Rules of Endowment
Q2009: A group of people pulled down the library building to annex it to the masjid. The library is situated between the school of the masjid and the kitchen of the ḥusayniyyah that is adjacent to the masjid. The result is that the newly created space has become part of the masjid. They did this without obtaining the approval of the appointed trustee. Can their action be sanctioned as valid? And is it permissible to hold prayer in the newly created space?
A: If it is proved that the land, where the library used to be, was dedicated to the library, no one should have the right to change its use or annex it to the masjid. Nor is it valid to hold prayer in that place. Whoever was involved in tearing down the library building has to restore it to its original state. Conversely, there is no objection to holding prayer in the place.
Q2010: Is it permissible to endow a piece of land to be used as a masjid temporarily e.g. for ten years so that it would become the property of the owner after that?
A: It is invalid to do so under the category of temporary endowment. As a result, it does not become a masjid. But one can allocate it to praying people for a certain period of time under the category of ḥabs.
Q2011: A piece of land, which is held in trust, is adjacent to a cemetery. The cemetery has no more space to accommodate more graves. The site of the land makes it ideal to be annexed to the graveyard. Is it permissible to go ahead and turn it into a graveyard?
A: It is not permissible to change the use of the land that is held in trust to that of a graveyard if it was originally dedicated to some other use. However, if it was held in trust so that the proceeds are to be spent for a purpose, there is no objection to leasing it from its shar‘ī trustee for the purpose of using it as a burial ground. That is, if the trustee is of the opinion that it is in the best interest of the trust.
Q2012: Some plots of endowed land were in a site that was appropriated by the state for a development project to build new roads, state buildings, and public parks. The appropriation was made without the permission of the shar‘ī trustee and without compensation. Is this permissible?
Can one conclude that the party benefiting from these lands should be made to compensate the price of the lands and the proceeds that would otherwise have accrued from them? Is it obligatory that the permission of the authorized religious authority be sought to pay the compensation or allocate other lands in replacement of the appropriated ones? And finally is it permissible for the Endowments Office or the shar‘ī trustee to agree on the amount of compensation, without losing sight of the interest of the endowment?
A: No one has the right to make use of the endowment without the permission of the shar‘ī trustee. Nor should anyone have control over an income-generating property of endowment, before it has been leased from the shar‘ī trustee. It is not permissible to sell or exchange the endowment — utilizable for the purpose it has been donated — for another. Should someone damage the endowed property, the perpetrator has to stand to pay compensation.
Should anyone make use of the endowment without permission o the shar‘ī trustee, they have to pay an equitable rent. Such payments should be made to the shar‘ī trustee who should spend it in the avenues identified in the endowment deed. In doing so, there is no difference between a person, establishment, or government department. It is permissible for the trustee of the endowment, without approaching the authorized religious authority , to agree with the party currently making use of the trust, or that which has caused damage/loss to it, the amount of rent or compensation provided that it is in the interest of the endowment.
Q2013: There is a public footpath on land that is held in trust. Since residential houses have been built on adjacent private land, it has become necessary to widen the footpath. Is it permissible to widen the footpath from both its sides on a 50-50 basis? Supposing that this is not feasible, is it permissible to lease the required area of the land from the trustee to go ahead with the widening project?
A: It is not permissible to [build] a footpath or a road on the endowed land unless it is absolutely necessary or building the road would be subservient to the endowment itself. However, there is no objection to leasing the land held in trust to widen the footpath, safeguarding the interest of the endowment in the process.
Q2014: Twenty years ago a plot of land was donated, by way of endowment, to be used as a graveyard. The donor made himself trustee and after his death a cleric, whose name was mentioned in the original charter of the endowment, should be appointed a trustee. He further directed that, after the death of the cleric, the trustee should be elected according to a certain mechanism. Has the present trustee the right to alter all, or some of, the provisions laid down in the endowment deed or add new ones to them? And should this change affect in any way the main objective behind setting the endowment up, such as turning the land into a car park, would the endowment still be valid?
