Mohammad Sajjad 10 August 2024 · (forwarded by FM, April 25)
informations and/or queries taken from some academic works (such as Kozlowsky, 1985; Munawar Husain, 2021; Khalid Rashid, 1978, etc.) on the theme of Waqf. ...
1. The creation and existence of Waqf is strictly as per Sharia?
The Holy Quran made no mention of awqaf or any institution similar to them.
2. Did Abu Hanifa (AD 699-767 AD) validate the Waqf as a Sharia sanctioned institution, or, he "disapproved of the institution"?
He also held that a Waqf need not be permanent.
3. Collections of the fatawa of religious scholars in India contained both favourable and unfavourable statements on the institution of Waqf.
4. Waqf was not necessarily and strictly a charitable trust or pious foundation. These were selfish too besides being altruistic.
Maximum proceeds of most of awqaf are theoretically and practically earmarked for the members of the family & kinship.
Every Waqif wanted his or her offspring to inherit the fruits that ingenuity [Waqf], to preserve the world of their founders.
The British Indian court's approach of literal Quranic rules of inheritance made Muslim landholders find out other legal way of preserving the holdings by creating awqaf.
[Therefore, beginning in 1879, the High Courts of India handed down a series of decisions which overturned any endowment considered to benefit primarily the settler's own family.
Privy Council, 1894: Muslim endowments must be religious and "charitable", public not private.
Courts' premise: Muslims ought to follow their own scripture. If the Quran demanded a partition of the estates, Muslims must not evade the rigours of their own legal system. This is how Muslim endowments became a political and contentious issue.
Hafiz Shirazi, therefore, composed a couplet which translates as: "Drinking wine is bad, but having a Waqf is worse".]
5. Who were the mutawallis of the earliest Awqaf, viz., Khyber, Sawad (Iraq, which was then a part of Iran), and Ramlah in Palestine, founded in 912 AD ) Waqf by Faiq, an eunuch, which is distinguished to having the earliest written record (on stone tablet)?
All of these three earliest awqaf became non existent due to encroachment by the soldiers and other influential elites during the early centuries of Islam. "Military and political leaders gradually appropriated the territory's income. Such encroachment on endowments was by no means rare. Though awqaf aimed at permanence, few attained it".
The Buwayhids, a family of Iranian not Arab origin, had a hand in dismembering that [Sawad] endowment.
6. Only the Anglo Indian judges of the British India assumed the Waqf to be a charitable endowment. Otherwise, the creation of Waqf, in most cases, had to do more with circumventing the Quranically defined rights of inheritance and division/distribution of the properties and their proceeds among his/her heirs. Waqf creation was a way of putting a complete restriction on sale and purchase of the assets/properties by the heirs.
7. "Waqf is a typical phenomenon which partakes the characteristics of endowment, gift and many such sister concepts but, at the same time, stands apart".
8. "The removal of encroachments upon the waqf properties is relegated to the executive wing rather than the judicial exercise. The appointment and removal of mutawallis is another complicated issue".
9. In the early years of 19th century, a number of India's Muslims began to convert their property into awqaf. This was a way to protect their family's fortune and the social prominence which accompanied it.
10. In both kinds of awqaf, viz., Waqf e Aam and Waqf e Aulad, through mutawllis, self-interest could be preserved and perpetuated.
11. In 1877, Sir Sayyid (when he was in the Viceroy's legislative council) published an article in his journal, Tazhib- al-Akhlaq, titled "A Plan for Saving Muslim Families from Destruction and Extinction" ("Ek Tadbir: Mussalmanon ke Khandanon ko Tabahi awr Barbadi se Bachaane ki"). He noted that a waqf was "allowed", or "permitted" (mujaz), means, he didn't call it disapprovable but also didn't approve of the institution as strongly?
Sir Syed's four important concerns:
(a) that the property placed in a waqf be accurately and fully described.
(b) his proposal insisted that, once drawn up, a waqfnamah be registered with the district officer or the district magistrate;
(c) The shares of the waqf's income had to be precisely laid out.
(d) Also, the succession to the office of mutawalli had to be clearly established.
12. Ameer Ali (1849-1928) however disagreed with Sir Syed; Shibli endorsed Ameer Ali.
Some interesting facts about some Indian Awqaf:
(A) One Muslim woman in Bengal even allowed her deed of Waqf to begin with an invocation to the goddess Durga.
(B) In Tamil, a mutawalli preferred to be called Dharmakarta.
(C) Najiban, a tawaif of Bareilly also created Waqf.
(D) It was only with the British Indian State interference that the Hoogli College was established out of the Waqf created by Mohd Mohsin, otherwise, the deed of the Mohd Mohsin Waqf didn't have such provision.
(E) Since the Caliph Umar's period (Khyber and Sawad), the Awqaf were always under "direct" control of the state.
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