1.5 Organisation of The Study ............................................................................... 10

Mohammad Abdullah MA Islamic Banking, Finance and Management
1

Table of contents

Acknowledgements........................................................................................................ 3
Abstract .......................................................................................................................... 4
Chapter 1: A Critical Examination of Waqf Management Practices in India: Special
Reference to Fiqh of Awqf ....................................................................................... 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 Indian Awqaf and 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 Fiqh of Awqaf: Legal Dimensions........................... 14
3.1 Introduction ........................................................................................................ 14
3.2 The Origin, Significance and Background of Waqf in Islam ............................. 15
3.3 The Fundamental Aims and Objectives of Awqaf ............................................. 18
3.4 An Analysis of Basic Rules, Regulations and Principles of Awqaf ................... 20
3.5 The Fiqh of Awqaf Management: 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 Waqf in India: An Investigation ............................. 32
2

4.1 Introduction ........................................................................................................ 32
4.2 Waqf Management Systems in Pre-colonial India: An Examination ................. 35
4.3 Waqf Management Practices in Colonial India .................................................. 37
4.4 Waqf Management 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 of Awqaf in Present India: A Legal Perspective ....................... 45
5.3 The Case of Waqf Protection 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

3

Acknowledgements
All praise Belong to Allah
First of all, I would like to express sincere thanks to my supervisor Dr Tausif Azid for
his consistent guidance and continuous co-operation during the preparation of this
dissertation. In fact, his constant and painstaking committed supervision paved the
way to the successful completion of this work.
Also, I would like to grab this opportunity to offer my gratitude to Dr. Tarique Saeed,
who always encouraged and motivated me towards critical thinking and creative
writing. Moreover, sincere thanks are due to Dr. Abul Hasan and Sheikh Faizal
Manjoo for their insightful advices and invaluable suggestions on the topic time and
again.
Perhaps I would not do a justice if I forget to express my special thanks to MIHE
director Mr. Irshad Baqui and the Registrar Mr. Iqtidar Cheema for their parental
roles and moral supports throughout the study.
I also want to extend my special thanks to my elder brothers Mohd Asharaf and Mohd
Asif for their continuous encouragements and for affording on my behalf all the
expenses incurred during the course.
Also, I owe a great debt of gratitude to brother Hamid, Jasim, Fuwad, Abdullah
Salem for being very cooperative thoroughout and for providing me with invaluable
suggestions on the topic.
I am highly indebted to the special efforts of my uncle Sayed Mohammad Shafique,
who taught me working hard and motivated to dream big.
Last but not least, special thanks are extended to the Islamic Foundation library staff,
and to the office administrator brother Raja for their kind assistance.
All remaining faults and shortcomings should be attributed to the researcher himself.

4

Abstract

Waqf (endowment) has historically played an instrumental role in the
developments of given societies and in providing the means of sustenance to the
socially 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.

5

Chapter 1: A Critical Examination of Waqf Management Practices in India:
Special Reference to Fiqh of Awqf

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 Waqf
1
(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 social
causes, one of the first deeds of Waqf in Islamic history was undertaken by the second
caliph Omar bin-Khattab (R.A) in 6
th
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 Waqf and 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 Waqf properties (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 Shariah law (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

1
A special kind of Islamic philanthropy in perpetuity
6

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 Awqaf
2
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 Waqf act, 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 Waqf law, and ostensibly
sought to democratize the process and mechanism of Waqf administration, but this in
no way served the purpose; as the Waqf-related Shariah guidelines were put to rest in
the process (Rashid: 2005).
The current study attempts to examine the origin, background, history and mechanism
of Waqf management practices in India. The study first seeks to break the point of
Awqaf history 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 Fiqh of Awqaf.

1.2 The Aims and Objectives of the Study

The aim of this study is to analyse the inefficiencies in the Awqaf of 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
7

1. To identify and examine the major Shariah-repugnant elements of current
Waqf management practices in India.
2. To explore and assess the potential role of Awqaf in 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 Waqf properties 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).
8

Interestingly, along with other things, bringing into light the rampant malfunctions
and corruptions in the current Waqf management model, the Report noted that it is
quite paradoxical that the present Indian State in which nearly six hundred thousand
acres of Waqf lands have been existing since more than one century, there still reside
almost 38% Muslims in absolute or relative poverty. According to the committees
report, the total productive Waqf properties of the country currently generate merely
1.63 billion Indian Rupees per annum. In contrast, the report claims that if all of the
productive and unproductive properties are put to efficient and marketable use they
can generate at least a minimum return of 10 per cent which is about Rs. 12,000 one
hundred and twenty billion per annum (SCR, 2006: 156).
In fact, the Sacher Committee report pertaining to the Waqf mismanagement in the
country gives a stimulating impetus to the researcher to thoroughly examine the
history of whole system with reference to the Fiqh of Awqaf, and pin point the factors
and causes of the problem.

