Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > The waqf of the dhimmi for mosques and pious works
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Updated on 27 September 2026 at 3:52 AM
This part belongs to the section: All parts.
This continuation of the chapter on the pillars of the waqf examines the validity of the waqf according to the status of the one who establishes it (the waqif): the dhimmi, the apostate, the unauthorized person (faduli), and the imam or the sultans. It then sets out the second condition, namely that the waqif own the endowed property, followed by the regime of the conditions laid down by the waqif: forbidden conditions, conditions that fall on their own, and conditions that must be followed. All the positions of the four schools, the classical references and the worked figures are reported faithfully from the Mawsu'a al-fiqhiyya.
The sheet opens with the end of a list of works: the waqf of the dhimmi is not valid either for similar works, nor for any benefit of that kind, unlike the Muslim's; the text states this explicitly, and al-Harithi and others were decisive on it. The compiler says: we know of no disagreement thereon. It was nonetheless declared valid, in "al-Wadih", that the dhimmi's waqf for an oratory (bi'a) and a church is valid; his statement on the waqf of a dhimmi for another dhimmi has been reported earlier.
Secondly: the wasiyya (pious bequest) is like the waqf in all of that, according to the sound position of the madhhab, as presented at the head of "al-Furu'"; some said: from a disbeliever. He says in "al-Intisar": if someone vows a charity for the benefit of a dhimmi, it becomes obligatory upon him; it is mentioned in the madhhab and elsewhere that this holds for all cases, and a group reported it by transmission. The Qadi mentioned its validity for prayer mats and lamps. It is said in "al-Tabira": if he bequeaths for something that has neither propriety nor righteousness, such as a church or the books of the Torah, it is not valid; according to him it is valid (al-Insaf 7/15).
As for the waqf of the dhimmi for mosques and pious works (qurub), the jurists differed, as was mentioned previously regarding the waqf of the dhimmi for mosques.
The Hanafis, the Malikis and Ibn Taymiyya hold that the waqf of the dhimmi for a mosque is not valid. The Hanafis state it explicitly: because one of the conditions for the validity of the dhimmi's waqf, in their view, is that the work be an act of drawing near to Allah (qurba) both for us and for them. Likewise if they endow for the pilgrimage or the umra, for it is not a qurba in their eyes; unlike one who endows for a mosque of Jerusalem (Bayt al-Maqdis), for the waqf is valid there since it is a qurba for us and for them (al-Bahr al-Ra'iq 5/204-205; al-Muhit al-Burhani 6/134; Majma' al-Anhar 2/568; Ibn Abidin 4/341; Tanqih al-Fatawa al-Hamidiyya 2/235).
The Malikis say: the waqf of the disbeliever, even if a dhimmi, for a mosque of the Muslims, for a ribat or for a religious qurba is void. That is why Imam Malik returned to the Christian woman the dinar she had sent toward the Kaaba. In a transmission from Ibn al-Qasim: if a dhimmi endows a house for a mosque, it is returned to him.
Abu al-Walid Ibn Rushd (Averroes) posed the following mas'ala: Ibn Abu Hassan asked him about a Christian woman who had sent a dinar toward the Kaaba: should it be placed in the Kaaba? He answered: it is rather returned to her. Ibn Abu Hassan said: this is how Ma'n ibn 'Isa related it to me from Malik. Muhammad ibn Rushd said: this statement is correct, for the Kaaba and its Muslim inhabitants should be kept away from spending a Christian's wealth there; her intent was only to burden them with what weakens them: that recourse be had to her wealth for what they must undertake of the matter of their qibla toward which they turn in prayer and toward which they make pilgrimage; she must not derive any benefit from it.
Success comes from Allah (al-Bayan wa-l-Tahsil 4/43-44).
Ibn Arafa said: the habas (inalienable pious endowment) of the disbeliever in a religious qurba is not valid, even if it be of general worldly benefit, such as building bridges; its return is a matter of consideration, and the more apparent opinion is that it is returned if there is no need for it (al-Taj wa-l-Iklil 4/565; al-Sharh al-Kabir with al-Dasuqi's hashiya 5/460; Sharh Mukhtasar Khalil 7/82; al-Sawi's hashiya 9/162; Tahrir al-Mukhtasar 4/644; Minh al-Jalil 8/117).
Shaykh al-Islam Ibn Taymiyya said: it is fitting to lay down as a condition upon the waqif that he be among those whom that qurba can concern; thus if a disbeliever wants to endow a mosque, he is prevented (al-Fatawa al-Kubra 4/506; Kashshaf al-Qina' 4/300; Matalib Uli al-Nuha 4/286).
