Legal principles of Waqf in Pakistan (Legal Advice Series 10)

This article looks at some recent cases regarding the area of Waqf, which is, an important social institution of Islam. It denotes a permanent dedication by a Muslim of some specific property for religious and pious purpose. Every Muslim of sound mind may dedicate his property by way of Waqf. It may be made verbally or in writing.

The Waqf Act 1954 reads as follows;
“According to Sec. 3(i) Waqf means the permanent dedication by a person professing Islam of any moveable and immovable property for any purpose recognized by the Muslim law as pious, religious or charitable.”

 

As per the tradition from Abu Hanifa ;

‘Waqf is the detention of a specific thing in the ownership of the Waqf or appropriator, and the devoting or appropriator’s of its profits or usufruct in charity on the poor or other good objects.”

The person who creates Waqf is called waif and should posses the following attributes

  • Waqif must profess Islam.
    (ii) Waqif may be a male or female.
    (iii) Waqif must be sound mind.
    (iv) Waqif must be the owner of the property.
    (v) Waqfi must be of age of the majority.A waqf may be created in the following ways:
    (i) By a dedication in which case the waqf comes into existence as soon as it is completely made.
    (ii) By means of a will.
    (iii) During illness.
    (iv) Waqf by user.
    Completion of waqf:
    Under Sunni law:
    A waqf is completed by mere declaration of endowment by the owner.
    Under Shia law:
    A waqf is not completed unless possession of the waqf property is given to either mutawalli or the first beneficiary.

A Waqf can be made in the favour of:
(i) the waqif himself.
(ii) The descendants of waqif.
(iii) The family of waqif.
(iv) Public

A Mutawalli is the superintendent or Manager of the waqf property and can be appointed by the waqif, the executor or through order of Court. As per the case of Kanib Begum V’S Akbar Jan 1984 SCMR 149 the waqf is not completed unless besides a declaration of waqf a Mutawalli is appointed by the owner and possession of endowed property is delivered to him.

The mutawalli should have the following attributes:
(i) Should be Muslim,
(ii) Of Sound mind.
(iii) Of age of majority.

A waqif may constitute himself the first mutawalli. The transfer of possession in such case is not necessary to be transferred. As per the case of Khan Muhammad V/S Luqman 1993 CLC 1552 no writing is required to make a will valid, and no particular form even of verbal declaration as long as intention of the testator is sufficiently ascertained. The Mutawali can be removed by the curt from his office on the following grounds.
(i) Corruption.
(ii) Mental disorder.

Under Pakistani Law, a Waqf can be void for uncertainty:
The object of waqf must be certain. If there is element of uncertainty in the object of waqf. it will be void. As per the case of Ghulam Shabbir V/S Mst Nur Begum P. L. D. 1977 S 75 when a charitable intention was clearly expressed in the instrument of waqf mere vagueness or waqf mere vagueness or uncertainty in the instrument can not lead to failure of waqf.

Below are a few cases and commentaries on the law of Waqf in Pakistan.If you need to know more about the law in this respect and it affects your legal situation, we will be happy to help.

Legality of Waqf–It is clear from perusal of waqfnama that waqif during her life time reserved income for herself, but after her death 10% was to be spent on maintenance of mosque while 90% was to be used for benefit of patients in Mayo Hospital–Waqif was to continue as Mutawalli and after her death property was to vest in Auqaf Department–Now key words in definition are “benefit is for time being claimable for himself’–Use of words, for the time being makes it clear that it was not applicable in future–In present case benefits are not available now to any member of her family or descents–Whole income is now to be used for religious and charitable purposes therefore–Proviso is not attracted–Held: Waqif is fairly and squarely covered by Explanation-6. PLJ 1996 Lahore 1505

Agricultural land–Assumption of administration, control and management of–Notification of–Petition for declaration that property was not Waqf property–Dismissal of petition by District Judge but High Court setting it aside–Challenge to–Whether there was any dedication by owner of property–Question of–Entries in revenue record do not demonstrate an uninterrupted devolution of property from Guru to Chella–Last non-Muslim holder of property died intestate and normally escheat property should have reverted to State, but Revenue Officer alienated it in favour of Khanqah Sakhi Sarwar–Held: There was absolutely no dedication by owner of property irrespective of his faith–Held further: No Waqf under Islamic Law came into existence- PLJ 1991 SC 287+PLD 1969 SC 223 ref.