1.4 An Overview of Indian Awqaf and Related Findings

Waqf management practices in India have since long been a controversial and
disputed issue between the leaders of Muslim community and the successive
Governments. In this regard, Singh (1998) and Ahmad & Khans works (1998) reveal
that Waqf in India have been a bone of contention over the years, and they further
lucidly highlight some of the most controversial and disputed aspects and areas of
Waqf management system in the country. Similarly, Upadhyae (2004) also discusses
the much contentious and debated arenas of Indian Waqf and suggests that the
practices of anomalies and malaises in Waqf management gained momentum with the
decay and fragmentation of the Muslim rule in the subcontinent. In a similar manner,
Omar (2006) and Bakht (2010) elaborate on how a pious and religious deed such as
Waqf is being misused and unutilised by the custodians of the department, and they
further tend to claim that one of the most talked about but least implemented scheme
in the country is the fair utilization of Waqf properties.
9

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 Awqaf management, 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 the Awqaf laws is no less responsible.
Moreover, Ahmad and Khan (1998:23) argue that the institution of Waqf in India is
most misunderstood and Waqf properties mismanaged. Furthermore, they claim that,
what reflects the glaring mal-practices of Waqf management 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 Waqf properties 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 Mutawalis who
are supposed to be the custodians of these Waqf properties 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 Waqf deeds.
In addition to it, Giving the reasons and causes of Awqaf mismanagement in India,
Siddiqui (2005:143) expresses that Awqaf in 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, Awqaf suffer directly and their
potential beneficiaries indirectly.
10

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 third
chapter seeks to discuss the essentials of the Fiqh of Awqaf in a good detail. The
chapter four of the work attempts to trace the origin and history of Waqf in the Indian
sub-continent, and endeavours to explore the system of Waqf management in the
mediaeval and Mughal periods. In the fifth chapter attempts have been made to
examine the current Waqf management model in India, and efforts have been put to
analyse the Waqf related statutes. In the final chapter, recommendations and
suggestion have been given.

11

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 Waqf management 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
of Awqaf has 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
12

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 Fiqh of 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 Waqf management 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
13

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.
14

Chapter 3: An Overview of the Fiqh of 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
Shariah corpus 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 Shariah laws. In a nutshell,
as Kamali (1998: 3) puts it, Fiqh is 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,
Awqaf too entail a number of well-defined Shariah principles. And adhering to these
principles (known as Fiqh of Awqaf) is essential in order to achieve the targeted end
of the practice. Moreover, it is Fiqh of Awqaf that 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
of Awqaf refers 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.

15

3.2 The Origin, Significance and Background of Waqf in 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 several
injunctions 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,
Waqf that 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 Waqf came 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, Waqf is translated as confinement, detention, holding and prohibition (Ibn e
Manzoor 2002). In the juristic terms, Waqf is 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, Waqf is 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
Waqif
3
of 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

3
The endower who performs the Waqf deed
16

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 Waqf deed
(Kahf: 2003). Moreover, contrary to these two claims, as far as Islamic jurisprudential
books are concerned, most of them begin their chapters of Waqf by 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 Waqf in 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
Waqf in 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 Waqf that might
have occurred as first of them all. In this respect, first, it needs to be asserted that
17

primarily there are two kinds of Waqf found in the Islamic history; (1) Waqf that
came into existence as an outcome of the Divine assertion, and (2) the Waqf that is
known as a product of human initiation. Thus, in the light of this division, if all of
these mutually contradicting claims are put in a chronicle order, the task of
determining the first Waqf is accomplished without any further hazards. This is in
view of the fact that Allah Himself has asserted in the Quran that the first house of
worship built for the human being is the one that is in Makah (Chapter, 3 Verse: 96).
Significantly, with reference to the totally agreed upon notion among the Shariah
jurists that mosques and houses of Allahs worship constitute the best example of
Waqf, Kabah may be rightly considered as the first example of Waqf in human
history. However, notably, the case of Kabah would fall under the category of the
Divine assertion, as there seems no involvement of human will in this exercise. Also,
with the application of the same parameters of chronicle order, there should not be
any objection in referring the Mosque of Qubah as being first in the prophetic era,
because it came into existence while the prophet was still in his way to Madinah from
Makah. Notably, this would certainly come within the realm of human will as the
land of Qubah is believed to had been provided to the Prophet by the tribe of Bani
Amr Bin Auf (Alhamawi: 1906).
Furthermore, after having identified the first two examples of Waqfs, it is crucial to
note that the Waqf deeds exercised by a human are divided into two categories. These
two are known as being Waqf Khairi (philanthropic) and Waqf Ahli (for posterity) (Al
Amin, 1994: 113). The philanthropic Waqf is further sub-divided as religious Waqf
and Waqf for general welfare (Kahf: 2010). Whereas, the religious Waqf is always
specified for the purpose of establishing a mosque or for graveyards etc., the Waqf for
general welfare involves endowments for the social causes, for the provision of
means of sustenance to the poor and needy, and for free public utility. Hence, the
scholars who are of the view that the first deed of Waqf in the Islamic history is
mosque of Qubah, might have meant the religious one, while for others who have
asserted that the Waqf by the Prophet or by Ottoman (R A) should get the recognition
of being first, would have taken into account the philanthropic one.
18

Furthermore, as far as the Waqf of Omar (R A) is concerned, perhaps it is treated by
most of the Islamic jurists as the first example of Waqf because it is in this case that
the basic jurisprudential principles of Waqf and 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 of Awqaf

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 Shariah repeatedly
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
Sadaqah for the provision of basic necessities to the specific sections of the society in
long-term. In fact, according to the interpretations of Shariah scholars (Uyuni: 2010),
19

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 Waqf as Sadaqah in perpetuity and they agree
on the notion that this comes under the category of the perpetual Sadaqah mentioned
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 Waqf and 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 Waqf neither
beneficiary nor the philanthropist remain the owner of the property as the ultimate
ownership rests with Allah forever. Secondly, a general Sadaqah just 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 Shariah rulings (Ibn-e Qudama
1998). Discussing the philanthropic Waqf, Kahf (2010: 3) explains that
20

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 Waqf cannot 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 Waqf targets to serve the peoples needs and purposes
at large without being subject to any restrictions or Shariah prescribed 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 Shariah jurists that a Waqf
deed cannot be performed in favour of Shariah-prohibited, Shariah-non-compliant or
Shariah reproachable activities at all. Form this ruling it is evident that Waqf can 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 and
ethical dimensions.

