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Chapter One: Economic Dimension and Origins
I. Introduction
II. Economic Dimension
III. The Origins
IV. Impact on Others
Chapter Two: Functioning of the System and Judicial Problems
I. The Founders
1. The Ten Conditions
II. Beneficiaries and the Family Waqf Controversy
III. The Trustees (mutawallis)
IV. The Original Capital of the Endowment (Corpus)
Chapter Three: Cash Waqfs in the Islamic World
I. Legal Issues
1. Introduction
2. The Hanafi Position on the Waqf of Movables (Cash Waqfs)
3. The Shafi’i Position
4. The Maliki Position
5. The Hanbali Position
6. The Shi’ite Position
II. Cash Waqfs in History and Present
1. Introduction
2. Cash Waqfs in the Ottoman Economy
3. Decline of the Ottoman Cash Waqfs
4. Cash Waqfs in Syria
5. Cash Waqfs in Egypt
6. Cash Waqfs in Central Asia
7. Cash Waqfs in India
8. Cash Waqfs in Malaysia and Singapore
Chapter Four: Centralization of the Waqf System
I. Introduction
II. Centralization in the Ottoman Empire and Turkey
1. The Turkish Republic
2. Survival and Restoration of Waqfs in Turkey
III. Egypt
1. Egyptian Waqfs Under the Mamluks
2. Egyptian Waqfs Under the Ottomans
3. Crises in the Late Ottoman Era and the Republic
IV. The Sudan
V. Morocco
VI. Iran
VII. India
1. Introduction
2. Legal Issues
3. The Central Waqf Act, 1954
4. Taxation of Waqfs in India
5. The Waqf Act, 1995

VIII. Waqfs in Pakistan and Bangladesh
IX. Waqfs in Malaysia and Singapore
1. Introduction
2. Legal Issues
3. Waqf Administration in Malaysia
X. Waqfs in Philippines
XI. Conclusion
General Index

I also benefited greatly from the research papers by my students participating in the Poverty Alleviation seminar. in the same context. alone. While I am grateful to all of these colleagues. the published version of it was handed to me by the postman the day I arrived at ISTAC for my second sabbatical. had invited me to his institute and so my foremost thanks go to him. I thought this was a good sign and started my work on the present book with renewed vigour. that I had completed the first draft of my previous book A Comparative Evolution of Business Partnerships a few years ago. Malaysia. Syed Muhammad Naquib al-Attas. it is becoming habitual for me to thank Professor al-Attas. Embassy of the Islamic Republic of Iran in Kuala Lumpur. Istanbul. sent me important material concerning the well-known Vehbi Koç Foundation. it goes without saying that I. as well as Sylvia Jones who read the entire manuscript and made innumerable corrections. I am grateful to my colleagues at Bo aziçi University. Turhan Esener and Erdal Yıldırım about the Vehbi Koç Foundation as well as the drafting of the 1967 Law. I have had the opportunity to interview Rahmi Koç. and the authorities in the Endowments and Charity Affairs Organisation in Teheran. Special thanks are due to Professors Alparslan Açıkgenç. Zeti Akhtar Aziz. Cultural Attaché. I fully utilised everything ISTAC had to offer: I greatly benefited from the superb library and would like to thank particularly Haji Ali Haji Ahmad. Editorial Assistant. allowed me to interview bank officials. Iran. I would like to thank my wife. Professor Faruk Bilici of Institut National des Langues et Civilisations Orientales provided support all the way from Paris and. Royal Professor Ungku Abdul Aziz shared with me his precious time and knowledge.4 ACKNOWLEDGEMENTS This book has been written during a sabbatical leave. Professor Syed Khalid Rashid of the same university and an authority on the history of the Indian waqf system. Teoman Duralı. Malaysia introduced me to his important work on the present situation of waqf law in Malaysia. Dr. Professor Dr.E. even in the same room. and Aida Melly Tan Mutalib. Mehmet p irli. . Professor Ahmad Kazemi Moussavi played a special role in obtaining information for me on the current laws pertaining to waqfs in the Islamic Republic of Iran. Wan Mohd Nor Wan Daud (ISTAC’s Acting Deputy Director). Kitty Çizakça for reading the entire manuscript and sharing my life. together with my daughter Defne. Ali Reza Dardmand. the Founder-Director of ISTAC. the Chief Librarian. Assistant Governor of the Central Bank of Malaysia. Finally. in Kuala Lumpur. Professor Ahmad Ibrahim of the International Islamic University. Istanbul. Actually. my sister. Çi dem Ka ıtçıba ı of Koç University. Special thanks are also due to Sharifah Shifa al-Attas. for his friendly support. Bilal Ku pınar and Sabri Orman for their constant encouragement and constructive criticism. In Kuala Lumpur I found support from sources outside ISTAC as well. bear all the responsibility for any shortcomings and mistakes. I spent the first part of my sabbatical leave at the International Institute of Islamic Thought and Civilization (ISTAC) in Kuala Lumpur. By a marvellous coincidence. This was the second time Professor Dr. After having returned to Turkey. H. General Editor of ISTAC. I would like to thank. for granting me this precious opportunity. for it was in the same institute. generously gave me his time and read the part on Indian waqfs. I am grateful to all of them. Some of the papers written by these young scholars were so original and important that I have not hesitated to refer to them in this book. I was constantly encouraged and supported by my colleagues at ISTAC. Aydın Bolak.


ö and ü as in German könig and führer respectively. Although I have generally preferred for the plural. If such words. ç is pronounced ch as in church. have been kept in the latter form. excluding foreign names. waqf (and not vakıf) has been used. lengthens the vowel preceding it. Turkish words. Thus pasha (and not Pasha) has been used. LIST OF TABLES Table 1: Waqf Properties in Turkey Table 2: The Public Awqaf in Sudan Table 3: Sudanese Awqaf in Eight States Table 4: Number of Waqfs in India Table 5: Increase in Real Total Revenue for the Awqaf Department Punjab . are italicised except the word waqf and its plural awqaf. even for words. These words appear so frequently throughout the text that it has been decided not to italicise them. For those who are unfamiliar with the pronunciation of modern Turkish spelling. and is pronounced as in sh in shall. y sounds like the u in radium. g is pronounced as in the word goat. waqfs rather than the Arabic plural awqaf. have become part of English in their Arabic versions. I have occasionally used the latter in order to avoid repetition. Thus. the following rudimentary rules (according to Geffery Lewis’ grammar) may be of some help: c is pronounced j as in jam. however. which have become anglicised. then their Arabic transliteration has been preferred. which originated in Arabic or Persian.6 NOTES ON TRANSLITERATION AND PRONUNCIATION All foreign words. Most transliterations follow modern Turkish spelling.


whereby a privately owned property. Yet. municipal. ceteris paribus. Economic Dimension Although this book will deal primarily with the economic history of the waqf system. but in Turkey. consequently reining in a basic impediment to private investment and growth. The word waqf and its plural form awqaf are derived from the Arabic root verb waqafa. Consequently. Indeed. of course. stands out as one of the greatest achievements of Islamic civilization. one of the rare countries in the Islamic world. which means to cause a thing to stop and stand still. which was not colonised. the history of waqfs is a turbulent one. corpus. with slight variations. This paradox. Whereas the latter term is used primarily in North Africa. Despite these overwhelming achievements. For. a fact which pinpoints. renewal and prosperity once again prevailed. from the Atlantic to the Pacific. have historically been provided at no cost whatsoever to the government. did the waqfs experience the universal and deliberate destruction that was inflicted upon them during the nineteenth and twentieth centuries. the waqf system can contribute significantly towards that ultimate goal of so many modern economists: massive reduction in government expenditure. it also achieves another modern economic goal. Nowhere in this long history of fluctuations. the former is known. it is appropriate to point out briefly the relevance of the waqf system for modern Islamic societies. The waqf could fulfil these above-mentioned functions by voluntary donations made by the well to do. magnificent works of architecture as well as a wealth of services vitally important to the society have been financed and maintained for centuries through this system. education. etc. which leads to a smaller budget deficit. a better distribution of income in the economy. they experienced dramatic ups and downs: the period of establishment and growth was often followed by one of decline and neglect until with a new state emerging. At this point another extremely important function of the waqf becomes apparent: not only does it help reduce government expenditure and consequently the rate of interest and pave the way for growth. Thus. to western imperialism as the culprit.8 CHAPTER ONE: ECONOMIC DIMENSION AND ORIGINS I. this institution. II.. among other things. Consequently. For centuries the fate of these institutions was closely linked to the fates of the states under which they functioned. 1995: 260). in the rest of the Islamic world. A second meaning is simply philanthropic foundations. this improvement in the distribution of income would be achieved essentially through voluntary donations. the greatest destruction took place not in a region colonised by the great powers. However defined. privately accumulated capital is voluntarily endowed to finance all sorts of social services to the society. economists looking at the waqf system would be perplexed by the fact that a myriad of essential services such as health. In this process taxation is definitively assigned a secondary role. All over the vast Islamic world. is endowed for a charitable purpose in perpetuity and the revenue generated is spent for this purpose. Therefore. Introduction Philanthropic foundations are known in the Islamic world as waqf or habs. lower taxes would have a positive impact on aggregate production while at the . There are further implications: a lower tax burden means an enhancement in the consumers’ and producers’ surpluses and a diminution in the “dead-weight cost of the tax”. It has even been argued that many waqfs had survived for considerably longer than half a millennium and some even for more than a millennium (Crecelius. which in turn lowers the need for government borrowing thus curbing the “crowding-out effect” and leads to a reduction in the rate of interest. will be addressed later. however.

same time reducing costs. Prices to the consumers would come down and pave the way for
non-inflationary growth (Wanniski, 1975: 49-50; The Economist, September 20th, 1997: 20).
Moreover, the waqf definitely solves the problem of the under supply of public
goods, so often observed in conventional economies. This point needs to be elaborated. In
this context we must first of all note that the services offered by the waqfs constitute public
goods, the consumption of which is non-rivalrous and the provision thereof non-excludable.
As is well known, the standard economic theory envisages that since, as rational
individuals, consumers of public goods tend to free ride, they fail to contribute to the costs of
creating these goods. Consequently, where rational behaviour prevails, public goods would
be under produced in conventional economies (Bates, 1995: 30).
As far as the Islamic world is concerned, there is much evidence to the contrary, i.e.,
to the ubiquitousness of the public goods supplied by the waqfs. Therefore, it seems more
appropriate to talk about an excess supply of public goods rather than their scarcity. In an
Islamic economy this excess supply, not scarcity, may emerge as the basic problem. It should
be emphasised at this point that this observation is not confined to past history but is valid for
all times. Indeed, there is no justification for the assumption that modern Muslims would be
less interested in charity then their forefathers. Given the right conditions, modern Muslims
have demonstrated that they are just as keen as their forefathers to establish waqfs.1
All the social and economic contributions of the waqf system mentioned above, are
based upon the crucial assumption that the waqfs are managed by prudent and efficient
trustees. History, unfortunately, provides evidence that this was not often the case. Archives,
indeed, are full of documents indicating the corruption of waqf officials. In short, there is a
serious agency problem associated with the waqf system. This constitutes one of the greatest
challenges to modern Islamic economists interested in revitalising this system.
The waqf system contributed significantly to another major economic problem:
employment. The ratio of persons employed by the waqf system to those employed directly
by the state fluctuated in Turkey as follows: at the turn of the century 8.23%, in 1931
12.68%, and in the 1990s 0.76%. Consequently, the waqf system appears to have ceased
being a major source of employment in the Turkish Republic. Although these figures do not
include the 30,000 various self-employed retailers and small-scale producers using the waqf
premises and the tens of thousands of individuals employed by the new waqfs established
according to the secular Turkish Civil Law (Bilici, 1992 and 1993), it is clear that the overall
contribution of the waqf system to employment has fallen significantly. This is in sharp
contrast with the West where the non-profit sector, which includes trusts and foundations,
Western equivalents of waqfs, accounted for an average of 13% of the net new jobs added
between 1980 and 1990 in France, Germany and the United States. In the United States the
non-profit sector accounts for 6.9% of total employment (Salamon and Anheier, 1996: xviii).
The decline in the contribution of the waqf system to employment reflects the overall
decline of the system in Turkey prior to the 1967 Act. This decline was a direct outcome of a
deliberate state policy. To understand this dramatic phenomenon we must first of all analyse
the forces, which prompted the state to attack the waqf system.
It might be appropriate to start with a few questions:
a. Why does the state feel the need to centralise and even to destroy the
waqf system? This question assumes great importance if the waqfs are
to avoid the wrath of the state in the future.
b. Since even the state had to obey some rules, what were the legal premises behind the
state’s interference?
c. Was the process of centralization and the pursuant destruction linear or cyclical?

The latest evidence from Turkey concerning the dynamic expansion in the number of
newly established waqfs confirms this. For details see below.

These questions move us from the realm of economics into that of history and for
that, we need to go to the very origins.
III. The Origins
It is well known that philanthropic endowments have a history considerably older
than Islam and it is also very likely that Islam may have been influenced by earlier
civilisations. Ancient Mesopotamia, Greece, Rome as well as the pre-Islamic Arabs certainly
knew of such endowments (Laum, 1914; Rockwell, 1909; Rostowzew; Othman, 1982;
Duncan-Jones, 1982). The extent to which Islamic waqfs were influenced by these ancient
institutions and the extent to which they were the product of the genius of Islam, is a question
that is still not resolved. Roman, Byzantine, but also Mesopotamian, Sasanid, Jewish and
Buddhist influences have been accepted as plausible (Köprülü, 1942: 10-11; Coing, 1981:
272-274). Latest research is more decisive and points to the Sasanid law as the most likely
source (Arjomand, 1998: 110-111). Thus, we have a fairly clear situation: Muslims were
urged strongly to endow their assets in the service of mankind and they knew how to do it
from the earlier civilisations, which had dominated the region in which they had found
themselves (Crecelius, 1995: 249).
At this point the reader may be impressed by the ability of Islam to borrow from
other civilisations. This ability may well have originated with a tradition attributed to Prophet
“Abu Hurairah reported Allah’s messenger as saying: A word of wisdom is the lost
property of a believer, he can take it wherever he finds it, because he is more entitled
to it.” (al-Tirmidhi, 1992: 2687)
Although waqf is not specifically mentioned therein, the concept of wealth redistribution is strongly emphasised in the Qur’an (2:215, 264, 270, 280). Moreover, there is
definitive evidence that many great personalities of Islam had endowed their properties for
charitable purposes. A hadith narrated again by Abu Hurairah most probably accounts for the
origin of this institution in the world of Islam:
“Abu Hurairah reported Allah’s messenger as saying: When a man dies, all his acts
come to an end, but three: recurring charity, or knowledge (by which people benefit),
or a pious offspring, who prays for him” (Muslim, 1992: bab3, hadith 14).
Although the classical sources have, traditionally, taken into consideration each one
of these good deeds, sawabs, separately, we prefer to combine them. For it will be argued
here that such a combination constitutes the very essence of the Islamic waqfs. Thus,
Muslims needed an institution that would enable them to perform all three of these good
deeds. The waqf fitted the criteria. It indeed, assures ongoing, recurring charity for many
years, even centuries, after the death of the founder; it can finance scholars whose lasting
works will benefit mankind for a long period and the sawabs, good deeds, that accrue to them
would be shared by the waqf ’s founder who had provided for their sustenance in the first
place. Finally the management of the waqf can be entrusted to the offspring of the founder so
that while, on the one hand, careful and loyal management is assured, on the other, the
offspring would pray for the deceased since, thanks to his waqf, he or she is not destitute.
Although Muslims may have been encouraged to borrow ideas from other
civilisations without any hesitation, as the aforementioned hadith suggests, the actual process
of borrowing was not simple. For, whatever institution was borrowed, it had to be moulded
and re-shaped to conform to the basic teachings of Islam. There were substantial differences
in the opinions of the early great jurists concerning the structure and judicial framework of
the waqf. While Imam Shafi’i had objections to certain aspects of the institution, among the

Hanafis, Imam Abu Yusuf differed from his mentors. Without going into details, it can be
argued, in general, that Imams Shafi`i and Abu Yusuf wanted to expand the waqfs and
therefore facilitated their foundation, but others preferred to restrict this institution.
The basic problem pertained to the Islamic law of inheritance: since a founder could
entrust the management of his waqf to any one of his offspring and thus initiate a de facto
primogeniture, this could violate the basic principles of Islamic law, which promulgates a
distribution of property among all the inheritors. Consequently, most of the jurists found it
very difficult to sanction the waqfs.
But for reasons that will be explained below, the Muslim society needed this
institution. So the great jurists ended up tolerating it. The turning point came when Abu
Yusuf observed how important these institutions had become during his pilgrimage and
introduced new legislature, which facilitated the establishment of foundations. The institution
of waqf thus emerged after the death of the Prophet and its legal structure was firmly
established during the second half of the second century (Köprülü, 1942: 4).
At this point we need to explain how a system, which did not originate in Islam, not
specifically mentioned in the Qur’an and objected to initially by many of the eminent jurists,
was embraced so enthusiastically and developed to such a phenomenal dimension. There can
be two explanations, historical and economic. Let us first consider the former: the great
Islamic conquests had enriched the Muslim world beyond any imagination achieving the
economic preconditions for the emergence of this institution. We have to remember,
moreover, the emphasis attached in the prophetic traditions on the importance of doing good
and charitable deeds. Since wealth in Islam is considered an important source of trial, the
natural tendency among the Muslim rich to do good deeds as a preparation for the hereafter
can be easily understood. Thus, it is for these historical reasons that although not mentioned
in the Qur’an specifically, and objected to initially, the waqf has been embraced so
But this is not all; economic theory also has its own explanation of why the waqf
system was needed. Indeed, according to the theory there were compelling reasons for the
waqf system to emerge. We have seen above that under the conditions of rational behaviour,
public goods would tend to be under produced. This dilemma pertaining to the creation of
public goods promotes a demand for the creation of non-market institutions.
This “demand for the creation of non-market institutions” may also explain why the
waqf became so popular and widespread in most of the Muslim world. The theory explains,
furthermore, the universality of the waqfs or waqf-like non-market institutions. After all, as
briefly mentioned above, endowments are known not only in the Muslim world but also in
the West and other great civilisations (Salamon and Anheier, 1997; Geremek 1994; Coing,
1981, Crecelius, 1995). In the remainder of this chapter, evidence for this argument
pertaining to three cases: England, Spain and South Africa, will be provided

IV. Impact on Others
Having lost all contact with Rome, Medieval Europe had to become acquainted with
philanthropic endowments through the Islamic waqf system. This is attested to by Monica
Gaudiosi, who has initiated an inquiry regarding the origins of English trusts (Gaudiosi,
1988). Gaudiosi first puts to test the conventional wisdom prevailing among the European
scholarship that the origin of the English trust rests with the Roman or Germanic laws. She
challenges this view by arguing that the trusts developed from a medieval English device for
holding land known as the use.
Furthermore, considering the Roman fideicommissum first, she reminds us that the
linkage between this institution and the English trusts had already been dismissed by the
nineteenth century on the grounds that not only were the similarities between the two
institutions merely superficial, but also, whereas the Roman device was purely testamentary,
the early English use seldom arose by will.

In this rejection. Ottoman documents indicate there were many waqfs endowed for a wide range of purposes some of which can hardly be considered as strictly charitable. In reality. Indeed. b. is striking. d. Jerusalem was a particularly significant point of contact between England and the Muslim world because of the presence there of the Orders of the Templars or the Hospitalers. the transmission of legal institutions from the Islamic world to England has already been demonstrated. spent the years 1219 and 1220 in Islamic territory. detailed knowledge about the way the institution to be borrowed functions. however. the settlement of the usufruct of the endowed property on successive generations in perpetuity for a charitable purpose was an institution. More importantly.12 Next she challenges the notion that the origin of the English trusts can be traced back to Lex Salica. But this difference much emphasised by Cattan. It has been argued. The corpus becomes inalienable. property is reserved and the usufruct is appropriated for the benefits of specific individuals or for a general charitable purpose. Consequently. 1996). himself. 1955: 212). It must be remembered. Charitability is a conditio sine qua non for all waqfs including the family endowments (Cattan. contact. Another alleged difference pertains to the duration: the waqf must be perpetual. except a charitable one. c. which was created by the classical Muslim jurists of the first three centuries of Islam. 1955: 205). It has been argued that a major difference between the two systems exists: whereas in the English case. the separation of ownership from usufruct was not a new legal concept. The main function of both is to administer the property for the benefit not of themselves but for the beneficiaries as specified by the trust or waqf. While all of the above provide substantial and convincing evidence for the argument that Islamic waqfs constituted the origins of the English trusts. etc. the trustee is no more the owner of a trust than the mutawalli could be the owner of a waqf. Recent research has. that there is one very important difference: purpose of the waqf or trust.e. Whereas. i. in the Islamic waqf the trustee (mutawalli) is not considered to be the owner. already existed. There is no evidence that such a complex system of appropriating the usufruct to varying and successive beneficiaries existed prior to Islam (Cattan.. a waqf. some subtle ritualistic differences between the two systems are also acknowledged. cannot be perpetual. The basic points of this argument are as follows: a. the legal code of the Salian Franks. This is then followed by a vigorous argument about why Islamic waqfs constitute the origin of the English trusts. that in England the trusts could originally be made in perpetuity until the rule against perpetuities came into force. Since it is well known that these orders had been influential in the development of the Inns of Court in fourteenth century England. Saint Francis. a German tribe. the Franciscan Friars who are believed to have introduced the use in England were active in the Middle East. by contrast. f. .. however. similarity between Islamic waqfs and English trusts. while a trust. the trustee is considered to be the owner of the trust. g. all the conditions necessary for the transfer of waqfs. has been watered down in reality. Cattan also supports her. estates for life in favour of successive beneficiaries can be created at the will of a founder without regard to the law of inheritance or the rights of the heirs and continuity is secured by successive appointments of trustees. Under both systems. These ritualistic differences have already been very adequately explained in Jones (1980) and Hodgson (1968). shown that the transmission of legal institutions did not remain limited to the Inns of Court. moreover. The emergence of the trust coincides with a period of increased contact between Europe and the Muslim world. e. A trust may be made for any lawful objective. must be charitable. and that the bulk of the partnership law was also borrowed from the Muslims (Çizakça.

De Merton’s college went through a number of stages before it attained its status as “a watershed in the history of colleges” (Makdisi. 1984). while Edward I was on crusade in the Holy Land. The designation of certain family members as beneficiaries. this procedure is a conditio sine qua non for any classical Islamic waqf. During de Merton’s final term in office. was a thirteenth century English clergyman and government servant who three times held the powerful position of the Chancellor of England. moreover. Two years later. far away England had. would certainly have been affected as well. however. the founder of the Merton College. 1998: 115). he wielded unusual power. being described as “practically the regent of the Kingdom”. we reach the conclusion that the origin of the English trusts can almost certainly be traced back to the Islamic waqf system. Walter de Merton. The evidence presented by these two authors that the Islamic waqf system has constituted the origins of the English trusts. In the opening sentences of the statutes. the statutes could surely be accepted as a waqf instrument”. indeed. de Merton in 1262 obtained a license to vest certain properties for the support of university students. Given that the focus of de Merton’s foundation was the establishment of a college. Other evidence is provided by Santiago De Los Espanoles. If. is substantial and convincing. the final form of the 1264 Statutes of Merton College was registered. It is also telling that in the mid-thirteenth century two other colleges of Oxford were also founded as charitable trusts (Arjomand. Again. Surely. It is appropriate to include here an analysis of the 1264 Statutes of Merton College. As is well known. it is reasonable to argue that the Christian Mediterranean. which is further evidence. There appears to have been only one . This is confirmed by Gilbert who has shown that Collége des Dix-Huit established in Paris by one John of London in 1180 was strongly influenced by the waqf madrasas he had seen in Jerusalem (Arjomand. his position of authority would have involved him in relations between the Middle East and England particularly during the Crusades. Concerned with the provision of a university education for his nephews. waqf khayri. In view of everything said above. Oxford. Gaudiosi provides a host of further evidence from sumptuary regulations to the provisions allowing the beneficiaries to appoint an overseer to examine the accounts of the trustee and observes that “the structure of Merton College fulfils a number of conditions necessary for the establishment of an Islamic waqf and does not violate any of the stipulations of the Islamic waqf law”. provided by Gaudiosi. been affected to such a degree by the waqfs. 1988: 114115).13 While it is important to appreciate the ritualistic differences between the Christian and Muslim endowments. it would correspond to the charitable waqf. appears to have had an identical organisational structure to an Islamic waqf. this is another provision sanctioned by Islamic law. Oxford. the reader should not go to the other extreme and dismiss the arguments made by Gaudiosi and Cattan. It is well known that de Merton was closely associated with the New Temple which was the English headquarters of the Knights Templars who had significant contact with the Middle East and particularly with Jerusalem. a foundation established by the Crown of Castile in Rome for the welfare of the Spanish pilgrims. de Merton set forth a charitable purpose for his trust and properties for the support of that objective. would certainly conform to the traditions of the Prophet of Islam. Her conclusion is striking: “Were the Merton documents written in Arabic rather than Latin. much nearer to the Islamic world. The first condition of the trust was that any member of the founder’s family must be supported by the trust in return for appropriate service.

Property vests in Allah Mutawalli only a manager Perpetual. obviously. Supportive evidence will be presented below. Revocable Corpus is immobilised Usufruct is used for the objective stated in the deed AMAL’s comparison gives us the impression that the trust appears to have evolved into a more flexible structure than the waqf. the two institutions are naturally quite similar in basic structure. has been effectively utilised by Muslim minorities. This is the case of the Muslims living in predominantly Christian cultures where a law of waqfs does not exist. 112. But this argument should be considered with caution. 4-16 August 1984 (Jeddah: Islamic Research and Training Institute. this similarity is still reflected in everyday practice and. Proceedings of the Seminar on Management and Development of Awqaf Properties. lugares de monte. p. Some eight centuries later. under special circumstances. must have been due to the stringent prohibition of interest in the Islamic world. Can be terminated as stipulated in the trust deed.14 major difference between these two institutions: whereas the Spanish foundation regularly purchased with its annual profits interest yielding public bonds. Having such common origins. 1998). This difference. Consider the case of South Africa where Muslims have established their waqfs under the South African Law of Trusts. an Islamic waqf typically would reinvest its profits to expand its capital (Gozalo. The AMAL (Association of Accountants and Lawyers for Islamic law) has identified the following similarities and differences between the South African Trusts and Islamic waqfs: 2 WAQF Generally charitable and has religious motive Founder may be the beneficiary (only under Hanafi law). 2 . Ultimate objective must be the benefit of mankind. 1987). cannot be terminated under any circumstances Irrevocable Corpus is immobilised Usufruct is used for the benefit of mankind TRUST No religious motive needed Founder may be the beneficiary Any lawful objective will do Property vests in the trustee Trustee has larger power Need not be permanent. for we are of the opinion that the Islamic waqf has also evolved in the same direction and therefore the differences stated by AMAL have been exaggerated. The hundreds of mosques and madrasahs built all over South Africa are all managed under this law which is the closest approximation to an Islamic waqf law.

15 .

The . In this way the privately accumulated wealth of a pious Muslim becomes God’s property. corpus. purpose. often. pious. The amount of the original capital. submitted to the authorities. a waqf functions as follows: a founder who has accumulated private wealth decides to endow his personal property for a specific. Such waqfs are known as the family waqfs or waqf ahli. or to a group of beneficiaries. This revenue (usufruct) may be allocated completely for a pious purpose (waqf khayri).CHAPTER TWO: FUNCTIONING OF THE SYSTEM AND JUDICIAL PROBLEMS CHAPTER TWO: FUNCTIONING OF THE SYSTEM AND JUDICIAL PROBLEMS In a nutshell. the purpose for which it is endowed and all the other conditions of management are clearly registered in a deed of endowment. The founder strictly stipulates how the annual revenue of the waqf should be spent. The offspring of the founder may also be the primary recipients of this annual revenue.

These powers are to be found in almost all the endowment deeds and have been called the ten conditions by the late Hanafi jurists. Research based upon more than 300 waqfs of fifteenth and sixteenth century Edirne. the equivalent percentage was at least 40%. members of the elite generally established medium sized waqfs (5% small. 1983: 29). medium. Unfortunately. The vast majority were established by ordinary citizens. 93% medium and 2% large). has revealed that the vast majority of the Ottoman waqfs were founded by private individuals rather than the sultans whose waqfs constituted a mere 1 to 2% of the total (Gerber. Expand-Reduce (teksîr-taklîl): The founder can expand the share of a beneficiary from the usufruct of the endowment. Normally. In Istanbul and Aleppo. Women established only 20% of the waqfs in Edirne. mutawalli. the founder also has the power to deprive a beneficiary of his normal privilege. or can reduce it. Of these founders 43% (100) were ordinary citizens and 57% (133) were members of the elite. The Hanafis consider the idhal-ihrac as the absolute prerogative of the founder. This flexibility. the beneficiaries. the trustees and the endowed capital corpus itself. In contrast. b. similar statistics do not exist for other Islamic countries but it is reasonable to assume that the situation should be similar elsewhere. Gerber has attempted to account for this discrepancy with the argument that Edirne was a frontier town and consequently it must have had a relatively smaller and passive female population. a frontier town in the Ottoman Balkans. 1. They are traditionally expressed as five twin conditions. The overall number of founders. Enter-Exit (idhal-ihrac): The founder is empowered to make a person beneficiary even if he would not be considered one under normal circumstances (idhal). Put differently. by contrast. Conversely. The Founders It is appropriate to start this section with an analysis of the founders.17 management of the waqf is entrusted to a trustee. and large waqfs. and only 1% was large. with the exception of the sultanic and those founded by women. whose functions may be fulfilled by the founder himself during his lifetime. when endowing their properties and transferring the ownership from their own possession to that of God. the founders had to follow a strict procedure but they were permitted to retain certain powers. was 233. c. Thus Gerber has reached a very clear conclusion: ordinary citizens tended to establish small and medium sized waqfs. There were 216 waqfs.62% of their endowments were small and 48% medium. In order to compare the sizes. which is granted not only to the founder but also to the . As for the connection between the founders and the size. privately endowed waqfs were categorised into three groups according to the endowment capital: small. there are four major components of any waqf: the founder. ordinary citizens generally founded small waqfs . Pay-Freeze (I’tâ-Hirman): The founder may assign priority to the regular and uninterrupted payment of one beneficiary (i’tâ) and conversely. postpone the payment to others (hirman). which negate each other: a. We will now consider each one of these components in detail. unless he has stipulated in the endowment deed that he wishes to enjoy the right to expand or reduce for as long as he lives. the founder would be allowed to make such changes only once. Of these 30% belonged to the smallest category. Thus. 70% were middle sized. I. which could be classified according to size (including the sultanic and women’s waqfs). which the founders reserve for themselves during the establishment of their waqfs. while the elite founded larger ones. while the Shafi’is and the Hanbalis are of the opinion that this is not an absolute but a limited one. The Ten Conditions At this point it is appropriate to identify the powers.

istibdal assumes great importance particularly for those waqfs whose corpus is constituted of movables. and in the process. like converting a charitable waqf into a family waqf or vice versa. e. where the original endowment was in cash. Indeed. The answer is complicated by the fact that the four major schools of Sunni Islam do not agree on this problem. allows a waqf to manage its budget according to a list of priorities determined by its founder. for instance. This brings us to the question of under what conditions istibdal would be legal. which have a multitude of beneficiaries. istibdal. The condition assumes particular importance for those waqfs. this rule also embodies great potential for misuse.. or exchange it for another property (istibdal). and 1/3 would go to the founder’s heirs or. istibdal under such conditions. can either expand the waqf land.e.3 Sell. This is an important power that the founder can bestow upon himself. The Malikis. This is understandable. to the foundation. In historical documents. strictly prohibit istibdal in real estate waqfs with very few exceptions. this instrument has fuelled passions. Furthermore. if he had none. Thus.This stipulation was later changed to give the heirs 2/3 instead of 1/3. Behrens-Abouseif has even argued that the Ottoman occupation of Egypt was prompted by an illegal istibdal procedure. which attempted to sell the Al-Azhar complex (1994: 146-147). the founder is enabled to exchange the waqf land for another one. which is supposed to belong to God and be perpetual. After his death. a conditio sine qua non. Such waqfs achieve perpetuity. The only condition they attach to such istibdal is that the movable corpus of the waqf should have been reduced to such a state that it has become impossible to fulfil the original purpose of the waqf because it is not generating sufficient returns. So much so that this instrument essential for the survival of the institution of waqfs has been used by its opponents to destroy it (Akgündüz.stibdal): The founder may permit himself to sell the corpus of the waqf for cash (ibdal). 2/3 of the surplus revenues were to be added to the foundation. if we consider a cash waqf i.18 d. often by applying istibdal. at the outskirts by purchasing much more land or enrich his waqf with cash. 1988: 291). thereby decreasing the charitable portion of the waqf (Behrens-Abouseif. Whatever remained of the waqf revenues after the obligations of the endowment were fulfilled reverted to the founder during his lifetime. again. we may note that wherever applied. A real case from Ottoman Egypt may illustrate the point: Iskender Pasha who governed Egypt from 1556 to 1559 had a foundation which was a religious complex. It goes without saying that while certain dynamism is indeed embodied in istibdal. becomes a vitally important instrument to assure the perpetuity of the waqf. 1994: 195). But the Malikis are considerably less strict concerning the istibdal of the waqf of movables. By allowing the founder to sell the waqf property the system is made responsive to market conditions. is more often used and usually pertains to both sale and exchange of the corpus. and assume further that the government is planning to change the currency of the country or debase it.Exchange (ibdal. trustee. The importance of istibdal lies in the fact that it embodies certain dynamism. if a waqf land which happens to be originally at the outskirts of a town ends up being in the middle of it due to urban expansion and its value skyrockets as a result. 3 . The details of this phenomenon will be presented below. Changing Conditions-Purpose (ta yir-tebdil): The founder enjoys the right to change the conditions stipulated in the waqf deed (ta yir). Meanwhile. He or she also retains the power to change the original purpose of the waqf. for istibdal allows the sale of a waqf property.

was promulgated in the year 951 A. iii. . which in his opinion had become totally corrupt. 1307A. even if the original founder had not vested himself with the authority to resort to istibdal. the majority of the Hanafi School considers such a waqf as well as the tenth condition of ibdal-istibdal as valid.19 The Shafi’is are also against istibdal. let alone the famous Al-Azhar. i. when the founder has ruled that istibdal is void. Under such conditions. which had the most liberal perspective on istibdal. then an istibdal transaction would not be permitted. Imam Muhammad (al-Shaybani) has rejected this condition and argued that while the waqf would be valid. In view of this. irade-i seniye. the Shafi’i position is even more stringent than that of the Malikis. by the Ottoman eyhülislam Ebussuud Efendi (Ömer Hilmi. another group is of the opinion that.H. d. which in their opinion can be used as an instrument to destroy waqf properties. can be understood better. generating no revenue or not enough to cover its expenses. In such a situation neither the judge nor any other person can resort to istibdal. such a transaction may be permitted subject to the approval of the judge as well as the permission of the Sultan. the founder cannot vest himself with such an authority. This latter condition prohibiting istibdal unless permitted by a sultanic decree. When the founder has permitted himself. both the waqf and the condition would be void. b.. The Hanafi position on istibdal has been summarised as follows: if the founder of the waqf has not made any stipulation in the deed about the sale or exchange of the waqf’s property.: 198). But if the waqf’s property is in such a poor state that it does not generate any revenue or the revenue that it generates is not sufficient to cover its expenses and therefore an istibdal of waqf property is deemed to be beneficial for the waqf. Yet. even if the founder has not stipulated istibdal in the deed of endowment. including Imam Muhammad. but it is argued that if the waqf property were subjected to istibdal. Led by Abu Yusuf. When the founder has not vested himself with the right to resort to istibdal and when the waqf properties are still usable. should have been strictly prohibited. to resort to istibdal. When the waqf properties are ruined to the extent that they have become totally useless. the condition itself would be void. Finally. For. Led by Abu Yusuf. Under this situation two conflicting opinions have been propounded: i. A group of jurists. according to Imam Muhammad. the great majority of the Hanafi jurists. then under such circumstances. according to the ten conditions mentioned above. it would generate greater revenue for the waqf. and providing that the local judge decides that an istibdal would be beneficial to the waqf. ii. They even prohibit the sale of a totally destroyed mosque on the grounds that it may be restored some day. The irony of all this was that the Ottoman Sultan belonged to the Hanafi School. led by Hilâl.e. providing the judge’s permission is obtained. According to this school there can be three alternatives pertaining to istibdal: a. ii. Under this condition three conflicting opinions have been voiced: i. Put differently.H. istibdal would be valid. A group of Hanafi jurists have argued that if a founder reserves for himself the right to apply istibdal. Shafi’i law was the prevailing law in pre-Ottoman Egypt and selling any waqf property. have argued that this may lead to corruption and should therefore be prohibited. Behrens-Abouseif’s above-mentioned argument that the attempted sale of the Al-Azhar had prompted the Ottoman Sultan to occupy Egypt. have approved of istibdal. c. even the Hanafi position was controversial. Thus. i.

or the family waqf. he allocated its usufruct. education. Thus. etc. 1995: 339). the Second Caliph. we will not repeat it here. Since a detailed analysis of these groups has already been made. to his offspring following the Prophet’s advice. she has furnished solid evidence from the Algerian waqf registers that istibdal transactions were not only economically fair but also constituted a very profitable business for the Algerian Harameyn waqfs (Hoexter. for instance. The controversy was between Imam Abu Yusuf on the one hand and Imam Hanafi and Muhammad (Shaybani) on the other. municipal services. primogeniture could be applied in the Islamic world by resorting to family waqfs. In a fascinating article Miriam Hoexter has argued that the alleged direct linkage between istibdal and corruption should not be taken for granted. himself.. This line of reasoning ignores the Prophetic traditions fully sanctioning pious offerings for provisioning the self. 1990: 82). and that Imam Shafi’i. it is also well known that the great Hanafite jurists were involved in a bitter controversy over the legality of family waqfs. Led by Abu Yusuf. It is well known. Initially public benefit is of secondary importance. moreover. endowed his land in Khaibar. in short. . 1988: 296). these beneficiaries who were paid from the annual revenues of the awqaf have been categorised into various groups: administration. tax relief. family of the founders. which aimed at improving the position of women in the society. had also endowed his house in Fustat to his offspring. At this point it is important to remember that waqfs allocated their annual revenues to a myriad of beneficiaries. II. he can override the original conditions stipulated by the founder. maintenance. Thus. in the later centuries they evolved primarily to circumvent the law of inheritance. Moreover. naturally. The revenue of such waqfs are reserved for the benefit of the founder or the offspring. a founder could also appoint himself or his inheritors as the primary beneficiary. though not sanctioned by Islamic law. In short. It should suffice to note that a long-term analysis of the relative amount each group obtained from the waqf system in any given city would reveal important insight into the prevailing value system of that city and its evolution (Çizakça. The origins of this specific type of waqf are obscure and controversial. i. however. a conflict among the giants of Islamic (Hanafite) jurisprudence. among other things. The latter. Beneficiaries and the Family Waqf Controversy It is well known that the waqf system provided regular salaries to many beneficiaries. another group of jurists have argued that if the judge considers it beneficial to the waqf. On the contrary. Recently. has been challenged by recent research. in short. Through such waqfs it was also possible to avoid Islamic inheritance rules and to bequeath to a specific member of the family.e. French orientalists. the whole argument that the family waqfs were a relatively late development is false. food for the public. which casts further doubt on the orientalist argument that this institution was a later Arab invention. 1994). 1997). istibdal is a highly controversial issue in Islamic law and has been likened to a sharp knife capable of cutting both for good and for evil (Akgündüz. But when women were made eligible to inherit. to which reference will be made later. this offended the local traditions and the Arabs tried to find an indirect way to circumvent the new law and still apply a sort of primogeniture or at least to bequeath only to the male offspring. far reaching consequences throughout the world of Islam. the children and the needy relatives (Qureshi. These orientalists thus argued that whereas the origins of waqf were undoubtedly Islamic. (Çizakça.20 ii. when there are no more descendants of the founder and so the entire revenue of the waqf accrues to public purposes. This possibility had. it assumes primary importance only after the nesil expires. This type is known as the ehli vakıf. have argued that the family waqfs originated in the reaction of the Arabs to the Islamic law of inheritance. that when Omar. religion.

which eventually led to the total prohibition of these waqfs in Egypt later. was to protect the property of an indebted person. did not constitute the majority of the waqfs in the Ottoman Empire: Barkan has shown that the ratio of family/charitable waqf ratio was not particularly high during the sixteenth century while a recent analysis has revealed that during the eighteenth century merely 14. for instance. 1995: 249. by the colonialists and orientalists who challenged the legitimacy of family waqfs for their own ends. Thus the lands. The strongest refutation to the confiscation argument has been provided. the palace eunuchs who had no offspring but who established substantial foundations (Köprülü. however. were charitable. Masters. which were originally assigned for the military fief (tımar). family waqfs. Thus Gerber concludes: “In fifteenth and sixteenth centuries Edirne. the waqf was used only in a minor capacity or even rarely in order to safeguard the property of the founders for transmission purposes” (1983: 35). this time. the elite. But the controversy did not wane and resurfaced time and again. in general. it has been argued. Köprülü accepts this explanation as plausible but argues that this motive cannot explain all the waqfs. Most orientalists have argued that family waqfs were also resorted to in order to protect the family property from arbitrary confiscations of the rulers. The permission granted by Abu Yusuf to the family waqfs was well accepted by the Islamic world in general and assumed a definitive character particularly in the Hanafite regions. were being increasingly reallocated for religious/non-military usage through the waqf system.21 It is therefore all the more remarkable that Abu Yusuf’s complicated and controversial position came to be accepted not only by the Hanafite regions of Islam but even by some other regions where Hanafite law was not dominant (such as Algiers). 1995: 259). The seventeenth century Ottoman controversy triggered by the great statesman Koçi Bey was based on the following observation: the conversion of state lands into personal property and then into waqf. was reserved for the family members of the founders. 200 years later in French North Africa and British India. 1988: 173). Meanwhile the popularity in Egypt of the family waqfs has been demonstrated by the fact that these awqaf yielded more revenue in 1928-29 than all the other types.3% were family and 10% were mixed (Öztürk. were cash rich: all the Mughal land tax came to the treasury as cash. III. In any case. who had nothing to fear from confiscations. established 65% of the waqfs they endowed as family waqfs. Russomoy (and others) case in the Privy Council and culminating in Muhammad Ali Jinnah’s victory and the passing of the Mussalman Waqf Validating Act of 1913. while 80% of the waqfs endowed by those who had the most to fear.7% were charitable. for the Mughals.87%. This problem was not apparently so serious in Mughal India. Consider. 16. In Aleppo the ratio was somewhat larger: of the total of 687 waqfs established in this city between 1718 and 1800. This situation was one of the reasons. But it assumed serious proportions in the Ottoman Empire and led to bitter complaints. according to Kozlowski. 1942: 5-6). This was apparently another reason why this institution had become so popular. by Gerber who demonstrated that the women of Edirne. So the emperors made cash grants to those they wished to patronise rather than alienating state lands to them (Crecelius. the controversy resurfaced again. In the Ottoman lands this practice was prohibited by a fatwa of Ebussuud during the sixteenth century while in India it led to a huge controversy beginning in 1894 with the Abdul Fata (and others) v. 50. Finally.20% of the total awqaf revenue and during the nineteenth. 39. Another motive in establishing family waqfs. The Trustees (mutawallis) .

and had the corpus to be restricted to land and other real estate? There are two huge controversies contained within this simple question. The other one pertaining to the type of the corpus.e.22 Islamic law considers trustees strictly as managers to whom the waqf is entrusted. it was also they who ended up being accused ruthlessly and held responsible for the demise of the system. for instance. The one pertaining to the private ownership of land. there are bitter debates and controversies.a. movables versus immovables. IV. While these individuals were the ones who actually preserved the magnificent Islamic heritage through the centuries and enabled many waqfs to survive for centuries. land as the corpus. led to an enormously complex relationship: the state vis. Behind this simple statement. i. It can be argued that all the major changes in the administration of the waqf system throughout history were undertaken in order to put these trustees under stricter control and end their opportunities for misuse and embezzlement. after all the trustees were only humans. will be presented below. however. Was land a privately owned commodity under Islamic law. led to the cash waqf controversy. Consider. The details of how the trustees fared as individuals crucial for the survival of the waqf system and as culprits. .vis the waqfs. The latter will be dealt with first.. but sometimes they were simply used as scapegoats and served the more sinister schemes of the state. The Original Capital of the Endowment (corpus) The conditio sine qua non of any waqf is that it should be established with privately owned capital. Sometimes accusations against them were justified.

asl al-mal or. corpus. .CHAPTER THREE: CASH WAQFS IN THE ISLAMIC WORLD CHAPTER THREE: CASH WAQFS IN THE ISLAMIC WORLD I. Introduction The cash waqf was a special type of endowment which differed from the ordinary real estate waqf in that its original capital. consisted purely or partially. Legal Issues 1.

But this general acceptance has not been without a fierce controversy that lasted at least from the sixteenth century until the twentieth. p. Egypt. 1978. 44. second edition). see the two fatwas given by the muftis of Egypt and of Alexandria in 1908 presented below. 153 and Syed Ameer. 80.. 37. 1995. N. Studies in the Social History of Modern Egypt (Chicago: UCP. 1986 Cabinet Decree. Muhammadan Law (New Delhi: 1985). 1969). there is a fatwa issued by the celebrated Mujtahid of Karbala. it is no longer acceptable. 1979). prevailing in India. pp. 1911) was published just two years before the family waqf controversy ended in the victory of Muslims against the British establishment. and finally they have been observed in the Malay world and in Singapore. Thus the first two decades of the present century was one of fierce legal debate about the waqfs For perpetual cash foundations in Roman empire see. again in Iran. The Waqf Institution in Sudan (Kuala Lumpur: ISTAC. Bruce Masters. Anderson. Islamic law in Africa (London: Frank Cass. 2. In Singapore cash waqfs’ status is ambigious and transitionary. The earliest origins of the cash waqfs in the Islamic world. While this view may have had some legitimacy in history. see also G. J. Sumaiya Sid Ahmed Abdel Hadi. for later research has revealed that cash waqfs exist in Syria. 1962). as we will see below. Duncan-Jones (1982: 133138). 162. p. p. these endowments had been approved by the Ottoman courts as early as the fifteenth century and by the end of the sixteenth they had become the dominant form of waqf all over Anatolia and the Balkans (Çizakça. the diffusion of cash waqfs is far more extensive than once presumed: they have been observed in the Ural-Volga region. for the indirect evidence for Aden see.5. The Origins of Western Economic Dominance in the Middle East (New York: New York University Press. 1997). for Egyptian (modern). 6 Majlis Ugama Islam Singapura.24 of cash. p. Islam and Islamic Institutions in British Malaya (Jerusalem/ al-Quds: The Magnes Press. as well as A History of Land Ownership in Modern Egypt (London: Oxford University Press. For Malaysia and Singapore see. Anatolia and the Balkans and that the more pious Arabs never allowed these waqfs in the Arab provinces (Mandaville. pp. For details see below the section: “Cash Waqfs in Malaysia and Singapore”. in India and Pakistan they are considered to be legal since 1913. For the Sudan (also modern) see. 10. 209. 207. Be that as it may. when Imam Zufer was asked how such waqfs should function. 54-55. Annual Report 1995. pp. 4 . Baer.e. 1966).5 In Egypt. dated 1946. in Iraq. Moreover. Sudan and Aden. they have been permitted by the May 17. permitting them. 5 For Syrian cash waqfs (sixteenth-seventeenth centuries) see. 1979). waqf of movables has been permitted by the law number 48. fourth edition. The Hanafi Position on the Waqf of Movables (Cash Waqfs) Probably the most detailed account of this controversy has been studied by Suhrawardy. that of the family waqfs. i.6 The legality of the cash waqfs in the vast lands from the Balkans to the Malay world thus implies a general acceptance by all the major schools of Islamic jurisprudence. 20. His major Article on the legality of cash waqfs (Suhrawardy. The fact that the question was asked at all. footnote no. It has been argued that cash waqfs were legalised only in the Turkish speaking parts of the Ottoman Empire.m. Unpublished Research Paper.4 may be traced back to the eighth century. D. Sucesk. in the Islamic Republic of Iran the famous waqf Astan-e Qods-e Razawi has recently purchased shares in various industrial complexes thus establishing cash waqfs. 249. p. Moshe Yegar. may be taken as an indication of the existence of such waqfs at that time. 1988). Article no. an Indian jurist-scholar who travelled to the Ottoman lands at the height of another controversy.

but they were silent about cash waqfs. which reveals his overall purpose: “A careful perusal of this paper … will. Mufti. according to Prophetic tradition. The Ottoman Caliphate was the symbol of legitimacy in the Islamic world and any legal issue that was solved in the Caliphate would be considered as solved in India as well. He then acknowledges that divergence of opinion exists among the jurists and suggests that. the purpose of his visit to the Ottoman lands was to study the cash waqf controversy in the Ottoman Empire itself and to find out about the legality of this institution. stocks etc.” This is followed by a useful account of the methodology of Islamic jurisprudence with particular emphasis on the hierarchy of jurists and the reliability of sources.7 Since the sixteenth century Ottoman legal debate concerning the validity of cash waqfs has been well documented and summarised by Mandaville. grandson and First Secretary to Field Marshall Ghazi Ahmet Muhtar Pasha. The implications of this situation should not escape us here. at the beginning of the twentieth century looking at the Ottoman Caliphate and Egypt for solutions to the prevailing legal problems in India appears to have become the established norm for Indian Muslims. Suhrawardy starts his work by a short statement. the Ottoman eyhülislam. this is a blessing. The manuscript of Ebussuud that he refers to was obviously the one written during the sixteenth century at the height of the Ottoman cash waqf controversy (Mandaville. or the Mecelle. For the family waqf controversy also the same method was used. is presently used by the Islamic reformists who needed categories of punishment more tolerant than the strict hudud (Horowitz. and to Zaimzade Hasan Fehmi Bey. for obtaining access for me to several important libraries in the Ottoman Empire and also for procuring for me the fatwas of the Grand Mufti of Egypt and of the Mufti of Alexandria …. Actually. shares in companies. including money. where the Shafi’i law prevails. I venture to hope. securities.” Thus. 8 The question whether the cash waqfs were simply a special form of the waqf of movables was fiercely debated during the sixteenth century. who considered cash 7 . 1994: 243). This was particularly so as both regions followed the Hanafi law. Concerning the legality of cash waqfs. we will concentrate here on the controversy as it was reviewed by Suhrawardy at the beginning of this century. It was Abussuud.25 (family as well as cash) in India and we should view Suhrawardy’s work from this perspective. leave no doubt in the minds of the readers about the validity of the waqf of movables. Ebussuud. which he considers a special form of the waqf of movables. the Ottoman codification of Islamic Law. The reason Suhrawardy travelled all the way to Istanbul is explained by himself in the “acknowledgements” as follows: “I take this opportunity of expressing my sincere thanks to Muhammad Ali evki Bey. Both Imams Muhammad (al-Shaybani) and Abu Yusuf permitted the waqf of movables. a manuscript copy of which I have just discovered in Constantinople. 1979).8 the first source Suhrawardy consults is the Is’af of Burhan al-Din Ibrahim Even in far away Malaysia. late Ottoman High Commissioner in Egypt. In a subsequent issue of this journal I hope to give a translation of the well-known treatise on the subject of this paper by the celebrated Sheikh al-Islam. It is noteworthy that he did not limit himself to the famous treatise but went so far as to obtain fatwas from Egypt.

