Law and Economic Efficiency: English Private Property Law and Muslim Family Endowments (awqāf) in British India
Zubair Abbasi
Abstract
The transformation of indigenous legal norms into state service under colonialism is a well-told story. Relatively lesser attention is paid to the response of natives who were subjected to the transformed law. This paper measures the response of Indian Muslims to the private property law regime for land introduced by the British in India in the late nineteenth century. Itis based on the cases decided between 1800 and 1950 by the Judicial Committee of the Privy Council—the highest court of appeal in the British Empire. I argue that not onlyIndian Muslims played an important role in the operation of the legal system, laymen also adjusted their modes of disposal of landed property by taking into account legal developments.
This paper analyses the origins of various types of Muslim endowments (awqāf, singular waqf) in the social and political context of various Indian provinces. These provinces were subjected to different property law regime. It challenges the traditional view proposed by Kozlowski that the family waqf originated in British India as a result of the strict application of Islamic inheritance law and the introduction of private property regime under the English legal system. Rather, it shows that the pattern of the creation of endowments was affected by multiple factors which included politics, history and law. The land policy of the East India Company and confiscation of properties after the 1857 uprising were important political factors which affected the establishment of endowments. This study contributes to the debates on law and development, colonialism and law, and legal transplants.
1.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.[1] 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.[2] 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.[3] 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.[4]
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 the context of each province. It shows that the development of awqāf in British India was affected by multiple factors, law being one of them. The influence of political and judicial developments on awqāf was significant, as the colonial policy towards land and the judicial interpretation of waqf law affected the creation of various types of awqāf. To build a better understanding of the interaction of law, politics and history on awqāf, the twenty-four private awqāf found in this data set of Privy Council cases are separately analysed.
1.Privy Council Judgments on Awqāf
This paper is based on the judgments of the Judicial Committee of the Privy Council, which was the highest court of appeal in the British Empire. While the British assumed control of Bengal in the last quarter of the eighteenth century and the courts of the East India Company operated during the seventeenth century, the hierarchical judicial system in various provinces of India was established only in 1862.[5] The High Court or the Court of Judicature was the highest court of appeal at the provincial level while lower courts were established at district and sub-district levels. An appeal from a decision of the High Court could be made directly to the Privy Council in London since the Federal Court was not established at the central level until during the last days of British rule in India.[6] In pre-colonial India, Hindus and Muslims followed their personal laws in family affairs. Commercial transactions were governed by customary practices as well as by reference to Hindu and Muslim laws. Administrative law was based on the edicts of rulers. The judicial system was based on multiple layers governing various communities and different aspects of life.[7] The British political system replaced this system with a uniform judiciary, which applied the personal laws of various religious communities along with new laws based on English legal principles.[8]
Cases on waqf law came to the Privy Council from all over the Muslim populated territories of the British Empire. However, the number of cases from India was the highest. After 1915 a separate division in the Privy Council was established to hear appeals from India.[9] In the period between 1840 and 1968, the Privy Council decided sixty-nine cases in which the dispute involved a waqf. Out of these cases, fifty-eight originated from India. The eleven other cases came from Palestine, Burma, Ceylon, Eastern Africa and Mauritius.
Table 1
Jurisdictional Division of Privy Council Cases
India / 58Palestine / 3
Burma / 3
Ceylon / 2
Eastern Africa / 2
Mauritius / 1
Total / 69
Waqf related cases originated from almost all provinces of India, though their number varied from province to province, and as could be expected more cases came from Muslim majority provinces.
Table 2
Jurisdictional Division of Indian Cases[10]
Bengal / 14Punjab / 11
Oudh / 11
North West Province / 9
Bombay / 4
Bihar / 4
Central Provinces and Berar / 2
Madras / 1
North West Frontier / 1
Sind / 1
Total / 58
In addition, there were twelve cases in which reference was made to a waqf but the case did not fall under waqf law. These cases mostly involved Hindu endowments in favour of an idol or mutt or debutter or dharmashala (religious sanctuary or rest house). There is only one exception in which private interests were mixed with religious and charitable purposes. In this case a moneylender and zamindār established a testamentary waqf in February 1904 by appointing a committee under his eldest son for religious and charitable purposes, which included the establishment of a dharmashala.[11] These cases are not included in the detailed analysis of awqāf here, but reference is made to them wherever it is necessary.
The judgments of the Privy Council played a significant role in the judicial and legal system of British India. Therefore, the seminal work of Kozlowski on Muslim endowments (awqāf) in British India takes into account the leading judgments of the Privy Council. Kozlowski did not limit himself to the reported judgments, but he also explored the case records. These case records contained documents filed with the Privy Council by the parties to the case, as well as the records prepared by the lower courts and High Courts, eg statements of witnesses and court orders. These documents were sent to the Privy Council in the form of the ‘paper book’.[12] Studying these documents enabled Kozlowski to more closely examine the social context of each Privy Council waqf case. However, his analysis was limited to only a few Privy Council judgments primarily related to family awqāf.
