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THE CONCEPT AND OBJECTIVE OF WAQF

UNDER THE GUIDENCE OF: MR. Haider Ali

ROBIN SINGH
BBA-LLB (4th-SEM.)

Roll No.: 31

JIMS SCHOOL OF LAW

1
Introduction

Waqf, the concept of which is religious as well as legal, is an Islamic trust that freezes its
subject matter or the title to the given property, by not being transferable and
transmittable under the classic version of Islamic law. Until very recent point of time
such properties, comprising large areas of some Islamic territories (e.g. Iraq, Palestine,
and Egypt etc), were considered a problem of land law especially at the time when
Muslim countries were under western rule. The main problem was the rule that waqf is a
religious institution, ownerless and frozen in the sense of transmission and transfers. This
description of waqf, unfortunately, made colonial and post colonial administrators think
that waqf properties were stagnant lands, as they ignored the very obvious relevance of
Islamic trusts to sustainable social development; hence there were attempts to modify its
application in various forms. While such attempts, based on the assumption mentioned
above, were driven by political as well as fiscal considerations, there was the negligence
of the duty of court to respect the freedom of the owners, granted under Islamic law, to
dispose of their property as they wished. Despite such checks on the validity of Islamic
trusts, the institution of waqf has continued to exist and at present only in both urban and
rural Malaysia 20,735.61 acres of land is held under waqf, comprising waqf khas at
14,815.787 acres, and waqf am at 5919.83.1

Today, in some countries such as Kuwait, Bahrain, Turkey, and Iran, waqf properties
have gone through remarkable developments. Lands which once were considered
worthless are valued in Millions today, after their development and commercialization.
There are still lands which need similar treatment, but due to lack of finance and
investment the administrators of Islamic trusts as well as bankers and financers in
collaboration with some academicians have developed new mechanisms which
apparently do not confirm to the traditional concepts or to the conventional schemes for
financing waqf properties.

This paper, in consideration of the above two problems is devoted to the concept of the
waqf, which inevitably involves the discussion of the constituents of waqf or the parties
thereto, its subject matter, objectives and classification. This will be followed by a brief
study of the contents of the instrument of waqf, which comprises the aforementioned
together with the conditions attached thereto, as such would be a step towards the better
understanding and interpretation of documents of waqfs.

Evidence Supporting the Conception of Waqf in the Primary Sources of Islam

Since the very early age of Islamic civilization 2, landed properties were reserved, by
Muslims, for the welfare of the future generations including kin and relations, also the

1
JAKIM, 2000
2
Throughout history there were some forms of trusts in Egypt and Rome. The trusts that recognized Islam have some
resemblance in general with the early practices of Church, but they are different for the ownership of the trust property
does not shift to the beneficiaries or its trustees under Islam. In Europe, after the collapse of Romans, no other forms of
trusts were known. There were, however, Islamic trusts in Islamic Spain and only in 13 th century some trust institutions
were created in Germany. Charities were recognized in England only in 1601 by passing a legislation dealing with the
subject.

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poor and needy. Such actions of Muslims were called permanent charity (sadaqah
jariyah) and later on named as waqf or habs.

There are four inspiring events in the very early Islamic History which are taken as
cornerstone for the development of legal framework of waqf.
1. The donation of land for building the Quba’ Mosque by the Prophet (s) after he
migrated to Medina.
2. The donation of Rumah (a well bought by sayidina Uthman (r) the third Caliph),
to be used by public, including himself, for drinking water and household needs.
3. The donation of a garden by Talha to his relatives after the advice of the
Prophet3.
4. The donation, by Umar ibn al-Khattab (r), of his most valuable land in Khayber
upon the advice of the Prophet (s) who told him “retain the thing itself and
devote its fruits to pious purposes.4 Later Umar (r) wrote the terms of his trust
relating to the aforementioned property in a document and gave witness to that
effect during his rein. The document reads that “it [the property] should neither
be sold nor made the subject of gift or inheritance; that it was charity (sadaqah)
for the poor, relatives, manumission, wonderers, guests and for the way of
Allah, there be no sin for the administrator to eat from it in moderation or feed
friend, but not to accumulating there from.” This is considered the first formal
and explicit trust created during the lifetime of the Prophet (p.b.u.h.) and written
by the second Caliph of Islam.

