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Nor Asiah, Chap 1, Waqf

CONCEPT OF WAQF AND ITS DIFFERENCES FROM OTHER FORMS OF CHARITABLE

ACTS

1.0 UNDERSTANDING THE CONCEPT AND JURISPRUDENTIAL NATURE OF IMPORTANT

TERMS RELATED TO WAQF
The familiar terms related to Waqf are sadaqah, sadaqah jariah and habs. Sometimes, Waqf
is written as ‘wakaf’ or ‘wakap’ in South East Asia. In Northern Africa the jurists still use habs,
habous or tasbil for the same concept.
1.1 WAQF
Literally, both Waqf and habs mean: 'to prevent', or 'to restrain' (mana’a). Legally they
mean 'to protect something, by preventing it from becoming the property of a third person.'
Waqf (plural awqaf) is derived from the word ‘waqafa’. In Arabic, waqf has various meanings
such as ‘sakana’ “become still and not move”, ‘habasa’ ‘to retain”, and ‘mana’a’ means
“detention” (Al-Sarakhsi, 1406).
The classical definition of Waqf is given by Imam Abu Hanifah in his saying as 'the
appropriation of any particular thing in such a way that the founder's right in it shall continue
and the advantage of it go to some charitable object'.
Waqf also shares a similar meaning with Habs which is commonly used in some North
African countries, for example in Morocco, Minister of habas is used instead of Ministry of
Awqaf (Zuhaili, 1987).

1.2 SADAQAH

The root word for sadaqah is ‘sidiq’. 'Sadaqa' literally means 'righteousness' and refers to the
voluntary giving of alms or charity. No property, can be donated in the name of Allah unless
donor has no other intention except to seek blessing from Allah (swt). A donor should
dedicate his property for Allah (swt) without any ill motive or any other ulterior motives such
as fame, return or any kind of reward except a reward from Allah swt. The act of donating
property should only to earn blessing of Allah (swt). Once a property is passed to the receiver,
the ownership of the property will immediately pass to the receiver. The receiver has all the
rights to use the property as he likes without being subjected to any condition imposed by
the giver.

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Waqf benefit is meant to be forever and permanent. Islam specifies some

requirements for a Waqf in contrast to Sadaqah, which is an act of charity for the sake of
Allah (swt). There is no requirement attached to Sadaqah such as perpetual, inalienable or
irrevocable attach to it. Furthermore, Sadaqah is not subject to any period or types of subject
matter. As long as the recipients can benefit from the act, it is acceptable.

1.3DIFFERENCES BETWEEN SADAQAH AND SADAQAH JARIAH

Sadaqah jariah means an act of donation of any property with a purpose that gives a long
lasting benefit hoping for continuous reward from Allah (swt). Thus, if someone donates a
pack of food, the benefit is only for the beneficiary/receiver to eat and get healthy. But if
someone donates a few RM (Malaysian currency) and the beneficiaries convert the notes to
become something more perpetual, the rewards continue as long as the item/asset is in use.
Another example, giving a fish to a poor person is a sadaqah which can be utilised for
a given period which is temporary in nature. On the other hand, giving a poor person a boat
for fishing to meet their everyday living expenses is a sadaqah jariah. Hence, the effect of
sadaqah remains for a short while but sadaqah jariah lasts longer. Furthermore, depending
on the nature of subject matter in sadaqah, ‘the substance as well as the profits are
transferred but in sadaqah jariah, the substance is retained but the profits go to the
beneficiaries’ (Abd Mannan, 2005:4).

Kahf (1999) distinguished between sadaqah and sadaqah jariah in terms of whether
or not they are repeatable, the benefit of sadaqah jariah can be used many times in contrast
with ordinary sadaqah. Every Waqf is a type of sadaqah. Waqf promises a long lasting reward
from Allah (swt) if all the conditions are fulfilled.

1.4 WAQF AND INFAQ

The word ‘infaq’ can be found in many places in the Quran but none for the word ‘waqf’
which indicates a ‘dedication on one’s property. The term infaq is attached with the intention
of ‘Fi Sabililllah’ which means giving for the pleasure of Allah (swt) or charitable purposes
(Kahf, 1998). It can be said that ‘Infaq’ forms a wider scope of Sadaqah or Waqf in certain
practices. For example, Sadaqah, Zakat, Waqaf is a form of Infaq as understood among the
locals in Malaysia and Indonesia. Infaq is similar with sadaqah which is basically voluntary
spending in order to gain Allah’s blessing (Qurbah) but it is only merely confined to sadaqah
alone. According to Kahf (1998), there are several types of infaq from the point view of the
religion and one of them is voluntary spending based on religious motives. These kinds of
Infaq are categorized in two ways: a running-stream of spending (Sadaqah jariah) and one
time spending (Sadaqah).
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1.5 DIFFERENCES BETWEEN WAQF AND TRUST