A: Neither the endower nor the trustee has the right to change or alter the purpose of the endowment, especially after it has been realized by actual transfer of it. It is not permissible for endower or trustee to change some of the provisions laid down in the endowment deed or add new ones to them. It does not cease to be endowment following the change in its purpose.
Q2015: A person donated his shop for setting up a fund — affiliated to a masjid — for the granting of ribā-free loans. The donor passed away and the shop remained closed down and in a state of disrepair for several years. Is it permissible to utilize it in some other way?
A: If the shop’s endowment for setting up the ribā-free loan fund has been concluded, since now there is no need for such a fund in that particular masjid, there is no objection to making use of it for setting up such a fund for other masjids. If there is no need for that as well, it can be used for any good purpose.
Q2016: By way of endowment, a person gave a plot of arable land for the recitation of the story of martyrdom of Imam Ḥusayn (a.s.) and holding commemorative gatherings on the occasion of the martyrdom of Imam Ali (a.s.). However, in his will, he asked one of his inheritors to put the land at the disposal of the Ministry of Health to build a dispensary on it. What is the ruling in the matter?
A: It is not allowed to change the endowment from one that is generating income to be spent for a purpose to another in which the very endowment property is used. However, there is no objection to leasing the land to build the dispensary and spend the profit in the avenue the original endowment deed has specified provided that it is in the best interest of the trust.
Q2017: Is it permissible to build masjids or ḥusayniyyahs on already endowed lands?
A: The endowed land cannot be the subject of a new endowment deed for the purpose of building a masjid, a ḥusayniyyah, or anything else. It is not permissible to give it away for free to build a place for prayer or any public facility. However, there is no objection to leasing it from the shar‘ī trustee to build a place for religious worship, a school, or a ḥusayniyyah on it. The rent generated should be spent in the avenues specified in the endowment deed.
Q2018: What is meant by a public endowment and a private endowment? Some people are of the opinion that it is permissible to change the advantage of a private endowment to that not intended by the donor, by, say, making it a private property. Is this true?
A: The generality or specificity of the endowment is determined by the purpose for which it was originally set up. A private endowment is that which is dedicated to one particular person, such as an endowment for one’s offspring or for somebody else and their offspring. A public endowment is that which is set apart for a purpose of public interest, such as masjids, recreation places, and schools. The third type of endowment is that which has at heart the welfare of a particular group of people, i.e. under a generic title, such as the poor, the orphans, the sick, and the financially destitute traveler.
In essence, there is no difference in all these three types of endowments. There are, though, differences in the rules and effects of each one of them. For example, for the endowment of public services, as well as the generic title one, to be concluded, it is not a condition that someone should accept the endowment deed as the other party [i.e. the beneficiary], nor should there exist the beneficiary at the time of uttering the endowment formula. Yet, in a private endowment they are considered as prerequisites. Furthermore, public utility endowments, such as masjids, schools, graveyards,
and bridges cannot be sold under any circumstance, even if they fall into a state of disrepair. This is contrary to the private and generic title endowments whose income is to be spent for specified purposes, in that it is permissible to sell and replace them in certain exceptional circumstances.
Q2019: There is an old copy of the Holy Qur’an in a manuscript form that was donated to the masjid. Since it is now showing signs of wear and tear, is it obligatory to obtain the approval of the Religious Authority to restore it?
A: There is no need for a special permission from the Religious Authority to restore the covers and the papers of the Holy Qur’an and keep it in the same masjid.
Q2020: Does usurping an endowment and disposing of it in avenues other than those specified in the endowment deed call for compensation? And does damaging the property held in trust precipitate the compensation in kind or the value thereof, such as demolition of the property or turning the land held in trust into a road?
A: In a private endowment, such as that dedicated to serving the interests of [one’s] offspring, as well as in an income-generating public endowment, the usurpation of the endowment and having a free hand in it in avenues other than those specified in the endowment deed, or without the permission of the beneficiaries in the first one, and the permission of the shar‘ī trustees in the second one, calls for compensation in kind as well as the compensation of the benefit reaped.
Therefore, the profits from which the rightful users are prevented, whether or not used by the usurper, should be compensated for.