The Shafi'is and the Hanbalis, for their part, admit the validity of the waqf for mosques, even from a dhimmi. The Shafi'is say: the waqf of the disbeliever is valid, even for a mosque, for the waqf is not a pure qurba; that is what distinguishes it from the vow, whose validity is lacking (Umayra's hashiya on Kanz al-Raghibin 3/239).
The Hanbalis say: it is required that the waqf be an act of righteousness (birr), a comprehensive term for all good; its origin is obedience to Allah, whether it proceeds from a Muslim or a dhimmi. For that for which the waqf of a Muslim is not valid is not valid from the dhimmi either, such as endowing for unspecified categories: the poor, the needy, the fighters, the scholars, the students. The waqf may also bear upon what is not human: the pilgrimage, the military expedition, copying fiqh, copying knowledge, copying the Quran, such as water fountains (siqaya), bridges, the repair of roads, mosques and schools (Kashshaf al-Qina' 4/299).
Al-Mardawi said: the second condition is that the waqf be an act of righteousness, whether the waqif is a Muslim or a dhimmi; Imam Ahmad stated it explicitly: the needy, the mosques, the bridges, the close relatives. This is the madhhab, followed by most of the companions, and many of them were decisive on it (al-Insaf 7/12-13).
The jurists differed concerning the waqf of the apostate: is it valid from him or not? The Hanafis say: it is required that the waqif have a religion (milla); the waqf of the apostate is therefore not valid if he is killed or dies in his apostasy, and it becomes valid if he returns to Islam.
The waqf of the Muslim made during his faith is likewise annulled if he apostatizes, and it becomes a share of inheritance, whether he is killed in his apostasy, dies, or returns to Islam, unless he renews the waqf after his return. The waqf of the apostate woman, however, is valid, for she is not killed. It is said in "al-Durr": and in "al-Wahbaniyya": a man's endowments are annulled by his apostasy; so during his apostasy, no waqf is more worthy of being void.
Ibn Abidin said concerning this statement that it contains two issues. The first: if he endows and then apostatizes (may Allah protect us), his waqf is void even if he returns to Islam, as long as he has not renewed his waqf after his return, for his deed is annulled by the apostasy. Ibn al-Shihna examined this in his commentary: the annulment bears upon the invalidation of the reward, not upon what the right of the poor is attached to; al-Shurunbaliyya answered with what is found in "al-Is'af": since he made the remainder for the benefit of the poor, which is a qurba, it was annulled.
Ibn Abidin replies: this answer does not answer the question; it is found in "al-Is'af" as an answer to another question, namely that if someone endows for persons designated by name, the waqf is not a qurba. The correct answer is: the waqf for the poor is a subsisting qurba until the apostasy, and the apostasy annuls the qurba conjoined with it, as if he apostatized during his prayer or his fast; unlike the case where he apostatizes after his prayer or his fast: the deed itself is not annulled, only its reward is. As for the right of the poor, it exists only in charity; when the charity, which is the meaning of the waqf, is annulled, their right is annulled within it, even if its annulment cannot be intended deliberately, just as it is annulled by the ruin of the waqf or its loss of utility. That is what appeared to me, so ponder it.
The second issue: if he endows during his apostasy, the property is held in reserve with the Imam; if he returns to Islam, the waqf is valid; otherwise, that is, if he dies, is killed in his apostasy, or is judged to have remained therein, it is void. There is no narration from Abu Yusuf on this; according to Muhammad: what is permissible from him is what is permissible from the people whose religion he adopted. The waqf of the apostate woman is valid, for she is not killed, except for the pilgrimage or the umra and the like: that is not permitted, as is summarized in the commentary on "al-Wahbaniyya".
Ibn Abidin further clarifies the meaning of the formula: during apostasy, no waqf is more worthy of nullity than the earlier waqf; it is rather the latter that deserves nullity more, on account of its not having been conditioned upon Islam. Glory be to Allah, He is the Most Knowing.
Al-Tarabulusi said in "al-Is'af": if a Muslim man endows his land for the poor, or for performing the pilgrimage on his behalf every year, or the expedition on his behalf, or for the shrouds of the dead and the digging of graves and the like of that by which one draws near to Allah, then apostatizes and is killed or dies in his apostasy, his waqf is void and becomes a share of inheritance, for his deed with the wealth is annulled and the waqf is a qurba toward Allah which does not subsist with it. If he returns to Islam, he does not return to the status of waqf by his return alone; if he dies before renewing it, the property is part of his inheritance.
If he made the property a waqf for his son, his offspring and his posterity, then afterward for the poor, then apostatized after that and dies or is killed in his apostasy, the waqf is void and the property returns as inheritance. If it is objected: how does the waqf become void when he constituted it for persons named specifically? We answer: he made the remainder for the benefit of the poor, which is a qurba toward Allah; when that by which one draws near to Allah is annulled, the rest is annulled.