This research is therefore the first comprehensive study of waqf-related cases decided by the Privy Council. An effort has been made to find every important case on waqf decided by the Privy Council by looking into law reporting journals and legal commentaries. Online databases such as Manupatra, Westlaw, and Bailii have also been explored to this end. As is shown above, these cases were not confined to India. Rather, they originated from all over the Muslim populated territories of the British Empire.
Before we start a quantitative analysis of these cases, it is important to note the limitations of this data. Firstly, this data set is relatively bigger than Kozlowski’s data set which included only forty waqf deeds which are supplemented with twenty-five lawsuits ‘dealing with allied questions of inheritance, debt and family relations’.[13] Yet still any statistical analysis based on fifty-eight cases could not be seen to form any conclusive argument. Therefore, following the example of Kozlowski who makes a similar disclaimer,[14] this work presents the material collected from this data as suggestive rather than conclusive. Secondly, the sample in this data set is also not without its bias because only a small number of awqāf were actually litigated upon. However, in the absence of the records of registration of waqf deeds, the judicial records are the best source in order to study awqāf in British India. An advantage of the focus on the decisions of the Privy Council is that it provides the most authoritative exposition of law based on the cases coming from almost every part of India and the rest of the British Empire.[15] But the problem of relying on such cases is that only a limited number of overall cases came to the Privy Council because of legal and financial limitations on the right to appeal. Only cases involving higher than a certain pecuniary limit could be appealed. A certificate that the case was fit for appeal to the Privy Council was also required from the High Court which decided the case. If a High Court refused to issue such a certificate, an application for a special leave to appeal could still be filed before the Privy Council. A large number of petitions were filed for this purpose.[16] In addition the appellant was also required to file a bond to fulfil his obligations and also bore legal costs of documentation and lawyers before his appeal could be heard. Even after incurring all these costs the appellant was not sure that the case would be decided within his/her lifetime because there was a large list of pending suits before the Privy Council. There is no exact data on the chances of success of appeals before the Privy Council. In this data set, more appeals were dismissed than were allowed. The overall ratio of successful appeals was thirty-five per cent (35%). Twenty-four appeals were allowed while forty-two were dismissed. In two cases, the appeal was partially allowed.[17] And in one case, the decision of the High Court was discharged and the case was remitted with a direction to draw a scheme of the waqf.[18] The success rate for appeals from India was slightly better, thirty-eight percent (38%) of all appeals (twenty-two allowed, one partially allowed and thirty-five dismissed).
Fortunately, in most of the cases the date of the creation of waqf is mentioned. However, in twenty-two cases the date of the creation of the waqf is not mentioned. These are mostly the cases of old awqāf in favour of mosques, imambara (Shī‘a religious place for holding of meetings to commemorate the martyrdom of Imām Ḥusayn), graveyards, public road, khānqāh (monastery/abbey), shrines and tombs. Some cases refer to more than one waqf deed, created either by the same person or different persons at different times. Four of the cases involved three different waqf deeds each.[19] In all these cases the waqf deeds were closely linked to each other, so as to constitute one waqf. Therefore, the distinction between the number of waqf cases and the number of awqāf does not make much difference. A further complication is added when a particular waqf is adjudicated more than once. These details are discussed later in the below paragraphs. The available data is summarised in the table below:
Table 3
Dates of the Creation of awqāf
Before 1850 / 12Between 1851-1900 / 24
Between 1900-1950 / 15
This pattern of the creation of awqāf confirms Kozlowski’s finding that British rule caused the rise of private awqāf in India for two reasons: first, the strict application of Islamic inheritance law on all types of movable and immovable property by the British Indian Courts; and second, the introduction of a private property regime for land under colonial rule and its enforcement by state institutions. The rise in the number of awqāf between 1850 and 1900 can be attributed to these legal changes and the subsequent decline could have resulted from the developments in waqf law under the British legal system, which refused to recognise family awqāf as a legitimate institution in the late nineteenth century. The string of cases questioning the validity of such awqāf started from the 1870s culminated in 1894 with the Privy Council judgment invalidating family awqāf. Such awqāf remained invalid for two decades before the promulgation of the Mussalman Wakf Validating Act 1913. But the Act did not have retrospective effect. Even when it was given retrospective effect in 1930, the courts remained sceptical about the validity of private interests in awqāf. However, the public/private distinction in awqāf was not that simple and straightforward. In a 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.
2.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: