In view of the deficiencies found in the earlier theories, the focus was shifted to trace the origin of the English trusts from the Islamic laws. The concept of trust emerged during the period of increased contacts between the Europe and the Middle East. During the eleventh and twelfth centuries when the Crusades happened, a number of Europeans were sent to the Middle East and during this period, pilgrimages to the Holy Land were very common.
The presence of the Orders of Templars and Hospitallers in Jerusalem led to the establishment of Inns of Court in the fourteenth century England. It may be noted that the Inn courts were the successors to law schools associated with the churches established during mid 11th century. The Institution of Inn courts evidence some transformation of legal institution from the Muslim world to England.
Comparison of the Waqf and the Trust The purpose of trusts in England was the extension of them to the settlement of family properties apart from the charitable purposes. This is the case with waqfs also. The similarities between waqf and trusts as noted by scholars are: (i) Under both Waqf and trust the property is reserved and the usufruct is appropriated (ii) Both are created for the benefit of specific individuals or for general charitable purposes(iii) The corpus becomes inalienable both in the case of the trust and waqf and under both the concepts estates for life in favour of successive beneficiaries can be created without subjecting the trusts to the laws of inheritance or the rights of the heirs (iv) The continuity of both waqfs and trusts are secured by the successive appointment of trustees or mutawallis In respect of both waqfs and trusts, the actors remain the same with waqif or settlor, mutawalli or trustee, and the beneficiaries including both present and future beneficiaries.Because of the presence of the feature of the perpetuity with regard to the application of the trust income, (irrespective of the rule against perpetuities) the trusts formed under English law are considered more similar to Waqfs. The point of distinction between waqf and trust is that in waqf there is the automatic reversal (express or implied) of the trust property to charitable purposes when the specific object for which waqf was created ceased to exist, which is not the case with English trusts.The reason for this difference is that a waqf cannot exist without an ultimate charitable purpose. This difference exists between waqf ahli where the waqf is created for specific family benefits and the non-charitable trusts in England. However waqf khairi is created for charitable purposes from the beginning and therefore there is no necessity to incorporate any provision for the reversal of the property for charitable purposes. Another difference may be found in the vesting of the ‘legal estate’ of trust property on the trustee in the case of English trustees.Although the trustee becomes the nominal owner of the trust property, he is duty bound to administer the property with care and diligence for the utmost benefit of the beneficiaries . Based on the above discussion it can therefore reasonably be stated that the English trust resembles more to the waqf. The coincidences and similarities have to be given serious consideration in view of the fact that there were many opportunities for transmission of Muslim institutions existed at the time the concept of trust form of settling the property emerged in England.
