Analysis of the Law Applicable to the Creation of Waqfs During the British Era in Penang

• Main Author: Syed Abdul Kader, Sharifah Zubaidah
• Other Authors: Mohamad, Nor Asiah
• Format: Book Chapter
• Language: English
• Published: International Islamic University Malaysia, Global Waqf Conference, Ahmad Ibrahim Kulliyyah of Laws 2021
• Subjects: BPH741 Waqf
• Online Access: http://irep.iium.edu.my/94565/1/94565_Analysis%20of%20the%20Law%20Applicable%20to%20the%20Creation%20of%20Waqfs.pdf; http://irep.iium.edu.my/94565/
• Institution: Universiti Islam Antarabangsa Malaysia

This study explores the legal history of waqf creation in Penang to ascertain the law applicable during the British era in Penang. The research question is: what is the law applicable to the creation of waqf during the British era in Penang? The study is legal-doctrinal and legal-historical, comprising of analysis of official records, government publications and reported cases. The study found that waqf was created through deed polls where such gift would take effect during the lifetime of the donor and through a will in regard to testamentary waqfs. It was also found that the drafters of such waqf declarations had used English law of trust concepts such as non-charitable trust and charitable trust to prevent such waqf from being invalidated by the courts due to the application of the rule against perpetuities. The study identifies the reason why an understanding of the law applicable during this time impacts on how the managers of old waqf properties in Penang may embrace the present and envisage the future of such properties within the legal landscape today.