The endowment property should be returned if it still exists or the kind/value thereof if it has been damaged, lost, or disposed of [by the usurper]. The compensation received in lieu of the returns should be spent in the avenues specified in the endowment, and the compensation for the actual property held in trust replaces the lost endowment.
In the case of usurping a public utility endowment, such as masjids, schools, bridges, and graveyards whose beneficiaries are the public at large or the endowment whose beneficiaries are named groups of people [such as the poor and the sick], the usurper, who had used the benefits from these endowments for a different purpose, should stand to compensate the profits in kind insofar as the schools, and public baths are concerned, but not those of the masjids, graveyards, holy places, and bridges. If the actual property held in trust is damaged or lost, the usurper should stand to pay compensation in kind or the value thereof. The value should be spent in replacement of the lost endowment.
Q2021: A person designated his property, by way of endowment, for holding assemblies commemorating the martyrdom of Imam Ḥusayn in the village. Since it is no longer feasible for the trustee to hold such assemblies in the village itself, can he do the same in the town where he lives?
A: If the endowment is specifically for holding the commemorative gatherings in the village itself, and as long as it is feasible to comply with the instructions [contained in the endowment deed] in the village itself — albeit by appointing someone else to do so on his behalf — the trustee should not resort to moving the function to some other place. Indeed, it is obligatory on him to appoint someone else to hold these gatherings in the village.
Q2022: Is it permissible for the neighbors of a masjid to make use of the electricity supply of the masjid for their own private business provided that they pay the cost, if not more, of the power used to the supervisors of the masjid? And is it permissible for the masjid’s administration to give permission to others to use the power supplied to the masjid?
A: It is not permissible to make use of the electricity supplied to the masjid for private purposes. Nor is it permissible for the administration of the masjid to grant such permission.
Q2023: For many years now, a water spring has been set apart, by way of endowment, for public use. Is it permissible to supply its water through a pipe grid to different places, including residential homes?
A: There is no objection to making use of the water provided that installing the water pipes does not change the endowment, that the use is not made in avenues other than those specified in the endowment deed, and that this does not constitute any hindrance to the beneficiaries having access to the water. Otherwise, it is not permissible.
Q2024: A land was held in trust for the purposes of holding commemorative gatherings and serving the interest of theology students. This land is situated to the side of the main road of the village. Some villagers want to build another road on the other side of the land. Suppose that the building of the new road will lead to the appreciation of the price of the land held in trust, is this permissible?
A: The rise in the price of the land held in trust as a result of building the new road on part of it is not a shar‘ī justification to occupy it, i.e. by making it a road.
Q2025: A house that is annexed to the masjid was designated by way of endowment as a residential home for the imam of the congregational prayers. However, the house is no longer capable of accommodating the increasing number of the imam’s family, let alone his guests. The imam has a house that needs some repairs. He also ran into debt arising from the house. Is it permissible for him to rent the house held in trust and spend the rent in settling his debt or repairing his house?
A: If the house was held in trust for the use of the imam of congregational prayer to live in, he has no legal right to rent it, even by way of making use of the rent in settling his debt or repairing his house. Should the house not be big enough to meet his family requirements, those of his guests and members of the public who visit him; he can devise a schedule to use the house for consultation during different times of the day and night. He could also make the house available to another imam of congregational prayer to live in.
Q2026: A caravansary was endowed to generate income from travelers passing by. The trusteeship of, and proceeds from, the endowment used to be vested in the imam of a masjid situated opposite the inn. In view of the fact that the matter was not properly explained to the mujtahids at the time, the inn was demolished and a ḥusayniyyah built on the same site. Should the proceeds of the new place be used for the purposes of the original building?
A: No one has the right to change the caravansary held in trust as a public endowment, whose proceeds were intended for special purposes, to an endowment dedicated to serve a public interest, such as ḥusayniyyahs. It is, therefore, imperative to restore the building of the inn to its original state so that its facilities can be rented to the caravan owners and travelers and the proceeds spent in the avenue specified by the donor. However, it is permissible for the shar‘ī trustee [to forgo the previous arrangement], should he see that the interest of the trust is best served, now and in the future, by
renting the [new] place to hold acts of religious worship and spend the rent in the avenue specified in the endowment deed.
