WAQF

Endowment (Waqf) Q] I am searching for information regarding the governing of Waqf & the terms by which such property under the Waqf can be distributed & whether there has to be a trustee for a Waqf property.
A] Waqf or Endowment means that an individual sets aside a property in order that its benefits be used in a certain way which he or she has specified. In this case, the property itself can not be sold or be replaced , rather it must be maintained & its benefits must be disposed of in the way the donor specified. Therefore, the endowed property cannot be sold except in special cases which have been explained in detailed books & the benefits of that also can only be spent as he specified. If the waqf was for particular individuals, it must be divided among those same people. Since the original property must be kept & its benefits be used, naturally a person is needed to manage its affairs. Such a person is called a “Mutawalli” (trustee). If a trustee has not been appointed, the Hakim-e- Shari ( a Just Mujtahid) will appoint someone to manage its affairs. Naturally, the property must be placed in the hands of a trustworthy person who we are certain will act according to donator’s wishes & will not take possession of that property or betray the trust he was given.

Q] Can a person who gives something in waqf appoint a trustee for it?
A] The person creating the endowment could appoint a trustee to carry out the affairs of the endowment trust according to the deed of waqf.

Islamic Law book section on Waqf

WAQF (RELIGIOUS ENDOWNMENT)

The rulings given in this Paper are according to the fatawa of

Ayatullah Al-Uzama Sayyid Ali-Al-Husaini Al-Sistani Dama-Dhilluhu

unless otherwise indicated.

Waqf means to give away one's property forever to a special group of people and the person is not able to retrieve his property.  If this is done according to shar’iah rules, the object declared as waqf shall come out from the ownership of the person who made the endowment and be used for the purposes designated in the endowment, that could be public or private. 

 RULES REGARDING WAQF

v  If a person makes something Waqf, it ceases to be his property, and neither he nor anybody else can either gift it or sell it to any person. Also, no one can inherit anything out of it. The transaction of a Waqf  property is invalid.

v  It is not necessary to utter the formal declaration of Waqf in Arabic. If, for example, a person says: "I have given this book as Waqf for the students" it will be considered valid.

v  In fact, Waqf is established by conduct as well. Therefore, if a person spreads a mat in a Mosque with an intention of Waqf, the Waqf will be established.

v  In the cases of public Waqfs, like a Mosque, a Madressa, any public utility, or Waqf for general poor or Sadat, it does not require anyone to make a formal acceptance. In fact, even private Waqf, like the one created for one's own children, do not require any reciprocal acceptance.

v  If a person marks a property for Waqf, but regrets before actually making a Waqf, or dies, the Waqf is not considered as established.

v  If a person gives as Waqf a property, he should make it a perpetual and permanent Waqf from the day he declares the Waqf. Therefore, if he says: "I am making this property as Waqf after my death" the Waqf will not be valid, because it would not cover the period from the time of declaration till his death.

v  Also, if he says: "This property will remain Waqf for ten years and will not be Waqf thereafter" or says: "It will be Waqf for ten years and thereafter it will not be Waqf for five years, and will become Waqf again after the expiry of that period", such a Waqf will not be valid.

v  In the case of public Waqf like a Madressa, a Mosque, etc. it is not necessary that it be possessed by any gesture. The Waqf is established immediately upon its declaration as such.

v  It is necessary that the person who makes a Waqf should be Baligh and sane, and should be doing so of his free will and niyyat. Also, he should have the right, according to Shari’ah, of disposal and discretion over his property. Based on this, feeble-minded person who squanders his wealth cannot make a valid Waqf.  

v  If a person gives as Waqf a property, for example, for the poor, or for the Sayyids, or for charitable purposes, and does not appoint the trustee for the Waqf, the discretion with regard to that Waqf rests with the Mujtahid.

v  A carpet which has been given as Waqf in Husayniya (Imambargah) cannot be used in Mosque for offering prayers, even if the Mosque may be near the Husayniyah.

v  If a property is given as Waqf for the maintenance of a Mosque, and that Mosque does not stand in need of repairs, and it is also not expected that it will need repairs for quite some time, and if it is not possible to collect and deposit the accrual till such time when it could be used for the repairs, then, as an obligatory precaution, the income should be used for the purposes which has nearest conformity with the intention of the one who gave it as Waqf, like spending it in other needs for the same mosque, or for the repairs of any other mosque.

v  The  trustee of an endowment of a Mosque cannot exercise the authority vested in him to lend some items of the furniture of the Mosque for the use, outside the Mosque premises, for example, in a wedding party, if such items were dedicated to the exclusive use of the Mosque.  It would not be permissible even to rent such items.

v  If a person mentions in his Will that, for example, he is giving his house as Waqf  after his death for use of widows of our community, it will remain valid only to the extent of one-third unless his heirs agree and are willing to act on it.

v  If Waqf is created for some persons who are present at that time, and also for the persons who will be born later, even if they may not be in the womb of their mothers when the Waqf was made, it will be in order. 
For example, if a person Waqfs a property for his children and after them for his grandchildren, and for every succeeding generation to benefit from it, the Waqf is in order.

v  The endowment fund or property cannot be bequeathed or sold, except in certain circumstances: 

(a)          The transaction of a Waqf property is void. However, if it is so much impaired, or is on the verge of being impaired, that it cannot be possibly used for the purpose for which it was dedicated, like, if the mat of a mosque is so torn, that it is not possible to offer prayers on it, it can be sold by the trustee or someone in his position. And if possible, as a precaution, its sale proceeds should be spent in the same mosque, for a purpose akin to the aim of the person who originally waqfed it.

