(5) WAQF IN ABU ZAHRAH'S AL-WAQF (F16)

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A REPORT ON THE HISTORY OF WAQF IN ABŪ ZAHRAH’S BOOK AL-WAQF

By

Muhammad Amin A. Samad

Dr. R.N. Verdery February 13, 1975

SOCIAL INSTITUTION Of ISLAM: AWQĀF

397 – 706 D

INSTITUTE OF ISLAMIC STUDIES MCGILL UNIVERSITY

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INTRODUCTION In this report I shall deal with the waqf in Egypt from the time of Ikhshīd (10the century A.D.) until the abolition of the family waqf according to Act. No. 180 in 1952, as mentioned in Abū Zahrah’s book al-Waqf. I shall also refer to other sources, especially dealing with the possession (milkiyyah) of the waqf.

THE GREEDINESS OF THE RULERS (’UMARĀ’) IN THE AWQĀF In this chapter the writer said that before the Akhshīd period, in spite of the great quantity of awqāf in Egypt, the waqfiyyah was only on buildings and houses. He said that al-Maqrīzī reported that the waqfiyyah was applied only to houses. Lands had never been touched.

Even when Ibn T.ūlūn (868-84) built the mosque, the clinic, and the drinking place, and founded many awqāf, he founded on houses and buildings, and he had never interfered any piece of the land of Egypt. 1 The reason was that the land of Egypt was considered to be the property of the state; the farmers did not possess the land; they merely hired it, and the tributes they paid were its fares. This was the opinion of the majority of the culamā’ at that time, e.g., the opinion of Abū Yaclā (in al-Ah.kām al-Sult.āniyyah), and Imām al-Nawawī, the great scholar of Shāficī school in Syria.2 This prohibition from establishing waqf-land did not last long.

During the time of Ayyubides (13th-14th century AD) the establishment of waqf from cultivated lands was allowed, and with the increase number of the awqāf, the affairs had three departments (dawāwīn): a. for the awqāf of the mosques b. for the awqāf of the H.aramayn and other kinds of beneficence, and c. for the family awqāf (al-awqāf al-ahliyyah) Most of the awqāf in the Arab land were based on the H.anafī and Shafi ī schools, where the awqāf were perpetual, and sometimes their expense and management were unknown due to the lapse of time. 3 c

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In Egypt some rulers tried to possess the awqāf. The writer mentioned that al-Maqrīzī reported in his Khit.at. that al-Nās.ir Muh.ammad b. Qalāwūn (1285-1341) tried to seize half of the awqāfland of the mosque which was 130 000 feddans (1 feddan = 4.200 m 2).4 Some rulers, with the help of some godless (fāsiq) judges and witnesses had seized the waqf through its liability to substitution.

Among them was Jamāl al-Dīn Yūsuf, who was aided by Kamāl al-Dīn c Amr b. al-cUdaym, the qād.ī of the H.anafī school. The writer mentioned the report of al-Maqrīzī, that if Jamāl al-Dīn wanted to seize a waqf he appointed two witnesses to give a statement that this building etc. was harmful to the vicinity and the passage, and to avoid this harm it should be substituted. The qād.ī al-qud.āt Kamāl al-Dīn b. cAmr gave his judgement to substitute it. As Kamāl al-Dīn was greedy in this work as well as others, the judgement was given in his favour for the substitution of prosperous palaces and good houses in this way, and as “people follow the religion of their rulers”, anyone who wished to sell or buy a certain waqfiyyah, he did the same way with the judge mentioned before through influence (jāh) or money, so that the judge might give his judgement in accordance with his will. 5 This practice happened in the 7 th, 8th century A.H. and after. Its influence could be traced in the opinions of jurists at that time. Some of them were very strict in their fatāwā concerning the substitution of the waqf; others were more than disapproval of their deed. Abū Zahrah mentioned the report of al-T.urt.ūsī that this problem had been traced back to Abū H.anīfah and had been practiced in Egypt. Some people did it in the proper way; others did it to get the prosperity of this world, and to make themselves near to the ruler. 6 The jurist who were strict in the substitution of the waqf imposed conditions of knowledge (cilm) and justice (cadālah) of the judge to legalize his judgement on the substitution of the waqf, without which his judgement would be considered void, though the H.anafī school accepted the judgement of an unjust judge, who should be dismissed.7 According to Ibn Nujaym (926-70/1520-63), a distinguished H.anafī scholar, the substitution of the waqf should be with a real estate,

