Waqf

Islamic law puts several legal conditions on the process of establishing a waqf.

A waqf is a contract, therefore the founder (called al-wāqif or al-muḥabbis in Arabic) must be of the capacity to enter into a contract. For this the founder must:

• be an adult
• be sound of mind
• capable of handling financial affairs
• not under interdiction for bankruptcy

Although waqf is an Islamic institution, being a Muslim is not required to establish a waqf, and dhimmis may establish a waqf. Finally if a person is fatally ill, the waqf is subject to the same restrictions as a will in Islam.[13]

A widely unknown fact about the demographic of founders of Ottoman waqfs is that many of them were women; with the existence of their establishments having a crucial impact on their communities’ economic life.[14] Out of 30,000 waqf certificates documented by the GDPFA (General Directorate of Pious Foundation in Ankara), over 2,300 of them were registered to institutions that belonged to women. And of the 491 public fountains in Istanbul that were constructed during the Ottoman period and survived until the 1930s, nearly 30% of them were registered under waqfs that belonged to women.[15]

The property (called al-mawqūf or al-muḥabbas) used to found a waqf must be objects of a valid contract. The objects should not themselves be haram (e.g. wine or pork). These objects should not already be in the public domain: public property cannot be used to establish a waqf. The founder cannot also have pledged the property previously to someone else. These conditions are generally true for contracts in Islam.[13]

The property dedicated to waqf is generally immovable, such as estate. All movable goods can also form waqf, according to most Islamic jurists. The Hanafis, however, also allow most movable goods to be dedicated to a waqf with some restrictions. Some jurists have argued that even gold and silver (or other currency) can be designated as waqf.[13]

The beneficiaries of the waqf can be persons and public utilities. The founder can specify which persons are eligible for benefit (such the founder's family, entire community, only the poor, travelers). Public utilities such as mosques, schools, bridges, graveyards and drinking fountains can be the beneficiaries of a waqf. Modern legislation divides the waqf as "charitable causes", in which the beneficiaries are the public or the poor) and "family" waqf, in which the founder makes the beneficiaries his relatives. There can also be multiple beneficiaries. For example, the founder may stipulate that half the proceeds go to his family, while the other half go to the poor.[13]

Valid beneficiaries must satisfy the following conditions:[13]

• They must be identifiable. At least some of the beneficiaries must also exist at the time of the founding of the waqf. The Mālikīs, however, hold that a waqf may exist for some time without beneficiaries, whence the proceeds accumulate are given to beneficiaries once they come into existence. An example of a non-existent beneficiary is an unborn child.
• The beneficiaries must not be at war with the Muslims. Scholars stress that non-Muslim citizens of the Islamic state (dhimmi) can definitely be beneficiaries.
• The beneficiaries may not use the waqf for a purpose in contradiction of Islamic principles.

There is dispute over whether the founder himself can reserve exclusive rights to use waqf. Most scholars agree that once the waqf is founded, it can't be taken back.

The Ḥanafīs hold that the list of beneficiaries include a perpetual element; the waqf must specify its beneficiaries in case.[13]

The declaration of founding is usually a written document, accompanied by a verbal declaration, though neither are required by most scholars. Whatever the declaration, most scholars (those of the Hanafi, Shafi'i, some of the Hanbali and the Imami Shi'a schools) hold that it is not binding and irrevocable until actually delivered to the beneficiaries or put in their use. Once in their use, however, the waqf becomes an institution in its own right.[13]

Waqf Writing Room in Mevlana Museum

Usually a waqf has a range of beneficiaries. Thus, the founder makes arrangements beforehand by appointing an administrator (called nāẓir or mutawallī or ḳayyim) and lays down the rules for appointing successive administrators. The founder may himself choose to administer the waqf during his lifetime. In some cases, however, the number of beneficiaries are quite limited. Thus, there is no need for an administrator, and the beneficiaries themselves can take care of the waqf.[13]

The administrator, like other persons of responsibility under Islamic law, must have capacity to act and contract. In addition, trustworthiness and administration skills are required. Some scholars require that the administrator of this Islamic religious institution be a Muslim, though the Hanafis drop this requirement.[13]

