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Institutional
WHAT IT IS AND HOW IT BEGAN?
Mar 2009



WAKF or Habs is properly an Arabic masdar meaning "to prevent, restrain". In Muslim legal terminology it means primarily "to protect a thing, to prevent it from becoming the property of a third person (tamlik)" (Sarakhsi, Mabsut, xii, 27). By it is meant I, state land, which on being conquered passed to the Muslim community either by force or by treaty and remained in possession of the previous owners on payment of the kharadj and could neither be sold nor pledged by them and 2. commonly a pious endowment, which is defined in various ways in the Sharia according to the school. Following up these definitions we may say that by wakf (plur, awkaf) is meant a thing which 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.

The main principles of Fikh
1. The founder (wakif) must have full right of disposal over his property; he must therefore be in full possession of his physical and mental faculties, be of age and a free man (akil, baligh, hurr). He must further have unrestricted ownership in the subject of the endowment. Endowments by non-Muslims are therefore only valid if they are intended for a purpose not incompatible with Islam (e.g. they must not be intended for Christian churches or monasteries).
2. The object of the endowment (mawkuf) must be of a permanent nature and yield a usufruct (manfaa), so that it is primarily real estate. There is a difference of opinion about movables.
3. The purpose of the endowment must be a work pleasing to God (kurba) although this is not always apparent on the surface. Two kinds are distinguished : wakf khairi, endowments of a definitely religious or public nature (mosques, madrasas, hospitals, bridges, waterworks), and wakf ahli or dhurri, family endowments, for example for children or grand-children or other relations, or for other persons; the ultimate purpose of such a foundation must however always be kurba, for the poor for example.
4. The form need not be a written one, although this is usually the case.
5. The following conditions are further necessary for the completion of a valid wakf :
a. It must be made in perpetuity (muabbad), which in the case of foundations for definite individuals is managed by allotting the proceeds after their death to the poor. It is therefore also inalienable.
b. It must come into force at once.
c. It is an irrevocable legal transaction.

Origin : According to the general opinion of the Muslims there were no wakfs in Arabia before Islam, neither in houses or lands. The fukaha trace the institution to the Prophet although there is no evidence of this in the Kuran. In comparison with other things the support for this institution in tradition is very slight although it is always said by the legists that the companions of the Prophet and the first caliphs used to make wakfs. In a tradition of Anas b. Malik it is said that the Prophet wished to purchase gardens from the Banu I-Nadjdjar in order to build a mosque; they refused to take the purchase money however and gave the land for the sake of God. According to a tradition of Ibn Omar, on which the legists lay chief stress, 'Omar, later caliph, at the partition of Khaibar acquired lands (ard) which were very valuable to him and asked the Prophet whether he should give them away as sadaka. The Prophet replied: "Retain the thing itself and devote its fruits to pious purposes."

(Source : The Encyclopaedia of Islam : Volume IV, E.J. Brill Ltd, Leyden/Luzac & Company, London, 1934).

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