Based on the events mentioned above, the jurists of Islam founded the theory of trusts
(waqf). The events altogether were interpreted to have established trusts for religious
purposes, public need, and family protection which will be discussed below. But before
we venture into those details it is necessary to explain the meaning of the term and its
legal implications.

The meaning and definition of waqf

The familiar term, for trusts, in the principle texts of Shariah, is sadaqah and habs.
Nevertheless, jurists also use waqf, which, sometime, is written as wakaf or wakap in
South East Aisa. In Northern Africa the jurists still use habs or tasbil for the same
concept. The Shi’i scholars however differentiate between waqf and habs_ both
charitable but have slightly different implication.5

3
It is reported that when the verse (By no means shall ye shall attain piety until ye spend of that which ye love’ was
revealed Talha (r) offered to give his much-loved garden in charity but the Prophet (p.b.u.h.) advised him to do so in
favour of his own nearest and dearest..
4
Sahih Bukhari, hadith No. 2586, kitab al-shurut, bab shurut fi al-waqf; Sahih Muslim, 1632, al-wasiyah, bab al-waqf
5
See Yahya bin Sa ‘id al-Hilli, al-Jami‘ li al-Shara’i‘, Qum: Musassah al-Shuhada’ al-‘Ilmiyyah,1405 A.H., p. 368.
The difference between waqf and habs is in the contents not the usage of the term. Al-Hilli uses habs in donation of
perishable property for a specific charitable purpose for a limited period where the property reverts to the owner in case
the purpose is no longer practical. Hilli explains the term waqf with habs but waqf property according to Hilli does not
go back to the original owner or the heirs of the original owner after he passes away: p. 369. Though it is some how
confusing for Hilli exemplifies habs with house, animal, and slaves which he also repeats them among others under
waqf. It seems that one shall have to look at the words used by the donor at the time of making the gift in order to infer
his intention. At best habs may imply the temporary type of donation that exists for a limited time and for a specific
objective while waqf would apply to the permanent form of trust that is amortized and irrevocable.

3
Literally, both waqf and habs mean: ‘to prevent’, or ‘to restrain’. Legally they mean “to
protect something, by preventing it from becoming the property of a third person”. 6 The
classical definition of the waqf is given by Imam Abu Hanifah saying “the appropriation
of any particular thing in such a way that the founder’s right in it shall continue and the
advantage of it go to some charitable object.” This definition however is not preferred by
his disciples i.e. Abu Yosuf and Mouhammad as well as jurists in shafi’i, hanbali and imami
schools.7 The point of disagreement is the retention of the title by the donor which gives him
the discretion to revoke the trust anytime during his lifetime, as he pleases provided that
trust is not effective after the death of the donor or as a result of a decision by a competent
court. The majority of jurists agree that the donor has no title in the trust as the property,
after promise8 or after promise and possession, becomes God’s property (i.e. ownerless),
and hence the donor has neither title in the property nor power to revoke the trust. 9 Abu
Zahrah defined waqf as “the prevention of a benefit-generating estate from corporal disposal
but using its usufruct and benefit in charity, intended so at the time of creation and
thereafter.”10 Abu Zahrah’s definition of waqf is generic; he includes the fundamental ideas
proposed by various jurists, and still maintaining that the donation must be of immoveable
property11 which gives the impression that the given waqf should be in perpetuity. This line
of reasoning, after due consideration is given to the practice during and after lifetime of the
Prophet (s), is perhaps too restrictive and for practical reasons has resulted in stagnation of
waqf properties due to the lack of finance to develop such properties. The sound and very
recent definition of the waqf is “the holding of certain property and preserving it for the
confined benefit of certain philanthropy and prohibiting any use or disposition of it outside
that specific objective.”12 This last definition, for a good reason, widens the idea of waqf to
include almost all those elements which were intentionally omitted by some classic jurists in
their concept and definition of waqf: this will include not only immovable property to be the
subject of the trust, it also will include the donation of movable property as well usufruct
and cash. The genius of this definition is that it concentrates on the recurrence of the benefit
generated by the donated property, which needs not be immovable property. This
interpretation of waqf is in line with the various types of hubs or waqf practiced during the
lifetime of the Prophet (s) and the four righteous Caliphs. Extending, furthermore, the scope
of waqf will result in attraction of a variety of means and funds; therefore, enabling the
contemporary Islamic trust institutions to finance the development of stagnant properties
themselves and contribute to the welfare of the society generously. One may not argue that
such an opinion blurs the line between waqf and sadaqah, for every waqf is a type of