The Ninth Report of the Second Administrative Reform Commission in India (2008)
elaborated that trusts, endowments and Waqf are legally created as modes of property
arrangement or settlement, dedicated for definite charitable and religious purposes.
There are similarities and differences between the Waqf and the English concept of a trust.
Firstly, Waqf is perpetual and it is created as part of voluntary religious deed, while for
a trust is not necessary to be perpetual, irrevocable or inalienable (White, 2006). In Islam,
eventhough Waqf is voluntary but it is very much encouraged as there are many authorities
from the practices of the Prophet (p.b.u.h) and followed by the Companions. One of the
similarities is that, both can be created for private or individual benefit or for the public. The
corpus is inalienable and the estates are for the benefit of the beneficiaries. Both is created
according to the intention of the owner. Both properties are managed by the trustees or
Mutawalli.
In general, trust can be created for any legal purpose but Waqf may only be created
for a purpose that is ultimately charitable, religious or pious, even if the intention of the Waqif
is to settle his family debt or etc. A very obvious difference is that trust cannot be created for
the purpose of family alone while Islam encourages all charitable acts to be prioritised for
family. Islam also stipulates that the assets or property for Waqf must be Shariah compliant.
While trust is sufficient to be legal. A business that is related to alcohol, drugs, usury or
gambling related activities cannot form a Waqf. However, a trust is legal and viable even the
purpose is dedicated for a church or the benefit is to be enjoyed by the guests of licensed pub
or a café which sells liquor etc. Although there are many similarities for both trust and waqf,
they differ from each other in certain legal concepts (Cattan, 1995).

The word ‘waqf’ under the Malaysian law refers to ‘dedication of any property’ from
which its usufruct or benefit may be used for any charitable purpose according to Islamic law
but does not include a trust which is defined under the Trustee Act 1949. The word ‘waqf’ in
Malaysia is therefore, strictly confined to Waqf that is created according to Islamic law and
such Waqf must come within the jurisdiction of the State Islamic Religious Council (SIRC)s as
‘sole trustee’.
Malaysian law separates the concept of Waqf and trust especially in relation to
immoveable property. Section 5 of the National Land Code 1963 (the NLC) for example, gives
a general definition of ‘trust’ which emphasises that the word ‘trust’ does not include a Waqf
created in accordance with the principles of Muslim law. This definition exists in all the states
having waqf enactments namely, Selangor, Negeri Sembilan and Malacca. Waqf is created
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based on principles of Islam. Therefore, if a building is used for activities that are contrary to
the principles of Islam and later it is dedicated as Waqf thus it cannot form as waqf property
but could come under the definition of ‘trust’ within the meaning of the Trustee Act 1949
(Act 208). Although Waqf is in the nature of a charitable trust, and given that the NLC
recognises trusts created over land, the NLC expressly declares that such trusts under the NLC
do not include Waqf created in accordance with the principles of Muslim law. This therefore
allows Waqf lands to be specifically governed by Islamic law. Waqf deed needs not be
deposited at the land office in accordance with s 344, nor there be a right to lodge a trust
caveat over such Waqf lands under s 332 of the NLC.
TABLE 1: Basic Differences between Trust and Waqf
TRUST WAQF
Settlor Waqif
Trustee Mutawalli/Nazir/Qadim
Property/Subject matter Mawquf / Mawqif bi hi
Beneficiary Mawquf ‘alaih

TABLE 2 : Waqf and Trust

WAQF TRUST

charitable and religious in nature No religious motive needed but any

legal purpose is valid

The Waqif can be the beneficiary (only under Founder may be the beneficiary
Hanafi law).

Ultimate objective must be to get blessing Any lawful objective will do

from Allah and the benefit is to the mankind.

Property vests in Allah Property vests in the trustee

Mutawalli only a manager Trustee has bigger power

Perpetual cannot be terminated under any Need not be permanent. Can be

circumstances terminated as stipulated in the trust
deed.

Irrevocable Revocable

Corpus is immobilised Corpus is immobilised

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Usufruct is used for the benefit of mankind Usufruct is used for the objective stated
in the deed

Policies are determined by the Waqif The trustee determines the policy

1.6. WAQF AND FOUNDATIONS

A foundation can be of two types – private foundation or public foundation. Many non-profit
organisations (NPOs) in common law countries are established as a foundation, where the
legal status of these foundations is either as trusts or as charitable corporations (Ahmed,
2009). Foundation is typically operating agencies which have the privilege of owning real
estate and other assets (Archambault, 1992). A founder through a public document or a will
that allocates for property (Landim, 1997) also creates foundations.
It is an entity that is formed with a capital sum that is to be used for a specified
purpose. This operating body does not have any members; however, the members of the
governing council look after the fulfilment of the purpose (Fries, 2003). There are also
provisions for non-profit organisations (NPOs) to be registered as foundations in civil law
countries. These are basically a legal entity and the assets can be used for a specific purpose
as laid by the founder (Ernest and Porksen, 2004).
Hence, there are some similarities between Waqf and Foundation. Nevertheless,
Foundation does not have provision for perpetuality and irrevocability, which are central in
Waqf concept. In some jurisdiction, Waqf works under the brand of a foundation, such as in
Turkey.

TABLE 3: DIFFERENCES BETWEEN WAQF AND OTHER FORMS

DIFFERENCES BETWEEN WAQF AND OTHER FORMS OF CHARITABLE ACTS

SADAQAH ZAKAT DONATION ENDOWMEN FOUNDATIO WAKAF
T N
F A form of Compulsor Voluntary Voluntary A form of A
O voluntary y charity charity in voluntary perpetual
R charity charitable normally perpetual Charity charitable
m seeking act for once or form subject to its act for
blessing Subject to for a term sake of
from Allah times and certain Allah swt
conditions period

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T Sadaqah or For public Voluntary act Subject to Wakaf Am

Y Sadaqah Zakat or in perpetual the wishes of Wakaf
P jariah Fitrah, individual form based on the Khas
E Zakat for the wishes of contributor
s income the endower
H No specific The form, Once At anytime Rukun
O form. payment Or at At anytime Wakaf
w The donor and value anytime
transfers his depend on Comply
property, the types with the
manfaah, and ability conditions
services to of the
others in payer
need
R Not Yes, Yes and No Yes Yes Yes, under
E regulated regulated Donations the
G under can be of SSM Administra
U Administra different tion of
L tion of kinds such Islamic law
A Islamic Law as gifts, and Waqf
T sadaqah, Enactment
E loans, and
wills.
T anytime Specified Any time Anytime but Anytime but Anytime
i time subject to subject to
m Annual terms terms
e
f
o
r
P
a
y
m
e
n
t

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TABLE 4: DIFFERENCES BETWEEN WAQF AND ENDOWMENT.

