Waqf (also spelt wakf) is an Arabic word, literally meaning standing, stopping, or halting. It signifies, according to Thomas Patrick Hughes, “appropriation or dedication of property to charitable uses and the service of God. The object of such an endowment or appropriation must be of a perpetual nature, and such property or land cannot be sold or transferred." (Dictionary of Islam, 1885, p. 664).

Still, it would be erroneous to presume that a waqf is solely given out for the benefit of the public without any private or familial interests. Syed Ameer Ali, Bar-at-Law, states — in his Tagore Law Lectures (1884) — that waqfs may be divided under three heads, viz. public, quasi-public, and private, although Mahommedan law recognises only two classes of waqfs — public and private — and draws a sharp distinction between them. Waqf for masalih-i-amma, viz. for public works for utility or charitable purposes, is regarded as a public waqf. All other trusts are treated as private (The Law Relating to Gifts, Trusts, and Testamentary Dispositions Among the Mahommedans, 1885, p. 178).

Ameer Ali claims there is no particular term for private waqf. However, by the turn of the 20th century, a term for private waqf had either been discovered or invented — waqf-alal-aulad (waqf for the descendants). Muslim society was in ferment after the Privy Council, in the 1894 case of Abdul Fata Mahomed Ishak v Russomoy Dhur Chowdhuri, ruled against the admissibility of private waqf, since the motive was essentially familial rather than religious or charitable.

Under Islamic law, a private trust would become public upon the expiration of the familial line. Such a prospect is remote in reality, given that the Muslim family size has traditionally been above the national average. The stronger likelihood is that someone in the line of descent may attempt to partition, mortgage, or sell off the property illegally, which could lead to internal or external litigation. The Bombay High Court judgment in Mahabir Prasad v Syed Mustafa Husain, dated 19 March 1937, shows that the tendency to deny the existence of waqf could arise in the very first generation itself due to financial hardship in the family.

However, let us revert to the subject of Muslim agitation. Around 1910, as Peter Hardy (1972) informs, the ulama (Muslim clerics) and the conservative leadership of the Muslim League (established 1906) joined hands to persuade the government to pass an Act overriding the Privy Council’s 1894 decision invalidating family waqfs on the grounds that their ultimate reversion of benefit to the poor was illusory (The Muslims of British India, p.180).

Under the Indian Councils Act, 1909 — popularly known as the Morley-Minto Reforms — non-official members in the Indian Legislative Council secured the right to introduce Private Members’ Bills. Muhammad Ali Jinnah took advantage of this provision to introduce the Mussalman Waqf Validating Bill, 1911, in the Council on 17 March 1911. The Muslim League, Jinnah noted,........

© News18