6
Al-Sarakhsi, al-Mabsut, Cairo, 1956, vol. 12, p. 27, translation by Mohd. Zain b. Haji Othman, Islamic Law with
special Reference to the Institution of Waqf, Kuala Lumpur: Prime Minister’s Department, Religious Affairs Division,
1982, p.21. See the definition of waqf in al-Hilli, al-Jami‘, p.369.
7
see Abu Zahrah, Muhadarat, p39-40, 62-69, for Shafi’ies views see al-Sharbini, Mughni al-Muhtaj, kitab al-waqf, for
hanbalies, see ibn Qudamah, al-Mughni, vol. 6 p. 185. Note an opinion of Amad ibn Hanbal and the majority of the
Malikis seem to agree with the view of Abu Hanifah except the latter give option to the donor to revoke the trust
whenever he wishes so.
8
see case
9
Kasani, Badai’, vol. 6, pp. 346-347. this view of Abu Hanifah has been accepted by Sudanes legislation for the benefit
of owners when they need the donated property for themselves: Hasan Abdullah al-Amin, “al-Waqf fi Fiqh al-Islami”,
p. 129.
10
Abu Zahrah, Muhadarat, p. 5.
11
id, p. 69
12
Munzer Qahf, see also his al-Waqf al-Islami, Tatawurruh, Idaratuh, Tnmiyyatuh, Damiscus &Beirut: Dar al-Fikr, 2000,
p. 62. In the latter he defines waqf as the preservation, in perpetuity or temporary, of a property capable of recurrent
utilization, either the object itself or its income, for a type of a specific or a general philanthropy.

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sadaqah.13 They have certain similarities and differences which still can be maintained; even
one accepts the definition provided by Qahf.

Sadaqah, as one may observe, stands for charitable gifts to the poor and needy. It is
generic includes the obligatory, recommendatory (ie zakah and fitrah), waqf, and other
gifts termed by Shariah as sadaqah irrespective of being for the benefit of one’s family or
the poor and needy. The last is Sadaqah in its normal and simplest form and waqf shares
many of its features. The same as sadaqah, waqf is charitable donation, requires similar
legal capacity of the donor and that he or she must not be under legal restraint unable to
deal with his/her property, the subject matter should be suitable for donation, and that the
intention of the donor is expressed clearly. Similarly, according to the Quranic text14, the
donor in both charities enjoy the freedom to dispose the property without any restriction
as to how when and how much be given. The donor parts with his property, for the
benefit of his own, his family, and the poor and needy. To these, Qahf adds that the
subject matter can be immovable property, chattels, or usufruct in both the waqf and
sadaqah.15 Yet, the difference between the two charities is maintainable for despite waqf
is sadaqah at core and some features, it is still different; for, unlike sadaqah, it is a
special form of charity were the title to the subject matter is not transferred from the
donor to the beneficiaries. Further, the title to subject matter of the waqf instrument is not
transferable and not transmittable to other parties according to the classic thought, or its
benefit is capable of recurrent charitable utilization according to the modern view. The
gist of the argument is that the early jurists conceived waqf as a form of recurrent charity
and for that purpose they made a condition that such a recurrence is possible only if the
subject mater of waqf is to be immovable property16 therefore establishing the idea of
perpetuity in the subject matter of waqf though this idea was not accepted by maliki
school of thought. Qahf however agrees to the idea of perpetuity of the waqf and
recurrence of charities, but not by specification of realty and perpetual donations rather
by the amortization of the subject matter in case of realty or personalty.