Q2027: A shop was built on a piece of land that forms part of the precinct of a masjid. Is it permissible to ask for the payment of sarqoflī?
A: This should be left to the jurisdiction of the shar‘ī trustee who should take the interest of the trust into consideration. That said, the building of the shop on the site that belongs to the masjid should have been carried out in a proper and shar‘ī manner. Conversely, it is obligatory that it is pulled down and the land restored to the precinct of the masjid.
Q2028: For planning or technical reasons precipitated by the need to develop certain sites into projects such as dams, power stations and public parks, some government departments find themselves appropriating endowed land. Should the executing parties of these projects be liable for paying compensation or rent?
A: Insofar as private endowments are concerned, the beneficiaries have to be approached with a view to buying or leasing the endowed land from them.
As for the endowments whose proceeds are dedicated to certain groups of people, they have to be rented from the shar‘ī trustee. The proceeds from the rent should be spent in the avenue prescribed in the endowment deed. However, if the property is disposed of in any way, compensation should be paid to the shar‘ī trustee so that he can buy another property in replacement of the original endowment and the proceeds generated thereof spent in the avenue specified in the endowment deed.
Q2029: A few years ago, a person leased a business property that was half built. The tenant paid the landlord sarqoflī. He then finished building the property with money from the rent of the property with the permission of the landlord. During his tenancy, the tenant bought from the landlord half of the property. The sale was officially registered. The landlord now claims that the property was an endowment. The trustee is demanding the payment of sarqoflī again. How do you adjudge the matter?
A: If it is proved that the land on which the property was built is an endowment, or that the tenant admitted that, all the concessions conceded by the so-called landlord should no longer be binding. Indeed, it is obligatory to sign up to a new contract with the shar‘ī trustee so that the tenant could continue making use of the said property. The tenant can demand the so-called landlord to pay him back.
Q2030: If we know that a certain property is an endowment, although the avenue in which the proceeds are to be spent is not known, how should the residents and farmers, making use of the land, go about the matter?
A: Should the endowed land have a trustee, the parties making use of the land should approach him with a view to leasing the land. Otherwise, they should bring the matter up with the authorized religious authority.
As to the avenues for which the endowment should be spent, there are different cases as follows:
a) we doubt whether the beneficiaries belong to category a, b, or c but there are some people who belong to all the possible categories, then, we should spend the proceeds for them e.g. the property was endowed for the descendants of the Holy prophet (a.s.), the poor, or religious scholars, then we give it to the poor religious scholars among the descendants of the Holy Prophet (a.s.);
b) the foresaid case but we cannot find some people who belong to all the possible categories then three cases are recognized:
1) the categories are maḥṣūrah, in which case, we should draw a lot to determine the beneficiaries;
2) The categories are not maḥṣūrah but are related to some groups of people, in which case, the proceeds are ruled as the property of an anonymous owner. It is obligatory to give them to the poor;
3) The categories are not maḥṣūrah but are related to some purposes like a masjid, a bridge a shrine, etc, in which case, it is obligatory to spend the proceeds for projects of common interest among the categories.
Q2031: A piece of land has been used for many years now as a public graveyard. The dead body of one of the descendants of the Imams (a.s.) is buried there. Some 30 years ago a bathroom was built to be used for performing ghusl for the dead bodies of Muslims. It is not known whether the land is held in trust as a public graveyard or a private one — for the tomb of the descendant of the Imam. Nor is it known whether the building of the bathroom was shar‘ī? Is it permissible to use the bathroom for performing ghusl to the Muslim dead?
A: It is permissible to wash the Muslim dead in that bathroom, as they have been doing all this time. It is also permissible to lay the dead to rest in that land that constitutes part of the precinct of the mausoleum unless one is sure that it is against the purpose of the endowment.