Indeed, once what he had designated for the poor is annulled by his apostasy, it is as if he had endowed without making the remainder for the poor; and the remainder not being for them, the waqf is not valid according to the one who only admits it on condition that the remainder revert to them. Likewise, if he endowed for the people of his household, his relatives, his clients (mawali) or the children of so-and-so in perpetuity, then afterward for the poor, the waqf is void upon his death in a state of apostasy.
If he endowed while he was an apostate, his waqf is void, for Abu Hanifa (may Allah be pleased with him) does not admit his disposal of the wealth in his hand; to the point that if he is killed or dies in his apostasy, all his dispositions over his wealth are void. What is preserved from Abu Yusuf: his sale, his purchase, his hire and the like are permitted. Al-Khassaf said: nothing has been transmitted from him, as far as we know, regarding that by which one draws near to Allah. And he said: do you not see that if he bequeaths the manumission of a slave, the pilgrimage, the umra, or something for the poor, all of that is void and is not permitted, for he owns nothing of his wealth after his death; how then could his bequest of the pilgrimage, the expedition or the charity be permitted while he is a disbeliever in that toward which he seeks to draw near?
We ask Allah for steadfastness in the religion and death upon Islam (al-Is'af p. 145).
The Malikis and the Shafi'is hold that if the apostate endows something and then apostatizes, what he endowed before his apostasy is not annulled. Al-Hattab said: what he manumitted or gave to another before his apostasy is not annulled either; consider the ruling of his waqf; the apparent is that his waqf is not annulled, by analogy with manumission. Allah is the Most Knowing (Mawahib al-Jalil 8/271; Minh al-Jalil 9/224).
Al-Zabidi the Shafi'i said in "al-'Ubab": if he endows for the pilgrimage on his behalf and then apostatizes, the waqf subsists and is directed toward the pilgrimage on his behalf, because of the validity of the apostate's expedition, or the pilgrimage is performed from it on his behalf, which is permitted since it is not a waqf upon himself. If he apostatizes, it is directed toward the poor; if he returns to Islam, it returns to the pilgrimage on his behalf (al-'Ubab 852).
The jurists require of the waqif that he own the endowed property at the time of the waqf; the waqf of what a man does not own is not valid in general. Ownership is either of the thing itself (ayn) or of its benefit (manfa'a), with details to come.
The Hanafis say: among the conditions of the waqf is ownership at the time of the waqf; to the point that if someone seizes a land by force, endows it, then buys it from its owner paying him the price, or settles with him for an amount he pays him, this does not constitute a waqf, for he only became its owner after having endowed it.
Ibn Nujaym said: if the property is subject to a claim (istihqaq), the waqf is void; likewise if he makes it a mosque; likewise if the holder of the right of preemption (shafi') comes after the buyer's waqf; likewise if the indebted sick man, whose wealth is swallowed up by the debt, endows: the property is sold and the waqf is undone; and if he endows the sold property (the continuation follows below).
Ibn Nujaym continues: if he endows a sold defective property after taking possession of it, the waqf is valid and its value is owed to the seller; likewise if he makes it a mosque; likewise if he makes it a mosque and the preemptor comes: the mosque status is undone. If the buyer endows before taking possession, if he has paid the price, the waqf is permitted; otherwise the property is held in reserve.
If he buys a land, endows it, then a claimant comes, proves his right and authorizes the sale, the waqf is void according to Muhammad's opinion; if the claimant holds the seller liable, the waqf is valid according to Muhammad's opinion; all of that is found in "al-Khaniyya". If a land is given to him by an invalid gift, and he takes possession of it then endows it, the waqf is valid and the value is on him. If he buys a land, endows it, then discovers a defect, he may retract with a reduction of the price without being required to buy a replacement property, for the reduction due to the defect does not enter the waqf, as in "al-Is'af". In "al-Dhakhira": if he buys with a rescission option (khiyar) for the seller, endows, then the seller ratifies the sale, the waqf is not permitted (al-Bahr al-Ra'iq 5/203; Sharh Fath al-Qadir 6/201; al-Is'af p.
15).
Three questions follow from the condition of ownership: the waqf of the unauthorized person (faduli), the waqf of the governor (hakim), and the waqf of the benefit, such as the rented property.
The jurists differed concerning the waqf of the faduli, that is, when a man endows another's property without his authorization, and then the owner ratifies it: is it valid or not?
The Hanafis, some Malikis, the Shafi'is in the older position (qadim) and the Hanbalis according to one transmission hold that if someone endows another's property without his authorization, the waqf is suspended upon the owner's ratification: if he ratifies it, the waqf is valid, otherwise not; for when the owner ratifies the act, that act in reality proceeds from him. The Hanafis specify: if he endows another's estate for purposes, the news reaches the owner and he ratifies it, it is valid, whether the condition of judgment and delivery is required or not, by consensus; that is what is meant by permitting the waqf of the faduli (al-Bahr al-Ra'iq 5/203; Sharh Fath al-Qadir 6/201; al-Is'af p. 15; Ibn Abidin 4/341).