Waqf by virtue of dedication having its roots in past immemorial—Waqf created through registered deed containing its purpose and specifying limits and conditions for administration of Waqf property—Distinction—Word “limits” as used in S. 11(1)(b) of Punjab Waqf Properties Ordinance, 1979 would mean condition—Waqf by virtue of dedication having its roots in past immemorial would be taken to the Waqf on basis of past practice, tradition and conduct—Conditions in registered Waqf deed would constitute conditions or limits as spelled out from S.11(b) of the Ordinance—Such conditions or limits, if in conflict with notification under S. 7 of the ordinance, would prevail and notification would become liable to be struck down through declaration as contemplated in S. 11(b) thereof. 2004 M L D 532

Property–Taking over administrative control and management of–Notification of--Whether property could be denotified in public interest–Question of–Minister has no authority under Ordinance to issue direction for denotification of property taken over and assumed by Auqaf Department–Public interest does not appear anywhere in preamble and Section 7 of Ordinance under which properties are taken over–It is sole discretion of Chief Administrator, Auqaf to assume administrative control, management and maintenance of Waqf property–Held: Public interest is that it should be maintained, for same purpose for which property was dedicated, by Auqaf Department rather than making it over to persons who do not have a right to possess such property. PLJ 1991 Lahore 122

 There was no necessity to give date of waqfnama in notification and it was sufficient to describe property in schedule–This has been done–Waqif, in waqfnama has clearly provided that after her death Waqf shall be administered by Auqaf Department–Held: Notification of take over was mere formality property vested in Auqaf Department the moment waqif died. PLJ 1996 Lahore 1505

 

Onus to prove–Onus was on respondent No. 1, who has neither produced document nor examined scribe and marginal witnesses nor sent for record of sub-registrar as to registration of this document nor got signatures of waqif compared/examined by Hand-writing expert to prove that document is fake and forged–Statements of his witnesses are of general nature besides fact that they were not related to late waqif–Signatures of Advocate on waqfnama show that whatever was done by waqif was done voluntarily and she was assisted by experienced lawyer in preparation of waqfnama–Held: It can safely be recorded that there is no evidence to prove that Waqf deed is forged and fake document–Appeal accepted. PLJ 1996 Lahore 1074

 

Once Waqf is created then property vests in Almighty Allah and ex-owner by his own act or deed cannot convert same into his personal property–Waqfnama is dated 11.1.1984 and same was registered on 5.2.1984–Usufruct of property during her life time was reserved by waqif and thus she continued in possession–Respondent No. 1, has mainly relied on documents which were not admissible in evidence–Neither scribe nor executant nor any of witnesses was produced to prove. PLJ 1996 Lahore 1074

 

Agricultural land–Assumption of administration, control and management of–Notification of–Petition for declaration that property was not Waqf property–Dismissal of petition by District Judge but High Court setting it aside–Challenge to–Whether there was any dedication by owner of property–Question of–Entries in revenue record do not demonstrate an uninterrupted devolution of property from Guru to Chella–Last non-Muslim holder of property died escheat and normally escheat property should have reverted to State, but Revenue Officer alienated it in favour of Khanqah Sakhi Sarwar–Held: There was absolutely no dedication by owner of property irrespective of his faith–Held further: No Waqf under Islamic Law came into existence- PLJ 1991 SC 287&PLD 1969 SC 223 ref.

Person claiming to be son of waqif claimed that waqfnama was a forged and fake document–Onus to prove–Onus was on respondent No. 1, who has neither produced document nor examined scribe and marginal witnesses nor sent for record of sub-registrar as to registration of this document nor got signatures of waqif compared/examined by Hand-writing expert to prove that document is fake and forged–Statements of his witnesses are of general nature besides fact that they were not related to late waqif–Signatures of Advocate on waqfnama show that whatever was done by waqif was done voluntarily and she was assisted by experienced lawyer in preparation of waqfnama–Held: It can safely be recorded that there is no evidence to prove that Waqf deed is forged and fake document–Appeal accepted PLJ 1996 Lahore 1505

 

Conduct of Waqf–It’s effect--Once Waqf is created then property vests in Almighty Allah and el-owner by his own act or deed cannot convert same into his personal property–Waqfnama is dated 11.1.1984 and same was registered on 5.2.1984–Usufruct of property during her life time was reserved by waqif and thus she continued in possession–Respondent No. 1, has mainly relied on documents which were not admissible in evidence–Neither scribe nor executant nor any of witnesses was produced to prove. PLJ 1996 Lahore 1505

 Some Islamic Banking Perspectives on Cash Waqf (Supplementary Information)

  • بسم الله الرحمن الرحيم

   (إذا مات الانسان انقطع عمله إلا من ثلاث؛ صدقة جارية

   وعلم يُنتفع به وولد صالح يدعو له).

   The Prophet (s) said: When a man dies his acts come to an end, except three things, recurring charity, knowledge (by which people benefit), and pious offspring, who pray for him.

 

 

Definition of Waqf

Waqf, habs and tasbil all mean ‘to stop, to prevent, to restrain’ i.e. al-habs wa al-man‘, all mean devoting in the way of Allah (fi sabil Allah).

“ The confinement of a private property, movable or immovable, from the ownership and the dedication of its usufruct in perpetuity to the welfare of society”  

Legitimacy of Waqf & Cash-Waqf

All schools of fiqh Hanafi, Maliki, Shafe‘i & Hanbali agreed upon immovable and movable properties as a subject matter of waqf including the creation of “cash waqf”.