Q2032: It is widely believed that some lands in our area used for agriculture are an endowment of the mausoleum of one of the descendants of the Prophet (s.a.w). The trustees of the endowment are the living descendants of the Prophet (s.a.w), residing in the area. However, there is no proof pointing to the fact that the lands were endowed. It is said that they used to have a title deed that was lost in a fire. Under the previous regime, members of the public had testified that the land was endowed just to spare the lands any pending distribution. It is also said that the lands were donated to the existing trustees by one of the region’s ruler, as a mark of respect, and in order to exempt them from paying taxes. What is the ruling in the matter?
A: The availability of a written document is not a condition to prove the endowment of the property. Indeed, the declaration of the person who has the land at his disposal, or his heirs after his death, that it is an endowed property is a sufficient proof of endowment. Precedence is another way of proving the endowment, i.e. any action with regard to the property in its capacity as a trust. The testimony of two just men, or the common knowledge that leads to peace of mind that it is in their ownership is an admissible way to prove the same. On the availability of any of these proofs, the property is ruled to be an endowment. Otherwise, the property should be deemed privately owned by the holders of the actual control.
Q2033: Can a five-century-old endowment deed be relied on as a proof of the property held in trust?
A: The endowment deed alone cannot be relied on as a legal proof of the endowment of the property unless one is certain that its contents are correct.
However, if among the old people the property is famous as an endowment or the person in control of the property admits its endowment so that it may make one know it for sure or to become certain about it, or there is an established practice, i.e., they went about running the property as an endowment, the property is ruled to be an endowment. At any rate, passage of time should not render the endowed property to cease to be so.
Q2034: I inherited three shares of river water from my father. I have been given to understand that the said shares were part of 100 shares, 15 of which are endowments. It is not known whether the three inherited shares were among the seller’s privately owned shares or constituted part of the 15 endowment shares. What should I do? Should the sale of the three shares be rendered invalid, thus giving me the right to return them to the seller, who is still alive, to refund me the sale price?
A: If, at the time of sale, the seller was the rightful owner of the water shares he sold, even though he did not know that the shares he sold were his own private property or those of the trust, the sale can be ruled valid, the purchaser should be the rightful owner of the purchased shares, and the property can be transferred, by way of inheritance, to the deceased’s heirs.
Q2035: A cleric donated part of his property, of fields and groves, to be a private endowment. He noted that in the title deed of the trust. This was witnessed by a number of Islamic scholars. Is this arrangement sufficient to render the endowment valid?
A: If it is proved that, in addition to drawing up and finalizing the endowment deed, the donor handed over the actual property to the beneficiaries or the shar‘ī trustees, who in turn had the property at their disposal, the said endowment is ruled valid and binding.
Q2036: A piece of land was donated to the Health Office to build a dispensary or a health centre on it. The officials have yet to proceed with the building work. Is it permissible for the donor to reverse his decision and retrieve the land? And is handing the land over to the Office per se sufficient to realize the endowment, or should this hinge on the building itself?
A: Should the handing over of the land by the landlord to the Health Office have been done after endowing it in a shar‘ī manner so that it was at their disposal as the shar‘ī trustees, he has no right to revoke his decision and retrieve the land. Yet, if at least one of the two conditions was not realized, he has the might to get his land back.
Q2037. A plot of land was donated by its owner for building a masjid on it. This was witnessed by the cleric of the neighborhood and two just witnesses. After a while, a group of people took control of the land and built houses on it. What should those people, as well as the trustees, do?
A: If, after the endowment is done, the land that was meant to be held in trust was handed over to the shar‘ī trustee or the beneficiaries of the endowment, all the rules and conditions governing endowments should apply. Therefore, others building houses for themselves on the land would amount to usurpation. Thus, they should pull down the buildings and relinquish the land to the shar‘ī trustee. Conversely, the land should still be in the ownership of its rightful owner and any action over the land by other parties is dependent on the permission of the owner.
Q2038. Eighty years ago, a person bought a plot of land. After his death, his inheritors carried out certain transactions in connection with it. The buyers passed away. Their inheritors became the holders of the actual control. Forty years ago, they officially registered the land in their names and built houses on it. A person has now come forward, claiming that the land has been endowed for the benefit of the children of the original owner and that he did not have the right to sell it. It is worth mentioning that during the eighty years no one laid a claim to the ownership of the land. There is neither a document nor a testament that could be relied on to prove the claim. What should the position of the rightful owners of the land be?
