Public Trusts

(Al-Waqf)

Definition

Wuquf' and 'awqaf' are the plurals of 'waqf' and its verb is

'waqafa', tho-lgh 'awqafa' is also rarely used, as in al-Tadhkirah

of al-'Allamah al-Hilli. The word 'waqf' literally means 'to

detain' and 'to prevent', as in wuqiftu 'an sayri, i.e. 'I was prevented

from making my journey.'

In the context of the Shari'ah it implies a form of gift in which the corpus isdetainedand the usufruct is set free. The meaning of 'deten tion' of the corpus is its prevention from being inherited,sold, gifted, mortgaged, rented~ lent, etc. As to dedication of the usufruct, it means its devotion to the purpose mentioned by the waqif (donor) withou,t, any pecuniary return. Some Jurists consider waqf to be illegal in the Islamic Shari'ah and regard it as contradictory to its basic principles except where it concerns a mosque. But this view has been abandoned by all the schools of fiqh.

Perpetuity and Continuity

All schools, excepting the Maaliki, concur that a waqf is valid only when the waqif intends the waqf to be perpetual and continuous, and therefore it is considered a lasting charity. Hence if the waqif limits its period of operation (such as when he makes waqf for 10 years or until an unspecified time when he would revoke it at his own pleasure, or for as long as he or his children are not in need of it, etc.) it will not be considered a waqf in its true sense.

Many Imámi Jurists hold that such a condition nullifies the waqf, though it will be considered as valid habs1 (detention) if the owner of the property intends habs. But if he intends it to be a waqf, it will be void both as waqf as well as ,habs. By a valid habs is meant that the

usufruct donated by the owner for a particular object will be so applied during the period mentioned and return to him after the expiry of that period. However, this is not something which contradicts the provisions of perpetuity and continuity in waqf, although al-Shaykh Abu Zuhrah has made a confusion here due to his inability to appreciate the difference between waqf and habs in Imámi fiqh. Consequently he has ascribed to them the view that perpetual and temporary waqf are both valid. This is incorrect, because according to the Imámís a waqf can only be perpetual.

The Málikís say: Perpetuity is not necessary in waqf and it is valid and binding even if its duration is fixed, and after the expiry of the stipulated period the property will return to the owner.

Similarly, if the waqif makes a provision entitling himself or the beneficiary to sell the waqf property, the waqf is valid and the provision will be acted upon (Sharh al-Zarqan'i, vol.7, baab al-waqf).2 If a waqf is made for an object which is liable to expiry (such as a waqf made for one's living children, or others who are bound to cease existing) will it be valid? Moreover, presuming its validity, upon whom will it devolve after the expiry of its object?

The H. anafis observe: Such a waqf is valid and it will be applied after the expiry of its original object to the benefit of the poor.

The \anbalís say: It is valid and will thereafter be spent for the benefit of the nearest relation of the waqif. This is also one of two opinions of the Shafi';s.

The Málikís are of the opinion that it is valid and will devolve on the nearest poor relation of the waqif, and if all of them are wealthy, then on their poor relatives (al-Mughn~, al-Zarqan'i, and al-Muhadhdhab). The Imámís state: The waqf is valid and will devolve on the heirs of the waqif (al-Jawaahir).

Delivery of Possession

Delivery of possession implies the owner's relinquishment of his authority over the property and its transfer to the purpose for which it has been donated. According to the Imámís, delivery is a neces sary condition for the deed of waqf to become binding, though not for its validity. Therefore, if a waqif dedicates his property by way of waqf without delivering possession, he is entitled to revoke it. If a waqif makes a waqf for public benefit (e.g. a mosque or a shrine or for the poor), the waqf will not become binding until the custodian (mutawal~i) or the hakim al-shar' takes possession of the donated property, or until someone is buried in the donated plot of land, in the case of a graveyard, or prayers are offered in it, if it is a