Al-Dasuqi reported that some said: the waqf of the faduli, his gift, his charity and his manumission are like his sale: if the owner ratifies them, they take effect, otherwise they are returned; our master chose this opinion, for the owner who ratifies the act makes it proceed in reality from him (al-Dasuqi's hashiya on al-Sharh al-Kabir 5/456; al-Sawi 9/131). In a note: al-Suyuti said concerning the sale of the faduli that there are two opinions: the sounder, explicitly reported in the jadid, is nullity; the second is suspension: if the owner or the buyer ratifies, it takes effect, otherwise it is void; these two opinions apply to all dispositions: the marriage contracted by his guardian, the divorce of his wife, the manumission of his slave, his gift, the rental of his house and the rest ("al-Ashbah wa-l-Naza'ir" p. 285).
The Malikis, the Shafi'is in the madhhab (the later position) and the Hanbalis in the madhhab hold that the waqf of the faduli is neither valid nor effective even if the owner ratifies it, like his sale. The Malikis say: the waqf of the faduli is not valid even if the owner ratifies it, because the property leaves without compensation; unlike his sale, which is valid because the property leaves with compensation; and like his waqf, his gift, his charity and his manumission are void even if the owner ratifies (Sharh Mukhtasar Khalil 7/79; al-Dasuqi's hashiya 5/456; al-Sawi 9/131).
Most of the jurists admit that the imam's waqf, in general from the bayt al-mal (public treasury of the Muslims), for works of goodness and the interests of the Muslims, is permitted.
The Hanafis say: if the sultan endows from the treasury for a general interest, such as a waqf for the mosque, this is permitted and rewarded; unlike the waqf for a designated person and his children, which is not valid even if he makes the remainder for the poor, for the treasury is destined for the interests of the Muslims. If he perpetuates it upon its lawful channel, he is rewarded, especially if he fears in that regard unjust emirs who would spend it outside its lawful channel: he will thus have prevented those of them who would come to make such a maneuver. Likewise his authorization is valid if the property was opened by force and not by treaty, for the owner's ownership subsisted before the conquest (Ibn Abidin 4/393-394).
Ibn Abidin's hashiya on "al-Durr al-Mukhtar" specifies: the endowments of kings and emirs whose purchase of the properties is known: their waqf is valid and the condition of the waqf is observed; if it is not known whether they bought them nor the contrary, the apparent is that no ruling of validity of their waqf is pronounced, for ownership does not result from the waqf; rather it is judged that the sultan who endowed removed the property from the treasury and designated it for those entitled to it among the scholars and the students, to help them obtain a part of their right over the treasury: this is a designation (irsad) and not a true waqf.
That is why the notable Abu al-Su'ud, mufti of the Sulaymani sultanate, issued the fatwa that the condition of the endowments of kings and emirs is not observed, for they come from the treasury or return to it; and in that case no waqf may be instituted for what is fixed in the post or derived from the treasury's expenses. Ibn Abidin comments: there is no doubt that Abu al-Su'ud knew best the state of the endowments of kings; likewise it is found in "al-Mabsut" that the sultan may contravene the condition when the majority of the waqf's purposes are villages and farms, for their origin belongs to the treasury. Ibn Abidin explains: when the property belongs to the treasury and the waqif's ownership is unknown, it is a designation (irsad) and not a true waqf: the sultan removed the property from the treasury and designated it for those entitled to it among the scholars and the students, to help them obtain a part of their right over the treasury.
That is why, when Sultan Barquq wanted, in the year 789 of the Hijra, to undo these endowments because they had been taken from the treasury, he convened a full council attended by Shaykh Siraj al-Din al-Balqini, al-Burhan Ibn Jama'a and the shaykh of the Hanafis Akm al-Din, the commentator of "al-Hidaya". Al-Balqini said: what was endowed for the scholars and the students cannot be undone, for they have in the khums (the fifth) more than that; what was endowed for Fatima, Khadija and Aisha is undone. Those present approved it, as al-Suyuti mentions in "al-Naql al-mastur fi jawaz qabd ma'lum al-waza'if bi-la hudur".