(b)         When serious differences arise between the persons for whom waqf is made, to the extent that it may be feared that if the waqfed property is not sold, property or life of some person is endangered, some Fuqaha have ruled that the property may be sold off, and the sale proceeds be spent for a purpose akin to the object of the person who originally made the waqf. But this rule is not devoid of Ishkal. But if the person who made waqf made a condition that it be sold when advisable, then there will be no objection to it being sold off.

Q)      If there are donated items, i.e. ceiling fans, ceiling lights, etc. made wakf for an Islamic Center which are still in working condition, does the Management (Mutawalli) of the said Center have the right to replace them with new ones with a view to uplift the Center? 

A)      That is not allowed as long as it is possible to utilize it. (L.O.)

Q)      If the items raised in question 1 have already been removed and replaced with new ones, is there any laid down shari'i conditions of their disposal.

A)      Mutawalli did a sin unless he has permission from the hakim shari. (L.O.)

Q)          If a person wishes to make his property waqf, he should make it a perpetual waqf from the day he declares the waqf.  Therefore, if he said: “This property is waqf after my death”, the waqf will not be valid because it would not cover the period from the time of declaration till his death.

The same will be true in the case of insurance directing in his Will that the money of insurance received after his death to be given to, say Mr. X.

I sent two questions to the Liaison Office of Ayatullah Al-Sistani in U.k. on the subject and the answers received are quoted:

Q1)    If I have a house and have decided to give it as “Wakf” AFTER MY DEATH for use of widows of our community and I put so in my “Will”, is it in order according to the Shari’ah?

Q2)    I have a Life Insurance.  Is it permitted, according to our Shari’ah,  if I decide and put so in my will that the money that will be received from the Insurance Company after my death should be given to Mr. “x”?  Or such a decision is not valid and the money that will be received will have to be distributed to his inheritors?

A)      Will is valid in the third of the inheritance unless the heirs agree. (L.O.)

SUPPLEMENTARY QUESTION

Am I correct in understanding your answer to both my questions that he is allowed to do so only to the extent of one-third of his entire estate.  But as far as the two-thirds are concerned, the deceased person loses his right to dispose of his wealth according to his wish unless his heirs are willing agree to act on it.

A)  That is correct

Q)      Certain items like Qur’an, Mafatihul Jinan, Musalla, Sajdagah, Tasbeeh, etc. have been donated and made Waqf for a Mosque or an Islamic Center.  Can these items be borrowed and taken outside the said premises for use in the function organized by           Mu’mineen with the permission of the Management of the Center.

Please, do indicate if your answer makes any difference where the said items were donated and made waqf, be it a Mosque or Islamic Center.

A)      It depends on the intention of the donor who made it Waqf for the Masjid or Islamic centre. If his intention was to use it only inside the Masjid or Islamic centre, then it will not be allowed to take it outside, but if the intention was to use it in the Masjid or the Islamic centre as well as any other place approved by the Masjid or the centre for the benefit of Mo'mineen, then it will be allowed to borrow it and use it for the benefit of Mo'mineen, but it must be returned safely to the Masjid or Islamic centre. (M.M.)

FOLLOW-UP QUESTION.

Normally when such items are donated to a Masjid or Islamic Center by Mu'mineen, while we are not aware of their intention, they do not specify that they are to be used in the Masjid or Islamic Center only.

Under the above circumstances, is it safe for the Management of the Masjid or Islamic Center to assume that they were not made waqf for use in the Masjid or the Islamic Center only and, therefore, they can be borrowed for use outside the Masjid or Islamic center with permission given by the Management of the Masjid or Islamic Center for the benefit of Mo'mineen,

A)  Yes it is allowed, as it should be the case with most of the donors to seek the benefit of Mo'mineen and not to stop them using such useful items when they require them outside the Masjid or Islamic Center as far as the management takes care of the safety of the items. (M.M.)

An Islamic Center received and has been receiving  donation of the Holy Qur’an and religious books for the Center without any specific mention by the donors that they are ONLY for the use of the Center.

There are more Holy Qur’an and religious books than what the Center needs for use by its members.  In short, they are not in use.

QUESTION

1] Can these extra Holy Qur’an and other religious books be donated to other Islamic Center?

A)      If the Quran copy is not used and will not be used in this centre, then it will be allowed to donate it to another Center which is in need of them. (M.M.)

 

2] Can these extra Holy Qur’an and other religious books be given to individual as and when needed?

A)      No, as the donors usually donate for the public use and not for individual use, unless there is an evidence that the donor is donating for distribution among people in need. (M.M.)

 

3] Who can take such a decision for the purpose mentioned in 1 and  above?