3.4 An Analysis of Basic Rules, Regulations and Principles of Awqaf

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 of
philanthropic 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 7
th
year of Hijrah when 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
21

the philanthropic Waqf is believed to be instrumental in terms of setting Waqfs
principles.
Keeping the tradition in view, Shariah jurists 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 Waqif has attached his will with his death (like he
stipulates that after his demise the property is Waqf) (3) if there arises a dispute
regarding Waqf deed between the Waqif and 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 Waqf rests 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 Imam
Malik 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 Waqf principles, 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
Waqf principles 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
22

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 Waqf must 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 Waqf deed is pronounced by the Waqif while 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 Waqif would 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 Wasiyyah should
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 Waqf are 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 Waqf may also
be founded for the pious causes of promoting social, cultural, intellectual, vocational,
23

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 Waqf revenues to be given to his children, family members,
descendents and offspring. This kind of Waqf falls under the category of Waqf e 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 Waqf will itself; as in the otherwise case, the
validity of the Waqf may 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 Waqif must be followed in letter and
spirit. This is in view of the famous legal maxim that the Waqif holds 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 Waqf would lose its legality and validity. Ibn e Qudama( 1996: 67)
explains if a Waqf deed 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 Waqf is 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 Waqf deed in the eyes of Shariah. This implies on the
fact that a Waqf for 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.
24

Similarly, a Waqf for 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 Waqf deed lies in
determining the nature and characteristics of the potential Maqoof Bihi (Waqf
property). Interestingly, the evaluating criteria for a Waqf object substantially differ
among the various schools of Islamic jurisprudence. A vast number of jurists
including Hanafis, Shafais and Hanbalis assert that a Waqf is valid only in a tangible
and non-consumable thing. Also, they further maintain that a Waqf must 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 Waqf for a specific period of time is against the very nature of Waqf objectives, 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 Fiqh it 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 Waqf of the properties that are not in the absolute control and
ownership of the Waqif at the time of pronouncing the deed as well.

3.5 The Fiqh of Awqaf Management: A Legal Evaluation

The institution of Waqf primarily 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
25

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 Waqf aims 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 Waqf management 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 Fiqh of
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).
26

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 Waqf corpus should be primary concern of the Mutawalli and this aspect of Waqf
must be given priority even if this contradicts and contravenes the stipulations of the
Waqif himself (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
authentic Ahadith, 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 Shariah jurists, 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 Waqf has 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:
27

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 Waqf is 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
Waqf invalid 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 Shariah practitioners. 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 Waqf Ahli, 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
28

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 Waqif in 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 Waqf deeds.
Apart from these arguments, it is interesting to note that in the corpus of the
authentic Ahadith literature, 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 Waqf on 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 Waqif renders a family Waqf on 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 Shariah is the one narrated by Ibn Omar (R.A)
discussing the case of Omar (R.A). The content of that Hadith bears 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 Waqf deed cannot be
regarded as a pure precedence for the modern family Waqf model.
In another way, one may argue that, the example of pure family Waqf may rightly be
found in the Waqf deed 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
29

beloved to you and I find my orchard of Bayruha most 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 Waqf from 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 Waqf would 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 Waqf by 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 Waqf and their names
like Waqf Ahli and Waqf Khairi were 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
30

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 Waqf in 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 Waqf varies 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 Shariah perspective. 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 Waqf continued 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 from
Shariah perspective.
3.7 Conclusion

This chapter attempted to shed a little light over all the major components and
elements of Fiqh of Awqaf. 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 Waqf and their historical order of initiation in a good
detail.
31

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 of Awqaf and the related diverging views
and opinions of Shariah-jurists, a number of fundamental and basic principles of
Awqaf were evaluated and analysed in the light of authentic classical Fiqh literature.
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 Shariah perspectives 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.

32

Chapter 4: History and Origin of Waqf in India: An Investigation

4.1 Introduction

Waqf 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 Waqf 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 Waqf deeds. Cizacka (2000: 169) in his endeavour to sort out the
first recorded deed of Waqf in the country notes that the earliest known Waqf 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 Waqf in his name. However, to the
shorn of accuracy, he utterly fails to ascertain what sort of Waqf 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 Waqf 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 Waqf 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 Waqf establishments in the 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 Waqf (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 Quwwatul 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 Waqf 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 of noted
33

Waqf in 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, Waqf 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, 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.
34

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 Waqf were
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 Waqf in 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
Shariah perspective, to the majority of jurists it is permitted to designate a Waqf for
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 had
devoted a portion of her property as Waqf for 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 Waqf is rendered in the favour of such a building or structure, this sort of deed
would neither be deemed as Waqf nor the rules of Waqf be applied on the same, as
such kind of Waqf is void and invalid in the domain of Shariah by 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
35

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 Waqf Management 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 Waqf were performed by
the verbal pronouncement of the founder to the Muezzin
4
or Imam
5
of 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 Waqfnamas
6
written 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 Waqf by
a Muslim Sultan or by an individual having similar status would be managed and
administrated by the specially appointed Qazis-cum-Mutawalis, a Waqf of a smaller
size most often was handed over to the Muezzin or 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).