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and not with money, so that it would not be abused. As reported by Abū Zahrah he said: There should be another condition in our time, i.e., the waqf should be substituted with a real estate, and not with dirhams and dinars, as we have seen inspectors took it, and it rarely happened that they bought a substitution for it, and I do not see any of the judges who makes investigation in spite of great quantity of substitutions in our time, though I have warned some judges about it, and they intended to do it, but later they left it.8

THE IDEA OF ENDING THE AWQĀF The idea of ending the family waqf is not new. The king al-Z.āhir Baybars (1260-77) intended to apply the concept of the state ownership of land. Due to the war with the Tartar he imposed many taxes in Egypt and Syria. He also tried to seize the whole land, including the awqāf lands. He went to every owner of the estate and asked him to present a document to prove his ownership. If he could not do it, and this usually happened, his estate was taken. This practised was opposed by Shaykh Muh.y al-Dīn al-Nawawī and other c ulamā’. So, Baybars followed another way by imposing heavy taxes on the people and the waqf. Al-Nawawī wrote a letter in which he said: “The people of Syria are in distress and weak this year due to the lack of rain, the increase of prices, the lack of crops and plants, and the devastation of cattle, and you know that kindness should be given to the people, and the advised given [to the ruler] is for his and people’s behalf.”9 In the 8th century A.H. (14th century A.D.) Barqūq had also the idea of ending the family waqf. He held a meeting with the culamā’ and qud.āt, among whom was Sirāj al-Dīn b. Ruslān al-Balqīnī, and asked their opinion about his intention to end the family waqf, saying that the lands of Bayt al-Māl had been taken from him with trick by the umarā’, and they established them as waqf after the time of al-Nās.ir Muh.ammad b. Qalāwūn (1285-1341). These pieces of land were not considered waqf, but fund (irshād), which was legal, since it was spent

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according to regulations of Bayt al-Māl, e.g., mujāhidūn, orphans, mosques, the poor, etc.10 This policy of ending the family waqf led to abuse. The rulers (umarā’) rented these lands with low salary, and then hired them with high salary. When Barqūq died, all the awqāf lands in Egypt and Syria were in the hands of the umarā’.11 THE ESTABLISHMENT OF AWQĀF TO PROTECT THE ’UMARĀ’’S PROPERTY During the time of the Mamelukes (13the-14th century) the land in Egypt and Syria belonged to the ’umarā’. To protect their lands and palaces from falling to the hands of conquerors, the ’umarā’ used protection by means of waqf to the mosque from which their offspring would have big benefit. The example was that in 827 A.H. Barsbay (1422-38) dedicated all his property in Cairo as waqf to his mosque which he called al-Masjid al-Ashrafī, and gave salary to the employees at this mosque, not as a share, but with dirhams and dinars; for example, the mu’adhddhin received 1200 dirhams, the h.āfiz. al-Qur’ān received 1000 dirhams, the khāt.ib of Jumcah and the two cĪd prayers who was also imām at the congregational prayers received 500 dirhams, the scholar who was specialized in the waqf received 300 dirhams; the rest was for himself and his offspring.12 To ensure the safety of their lands, the ’umarā’ imposed the condition that their awqāf lands were not substitutable, no matter how heavy was the damage.13 When Muh.ammad cAlī (1769-1849) measured the land of Egypt he found out that the cultivated lands were two million feddans, of which six hundred thousand feddans were awqāf lands, i.e., about onethird of the whole cultivated lands. These awqāf lands had been exempted from tax, and Muh.ammad cAlī imposed on the half of the normal tax, i.e., three and a half rials for every feddan. Later, he imposed on them normal tax. When many people came to the culamā’,

