienations of Wakf properties. It was also for the first time that the wakfs were called upon to pay 5% of their income towards Wakf fund.

The native ruler of Hyderabad passed the Hyderabad Endowment Regulation of 1939. These legislations had one loop- hole. The state Governments had the power to exempt from the operation of the act – any wakfs. None of these legislations were made applicable to The Dargah Khawaja Sahib Act of 1936. The Government of India has always treated the Moinuddin Chishti Dargah at Ajmer as a special category. This legislation too was subsequently repealed on the recommendation of Justice Ghulam Hassan committee, the Dargah Khawaja Saheb Act, 1955 was passed. 

Conclusion
Waqf is a unique act introduced by Islam; it has played significant socioeconomic, cultural, and religious development roles throughout the history of Islamic civilization. Large number of a wakf created great wealth for the Muslim community; however, due to a different historical reasons the role of Waqf as a useful tool for socioeconomic development has generally been neglected or/and often been forgotten. Undeniably, as stated in this paper, researchers can see how Waqf contributed to the wellbeing of the people in various areas of development; such as education, health, and other services. Nonetheless, in modern times, Waqf role has declined significantly.

This article describes the factor behind the decline of the Waqf, and our need to reform it. British colonization significantly influenced the structure of Waqf in Muslim majority countries, Muslim government or/and leaders who misused the Waqf properties, and the poor management of Waqf led to the decline of Waqf itself. Thus, Waqf revival requires governments who can manage the funds, funds transparency, reformulation of the laws governing Waqf, and an integrated network of sciences that monitoring issues and problems.

The theoretical implication of this study is to understand Waqf. This study also provides practical contributions to Waqf research by identifying factors contributing to the decline of Waqf and ways to revive it. There is no empirical evidence on this, as this paper is only a conceptual paper. As part of ongoing research, the authors will continue to look into this matter. It is suggested that future research conduct a more comprehensive investigation on factors that led to Waqfs decline and ways to reform it.

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