Waqf is defined as a permanent dedication of the corpus of the valuable property by a Muslim to the ownership of Allah for religious, charitable, and pious purposes.
The term waqf literally means to prevent (habs) or restrain. In legal terms it means to protect a thing or to prevent it from becoming the property of a third person. Waqf could be defined as the permanent dedication by a Muslim of the corpus of a valuable property to the ownership of Allah with a declaration of dedicating its usufruct perpetually for religious, charitable, or pious purposes as recognized by Shariah.
Waqf is inalienable or made in perpetuity. Once the dedication is made it is absolute and all rights of property are passed from the waqif and rest with Allah. Hence the corpus of the property made the subject of waqf cannot be sold, mortgaged, donated or alienated even by inheritance. The owner surrenders his power of disposal over a certain property with the stipulation that its yield is to be used for permitted good purposes. The usufruct is applied to any charitable, religious or pious purposes. If a waqf is created with a condition that it shall take effect after the death of the waqif, it is called (waqf bil waliyyah). In waqf only the income of the property endowed may be consumed.
- Waqf property cannot be sold, mortgaged, donated, or alienated, even by inheritance.
- Only the income produced by Waqf property can be consumed. The Waqf property itself cannot be consumed.
- Charity to family members is better than charity to strangers. hadith of Abu Hurairah.
Waqf cannot be sold, inherited etc as it belongs to Allah once it has been given by the owner as waqf. It is something of huge significance as there is a continuous reward for it, enhances social welfare, increases security in the community, provides self sufficiency and financial independence for Muslim educational institutes.
“Do not remove the ring before paying its due price”
Whenever you deal with a Muslim (who is oppressive) always ask them to fear Allah. Even if you don’t get your due rights immediately, it will stick with them and might bear fruits later. Let them know that even if there is no other witness, there is someone between you and them is watching and witnessing everything.
Till today we have people who have to sell their bodies just to have food to eat. Allah has given us facilities (waqf, zakat) but how much of it is actually being implemented? How much zakat money actually reaches the intended people? How much of the waqf is actually serving its true purpose?
Nowadays masajid have to depend on donations of a few personalities and boxes going around in the masjid. Waqf removes this dependency and restores honour to the masjid. It is said that the first waqf in Islam was the Masjid of the Prophet ﷺ.
If the produce of the waqf is fruits, then you can consume from that, but don’t take it as a profit.
Proof 1 – Narrated Ibn Umar: Umar bin Khattab got some land in Khaibar and he went to the Prophet ﷺ to consult him about it saying, “O Allah’s Messenger ﷺ I got some land in Khaibar better than which I have never had, what do you suggest that I do with it?” The Prophet ﷺ said:
إِنْ شِئْتَ حَبَسْتَ أَصْلَهَا، وَتَصَدَّقْتَ بِهَا
“If you like you can give the land as endowment and give its fruits in charity.”
So Umar gave it in charity as an endowment on the condition that would not be sold nor given to anybody as a present and not to be inherited, but its yield would be given in charity to the poor people, to the Kith and kin, for freeing slaves, for Allah’s Cause, to the travelers and guests; and that there would be no harm if the guardian of the endowment ate from it according to his need with good intention, and fed others without storing it for the future.” [Bukhari]
Proof 2 – Abu Huraira reported: The Messenger of Allah ﷺ said,
إِذَا مَاتَ الْإِنْسَانُ انْقَطَعَ عَنْهُ عَمَلُهُ إِلَّا مِنْ ثَلَاثَةٍ إِلَّا مِنْ صَدَقَةٍ جَارِيَةٍ أَوْ عِلْمٍ يُنْتَفَعُ بِهِ أَوْ وَلَدٍ صَالِحٍ يَدْعُو لَهُ
“When the human being dies, his deeds come to an end except for three: ongoing charity, beneficial knowledge, or a righteous child who prays for him.” [Muslim]
You’ll never get a gift on the Day of Judgement and say “La Shukran”. No thanks I’m good. You’ll want to get anything and everything you can get your hands on. Waqf is such an opportunity.
The first 2 are easily understandable, but how is a virtuous child a continuous good deed? – The best effort you get rewarded for is your own reward and your child is indeed your effort.
There is no such thing as small knowledge. Knowledge is from Allah and nothing from Allah is small. Even if it is something like tying your shoe-laces.