The same statement is then found in "Sharh al-Multaqa": there is there an explicit proof that the endowments of sultans from the treasury are designations (irsadat) and not true endowments, that what was destined for the treasury's expenses is not undone, unlike what the sultan endowed for his children or his mamluks, and that their condition need not be observed since they are not a valid waqf, the condition of validity being the waqif's ownership, and the sultan, without purchase, does not own the treasury's property. It is known that Akm al-Din approved it, in agreement with "al-Mabsut" and with Abu al-Su'ud, and with what the commentator will report from "al-Nahr": the waqf of iqta's (land grants) is not permitted, unless the land was dead land or the imam's property which he had granted to a man; unlike what "al-Tuhfa al-Mardiyya" reports from the notable Qasim: the sultan's waqf of a treasury land is valid.
Ibn Abidin says: perhaps he meant that this waqf is binding and cannot be changed if it serves a general interest, as al-Tarsusi reported from Qadi Khan: if the sultan endows a land from the Muslims' treasury for a general interest of the Muslims, this is permitted. Ibn Wahban specifies: because the sultan, by perpetuating the property upon its lawful channel, has prevented the unjust emirs from diverting it. The meaning of this waqf is therefore the perpetuation of its allocation upon the designated channel which constitutes a general interest: that is the meaning of the designation (irsad) mentioned above, without contradiction with what preceded (Ibn Abidin 4/183-184).
These scholars, however, did not permit the waqf of iqta's, that is, what the imam grants in lands, in full ownership (raqaba) or in benefit, to whoever has a right over the treasury, unless the land was dead land or the imam's property which he grants to a man. If the sultan endows a land that had been granted to him: if it was his property or a dead land, the waqf is valid; if it belonged to the treasury, it is not valid. Most of the endowments of the emirs in Egypt are moreover only iqta's that they present as purchased, for form's sake, from the treasury's agent.
The waqf of the hawz land is not permitted for the imam, for he does not own it; likewise if it is endowed by the one whom the sultan brought into that land for its cultivation: it is not valid, for he is a sharecropper of the owner. The hawz land is that whose owner was unable to ensure its cultivation and its land tax (kharaj), so that he handed it over to the imam for its produce to compensate the kharaj (al-Is'af p. 20-21; al-Bahr al-Ra'iq 5/203; al-Nahr al-Fa'iq 3/312; Ibn Abidin 4/393).
Ibn Abidin says concerning the waqf of the iqta's: they are the lands that the imam grants, in full ownership or in benefit, to whoever has a right over the treasury. The gist of what the author of "al-Bahr" reports in his epistle "al-Tuhfa al-Mardiyya on the lands of Egypt": the one who endows a land is either its owner from the origin, being one of its people when the imam granted favor to its inhabitants, or received ownership from its owner by some means, or otherwise. If he is the owner from the origin, there is no obscurity about the validity of his waqf, ownership existing. Otherwise: either the land reached him by the sultan's grant (iqta), or by purchase from the treasury without it being his property; in the first case, if it was a dead land or the sultan's property, his waqf is valid, and if it belonged to the treasury's right, it is not valid.
Shaykh Qasim said: the one whom the sultan gratified with a treasury land owns the benefit in exchange for what was assigned to him, and may rent it; it is annulled by his death or his removal from the iqta, for the sultan may take it from him. If the land reached the waqif by purchase from the treasury by a justified means, his waqf is valid, ownership being established and the conditions observed, whether the waqif is a sultan, an emir or otherwise. What al-Suyuti reported, namely that the conditions are not observed if the waqif is a sultan or an emir, is understood of the case where the land reached him by the sultan's grant from the treasury, or rests on a principle of his madhhab.
Now, in the case where the sultan took the property from the treasury without buying it, Qasim issued the fatwa that the waqf is valid: he answered in that sense when asked about the waqf of Sultan Jaqmaq, who had designated a treasury land for the interests of a mosque, and he held that another sultan cannot annul it. Ibn Abidin objects: what Qasim issued the fatwa on is problematic in view of what precedes: if the property belongs to the treasury's right, the waqf is not valid; likewise what the commentator will report from "al-Mabsut": the sultan may contravene the waqif's condition when the majority of the purposes are villages and farms, for their origin is in the treasury.
It is therefore not a true waqf, but designations (irsad) which the imam removed from the treasury to assign them to those entitled to them among the scholars, as we clarified in the chapter on the tithe, the kharaj and the jizya; we set out there that if the purchase is not known, no ruling of validity of the waqf is pronounced, the condition being ownership and it being unknown, for ownership does not result from the waqf, the origin being the persistence of the property in the treasury (Ibn Abidin 4/393-394).
The Malikis say: the endowments of the sultans for works of goodness are valid although they do not own what they endow, for the sultan is the representative (wakil) of the Muslims: he is like the waqif's representative. Al-Dasuqi reports that what he mentions of the validity of their habas was transmitted by Ibn Arafa from a transmission of Muhammad ibn Khalid; but al-Qarafi reinterpreted it in "al-Furu'": it is when the kings endow believing themselves the representatives of the owners; if they endow believing the property belongs to them, their habas is void; thus ruled al-'Abdusi, and Ibn Ghazi reported it in "Takmilat al-taqyid" (al-Dasuqi's hashiya 5/456; al-Sawi 9/130).