4
A person who calls Azan
5
The leader of congregational prayers
6
The written Waqf deeds
36

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-
Mutawalis in 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 the Awqaf.
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 Waqf management 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 Waqf to the provincial Sadr. These Sadrs were finally entrusted to supervise
37

and advise the functionality of the provincial Awqaf and 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, Waqf properties 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 Awqaf were 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 Waqf Management 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 Waqf augmentation 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.
38

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 Waqf administrative 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 Qazis were
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 Shariah law. 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 dishonest Mutawalis too, to extend their illegal appropriateness on the Waqf land
under their supervision.
Later on, with the increasing cases of embezzlements and reports of
misappropriations of the Waqf corpuses by no one other than the so-called Mutawalis,
39

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 Waqf properties. 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 Waqf Alal-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 Waqf by the Waqif and there was no condition such as officially registering
the Waqf with the governmental authorities (Khan and Ahmad: 1998).
The management and administration of Waqf with reference to the act of 1913, was
left fully vested with the nominated Mutawalis, and in lieu of the act there was no
40

scope for gathering official data pertaining to the functionality and efficiency of the
Waqf system. However, this caused difficulty in extracting the related information for
a potential Waqif or 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 Waqf act 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 Waqf as this was regarded
by the court as private deeds made by individuals to the benefits of their own
descendents (Latifi: 1978).

4.4 Waqf Management 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 growing
disillusionment 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
41

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 Waqf Act1954, 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 Waqf board 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 Waqf similar to any secular charity or endowments, it
did not necessarily require the appointment of sufficient number of religious scholars,
having expertise in Fiqh of Awqaf, on the either central Waqf board or on the state
Waqf boards (Mahmood: 2005). Probably, this loop hole in the clauses of the 1954
Act, caused, in practical terms, the deprivation of the Waqf administrative system of
those high calibre individuals who might have been the most eligible of running this
religious-cum-social institution in the best efficient manner.
Also, it is worth noting that, since the Waqf is a religious practice and is majorly
performed by the religiously-motivated individuals, it requires, as its administrators,
42

the individuals who would embody the attributes of same motivation and sincerity as
of Waqifs to efficiently execute the primary objectives of the institution. In fact, the
absence of sincere and religiously-motivated high calibre individuals in the newly
constituted Waqf boards proved fatal for Indian Waqf institutions, and hence the Act
1954 utterly failed to come up with the expected revival of this perpetually
dilapidated institution. Cizacka (2000: 187) has supported this notion while noting
that All in all, the highly praised 1954 Act and its amendment appeared to have
failed to create an efficient Waqf system for India. Furthermore, pointing out to the
basic factors and causes of this failure he refers to several scholars having been of the
view that the boards have shown themselves to be administratively inefficient,
financially weak and virtually the cesspools of corruption and nepotism. They have
consistently failed to play any significant role in the socio-economic resurrection of
the community.
Thus the Waqf Act 1954 that was once deemed and claimed to be the best thing
happening to the Indian Waqfs, had to be amended several times in 1959, 1964, 1969,
1984 and finally in 1995 with an objective to bring efficiency and transparency in the
institution. At present, the Central Waqf Board is functioning within the ambit of the
Waqf Act 1995. For the time being, the functions and powers of the Waqf Board, its
members nomination, status of pertinent Mutawalis and related entities are subjected
to the regulations of 1995 Waqf Act. Hence, it seems essential to discuss this Act first
in length and breadth in order to have a clear picture of the current state of Waqf in
the country. Therefore, in the next chapter, an attempt would be made to critically
examine and analyse the major clauses and articles of 1995 Waqf Act, and wherever
felt necessary these articles would be compared and contrasted with the Fiqh of
Awqaf.
4.5 Conclusion

This chapter aimed at exploring the historical origin and background of Awqaf in
India. Attempts were made to identify and examine the historical developmental
stages of Waqf in the sub-continent, and diligent endeavours were made to trace back
the periods of its considerable expansion and augmentation. Also, with an objective
to maintain the coherence and incisiveness of arguments with the topic of the study,
43

special attempts were made to analytically evaluate and critically investigate the
Waqf management models in the pre-colonial, colonial and early post independent
India. Moreover, the hierarchy of Waqf administrative system and the powers of
trustees in respect to the Waqfs under their supervision were discussed in detail. To
sum up, this chapter brought forth all the pertinent aspects of Indian Waqf and paved
the way towards the study of current state of Awqaf in India.

44

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

5.1 Introduction

Waqf is regarded as a special form of philanthropic expression that is normally
undertaken by the founders with the objectives of voluntarily participating in the
process of overall human welfare in the Shariah prescribed way. The ultimate aim of
this exercise includes the provision of a basic monetary insurance to the most
vulnerable sects of a given society, and to indemnify them against the crippling
poverty (Al Saleh: 2001). Historically, most of the Waqf deeds have been performed
during the times when the Waqf founders were confident and reassured that this way
of philanthropy by them would be safer, perpetual and goal-fulfilling. For this, the
political and economic ideologies, policies and set ups of the given governments have
been one of the major factors from the perspective of Waqifs in terms of deciding
whether or not to perform the deed (Lane and Redissi: 2009). This is also, in fact,
what may be deduced by inference from the historical origins of Awqaf and their
performances, particularly, in Indian sub-continent too.
Waqf in India, during the regimes of Muslim Sultans and subsequent Mughal periods,
developed and flourished abundantly, as the deed performers of those times were
believed to have been enjoying an absolute certitude regarding the potential benefits
of their deeds and were completely confident on the protection and maintenance-
related aspects of the devoted properties (Habib: 1992). This momentum of the
philanthropic sectors growth severely underwent to a shrinking motion in India when
the Muslim rules came to an end, and the colonial rulers rose up to the power. The
main reasons of this stagnant halt in the prospect of philanthropies expansion in
British India may rightly be linked to the disenchantment of Muslims with the value-
free policies of the new government and the resulting apprehensions of the
community in regard to the protection of their religious doctrines, values and ethos
(Sarkar: 2008).
In the post independent India, despite, the initiation of numerous ostensible stances
and enforceable measures by the so-called secular governments, apparently, nothing
45

could succeed in inspiring the lost-confidence of Muslim community once again,
particularly, in respect to their religious affairs. Waqf that is known to be a special
religious expression of Muslims is claimed to have been constantly a tragic victim of
political apathy in the post independence too (Haque: 2002). At the time being, the
Waqf act 1995 regulates the powers and functions of India Waqfs and related entities.
The Waqf Act 1995 was passed in response to the recommendation of the Waqf
Inquiry Committee appointed by the government of India in 1976. The Committee
had also strongly suggested the Government to minimize its excessive control over
the affairs of Waqf administration, and to democratise the selection procedures and
the administrative system of Awqaf to the best possible extent (Rashid: 2007). At
present, though on papers, these suggestions have already been implemented, but the
Muslim community of the country is staunchly averse of the current Waqf
administrative system.