It is laid down in the chapter on the Bahr al-Raiq that when there are two “correct views” regarding any particular question. 16. “Imam” refers to Abu Hanifah. and the “liberals” arguing that custom of all times must be considered as a source of jurisprudence. then according to that of Zufar and Hasan b. then according to the dictum of the second. Suhrawardy has consulted Fatawa Kadi Khan where the great Hanafi jurist alSarakhsi is quoted.. Durr al Muntaqa where the true flexibility of Imam Muhammad’s permission is referred to for the first time has provided a far more detailed analysis.e. “the second” refers to Abu Yusuf and “the third” to Muhammad al-Shaybani. that the permission was absolute. qiyas. Burhan al-din refers to Imam Muhammad (al-Shaybani) and argues that he had permitted the endowment of movables subject to custom. p. 9 ‘The Mufti should give fatwa according to the dictum of the Imam absolutely. The next source consulted by Suhrawardy. It was Abu Yusuf. Majma al-Anhur. p. A Commentary on the Sharh al-Wiqayah. Majma al-Anhur rejects the purist argument. “The Waqf of Movables”. waqfs simply as a special form of the waqf of movables for the first time (Mandaville. is incorrect”9 Next we come to the controversy concerning the nature of custom. “fatwa of some to the effect that the view declaring the validity of the waqf of dirhams is weak. 1979: 300-301). himself.cit. Here. But in Umdat al-Riayah. as well as juristic preference. ta’amul. at all times. repeats the approval of Imam Muhammad and Abu Yusuf. Burhan el-din dismisses the problem of the perpetuity of the endowment’s corpus based upon both custom and Prophetic tradition. The debate here is between the purists who argue that only custom prevailing at the time of the Prophet and his companions should be considered. This is the fact that the permission to endow movables had been granted subject to custom as well as in the absence of custom. Next. op. This may well be because Muhammad al-Shaybani was probably the very last student of Imam Hanifah attending his very last tutorials which he held in prison. Actually the rejection can be traced right back to the Prophet himself. it is for this reason that Imam Abu Yusuf must have ruled the waqf of movables valid subject to the existence of custom. who was a companion of the great Imam Abu Hanife. istihsan and again. who had permitted the endowment of movables strictly subject to custom. it is lawful to give judgement according to either of them’. because of its having been reported from Zufer. the latter referring to the well known cases of waqfs founded during the early days of Islam with movables such as arms and horses. who had said as reported by Ahmad: “Whatever is good in the sight of the Muslims is good in the sight of God !” indicating that he trusted the judgement of Muslims as embodied in the established custom. then of the third. then these waqfs came within the purview of the dictum of both Imam Muhammad as well as Abu Yusuf and therefore they must be allowed without any doubt whatsoever. 326. (Lucknow).. Ziyad. Thus we are informed about the hierarchy among the great Imams of the Hanafi school.26 written in 1499. Al-Sarakhsi repeats Muhammad’s approval of the endowment of movables. . Abu Yusuf and Muhammad are given equal weight. i. Thus. Suhrawardy. It is for this reason that custom is stronger than analogy. but then takes a step further arguing that since a custom regarding the endowment of cash had already surfaced at the time of Zufer.

For some of them are made waqf of for transporting grains destined for Mecca and Medina10 ”. He argues that the term “waqf ships” referred to those ships bought by the waqfs. It is thanks to this flexibility that Islam gained two very important types of waqf: the waqf of grain ships which made pilgrimage possible and the cash waqfs. because one dirham is as good as the other (Mandaville. Mamluk Studies Review. Next we come to the fierce debate between al-Ramli (d.1004 A. See. they violate the perpetuity principle. Radd al-Mukhtar refutes and silences al-Ramli by arguing that cash has perpetuity. 10 .H. Doris BehrensAbouseif. The Kifayah concludes that the force of analogy as based on perpetuity is abandoned by reason of custom as well as tradition. 1979: 299).) and Radd alMukhtar. Suhrawardy finds the same point also emphasised in the Durr where it is stated that law is based on the recognised practice of the age in question. Moreover. In short. Hans Georg Majer rejects the idea of waqf ships altogether. The Durr considers custom clearly as the basis of law in every clime and age.27 The legal implications of a situation whereby custom appeared after Imam Muhammad’s time and in a different country have been referred to in the Tahtawi. Muhammad held that the waqf of movables was valid not only subject to the existence of custom at his time but also subject to custom which may arise in another time and country. both are more powerful than the analogy pertaining to perpetuity. we have here Endowing ships appears to have originated with the Mamluks and it has been argued that the Ottomans did not invent but took over this tradition. The latter pertains to a hadith to be found in al-Bukhari: “For verily did Khalid ibn al-Walid. The analogy here pertains to the question of perpetuity. Al-Ramli tried to use the custom argument against the cash waqfs by arguing that there were no cash waqfs at the time of Imam Muhammad and therefore no custom. The most important example of such waqfs is the waqf of ships. a primary condition of the validity of a waqf and leads to the argument that since movables cannot endure.. “In our time practice has arisen with regard to the ships of the Red Sea. 67. He then provides the examples of various movable waqfs which did not exist at the time of Imam Muhammad and for which custom emerged afterwards. analogy based on the problem of perpetuity rejecting the cash waqfs and Prophetic tradition permitting the endowment of movables in general. while the former. pertains to the ruling of Imam Muhammad explained above. Thus here we have two principles in conflict. p. i. the argument that the cash waqfs should be rejected because their corpus in the form of cash cannot be perpetual is rejected on the grounds of custom and tradition. 1998. as well as custom permitting the specific form of movables. Volume II.”. But it should be noted here that al-Ramli was not aware of al-Sarakhsi’s report that Imam Muhammad had approved of the waqfs of movables even in the absence of custom. the “antagonistic influence of custom” which has overruled analogy. make waqf of armour he had in the way of Allah” (Sahih Buhari: 2547)..e. The Kifayah looks at the problem from a different perspective and after weighing the various methods of Islamic jurisprudence against each other reaches the conclusion that the negation of the waqf of movables based on analogy. July 1998). Thus the wisdom of Imam Muhammad in considering custom from a flexible perspective is made crystal clear in Tahtawi. should be rejected. qiyas. Reporting that al-Nahr limits the validity of a waqf to the countries where it has been recognised. Ships were not endowed as such and did not constitute the corpus of a waqf (Majer’s comment on my paper ‘Institutional Framework of Democratic Islam’ delivered at Munich University. Tahtawi rejects this argument based upon Ebussuud. “Qaytbay’s Foundation in Medina….

To be on absolutely safe ground. Thirdly. Finally you should know that the language of the jurists here show some leaning towards taking special recognised practice. Secretary to Ghazi Muhtar Pasha asked the following to the Mufti (Suhrawardy. the practice of which has been recognised in our time in certain countries. ‘urf khass. After providing us with these painstaking details of the debate on the validity of cash waqfs. into consideration” makes clear that custom in a Muslim country would be respected by the others. Secondly.. former governor of Egypt. This is one of the views of the school and it is a proper view. their waqf would be valid according to Imam Muhammad. It is also laid down in Radd al-Mukhtar and it is expressly laid down in the commentary on the Durr that the fatwa is in accordance with this. If the said securities be property having legal value and there has been a practice of endowing them in the country of the dedicator. and that they should be delivered to a mutawalli even though they do not satisfy the condition of perpetuity. the Mufti of Egypt has hesitated only on the question of whether the practice in Turkey can be taken as binding for all Muslims. As to the waqf of movables accessories to land. but it is a general and universal practice “ta’amul alam” and it is good enough to embrace the whole of the Muslim world. This order is of crucial importance for Suhrawardy who argues that the Ottoman Sultan’s order is sufficient to legalise such a waqf not only in his country but throughout the Muslim world. if Turkey is a special country “balad khas”. their waqf is of the nature of waqf of musha’. ‘urf … Thus. as to shares in trading companies.H.This opinion has been adopted by the majority of jurists of various countries as stated in the Hidayah and this is the correct opinion as stated in the Is’af and it is the dictum of most doctors as stated in the Zahiriyyah. Hasan Fehmi Bey. the custom in Turkey cannot be called a practice in a particular country. e. since the language of the dedicators is based on their special practice. the view of the law in Turkey is binding over all the Muslim world. into consideration. within the meaning of the rule of jurisprudence as laid down in the Sharh Manafi’ al-Daqqaq. Suhrawardy had Hasan Fehmi Bey ask the Mufti of Alexandria the same question as well. Answer (by Muhammad Bakhit al-Muti’i.. that they should be divided (not musha). “you should know that … jurists here show some leaning towards taking special recognised practice. when they are capable of division.167): “The subject of waqf must be property having legal value (mal al mutaqawwim) provided it is land or movable property with regard to which there is custom. Suhrawardy asked the help of Ottoman Field-Marshall Ghazi Muhtar Pasha. Now that you know that the waqf of movables is valid according to Muhammad you should have also regard for the conditions laid down by him. 1911: 371): “What is your opinion concerning the following case? An Indian of the Hanafi sect makes a waqf of government securities. ‘ta’bid’. like the waqf of dirhams and dinars the waqf of which is now recognised . still there being no “nass” or tradition against the view of validity of any Islamic state.. stocks and bonds known amongst Europeans as rente or of shares in trading companies. for a fatwa from the Mufti of Egypt.28 the order of the Sultan himself in favour of the cash waqfs. it is valid without any difference of opinion between Abu Yusuf and Muhammad … Now. (1908). Will such a waqf be valid and permissible in India if it is recognised in Turkey for instance … ?” Answer (Written on 9 Muharrem 1326 A.g. But his final words. This is because the order represents a given preference to one out of two views and this preference removes the conflict and gives generality and concurrence to the view so preferred. Mufti of Alexandria): . ‘urf khass. the Hanafi jurist of the University Mosque of alAzhar. fatwa no.

the cash waqfs. based upon Mabsut by alSarakhsi.the waqf of movables as accessories to land is valid without any difference of opinion between Abu Yusuf and Muhammad. This opinion has been adopted by the majority of jurists of various countries as stated in the Hidayah. it should be added that the endowed cash should be. and in the Zahiriyya. one is more favourable to the waqf. We are now in a position to summarise the Hanafi position on the validity of the waqfs of movables or their special form. but Muhammad accepts subject to ta’amul. Now we find in the Manh: as a practice has arisen in our days in Turkey and other countries of making waqf of dirhams and dinars. “What is established by usage. And God knows best.29 “These shares etc. Shams alA’immah al-Sarakhsi. Imam Muhammad’s ruling applies and the Hanafi School declares the waqfs of movables. hence his statement. Moreover. the mufti should deliver fatwa in accordance with that opinion. are all included under the term movables and the pertinent rule is as follows: “…. 3. It is for this reason that many sources quoted above consider Imam Muhammad’s approval as unrestricted. he gives custom an eminence approaching to that of the Qur’an and the sunnah. Imam Abu Yusuf and Imam Muhammad al-Shaybani. whereby analogy is disregarded on account of the saying of the Prophet. when a practice has arisen as to making waqf of these securities and shares. including cash waqfs and the waqf of ships. it is most reliable. they come under the dictum of Muhammad in accordance with which is the fatwa as regards movables in which there is ta’amul…. who is considered to be a relatively weak source. Muhammad’s approval is subject to custom prevailing at his own time and country and subject to custom that may emerge after his time and in any other land. one of the most respected sources in Islamic jurisprudence. Therefore. first. invested through mudaraba. ‘urf. The Shafi’i Position: . Since the ta’amul of the Muslims as regards to these things is based on the rule of recognised practice urf. That is why it is laid down in the Mabsut. The majority of the sources presented above are in agreement that as far as the validity of these waqfs is concerned there is no need to refer to Imam Zufer. preferably. their waqf is valid. This flexible interpretation of Imam Muhammad is conveyed to us by another eminent jurist. is like what is established by express text”. Consequently. Finally. dirhams and dinars. it has been stated in the Mujtaba on the authority of the Siyar that according to Muhammad it is valid to make a waqf of movables unrestrictedly and according to Abu Yusuf only when there is ta’amul. Bakhit al-Muti’i seems to have been aware of Imam Muhammad’s permission regarding the waqf of movables whether there is established custom or not. (Signed) Muhammad Bakhit al-Muti’i. At this point the following rule applies: when of two conflicting opinions. “according to Muhammad it is valid to make a waqf of movables unrestrictedly” and second. If the waqf of such movables be made independently (not as accessories to land) then Abu Yusuf rejects it. valid. as Imam Zufer had suggested. the Is’af. It is important that both have approved the waqf of movables. especially as they are of the nature of coins. “Whatever is good in the sight of Muslims is good in the sight of Allah” as reported by Ahmad. Two points attract our attention in this fatwa. both of whom are considered to be the greatest authorities of the Hanafi Law. The whole issue can be traced back to the “two companions” of Abu Hanife. Therefore. The only point at which they differ is that whereas Abu Yusuf approves of them subject to custom.

It is said that the condition that the original capital should endure is to guard against cash waqfs because it is not possible to benefit by them consistently. has been accepted by the Malikis as well. . as described above. 430. Even though later some doubt might arise as to its continuance in existence. The Maliki Position: Imam Shafi’i’s ruling that endowment of any moveable is valid subject to the preservation and non-consummation of the corpus. By waqf here is meant waqf for the purpose of lending out.e. 5. the first concerns a cash waqf and the second. and their widespread and definitive existence in Ottoman lands between the fifteenth and twentieth centuries render them valid for the Shafi’is even today.. ultimately approves of the waqf of movables subject to custom. 11 (Suhrawardy. should not diminish due to consumption and should be renewable from time to time by its usufruct. it being absolutely valid to make waqf of it as it is the express teaching of the mudawwana. But then Imam Shafi’i’s position regarding custom must be remembered. the Maliki position is clear: the endowment of movables is approved. The replacing of it by money of the same value is considered as preservation of substance” (Suhrawardy. it would not be valid as there “would be no legal advantage” in such a situation. Two fatwas stated in the Mudawwana are even more directly related to the question of cash waqfs. like Abu Yusuf. It is important that the Dardir not only approves of cash endowments but also rules that unless this endowed cash is invested by loaning out and earns a return. on the issue of custom he is almost as flexible as Muhammad al-Shaybani. But the perpetuity of the waqf is not a condition sine qua non for the Shafi’is. i.V. vol. a simple donation. The relevance of istishab for cash waqfs is that their ancient existence during Imam Zufar’s time. indicates that he has approved of this specific type of waqf. 1911: 342). In short. for he has introduced the concept of istishab. The Hanbali Position: Imam Ahmad ibn Hanbal has also accepted the Shafi’i condition that the endowment of any moveable is valid providing that the corpus of the waqf is not consumed and preserved. What is important here is that the original capital of the waqf. a practice once proved to be widespread may be presumed to be both ancient and continuing. but has merely specified its relation to the zakah. The fact that he has not objected to the cash waqf. itself. Two cases have been put to Malik. his silence. p. It is not therefore surprising that they are presently considered to be valid in certain Shafi’i lands. Obviously.30 The stance taken by the Shafi’i school on the waqf of movables is based upon Imam Shafi’i ruling that the waqf of anything (italics are mine) is valid from which profit can be derived whilst its original endures. Thus. based upon The Hidayah. Malik has ruled that the annual return generated by the cash waqf should be subject to the payment of zakah while he has exempted simple donation from this obligation. it is still considered to exist (Ibrahim.11 This negative view is also supported by the Ghayat al-Bayan. does not exist among the Shafi’is. 4. Furthermore. corpus. this condition refers to the Shafi’ite position. it is well known that Imam Malik had approved the waqfs of horses and arms based on tradition. Istishab pertains to the existence of a thing established by evidence. there is no hesitation whatsoever. Thus. where it is stated: “As regards money. This has been confirmed in the Dardir. 1965: 69). the difficult debate witnessed among the Hanafis. 1911: 357). Imam Shafi’i. Moreover. as has been indicated at the beginning of this chapter.

say in connection with the religious point in law that. If he has not given possession.H. Whether such a waqf. If he constitutes himself the mutawalli. sadaqah. but it also informs us about what must have been an unusual way of establishing such waqfs in the year 1907.. not only does it confirm the validity of cash waqfs for the Shi’ites as well. the validity of such a waqf on account of its being owned by a joint-stock company cannot be questioned (italics are mine). Therefore. Seal of the Mujtahid “I certify the seal marked A on the margin of this paper to be that of Sheikh Abdullah Mazandarani. The Shi’ahs in general and the majority of the Sunnis belonging to the four schools and others (with the exception of a few ordinary men whose views on the subject are out of the way) hold that Musha’ waqf is valid.H. peace be on them. And as possession is the condition for validity of a waqf. To explain this point more clearly: hundred men purchased a bazaar.” Answer: “In the name of God the Most High. 28th Sept..000 shares. the total value of which is divided into 1. if several persons form a joint-stock company and purchase a property at a fixed price and divide it into a number of shares of equal value. the waqf is null and void.31 6. Whether Zayd can make a waqf of his own shares. Question: “What does the great Hujjat al-Islam and the refuge of mankind. he may revoke the waqf during his lifetime. If he has made a waqf of Musha’ property and given possession. 1907. 1325 A. through .” God is the all knowing. the celebrated Mujtahid of Najaf. i. according to the Shi’ah Law is valid or not? It is hoped that your holiness may write your opinion on this point based upon the trustworthy writings of the learned predecessors and endorse it with your seal. Numerous authentic traditions from the imams. have been handed down respecting Musha’ charity.M…. which clearly lay down that by sadaqah is meant either waqf itself or that waqf is the most obvious kind of it. or to the mutawalli. for instance some purchase 10 shares and some 20 shares and so on. The Shi’ite Position: The Shi’ite position regarding the cash waqfs is revealed by a fatwa given by Sheikh ‘Abd Allah al-Mazandarani. If the dedicator dies before giving possession. For instance Zayd has got ten … shares.e. In the case of waqf he must give possession to the mutawalli. of 100 rupees each. so that each share holder may receive the annual profit in proportion to the number of shares he holds. the waqf is valid and binding. so that the principal may remain as it is and the income may be spent for a specific purpose. he must act according to the deed of waqf and must consider his possession as that of a mutawalli and not that of an owner. British Vice-Consul Karbala. so that the annual profit may be divided proportionately amongst the share holders according to the number of shares they hold. each having a different number of shares. who made the same in my presence this 28th day of September 1907. 11 Shaban. M. may his shadow extend. exactly in the same way as he would have done to a purchaser to whom he had sold his share. The importance of this fatwa cannot be emphasised enough for.” Signed. the Celebrated Mujtahid of Karbala in 1907. therefore the donor must hand over the property either to him for whose benefit the waqf is made.

12 This is the reason why the Hujjat al-Islam has insisted that the founder “must hand over the property either to him for whose benefit that waqf is made. This is due to the fact that he considered a joint stock company similar to a Musha’ waqf. The name of the waqf and the purpose for which it was established b. most jurists agree that before being endowed.44) II. Consequently. As a final note it should be added that the waqf of movables had already been permitted by the Article 61 of the Iranian Civil Code (Lambton. With such a rich source at their disposal. its cash capital can be clearly divided into shares.32 joint-stock company shares. the property must be divided among the owners and each owner’s share clearly defined. Second. Endowment of a share is permitted only after this process.95270. 12 . in which the endowment was registered For the conflicting positions of the Maliki and Hanafi schools (particularly Abu Yusuf) see. we are now in a position to pursue our inquiry regarding the way in which these waqfs actually functioned in history. Endowment of a property owned jointly by numerous individuals has constituted a lively debate among the jurists. Consequently. Thus the reader will be thoroughly acquainted with this institution as it had functioned in history. Cash Waqfs in History and the Present 1. joint-stock companies are known to be a western invention. The problem of the jointly held property is that its true magnitude and boundaries is not known. the reader may be taken aback by the idea of using jointstock company shares as the corpus of a waqf. 1995). the Ottoman archival sources that we have are both plentiful and incredibly detailed. or to the mutawalli. hence Musha’. 1986. Article no. their most widespread usage was observed in the Ottoman economy. (Akgündüz. exactly in the same way as he would have done to a purchaser to whom he had sold his share”. Consequently. While the Islamic Republic has permitted waqfs whose capital. The name of the mahalle. although. is constituted of cash and stocks. The crux of the problem boils down to the conditio sine qua non of any waqf that only a privately owned property can be endowed. dated May 17. Introduction Having presented the legal debates concerning cash waqfs. cash waqfs existed and continue to exist in many different countries. A joint-stock company would indeed be considered as a Musha’ on the grounds that although its physical capital would be undivided. we are fortunate that the Ottomans were meticulous record keepers. In the rest of the chapter information will be presented on cash waqfs existing in the rest of the Islamic world. First. A typical eighteenth century Ottoman Cash Waqf Inspection Register contains the following information: a. In the next section a summary of a recent research made on these waqfs will be presented (Çizakça. 1988: 134-135). Musha’ is the term used for properties that have not been divided among the various owners. (Cabinet Decree no. corpus. historians were able to do detailed studies of the way these Ottoman waqfs had actually functioned. For this particular problem the most important source that we have are the so-called Cash Waqf Inspection Registers held in the Ottoman archives. There are basically two reasons why we need to refer to these Ottoman sources: First. as it has been made clear above. It is quite clear from the text of the fatwa that this did not bother the Hujjat al-Islam. district. we face the problem of establishing a waqf with essentially a western financial instrument. After all. 1991: 231).

. To summarise: the endowed capital was distributed as credit to a number of borrowers and the return from this investment was spent for religious and social purposes.5 gru .4% of the capital invested. If the return exceeded the expenses. This enhanced capital was then distributed as credit to 20 individuals. The religious denomination of the borrowers n. The balance of the new capital thus formed h. the third contribution. This. The remaining 171 gru was called the ziyade ez masraf and was added the following year to the capital of the endowment. 50 gru .33 c. is a demonstration of how a cash waqf actually functioned. The total capital of the endowment thus increased from the original 2.5 gru to 2.729 gru . Original capital of the waqf f. to buy candles. This section was followed by another one called zimem which included the following information on borrowers: j. was provided by the waqf of Ay e Hatun for the purpose of reciting the mevlid. The implications of this will be discussed below. Out of the amount generated. murabaha fi sene-î kâmile.e. Enhancement of the original capital was not 13 Bursa Court Registers: B227/455-1/1b.5 gru were spent to assist the payments of avarız and nüzül taxes.5 gru altogether. which constituted 9. we observe an interesting phenomenon. The names of the borrowers k. The period of time covered by the census e. 50 gru . These investments generated a return of 257. The district where the borrower lived m. 86. The return obtained from the investment of the total endowed capital at the end of the year. the profit of the previous year was added which increased the capital to 2. At this point it might be interesting to provide an actual waqf case from the eighteenth century. The name of the trustee d. i. 85 gru . Finally.5 gru . Later additions to the capital of the waqf either by individuals or other waqfs g. The purpose for which the annual return was designated. mesarif. was provided by the waqf of Hatim Hatun also for the same purpose. This is the observation that three other waqfs had contributed modest sums to the capital of this waqf. i.377. After this. the so-called. the remainder was added to the original capital of the endowment the following year.544 gru . an addition of 351. as in this particular example. to recite the mevlid. The amount of capital each borrower borrowed l. In the introduction of the document the following information is provided: “ The account of the revenue and expenditure of the Muslim endowments for the purpose of assisting the avarız and nüzül taxes of the residents of the Orhan Ghazi district of the city of Bursa during the trusteeship of Esseyid Halil A a. the expenditure. the trustee of the said endowment from the beginning of the month of Muharram of the year 1200 (1785) until the end of the Zilhicce of the same year”. To this. The first contribution. in a nutshell. murabaha fi sene-î kâmile.377. to pay the trustee and the bookkeeper and for miscellaneous expenses. also came from the waqf of Hatim Hatun this time for the purpose of buying candles for the Orhan Ghazi waqf. The second one. 13 This particular cash waqf was endowed with an initial capital of 2. Gender of the borrowers It is noteworthy that these registers provide this information to us in a standard way for a period of more than 300 years..

supposedly as a sale. we have here a simple interest bearing loan with a piece of real estate as security (Gerber. would be appropriate here. The Ottoman courts approved cash endowments as early as the beginning of the fifteenth century and by the end of the sixteenth. the asset reverted back to him. we shall call it “economic interest”. First of all. but actually in a pawn. In the mean time. A summary of this debate. usually a year.34 limited to the addition of the previous year’s profit. this arrangement may be dismissed simply as a cumbersome method of lending with interest. If the borrower redeemed his debt after a year. in fact. In a separate study based upon a sample of 1563 Bursa cash waqfs and their respective profit/capital ratios covering the period 1667-1805. without going into the details. (1993b) found out that only four of these waqfs resorted to profit and loss sharing partnerships (mudaraba or musharaka/inan) while the rest produced remarkably constant returns fluctuating within a narrow margin of 9 to 12%. 1988: 128). Moreover. they also provided major injections of capital to the economy of the cities where they functioned. The term they used was the so-called istiglal. however. riba. which has been described as follows: “istiglal … was outwardly construed as a sale: The borrower handed over to the lender a piece of real estate. Çizakça. they had become extremely popular all over Anatolia and the European provinces of the empire. Ottomans themselves never called it interest. . Rejection of Imam Zufar’s suggestion and the insistence of the trustees to lend the corpus of the cash waqfs through “economic interest” had far reaching consequences. 2. education and welfare were entirely financed by gifts and endowments. These vague terms "transferred" and "extra" have been used deliberately here. it is important that from the perspective of Islamic jurisprudence. For. To distinguish istiglal from the ordinary rate of interest where the former acts in the economy just like the latter but is permitted by Islamic jurisprudence. returned to the waqf the principal plus a certain "extra" amount. which was then spent for all sorts of pious or social purposes. 14 The reader can find substantial information on the mudaraba in the following sources: (Udovitch. nothing but the ordinary interest. 1993). From economic perspective. In short. The amount endowed had to be privately owned and the capital of the waqf was "transferred" to borrowers who after a certain period. Cash Waqfs in the Ottoman Economy In a society where health. Imam Zufar’s suggestion back in the eighth century that the corpus of the cash waqf should be invested through mudaraba14 and the return be used for the original purpose of the waqf did not find application in historical reality. since it provided fixed return to the capital lent. 1996). it also occurred when other waqfs contributed to the waqf as well. the cash waqfs were essential for the survival of the Ottoman social fabric. Çizakça. it was a fully sanctioned instrument. Cash waqfs were established by well-to-do individuals who allocated a certain amount of money for pious purposes. the lender leased the asset to the borrower (so that the borrower could go on using it) and the “rent” which was often exactly 10% of the loan. was nothing but interest. Although. whether the capital of the endowment was lent as credit to the borrowers and the return was. The question now is whether this arrangement should be called ordinary interest or was it something else? To start with. 1979. This can be considered as sufficient proof that the Ottoman cash waqfs lent money with a nearly constant return. constitutes a debate (Mandaville. 1970) and (Çizakça. it was nothing but interest.

On the demand side. supply side capital pooling.e. i.. totally unexpected results were encountered. i. in a city famous for its silk industry.000 distinct individuals or if a particular group of people kept borrowing from a multitude of endowments in a given year. Further research into this small group of capital pooling borrowers revealed that these were the trustees who were borrowing from the very endowments that they were managing themselves! This view is supported by another study. aided by the computer. it would have relatively less capital at its disposal. however. although the average credit per capita borrowed had increased by 43% between 1749-85 in Bursa. it was established that only 7.. whereas a bank accumulates funds from a multitude of savers and then transfers these to entrepreneurs and earns its profits through the different rates it utilises (lending rate minus the borrowing rate constitutes the bank’s profits). moreover. In short. it can be envisaged that an entrepreneur could borrow money from an endowment with a modest rate of “economic interest”. applied a process of capital pooling among themselves. the cost of capital for an endowment would be zero! Thus. First of all.e. The specific example presented above has revealed that endowments. This was a difficult question to answer. which showed that. sarrafs in Istanbul. a . The problem was aggravated by the fact that the Ottomans did not use family names. with one difference. another indication that capital was not accumulated at the hands of a few enterprising individuals but was diffused throughout the city' s population of about 65-70. a cash waqf would actually distribute the lifelong accumulation of a single individual. So. a cash waqf could function in reality just like a bank. This took the following form: founders of smaller waqfs stipulated that a part of the annual return of their waqfs be set aside to be submitted to the larger waqfs. indeed. In any case. Looking at the problem from the perspective of capital accumulation. the entire rate of return could be considered as profit. function as an instrument of capital distribution. The total number of these borrowers was calculated as 6. 53 gru . assumes great importance. the possibility of capital pooling among the endowments. whereas the bank has to pay a fixed rate of interest to the savers (borrowing rate).35 We will now focus on this problem.. is also. But then this conclusion had to be subjected to a test.648 for the year 1767. an entrepreneur borrowing from a multitude of endowments. Supply side capital pooling implies that substantial capital could be put at the service of the entrepreneurs by a group of waqfs and demand side capital pooling implies that a single entrepreneur could borrow from a multitude of waqfs to maximise the available funds at his disposal for a single project. This was the first indication that the borrowers were not entrepreneurs but consumers. The funds that these trustees borrowed.000. i. hardly did so. Capital pooling on the demand side. Moreover. an endowment pays nothing for the fund it transfers to the borrowers.000 borrowers were 6. i. So. Implications of these assumptions should be fully understood. 1993). were not spent for establishing or enlarging businesses but for lending further at a higher rate of interest to the money dealers. to borrowers and thus.5 per thousand of the borrowers had borrowed funds from two different endowments in the year 1767. It can be further assumed that since an endowment utilised the savings of a single individual. Put differently. In fact. for it was possible that the data may have been repetitive. rather than the savings of thousands of people. obviously. Thus. In short. another profession that would most likely have utilised the cash waqf sources. we do not know if these approximately 6.e. quite important. actually practiced demand side capital pooling. endowment capital. the silk sector. supply side capital pooling was confirmed. What is in question here is whether cash waqfs could fulfil the function of Western banks for Islamic societies. In other words. the ratio Silk Credits/Total Credits never exceeded 3% during the period 1749-85 (Çizakça..e. in fact. the amounts borrowed were quite modest. other clues such as occupation and residence had to be utilised. on average. which would be spent for social and pious purposes. in 1749 and 76 gru in 1785.

Capital pooling was certainly practised among the endowments but the borrowers were mostly small consumers and the endowments’ funds were not utilised to finance important business ventures. they did not have to submit their houses as collateral as everybody else had to. Since istiglal involved the submission of a substantial collateral in the form of a house. Since. the trustees were instructed by the waqf founders themselves to lend at a specific rate. While istiglal conformed to the letter of the law.e. At this point we must ask several “why” questions. To conclude. it violated its spirit by dangerously approaching the ordinary rate of interest. indeed. it must have been a relatively simple matter for them to borrow from the cash waqfs that they were controlling themselves.36 secondary capital market had emerged in the Ottoman economy with the cash waqfs providing the cheaper money and the sarrafs re-lending it at a higher rate of interest to the merchants and tax-farmers. In other words. did they finance merely consumption rather than entrepreneurial investment? The answer lies in the method of lending and takes us back to Imam Zufer who had suggested that the waqfs’ funds should be transferred to the borrowers as the capital of a mudaraba partnership. Moreover. would have meant that they would have had to provide several houses as collateral.15 In any case. Imam Zufer had envisaged a mudaraba partnership between the cash waqf and the borrower. in other words. Obviously. probably concerned about such risks. In many cases.. request funds from a multitude of waqfs to accumulate capital. they were in a unique position to borrow from a multitude of cash waqfs. they applied not the recommended and completely legal mudaraba but the far more dubious istiglal which was a legal device concealing a usurious transaction. Further research about the trustees has revealed that they were becoming ever more important as borrowers. actually functioned as an institution of capital distribution. did the Ottoman cash waqfs not function like the Western banks and contribute to the process of capital accumulation in the economy rather than limiting themselves primarily to the redistribution of capital? Why. as many houses as the cash waqfs they wished to resort to! It was because of this risk averseness on the part of the waqf founders or the trustees that the cash waqfs were limited to the role of capital distribution and could not contribute to the process of capital accumulation. Now that we have established that the cash waqfs could not provide funds to the economy for entrepreneurial investment. which originally appeared as a promising and unique Ottoman institution of capital accumulation. 15 . Why. research has revealed that cash waqfs. the former being the principal of this partnership. and the latter the agent. moreover. the borrower was severely limited. we should not be surprised if the entrepreneurs could not resort to demand side capital accumulation i. To do so. most probably. the rate at which they borrowed was substantially lower than the prevailing market rate. in response to the relatively small amounts of capital possessed by the cash waqfs. We have. First of all. A tiny minority of borrowers who did practice capital pooling did so in order to lend the waqf funds at a higher rate of return to the sarrafs of Istanbul thus in this process creating a secondary capital market. Consequently. it has been noted above that a two-tier capital market appears to have emerged in the Ottoman economy. While this author is not aware of any historical source explaining this refusal. stated above that the trustees had refused to apply Imam Zufar’s suggestion. we may wonder about the extent of other funds they provided to the economy. with some of the trustees borrowing from their own waqfs funds at relatively low rates and then re-lending these funds at higher rates to the sarrafs in Istanbul. it can be deduced that the trustees must have been concerned about the risks of a mudaraba partnership.

1995: 26. we reach the figure of almost half a million gru . they must have earned substantial amounts by exploiting the difference between the two rates of “interest” existing in the capital market. In any case. these rates could not be changed in response to the changing economic conditions and any attempt to do so was considered to be against the law. Thus. Comparing this figure with the tax-farm registers. But the survival rate of the cash waqfs of Bursa has been calculated. eyhun. on the other hand.000 gru and rose to 321. had reached a staggering 1. it may be thought that the real estate waqfs should have much greater possibilities for survival. Bearing in mind that some major sultanic real estate waqfs could be maintained for centuries and many are still in service. this amount saved by the privileged few was voluntarily redistributed. All of the above supports the argument that cash waqfs were responsible for a largescale injection of capital into the economy. the survival rate of the cash waqfs should not be under estimated. an agricultural bank. Once determined by their founders. alone advanced 563. 1970: 234).102 million gru (Eldem.750.000 gru . we encounter a totally different picture.111. Decline of the Ottoman Cash Waqfs At this point the reader may wonder about the relative staying power of the cash waqfs vis-a-vis the real estate waqfs. It has already been mentioned that the cash waqfs charged a fixed rate of “economic interest” which did not change over the long run. we have been informed about the substantial decline in the relative importance of cash waqfs as a source of credit (Öztürk. unfortunately. He thus gives us the impression that the system was doing perfectly well but Eldem informs us that in the same year the Ziraat Bankasi. Thus. The rigidity of this rate was caused by conditions stipulated by the founders at the time of the establishment of these endowments. but the average rate of survival of all.423.000. The credit advanced by the Ottoman Bank.000 persons were provided with credit by the cash waqf system in the city of Bursa. as credit. Our analysis was based upon a sample of 25% and covered the period 1749-1785. 1995: 336). 1995: 317-320). but cash waqfs as a whole. in a given year during the eighteenth century. The cash injected here was not a lump sum amount given as credit to a select group. As for the total amount borrowed by these people. But we must not lose sight of the redistributive power of the cash waqfs.989. more than 6. Our research has revealed that slightly more than 20% of the Bursa cash waqfs survived for more than a century (Çizakça. On the contrary. But the relevant question here is not the survival rate of some major sultanic waqfs. 3. Let us first concentrate on the former. Apparently there were two distinct reasons behind this decline: economic and administrative. it has been shown that the capital injected into the economy of Bursa was nearly ten times greater than the amount withdrawn by the state through the tax-farm of silk cloth press (Çizakça. 1992). the one from the year 1767 was the most complete and therefore contained the most data.000 gru in 1943. Of the three Inspection Registers considered. Öztürk has shown that in the year 1908 the total capital of the cash waqfs was equal to 90.37 Consequently. injection and redistribution occurred simultaneously. we are not yet in a position to conduct comparative research because the survival rate of the real estate waqfs in any particular locality has not yet been studied. Thanks to recent research. We will now attempt to quantify this statement for the city of Bursa. although probably less impressive than the real estate waqfs. modern banks as suppliers of credit superseded the cash waqf system. which we have calculated in the same manner. In short.000 gru in 1923 and to 11. which could be extended even over a millennium. we obtain a very rough estimation of the total number of borrowers and reach the conclusion that. If we look at the problem of survival not from the perspective of cash versus real estate. . If we take 1767 as the year for which we have the most complete information and multiply the data for that year by four.

there developed a capital market in which two different rates of interest prevailed. as a source of credit. 16 . Turning our attention to administrative reasons for the decline of the cash waqfs. The 2% difference therefore may represent a mark up charged by the trustees when they re-sold the capital to the sarrafs. Consequently. It is true. 17 Prime Ministry Archives. money changers. 17 Moreover. the profit of the trustee/sarraf would increase up to 8% or more. All the seven banks of the 17th century Naples were engaged in charity and functioned much like the Ottoman cash waqfs granting loans upon pledge. it would make sense to borrow money from cash waqfs. the trustees themselves could also become sarrafs. Archives of the Chamber of Commerce. the trustee/sarraf would borrow capital cheaply from the cash waqf managed by himself and lend it at a higher rate to a third party. Even more definitive evidence supporting this idea has been found in the archives of the Chamber of Commerce of Marseille. 2144 18 Evolution from charitable foundations to banks has also been observed in Europe. Marseille: (ACCM. which supplied the relatively cheaper capital and then sell this to the sarrafs who would re-sell it with a mark-up to the public. The details of how these Italian charitable foundations evolved into the powerful public banks and the comparison of this process with the emergence of powerful Ottoman sarrafs need to be searched separately (Avallone.16 They report that the sarrafs obtain capital at 12% to 13% interest. the huge discrepancy presented above concerning the relative financial powers of the two institutions should not surprise us. there developed other sources of finance. Istanbul: Cevdet Maliye. The sarrafs. That the sarrafs. In short.38 While the rates charged by cash endowments thus remained fixed. 1999: 111-115 and Kazgan. but this was basically of a voluntary nature and quite unsystematic. This discrepancy would become even more striking if we take into consideration the fact that the Ziraat Bank was only 20 years old when it had so obviously superseded the cash waqfs. indeed. that of the deposit banks is constituted by the savings of the masses. This was the centralization drive initiated by Abdulhamid I and continued rigorously by the following sultans. it was shown as evidence for the above argument that they were emerging as major borrowers of capital from the very endowments that they controlled. J 183). particularly Mahmud II. borrowed capital from the cash waqfs has been proven also by an original Ottoman document. an institution that has been in existence since at least the fifteenth century. In this case. 1991). This process naturally closely resembles the essential character of conventional deposit banking and the sarrafs may be considered the original deposit bankers in the Ottoman Empire. some cash waqfs did apply what we have called above “supply side capital accumulation” with one cash waqf donating part of its profits to another. The correspondence of French merchants residing in Istanbul inform us that. Consequently. In one of the French documents. not only cash endowments but also real estate waqfs. the market rate of interest prevailing in that city was substantially higher than the “economic interest” charged by the cash waqfs of Bursa. charged rates determined by the supply and demand for money. It was further argued that the trustees of the cash waqfs were in an ideal position to perform such transactions and indeed. which they then lend to the members of “our” nation with at least a 20% interest without any regard to usury prohibitions. It was argued above that under these conditions. This approximate rate of 12-13% is roughly 2% above the rate at which the cash waqfs provided capital. we must note a major development that affected the entire waqf system. indeed. I am grateful to Edhem Eldem for this information. it is clearly stated by the two “deputés” Conston and Reimond that the situation in Istanbul differs substantially from that of Europe.18 But the primary reason for the disproportionate financial powers of the two institutions must be sought in their organisational structure: whereas the capital of cash waqfs is constituted by the savings of a single person. which were not hampered by such limitations.

A directive promulgated on the nineteenth Cemaziyellevvel 1280/1863 made it clear that cash waqfs fell within the jurisdiction of the Evkaf-ı Humayun Nezareti. 1979. Consider a waqf established by a certain Mehmed A a for the poor of the quarter of al-Farafira in Aleppo. Masters. 95 gru was spent. Thus the rate of “economic interest”.000 gold dinars. As the Ottoman Empire was dying in Istanbul. Article 14 of the directive instructed the trustees that the annual return of endowments not assigned for a specific social service must be sent directly to the treasury and recorded in the registers rather than kept by the trustees. istibdal. of 100. and made it obligatory to convert all endowed cash into bank shares thus destroying whatever was left of the judicial personality of the cash waqfs. In 1967 another law introduced a rule of conversion. for the first time. was twice as much as Mataf’s waqf. . The Law of Endowments dated 1935 had articles pertaining to the profitable administration of the cash waqfs. cash waqfs contributed substantially to the newly established nationalist government in Ankara. Put differently. the Turkish Bank of Endowments. The remainder of the money. The death warrant was issued in 1954 when all the capital of these endowments was transferred to Vakıflar Bankasi. The demise of the cash waqfs under the Republic can be summarised as follows. This Article is of interest not only because it indicates clearly that the cash endowments did not escape the centralization drive of Mahmud II. constituted 20% of the capital of the bank and were owned by the endowments managed by their own trustees. as well as the 4 gru left from the previous year was spent for unnamed projects benefiting the district. to help the district pay its taxes.5 gru . 1988: 162-163).39 Although this process will be analysed in detail later. Cash Waqfs in Syria It was Bruce Masters who challenged. The earliest evidence Masters has been able to find dates from 1597 when the governor Ahmed Mataf established a cash waqf with a huge capital of 10. Consequently. From the accounts for the year 1659-1600 presented to the local judge we learn that the principal of the endowment was a much smaller 500 gru which had yielded an “economic interest”. murabaha fi sene-î kâmile. 20%. It is self evident that the trustees did not just keep the money in their possession but lent it at a higher rate to the sarrafs or to the public. but also because it confirms the arguments made above pertaining to the tendency of the trustees to exploit the resources of the cash waqfs to their own advantage. More specifically. but the return to be earned was to be spent for the benefit of the poor. new and exciting possibilities were being opened up for the Turkish cash waqfs. The terms of the endowment fixed the “economic interest rate” at 10% and stipulated that the money should be lent to persons who held wealth or office. however. 1967 can also be considered as the year of the re-birth of modern Turkish cash waqfs. Ironically. These developments will be presented below. These shares constituted 55% of the bank’s capital and remained the property of the General Directorate of Endowment. The group A shares issued by the bank were purchased by endowed cash. it should suffice here to note that cash waqfs also could not escape Mahmud’s iron grip. Mataf’s waqf was a so-called avarız vakıf designed to reduce the burden of extra-ordinary taxes levied on a particular district of the town. Mandaville’s assertion is not anymore valid (Mandaville. Of the return generated. Mandaville’s assertion that the jurists in the supposedly more pious Arab provinces of the Ottoman Empire did not sanction cash waqfs. 1979: 635). The policy of the waqf was thus to lend conservatively at minimum risk to a select group of borrowers. while the judicial personality of the Ottoman cash waqfs was being destroyed. again. The shares in group B. Ministry of the Imperial Endowments. In view of the solid data provided by Masters from Syria. Another specific example illustrates how this worked in practice. 4. they could not be sold to third persons (Hatemi.

Most loan agreements established the responsibility of a guarantor. 1952: 263) . family members could be held responsible for repayment of a relative’s debt for up to 15 years after the loan was contracted. This also required the agreement of both parties in court before it became legally binding.” (Anderson. Muslim residents of a mahalle collectively assumed responsibility for a Christian’s debt and had him released. the judge ruled that instalments would only be legal if they had been stipulated at the time the loan was contracted or if both parties had agreed in court later on to a scheme of repayment. parallels may be found in Articles 15 and 16 of the Lebanese Law. 1994: 158). To these provisions. i. We are also well informed about a certain Abidin Bey. but the Maliki view. unlike Turkey. but the Maliki doctrine which makes no such restriction was plainly more suited to modern life. which apparently also functioned as cash waqfs. Assuming that he was known to be a decent person.e. The interest charged by these was more or less the same as other cash waqfs. The alternative involved delaying the payment until a later specified date. In this case. the Egyptian cash waqfs were apparently allowed to maintain their judicial personality. however. “ … the Hanafi law previously applicable. far stricter in this particular. Failing either of these conditions. only allows a waqf of movables as appendages to immovables or as sanctioned by ancient custom. two options were possible. The first involved rescheduling the loan into instalments until the loan was repaid. Cash sums were also allocated for the periodic celebrations of the mawlids of the Prophet and other saints (Behrens-Abouseif. the explanation for these low rates lies “in the nature of Muslim society. residents of his quarter. 5. In nearly all the cases. which included extensive real estate as well as cash. In one of these cases. For Masters. the loan had to be paid in total at the time stipulated by the original loan contract. another system came to the aid of the debtor.40 Another observation of Masters pertains to the orphanages. Masters appears to have been impressed by the very low rates of default prevailing in the cash waqf sector of Aleppo. Concerning modern times. provided the companies concerned do not transgress the Islamic prohibition of usury. If the borrower defaulted. In one particular case dated July 31. 1718. in the 10-20% range. kefil. would come together and collectively bear the responsibility of his debt.. The cash was endowed as waqf for the poor of the holy cities. Cash Waqfs in Egypt Various sources have revealed that large cash sums were being dedicated in eighteenth century Egypt to various religious institutions such as the famous al-Azhar as well as to lesser zawiyas and shrines. in which families constituted corporate bodies. For we are informed by Anderson that Article 8 of the so-called Law of Rules Relevant to Waqf. in view of the disputes and complications to which the contrary policy inevitably gives rise. mahalle. The enunciation of this principle demanded an express reference to the validity of a waqf of stocks and shares. Setting up the reschedulement often prompted disagreement among the parties and led to court cases. If either of these compromises failed and if there were no family members to assume the responsibility of the debt. who was the amir al-hajj in the 1620s and who developed a whole quarter of Cairo known today by his name. Should the debtor be present in the city but unable to repay the loan on schedule. responsible for the actions of individual members”. allows the waqf of an undivided share in indivisible property almost without restriction. dated 1946 allows the establishment of cash waqfs with stocks and shares (1952: 263). The development was achieved through the waqf system. Anderson also says that there has been a shift in Egypt from the more difficult Hanafi law to the Maliki law in waqf affairs. The view of Abu Yusuf previously dominant. the debtor would be jailed. for the debt. again. seemed preferable.