Waqf Endowment
Intention/purpose Ibadah, blessing from Allah Charitable act
Duration Forever/Perpetual Subject to period
Nature Cannot be changed Can be changed

Waqf and endowments may differ in various senses. It may differ in term of the intention or
objective of establishment though in practice it may appear similar on most aspects. It may
differ in the sense of worship. Waqf is an act to get blessing from Allah swt. A Waqif chooses
to detach his ownership over a property forever, for others is a sacrifice based on faith, love
and spirit of helping others, not for his self-interest. While endowment may appear in a
similar format but the intention must not necessarily for the sake of Allah swt, which has
religious value behind the sacrifice.
The Oxford dictionary defines an endowment as a permanent income that is given to
a person or institution but is basically meant for general use (Hawkins, 1987). A commitment
or act of Endowment may be changed and not perpetual unlike Waqf which basically cannot
be changed and remains forever.

3.2 WAQF AND CHARITY UNDER CIVIL LAW

The underlying principles and objectives for waqf and charity under English law are generally
similar. The purpose is to help the needy. When Waqf has some religious value in its creation,
charity under civil law may not be associated with religion. One of the important differences
between the concept of charity in common law and waqf is that no dedication for family is
allowed for charitable act under civil or common law. In Islam, protection and security for
family is of the highest priority.

TABLE 5: DEFINITION OF WAQF ACCORDING TO ENACTMENTS AND JURISTS:

1 Section 2(1) of the "wakaf means any property from which its benefit or interest may
. Enactment 2003 be enjoyed for any charitable purpose whether as wakaf am or
wakaf khas in accordance with Hukum Syarak, but does not include
a trust which is defined under the Trustee Act 1949 [Act 208];
'wakaf am' means a wakaf that is created for a general charitable
purpose in accordance with Hukum Syarak; and
'wakaf khas' means a wakaf that is created for a specified
charitable purpose in accordance with Hukum Syarak."
AAOIFI, 2018 In Arabic language the word Waqf or Habs means preventing some-
In Arabic language the word Waqf or Habs means preventing
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something from movement. In Shari’ah terminology, Waqf refers

to prevent thing from movement.
Similarly, in Shari’ah terminology, Waqf refers to making a
property invulnerable to any disposition that leads to transfer of a
property, and donating the usufruct of that property to
beneficiaries.
2 Kuwait Waqf Public Linguistically speaking, Waqf means retention and withholding, but
. Foundation as far as jurisprudents (Faqihs) are concerned, the term means
withholding an asset and getting it out of anybody’s property so
that it cannot be sold, granted or bequeathed. Another definition
of waqf is withholding the assets on the Waqif’s property, while
releasing the usufruct. An asset here indicates the corpus which
may be a house, an orchard, cash money or otherwise.
3 Imam Abu Hanifah 'the appropriation of any particular thing in such a way that the
founder's right in it shall continue and the advantage of it goes to
some charitable objects'.
4 Sarakhsi, 490 A.H., Waqf means “to protect something, by preventing it from
Asqalaani, d. 852 becoming the property of a third person”
A.H.
5 al-Syarbiniyy Waqf is defined as holding something that could be used to
substitution (istibdal) process for the waqf perpetuates the form (
ain).
6 al- Asqalani Waqf as a form of property of Istibdal for the Waqf property
substitution for the holding that can be used on conditions to
produce benefit of the Ummah.
7 Abu Yusuf and The retention of the title by the donor which gives him the
Mouhammad discretion to revoke the trust anytime during his lifetime, as he
pleases, provided the trust is not effective after the death of the
Shafi'i, Hanbali and donor or as a result of a decision by a competent court.
Imami schools
8 Abu Zahrah 'the prevention of a benefit-generating estate from corporal
(muhadarat) disposal but using its usufruct and benefit in charity, intended so at
the time of creation and thereafter.'
4 Monzer Kahf 'the holding of certain property and preserving it for the confined
benefit of certain philanthropy and prohibiting any use or
disposition of it outside that specific objective
5 Hisham Dafterdar Awqaf (singular, Waqf) is an Arabic word meaning assets that are
donated, bequeathed, or purchased for the purpose of being held
in perpetual trust as ongoing charity (sadaka jariya) or for a general
or specific cause that Islam regards as socially beneficial
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6 Babacan (2011) From Arabic literature and Islamic law, Waqf is a special type of
Sadaqah (charity) in which there will be a profit gained from asset
donated, but the donor is not listed as the beneficiary. This is
different from charitable trust which the donor can be listed as one
of the beneficiaries
7 Brown, (2008). A Waqf is an unincorporated trust, an endowment that is
established under Islamic law and holds land or real estate in
perpetuity for the benefit of the family and their descendants,
while maintaining social provisions for the poor
8 Laldin et al., (2008) A Waqf is similar to a trust. However, since a trust consists of
different categories, the charitable trust is most similar to a Waqf
as its purpose is for public benefit.
9 Mohammad Rasdi Defined Waqf in Malay as having two meanings. One, when wakaf
(2007) is attached to other words, for example like wakaf property means
property or land which was given by someone for public use. The
second meaning of 'wakaf' is a square pavilion an open structure
with four to twelve timber columns, a pyramidal roofed and a
hipped gable design, usually made with a low platform for sitting or
lying down and is meant for travellers, local or otherwise, as
temporary shelter for resting, napping and as a prayer space.
1 (Ahmed, 2009) A Waqf is basically a type of 'sadaqah jariyah' (continuous charity)
0 (Nagamia, 2007). or ‘perpetual charity’
1 Gaudiosi Trust institutions in common law were derived from Waqf
1 (1988:1247) institutions and Hawala in Islam, while Europeans were in the
Middle East. In addition, the author asserted that Waqf and trusts
are remarkably similar in form and there is ample opportunity for
the transmission of the Muslim institutions that existed at the very
time trust began to emerge in England
1 Ahmad Khan (1988) A Waqf is a permanent dedication, by a Muslim, of any movable or
2 immovable property for any purpose recognised by Muslim law as
pious, religious or charitable.
Encyclopedia of “Wakf’ is defined in the Encyclopaedia of Islam as ‘a thing which
Islam while retaining its substance yields a usufruct and of which the
owner has surrendered his power of disposal with the stipulation
that the yield is used for permitted good purposes.
Abu Yusuf According to Abu Yusuf, Waqf is the detention of a thing in the
implied ownership of Almighty God, in such a manner that its
profits may be applied for the benefit of human beings, and the

