Fatwas on Sale of Endowment and Changing its Use
Q2061: A person donated a piece of land for a ḥusayniyyah to be built on it. The ḥusayniyyah was built. However, a group of people turned a part of the ḥusayniyyah into a masjid. They are now holding congregational prayers in the place as though it were a masjid. Can their action be sanctioned, and should it follow that the rules governing masjids can apply to what seems to be a de facto masjid?
A: Neither the donor nor anyone else has the right to turn the ḥusayniyyah, that has been the subject of the endowment, into a masjid. Thus, it cannot be deemed a masjid. Nor can the rules and regulations governing masjids be applied to it. However, there is no problem in holding congregational prayers there.
Q2062: A person sold a piece of land they inherited and signed a binding contract to this effect. After a while, it transpired that the land was held in trust.
Would this revelation render the sale null and void? If this is so, should the vendor compensate the buyer for the price he paid for the land, at the time of sale, or should he pay the current market price?
A: After it had been found that the sold land was an endowment and that the vendor had no right to sell it, the sale is invalid. Accordingly, it has to be restored to its original status, i.e. a trust. The vendor has to pay back the price he received from the buyer for the land. As to decrease in purchasing power of the money, they should reach an agreement as per obligatory caution.
Q2063: A century ago, a person made his property endowment for his male offspring. He made a provision in the endowment deed that in the event of any of beneficiaries becoming poor by shar‘ī definition, they should have the right to sell their shares to the other beneficiaries. A few years ago some of them took this option and sold their shares to the other shareholders. Some people have raised some objections as to the legality of such a sale on the grounds that the property was an endowment. It is to be noted, however, that this is a private endowment. That said, would the sale and purchase, which were carried out in accordance with the provisions laid down by the endower, be sanctioned?
A: There is no objection to any beneficiary who has become poor to sell his share to the other beneficiary provided that the condition stipulated by the endower in the endowment deed is proved. Accordingly, such a sale should be deemed valid.
Q2064: I donated a piece of land to the Ministry of Education to build a school on it. However, after further research and consultation, I have found out that if the land were sold, it would fetch a price sufficient for building several schools in other parts of the town. I approached the said Ministry with a view to selling the land under its auspices in order to build a number of schools in the southern part of the town or in deprived areas. Is it permissible for me to do that?
A: If, after the endowment deed is concluded, the land was actually handed over to the Ministry of Education, in its capacity as the recipient of the endowment, you have no right of disposal over the land any longer. Nor do you have the right to revoke the trust. However, if the special formula of endowment — even in a language other than Arabic — was not uttered, or if the Ministry did not take actual possession of the land, it would still be in your ownership and you have the right of disposal over it.
Q2065: The gold, weighing 3 kg. and adorning the domes of a holy shrine, had been stolen on two occasions. However, it was retrieved on both occasions. In order to prevent future robbery, is it permissible to sell the gold and spend the proceeds on repairing the building of the holy shrine?
A: The mere fear of losing the gold, whether as a result of robbery or in any other way, is not a shar‘ī reason to sell it. However, if the shar‘ī trustee sees it considerably feasible — due to some evidence — that the gold has been kept [as a reserve fund] to spend on the maintenance of, and other expenditure on, the holy shrine, or it was absolutely necessary to repair the building, and there were no funds available to carry out the work, there is no objection to selling the gold and spending the money in carrying out the necessary repairs to the holy shrine. It is advisable for the Endowments Authority to supervise the maintenance work.
Q2066: A person set up an endowment trust of arable land and irrigation water for the benefit of his sons. Since he has many sons, the cost of cultivating the land is high, and the yield is low, nobody seems to be keen on tilling the land. If the situation remains thus, the land would turn into a wasteland. Is it permissible to sell the property and spend the proceeds in charitable causes?
A: It is not permissible to sell or alter the endowment so long as it is feasible to benefit from it in the avenue specified in the endowment deed, even by leasing it to some of the beneficiaries or to a third person with a view to spending the rent in the appropriate avenue. Another way could be by changing the use of the property held in trust. If it is not at all feasible to make it of use, it is permissible to sell it. However, should this course of action be taken, it is obligatory to buy other property with the proceeds made in order to spend the same in the avenues specified in the endowment deed.
Q2067: A pulpit was donated to a masjid. It transpired that it is not feasible to make use of the pulpit because of its height. Is it permissible to exchange it for another suitable one?