  • “By no means shall ye attain righteousness unless ye give (freely) of that which ye love; and whatever ye give, of a truth God knoweth it well (surah al-’imran 3:92)
  • “it is not righteousness that ye turn your faces towars East or West, but it is righteousness to believe in Allah, and the Last Day, and the Angels, and the Book, and the Messengers, to spend of yoru substance out of love for Him, for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves, to be steadfast in prayer and practise regular charity.”(Surah al-Baqarah 2:177)

Legitimacy of Waqf & Cash-Waqf

  • Evidence from the Sunnah

“Abu Hurairah (Allah be pleased with him) reported Allah’s Messenger (pbuh) as saying: when a man dies, his acts comes to an end, except three things, recurring charity, or knowledge (by which people benefit), or pious offspring, who prays for him. (Sahih Muslim)

Majority of Muslim jurists understood that recurring charity serves as the basis of waqf.

  • Conditions for Creating Waqf

1.‘aqil (in full possession of his physical and mental faculties),

2.baligh (adult),

3.. hurr (a free man/women),

4.must own the property (immovable or movable) able to transfer the property ownership

Five conditions for Validity of Waqf

1.aqil, baligh and hurr

2.Property can either be movable or immovable

  1. Appoint mutawalli (trustee) either himself or someone

7.Beneficiaries must be specified by the founder in his waqfiah (waqf deed). It can be relatives of the founder, public individuals or organization like building mosques

  1. Waqf creation can be verbal or written But preference would be written as proper maintenance of records and management
  • Legal Condition for a Non-MuslimThe Shafie School permitted the creation of waqf from a non -Muslim even if it is for the benefit of a Mosque. He based his opinion on the following hadith :

عن انس بن مالك رضي الله عنه قال: قال رسول الله (ص) ” ان الله لا يظلم مومنا حسنة يعطى بها في الدنيا ويجزى بها في الاخرة

واما الكافر فيطعم بحسنات ما عمل بها لله في الدنيا حتى اذا افضى الى الاخرة لم يكن له حسنة يجزى بها”

 

Mixing of Cash Waqf

Fatwa from Kuwait Awqaf Public Foundation (web-site)

“It is permissible to mix the cash-waqf of a non-Muslim with the cash-waqf of a Muslim as long as it satisfies with the legal condition for the creation of waqf”

  • Classification of Waqf Property

  • Key Restrictions of Waqf
  • Irrevocability – important feature of waqf as there is a consensus among Muslim jurists that the founder cannot revoke the dedication if the property has already been declared as waqf.
  • Perpetuity – waqf must be perpetual once it is created ensure no confiscation of the property either by government or by individual or institutions
  • Inalienability – as property for waqf is transferred to Allah (swt) and it is in a form of frozen property and cannot be subjected to any sale, disposition, mortgage, gift, inheritance or any alienation.
  • Ten Stipulations
    for the Creation of Waqf

Modes of Investing and Financing

 

al-hikr (long lease right) m renting (jewelry, weapons), al-ijaratain , exchange (crops), (the lease with dual payment),al-istibdal (substitution), mudharabah (cash money), Al-mursad (advanced lump sum is paid by the lessee to be credited by the waqf department toward the agreed upon periodical rent applicable for reconstruction.

Administration of Waqf as highlighted in the Hadith

The Hadith narrated ibn ‘Umar (pbuh): In the lifetime of Allah’s Messenger (pbuh), ‘Umar gave in charity some of his property, a garden of date palms called Thamgh. ‘Umar, said, “O Allah’s Messenger! I have some property which I prize highly and I want to give it in charity.”

The Prophet (pbuh) said, “Give it in charity (i.e. as an endowment) with its land and trees on the condition that the land and trees will neither be sold nor given as a present, not bequeathed, but the fruits are to be spent in charity.”

So ‘Umar gave it in charity, and it was for Allah’s Cause, the emancipation of slaves, for the poor, for guests, for travelers, and for kinsmen. The person acting as its administrator could eat from it reasonably and fairly, and could let a friend of his eat from it provided he had no intention of becoming wealthy by its means.

Hadith Main Principles

Perpetuity of the Waqf: once the property becomes a waqf it MUST NOT be sold or inherited or given away as a gift.

Beneficiaries: it is up to the founder to specify his beneficiaries, either to the public or to his family. In this hadith Caliph ‘Umar devoted it to both i.e. WAQF MUSHTARAK

Administration of the waqf: the founder himself can administer his own waqf and at the same time he can benefit from its REVENUE in a reasonable manner as long as he lives.

The last two decades witness the revival of the institution of waqf and the creation of movable waqf i.e. cash waqf in almost all Muslim countries and Muslim minority countries.

From an Islamic banking persepctive,    below are the nine  most used different cash-waqf models that have been practiced in 15 countries and in 3 international organizations.

Cash-Waqf Models

1.Waqf Shares Model

2.Waqf Takaful Model

3.Direct Model

4.Mobile Model

5.Compulsory Model

6.Corporate Cash Waqf Model

7.Deposit Product Model

8.Co-Operative Model

 

 

 

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