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dedication, when once made, is absolute, so that the thing

dedicated
Mulla Mulla has adopted the definition of wakf as contained in the
Mussalman Wakf Validating Act, 1913. According to this definition,
waqf means the permanent dedication by a person professing the
Mussalman faith of any property for any purpose recognized by the
Mussalman law as religious, pious or charitable
According to Waqf is a continuous charitable act for the sake of God-He is exalted
Heidemann (2009) (alwaqfu sadaqatun jari‘ atun fi sabili llahi ta‘ala)‖.
al-Kasani (d. 587/
1189)
Yahya bin Sa ‘id al- The familiar term, for trusts, in the principle texts of Shariah, is
Hilli, al-Jami‘ li al- sadaqah and habs. Nevertheless, jurists also use waqf, which,
Shara’i, Qum: sometime, is written as wakaf or wakap in South East Asia. In
Musassah al- Northern Africa the jurists still use habs or tasbil for the same
Shuhada’ al- concept. The Shi’i scholars however differentiate between waqf
‘Ilmiyyah, 1405, and habs - both charitable but have slightly different implication.
A.H., p 368
Magda Mohsein Waqf means the appropriation of the property from ownership to
(2012) the dedication of its usufruct to charitable purposes

A study on the history of Waqf or the Arabic Dictionary (Lisan Al-Arabi) does not evidence any
serious discussion on the differences between Waqf and Habs. Thus, the term ‘habs’ or
habous are very popular in Northen African countries and the term literally and technically
refer to a pious endowment ( Raissouni (2001) However, Maghniyah (1997:61) argued the
difference in both terms. He asserts that ‘in waqf, founder ownership on the assets is
completely ended, while the ownership of the habs is remains, thus the asset can be inherited
or sold’. In Iran boniyad refers to pious foundations (Cizakca, 1998) while in Turkey Vaqf or
vakf is used in Turkish (McChesney, 1991).

1.8 The meaning of waqf for this study can be divided into 3 categories:
1.8.1 Classical scholars: The meaning can differ according to different Islamic scholars.
According to Abu Hanifah, Waqf is the detention of a specific property in the ownership of
the Waqif (founder) and appropriation of its profits or usufruct for charity to the poor or to
other good deeds. Therefore, Waqf does not become absolute, rather it conceives the
property itself to be in the ownership of the Waqif and it makes propitiatory offering of its

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profits, so it is in the category of lending (Ariyah). The Waqif in his lifetime is entitled to revoke
it, to make a gift of it to others, or to sell it, so the Waqf does not become absolute. Abu
Hanifah adds further, a Waqf shall become absolute only if it fulfils one of these conditions,
it is made in favour of a mosque as the subject, it is reserved forever to the ownership of
Allah, or no human beings are entitled to it except in the performance of worship (Al-Sarakhsi,
1993).

1.7.2 Legal Definition from the Statute or case law:

Section 2 of the Waqf Enactment (State of Selangor)2015 or SWE defines waqf as:
(a) to surrender the title of any property from which its benefit and interest may be enjoyed;

(b) to surrender the benefit or interest which may be enjoyed from any property; or

(c) to contribute the expertise and services from which its benefit or interest may be enjoyed.

In Mohammad Sadik v. Mohommaed Ali and others (Sel, Rep.l. P17), the law officers of the
Suddar Dewanny Adawlat stated that the wakf according to the opinion of Abu Yusuf and
Mohammad (which on this point was adopted as law) implies the relinquishment of the
proprietary right in any article of property such as lands, tenements and the rest and
consecrating it in such a manner to the service of God that it may be of benefit to men,
provided always that the thing appropriated be at the time of appropriation, the property of
the appropriator.

