Waqf

Question

Please explain the definition of waqf?

Answer

The Arabic linguistic meaning of Waqf is to keep and hold something in one’s possession. There is a slight difference of opinion with regard to the Islamic definition of Waqf. The preferred opinion amongst the scholars, however, is based on the opinion of Imam Abu Yusuf, which is “Subjecting the item to the laws of ownership by Allah and using the benefits of the item for charitable causes”. In simple words the Waqf item will no more belong to any person, rather it will now solely belong to Allah. This is for legal administrative purposes; otherwise, in reality, everything belongs to Allah Ta’ala. 

A person will then be appointed to look after the property. This person may be appointed by the person who was the initial owner of the item, or he can later be appointed by the Islamic judge of the area. Considering the fact that this is also a legal exercise, the Waaqif (donor) will have to be free (not a slave), mature in understanding, mature in age, not restricted because of mental
deficiencies, ignorance or because of being overly indebted. 

The entity being made Waqf has to be have monetary value, has to be specified (if there is more than one of the same item existent, it hasto be defined so that it is clearly identifiable), has to be in the ownership of the Waaqif, should not be such property in which there are shares of different people.

Another aspect to keep in mind is the words to be used when making the item Waqf: 

a) The Waqf should not be subject to any such condition which has no possibility of taking place. 

b) The Waqf should not be subject to his death. If he does use such words then, this will not be regarded to be a Waqf, and he holds the right to retract his words before his death. 

c) The Waaqif should not make the Waqf while holding the right retract his words. (This in normal items will make the entire Waqf invalid, however in a Masjid, the Waqf will be valid and the condition will be invalid). 

d) The item has to be made Waqf for eternity. (One may clearly mention the Waqf being for an eternity or one may mention such a beneficiary who will always be found e.g. poor people, students, people in general. In the case where he mentions only the words of Waqf, or he specifies such a beneficiary who will come to an end e.g. my son but, he also clearly mentions the Waqf being eternal, then according to Imam Muhammad this Waqf will be invalid and according to Imam Abu Yusuf it will be valid, and this is the preferred view.) 

e) The Waqf has to be done in an avenue which is charitable e.g. if one makes a piece of land Waqf for rich people only then this is not recognised as a charitable cause in the light of Shari’ah.

The rights of the Waaqif or the person who gave the item in Waqf can be summed up in the following ruling, “All conditions put by the Waaqif with regard to the Waqf item has to be adhered to unless the clause put forward will be a cause for one of the following:- 

a) The essence and the purpose behind the Waqf being lost. 

b) Deficiency or harm coming to the people for whom the Waqf was stipulated. 

c) Harm coming to the Waqf item itself.” 

A few examples to clarify each of the above scenarios:- 

A. Example a person leaves a building to be rented out and the income to be used for the benefit of the poor, but the Waaqif puts a condition that the building cannot be rented out for more than a year. The people in the locality are such that they refuse to rent the building for less than a year because of which the building gets no income and the purpose is not attained. Such a clause will not be adhered to because the purpose of the making the building Waqf itself is being lost. 

B. The above example can also be used to understand a condition because of which the people, for whom the Waqf item was meant, do not benefit anymore. 

C. If the person puts a condition that the income of the Waqf item will firstly be utilized on the poor instead of renovating and fixing the Waqf property and a time comes when the property threatens to become inhabitable if left unattended.

Besides the above mentioned all other conditions set by the Waaqif have to be adhered to. It should be noted that the Waaqif may appoint himself to be the caretaker of the property. If he also falls under the group specified by him as the beneficiaries of the property, he may also benefit from it. However once the property is Waqf, he the Waaqif will not be granted any preferential treatment in utilizing the different amenities of the property. He as the Waaqif may however add more clauses to restrict the beneficiaries of the property. In such a scenario where the Waaqif restricts it to a certain type of people who after a time will come to an end, the Waqf property or item will then be utilized to benefit a general group of people who are eligible for charitable wealth.

Checked and Approved By:

Mufti Muhammed Saeed Motara Saheb D.B.

References

(رد المحتار ج٤ ص٣٣٨)

(مجمع الأنهر ج١ ص ٧٣٣)  

(الفتاوى الهندية ج ١ص١ ٣٥)

(رد المحتار ج٤ ص ٣٣٩)  

(رد المحتار ج٤ ص ٣٤٣) 

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