Al-Qarafi said: a branch: if the kings endow a waqf for a purpose while being able to grant it lawfully to that purpose, such as the ribat and the schools, this is permitted; if they are not able, such as spending for their own children, it is not valid, for the one whose granting is impossible, his spending is impossible a fortiori. If they endow for a school more than is needed, the waqf is void in the excess alone, for they are excluded from any disposal except in the way of interest, and the excess is without interest: it is without an administrator and does not take effect. And if they endow the zakat funds for purposes, this is not permitted, for it amounts to depriving the poor.
If they usurp properties in order to endow them for general or particular interests: if they endow the usurped thing itself or buy another with it by hand-to-hand sale, the waqf is not valid; if it takes place on credit, whoever benefited from the purchased property does not guarantee it, unlike the first case. As to whether the sultan bears the guarantee for having corrupted, or does not because he did not benefit personally, it is a matter of consideration; this branch contradicts our principles on the hand-to-hand sale, according to which the sale in dinars or dirhams does not require specification, like the credit contract; and likewise if the sultan did not benefit, he guarantees, for the usurper guarantees even without benefit (al-Dhakhira 6/337).
Al-Qarafi says in "al-Furu'" (fourth question): it is found in "al-Bayan wa-l-Tahsil" of Abu al-Walid Ibn Rushd, one of ours, what whose apparent is that the imam may endow a waqf for a purpose, and the Shafi'is hold the like; it follows that their endowments, I mean those of the kings and the caliphs, when they occur in the way of validity and lawful arrangements for the interests of the Muslims, take effect, and no one may take anything from them without fulfilling the waqif's condition; the imam may not, after that, release this waqf for whoever does not fulfill the condition, the condition becoming binding upon the people and upon the imam as with the other endowments: the imam can neither divert it from that purpose nor release it for whoever does not fulfill the function.
But if they endow for their children or the purposes of their relatives out of passion for the lowly world for them and their descendants, following non-lawful arrangements, this waqf does not take effect; it is forbidden to the one upon whom it was endowed to take from it; the imam may wrest it from him and direct it toward him or toward others according to what the interests of the Muslims require. As for the first waqf, it is void; whoever took something from it, the imam may take it back from him, and he may endow this purpose for another according to the lawful arrangements; and even if the first waqf were valid because it coincides with the lawful arrangements, the imam could not modify it.
If it is said: if he endows upon his son a part of the lands of the Muslims and their villages, or a relative, and he bought it with his wealth earned during his reign, is this waqf valid? I answer: the kings are poor and indebted because of what they inflicted upon the Muslims by their dispositions over the treasury's wealth according to their passions: the lofty gilded buildings, the precious ships, the fine foods, the gifts to friends, the vain jesting with money, and every disposition forbidden by the law; all of that constitutes debts upon them which multiply with the lengthening of days. Two things are impeded thereby.
The first: the endowments, the donations and the sales according to the madhhab of Malik (may Allah have mercy on him) and those who follow him, for the late donations of the indebted, posterior to the constitution of the debt, are void. The second: inheritance, for there is no inheritance with the debt by consensus: nothing is inherited from them; what they left of slaves does not take effect through the heir's manumission: these are treasury's properties which are claimed from them because of their debt; nothing takes effect therein except the manumission by the treasury's administrator in the lawful way, and their manumission outside the interests of the Muslims is not permitted.
If they endow a waqf for purposes of righteousness and general interests while attributing it to themselves, believing the treasury's wealth belongs to them as the ignorant kings believe, the waqf is void; it is only valid if they endow believing that the wealth belongs to the Muslims and the waqf to the Muslims; believing that the wealth is theirs and the waqf for them does not stand, like the one who endows another's property believing it his own: the waqf is not valid; it is the same here (al-Furuq 3/11-12).
As for the Shafi'is, they differed on the imam's endowment of a part of the treasury's land for purposes of goodness or for his children; the sound position of the madhhab among them is that the waqf is permitted, even for his children. Al-Shirbini said: the imam's waqf of a part of the treasury's land is excepted from the consideration of ownership, for it is valid, as the Qadi Husayn explicitly stated, even if al-Subki hesitated, whether for a designated person or a general purpose. The author issued the fatwa on it, as did Abu Sa'id Ibn Abu Asrun for Sultan Nur al-Din al-Shahid, relying on 'Umar's (may Allah be pleased with him) endowment of the sawad of Iraq; Ibn al-Salah transmitted it in the benefits of his book "Fawa'id hullatihi" from ten or more, then approved them on its validity; the author of "al-Matlab" transmitted its validity in the chapter on the division of the fay' and the booty according to the explicit text.