When Allah mentions virtues of knowledge it refers to Islamic knowledge. However, even if its dunya knowledge, if your intention is right and people benefit from you then your learning, teaching and applying it counts as jihad. Such a person is considered as a mujahid as jihad is not always physical.
The Purpose of Waqf
Waqf should be created for a charitable purpose recognized by the Shariah. The examples of charitable purposes are extensive. It may include waqf for mosques, schools, hospitals, universities, and other examples of public utility or public interest or for the general welfare of the poor. The purposes recognized by Islam include man’s duty to his family.
The waqf can be created for the support of the founder’s own immediate descendants, whether for one or two generations, or in perpetuity, until their extinction, whereby the waqf would go to the poor. A Muslim cannot create a waqf for a church or synagogue. A waqf is a form of Iadaqah and cannot be used for purposes unpleasing to Allah. Such a waqf becomes null and void and the ownership right of the waqf property will remain with the creator of the waqf.
Jabir said, “A man said, ‘Messenger of Allah, I have a dinar.’ He said, ‘Spend it on yourself.’ The man said, ‘I have another.’ He said, ‘Spend it on your servant (or he said, ‘on your child’).’ The man said, ‘I have another.’ He said, ‘Use it in the Way of Allah, but that is the least form of sadaqa.'” [Al Adab Al Mufrad]
If the purpose of the waqf is religious and charitable but it is not realizable or has ceased to exist the waqf will not be allowed to fail. The perpetuity principle continues as there is an implied term in the waqf to benefit the poor in the event of the failure of the prime purpose of the waqf. In such cases the income of such a waqf property can be utilized, with the permission of the court, on the renovation of any waqf property, or it can be used on purposes similar to or nearly similar to the original purpose, or generally for the benefit of the poor, or for the purpose of promotion of knowledge and learning among Muslims. For example, when the waqf is meant for a religious or charitable institution which in the course of time ceases to exist, the waqf property will not revert to the waqif or his descendants, but would be applied to some other similar religious institutions or any other object which may benefit human beings.
Moreover, waqf has a redistributive function as a waqf made for the purposes of helping the poor or for the purposes of educating the poor will channel resources to them and benefit them. In addition to this waqf also plays an important role in protecting the wealth of Muslim nations by the prohibition of their sale or pledge. Consequently, the waqf property would remain in the hands of the Muslims and could be used for their general welfare. Waqf also protects a certain property from being wasted by prodigal children who would otherwise squander the wealth left to them by their parents.
4 Pillars of Waqf:
- The Founder واقف
- The Waqf property موقوف
- Beneficiaries موقوف عليه
- Expression صيغة
The ‘expression’ includes offer and acceptance. The Ahnaf say the only condition is expression without the condition for acceptance. We assume acceptance from Allah as Allah told us that He will accept the charity given in His path.
Conditions for the Founder
- Founder must be a Muslim.
- He must own the property at the moment of the endowment.
- He must have the legal capacity.
- He should not intent to deprive the inheritors of their due rights from their legal rights on the estate.
Bankruptcy is a blockage for legal capacity. Settle the debts of the person before waqf as this right is greater.
We assume that a person is depriving the inheritors from their rights if the waqf is given at the death-bed or the last moment.
Allah says in the Quran:
خُذْ مِنْ أَمْوَالِهِمْ صَدَقَةً تُطَهِّرُهُمْ وَتُزَكِّيهِم بِهَا وَصَلِّ عَلَيْهِمْ إِنَّ صَلَاتَكَ سَكَنٌ لَّهُمْ وَاللَّهُ سَمِيعٌ عَلِيمٌ
Take, [O, Muhammad], from their wealth a charity by which you purify them and cause them increase, and invoke [ Allah ‘s blessings] upon them. Indeed, your invocations are reassurance for them. And Allah is Hearing and Knowing. [Surah Tawbah, Ayah 103]
If you give everything away, you are blamed. If you give nothing, you are also blamed. A person needs to understand that Allah has already decided the matter here and it’s not open for our interpretation based on whom we like and dislike.