5.2 Administration of Awqaf in Present India: A Legal Perspective

Awqaf in India, at present, is regulated and governed by the Waqf Act, 1995. The Act
that consists of 113 sections and is divided into nine chapters defines and
encapsulates the legal aspects and status of Waqf, its pertinent technicalities, the
power and activities of the Waqf boards and the rights and obligations of the related
authorities as well (Rashid: 2007). At the beginning point, the Act necessarily
requires each Waqf of the Country to be registered with the office of the related Waqf
Board, and the Mutawalis are, by law, required to provide the appropriate details of
the Waqfs lying under their supervision, such as the class of the Waqf, particulars of
the Waqf properties, specific stipulations of the Waqifs, classes of the beneficiaries
and the name of the Mutawalli etc. The Waqf Act 1995 was passed in response to the
wide criticism of the Waqf amendment Act of 1984, which had attracted too much
opposition of the Muslim community due to, allegedly, being too lax in providing the
excessive administrative and management powers to the Central and State
governments (Wani: 2005).
46

The Waqf Act 1995 is, purportedly, meant to provide a comprehensive mechanism of
Awqaf administrative design and to set out the elaborated scheme for their protection
and maintenance. Under the Waqf Act of 1995, the Waqf board of a specific State
including the Union Territory of Delhi have to have 7 to 13 members, of which the
majority are elected from amongst the Muslim members of Parliament, State
Legislatures, State bar Councils and Mutawalis of such Awqaf which have an annual
income of rupees, one hundred thousand or more. The, nominated members of the
Boards are supposed to be selected from eminent Muslim Organisations of the State,
recognised scholars of Muslim Theology and a representative of the state
Government not below the rank of Deputy Secretary (with reference to Section 14 of
the 1995 Act).
Notably, in a State where the sum of Shia Waqfs constitutes more than fifteen per
cent or more of the total Waqf properties, there should be, legally, a separate Waqf
board for them. In an otherwise case, at least one of the board members may be
nominated from the Shia sect. All in all, the powers of administrating and managing
the Waqfs are not just vested with the boards themselves, but, this important domain
is shared with the Chief Executive Officer of Waqf, who is appointed by the central
Government to interact with the Waqf Boards (Khan: 2002).
Furthermore, the Waqf Act 1995 also entails provisions for the appointment of the
executive officer in respect to the Awqaf whose performance is not satisfactory and
the average revenues generated from the same is more than five hundred thousand
Indian Rupees annually. Most importantly, the expenses incurring to the functioning
of the Waqf boards are meted out by the obligatory contributions of the respective
Waqfs. The rate of each Waqfs contribution for this purpose is fixed as six per cent of
their total revenues (Wani: 2005).
In addition to it, the legal framework of Waqf Act 1995 is claimed to encompass the
frameworks for different mechanisms to ensure the maintenance and protection of
Awqaf in the country. In a broader sense this includes, the establishment of a Central
Waqf Council, audit of Waqf accounts, establishment of Waqf Boards and ad hoc
Waqf tribunals as and when needed (Haque: 2002). Importantly, the establishment of
the Central Waqf Council that was set up in 1965 under the now defunct Waqf act of
47

1954, and was established for the sole purpose of advising the Central Government
on Waqf affairs of the country, has been constantly at the receiving end of
controversies and criticism from the community. The major objections raised against
its establishment include the need and purpose of its existence and the way its
functioning and expenses are financed. As per the official directives, the whole
expenses of the Council are to be meted out by the collective contribution of each
Waqf of the country; as every Waqf is necessarily required to contribute one per cent
of its total annual income for this purpose (Rashid: 2005).
5.3 The Case of Waqf Protection and their Management in India: Special
Reference to Sachar Committee Report

With an objective to make the Waqf management system better and enhanced in
India, a systematic legal hierarchy of administrative mechanism is claimed to
smoothly function from gross-root to the central levels by the virtue of Waqf
legislations of 1995. However, in what may be termed as an expose of this claim, the
Sachar Committee, which was constituted in March 2005 with the initiation of Prime
Ministerial Office to examine the current socio-economic status of Muslims and their
religious institutions in the country, revealed in its final report that a major part of the
legal Waqf administrative framework is still restricted to the papers only and is far
from being implemented in practice. To the absolute disappointment of the inquiry
Committee, during the investigation it was found that despite much emphasis put by
the Waqf Act 1995 on conducting frequent surveys of the Awqaf and collecting the
relevant information of the same by the concerned Waqf Boards, in several cases
either no pertinent data was available with the concerned offices, or were found to be
out-dated in many States (SCR, 2006: 238-42).
According to the Committees report, there are approximately 4.9 lakh (490,000)
registered Waqf properties in the country, and majority of them are registered in West
Bengal and Uttar Pradesh as their total known numbers account for 148,200 and
122,839 respectively. The total area that Waqf properties of the country are officially
spread upon is more than six hundred thousand acres, and their book value are
estimated to be sixty billion Indian Rupees. However, it is vital to note here, that this
estimation of the book value of the Waqf properties represents the value of each
48