Qhaf’s definition insists on the subject matter of waqf to be any property, capable of
perpetual existence (e.g. land) or of repetitive use, or capital being used for profitable
investment and productive utilization. Should one follow the last approach, waqf would
include all types of charitable donations that have the capability of income-generation or
repeatable usage even though such is limited by time due to either the nature of the property
or the intention of the donor, with exception of consumable or perishable items. Any
property either movable or immoveable, the usufruct thereof, currency or otherwise, capable
of generating income, benefit, or being used as a capital (i.e. labour, service, being hired,
etc.) are comprised in the same definition of the waqf, which can be managed and
administered for the purpose of income-generation and a portion thereof could be used for
the well-being of the needy public. It will also include those properties, which are donated
for a specific purpose or time within the range of a day, week, month or a year.

The constituents of waqf

13
The hanafi jurists divided sadaqah to sadaqa munfidhah (one where the title and possession plus its usufruct is
passed to the beneficiary) and sadaqah mawqufah (waqf in its conventional sense).
14
Al-Tawbah 9: 91
15
Qahf, al-Waqf pp. 109-111
16
See Kasani, Bda’i, vol. 6, p. 449.

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A valid waqf is concluded if the general or special conditions on disposal of the property
by the owner and the object which form the subject matter of the waqd, as well as the
beneficiaries thereto, are satisfied. They are as follow

1. The donor:

Since waqf, by nature, is an act of donation or unilateral transfer, it comes under general
concept of gifts (tabaru’at). In addition to the conditions applied to gifts, waqf is a
special form of disposal of property that allows the owner to freeze the property from
subsequent transfer, disposal, and transmission to others. Such a power of the owner is
indefeasible and cannot be revoked by anyone including the state and court except in
according to the conditions expressly provided by the donor in the document of the waqf.
Jurists agree that the words of a donor are the words of law, 17 therefore, the inherent
general jurisdiction of courts to validate a waqf or do otherwise, is basically limited to the
application of the general principles of ownership, that vest in the owner the powers of
disposal especially in respect of gifts, his capability to use such powers, and the type of
the property and the beneficiary thereto. The specific jurisdiction of courts is limited to
the discovery of the intention of the donor, and the objective that is that it should include
some form of charity. Therefore, as long as a document that bears testimony to the
donation is signed by an owner or his authorized agent who is legally competent (major,
sane, sober) and is free from other legal restrictions because of bankruptcy, insolvency,
idiotic or wasteful expenditure, and illness that results in death, such a document will be
considered valid and unchallengeable provided the maker of the donation has complied to
other conditions of law. The basic rule here is that waqf is a sort of gift to others which by
nature makes the donor lose his property; thus according to the general principle of gifts,
the above categories of owners, as well as the guardian and even the court, have no
jurisdiction and power to deal with the property in a manner that is harmful to the
incompetent owners.18

2. The subject matter of waqf

The conditions imposed, by the majority of hanafis who follow Muhammad, on the
subject matter of the waqf is that it shall exist in perpetuity (e.g. land, fixture, tools and
other things used for land or mentioned expressly in the legal texts, or anything that
custom accepts it as the subject matter of waqf like books). The shafi’i and hanbali
schools allow any property which can be used and its corpus remains intact. The malikis
allow any thing that can be owned provided that the donor is the owner and there is no
restraint on dealing, such as in the case of pledge, charge and lease; for the rights and
interests of others prevent the owner to deal with his property without the consent of the
interest-holders.19

The perpetuity of the waqf property

17
Qahf, al-Waqf al-Islami, p. 118
18
Abu Zahrah, Muhadarat, p. 82. the exception is that donation which is effective after the demise of the incompetent
donor is valid.
19
Ibid pp. 103, 104.