A: There is no objection to modifying the pulpit if it is not at all possible to make use of it in its present form, neither in the intended masjid nor in other masjids.
Q2068: Is it permissible to sell the land held in a private trust that was acquired by the donor by virtue of the execution of the Land Reform Act?
A: If, at the time of endowing the land, the donor was the rightful owner of the property, and his action was done in a proper and shar‘ī manner, neither he nor anyone else can sell, buy, change, or alter the property held in trust, even though it is a private endowment. That said, it is perfectly shar‘ī to sell or buy the property in exceptional circumstances.
Q2069: My father donated a piece of land that boasts few palm trees with the intention of using the proceeds in feeding the public during the commemoration of the martyrdom of Imam Ḥusayn (a.s.) in Muḥarram and the Night of Destiny (Qadr) in Ramadan . A century on, the palm trees can hardly yield anything. Being the eldest son of my father and his appointed agent, is it permissible for me to sell the land and build a school with the proceeds of the sale so that it can be a source of continuous charity for his soul?
A: If the land is held in trust, it is not permissible to sell or exchange it under the pretext that the trees have become fruitless. Indeed the trees should be exchanged for palm seedlings — even by spending some money on it — with a view to spending the proceeds in the avenues prescribed in the endowment deed where possible. Otherwise, the land has to be put to use in some other way, such as leasing it — either for cultivation or building houses, in order to spend the proceeds accrued in the appropriate avenues.
Generally speaking, it is not permissible to sell, purchase, or exchange the land, so long as it is feasible to make use of it in any way possible. However, there is no objection to selling the palm trees, should they have become fruitless. The proceeds from the sale can pay for new palm shoots where possible. If this is not feasible, the proceeds could be spent in the avenues described in the endowment deed.
Q2070: A person donated building materials to a masjid. Some of these materials have become surplus to the requirements of the building. Is it permissible to sell the extra materials and use the proceeds in settling the outstanding debts incurred by the masjid management and in meeting its needs?
A: Should the building materials and machinery have been designated for the purpose of building a masjid and were no longer the donor’s own property, the useful ones cannot be sold — even for another masjid. Instead, what could be used of these materials, in the intended masjid or in other masjids, should be directed to serve those purposes. If the donor has confined the use of the materials to building this very masjid, the surplus materials should revert to his ownership where he can have the right of disposal over them.
Q2071. A person made his private library an endowment for his male offspring. Since none of his offspring has become a clergyman, the books were left to gather dust. Termite damaged some. Others are on the road to ruin. Is it permissible for the inheritors to sell those books?
A: Should the person have made the endowment conditional on his sons becoming theology students and eventually clergymen, such kind of endowment is null and void to start with, because it was made dependent on a particular requirement. If the endowment was set up for their benefit, yet none of them had the capacity to do so, even sometime in the future, such kind of endowment is valid.
It is, therefore, permissible for them to put the books at the disposal of other people who have the capacity to benefit from them. The same applies if the endowment was made for the benefit of those who can use them, in which case the sons, should they be the trustees; have to put the books at the disposal of those people. However, they have no right to sell the books.
Q2072: A piece of arable land, which is held in trust, was higher than the adjacent lands. Therefore it was impossible to water it. Now it is leveled out. The extra soil was heaped in the middle of it, preventing any efforts to cultivate it. Is it permissible to sell the extra soil and spend the proceeds on an adjacent holy shrine?
A: Should the surplus soil prove a hindrance to making use of the land held in trust, there is no objection to clearing and selling it with a view to spending the proceeds in the avenue specified in the endowment deed.
Q2073: A number of business properties, built on a land held in trust, were leased to the existing tenants without charging them sarqoflī. Can the tenants ask potential tenants to pay such sarqoflī? Assuming it is permissible for them to do so, to whom should the sarqoflī go, i.e. to the tenants or to the endowment trust — so that the proceeds could be spent in the avenues specified in the endowment deed?
A: If the shar‘ī trustee, while not losing sight of the interest of the endowment, gave permission to charge sarqoflī, the latter should be treated as part of the proceeds of the trust. Such income should, therefore, be spent in the avenue described in the endowment deed. Should the trustee withhold such permission, any transaction would be deemed unlawful. Accordingly, if the contracts were concluded, the recipient of the money should return it to the buyer. However, the existing tenants, who had no right to ask for the payment of sarqoflī in the first instant — yet sublet the properties for sarqoflī, should have no right to appropriate this money.
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