Waqf in Islamic and Pakistani law

 Fazila Nawaz

WAQF IN ISLAMIC LAW AND PAKISTAN

Definition

The literal meaning of Waqf is manifested as restrain and prevention. The Quran has also used this word in the same literal meaning. Habs is used interchangeably with waqf as it is also used as restraining or arresting. Waqf technical means “to restrain or prevent, once an owned property passes into the ownership of another.” Another definition for waqf given by Tanzil-ur- Rehman is stated as “a transfer of the corpus of valuable property to the ownership of Allah with a declaration of dedicating its usufruct perpetually for religious, charitable and pious purposes as mentioned by the Shariah. It is a very strong institution of Islamic law and has been practiced by the Islamic society as Trust in the common law.

 The waqf property is used to serve religious, pious, or charitable purposes, and ultimately the benefit of waqf is passing to the beneficiaries. It can also be used as a family settlement to provide maintenance for the family relatives. Yet, it is created for a specific purpose that comes under charitable means or religion. The objective of the waqf can be changed according to the need and time. In a waqf there are three parties;

·         Waqif: The person who creates waqf either through writing or pronouncing the intention to create the waqf.

·         Mutawali: Mutawali is the person who administers, manages, and controls the waqf.

·         Muwqoof alayh: This is the term used for the beneficiaries who will get the benefit from the waqf.

SCHOOL OF THOUGHTS

Abu Hanifah

Imam Hanafi opposes the attribution of the perpetual nature of waqf property that is maintained by other schools of thought. He believes that the heirs or the owner cannot be alienated from the property forever. The owner has the right to sell the property or give it away by way of a gift and after his death, the property becomes a part of the inheritance. Hence, according to Imam Hanafi, the property reverts to the owner, within his life after the purpose is fulfilled.  The essence behind this stand is that the perpetuity works against the interest of the legal heirs and is designed to prevent the faraid in the property from taking the effect.

 

However, Imam Hanafi gives consensus with other schools of thought on the perpetual nature of waqf property when established for religious purposes, as in the case of the mosque.

The view of the Sahibayn

A disciple of Imam Hanafi, Imam Abu Yusuf was initially having the same view as Imam Hanafi, yet on a pilgrimage, he observed the waqf practiced by the companions and changed his view. He found that when a waqf is made by the waqif he is disposing of this property according to the essential freedom that he possesses as an owner. The rights of the heirs are created at the time of his death and they have the right on the property which was in the ownership of their ancestor at their lifetime, not the one their ancestor has disposed of or has transferred to someone else.

TYPES OF WAQF

Generally, there are two types of waqf in Islamic law, private and public. In practice, public and private interests are intermixed as waqf that may benefit the family members of the founder along with the public.

Sahibayn

According to the Sahibayn there exist two types of waqf and in both types, the Sahibayn believes that the property cannot be inherited, denoted, sold, or gifted. According to the rule-based upon the Prophet's words, the principle of perpetuity is backed up in waqf by the Sahibayn.

         I.            Waqf in which the property is passed to Allah, for instance, waqf made for mosques or graveyard.

      II.            Waqf in which the ownership of the owner is eliminated and the property is restrained or arrested that is, it is taken out of all ownership and is dedicated in perpetuity for the objectives specified by the owner.

Hanafi Jurist

Hanafi jurist classify the waqf into three categories that are;

       I.            Perpetual for Mosques: The Hanafi believes that property given for mosques or other religious purposes where the property is passed to Allah Almighty is perpetual.

    II.            Perpetual waqf for charitable purposes: For Abu Yusuf and Muhammad the perpetual nature in waqf for a charitable purpose is a valid condition. Yet, Abu Hanifah doesn’t believe that.

 III.            Temporary Waqf for Charitable or other purposes: Abu Hanifah allows this type of waqf but others do not. After the purpose is fulfilled the ownership of the waqf property is reverted to the owner.

CONDITIONS FOR THE ESTABLISHMENT OF WAQF

Conditions for Waqif

·         The waqif must be sane and a major. A Muslim who has attained the age of majority can create waqf during his lifetime or by will. Waqf made during the death bed do not exceeds 1/3 of the total property and a testamentary waqf is revocable during the lifetime of the founder.   

·          The waqif must have ownership over the property.

·         Waqif must be a free person. A waqf made by an agent or by a slave is void. Moreover, applying the same analogy it is stated that a corporation or a company can also not create a waqf.

·         The founder must make a declaration of the perpetuity, determine the value of the property, undo his possession and deliver the property for the benefit of the beneficiaries. Jurists believe that in the case of the mosque the delivery is completed when a group prays on the property after adhan and iqamah because mosques are created for offering congregational prayers.

·         The founder shouldn’t become the beneficiary himself. This is not a condition according to Imam Yusuf because in the case of the mosque the owner can pray on the property. Also, if he is the first mutawali, he is permitted to spend on himself.

·         According to the waqf property can be replaced with a better one. For instance, the door of the mosque can be replaced if it is damaged. 

·         The objective of the waqf must be declared by the waqif. Yet, Abu Yusuf maintains that this condition is not necessary because if the waqif fails to meet the objectives the poor will become the beneficiaries.

SIGHAH MUST NOT BE VAGUE

During creating a deed for waqf the words must not be vague (mubham). It should clearly express that it is an act of charity for the general religious benefits like a mosque, or charity perpetually dedicated to the benefits of the poor. The poor don't need to be specified in number.  Words such a waqf, habs, sadaqah, or other words interchangeably used without specifying intent or details will be considered void.