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The tradition, it appears, about the land of Umar ibn Khattab (r), in Kaybar, that “if you
like, you could retain its corpus and give its produces in charity” 20 has been taken by the
majority of classical jurists as a source that relates to the idea of Islamic trusts. In Maliki
school this is however not the case for they seem to have also relied on the other hadiths
of the prophet as well as the practice of his companions. As mentioned early under the
definition of the waqf, jurists have not reached a consensus on the nature of the property
donated to a trust. According to Imam Muhammad 21 and his followers in the Hanafi
school, the donated property shall exist perpetually. The Hanafies do not allow movable
property as the subject matter of waqf except fixtures,22 and concomitants, such as
buildings, trees and those which are essential for maintenance and development of
immovable property as animals, workers, and tools for farming, or tools and animals used
for military purposes.23 Other jurists of the majority allow the subject matter of the waqf
to be either movable or immovable that could be sold or being used while it is still intact
such as estate, tools, furniture and the like, as long as it can be used and its corpus
remains intact without any damage.24 The malikies, however, allow any property that
could be owned, including property that may not be considered as the subject of sale and
purchase agreements e.g. the skin of dogs.25 They allow cash as well, and go a step
further by allowing the rental of houses or any other property to be given as waqf. The
donation of cash (darahim/dananir), movable property, according to the recent opinion in
the hanafi school is permissible too. Ibn Abidin thought that the custom and practice in
Muslim Roman states who donate cash to charitable endowment come under the opinion
of Imam Muhammad who allowed the subject matter of waqf to be any movable property
if such is the general practice of the community. 26 What one observes here is that as long
as the subject matter can constructively exist in perpetuity it can be donated in a valid
trust. It is therefore thought that one can donate his property in perpetuity or for a limited
time. Contemporary jurists prefer maliki view for it is helpful not only in liquidation of
waqf assets but also in improving the wellbeing of the society by attracting a greater
participation of the public and hence paving way for better service to the welfare of the
needy. The current practice, by waqf institutions, of accepting cash that is kept in
investment accounts of Islamic Banks, shares, stocks, and investment in bonds and
securities, the return of which is spent on charities, is considered in line with the above
principles.27

The effect of perpetuity

20
Sahih Muslim, kitab al-wasiyyah, bab al-waqf, hadith 1632, 15.
21
Note that according to Abu Hanifah waqf is not perpetual as the owner may revoke it anytime before his death
provided it is not mosque and not effective after the demise of the donor. According to Abu Yusuf perpetuity of waqf is
not necessary as it coud also be temporary: see al-Sarakhsi, al Mabsut vol. 6, part 13, kitab al-waqf, p. 41.
22
Immovable property according to hanafis applies to land alone. Fixtures and other concomitants are considered the
dependent of land; if the land is transferred they follow.
23
Al-Sarakhsi, al-Mabsut, kitab al-waqf; the permission fro immovable property is said to be on istihsan derived from
the hasith of the prophet and the practice of the companions.
24
Ibn Qudamah, al-Mughni wa al-Sharkh al-kabir, Vol. 6, p. 237; al-Ghazali, al-Wajiz, Beirut: dar-al Ma’rifah, vol. 1,
p. 245.
25
Hashiyah Dasuqi, w. Sharh al-Kabir, vol. 4 P. 75
26
Ibn Abidin Radal Muhtar Vo. 4 P. 364
27
Hasan Abdullah al-Amin, “al-Waqf fi Fiqh al-Islami”, p. 116. this jurist seems to bring the donation of cash into the
concept of waqf by rejecting the idea of perpetuity of the subject matter; but the practice of the institutions of waqf
conforms to the opinion held by Qahf as mentioned below i.e. amortization of the cash.

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The primary concept and objective of the waqf reveal that irrespective of the nature of the
property of the waqf, as being movable or immovable, waqf is in perpetuity, that it shall
continue. The continuation of a waqf is possible only if it is maintained all the times; to
some jurists this is the main obligation of the administrator of the waqf. It is, therefore,
necessary to spend its revenue on its revival, revitalization and development so that it
could contribute to the welfare of the coming generations. This spending is mandatory, as
there would be no perpetuity if the property were left to ruin. A shortcoming inherent in
the concept of perpetuity is that the majority of the waqf property is real estate which by
nature is non-liquid. In order to save a waqf, early jurists have resorted to the exchange of
estates, for very often the majority of the waqf institutions have little cash on their hand,
thus insufficient to develop the land or even to maintain the real estate. 28 To solve this
problem and encourage charitable spirit among people it is proposed by Qahf that new
forms of subject matter, in addition to realty, such as chattels, tools, cash, labor, usufruct,
equities and shares, and services should be accepted even though such a donation is for
shorter period of time29 as long as the owner wishes to part with perpetually. This is so
because waqf funds not only need the real property but also labor as well as an impale
amount of cash in order to pay for the work done on maintenance, change or exchange of
the waqf property and also equipments for development and management of the real
property.30 In order to make the donated items perpetual, and thus conform to the
generally accepted concept of waqf, one only needs to amortize the income of such
donations,31 as practiced by companies, or upgrade the tools and chattels from time to
time.

