Waqf-alal-aulad:

In Islamic law, waqf refers to an endowment of property for religious or charitable purposes. Once designated as waqf, the property is non-transferable and cannot be sold, inherited, or conveyed. The proceeds are dedicated to community benefits, specific individuals, or causes like mosques, schools, or support for the needy.

In Hindu law, there is no exact counterpart to the Islamic institution of Waqf, which involves donating property for religious or charitable use. However, there are analogous concepts such as Devaswom and Trusts. Devaswom pertains to properties or funds assigned for temple activities and religious purposes, overseen by a trust or temple committee. Likewise, Hindu endowments operate in a manner akin to Waqf, where assets are allocated for religious, charitable, or educational aims. These entities ensure that the property is utilized in accordance with the donor's wishes, often indefinitely, but within the parameters of Hindu religious and customary law.

As for example, the Travancore Devaswom Board operates as an independent entity established under the Travancore Cochin Hindu Religious Institutions Act of 1950. The primary source of revenue for the Board is Sabarimala, which generated 255 crore rupees in 2017-2018 'mandala season' (pilgrimage season). Additionally, the total income from all other temples in Kerala amounted to 57 crore rupees. During this season, the government allocated 38 crore rupees for various construction projects. This figure was 6 crore rupees higher than the amount spent the previous year. Additionally, this does not include the funds used for implementing the Sabarimala Master Plan.

Waqf established by Muslims typically falls into two main categories. The first is public Waqf, wherein the beneficiaries are the general public. The second is private Waqf, where the beneficiaries are specific individuals rather than the public at large.

Within private Waqf, there are generally two types:

Waqf-alal-aulad, which is dedicated solely to the descendants, and Waqf that involves a present dedication or gift, which allocates a portion of the income from the Waqf property for charitable purposes or for the benefit of strangers, while the remaining portion is designated for the benefit of the Waqif's relatives and family members.

Waqf-alal-aulad is a specific form of Islamic endowment where the revenue generated from a property is aimed at supporting the descendants of the donor. Unlike conventional waqf, which is intended for public or charitable causes, waqf-alal-aulad is centred on ensuring financial stability for the donor's family. For instance, a wealthy person may designate a parcel of land as waqf-alal-aulad, thereby guaranteeing that the income produced from it sustains their children and grandchildren.

This approach not only keeps the property within the family but also provides a consistent income over generations, thereby protecting the family's financial well-being. Once the last descendant of the donor passes away, the fund will be treated as Waqf.

A clause can be included in waqf-alal-aulad to designate a portion of the income for charitable purposes. Although waqf-alal-aulad is designed mainly to benefit the donor's heirs, the donor has the option to specify in the waqf deed that a particular percentage of the income be allocated to charitable activities or public welfare. This dual approach enables the donor to provide for their family's financial requirements while also meeting their religious obligation to give back to the wider community. Such flexibility is in harmony with Islamic principles, promoting both familial support and social responsibility.

Historical Context of Waqf-alal-aulad:

The practice of waqf-alal-aulad historically arose among affluent Muslims who sought to secure the financial future of their heirs while simultaneously fulfilling their religious duty to establish a waqf. This practice saw widespread adoption during the Ottoman Empire, where it played a pivotal role in wealth preservation and management.

The Ottoman legal system acknowledged waqf-alal-aulad as a valid type of waqf, enabling many wealthy families to safeguard their assets from division or state confiscation. By establishing a waqf-alal-aulad, property owners could ensure their wealth remained within the family, providing ongoing support for their descendants.

Examples of Waqf-alal-Aulad:

• Ottoman Turkey: A prominent instance from Ottoman history involves affluent landowners setting up waqf-alal-aulad to guarantee their extensive estates remained intact through generations. This strategy protected their lands from being fragmented among heirs or appropriated by the state, while also preserving the family's social standing and economic influence. The income generated from these lands would be distributed among family members based on the provisions outlined in the waqf deed.
   
• Nawabs of India: During the Mughal era in India, numerous noble families and nawabs (regional rulers) established waqf-alal-aulad to shield their wealth from external threats and ensure the financial stability of their lineage. For instance, a nawab might allocate a portion of his land as waqf-alal-aulad, with the proceeds used to support his children and grandchildren. This practice helped secure the family's economic stability and social prominence across generations.
   