A: If the claimant is unable to prove in a shar‘ī way his claim of endowment and impermissibility of selling the land, all the transactions carried out are valid and the holders of actual control of the property should be deemed as the owners.
Q2039: The Municipal Authority leased, from the shar‘ī trustee of an endowment, two irrigation canals that pass through some arable land. The third canal, which was held in trust for the benefit of theology students of the neighborhood and the offspring of the donor, has dried up. As a result the land surrounding it became derelict. The Lands Authority wants to take control of the land because it was not cultivated for many years. Can this be right?
A: The land held in trust cannot be stripped of its title as a result of leaving it uncultivated, even for years on end.
Q2040: There are lands adjacent to the Holy shrine of Imam Riḍā (a.s.) that are held in trust. There is also in the sanctuaries of this property grazing patches and forests. Some official departments issued an order rendering the grazing patches and forests as though they are some kind of anfāl. They did so in compliance with the rules and regulations governing grazing lands and forests. Are the sanctuaries deemed part of the land held in trust?
A: The grazing lands and forests bordering the lands held in trust are treated in the same way as the endowment lands if they are part of their precincts.
Accordingly, the rules and regulations governing anfāl and public property should not apply. The final arbiter in identifying the sanctuary and its area is local tradition and expert opinion.
Q2041: Forty years ago I donated a property to build a refuge for orphans on it. The trust, verified by the Office of Endowment, has been running ever since. Of late, someone has produced a copy of a document stating that the land had, for the past three centuries, been held in trust. Since the original document does not exist, the document in question does not mention the name of the trustee, there has never been a precedent of any practice that the land had been held in trust then, and since the holders of the actual control reject the claim, can this document be a hindrance to the continuation of the existing endowment for the purpose it was set up to serve?
A: The endowment deed alone, whether original or copy is not a legal proof of the endowment. So long as the previous endowment cannot be established in a valid way according to Islam, the existing one is deemed valid and fully operational.
Q2042: A person donated a piece of land for a ḥusayniyyah to be built on it. However, the land has become a public road leading to the village. What is left of it is an area of 42 square meters. Is it permissible for the owner to restore it to his ownership?
A: Should this have happened after the endowment formula is uttered and the property turned over to the trustees or the beneficiaries, the remaining land should still be deemed part of the entire land held in trust. Therefore, it is not permissible for the donor to rescind his decision. Otherwise, it should remain part of his own property; he also can exercise the right of disposal over it.
Q2043. Is it permissible for an inheritor who has a share in the estate to donate it all by way of endowment? And is it valid to draw up the endowment deed in his name alone?
A: It is valid in his share of the estate alone. As for the shares of the rest of the heirs, this is dependent on their permission.
Q2044: A person bequeathed his property to his sons by way of endowment. After his death the Religious Endowments Authority, without due attention to the provisions laid down in the endowment deed, registered the endowment in the names of the man’s children, i.e. male and female. Should this mean that the daughters become eligible to have shares of the land?
A: Registering the names of the females alongside the males in the title deed of the land held in trust is not sufficient for their entitlement to shares of the proceeds of the land. If it is proved that the land was bequeathed exclusively to the male children, it should be theirs alone.
Q2045: A century ago, a property situated on a riverbank was held in trust. In compliance with the law banning the sale of lands held in trust, an official title deed was issued confirming that the said property is held in trust. However, the government turned the property into a mining site. Does this render it anfāl or should it remain an endowment?
A: If it is proved that the land was legally made an endowment, no one, whether individual or government has the right to appropriate it. It should, therefore, remain an endowment, coming under the umbrella of the rules governing endowments.
Q2046: In a teaching centre, there is a laboratory. The land on which the laboratory was built used to be part of an adjacent cemetery which is still in use.
The employees use the laboratory to say their prayer. Is the prayer performed in that place valid?