Consequent to the above explanation, based on the subject matter, waqf may be classified
as perpetual and temporary. A perpetual waqf however should be valid only if the subject
matter is perpetual or amortized, the donor intends so, and the objective of the waqf is
unending.

A waqf limited by time is one where a donor would give away his property for a short
period of time. This however does not mean necessarily that it will end by the end of the
trust. It may be so if the intention and objective of the waqf is made restricted by time as
seen by maliki jurists. Otherwise the legal principle of safeguarding the capital of
partnership and the modern concept of amortization of goods and cash will allow the
perpetuity of time-restricted trusts.

3. The beneficiaries

The first condition for a person to be the recipient of waqf property is that he should be
capable to own, irrespective of being real or legal person; thus real persons as the
relatives and the poor or the artificial persons such as mosque, hospitals etc. are
considered legally recognized beneficiaries. But a donation is not valid if it is immoral or
for sinful purpose according to hanafis and hanbalis. To shafi‘is and malikis, however,
moral rectitude is not the condition but it shall not be a sin such as waqf on activities that
28
Anas al-Zarqa, “al-Wasail al-Hadithah litamwil wa al-Istithmar,” Idara wa Tathmir Mumtalakat al-Awqaf, Jeddah:
IDB, [1994], pp. 184, 185.
29
Qahf, al-Waqf, p
30
Anas al-Zarqa: “al Wasail al-Hadithah”, p. 184.
31
The income generated there from will be kept in a special fund which is then amortized. Only the income of such
fund would be distributed among the beneficiaries.

8
go against the religion of the donor32, and on the enemy of the state. The beneficiaries,
otherwise, could be a Muslim or non-Muslim citizen (dhiminis), poor, rich and so on.33

It needs to be mentioned that waqf on the donor himself is rejected by malikies,


Muhammad from hanafis, and one view in Shafi‘i, and Hanbali schools; other jurists
allow so.34 The reason for this is that waqf extinguishes individual ownership, or it is the
transfer of the title and possession from the owner; therefore it would be pointless to
presume the validity of the donation of a property while its proprietary rights are still
concentrated in the owner of the property. The whole purpose of waqf is to prevent the
proprietor from disposing it. It is similar to that if one were legally able to sell or lend his
property to himself.35 The correctness of either view depends on their principle concept of
waqf. If waqf is considered to be the transfer of title from the owner then the reasoning of
the Imam Muhammad seems analogically correct. But if there is no transfer of title, as
held by Imam Abu Hanifah and malikis, then such a condition is meaningless despite the
fact that the best charity starts from one made for one’s own interest as reasoned by Imam
Abu Yusuf.36

The objective and purpose of waqf

The determination of the objective and purpose of the waqf depends on the intention of
its founder; the most important of them are spiritual reward and humanitarian purposes
i.e. assisting poor and the needy and the protection of heirs and their descendants from
poverty and hardship. Based on such objectives, waqf is divided into two types i.e.
charitable and family. 37

Charitable waqfs are established the return and income of which is spent on specific class
of individuals such as poor, needy, old, sick, widows, orphans, travelers etc. or any one or
anything provided the disbursement of the returns of the funds and property is beneficial
to the well being of the society at large. Family waqf includes the children of the donor
plus some charitable purpose irrespective of how nominal is the purpose 38, or wholly
family or friends. The mere lack of charitable purpose in the instrument of waqf is not the
evidence of invalid waqf. 39 Such waqfs ultimately revert to charity especially in the case
of the impossibility of realization of the object, or its purpose. 40 This condition is read by
courts into the instruments of family waqfs.41 In the case of family waqf, its property can
be sold, provided only when the family becomes poor according to some jurists, or when