In Vidya Varuthi v. Balusami Ayyar ((1921)8.1 A. 302 P 312, Justice Ameer Ali explained the
reason of fusion of the term trust with wakf in the judgment of the Judicial Committee in the
following words: “The conception of a trust apart from a gift was introduced in India with the
establishment of Moslem rule. And it is for this reason that in many documents of later times
in parts of the country where Mohammedan influence has been predominant, such as upper
India and the camatic, the expression wakf is used to express dedication. But the
Mahommodan law relating to trusts differs fundamentally from the English law. It owes its
origin to a rule laid down by the Prophet of Islam; and means the tying up of property in the
ownership of God, the Almighty and the devotion of the profit for the benefit of human
beings.
In Jevan Doss Sahoo v Shah Kuheer-ooddin (1840) 2 M.I.A 390, when a particular property is
declared as Waqf, or any such expression is used as implies Waqf, or the tenor of the
document shows that a dedication to pious or charitable purposes is meant, the right of the
Waqif is extinguished and the ownership is transferred to the Almighty. The donor may name
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any meritorious object as the recipient of the benefit. The manager of the Waqf is the
Mutawalli, the governor, superintendent, or curator.

Whitley J in Re Syed Shaik Alkaff, in defining a Wakaf relied on the definition given by Syed
Ameer Ali in his book entitled Mohamedan Law as follows:
“Wakaf…signifies the dedication or consecration of property either in express
terms or by implication for any charitable or religious objects to secure any benefit
to human beings”.

There are two categories of waqf activities: -

1. Religious Waqf – where the benefits of waqf are spent for religious purposes such as
mosque, Muslim cemeteries, religous schools etc. Religious Waqf in any society adds to social
welfare of any community because it helps to satisfy the religious needs of people and reduce
the direct cost of providing religious services for any future generation.
2. Philanthropic Waqf refers to a charitable act with aims to support the needy group in a
society. The activities are of interest to people at large such as public utilities, libraries,
scientific research, fountain, bakeries or soup kitchen, R& R areas, education, health services,
care of animals and environment, lending to small traders, parks, road, bridges, dams etc.

1.8 VALIDITY OF WAQF

Waqf is permissible in Shari’ah as has been emphasized by the Sunnah (Prophetic traditions)
and Ijma’ ( Sunnah (Prophetic traditions) and Ijma’ (consensus of Fuqaha consensus of
Fuqaha). Waqf is also a binding commitment, and, therefore, declaring a property as Waqf
would spontaneously deprive its donating owner the right of ownership (AAOIFI, 2018)
In Islam, Waqf is valid when all pillars are fulfilled and the conditions are met. The conditions
or restrictions of Waqf such as inalienable, irrevocable and perpetual are important
requirements for the creation of any Waqf.
The pillars of Wakaf are as follows:

(a)Waqif;

(b)Mawquf‘alaih;

(c)\Mawquf;and

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(d) Sighah.

(Section 10 of the Wakaf (State of Selangor) Enactment 2015.

1.8.1 The conditions for a Waqif:

(a) attained the age of eighteen years;

(b) is of sound mind;

(c) must have full ownership of property and is not declared a bankrupt; and

(d) free and not under any coercion or influence

The Waqif must be able to surrender his property as a Mawquf for any purpose of benevolent
pursuant to Hukum Syarak. There is an issue about validity of Waqf by an idiot. Hanafi is of
the view that an idiot can make a valid Waqf provided that the Waqf takes effect for 1/3 of
his property and it is for charitable purposes.
A non Muslim who wilfully leaves in a Muslim countries (Dhimmi) can create a Waqf provided
that it is lawful according to Syarak. Nevertheless, the Maliki School does not recognise Waqf
by a non Muslim. A murtad (a person who denounce Islam) cannot make Waqf. Shafii School
permits Waqf by a non-Muslim even if it is for the benefit of a mosque.

1.8.2 Waqf Sighah

Jurists also agree that the words of a Waqif are the words of law. The inherent general
jurisdiction of courts to validate Waqf or do otherwise, is limited to the application of the
general principles of ownership. The specific jurisdiction of courts is limited to the realisation
of the intention of the donor. As long as a waqfiyya or waqf deed, which evidenced the
donation is signed by an owner or his authorized agent, who is legally competent (major,
sane, sober) and is free from other legal restrictions because of bankruptcy, insolvency, idiotic
or wasteful expenditure, and illness that results in death; such a document (Waqfiyya) will be
considered valid and unchallengeable, provided the donor has complied to other conditions
of law.
Even the court has no jurisdiction and power to deal with the property in a manner that is
harmful to the incompetent owners.
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A Wakaf shall be created by way of sighah before two witnesses pursuant to Hukum Syarak.
Once an owner makes a declaration that his property is a Waqf, the Waqf is ‘irrevocable’
except according to Hanafi School. The owner (Waqif) could retain certain rights as to its
management, but the Waqf itself is invalid unless irrevocable, perpetual and the Waqf shall
be bound by the terms of the Waqf document (waqfiyya).
A valid Waqf is concluded if the general or special conditions on disposal of the property by
the owner and the object which form the subject matter of the Waqf, as well as the
beneficiaries thereto, are satisfied.
There are consensuses of opinions from all schools that Waqf is created by a clear word or
expression or utterance such as “waqaftu”. “habastu”, “Aku wakafkan” “I create a waqf” etc.
Nevertheless, Waqf can also be created by act.