 MOOD OF WAQF

It is permissible to create a waqf either verbally or in a deed (Sukuk). However, it is recommended that it should be made in writing. Besides, identifying the beneficiaries, the deed of waqf lay down the appointment of mutawali and important rules of management.

CONDITIONS FOR THE ACT OF CREATING A WAQF

A perpetual, irrevocable, and unconditional waqf is considered a valid waqf. However, a temporary alienation is considered valid by Abu Hanafi, yet it is not followed by other schools of thought. Hanafi approves the temporary waqf as they believe the alienation is comparable to ariyyah or a thing lent to another for temporary use. The property after filling the objective of waqf reverts to the owner. Yet, Shahibayn doesn’t call it a waqf.  

The waqif must assert the relinquishing of ownership and that it is not passable to anyone else. In the case of the mosque, the ownership is passing to Allah. It is based upon the verse of the Quran, “the mosques are for Allah alone.”

The act of waqf cannot be made by a legal person other than a human. As, if it happens it violates the primary condition of the waqf that is it must not be owned by anyone. In the case of the mosque, the legal person cannot be assigned by the religious duties. Also, a legal person cannot Act as a medium between Allah and his servant. Thereby, waqf by corporate or companies is not permissible.

MUTAWALI AND RELATED MATTERS

·         Mutawali is the manager of the waqf and the waqif has the right to appoint the mutawali according to his will. Also, waqif can lay down the procedure for the appointment of a new mutawali and the method of succession. In case of any dispute regarding the making of mutawali the court will appoint. It is recommended that the court should first consider the right person from the family to be appointed.

·         Waqif may also appoint himself as the first mutawali and another before his death. 

·         The mutawali will set aside ushr that is due, his expenses for running the waqf, salaries of the staff, and the amount for keeping the maintenance from the revenue generated by the waqf property.  For this, he doesn’t need authorization from the waqif. However, waqif may reserve himself in the deed of the information, the right to render advice or inspect accounts during his lifetime.

·         After the expenses are covered the mutawali has to divide the remaining according to the objectives of waqf as directed by the waqif. In absence of any direction, the beneficiaries are to be treated equally by the mutawali.

·         The claims can be made against the mutawali not to be made against the property of waqf.  Since the waqf is not a corporation it cannot be attached for satisfying any claim. Neither the creditor, not the beneficiaries can claim anything from the waqf property. Moreover, the court cannot permit the sale, transfer, or mortgage of the waqf property under any circumstances. It can only permit sale of those parts of the property that need improvement and that can be improved through replacement.

 

 

RULES AND LEGAL EFFECTS OF WAQF

·         A waqf deed made on the death bed will be valid if the property is equal to or less than one-third of his estate.

·         Waqf established an option for himself (khiyar al shart). For instance, saying “I want to create waqf but I will finalize my decision after three days.”

·         Waqf shouldn’t have conditions for its completion.

·         The waqf may specify the beneficiaries like it can be said that he will be beneficiary and after him, his descendants will be beneficiary. Based on this waqf ala al awlad can be formed where equal shares are divided between the sons and in the case of the daughter and son, two are for male and one is for female.

·         Two joint owners of a property can make a waqf for a single mutawali.

PAKISTANI LAWS FOR WAQF

·        The Mussalman Wakf Validating Act, 1913

·        The Mussalman Wakf Validating Act, 1923

·        Punjab Waqf Property Ordinance 1979

·        Balochistan Waqf Property Ordinance 1979

·        Sindh Waqf Property Ordinance 1979

·        Khyber Pakhtunkhwa Waqf Property Ordinance 1979

 

REFERENCE

Imran Ahsan Khan NYAZEE, Outlines of Muslim Personal Law, 2016

Zubair Abbasi, Muslim Personal law

 Waqf deed.

This waqf deed is made on the date 28/02/2021 by Fazila Nawaz (hereinafter called waqif)  daughter of Nawaz Khan, resident of Khairpura, District Kohat, Karachi

Herein,

·         Waqif is competent to make the waqf according to the Punjab Waqf Property Ordinance, 1979

·         Waqif has voluntarily decided to establish an irrevocable fund of 1crores yearly for the elder residents (hereinafter called beneficiaries) age crossing fifties, of the Edhi center.

·         The waqif has made the Edhi center the Mutawali for the management and distribution of the fund according to the objectives and purposes laid down below;

Objectives and purpose

·         The beneficiaries living or will be living in the Edhi Center will be entitled to get the benefit of the fund

·         The fund will be utilized for the medication and providing better living facilities to the beneficiaries

·         Fund will be utilized for rituals to be performed after the death of any beneficiary

Mutawali’s Obligation

·        Mutawali will justly spend the fund for the benefit of beneficiaries

·         Edhi Center will be accountable to provide the detailed list of fund spend on the beneficiaries yearly

·         To better facilitate the beneficiaries the Mutawali shall appoint the caretakers and the remuneration of the caretakers will be given from the fund

·         In case the fund is finished before the end of the year or before the new fund is issued the Mutawali shall contact the waqif or in the absence of waqif his descendants to facilitate the beneficiaries with funds

Mutawali’s Rights

·        The Mutawali has the right to administer, distribute and manage the fund according to the needs of the beneficiaries

·        The mutawali can make rules for the administration and distribution of the waqf

IN WITNESS HEREOF the waqf deed is executed hereunto respectively on the day and year first hereinabove written

ON BEHALF OF

Fazila Nawaz 

Witness 1 Shezadi Shah

Witness 2 Kanwal Zahsra