Literal meaning of the word waqf is ‘detention’. In the language of law, waqf means detention of a property so that its produce or income may always be available for religious or charitable purposes. When a waqf is created, the property is detained or, is ‘tied up’ forever and thereafter becomes non-transferable.
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In this manner the property remains intact for indefinite period. The object of detaining the property is to ensure that its usufruct may continuously be available for religious and charitable use. The institution of waqf was not known in the pre-Islamic Arabian society.
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In Quarn too, we do not find any clear provision regarding waqfs. The Muslim law on this subject has got its origin in the traditions of the Prophet. The first reported incident where the Prophet expressly provided for waqf is narrated by Bukhari. It is reported that Omar had a piece of land of which he wanted to make the most pious use. He approached the Prophet and sought his advice.
The Prophet then declared: ‘Tie up the property and devote the usufruct to human beings and it is not to be sold, or made the subject of gift or inheritance. Accordingly, Omar constituted a waqf of that piece of land. This waqf continued in existence for several centuries. Since then, the practice of creating waqfs has become an important part of the religious life and social economy of the Muslim society.
As a matter of fact, a strong desire for securing religious merits through pious and charitable deeds has been the cause of popularity of this institution among the Muslims all over the world. Throughout the Muslim-World, there are numerous properties of which the waqfs have been constituted.
There are such a large number of waqf properties in the Arab countries that the entire economic life is inter-linked with and is affected by these waqfs. In the Arab countries, therefore, there is a separate branch of legal system for this institution. The institution of waqf is not a part of the personal law in these countries. However, in India, the law relating to waqfs is an integral part of the Muslim personal law.
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It is significant to note that the central is a behind constituting a waqf is to make sure that religious and charitable objects are fulfilled in perpetuity i.e. for indefinite period. Where a Muslim wants to make a religious use of his properties he may also make a ‘religious gift’ (sadaqa). But in the case of sadaqa the property goes to the donee who becomes its absolute owner. Thus, the property is exhausted in a single religious or pious deed.
On the other hand, if a Muslim desires that he may go on securing religious merits indefinitely, he may create a waqf in which case the property as such is not exhausted. The property is tied up and its periodical produce is utilised for religious or charitable purposes for an indefinite period.
Thus, the religious and pious object of the owner of a property continues to be fulfilled in perpetuity because the property is detained and becomes non-transferable. For making the property non-transferable, the Muslim jurists evolved the theory of transferring the ownership of property in favour of God.
In Islam it is believed that after constituting a waqf, its property is owned by, Almighty God and it reaches beyond human activity. After this transfer i.e. after giving ownership to God, no person has authority to transfer this property. In this manner, the ownership of the property in a waqf is vested in God, whereas its benefits or the produce is given regularly for the fulfilment of religious or charitable objects.
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However, there has been a controversy among the early Muslim jurists regarding the ownership of waqf property. Abu Hanifa held the view that when a waqf is created, the ownership of the property is not transferred to God. It continues to vest in the founder of the waqf but the founder of waqf cannot dispose it off as his own property.
On the other hand, his two disciples Abu Yusuf and Imam Muhammad were of the opinion that when a person constitutes a waqf the ownership of the property is immediately vested in God and thereafter the property becomes non-transferable. It may be noted that although divergent views have been expressed by Muslim jurists regarding the ownership of waqf property yet, the result of both the views is the same.
Under both, the property is detained and becomes non-transferable. However, the Shariul-Mam which is an authority on the Shia law, provides that the ownership of the waqf property is transferred to the beneficiaries i.e. the ownership is vested in the numerous persons for whose benefit the waqf has been created.