Introduction The waqf (pl. awqāf) has been described as the most important legal institution in the Islamic world. It provided the foundation for Islamic civilization, as it was interwoven with the entire religious life and the social economy of Muslims. From mosques, schools and hospitals to highways, bridges, markets and inns, most of the public sector was financed through awqāf. The waqf provided the only permanent organisational form under Islamic law. Therefore, the waqf was the most suitable legal form for financing long lasting services. Small wonder that the entire sector of public services in the Muslim world was managed through awqāf before the advent of the modern state in the twentieth century. Interestingly, the waqf was not limited to the provision of public services. A large number of waqf properties were reserved in favour of the founder and his/her family members, generation after generation. However, even in such private awqāf, the ultimate beneficiaries were the poor of society or public services. Therefore, the waqf as an institution encompasses both private and public functions. The aim of this paper is to examine the practice of awqāf in British India. It provides a factual analysis of awqāf mentioned in the Privy Council judgments. It starts with a description of the Privy Council judgments handed down between the second half of the nineteenth century and the mid twentieth century. These cases came not only from various provinces of India, but also from all over the Muslim populated areas of the British Empire. This analysis of awqāf, however, is limited to the Indian cases. An effort has been made to deconstruct various types of interests in awqāf by classifying them in accordance with the extent of public or private interest involved in each waqf. There were significant differences in the property law regime in various provinces of India. Therefore, this paper also analyses the various types of awqāf in
number of cases the drawing of this distinction was precisely the controversy that was to be resolved by the courts. The following section addresses this issue. Public/Private Distinction The most difficult faced by judges in the British Courts was to establish a public/private distinction in cases of Muslim endowments. The prototype of public waqf was a mosque with no private interests while the paradigm example of a family waqf was a settlement in favour of oneself and one’s children generation after generation with ultimate dedication to a mosque or the poor of a community. However, even in cases of a waqf in favour of a mosque the settlor or his descendants could be the hereditary mutawallī with a hefty salary. This salary at times consumed a substantial part of the income of the waqf. The traditions of the Prophet and the earliest Fiqh treatises did not distinguish between a family waqf and a public waqf, though the term waqf ‘alā (in favour of children) appears in the earliest treatises on waqf written in the ninth century. We also find the terms waqf khāṣ (special) and waqf ‘ām (general) in classical Fiqh texts. The later treatises used the terms waqf ahlī and waqf khayrī to denote family waqf and charitable waqf respectively. However, no separate rules were developed for these two types of awqāf apart from some distinction in procedural issues. The qāḍī had broader powers to supervise the waqf ‘ām/khayrī (general/charitable) as against the waqf khāṣ/ahlī (special/family). The exact distinction between the two types remained elusive because the private and public interests were intermixed in each type. This reflects the social context in which classical Islamic law developed. In that context, a sharp distinction between public
taken into account. In most cases, enough information is provided either in the waqf deed or the judgment, and where such information is not available, the documents filed with the Privy Council, technically called the ‘paper book’ have been explored. Paper books contained all the documentary evidence including the recorded statements of witnesses. The following shows the categorisation of awqāf found in sixty-eight cases. In one case from Patna, enough information was not available in order to classify it under any of the categories. Table 4 Composite Table of Waqf Cases Jurisdiction Pure Public Substantially Public Pure Private Substantially Private Fictitious Official Grants Bengal 3 4 3 1 1 2 Punjab 6 1 3 1 Nil Nil Oudh 2 5 1 2 1 Nil NWP (Allahabad) 2 2 2 3 Nil Nil Bombay 2 1 1 Nil Nil Nil Bihar (Patna) Nil 2 Nil 1 Nil Nil CP & Berar (Nagpur) 1 Nil Nil Nil Nil 1 Madras Nil Nil Nil 1 Nil Nil Sind 1 Nil Nil Nil Nil Nil NWF Nil Nil Nil Nil Nil 1 Palestine 3 Nil Nil Nil Nil Nil Burma 1 2 Nil Nil Nil Nil Ceylon 1 Nil 1 Nil Nil Nil Eastern Africa Nil Nil 2 Nil Nil Nil Mauritius 1 Nil Nil Nil Nil Nil Total 23 17 13 9 2 4 This table shows that overall the number of public awqāf was almost double the number of private awqāf. The two fictitious awqāf included one ostensibly public and