Law and Economic Efficiency: English Private Property Law and Muslim Family Endowments (awqāf) in British India

Public/Private Distinction

The most difficult issue 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.²⁰
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 al-awlād (in favour of children) appears in the earliest treatises on waqf written in the ninth century.²¹ We also find the terms waqf khāṣ (special) and waqf ‘ām (general) in classical Fiqh texts.²² The later treatises used the terms waqf ahlī and waqf khayrī to denote family waqf and charitable waqf respectively.²³ 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).²⁴ 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 and private interests could hardly be drawn because of the collectivist structure of the society. Further complexity was added because the family waqf was used to circumvent Islamic inheritance law. In fact family waqf became an important part of what scholars describe as the ‘Islamic inheritance system’.²⁵ It was also used for multiple purposes, which included protection against confiscation by the state, tax evasion and protection from creditors. On the other hand, the public waqf was used by the Muslim community to establish their high status in society and as a sign of their public benefaction.²⁶
Some researchers have identified a third category of awqāf and called it quasi-public waqf.²⁷ Awqāf in which public and private interests are mixed could be classified under this category. However, this categorisation is only partially useful because it does not help identify the extent of public or private interests in a particular waqf. For instance, we are unable to identify the dominating objective of a mixed waqf. Therefore, we need a more elaborate categorisation of awqāf in order to tackle this issue. As an alternate, one could draw awqāf on a spectrum that has public and private interests on extreme ends. This would be useful to demarcate public and private interests in a particular waqf. However, this would only furnish a temporary solution to this problem given the complicated mixture of public and private interests in awqāf. Thus it would be hard to assign a waqf a particular place on the spectrum. In order to mitigate this problem, the following categorisation is proposed:

1. 
   Pure Public: in which the settlor does not reserve any interest for himself or his family members.
   

2. 
   Substantially Public/Partially Private: In this type some interest is reserved for the private members but their share is only partial while the substantial portion of the income of the waqf is dedicated for a public purpose.
   

3. 
   Pure Private: in this waqf the settlor or his family is the primary beneficiary of the waqf, generation after generation, though the ultimate benefit is reserved for a mosque or the poor of a community or any other public utility.
   

4. 
   Substantially Private/Partially Public: in this type the waqf is created in favour of a charitable and religious purpose for the benefit of the public but the substantial income of the waqf goes to the settlor or his family members or relatives.²⁸
   

5. 
   Fictitious or sham: this category includes both Public and Private awqāf. Ostensibly the waqf fulfils all legal requirements but the real intention of the settlor is to defraud creditors or legal heirs.
   

A large number of cases in my data set can be classified under the above categories. However, there are certain awqāf, which do not fit into any of them. For instance, Muslim rulers gave lands as madad-i-ma‘āsh (aid/assistance for subsistence) grants in recognition of the need, piety, learning and nobility of the recipient. This is provided in a chapter under the heading suyurghāl in the famous book of Emperor Akbar’s minister, Abū al-Faḍl.²⁹ Such grants could also be made in cash. The land and cash grants were covered under a general term suyurghāl.³⁰ These grants maintained madāris and ‘ulamā’.³¹ They were conferred upon the members of a particular family and were hereditary. The grantee was to spend the income according to his discretion.³² There was also a category of lākharaj land tenures.³³ Such grants and tenures resembled waqf because of the element of public interest in them. But some grants were purely personal, such as chakran which was a grant to officials in lieu of their salaries.³⁴ A Commission appointed in 1776 by Hastings, called the Amini Commission, for the collection of material for a new revenue settlement of Bengal showed that there were thirty-nine varieties of grants in the fiscal division of Dacca, the capital of Bengal. Waqf was one of them.³⁵ Following the tradition of previous rulers, the British Governor Generals also made such grants of land.³⁶ A large number of such grants were made in favour of individuals.³⁷

These grants could hardly be adjusted within the law of waqf contained in the Hidāya and the Fatāwā al-‘Ālamgīriyya. They could, however, be justified under state or customary law. When the British took over control of Bengal in 1772, they found that about one fourth of the total land holdings had been transferred from the State in the form of such grants.³⁸ The legal nature of these grants as to whether they constituted a waqf or not, was disputed in courts.³⁹ Without entering into the controversy, I have categorised such grants as Official Grants.⁴⁰ We also have some public awqāf which were recognised as valid under the principle of long user.⁴¹ They included mostly mosques and graveyards.⁴² They have been generally categorised under public awqāf.

3.