Waqf is intended to be perpetual and last forever. Nevertheless, Islamic law envisages conditions under which the waqf may be terminated:[13]

• If the goods of the waqf are destroyed or damaged. Scholars interpret this as the case where goods are no longer used in the manner intended by the founder. The remains of the goods are to revert to the founder or his/her heirs. Other scholars, however, hold that all possibilities must be examined to see if the goods of the waqf can be used at all, exhausting all methods of exploitation before the termination. Thus, land, according to such jurists, can never become extinguished.
• A waḳf can be declared null and void by the ḳāḍī, or religious judge, if its formation includes committing acts otherwise illegal in Islam, or it does not satisfy the conditions of validity, or if it is against the notion of philanthropy. Since waqf is an Islamic institution it becomes void if the founder converts to another religion.
• According to the Mālikī school of thought, the termination of the waqf may be specified in its founding declaration. As the waqf would expire whenever its termination conditions are fulfilled (e.g. the last beneficiary). The waqf property then reverts to the founder or to his/her heirs.

In the 16th century, the Haseki Sultan charitable complex was founded by the wife of Suleyman the Magnificent and serviced 26 villages; the institution also included shops, a bazaar, two soap plants, 11 flour mills and two bathhouses located in Palestine and Lebanon.[10] For several centuries, the income generated by these businesses contributed in the maintenance of a mosque, a soup kitchen, and two traveler and pilgrim inns.[10]

The earliest pious foundations in Egypt were charitable gifts, and not in the form of a waqf. The first mosque built by 'Amr ibn al-'As is an example of this: the land was donated by Qaysaba bin Kulthum, and the mosque's expenses were then paid by the Bayt al-mal. The earliest known waqf, founded by financial official Abū Bakr Muḥammad bin Ali al-Madhara'i in 919 (during the Abbasid period), is a pond called Birkat Ḥabash together with its surrounding orchards, whose revenue was to be used to operate a hydraulic complex and feed the poor.

Early references to Wakf in India can be found in the 14th-century work Insha-i-Mahru by Aynul Mulk Ibn Mahru. According to the book, Sultan Muizuddin Sam Ghaor dedicated two villages in favor of Jama Masjid, Multan, and, handed its administration to the Shaikhul Islam (highest ecclesiastical officer of the Empire). In the coming years, several more wakfs were created, as the Delhi Sultanate flourished.[19]

As per the Wakf Act 1954 (later Wakf Act 1995) enacted by the government of India, Wakfs are categorized as (a) Wakf by user such as Graveyards, Musafir Khanas (Sarai) and Chowltries etc., (b) Wakf under Mashrutul-khidmat (Service Inam) such as Khazi service, Nirkhi service, Pesh Imam service and Khateeb service etc., and (c) Wakf Alal-aulad is dedicated by the Donor (Wakif) for the benefit of their kith and kin and for any purpose recognised by Muslim law as pious, religious or charitable. After the enactment Wakf Act 1954, the Union government directed to all the states governments to implement the Act for administering the wakf institutions like mosques, dargah, ashurkhanas, graveyards, takhiyas, iddgahs, imambara, anjumans and various religious and charitable institutions.[20] A statutory body under Government of India, which also oversees State Wakf Boards.[21] In turn the State Wakf Boards work towards management, regulation and protect the Wakf properties by constituting District Wakf Committees, Mandal Wakf Committees and Committees for the individual Wakf Institutions.[20] As per the report of Sachar Committee (2006) there are about 500,000 registered Wakfs with 600,000 acres (2,400 km²) land in India, and Rs. 60 billion book value.[22][23]

The waqf institutions were not popular in all parts of the Muslim world. In West Africa, very few examples of the institution can be found, and were usually limited to the area around Timbuktu and Djenné in Massina Empire. Instead, Islamic west African societies placed a much greater emphasis on non-permanent acts of charity. According to expert Illife, this can be explained by West Africa's tradition of "personal largesse." The imam would make himself the collector and distributor of charity, thus building his personal prestige.[24]

According to Hamas, all of historic Palestine is an Islamic waqf, which translates as a "prohibition from surrendering or sharing".[25]