Book Review: Muslim Endowments and Society in British India by Gregory C. Kozlowski

Book Review: Muslim Endowments and Society in British India by Gregory C. Kozlowski, Cambridge University Press, 1985, reprint 2008

Reviewed by Zubair Abbasi, DPhil law candidate, Oxford University

There are three basic reasons for writing a review of this book published a quarter a century ago. First, it remains the most authoritative work on the Muslim endowment (wakf) in India, which is an important institution under Islamic law. Second, it sheds light on the pre-partitioned Muslim society and its leadership. Third, it offers remarkable methodological specimen for a graduate research.

The main source of this work comprises of forty wakf deeds along with the judgments of Indian courts and the Privy Council. However, the writer draws upon rich resources from archives in India and the UK, which include official records, vernacular press, personal memoirs and scholarly texts and commentaries. Interesting comparisons are also made, where appropriate, with the English legal principles, institutions and historical developments. This work is a revised version of Kozlowski’s PhD thesis completed at the University of Minnesota in 1980. The fact that the book is published five years later in 1985 shows that he spent nearly a decade on this small 211 page monograph.

From the perspective of research methodology, this work highlights the importance of reported cases as a rich source for the history of India and Pakistan. A part from recording legal developments, they are a valuable source for documenting the socio-political and economic history of various institutions, families and localities in the subcontinent.

The writer’s choice of wakf for this study is appreciable, as the wakf is the only permanent institution under Islamic law. It was widely used for providing public services as well as the accumulation of family wealth. Mosques, schools, shrines, imambargahs, serais, dargahs, hospitals, public parks and other public utilities were established as wakf in Muslim societies. In a private wakf, the original beneficiaries are usually the family members of the founder with the poor or public services as the ultimate beneficiaries. The wakf was wide spread in Muslim world because of two reasons. First, it could be used to circumvent the strict Islamic law of inheritance, which restricts the discretion of an individual to dispose of his/her property by will. Second, since the wakf property was regarded as sacred, the predatory rulers could not confiscate it without invoking public outrage. Unlike other parts of the Muslim world, the private wakf was not widely used in India until the advent of the British. English courts strictly applied Islamic law of inheritance, which previously was overshadowed by customary practices. This change in legal regime adversely affected the large landowning Muslim elites who increasingly used the wakf devise in order to protect their property from segmentation. The Privy Council, however, declared the family wakf as illegal in 1894.

The Privy Council’s decision, though purported to be based on Islamic law, in fact, reflected the English legal spirit, which could not accept an institution that was to be operated perpetually in accordance with the wishes of the founder only. The “dead hand” of the founder not only kept on operating the wakf but it also withheld the endowed property from market circulation. The family wakf was also used to reserve large properties for the aggrandizement of family without liability to creditors, as the wakf property could not be alienated by the beneficiaries. For the lawyers and judges trained in the English legal tradition, the wakf was an inflexible, pre-modern institution, which did not fit into modern times.

However, the legality of the family wakf proved to be a crucial political issue, which united the interests of landowning elites, the orthodox ulama of different schools, moderate and liberal Muslim intelligentsia and various professionals. Socially prominent and wealthy Muslim families were considered as intermediaries between British rulers and Indian subjects by the Muslim intelligentsia. Interestingly, the London trained Muslim lawyers aligned themselves with the landowning aristocracy. Muhammad Ali Jinnah, who had newly entered into Indian politics, took the lead by submitting the draft bill for correcting the error caused by the judgment of the Privy Council. The press also played an important role in building pressure on the government and finally the Mussalman Wakf Validating Act was passed in 1913.

Kozlowsky’s narration of the story of wakf in India raises important questions about the theory and practice of Islamic law in the subcontinent before and after the advent of colonialism. What was the relationship between the state, Islamic law and customary practices in pre-colonial India? In other words, whether the Fiqh texts provided the law of the land exclusively or they operated along with other legal mechanisms such as imperial decrees and local customs? To what extent there was a difference between the theory and practice of Islamic law in that period? What was the role of Islamic law in the organisation and regulation of society? Whether Islamic law is capable of evolution and development with the passage of time?

Kozlowsky finds that the Muslim society was diverse in its beliefs and practices of Sharī‘a and it was wrong for British rulers to assume that the Indian Muslims formed one entity regulated by a uniformed law. The pre-colonial society was governed more by the custom than by the texts of law. Given this dichotomy in the theory and practice of law and its religious nature, the law was assumed to be static. The English legal system stymied any development in Islamic law by refusing to accept new interpretations of the old texts and by enforcing the doctrine of precedent. Under this doctrine, the rulings of British courts, rather than the Sharī‘a, provided the binding law.

These findings are ingenious and intriguing, which provide insights into the pre-partitioned Muslim society of India. However, there are two related issues, which are conspicuously missing from this work: first, the issue of public wakf properties; and second, the transplantation of new legal institutions in India and their relation with the wakf. Historical sources inform us that a large number of schools and public utilities including monumental buildings such as Taj Mahal were supported through the revenue generating wakf properties for their upkeep. What became of these properties after the regime change? Kozlowsky does not tell about them. Second point that requires further research relates to the reception of new institutions by Indian Muslims. When private/family wakf was invalidated by the Privy Council in 1894, why didn’t the landowning Muslim elite make use of trust, a wakf like English law institution? The trust was introduced in India in 1882 and is regarded as an economically efficient institution. This book focuses on how the Indian Muslims launched a political campaign in order to get legalised the family wakf but sheds no light on the issue of alternate choice, which might have been used by them. This casts doubt on the main conclusion of the writer that the family wakf was merely a devise to protect family wealth and it was only used after the advent of colonial rule.