property as estimated fifty years ago. As far as the current value of these properties is
concerned, it is unfortunate to note that there is no exact data available in this regard.
The official current income from all these Waqf properties is 1.63 billion rupees per
annum that amounts to a meagre rate of return of 2.7 per cent (SCR: 2006).
Interestingly, of this revenue, six per cent is constituted to be separated for the
working expenses of the respective Waqf Boards, and one per cent of the total
revenues are to be contributed towards the expenses of Central Waqf Council (Wani:
2005, Rashid: 2007).
Ironically, though the establishment of the Central Waqf Council is meant for the
sole purpose of informing the Government on the functioning of the Waqf Boards and
advising it on related matters, its working expenses are decreed to be meted out by the
Waqf revenues instead of being borne by Government exchequer. Apart from this,
the report further claims that the current market value of all the Waqf properties in the
country may roughly be estimated to be worth more than 1.2 trillion Indian Rupees.
And, according to the Report if these properties are put to efficient and marketable
use they can generate at least a minimum return of ten per cent which is about120
billion Indian Rupees per annum (SCR, 2006: 240).
Furthermore, the SCR claims that, to the utter pity of state of Awqaf in the country,
there seemed no sincere political will on the part of successive Governments in
respect to the betterment and enhancement of Waqfs dilapidated condition in last
sixty years. Instead, in various states where a large number of Waqf properties are
encroached upon by embezzling individuals, State Governments too are found to be
equally involved in this nefarious activity. In this respect, according to the
Committees report, Delhi State Government leads the way as it has illegally
occupied more than three hundred Waqf properties in the State. The Committees
report reveals that the encroachments upon Waqf properties by private persons and
Governments are generally in two forms (1) an absolute usurpation of property with
no rents or other payments of any sorts, (2) those where the occupying party pays a
nominal rent which has not been revised for decades (SCR: 2006).
In addition to it, it is believed that the consistent indifference and irresponsible
attitude of the States and Central Governments and of their agencies towards the
49

development and protection of Awqaf has left a chain of damaging implications on
the optimum realisation of this socio-religious institutions potentials. Most
importantly, according to the Report, there are several examples where State
Governments have been utilising specific Waqf lands and properties since decades,
and have huge amounts outstanding to Awqaf as rents, but are evidently unwilling to
pay the same to the concerned Waqf Boards (SCR: 2006).
The Sachar Committee Report (2006), in the aftermath of having pinned point the
most probable causes and factors of rampant malpractices and corruptions into the
system of Awqaf management in the country, had strongly recommended numerous
amendments into the clauses of the existing Waqf Act of 1995 to be effected urgently.
Henceforth, evidently with a view to materialise these vital recommendations, on the
initiation of the Government of India, a Joint Parliamentary Committee (JPC) was
constituted in December 2006 to conduct a thorough inquiry on the viability of these
recommendations, and on their possible ways of implementation (The Times of India:
June, 2011). The JPC submitted its final report on February 2008, approving some of
the Sachar Committees recommendations as it is, and also adding some other pivotal
suggestions into it. To this effect, the Waqf Amendment bill 2010 was proposed by
the Minister of Awqaf Mr. Salman Khursheed, and passed unanimously in the Lower
House (Parliament) on May 7, 2010 (Mujeeb, June: 2011). The Bill is at present
pending in the Upper House of the country, and is almost one step away to become a
Law. However, arguably, it is claimed that the proposed amendments of the Bill have
utterly failed in inspiring or winning the confidence of Muslim community, but,
rather has attracted severe criticisms from their leading organisations for allegedly
being stuffed with some unsolicited clauses, and for ignoring some key
recommendations of the JPC to be included in the corpus of the Bill (Faizee: 2010).
Importantly, the major objection raised against the Amendment Bill 2010 is directed
to the clause 87 of the bill as it makes the registration of the Waqf property
mandatory, and says that in case of a dispute the unregistered lands would not have
any legal standing. This clause has, in fact, ignited much concern of the community
as the bill is totally silent on the status of thousands of acres of lands that are certainly
property of Waqf but are not registered with the related offices. Interestingly, contrary
to the Government officials claims that the Bill is meant to prevent corruption in
50

Waqf boards and to protect Waqf properties, most of the leading Muslim
Organizations such as All India Muslim Personal law Board etc, regard the Bill as a
menace for the protection and safety of unregistered Waqf Properties of the country
(Akbar: 2010).
To sum up, going through the Sachar Committee report mirrors the fact that Awqaf in
the country are lying in a complete state of disorder, and the cases of their misuse are
prevalent in almost each State to say the least. Consequently, due to the rampant cases
of Awqaf misuse, disuse, mismanagement, ill-appropriation, encroachments and ill-
administration, this socio-economic and religious-cum-charitable institution is dying
a slow but sure death in the country.
51