It is thus permissible in Egypt to sell such waqf properties on the condition that the cash obtained is used to establish a new cash waqf. It is furthermore noteworthy that the Maliki stringency concerning the waqf of Mush’a also led to an indirect confirmation of the modern cash waqfs. and then using this. paved the way for a massive land reform and the nationalisation of the waqf lands by transferring the ownership of these lands to the Land Reform Committee. In the year 1942. a special court. 19 . in fact. Egyptian authorities considered the Hanafi law as too rigid and preferred the Maliki law. these amwal al-badal were not immediately put to use. The permission granted by Article 8 to establish cash waqfs with the stocks and shares of joint-stock companies has had important repercussions for ibdal/ istibdal in Egypt. 1952: 265). The trustees of the waqfs were issued with Land Reform Bonds for the confiscated lands. the 1946 Law in Egypt introduced several reforms simultaneously. for instance. There may have been a number of reasons for this. but in cases where such a request did not materialise within a year from the date when this law came into force. the Maliki law which was preferred in view of its flexibility concerning custom. on the demand of the Minister of Justice.e. Articles 14 and 15 altered this. This law.. then all property so constructed or bought was held jointly by them in proportion to the share of each therein. attacked the problem of idle funds generated by the sale of derelict waqf properties. When a waqf property was sold off. Courts may also give permission to invest these amwal al-badal temporarily to generate income in the short run. On the one hand. the real estate waqfs of Egypt were Italics are mine. On the other. the amount of money for which it was traded is called amwal al-badal. “real or personal property”. It first permitted the establishment of cash waqfs with stocks and shares of joint-stock companies (Article 8). Previously. Ironically.938 (Anderson. Instead of moveable or immoveable property. Anderson uses the terms. interest due on the bonds and later profits from the invested capital. on behalf of their waqfs. was allowed to expend them in purchasing sources of income in the form of moveable or immovable property. Law 152 conferred upon the state the right to substitute money for land. That the same provisions can also be found in the Lebanese law is also interesting.20 The practice of converting real estate properties of the waqfs into cash was boosted with the Nasserite revolution when the state assumed jurisdiction over all the waqfs through the Ministry of Waqfs. In 1957. which does not have any restrictions regarding customs. the capital was to be transferred to the government and invested in development projects. It is envisaged that a court would do this in response to the request of the interested persons.19 If the capital of numerous waqfs had been sold off and the amwal al-badal belonged to these waqfs jointly. which would provide a new source of income for the waqf in question. was also preferred for its relative stringency concerning “the waqf of undivided share”.41 We need to elaborate on the difficulty pertaining to the Hanafi law. the technical difficulty embodied in the concept of custom may also have prompted this process. The trustees were then supposed to receive. Maliki law may have been preferred to the Hanafi as part of a process to discard the vestiges of the Ottoman era. Thus. 20 Anderson has argued: “The right to buy property of a nature different from that of the original waqf may be supported from Hanbali authorities” (1952: 265). Since the establishment of a waqf with joint-stock company shares must have been a new practice. They authorised the courts to purchase with the amwal al-badal in their treasury any moveable or immovable property. the Mahkamat al-Tasarrufat in Cairo. Thus. which allows the waqf of movables subject to ancient custom. i. In this way. to practice ibdal/istibdal on a massive scale. When the bonds matured. they were kept idle for years and depleted by inflation. the total amount of idle cash had reached PE 670. Mush’a. notwithstanding Imam al-Sarakhsi’s report that Imam Muhammad had confirmed the waqf of movables as valid subject to custom existing at his time as well as subject to custom that may arise in the future. the authorities may have preferred the Maliki law.

.000 rubbles had been donated to this institution alone. which satisfies the following conditions. securities. the Mussalman Waqf Validating Act of 1913 has sanctioned these waqfs and put an end to the conflict previously prevailing. Although this statement appears to be conjectural. how an Indian jurist-scholar A. We are informed by an earlier work that such waqfs comprised about eight to ten percent of the total cultivable land in Central Asia (Yediyıldız. The situation was clarified by the Waqf Validating Act of 1913. McChesney does support it with a Russian source (Dzhalilov. on the other hand donated 35.045 rubbles. Concerning the cash waqfs. in the guberniia of Kazan the total cash capital of the waqfs reached 22. appears to have been most influential. and Calcutta had ruled against the waqf of movables. The well-known Galiya madrasah in Ufa has survived thanks to the generosity of local bays like Nazirov. In most cases in India. reveals how the waqf law was applied in Kasghar. Al-Ma’mun Suhrawardy had visited Istanbul to study Ottoman jurisprudence concerning cash waqfs. stock. Between 1906 and 1916 more than 70. there is no reason why these waqfs so popular in the Hanafi Ottoman lands should not also find application in Central Asia.000 rubbles. which had a corpus of 1. a property. The objections of some of the Hanafi scholars notwithstanding. More substantial and direct evidence has been provided by Utyabay-Kerimi who has shown that the cash waqfs were flourishing in the Ural-Volga region during the nineteenth and twentieth centuries when Turkic capital began to flow in. which permitted a waqf of “any property” including the movables i. Cash Waqfs in Central Asia Our information about the existence of cash waqfs in Central Asia is extremely limited. 7. Janturin. at the beginning of this chapter. 1994). which were lost after 1891 (Utyabay-Kerimi. Usmanov. shares in joint stock companies.000 rubbles without taking into consideration the 22. etc.000 rubbles for the masjid and madrasas of the city of Troitsk.400 rubbles and in the guberniia of Orenburg it was 262. The Privy Council had left the question undecided. Bombay. Cash Waqfs in India We have seen above. The property must be tangible property (mal) b. which was published in the Journal of the Royal Asiatic Society of Bengal in the year 1911. In the same time the waqfs in the Crimea owned 351.000 desyatin of land worth 400. According to Suhrawardy. etc.e. His Article.. notes and even cash. our primary concern here. In general. The property must be capable of being used without being consumed (Shafi’i position). More specifically. Concerning the validity of the waqf of movables in India. the High Courts of Madras.000. a merchant from Tashkent. For. money shares in companies. declaring them void. McChesney makes the simple argument that since this region was also predominantly Hanafi. there was a conflict before the passing of the Waqf Validating Act of 1913. 6. referring to the Swedish missionaries’ reports. a combination of Imam Shafii’s and Hanafi Imam Muhammad al-Shaybani’s principles is followed and the waqf of movables is held to be valid subject to custom. 1: 45-49) pertaining to Uzbekistan. can be endowed: a. Sherif Yaushev. According to the official documents dated 1911. 1986: 159). Although Bellér-Hann’s latest work.000 rubbles.42 converted into cash waqfs with shares in government development projects (Baer. reference has been made to the cash waqf of Ahmed Bey Husainov. it came to be recognised that the waqf of everything would be valid providing there is custom in any particular locality. movables include cash. Indeed. it is limited to real estate waqfs only (forthcoming). 1969: 9192).

The poor “nawabzadahs” who come along every month to collect their stipends remind us of one of the dangers facing cash waqfs that unless the corpus as well as the returns it generates are systematically reinvested. The following case should illustrate how a Shiite cash waqf operates in India. The Rs. 48. Thus we are talking about a hybrid real estate/cash waqf. Shiite ceremonies commemorating the events in Karbala and the provision of food in these elaborate ceremonies constituted another major expense item. For. Location . Pakistan that a waqf of cash will be valid provided the fund was not intended to be consumed. the watchmen. It has been held judicially that even the government promissory notes can be endowed. But as late as 1947. The Muharram ceremonies are still financed by the endowment. the number of pensioners is quite large (Kozlowski. a Nawab Ruler. The salaries of the endowment’s staff were another major source of expenditure. The Board demands to know the following from each newly registered waqf: 1. 48. Since the Nawabs supported about 70. 1985: 28-30). In the majority of cases the courts have treated endowments of movable property. obviously. The situation was clarified and finalised by the Mussalman Waqf Validating Act of 1913. in the Mirza Yakub v Mirza Rasul Baig case. Section 3 of the Central Waqf Act of 1954 also confirms the foundation of a waqf by any type of property whether movable or immovable. any person who wishes to establish a new cash or real estate waqf is obliged to register it with the State Waqf Board. etc. Muhammad Ali Shah. only the stone buildings could survive). Particulars of waqf properties a. The numbers of these beneficiaries and the rupee’s decline has led to a massive reduction in the amounts distributed. ILR 1947 A11 334. 1947 ALJ 232> the Allahabad High Court took a different view and held that the waqf of money decree is not valid. Section 2i of this act is very wide and includes every kind of property mentioned above. 1990: 76). in the Ghulam Mohiuddin v Hafiz Abdulrashid case <AIR 1947 A11 127. This annual revenue was spent for no less than 12 different charitable purposes. Indian courts declared waqf of any property valid. The staff consisted of religious functionaries as well as the cleaners. The Husainabad endowment had a yearly income of Rs. establishment of cash waqfs was the prevailing custom in India. the Allahabad court preferred to adopt the strict Hanafi reasoning and reach the same result. then such a waqf would be valid (Qureshi. Thus. Thus. Number and date of registration 2. government promissory notes and shares in joint-stock companies and cash as valid. After the passing of the Mussalman Waqf Validating Act of 1913. as all the other cases mentioned above would indicate.000 of that sum was cash. built in Lucknow. approximate information is provided. If the deed has been lost. According to the Central Waqf Act of 1954.000 was the interest on a loan. an imambarah in the 1850s. There are registration fees to be paid and the waqf deed must be provided.606. This Rs. An imambarah is a Shiite building erected as a meeting place of the devoted to the rememberence of the events that took place in Karbala. But it was further decreed that if there was a custom to the contrary. this 1901 case and the others from 1907-1909 were in conflict. which the English had extracted from Muhammad Ali Shah and then converted into East India Company stock.157. Immovables: i.43 The progress towards this stage took the following route: in Abu Sayid v Baker Ali case <(1901) ILR 24 A11 190> it was said that a waqf even of coins or shares in a joint stock company was not invalid.000 people. <AIR 1923 Oadh 254> the waqf of cash money was held as valid and in the Abdulhamid v Fateh Muhammad case <PLD 1958 Lah 824> it was held in Lahore. the Husainabad. The bulk of the funds were earmarked for the maintenance of the buildings (monsoon ruined all buildings. Finally. changing economic conditions will diminish the income of an endowment. Name and address of the waqf 3.

H. CWT v.E.5 units were allocated among the relatives. The conflict between the income tax collector and the beneficiaries lasted for many years and the case was finally brought to the Supreme Court. Details of superstructure if any b. The corpus was divided into 175 equal units. Other details 4.000. 166. Particulars of annuity and grants received from other sources or the government 5. Although we will present a summary of the organisational structure of the Malaysian waqf system later. Cash Waqfs in Malaysia and Singapore In Malaysia the waqf system is greatly complicated by the fact that there is no federal law subjecting all the waqfs to the same rules and regulations. Half of this amount was owned by the Islamic Bank mentioned above and the other half by the religious departments (Gordon.000. Nizam’s Family Trust is interesting from several perspectives. But despite these similarities. Movables i. Bearing in mind that unlike the situation in Turkey where the privately endowed cash of the historical cash waqfs was pooled together and formed the equity of a huge bank. c. Vakıflar Bankası. the invested cash belonging to the Religious Departments has perpetual character since we may assume that the departments would not normally withdraw their cash. This case pertained to a huge cash waqf established by the late Nizam with a capital of rupees nine crores. since the endowed cash is not privately . Description of the movables. it should suffice here to note that in Johor and the Federal Territory it is possible to establish waqfs in the form of cash funds and bank accounts (Top.. in 1991 the paid up capital of this company was equal to RM 10. with the exception of foodstuffs and plants. 25% of the equity of the Islamic Bank Malaysia has been provided by these religious departments. Actually. At this point we wonder if this arrangement can be called a modern cash waqf. Moreover. The reason why this waqf ended up being a court case is that the Income Tax Authority demanded that the mutawalli pay income tax. Face value iii. bayt al-mal. In the rest of Malaysia also. b. did not have judicial personality to start with. 1991: 122). ii. a. The revenues of the Religious Departments of various states. 8. we cannot consider this arrangement as cash waqf in the classical sense. We will refer to the complicated problem of the Indian waqfs’ tax responsibilities below. thus losing their judicial personality in the process. Area iii. etc. the waqf may be of either immovable or movable property (Gordon. Out of which income. Value iv. The returns generated by the Malaysian Islamic Bank regularly accrue to the Islamic Departments and are used for the benefit of the Islamic community. have been invested in the Islamic Bank Malaysia and the Takaful Co. 5 units was allocated to a reserve fund.5 units to a Family Trust Expenses Fund. Another interesting application in Malaysia can be observed in the field of high finance. and belonged to the Public Treasury. Thus we have the basic Shafi’i condition that the corpus should not be consumable. Thus what we have here is the investment of waqf revenues as equity finance with the newly established Islamic financial institutions. Trustees of H. As for the Takaful Co. in Malaysia the cash invested was not endowed. whether government securities or bonds. which are partially constituted of waqf revenues. 1975: 141). Each beneficiary was entitled to only the income of the units allocated to him during his or her lifetime. 1975: 277). 3. Estimated income and expenditure Another case.44 ii.

They may become fully-fledged cash waqfs if they begin to utilize the returns generated by their cash corpus for their original purpose. the support of the Muslim orphans. there are altogether 47 waqfs that are registered. Recent research by Khatijah Shaik Abu Bakar. 22 Annual Report.6 million. It was stated in the Objects of the Association that the alms boxes placed in the mosques would be opened once monthly and the money found was to be utilised as follows: a. The association was founded by cash donated by the famous Alsagoff and Co. cash waqfs’ growth rates were indexed to the prevailing rate of interest. pp. a bequest for $400 was made for the maintenance of the testator’s wife and to be spent for “kandoories”. The original fund was expected to be supported further by alms giving.e. 54-55. Eighteen out of these appear to be (or should be) cash waqfs. Mohammad Hashim. Since the total value of all the registered awqaf in Singapore is equal to S$92. What is needed here.000 (Ibrahim. i. in the mosques. has revealed that these eighteen waqfs are in a transitory stage: they were originally real estate waqfs but were acquired by the state of Singapore. etc. It is noteworthy that the rejection was due to the obscurity and not due to the nature of the capital endowed. According to the 1995 Annual Report of the Majlis Ugama Islam Singapura (MUIS).5% would be deposited to an account to be opened with the Hong Kong and Shanghai Banking Co. in Singapore to the credit of the association 21 See the second Cabinet Decree dated May 17. and various other Muslim businesses and individuals.21 The total value of the assets of these transitionary waqfs amount to S$1.47 and was intended for the financing of burials of poor Muslims. It would be of great interest what the future will bring to these waqfs. (Singapore: MUIS.. 2.. they constitute a mere 1% of the total value of the registered awqaf in 1995. is the recognition that the cash deposited by the state still constitutes a waqf. This means that while real estate waqfs have become enormously rich. First of all. demonstrates the validity of cash waqfs in Malaysia. This is because.669. Their income is in the form of returns from cash investment either in the form of bank deposits or dividends from securities or reassessment of securities. . a Singaporean graduate student at ISTAC. the annual report of MUIS indicates that these waqfs do not have any fixed assets and do not earn rent.45 owned. the annual rental income from the property shot up 126 times from $500 to 63. The endowment was deemed void on the grounds that it was not known how much of the return of the $400 was to be spent for the wife and how much for the “kandoories”. Accordingly. in Singapore an endowment is defined as any endowment in land or money to be given in support of any Muslim mosque or school or for charitable purposes (Gordon. Article 44 of the Islamic Republic of Iran.885. 1975: 288). It might be appropriate to summarise a special case here: the Muslimin Trust Fund Association of Singapore founded on the 31st August 1904. 38%.22 The explosion of land values in Singapore can explain this discrepancy.5% of the total would be handed over to the Imam of the mosque for the upkeep of his mosque b.263. the support of the Alsagoff School. They may also be engaged in a further istibdal and convert their cash into new real assets. Another interesting case. The state paid cash as compensation. the supreme authority in Singapore for all Muslim affairs. 97. The following example should illustrate the point: when the MUIS had 4 town houses built on a plot of the well known Jabbar Waqf at a cost of $1. For Singapore we have more detailed information.. 1994: 72). an important legal procedure possible in Iran. 1995). Z. presented below. Ashabee v. Thus we are talking about a case of forced ibdal. however. The total amount of cash donated amounted to $ 864. mulk. But the arrangement is certainly interesting and demonstrates the capability of the Islamic financial institutions to evolve.054. 1986. sadaqa. however.

in both Malaysia and Singapore cash waqfs exist but in each they are in a dormant state. a dramatic and sweeping move of wiping off their judicial personalities and merging them into a huge bank has not taken place. whether cash or real estate. an Arabic school. Thus. an orphanage and managed 5 mosques (Ibrahim. 1965b: 47-49). . Another common point between these countries is the excessive centralization of their waqf systems. As in Turkey. have been affected by massive centralization and so we will now turn our attention to this universal phenomenon. In the year 1965 the association had an outdoor dispensary. The deposited money (plus the interest?) was to be used for the purposes of the association stated above. It is nevertheless true that all the Malaysian and Singaporean waqfs.46 c.

what were the legal premises behind the state’s interference? 3. namely: 1. Introduction We are now in a position to take into consideration the questions we have asked at the beginning of this book. Was the process of centralization and the pursuing destruction linear or cyclical? . Why does the state feel the need to centralise and even to destroy the waqf system? 2. Since even the state had to obey some rules.CHAPTER FOUR: CENTRALIZATION OF THE WAQF SYSTEM CHAPTER FOUR: CENTRALIZATION OF THE WAQF SYSTEM I.

1992: 20). property rights. Thus. This is because. To understand this dramatic phenomenon we must first of all analyse the forces. the slightest change in weather conditions might disrupt food supply and a serious one could lead to famine. in response to the market forces. Under these conditions. if not before. It was for this reason that. Under the premodern conditions of fixed land and technology. would be to try to curb the production of the cash crops and force the producers to concentrate on growing grain instead. the Roman emperors had encouraged the production of essential foodstuffs and curbed cash crop production (Rostovtzeff. Times of plenty and good harvests of the basic foodstuffs would mean that these particular crops would be neglected by private producers. the privately owned lands would be allocated. which declared all grain producing lands as state property and limited private ownership of land only to the orchards. 1994: 105). which command the highest price. at least starting with the famine-caused uprisings in the city of Prusa (modern Bursa) during the early years of Domitian’s reign (81-96 AD). a significant expansion of waqf property at 23 For other early examples of centralization. by Ibn Khaldun (1958. The first thing the state could do. so much so that even the mosques could not be properly maintained.5 million dirhams. Moreover. A compelling argument may be linked to the problem of provisioning. The positive effects of the Ayyubid reforms were reported. Bayt al-mal. This is particularly true concerning the question as to which crops to plant. This particular Roman logic reappears a millennium and a half later behind the Ottoman policy. the revenue of all the waqf assets was farmed out for 1. riots and even to a Malthusian epidemic and loss of population. there was not one but a number of reasons for the state’s recurring need to do this and subjugate the waqf system. basic foodstuffs would be neglected by land owners under favourable conditions as predicted by the Cobweb Theorem. a bulk transfer of basic foodstuffs would be out of the question. Under these conditions. By the reign of caliph al-Mustansir (1036-94). The importance of the issue will become clearer in view of the fact that centralization culminated during the nineteenth and twentieth centuries in a massive process of deliberate destruction of the system. The sorry state of the Egyptian awqaf was also observed by Salahaddin Ayyubid who launched a massive reform immediately following his conquest. 1991: 27-28). It is timely to consider the implications of this episode. Thus about 90% of all arable lands were placed by the Ottomans under state control (Inalcik and Quataert. . there was a limit to how the state could force the producers to plant those crops that it prefered. due to the poor state of roads and transport technology. while on the one hand. ceteris paribus. the central control broke down completely (Cuno.48 In what was probably the very first attempt at a massive centralization of the waqf system. II: 435). the larger the state owned lands the more reliable would be the supply of basic foodstuffs. any expansion of privately controlled land at the expense of state controlled land would jeopardise a regular and reliable supply of the basic foodstuffs for the masses. To be sure. on the other. we have to note that waqf land functions in reality as though it is in semi private ownership. Such decisions were obviously taken by the trustee of the waqf without any interference by the state. see (Lambton. the Fatimid caliph Al-Mu’izz decreed in 979 that all the assets of the awqaf were to be handed over to the Public Treasury. for those crops. Taking into consideration the poor state of road transport. it follows that a bulk transfer of the basic foodstuffs would be dreadfully expensive. This limit was obviously the division of the available land between private and state owned lands. we have an explosive situation here.23 Within this framework. which prompted the centralization. 1929. for centralization of the waqfs is a theme that is repeated throughout Islamic economic history. under these conditions. But. centuries later. I: 165). This proved to have been disastrous and led to a substantial decline in the revenues of the waqf system. It can be argued that under the conditions described above. in short.

Thus. are often led to think that a peasant was free to sell his land. kharaj. These complex legal issues are clarified by Baber Johansen as follows: “Beginning in the Fatimid period … Muslim rulers tried time and again to confiscate the waqfs and to treat them as lands belonging to the state. could revoke the waqfs. This brings us directly to the question of how the Caliph Al-Mu’izz in the year 369 A. the state retained the rakaba. This tendency reached its climax under the Ottoman ruler Mehmed II who tried in the 1470s to ‘sultanize’ all arable lands including the waqfs. gayr-i sahih. how can the state confiscate it? The answer is that it cannot. from the point of view of Islamic law. ownership. it should be understood that they were permitted to retain not the ownership but the usufruct. with the ownership firmly in the state’s hands. and to the farmer. was land. the tax revenue generated by it that was endowed. or irsadî (Akgündüz. but rather. In such cases it was not the ownership of the land. himself. Such endowments were permitted only exceptionally and subject to the Sultan’s approval. unless of course. whereas what the peasant was permitted to do in these conquered lands was merely to sell his tenancy rights (Aghnides. the systematic law books do not specifically treat the issue of land ownership. Thus. But then. those readers unaware of these three independent elements. a privately owned property? Ownership of land constitutes one of the thorniest issues in Islamic law. Hence the confusion. Since a waqf is considered to be the property of God. Since. Ownership rights of private persons or pious . 1994: 106). gayr-i sahih. as in Roman law. and the potential loss in tax revenue. These rulers could do so by basing their actions on the principle of inalienability of the state’s ownership. A careful look into the nature of state ownership of conquered lands in Islamic law reveals that. such waqfs were known as unsound. he had no right to endow it in the first place. He recognised only orchards. The “soundness” here means that the original capital of the waqf must be privately owned. The concern for loss in tax revenue was naturally relevant for those regions (and times) where waqfs were exempted from tax responsibilities. archives are full of documents indicating the free “sale” and “purchase” of land by ordinary citizens. the waqf was unsound. First of all. 1988: 424). instead of collecting the taxes payable by the peasantry. the most basic asset of a waqf.H. That is to say. 1916: 375376). the landlord who possessed the land did not actually own it. as mentioned above. as separate elements. allowed the original landowners in the territory situated between the Euphrates and the Tigris to keep their land subject to the payment of a special tax. in practice. the Sultan permitted this revenue to be endowed. tasarruf (usus) or possession. seeking to legalise existing or surfacing conventions in the field of land holding and land taxation. when the second caliph Omar. to start with. Consequently. Each one of these elements was treated separately under the Islamic law.. Now we can turn our attention to the difficult legal issues. and what it handed over to the ordinary citizens were merely the rights of possession and usufruct. 1982: 81). Since this is not the usual method of establishing a waqf.49 the expense of that of the state would be viewed with concern for two reasons: the continuing need to provide the masses with a reliable and abundant supply of basic foodstuffs. or more than half a millennium later the Ottoman sultans. the sale of a piece of peasant land was accomplished by exchanging its usufruct for an amount of money (Cuno. there were basically three fundamental elements: rakaba (dominium eminens) or ownership. After all. the state had retained the ownership of land and handed over to the landlord the possession. But there are independent treatises on the subject written by jurists such as Abu Yusuf (1982). the usufruct. which remained firmly in state’s hands. vineyards and plantations as private property … The Ottoman system of land tenure was clearly based on the assumption that arable lands belonged in principle to the state. and istiglal (fructus) or usufruct (Inalcik and Quataert.

We have already noted above that Caliph Al-Mu’izz’s efforts were thwarted by Salahaddin Ayyubid. which were occasionally accommodated by the state. The West considered the waqfs as a “dead hand” or “mortmain”. 1982: 22). in this period another powerful factor was added: pressure from the Western powers. the waqfs all over the Islamic world remain firmly centralised and controlled by the state. the authorities could refuse to acknowledge the claims … and instead incorporate the lands into public domain. In short. 1998). Concerning the question of the process of centralization or whether this process was linear or cyclical. verifying the validity of property deeds became one of the strongest weapons which the public treasury had for controlling arable lands. He shifted the burden of proof on to the ruler who desired to tax or confiscate waqfs on the ground that it had been usurped from state owned land. they were totally subjugated to the will of the central state (Islamo lu. the latest research has revealed that the Ottoman state had gone through a process of transformation: whereas the pre-eighteenth century Ottoman state was “accommodative” of the conflicting rival groups and institutions and tried to play a “redistributive” function. 25 I am grateful to Professor Islamoglu for sharing with me the results of her research prior to publication. If we focus on the Ottoman Empire. in the nineteenth century. Generally. unlike the previous centuries. 24 . massive inter-state competition had transformed the nineteenth century Ottoman state into a totally different dimension. the evidence presented above indicates that the latter was the case. 26 Waqfs are known in the West as charitable foundations or trusts. The origins of this hostility has been traced all the way back to the late middle ages when the free towns tried to control the mortmain and limit the size of the church property. It is appropriate at this point to explain why the centralization process of the nineteenth and twentieth centuries proved to be lasting. The town councils created commissions to supervise the charitable foundations. when centralization was basically initiated due to the demands of the domestic economy or the state. These controls were enhanced during the reformation when the state officially acquired the powers of supervision.26 Establishment of new charitable institutions was subject to the approval of these councils. It should also be taken into account that the West had already attacked its own system of religious charity previously. To start with. since the re-Islamising states did not reverse these policies during the twentieth century. What makes the nineteenth and twentieth century centralizations unique is the fact that they proved to be lasting. Furthermore.24 Consequently. after all. The nineteenth century onslaught on the waqfs differs from the earlier ones in that whereas waqfs were originally among the rival groups. the nineteenth century centralization was not followed by another cycle of decentralization. This was. until the nineteenth century. It is also well known that more than half a millennium later the Ottoman Sultan Mehmet II’s similar efforts in centralization were also thwarted by Bayezid II. together with other groups and institutions. Indeed.” (Cuno.50 foundations were recognised only if sufficient proof for them existed. For the details of this legal debate see. the nature of state had changed in the Islamic world. The state had now acquired its own raison d’être and ended up being far less tolerant and accommodative of the rival groups and institutions. centralization policies were often followed by decentralization. Cuno (1982: 77-81).25 Consequently. the former is used in the Civil Law countries and the latter in the Common Law countries. But Catholic Europe was also going through the same process: a French ordinance of 1543 This view was challenged by al-Nawawi. hence the cycles of centralization-decentralization observed above. the era of colonisation and the great powers were determined to impose their own systems on the vast regions that they colonised. In the course of verifying the deeds. This modern Ottoman state was now above all these groups and institutions and did not hesitate to eliminate them if it suited its purpose.

ever since the Edicts of Henry VIII and the Elizabethan Poor Laws. the state has to grant every citizen a livelihood. cannot be created without the government’s agreement and must respect the conditions imposed by public authorities. monasteries were dissolved and a Rule Against Perpetuities was promulgated in short. Reference should be made here to Rousseau’s concept of the “social contract” whereby. But different attitudes towards poverty were by no means the most important factor. In Amsterdam’s poor houses those who refused to work from dawn to dusk were thrown into special chambers. Friedman. The French Revolution constitutes a turning point for the foundations. this institution emerged as the greatest impediment to colonial ambitions. created a fracture in the unity of the nation. In France.e. and 1997 (b):104). No wonder then that in the 1789 Declaration of the Rights of Man. i. any corps intermédiaire. at one stroke. food and shelter. 1973). Women who were caught begging were publicly flogged and their heads shaved. Thus. Consequently. in general. as Montesquieu reformulated.51 declared that the royal judges should supervise foundations and organise their administration if necessary. which treated its own poor so harshly. where some foundations did flourish and the concept of subsidiarity was developed. which stood between the individual citizen and the state. This way. which would slowly be filled with water from the canals. colonists wanted to acquire land in the countries that they controlled. the Allgemeine Landrecht of 1794 granted supervisory rights to the state and the question of whether a permanent legal entity such as a charitable foundation could be organised by the will of a private person was fiercely debated. Martin Luther was a great advocate of centralised charity. More importantly. was opposed. it was believed. a French statute of 1791 dissolved all existing foundations and confiscated their property.. Germany. would not share Islam’s affectionate attitude towards poverty and therefore regard its charitable institutions as “backward”. until the 1901 Act. In Germany. can be placed between the two extremes: France and the United States.” This legislation lasted throughout the nineteenth century. Napoleon took a significant step further and made the Penal Code a more repressive legislation: “Any association of over twenty persons. The developments described above were primarily responsible for the relatively insignificant role foundations played in France in later periods (Archambault. in the year 1616 “the Great Imprisonment” took place whereby most of the poor in Paris were simply imprisoned. This way of thinking. whatever their purpose. The overall impact of these developments on the poor in Europe was disastrous. 1981: 271-82. a secularisation of charitable institutions was advocated and attempted. 1997(a): 27-29. The indolent had only one choice if he did not want to drown: to work the pump continuously. in France. In England. Leaders of unauthorised associations continued to be punishable and were sued by the repressive system of the French empire. the civil right of association is missing. . 1994). The only exception to these developments was the United States where the liberals insisted that the promotion of public welfare should not be left only to the state. much affected by France. rendered charitable institutions superfluous. any independent organisation. even hospitals without a lettre patent from the king. Eighteenth century French philosophy legitimised the predominant role assigned to the state. In Prussia. it was thought that indolents would learn the virtue of work (Geremek. Since waqf land could not be sold or acquired. In America rich individuals were regarded as being under obligation to devote a part of their wealth for public good and private foundations which served such purposes were regarded as charitable foundations and were favoured by law (Coing. while men were taken off to prison. colleges. it is hardly surprising that a culture. These organisations. Another edict issued in 1749 prohibited the founding of new chapters. Consequently.

The situation was rendered even more serious by the fact that the power of the non-Muslim religious authorities was enhanced by the support they received from the co-religionist external powers. with each nation. Koçi Bey. This expansion occurred at the expense of the fiefs. had these lands converted into family. had bitterly criticised the attempts to abolish some of the waqfs. had to be curbed and the Empire by some measures secularised. acquired state lands as their private property. On the legal complications of such conversions see. Expansion of the waqf lands at the expense of the military fiefs was not the only reason for the Ottoman state’s hostility towards the waqfs. enjoying full religious freedom. Another vitally important factor emerged with the advent of nationalism. was expressed bluntly already in 1860 in response to the Ottoman government’s request for a loan after the Crimean War.L.9/fn. tımar (Öztürk. This “religious protectorate” was soon followed by the “financial protectorate” which emerged as the direct result of external borrowing following the Crimean War.Barkan.13). This pressure. These people were close to the Sultan and benefiting from their privileged position. Foreign citizens should be granted the right to possess state owned lands under the same conditions as Ottoman subjects. argued that certain individuals somehow. It was the latter which allowed the external powers to meddle directly and dramatically in waqf affairs. ahli waqfs. whether Muslim or Christian. millet. tımar system. Such transformation had long been noticed by Ottoman statesmen and indicted as the primary culprit for the poor performance of the Ottoman armies in the battlefields of Europe.52 II. 1962: 68). with the French supporting the Ottoman Catholics and the Russians the Ottoman Orthodoxs. which over expands. bayt al-mal.27 Koçi Bey wondered in his report about the legitimacy of such waqfs and suggested to the sultan that an inspection of all the waqfs founded during the last 200 years be made. 1986: 157. the state began to feel that in order to restore the integrity of the Empire. Ö. Among the conditions imposed by the British government were the following: a. Consequently. with serious military consequences. the legitimate ones be maintained while those found to be canonically unsound. a keen observer of the situation at the beginning of the seventeenth century. 1995: 192. etc. A ıkPashazade. 1944 and Yediyildiz. The waqf system should be abolished (Öztürk. Koçi Bey’s report is one of the earliest examples of formal complaints about the waqf system or more precisely about the abundance of the waqfs. The multitude of nationalities living in the empire had traditionally been organised into the so-called millet system. These lands had been conquered centuries ago and ought to have remained as Public Treasury of the Muslims. We have already mentioned above the fundamental transformation in the nature of the Ottoman state. b. Centralization in the Ottoman Empire and Turkey As we had seen at the beginning of this book vast lands had been transformed into waqf status in the Ottoman Empire and much of this transformation had occurred despite the state policy of declaring about 90% of its arable land as state domain. be reallocated as fief. This difference in the attitudes of the Ottoman statesmen reflects the universal tendency of the waqf system to expand and any system. 27 . London and Berlin. With European nationalism beginning to make inroads into the Empire and nationalism beginning to supersede the notion of the Ottoman commonwealth. Thus emerged what Blaisdell calls the “religious protectorate” (1929: ch. the waqf system emerged as an adjunct to the millet system thus perpetuating the same confessional and national divisions. strongly felt during the treaties of Paris. 1995: 248). invites reaction. Khayat. the power of the religious authorities. It is noteworthy that only 150 years prior to this report another Ottoman intellectual.

tended to intensify the nationalism of its millets and promised a rich source of revenue to relieve the pressure of the “financial protectorate”. The pressure of the “financial protectorate” reached new heights when in 1881 the Ottoman government declared its bankruptcy. Western powers initiated their attack on the waqf system from all fronts: in North Africa and India. Under these influences the Ottoman reformers demanded the complete abolition of the waqfs on the grounds that their wide diffusion crippled the public economy in favour of family perpetuities. which led to the establishment of the Public Debt Administration. emerged: Western powers acting within the framework of their own ideology described above and the Ottoman state which also wanted to revoke the waqfs because they had started to dominate its lands. 1996). they launched a legal debate targeting particularly the family waqfs while at the same time they applied pressure on the Ottoman state. the policy of balance between the Western and traditional institutions was abandoned and the scales were tilt in favour of the former. Thus. miserably failed to do so: the Minister of Awqaf. The Ottoman policy can be summarised in one word: centralization. 1986: 160). While the process of centralization is being discussed. the huge revenue potential. admitted that despite all his efforts he could not even determine the amount of The revenue potential was. Musa Safveti Pasha. The difficulty in this case is not lack of detailed information but rather to make trustworthy generalisations from an enormous wealth of data. a ministry which reached to its fullest development under his son Sultan Mahmud II during the nineteenth century. 28 . How this process was actually implemented is well known. Abdulhamid I and Mahmud II. subjugating the waqfs under the jurisdiction of a central authority often involves the violation of this legal personality and an institution which was intended to be autonomous ends up being subjugated. Duyûn-u Umumiye. played a crucial role in the centralization of the waqf system. Barnes. But. huge: it represented 1/4 to ½ of the state budget during the 18th century (Yediyildiz. which the waqfs represented. 1995. indeed. centralization which was supposed to achieve a much better financial control of the revenues. In this period Ottoman waqfs functioned as decentralised autonomous institutions according to the conditions put forward by their founders. Nezaret. 1987: 68-73). Thus the father and the son. which has legal personality. Banners were raised against the waqfs with the slogans of the French Revolution as if these assets were similar to the position of the wealth of the prerevolutionary Catholic Church (Hatemi. A brief summary of the basic points will be presented here but readers interested in these details are referred to the basic two sources (Öztürk. must have seemed irresistible. the autonomy of the waqfs was respected in the Ottoman empire until almost the end of the eighteenth century. it must be remembered that a waqf is an institution. In general. It was indeed Abdulhamid I. So. two powerful forces. strangely allied in their hostility to the waqfs. It has been argued that the first attempt at the centralization of the waqf system took place in the middle of the eighteenth century during Sultan Mustafa III’s reign and reached a turning point during Abdulhamid I’s reign (Barnes. 1987). The establishment of the Ministry of Awqaf. the state usually did not interfere in the normal functioning of the waqfs and limited itself to routine inspections through the court system.53 This demand was renewed as a combined Anglo-French position in 1867. The establishment of the Nezaret was legitimised on the grounds that the awqaf revenues were left in the hands of dubious trustees. who paved the way for the foundation of the Ministry of Awqaf. as we will see below. and the centralization of the waqf management allowed the state to interfere extensively in their affairs. We are now in a position to look at the way the Ottoman state reacted to external pressures as well as to its own needs.28 In 1909 with the dethronement of Sultan Abdulhamid. To the Ottoman state that was being crushed under financial pressure as well as by the Western powers.

establishment of new waqfs was increasingly made difficult.602 gru in the year 1909 (Öztürk. on its own initiative. centralization brought with it a much greater potential for embezzlement.737. For instance. It was decreed that all the taxes due to the waqfs from the peasantry cultivating waqf lands were to be collected not by the waqf trustees anymore but by the treasury officials. Another important aspect of the process of centralization concerns the costs associated with this process. With the establishment of the Nezaret. one does not need to have an exceptional imagination to envisage that this percentage would decline over time. since most awqaf had their own managers. anyway. regular payments by the state to the awqaf treasury had already ceased to be paid by 1845 (Öztürk. The case was that of a yarn factory . were spent to finance the salaries of a bureaucratic army. preferred in the nineteenth century to contribute to previously established awqaf. the state also forced the waqf system to be involved in loss making state economic enterprises. during the 1830s. a struggle which the former had obviously no chance of winning. in the year 1868 when the entire matter of provincial waqf management was critically examined. sawab. In the classical era to establish a waqf was quite easy: the founder only had to go to a local judge and register his waqf with the court. But in 1863 the state intervened and subjected the establishment of a waqf to new and more stringent conditions. which led to a constant struggle between the Awqaf Treasury and the Ministry of Finance. The importance of this decree lies in the fact that the waqfs were now put at the mercy of the central authority. no waqf founder had ever considered taking measures for such expenses. His successor Nafiz Pasha also failed to do so (Öztürk. collecting the taxes due to the waqfs was a significant part of the process of centralization. But the greatest blow to the Ottoman waqf system was dealt in the Tanzimat era. Moreover. which should have been utilised for the provision of services. unscrupulous bureaucrats who collected the waqf funds had all the opportunity to keep these funds for themselves. Meanwhile. the establishment of a central apparatus meant a duplication of expenses and functions with the consequence that the resources. 1995: 285-286). The total amount owed by the state to the waqf system reached to 1.54 the total revenue of the waqfs. Furthermore. This failure was brought to the attention of the urayı Devlet. These conditions effectively curbed the establishment of new waqfs and those who wished to do good deeds. thus indicating that the state had already begun to act against the system. the central treasury practically ignored its debts to the waqfs. the Council of State. Not content with confiscating waqf revenues. Moreover. 1995: 298). Indeed. 1995: 313). well before the external pressures had reached a climax in the 1860s. By the year 1847 this rule was expanded to apply to all the waqfs in the empire without exception. Twenty years later still the same situation was observed: the instalments to be paid by the Central Treasury were never paid to the Awqaf Treasury either on time or completely. Öztürk has identified 94 such persons in the year 1853. a report by a trustee of an Erzincan waqf dated 1911 reveals that 88 dönüms of this waqf’s land was confiscated by the Ministry and that some powerful individuals were the ones who exploited this land for their own use while denying the rights of the poor. 1987: 150). Since. Another consequence of the centralization was that the waqf system could now be forced to lend money to the state sector. hundreds of additional bureaucrats had to be financed by the waqfs for which no resources had been endowed. Indeed. however. From now on. only a percentage of the total waqf revenue collected would be returned to the waqf system and the magnitude of this was entirely at the discretion of the state. The conclusion reached by the Council amounted to a general indictment against the administration of the Ministry of Awqaf. In short. When the waqfs were being founded in the classical era. as we shall see below. But the solution proposed by the Council was as before and entailed simply further centralization (Barnes. since a centralised management was simply out of the question. Thus a consequence of the centralization was that the system was being cheated by the very persons who were supposed to protect and manage it.

the establishment of the Awqaf-ı Hümayûn Nezareti. together with the municipality.55 established by waqf funds in the same year (1826). Remarkable as it may seem. pales beside what a corrupt high-level official can do to the entire centralised system.. for nearly all the reasons that prompted the hostility of the Ottoman governments. Thus. The CWA ended up supplying both the land for the construction site of the wagons and financing the lines.e. It was stated in a report dated 1939 that this extensive sale of waqf properties was in conformity with the “for the people” slogan of the Peoples’ Party (Öztürk. But leaders of the republic continued to be hostile to the waqfs. It goes without saying that these losses were financed by the Central Waqf Administration (CWA). By the year 1941. it was decided to transfer the ownership of this company to the Municipality of Istanbul. worth at least 468. The transferred revenue was so significant that even some 30 years later. However.220 liras.000 liras. 1995: 430). it was claimed. The Turkish Republic The republic simply continued the process. provisionism. The establishment of the Nezaret was legitimised on the grounds that the waqf revenues were left in the hands of dubious trustees. Thus. Apparently the idea of destruction was becoming a popular issue as well. Finally. it must be recognised that the harm an individual trustee may inflict upon a waqf. a joint-stock company of tramways was founded and the CWA had to purchase shares worth 468. which had been started by the Ottomans themselves during the Tanzimat era. The transaction occurred with the municipality purchasing the awqaf shares. The process of destruction gained new impetus in 1937 with the establishment of the Committee for the Abolishment of the Waqfs. as if what was being sold off had not been endowed “for the people” in the first place.220 liras. Since the Ottoman state applied a policy of purchasing its needs at less than competitive equilibrium prices and did not protect its investments by imposing import duties against foreign competition. Moreover. what could be described best as a haphazard selling activity appears to have been transformed into a much . The greatest republican destruction appears to have lasted for about a quarter of a century: from the middle of the 1920s to the 50s. Another revealing case of centralization and deliberate destruction of the waqf system occurred in the year 1882. the CWA aimed at self-destruction! A selling spree followed and extended to all over the country. had lost their meaning in this new era. The municipality paid nothing. may well have been unscrupulous. Ministry of Awqaf. This may appear strange. i. the diminishing miri lands due to the constant expansion of waqf lands and intensification of nationalism. 1. this “committee” was actually established within the CWA. in short.000 liras and even this amount was to be paid in 15 years’ time and without interest (Öztürk. 1995: 294). the CWA was ordered to construct. Very much the same conditions applied in the case of another factory producing woollen cloth in Beykoz near Istanbul. this factory was doomed to make a loss. It is conceivable that those who stood to gain from the sale of waqf properties applauded the situation. was in conformity with the party ideology. The yarn factory was to produce yarn for the uniforms of the new corps as well as the sails of the navy. a tramway line in the Asian side of Istanbul. when all the revenues of the education related waqfs were transferred to the Ministry of Education. moreover. for it is known that during the 1931 general elections many parliamentary candidates put the abolition of the waqfs at the top of their list of promises. This hostility was primarily directed against Islamic brotherhoods but waqfs too came under the republican fire since the former. were financed by the latter. it still financed 80% of the salaries of the primary school teachers. and centralization of the awqaf management allowed the state to extensively interfere in the waqf affairs. by paying only 200. Shares purchased by the public amounted to a mere 22. indeed. Some of the trustees. Moreover. All of this.

etc. In 1925 the mufti of Kastamonu officially complained and informed his superiors that although the law states clearly that medreses attached to the mosques were not to be sold off. which allowed the confiscation of the waqf property without any compensation in the first place. Those establishments to be handed over were to be registered by the Office of Deeds. was the Ministry of Education. The result was total confusion.e. tekkes. tapu. indeed. this situation was contested by the Ministry of Education. The CWA objected to both claims on the grounds that only those waqf buildings specifically built for schools should be subjected to this Law of Unity. the Sıddıkiye and Ziyaiye medreses were converted into coffee shops. the Nurullah Kadı medrese was converted into a parking lot. managed by the Awqaf Administration (Öztürk.. were sold off and were. or mazbut i. The . This is a unique decree.. etc. they could do so by paying the government offices the market value of them as determined by the local authorities. which led to contradictory applications. But eventually. all the waqf revenues earmarked for educational purposes were to be registered by the pertinent waqfs and transferred to the Ministry of Education.. The confusion is exemplified by the decision taken by the Prime Ministry that only schools and libraries were to be handed over. zawiyas and rent-yielding waqf assets were to be exempted from the law. A very interesting example of how the above law was applied in the provinces is revealed by the situation in Kastamonu. Waqf properties were usurped and sold off. To summarise. Öztürk has found out in 1989 about the fate of the Kastamonu waqf properties thus sold. The crucial step was the abolition of the financial autonomy of the waqfs through the declaration that the collection of waqf revenues would be realised by the Ministry of Finance. whether it was mülhak and managed by its own trustee.. These regulations were followed by an even more remarkable one: educational establishments attached to the mosques. The central authority began to usurp increasing proportions of this waqf revenue and the repayment of the thus collected revenue to the waqfs was delayed as well as curtailed. the list gets longer and longer. Meanwhile the Ministry of Interior also demanded these buildings and their plots for its own needs. general inspectors and the CWA itself. the Abdülbaki Numaniye medrese was taken over by the Drivers’ Club. Once it became clear that bulk of the property of the waqfs was for the taking. the centuries old educational establishments. to find a better demonstration of the degree to which the waqf system was subjected to deliberate destruction. the process of destruction in Turkey followed these steps: a. In these sales.56 more systematic policy pursued by the Prime Ministry through the offices of the provincial governors. Since the Law of the Unity of Education has rendered all education a primary responsibility of the Ministry of Education. which demanded the right to control all the waqf properties without regard to the status of the waqf in question. the status of the waqf was taken into consideration. Apparently the sales were completed notwithstanding his protests. under their new owners. armed with the Law of the Unity of Education (Tevhid-i Tedrisat Kanunu) dated 1924. the medreses. in fact. could be claimed by the government offices and if the waqfs wanted to enjoy the rent revenue of these real estates. a committee established by the governor of the city had decided to go ahead with such sales and initiated public auctions. i.against owner to buy back at market price what it had owned for centuries. 1995: 389. The first claimant. This step taken during the Tanzimat era (1830s) left the waqfs completely at the financial mercy of the Ministry of Finance. originally. b. The land adjacent to the Nasrullah mosque was given away to the local Chambers of Commerce. the ministries began to compete for this property. It would be difficult. the schools attached to mosques were primarily religious establishments. 398). The Awqaf Administration initially tried to challenge this process but in the end resigned and accepted the defeat. lost to the cause of education in a massive process of destruction. and then permitted the discriminated. In short.e.

29 . however. he was quick to appreciate the enormous strides made by the American trusts. d. appears to have been the new beginning (Kıraç. Through the so-called icareteyn system. was submitted to the parliament by Aydın Bolak.29 The CWA was made directly responsible for its own dismantlement The most dramatic republican violation of the legal personality of the waqfs. well acquainted with the system. When he visited a hospital run by the Ford Foundation for a check-up. 1989: 684). the waqfs have survived! We will now focus on these fascinating developments. h. the CWA was made responsible for some of the loss-making state economic enterprises. e. n. 1993: 420). the Bank of the Awqaf (Vakıflar Bankası) was financed. The revenues and assets of all the education related waqfs were transferred to the Ministry of Education. A visit by the late Vehbi Koç. While on the one hand its revenues were thus usurped. Thus. It was at this time that he began to “bang his Actually such sales must have taken place under the Ottomans as well. The following evidence has been provided by Ipsirli. former tenants were made co-owners of the waqf property and were strongly induced by the state to purchase the rest of the waqf ’s assets. Survival and Restoration of Waqfs in Turkey Something totally unexpected has happened in Turkey and despite everything said above. the CWA was forced to purchase the shares of some of these enterprises and then resell these with a drastic discount to the municipalities. When in 1889 Ottoman officials protested about the confiscation of waqf properties in Bulgaria. he was convinced that the traditional Islamic waqf should be modernised. By 1951 he began seriously to consider the idea of setting up a philanthropic foundation along American lines in Turkey. a Member of Parliament. His forefathers had established the Ibadullah vakfı in Ankara and his father had served as the trustee. i. A number of factors have contributed to the survival and restoration of the Turkish waqf system. Foremost among these is the gradual weakening of the “Kemalist jacobinisme” and the rise of democracy as well as capitalist accumulation (Bilici. 1969-1994 (Istanbul: Vehbi Koç Foundation.). auctions were organised and the assets (including even some mosques) were simply sold off to the highest bidder. Complaints by the Minister of Awqaf to the Ministry of Finance produced no results. 6. which were totally unrelated to the waqf system. Furthermore. on the other. Bulgarian authorities responded that the same policy was being applied in Turkey as well (Ip irli. 2. probably the greatest businessman Turkey ever produced. The destruction of the waqf system gained further legitimacy through the étatiste and populist ideology of the republic. g. p.57 c. which allowed the waqfs to breathe again. occurred in 1954 when all the cash waqfs were abolished and with their confiscated capital. f. 30 Twenty-five Years of Philanthropy. Interviews conducted with Aydın Bolak and Rahmi Koç have revealed important hindsight concerning the birth of the 1967 legislation. waqf funds originally endowed by private persons were channelled to state enterprises and to municipal authorities.30 Thus. Vehbi Koç was already well aware of the traditional Islamic waqfs. The opportunity to observe these trusts functioning arose during business negotiations with the Ford Motor Company. 1995: 81. to the United States soon after the Second World War.d. 85). When former tenants failed to buy the waqf assets notwithstanding these inducements. It was forced to invest in and manage these enterprises. outstanding debt of the state to the waqf administration was constantly on the rise. The 1967 legislation.

g. for reservation of 80% of the revenue does not automatically ensure exemption. Some of these Articles deserve our further attention. it encountered fierce resistance. i. j. introduced the following: a. The chief opposition came from Hikmet Çetin. where the complex legal problems of combining Islamic traditions with the latest developments in the West were discussed. support current politics. The will prescribed in the foundation document is not changeable. the waqfs can be exempted from taxation. Providing that 80% of their revenues are reserved for public purposes. d. Faculty of Law. which must be approved by the Council of Ministers. 1995). This exemption can only be granted by the Council of Ministers (Articles 4 and 5). to its own specific purpose. Notwithstanding such opposition. It was at this time that Vehbi Koç. The practice of adding the annual profit to the original corpus of the waqf was observed so meticulously that it can be found in all waqf inspection registers from the sixteenth to the nineteenth centuries (Çizakça. began a series of meetings with the greatest legal authorities of the country. it can be tax exempted. used exclusively in the Turkish Civil Code. But such was the hostility of the republican government to the waqfs that it was prohibited to use even the word vakıf in the Turkish Civil Code and the Code of Commerce. Thus Article “c” once again legitimises the usage of this ancient term. The 13 July 1967 Law (number 903) which was amended several times. The word ‘can’ is deliberately italicised here. Consider first item “c” where it is stated that the word “tesis” is substituted by the word “waqf”. headed first by Professor Esener. Istibdal has been re-introduced (Article 80/a) and is applied subject to the decision of the court. at that time a young socialist at the Department of Finance. The word “establishment”.58 head” against the French inspired Civil Law and its extension in waqf affairs. One of the most important items to be considered was the tax exemption to be granted to the waqfs as well as to those who made donations. the reformers prevailed and the bill became law with full tax exemption granted. e. in reality quite a difficult procedure. b. k. Çetin expressed his opposition succinctly: “the philosophy of central planning does not allow any person to perpetuate his name using revenue due to the state”. Establishment of a waqf has been simplified. is replaced by the word “vakıf” (Article 3). . the 1935 Waqf Law. a certain race or community. tesis. c. The Civil Tribunal is authorised to register the waqf and to give it a judicial personality. When the draft bill was submitted. Item “g” restores and breathes life into an age-old practice of the Ottoman waqf system. No waqf can be created that opposes the law or national interests. The problem was referred to the Institute of Private Law at Ankara University. and then Professor Tando an. This Article may appear bizarre. Item “e” rules that providing waqf reserves 80% of its revenue for public services. f. A multitude of persons. h. The control of these institutions is directly vested with the General Directorate of Waqfs. Soon it became obvious that a modernisation of the waqf system could only be realised by a completely new law. or a share thereof. together with Aydın Bolak. Items “h” and “i” are of such extreme importance for the future development of the waqf system that we shall comment on them separately below. The annual profit of a waqf is to be added to the original capital of the waqf stated in the waqf deed and is reported at the beginning of each calendar year to the inspectors (Article 81). associations and even the state can create a waqf. A waqf is now allowed to establish a company and allocate the latter’s total profits.