A: Unless it is proved that the land of the existing laboratory is held in trust as a burial ground, there is no harm in saying prayer there. Nor is there any harm in having the right of disposal over the place in any [legitimate] way. However, if it is proved by way of valid evidence that it is an endowment designated only for burial of the dead, it should be restored to its original state and made available for that purpose. Rulings of usurpation are applicable to the installations erected on the land.
Q2047: There are two adjacent business properties that are held in trust, each of which has its own donor and endowment deed. In other words, they are two independent entities. Is it permissible for the tenant of both the properties to open up a door between them?
A: Making use of the property held in trust and having free hand in it, albeit with the interest of the other endowment property, should be according to the provisions laid down in the endowment deed and subject to the permission of the trustee. The tenant, therefore, has no right to go it alone by opening a door between the two properties to pass through because he happened to be the tenant of the next-door trust.
Q2048: Some priceless manuscripts and books that are found in some centers and private homes are held in trust in those places. Some of these gems are on the road to ruin because of neglect. Is it permissible to transfer these manuscripts and books to a special room in the central library to preserve them from wear and tear, and eventual loss, without changing the nature of the original charter of the endowment?
A: It is not permissible to move these priceless books to another place, so long as it was made conditional, at the time of finalizing the endowment deed, that the benefit derived from them should be where they are kept provided that it is viable to keep them in good condition. Alternatively, there is no objection to transferring them from where they belong to some other place where they can be maintained in good condition.
Q2049: A person donated some grazing land by way of endowment for the sole benefit of the holy places. The trustee of the endowment leased part of the land to some people. Over the years, the tenants built residential houses and business properties on the land that was not suitable for pasture. They also developed the grazing land into arable land for crops and fruit trees.
a. In view of the fact that natural grazing lands are considered a kind of anfāl and public property, was the original endowment valid and can it still be so?
b. Since there has been a change of use and a development of the site which made it more attractive, how should one go about fixing the rent?
c. Since the grazing land has been developed into fully fledged groves and fields by the tenants themselves, should the tenants pay the same rent, i.e. that of grazing land, or should the rent be on a par with the existing state of the land?
A: After it has been established that the pasture was endowed, as long as it is not proved that the grazing land was a kind of anfāl at the time of setting up the endowment, and if the donor was the rightful owner of the land, setting it up as endowment is ruled correct and shar‘ī.
Therefore, it cannot be stripped of its title as endowment by the mere fact that the tenants have turned it into fields, groves and residential property. Indeed, if they have secured the right of disposal over the land held in trust by way of leasing it from the shar‘ī trustee, it is obligatory on them to pay the rent agreed in the original lease contract. The trustee should spend the rent in the avenue specified in the endowment deed. Should putting the land at their disposal have been done without a proper permission from the shar‘ī trustee, the tenants are liable to pay an equitable rent for the duration they had actual control.
However, if, at the time of declaring the trust, the land was derelict or anfāl or the donor was not its rightful owner, the endowment is invalid. That which the holders of actual control have reclaimed of the land by virtue of developing it into fields, orchards, and residential houses for themselves in accordance with the laws and regulations is rightfully theirs. As for the remaining parts of the land that maintained its original state, i.e. remained derelict, it is considered part of the natural resources and anfāl. It should, therefore, be put at the disposal of the Islamic state.
Q2050. A woman, who has a one-sixth stake in some jointly owned land, sets up an endowment trust for the entire property. Can this arrangement be deemed valid, or is it so insofar as her share is concerned? Assuming that it is valid, is it correct to hold the jointly owned land in trust before partitioning/ distributing it? And if holding the share of the jointly owned land in trust before the distribution is valid, what should the position of the other partners be?
A: There is no legal barrier to setting up a trust concerning the share in a jointly owned property, even before partitioning it provided that it can be of use to the beneficiaries, even after partitioning. However, endowing the entire property by one of the joint owners is dependent on the permission of all the owners. The partners have the right to demand the partitioning of the property to have their shares separate from that of the endowment.
Q2051: Is it permissible to revoke the provisions laid down in an endowment deed? And should it be so, what are the boundaries for such revocation?