1.9 Mawquf or the subject matter of Waqf

The Waqf property (mawquf) should fulfill the following conditions:
a) It shall be a Shari’ah-accepted property. Liquor, pork or pig, assets which are proven as
illegally obtained cannot be a subject matter of Waqf.
b) It shall be known;
The Waqif shall be the sole owner of the property if nobody else should have a right of
disposition at the time establishing the Waqf. If the Waqif himself has the option of disposing
the property, the Waqf shall become valid.
The Waqf has a legal personality and financial liability which make it capable of giving and
accepting commitment. The legal personality of the Waqf is quite separate from the
personality of its manager.

TABLE 6 : JURISTS VIEW ON MAWQUF

The Hanafi school (Imam Abu The Mawquf may appear in the form of land, fixture,
Yusuf and Imam Mohamad tools and other things used for land or mentioned
expressly in the legal texts, or anything that custom
accepts it as the subject matter of Waqf like books.
The Mawquf must exist in perpetuity.
Imam Abu Hanifah Only immoveable property can be Mawquf
Imam Zufar (student of Imam Moveable property can be endowed
Abu Hanifah
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The Shafi'i and Hanbali Allow any property which can be used, and its corpus
schools remains intact
The Maliki School Allows anything that can be owned provided that the
donor is the owner and there is no restraint on dealing
such as in the case of pledge, charge and lease; for the
rights and interests of others prevent the owner to deal
with his property without the consent of the interest-
holders.

1.10 Can a Manfaah (usufruct) be a MAWQUF?

One of the conditions (syurut) for a valid Waqf is that the property (mawquf) that can be
endowed must have some values, physically and materially. From the economist point of
view, Manfaah is utility which forms part of the property with value. The Manfaah may be
tangible or intangible. In fact, the value of some properties is closely attached to the Manfaah,
without which the ‘ayn of the property has no economic value.
The question is, can we endow the benefit or the usufruct of a property, where the
‘ain’ of the property remains with the owner? The Muslim jurists (fiqh) view that Manfaah as
the part of the zat of any property whereby the ain and the zat complements each other to
form the property thus making the property a valuable property.
According to Al-Syātibi, Manfaah refers to anything that is beneficial (maslahat) and it
does not refer to the Zat (spirit) of the property. For example, the physical form of a house or
land or clothes are without value unless the land is fertile, the house is capable of occupation,
and the clothes is usable. Hence, they form as valuable property (al-Syātibi, t.th: 166).

Majority of Muslim jurists view that manfaah or right of usufruct is more valuable than the
‘ayn of a property. Thus, it can be concluded that Manfaah is as good as other materials or
physical property. Manfaah can be owned and used as subject matter or consideration for
transaction in the case of lease, charge or sale. Thus, Manfaah can be used as mawquf for
waqf. From Fiqh perspective, right of usufruct or manfaah can be divided into 2:
a. Manfaah (ususfruct)which is material or has value; and
b. Manfaah which has no value.
Waqf ‘ilm or knowledge or intellectual property is an example of waqf of manfaah. The owner
i.e. the human is the owner of the knowledge, but the human being donates his knowledge
for the benefit of the people or a certain class of people. The owner may not value his
knowledge to be paid for certain value of his services.

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The provision of the Waqf Enactment has specific provision for intellectual property. Section
2 of the Wakaf (Selangor) Enactment 2015 provides that intellectual property means anything
in connection with copyright, patent, industrial design, optical disk, trademark and those
similar thereto. A person may want to dedicate through waqf the royalty of his songs. Islam
requires that the songs must not be in contrary to Islam. For example, the song must not
contain meaning that are contrary for Islamic principles. In Waqf of manfaah, the songs
remain the property of the author, but the benefit of his songs will be channelled to others.

A motivator may want to waqf his expertise for the benefit of certain schools during school
holidays. His expertise is also considered as Manfaah. A doctor may Waqf a few hours of his
services per day as Waqf. This may appear as Waqf time or services.

One of Maliki jurists who promotes waqf Manfaah is Syaikh al-Darīr (Syarh al-Kabīr li al-
Mukhtashar al-Khalīl). Ibnu Taimiyah shares a similar opinion. Other mazhab such as the As
Shafiiyyah,followers of Hanabilah and Hanafiyyah hold to the view that Manfaat is not a form
of thing with ‘Ayn. The jurists of al-Dzahiriyah strongly oppose the view for Waqf Manfaah
and they reject on the basis that there is no clear authorities or Dalil allowing for Waqf of
Manfaah (Hazm, t.th: 175).

1.9.1 Mawquf Must be ‘Perpetual”

TABLE 7 : JURISTS VIEW OF PERPETUALITY OF MAWQUF
According to Imam Muhammad and his The donated/endowed property shall exist
followers in the Hanafi school perpetually

Allowed the subject matter of Waqf to be

any movable property if such is the general
practice of the community.
The Hanafies Movable property cannot form as the
subject matter of Waqf except fixtures and
concomitants, such as buildings, trees and
those which are essential for maintenance
and development of immovable property as
animals, workers, and tools for farming, or
tools and animals used for military
purposes.

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The donation of cash (darahim/dananir),

movable property, is permissible too
Other jurists of the majority Allow the subject matter of the Waqf to be
either movable or immovable that could be
sold or being used while it is still intact such
as estate, tools, furniture and the like, as
long as it can be used and its corpus remains
intact without any damage.
The Malikies Allow any property that could be owned,
including property that may not be
considered as the subject of sale and
purchase agreements e.g. the skin of dogs.
They allow cash, rental of houses or any
other properties to be given as Waqf.

