^{page 153 note 1} To say nothing of the books of “Solutions by way of legal devices” (almakhārij fi'l-ḥiyal) produced by the jurists themselves from a very early date. Cf. J.Schacht, in Law in the Middle East, 78–80; and E. Tyan. Le Notarial et la régime de la preuve par écrit.

^{page 154 note 1} Cf. the explicit statement of Ibn Ḥajar al-Haytamī (who is accepted throughout East Africa as the decisive authority in the Shāfi'ῑ school) in his Tuḥfa, VI, p. 253:

“Should he say ‘I have made a waqf in favour of my children’ or‘in favour of Zayd and his descendants’, or some similar object which lacks perpetuity, and should he say no more than this, then the more authentic view is that the waqf is valid. This is because its purpose is an approach to God and perpetuity; so, if its first beneficiaries are indicated, it can easily be perpetuated in favour of some good purpose. If, therefore, the named beneficiaries become extinct/ the more authentic view is that it should continue as a waqf, since perpetuity is of the nature of a waqf/ The more authentic view, then, is that the income should be paid to the nearest relative (not nearest heir) of the founder/ Regard should be had to the poor, not the rich, among them/ But should none of his relatives be available, or should they all be rich/ then the Imam should expend the income in the interests of the Muslim community/ Others, again, say it should be devoted to the poor, or to the poor of the town where the property is situated.”

Cf. also Zayn al-Din al-Malībārῑ in Fath al-Mu'in, p. 91:

“If he says ‘I have made this waqf in favour of my children’ and mentions no one to follow them, or ‘in favour of Zayd and then his descendants’, or some similar object which lacks perpetuity, the income should be paid to the poor person nearest related to the founder/ This is because charity to relatives has priority over other charity, and the best charity of all is to the nearest of kin and the greatest in need/ ”Failing any such, “the Imam should expend the income in the interests of the Muslim community. Many, on the other hand, say it should be paid to the poor and indigent of the town where the property is situated/ But the waqf will not in any case be vitiated, but will be maintained”. Cf. also Muḥammad b. Aḥmad al-Shirbῑnῑ in Mughnī al-Muῑtãj, III, pp. 355–6.

^{page 154 note 2} Cf. Ibn Qudāma, al-Mughnī, V, p. 567–8.

^{page 154 note 3} al-Mughnī, loc. Cit.

^{page 154 note 4} The best example of this is the fact that the overwhelming majority of Muslim jurists allowed the validity of a waqf which was designed completely to circumvent the Islamic law of intestate succession.

^{page 155 note 1} cf. the definition of a waqf given in Hamilton's Hedaya (2nd edition, by Grady, London, 1870):

“According to the two disciples, Wakf signifies the appropriation of a particular article, in such a manner as subjects it to the rules of divine property, whence the appropriator's right in it is extinguished, and it becomes the property of God by the advantage of it resulting to his creatures” (p. 231). (The italics are mine.)

^{page 155 note 2} This is, of course, over and above the fact that all Muslim jurists allow the founder to benefit as one of a classe—e.g. the poor, travellers, or the sick.

^{page 155 note 3} Except, it would seem, by their Lordships themselves. See below, in Fatuma's case.

^{page 156 note 1} Cf. among others, Abdul Karim Adenwalla v. Rahimbai and Others (33 A.I.R. (1946) Bombay 342);Faqir Mohammad v. Abda Khatoon and Others (39 A.I.R. (1952) Allahabad 127); Mohd. Sabir Ali v. Tahir Ali (44 A.I.R. (1957) Allahabad 100); and Rashidunissa v. Ata Rasool (45 A.I.R. (1958) Allahabad 67).

^{page 156 note 2} Cf. the definition of waqf in the Hedaya, at p. 155 above.

^{page 156 note 3} Nor, for that matter, am I aware that a court will ever enquire into how, precisely, a person may spend the money allotted under a maintenance order.

^{page 156 note 4} See the cases cited above.

^{page 157 note 1} (1584), 3 Rep. 7b—per Lord Coke.

^{page 157 note 2} [1952] A.C.I.

^{page 157 note 3} Whereas Ameer Ali correctly asserts that “From the promulgation of Islam up to the present day there has been an absolute consensus of opinion regarding the validity of wakfs on one's children, kindred and neighbours. A wakf is a permanent benefaction for the good of God's creatures; the wākif may bestow the usufruct, but not the corpus, upon whomsoever he chooses and in whatever way he likes, only it must endure for ever. If he bestows the usufruct in the first instance upon those whose maintenance is obligatory on him, or if he gives it to his descendants so long as they exist/ it b a pious act/ And this is insisted on so strongly that when a wakf is made for the indigent or poor generally, the proceeds of the endowment are applied first to relieve the wants of the endower's children and descendants and kindred/” Mohammedan Law, Vol. 1 (Fourth Ed. Calcutta, 1912) pp. 315, 6. Cf. also his copious references to the Arabic authorities in pp. 281–379 of this work.

^{page 158 note 1} Talibu bin Mwijaka v. Executors of Siwa Haji, 2 E.A.L.R. 33.

^{page 158 note 2} Which is, of course, regarded juridically as part of the dominions of the Sultan of Zanzibar, although administered in practice as part of the Colony of Kenya.

^{page 158 note 3} For a more detailed discussion and criticism of this judgment, see my Islamic Law in Africa (London, 1954), pp. 340–2.

^{page 159 note 1} The Wakf Commissioners Ordinance, 1951.

^{page 159 note 2} The italics are mine.

^{page 159 note 3} But see below, p. 162 note. (1).

^{page 159 note 4} (1957), E.A. 688.

^{page 160 note 1} Mohammedan Law. Vol. I (Fourth Edition:Calcutta, 1912), p. 545.

^{page 160 note 2} Cf. p. 154 above.

^{page 160 note 3} Cf. p. 159 above.

^{page 160 note 4} 16 E.A.C.A. 11.

^{page 161 note 1} Cf. pp. 153 f. and 159 f.

^{page 161 note 2} In spite of the fact that such waqfs are recognised repeatedly in the Islamic texts. Cf. Ameer Ali, op. cit., p. 370.

^{page 161 note 3} Sect. 4(1) (a). The italics are mine.

^{page 162 note 1} This suggestion runs counter, of course, to the decision of WORLEY, V.P., in Amina binti Abdulla v. Sheha binti Salim (see below) that the term “any person” in this Ordinance must be construed as “any living person”; for this decision seems, with respect, to represent yet another example of a refusal to take even “general Mohammedan jurisprudence” (to quote his own words) into consideration in attempting to construe a sentence (which, on his view, can certainly not be regarded as other than ambiguous) in a statute which was introduced to remedy some of the distortions in the Muhammadan Law which had been introduced by previous judicial misinterpretations.

^{page 162 note 2} See above, p. 156.

^{page 162 note 3} (1954), 21 E.A.C.A. at p. 13.

^{page 163 note 1} Dated 2nd November, 1958.

^{page 164 note 1} E.g. by limiting the duration of such family waqfs to a specified number of generations.