Don’t work and study for the sake of the certificate, for you will miss out on a lot of good. Make your intention for the sake of Allah, your roots need to have Allah and InshaAllah you will find both – the certificate as well as blessings from Allah. They won’t run away with your paper, they have to give it to you anyways. But by making your intention, you gain both in this world and the hereafter. Always remember that your rizq is already written for you by Allah. You will get not a ringgit more, nor a ringgit less.
Conditions for the Waqf Property:
The contract of waqf can only be valid if the subject matter fulfils the following condition:
- The waqf property must be valuable in the eyes of Shariah.
- It must be ‘ayn (goods, property, assets..) waqf of usufruct is not allowed (disputable issue).
- Must be in existence and specific.
- Money can also be endowed. (Thi practiced in the era of the Ottoman empire)
- Appointment of administrator (Mutawalli).
The property must be capable of being used without being consumed. It can be immovable property such as land and building or movable properties the dedication of which is customarily practiced.
The property should be in existence, known and specified. For instance, the waqf of a loan or a profit receivable in the future is not valid. ‘ayn is any object that can be seen or touched.
Some scholars said that money cannot be waqf as it cannot be kept in its asl form. Others said that it can be invested and the profit from that shared. The money can be accepted, but caution must be practiced and it should be converted into a physical entity equivalent to the capital as soon as possible because monitoring cash is not easy.
Conditions for the Mawqif ‘alayhi
Mawqif ‘alayhi can be specified (mu ‘ayn ) or unspecified (ghayr-mu‘ayn). If specified it can be for one or more than one person. They could also be unspecified and categorized under a broader group such as poor people, scholars in a certain field, students who memorized the Quran, other students of knowledge, mujahidin, masajid, schools, etc. If mawqif ‘alayhi is not specified a description of the group or institution should be given such as that they should be poor, students of Quran, etc. Waqf can be made in favour of institutions such as waqf of the Quran made in favour of the masajid. It can also be made in favour of relatives provided the waqf is finally made for the poor or other charitable purposes. Waqf can be created in favour of a dhimmi. However, as previously mentioned it is not valid to make waqf in favour of synagogues or churches. It is important to note that waqf cannot be created in favour of animals.
A summary of the types of Waqf beneficiaries:
a. Waqf al-Mu‘ayyan – where the wÉqif specifies the person whether one, two or a group of them to be the beneficiaries of the waqf.
b. Waqf al-Ghayr Mu‘ayyan – where the beneficiaries are specified not in person but in a group such as a waqf for the scholars in a particular field, or for the poor, or masajid.
When a beneficiary is specified he should be capable of acquiring ownership of the benefit, known and should not be non-existent. When the beneficiaries are not specified it is enough that they should be known and the waqf should be for a charitable purpose.
Conditions for the Beneficiaries
As for the beneficiaries , the following must be fulfilled:
- The beneficiaries can be specific or undetermined, one or more than one, but for one the acceptance is required according to the majority of schools.
- It is permissible to dedicate it for relatives or even to dhimmies.
- It has to be given for halal purposes is not valid to endow in favour of synagogues, churches or animals. Land could be provided though for horses etc to graze for defense purposes.
If the person or group (beneficiary) for whom the waqf is made is no longer in existence then the waqf is passed to another who meets the same requirements and conditions of the previous beneficiaries. The property cannot be left without an owner.
A dhimmi is a person of honour in this world at least. Killing or harming them without a valid reason brings the wrath of Allah.
If it doesn’t meet the Waqf requirements then we take it as a charity and not as a waqf.
Conditions for the Expression
- No specific expression or words but the meaning.
The words used should indicate the creation of waqf. Intentions to create waqf and the appointment of a Mutawalli are sufficient for the creation of waqf.
- Perpetual and not for a certain period (disputable issue).
A waqf for a certain period is not allowed. This is the opinion of the majority of the madhaib. According to the Shafi’iyyah, Hanabila, Qadhi Abu Yusuf and Muhammad al-Shaibani from the Ahnaf, the declaration of waqf by the waqif is irrevocable as soon as the dedication has been pronounced. Hence, a waqf cannot be revoked after the declaration has been made. Neither can the waqif reserve for himself the power of revocation. Maliki jurists and Imam Abu Hanifah (which represents a minority opinion within the Hanafi Madhab) are of the opinion that a waqf can be revoked at any time before it is confirmed by the qadhi or it is registered.