In "al-Sharh" and "al-Rawda": if the imam sees the endowment of a booty land as 'Umar did, this is permitted if the victors' consent to withdraw from it, with or without compensation, is established (Mughni al-Muhtaj 3/453-454).
Al-Ramli said: the imam's waqf, such as the treasury's lands, for a purpose and a designated person, according to the transmitted and practiced foundation, is valid provided that the interest appears, for his disposal is subordinate to it, like the orphan's guardian; hence, if he sees granting them ownership, it is permitted (Ibn Abidin 4/397). Al-Bajuri said: the imam's waqf from the treasury is valid, even for his children, contrary to al-Jalal al-Suyuti and those who followed him (al-Bajuri's hashiya on the sharh of Ibn Qasim al-Ghazzi 2/88). Likewise 'Umayra said: the imam's waqf from the treasury for a designated person, even his children, or for a purpose, is valid according to the relied-upon foundation (Qalyubi's hashiya on Kanz al-Raghibin 3/239).
Al-Jamal said: where his waqf is declared valid, it cannot be modified. As for what is struck by the general ordeal, that is, what occurs today in great numbers of stipends assigned to places or to a particular group, and which are changed by being allocated to something other than what they were endowed for originally, that is void and it is not permitted to dispose of it for others than those to whom it was assigned according to the waqif's first purpose; let one beware of that, for it occurs often.
It is from there that this case is distinguished from the invalidity of manumitting a slave of the treasury: the beneficiary here is among those entitled to the property, as the condition of the appearance of the interest explicitly states; his waqf is like delivering the right to its holder, unlike the manumission itself which is a loss of wealth. He also says: yes, the imam's waqf from the treasury is valid, that is, for a designated person or a general purpose, as Ibn Abu Asrun issued the fatwa for Sultan Nur al-Din al-Shahid; but al-Subki said: I do not issue the fatwa by it nor judge by it; what appears right to me is that the waqf for a person or particular groups is not permitted. Yes: the imam's waqf of the treasury's lands for a purpose and a designated person, according to the transmitted and practiced foundation, is valid provided that the interest appears, for his disposal is subordinate to the interest, like the orphan's guardian; hence, if he sees granting them ownership, it is permitted.
Where his waqf is valid, must the holder of a function derived from his waqf, such as reading a lesson of science or leading the prayer in a mosque, act upon its condition? Al-Jalal al-Suyuti and those who follow him hold that he is not required to act upon those conditions when he is among those entitled to the treasury; al-Ramli and his partisans hold that he must act upon its condition and is entitled to the stipend only if he performs the function himself or through his deputy; consider this (al-Jamal's hashiya on Sharh al-Manhaj 3/576-577).
Al-'Izz Ibn Abd al-Salam, al-Subki, al-Suyuti and other Shafi'is held that the waqf for their children is not permitted. Al-Damiri reports that Ibn Abd al-Salam said: the kings may endow what it would be permissible for them to acquire in the first place, for a purpose of goodness to the extent that this purpose deserves it, such as the schools and the ribats; to the exclusion of what it is not permissible for them to acquire, such as endowing lands for their children and their emirs: that is not permitted. If they endow for a purpose more than it deserves, such as half a region for a school, the waqf is valid to the extent that it deserves it, to the exclusion of the rest.
The shaykh (al-Subki) said: what appears right to me is that endowing from the treasury for a person or persons, for a group or particular groups, is not permitted, holding to the companions' statement: the condition of the endowed is that it be the waqif's property, and the waqif here is not an owner: how then could his waqf be valid? Likewise the imam's endowment of the fay' lands, upon which the majority agree, the governor's endowment of the replacement of the ruined waqf, and what he endows of the revenues on condition of buying with it and endowing: all of that is valid without excess on the part of whoever does not qualify to dispose of it (al-Najm al-Wahhaj 5/455-456).
The Hanbalis say: the endowments derived from the treasury, such as those of the emirs or the kings, are not true endowments: they are endowments in appearance; whoever has the right to eat from the treasury may take from them. Al-Ruhaybani said: even if the designated beneficiary does not perform the function, as the author of "al-Muntaha" issued the fatwa, in agreement with shaykh al-Ramli and others concerning the waqf of the mosque of Tulun and the like.