Whereas the historical process was practised among several cash waqfs. the idea to enable a waqf to establish its own company was actually clearly pronounced already in 1963 (Ballar. supply side capital pooling among the waqfs. by contrast. is paid to the tax exempted waqfs. 1995: 249. In the original 1967 Law. 259-60). profits of the companies attached to the waqfs were tax exempt. aware of Islamic law.. To sum up. the company itself.32 It is further clarified in Article V/3 that these waqf companies are subject to taxation and their accounts are to be kept separately from their waqf-founders. is capable of regularly generating a profit. The previously stated Article 5B/6 of the 1967 Law. After these companies pay their taxes according to the prevailing tax law.59 Item “k” is also interesting and indicates how modern lawmakers. the modern one is practised with several waqfs purchasing (i tirak) the shares of a company. The modern capital pooling differs from the historical one in the following: a. thus confirming that a company or companies can be established by a waqf. 1994. 464).31 Returning now to the items “h” and “i” above. i. (Ballar. What Article 5B/6 has provided for is the modern version of this historical process. circumvented these controversies and simply reintroduced this institution without any reference to the huge historical controversy. those not established by a waqf. In the 1967 Law the idea is repeated and confirmed in a highly cryptic style. 2000: 461. in proportion to their contribution to its capital. 1967 and 1994 a vitally important process. Indeed. kurum. 199 on the donations by outside companies. b. it returns a share thereof to its owners. The reader will notice that we had referred to “supply side capital pooling” for the first time above when we were discussing the Ottoman cash waqfs. An infringement was introduced with the Corporation Tax Law No. The Law No. their net profit is to be transferred to the founder-waqf (Yener. the waqf(s). 1997). Item 5 B/6 merely states that the net profit of a company. 199 limited donations to the tax-exempt waqfs by outside companies to a mere 5% of the latter’s profits.e. or in case these properties do not yield revenue commensurate to their real value. istibdal was a highly controversial issue among the classical Muslim jurists. “the charitable contribution deduction for a corporation … ” is limited to 10% of the corporation’s pre-tax net income. since the receiving party. Yet. In the United States. It will be recalled that these had pooled their resources and allocated a part of their annual profits to certain other waqfs. makes it clear that in case a company has been created by a multitude of waqfs. as we have explained above in considerable detail. Ambiguities have been eliminated by a decree published by the Ministry of Finance in the Official Gazette dated July 28. then its profits will be distributed to these waqfs in proportion to their original contribution to the company’s capital. Although in historical capital pooling the contributed capital was simply absorbed by the receiving waqf and never returned. on the other hand. in the modern one. may be exchanged with another more beneficial property (istibdal) or with cash (ibdal) “. through a series of laws and decrees promulgated in 1963. can re-introduce ancient Islamic principles in a far more direct and simple way. 31 32 . In the preamble of the decree it is stated offhandedly that the tax exemption granted to the waqfs is not granted to the companies that the former may establish. has been permitted. Thus this 1994 decree is actually an infringement. Italics are mine. the modern jurists who drafted the 1967 Law. For an individual the same ratio is as much as 50% (Salamon and Toepler. 2000: 663). Article 80/A is very simple and can be translated as follows: ” properties of a waqf whose income does not suffice to meet its expenditure.

Such shares constituted 1-10% of the total net asset value of these companies. Actually. two professors (one jurist). Faaliyet Raporu (Ankara: Türkiye Diyanet Vakfi. Consequently. This is despite the fact that the pertinent Articles of the Turkish Civil Law (Articles 73 and 74) are silent on this issue. 1996). 34 The waqf-company linkages are cemented at the Koç conglomerate by an exchange of executive officers: two persons appointed by the holding sit at the Executive Board of the Vehbi Koç Foundation and two persons appointed by the latter sit at the Executive Board of the holding. that the modern Turkish cash waqfs completely operate through equity finance. while the Diyanet. istiglal.e. like the Tabung Haji of Malaysia. however. i. a waqf established by the mighty Bank (Ballar. however. pp. The Diyanet Vakfı constitutes an example of a waqf creating a multitude of companies or providing equity finance to already established companies. a waqf or waqfs are created by a company. and the General Manager of I Bank. Thus we have a situation whereby a waqf(s) creating its own company as well as a company creating its own waqf(s).. ironically. There is also a precedence. Imam Zufar’s teaching. In the post 1967 Turkish Republic. 33 . which allocates a share of its profits voluntarily to these. In the latter case. risk averseness of the founders and the trustees had condemned Ottoman cash waqfs to inertia.35 According to Diyanet Vakfi. So much so that interest income diluted by inflation has been a cause of concern and the GDW has been urged to calculate and announce the real interest rate. this waqf had established six different companies and owned 8099% of their equities. They also get a relative share of the profits according to their capital contribution. They also purchase bonds and receive interest disregarding the Islamic prohibition. Thus. It also purchased the shares of various Islamic banks (KuveytTürk Evkaf Kurumu and Ihlas Finans) and insurance companies. the CEO of the holding. It will be recalled that notwithstanding Imam Zufar’s prescription that cash waqfs should invest their capital through mudaraba. their income was limited to the “economic interest” that they had charged which always fell behind the market interest rate.000 religious functionaries! The importance of these innovations cannot be emphasised enough. The authorisation is therefore based upon some general views expressed in Article 137 of the Turkish Trade Law. a waqf or waqfs pool their resources and create a company or companies. In short. (Çizakça. we have this institution at last provided with the means to benefit from the dynamism of companies. 1997). 2000: 28-29). businesses owned by waqfs are subject to the following general rules: they do not have separate legal status and are considered merely as units internal to the founding waqf.34 The Vehbi Koç Foundation specialises in education and has financed a highly ambitious school and a major university. it is not the waqfs of Ottoman but rather of the staunchly secular Republican Turkey that effected. To all this we need to add that companies also are authorised to establish their own waqfs. tax-exempt waqfs are not considered to be businesses because they are in possession of profit making enterprises. In the former case. In addition to these two persons appointed by the holding. 35 On the near identity of equity finance and the historical mudaraba see. This is because. is involved in the organisation of the annual pilgrimage to Mecca and is represented in 700 localities by 90. waqfs have become direct recipients of companies’ realised profits.60 All in all. but waqfs that are not tax-exempt are considered to be businesses if they possess profit making enterprises (Ballar. interest constitutes a major source of income.33 while the Vehbi Koç Foundation is the best example of a huge conglomerate creating its own waqf. at long last. This is not to say. 109-119. the following persons sit at the Board of Directors of the Koç Foundation: four family members. Ottoman cash waqfs had invested their capital by providing interest bearing loans. 2000: 41). for the first time in the centuries long history of waqfs. 2000: 990). nominal interest rate minus inflation (Ballar.

Moreover, we can also interpret these waqf-company relations as the rebirth of cash
waqfs.36 Thus, Ottoman cash waqfs destroyed in 1954 by being incorporated into the bank of
waqfs, Vakıflar Bankası, have, like a phoenix, been reborn albeit in a radically different
organisational structure and in a far more dynamic form. A recent decision declared by the
General Directorate of Waqfs (GDW) on August 6th, 1999 has carried this process even
further. The directorate has now permitted the waqfs to purchase shares of a company not
even yet traded in the stock exchange. Purchasing such shares, moreover, has been left
entirely to the discretion of the waqf managers. Reselling such shares, however, is more
difficult and involves a complex procedure. This latest decision is an exciting development,
which may pave the way for cash waqf-venture capital (mudaraba) linkages (Çizakça, 1998:
The following excerpt dictated by the late Vehbi Koç, himself, in January 1969 and
taken from the Deed of Trust of his foundation, The Vehbi Koç Foundation, explains why he
had decided to establish his foundation as a cash waqf:
“Praise be to Almighty God, who with His Will enabled me to perform charitable
works during my lifetime with pleasure, and granted me the means to continue
performing ongoing charity after my death. In my belief that the Turkish Nation will
continue to exist so long as the world endures … and my wish being to establish this
foundation in perpetuity, I have based this endowment on a commercial entity that
will be able to adapt itself to the requirements of the day rather than on properties
dependant on economic conditions and natural disasters. I have chosen to set up this
endowment with the shares of Koç Holding. These are made up of numerous
commercial and industrial enterprises, and are therefore less subject to risks. This
foundation that I have established by the Grace and Kindness of God, I entrust, first
of all, to my heirs and to their succeeding generations, to my business colleagues and
to the Government of the Republic of Turkey. I call upon all my heirs, my close
acquaintances, my business colleagues, my fellow citizens who may be involved in
this Foundation, and the officials who will assume its administration, to accept this
endowment as a bequest made to the Turkish Nation, to protect it, and strive with
their best intention to achieve its original aims. I request the auditing authorities of
the State and, when necessary, its authorised agencies, courts and judiciary, never to
depart from the dictates of their conscience when making decisions, lest this
foundation suffers harm and be diverted from its aims. I have brought this enterprise
into being as a result of lifetime effort and sincere desire. I pray that God will regard
it worthy of His Protection and grant it success”. 37
The late Vehbi Koç’s personal statement reveals a number of important points on
which we would like to comment. First, there is a deep sense of religiosity and gratitude to
the Almighty for allowing him to continue being charitable even after his death. In other
words, an awareness of the importance of sadaqa jariya and the Prophetic tradition
mentioned at the beginning of this book. After this, he makes this endowment in perpetuity.
This is followed by an explanation of why he has decided to organise his endowment
as a cash waqf rather than a real estate one. His decision was based on the concern that real

Indeed, consider the following rulings of the Yargitay: ”The corpus of a waqf can be
any economic asset … “ and “A waqf cannot be established unless cash has been
deposited into its bank account … “. Yargitay 18. Hukuk Dairesi, E. 1996/ 9020, K,
1996/ 9680, T. 5. 11. 1996 and E. 1996/ 11548, K. 1997/ 205, T. 21. 01. 1997.
The Vehbi Koç Foundation, Twenty-five Years of Philanthropy, 1969-1994
(Istanbul: The Vehbi Koç Foundation, 1995), p. 1. I am grateful to my sister,
Professor Dr. Çigdem Kâgitçibasi, for sending me this important document from
Istanbul. Italics are mine.

estate waqfs may be vulnerable to economic conjuncture and natural disasters. Since the
shares of his own holding are made up of numerous commercial and industrial estates, “they
are less subject to risks”. Here we observe a profound understanding of the way a waqf
functions. Vehbi Koç seems to have been fully aware of the vulnerability of real estate waqfs
to economic conjuncture. Such vulnerability has been demonstrated by Suraiya Faroqhi using
the seventeenth century records of Mahmut Pasha Vakfı (1995: 281-84).
Although there is no evidence as to how the Vehbi Koç Foundation would fare under
similar conditions, theoretically, it may be argued that a conglomerate capable of penetrating
into international markets should be better equipped in dealing with stagnation by
diversifying its markets. Indeed, there are more than 100 companies in the Koç conglomerate
with 40,000 employees and the total number of Koç Holding shares allocated to the
foundation has been declared as 10,000.38 These registered shares each with a nominal value
of ten million TLs, constitute 9.4 % of the total assets of the Koç conglomerate. In this way,
the late Vehbi Koç has diversified the risks.
But, it should be noted that second generation members of the Koç family have
continued to expand generously the assets of the foundation with further donations of their
own. These individuals have donated a total of twenty-one funds. Consequently, the original
10.000 shares endowed by the late Vehbi Koç constitute now a mere 1.4% of the total assets
of the foundation in book value. At the end of 1993 the book value of the foundation’s assets
stood at $ 120 million with an approximate market value of $ 297 million. These increased to
$ 187 million and $ 762 million respectively, primarily due to the superb performance of the
Istanbul Stock Exchange in 1999.
The foundation is entrusted first, to the coming generations of his heirs, thus, this is
essentially a family waqf in perpetuity,39 and then to the business colleagues and then to the
future governments of Turkey. The business colleagues were probably included with the view
that if the heirs prove to be incapable individuals, the colleagues who run the Koç enterprises
should interfere and manage the waqf with proper business perspective. Their inclusion in the
deed would certainly enable them to have a say in the waqf affairs. Inclusion of the
government is also telling: Vehbi Koç had been an eyewitness to the great destruction of the
Turkish waqfs by the state that took place between the 1930s and 50s. Perhaps, by entrusting
his endowment to the future governments of Turkey, he wanted to impose a moral obligation
to the state. Finally, he feels the need for the prayer that “God will regard it worthy of His
We are given further important information pertaining to the investment of the
foundation shares in the waqf deed. Article 7 of the Vehbi Koç Foundation Deed stipulates
that all excess cash of the foundation that accrues to the waqf on an annual basis shall be
converted into government bonds and kept as an emergency fund. These bonds shall be used

Vehbi Koç Vakfi Resmî Senedi, Article 4, p. 5. Rahmi Koç has informed this author
that his father one day summoned his children and asked them if they have any
objection to the allocation of these shares to the Vehbi Koç Foundation. When they
replied negatively, a notary public who was present collected their signatures. In this
way Vehbi Koç prevented any potential second generation litigation in the future.
Although its endowment deed (Article No. 17) provides a minimum income (six
million liras p.a. adjusted for inflation) to the future generations of the Koç family in
case they need it, the Vehbi Koç Vakfi is only theoretically a family waqf. Its primary
focus is charity and provision for the family is insignificant. Traditional family waqfs,
which focus entirely on the provision for the family, though perfectly legitimate as far
as the classical Islamic juriprudence is concerned, are prohibited by Article 322 of the
Turkish Civil Law. This prohibition, a clear Western influence, is now seriously
challenged for undermining the institution of family. Search for modernised family
waqfs has started (Ballar, 2000: 310, 771-776).

when the Koç Holding exercises a capital enhancement. Should this process take place, the
foundation shall participate therein, so as to maintain its relative share in the conglomerate.
Should the emergency fund not suffice to maintain the foundation’s share in the
conglomerate, the Board of Trustees can allocate 20% of the primary revenue of the waqf for
this purpose. Should a process of capital enhancement not take place, the excess cash of the
fund shall be invested in shares and bonds, preferably those of Koç Holding companies. We
are informed, furthermore, that the waqf can also exercise istibdal subject to the approval of
the Board of Trustees and the Court (Article 8).
Article 9 stipulates that a minimum of 80% of the total revenue of the waqf shall be
allocated to social and cultural services. A maximum of 20% of the revenue shall be allocated
to administrative expenses, emergency cash, and investments to buy properties for the waqf.
It is well known that in history the trustees often usurped waqf revenues allocated for charity.
Consequently, while in history charity/total expenditure ratio of waqfs has often declined,
salary/total expenditure ratio has often either remained the same or increased at the expense
of the former (Faroqhi, 1995: 285). Vehbi Koç seems to have been either aware of these
historical tendencies or was able to envisage them thanks to his great business acumen. It is
also possible that he may have been simply remaining within the boundaries set by item “e”
of the 1967 Law in order to qualify for tax exemption, in which case the credit for this insight
should go to the drafters of the law.
Finally, we are informed that the Vehbi Koç Foundation was granted tax-exempt
status by the Council of Ministers on 28 December 1968. Thus, Turkey owes to Vehbi Koç,
Aydın Bolak and to the brilliant jurists who helped them not only the great Koç endowment
but also all the positive developments that took place in the waqf system after 1967.
A closer look into the balance sheet of another powerful foundation, the Diyanet
Vakfı, confirms this newfound dynamism of the modern Turkish waqfs: in the year 1995, the
total value of investment in the equity of affiliated companies constituted 5% of the total
value of assets. The following year, this ratio nearly tripled and reached 14%. If we look
directly into the investments in companies, we are informed that such investments increased
by 960% between 1994-1995 and 664% between 1995-1996. In passing, it might be noted
that in 1996 the total value of assets of this waqf was approximately equal to 94 million US
The reader may wonder about the actual impact of these innovations introduced by
the Law No. 903 on the Turkish waqf system in 1967. Nothing illustrates this impact better
then the actual number of waqfs endowed. From the beginning of the Republic in 1923 to
1967 when the new law was promulgated, a time span of 44 years, a mere 73 new waqfs had
been established, whereas from 1967 until 1985, a time span of 18 years, one observes 1877
new waqfs. From 1986 to 1996 more than one hundred waqfs were established annually with
the trend rising until it reached 439 new waqfs in 1996, a maximum (Aydın, Sa lam and
et.all, 1999: 34).
Defining the “new waqfs” as those established after the 1967 Law, the number of
these waqfs has been calculated as more than 4,000 (Büker, Aydın, Sa lam, 1998: 4 and
Aydın, Sa lam and et. all, 1999: 33, 34).
One of the most significant contributions of the 1967 Law has been observed in the
field of education. By 1998, altogether 16 waqf universities had been established. Some of
these already enjoy an excellent reputation and are considered among the top universities of
the country.
The new republican waqfs are also playing a key role in a major historical
development. The Kemalist Revolution had created a territorial nationalism and had oriented
itself entirely towards Europe to the total exclusion of Islam and the potential link with the
Turkic world of Central Asia. All activities in the latter were suspect and repressed by the
state. Since the Second World War, the links between Turkey and the Central Asian Turkic

Türk Diyanet Vakfi, Faaliyet Raporu, Bölüm II and p. 163.

It is difficult to imagine a ruling more detrimental to the wide spread provision of charity. There used to be an upper limit to this amount. The Directorate takes 5% from the net incomes of all awqaf as supervision and auditing fees. 1997). Gradually. Meanwhile. Article 77 of the Civil Law of Turkey maintains that a waqf must have a management board. 1992: 21). 1995-1997 (Ankara: Türkiye Diyanet Vakfi. At the top there is the Awqaf Executive Board as appointed by the Prime Minister. by the GDW the majestic mosque of Damat Ibrahim and its medrese in the heart of Istanbul as their centre of research. Other organs such as auditing and shareholders’ assembly are left to discretion. which had clearly demarcated the West from the Communist world. 41 . it has a 55% share in the Sheraton Hotel in Istanbul. Inspections are made to ensure the waqf conforms to the original purpose and an audit is done at least once every two years. 1993. mentioned above. each branch is now obliged to pay this 5% (Ballar. With the establishment of the Anavatan Party in 1983 they were also provided with official state support. The GDW operates under the Prime Minister. Certain ministries stemming from the pan-Turkist party of National Movement are now applying their ideology through the waqfs. The Directorate has the right to invest its income in various sectors. Faaliyet Raporu. Implications of the change made in 1992 should be obvious: unless a waqf serving in a multitude of cities is prepared to pay a big chunk of its overall income to the directorate. Greece. it was removed in order to allow for the high rates of inflation. the structural changes in the Soviet Union have provided these institutions a heaven-sent opportunity to shift from passivity into activity in the field. 2000: 171).64 World had totally disappeared due to the Soviet sphere of influence. to print and distribute the Qur’an and to provide thousands of scholarships to students (Turks from Turkey to the former Soviet Union and external Turks from there to Turkish universities so as to enhance linguistic unity and social understanding) (Bilici. Crimea. Moreover. The founder himself may be the director. For this purpose. After the 1980 military take-over. Uzbekistan. as mentioned above. Dagestan and Iraq. a group of pan-Turkist associations had transformed themselves into waqfs. then comes the General Director.41 The waqf is known to have established printing houses in various Turkic capitals in Central Asia to print books in modern Turkish to unify the alphabet. it builds mosques. For instance. should a waqf have branches in various towns. Other late developments in the waqf system of the Turkish Republic may be summarised as follows: under the Republic. cultural and Qur’an reading centres and grants scholarships to students from these countries”. This reorientation was made possible by an amendment to the waqf’s endowment deed on September 13. But in 1992. it began to reorient itself more and more towards “external Turks”. which can be translated as follows: “The waqf endeavours to contribute to the enhancement of the religious and cultural life of our kin and fellow Muslims abroad. There are 28 regional and municipal administrators. it will simply be forced to scale down its activities. These waqfs are now involved in researching the culture of Turkic peoples in Eastern Türkistan (West China). was founded in 1975 originally to provide finance to religious personnel and to promote Islam throughout Turkey. It is indicative of the support these waqfs are receiving from the state that the Waqf for the Voice of Eastern Türkistan has been granted. is the biggest bank in Turkey with a capital of 45 million US dollars and Türkiye Diyanet Vakfi. the GDW took over all the duties of the Ottoman Ministry of Awqaf. The Vakıflar Bankası established by the pooling of the capital of all the Ottoman cash waqfs. The powerful Türkiye Diyanet Vakfi. The good neighbourly relations between Turkey and the Soviet Union also severed links between the Turkic peoples. “Vakif Senedinde Yapilan Degisiklikler”. It also provides financial support to individuals and institutions in this area.

903 c. and pay their own debts. the Finance Ministry grants taxexempt status only very rarely (Saygın. Those managed by the GDW They are also classified into the following groups according to management criteria: a. expenditure tax. 60). despite the fact that these banks pay a lower interest than the private banks. Sources of income e. which readjusted waqf property rents taking into consideration the prevailing inflation. then there are the newly established waqfs. Tax liabilities of the awqaf are determined by tax inspectors on the basis of all legal records and book keeping. income tax. . which also appoints their trustees.809 37. 1987: 116-117.348 2. But in reality. sources of income. The importance of this Act will be better appreciated when we examine the Malaysian waqfs below. The properties managed by the GDW that have survived from the Ottoman era are distributed as follows: Table 1: Waqf Properties in Turkey Mosques Dormitories Business centres Hotels/caravansaries Shops Apartments Other properties Total Source: IRTI/IDB. Waqf properties are supposed to be exempt from corporate tax. Since all deposits in all banks are guaranteed by the state. Mülhak Vakıflar: These are managed by their own board of trustees and each one possesses legal personality. These profits are expected to be spent for the needs of the waqf properties. 1998). Capital d. stamp duty. 903. All the awqaf registered with the GDW must supply the following information: a. An assessment of the principles on the allocation of the waqf properties in the event of the liquidation of the waqf All the waqfs in Turkey are divided into 3 groups according to their dates of establishment: a.000 new waqfs established during the Republican era. Aims c. a mere 195 have been granted tax-exempt status.65 has 300 branches all over the country. New waqfs established during the Republican Era under the provisions of Law No. These are divided into 3 further types. out of more than 4.400 500 453 150 5. A matter of considerable inconvenience for the waqfs is the obligation that they must deposit their cash incomes either with the state banks or with the Vakıflar Bankası. this obligation has been the object of bitter and justified complaints. property purchase tax.917 Thus these figures do not include the properties of awqaf established after the Republic in 1923. customs duty and inheritance tax subject to the conditions mentioned above. This is attested by Aydın and Sa lam (1999: 33. The majority are waqfs managed by the children of their founders.254 24. Founder(s) b. A new Act was passed in 1983. and finally. which are subject to Law No. Each one of these waqfs has legal personality b. Mazbut Vakıflar: These are managed by the GDW. They have their own obligations. Those inherited from the Ottoman and Selçuk Empires b. The administrative organ f. The bank generated a profit of $5 million in 1983. 4. the waqfs of the minorities.

One of these three. It is possible that they may have been persuaded in this by the very waqfs they. they had to be domestically procured. then the principle of cy pres is applied and the assets are allocated by the GDW to another waqf. 1999). which emphasize the irrevocability of the waqfs. The WPTAF and its early versions mobilised the entire nation. 1999: 61). not surprisingly. are the only ways a waqf can be terminated. The reaction of the Council is based upon reports that some new waqfs have been engaged in fundamentalist activities. These harmful activities leading to the closure of a waqf are clearly stated in Article 74 of the 1967 Law. mobilising the nation for military needs is not new in Turkey. The total assets of these. The explosion in the number of new waqfs has triggered. TÜSEV argues that “in a society where there is no third sector organised by independent citizens. which has similar goals. the Waqf for the Promotion of the Turkish Armed Forces (WPTAF) is a waqf complex. has emerged as an umbrella organisation representing seven hundred waqfs (Ballar. A fascinating latest development in Turkey concerns the embracing of the waqf system by the secularists.66 Unlike some branches of Islamic law. which deviates from its original purpose stated in its deed. If there is no such statement in the deed. TÜSEV” and headed by the Koç and Sabancı families who have both established their own waqf universities. the General Director of the Waqfs reiterated that he has 59 inspectors to control about 10. Earlier examples had been observed shortly before the First World War and during the construction of the Hejaz Railway. can apply to the courts for liquidation. the Vehbi Koç Foundation (Aydın and Sa lam. Originally there was a waqf for each branch of the armed forces. In any case. the age-old conflict between the state and the waqfs continues unabated. a fascinating development as it reveals the importance of the waqf system in yet another vitally important area: human rights. as was the case during the early days of the Republic. Whilst this possibility still exists. the fact that the Council has exercised caution and demanded the closure of only those waqfs involved in fundamentalist and separatist activities.000 billion TLs. When questioned by the NSC why his office does not control such activities. After much dispute and in violation of the traditional waqf law. Three of these are among the top tax-exempt waqfs. human rights and public welfare are doomed to remain under the supremacy of the first (public) and second (private) sectors” (Balo lu. a reaction. A waqf liquidating itself due to economic hardships. 1996: 10). The assets of the liquidated waqf are returned to the individuals named in the waqf deed. But waqfs can just as easily be . Recent events in Turkey indicate that despite the positive developments described above. themselves. The latter was particularly remarkable in that not only Turks but also nearly the whole Islamic world donated (Usul. The need for such waqfs emerged when the navy was desperate for amphibious vehicles for the planned invasion of Cyprus. This is. indicates that the generals have begun to appreciate the advantages that the waqfs can provide. an amount twice as large as the assets of the largest waqf in the country. including the Waqf to Support the Police. reached a staggering figure of 22.000 waqfs. Since NATO refused to provide these vessels. it can apply to the GDW and after getting approval. which calls itself the “Third Sector Foundation. A secularist group. or being liquidated by the state due to the Article 74. which donated the funds needed for such equipment. these waqfs were merged into one (Ballar. A waqf can also be liquidated by the state if its purpose is considered harmful. have established. Actually. indeed. If the Board of Trustees is convinced that the purpose of the waqf can no longer be fulfilled. in 1996. the secular 1967 Law allows a waqf to be liquidated. it is interesting that the NSC has not demanded a complete destruction of the waqfs. 2000: 533). The National Security Council (NSC) has decided to have a bill drafted empowering the Ministry of Interior Affairs to close down any waqf. 2000: 925).

the extreme modernist view that a waqf is a purely religious institution totally unsuitable for modern life and therefore should either be eliminated or be completely “decontaminated” from its religious characteristics has been abandoned. a powerful waqf representing hundreds of others. If so. But we have also seen that these attempts were thwarted by Salahaddin Ayyubid and a cyclical process of centralization to be followed by decentralization ensued. But the number of actual fee paying members is about 100. Mr. 43 For the details of Salahaddin’s waqf policy in Egypt and Palestine see. a waqf representing seven hundred others. the NSC responded by returning to the traditional negative position. The draft contains important infringements of waqf rights. much like the Roman policy mentioned above. which initiated many court cases. however. This is the involvement of certain waqfs in fundamentalist activities. When these litigations did not yield any concrete results. pretending to represent the waqfs but in fact totally subjugated to the whims of the state. have been hotly contested by TÜSEV. 2000: 11. Thus. so far. He reviewed the two bills abolishing the taxexemptions enjoyed by waqfs. For. This negative policy culminated in the preparation of a draft bill in 1998 prepared by the Ministry of Justice. the credit for this should go to the designers of the 1967 Law. such as the CWA or the GDW. Indeed. however. during the last decade of the twentieth century an unfortunate development has occurred. 1999). it introduces the concept of sufficiency to establish a waqf: it is not anymore enough to allocate a property or cash as corpus. have been abolished one by one and the donations to the waqfs are limited. the rate of taxation applied in 1999 was zero percent (Ballar. Egypt As we have seen above. The last TÜSEV convention was attended by about 700 waqf representatives. and returned them to the Prime Ministry with the suggestion that the tax-exemptions should be maintained and the 5% limitation imposed on donations be abolished (Balo lu. the draft authorises the Ministry of Interior to temporarily close down a waqf suspected of violating the law even without waiting for the final decision of the courts (Ballar. This prohibition was probably due to the provisionist concerns. the prohibition became ineffective and the conversion of significant amounts of land into waqf began and continued under the Ayyubids and Mamluks (Cuno. have yielded mixed results: although the idea of subjecting the donations to taxation has not yet been abandoned. (Frenkel. These innovations. In conclusion. 1982: 21).67 used in order to curb human rights. To start with. for the first time in the long history of this institution.42 has staged a challenge to those aiming to undermine the system in Turkey. it was with this law that waqfs originating from the earliest teachings of Islam were incorporated into the secular Turkish Civil Law. tax exemption privileges previously granted under the 1967 Law. 2000: 16-17). As a result. Convinced that some waqfs provide finance to such activities. The President has also been asked to veto the 1998 draft bill in toto. Demirel. 42 . Notwithstanding these mixed results.43 Makrizi informs us that in Egypt arable land could be originally endowed. But the Fatimids prohibited the endowment of land and subjected the co-ordination and inspection of the waqfs to an office called Divan al-Ahbas. appears to be a more promising arrangement for defending the rights of the waqfs than traditional centralised organs. the Fatimid Egypt under Caliph Al-Mu’izz probably witnessed the very first centralization attempt of the waqf system in Islamic history. It is now required that this corpus should be “sufficient” for the purpose of the waqf with sufficiency being determined by the authorities in Ankara. 925). By the late Fatimid period. More importantly. III. 2000: 1383-1391). These efforts. TÜSEV appealed to the President of the Republic. which aimed to re-write the entire Turkish Civil Code.

The traditionalism of the medieval Muslim states saw to it that after the initial impact of the conquest faded away. 1972: 11). and the administrative machinery remained very much the same and the old laws and customs continued. there were at least six attempts by various rulers to usurp and nationalize waqf revenues. however. Another very common sort of corruption practised by the trustees was to keep part of the revenue and not to pay it to the descendants of the founder. Another method of usurpation applied by Barkuk was to have his officials lease such waqf properties at less than market rates and then rent them to third persons at realistic prices with the difference accruing to the ruler (Abuzahra. As will be recalled from above. many subsequent rulers took over these awqaf by paying one-tenth of the revenue to the descendants of the founders. c. Although frequent warfare among the various Islamic states. and change of dynasties within one state. 1942: 19). Iraq and Anatolia. the old order was re-established and the waqfs were restored. Awqaf al-ahli: These were the family waqfs. In the Mamluk state another unfair treatment against the waqfs occurred by imposing upon them not only the kharaj and ushr taxes which were essentially shar’i taxes. Such attempts were mostly unsuccessful as they were always opposed by the ulema and fiercely resisted (Yediyıldız. Accordingly. haremeyn. a. Istibdal was applied extensively and could easily be concluded with a few witnesses. Beginning with Barkuk.) these waqfs were in a terrible state. tax system. or even worse. Makrizi had reported enormous corruption related to these awqaf. In Egypt and Syria they controlled vast lands. for the Egyptians had been accustomed to the . Iran. had to give up. and to the freeing (purchasing) of Muslim slaves from Christians. but also subjecting them to all sorts of urfi taxes. which amounted to 130. the general well-being of the waqf system did not change much.e. A huge amount of land was assigned for these awqaf. to commit istibdal without getting anything in return. Awqaf al-Hukmiye: The revenue of these waqfs was assigned to the holy cities.H. the relative position of the social classes. 1986: 161). Sultan Barkuk wanted to take over these. which were originally owned by the state. Such irregularities. In this context land ownership. From the middle of the seventh century to the Ottoman era.. The Ottoman conquest was not the first encounter between the Turks and Egyptians. Thus the waqf administration and inspection system remained within the same general framework originally designed by the Abbasids and the Samanids (Köprülü. b. led to a considerable deterioration in the position of the awqaf. Ahbas al-mebrure: These were the great endowments of Egypt and were controlled by the devadar. 2. 1986: 159). these lands were usurped by the emirs who endowed them subsequently as if they had always been private property. i. but faced by strong opposition from the ulema. it can be argued that. such waqfs are called awqaf al-gayri sahiha.000 feddan in the year 740 A. Half of the revenue was also claimed and collected by the Sultan’s treasury. since the beginning of the ninth century (A. in the long run. Makrizi informs us with regret how these waqfs had stagnated due to the corruption of the officials.H. Egyptian Waqfs Under the Ottomans Incorporation of Egypt into the Ottoman Empire in the year 922/1517 also did not change this overall picture in a radical way. were by no means limited to Egypt and were observed in huge areas of the Muslim world: Egypt. These waqf lands have been categorised into three groups. naturally.68 1.. Egyptian Waqfs Under the Mamluks: The Egyptian awqaf under the Mamluks constituted 2/7th of the total cultivable land in the country (Yediyıldız. Many parasitical individuals were given high salaries for doing pious work in mosques some of which did not even have a community.

Sultan’s domain. h. 1993. It should be noted that this kanunname was issued during the reign not of Selim. Where expenditure exceeds revenues. From now on. berat. If the waqf is found to generate more revenue than its expenditure. After the inspection. It has been argued that 85% of the body of law prevailing in Ottoman Egypt was constituted by the Shari’ah and only the other 15% pertained to administrative and military matters as well as to the local custom (Akgündüz. In general it is an impressive legal document demonstrating how seriously the new rulers took the waqf affairs of Egypt. both the seller and the purchaser shall be severely punished. If repairs cannot be financed by such partial remedies. all other expenditure should be minimised and all the resources of the waqf should be mobilised for repairs. If. Moreover. They will also observe the state of the waqf property. the culprit shall first compensate the waqf and then shall be punished (Akgündüz. Assistants to the new governor are to visit the trustee of each waqf and demand from him the endowment deed. b. They are to inspect the revenue and expenditure of each waqf and identify the beneficiaries. shall be managed by trustees chosen by the nâzır-ı evkaf and they shall be considered as part of the hassa-i hümayûn. repairs should be carried through by cutting down a certain percentage of the expenditure. the conqueror of Egypt. vols. g. The following points concerning waqf matters were included in the Kanunname issued by Ibrahim Pasha who had left Istanbul for Egypt in the month of Zilhicce. 1993: VI/II). the Shari’ah. Beylerbeyi. d. despite this warning. This is another factor. They will pay particular attention if these expenses are made in conformity with the original document of endowment. who was a Turk. a waqf property is sold. of Egypt ordered him to govern in accordance to the prevailing system of law. This ledger is to contain detailed and summary information about all the revenues and expenditure as well as the number of employees and beneficiaries. Two copies of this ledger shall be made. If these accounts are approved. issued to the newly appointed Ottoman governor. all waqfs are to be inspected annually and their accounts are to be submitted to the governor. but of his son. If these properties are found to be in need of repairs. which explains the continuity mentioned above. all the hospital and cemetery waqfs whose management had been entrusted to the former Mamluk notables. the palace of the Ottoman Sultan. e. Therefore the Ottoman conquest would not have involved much of a cultural shock. when Egypt was ruled by the dynasty of Ibn Tulun. From now on. such repairs are to be carried out immediately. the first one is to be kept in the divan of Egypt and the other one in the Dergâh-ı mu’allâ. are to be re. VI-VII: 63). a ledger is to be prepared and bound.authorised and be allowed to continue managing their waqfs. then with the exception of the absolute necessities. Süleyman the Magnificent. c. they shall try to have them repaired. the document of appointment.69 presence of Turks or Turkish-speaking people since the ninth century. they will be stamped and a copy thereof shall be kept by the Palace. i. Those who fail these inspections are to be fired from their positions. 930/1524: a. vakıfname. If after an inspection it is determined that embezzlement has indeed taken place. Such transactions are now prohibited by the order of the Sultan. Those trustees found to have managed their waqfs according to the original document of endowment. Many waqfs in Egypt have been subjected to ibdal/istibdal on the grounds that the waqf property is in ruins. . f.

The entire religious establishment lived on waqf posts. Almost no building was erected in Ottoman Cairo without the involvement of a waqf estate because virtually all of Cairo’s land and buildings had already been made waqf by the end of the Mamluk period. It is therefore possible that Tarabulsi may have been made an example of. and for the Ottomans. The only major change effected in the Egyptian waqf system with the coming of the Ottomans was the fact that the waqfs in Ottoman Egypt were removed from the supervision of the Shafi’i and put under Hanafi judges. Egypt was saturated with waqfs by the end of the Mamluk period with 10 of its 24 qirats turned into waqfs by the Circassian Mamluks alone. which was most favourable under individual circumstances. Finally. This is not only a dramatic but also a highly interesting case. a very clear message was given: the new regime was as devotedly Muslim as the previous one and it was not going to tolerate embezzlement. apparently. was condemned to death by Ottoman authorities (Behrens-Abouseif. Between their desire to respect Islamic law and the need to provide the treasury with revenue. Pious endowments were a delicate matter. indeed. the latter prevailed. 1994: 30).e. i. Almost every aspect of urban life had become in some way entangled in the web of pious foundations. the Ottomans gave the jurists the ability to apply the rite.70 Item “c” makes it clear that the trustee could keep his position subject to the fulfilment of the original conditions stipulated by the founder. in time as the turmoil waned. we may safely assume that he gave his permission to this istibdal after very careful consideration. must have given the new rulers an opportunity to demonstrate their seriousness in waqf affairs. including foundations and mausoleums of Mamluk sultans. being the very first Hanafi judge of Egypt he must have known that his decisions would be closely watched. The language of the law is such that capital punishment cannot be excluded and. Even Sultan al-Ghuri’s endowments were confirmed through a decree Selim issued in 1517 (Behrens-Abouseif. With such a large share of the country’s resources being controlled by the waqfs. during the initial establishment of the Ottoman authority Sultan Selim had a large number of Mamluk soldiers massacred. it was because of an istibdal controversy that Tarabulsi. and this increased their flexibility in dealing with waqf estates. Although. Sultan Selim made donations to shrines and mosques. Whereas. the former would allow istibdal. Item “d” is the direct application of one of the ten conditions of the Hanafi law regarding waqfs. the first Hanafi Chief Kadi of Egypt after the conquest. the system had to be reckoned with as a dominant buyer in the market. who had to govern Egypt from a distance. 1994: 148). respected their property rights and gave them the opportunity to join the Ottoman army of Egypt. as Tarabulsi learned at the cost of his life. and the Ottoman rulers stipulated that the pious endowments of the Mamluks should not be violated as long as their legality could be confirmed. For here we observe a possible conflict between the Hanafi and state laws.. he granted amnesty to the survivors. Stressing common religious identity during his stay in Egypt. a principle that was also stated in the Kanunname of Egypt. The funds from pious endowments represented a very important share of Egypt’s urban and agricultural resources. According to Ishaqi. by maintaining the validity of the 4 legal rites in Egypt. the possible impact of the waqf system on the economy as an oligopsony has not yet been studied by economic historians. the so-called i’tahirman. or pay/freeze. under certain stringent conditions. On the contrary. Actually. items “h” and “i” are serious warnings for those who may be involved in istibdal transactions. It is interesting that with this kanunname this right to determine priorities is also granted to the ruler or his agents as well. as we have seen above. This pertains to the ability of a founder to freeze payment to a particular beneficiary so that he is able to pay larger amounts to another one who has priority. this execution of a Hanafi judge. Since. But this did not mean that the other schools were not respected. The . Thus. it was a matter of vital interest to satisfy this most critical sector of society. the Ottomans were in a difficult position that made new regulations necessary.

tax-farmers had to ask for permission before endowing a pious foundation with land. The sea route between Istanbul and the Egyptian province was a vital connection and more advantageous than the longer land route via Syria and Anatolia. and Alexandria were also distribution centres for the local market. however. The following case should illustrate the point: to build his madrasa in the Qusun quarter. again. Taxes that belonged to the treasury did not cease when landed property was made waqf. the buildings would fall further into ruin and would be of no use. Except for Sinan Pasha’s buildings in Bulaq. the dilapidated buildings and the land on which they stood for the sum of 317 gold dinars. It seems that the collection of taxes on estates that had been alienated for a charitable purpose was also observed elsewhere in the Muslim world.71 Ottomans did not exempt pious endowments from taxes. After the Ottoman conquest. Although istibdal was prohibited by the Kanunname. the pashas did not initiate large urban projects. Unlike the Mamluk sultans. Egypt gained access to the Empire’s large market and made great profits from the coffee trade. grain and other food commodities to the Ottomans. the Ottoman pashas did not involve themselves in prestigious architectural projects. Egypt’s ports of Bulaq. it should be noted that notwithstanding the severity of punishment mentioned above. 1994: 154). The stratagems formerly used by the Mamluks to escape confiscation as well as inheritance taxes by turning their iqta estates into waqfs. left unattended. these transactions did not cease. Moreover. for the foundation of his future madrasa. 1991: 121-123). the Hejaz. Sometimes a duty called mal himaya was paid for the protection of waqf estates. who luckily was also the supervisor of the waqf of Süleyman Pasha and followed the pasha’s stipulations. Pilgrimage to the holy cities would simply have been impossible without the regular supplies of grain from Egypt (Çizakça. This amount was paid to the supervisor of the waqf of Qurqumas. and Damietta were prosperous because they benefited from expanded trade relations between Anatolia and Egypt. Thus sultanic orders were issued to collect taxes on waqf land. but rather directed their attention towards maintenance operations that might not look prestigious but nonetheless fulfilled practical ends. The Ottomans financed their pious deeds with commercial projects that had to be lucrative and at the same time serve more global interests. The waqfs of the pashas were significant in that enterprise. did not remain undisputed and the Egyptian Hanafi scholar Ibn Nujaym wrote a treatise in which he tried to defend the interests of the Egyptians and their waqfs against Ottoman fiscal policy. the protocol described the buildings belonging to the waqf of Qurqumas in the Qusun quarter. to enable him to purchase another estate for the religious endowment (Behrens-Abouseif. were thus counteracted. itself. In cases of very large religious endowments. Alexandria. and Süleyman Pasha acquired. The agreement was made before the Chief Kadi. A commission of experts and architects inspected the estate and came to the conclusion that. Rosetta. This law. Returning to the istibdal transactions. it continued to be used. 1996: 86-88). Moreover. Suez. Because Egypt was a major supplier of sugar. as for example. the development of the ports. the pious foundation. The ports of Rosetta. as being in a dilapidated state. The buildings they erected were generally unpretentious. and it is a most valuable source for showing how the Ottomans dealt with Mamluk waqfs. as McChesney shows for Central Asia. After stating the duty of all Muslims to erect religious foundations. especially if the endower permitted it or if the kadi saw no alternative way of rescuing an estate alienated as waqf. Damietta. The chief kadi therefore gave his consent to an istibdal. Süleyman Pasha made use of istibdal in 949/1543. The Ottoman kanunname includes a section on the ports as centres of foreign trade (Akgündüz. was subject to taxation. Egypt was the connection between Abyssinia. and notwithstanding the dramatic affair mentioned above. less than a decade after the promulgation of the Kanunname! The protocol of this transaction exists. it was necessary to secure the infrastructure needed for transporting these products. This demonstrates that the main concern of the pashas was not urban development as had been the case in fifteenth and sixteenth . North Africa and the rest of the Empire. which compensated for the decline of the spice trade in the early sixteenth century. Yemen.