- No revocation after declaration is made unless if it was stated in his will and he revoked it before his death.
- Waqf should immediately take effect (no dependence on a certain occasion) unless if it was dedicated by will then it will function only upon his death.
A waqf must not be made to depend on such an eventuality of which its occurrence or non-occurrence is equally possible.
Ex: It is not valid if a person says that if his son graduates or returns from a journey, this house will be made waqf.
Similarly, when the creation and validity of a waqf are subjected to a contingency, it becomes void. Ex: If the waqf is made contingent on the death of a person without leaving children, it will be void.
However, a suspended waqf that will come into operation after the death of the waqif is valid. Waqf created by will, would operate after the death of the waqif. It may be cancelled before the death of the waqif. The waqf which is created through a will should not apply to more than one-third of the property except with the consent of the heirs.
- No void conditions such as: I may cancel the waqf, or the administrator or his children should not be removed. In this case the conditions are void and waqf is valid.
If the person is competent, he may accept the offer otherwise his guardian may accept the waqf on his behalf. If a waqf is made in favour of institutions such as a university, then the acceptance by a person who legally represents the university is a condition. The waqif should also mention the beneficiaries in whose favour the waqf is made.
Types of Waqf
Waqf could be divided into two types. They are waqf al-Khairi and waqf al-Dhurri.
1) Waqf al-Khairi is created from the very beginning for a virtuous, charitable purpose for the sake of Allah. It could be subdivided into 2 types:
a. Public Waqf: That which is made for the public benefit. Ex: bridges, masajid, cemeteries etc. The waqf comes under the direct control or supervision of the state.
b. Quasi-Public Waqf: It is made for the benefit of a particular group or individuals. Ex: scholars, students of religious knowledge etc The above two types of waqf are called Khairi.
2) Waqf al-Dhurri or al-Ahli: It is made for someone’s children, grandchildren and so on. However, it must be done for a religious, pious or charitable purpose. The waqf is created in favour of one’s own family members as it is the duty of every Muslim to secure maintenance first for those whose responsibility of maintenance rests on him. The beneficiaries cannot gain ownership of the waqf asset but are only entitled to benefit from it. The ultimate benefit, however, has to be reserved for permanent religious, pious or charitable purposes. The permanent charitable and pious purpose has to be specified expressly or implied in the waqf-deed. If the waqf is created in favour of issues, one generation after another, and their shares are not specified, all those in whose favour the waqf is created and their issues shall be entitled to equal shares of its income. The principle of the law of inheritance on the basis of which the male gets twice the share of the female is not applicable to the law of waqf.
Power and Duties of a Mutawalli (ناظر الوقف)
Mutawalli is also known as Nadhirul Waqfi.
Wilayah is the one who protects whereas Nadhir is the one who looks. Having a mutawalli is not a condition to establish a waqf.
- Mutawalli is just a mere administrator who manages the waqf affairs but does not own it.
- However, he bears a serious responsibility before Allah, the founder and the beneficiaries if something goes wrong because of his carelessness or irresponsibility.
- He may be appointed either by the founder during his life time or through his wasiyyah or by Qadi (Judge).
- He may specify a person (s) who shall be entitled to be appointed as Mutawalli after him.
It is possible for the founder (waqif) to declare himself as the first mutawalli. He may also appoint another as a mutawalli. The founder may appoint, remove, and control the Mutawalli during his lifetime. He is also entitled to specify in the waqf deed, the manner, the conditions, and the period, for which a person or a group of persons are appointed as a mutawalli. He may also specify a person or a group of persons who shall be entitled to appoint mutawalli. The waqif also has the power to designate a successor to the mutawalli. Otherwise a mutawalli would be appointed by a qadhi. It is also possible to have a committee entrusted with the administration of the waqf.
- He can not give up without permission of Qadhi.
Waqf is considered a juristic person. It is represented by the administrator (mutawalli) who is merely a manager of the waqf and not its owner. The mutawalli represents the waqf both as a plaintiff and as a defendant. His duty is to do everything necessary and proper for the protection of the waqf property and for its administration. A mutawalli is considered an assistant to the waqif and is appointed to carry on the management of the waqf for the benefit of those in whose favour the waqf has been created. He is responsible for the distribution of proceeds of the waqf amongst the beneficiaries.