A)      The trustees or Mutawallis are responsible to comply with Shar’iah in this matter and every other matter. (M.M.)

Q)          The Mas'ala of Waqf has been bothering me especially during the olden days in Zanzibar.

For example. my grandfather in his Will had written that after his death his only one property would be used by his wife and after the death of his wife it is to be used for the Bewas although he had children living.

There are many similar examples that provide after their death, their properties be used for charitable purposes.

Are these Wills valid? 

A)          Waqf can only be done during a person's lifetime, and once they do the waqf, they lose control over the property or the benefits of the property.

 After a person passes away, his/her property becomes a part of his/her estate and the distribution is dictated by Islamic law. He/she can specify a particular usage for up to 1/3 of the estate, but the other 2/3 will belong to the heirs as dictated by Islamic law. In such a case, his/her Will would be valid for 1/3 of their property. (MB)

Q)      There are certain phenomenon I often notice in mosques, holy shrines, and some buildings and amenities.  It is to do with the phrase “waqf”, or “endowment”, I see inscribed or written on the buildings themselves or on pieces of furniture therein, and sometimes on copies of the Holy Qur’an. What does this phrase mean?

A)      Any person can provide such things you have just mentioned and other things by way of endowment.  If this is done according to shar’iah rules, the object declared as waqf shall come out from the ownership of the person who made the endowment and be used for the purposes designated in the endowment, that could be public or private.  The endowment fund or property cannot be bequeathed or sold, except in certain circumstances (mentioned earlier in the Paper)  
The person creating the endowment could appoint a trustee to carry out the affairs of the endowment trust according to the deed of waqf.

Q)      Does waqf have a particular mechanism?

A)      No, suppose a person built a place for public worship, not necessarily looking like a traditional mosque building, intending it to be a mosque, then it shall be deemed thus.
However, there are general rules that should be satisfied to make a waqf viable:
1.  Continuity and permanence, in that waqf shall not be in order if the person dedicated the endowment appointed a limited period for it to run through.
For example, suppose you make an endowment whereby you put your house at the disposal of poor people, to live in for a year; this cannot be recognized as waqf.
2.  The person who made the endowment should not be the exclusive beneficiary, or among other beneficiaries, of the endowment.

Q)      What about a person giving the right of disposal over his property, by way of endowment, to a given person, his children, or relatives, for example?

A)      The endowment shall be in order, provided it is enforced at the time it was made, because private endowments should exchange hands on the spot, i.e. the donor must part with the property for the beneficiaries forthwith.

Q)      Earlier, you mentioned that one of the rules of a proper endowment is continuity and permanence in that the donor has no right to fix a duration during which the endowment could run, and on whose expiration his property may revert to his ownership.

A)      That is right.  However, if there was someone wanting to donate, say, his property or assets for a particular use during a specified time, he could tie it up inalienably.  That is, on the expiration of the specified period his property or capital should revert to his ownership.

Q)      Could you expand on that?

A)      Suppose an owner of a vehicle said, “My car is put away inalienably for the transport of pilgrims for five years”, it should so be done, i.e. he cannot change his mind and revoke the promise.  Of course, his vehicle shall revert to his ownership after the expiration of the five years. 

Q)      If the person in the example you have just quoted passes away, would this be a good reason for the vehicle to revert to his heirs?

A)      No, the property or any other assets that were set aside for such a purpose would stay during the entire duration specified by the owner.  It shall revert to his heirs on the expiration of the term originally fixed.

Q)      Is it within the right of any person to consecrate his property for the use of another person for his lifetime?

A)      Yes, it is within his legitimate right, and once he has made that decision he cannot go back on it.  If he dies, though, his property reverts to his heirs.

Q)      Suppose someone said to another, “I grant you and your family this property to live in”, i.e. without specifying the length of their stay in the property.   What would happen?

A)      The occupiers of the property have the right to stay indefinitely; that is as long as they live.  It can only revert to the original owner when they all die.

Q)      And if the owner said to the beneficiary, “I grant you abode in my property during your lifetime”.  Then the owner died.  What shall be the position of the heirs?

A)      They have no right to evict the tenant.  Should he pass away, the property can revert to their ownership.

Q)      Can the husband consecrate one third of the produce of his grove, for example, for the exclusive benefit of his wife during her lifetime, provided that the said portion reverts to his property after her death?

A)      Yes, he is free to exercise such a choice.

Q)      Can the trustee of an endowment of a mosque exercise the authority vested in him to lend some items of the furniture of the mosque for the use, outside the mosque premises, in a wedding party, for example?

A)      So long as such items were devoted to the exclusive use of the mosque, the trustee has no right to lend them.

Q)      Is it permissible that such items be rented?

A)      It is not permissible too.

Q)      Suppose a special fund was set up for the maintenance of a certain mosque, and that there was no need to utilize the money for that purpose.  Can the fund be diverted for the same use in another mosque?

A)      If there was no need now, or in the foreseeable future, for that fund, and it was not feasible to vouchsafe it for the purpose of the endowment in time of need, it could be spent on all the needs of the original mosque, as the person who made the endowment had intended.  Only then can it be spent on maintaining another mosque