1969: 84-85). during the classical era. Meanwhile the universal tendency of the waqf system to expand was also observed in Egypt: waqf lands were growing by an average of 20. Tawfiq abolished in 1884 the Waqf Ministry and established in its place a General Administration directly responsible to him. His attempt to control culminated in the cadastral survey of 1813-14. did not follow a centrally regulated strict scheme. This attitude is confirmed by an order issued from the Royal Cabinet in August 1948 to the Minister of Awqaf that he should transfer the administration of a waqf founded by Khedive Ismail from the Ministry to the Diwan of private royal awqaf.72 century Istanbul and other Ottoman cities. which remained in force with minor changes until the middle of the twentieth century. One may therefore say that the waqf policy of the Ottomans in Egypt. made some pungent criticism of the system and remarked: “These and other considerations make it incumbent on Parliament and those who watch over the country’s economic and social affairs to consider whether the system ought. perhaps for the first time. Realising that the British had started to use the Ministry as a venue for their policies. and as we have seen above. together with many others. state-owned land that was subject to taxation (Cuno. rather. i. the King tried to maintain the traditional right of the ruler to administer the waqfs. After the British occupation. impact of modernism in waqf affairs had reached Egypt via Turkey and Egyptians. The order was carried out and this particular waqf. In the same year the Committee of the Waqfs in the Egyptian Chamber of Deputies. a massive destruction of Turkish waqf property had ensued. At the end. which were hailed by some Egyptian reformers from the parliamentary tribune (Baer. In short. were delivered to royal control in the years 1945 to 1949. which regulated the way in which the King was to exercise his authority over religious institutions. Actually. himself. Muhammad Ali began to reassert state control. or ought not. was to be appointed directly by the Khedive. The 1926 Law passed in Turkey. Noting that the waqfs had removed at least a fifth of the land from taxation. had provided for the liquidation of the waqfs. for the first time. This took over many waqfs from the nazirs (trustees) whose position did not conform to the law. During the Constitutional Monarchy (1923-52). A fierce controversy soon surfaced over the control of the Egyptian waqf system. But a new conflict between the British and the Khedive was centred on the Waqf Ministry itself. but urban maintenance.000 feddans annually during the early twenties. began to envisage putting an end to the whole system. the King continued to consider the Waqf Ministry as his personal agency. news of the radical Turkish reforms reached Egypt. . utilizing the waqf as an instrument of public policy was not an Ottoman invention. the waqf was used as a flexible instrument for the application of a public policy that was defined in broad terms. in presenting its report on the budget of the Ministry of Awqaf. 3. to continue”. Based upon Section 153 of the 1923 Constitution. Earlier examples have been observed under the Selçuks in Iran to which we will refer below. some months before the abandonment of the Shari’a in general. Crises in the Late Ottoman Era and the Republic: Beginning with the reign of Muhammad Ali Pasha. a new wave of centralization of the waqf system was initiated. which paved the way to the reclassification of much waqf land as miri. a compromise was reached: the British demands to restore the Ministry had to be complied with but the Ministry retained financial and administrative autonomy and the Minister. Just when some concerned individuals were beginning to worry that bulk of Egypt’s lands would be converted into waqf land.. 1982: 107). the power of the trustees was reduced even more with the Regulation of Waqf Administration of July 1895. Ismail continued this policy by establishing.e. a Waqf Ministry.

were straightforward socialists. was the outright abolition of the family waqfs. family waqfs should be temporary and be endowed for a maximum of 30 years. 1932) 44 . 1969: 85). Some of these views have been adopted by others and were finally incorporated into the Waqf Law of 1946. The royalists. high-handed. Modernists repeated the orientalists’ thesis that the family waqfs had no religious basis whatever. it was still under the same influences that Muhammad ‘Ali in Egypt had issued his famous irade-i seniye forbidding the creation of any further waqfs.73 Armed with the news of “reforms” from Turkey. but could never satisfactorily be brought to account. in a series of lectures he argued for the prohibition of de facto primogeniture. bitter controversies and persistent criticism observed elsewhere also surfaced in Egypt. Egyptian reformists launched a campaign attempting to prove that Islam in its original form was not incompatible with liberal Western ideas and that only later corruptions resulted in practices which conflict with the modern point of view. which he submitted to the parliament in 1927. The efforts of these groups were halted when the parliament itself was dissolved. (Schacht. headed by Prince ‘Umar Tusun. founder of the Egyptian Workers’ Party. launched their own offensive to the reformist drafts of the new waqf law. inspired by the eighteenth century French philosophers and the Revolution. and could therefore be reformed according to modern requirements. estates impoverished for lack of development and beneficiaries indolent for lack of incentive to work. In a draft law. the ulema and the royalists. Other reformers were not satisfied by ‘Alluba Pasha’s proposals and advocated nothing less than a complete abolition of family waqfs. he said. As we have seen before. it will be remembered. In two lectures.44 Moreover. In the senate debate other royalists also challenged the modernists and emphasised usefulness of the family waqfs. For the influence of modernism on the waqf controversy in Egypt see. And much earlier. had been asked by Suhrawardy concerning the cash waqfs. with houses derelict for lack of repair. Thus. These attacks should be considered as part of a concerted onslaught on the system reenforced by social and economic theories from the West. Sheikh Bakhit refuted the claim that the waqf had no religious basis and that it was economically harmful. on the grounds that they imposed restrictions on property rights and that the spirit of the proposed law was one of disregard for the property of the great families. education and health. who had once been the Minister of Waqfs. They were a heterogeneous lot with no common denominator. for the annulling of family waqfs established prior to a certain date. But even the Liberal Constitutionalists and Fascists were demanding the prohibition of creating new family waqfs. The main slogan of this party. and for the right of beneficiaries to divide the waqf property into separate waqfs according to each one’s share of the income. there were constant complaints from multitudinous beneficiaries that waqf administrators proved dishonest. Some of them were a group of Western oriented intellectuals. many properties would have fallen into the hands of foreign money lenders (Baer. he pointed out the vital importance of this institution for poverty alleviation. and negligent. he proposed that in the future. Moreover. it was under similar influences that the Turkish reformers demanded the complete abolition of the awqaf on the grounds that their wide diffusion crippled the public economy in favour of family perpetuities of the most pernicious kind. while others headed by ‘Abd al-Hamid ‘Abd al-Haqq. The most prominent member of the former was Sheikh Muhammad Bakhit. Were it not for their being waqf. There was also the argument that a considerable part of the material and even human resources of the country lay idle under a “dead hand”. Two powerful groups. delivered in reply to the modernists. provided opposition to the reformists. After this. The principal exponent of the modernist view was Muhammad Ali ‘Alluba Pasha of the Liberal Constitutionalist Party. whose opinion. formerly Mufti of Alexandria. similar to that of the Turkish Peoples’ Party.

was supported by reference to those jurists who held that family waqfs in toto were invalid. of whose characters and abilities the founder could have had no knowledge (Anderson. 1969: 87). It was however. Moreover. ‘Alluba Pasha’s earlier proposal was accepted and beneficiaries were allowed to divide their waqf into separate waqfs according to their shares in the income. moreover. waqf khayri can be established in perpetuity. and is liable to punishment if he fails to present his accounts. To bring the waqf closer in line with private property. moreover. the administrator must be chosen. Only a waqf of a mosque or cemetery must necessarily be perpetual. or if a beneficiary has a separate share therein. Such efforts are also visible in the provision for the compulsory and final separation of any beneficiary’s share in a waqf. and by ensuring that each beneficiary’s share in the waqf income should always go straight to his descendants and that such distribution should never unnecessarily be upset. This rationale is explained in the Explanatory Memorandum where family perpetuities are considered as a form of interdiction on series of unborn persons. for on this point almost all jurists are agreed. the above provisions are inapplicable. from among the number of the beneficiaries and largely at the discretion of those with the major entitlements. covetousness and negligence …” . what the rationale for limiting the life span of a family waqf might be. In 1936 and 1937 modernising efforts were resumed and culminated in the Law no. the law also stipulates that if the court divides up a waqf. The invalidity of any family waqf. the Kadi shall appoint him unless he considers this contrary to the general interests …” The reasons which prompted these innovations has been noted in the Explanatory Memorandum as follows: “Perhaps the chief causes for complaints against the waqf system has been that most of them oppress the beneficiaries and defraud them of their rights … and their shameful neglect of the waqf itself which occasions decrease of revenue and often ruin of the property or even its total loss … The cause of this is simply that they are not acting in their own interests at all … for it is rare for one who acts in the interest of another to be free from greed.74 Thus. each beneficiary must be made administrator over his own share even if this is contrary to the provisions of the founder! Article 49 also provides further support by stipulating that “No outsider shall be made administrator over a waqf where one of the beneficiaries is suitable to administer it: while if those with the major entitlement agree in choosing a particular administrator. from the rest of the waqf property. by enacting that he should himself be appointed administrator thereof. This reform represents an almost revolutionary change in the waqf system. But the real motive should be sought elsewhere. which exceeded the prescribed limits. after whose death the property would revert to the heirs of the founder. This person. 1952: 262). Bringing a waqf to an end subject to the extinction of a beneficiary should be linked to the efforts of rendering a waqf more like private property. Maliki authority may also be quoted for such a proposition. The new law attempted to impede de facto primogeniture by restricting the creation of new waqfs thus limiting the motive for turning property into waqf. 48 of 1946. Where. It also imposed a limit of a maximum of 60 years to a family waqf and confirmed that a public waqf. The reader may wonder. facilitated by the fact that Abu Yusuf himself had held that a waqf might validly be made for the benefit of some particular individual. where possible. “dissolution was the fate of the Parliament before being the fate of the waqf” (Baer. shall be held responsible to the beneficiaries for negligence or wrongdoing. whenever the court shall so demand. together with supporting receipts.

as Islamic law does not feel the need to distinguish between the two. n. laid down by the founder. which should have been expected. 1952. the transfer was gradually carried out and most trustees handed over their waqfs to the Ministry. According to its provisions.: 18). This priority. the Ministry of Awqaf assumed the trusteeship of all such waqfs. The abolition of family waqfs is said to be based upon the principles of Shari’ah as well as to the principles of the newly established socialism (Barbar and Kepel. This law met with fierce opposition on the grounds that it was: a) Unconstitutional since the revolutionary constitution had guaranteed property rights b) Contrary to the Shari’ah. 1953. Although the abolition of the family waqfs met with little opposition.d.547. The final blow to the waqf system in Egyptian agriculture was dealt with by a new law promulgated on July 18. This argument was given great publicity in the media supporting the new law. The property of the existing waqfs were either to be divided among the beneficiaries or revert to the founder if he were still alive and had reserved for himself the right to revoke his waqf. the latter was the real motive. remove one administrator and appoint another in his place. If such a division resulted in each beneficiary receiving less than five feddans. this would have conflicted with the Agrarian Reform Law. in the interests of the waqf. Since most waqf deeds did not therefore clearly demarcate these segments.d. Another major blow to the traditional Egyptian family waqfs was dealt with by the military regime and its Agrarian Reform Law (September 14.75 Thus the Law Maker found the remedy to this agency problem by making each beneficiary. with total disregard for the objections in item b. 1952). the Ministry was also authorised to distribute the proceeds of the waqfs without consulting the original stipulations laid down by the founder (Barbar and Kepel. all agricultural lands . the execution of the law met with some difficulties. is such that the original provision laid down by a founder of a waqf is considered to be as binding as the text of the Shari’ah. Article 1 of the same law promulgated that the Minister of Waqfs had the right to spend the revenue of any public waqf on a purpose designed by him without being bound by the original conditions stipulated by the founder. When the family waqfs were abolished. This blatant violation of the Islamic law was justified on the grounds that many Egyptian waqfs had originally been dedicated to objects in Turkey.000 feddans of waqf lands were taken over. even where the former was an upright man and had been appointed by the founder. directly in charge of his share of the waqf. it has been argued. Thus for all practical purposes it can be argued that the public waqfs in Egypt have been nationalised: they have ended up being managed by a government department. Moreover. Thus. A major difficulty was the excessive division of the waqf property among too many beneficiaries. But these objections notwithstanding. One year later. n. Only those waqfs whose founders also acted as trustees were exempt from this rule. Another difficulty was to distinguish the public segment of the waqf from the family one. more than a 100. 1957. which declared that all waqfs for other than charitable purposes are considered to be null and void (existing ones as well as those to be created in the future). the public waqfs administered by the King were also taken over by the Ministry. This is also confirmed by the later actions of the Nasser era. When King Faruq was exiled on July 26. which has been authorised to spend their revenue according to its needs. a new law gave the Ministry of Awqaf the right to administer all public waqfs. The juristic basis for this reform is found in the Hanafi doctrine that the kadi may. This was followed by the Law no. which gives utmost priority to the conditions. It goes without saying that whereas the former was just a pretext. this problem led to a huge amount of litigation.: 20). Moreover. whenever possible. which deprived the founder of the right to appoint a specific trustee who would take over the waqf after him.

Thus a unique combination of the abolition of the public waqfs. on the other. Finally. which consisted of agricultural lands and have made the creation of new waqfs out of agricultural lands improbable. bought lands in Mecca and Medina and endowed them for the service of Sudanese pilgrims. 1997: 5). Their former trustees were to receive Land Reform Bonds. division of the family waqfs among the beneficiaries and their total subjugation to the Ministry combined with land reform meant that nationalisation. But the Mahdi uprising . however. only an insignificant area of family waqfs will remain. But this appears to have been an exceptional situation: it has been argued that the waqfs in Sudan were traditionally weak and were enhanced only after the joint OttomanEgyptian occupation. Indeed. must be taken with a grain of salt. the Articles concerning the accountability and responsibility of administrators expressly state that they are to be regarded as the agents of the beneficiaries. known as the al-Sinnariah. it was the Ottomans who introduced a substantial waqf system comprising the Sharia Courts and the ulema. THE SUDAN The waqfs have a long history in the Sudan. For a reaction did materialise and.76 belonging to public waqfs were to be transferred to the Land Reform Committee and to be distributed according to the Land Reform Law. The number of Sudanese waqfs naturally increased over time and even spread beyond the borders of Sudan when the Sultan of Sinnar. It is too early. private ownership of land is more productive then share cropping practised in waqf lands. IV. All in all. The 1957 Law hit the waqf system from both ends. witnessed a revival of Islamic values. in similar fashion to Turkey where the 1967 Waqf Law has achieved a resurgence of the Turkish waqf system. The principal of these bonds was to be transferred to the Economic Organisation of the Government and invested in development projects. these lands were auctioned off in 1954 and 1955 and naturally ended up in the hands of those who could best afford them. while. on the other hand. were to receive interest due on the bonds and later profits from the invested capital. the 1970s under Anwar Sadat. This particular waqf. If. the final outcome of the republican waqf laws has been that they have liquidated that part of waqf property. For. These developments allowed the government to expropriate huge properties and distribute them to landless peasants. when all the family waqfs have been divided among the beneficiaries and all lands of the public waqfs transferred to the Land reform Committee. they ended up having a limited “success”. in similar fashion to those taken by the Kemalists in Turkey. Although these measures taken by the Nasser regime. surely. and must make good any loss caused by their major fault or neglect. during al-Zarqa (The Funj) period. The former trustees. any person who might contemplate establishing a new waqf would be disheartened by the knowledge that his land would eventually be transferred to the Land Reform Committee. it constituted a huge impediment for the endowment of new waqfs. must produce documentary support for all their expenditure except in regard to items concerning which custom decrees otherwise. It has been reported that the earliest Sudanese waqf was a mosque in Dongala al Aguz dating back to the ninth century (Abdel Hadi. as it has been often argued. The above argument that the waqf lands were distributed to landless peasants. the exact outcome of the conflicting forces of the secularists and the Islamists is not yet known. According to Gabriel Warburg. again. For. however. it deprived the public waqfs of their landed revenues. still exists. proved to be harmful for the Egyptian waqf system. then total productivity of Egyptian agriculture must have been significantly and positively affected by these developments. was followed by a massive process of privatisation. to write the story of this resurgence in Egypt for. on the one hand.

the Shari’ah Courts Law was promulgated in 1902. proved to be particularly harmful. two Shari’ah circulars. were given particular attention and the Islamic Awqaf Organisation Law. During the Islamic spells. each of which was ordered to transfer 10% of its revenue to the central government. Only the supporting ulema could survive. for the waqfs. Frequent changes of government. was to encourage orthodox Islam and to discourage Sufism. the Minister became the general trustee of all the waqfs in Sudan. With the revolution. the resurgence of the waqfs in the Sudan is a relatively late development. The central mosque of Khartoum. The Ministry of Religious Affairs obtained the right to manage the waqf system and reserved the right to appoint a nazir. But most of these administrative changes had no significant effect and the total revenues that accrued to the system were down to one million Sudanese pounds at the end of 1989. Waqfs too were destroyed together with the opposing ulema. which has been observed almost everywhere else in the Islamic world. even the declaration of independence in 1956 did not help. Accordingly. Financial losses became substantial and were particularly severe during inflationary periods as at the end of the 1970s. With the Awqaf and Religious Law. 1971: 9597).456. . issued in 1903. Waqfs were also accepted within this framework. The decision to follow the Hanafi School had a direct impact on the irrevocability of the waqf. The circulars 57 and 58 put Imam 45 I am grateful to Gabriel Warburg for this information. al-Awqaf and the Religious Affairs introduced further centralization. All Islamic institutions. a nation wide administrative reorganisation was attempted and the country was divided into 26 autonomous states. These radical administrative reforms have had a direct impact on the revenue of the waqf system: the total revenue of merely 1 million pounds in 1989 exploded to 26. General Numeiri who kept fluctuating between socialism and Islam.45 The official religious policy of the Sudanese government under Lord Cromer. This shift from the local Maliki to the Hanafi School reflects a belated Egyptian influence where the latter had gained supremacy under the Ottomans and a reverse shift had occurred in 1946. radical changes began to be introduced. 1989 was promulgated. the Sudanese waqfs throughout history suffered from political instability. This law remained in power until 1980 when the promulgation of a new law. were issued. which codified the jurisdiction pertaining to the waqfs. 1970. Accordingly. it is clear that substantial increases in the revenue have been achieved. numbers 57 and 58. Under these circumstances. nazir ‘am. The next major development in the Sudanese waqf system occurred with the promulgation of the Islamic Charity-Waqf Law. Support for official Islam also came from Egypt. regulated these courts and Article 53 set forth that the Sudanese waqf system would henceforth be subjected to the Hanafi code. As it is well known. which wobbled between secularism and Islam. During the secularist regimes the waqf system deteriorated and tended to be totally ignored and forgotten. This law also bears the first signs of centralization. Therefore. Those years were dominated by the military regime of Lt. With the “Islamic Salvation Revolution” in 1989. was largely financed by Egyptian waqfs as were the mosques of Halfa and Tokar (Warburg. Imam Hanife allows the founder to revoke his waqf in his lifetime on the grounds that he may face emergencies. 1980 for instance. the Minister of Religious Affairs was appointed the General Administrator. The legal system pertaining to the Sudanese waqfs evolved as follows: During the Condominium (1898-1956). however.400 pounds. Shortly after this. In common with the rest of the Islamic world. Warburg argues. The bylaw of this law.77 wiped out most of these. Although the magnitude is tempered by the high rates of inflation (150%) and the devaluations of the currency. the Ministry of Awqaf and Religious Affairs was established and important new legislation was introduced. among them the waqfs. which was inaugurated in 1904.

constitute bulk of the corpus of such waqfs and in the Islamic Republic of Iran. whether in real estate or in cash. The Hanafi rule. 1988: 96). government owned waqfs were permitted by the secular 1967 Law. Consequently.e. has approached the waqf issues.47 How the Sudanese state has found a solution to this problem is not clear at the moment and calls for further research. which in effect converts it into private property. the dissolution of the waqf property by distributing it among the legal heirs. has also been the subject of complaints. If any beneficiary makes an official complaint. The beneficiaries whose numbers were constantly rising received smaller and smaller revenues and as their numbers increased. These rules have a number of important implications. When the Sudanese government endows land. the judges are authorised to dissolve a family waqf in response to a complaint by a beneficiary. the shares. we have a new situation. Of Shops House Land Others District Purpose This is not a generally accepted Hanefite principle. If the heirs approve. its property should be distributed among the legal heirs. cooperation among them became more and more difficult. the ownership of the property to be endowed. The year 1989 witnessed the promulgation of another law. allowing the founder to increase the share of a beneficiary from the waqf’s revenue while reducing that of the others. Most other Hanefite jurists agree on irrevocability (Akgündüz. although the Sudanese waqfs were irrevocable previously. Article 58 is of further interest due to the fact that it is concerned with the family waqfs. 46 . The National Islamic Front. by increasing the number of endowments. Article c shows British influence. Donations by the public. If the waqf becomes void as a result of this investigation. The judges are to examine the motive behind the establishment of a waqf and to issue their permission after such an examination. If the deceased founder had made a will. this shall not be effected. which exceed one-third. The Table 2: The Public Awqaf in Sudan Num. i. however. they were establishing waqfs with privately owned property. The details of such government owned waqfs is presented below. as he sees fit. 1997: 6-7). waqf ahli. his/her complaint should be taken seriously by the courts and an examination of the waqf documents should be made. Second.46 Thus. 47 In Turkey. teksîr-taklîl. Thus. as well as vertically. b. The courts are authorised to interfere if it is proved that the founder’s intention was to harm any one of the heirs. this is obviously not a private property. 1989. shall be excluded. The new regime claims to approach the waqf issues in Sudan horizontally.. subject to the conditions stipulated by these circulars (Abdel Hadi. Islamic Awqaf Organisation. c. First. which was promulgated in this circular. with these circulars they became revocable. The former generally occurred as direct government endowments of real estate and land. The preamble of this Article refers to the problem of the fragmentation of waqf revenues due to the result of population increase. The first task of the new regime was to undertake statistical research into the state of the waqfs in Sudan. by better management and education to enhance waqf revenues. In any case. This law is of particular interest in that it demonstrates how the new Islamic regime. The results of this endeavour are presented below. lead to a difficult legal problem. This could. the beneficiaries gradually lost their interest in the maintenance of the waqf properties and tended to concentrate more and more in the distribution of whatever income was generated. confiscated properties of the previous regime were endowed as government owned waqfs. the circular introduced the following rules: a. however.78 Hanife’s principle into practice. When the Ottoman sultans endowed their lands. government owned waqfs emerging also in Sudan.

This is the establishment of the Great Awqaf Company in 1995 financed by donations from the public. the founder is allowed to revoke his waqf if. His revocation is stated in a legal notification b.Khartminiums Oum + telecom. The Waqf Institution in Sudan. El Turabi who was the Head of the National Islamic Front. An earlier and an enormously successful example of such a case has been observed during the final years of the Ottoman Empire when Sultan Abdülhamid II initiated a donation campaign with the purpose . thorough application of the more lenient Hanafi law and expediting the establishment of new waqfs by introducing the concept of revocability.State rants+ 2 mills+ 2 waterwheels+2 stores Mosque scholars and the poor Mosque poor and scholars Mosque Wages of workers Mosque and others Mosque and others Total 921 758 13 2 Source: Sumaiya Sid Ahmed Abdel Hadi. Although it is claimed that the original idea was conceived by Hassan A. the so-called. The vertical approach has taken the form of enhancing the consciousness of the population through the media and by introducing waqf jurisprudence in to educational syllabus. p. ten conditions mentioned above. all helped to restore the waqf system in Sudan. the revocability is restated in a more formal and definite form and the procedure is simplified. the new regime has also restored the confiscated properties of the waqfs by the earlier governments. establishment of a large waqf with public donations is by no means a recent invention. A most interesting and ambitious project of the Sudanese waqf system should be mentioned here. All of this has led to a resurgence of waqf establishment in the form of real estate or cash. the socalled. Legal notification of the Shariah Court is obtained. 19. Furthermore. As part of its revolutionary approach to the waqf issues. Personal Status Law. It is in the form of direct expression c. which carried further the Hanafi influence by introducing more formally. A genuine and sincere interest by the new regime demonstrated by the establishment of waqfs by the government. The vertical approach was boosted by another law promulgated in 1991. Moreover. a.79 founder Government property 290 286 - - Government 45 39 6 - Government 141 2 2 2 Government 249 249 - - Government 196 182 5 - 4 condo. Still another boost to the system was provided by allowing the rents of the waqf properties to climb up from ridiculously low levels to the prevailing market rates. bld+zoo Omdurman 2 clinics - East Nile Gezira State 1 office+ Northern 2 restau. Article 342 has confirmed the right of the court to dissolve a family waqf. Accordingly.

or interest payments and began to enjoy profits as soon as it became operational (Usul. one in hard currency and the other in local. The company has two accounts. The basic aim of the company is to popularise waqf establishment throughout the country.000 Sudanese pounds (US$ 0. The value of shares was kept deliberately low. It also has a list of contributors who have pledged to purchase the shares. The performance of this company. Bank. To establish affiliated joint-stock companies: i. To have them implement its engineering projects ii. when completed. To provide services for Sudanese pilgrims48. c) 600 shares in National Cinema Co. Other targets are as follows: a. Thus. 1995. Whether Turabi was inspired by the Hejaz Railway or just reinvented an old idea. To encourage spending for charity c.58) in order to maximise public participation. who paid in hard currency. b)35 shares in textile co. hospitals. g. It is an exciting combination from the point of view of the evolution of financial organisations and has previously been observed in Turkey. of Shops Houses Land Others properties 137 253 38 6 26 Cash a) 200 shares in Commer. the Great Awqaf Company is essentially a large cash waqf. Some shares were also sold off to the Sudanese expatriates employed in the Gulf States.80 of building the famous Hejaz Railway (Usul. together with its counter parts in Turkey. e. need to be closely monitored. To build mosques. The statistical evidence for the restoration of the Sudanese waqf system is presented in the following table. These shares have already been sold to these founders. was hailed as the only one of its kind that did not have debts. 49 The Engineering Awqaf Company was established in the same year as the mother company. To invest the cash capital to ensure its steady and sustained growth d. The railway. 1999: 12-13). To share in their profits and enhance its own revenues49 The headquarters of the company is in Khartoum. For. To implement social justice in the community b. they may well provide an example to the rest of the Islamic world. 1999). if successful. The capital of this enterprise was donated by the Ottoman public as well as by the pious Muslims from all over the Islamic world. he envisaged that this company would have branches all over the Sudan and the capital would be provided by private donations. 1. schools and homes for the senior citizens. Starting with the tribal chieftains. State Khartoum Table 3: Sudanese Awqaf in Eight States No. 48 . a national mood of mobilisation prevailed and on the 18th May 1995 the company was established with a paid up capital of 10 billion pounds. Thus. In this way the company approaches that of Malaysian Tabung Hadji and the Turkish Diyanet Vakfi. To be involved in infrastructure projects f. the combination of the structures of a cash waqf with that of a joint-stock company can also be found in Sudan.

on the one hand. The Minister of Habous was at the head of the central organisation. rulers were trying to expand their control over the whole system. By the eighteenth century.81 Gezira 162 114 4 12 23 Sinnar 16 11 4 White Nile 59 38 2 3 16 Kordofan 128 40 8 69 The Eastern 121 81 7 1 32 River Nile 15 6 7 3 Source: Sumaiya S. Whereas in a relatively short period of almost twenty years. with the trustees appointed by the Sultan etc. Meanwhile it might be noted that about 31% of the individuals who founded these waqfs were women (Stöber. Marrakech. MOROCCO Morocco has a rich waqf (habous) heritage. The reasons behind this discrepancy should become clear below. By 1912 a General Directorate of Habous was established which was transformed into the Ministry of Habous in 1915. The protectorate was keen to give an impression that the waqfs were respected by the new regime and that any change in their organisation was for their own benefit. In the French zone muraqabah offices were established in Fés. p. the muraqib. The ministry not only was empowered to control the monthly accounts of the waqfs. but could also take decisions concerning long-term lease. by direct interference in the management of the waqf properties. Yet the power of these trustees was limited by a number of rules and regulations. which led to the usurpation of the waqf properties. other concessions were granted to the Europeans and their protégées. Meknés. The Morocco waqfs entered into a new phase with the establishment of the French and Spanish protectorates. 20. The family waqfs. or even ibdal/istibdal of waqf properties. remained basically intact. In this period the office of nazir an-nuzzar was established and a centralised system of waqf registers was organised. enjoyed substantial autonomy. - It has also been reported that an affiliated waqf company specialising in construction has been founded.A. This occurred. which is not hostile to it.Abdel Hadi. after 1810 only one waqf per year was established. The rulers who were behind these developments were motivated to centralise the awqaf as a reaction to the alleged role the waqfs played in the uprisings. The organisation of the waqfs with local offices. . on the other hand. During the second half of the century. nearly 40% of all the registered waqfs had been founded (altogether 138 waqfs). V. Sudan provides a fascinating example of how the waqf system can be restored by a regime. by subjecting the appointment of a trustee to the approval of the ruler and. as the pressure of the European powers increased. These trustees were attached to a higher officer. see: (Mahdi 1995). Centralization gained momentum during the nineteenth century when the rulers attempted to intervene in the management of the waqfs. 50 For full details of musharaka al-mutanakisa. 1740-1759. These concessions were basically in the form of ibdal/istibdal. The finance is secured through musharaka al-mutanakisa. But this heritage was not formed uniformly over the long run. 1986). Rabat and Mazagan. The Waqf Institution in Sudan. on the other. The basic purpose of this company is to restore old waqf buildings as well as to build new dwellings. The earliest signs of centralization occurred during the sixteenth century when the Qarawiyin mosque waqf was run by a central office. a modern method of finance used by Islamic banks particularly for construction sector investments (Ismail. 1998). 50 To conclude.

on the other hand.500 ha were leased by the colons and thus the waqf characteristic of these lands was maintained. The leasing was to be carried out in public auctions and non-Moroccans could also participate. however. the Service d’inspection. The French rule in Morocco was influenced by the lessons learned in Algeria and Tunisia: in Algeria colonial rulers had completely taken over waqf lands with the result that the state was burdened with the cost of religious affairs. a law dated 21 July 1913 regulated the farming-out procedure and sharecropping was replaced by cash rents. The produce of these trees would then be shared between the habous and the tenant according to a prearranged formula. Although long-term leases up-to 30 years were thus made possible. the tenant committed himself to plant a certain number of trees on the leased waqf land. was a dubious device from the perspective of Islamic jurisprudence since it led to the loss of the waqf’s corpus. The classical Islamic muqarasa does not allow the tenant to become a landowner: it merely allows the tenant to claim a portion of the produce of the trees until their lives expire. It goes without saying that this particular contract form. Yet they controlled. In Tunisia. had their own problems: the tenant was reluctant to invest in land.000 ha land was sold by the habous administration to the colonial administration for resale to the settlers. long term leasing. Under this. the tenant ended up becoming a landowner through the muqarasa. At the end of the contract period. the French abstained from any direct interference in the habous affairs. the confiscation of the family waqfs had lead to riots. whereas until 1932 ca. The auctions were held each year in October and the minimum auction price was determined by the previous rent. the Central Waqf Administration resorted to an ancient Islamic contract form: the muqarasa. In short. all the indigenous decision making powers that really mattered were abolished. which was later expanded to 3 years. Share tenancy was also practiced in the Western Rif and the auctions were either based on sharecropping or cash. merely 5. Moreover. Long-term leases. the quality of which deteriorated from year to year. In Morocco. The objection of the jurists notwithstanding. Under the French rule. a group of share tenants could pool their resources and lease a waqf property in a partnership where a quarter share appears to have been quite common. up-to 10 years could be obtained subject to the approval of the Direction générale. it was therefore decided that both strategies should be avoided and a more prudent approach was adopted. In response. short-term leases were far more frequent. The latter. thus effectively increasing the lease period to 30 years.000 ha were farmed out this way. the land that remained under the waqf . also took place: 1. as practiced in Morocco. This approach was also aided by the fact that most lands in Morocco were of no interest to the European settlers. up-to 30 years. In short. In addition to this. all the financial transactions: checks payable had to be signed by the ministry officials and all the important decisions were taken by the French authorities. The system continued throughout the twentieth century and by the 1970s more than 190. For each renewal the rent would increase by 20%. he would be eligible for 2 more extensions of the lease. For such an investment he did not have to request permission from the waqf administration.82 In an attempt to perpetuate the myth that the waqf affairs continued to be run by the Moroccans. If a tenant invested in land an amount that exceeded a 5 year long rent.000 ha was actually bought by the latter. The law regulated leasing procedures to the smallest detail and limited the period to 1 year. The farming-out of habous lands by public auctions appears to have been practiced until the protectorate in Rabat.000 parcels of land totalling 47. Indeed. the organisation of the habous management can be considered as an example of the typical French colonial system whereby the Moroccan control over the institution appeared to survive. the land as well as the trees on it were to be divided between the waqf and the tenant. An office of the ministry. through the Ministry. 12. It has been argued that the trustees agreed to this unique form of muqarasa on the grounds that although it led to a certain loss of the waqf land. the Moroccan version of the muqarasa continued to be practiced and even gained legitimacy under the protectorate. Each one of these extensions was for 10 years. audited the trustees annually. but in reality.

the famous Safavid book of government organisation. the task of this office is the appointment of judges and managers of the endowments. By the time of ‘Allama Hilli. naturally concerned with the development of foundations. Out of these.83 control was enhanced in value thanks to the trees planted. Major change had to wait until the 1970s when the lands leased by the French settlers reverted to Moroccans and a Direction des Affaires islamiques was established. Another major post-independence change was observed in the further centralization of the waqf affairs.850 parcels in 1977. Notwithstanding these distributions. But this concern was not confined to the ulema. A slightly different definition of the office of sadr can be found in ‘Al amara-yi Abbasi: “The office of sadr is in charge of the well-being of the sayyids and beneficiaries of khums. the question of waqf was expanded to several chapters. In Tadhkirah al-muluk.292 beneficiaries receiving revenue from these establishments. Although Morocco became independent in 1956. Thus. as private property. which had existed since the Timurids. 1996: 228-230). The only major difference was that the French were replaced by the Moroccans. and its director was called vazir al-awqaf. management of the waqfs is now completely subject to the ministry and the kadi has lost all the controlling power. contrary to Islamic law. He was authorised by the . a development observed in most other Islamic countries of the twentieth century. IRAN: According to Moussavi. were reregistered. The ulema benefited from the waqf as trustees and supervisors and were therefore. the earliest mention of the word. But these demands were fulfilled and land reform was applied only in limited areas. the state also instituted the office of sadr to control both religious endowments and institutions of learning. the agricultural habous properties were estimated to be about 84. 1986: 38-39). there are also references to the daftar-i mawqufat.000 ha were transferred to state ownership. Within the next ten years some 13. who actually cultivate these lands.000 ha of habous lands originally usurped by the tribes. which demonstrates the significance of the administration of the pious foundations for the state. on the other hand. registering pious foundations (awqaf) and disbursement of funds for religious learning” (Moussavi. It was also in this period that the trade unions and some political parties began to demand that the waqf lands should be subjected to a massive land reform as in Egypt and be distributed to the sharecroppers. It has been calculated that the revenue yielded by the muqarasa was six times greater than normal leasing (Stöber. Consequently. There were altogether 8. On 25 July 1969 it was declared that the state could acquire habous lands in irrigated areas by ibdal or istibdal. flourished under the Safavids and was divided into general and sub-sadrs. 11. The number of urban properties.356. This was because some 10. reached 33. VI. the overall share of the habous lands in Morocco did not decline substantially. The legal rules of waqf occupy a small portion of Tusi’s writings where he discusses the role of the jurisprudence in terms of the hakim who should supervise religious endowments in the absence of an appointed superintendent (al-nazir).840 ha. In Tadhkirat al-Muluk. It is noteworthy that there is no chapter on waqf in Kulayni’s al-Kafi although a fair portion of this book is devoted to charity. in Shi’ite sources was when this word appeared as an appendage to the chapter on charity (al-sadaqa) in Mufid’s al-Muqni’a. 195. the overall organisational structure was maintained. by administering.000 ha were redistributed to the peasantry. This office. one of which was devoted to the administration. In sum. an endowments bureau. as in Sunni Islam. waqf. among the Shi’ites also the development of the waqf law was a relatively late development.

Concerning the expenditures of the waqf.. the waqf was also involved in major projects. But due to the repeated invasions from Central Asia by O uz Turks. The Shah Reza hospital in Mashhad. c. Candles used to be so expensive that a number of waqfs were established for this purpose. d. which constitute regular expenditure. we are observing in the case of Astan-eQods waqf the actual application of this principle. Over the centuries many landed properties were endowed to these complexes. The shrine also receives rents from shops. Furnishing and carpeting (Special endowments were also established for this purpose). all the waqf deeds are lost. f. are also possible and well established in Iran. j.84 Safavid monarchs with broad powers to supervise the dispatch of the accounts by the mutawallis. This is revealed by the fact that each one of the following expense items is financed by a number of waqfs. After Sübüktigin of Ghazne destroyed the tombs. et. g. shelter etc. Rearing of abandoned children and the provision of nurses for them. Mending the books in the library. the Imam is buried in the precincts of the Caliph’s tomb. we are informed about the following expenditure items. Education k. the Astan-e Qods-e Razawi located in Mashad. bazaars etc. Salaries of the cleaning and maintenance personnel. The agrarian holdings are disbursed all over Iran. e. It is important to take note at this point that the Astan-e Qods is not just one waqf but a conglomerate of waqfs. In addition to the above items. the auditing of such accounts. Mahmud of Ghazne had them rebuilt later in 1009. with an annual budget of some $2 billion. the Abbasid Chalif Harun al-Rashid was buried here. sugar factories. The Astan-e Qods-e Razawi case illustrates that such mergers. previously observed in Turkey and Sudan. fruit processing complex. thanks to Mawlawi and his colleagues. The first endowment to the foundation that we know of was made by the governor of Nisapur who donated a village. Thus. Illumination of the chapel. a. etc. 1996: 142). We had seen above that Sheikh had given a fatwa ‘Abd Allah alMazandarani. Their work on this famous waqf. Only from the Safavid times onward have the title deeds been preserved. Kazemi. Mongols and Uzbeks. baking factory. the present day administrative centre of Khorasan. Before the Imam. Material assistance. can introduce us to the Iranian waqf system (Mawlawi. We are fortunate that. It should suffice to assert here that this flexibility allows the merger of two powerful institutions. we are well informed about a particularly important waqf. Provision of food and medicine for the poor (numerous further endowments). Repair and upkeep of the buildings. the registration of the properties. Important revenue is also earned through the shares in the Mashhad spinning mill. was constructed in the year 1935 and has been maintained ever since with funds from the shrine’s . 826-837. a portion of the endowment funds have been reserved for the pensions of the martyrs who fell during the revolution or the war with Iraq. These shares were recently purchased for the shrine. Most recently. Procurement of legal relief for the poor. The economic and legal implications of the investment of waqf funds in joint-stock companies have already been explained above. the Celebrated Mujtahid of Karbala in 1907: through which investment of waqf funds in joint-stock companies was permitted. Many endowments were made for this purpose as well. baths. h.. i. The shrine’s waqf endowments include agricultural real estate as well as the nonagricultural. The former includes 500 villages and farms. b. These gold objects were gifts given by the pious Muslims to the waqf. food.. waqf and joint-stock companies. The Astan-e Qods-e Razawi is the complex of buildings surrounding the tomb of the Imam Ali al-Reza at Mashhad. Actually. to the poor pilgrims. cold storage facility. The shrine has recently expanded its holdings by selling gold objects to the Central Bank of Iran and buying more land. for instance. khuddam.all.

can be used for public policy implementation. A philosopher and an astronomer. when the founder was an important political figure and wished to glorify his name.e. But the bulk of this amount was provided by the one-tenth of the state revenue that accrued to him thus confirming the argument made above about the uncertain boundary between the private and public resources (Arjomand. themselves. which was in keeping with the general religious policy of the Selçuks. Another similar case was the seizure by the Buyids of the estates. After the revolution the shrine is entrusted to the leading clergy of the city of Mashhad. He was initially responsible for the ritual cursing of the first three Caliphs. Beginning with Ghazan Han. During the Pahlawi reign. the hospital is called the Imam’s Hospital. The Safavids tried to organise the ulema into a state-controlled bureaucracy.000 dinars. This is because. provides an excellent example. by the trustees. But this could happen. During the Safavid period the endowments of the complex were administered. according to the Shi’ites. a grand vizier. with the full approval of the Sultan. as it often did. his private wealth could not really be separated from the public funds at his disposal. 1991: 27-28). a considerable area of waqf land in the Selçuk empire. In this way. 1998: 116). The Divan Beyi’s office was created as a high court of appeal. In 1975 it was handed over to the Ferdawsi University with an annual budget of 200 million tomans. the boundary between the waqf pure and simple and public investments became blurred. But during the Qajar period with new endowments constantly being added. after the revolution in 1979. the shah was the nominal custodian who run the affairs of the shrine through an official. is the extent to which they have utilised the waqf as an instrument of public policy. All the existing waqfs were subjected to a central bureau. however. eleven of them have been identified all organised and financed as waqfs. lhanlı rulers. the descendants of Ali who. 372/982) who interfered with the waqfs of the Sawad. Nizam al-Mülk. There was. So far. (Lambton. which had been made into awqaf by the Ash’ari Arabs of Qumm for the benefit of the imams (i. which made the utilisation of waqfs for public policy even more pronounced under the lhanlıs. it became necessary to create a hierarchy among the trustees. The sadr liased between the Shah and the religious establishment. by appointing over them inspectors and comptrollers and paying their beneficiaries a fixed wage. A certain measure of control appears to have been exercised over the awqaf by the state. This process was carried further by Nasreddin Tusi.85 endowments. Nizam al-Mülk exercised tight personal control over them and was directly involved in the appointment of professors. A mütevelliba ı was appointed who became the chief of all the mutawallis. in all probability. and he was raised to a status equal to that of army generals. He had embarked on a systematic policy of establishing colleges. It may seem strange that the waqf. the origins of government administration of the awqaf can be traced back to the action of the Buyid ‘Azud ud-Douleh (d. led once again to a process of centralisation. his duties were gradually enlarged to the appointment of judges and teachers and to the administration of endowments. Apparently. The total revenue generated by the properties endowed for his waqfs reached 600. Concerning the problem of centralization in Iran. The Safavids endowed additional waqfs for the . Tusi was put in charge by Hülagu of building an observatory and appointed as head of the waqf bureau of the empire. mutawallis. The Shahs also controlled the religious establishment by the provision of land and endowments to support religious activities. and culminated in the establishment of the lhanlı state by Hülagu. madrasas. What really distinguishes the Selçuks. this person could channel the taxes due to the state to his waqfs. as usual. began to create extensive waqfs. succeeded him as the leader of the Muslim community) and their descendants. an institution of private law and established with purely private wealth. thus bringing the administration of law under direct government control. but it had not by any means reached the extent it later did under the Safavids. Now. the Selçuk grand visier under Alp Arslan. say. Particularly if such a person was. The Mongol invasion under Cengiz Han that began in 1219.

He vested the office of administrator in himself and thereafter in the reigning monarch. did not produce their waqf deeds. we suspect that the latter. were observed in Iran as well. The religious elite thus became part of the Iranian land-owning aristocracy (Lapidus. As a result of this decree. after the deduction of the dues of the trustee. In addition to the increase in the area of waqf land brought about by the action of the ruling house. and this gave an opportunity to others to register these properties in their own names. or so constituted under a false title. reminding of us those often observed centralization processes elsewhere in the Islamic world. had greatly increased in Safavid times. a considerable number of gayri sahih waqfs were taken over and incorporated into the estates of the Shah. a major problem for waqfs everywhere. they were purely pious motives. In short. although it became registered in the land register of Nadir Shah. On some lands a small annual tribute was also fixed. long term leases. was to be expended at his discretion and according to the exigencies of the time (Lapidus. On the lapse of 99 years. there was also a tendency on the part of private individuals to transform their property into waqf. Since all waqfs were supposed to have been confiscated. Grants of land called soyurgal were also made to eminent religious families. ‘the just value of which was 100. where the benefactors of a waqf and the mutawalli were powerful. Some of these waqf lands had belonged to the Safavid family as private property before they became the rulers of Persia. The reasons for this were not different from anywhere else. Abu Talib. together with various buildings in Isfahan and the neighbourhood into a waqf for the twelve imams and Muhammad and Fatimeh. The greatest accession to lands of this class probably took place during the reign of Shah Abbas. His reign was marked by a massive attempt at centralization of waqf property.000 tumani shahiyi ‘iraqi. This is an extra-ordinary and most flexible condition. Kreiser. it will be remembered. and were allowed to pass from generation to generation immune from taxation. 1993: 296). they did not in fact surrender the waqf. this title became valid after one year of uninterrupted possession. the raqabat-i Nadiri. During this long period the tenants could settle and dispose of the land as they pleased. 1995: 320. Although a more thorough comparison between the Ottoman icareteyn and the Iranian long term lease cannot be attempted here due to lack of data. based upon Chardin.86 Astan-e Qods-e Razawi in Mashhad and for the shrine of Imam Riza’s sister. as most founders determined the expense structure of a waqf themselves. where they were held by their owners on a 99 years’ lease. Thus the relative protection enjoyed by these wrongfully acquired waqfs under the Safevids disappeared under Nadir Shah. Lambton. has argued that if wrongly-acquired land was constituted into a waqf. 1993: 112). 1986). Chardin’s argument should be taken with a grain of salt. when he decided to constitute all his private estates. reminding us of the Ottoman icareteyn waqfs (Çizakça. However. and tax rebates. why such gayri sahih awqaf in Iran should enjoy more protection. fear of confiscation. Lambton has observed that these offices tended to be concentrated in the hands of a few individuals who accumulated vast fortunes. Fatima. Other trustees fearing that the waqf under their charge would be confiscated. its revenue. like the former. we wonder. Nadir Shah accepted the throne in 1736.323. in the year 1015/1606-07 or 1016/1607-8. Trusteeship appears to have been highly profitable. In the last year of his reign he promulgated a decree for the resumption of wrongfully acquired waqfs. in Qum. Apparently. Shah Abbas II redistributed these offices in an attempt to break up the large fortunes. mutawalli. a new lease for the same period was issued on payment of one year’s revenue. Thus we have a situation whereby small annual rents are combined with a long-term lease. According to the terms of the waqf deed. the officials could not reject such demands for registration on the grounds that . and could not thereafter be disputed. the extent of which. must have been initiated due to the need to have the tenant restore the waqf buildings After the Safavids. maintaining the family lands intact and avoidance of the fragmentation of land etc. In view of the wholesale confiscations of the similarly constructed waqfs observed in the Ottoman lands. the wife of Ali b.

states that these lands were never fully restored. after the Afghan invasion. The Civil Code does not lay down any definite share as the right of the administrator. The legal position as regards waqfs was set out in a Subsection of Section 2. even if the administrator has not given (them) permission (Article 85). which at the end of the Safavid period amounted to 15. is not expressly forbidden by the Civil Code. Concerning istibdal. Indirect evidence suggests that the waqfs had improved particularly in the regions of Isfahan and Azerbaijan and that at the beginning of the twentieth century the waqfs were still run by a Department of government. recognises two kinds of waqf: charitable and family waqfs and permits a property to be endowed only where it can be exploited without detriment to its existence. expenses for the repair of the endowed property and matters necessary for the exploitation of the waqf have priority over the claims of the beneficiaries (Article 86). It can only be said that the clergy was able to restore the institution after its eclipse throughout the eighteenth century. where waqf land is required for some public . The reader will note that this corresponds to one of the Hanafi “ten-conditions”. held as joint property in undivided shares (musha’) or separately (mafruz) (Article 58). whether it be movable or immovable. Unless the settler otherwise stipulates. thus centralization was once again followed by restoration and decentralization. However. the prevailing view among modern jurists is that exchange or sale is permissible if this results in the acquisition of a better property (Lambton. there seems little doubt that in the troubled years between the end of the Safavid dynasty and the establishment of Qajar dominion much waqf property was resumed by the state or converted into private property. revoked the decree and returned some of the confiscated estates. the accession of Nadir Shah and assumption of power by the Qajars (1722-1785). mentioned above. But the most significant changes in the legal status of the waqfs were introduced. For. The Civil Code of 1928 contained a number of Articles with reference to the waqfs. Sir John Malcolm. a waqf is considered to be a binding contract and cannot be revoked (Article 61). by the Civil Code. For example. 1991: 233).000 khurasani tumans or 300. In addition to the concealment of the true ownership of waqf properties induced by Nadir’s attempt to resume all waqf property. Chapter 2.000-2. Thus.. the latter can take possession of their respective shares. Moreover. or 40. discussed above. Once the proceeds of the waqf and the share of each of the beneficiaries have been defined. Article 84 merely states that if no share has been laid down by the settler. We can clearly observe a Western influence here. His successor. The Civil Code. before full effect could be given to his decree. a process much preferred by the Western powers. Thus these conditions laid down in the Civil Code do not differ from the basic teachings of classical Islam and lead us to the conclusion that as far as waqf affairs are concerned.000 rs. the revenue of the shrine of the Imam Riza from its endowments.000-50.000 rs (Lapidus. while Articles 88-90 of the Civil Code permit sale only if the exploitation of the land is rendered impossible or likely to become so. Alienation of the property on a long-term lease. a serious decline in the Iranian waqf system can be observed. Information on waqf administration under the Qajars is scarce. ‘Ali Quli ‘Adilshah. The settlor can appoint a nazir (or overseer) over the mutawalli to approve and take cognisance of his actions (Article 78). writing at the beginning of the nineteenth century. In any case. Consequently.500 khurasani tumans. In 1911 an attempt was made to rationalise the administrative structure of the waqfs. as elsewhere in the Islamic world. of the Civil Code. he can take from the proceeds a share to recompense him for his work.87 the land was waqf. 1993: 132). Islamic principles were by and large incorporated into the Civil Code. Nadir died. giving beneficiaries such rights facilitates a transformation from waqf to private property. there was a further difficulty in ascertaining the true ownership of many waqfs in the Isfahan area owing to the fact that the Afghans burnt the registers of waqf property during the sack of Isfahan. however. had fallen by 1821-2 to some 2.

or in some cases merely for private purposes. In some cases. the shrine properties were rented by local landowners. this company rents some 20 of the shrine properties in the neighbourhood of Mashhad. all the waqfs. and Khiaban. mutawalli. Mihrnakan. this is especially the case when the lessee is the trustee. the Ministry was to levy a mere 3% for administration and 2% for supervision. the remuneration of the Ministry was to be 5%. In the case of family waqfs. in fact. of . which flow through the garden of the shrine. A small company known as the Shirkati Kishavarziyi Riza. considerable areas of the country are waqf. including Turuq. The most important group. In Article 9 it was laid down that the Ministry was to receive a fee of 10% of the net income of a waqf for its administration unless special terms for administration were laid down in the deed of settlement. This is also the case with the waqfs of the Sipahsalar and Shah Chiragh mosques in Tehran. The 1934 Law introduced certain changes into the administration of awqaf. The company was dissolved in 1948 and the various properties were leased to different groups and individuals. are the above-mentioned waqfs belonging to the shrine of the Imam Riza of Mashhad. though the Ministry was at liberty to leave the waqf in the hands of whoever was its overseer at the time. In some cases waqf land is worked directly. there are various other waqf properties in Khurasan. was formed from the remnants of the former Shirkati Filahati. Although Lambton is silent on this. The sub-letting of waqf properties is not uncommon. The rent is said to have been comparatively low and not to have been paid in full. when its sanction was required. In addition to the waqfs of Imam Riza. in Kashmar the waqf of the brother of Imam Riza. under Riza Shah and in the early years of Muhammad Riza Shah’s reign. There are many instances of lessees of waqf properties who have succeeded in making large profits. it is sometimes let on a 99 years’ lease. This arrangement was apparently unsatisfactory. The taxation policy prior to the grant of the Constitution was such that waqf lands were subject to taxation unless granted immunity by a special decree or farman. which had no administrator. Shadkan. also owns property. For example. mutawalli. In the event of supervision alone being exercised. mainly in the form of shares in the irrigation canals. in the case of charitable waqfs with administrators. In either case a third party is interposed between the peasant and the owner of the land or the administrator of the waqf. Often it is the mutawalli himself who rents the property: in other words he pays a fixed sum to the foundation and keeps the remainder of the profits from the land thus. The general tendency is for the waqf properties to be let on terms advantageous to the lessee. were placed under the Ministry of Education and Awqaf. but more often it is leased. notably Kashmar and Turbati Haydari.. As stated above. The office of the administrator of these waqfs was vested in the reigning monarch.88 development project. the Ministry was not to intervene except in the case of sale. The properties. Waqfs not directly linked to the ruling monarch used to pay taxes in the same way as other landed property. used to be exempt from taxation on the grounds that the income of the monarch was not taxable. the Ministry of Education and Awqaf exercised supervision. sharecropping is also practised. it is quite possible that in addition to sub-letting. An exception was made in the case of awqaf constituted for the benefit of hospitals and schools. This qanat is divided into twelve shares. the shrine properties in Khurasan were let to a company. Note 2 to Article 2 excepted from this provision the awqaf of which the reigning monarch was the administrator. qanat. functioning as a risk taking entrepreneur. Formerly. Ten per cent of the revenues of these go to the trustee. In such cases the administration of the land does not materially differ from that of a large landed property which is let. According to this law. known as the Baghi Nizar . which constitute these waqfs. himself. According to Article 2. both as regards extent and income. known as the Shirkati Filahati.