The waqif may authorize the mutawalli and his successors to take a fixed remuneration out of the income of the waqf property. If no remuneration has been fixed in the waqf deed, the court may on the application of the mutawalli fix his remuneration and authorizes him to realize the same out of the income of the waqf property.
Limitations of a Mutawalli’s Power
A mutawalli can do everything which is necessary and reasonable for the protection and administration of the waqf property. He has the power to manage and administer the waqf property. A Mutawalli is not allowed to do the following without permission of the court:
- To sell, mortgage or change the ownership of waqf property without permission of the court.
- To transfer his duties, functions and powers to another person and make him the trustee.
- To lease the waqf property for more than one year in the case of non-agricultural land, and for more than three years in the case of agricultural land.
- To borrow money for spending on beneficiaries. He may borrow with permission of the court to spend on repairing the waqf property.
- The court may remove the mutawalli if found negligent, careless or irresponsible.
Maintenance of Waqf Property
- When it comes to maintenance a Mutawalli is not allowed to take a loan for renovation of the waqf property except with the permission of the court and should be returned from the net income of waqf.
- However, he may suggest a better business plan.
Ex: If an agricultural land is made waqf and later it is found that if houses are built, it may generate more income, the mutawalli has the right, with the permission of the court and the approval of the beneficiaries, to build houses over the same land, and to raise money for its construction.
- Neither he nor his relatives are allowed to rent it unless if the court approves.
No interference of beneficiaries in waqf business is tolerated. It is solely done by Mutawalli. Ex: Rent collection.
The right of the beneficiaries is created in waqf’s net income after defraying all the necessary expenses including the zakat, and repairs of the building.
Savings from the waqf of a certain property may be used to buy other properties. However, these other properties are not considered as waqf property and may be sold when the need arises to meet other expenses of the waqf.
It is the duty of the mutawalli to keep the waqf property in good condition. If renovation of the waqf property cannot be done without incurring debt, he may borrow for that purpose if permission is given by the court. The debt would be repaid from the income of the waqf property.
A mutawalli cannot incur debt for the waqf property. He may do so only with the permission of the court.
A mutawalli has the right to rent out to others the waqf’s shops, gardens, houses, or other estates or to cultivate the waqf lands, etc. in accordance with the conditions laid down by the waqif. The mutawallÊ, and not the beneficiaries, has the right to collect the rent or other income of the waqf property.
If waqf is created for a charitable purpose and if an excess of its income after it has been spent on that purpose accumulates, it shall be valid for the mutawalli to spend it on similar matters of general welfare such as for the welfare of a group of other poor people.
If waqf’s purpose is fulfilled then the extra money can be used to buy other properties, and the latter may be sold in the future if needed. The objective needs to be seen. When there is a need for change, the waqf can be converted. Such happened in the caliphate of Umar. A masjid is waqf by default. Umar moved the masjid to a strategic position and established a souq (market) instead at that place. Legal justification and permission from the court needs to be taken. If no need arises, then the waqf cannot be changed and the original stipulation needs to be followed.
Another example is the Kabah – Kabah is a waqf. But we learn from the hadith of Aisha that the Prophet ﷺ spoke about returning it upon the foundation laid down originally by Ibrahim had the faith of the people been strong. Later on Abdullah Ibn Zubair did exactly that. After him the other rulers again brought it back to the design of the Quraysh. Imam Malik stepped in to put a stop to the continuous demolishment and reconstruction as per the whims of every new government.
Development of Waqf
Development of waqf means “every kind of construction activity undertaken to expand and enlarge, rebuild, or improvise an existing waqf property, so as to generate additional revenue for the socio-economic and educational betterment of the Muslim community.”
Development work may include construction of commercial complexes like shopping centres, marriage halls, hostels, housing complexes, etc. in order to generate additional revenue. Waqf institution may also need technical expertise in order to develop waqf properties. A feasibility study, for instance, is needed to find out the viability of the project, to prepare cost estimation, profit and investment ratio, etc.
Development of waqf can be made from waqf funds or from the finances which could be raised on the security of the waqf properties. Any financing mode used for the development of waqf property should be in conformity with the Shariah. It should be free from riba, gharar, and any other elements prohibited by Shariah.
