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All praise is due to Allah, and may His blessings and peace be upon His Messenger ﷺ, his family, and his Companions.

Yes. Classical Islamic jurisprudence recognises that an ancient waqf may be established through reliable evidence of its longstanding status and public reputation, even when its original deed or witnesses are no longer available. Discussions supporting this principle appear in the Ḥanafī, Shāfiʿī, Mālikī and Ḥanbalī schools, although their evidentiary requirements and certain details differ.

The essential distinction is between creating a waqf and proving that a waqf was established in the past. The passage of time alone does not convert someone’s property into waqf. However, established public knowledge and historical practice can provide evidence that a lawful dedication occurred long ago.

A waqf is an endowment whose property is preserved while its use or income is devoted to a recognised religious or charitable purpose. Its foundation includes the Prophet’s ﷺ guidance to ʿUmar concerning his land at Khaybar: retain the property and give its benefits in charity. ʿUmar accordingly stipulated that the endowed property should not be sold, gifted or inherited. (Ṣaḥīḥ al-Bukhārī, no. 2737.)

The classical jurists addressed the difficulty of proving old endowments in considerable detail:

1. The Ḥanafī school

   Ibn al-Humām provides an explanation directly relevant to ancient endowments whose documents have disappeared:

   «لكنه في توالي الأعصار تبيد الشهود والأوراق مع اشتهار وقفيته فيبقى في البقاء سائبة إن لم تجز الشهادة به بالتسامع فمست الحاجة إلى ذلك».

   His reasoning is that successive generations pass, witnesses die and documents disappear, while the property’s status as waqf remains publicly known. Refusing testimony based on established report would leave such an endowment unprotected; accepting it therefore becomes necessary.

   In this discussion, he cites al-Marghīnānī’s position that testimony by tasāmuʿ is accepted as evidence of a waqf's existence, while recording disagreement about proving its detailed conditions in the same way. (Fatḥ al-Qadīr, 7:392–393, Book of Testimony.)

   Ibn ʿĀbidīn likewise explains that knowledge of an endowment’s arrangements may derive from longstanding practice rather than personally witnessing the founder. In discussing a recognised waqf whose allocations have become uncertain, he advises examining how earlier custodians administered it and distributed its proceeds. This concerns identifying the arrangements of an established waqf through historical practice. (Radd al-Muḥtār, 4:412–413, Book of Waqf.)

2. The Shāfiʿī school

   Ibn Ḥajar al-Haytamī explains the stronger position permitting testimony through established public report concerning the existence of a waqf:

   «لأن مدتها إذا طالت عسر إثبات ابتدائها فمست الحاجة إلى إثباتها بالتسامع».

   In other words, when a long period has elapsed, proving the original establishment becomes difficult, creating a need to accept this form of evidence. (Tuḥfat al-Muḥtāj, 10:263–264, Book of Testimony.)

   This complements the school’s rules on creating an endowment. Although the Shāfiʿī school ordinarily requires a valid declaration, a written deed need not survive indefinitely for the endowment to remain provable. (Minhāj al-Ṭālibīn, Book of Waqf.)

3. The Mālikī school

   Al-Dasūqī states:

   «وكما يعمل بشهادة السماع في ثبوت أصل الوقف يعمل بها أيضا في مصرف الوقف وكل ما يتعلق به مثل شروط الواقف وغيرها».

   He explains that testimony based on established report may prove both the existence of the waqf and its beneficiaries and related conditions. He further states, citing al-ʿAdawī, that this form of testimony does not require naming the original founder.

   The surrounding discussion records disagreement over the effect of such evidence where a possessor claims private ownership. Thus, its application remains subject to judicial examination and the school’s evidentiary conditions. (Ḥāshiyat al-Dasūqī ʿalā al-Sharḥ al-Kabīr, vol. 4, chapter on testimony.)

4. The Ḥanbalī school

   Ibn Qudāmah includes waqf and its beneficiaries among the matters provable through istifāḍah, meaning widespread, established knowledge. He explains:

   «ولنا أن هذه الأشياء تتعذر الشهادة عليها في الغالب بمشاهدتها أو مشاهدة أسبابها فجازت الشهادة عليها بالاستفاضة كالنسب».

   He reasons that directly witnessing such matters or their originating circumstances is generally difficult, so testimony through established public knowledge is admissible.

   He also reports Imām Mālik’s observation that testimony concerning the Companions’ endowments depended on transmitted knowledge. Ibn Qudāmah nevertheless requires reliable evidence: on his preferred explanation, the reports must be sufficiently widespread to produce knowledge, rather than merely amounting to rumour. (Al-Mughnī, 10:164–165, Book of Testimony.)

These discussions show that the disappearance of an original deed does not necessarily mean the disappearance of the endowment or the inability to prove it. The jurists recognised that enduring religious and charitable institutions could outlive their founders, witnesses and documents.

The Indian expression “waqf by user” should be understood in this light, while recognising that modern statutory doctrine is not identical in every detail to classical fiqh. Historically, longstanding public use could support an inference of earlier dedication. In Syed Mohd. Salie Labbai v. Mohd. Hanifa (1976), the Supreme Court recognised that immemorial public use could establish a presumption of dedication as a public graveyard, depending on the evidence.

This explains the concern surrounding the BJP-led government’s Waqf (Amendment) Act, 2025. The amendment removed “waqf by user” from the statutory definition while preserving existing properties registered under that category before its commencement, subject to exceptions concerning disputed or government property. Removing this means of recognition raises particular concerns for historic endowments whose original documents or registration are missing.

The Islamic approach protects both genuine endowments and legitimate ownership rights. A centuries-old mosque or cemetery supported by dependable historical evidence should not be dismissed merely because its founding deed cannot be produced. Equally, temporary permission to worship, unlawful occupation or an unsupported assertion does not automatically establish waqf.

Allah knows best.