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who in their turn went and complained to Muh.ammad cAlī, he promised to repair the mosques.14

THE SEIZURE OF THE LANDS OF EGYPT As Muh.ammad cAlī had promised to repair the mosque, and that he had in mind the idea of state ownership of lands, where there was nobody who stood against this idea like Imām al-Nawawī in the past, he took over the lands, including the awqāf ones. He asked the landowners to present documents as proof of their ownership.15 In his abolition of the family awqāf Muh.ammad cAlī was supported by the muftī of Alexandria, Shaykh Muh.ammad Mah.mūd alJazayrlī,16 due to their abuse, i.e., the deprivation of some inheritors, the delay of payment of one’s debt in his lifetime. In his fatwā the shaykh said that the waqf was one of which many controversies arose among the leaders of the ijtihād. Abū Yūsuf gave more facility in establishing awqāf, i.e., through one’s statement. Muh.ammad b. alH.asan gave the condition of being delivered to the mutawallī.

According to Abū H.anīfah, as reported by Muh.ammad b. al-H.asan, such kind of waqf (family waqf) was void, either it was perpetual or temporal. Shams al-A’immah al-Sarakhsī reported the same thing from Abū H.anīfah, either the constituent founded the waqf in his health or in his illness, except if he have a testament to make it waqf after his death.17 So, in 9 Rajab 1263 A.H. Muh.ammad cAlī issued a decree to ban the family waqf, as the qud.āt at that time was directly under the Sultan of the Ottoman Empire, and that Muh.ammad cAlī’s power became decreased, his decree was not applied successfully. 18 During the time of Sacīd (1854-63) he issued a decree in August 1858, where he distributed the cultivated lands to the people who deserved them, as cultivators, not as landowners, but as the owners of the profit of the lands. As the awqāf had become the property of the state, the awqāf of the mosques and charitable purposes were replaced by the funds of these things.19

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When a decree in 15 April 1891 was issued to give full possession of the land, the waqf became lawful to all. People became eager to found awqāf for their descendants.20 In order to protect the awqāf, especially the family waqf, a department (dīwān) for the awqāf was established in 1895, which became later a ministry, according to the decree of 20 th November 1913. During the union between Egypt and Syria, this ministry operated in the awqāf in both regions.21 In 1926 some members of the Parliament urged to reform the awqāf regulations; even some of them called for the elimination of the waqf with the following reasons: 1. The increase of waqf on cultivated lands with the average 19 000 feddans per year, which were almost one-eighth of the whole cultivated lands in Egypt, which were 770 000 feddans, and usually the waqf lands were not cultivated well.

2. The increase of awqāf ahliyyah caused unemployment.

3. The loss of the rights of the people who deserved the waqf, as the inspectors took their rights, and sometimes hired the awqāf with high interest, and possessed the crops before the harvest time.

4. Continual disputes among the inspectors of the awqāf, and the judicial problems that broke the family relationship.

5. As time passed for some awqāf so that the number of descendants who had rights on the awqāf increased, each of them had a small amount of share, until some of them got about 20 piastres per month. If every holder of this small amount of share bought them, it would become a capital which would be exploited.

6. The inspectors of the awqāf did not care for the awqāf, as it should be by the owner. 22

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ACT NO. 48 OF 1946 ON THE WAQF For the above-mentioned reasons the act no. 48 was issued and “served as a model for the Lebanese law of 1947 on waqf, and a Syrian act of 1949 anticipated the Egyptian act of 1952 in abolishing the private family waqfs.”.23 This act is still affected in Egypt, and was adopted by Lebanon in 1951.

There are three aims of this act: 1. To make the waqf management flexible. Examples: Any waqf is considered non obligatory as long as long as the founder is alive, except the waqf of mosques. The family waqf is temporal, i.e., for sixty years or two generations (t.abaqatayn). Waqf khayrī can be either temporal or permanent, except the waqf of the mosque, which is permanent. The conditions imposed by the constituent are not considered, if they do not agree to the spirit of Islamic law (ghayr muttafiq maca maqās.id al-sharc), e.g., the condition of remaining unmarried. There is possibility of ending a waqf if damage is found and if there is no way to repair or substitute it. In this case the judge can give his judgement to sell or to distribute it among the beneficiaries. If the constituent is still alive it is returned to him. Movable things and shares can be awqāf, and there is possibility of exploiting their substitutes.