Further to this. This percentage was reduced to 3% in the education and health sectors. The disposal was to take place as follows: for the construction of secular primary schools 40%. The Department of Endowments was also empowered to approve or reject the budgets submitted by the trustees of the endowments. were usurped by private persons. In effect. initiate court proceedings as plaintiff and enter the court as a third party on behalf of a litigant. public education 10%. The Department of Endowments was empowered to identify a property as a foundation or private property. which was already incorporated within the Ministry of Education. In keeping with the world-wide trends of the thirties.000 rs. Thus. however. in Iran also the Ministry of Education gained a paramount role in waqf affairs in this period. especially in the Safavid times. The 1934 Law and the Administrative Statute of 1935 allowed the Department of Endowments to initiate litigation against mismanaged waqfs. a considerable amount nevertheless remains. d. h. purchase of school supplies for the needy children 10%. or. f.89 which four are waqf. It broadened the jurisdiction of the Department of Endowments. If a waqf failed to produce the original deed of endowment. subsidisation and direct control over an increasing number of religious schools began. This affected the madrasah system and a period of intervention. contest registration. the Red Lion and Sun society 20%. ( approx. It was promulgated that the revenue of those waqfs whose original purpose was unknown. b. Nevertheless. the parliament passed the Law of Endowments in 1934. as in Turkey. also. c. this enhanced the power of the state with respect to awqaf. The annual rent per share in 1940 was 200. state as well as private absorption of waqf property was observed. Endowing water rights constitutes an interesting but by no means a unique practice in arid lands. were to be directly administered by the Endowments Department of the Ministry of Education. unanticipated expenses 10%. the Department of Endowments had now the right to request registration. Istibdal was permitted subject to the approval of the Department of Endowments. so that the post 1934 developments do not constitute a sudden departure from the past. were recovered by the madrasah after litigation. Although the majority of this has disappeared or been usurped. During the Afshar (1732-1750) and Qajar periods. The basic features of the 1934 Law and the Administrative Statute of 1935 were as follows: a. where the proceeds could no longer be used for the purposes originally stipulated were to be disposed of. Similarly. in Isfahan.176 pounds sterling). This state of affairs continued until the end of the reign of Riza Shah Pahlawi. publication of “useful” books 10%. 1950: 33). an important centre of waqf property. These properties. it was to be administered directly by the Department of Endowments and the latter was to receive for this service 10% of the net revenue of the waqf. some of the awqaf of the Chahar Bagh madrasah or college. the legal changes of the mid 1930s were important instruments in the policy of a consciously secularising dynasty. A derivative of this system exists in the Turkish city of Bursa where some thermal waters are endowed and the revenue generated is spent for the purpose of the waqf (Baykal.51 Isfahan was formerly. All public endowments judged to have no administrator or an unknown administrator. The department was empowered to exercise full supervision. The Department of Endowments was also empowered to legally proceed against corrupt administrators e. 1. 51 . g.

000 pound sterling. Just as in Turkey. (Akhavi. which included some 800 villages. But much more tragically. released some statistics for the year 1964: The total annual income of all types of awqaf was “an astoundingly low” $3. 3. during the 1930s the waqfs were brought under the state control and their income was channelled.. etc.5 million sqm) to a person … etc. those directly managed by their own trustees. but also in the Pahlawi Iran. The statistics also reveal severe misuse of awqaf funds.000 sqm to Farah Diba.350 sqm to the Lions Club. In short. in Iran it had to wait until Khomeini and came with an explosion.362 riyals Total number of religious schools: 214 or 236 Total number of students and teachers: 13. in Iran also. It is significant that not many new foundations were endowed in the two decades after the Second World War. 230 hectares to an individual. 750 hectares (7. the director of the Endowments Organisation in the seventies had made the following grants of land from the properties under his control: Large tracts of land to various singers. 81. The Endowments office which eventually replaced the Department of Endowments. But whereas the reaction in Turkey was relatively conciliatory and found early expression in the 1967 Law.458. Much was no doubt lost due to embezzlements.90 i. 1991: 257). with the waqfs under state control. An interview made with Hojjatoleslam Imam Jamarani. But a drastic change was on the way: On 27 January 1951 it was reported in the British press that the Shah had ordered all the crown lands he had inherited from his father to be distributed among the peasants. Thus. enjoys an independent status and is in charge of examining and supervising the administration of the waqfs. Since no other data exists. to secular schools. Further details of the statistics released by the Endowments Organisation are presented below: Total waqf properties: 73. as in Egypt. Mudiriyet alawqaf.016 Total stipends distributed to the students and teachers: 11 million riyals. mutawallis and others whose . It was prescribed that the lands should be sold on favourable long-term conditions and that the money received be spent on productive purposes and on the formation of agricultural companies to benefit the peasants. Waqf Directorate. The Department of Endowments could appoint temporary or permanent administrators Through these powers the government took over a number of religious schools and could therefore discipline the administrators. It is interesting to observe that such a procedure violates not only Islamic law but also appears to be contrary to the provisions of the Civil Code. under the best circumstances. was alleged to exceed 500. all the restrictions presented above may have curbed Iranians’ enthusiasm for establishing new foundations. as we have observed. To recapitulate. Apparently the categories of waqfs observed in Turkey. The Department of Endowments could determine if an administrator was unknown (by rejecting the credentials submitted to it) k. it may be argued here that the Kemalist centralization in Turkey was reflected not only in Egypt.6 million. although it has been brought under some measure of state control. Such policies aiming at the destruction of the waqf system also triggered reaction in Iran. Let us now focus on the post-revolutionary Iran. a massive conversion of waqf property into private property was being envisaged.694 riyals Total Income of Properties: 275. Even more importantly. a comparison with earlier times is not possible. Director of the postrevolutionary Awqaf and Charity Organisation has revealed that the so-called. these institutions were at the mercy of unscrupulous officials who did not hesitate to distribute waqf properties to totally unrelated and undeserving individuals for personal gain. it can be seen from the foregoing that the institution of awqaf in Iran had survived largely in its ancient form. The annual revenue from these lands. since the land had in the meanwhile been made into waqf (Lambton. 1980: 55-58. Consider the following: Manucher Azmun. teachers and the students. 132133). The Department of Endowments could determine if an endowment has an administrator or if the position was vacant j.

For instance. 1372/ 1993). Jamarani claims to have regained about 80% of such illegally sold waqf property.886 households in 1991 (Kazemi. has been as guilty as the unscrupulous trustees. This organisation was involved in financing certain commercial ventures and particularly in the import business during the Iran-Iraq war. who specialised in the collection of waqf rents. vol. Miras-e-Javidan (Tehran: Mudiriyet al-Awqaf. 1996: 144). relics of the taxfarming age.1. mutawallis.7 billion rials worth of goods and services. Moreover. he has expressed his awareness that the state. middlemen. The loanable fund of this private waqf has reached in 1987 the staggering figure of 50 billion 52 Vaqf. .6-9. Realising the importance of educating the public on the significance of the waqf system. It was the former institution. According to its 1986 annual report. in post-revolutionary Iran the right of the founder to determine the purpose of the waqf is strictly observed. Islamic Republic has made a genuine effort to regain those waqf properties sold illegally. mutawallis.91 management was taken over by the Waqf Directorate.095 persons and produced 136. several major waqfs were established by the state to commemorate special historical events and disseminate the revolution’s message. equal to 14% of the total production by large industrial units in the country. The latter bonyad (waqf) receives funds from the government. The waqf continued to grow over the years: by 1992 it has been reported that the total annual budget for the foundation was about $10 billion.52 The revolutionary government has been very active in establishing new and powerful waqfs. pp. have been replaced by the Awqaf and Charity Organisation. The former is obviously the more likely alternative because the latter could involve a change in the stipulations of the founder and violate the Shari’ah. These properties have now been rented out. Shi’ite khums payments and other private donations from the pious. there are also some important waqfs established by private individuals. But this appears to be a relic from the age of centralization for. which took over the confiscated properties of the Pahlawi family. has been promulgated to adjust rents to the market rates. in the past. therefore. A law. While Jamarani has pointed out the misuse and embezzlements of the waqf properties. also exists in Iran. the foundation employed 42. The largest waqf established after the revolution is the Bunyad-î Mustaz’afan. it was noticed that rents collected from the waqf properties were about 1/10th or even 1/20th of the prevailing market rates. Two of these. When Islamic rule was introduced. Any attempt to change the conditions stipulated by the founder is considered to be in violation of the Shari’ah. during the Shah’s regime. Majlis. Now the latter collects rents from the tenants directly. which offered a sum of $2 million to anyone who managed to assassinate Salman Rushdie. Bonyad-e Panzdah-e Khordad (Fifteenth of Khordad Foundation) and Mo’asseseh-ye Nashr-e Asar-e Hazrat-e Imam Khomeini (Organisation for Publication of Imam Khomeini’s Works) are noteworthy for the size of their resources and revolutionary activities. As Jamarani reports. promulgated a law nullifying all the illegal sales of waqf property effected by the previous regime and cancelling their ownership. Jamarani has not clarified whether this rule applies only to those waqfs whose management has been taken over by the Waqf Directorate or also to those managed directly by their own trustees. Although most of the post-revolutionary waqfs have been established by the state with confiscated property. established to commemorate the 1963 uprising led by the late Imam Khomeini. One of these is the Sazman-e Eqtesad-e Islami (Islamic Economic Organisation) founded by the bazaar merchants. This waqf also sponsored some 471. The revenue generated by them together with the other revenues of the directorate have been allocated to a massive restoration effort. it is envisaged that waqf management courses will be offered at universities. The Islamic Parliament. The number of large industrial units controlled by this bunyad was 113. Already in 1983 the organisation’s director could claim that “the organisation is one of the largest conglomerates in the world and the largest Islamic entity in Iran” (Amirahmadi: 235).

section B). possession deeds in the name of the endowment shall be issued (Article 5. most of them are dependent on the government for large portions of their annual budgets. which increased to 230. Unauthorised istibdal transactions are thus either directly cancelled or subjected to litigation. however. roughly equal to 5% of the country’s total liquidity (Amirahmadi: 236). the deed will be cancelled. it is quite clear that the post revolutionary waqfs have become powerful organisations. All in all. has emerged as a unique economy dominated by powerful state controlled waqfs. post-revolutionary waqfs in Iran have become extra-ordinarily dependent on the state and differ from all the other waqf forms we have studied until now. misuse of public funds and interference with government policies. The purpose of this inquiry was apparently to find out whether any istibdal transaction has occurred without the permission of the religious authorities. More accurately. he objects to this decision. If. the Department of Endowments is empowered to prepare a list of all waqfs whether administered by their own trustees. they are governed by the key members of the ruling elite and clerics. the occupant is given the opportunity to lease the premises (Article 3). In short. for instance. it was declared that. the Department of Endowments shall prepare leasing contracts Rules and Regulations of Waqaf in the Islamic Republic of Iran (Teheran: Justice Administration of Islamic Republic of Iran. or without any “guardians”. Should such a transaction have occurred without religious sanctioning. Section B).E. The earliest regulation we have is a decree (no. Cultural Attaché at the Embassy of the Islamic Republic of Iran in Kuala Lumpur for enabling me to have access to this important source. They were allocated some 20. This is the so-called By-law of the Law of Cancellation of Selling Deeds of Bequeathed Properties. First. It is most interesting that even in the Islamic Republic the usual strains between the state and private foundations can be observed. I am grateful to Professor Ahmad Kazemi Moussavi of ISTAC and to H. The Sazman-e Eqtesad-e Islami.000 million rials from the public budget in 1980. has been charged with corruption. there is a complex relationship between the waqfs and the government in the Islamic Republic. their leadership is appointed by the president and confirmed by the spiritual leader of the regime. Next we come to those estates endowed by the previous regime to the agricultural ministry. Water and Land. however. mutawallis. This sort of outright absorption has naturally removed all pretences of autonomy for these foundations. Post revolutionary Iran. with their very corpus being constituted by confiscated property provided by the state. then the case will be referred to a civil court whose judgement will be definitive (Article 2. in short. Thanks to the efficient co-operation of the Iranian authorities. 630) promulgated on November 28th. In return for this financial support. in the case of those foundations controlled by the Ministry of Agriculture whose deeds of ownership have not already been sold to the peasants. If the new owner accepts the decision of the committee. They control huge sums and extend patronage in ways that rival the state. such deeds shall be cancelled (Article 5. There is a problem about the lands the deposed Shah wanted to distribute to the peasantry as private property. Ali Reza Dardmand. After the execution of affairs according to sections A and B. translated in 1995).53 Thus we are in a position to appraise the system under the Islamic Republic. 53 . In chapter two of this by-law. Notwithstanding this dependency. Section A). 1984 by the Council of Ministers. Although these bonyads were envisaged as separate entities. it has been possible to obtain the current laws and regulations pertaining to the waqf system in the Islamic Republic of Iran. it is the lands governed under the Law of Improvement of the Public Bequeathed Villages and Farms (23 April 1971) that are being considered here. The linkages between them and the state are such that some of them have been incorporated fully in the executive branch. If in case a trustee appeals to the Department of Endowments with all the valid evidence requesting the cancellation of such a transfer of ownership.000 million by 1987 (Amirahmadi: 235). the committee should declare its “discretion”.92 rials. In the former case.

Article 14 ensures that should a waqf be in a dilapidated state. In short. Astan Ghods-e-Razavi and other well-known waqfs are also governed by the same rules. to be presented below. It is also promulgated that separate contracts shall be concluded with them for these premises (Article 7). It is also promulgates that under certain circumstances. The importance of this Article will be appreciated better when compared with the present situation in Malaysia. It is promulgated that all such constructions and developments shall be considered as the private property of the tenant who has made the investment. Article 6 is also familiar with the traditional forms in that it assigns priority to the maintenance of the endowment over all other expenditures. It will be recalled that the same condition. can be spent on research. In Article 2 it is explained that the bequests organisation shall be separated from the Prime Ministry and shall be handled by the Ministry of Islamic Guidance. Pilgrimage. it might be noted that this arrangement was known as the so-called “mukataalı Vakıf” in the Ottoman/Hanefite usage and is still valid in Turkey (Döndüren. This by-law was soon followed by a more comprehensive bill. known as I’tâ . Article 7 is a precautionary measure against possible misuse by the trustees and gives the power to dismiss such persons to the department. such trustees shall also be made subject to criminal investigation and. The crux of this by-law appears to be the restoration of waqf property by the new Islamic regime. Endowments and Charity Affairs Organisation. Article 3 is very important in that it confirms that each endowment has a legal entity and its trustee shall be considered as its representative. the department can also act as the trustee and that unscrupulous trustees shall be held responsible for the compensation of the amounts embezzled. Concerning those endowed properties already sold off to the occupants. can be found also among the ten conditions of the Sunni (Hanafi) waqfs. we are left with the difficult problem of what happens if an occupant has already made a personal investment in the endowed property. Concerning the endowed waters. to put an end to the istibdal transactions or at least to subject them to careful scrutiny by the religious authorities and to convert such sales into lease contracts.hirman. which was approved on December 22. once again assumes his original status of a tenant farmer. the cash amounts deposited at the Taavone Keshvarzi Bank in a government account shall be proportionately credited to the accounts of each endowment (Article 11). shall be punished. In passing. Furthermore. propaganda and publication of Islamic culture. Thus the tenant farmer who became private owner of land under the Shah. The next Article explains that for the period that has passed from the time of sale to the new leasing contract (to be issued by the Islamic Republic) a rental fee shall be calculated and cleared by the payments already made by the occupant farmers. the above mentioned. Article 8 promulgates that revenues of endowments whose expenses are not specified and others purely endowed for charity purposes. . If it is observed that the farmers still have debts. But then. if found guilty. the waqf status of the distributed lands shall be restored and the occupants will become tenants again. they shall be cancelled (Article 13). the Department of Endowments should take the necessary measures to repair these premises in conformity with the original wishes of the founder. The last Article of the by-law specifically states that. 1998: 77). 1984. it is promulgated that if they have been sold without any religious authorisation. where the status of the trustee has been completely obliterated or when compared with Turkey of 1954 where all the Ottoman cash waqfs were deprived of their legal personality and their cash capitals were pooled to a bank.93 for the occupied endowments. The first Article of the new law declares that the Iranian waqfs shall from now on be administered by a new department called. the difference shall be calculated and received in cash or by instalments from the farmers and be credited to the endowment.

section D). is being paid not a fixed salary but a proportion of the net revenue generated by the waqf. as the royalty transfer fee in favour of the endowment. we will see that this principle is known in India as the doctrine of cy pres and has been imported from the English Law of Trusts. then. the latter shall not be subjected to the payment of any royalty. after about 200 years’ of government interference in the autonomy of waqfs. local experts shall calculate this key money. we are observing for the first time. at least to this author’s knowledge. Long term leasing. In case the lessee erects numerous buildings on the land of a waqf. If the trustees refuse to register the endowments b. endowments and charities affairs. It promulgated that if the land of a waqf is leased for development. shall be obtained from the developer as royalty. the fair value of this land shall first be assessed by the experts of the Ministry of Justice. he is obliged to pay an amount equal to 15% of the difference between the present value of the land and that at the time of the original contract. Thus long term leasing which could be . 30% of this value. it should be spent for a purpose nearest to it. Article 4 clearly specifies that the government can interfere in the waqf affairs only under the following conditions: a. The second Cabinet Decree dated May 17. Endowment and Charity Affairs. Should the lessee who has obtained the right to develop the land wish to transfer this right to another person. in Iran full religious freedom has been ensured and the government control over the waqfs is effectively curbed. All the key moneys as well as royalties are to be considered as revenue of the pertinent waqf. and 17. When we turn our attention to India just below. after obtaining the approval of the trustee as well as the Department of Pilgrimage. It goes without saying that this system would have very important repercussions for the efficiency of waqf management. If the property is let for business purposes. When the rights of the lessee are inherited by his primary legatees.94 In a note attached to this Article. all over the Islamic world. A note to Article 3 is particularly interesting in that it grants autonomy to the mosques. which shall be received in favour of the endowment at the time of contract. Thus. For. In such a case. the original tenant. 1986 two cabinet decrees were announced. Article 11 regulates the fees to be paid to the trustees and to the supervisors. 1986. if he were informed that his income would be proportional to the net revenue he generated. c. We hypothesise that the latter would be substantially more efficient in view of the fact that the well-known agency problem would have been addressed. Undoubtedly a trustee would do his utmost to enhance the revenues of the waqf. deals with the administrative organisation of the pilgrimage. The next Article deals with procedures to be followed should the tenant wish to transfer his tenancy rights to another person. then the amount to be paid shall be calculated in proportion to the net income of the endowment. On May 12. This is limited to a maximum of ten years unless approved by the Director of the Department (Article 11. the construction price of each unit is to be calculated according to the Law of Possession as will the relevant royalty. in addition to the current rental fee. This is a very important contribution to the waqf system. theological schools and takyas and prohibits the Department from interfering in the internal affairs of these institutions. In the contract the purpose of the development shall also be clearly stated. must pay to the waqf’s account 10% of the total key money. These fees shall be paid in accordance with the amount stated in the endowment deed or where there is no stipulation. hajj. In case of istibdal or transforming the nature of an endowment from the original purpose of the founder. mutawalli. that the trustee. One pertained to the development of waqf lands leased to third parties. we find another universal feature of the waqf system that if the income of a waqf cannot be spent for the specific purpose of the founder. Research comparing the relative efficiencies of waqfs paying fixed salaries versus those that pay proportional salaries should yield interesting results. Article 3 introduces the concept of key money.

Repairs c. Article 35 informs us that there is a separate Department of Financial Affairs of Endowments. The Article stipulates that such fees should be paid according to the waqf deed. Article 48. It is also promulgated (section F) that the minimum rental amount should be published in the tender announcement.000 or for leasing to government organs.54 Article 19 recognises the following expenditure categories for waqfs: a. which shall be sent to the Department and other governmental bodies. the Ottoman invention of icare-i tavile leading to the icareteyn has been effectively prevented in the Islamic Republic. Note number 3 of Article 33 states that the net income of a waqf will be equal to 80% of the total income. provides relief by stipulating that should a waqf desire to be exempted from direct taxes. More precise information on taxation matters is provided below. Maintenance expenditure b. This Article stipulates that all the waqfs are to send their monthly balance sheet of the journal and general ledger including the evidences to this department. however. Thus. It has been shown that auctions not only have been sanctioned from the earliest times of Islam and therefore constitute established custom. That public endowments whose revenues are spent for charitable and pious purposes will be granted tax exemption is also confirmed by a circular of the Department (Article number 3. Any sale transaction pertaining to waqf properties are subject to the approval of the Director of the Department (Note to Article 43 above). 54 At this point the reader may wonder about the legality of auctions from the Islamic point of view.. Article 43 provides us with further information concerning istibdal transactions. then the guardianship fee should be calculated so that it is equal to 10% of annual net income and supervision fee at 5% of the same net income. Another traditional feature is observed in Article 23. 1989). which promulgates that. section E promulgates that when waqf properties are to be leased. all the profits of the previous year shall be entered into the budget as net income of the following year. Auctions are not demanded for small waqfs. In this way. All the moneys received at the auctions are to be deposited at the account of the pertinent waqf (Article 18). Articles 24-28 concern various measures adopted in order to supervise the waqfs and avoid embezzlements. with revenue less than RIs 200. this should be done through public auctions and the bidders should submit a guarantee of 10% of their bid. tax exemption is possible. no date) but. These Articles reveal the establishment of a serious process of inspection. Thus we are informed that the total revenue of an Iranian waqf is subject to a 20% deduction covering fees and taxation. Thus we are given the first hint that Iranian waqfs do not enjoy tax exemption. If it does not. Article 11.95 extended to 99 years in pre-revolutionary Iran has been reduced to a maximum of ten years. Taxes and all other dues. this privilege was to become effective on 21 March 1989. the proceeds are to be deposited in a bank in the name of the endowment in question. it needs to obtain the approval of the Department. . but that they also function as the primary instrument of resource allocation in the absence of an official rate of interest (Çizakça. It is stipulated here that provided that the sale is legal. Article 33 regulates the fees that should be paid by the waqfs for supervision and custodianship. if such a clause exists in the deed. Article 20 promulgates that each waqf shall prepare an annual budget with 5 copies. fees and charges etc.

Article 50 allows for the same developments in Iran by stipulating that the trustees of waqfs as well as the Department itself may establish companies for the purpose of maintenance and development of their properties. As a result. Introduction 55 Circular of the Department of Endowments and Charity Affairs. Board of Ministers Decree dated 2 July 1989. this Article permits a joint purchase. when such companies owned by waqfs realise profits. These papers are to be considered as the waqf itself and shall not be considered negotiable. Article 45 allows for joint purchases subject to the approval of the trustees. This is now possible in Iran because.55 VII.96 The next Article is a most interesting one and refers to the cash that is obtained as a result of istibdal transactions. it had become possible after 1967. INDIA 1. here we have a possible solution to the confiscated assets of the waqfs of Singapore. when ibdal/istibdal converts a waqf into cash. Negotiability shall be allowed only when another istibdal transaction takes place. to become effective from 21 March 1989. Based upon this fatwa we had come to the conclusion that cash waqfs were permitted in Shi’ite law. no date. these profits have been granted tax exempt status providing they can prove that the share holders do not use the profits for their own personal ends. Istibdal revenues can be used to purchase stocks and bonds b. subject to the approval of their trustees. the Department shall keep in a special register the list and specifications of these stocks and bonds as well as the shares of the endowments. where the amount of cash obtained by applying istibdal does not suffice. The note to this Article stipulates that when such shares are bought. the cash that is obtained is considered as the waqf itself. It will be recalled that the state of Singapore. Further confirmation can now be found in Article 44. Section 3. We attached a lot of importance to this development on the grounds that such arrangements enabled the waqfs to expand their revenues by sharing in the dynamic expansion of companies. The Article further stipulates that the Department may facilitate such transactions by purchasing the property itself and then divide it among various endowments according to the capital contribution of each. If a similar law would be promulgated in Singapore. In short. Thus the dynamic potential of such transactions have been recognised in Iran as well. how in Turkey. thus once again confirming the legality of cash waqfs. note 1. Thus. Article 44 is relevant here since it stipulates that the cash deposited into the banks constitutes the waqf itself. . Article 45 introduces in modern Iran what we have called above as supply side capital pooling among the waqfs. facing an acute shortage of land. had applied an obligatory ibdal by converting real estate assets of some of the local waqfs into cash and depositing this compensatory cash into the banks. It will be recalled that Ottoman cash waqfs often pooled their resources and contributed to each other. in Iran. It will be recalled from above that a fatwa given by Sheikh ‘Abd Allah al-Mazandarani. Article number 5. which stipulates that: a. and for all practical purposes. We have seen above. This conclusion was first confirmed by the investment portfolio of the famous Astan-e-Qods waqf. As well as. the Celebrated Mujtahid of Karbala in 1907 had permitted establishment of a waqf with stocks and shares. the cash in the banks would continue to survive as cash waqfs. for a waqf to establish its own joint-stock company in order to benefit from the latter’s realised profits. number 30521/44096. these Singaporean waqfs ceased to exist. Consequently. Furthermore.

India can boast to be the country with the largest number of waqfs. The total has been
estimated as exceeding 250,000. Indian Muslim Awqaf or Trusts are running 2,500 secular
and technical schools, colleges, and orphanages and at least 60,000 madrasahs and 200,000
mosques (Rashid, 1987: 93; Rashid, 1997). A rough summary of a survey of Indian waqf
properties conducted way back in 1976 was as follows:
Table 4:
Number of Waqfs in India (Summary of the 1976 Survey)
Name of State/Union of Territory
Total Number of Awqaf
Andra Pradesh
Bihar (sunni)
Madhya Pradesh
Tamil Nadu
Uttar Pradesh (sunni)
West Bengal
Source: (S.K.Rashid, 1987: 54)
Although incomplete and out of date, this survey has been submitted here in order to give an
idea to the reader about the vastness of the Indian waqf system and its diffusion in the
country. Moreover, waqfs are being discovered in all Indian states almost as a matter of
routine. It is for this reason that Rashid is convinced that the total number of Indian waqfs
exceeds 200,000 and approaches to a quarter million.56
The earliest known waqf in India can be traced back to the last years of the twelfth
century when Muhammad ibn-Sam, one of the Ghurid Sultans, established a waqf in his
name. After the establishment of the Delhi Sultanate (1206) many other waqfs followed. One
of these was the waqf endowed for the maintenance of the tomb of Sultan Qutb Uddin. Sultan
Muhammad bin Tuqlaq had appointed Ibn Batuta, the famous Arab traveller, as the trustee of
this particular waqf.
Northern India represented the greatest frontier for North-Eastern Islam. Turks,
Mongols, Afghans and Iranians all came and settled in this vast sub-continent. The area must
have been similar to the Balkans in the far Northwest in the sense that nearly everywhere the
Muslims constituted a minority. The first Muslim state in India was founded in the Sind
during the eighth century. But its influence on the rest of the continent was negligible. It was
the Central Asian Muslims of Turkic origin who penetrated the sub-continent via the
Northwest Passage who were the greatest state builders. The Sultanates of Delhi, Jaunpur,
and the Gujarat were all established by them.

In his latest work Rashid (1997) informs us that the quarter million mark has been
crossed and more are still coming to light.

Sufi sheikhs belonging to a myriad of orders played a crucial role in the conversion
of the indigenous peoples. Almost every ruler had a favourite sheikh and established waqfs to
support his shrine. But it was not only the Muslim sheikhs who received grants from the
rulers. Just as the Ottomans supported the Christian churches in the Balkans, Hindu priests in
the sub-continent also received imperial support from the Mughal rulers. The term waqf was
also used in this case even though referring to a non-Muslim institution. Hindus picked up the
terminology and used it to describe their own endowments (Kozlowski, 1985: 22-25). Not
only public graveyards but also the great Taj Mahal and other such tombs were supported by
the waqfs. This sort of imperial behaviour was imitated by the nobility and the merchants.
Thus endowment of a waqf became a highly respected norm of social behaviour.
In Mughal India (the Mughals never referred to themselves as Mughals, but as the
Bayt-i Timur or Ça atay), the attempts to combine the Timurid heritage and the PersoIslamic statecraft were complicated by the prevailing local conditions. First of all, the
Mughals did not push the construction of pious buildings and monuments as much as the
Ottomans. This is because, Northern India had been controlled by Muslim rulers from the
13th century onwards. The earlier Muslim states had already made ample provision for the
support of the mosques as well as for the maintenance of religious notables. Consequently,
this Mughal attitude is more similar to the Ottoman policy in Egypt rather than in the Balkans
or Anatolia.
None of the pre-Mughal dynasties survived for more than 60 years. As one succeeded
the other, much like the situation in Egypt, the new dynasty took over and preserved the
endowments made by the earlier ones. When in the year 1526 the Delhi Sultans were ousted
by the Mughals, the predecessors’ traditions were continued and many new waqfs were also
Waqfs in India were subjected to a hierarchy of control the basic elements of which
can be identified as follows:
a. Central Administration
b. Provincial Administration
c. Local administration
Neither the Sultans nor the Mughals created a separate department for the control of
the waqfs. The Sadr us Sudur, the Mughal equivalent of the Ottoman eyhülislam, was
concerned with the waqfs. He entrusted the supervision of the awqaf at provincial level to the
sadrs (sadr-e-sabah and sadr-e-sarkar). These sadrs, however, were not empowered to
collect revenues from the waqf properties. This right was given to the diwan exclusively. The
local administration was entrusted to the kadıs who could be found even in the small
parganahs. On the spot supervision over the waqfs was administered by the kadıs. The kadıs
inspected the waqf accounts kept by the village mullas (müezzins).
In the final analysis it was the trustees who were responsible for looking after the
affairs of each waqf. This is still so today. As long as the trustees remained within the Islamic
law, they were not interfered with by the administrative machinery (Ibn Battuta appointed
460 persons to take care of the tombs completely upon his own initiative). Moreover, the
sultans respected the legally appointed trustees. When Sultan Aladdin (1296-1316) restored a
large number of waqfs, which were neglected, and in ruins, he sought out and restored the
trustees who had been expelled previously. But if the inspections revealed that a trustee was
corrupt, the Sultan replaced him. The waqfs were subject to a highly centralised system of
inspection. But they were left free in their normal day-to-day functioning.
2. Legal Issues
All the basic principles of the classical Islamic law, pertaining to waqfs, particularly that of
the Hanafi School, are also valid in India. While we will refer to them whenever necessary, a
summary of these will not be provided here as they are well known and have already been
mentioned above.

What is of greater interest is the impact of British colonisation on the waqf affairs.
There are two conflicting forces here: while, on the one hand, it is acknowledged that the
British generally applied the Shari’ah to the Indian Muslims as a matter of policy, on the
other hand, the East India Company was granted the power to make its own laws in India, so
long as these laws were reasonable and not contrary or repugnant to the laws of the mother
This policy of non-interference with the Islamic law was dictated by three main
a. The colonial power did not want any break with the past
b. The primary interest of the British in India was to conduct trade and trade depended on
the preservation of security
c. As an interference with the religious beliefs and customs of the “natives” would
undermine security, the British had no desire to interfere with the religious susceptibilities
of their subjects (Rashid, 1983: 163-164).
The result of these conflicting forces was the eventual co-existence of the two
systems of law and a subtle erosion of the Shari’ah. How this gradual erosion affected the
Indian waqf system will be explained below.
When the East India Company in 1772 decided to claim sovereign rights and the
power of jurisdiction outside its “factories”, the preservation of the institutions of Islamic
law concerning the family law, succession and the Law of Waqfs was guaranteed to the
Muslims, and this guarantee has remained valid ever since. According to strict theory, the
whole of Islamic law, including the rest of Civil Law, Penal Law, and the Law of Evidence
ought to be regarded as sanctioned by religion, but no significant voice of dissent was raised
when Islamic law in these last was superseded by codes inspired by the British in the course
of the nineteenth century.
This process started with the Bengal Regulation VII of 1832 which superseded both
Hindu and Muslim laws of succession. Under them conversion to another religion would be
grounds for exclusion from inheritance. This and a host of other laws passed at the insistence
of the Christian missionaries, basically attempted to protect the rights of any Hindu or
Muslim converted to Christianity.
The Bengal Regulation was then followed by 6 enactments, the Indian Succession
Act, the Indian Contract Act, the Negotiable Instruments Act, the Indian Evidence Act, the
Transfer of Property Act and the Criminal Procedure Code. All of these enactments
superseded the principles of Shari’ah (Rashid, 1983: 167).
Schacht attaches great importance to these developments on the grounds that the idea
of a secular law had for the first time been accepted by the leaders of an important Islamic
community. As early as 1772, British judges had replaced the kadis in British India. The
judges were originally assisted by “legal officers” who were chosen from among the Muslim
scholars. These were, in fact muftis whose duty it was to state the correct doctrine of Islamic
law for the benefit of the judge. As time went on, the judges themselves in the Muslim parts
of British India were more and more recruited from the Indian Muslims. But all judges were
trained in English law, and English legal concepts such as “precedent”. Gradually general
principles of English common law and equity infiltrated more and more into Islamic law as
applied in India. Last but not least, the jurisdiction of the Privy Council as a final court of
appeal could not fail to influence the law itself. In this manner, Islamic law in British India
has grown into an independent legal system, substantially different from pure Islamic law.
This difference is reflected even in its very name; the Anglo-Muhammadan law.
Out of this law, a new Anglo-Muhammadan jurisprudence has grown, a
jurisprudence whose aim, in contrast with traditional Islamic one, was not to evaluate a
foreign body of legal raw material from the Islamic angle, but to apply, inspired by modern
English jurisprudence, autonomous juridical principles to Anglo-Muhammadan law. The
result is a unique symbiosis of Islamic and English legal thought in British India. But this
kind of solution is not open to the modern jurists in the Arab countries of the Middle East.

which victimised the beneficiaries of these awqaf. they decreed that the zamindaris. provided he cultivates it. This was the direct consequence of the disastrous British attempt to apply tax-farming in Bengal. With this Act. be given permanent title to the lands forming their “estates”. they changed course and decided to introduce private ownership of land subject to taxation. The replacement of the kadis was followed only one year later by another momentous change: The 1793 Permanent Settlement in Bengal. Nor did they care to learn the differences between rakaba and tasarruf mentioned previously. The English simply did not understand the complex subtleties of the Islamic land ownership with its multiple claims. The land could also be traded and inherited (Kozlowski. land could be used as a security for a loan and could be confiscated by the creditor. After the settlement. mutawallis. Western influence on Islamic law and jurisprudence was not technically legal as it was in India. These altruistic institutions were so well established and respected by all layers of the society that they had even survived the collapse of the Mughal administration.” Not only this. In 1863 the Religious Endowment Act brought another fundamental change. and exhibited by those who imposed the “Permanent Settlement” meant that much of this land became the personal property of the trustees. and pays public revenue”. Officials did not agonise whether the zamindaris had owned their land before the settlement. “Hundreds of ancient families were ruined and the educational system of the Muslims. Eyewitnesses have reported that as a result of these developments. received its deathblow. ryot. In 1871 the Calcutta College was headed by an English principal whose annual salary of 1. Around 1765. 1979: 20). Nearly all of the ecclesiastical and educational institutions were maintained through the waqf system. The total disregard for Islamic property rights expressed by Lord Cornwallis. where the influence still exerts itself through the general cultural medium of Islamic modernism (Schacht.500 pounds was paid by an Islamic endowment. Thus the “Permanent Settlement” granted private property rights in India. The British Government tried to cloak this blatant misuse by attaching a small Muslim school to the English College.100 There. The scholastic classes of the Muslims were … absolutely ruined. which was almost entirely maintained by rent-free grants. Since the British preferred to deal with a few individuals in the collection of land revenue. Thus the estates endowed for the provision of Islamic education were used with total disregard for the original purpose of the founders. protects the cultivator. sultans and notables in medieval India considered alms giving a basic Islamic duty. The “Permanent Settlement” had a profound effect on Indian waqfs. controlling these lands. But. Lord Cornwallis summed up the situation as follows: “It is immaterial to government what individual possesses the land. Having failed in this. out of a total income of 5. 1985: 33).260 pounds only 350 were allocated to the little Muslim school and out . the extent of madad-î ma’ash grants amounted to one quarter of the total land holdings of the Bengal province. were transferred to the trustees (Husain and Rashid. The zamindars received permanent title to the lands forming their estates subject to the payment of taxes. 1959: 111-113). The institutions of soyurgal or madad-î ma’ash were land grants endowed with the purpose of supporting educational institutions and relieving the learned from the burdens of daily life. himself. As elsewhere in the Islamic world. In any case. but the officials of the East India Company diverted the funds dedicated to Muslim religious education to English education. which were previously under the superintendence of the Board of Revenue. (holders of Mughal era land tenures). these grants were officially abolished by the British in 1828. all the properties of the pious waqfs.

The new Muslim land owners reacted to the situation in the only way they knew: they began to convert their estates into waqfs during the early nineteenth century. The egalitarian nature of the law was admired particularly when compared with the British primogeniture. 1992: 132). predictably. the British judges applied the Islamic law of inheritance with more rigour than the kadis ever had. Chief Justice of Calcutta High Court. Confronted with the choice of upholding the terms of a family waqf or dividing an estate according to the Islamic inheritance laws. Sir W. But although this is understandable. Thus the British ended up provoking the wealthy classes because they had: created private ownership of land by giving title deeds to the land. The most powerful Muslim political associations began to contest the Privy Council’s decision on the grounds that family endowments had always been approved by the highest religious authorities since the earliest era of Islam. 1983: 163). Viewed together. Abd al-Fatah v. the judges customarily preferred the latter which helped them to promote the concept of private property. it led to a fierce reaction from the Muslims. a very tense situation was created. denied the right to establish family endowments. a process sanctioned by the Permanent Settlement. Beginning in 1879 a series of cases came to the courts most of which involved Muslim borrowers who had pledged a share of a family waqf and failed to repay the Hindu creditor. for it prevents the alienation of the house forever and necessitates its use in a manner which. Not everybody agreed with these arguments though. rejected heirs took their cases to the courts. Those owners who wanted to avoid fragmentation of their newly acquired lands faced a dilemma. Russomoy.101 of the 300 boys in the English College not even 1% of the pupils were Muslims (Rashid. rigidly enforced the Islamic law of inheritance and thus triggered fragmentation and finally. abolishment of the Mughal land grants and the 1863 Act. “A waqf for a family settlement creates a perpetuity of the worst description. But soon. with the natural increase in the number of descendants would probably render impossible. The British were not satisfied with the “permanent settlement”. which were that property was both alienable and inheritable and that the Mughal emperor was not the sole proprietor of land throughout his empire. This is because. which had been summarised by the Bombay High Court already in 1873. these “reforms” obviously had one clear goal. blatantly disregarded the Prophetic traditions and. endowment beneficiaries demanded the return of the land by proving that it was a waqf. wrote in a paper published in Law Quarterly Review of April 1899 as follows: . The government remained unconvinced and maintained its position. Sir William Jones considered the Islamic law of inheritance unique in that it bore “no resemblance to any other system of inheritance that the world ever knew”.Comer Pethersan. Consequently. This ruling made by the highest court of the British Empire. The waqf enabled these owners/founders to apply not only primogeniture but also to avoid fragmentation of their lands. establishment of private ownership of land and rendering it a freely tradable commodity. In this context they were delighted about the Islamic law of inheritance as it confirmed their own concepts of wealth and property. One of these cases. and the ruling was criticised even by other British judges well informed about India. it did create problems for the Muslims. When the creditor had the land seized. even if they would be willing (which could hardly be expected) to live amicably under one roof throughout all generation” (Diwan. having introduced full private ownership of land and at the same time subjecting it to the Islamic law of inheritance. Thus English and Islamic laws dramatically contradicted each other. was referred to the Privy Council (1894) which declared family waqfs invalid on the grounds that the family endowments served only the interests of the founders’ family and did not serve a pious purpose.

the family endowments would have faced the same fate in India as those in Algeria. Jinnah’s bill passed into law on 17 February 1913. i. this debate was by no means restricted to India and.. often hopeless. attacking not only the waqfs but also the Indian extended family system and. 1989: 555-565). It blocked any initiative by the Muslims in the direction of industry. by denouncing the institution as an unethical and illegal evasion of the Islamic law of inheritance. In short. where a unique development occurred. The law also ruled that no such waqf should be deemed void merely because the benefits for the poor are postponed until after the extinction of the family of the founder. Thus. This was indeed a unique development credit for which should in retrospect be given to the British. and by means of which Muhammadans in all countries are accustomed to protect their properties” (Rashid and Husain. and pointed with admiration. which prohibited these endowments.102 “The joint family is the cherished institution which has enabled them (Indians) to exist for ages without either a poor law. Muslim reaction culminated in Muhammad Ali Jinnah introducing the Muslim Waqf Validating Act of 1911. Still another modernist. In India. This act made it lawful for a Muslim to create a waqf for the maintenance and support of his family. he could do so also for his own maintenance or for the payments of his debts out of the rents and profits of the property dedicated provided that the ultimate benefit is reserved for the poor. The purpose of the Act was to eliminate the ground on which the High Courts and the Privy Council had refused to recognise family endowments. Where the founder is a Hanafi. rear guard action. In Algeria the Muslims remained a totally colonised population with no political rights: In India the right of representation was extended to a limited number of “natives” who successfully used the legislative process to challenge the Privy Council. One of the most curious things in the history of the administration of Eastern Law by European judges has been the persistent way in which they have attacked this particular institution. It perpetuated a pathetic class of . French orientalists carried through a cynical and successful attack on family endowments. in the interest of the money lenders. at the other end. The act affirmed that an endowment could also be established for the benefit of the family of the founder. has made the following argument: “The social consequences of the (family waqfs) were devastating. children or descendants. across the Ottoman Empire all the way to India. 1979: 128).e. the establishment representing the colonial and imperialist view. This act extends to the whole of India except the territories (Rashid and Husain. in India. on the one hand. Muslims and concerned British judges disturbed by this relentless attack on a social system and institutions which had constituted for centuries the back bone of Indian society. it was used to save them. on the other. as we have seen above. Thus there was a massive debate with. in precisely the same way that they have attacked the Muhammadan family settlements. while at one end of the Muslim world. The debate about the family waqfs in India continued after the independence. Muslim politicians convinced the British government that these endowments were an ancient and universal practice approved by Islamic law (Powers. Moreover. Latifi. in India. 1979: 27). exploiting an age old inconsistency embodied in Islamic jurisprudence with which Muslims had learnt to live with for centuries. or public hospitals or charitable institutions. to Egypt (1952) and Syria (1949). Fyzee has argued that the family waqfs should never have been revalidated. while the legislative process was used to dismantle family endowments in Algeria. Indeed. which are known as waqfs. Everywhere colonialists or modernists were attacking these institutions and Muslims were fighting a loosing. was fought equally fiercely all over the Muslim world from French North Africa. had it not been for the relatively more liberal British rule. namely the contention that a valid waqf could only be established for charitable or pious purposes.

e. 3. The West Bengal Estate Acquisition Act of 1953 granted perpetual annuity equivalent to normal recurring annual earnings of the estate to all public. partly public. Egypt reformed the family waqf in this manner in 1946 and since the experience was that the matter did not improve. During these radical changes waqfs also lost their lands except what was personally cultivated by the trustees. as so many of them had fled or migrated to Pakistan.. Those purely charitable/public waqfs received fairly adequate annuities but those that were partially so (i. 1979: 92). “This is not a novel solution. Many waqfs in India were endowed with agricultural lands. i. The Central Waqf Act. the debate on the validity of family waqfs was by no means finalised with Jennah’s victory in India. 1978: 229-230). many states decided to abolish the zamindari and jagirdari systems and introduced land reforms. Tunisia and Lebanon.103 pensioners devoid of economic incentive who were bound in the long run to become a drag on the community. or charitable waqfs.e. Many of these were cultivated by tenants on share cropping basis with the trustees acting as absentee landlords. for two generations at the end of which the waqf may be reconstituted providing the beneficiaries agree to do so. The Indian modernists. continue to argue about the merits of abolishing these institutions with total disregard to the fact that they are considered to be perfectly legal from Islamic perspective. Paras Diwan is much more radical. Syria. that succeeding generations obtain successively smaller fractions of the income. After the independence. 1992: 179). The partial ones. it abolished the family waqf altogether in 1952” (Diwan. modern jurists favour the repeal of the Act of 1913 restoring thereby the law as it stood declared by the Privy Council in 1894. Only later was it realised that the waqfs were established in perpetuity and the charities would collapse if they were deprived of their source of income. and argues. received no annuity but only ad hoc compensation in instalments. Distressed by these evils. All of these developments indicate that British influence and the resulting discrimination against family waqfs is still a fact of life in India. Khalid Rashid is in favour of family waqfs but urges reform.. 90% of the waqfs in West Bengal were of mixed character. This was too much for the Central Government. For Rashid the real culprit is fragmentation. almost the whole waqf institution in that state was on the verge of extinction. It interfered and the State Government agreed to make an amendment to allow annuity for the portion reserved in mixed waqfs and trusts for charitable and religious purposes. on the other hand. It is submitted that in view of the recent amendments introduced into the family waqfs in Egypt. Meanwhile. Thus. the Muslims (of India) should review their attitude and adopt a more realistic approach (Latifi. family waqfs) did not receive sufficient annuities. religious. Since. such family waqfs faced simply a de facto liquidation. still under the impact of British values. In the wake of partition many waqfs were left without a trustee or beneficiary. He argues for the creation of a limited kind of family waqf created for a specific time. 1954 The period 1947-1954 was a critical one for the waqfs of independent India. It may be added that the decision is already and has ever been since 1894 the law of Muslims in Kenya. partly family. part of which is absorbed by the lawyers. The Bihar Zamindari Abolition and Land reforms Act of 1950 granted perpetual annuity only to those waqfs dedicated exclusively to charitable purposes provided the salary or any allowance payable to any mutawalli did not exceed 15% of the net income dedicated (Rashid and Husain. Large-scale loss of waqf lands is another post independence development in India. In short. In many places the tenants became full proprietors on payment of prescribed amounts to the state governments. a reverse migration from Pakistan resulted in . say. Provisions were therefore made in various enactments to grant annuities to the waqfs. Other purely family waqfs received only some compensation but no annuities whatsoever. Apparently these annuities were not paid to all the waqfs in a uniform manner.

Thus the worldwide trend towards centralization of waqfs has found expression in India through this Act. Moreover. are also permitted providing that the property was dedicated for any of the purposes mentioned above. The Act constituted Boards with authority and powers. The states in italics. It was the duty of all the directors of endowments to safeguard all the endowed property and to ensure that they were functioning according to their original status.104 the illegal occupation of waqf properties by displaced persons. A provision regarding the assumption of direct management of waqf by the Board is contained in the Central Act. The Central Waqf Act defines waqf in Section 3 as a permanent dedication made by a Muslim of any movable or immovable property for any purpose recognised by the Muslim Law as pious. this Act put in place an all-India law dealing with waqfs (Rashid. If an istibdal occurs without permission. 1997: 10). West Bengal and Gujarat. The “management and security of all endowed property is now included in the duties of government”. This assumption of direct management may be deemed necessary if: the office of the mutawalli is vacant and no suitable person is found under the terms of the waqf deed. mutawallis. The Central Waqf Act extends to the whole of India except the states of Jammu. which states that the state governments were to appoint a Commissioner who would carry out surveys of waqfs. In short. The act also required that all religious and charitable endowments be registered in the official book of endowments. the family waqfs. has been obliged by the law to report and register his waqf with the State Waqf Board. the Board orders the person in possession of the property to deliver it to . every trustee. Under the Act. It is thanks to these surveys initiated by the Waqf Act. Another controversial issue. it granted state governments supervisory responsibility. 1979: 41). it is argued. Even more importantly. which provides a landmark in the history of the Indian waqf administration. The State Department of Endowments appointed a director who was responsible to each state government for the efficient management of the department. This is because. Bihar. it is more likely that what we have here is the beginning of a major centralization drive much like those observed nearly everywhere else in the Islamic world. Centralization of the waqf system starts with the Section 4. Failure to do so was made penal. Section 66-C of the act also makes provisions for the creation of waqfs by non-Muslims. he readily became convinced of the immediate need for action. and made their violation a penal offence. mutawalli. have their own local waqf acts. 1954 that we have been informed about the huge size of the Indian waqf sector. istibdal requires permission from the Board. With this Act all religious and charitable endowments. it imposed precise obligations upon the trustees. Kashmir. Thus it is provided that the Board can assume direct management of the waqf for a period or periods not exceeding five years. or the so-called waqf alal aulad. It has been argued that whatever lacunae existed in the Act have been removed by the Waqf Amendment Act of 1964 and that consequently the amended act is a very sound legislation (Rashid and Husain. It has been argued that this Act was the “best thing that happened to waqfs in India”. Everyone exploited the chaotic situation of those times to gain personal advantage at the cost of waqfs. Any change in the particulars of the waqf or its mutawalli was also to be reported to the Board. Notwithstanding these claims. the right of a person to act as mutawalli is disputed and the mutawalli or a committee managing the waqf has abused its powers and failed in its duties. Uttar Pradesh. irrespective of denomination. came under state control. it conferred on the Central Government the authority to lay down the policies to be adopted by the Boards. religious or charitable. the surveys also revealed the details of waqf estates illegally usurped (Rashid. The surveys were to contain standard information. Thus the Act eliminates the highly controversial issue of cash waqfs at one strike so that these waqfs are now perfectly valid in India. When concerned Muslims organised within the ranks of Anjuman Himayat-e-Islam and Jamiat al-Ulema-al-Hind presented a detailed report to Nehru. The result was the Central Waqf Act of 1954. for the first time after the Mughals. the act “laid down a sound administrative structure to ensure proper administration of the waqfs in the country”. 1997).