In "al-Yanbu'" of al-Suyuti: a branch: what our jurists mentioned of the functions related to the endowments of the emirs and the sultans, whether they have an origin in the treasury or return to it: it is permitted for whoever qualifies as entitled, a scholar of the religious sciences or a student of knowledge, likewise the Sufi of the Sufi path among the people of the sunna, to eat from what they endowed, without being bound to what they conditioned; delegation for an excuse is permitted; he receives the stipend even if he does not perform and does not delegate; but whoever does not qualify as entitled to the treasury may not eat from this waqf, even if the nazir (administrator) fixed him therein and he performs the function, for it belongs to the treasury and its lawful ruling is not changed by the designation of anyone (Matalib Uli al-Nuha 4/339-340; Sharh Muntaha al-Iradat 4/381; Kashshaf al-Qina' 4/324).
He says further: as for the waqf of the emirs and the sultans, their conditions are not followed, for they own nothing: what they hold in hand comes from injustices, from booties, from the jizya or from ownerless wealth; in any case nothing of what they hold belongs to them: it is the wealth of the Muslims, directed toward the general interests. If they buy estates from what they hold, endow them and lay down conditions, those conditions are not binding: whoever has a right over the treasury and is prevented from it may take from their endowments what suffices him, without acting upon their conditions, unless their conditions contain an interest for the Muslims, such as teaching such useful science and its students.
Likewise their condition that if the holder dies childless, the child, if he is at his father's rank (able to assume the paternal function), obtains the function by reason of his right: in all of that acting upon their conditions is obligatory, for it contains an interest for the Muslims.
But acting upon their condition is not obligatory if they condition the father's function for the son even though he does not resemble him, for that amounts to raising the thing for the one who does not deserve it and placing it outside its place; or if they condition that one of them pay such an amount of the revenue of his waqf to whoever reads the lesson of the useful sciences in his school: he is not bound to read it in that school, but to read the conditioned lesson in any place, by application of the waqif's condition in its entirety; or if they condition paying him such an amount on condition that he read something of the Quran upon his grave each day or each month: acting upon this condition is not obligatory, for it is a mere personal purpose of the waqif; he reads in any place and offers him the reward.
For every qurba performed whose reward is offered to a Muslim, living or dead, benefits him; and that is among the best of directions (Matalib Uli al-Nuha 4/313).
The jurists differed concerning property rented for a known period: is its waqf valid or not? The majority of the jurists, the Hanafis, the Shafi'is and the Hanbalis, hold that the waqf of the rented property is not valid. The Malikis hold that the waqf of the rented property is valid.
The cause of their difference: does the waqf require perpetuity (ta'bid)? Those who require perpetuity, the majority (the Hanafis, the Shafi'is and the Hanbalis, as has come earlier), say that the waqf of the rented property is not permitted. Those who do not require it, the Malikis, say that the waqf of the benefit is valid: renting a house for a known period and endowing its benefit during that period; the waqf expires upon its expiry.
The Malikis, contrary to Ibn al-Hajib, say that ownership of the endowed property is not a condition: it is permitted to rent a house for a known period in order to endow its benefit during that period, and the waqf expires upon its expiry. And even if the rented house is a waqf: whoever rents an endowed house for a period may habas its benefit for another entitled person than the first during that period; as for the beneficiary of the habas, he cannot habas the benefit he holds, for he does not own it: the beneficiary of the waqf only owns the enjoying (intifa'), not the benefit (manfa'a) (al-Mukhtasar al-Fiqhi 13/10; al-Sharh al-Kabir with al-Dasuqi's hashiya 5/456; Mawahib al-Jalil 7/478-479; al-Taj wa-l-Iklil 4/561; Sharh Mukhtasar Khalil 7/79; Tahrir al-Mukhtasar 4/641).
It is permitted to rent a land to whoever makes it a mosque for the duration of the lease, for perpetuity is not required in the habas; when the lease's duration expires, the right of demolition returns to the builder, who does with it as he wishes, and the land returns to its owner. If the owner wants the construction to remain habas in his land, the builder is not compelled, unless the owner pays the value of the demolition: in that case it is granted and the builder can no longer refuse. And if the builder wants it to remain habas as it is, the owner is not compelled; unlike the one who usurped a land and built a mosque in it, or held a land by semblance of right (shubha), built a mosque in it and whose land was claimed after the construction: the demolition does not belong to the builder, who must place it in another mosque of Allah, for he removed the property for Allah in perpetuity, having entered with the intention of perpetuity.
The relied-upon position is that it is not permitted for a man to build a mosque in order to rent it to those who pray in it, nor to rent his house to one who prays in it while taking a rent: the rental of both for that purpose is not permitted, for it is not among the noble traits of character (al-Mudawwana 11/423; al-Ishraf 3/222 no. 1071; al-Sharh al-Kabir with al-Dasuqi's hashiya 5/349, 361; Mawahib al-Jalil 7/404, 417; al-Taj wa-l-Iklil 4/474; Sharh Mukhtasar Khalil 7/11, 20; Tahrir al-Mukhtasar 4/558, 567).