Chapter 6: Ways Forward: Recommendations

The significance of Indian Awqaf for the Muslims in the country can be gauged from
the observations made by Rahman Khan as the Chairman of the Joint Parliamentary
Committee (JPC) on Waqf; as he is quoted to have observed in his report that the
Government would not need any additional fund, if only the Waqf properties are used
effectively for the welfare of the Muslims in India (Faizee: 2010). Nonetheless,
unfortunately, the reports of Sachar Committee, JPC and some other Independent
agencies assert that the optimum potential of Indian Awqaf have not been materialized
since decades. Notably, since the advent of the British power in the country till the
time being, numerous Waqf Acts, Amendment Bills, official recommendations and
invaluable suggestions from Governmental and non-Governmental agencies have
been made, introduced and experienced, but, all of them proved futile in terms of
bringing any productive change in the institution of Awqaf on practical grounds.
Instead, contrary to this, on the one hand the cases of encroachments, illegal
occupations and frequent misappropriations of Awqaf have increased many folds over
the years, and on the other, in several instances the Waqf properties have been
severely subjected to misuse, disuse, dilapidation, destruction and unproductive uses
as well.
The current pitiable condition of Awqaf in India demands for an overall shift in the
perspectives, attitudes and outlook of the concerned officials towards the institution.
Moreover, there is a constant call for a much-needed change in the methodologies,
strategies, planning and policies of the concerned Waqf Boards with regard to Waqf
management of the country.
In this respect, the first thing that needs to be strongly asserted, is that, by all means,
Awqaf represent a religious institution instead of just being a value-free charitable
trust, and hence are overtly required to be managed in the light of Shariah guidelines.
In fact, this assertion is bound to draw a distinctive line between ways and methods of
managing a secular charity-deed and that of a religious one. In the wake of having
acknowledged this distinction of Awqaf over all other forms of endowments, it is
almost evident that this institution ultimately needs, as its administrators, a cadre of
52

religiously-motivated officials, having the background of proven piety along with
being well versed in the law of Shariah in general, and in Fiqh of Awqaf in particular.
To this end, first of all, it is highly recommended that the reigns of this religious
institution be gradually handed over to the leading Muslim seminaries in the country,
and the Government must restrict its role to just superintending the process and
maintaining the law and order in disputed cases only. For the time being, if this is not
possible at once, at least, it is pivotal for the Awqaf Ministry that prior to embarking
upon any sort of new experiments on Awqaf, it must take the eminent Islamic
Organisations of the country, such as All India Muslim Personal Law Board etc, into
full confidence, and seek their consultations time and again in the related affairs.
In addition to it, the current study demonstrates that, at present, Awqaf in India is
faced, inter alia, with dire challenges in three major dimensions. These include (1)
inefficient utilisation of productive properties by concerned officials, (2) menace of
gradual encroachments by individuals and State Governments on abandoned
properties and (3) lengthy and expensive process of litigation on adversely occupied
properties. In fact, to combat all these fatal problems of Indian Awqaf in an efficient
manner, there is an urgent need to develop some decisive and well-planned strategies
to meet all these major challenges sooner than later. As far as the effective utilisation
of productive properties is concerned, it may be done in several possible ways.
The first task in this regard should be undertaken in the form of repairing and
refurbishing the properties that are productive but are generating just a nominal-
revenue due to being too old and wearily dilapidated. For this purpose, funds may be
raised by issuing Ijara or Istismar Sukuk etc against these properties. Also, financing
options may be explored through signing Mudarabah contracts on these properties
with high net worth Muslim and non-Muslim tycoons in the country. Moreover, there
are also possible scopes for the Waqf Boards to arrange financing in collaboration
with some foreign sources such as World Waqf Foundation, a branch of Islamic
Development Bank Jeddah established specially for the purpose of facilitating
international Waqf development endeavours. Also, in an exceptional situation, funds
may be raised from conventional resources too, as it has been permitted by some
modern Shariah Jurists on the premises of Maslaha (public interest) to have recourse
to these institutions, as a last resort for Waqf development (Uyuni, 2011: 145-47).
53

Moreover, as far the problem of gradual encroachment goes, in this regard it is crucial
to note first that at present, there are hundreds of thousand Waqf properties lying in
the state of disuse and abandonment throughout the country, and evidently these
properties are most vulnerable to encroachments and susceptible to embezzlements.
Hence, it is highly advisable to the related officials that these sorts of Waqf properties
must be, at least, urgently encircled with wire-netting to stop any further
misappropriation of the land from now on.
Also, there are thousands of barren lands of Waqf in country sides and villages;
immediate attentions are required for their cultivation either directly by Mutawalis or
by some contracted peasants on Murah basis (predetermined crop-sharing ratio).
Moreover, in some cases Waqf properties fall in such an area or locality that there
seems a very dim prospect of economically efficient revenue generation even if huge
amount of money is invested on them. In similar kind of circumstances, treating these
cases as exceptional, it may be wise to effect either property swap options on them; or
to sell them off to buy relatively smaller but productive properties in exchange. This
is, in fact, conditionally permitted by Imam Ahmad bin Humbal and some other
jurists, as they are of the view that, in exceptional cases, this sort of options may be
used for the protection and productivity of Awqaf in long term (Ibn-e Qudamah,
1997: 220-224).
Furthermore, the last major problem of Waqf in India (that relates to already
adversely occupied Waqf properties) may be easily remedied if the Government
shows just a slight sensitivity and sincerity to this effect by declaring the Waqf
properties as Public Premises; as according to the Public Premises Act 1958, it is a
very easy process to evacuate the declared Public Premises from illegal occupations
immediately within the matter of days (Rashid: 2005). Undoubtedly, this would be an
enormous help to the institution of Awqaf for two reasons. By this, on one hand a
hefty sum of Waqf revenues would be saved from the cumbersome expenses of
unsolicited litigation process, and on the other, it would improve the prospects of
better Waqf management in the country.
Also, apart from all theses, all the State appointed Mutawalis should be strictly
subjected to the Shariah-prescribed qualification criteria. To this effect, as the
54