Contemporary jurists prefer Maliki view for it is helpful not only in liquidation of waqf assets
but also in improving the wellbeing of the society by attracting a greater participation of the
public and hence paving way for better service to the welfare of the needy. Under the current
practice, SIRC collect cash through wakaf tunai or cash and keep in investment accounts of
Islamic Banks, shares, stocks, and investment in bonds and securities. The returns from the
deposits or investment are spent on charities and for the management as well as re-
investment for sustainable income of Waqf.

1.9.10 The Mawquf ‘alaih (the beneficiary)

A person, who gets the benefits of aWaqf, is called ‘mawquf ‘alaih’ or the beficiaries. A Waqf
may be dedicated to a specific beneficiary or for an individual or for any class of persons. It is
not necessary that the beneficiaries must fall under a category of poor. Waqf for the benefit
of the rich is still valid.
According to Ameer Ali, a Waqf may be constituted: (a) for the benefit of rich and poor
alike, i.e. simultaneously for both; (b) for the benefit of rich and thereafter for the poors, and
(c) for the benefit of poors alone.
A non-Muslim is also a competent beneficiary. A Waqf may be lawfully constituted by
a Muslim for the benefit of other non-Muslims but the purpose of the activities must be
Shariah compliant. Thus, the object of the activities or jobs using Waqf land must be
something which is permissible in Islam.

1.10 Effect of perpetuity of Waqf Property

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The primary concept of the Waqf is that irrespective of the nature of the property of the
waqf, as being movable or immovable, Waqf must be in perpetuity. Thus, it is important for
any Mutawalli to have knowledge on how to manage Waqf properties so that the benefit
(Manfa’ah) remains and beneficial permanently. A Mutawalli also has a duty to spend its
revenue and distribute the benefits to the beneficiaries according to the intention of the
Waqif. Thus, apart from managing Waqf property, distributing and allocating the benefits is
also one of the important roles of the Mutawalli.
The basic principle is that Waqf must be permanent or perpetual. Due to this, the majority of
the Waqf property is real estate which by nature is non-liquid. Under the Malaysian land law,
perpetuity or perpetuality of land is legally described as freehold land (s76 and S 76aa NLC).
Historically, freehold means 999 years lease. There are situations where Mutawalli finds
difficulty in developing or managing Waqf property in the most profitable ways due to various
reasons such as uneconomic size, non-strategic location, disputes among other co-proprietors
of the land etc. In this situation, the jurists allow the Mutawalli to seek legal opinion for
exchange of land with a better land through istibdal. Through the process, the intention of
theWaqif can still be materialised with some adjustments on the properties. With this
method, Waqf remains. In fact, the jurists allow for part of the properties to be sold or dispose
(Istibdal), in which the proceeds from the sale can be used to enhance the value of the existing
or remaining value of Waqf properties. Majlis Ugama Islam Singapura (MUIS) has taken this
approach when it first initiated the development of Waqf properties.
The Muslim jurists also opine that new forms of subject matter are allowed for Waqf.
Thus, in addition to realty, other forms of moveable or chattels including tools, cash, labor,
usufruct, equities and shares, and services could be accepted as the subject matter of Waqf
(mawquf).
Muslim jurists also allow for temporary period of Waqf (Waqf al Muaqqat). Thus, even
though a donation or Waqf dedication is for shorter period, it is acceptable by some Muslim
jurists. The new views of the jurists encourage more Waqf and allows for more nature of
Mawquf. Waqf funds do not only need real property but also services or labor as well as cash
to pay for the work done on maintenance, change or exchange of the waqf property and also
equipment for development and management of the real property. To make the Mawquf
perpetual, and thus conform to the generally accepted concept of Waqf, one only needs to
amortize the income of such donations, as practiced by companies, or upgrade the tools and
chattels from time to time.
Ibn Arafa, a Maliki scholar defines perpetuity “as long as the property lasts” to include
such perishable assets as livestock, trees, items of furniture and mobile assets. Other jurists
argue that the ideal Awqaf model contains within it mechanisms by which it can perpetuate
itself, such that perishable assets can be held in perpetuity. For example, non-human or
biological assets such as farm animals, crops and orchards are self-generating and
regenerating assets.
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The above discussions show that Waqf may be classified as perpetual and temporary.
A perpetual Waqf however should be valid only if the subject matter is perpetual or
amortized, the donor intends so, and the objective of the Waqf is also forever or perpetual.
The effect of a valid Waqf:
1. Dedication of property to God – The property vests in God in the sense that nobody can
claim ownership of it.
2. Irrevocable – a Waqf once declared and complete, cannot be revoked. The Waqif cannot
get his property back in his name or in any other’s name. Nevertheless, in the case of
temporary Waqf, the benefit must be perpetual.
3. Permanent or Perpetual – Perpetuality is an essential element of Waqf. Once the property
is dedicated for Waqf, it remains for the Waqf forever.
4. Inalienable – Since waqf property belongs to God, no human being can alienate it for
himself or any other person. It cannot be sold or given away to anybody.
5. Pious or charitable use – The usufructs of the Waqf property can only be used for pious
and charitable purpose. It can also be used for descendants in case of a private Waqf.

1.11 THE TEN CONDITIONS OR STIPULATION

These 10 conditions or Five in Pair conditions are based on the Hanafi views. The conditions
if properly apply would make Waqf more dynamic.
Kuwait Awqaf Public Foundation has published them and made it as part of Regulation for
Waqf.