Can time be a determining factor in abiding by the provisions of the endowment?
A: It is not permissible to flout the shar‘ī provisions laid down by the endower in the endowment deed unless it is impossible or unbearably difficult to observe those provisions. Length of time has no part to play in the process.
Q2052: Some lands that are held in trust have watercourses that have stones and mineral deposits. Do these stones and mineral deposits form part of the endowment?
A: Big rivers and flood water courses, that border the lands held in trust or cut across them, are not part of the endowment, except those areas that have, by tradition, been deemed sanctuaries of the endowment. Such sanctuaries should be accorded the same treatment as the endowment itself. As for the stones and mineral deposits found in the streams that are held in trust, they should be treated as though they were part of the endowment.
2053: A theology school building fell into disrepair. The proceeds, from its endowment, were deposited in the bank. Since rebuilding the school with these proceeds takes a long time, can the money be deposited in a savings account where it can yield some returns?
A: It is the legal duty of the trustee to spend the proceeds of the endowment in the avenues specified in the endowment deed. However, there is no problem in leaving the money with the bank, in a savings account, until such a time when it becomes possible to spend it appropriately provided that this would not lead to any delay in spending it in the avenues of the endowment in due course. Nor is there a problem in making some profit from the deposited money to spend it for the purposes mentioned in the endowment deed provided it is made by way of a legal contract.
Q2054: Can the land, endowed for the Muslim public good, be leased to a non-Muslim?
A: If the endowment is of the income generating type, there is no objection to leasing it to a non-Muslim provided that it is in the interest of the endowment.
Q2055: A few months ago, the dead body of a cleric was buried in endowed land. This was done with the permission of the endowers. Someone has come forward, claiming that the burial was not permissible in the land. What is your view on the matter? Supposing that the claimant was right, would paying money in compensation for using the land for burial solve the problem?
A: There is no problem in that provided that the burial of the dead body in the endowed land does not contravene the purpose of the endowment.
Conversely, it is not permissible. In this case, if the dead body should be exhumed to be buried somewhere else, as a matter of caution, before it is decomposed unless exhumation is unbearably difficult or violates the sanctity of the [dead believer]. In any case, paying money or compensating for the land in kind would not solve the problem.
Q2056: some property was held in trust for the exclusive benefit of the male children of a donor for generations to come. Should the endowment cease as a result of the beneficiaries relinquishing, for any reason, their rights in the endowment? How should the succeeding generations react to this relinquishment? What should the position of the shar‘ī trustee of the endowment vis-à-vis the rights of future generations be?
A: The endowment does not cease to exist by the previous beneficiaries foregoing their rights. Such relinquishment by the former generation should not affect the rights of the succeeding generations. Nor should it render the endowment redundant. When their turn to benefit from the endowment comes, the succeeding generations have every right to demand their share in full.
Even if it was legally permissible for the older generation to sell the property held in trust, they should have bought a replacement property for the benefit of the future generations. The trustee should run the endowment with the interest of all the generations at heart.
Q2057: In the matter of lack of evidence as to how to go about dividing the proceeds of endowment between the beneficiaries, among the offspring of the testator, which procedure should come into play here? Would the law of inheritance apply or the division be equal?
A: If it is not known that the endowment is designated equally between all of the beneficiaries or in accordance with their share of inheritance, it is ruled as an endowment for them equally and the proceeds are given to male and female beneficiaries of each category equally.
Q2058: For many years now, it has not been possible to send the proceeds of an endowment to the beneficiary — an Islamic seminary in a particular city.
Substantial amounts have since accrued. Is it permissible to spend the proceeds on other Islamic seminaries in other countries?
A: The duty of the shar‘ī trustee or the Endowments Authority is to collect the proceeds of the endowment and spend the same in the avenues specified in the endowment deed. However, if, temporarily, it is not feasible to send the money to the city where it should be spent, it has to be kept until such a time comes when it would be possible to send it to its intended destination. If it becomes impossible to send the proceeds to the Islamic seminary designated in the endowment deed, even in the near future, there is no objection to spending it on the Islamic seminaries in other regions.
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