majority of the Jurists view that one of the major criteria required in a Mutawali is the
attribution of Adalah (proven sincerity in the matter of faith), a Mutawali must fulfil
this criterion prior to be considered for appointment (Mahdi, 2010: 149-52).
Furthermore, with an objective to bring innovation and sophistication in methods of
Waqf management, it may be suggested to the Waqf Board Authorities to introduce a
master level degree program in Waqf Management with association of the leading
Muslim universities of the country. Also, on the grass-roots level, leading Islamic
seminaries and Madrasas of the country should involve in playing a more active role
in generating the awareness of Awqafs significance in the masses in general, and in
conducting frequent Mutawalis training camps in particular. All, Mutawalis must be
equipped with the basic essential knowledge of Fiqh of Awqaf, and must be directed
to abide by the stipulations of the Waqif in management of the properties and in
distribution of the revenues amongst the beneficiaries.
Furthermore, with an eye on bringing creativity in the affairs of Awqaf, and to
generate a fresh interest in the maintenance, protection and creation of new Awqaf in
the country, it is recommendable to the Awqaf ministry to consider establishing a
good number of regional, district-wise and town-level small post-offices like Waqf
management centres, solely meant to supervise the activities of Mutawalis, and to
disseminate the Waqf related information among the masses. For this purpose,
selected Madrasas graduates may be chosen on merit basis to be provided with one
year Waqf management training and be employed with these Regional Waqf offices.
This is bound to, definitely, serve various purposes all together; such as (1) concerned
Mutawalis would have an easy access to understand basic Fiqh of Awqaf, and have an
all time available recourse to get their Waqf-related Shariah issues clarified without
much hazard, (2) prospective Waqifs would regain their lost confidence in the
viability of Awqaf, and have a better prospect of communicating their wills and
related issues with the concerned Ulama-cum-Waqf officers, (3) local potential
beneficiaries would find it easy to come to the Waqf offices and apply for the welfare
benefits, and also may get their grievances registered if any, (4) this would generate a
good number of employment opportunities for the eligible Muslim youths, and help
them to come into streamline in the country etc.
55

Conclusion

Awqaf in India encompasses one of the largest corpuses of Waqf properties in the
world, and have a greater potential than to be roughly estimated. Historically, most of
the Indian Waqfs were made during the regimes of Muslim Sultans and Mughal
emperors, and with the fragmentation of Muslim rules and fall of their political
dominance in the country, this socio-economic and religious-cum-charitable
institution lost the prospects of augmentation any further except in rare cases. In fact,
one of the major reasons behind the gradually diminishing interest of Muslims in this
religiously promoted and socially recommendable perpetual philanthropic deed is
believed to be excessive political uncertainty looming large over the future and fate of
the institution. In the post independent India, the Muslim community of the country
was greatly hopeful of regaining the reigns of this religious institution into the hands
of their religious leaders, and was overwhelmingly expecting to get the Awqaf be
managed in line with the related Shariah guidelines. However, contrary to all
expectations, over the years the unnecessary political interference of State and
judiciary in the affairs of Awqaf never let it be actualized. Although in the last six
decades several ostensibly honest and sincere attempts were made by the successive
Governments to rectify the pathetic condition of Awqaf in the country but to no avail,
to say the least.
At present, all the responsibilities related to the management and administration of
Awqaf in India, are, arguably, vested with the so-called democratised State Waqf
Boards that are legally bound to be regulated by the Waqf Act 1995. Nonetheless, the
Waqf Act 1995 itself is, allegedly, blamed to be stuffed with a number of disputed
clauses bearing some explicit or implicit conflicts either with the long term interest of
the institution itself or with the Fiqh of Awqaf. Consequently, almost all the leading
Islamic Organisations of the country such as All India Muslim Personal law Board,
Jamiat Ulama-e-Hind etc have already expressed their disenchantments with the Act,
and have been strongly demanding noted amendments in it since long. However, in
what may be termed as an act of stark connivance of the Government to this effect,
the related ministry has time and again utterly avoided paying a sincere heed to the
demands of the community in the previous occasions, and also has shown a brazen
56

indifference towards them at the time of proposing its new Waqf amendment bill
2010.
Apart from all these, it is of significance that during the research no authentic and
accurate data on total number and specification of different kinds of Awqaf could be
retrieved. Also, the data pertaining to the Waqif-designated Awqaf beneficiaries could
not be traced. To this end, for bridging this gap there seems an urgent need for a
further dedicated research to investigate and discover the list of different types of
Awqaf and their nominated beneficiaries, so that some appropriate strategies
regarding the distribution of revenues may be effectively developed. Moreover, since
the Waqf Act 1995 and now defunct Act of 1954 treat Waqf Alal Awlad (family
Waqf) as a private mode of endowment and did not require their surveys to be done,
the exact number and accurate condition of this kind of Waqf is officially not known
in the country. Hence, this gap should provide the new researchers with an impetus to
embark upon a specific research project to explore the available means to rake,
investigate, identify and compile the data related to Waqf al-Awlad.
After all, the last but not least, the current research reveals that there is a lack of
specifically consolidated research on the socio-economic aspects of Awqaf in India;
as all the previous researches either deal with the legal aspects of Awqaf or are meant
to address the Fiqhi dimensions of the institution.
57

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66

Glossary

Awqf (pl. Waqf) = Endowments, charitable gift.
Fiqh = Islamic Jurisprudence
Dargah = A shrine of Sufi saint
adith = A Prophetic tradition
Imam = A leader of prayers
Mawqoof laih = Beneficiaries of Waqf
Mawqoof bihi = The subject matter of a Waqf
Muezzin = A person who calls Azan in Mosque
Mutawall = Custodian, caretaker of Waqf
Qa = Islamic jurist
Sharah = Islamic Law/ Code of conduct
Waqf = Endowment, Charitable gift
Waqf la-Awlad = Endowment for ones own family members
Wqif = Endower

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