1. I’ta’a (giving) means that a Waqif is entitled to single out certain beneficiaries to benefit
from the Waqf proceed or part thereof on temporary or perpetual basis.
2. Hirman (deprivation) means that a Waqif is entitled to deprive some beneficiaries of the
proceeds temporarily or perpetuality.
3. Idkhal (introducing new beneficiaries) means a Waqif is entitled to introduce new
beneficiaries into the group of beneficiaries.
\4. Ikhraj (exclusion) means a Waqif can remove another beneficiary based on their
assessment on the need to assist a new beneficiary that has a much more urgent or important
need than another beneficiary.
5. Ziyadah (increase) means that a Waqif prefers certain beneficiaries to others by increase
their shares and salaries on a permanent basis. This may lead to a reduction to a entitlement
of other beneficiaries

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6. Nuqsan (reduction) means those beneficiaries portion and salaries are liable to reduction,
i.e. if portions and salaries are not defined, a beneficiary may be underpaid if compared to
other beneficiaries. This entails an increase in the portions if the reduction reaches the rest
of the beneficiaries.
7. Taghyir (change) combines all the above conditions as all of them imply certain changes. If
a Waqif gave him the right to change, he would be entitled to all the previous conditions. He
will also be entitled for salaries.
8. Tabdeel ( exchange) indicates the exchange of a dedicated asset. This includes two sides:
an exchange in the usufruct of a waqf asset as to change an agricultural land into a residential
land or exchange an asset for another asset.
9. Ibdal – Means the discontinuance of a Waqf in return for money or asset. i.e. selling the
waqf assets
10. Istibdal – Taking the new asset to substitute the old one. i.e buying another asset to
replace the older one. Once either of them is mentioned, the meaning indicates both, which
is selling an asset buying one to replace it.

References for definition

1. Munzer Qahf, al-Waqf al-Islami, Tatawurruh, Idaratuh, Tamiyyatuh, Damiscus &

Beirut: Dar al-Fikr, 2000
2. al-Sharbini, Mughni al-Muhtaj, kitab al-waqf, for hanbalies, see ibn Qudamah, al-
Mughni, vol.6 p 185).
3. Sahih Muslim, kitab al-wasiyyah, bab al-waqf, hadith 1632, p 15

1.12 OWNERSHIP OF WAQF

Jurists have several opinions on ownership of Waqf properties.
TABLE 8: JURISTS VIEW ON OWNERSHIP OF MAWQUF
Shafii School Ownership of Awqaf belongs to God and
what appears to be human ownership is in
fact a matter of trusteeship.
Hanafi and Hanbali Schools Waqf belongs to the beneficiaries although
their ownership is not complete in the sense
that they own only the benefit or usufruct
and are not permitted to dispose of the

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property or use it in any way different from

what was decreed by the founder.
Ur-Rahman (1980:106) The property of the Waqf cannot be given
away to the trustee. This property is
dedicated to God.
Maliki jurists Maliki jurists are of the view that a Waqf
remains in the ownership of the founder and
is inherited by his/her legal heirs. Thus the
Malikis do not insist on the perpetuity of the
Waqf like the Shafeis, Hanafis and Hanbalis.

According to Sheikh Zarqa “everything in waqf is subject to ijtihad [legal interpretation] and
there is no single ruling in it that gained unanimity except that the Waqf purpose must be
benevolent or piety (birr)”. This opinion is important as it maintains the dynamism of Waqf
within the Shariah ruling.

1.13 WAQF DEED (WAQFIYYA)

Waqf deed refers to the Legal Document created by Donor (Wāqif) which clarifies the purpose
of the Waqf. The legal document specifies the nature of the expected benefit or purpose, the
trustee-manager(s) or Mutawalli or Nazir, the method of compensation of the trustee
manager, usually a part of the earnings or benefits from the assets under Waqf.

Regarding the format of these waqfiyyas, some principal elements of the dedication are as
follow:
1. Basmala
2. Hamdala.
3. Tasliya
4. Identification of the donor (al-waqif)
5. Formula of endowment, incorporating an identification of the text endowed.
6. Identification of the beneficiary or beneficiaries (al mawqüf lahu/lahum).
7. Identification of the person(s) to whose account the reward for this pious act is to be
ascribed.

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8. Statement of the lawfulness and immutability of the endowment grammatically linked to

the formula of (5) by a cognate accusative: waqqafa / waqqafat / waqqaftu … waqfan
…sahihah… sharıfian.
9. Statement of stipulations inherent in a waqf and an admonition against changing them,
often quoting Quran 2:181.
10. Identification of the administrator (Nazir) of the endowment and who replaces him/her
on his/her death.
11. Identification of the scribe.
12. Date of drawing up the deed.
13. Terminal invocation.
John Hunwick transcribed eight documents during a brief visit to Lamu on the Kenyan coast
in the summer of 1980. The first three documents are preserved in the Lamu Museum, while
the rest are in the possession of Dr. J. de Vere Allen. The deeds, which are generally recorded
on the last folio of the work concerned, date from the late nineteenth and early twentieth
centuries; the earliest, no. 6, is dated 1866, and the latest, no. 1, bears the date 1922.

1.13.1 Waqf Sighah (Form)

a. The expression must carry the meaning of waqf;
b. The effect of the sighah must be permanent
c.The effect must also viable and able to be implemented. Hence, if a condition is attached, it
is not a complete Waqf.
d. The recipient must be certain if the Waqf is for specific Waqf. If the Waqf is general, then
the recipient must not be definite.
For example, I give this property for permanent use by A… I give this land for use of mosque
A forever.

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