• Modern Example in the Gulf States: In several contemporary Gulf nations, affluent individuals continue to create waqf-alal-aulad as a means to manage their assets for the benefit of their heirs. For instance, a business proprietor could designate part of their real estate or business holdings as waqf-alal-aulad, with the profits designated for supporting their children and grandchildren. This ensures the family business remains within the family, providing ongoing support for future generations.

Legal Framework and Challenges:
The legal status and governance of waqf-alal-aulad differ across various Islamic jurisdictions. In certain countries like Turkey and India, waqf-alal-aulad holds legal recognition and boasts a long-standing historical tradition. However, in other regions, the practice faces challenges, especially regarding its effects on inheritance rights.

A primary legal issue confronting waqf-alal-aulad involves its potential to conflict with Islamic inheritance laws. Sharia establishes explicit rules for inheritance, assigning fixed portions of an estate to heirs, including spouses, children, and parents. Detractors of waqf-alal-aulad contend that it may be leveraged to bypass these inheritance laws, allowing property owners to influence the distribution of their wealth in ways that contravene Sharia stipulations.

For example, a property owner might create a waqf-alal-aulad that disproportionately benefits certain heirs over others, effectively altering the expected inheritance distribution. Such actions could provoke disputes among heirs and lead to legal complications, especially if some individuals believe they have been unjustly denied their rightful inheritance.

Impact on Women's Inheritance Rights:

Another critical issue associated with waqf-alal-aulad is its potential ramifications for women's inheritance rights. Under Islamic law, women are entitled to inherit, although typically at a lower rate than their male counterparts. In some instances, waqf-alal-aulad has been employed to lessen or exclude the inheritance of female heirs, particularly daughters.

For instance, a father may create a waqf-alal-aulad that primarily benefits his sons, allotting only a minimal share to his daughters. This situation can result in female heirs receiving less than an equitable portion of their inheritance, jeopardizing their financial security and rights. Recognizing this concern, some contemporary legal frameworks are striving to ensure that waqf-alal-aulad does not infringe upon women's inheritance rights.

Reforms and Modern Interpretations:

In recent years, there have been initiatives aimed at reforming the waqf-alal-aulad practice to mitigate these issues. Some Islamic scholars and legal experts advocate for more stringent regulations to ensure that waqf-alal-aulad aligns with inheritance laws and does not discriminate against female heirs.

For instance, in India, the proposed Waqf (Amendment) Bill, 2024 seeks to safeguard women's inheritance rights by ensuring that waqf-alal-aulad is not utilized to undermine these rights. The Bill outlines clear criteria for establishing waqf-alal-aulad to prevent it from being manipulated as a means to disadvantage female heirs.

In various countries, there are discussions about restricting waqf-alal-aulad or even completely phasing it out in favour of more equitable waqf models that serve the wider community instead of solely benefiting the donor's family.

The Waqf (Amendment) Bill, 2024 and Waqf-alal-aulad:
In Waqf-alal-aulad, the rights granted to women and girls are determined by the stipulations established by the waqif (founder). The waqif has the option to allocate benefits equally to both male and female descendants or to designate different proportions. Although Islamic inheritance regulations typically prioritize males with larger portions, these provisions do not automatically extend to waqf unless explicitly indicated. Consequently, women and girls can attain equal rights in Waqf-alal-aulad if the waqif opts to specify such terms. The implementation of these conditions may differ based on the governing legal framework and jurisdiction responsible for managing the waqf.

The Waqf (Amendment) Bill, 2024 stipulates that waqf-alal-aulad should not infringe upon the inheritance rights of the donor's heirs, including female heirs. However, it remains unclear how the government plans to enforce this, given that this type of waqf relies on the intentions of the waqif. A provision could be established to guarantee that women and girls receive their rightful share of the property designated for waqf-alal-aulad in accordance with Islamic jurisprudence.

Court Judgment:
In the case of Bikani Mia v. Shuk Lak Poddar, ILR (1893) 20 Cal 116, Justice Ameer Ali stated that a waqf established solely for the benefit of the waqif's family, without any charitable provisions, is considered valid. This perspective is still valid today.