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Institutional
ASAF A.A. FYZEE ON WAKF
Mar 2009


Considering the enormous extent of lands and properties under the control of Wakfs in Muslim countries, drastic changes have been brought into operation by some governments. Professor Fyzee in his book Outlines of Muhammadan Law (OUP, Delhi) has given, in brief, the reasons for such changes and also his own views on the institution of wakf .

He writes : The importance of the institution will be better understood if we take into consideration the enormous extent of wakf land - or, the possessions of the DEAD HAND - in the various countries of Islam. In the Turkey of 1925, three-fourths of the arable land, estimated at 50,000,000 Turkish pounds, was endowed as wakf. At the end of the nineteenth century, one-half of the cultivable land in Algiers was dedicated. Similarly, in Tunis one-third, and in Egypt one-eighth, of the cultivated soil was 'in the ownership of God'. But it was already realized by the beginning of the twentieth century, first by France and later in Turkey and Egypt, that the possession of the Dead Hand spelled ruin. The institution of wakf was in some respects a handicap to the natural growth and development of a healthy national economy.

In 1830, the French Government took over the habous in Algiers, and later on in Morocco. Elsewhere Government control was made more stringent. In 1924, the Turkish republic abolished the Ministry of Wakfs and it was taken over by a general directory, or by the secular state administration, as we would call it. In Egypt it was Muhammad Ali who first confiscated all agricultural wakfs and compensated the beneficiaries and in 1924 the Wakf Ministry came directly under the control of parliament. Although in Russia wakfs existed in Muslim districts for centuries, soon after the revolution such endowments were confiscated and declared state property. 

We must now consider briefly the advantages and disadvantages of the institution. The religious motive of wakf is the origin of the legal fiction that wakf property belongs to Almighty God: the economic ruin that it brings about is indicated by the significant phrase "The Dead Hand". Wakf to some extent ameliorates poverty, but it has also its dark side. When a father provides a certain income for his children and descendants, the impulse to seek education and the initiative to improve their lot gradually decrease. Charitable aid often keeps people away from industry, and lethargy breeds degeneration. Furthermore, some people who desire fame by making foundations and endowments obtain property by shady means, amounting even to extortion and exploitation. Agricultural land deteriorates in the course of time; no one is concerned with keeping it in good trim; the yield lessens, and even perpetual leases come to be recognized. 

In India, instances of the mismanagement of wakfs, of the worthlessness of mutawallis (managers), and of the destruction of wakf property have often come before the courts. Considering all these matters, it can by no means be said that the institution of wakf as a whole has been an unmixed blessing to the community.

If we examine the conditions relating to wakfs in Muslim countries in general, and in India in particular, two general tendencies will appear with unmistakable clarity. First, everywhere there is a tendency towards greater state control; and secondly, there is probably a move in the direction of reduction of wakfs, and particularly of personal and family wakfs. As illustrative of the former, we have the numerous Wakf Acts all over India; of the latter, it is impossible to be certain, but people are beginning to realize the disadvantages of tying up property in perpetuity, where succeeding generations obtain successively smaller fractions of the income, part of which - if not the whole - is often squandered in vexatious and frivolous litigation, and duly 'absorbed' by unscrupulous lawyers. 

Speaking for myself, and in the light of actual experience, it is unfortunate that the opinion of Lord Hobhouse in Abul Fata's Case did not prevail in India, although it is contrary to the law laid down by ancient authority

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