2. To protect the inheritors from the injustice of the constituents, especially the descendants, husband and wife, and parents, as they have rights for two-third of the inheritance. If a constituent dedicated all his property for awqāf, the beneficiaries must be those who have rights two-third of the property, and he (the constituent) has right on the rest, as the act no. 71, 1956, like the act of testament, permits the constituent to found waqf from onethird of his property to his inheritors. The beneficiary can be deprived from his share in the waqf if he kills the constituent and if the killing prevents him from having share in inheritance, or if the constituent deprives him from some or all his hare for a reason accepted by the court of law (mah.kamah), e.g., if he marries a foreign woman which is harmful to his character and religion.

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3. a. To protect the waqf from its inspector (nāz.ir), e.g., he is responsible for the damage and interest of the waqf; debt from the waqf is unlawful, except it is for the management and exploitation of the waqf itself. b. To protect the rights of the beneficiaries from the inspectors, e.g., the inspector is not allowed to use more than one-fifth of the net income for the reparation of the essence of the waqf (tacmīr acyān al-waqf) except with the permission of the beneficiaries or the court (mah.kamah).24 According to this act, the waqf that is terminated is turned back to its owner (the constituent), and he has full right in its management, and it becomes liable to be inherited (except the waqf which cannot be returned back to its founder). After the death of the constituent the waqf khayrī ends with the termination of its fixed time, or with the extinction of the beneficiaries before the termination of the fixed time, and the property belongs to the inheritors of the constituent at the time of his death, or to their inheritors; and when they are extinct, the property belongs to Public Treasure. If the waqf is terminated by this act because of its damage, or lack of its share, it belongs to the beneficiaries who have rights at the time the act were issued.25

THE ABOLITION OF FAMILY WAQF According to act no. 180 in the year 1952 the family waqf is abolished in the U.A.R.26 In the early period of Islam there was no term waqf ahlī or waqf khayrī. All awqāf were called s.adaqah.27 According to Shaykh Khallāf, in the time of the Prophet and his Companions there was only waqf khayrī, while waqf ahlī came later in the 2nd century A.H. Shaykh Muh.ammad Abū Zahrah said that the origin of the waqf is charity, i.e., it was purely for charitable purpose, where the family and children of the constituent had no share from it. After the time of the Companions people began to be away from the right source and misused this legal

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waqf to oppose the rule of inheritance. On this opinion of the jurists the act no. 180 of 1952 abolished the family waqf.28 This opinion was not accepted by Prof. Muh.ammad Mus.t.afá Shalabī. According to him waqf ahlī and waqf khayrī had been practised during the early period of Islam.29 According to this act, the property, after the abolition of the family waqf, is returned to the constituent if he is still alive and if he imposed the condition to have the right to take it back. This is taken from Mālikī and H.anafī schools. It the constituent is dead or alive but he prevents himself from taking it back, it belongs to the people who deserve it, and distribute it among themselves.30

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ENDNOTES 1

Muh.ammad Abū Zahrah, al-Waqf, Cairo, p. 16; he cited from al-Maqrizī, al-Khit.at., vol. 4, p. 83.

2 Abū Zahrah, al-Waqf, p. 16; he cited from: Abū Yaclā, al-Ah.kām alSult.āniyyah, Ibn al-Humām, Fath. Al-Qadīr, and H.āshiyah of Ibn cĀbidīn without mentioning the volumes and the pages.

3 Abū Zahrah, al-Waqf, p. 17.

4 Ibid., citing from al-Maqrīzī.

5 Ibid., pp. 17-18 cited from Maqrīzī.

6 Ibid., p. 18, citing from al-Fatāwā al-T.art.ūsiyyah, pp. 208-209.

7 Ibid. cityed from Ibn cĀbidīn, vol. 3, al-Iscāf, n.p. and Ibn Nujaym, alBah.r al-Rā’iq, vol. 5, p. 241.

8 Ibid., p. 19, cited from Ibn Nujaym, al-Bah.r, vol. 5, p. 241.

9 Ibid., pp. 20-21, cited from al-Suyūt.ī, H.usn al-Muh.ād.arah, vol. 2, pp.

67-68 and 70-71.

