The sixteenth century Muslim economic thinking, especially in matter of awqaf, led to various innovate measures towards development of waqf properties and their efficient uses. Sometime such measures were misused by dishonest caretakers or supervisors to fulfill their selfish objectives and serve their vested interests. Examples of some of those practices were found in Mamluk period also, but they were more widely discussed and used in Ottoman rules. Consequently preventive steps were taken in case of many such acts.
Waqf being a perpetual establishment, generally the founder made provisions for its upkeep and development. Even if there is no such provision in the waqf deed, the writers on waqf think it as one of the requirements of waqf to serve perpetually. Rather they give to maintenance and development priority over its other expenditures. There should be a provision of depreciation deduction so that it could be kept intact and any surplus from the expenditure should be reinvested. (Ibn Hajar al-Haytami, n.d.,3:242; al-Wansharisi, 7:465; al-Tarabulusi, 1902, p. 56; Ibn Nujaym, 1980[a], pp. 204-205; Afifi, 1991, pp. 139-40).
Borrowing to meet deficit: The Jurists allowed borrowing on behalf of
waqf to meet any advance expenditure provided in the waqf deed or even to maintain or develop waqf property (al-Tarabulusi, pp. 57-58, 70). To prevent the misuse of borrowing on behalf of waqf Ibn Nujaym (1980[a], pp. 194, 202) makes it clear that borrowing is allowed only if the interest of waqf necessitates it. Thus, the scholars of sixteenth century, in their permission to borrowing on behalf of waqf, were guided by efficiency and benefit criteria only.
Long-term Lease: Inspite of provision in most of awqaf for maintenance
of waqf property in good condition, with the passage of time, awqaf fell prey to negligence. This took place mainly because of the lack of personal ownership and non-availability of funds. One of the solutions to this problem applied in the sixteenth century was to alienate waqf property as long-term lease, the lease paying a lump sum in advance and a small annual rent thereafter. This contract is known, in the literature of the period as ‘ijaratayn’ (dual renting). The contract was made sometimes for a period of ninety years and tenants used to get proprietorial rights for that period. The tenant could sublet it, make it another waqf for any other purpose and the lease could be inherited if the tenant died. The provision was not an invention of Ottoman period. Earlier Jurists also discussed it and a controversy existed in the past also (al-Tarabulusi, 1902, pp. 63-65). Although it was accepted as necessity, the difference of opinion continued in the period under study. The Maliki and Hanbali jurists accepted the provision, so the contracting parties generally tried to get the seal of approval from a Maliki or Hanbali qadi (Behrens-Abouseif, 156).
The opponent scholars based their opinions on genuine economic consideration, such as uncertainty in determination of just rent or the rent of equivalent (ujrat al-mithl) as stipulated in such contract, fluctuation in prices and occurrence of inflation, currency changes, and last but not the least, the long-term lease created aspiration in the heart of lessee to take awqaf property in the ownership of themselves (al-Haytami, n.d. 3:326, 338, 340, 348; al- Wansharisi, 7:106).
Exchange of Waqf Property (istibdal). Sometimes waqf property falls
into ruin or loses its benefits. The cure has been provided in the exchange of waqf property for other property that can serve the objectives of the waqf. This was not a solution discovered in the sixteenth century. But its misuse in the period under study made it very controversial. Reflecting on the issue, Gibb and Bowen write: ‘The experience of many centuries and in all countries proved that waqf properties rapidly fell into ruin. To meet this contingency, a semi-legal device was found in the exchange of waqf property for other property of equal value, the former passing into the possession of the previous owner of the latter, now become a waqf. But already by the sixteenth century, this had become so flagrant a device for the seizure of awqaf property that this qanun of Sultan Sulayman expressly forbid the alienation either by sales or exchange of ruined buildings belonging to awqaf, even if it should appear to be to the advantage of the waqfs concerned, because of the prevarications committed on this pretext; and further that in case of contraventions of this qanun both sellers and buyers should be severely punished’ (Gibb and Bowen, 1965, vol. one, part II, p. 178).
According to Behrens–Abouseif (1994, p. 153), ‘Although istibdal was prohibited by the Qanun Nama, it continued to be used especially if the endower permitted it or if the qadi saw no alternative way of securing an estate alienated as waqf.’ He presents many examples of istibdal taking place in violation of its prohibition (ibid. pp. 153-154).
Differences of opinions on the issue of exchange or replacement of waqf were found among the early scholars also.3 Sixteenth century scholars also differed on the question of istibdal - two extreme stands and a middle one. One extreme stand is that istibdal is never permissible even if waqf deed has such a provision because it is against perpetuality and it
will open doors for corruption as was experienced during the period under study. The other stand is that it is allowed if waqf deed does not prohibit it or it is silent and the waqf property has completely lost its advantage. A third view takes into consideration only the economic criteria: if recreation of waqf property is economically not viable, then it can be exchanged for a property of equal value. But they allowed the exchange provided that the supervisor must get permission from the court; there should not be any deception in this exchange; the new property must be better than the waqf property given in exchange and that the exchange must be hand to hand, not on a credit. Ibn Nujaym (n.d., 5:241) says: “One more condition must be added in our time, that is, the property must be exchanged for real estate, not for dirhams, and
dinars (i.e., cash) because we have noted that the supervisors (nuzzar)
generally eat it up and no qadi questions them whereas cases of istibdal are too numerous in our time”.
Corruption. On the pretext of istibdal many waqf properties were sold
out and transferred into private property (Afifi, pp. 20-21). That is the reason that the Qanun-Namah held such transactions as bay‛ (sale) instead of istibdal (ibid, p. 176). Not only istibdal, the very institution of waqf sometime was misused. Illegally acquired property was occasionally declared waqf to protect it from confiscation (Gibb and Bowen, vol.1, II: p. 169; el-Zawahreh, pp. 84-85). Examples of sale and purchase of waqf jobs and even the stipend were not uncommon (Afifi, 1991, pp. 124, 129-130, 197). It also happened that one post was shared by many persons or one person occupied many posts (ibid, pp. 121-22). Ibn Nujaym criticized such practices. He declared that the sanctity of waqf offices and jobs are similar to the sanctity of waqf properties, they cannot be violated (Ibn Nujaym, 1980[b], pp. 29-30).