These accounts are audited by an auditor appointed by the Board. Ensure that the income of the waqf is spent in accordance with the original purpose Give directions for the administration of the waqf Settle schemes of management for a waqf Scrutinise and approve the budgets submitted by the mutawallis Audit the accounts Appoint and remove the mutawallis if there is a vacancy or when the right of any person to act as a mutawalli is disputed k. Collect information about a certain property and to decide whether it is waqf property or not. will lead to penal action against him. mutawalli. It seems the waqf boards were often abolished and merged or re-established in parallel with the constant changes that occurred in the borders of the Indian states. In the conference the Waqf Boards complained that the funds at their disposal were very limited. To enhance them the following were suggested: . Give directions to the mutawalli for the administration of the waqfs b. is to be utilised. h. of the mutawalli. In Bihar there are separate Sunni and Shi’ite waqf boards. Such payments are deemed necessary for the finances of the Board. The Board’s decision. f. The mutawalli is obliged to allow such inspections d. Cause surveys of the waqf properties q. Every mutawalli. Failure to do so. Istibdal done without the Board’s sanction is rendered by the Act invalid even if it has been permitted originally in the waqf deed n. Institute and defend suits in court of law relating to waqfs m. object and the beneficiaries of every waqf e. This distinction also used to exist in Delhi. Moreover. is final r. the Central Waqf Act has also exempted those waqfs whose annual net income does not exceed 100 rupees from the payment of contribution. which is spent for the promotion of religious and technical education as well as welfare. income. The mutawalli of such waqfs are obliged to obey the instructions of the Board c. maintenance and administration of waqfs. unless revoked by a Civil Court. is obliged to furnish to the Board before the first day of May every year a full statement of the accounts of the waqf. accounts etc. j. In December 1960 an Interstate Waqf Conference was convened. is expected to pay his contribution to the Waqf Board. carelessness etc. But the two were merged in 1962. Take measures for the recovery of lost properties of any waqf l. Administer the waqf fund o. The following functions and powers given to the Waqf Board by the Act demonstrate clearly the degree of centralization effected. Section 46 of the Act obliges the mutawalli of every waqf to pay to the Board six percent of the net annual income of the waqf concerned. Inspect the waqf properties. If a loss is caused to the waqf on account of neglect.105 the Board within 30 days. i. Determine in what way the surplus of a waqf for which there is no waqf deed. he is liable to make good the loss under section 33 of the Central Act. This situation seems to have created considerable confusion. Keep information about the origins. A person aggrieved by such an order may appeal to the District Court. g. Call for statistics from the waqfs p. The trustee. A trustee can be removed only if three-fourths of the total members of the Board support such a move. The Board must: a. Do all such acts as may be necessary for the due control. Sanction leases of property for more than three years or exchange properties according to the provisions of the Muslim law.


a. Since contribution from the waqfs are the main source of income for the boards, those
mutawallis who have not paid their contributions should be removed

b. Waqf surveys should be conducted
c. The accumulated income of the waqf properties vested in the custodians should be
transferred to the Boards

d. Funds under direct management of waqf boards should be invested
e. Interest unclaimed by the waqfs on religious grounds could be transferred to the boards
for utilisation on charitable purposes

f. Money belonging to the waqfs should be kept in public accounts if it exceeds Rs.500
Rashid claims that almost all the difficulties experienced in the working of the 1954
Act have been removed by the Waqf Amendment Act of 1964. In an attempt to reduce the
tension between various Islamic sects, an important amendment has been promulgated that if
the number of Shi’ite waqfs exceed 15% of the total number of waqfs in a state, separate
waqf boards are to be established.
Hitherto the Board had no authority to issue orders to a mutawalli concerning the
utilisation of his surplus funds. It can now do so.
Although the 1954 Act had authorised the Board to sanction long term leases of waqf
property or mortgage or exchange, it had not included the sale. Therefore, where sale became
a necessity, courts had to be approached. This difficulty has now been removed.
All in all, the highly praised 1954 Act and its amendment appear to have failed to
create an efficient waqf system for India. Indeed, it has been conceded that despite these
powers, the Waqf Boards have not been effective. Independent authors attribute this to the
insufficiency of the contribution of each waqf to the boards. They argue that; the five percent
of each waqf’s income allocated to the waqf board is insufficient and that this amount should
be increased.
They also observe that the boards have shown themselves to be administratively
inefficient, financially weak and virtually the cesspools of corruption and nepotism. They
have consistently failed to play any significant role in the socio-economic resurrection of the
community. The internal dissentions and groupism among their members, the suppression of
one board by another are only two among many maladies which prove that they have failed in
justifying the confidence reposed in them by the community. More specifically, the Boards
have been accused of failing in their most important function: auditing. The Bihar Board
appears to have been particularly negligent. In response, the Bihar Government was forced to
supersede the Bihar Subai Sunni Majlis-e-Auqaf with effect from April 1971 (Rashid,
JIMMA: 56-57). But the Bihar Board was by no means the only culprit. Indeed, the Punjab,
Tamil Nadu and Andhra Pradesh Waqf Boards were also superseded for more or less the
same reasons. Having analysed 18 state boards, Rashid has come to the conclusion that most
boards have been ineffective in auditing and since
“Audit of accounts is the only reliable means for a Waqf Board to know
whether mutawallis are fulfilling the objects of waqf according to the founders’
wishes … if this fundamental duty is not discharged by the Waqf Boards, … they
hardly justify their existence” (Rashid, JIMMA: 57).
The solution Rashid and others offer, however, appears to be more of the same
medicine; replacement of the present outmoded system with a new, rigorous and effective
one (Diwan, 1992: 171). We are left in the dark, however, about what this system would be.
It is to be feared that the “new rigorous system” would simply be even more, yet ineffective,
state control.
Indeed, further attempts at more vigorous control were made with the establishment
of the Waqf Section of the Government of India in 1958. After organising a conference and
some initial activity, this body has not been effective since 1974. In 1961, still another

government body, the Central Waqf Advisory Council was established and granted statutory
status by the Government of India. The Council was to give advice to the Government on
waqf affairs, to take steps for the betterment of the community etc.. To fulfil these objectives
the Council was allocated one percent of the annual income of every waqf board as well as
some government grants and interest income. But this body also failed to fulfil its mission
and led Rashid to conclude;
“But when all is said and done the Council has generally failed to come up to
expectations” (Rashid, JIMMA: 59).
Almost no one seems to have noticed the dilemma in state control: effective state control
necessitates an army of inspectors who are assumed to be honest individuals. After making
this heroic assumption, those advocating more and more state control through agencies each
with a fancier name than the other, tend to forget that there is a basic trade off between
controlling the waqfs and the fulfilment of their objectives. Since, these state agencies are
financed by the waqfs themselves, deducting more from their revenues in order to control
them becomes self defeating and simply leads waqfs to spend less on their primary objective;
charity. No one seems to think of improving the waqf system by granting them more, not less,

4. Taxation of Waqfs in India
Taxation of the waqfs has been one of the most controversial and complicated issues
in the history of the Indian waqf system. The basic dichotomy is the same as elsewhere: The
government is out to maximise its revenue, but taxing excessively leads to fall in revenues
that could have been spent on charity and so, is ultimately a self defeating affair. The issue is
also complicated by the existence of two different legal systems, Islamic and secular. What
was originally designed as a simple provision for totally exempting from tax the income of a
charitable trust has, over the years, become a maze of sections, provisos etc., with the result
that income tax officials are totally confused. The Income Tax Act was amended 27 times
between 1971-76. The state interferes and tries to regulate maintenance of accounts, receipt
of voluntary contributions, and the investment of trust funds. “We wonder if there is any
other class of tax payers whose activities are so totally sought to be regulated … ” (Diwan,
1992: 17).
Concerning the wealth tax, the Central Waqf Act promulgates that although a
mutawalli is not a trustee in the technical sense of the term, he has to be treated like one and
assessed for wealth tax in the same manner and to the same extent as would the person on
whose behalf the assets are held. Thus, as far as taxing the trustee/mutawalli is concerned,
the differences between the trustee in the English law where he is treated as an owner and the
mutawalli in Islamic law, where he is considered as a mere manager, have been disregarded
and the mutawalli is treated as the owner, i.e., in a manner more appropriate for a trustee.
Taxation of the awqaf was taken into consideration in a more systematic way in the
Income Tax Act, 1961. The basic points of this law are as follows: Income derived from
property held under trust for charitable or religious purposes is not assessed for tax if the
income is applied to such purposes in India.
As for the trusts held only in part for religious purposes; exemption from assessment
is given only to such trusts which were created before the commencement of the Act
(1.4.1962) and again provided the income is applied appropriately in India. Exempt income
must not exceed 25% of the income of the property held partially in trust.
This constitutes another restriction imposed by the 1961 Act. For, the 1922 Act had
provided exemption irrespective of whether the trust had been created before or after the
commencement of the Act and there was no ceiling prescribed. But, as part of the policy to
channel waqf revenues to the treasury, these restrictions are relaxed providing that the

income so accumulated or set apart is invested in government securities or others approved
by the government. This is a manifestation for India of a universal and age-old tendency of
many states and governments to incorporate waqf revenues.
Subsection 3 of the Section 11 rules that any income, which is applied to purposes
other than charitable (i.e., the part reserved for the family), will be taxed. There is no change
here, as the same clause existed under the 1922 Act.
Section 13/clause b/sub-clause ii/category iii deals with the family waqfs (wakf-alalaulad) and is in direct conflict with Islamic law. It stipulates that those family waqfs created
after April 1, 1962 will not be exempt from income tax. Thus, our argument that in spite of
the Waqf Validating Act of 1913, there is still a lingering doubt about these waqfs is
confirmed. Such inconsistency does not exist under Islamic law, which does not distinguish
or discriminate between family and public waqfs.
Rashid suggests that at least the portion reserved for religious or public purposes
should be exempted from taxation. Concerning those religious trusts restricted for a
particular community, the fact that they are subject to taxation, is wrong for this policy
hinders their establishment. It has been argued with considerable justification that the small
loss of public revenue will be compensated by the more potent charitable institutions, which
assist the programme and objectives of a welfare state (Rashid and Husain, 1979: 85).
Moreover, income tax is not the only tax family waqfs are burdened with. They also
have to pay estate duty, once again, in direct conflict with the Islamic law. The High Court of
Bombay has held in Khatizabai v. Controller of Estate Duty that estate duty is leviable on
family waqf properties and not only on the portion which the settler had reserved for herself
for her life time but also on the portion of the estate she had given to her children, i.e., on the
entire corpus. This has led concerned Muslim jurists to protest:
“ Property of a waqf alal aulad (family waqf), according to the Muslim Law, is divine
property and therefore, res extra commercium. It is subject to the same restrictions as any
public waqfs, as Muslim Law treats both private and public waqfs alike … The property in
both cases is inalienable and non-heritable and both fall under the supervision of the Kadi
Court. Section 5 of the Estate Duty Act therefore, does not appear prima facie to be
applicable … ” (Rashid and Husain, 1979: 86).
It is clear that the judges in this particular case were affected by the provisions of the
English law. As far as the Estate Duty is concerned, the whole thing boils down to the
question of whether the property of a family waqf is transmitted to the next generation upon
the death of the founder. But in such a waqf both the founder and his descendants are merely
recipients of the usufruct of the corpus. They do not hold any absolute interest in the corpus.
It is because of these complications originating in the very philosophy of the Islamic waqf
system that the family waqfs should not be subjected to the Estate Duty. To attempt to do so
betrays a fundamental lack of understanding of Islamic law.
Meanwhile a debate has been initiated between those who are for exemption and
others against it. The basic points of this debate may be summarised as follows:
Arguments for Exemption:
a. Waqf is created in perpetuity and its property is vest in God. Imposition of estate duty will
result in the eventual liquidation of its corpus
b. The notion that a family waqf is just a private trust to which no sanctity need be attached
should be dispelled for good. Its objective will be better appreciated if it is remembered
that Islamic law emphasises redistribution of wealth as much as accumulation thereof.
Purely Islamic institutions; zakah and sadaqa assure further dispersal of wealth.
c. The ultimate objective of many of these waqfs is charity. So, it will be the charity itself,
which will be hit if taxation gradually finishes off the property.

the math itself is regarded as a juristic person. their sanctity and charitable character have to be judged under that law. If the waqf deed authorises him to exercise istibdal. b. The bitter conflict between the revenue officials and sanctity of endowments has been summarised by Paras Diwan in the following revealing words: “Tax exemption in the case of trusts is one thing. the following 2 questions were referred to the High Court: a. Whether a mutawalli could be treated as a trustee … and can be assessed to tax under section 21 of the Wealth Tax Act. although he is answerable like a trustee for mismanagement(Diwan. estate duty being a capital levy on the principal value of the property. they cannot extricate themselves from them and are sucked into the crevices deeper and deeper. Certain institutions of Hindu and Muslim Law have proved such quicksands that once the revenue authorities tread on them. He is not a trustee as waqf properties do not vest in him as they do in a trustee. Muslims argued. b.109 Arguments Against Exemption: a. when dedication is made to an institution. will eventually liquidate the waqf itself. When dedication is made to a math. for it is through him that the income tax is levied on the income of a waqf. the institution is regarded as a juristic person. The shabait of the temple. corpus. These words reflect the frustration of a non-Muslim scholar as well as revenue officials.57 But Muslims were quick to respond. When properties are dedicated to a temple. in the case of waqfs is another. not assessable. It is indeed not easy to tax waqfs without violating Islamic law. or the manager of the institution is not the person in whom the property vests. CIT. But it is not owned by the God in secular sense. This argument focuses on the highly complex structure of the Indian society and reflects the concern of the lawmaker that if Muslim endowments are granted a tax exemption privilege. the almighty of Muslims is impersonal. since God. He is not even the trustee. It is for this reason that the position of the mutawalli assumes such importance in India. Moreover. Thus waqf properties cannot be assessed: And on this argument it is immaterial whether waqf is public or private”. in gifts to maths and other religious institutions. More specifically in the Waqf Haji Karim Bux v. a somewhat curious and totally confused argument has been advanced. they proposed that all endowments should be granted the same privileges. the property vests in the idol which is considered to be a juristic person. If these waqfs are subject to income tax why should they be exempted from the estate duty? This argument was countered as follows: There is a vital difference between these taxes. He is more like a manager. this may lead to discontent among the Hindus. 1992: 7). . In regard to levying income tax or wealth tax on the waqf. while the former does not tend to extinguish the property. the Tribunal is justified in holding that the shares of the mutawallis were indeterminate and therefore. Since in Islamic law the waqf property vests with God and not with the mutawalli. 1957? Whether. The argument runs thus: … the property of the waqf is tied in the ownership of God. he can even 57 The Hindu piety found expression in gifts to idols and images. The mutawalli looks after the waqf as its manager … but the waqf properties do not vest in him. since waqfs are a creation of the Islamic law. The mutawalli has the full power to use the waqf property for the purpose for which the waqf was created. The mutawalli of a public waqf is a public official. the latter cannot be considered as a trustee in the English sense. the mahant of the math. Exemption will favour only one section of the society and will thus be discriminatory. it has no form (and thus is not a juristic person as Hindu idol is).

The so-called EARC Report no. But nothing stops a waqf from purchasing the shares of an already established company with legal status. the committee approached the whole issue with scepticism and doubt. its other concern about the waqf related businesses enjoying tax exemption and thus causing unfair competition to others. which came into force in 1995. However. As for losses. and the third parties with whom the agent (company) conducts its business need not even know of the existence of the principal. Md. We will observe whether these arguments on the taxation of waqfs were translated into reality in the latest act. Thus. it can protect the waqf from liabilities towards third parties. 58 . 238-42).Usuf v. Having made these observations. “While it is difficult to object in principle to a charitable trust either owning a business or running a business itself. One possibility would be to determine a quantitative yardstick as to when the business activity becomes so dominant in the affairs of a charitable trust as to give rise to a legitimate question whether the organisation is in fact primarily a trust or a business concern … A judgement on merits in each case seems inescapable. The sole effort of this law should be to grant tax exemptions to the deserving institutions and to tax effectively others. a waqf deed provided for the sale of the waqf properties and to construct and maintain a rest house from the sale proceeds at Mecca. appears to be correct. the waqf is the principal. the authors of the report touched upon a vitally important issue in modern waqf management: establishment of joint-stock companies or businesses by waqfs in order to enhance their revenues. Viewed from the perspective of Islamic partnership law. the disjunction applies. In short.e. if necessary. this arrangement can be called a two-layer mudaraba whereby. Its concern about the energies of the waqf being wasted in commercial activity is totally unjustified in view of the fact that the company would have its own personnel and judicial personality. which are used as a devise to dodge taxes. all of the latter’s profits and thus enhance its revenues substantially. written in 1982 has observed that it should not be the function of the tax department to monitor the functioning of the trusts and that the tax laws are not meant to regulate the trusts.10. 1992: 875). The best course would therefore be to entrust the responsibility to give decisions in particular cases to a single executive agency of government and to make those decisions final and binding” (Diwan. The reader will recall that the ability to establish joint-stock companies incorporated into the waqf was one of the primary reasons behind the latest dynamism observed in the Turkish waqf system. But this sort of case-by-case decision leads to inconsistencies and divergent decisions by the court. the ability of a waqf to establish a company enables a waqf to achieve a dynamism that it lacked before and at the same time it can be protected from liabilities towards third parties. The courts approved this.Sadig.110 alienate the waqf property. where businesses established by waqfs do not have autonomous legal status.. The authors suggest that there should be a uniform and simplified law governing the religious endowments of all creeds. 1970: 171. The complete disjunction envisaged by Islamic law is not observed in Turkey. in which case. businesses attached to charitable trusts enjoying tax advantages would have unfair competitive advantages vis a vis their competitors not attached to such institutions. mudarib. rab-el mal. the question does arise as to the extent to which the energies of such a trust should be devoted to such income raising activity without giving rise to doubts about its essential character and their entitlement to tax exemption. there is a complete disjunction between the principal and the third parties (Udovitch. This is because the waqf with a company attached to it would be able to incorporate.58 We will now observe how the same issue was addressed in India by the EARC committee. i. Istibdal is permitted in India: in Md. since the company has its own judicial personality. Besides. the company its agent.

These views suggest that the 1984 Act probably represents the peak of the Indian waqf system’s centralization. instead of focusing on what well-financed waqfs could do for the society. The Waqf Commissioner who under the 1984 Act chaired the Board is now to be called the Chief Executive Officer and will be subordinate to the Waqf Board. it was feared that industrial conglomerates would acquire the control of other companies through the trusts that they establish. The main criticism of this Act was related to the provisions concerning the power of the Waqf Commissioner. in reality. The Waqf Boards have been reorganised so as to have 13 members.. it should be noted that before disassociating itself. a highly dynamic form of waqf finance applied successfully in Turkey was obstructed in India. Moreover. Let us now observe to what extent this law can be considered as such. The Waqf Act. once again.. an Indian waqf with a joint-stock company attached. based on deep suspicion. 1995. 1995). assuming that the business income to total income ratio is less than 75%. Thus. What the committee has done is to split a trust’s income into two categories: business and non-business and subject the former to taxation and grant exemption to the latter. Even the former may be granted exemption on the condition that the government agency decides in favour and rules that the business activity is incidental to the primary charitable activity of the trust. The committee’s main contribution may be summarised as follows: they proposed to change the previous method of taxing a charitable trust. It was stated that the commissioner was given overriding powers and that the Waqf Board was made subordinate to him. The majority of these members will be elected from among the Muslim community. it will be granted tax exemption on all of its income including the business. Thus. 59 . 1997: 14). 199559 The very latest legislation in India concerning the waqf system was passed in 1995. the committee concentrated on the rivalry between companies. If this ratio exceeds 75%. The 1995 Act seems to embody a reaction to this centralization.. If it does. i. But this Act also could not be enforced except for two of its provisions. This provision finds a place in the new 1995 Act (Rashid. As for the waqf-company linkage in the reverse direction. Thus. 1 lakh are eligible to be elected as Board members. in a nutshell. would enjoy tax exemption (Diwan. the trust will have to pay tax on all of its income. his powers are hardly curbed. had brought.111 Meanwhile. The Waqf Act of 1954 which was thought of at the time as an excellent piece of legislation. But when it comes to basics. however. The new Waqf Law has the following features: an interesting provision of the 1984 Act was the establishment of Waqf Tribunals ousting the jurisdiction of Civil Courts in matters of waqf disputes. As a result. 5. then the entire income of the organisation should be taxable. This Act was published in the Gazettee of India dated 22nd Nov. the committee’s opinion was. If the decision is negative. the 1984 Act was correctly considered a gross interference by the state and the central government in the day-to-day affairs of the waqfs and the mutawallis. 1992: 876). the committee has suggested that the decision should be based on the ratio of the business income to total income of the trust. the 1995 Act has turned out to The Waqf Act 1995 (Lucknow: Eastern Book Co. More specifically. industrial conglomerates establishing trusts. This method is based on the notion that a charitable trust is tax exempt and leaves the government to decide whether a trust (with all its activities) falls within the purview of a “charitable trust”. individuals who are actually running the waqfs are allowed to have a say in their administration. 1964 and in 1969.e. In 1984 another Amendment Act was passed which made comprehensive changes. many difficulties and had to be amended in 1959. One particular criterion for selection pertains to the mutawallis: trustees of those waqfs with an annual income of greater than Rs. Thus.

have been absorbed a little more into supporting the control mechanism. will be determined in proportion to the net annual income accruing to such waqfs. which conforms to the basic teachings of Islamic law. The rate of contribution by the waqfs to the Board will be increased from six percent of the annual income to seven percent. Endowment of movables is once again confirmed in chapter one. A Chief Executive Officer (CEO) shall also be appointed who shall have controlling function over the Boards. meeting this criterion. The decisions of these Boards shall be executed by the CEO c. The exact amount to be contributed by each waqf. there is a new need to audit its accounts! These auditing costs shall be covered by the Central Waqf Fund. Finally. In chapter two. Now that this new body has been established. The State Governments. The purpose of this Council has been described. that once the lineage of the founder expires.60 Further erosion occurs through support for another bureaucratic body. It is also specifically stated that the cost of the surveys will be met by the waqfs the net annual income of which exceeds 500 rupees. e. Thus we have a hierarchy of control emerging: a. The power to carry out the administration of waqfs is granted to the Central Government. It is stated furthermore that every such rule shall be laid before each house of parliament … and only if both houses agree. In order to standardise the information gained from such surveys. the questions to be asked are detailed. Both the CEO and the Boards shall be answerable to the State Government d. In the same section the validity of family waqfs are also reconfirmed. All such moneys received by the Council shall form a fund to be called the Central Waqf Fund. This issue is tackled further in chapter seven where it is promulgated that a mutawalli is permitted to lend money belonging to the waqf. it might be noted that since American non-profit organizations are not obliged to register. the waqf reverts to a pious or charitable use. Consequently. one can only guess their number. which will be under the control of the Council. shall establish the Board of Waqfs and appoint its members. indicating a continuation of centralization policy. which advises the Central Government. It is interesting that such power is granted to the Central Government rather than the State Governments.112 be as centralist as any other Act before it. we have the Central Waqf Council. as advising the government on matters concerning the working of the Waqf Boards and the due administration of waqfs. in chapter three. providing that the ultimate purpose of the waqf is pious and charitable. Thus. Apparently. this hierarchy of control was deemed insufficient. 1997: 302). Unlike the 1954 Act. 60 . which belong to charity. the funds. The function of the By way of comparison. this new one will be applied in all except Jammu and Kashmir. Thus. state governments are granted authority to initiate and conduct waqf surveys. providing that there is an express provision in the waqf deed. which does not apply to various states. The Council shall be financed as follows: Every Board shall pay from its Waqf Fund annually to the Council 1% of the aggregate of the net annual income of the waqfs. “in all likelyhood exceeding two million” (Salamon and Anheier. the so-called Central Waqf Council. for the Act also promulgates that the Board may appoint an Executive Officer with supporting staff for any waqf having a gross annual income of not less than 5 lakhs rupees. we have another erosion of waqf funds allocated to charity in the name of control. Boards to be established by the State Governments b. will it be applied. This means of course. the arguments that a process of decentralization has already started in the Indian waqf system should be taken with a grain of salt. on the other hand.

The law has made these property transfers quite difficult and subjected them to the condition that such istibdal transactions are approved by at least 2/3 of the members of the Board.113 Executive Officer shall be to ensure that the budget of the waqf shall be submitted and the accounts maintained. it shall first ask the mutawalli of the waqf to carry out this development and should he fail to do so in a given time. the waqf system in this country preserved many of the characteristics of the situation in India. Mussalman Waqf Act (Bombay Amendment). it is stipulated that all the trustees shall provide standard information when they apply for registration. Thus we are left to wonder. The 1995 Act also demands that all the waqfs shall be registered at the office of the Boards. is void. the final victory of the Muslims led by Jinnah stands tall as attribute to British tolerance and rule of law. a lease of any period exceeding three years. 1959 e. we may add that the 1995 Act has not resolved the complicated tax problems mentioned above. as we know. Thus. Indian waqfs will simply be suffocated. The 1995 law can. The law has promulgated that the Boards shall also be responsible for sanctioning any transfer of the property of a waqf by way of sale. Pakistan also joined this universal trend. According to the Rules. 1951 b. This was followed in 1960 by the Awqaf Ordinance and West Pakistan Waqf Properties Rules. if the Board appoints these executive officers. which granted the government the right to dispossess a mutawalli. Direct and continuous British rule since the late eighteenth century has led to the emergence of such idiosyncrasies as the Anglo-Muhammadan Law. the endowments were to pass into the hands of the state in obvious violation not only of the Islamic law but also of the Mussalman Waqf Validating Act. The Qanoon-e-Awqaf Islami. India constitutes a most interesting case as it was the first country with a substantial Muslim population to have felt the massive impact of Western ideas and rule. . (Former Bahwalpur State) c. take over the property and carry out the development itself. Before April 1959 the following waqf acts were in force: a. another controversial issue. While the law has made istibdal difficult. Finally. it has rendered the development of waqf property obligatory. hardly be considered as an improvement. Furthermore. notwithstanding anything contained in the waqf deed. particularly concerning the “permanent settlement” and family waqfs. therefore. VIII. It is therefore all the more telling that modernist Indian Muslims have been even more radical in applying Western values than the British themselves. 1935 In 1959 the Government of Punjab promulgated the West Pakistan Waqf Properties Ordinance. with the prior approval of the State Government. will then. Although we have been critical above of many of the actions of the British in India and their blatant disregard of the Islamic law. 1913 which. we are also concerned that with so much hierarchy. Mussalman Waqf Act (Sind Amendment). 1945. which effected wholesale nationalisations. was one of the greatest achievements of the founder of Pakistan. To conclude. Concerning the long-term lease of waqf properties. The Punjab Muslim Awqaf Act. The Board shall use for such construction the funds of the waqf or borrow credit on the security of the properties of the waqf concerned. This point will also be confirmed in the next section. The North West Frontier Province Charitable Institution Act 1949 d. It is promulgated that if the Board considers a waqf property as suitable for development. WAQFS IN PAKISTAN AND BANGLADESH Since Pakistan was part of British India until the middle of the twentieth century. what will be the status of the mutawalli himself. why will he be needed? Moreover.

Since. These motives can be summarised as follows: a. sajjadanashins and other parasites” (Malik. Provision for this was made way back in the Mussalman Waqf Validating Act. 1961 facilitated the take over of waqf property by an administrator whose position and powers were strengthened by various legislations spread over almost a decade. which protested the confiscations as being directly in opposition to the Islamic law. which it had set up in 1981. The administration wanted to control the religious elements in the country since waqfs were often associated with religious activities The state had an eye on the financial resources of the endowments Centralization meant bureaucratisation of the religious establishment. 1990: 82). however. Accordingly. c. 648 mosques. pursued all the way to the Supreme Court until the end of 1985. makes it possible to intervene in a waqf in order to preserve the “sovereignty and integrity of Pakistan”. the waqfs were no longer available for the economic and social well being of the population.188 acres of unculturable lands 2. moreover. In 1976 the Government of Pakistan federalised all Provincial Awqaf Departments through the Awqaf Federal Control Act. Up to Bhutto’s time. Of the 12 petitions. he could now take over any endowment as defined by the Repeal Ordinance without being in any way legally answerable. nationalised endowments were organised on a provincial level. They were misused by the pirs. Section 20(2).114 The main motives for centralization of the waqfs were also similar to the rest of the Islamic world. The Kemalist perspective of the state was propagated in the schools all over Pakistan: “The waqfs caused anti-social wastage of national wealth. But the most outspoken criticism of the government policy was voiced by the Council of Islamic Ideology (CII). The Waqf Properties Ordinance. These arguments. mutawallis. In this way. 1913.215 shops. the FSC . By the year 1984 a statistical analysis covering the provinces of Punjab. indeed.913 acres of culturable lands. only profitable endowments were nationalised. North West Frontier Province. These individuals were called Administrator Awqaf. As a rule. 48. a dozen appeals against interventions of the Department. The CII resolution suggested that the waqf estates were to be exempted from the land reform. 9 were rejected and only 3 were taken up (Malik. 1990: 72). This Ordinance granted to the Administrator Awqaf of a province complete control over the waqfs. They were basically bureaucrats without any religious background and were scarcely aware of the religious implications of their positions. whatever may have been their cause. 31.869 houses had been nationalised (Malik. Thus. which was thus denied any opportunity for autonomy. The FSC examined the Waqf Ordinance of 1979 along with all the existing Acts and legitimised the nationalisation. There were. This was an answer to the enquiry of the government on the occasion of land reforms of 1972. Baluchistan and the Islamabad Capital Territory has revealed that 344 shrines. 1979. however. The “neglected and misused” institutions from now on were to be looked after by the central and provincial governments. have naturally provoked reaction. Sindh. did not find any resonance in the government policies. Such government interventions. the authority of the Muslim saint was replaced by the anonymous bureaucrat. 1. b. It goes without saying that the CII demanded an immediate cancellation of the confiscations. But this policy of centralization was short lived and the power was given back to the provinces in 1979 by the Awqaf Federal Repeal Ordinance. 1990: 75). But after 1971 they were put directly under the Central Government. The government could afford to be highly inflexible thanks to a ruling of the Federal Shari’ah Court (FSC). which wanted to limit the influence of waqf holders.

Income from rented agricultural land (10%). Ever since that date state control has been expanding in Pakistan. (15%) c. Sind. The total revenues collected from these sources over the long run exhibited the following trend. Table 5: Increase in Real Total Revenue for the Awqaf Department Punjab Year Real Increase in Total Revenue 1965-66 83. it must be noted. These provinces are: Punjab. In spite of a massive integration policy and all the attempts to curb the autonomy of shrines and endowments. Thus. Towards the end of the 1980s an increase in absolute terms in the receipts of the waqfs has been observed. mosques were also tied up to the Department so that Friday sermons are controlled by the administrators. 1990: 85). section 16 of 1976 and 1979 and may be considered as a policy of reconciliation with the politically powerful shrine holders.115 ruled that nationalisation was not against the Shari’ah it saw no reason to make any suggestions to change the Ordinance.7% 1975-76 -92. 1987: 99-100). 1990: 81). Income from rented urban properties (15%) e.W. There is no reliable explanation for this. some of them still reflect political dissent and are refuge for subcultures when some illegal activities are practised (Malik. 1913 (Malik.F. To enhance religious education. The Awqaf Administration is also granted the right to change the curricula of the religious schools run by the waqfs. An examination of the details of these rulings has revealed that only one of the judges in the FSC has spoken against the right of the government to acquire a waqf and that none of the judges has referred to the Mussalman Waqf Validating Act. to improve the standard of religious services and to ensure that incomes are used for the original purposes b. Income from gifts given in connection with vows etc. It is also possible that these awqaf may simply have been unprofitable. Cash boxes in shrines (About 50% of the annual income) b. The Awqaf Department has its own budget and is not subsidised by the state in three of these provinces. After 1962 hundreds of waqf schools were brought under the control of the Awqaf Department. Following the schools. and Baluchistan. Concerning the economic matters. N. Subsequently. Province.0% 1970-71 96. which pertained to istibdal transactions was considered to be justified as long as the original purpose of the waqf is continued to be served. Income from attached businesses (5%) d. To take over the administration and control of the waqf properties in order to ensure better management of the properties. four different waqf ordinances were promulgated one each for the four provinces in 1979. The main objects of the Provincial Awqaf departments were: a. that the receipts of the Awqaf Department accrue from the following sources: a. first of all. These return transactions were conducted in accordance with section 12 of the Regulation of 1961. we are informed that the waqf-company linkage we have emphasised above is of marginal importance in Pakistan. The department is headed by a secretary to the provincial government (IRTI/IDB. These figures may well have been caused by the sale of some nationalised waqfs to the State Development Authority and also by the return of some waqfs to their original mutawallis. Only in Baluchistan is subsidy provided as the number of waqfs there is very small. Section 16.7% .

0% 5. Adding up other categories for the administration. the Waqf Validating Act of 1913.6% of the total expenditure. nationalisation has ended up diverting more than half of the total expenditure of the waqfs from charities. In this process. We would therefore be justified in calling this phenomenon a usurpation of the waqf funds by the state.7% of the total expenditure was allocated for this item. only 11. the Awqaf Department has been accused of dissolving the traditional social structures and replacing them with nothing (Malik. enriches itself. 49. After the 1980s stagnation in income is observed and this has been attributed to the latent disapproval of the official policy. which the “father of the nation” had pushed through under the British.100 in 1985-86 thus leading us to observe that nationalisation of the awqaf has simply led to a definite enrichment of the bureaucracy. was also valid in this country. cash box incomes tend to be high while in agrarian regions rents from land tend to dominate. It has been reported that at the other end of the Indian sub-continent. Based upon these statistics.579 registered waqfs. As for the expenditure of the Awqaf Department. in Bangladesh. The whole process has been bitterly criticised as a victory of the “colonial sector” which absorbs autonomous waqfs.7% of the total expenditure) and the declining expenditure on maintenance of historical waqf buildings. Many of the latter in Dhaka and Chittagong have been developed into commercial centres. This is confirmed by the observation that the Lahore zone contributes half of the total receipts of the Awqaf Department and bulk of these receipts are cash box incomes. which permitted the family waqfs in India. the salaries of the bureaucrats constitute the most important category. Waqf properties are comprised of both agricultural/non agricultural land and urban lands. in striking contradiction of the text of the Mussalman Waqf Validating Act . the essential services that these waqfs used to provide to the population have been blatantly dissipated and replaced with nothing. But the district judge had no machinery to supervise or control the awqaf. 1990: 97). the independent state of Pakistan nationalised profitable waqfs in order to further its own interests.1913. The political situation did not permit centralised financing of this office and the Act stipulated that the expenditures of . The Eastern regions have a greater number of waqfs. 20% are also maintained by the awqaf. 1990: 91). The Waqf Act of Bengal was passed in 1934 in order to remedy this situation and an autonomous office headed by the Waqf Commissioner of Bengal was created. There are 10. Thus.458 in 1983-84 to Rs 10.254. There are probably many more scattered all around the country waiting to be registered. the waqf estates used to be administered under the provisions of the personal law of the Muslims and the Chief Kadı of the district was the guardian of the awqaf under his jurisdiction. In British Bengal. (Malik. their primary function. a clear division is not possible. to the enrichment of the bureaucracy. This argument is supported by the small amounts spent for education (merely 6. The waqfs provide financial aid to more than 500 madrasahs and a good number of schools. 1990: 91-96). orphanages and charitable institutions. As for the relative contribution to the overall budgets of endowments.116 1980-81 1982-83 1983-84 1984-85 Source: Arranged from (Malik.201. Since Bangladesh was also part of British India.000 mosques maintained by awqaf. there are 12. These expenses have been rising from Rs 8. Of the madrasahs.5% 16. pushes through its ideology and legitimises all of this through its own religious agents.3% -12. Some of these are several centuries old. These are both purely charitable and family waqfs and most are of mixed nature and so. To summarise the situation in Pakistan. As for health. we reach a staggering figure of 57.1% The great increase observed in the period 1965-71 has been explained by the increasing nationalisation of the waqfs. it has been observed that in those regions more extensively monetarised.

Enrolling newly established waqfs Appointing and removing the mutawallis Settling waqf disputes Investigating and determining the extent of the awqaf properties Calling from time to time for information regarding the accounts and returns from the mutawallis Ensuring that the incomes generated by the awqaf are spent for the original purposes Giving directions for the proper administration of the awqaf Assuring the direct management of certain waqfs which. the waqf administration is highly centralised. WAQFS IN MALAYSIA AND SINGAPORE 1. In Bangladesh. The Portuguese were later on replaced by the Dutch who were themselves replaced by the British. Introduction The Malay states were colonised by European powers in the early sixteenth century beginning with the conquest of Malacca by the Portuguese. h. The mutawallis were made responsible for the usual duties and if they failed in these. These powers were the following: a. Originally the waqf administration was subject to the Ministry of Education but was transferred to the Ministry of Land Reforms and Administration and finally to the Ministry of Religious Affairs and Endowments. IX. b. the Awqaf Ordinance was enacted but the 1934 Act was not repealed. It has been asserted that four centuries’ long colonial rule has reduced Islam from being a comprehensive mode of life into being merely a religious belief in Malaysia. today. g. maintenance and administration of awqaf. The 1962 Ordinance promulgated that in case there was a conflict with any other law or enactment. they were subjected to a fine of up to Taka 2. The colonial rule by these powers came to an end in 1957 when independence was declared. The secularist perspective that “mundane matters of everyday life should not be influenced by religion” was put into practice by the British who confined the sultans’ authority to matters . j. The Awqaf Ordinance also provides for establishing a waqf committee at the national level. All the orders and the decisions are made by the Administrator at the headquarters. In 1962 another law. it is very difficult to view the Malaysian waqf system as a coherent whole. c. the Bengal Waqf Act of 1934 was adopted for East Pakistan and was applied. the provisions of the Ordinance would prevail. also.000 or imprisonment of up to 6 months. f. if necessary. The inspectors (auditors) posted in the districts cannot pass any order or take any decision. i. comprises of 13 states and federal territories and since every state has its own laws concerning the waqfs. The whole purpose of the Act was to impose some control over the mutawallis. Malaysia. d. he may take over Fixing a remuneration for the mutawalli if the waqf deed does not make a provision Investing any money received as compensation for the acquisition of waqf properties under any law Generally doing all such acts as may be necessary for the proper control. The basic changes made in the Ordinance of 1962 were the following: a uniform rate of waqf contribution was fixed and the Waqf Commissioner became the Waqf Administrator with quasi-judicial and administrative powers. 1987: 8185).117 this office would be met by collecting contributions from the net income of the awqaf. k. When Pakistan was created. The latter are now provided regularly (IRTI/IDB. The entire cost of the Administrator of Awqaf is met by the waqfs themselves with some subsidies from the government. e.

it was a simple matter to declare the validity of this decision for Malaysia as well. So. the full ownership of these were now deemed to be vested in their beneficiaries. in Malaysia also. we have here the important question of whether there was juridical unity in the British Empire and whether a decision of the Privy Council pertaining to a certain region could be held valid elsewhere in the Empire. the way to remove the family waqf obstacle in Malaysia was already well known. considerably later than in India. The Articles 3. where the British desiring to establish private ownership of land had introduced the well-known “permanent settlement” in 1793. For the British. 1987: 121). . Thus with the introduction of the British rule. assumed great importance. 2. 1983: XIX). Feb. it is not surprising that most Malay waqfs were established for building and maintaining mosques and cemeteries and only rarely for educational purposes (Alhabshi. these waqf properties were divided among the beneficiaries and thus converted into private ownership in conformity with the general British policy described above. Consequently. fragmentation occurred. Meanwhile. 1983: XIX. But formation of family waqfs constituted a major impediment to land fragmentation and frustrated British attempts to purchase land. like the Indian Muslims. The impact of the enactment was as follows: while it preserved private waqf lands. resorted to the only way they knew and began to establish family waqfs. hence the British hostility to these waqfs. Such an assumption constitutes an Achilles’ heel in this controversy and Muslim jurists did not fail to concentrate their attack precisely on this point. It is only natural that the Malaysian waqf system should also be affected by these developments. Russomoy) in response to an appeal from India had already declared family waqfs invalid. when Malaysian Muslims realised their private land holdings were being excessively fragmented they. under the so-called Torrens system. security. when the Waqf Prohibition Enactment was promulgated. realising the futility of managing such smallholdings. Mosque building and their maintenance through the waqfs. section three forbade the freezing of ownership of lands. This plan was put into practice in the year 1870.118 of religion and culture and took charge of general administration. In time. the Malay Muslims lost the freedom to declare their lands waqf and this situation continued all the way until 1978 when this enactment was finally repealed (Ibrahim. In other words. The 1894 Privy Council case (Abdulfata vs.17. Some owners. This was done in 1911. simply endowed these lands in the hope of keeping them together and getting some benefits in the hereafter. In short.61 In short. Malay Muslims were seriously concerned about maintaining their religious beliefs and considered mosques as centres of resistance. XX). Under the relentless pressure of Western colonialism and secularism. This system divided the entire land through cadastre surveys into privately held property. therefore. 61 Private discussion with Royal Professor Ungku Aziz. As in India. 1911 directly targeted the inalienability of waqf lands (Ibrahim. Each lot was numbered and could be freely sold and bought and was subject to taxation. finance and education. 4 and 5 of the Enactment. Legal Issues The forces at play elsewhere in the colonised Islamic world were also felt in Malaysia. due to the Islamic law of inheritance. law and order. thereby effectively prohibiting the establishment of any new waqf. It goes without saying that the colonial policy in Malaysia also was to purchase the fragmented land from the local landowners to form plantations. 1997. The whole process of declaring family waqfs null and void in Malaysia was based upon the notion that the rulings of the Privy Council in response to appeals from India would be valid for all the countries of the Common Wealth. the British target was to introduce private ownership of land. which were created prior to that date.

Professor Ahmad Ibrahim.119 This is a difficult and a controversial problem. Based upon the above.” In a 1951 case. it is a court of that part of the Commonwealth and not a Malaysian court (Ibrahim. Commissioner for Religious Affairs v. This implies that the decision of the Privy Council on the Abdulfata v. Amarchand Kundu (1889). 1971: VIII). the decisions of the Privy Council are not necessarily binding in countries. In still another case Mujibinissa v. had held that “ … the experienced judges of the Court of Appeal for Eastern Africa did not doubt that on a question of Muhammadan Law. other than that in which the appeal arose. Russomoy would be valid only for India and that the Privy Council can be regarded as a Malaysian court only if it is hearing an appeal from Malaysia.P. Mohamed bin Salim.62 The 1970 decision was based on the nineteenth century cases and had held that - a. which held in at least two cases in 1970 and in 1980 that the decisions of the Privy Council from India should be followed. 1971: VIII). “A waqf for the benefit of the settlor’s family. a leading Malaysian jurist. Fatuma binte Mohamed bin Salim v. The Privy Council had again affirmed its 1894 decision on the famous Abdulfata’s case that the scope of the decision was not confined to India only. Consider for instance. Lord Simonds. b. it has been held in many jurisdictions that despite the views of Lord Simonds. Lord Robertson summed up the situation as follows: “The waqf will be valid if the effect of the deed is to give the property in substance to charitable uses. For. But the issue is by no means settled. 62 . If it is hearing an appeal from another Commonwealth country. the Ceylon Supreme Council case of Jane Nona v. “Such a waqf will not be valid if the primary object is for the aggrandisement of the settlor’s family and the gift to charity is illusory either because of its small amount or its uncertainty or remoteness of objective” Abdulfata v. Abdul Rahim. the Lord President (of the Federal Court of Malaysia) Azmi L. Leo where it was ruled that a decision of the Privy Council in an appeal from another country was a “non-binding Privy Council decision” and does not have the force of a binding authority in this country unless and until it is accepted by this court” (Ibrahim. in this case. has criticised the Malaysian Federal Court. ruled that Malaysian courts should also be bound by the judgement of the Privy Council in response to an appeal from India. children and descendants and for charity will only be valid if there is a substantial dedication of the property to charitable uses at some period of time or other” Sheikh Muhammad Ahsanullah Chowdhry v. Ibrahim v. Russomoy (1894) In both of these cases the question was whether there was a valid charity or not. It will not be so if the effect is to give the property in substance to the testator’s family. decisions of the Privy Council in appeal from India must bind them in appeals from the High Court in Zanzibar … this was clearly the correct view and that it must prevail also in appeals from Kenya”. Tengku Nik Maimunah (1980). Tengku Mariam (1970) and Haji Embong b.

Laton case Rulings on Muslim law can be given by the Mufti Any ruling. Yet. 1972. at last legalised. Indeed. d.120 Furthermore. c. This was confirmed in the Ramah v. Penang and Kedah that every family waqf. i. Ahmad Ibrahim has criticised the Federal Court for not “attempting to escape from subservience to the Privy Council and apply the pure Islamic law and texts”. as being the opinion of the highest Muslim legal official in Trengganu. …. Ibrahim argues that the law could only be corrected by legislation. was merely to declare that a waqf will not be held invalid because: a. it is provided in Selangor. d. Muslim law (of the Shafi’i school) is the law of the land and it is administered in the Shari’ah courts. as a waqf khas. there is a difference between the Shafi’i and Hanafi views in the matter. Pahang. be published by notification in the Gazette and shall thereupon be binding on all Muslims resident in the state. without ultimate dedication to charity at all. his/her lifetime and for the payment of his/her debts … provided that there is an ultimate gift for the benefit of the poor … The ultimate benefits reserved for the poor … is small or postponed until the total extinction of the founder’s family The waqf is for the benefit of the strangers. The waqf is for the maintenance and support of the settler’s family b. And more specifically. Despite the above. Whereas the Administration of Law Enactment of Trengganu (A state of the Malaysian Federation) distinguishes between public waqfs. In spite of the views of the Privy Council where it was stated that the differences existing among the Shafi’i and Hanafi and other sects has no present significance. In the case of the Hanafi sect. despite the fact that family waqfs have been thus. shall be void unless: . b. Islamic law is not interpreted in the same way in Malaysia as in India. A Shafi’i waqf may be created for the benefit of the beneficiaries. on the other hand. the Federal Court could and should have done so due to two sets of reasons. waqf am. The Muslim law is administered in India in the ordinary courts and there are no separate Shari’ah courts In Malaysia. But the first significant “correction” was introduced by the Islamic Waqf Validating Enactment. and family waqfs. however. Malacca. the actual establishment of a new family waqf has been made extremely difficult. First. shall. As it is well known. the Federal Court chose to ignore the pure Islamic law and text and decided to follow the law as developed in India.. According to Ibrahim. b. d. (thus implicitly accepts the validity of both) the effect of the Privy Council decisions is that only the former is valid and not the latter. This process of correction appears to have started in the early 1950s. the Privy Council was dealing with waqf according to its own interpretation of the Islamic law and not in reference to any special legislation dealing with waqfs. the general reasons: a. What the enactment did. persons other than the family of the founder. a. The Court should have treated with respect the fatwa issued by the Mufti of Trengganu. Kelantan. Negri Sembilan. c.e. the waqf is for the founder’s maintenance and support for c. waqf khas. waqf khas. if the Majlis so determines or if his Highness the Sultan so directs.

d. The Islamist view demanding the administration of pure Islamic law in independent Islamic courts. Thus. f. Malaysian courts were given the authority to rule according to pure Islamic law. we deduce the following points from Ahmad Ibrahim’s work: a. Finally. substantial progress has already been made and two parallel. Malaysian courts are still under the influence of the British law b. The ruler (in Malacca and Penang the Yang dafi-Pertuan Agong) shall have expressly validated it or It was made during a serious illness from which the maker subsequently died and was made in writing by an instrument executed by him and witnessed by two adult Muslims (the witness conditions are complicated and differ from state to state). despite its own above-mentioned declaration. questioning the legitimacy of the Anglo-Muhammadan law altogether They demand that the decisions of the Muftis and pure Islamic law should be given the same respect as the Privy Council decisions. relatively autonomous systems have emerged (Horowitz. not always true. 1994: 236. in accordance with pure Islamic law uninfluenced by the English concepts of charitable trusts and the rules against perpetuities. a conflict between the Islamist jurists led by Ahmad Ibrahim and British trained secularists seems to prevail in Malaysia. although this authority exists. As far as Islamic affairs are concerned. e. on the grounds that they do not give due respect to the views of the Mufti and demands that “such views deserve the same respect as that accorded to the views of the Privy Council”.238). Though incomplete and criticised. of course. Waqf Administration in Malaysia . 3. which Ahmad Ibrahim finds so frustrating. b. To what extent such a dual system (Islamic and secular) can be applied with all of its complications in a country populated by three distinct religious groups constitutes a dilemma. the reference point is the decisions taken by Indian c. are known to have participated in the development of the Anglo-Muhammadan law. implies a dual legal system. still chose to examine the Indian cases. But even this incomplete law had some positive effects for Malaysian waqfs. which was in turn heavily influenced by the British law and the decisions of the Privy Council A reaction has set in. a body of law. Thus. with the 1972 enactment. For. courts The Indian courts. Leading jurists of Malaysia are questioning the validity of the decisions of Indian courts for Malaysia and.121 a. the Federal Court declared that the validity of a waqf must be determined with reference to the Islamic Waqf Validating Enactment. For. as mentioned above. the Islamic Waqf Validating Enactment of 1972 reconfirmed the legitimacy of the family waqfs in Malaysia (The original legitimisation had occurred by a series of laws enacted during the fifties and sixties in various states). much influenced by British law. Ibrahim therefore demands that the Federal Court of Malaysia should rely on the Islamic law and not the hybrid AngloMuhammadan law as developed in the Indian courts and in Privy Council. however. more fundamentally. Ibrahim criticises the civil courts of Malaysia as well. It is precisely this point. due to intense political pressure. This is. g. the Federal Court. the Federal Court seems to think that pure Islamic law is embodied in the writings of the Indian jurists like Ameer Ali. For. these jurists were authorities in what is known as Anglo-Muhammadan Law. Recent research has revealed however that. According to Ibrahim. 1972 and as intended by the Legislature. Tyabji and Fyzee as well as in the decisions of the Indian courts.

the Majlis shall be the sole trustee. it seems that the traditional mutawalli appointed by the founder has been replaced by the Majlis or Majlis appointed individuals. The expression “notwithstanding any provision” means that despite the instructions in the waqf deed. and Johor in 1978) drastically centralised the Malaysian waqf system. appointed by the founder is simply eliminated. All of the above indicate clearly the excessive degree of centralization that has taken place in the Malaysian waqf system. the Control of Wakf Enactment. or appoint the Majlis to administer the trust of such waqf (Ibrahim. Trengganu in 1955. the King.122 Since the Prohibition Enactment 1911 was applied in most of the states of the Malaysian Federation. The capital property and assets of a waqf shall not generally form part of the Bayt al mal but shall be applied in pursuance of such waqfs and held as segregated funds. The Majlis is declared to be the sole trustee for all the . 1965: 287). if received by the Majlis. with the approval of the ruler. shall be applied by it in accordance with the lawful provisions of such waqf khas (Ibrahim. 1951. The actual wording of the law includes the statement. waqf or nazr am shall be vested in the Majlis. “Notwithstanding any provision to the contrary. Thus. This argument is clarified in Perak. d. In those states without sultans. b. 1987: 123). Selangor in 1952. the British dealt a final blow to the Malay waqfs by initiating a process of massive centralization. The Council of Islamic Religion or the Majlis Ugama Islam dan ‘Adat Melayu is the sole trustee of all waqf properties All documents pertaining to waqf properties must be kept by the Council The Council must take the necessary steps to transfer the ownership of all waqf properties to itself All moneys received from specific waqf properties must be used according to the purpose for which such properties were intended All moneys received from general waqf properties must be kept in the general fund of the Majlis or Bait al-mal (Alhabshi. where. Steps have been taken to ensure that the ownership of all waqf properties is transferred to the State Religious Councils but this is not a smooth process and some difficulties are being encountered. the property affected by such trust. appoint a new trustee or new trustees. e. Thus. If over time it is no longer possible to carry out the exact provisions of any waqf. whether waqf khas (family waqfs) or waqf am … (charitable waqfs)”. A series of laws enacted in the fifties (Perak in 1951 and 1965. c. by the time it was repealed in 1978. Moreover. in a dramatic move. Not only the system itself. the Majlis shall manage the waqf funds as close as possible to the original purpose of the waqf or the Majlis may in such a case. Muslims at all levels had come to consider that the waqfs were an ancient and decadent institution mainly for the upkeep of the cemeteries and some mosques. the Majlis … shall be the sole trustee of all awqaf. The notion that waqfs could be an important agent of economic change and the basis of economic prosperity had become totally alien to the Malay Muslims. provides that the State Executive Council may remove any trustee. Among the pertinent clauses the following particularly attract attention: a. the waqfs are put under the Yang Di Pertuan Agong. the age old and universal institution of trusteeship. which once started tended to continue even after the independence with its own momentum. The income of a family waqf. mutawalli. The Councils are placed directly under the Sultan of each state. Malacca in 1959. the modern Malaysian waqf system was in shambles. At the twilight of their rule in Malaya. The income of every waqf shall be paid to and form part of the General Endowment Fund or Bayt al-Mal which is administered by the Majlis. decide that such property and assets shall be added to and form part of the Bayt al mal. 1965: 283-85). but also the attitudes of the ordinary Malay Muslims were negatively affected.

These legislations are also interesting in that they permit cash waqfs in Malaysia. In fact. it has been estimated that only ten percent of the waqf lands in Malaysia has income generating potential (Alhabshi. Thus. a strong correlation between the low rents and long term leasing has been convincingly demonstrated by Othman Alhabshi (1987: Table 4). The rent controls are being abolished only now. this is a hypothesis worth examining. 1968 as any endowment in land or money to be given in support of any Muslim mosque or school or for charitable purposes. powers of the Muslim and Hindu Endowments Board in respect of endowments in land or money given for the support of any charitable purposes. with the Awqaf-ı Hümayun Nezareti collecting the waqf revenues and redistributing 1/4 of these funds as “aid” to the awqaf. The Rent Control Act. including the family waqfs. there is further legislation centralising the system even more. All rights. Another reason why rents are so much lower than the market rates is long term leasing (66 to 99 years). no. If the Majlis is declared to be the sole trustee of all the waqfs. In most states. The former and urban waqf lands have substantial rent yielding potential.8). the Malaysian waqfs were also hit financially. the Muslims in Malaysia refuse to endow their properties as waqf. 191). 1959. Under these conditions of extreme centralization. (Ibrahim. In fact. there is no such body and waqf affairs are left to the discretion of officials not properly trained in waqf management. thus in effect legalising cash waqfs. In Malacca and Penang it is provided that all movable or immovable property that was vested in the Muslim and Hindu Endowments Board before the commencement of the Administration of Muslim Law Enactment shall now be vested in the Majlis. Statistics about the extent of waqf property are inadequate in all the states. this has been frustrated by the Rent Control Act. 1991: 59. and separately held capital is supposed to finance the purpose of the awqaf. section 9). including the family waqfs. since most waqf lands have been endowed for Muslim cemeteries. in 1996-97). It is clear that the actual management of the waqf property is vested with the Majlis and not with the mutawalli who was often a family member. which then applied the same measures in British Malaya. the Johor Waqf Enactment Act (no. the Rent Control Act was formulated in 1948 and became effective in all the states from 1966. conjectural. duties. For. however. Under these circumstances. thus confirming the above arguments for these states as well. the position of the mutawalli is also quite confused. with their basic revenues frozen. only in Malacca is it possible to observe a specialised committee dealing with waqf affairs. AMLE. . (Malacca Administration of Muslim Law of Enactment. Although. In Singapore also an endowment is defined in sections 6/1 and 6/2 of the Administration Muslim Law Act. shall be vested in the Majlis. 1948 froze the incomes of all waqf properties in Malaysia for many years (Another legacy of the colonial rule. Actually. what indeed happens to the mutawalli? Although. the usufruct thereof shall belong to the beneficiaries. Moreover. no wonder.63 Malacca appears to enjoy the best administrative set up. section 9. all the waqf properties are vested with the Majlis. (Top. 1959. AMLE.123 waqfs. 1965b: 46-47). it is decreed for instance that the State Executive Council may provide for the powers to be given to the Majlis to investigate any waqf and to call for the accounts of any waqf and to provide for the offences for failure to supply accounts and cede possession of the assets of any waqf (Perak Control of Wakaf Enactment . But how can this be done if the income is collected by the Bayt al mal? This is reminiscent of the Ottoman situation in the nineteenth century.5) declares that alienation of the waqf land is null and void and if any land is subjected to a waqf. the picture is so similar to the Ottoman application that it is as though the British Embassy in the Ottoman Empire informed the British Government in India. It is not even clear if this millennium old institution has disappeared altogether in Malaysia. 1951. Penang. 63 For a concrete example of a Singaporean cash waqf see. Most of the waqf properties that could generate income are in the form of residential buildings and agricultural land. 1987: 127).

So. in Malaysia it is possible to detect some discrimination against the waqfs as well. The Majlis was supposed to make a down payment of RM 183. the waqf system suffered a deficit (Top. thirty years later it was still RM 1. b. 1991: 67).00. each believing in a different religion. People).112 for 180 months.00 per month. Abdul Majid has explained the situation in a dramatic statement: “If thirty years ago the Chinese rented waqf lands in Taiping at RM 1. all waqf lands are subject to land tax. Top. Bumiputra. Within that period the Chinese tenants had amassed millions of ringits of profits but our income on the waqf property remains RM 1. Since in Malaysia there are three major ethnic groups. moreover.000.5 millions from the MARA for erecting another building on waqf land. There was no interest involved.5 millions. Since. 1991: 141). This transaction was completed and the building was erected which yielded total monthly revenue of RM 13. This amount was borrowed for erecting a 7 storey building on waqf land The Majlis also borrowed RM 2.000 as revenue and had to spend RM 268. These ridiculously low revenues are directly reflected in the Majlis budgets. which bring us directly to the highly important question on the relationship between the waqfs and financial institutions. the Rent Control Act transferred a huge income from the owners to the tenants.890. 1997: 14. MARA was asking RM 5 million for the original RM 2. Chinese and Indian. the Majlis decided to approach the Islamic bank and ask them for a loan. but the Majlis had to agree to mortgage the waqf land to MARA for 30 years. 1991: 137). Thus the Majlis had very limited means to spare for the development of the waqf properties it controlled. has been subjected to it. For instance. The Majlis of the Pulau Penang. Such development projects are usually financed by borrowing from the financial institutions.200. during the period 1985-89. The details of these transactions are as follows: a.5 millions it had invested.00” (Top. The arrears. Although the Majlis of Penang has borrowed successfully from the Malaysian Development Bank (MDB) and also from the Majlis Amanah Rakyat (MARA or the Council of Trust for the Indigenous. we should not be surprised that in the state of Malacca. To add to the confusion. The Majlis borrowed RM 5 millions from the MDB at 5% interest. Under these circumstances. Consequently the Majlis continues to receive from some of the properties it rents a monthly rent as low as RM 1. it approached the Islamic bank. The bank agreed to buy the building from MARA for RM 5 millions but demanded from the Majlis RM 11 millions. This frustrating experience the Majlis had with the Islamic bank is all the more striking if we consider the fact that the Malaysian waqfs are indirect shareholders of this . whereas the local authorities have been exempted from the Rent Control Act. This was because the land and the buildings (waqf properties) generally belonged to the Muslims and the tenants were Chinese. a combined total of RM 7. the Rent Control Act had extra-ordinary repercussions.00! Discrimination can be observed in the fiscal policy area as well: while waqf revenues are subjected to all the restrictions of the Rent Control Acts.333 and pay the rest to the Islamic bank in monthly instalments of RM 61. with the exception of the cemeteries. The Majlis was quick to reach to the conclusion that the Islamic bank was asking a 120% profit and decided to cancel any relationship that it might have had in the future with this “interest free” bank (Abdel Rahman. amounted to RM 70. for instance. When the Majlis wanted to free this building from MARA’s mortgage. the situation was explosive. the Majlis. it failed to borrow from the Islamic Bank. they are not given any tax breaks. could collect RM 325. these tax rates are not uniform across the country. Malays. Nik Abdul Rashid b. which controls the waqfs. Indeed.124 Moreover.

14/78. (Ibrahim. These frustrating experiences aside. or in Trengganu it is sanctioned and validated by all beneficiaries) (Gordon.64 Therefore the culprit cannot be the Muslims of Johor but rather the impact of colonialism. See. Lack of concrete plans and actions to develop waqf properties e. The Majlis of Penang reacted to this situation and ordered The so-called Alsagoff concession was bestowed by the late Maharajah Abubakr upon Syed Muhammad b. In the state of Johor. in Selangor. 1983: xix-xx). As for the Takaful Company. Lack of financial support to implement waqf projects (Ngah. which has shown that most waqf lands in the state of Johor belong to the state. and the authorities. To these reasons we may also add the high cost of land that imposes a substantial opportunity cost upon the founders. 5 major problem areas common to all the states have been identified. But serious discouragement to waqf endowment can also be found in the procedure as well.065. It goes without saying that this rule clearly violates the basic principles of Islamic waqf law and is yet another relic of the British influence. To be more precise.. first. Another important impediment pertains to the illegal settlements in waqf lands. it has deposited M$ 1. in comparison with the Islamic bank. A well-known example of such an illegal settlement in waqf property occurred in Penang. Given these differences. Pahang. of the total paid up capital of RM 10 million.125 bank because the revenues collected by the religious departments. The objectives and the functions of the administrators are not clear b.000 or six months’ of imprisonment (Top. Negri Sembilan. Malacca. Ahmad b. When such settlements do occur. The organisational structure is inefficient c. All in all. That all of the above have hindered the endowment of waqfs by Malay Muslims is demonstrated by research. Muslims of Johor rarely constitute waqfs on an individual basis. quantity of waqf properties etc. The implication is clear. the Majlis. This is a striking conclusion for a state where the great sultans of Johor had once endowed huge estates and thus provided an example to ordinary citizens. the Islamic Religious Council has been a significant investor with the Islamic Bank Malaysia. 1992: 39-40). some successful ventures have also been brought to conclusion and waqf lands have been profitably developed by funds provided by MARA (Alhabshi. which are partially constituted by waqf revenues. in 1878 and then again in 1888. Penang and Kedah. and the waqf system that has discouraged Muslims from endowing their properties. 1975: 282). it is clear that these measures are not sufficient. the Majlis. 1991: 141). there is little co-operation between the trustee.500 into the investment account of the Islamic bank. For instance. 64 . section 50 charges illegal intruders and settlers into the waqf property a maximum fine of RM 1. Since illegal settlements continuously occur. Johor. no. half was owned in 1991 by the religious departments (Top. Kelantan. Waqf officers are not properly trained d. Abdul Rahman Alsagoff. secularisation. 1987: 134). 25% of the equity of the Islamic Bank Malaysia is owned by the religious departments of various states. has enjoyed a better relationship with MARA. These are: a. the Enactment for the Administration of Religious Affairs. The federal structure of Malaysia also presents certain problems for waqf management: Each state has different problems stemming from different size. 1991: 179). In this way. it is provided that a waqf cannot encompass more than one third of the property (unless in Kelantan it is sanctioned and validated by the ruler. Trengganu. have been invested in the Islamic Bank Malaysia and the Takaful Co. The so-called Wakaf Kampong Makam with its seven acres of land in the middle of George Town had been illegally settled. Furthermore. the amount of property a founder may wish to endow is limited to only one third of his/her total property.

1918. Due to the lack of co-operation between the authorities. The trial Judge agreed with the respondents and ruled that since the property was vested with MUIS. Although this was approved by the Commissioner of Charities. Shifting our attention to Singapore. custody or control of the funds. in Singapore we have a slightly different situation. but at the same time confirms the power of the Majlis Ugama Islam Singapura. The request to sell the property was also rejected on the grounds that the founder had prohibited istibdal in the waqf deed. a) Any waqf has been mismanaged b) There are no trustees appointed c) It would otherwise be to the advantage of any waqf that it should be administered by the Board. Haji Meera Hussain v.134 of 1994. 1997: 8). (MUIS) to appoint and remove any existing trustees. where it is provided that the Majlis Ugama Islam shall be deemed to be the trustee of all mosques … (Ibrahim. receive and collect the income of the endowment. The Minister may order any waqf to be administered by the Board where it appears to him that. a large part of the testator’s estate was lost and only a share in a property in 34 Arab Street remained. section 58 (4) of the Administration of Muslim Law Act. In time. The case we will refer to is known as the Trustees of the Estate of M. 1965: 47). money or property of any endowment. we observe the same centralising tendencies there and note that there is a Muslim and Hindu Endowments Board constituted under the previous Muslim and Hindu Endowments Ordinance to administer certain Muslim religious endowments. MUIS. 1968 allows the trustees appointed by the founder in the deed of endowment to continue to function.3)(the Act). An actual court case from the Court of Appeal of Singapore may illustrate how these rules and regulations are actually translated into practice. This actual court case from Singapore reveals the following points: . the trustees appealed for permission to sell the property in order to construct a new mosque in India.126 the settlers to move out. Muhammad Yunoos. the appellants had no power of sale. The court dismissed the appeal and thereby confirmed the respondent’s claim that since the property of the waqf was automatically vested in MUIS. and has power to require such trustee or persons to appear before the Board and be examined on oath or otherwise. The deceased had certain properties in Singapore and he stated in his will that the revenue from these properties should be spent for the upkeep of a mosque in India. a resident of Singapore. the Majlis has not been able to develop this property as it was originally planned (Abdel Rahman. The case concerns a waqf endowed by a certain Abdul Rahman b. this order was not obeyed by the settlers. This difference regarding the status of the mutawallis between Singapore and Malaysia is also confirmed by Ahmad Ibrahim: “The majority of the mosques in Singapore are still administered by trustees under trusts created by wills … and (in) this respect (their) position in Singapore differs from that in the States of Malaya. Bearing this in mind. The case was then referred to the Singapore Court of Appeal and is known as Civil Appeal No. Thus. who made his last will in India and died there on 13 October. rather than eliminating the traditional mutawalli altogether. The Board has all the powers of a trustee and may appoint or remove any officer of the waqf. (Cap. the MUIS opposed the sale on the grounds that the properties constituting a waqf would automatically be vested in MUIS according to the Administration of Muslim Law Act. As a result. the appellants had no legal title or right to sell the property other than to carry out the waqf as directed under the will. This was apparently not sufficient for the maintenance of the mosque in India. The appellants appealed against this decision. The Board is also given power to require the production of accounts from the trustees or any person who has possession. 1968.

1988). but rather. The Spanish conquest appears to have had little impact on the Muslim sultanates of Sulu and Mindanao (Barra. This point is almost identical to the situation in Malaysia. WAQFS IN THE PHILIPPINES It is well known that Islam was introduced into the Philippines as early as the thirteenth century by Muslim merchants and was embraced particularly in the southern islands of Sulu and Mindanao. The group was ordered: a. The Islam that emerged in these far away territories was a mixture of pre-Islamic usage and local custom with the basic teachings of Islam. To sum up. Thus we do not observe in the American occupied Philippines the harmful impacts of the French or British colonialism on the waqf system. b. This policy found its official expression in the Universal Declaration of Human Rights passed by the United Nations in 1948. a reflection of the American attitudes towards the foundations. 1997. c. The country is giving birth to a dual legal system. Kendall and Knapp. While a comparative assessment of the policies towards the foundations in Britain. 1996). it is well known that the American policy was the most lenient (Salamon and Anheier. Moreover. France and the United States. Muslims constitute only about half of the total population. 1997. During the American occupation the waqfs were left entirely to the discretion of the Muslim community. This is a country where Islamic law was superseded by secular British law.127 a. Under these circumstances it is to be expected that the country should go through a thorough waqf reform. and primarily. Malaysia constitutes a fascinating case for the history of waqfs. d. The fact that we do not observe in the Philippines the harsh state interference that we have observed in the French and British colonies is not accidental. because the property of the waqf was vested not with the trustees but with MUIS. To survey. A strict application of the Islamic law did not take place. After the independence. The relative autonomy that these sultanates enjoyed came to an end when the islands were ceded to the United States in 1898. several generations of trustees have been appointed to run the waqf These mutawallis were permitted to administer the waqf. the Marcos administration attempted to have the Islamic personal laws codified. would fall beyond the scope of this book. in independent Malaysia Muslims began to challenge British law and insist to be ruled by their own law and institutions. For this purpose a research group was established. Archambault. . and the waqfs remained dormant for long periods. It is possible to endow property in Singapore and use its usufruct for the support of a mosque in India Since the foundation of the endowment. There was not a single legislative enactment designed to administer the waqfs. and collect materials on Islamic law particularly as they related to the current Philippine laws. X. This was considered to be an essential step towards reconciliation with the Muslims of the Philippines. The American policy towards the Muslims was governed by the need to respect their religious freedom. These historical facts notwithstanding. It will be argued here that this difference is due to the way the mother countries viewed their own foundations and the third sector. This permission was also confirmed by the Singapore Court of Appeal showing that the office of trusteeship is considerably more clear in Singapore than in Malaysia But the mutawallis were not permitted to sell the property both because istibdal was not permitted by the founder but also.

Gamon “Management of the Waqfs in the Philippines” (Kuala Lumpur: ISTAC. The so-called Markazos Shabab Al-Muslim fil-Filibin. The Code was signed into law on February 4. as they are not considered charitable. It has established the only Islamic university in the country populated exclusively by Muslim students. Consequently. CONCLUSION In this book an attempt has been made to highlight the basic forces and trends that affected the history of waqfs in the Islamic world. a secular body of law adopted during the American occupation. It also functions as a know-how centre for the donators. 4.370. The Islamic Trust and Development Foundation aims to promote waqf establishment among the Muslims. their recommendations were not included in the final draft. a reproduction of the Spanish Code. based upon Memorandum Order No. Meanwhile. Providing that the institution is purely charitable and is registered with the Securities and Exchange Commission as a charitable institution. the founders are required to furnish financial statements twice a year. XI. Charitable institutions have been granted generous tax exemption by the Philippine government. Throughout our inquiries. No less impressive also was the fact that notwithstanding the vast distances and different schools of thought Alizaman D. Presently. the waqf does not enjoy tax-exemption. are not granted tax-exemption. The family waqfs. on the other hand. 1999). the tax exemption is complete. The Markazos provides the founders with waqf deeds in conformity with the Islamic law. Such institutions are also not subject to the labour laws nor have the industrial courts jurisdiction over these institutions. acts as the sole administrator of the waqf properties. the Muslims of the Philippines were left free to establish their own waqfs according to their own customs and beliefs. In a land where waqf establishment is not a wide spread tradition. 1973. the policy of benign neglect continued even after the independence. This was because the waqfs were considered to violate the basic secularist principle: the separation of the church and the state. 1977 with the chapter on waqf laws missing. Office of the President. waqf bil wasiyya. In return for these services. The Jami’atul Philippine constitutes an exception: there are very few other family waqfs in the Philippines (Gamon. for instance. The best-known example of a family waqf is Jami’atul Philippine al-Islamiyah established by a prominent family in Marawi City.128 b. This is obviously a secular argument and conflicts with Islamic law. To reconcile Philippine laws with Islamic law c. There are also few pertinent Articles in the Code of Muslim Personal Law. With this minimal government interference. waqf establishment is subject to the Philippine Corporation Law. unpublished research paper. The Markazos limits its activities strictly to the public/charitable foundations. The Muslims are encouraged to make their donations to the Markazos that uses these funds to construct and maintain the mosques. The law considers these institutions as joint-stock companies. attempts to centralise can also be observed in the Philippines. 65 . 1999). The waqf has juridical personality and is managed by a board that is chaired by the eldest son of the founder. a voluntary organisation of the conservative Muslims of the Lanao province. These pertain to the establishment of testamentary waqfs. p. August 13. on the other hand. this is obviously a crucial service. schools and other charitable institutions. Property rights. are governed by the Philippine Civil Code. we have been impressed by the incredible universality and resilience of this institution. Since part of the net income accrues to the founder’s family. To prepare a draft of the proposed Code of Philippine Muslim Laws65 Although the committee did some work on the law of the waqfs. The Markazos has also been able to attract cash funds from the rich donators of the Middle East.

the hostility continued and was even enhanced. The hostility of the state towards the waqfs assumed a new dimension with the advent of colonialism. due to the space and time restrictions we have concentrated on the British influence. should be taken with a grain of salt. Both the magnificent Islamic tradition and the latest developments in the West point out the need for a thorough waqf reform. The combination of these two forces was formidable and. While. The arguments that the European powers were jealous of the Islamic waqf system and simply wanted to destroy an institution that they could not control. many of them exhibited a relentless hostility towards this institution. knowledge about the evolution of this institution in Islamic world. this will constitute the subject of a future volume. This conservatism is most unfortunate and the modernists urgently need to re-examine their positions. Moreover. Thus by a curious twist of fate. Both the British and French colonial powers were hostile to the waqfs. modernists in the Islamic world cling to the eighteenth century European views and continue to undermine the waqfs. a major area of research in modern microeconomics. the institution of waqf was governed everywhere by basically the same principles. As for the latter. on the other. It is ironical that although European states have gradually abandoned their hostility towards the foundations since the beginning of the twentieth century and recently. plus a thorough understanding of the latest developments in both civilisations. however. 1989: 535-571). was supported by the indigenous modernists persuaded by the former. That is. It is hoped that this book has contributed towards the former. on the one hand. it has been shown that the French were even more hostile than the British. modernists have become conservatives. which prevented them from acquiring land etc. an assessment of the historical evolution as well as the latest developments in the West. The problems were also basically the same: agency problem. itself. Another constant in the history of the waqfs appears to have been the complexity of the relationship between this institution and the state. is knowledge. . as well as in the West. The conditio sine qua non for such a reform. has remained a constant. Thus the European powers were not applying double standards.. Europe had its own foundations borrowed from the Islamic world during the Crusades and chose to destroy them during the age of enlightenment. While. that is. thanks to the modernists.129 prevailing in the Islamic world. this hostility was based on the same principles and took in practice very much the same forms (Powers. The differences were decidedly of minor importance. have even begun to provide substantial support to the so-called non-profit sector. after the colonial epoch. they were simply trying to project their own ideology on to the Islamic world. The reasons behind this hostility may have assumed different forms over time and space but the hostility. in the Islamic world. It is therefore all the more remarkable that this institution has managed to survive. after the failure of the welfare state. the rulers founded the greatest waqfs in nearly all the countries and often utilised them as public policy instruments. The colonial hostility that sought an outright prohibition of the waqfs. was observed in all the waqf systems throughout history.

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1982). Studies in Ottoman Social and Economic History. Devadar (devatdar): A person who holds divit ( a box which contains ink and an ink pen) in his hand. Belonging to the sultan 2. during the Republican era. A clerk. Habs or habous: Synonym of waqf used particularly in North Africa. For further details the reader is referred to the following sources: Halil Inalcık. conditio sine qua non: Absolutely necessary condition. Udovitch.and D. Prebents belonging to the sultan. a palace. Ahli waqfs: Family waqfs alal aulad: Indian family waqfs. original capital of an endowment. al-Azhar: Probably the most famous Islamic University in Cairo. commission or profit. asliye court: Primary court avarız: Extra-ordinary levies. An Economic and Social History of the Ottoman Empire (Cambridge: Cambridge University Press.. bonyad or bunyad: Waqfs in Iran. . response. Until the nineteenth century it was equal to 6. usually used for Mecca and Medina only. An Introduction to Islamic law (Oxford: Clarendon Press. In Mamluk Egypt a high ranking official of the waqf system. hadith: Prophetic traditions.m. Egyptian measure of an area. A. But after the Muhammad Ali reforms it was reduced to 4. (Istanbul: Milli E itim Basımevi. guberniia: An administrative zone in the former Soviet Union. usually. tax-units bayt al-mal: Public treasury bida’ah: Informal collaboration in which one party entrusts his capital to the care of an agent who returns the proceeds of the transaction to the original owner without any compensation. 1966) ‘amme waqfs:public endowments ‘urfi taxes: Taxes based upon dues confirmed by the sultan.m. In Syria an area that can be plowed in a day by a team of oxen. Dergâh-ı mu’allâ: The great gate of. Taxes based upon custom. Amir al-Hajj: An officer in charge of the pilgrimage askeri: Member of the elite. 2. id.201 sq.): Opinions. asl al-mal: principal. each.30 sq. Mehmet Zeki Pakalın.m. 1971). hakim: Judge haremeyn: Holy places of Islam. Hassa-ı Hümayûn: 1. (London: Variorum.368 sq. étatiste: State dominated fatwa (fatawa pl. Quataert. haddam: Cleaning and maintenance staff.( usually post revolutionary). 1994). Joseph Schacht. 919. in Turkey. 1800-1914 (Chicago: The University of Chicago Press.m. The feddan is divided into 24 qirats of 175 sq. in H.m.000 sq. (Princeton: Princeton University Press. Charles Issawi. Tarih Deyimleri ve Terimleri Sözlü ü. corpus: principal. hayri (khayri): Charitable Hujjat al-Islam: A member of the Islamic clergy. an official. 1985). in Ottoman and 1. palace of the Ottoman Sultan. divan: Imperial Council which functioned as the government and the Supreme Court dönüm: A measure of land. sayings of Prophet Muhammad. “Introduction to Ottoman Metrology”. The Economic History of the Middle East. on a point of Islamic law. ceteris paribus: Holding everything else constant. dervish: Member of an Islamic order. 1970). 3 volumes. member of the military corps. Inalcık.146 GLOSSARY: Brief descriptions of terms used in the text are given here. Partnership and Profit in Medieval Islam. original capital of an endowment or partnership. feddan: 1.

medrese: Islamic college Mevlid: Chanting in celebration of the birth of the Prophet. . a discretionary opinion in breach of strict analogy. istiglal: Providing loan against the security of a house. jehad: Islamic holy war.147 I’ane: Aid. Kadı (Qadi): Judge khaliseh: Lands belonging to the ruler. ownership. mültezim: Ottoman tax-farmer (of the iltizam system). 2. Ijma’: Consensus imam: 1. Muqarasa: Agricultural partnership Mush’a: joint. 2. Majlis Ugama Islam dan ‘Adat Melayu: 1. a teacher of Islam. masjid: Small mosque mazbut: An endowment whose management has been taken over by the central authority (Ottoman term). Approval. A central authority of the waqf system in Malaysia 2. Lugares de monte: public bonds issued in Rome Madad-ı maash: Regular stipend recipients in Mughal India. General term used for extreme radicals. kharaj: land-tax khums: One-fifth lex salica: The legal code of the Salian Franks. minber: An elevated place in a mosque reserved for the person who reads the Friday sermon. Leader imambarah:A place for religious congregation for the Shiites. mufti: A specialist in Islamic law who gives an authoritative opinion. mal: assets. istihsan: 1. istibdal: Exchanging waqf property against another property or cash. mudiriyet: Directorship Muezzin: Caller to prayer. jagirdari: Indian (Mughal) land holder. Jizya: A discriminatory poll-tax imposed upon a non-Muslim adult. mudaraba: Partnership of capital and entrepreneurship. icareteyn: Ottoman double rent endowments. “Jacobins” were the most radical group among the French revolutionaries 1790-4 associated with Robespierre. property. ibdal: Sale (of a waqf property). mülhak: An endowment managed by its own founder or a trustee appointed by the former. General trustee of all the waqfs in Malaysia Majlis Ugama Islam Singapura: Central waqf authority in Singapore. undivided. irade-ı seniye: An order issued by the Ottoman Sultan. mukarrername: Renewal of a permission or privilege. Molla: Learned person. istishab: A method of legal reasoning particular to the Shafi’i school and to the Twelver Shiites.Muslim who leads the prayer. mujtahid: A highly qualified jurist who can reach conclusions using his own reasoning. madrasah: See Medrese. jarib (toprak ölçüsü): Measure of land used in India. ishhad: Declaration. Jacobinisme: 1. mihrab: Part of the mosque reserved for the imam during the prayers. Juristic preference 2.

tezkere: Official statement tuman : Persian monetary unit tımar: Ottoman fief ulama: Religious scholars of Islam vakıfname: Endowment deed. Precedent 2. sunnah: 1. mustoufi: A waqf officer. Zamindaris: Mughal feudal land holder. usury. mutawalli: Trustee Nazir al-Ahbas: Waqf official in Mamluk Egypt Nâzır-ı Evkaf: Minister of Endowments. eventually the term was also used for a banker. usually smaller than tekke. inspectors. Ryot: Peasantry (India). Eminent domain 2. tekke: A place of meeting for the members of an Islamic order. sayyid: A person who claims to belong to the Prophet’s lineage. res extra commercium: Excluded from commerce riba: Interest. nazr am: A type of endowment in Malaysia nesl: Generation. Shari’ah: Islamic jurisprudence Shaykh al-Islam ( eyhülislam): Highest officer of religious matters in the Ottoman Empire. tasarruf: Possession rights on a state owned land. Sadr: Administrator in Indian waqf system. imposed by the Ottoman State on fiscal housholds. sheykh: Notable. State or sultanic ownership of land. sadaqah jariyah: Ongoing charity. waqf am: Public waqf waqf khas: Family waqf Yargıtay: Supreme Court of Appeal in Turkey. reaya: Peasantry (Ottoman). Shares in Carati partnership 2. Raqaba: 1. qiyas: Analogy rab al-mal: Principal in a partnership. sadaqah: Alms. primogeniture: A wide-spread system of inheritance observed particularly in England and Western Europe whereby the eldest son of the family acquires the family land. Sarraf: Money changer. selatin waqfs: Sultanic waqfs. charity. nüzül: A tax. Actual deeds of the Prophet ta’amul: Custom ta’aruf: Custom takaful: Islamic insurance takyas: Religious orders in Malaysia tapu: title deed. zawiya: Minor Islamic centre. Normative legal custom 3. shirkat al-Islam: Islamic company Soyurgal: Mughal land grants.148 Musharaka al-mutanakisa: A modern method of finance practiced by Islamic banks particularly for financing construction projects. . Parganas: An administrative unit in India. ö ür: A tax. in kind. Measure of land in Egypt. qanat: Irrigation system wide-spread particularly in Iran and Afghanistan. qirat: 1. sawab: Good deeds. usually one-tenth.

one of the five pillars of Islam.149 zakah: Obligatory Islamic (tax ?). .

S. M. Abuzahra.Turabi: al-Ansari: al-Azhar: al-Bijindi: al-Bukhari: Aleppo: Alexandria: Algeria: Al-Habshi. Mohd.150 GENERAL INDEX: ‘Abd al-Hamid ‘Abd al-Haqq: ‘Abdel Hadi. H. South: Afshar: Aghnides.: al-Sarakhsi: al-Tirmidhi. S. N.: al-Kafi: al-Mazandarani: al-Mu’izz: al-Muqnia: al-Quds: al-Quhistani: al-Ramli: Alsagoff & Co. ‘Alluba Pasha: Abbasid: Abdülhamid I: Abu Hurairah: Abu Bakar.: al-Zahidi: al-Zarqa: Allgemeine Landrecht AMAL: Ameer Ali.: Agrarian Reform Law: Ahbas al-mebrure: ahli: Ahmad ibn Hanbal: Akgündüz. A. Akhavi.P. Ebussuud.: Akgündüz. Khatijah Shaik Abussuud Efendi: See. Syed: American: .: Abyssinia: Act for the Administration of Islamic law: Aden: Afghan: Africa. S. Zain b.O. Sumaiya Sid Ahmed ‘Abdel Rahman.: Akkoyunlu: Alp Arslan: al. North: Africa.

K. E.N. Ankara: Ankara University: Anwar Sadat: aql: Arab: Arab provinces: Arabic: Arabs. G. P. J. Azerbeycan: Baer. S.: Andra Pradesh: Anglo-French: Anglo-Muhammadan Law: Anheier. Ö.: Barkan. Balo lu. awqaf al-ahli: awqaf al-hukmiye: awqaf-ı gayri sahiha: Aydın: Aydın. Western: Barber.R. Barton: Bates. K. H.D. pre-Islamic: Archambault. Arjomand. S. Z. H.151 Amsterdam: amwal al-badal: analogy: Anatolia: Anavatan Partisi: Anderson. Ottoman : bankruptcy: banks.A.: Bayezid II: Baykal.: BaGDWd: Bahr: Bahr al-Ra’iq: Balkans: Ballar. Davut. J.L: Barnes. askeri: Assam: Astan-e Qods-e Razawi: A ıkPashazade: Atlantic: Avallone.T. R.: .: Barra.: Baluchistan: Bangladesh: bank: Bank.H.

demand side: capital pooling. Byzantine: Ça atay: Cairo: Calcutta: Calcutta College: capital: capital accumulation: capital market: capital pooling: capital pooling. controversy: cash waqfs: cash waqfs. Vice-Consul: Buddhist: budget deficit: Bulaq: bunyad (bonyad): Burhan al-Din Ibrahim: Bursa: Buyid: Büker. beneficiary: Bengal Waqf Act: Bengal. British: Beykoz: Bhutto: bida’a: Bihar: Bilici. diffusion of: Cattan: Cengiz Han (Chingiz Khan): census: Central Asia: Central Waqf Act: Central Waqf Administration: centralization: Çetin.152 Bayt al-mal: Bayt-ı Timur: Behrens-Abuseif: Bellér-Hann. A. supply side: capitalism: cash waqf inspection registers: cash waqf.: Bombay: bonds: borrower: borrowing: British: British Empire: British. . H.: Blaisdell: Bolak. I. Semih. F.

coins: collateral: colonialists: colonisation: Committee for the Abolishment of the Waqfs: Communist: companies: confiscation: Constantinople: consumers’ surplus controversy: corpus: corruption: Crecelius. D. M.: cloth factory: Cobb-Webb theorem: coffee trade: Coing. K. Iranian: civilization: Çizakça.: credit: Crimea: Crimean War: crowding-out effect: Crusade: Crusaders: Cuno.: Diyanet Vakfı: . H.: CWA (Central Waqf Administration): Cyprus Dagestan: Dakka: Damietta: Dardir: Defterdar: Delhi: Delhi Sultanate: Dergâh-ı muâlla: devadar: dinars: Directorate of Endowed Money: dirhams: Divan al-ahbas: Diwan. Ottoman: Chardin: charitability: charity: Chinese: Chittagong: Christian: church: Civil Code.153 Chaliphate. P.

V.: elite: Elizabeth: employment: endowment.: Dongala al-Aguz: Duncan-Jones.A. Chancellor of: entrepreneur: epidemic: Erzincan: Esener.: East India Co.: Ebussuud (Abussuud) Efendi: Edirne: education: Edward I: Egypt: Eldem. deed of : England: England.: Eldem. T. étatiste: eunuch: Europe: European: Evkaf-ı Hümayûn Nezareti: factor prices: factors of production: family: famine: Farah Diba: Faroqhi. Salian: . H.: Durr al-Muntaqa: Duyûn-u Umumiye: Dzhahlilov. S: fatawa Qadi Khan: Fatimid: Fatimid Egypt: fatwa: Fayzee: fiddei commissum: Financial Protectorate: First World War: fiscal policy: food: Ford Foundation Ford Motor Co. forests: foundations: founder: Franciscan Friars: Franks. R. E.154 dominium eminence: Döndüren.

: Friedman. Gaudiosi.: German: Germany: Gezira: GDW: Ghayat al-Bayan: Ghazne: Gordon. M. Endowments and Charity Affairs Organisation. of Iran: Hanafî: Hanbali: Haneef. Gazi Ahmet Muhtar Pasha. H. M. .: hayri: health: Hejaz (Hijaz): Hejaz Railway Henry VIII: Heywood.: government: government borrowing: government expenditure: Gozalo. M.: haremeyn: Harun al-Rashid: hassa-ı hûmayun: Hatemi. B. M. C. grain: Great Awqaf Company: great powers: Greece: growth: Gujarat: Gulf States: habs: hadith: Hajj. M. Hilâl: Hindu: Hodgson: Hoexter. A.A. Fieldmarshall: General Numeiri: Gerber.B. Y. S.A. fructus: Fustat: Fuwa: Gamon.155 Frederick Arthur Stanley: free ride: French Empire: French Revolution: Frenkel. H: Geremek.

: Ibrahim. non market: interest. M.156 Holy Land: Hong Kong: Horowitz.: Hussainabad: Ibadullah Vakfı: ibdal: Ibn Batuta: Ibn Khaldun: Ibn Nujaym: Ibn Tulun: Ibrahim. Western: nalcık. A.: income: income distribution: income redistribution: India: India. Muslims: inflation: inheritors: inns of court: inspection registers: institutions. Z.: icareteyn: ijma’a: ijtihad fi: lhanlıs (Il-Khanid): Imam Abu Yusuf (Ebû Yusuf): Imam Muhammad (al-Shaybani): Imam Muslim: Imam Riza: Imam Shafi’i: Imam Zufar: imambarah: immovable: Imperialism.: Hospitalers: hudud: Hujjat al-Islam: Hülagu: Husain.: iqta’: irade-ı seniye: Iran: Iran. economic: investment: Ip irli. D. A. H. British: Indian. Islamic Republic of: Iraq: irrevocable: IRTI/IDB: Isfahan: .

: Kahf. Malaysia: Islamic Charity-Waqf Law. B. W. of Sudan: Islamic society: Islamic state: Islamic world: Islamo lu. Karakoyunlu: Karbala: Karnataka: Kashmir: Kastamonu: Kayseri: Kazan: Kazgan.157 Iskender Pasha: Islamic Bank. M. G. MaGDW: Istanbul: istibdal: istiglal: istihsan: istishab: istisna: I eri.: janissaries: jehad: Jerusalem: Jewish: Jinnah. Huri Ismail. N. 1970: Islamic civilisation: Islamic economics: Islamic economists: Islamic empire: Islamic fundamentalism: Islamic heritage: Islamic inheritance: Islamic jurisprudence: Islamic Salvation Revolution.: Johore: joint-stock company: Jones. J.: jurisprudence: jurists: kadı: Kâ ıtçıba ı. H.: . Kenya: Kepel. Muhammad Ali: jizya: Johansen.: Kedah: kefil: Kemalist Jacobinisme: Kendall. Ç.R.

S. Knights Templars: Koç E itim Vakfı: Koç Foundation: Koç. M.158 Kerala: Khalid ibn al-Walid: Kharaj: Khartoum: Khayat.: land reform: Land Reform Bonds: Land Reform Committee: Land Reform. Kocahano lu. K.K. M. I. A. Law of Endowments: Law of inheritance: Law of Inheritance. Koç. Egypt: Lapidus. Knapp.: Koçi Bey: Konya: Köprülü. O. H. V. Roman: Lebanese Law: Lebanon: Lelantan: lettre patent Lex Salica: Liberal Constitutionalist Party: liberalism: Lions Club: loan: . Kulayni: Kurt. C.: Latifi: Latin: Laum.S. Germanic: Law. I. 1943: Law of the Unity of Education: Law. R. Lahore: Lambton. F: Kordofan: Kozlowski: Kreiser.A.: Khaybar: khayri: Khedive: Khomeini: Khorasan: khums: King Faruq: Kıraç.

of Ghazne: Mahmut Pasha Vakfı: Majallah: See Mecelle.G. B. H.: Makrizi: Malacca: Malay World: Malaysia: Malaysian Development Bank: Malik. Mahmoud Ahmad: mahkamat al-tasarrufat: Mahmud II: Mahmud. J. Chamber of Commerce: Martin Luther: Mashhad: masjid: Masters.159 Lord Cornwallis: Lord Robertson: Lord Simmons: Lucknow: lugares de monte ma’rudat: Madhhya Pradesh: Madras: madrasah: Mahdi: Mahdi. S.: Maliki: Maliye: Malthus: Mamluks: Mandaville.: Mawlawi: Mazandarani: mazbut: McChesney: Mecca: Mecelle: medieval: Medina: medrese: merchant: Merton College: . Majer.J. Majlis Agama Islam (MAI): Majlis Amanah Rakiyat (MARA): Majlis Ugama Islam Singapore (MUIS): Majma al-Anhur: Makdisi.G.: Manh: Manhat al-Khaliq: Marathawada: markets: Marseille.

A K. b. d. M.: monastries: money: Mongols: Morocco mortgage: mosques: Mostafawi. : Mesopotamia: mevlid: Middle East: mihrab: millet: Millî Güvenlik Kurulu: minber: Ministry of Awqaf: Ministry of Education: Ministry of Finance: Ministry of Interior: Ministry of the Imperial Endowments: Muhammad Ali: Mohd.: Moussavi. W.160 Merton.R.A.: movables: mudaraba: Mudawwana: Mufid: Mufti: Mughal India: Mughals: Muhammed Ali evki Bey: Muhit: mülhak: mülk: mültezim: Mundell-Laffer Hypothesis: municipal: muqarasa: murabaha: Musa Saffeti Pasha: musha’: Muslim and Hindu Endowment Board: Muslim World: Muslimin Trust Fund Association Singapore: Muslims: Muslims. Zain. Indian: Mussalman Waqf Validating Act: Mustafa III: Mustafa Kemal Atatürk: mutawalli: Nadir Shah: Nafiz Pasha: Najaf: .T.

H. the Second Caliph: Omdurman: Ömer Hilmi Efendi: opportunity cost: Orders of the Templars: Orenburg: Orhan Gazi: Orientalists.161 Nasser: National Security Council: NATO: Nawab: Nazir al-Ahbas: Nazır-ı evkaf: nazr ‘am: Negri Sembilan: nesl: Ngah.Z.: Persekutuan: pilgrimage: poor laws: population: possession: . N. proto-pseudo-socialist system: ownership: Oxford: Öztürk. K. M. O.b.: Pacific: Pahang: Pahlawi: Pakistan: Paris: People’s Party: Perak: Peri. economic history: Ottoman economy: Ottoman Empire: Ottoman Orthodoxes: Ottoman.: Ö ür(‘ushr): Ottoman archives: Ottoman army: Ottoman Catholics: Ottoman courts: Ottoman. French: Orissa: orphanage: Othman.: Nile: Nisapur: Nizam al-Mülk North West Frontier Province: Nukud-u Mevkûfe Müdürlü ü: O uz: Omar (‘umar).

: real estate waqf: reaya: religion: Religious Protectorate: Rent Control Act: rente: revenue: riba: riot: Rockwell. J. the message of: Qureshi. M. modernity of: Qur’an.: rate of interest: Raymond. A.S.A. (Rostowzew).: Rome: Rosetta: Rostovtzeff.: Queen Victoria: Qumm: Qur’an: Qur’an.162 Powers.: rule against perpetuities: Rumeli: Russia: Rıfaî: Sabah: .: primogeniture: Prince ‘Umar Tusun: private sector: Privy Council: producers’ surplus profit: property: Prophet: Prophet Muhammad: Prophetic traditions: provision: provisioning: provisionism: Prusa: Public Debt Administration: public goods: Pulau Penang: Punjab: Qajar: qirat: qiyas: Quataert. K. D.S. M.C.: Radd al-Mukhtar: rakaba: raqaba: Rashid. D.

: Sadr. salary: Samanid: Sanjar: Santiago De Los Espanoles sarraf: Sasanid: saver: sawab: Sawad: Saygın. L.M. J.163 sadaqah: sadaqah jariya: Sadeq. N.e-Sabah: Sadr us Sudur: Sadr-e-Sarkar: Safavid: Sa lam. Saint Francis: Sakurzada. A.: Salahaddin Ayyubid: Salamon. M. Sayyid: Sazman-e Eqtesad-e Islami: Schacht.: securities: security: Selangor: selatin vakıfları: Selçuk Empire: Selim: separatism: services: Shafi’i: Shah Abbas II: Shah Ismail: Shah Reza: Shanghai: shares: Sharh al-Wahbaniyyah: Sharh Manafi’ al-Daqqaq: Shari’ah: Shaykh Muhammad Bakhit: Sheraton: Shi’ite: shirkat al-esham: shrine: silk: Sind: Singapore: Sinnar: Sipahsalar: Sir John Malcolm: . E.

164 Sir W. A.: Sudan: Sudan. of Condominium: Suez: Suhrawardi: Suhrawardy. size of: state. the wrath of: stocks: Stöber. Commerpethersan: Sir William Jones: Siyar: Siyar al-kabir: slaves: Sokullu Mehmet Pasha: Soviet: Soviet Union: spice trade: state: state interference: state policy: state sector: state. National Islamic Front: Sudan. A. G: Sübüktigin: Sucesk.: Süleyman. the Magnificient: Süleymaniye Mosque: sultan: Sultan Abdulhamid: Sultan Abu Bakar: Sultan Aladdin: Sultan al-Ghuri: Sultan Barkuk: Sultan Mehmet II: Sultan Tuqlaq: sultanic waqf: sunna: sunni: surety: Syria: ta’amul: ta’amul alam: ta’aruf: Taavone Keshvarzi Bank: Tabung Haji: Tadhkirat al-Muluk: Tahrir: Tahtawi: Taiping: Taj Mahal: takaful: Tamil Nadu: Tanzimat: .

English: trusts. N. avarız: tax.165 tapu: Tarabulsi: tasarruf: Tashkent: tax: tax. South African: Tunesia: Tunis: Turkestan: Turkey: Turkic World : Turkish Civil Law: Turkish Republic: Turkoman: Tusi: Tyabji: Tımar: Tırnova: .: ura-i Devlet: Third Sector Foundation (TÜSEV) Timurid: Timurta : Toepler: Top. A. shar’i : tax. urfi: taxation: tax-farmer: technology: technology.Md. legal institutions of: treasury: Treaty of Berin: Treaty of London: Treaty of Paris: Trengganu: trustee: trusts. nüzül: tax. agricultural: Teheran: tekke: Ten conditions: tenants: Tevhidi Tedrisat Kanunu: tezkere: The Bengal Regulation: the Permanent Settlement: eyhülislam: eyhun.: Torrens System: Trablusgarb: tradition: transmission.

usury: usus: Utyabay-Kerimi: Uzbek: Uzbekistan: VakıflarBankası: Vakıfname: Vehbi Koç: Wanniski. A.: Zaimzade Hasan Fehmi Bey: Zamindaris: zawiya: zakah: Ziraat Bankası: . stocks and bonds: waqf of grain ships: waqf of medicine: waqf of slaves: waqf of trees: waqf of woollen cloths: Warburg. S. . Waqaf Kampong makam: waqf: Waqf Act of 1995: Waqf for the Promotion of Turkish Armed Forces (WPTAF): waqf of government securities.: Yemen: Yener. G.: Ufa: Ulema: Ungku Aziz: Ural-Volga: use: ushr: usufruct: Usul. M. J. wealth: West Bengal: West Pakistan: women: Yegar.166 Udovitch.