10 Ibid., p. 23, citing from al-Fatāwā al-Mahdiyyah, vol. 2, p. 660, Maqrīzī, Khit.at., n.p., Suyūt.ī, H.usn al-Muh.ād.arah, n.p., Ibn Nujaym, al-Bah.r, and Ibn c Ābidīn al-Iscāf, n.p.

11 Ibid., p. 25, citing ffrom Maqrīzī, Khit.at., vol. 4, p. 86.

12 Ibid., p. 25, citing from Ishhār Waqf Barsbay in the Dār al-Kutub alMis.riyyah, Cairo, no. 339.

13 Ibid., p. 26.

14 Ibid., p. 27, cited from Ta’rīkh al-Jabartī, vol. 4, p. 143; what I found was on pp. 141 and 142, and I did not find the statement that Muh.ammad cAlī imposed normal tax later.

15 Ibid.

16 See Muh.ammad Sallām Madkūr, al-Waqf (Cairo: Dār al-Nahd.ah alMis.riyyah, 1380/1961), p. 12.

17 Abū Zahrah, al-Waqf, p. 30.

18 Ibid., pp. 30-1; see also Madkūr, al-Waqf, pp. 12-13.

19 Abū Zahrah, al-Waqf, p. 31.

20 Ibid., p. 33.

21 Ibid., p. 34.

22 Ibid., pp. 34-38.

23 See Joseph Schacht, An Introduction to Islamic Law (Oxford, 1964), p.

103.

24 Abū Zahrah, al-Waqf, pp. 39-43.

25 Madkūr, al-Waqf, pp. 87-89.

26 Abū Zahrah, al-Waqf, pp. 44-46.

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See Muh.ammad Mus.t.afá Shalabī, Ah.kām al-Was.āyā wa ‘l-Awqāf (Mat.ba ah Dār al-Ta’līf, 1384/1964), 2nd ed., p. 340.

28 Ibid., footnotes on pp. 340-341.

29 Ibid., pp. 340-344.

30 Madkūr, al-Waqf, pp. 87-90. c

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BIBLIOGRAPHY A. Used by Abū Zahrah: Al-Fatāwā al-T.art.ūsiyyah.

Al-Fatāwā al-Mahdiyyah, vol. 2 Ibn Abī Yaclā. Al-Ah.kām al-Sult.āniyyah. Cairo, 1356/1938 Ibn cĀbidīn. Was.āyā. Third edition. Būlāq, 1323 AH. Ibn al-Humām, Fath. Al-Qadīr. First edition. Al-Āmīriyyah, 1316 AH. Ibn Nujaym. Al-Bah.r al-Rā’iq. Vol. 5.

Al-Iscāf.

Ishhār Waqf Barsbay. (Kept in Dār al-Kutub al-Mis.riyyah as one of the historical preserved materials, no. 339).

Maqrīzī, Taqī al-Dīn al-. Kitāb al-Mawāciz. Wa ’l-Ictibār bi Dhikr alKhit.at. wa ’l-Āthār (al-Khit.at. al-Maqrīziyyah), vol. 4.

Suyūt.ī, Jalāl al-Dīn al-. H.usn al-Muh.ād.arah.

Ta’rīkh al-Jabartī.

B. Added to the paper: Madkūr, Muh.ammad Sallām. Al-Waqf min al-Nāh.iyah al-Fiqhiyyah wa ‘l-T.abaqiyyah. [Cairo]: al-Nahd.ah al-Mis.riyyah, 1380/1961.

Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964.

Shalabī, Muh.ammad Mus.t.afá. Ah.kām al-Was.āyā wa ’l-Awqāf. Second ed. [N.p.]: Mat.bacah Dār al-Ta’līf, 1384/1964