The ownership of waqf property is vested in Allah. As such no one is allowed to acquire waqf property. However, a financier has a right to acquire a proprietary right in the property developed with his funds. It is therefore not easy to strike a balance between these conflicting arguments. A mode of financing that may strike a balance between those conflicting interests will be appropriate for the development of waqf property.
There are many ways that could be used in order to develop waqf. The following are a few of them:
This is a loan taken for a dilapidated waqf property where the reconstructed Waqf property is rented out to the lender until the loan is fully paid plus some profit. This is not allowed and is not really even applicable today.
Hukr – Monopoly or Exclusivity
This is a lump sum rental paid in advance which is used for Waqf purpose (renovation of other Waqf properties). It is usually rented for a long period of time.
Mursad and Hukr are both meant to protect and maintain the waqf property rather than to increase its income. This rent was used for the repair and improvement of the property, and a small portion of rent was payable annually. The location prices might hike and the contract has already been concluded. This is also not applicable or allowed today.
In both mursad loan and hukr the waqf property was leased out for an exceedingly long period of time with an aim more to protect and maintain it rather than to increase its income. Mursad and Hukr were abolished in several Arab countries as they were used to convert waqf properties into private properties.
When you see the letters ا – س – ت it is for a request.
An Islamic bank enters into a contract of Isitisna with the waqf institution whereby the bank undertakes to develop a waqf property. The bank may engage a developer who is an expert in the field to undertake the work which is an example of parallel Istisna. It shouldn’t be a sale contract.
Ex: The bank undertakes to construct a building on a waqf land. The bank may sub-contract the actual construction work to a construction company by entering into another Istisna contract.
In this situation the waqf institution together with the bank will both sign a partnership contract (Musharakah Mutanaqisah), where the bank receives the agreed upon share of the profit.
The shares of the partners are specified in the Musharakah capital and in profit and loss. Both the bank and the waqf project will receive the agreed upon share of the profit. Once the project is completed the equity share of the bank is gradually reduced. The bank sells its share to the waqf through a separate contract of sale. Consequently, its share of the profit is also reduced. Eventually the waqf is made the full owner of the project.
Donation money can be used to pay the efforts of the ones who is making the collection. The mutawalli can also be paid from the waqf money.
If any, the compensation for the waqf should be done using the market price and not the government stipulated price.
If an oath is broken:
• Feed 10 people.
• Clothe 10 people.
• Free 1 slave.
If this cannot be done, only then should a person fast for 3 days continuously as expiation.
There are 4 things that the Shariah has left to/focuses on for rulings, the culture and traditions of the society:
- Marriage Issues
- Menstruation (One madhab alone can have 8 opinions)
People waste money in Umrah and Hajj on dhikr books to be chanted by the groups there. When they don’t even understand what is being said. We go there after so many years and we have such a brilliant opportunity at our hands. Allah has left the doors open for us so we can ask him for anything our heart desires in any language, but we close the doors ourselves.
In a khula, the woman pays back the mahr and then can ask for a divorce. The root is gone but the branches remain. The hikmah that can be said in returning the mahr is such that the marriage is kept for longer as paying back the mahr is not easy or to compensate the husband.
If the man says khulu granted but the woman never asked for it or rejected it – Even then the divorce is initiated and the rope of marriage is cut. Khulu becomes like talaq. That is why such matters shouldn’t be taken lightly at all and never joked about.
Yahya related to me from Malik from Abd ar-Rahman ibn AbiSasaca that he had heard that Amr Ibn al-Jamuh al-Ansari and Abdullah Ibn Umar al-Ansari, both of the tribe of Banu Salami, had their grave uncovered by a flood. Their grave was part of what was left after the flood. They were in the same grave, and they were among those martyred at Uhud. They were dug up so that they might be moved. They were found unchanged. It was as if they had died only the day before. One of them had been wounded, and he had put his hand over his wound and had been buried like that. His hand was pulled away from his wound and released, and it returned to where it had been. It was forty-six years between Uhud and the day they were dug up.
Malik said, “There is no harm in burying two or three men in the same Grave due to necessity. The oldest one is put next to the qibla.” (Malik’s Muwatta – Book #21, Hadith #21.20.50)
Note: These are notes and points transcribed from Sheikh Ibrahim’s regular classes on Waqf in the Kulliyah of Economics, International Islamic University Malaysia.
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