mosque, or until a poor person uses it with the permission of the w~aqif. in a waqf for the benefit of the poor. If delivery is not effected in any of the above-mentioned forms it is valid for a waqif to revoke the waqf. If a waqf is made for a private purpose, such as for the benefit of the waqif's children, if the children have attained majority, it will not become binding unless they take possession of it with his permission, and if they are minors the need for giving permission does not arise because the waqif's possession of it as their guardian amounts to,their having taken possession. If the waqif dies before possession has been taken, the waqf becomes void and the property assigned for waqf will be considered his heritage. For example, if he makes the charitable waqf of a shop and dies while it is still in his use, it will return to the heirs. The Málikís say: Sole taking possession does not suffice and it is necessary that the donated property remain in the possession of the beneficiary or the mutawalti for one complete year. Only after the com pletion of one year will the waqf become binding and incapable of annulled in any manner. The Sháfi`ís , and Ibn Hanbal in one of his opinions, state: A waqf is completed even without delivering possession; rather, the ownership of the waqif will cease on the pronouncement of waqf (Ab& Zuhrah, Kitab al-waqf).

Ownership of Waqf Property

There is no doubt that prior to donation the waqf property is owned by the waqif, because a person cannot make waqf of a property that he does not own. The question is whether, after the completion of the waqf, the ownership of the property remains with the waqif, with the difference that his control over its usufruct will cease, or if is it transferred to the beneficiaries. Or does the property becomes owner less, being released from ownership?

The Jurists hold different opinions in this regard. The M~likis consider it to remain in the ownership of the waqif, though he is prohibited from using it. The \anafís observe: A waqf property has no owner at all, and this is the more reliable opinion according to the Shaafi'ee school.3 (Fath al-Qa~ir, vol.5, baab al-waqf; Ab& Zuhrah, Kitab al-waqf) The Hanballs say: The ownership of the waqf property will be transferred to the beneficiaries.

Al-Shaykh Ab& Zuhrah (1959, p.49) has ascribed to the Imámiy yah the view that the ownership of the waqf property remains with the waqif. He then observes (p. 106): This is the preponderant view of the

Imámís.

Abu Zuhrah does not mention the source relied upon by him for ascribing this view, and I do not know from where he has extracted it, for it has been mentioned in al-Jawaahir, which is the most important and authentic source of Imámi fiqh: According to most Jurists, whel~ ~ waqf is completed, the ownership of the waqif ceases; rather, it is the preponderant view and the authors of al-Ghunyah and al-Sara'ir have even reported an ijma' on this view. Though all or most Imámi Jurists concur that the ownership of the waqif ceases, they differ as to whether the waqf property totally loses the characteristic of being owned (in a manner that it is neither the property of the waqif, nor of the beneficiaries, and, as the Jurists would say, is released from ownership) or if it is transferred from the waqif to the beneficiaries. A group among them differentiate between a public waqf (e.g. mosques, schools, sanatoriums, etc.) and a private waqf (e.g. a waqf for the benefit of one's descendants). The former is considered as involving a release from ownership and the latter a transfer of ownership from the waqif to the beneficiary.

The difference of opinion regarding the ownership of waqf property has practical significance in determining whether the sale of such prop erty is valid or not, and in the case where a waqf is made for a limited period or for a terminable purpose. According to the Maaliki view that the waqf remains the waqif's property, its sale is valid and the corpus will return to the waiqif on expiry of the period of waqf or when the object for which the waqf was made terminates. But according to the view which totally negates the ownership of waqf property, its sale will not be valid, because only owned property can be sold, and a waqf for a limited period will also be invalid. According to the view which con siders the ownership of waqf property as transferred to the beneficiaries, the property will not return to the waqif. The consequences of this difference will be more obvious from the issues to be discussed below. It is necessary to understand this divergence of viewpoints because i, affects many issues of waqf.

The Essentials of Waqf

There are four arkan (essentials) of waqf: (1) the declaration (al ghah); (2) the waiqif; (3) the property given as waqf (al-mawqufah); (4) the beneficiary (al-mawquf 'alayh).