32
The sin according to the religion of the donor is recognized only by the malikis.
33
Hasan Abdullah al-Amin, “al-Waqf fi al-Fiqh al-Islami”, p. 118.
34
Ibn Qudamah, Al-Maghni, Vol. 6 P196, al –Ghazali, al-Wajiz, Vol. 1 P. 245, Beirut, Dar al-Ma’rifah,; al Dardir
Sharh al-Kabir, Vol. 4, P.80, Ibn Abidin, Radal-Mukhtar Vol. 4, P. 385.
35
Hasan Abdullah al-Amin, “al-Waqf fi al-Fiqh al-Islami”, pp. 114,115.
36
See the opinion of Abu Yusuf in Al-Sarakhsi, al-Mabsut, kitab al-Waqf
37
Also Section 2 of The Trengganu Administration of Muslim Law Enactment No. 4 of 1955; section 41 of the
Administration of Islamic Law Enactment No. 14 of 1978
38
cf. Abdul Fata Mahomed Ishak & Ors v Russomoy Dhur Chowdry & Ors (1894-95) 22 IA 76
39
“… the giving of wakaf to one's family is itself a religious act as being the prerequisite of a wakaf although it is not
necessarily charitable.” Per Abdul Razak J in Re Dato Bentara Luar, Decd Haji Yahya Bin Yusoff & Anor V Hassan
Bin Othman & Anor[1981] 2 MLJ 352
40
also section 2 (1) (a), (b) of The Trengganu Administration of Muslim Law Enactment No. 4 of 1955
41
Muhammad Abu Zahra, Muhadarat fi al-Waqf , p. 50.

9
upon interpretation of the document the transfer by sale of such property is permitted by
the founder, expressly or implied, according to others.42

The Validity of the Instrument of Waqf and Its Legal Consequences

Jurists vary as to the effect of the instrument of waqf. 43 Based on the opinion of syidina
Ali (r), Ibn Masud(r), and Ibn Abas (r) according to Imam Abu Hanifah and Zufar 44 the
title to the subject matter is still vested in the donor and therefore the instrument of the
waqf is not binding on the grantor. Other jurists including the majority of hanafis
consider initial deed of waqf final. A group of shafi’is thought that the deed is binding
and effective soon after it is declared irrespective of the non-existence of the
beneficiaries, or their willingness, and possession of the subject matter by the trustees or
beneficiaries.45 Where the first in the rank of beneficiaries ceases to exist, the subsequent
one substitutes it automatically.46Other group of jurists from the same school opined that
acceptance is a condition similar to any gift, that the beneficiary should accept the
donation otherwise the donation would be ineffective. 47 The hanbali school however does
not consider the acceptance of the donation neither for the validity nor for the efficacy of
the deed. As far as the right to the benefit is concerned, a preferred view in this school
excludes the acceptance by the trustee as a prerequisite while other opinion makes
acceptance a precondition for having such a right. The maliki school is similar to hanafi,
that it recognizes acceptance of the donation by the beneficiary a condition for having the
right to the waqf property provided the beneficiary is a specific individual. Hence on part
of the donor, once the donation is made he has the option to revoke and terminate the
trust anytime according to one group; according to the other, however, termination of a
trust is irrevocable.48 As regarding to the rights of the beneficiary, mere declaration of a
waqf is enforceable only if it is accepted by the specified beneficiary according to some;
other jurists however consider such declaration enforceable irrespective of the fact
whether the beneficiary is specific individual/ individuals or a class of individuals. This
issue however does not arise if one has to follow the opinion of Abu Hanifah and Zufar.49

The Interpretation of the document of waqf

Jurists agree that the words of a donor are the words of law. 50 The question that should
follow is that what is the jurisdiction of the court of law, also of the administrators, in
regard to the interpretation of the instrument of waqf? Is such a deed binding on the
donor? Is the deed enforceable by the courts even though the trust is rejected or is
impossible to implement by reason of non-existence of the beneficiaries? Is the court

42
Abu Zahra, Muhadarat, P. 197 – 207, al Dardir, Sharh al-Kabir, Vol. 4 P. 89; Hasan Abdullah al-Amin , al-waqf fi
al-fiqh al-Islami, p. 114, in Idara wa Tamiyah , Jeddah. 1994
43
see the effects of the undertakings in Abu Zahrah, Muhadarat, p. 48-49.
44
This view has been adopted by Sudanese Supreme Court in its directive 57-58.
45
Some shafi‘i jurists consider the subject matter the property of the beneficiaries. See al-Sharbini, Mughni
al-Muhtaj, vol. 2, p. 230, 383, kitab al-waqf, fasl ahkam al-waqf al-ma’nawiya.
46
Al-Shirazi, al-Muhadhdhab, vol. 1, 618-19.
47
abu Zahrah, Muhadarat, p. 50.
48
See the first provision of the directive given by Sudanese Supreme Court. They allow repudiation of waqf by the
founder, or change of the terms of the document if pronounced by court (p.2). According to the directive (p.4)
repudiation is valid in family waqf.
49
Hasan Abdullah al-Amin, “al-Waqf fi al-Fiqh al-Islami”, p. 120
50
Qahf, al-Waqf al-Islami, p. 118

1
bound by the conditions of the donor? To answer this question, one has to take note of the
intention of the donor, and the basic rules of law applicable to waqf.

The decision of courts in the interpretation of the instrument of waqf should be based on
the legal concept of the waqf, the type of the undertaking, and the intention of the donor.
The court has to consider the constituents of waqf that is the status of the donor, the
subject matter and the beneficiary. In addition, court must take notice of the nature of
undertaking as being unilateral and thus whether the instrument is capable of transferring
the title to someone else or not; that whether binding on the donor preventing him from
any dealings in the subject matter by way of sale, gift, charge, pledge and transmission.
In doing this, the court is bound to look at the existing opinions of the jurists and apply
only those which are prevailing in the juristic school of the donor. The court will be
acting out of its jurisdiction if it imposes its own intuition, the opinion prevailing in the
school to which the judges of the relevant court adhere. This duty of court is dictated by
the principle of certainty, and predictability of law, and also fairness to the donor.
Fairness dictates the respect of the wishes of the donor. His wishes can be ascertained
only if his words are interpreted correctly, and the correct interpretation of his words is
possible only if one considers the mind set of the donor, which is usually fixed according
to the rules and principles of the law that govern his life, the language, the grammar and
the over all context of the document. The court in this regard, the jurists agree, 51 is bound
by the contents and conditions of a document of waqf such as the specification of the
beneficiaries, the appointment of a specific administrator, the method of distribution, the
authority of the administration, and the payment of debts owed by his heirs when they fall
due. The restriction imposed by law is that the conditions must be lawful and harmonious
with the objective of the waqf.52 The court however has the jurisdiction to impose or
overrule conditions under special circumstances. This power of the court should be used
only when the very existence and usefulness of the fund is at stake. 53

Conclusion

Waqf is the donation of the property to some one or for purpose of a charitable cause
perpetually or for a certain period of time. It is permissible by law on conditions of the
donor. The traditional thought on the subject is restrictive and quite damaging to the
promotion of social welfare for which the whole idea of waqf is founded. To encourage
the attraction of more donations, the thought of Imam Abu Hanifah in certain exceptional
cases is meaningful and the relaxation restrictions accepted by maliki jurists and modern
practitioners deserve appreciation.

51
Hasan Abdullah al-Amin, “al-Waqf fi al-Fiqh al-Islami”, p. 122
52
ibid. Conditions that are against the law of Islam or contradict the objective of the document of the waqf are
considered not binding. For instance, the condition to sell the fund or give it as a gift to someone, to be the property of
an heir, or to include or exclude anyone according to the discretion of the donor such conditions are considered invalid
and are, therefore, not binding. Conditions, which are contrary to the objective of the waqf, for instance, that the
income of the fund shall not be spent on the damaged parts of the property, are void but the document of undertaking
would be valid
53
Dasuqi.p.88-90, ibn Qudamah, Mughni, vol. 6, p.195; Sharbini, Mughni al Muhtaj, vol. 2, p. 385

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