The waqf in favor of sons

This part belongs to the section: All parts.

The waqf is not just a formula: its effects on the heirs, the property being endowed and the way it is exploited form the core of the debate between the schools. The sheets in this fourth part examine the waqf in favor of sons and daughters, the preference permitted between children, delegation in waqf-funded offices, then the fourth pillar, the object of the waqf itself: real estate, movables, usufruct, undivided shares, the conditions of that property, its leasing and the lease duration, up to the conditions set by the waqif and their breach in case of necessity.

The waqf in favor of sons

The fuqaha differed over the waqf in favor of sons: does the term cover males and females alike, or is it restricted to males only, excluding females? Imam Abu Hanifa, according to one of the two narrations from him, a narration chosen by Hilal and followed by most Hanafis, together with the Malikis in one of the two opinions, held that if the endower says "I have made a waqf on my sons" while having sons and daughters, the yield is shared among them all equally. According to the second narration from Abu Hanifa, which is the view of Abu Yusuf, as well as the Shafi'is, the Hanbalis and the second Maliki opinion, daughters do not enter into the phrase "I have made a waqf on my sons", which applies to males only.

It is said in the Is'af: if he says "on my sons" while having sons and daughters, Hilal declared that the yield is shared among them all equally, because when daughters are gathered together with sons they are mentioned by the masculine form, and this is a narration from Abu Hanifa. Do you not see that if he says "on my brothers" while having brothers and sisters, the yield goes to them all, as confirmed by the word of Allah:

"If he has a brother or a sister"

Surah an-Nisa, 12

the verse covering females. Abu Yusuf narrated from Abu Hanifa that regarding the bequest the third goes to the sons to the exclusion of the daughters, except for any daughter of whom it is proper to say "this woman is one of the sons of so-and-so"; as soon as descent is attributed to a clan or a tribe, the term includes sons and daughters alike, in all narrations. And if he said "on my sons" while having only daughters, or "on my daughters" while having only sons, the yield goes to the poor and they receive nothing.

If he said "on my daughters" while having both daughters and sons, the yield goes to the daughters only, for the phrase "my daughters" does not cover sons (al-Is'af, p. 96; Ibn Abidin 4/463). Ibn al-Humam, may Allah have mercy on him, said: daughters do enter into the phrase "my sons", and Hilal chose this view; from Abu Hanifa is reported the restriction to males, and some shaykhs said there are two narrations on the issue. The basis for inclusion is what is known in the principles of fiqh, and on it was built the statement of the one seeking protection: "grant me protection with regard to my sons", in which daughters enter. In the Khulasa it is said: this holds only for the counted sons of the father; as for what is not counted, it is correct to say "this woman is one of the sons of so-and-so", meaning the woman enters without hesitation. If he has only daughters, the yield is diverted to the poor; and "on my daughters" does not include males (Sharh Fath al-Qadir 6/244).

In the Ahkam al-Waqf of Hilal, may Allah have mercy on him, it is said: I asked: what do you say if one says "on my sons" while having sons and daughters? He answered: all of them are equal in the waqf, because when sons and daughters are gathered they are referred to in the masculine; Yusuf ibn Khalid indeed narrated from Abu Hanifa, concerning a man who said "I have bequeathed a third of my property to the sons of so-and-so" while having sons and daughters, that the third belongs to them all and they are equal in it; and the same applies to the waqf (Ahkam al-Waqf, p. 79). As for Ya'qub, that is, Abu Yusuf, he narrated the opposite: the sons to the exclusion of the daughters; do you not see that it is not proper to say "this woman is one of the sons of so-and-so"? If that is so, males and females enter; otherwise they do not; this is the narration of Ya'qub (Ahkam al-Waqf, p. 79).

The Malikis said: if he says "I have made a waqf on my sons", his daughters do not enter into it; Dardir said: such is the apparent meaning of the author, and others said the daughters do enter (Sharh al-Kabir with Hashiyat al-Dasuqi 5/483). Al-Zurqani, may Allah have mercy on him, said: his phrase "my sons and the sons of my sons" includes the daughters of his sons, not the daughters of his daughters; and it is inferred from the fact that these expressions do not cover females that they cover the children of males, both male and female, and so it is; all the more the inclusion of the daughters of the direct line along with the males; the meaning of "my sons and the sons of my sons" is therefore: my children and the children of my children (al-Zurqani's commentary on the Mukhtasar of Khalil 7/163). Ibn Rushd, may Allah have mercy on him, said: the phrase "sons" in "I have endowed upon my sons, or upon my sons and the sons of my sons, or upon my sons and their descendants" is judged like the phrase "children" and "offspring": according to the view that the masculine plural includes the feminine, both share; according to the view that females do not enter it, the males alone of his sons and the sons of his sons are retained in the endowment, excluding the females; and if he says "I have endowed upon my sons, their males and their females, whether named or not, and upon their descendants", the ruling is what I mentioned regarding "children" and "offspring", and success comes from Allah (al-Muqaddimat al-Mumahhadat 2/438).

As for the Shafi'is, they said: if he made a waqf on the sons of Zayd, his daughters do not enter it; and if he made a waqf on the sons of Tamim, we say "the waqf is valid", and two views arise: the first, the daughters do not enter, for the name "sons" literally denotes males; the second, they enter, for once the name of a tribe is pronounced it includes all who are attributed to it, men and women (al-Muhadhdhab 1/444; al-Bayan 8/86; Mughni al-Muhtaj 3/472). Sisters do not enter into a waqf made for brothers, on the sound view, and al-Mawardi held that they do enter (al-Muhadhdhab 1/444; al-Bayan 8/86; Rawdat al-Talibin 4/155; Mughni al-Muhtaj 3/472).

The Hanbalis said: if he made a waqf on his sons or on the sons of so-and-so, it belongs to the males exclusively, for the phrase "sons" was coined literally for that meaning; Allah the Exalted said:

"He has preferred the daughters to the sons"

Surah as-Saffat, 153

and He said:

"Beautified for people is the love of desires: women and sons"

Surah Al Imran, 14

unless they are a tribe, like the Banu Hashim or the Banu Tamim: their women then enter, for the name of the tribe covers its males and females. It is reported that slave girls from the Banu Najjar said: "We are slave girls of the Banu Najjar, blessed is Muhammad for having such a neighbor", to the exclusion of their children, for men trace descent only through their fathers, as has preceded (al-Kafi 2/459; al-Mubdi 5/343; al-Insaf 7/84; Kashshaf al-Qina 4/344; Sharh Muntaha al-Iradat 4/375; Manar al-Sabil 2/338). Al-Muwaffaq said in the Sharh al-Kabir: if he made a waqf on his sons or on the sons of so-and-so, it belongs to the males to the exclusion of the females and the hermaphrodites; this is the view of the majority, and al-Shafi'i and the people of rational opinion said the same. Al-Hasan, Ishaq and Abu Thawr said: it belongs to the male and the female together, for had he bequeathed to the sons of so-and-so, who form a tribe, the male and the female would both enter. Al-Thawri said: if they are males and females, it is between them; if they are daughters with no male among them, they get nothing, for whenever males and females are gathered the masculine form prevails and the females enter, as in "the Muslims" and "the polytheists".

Our argument: the phrase "sons" denotes males specifically; Allah said:

"He has preferred the daughters to the sons"

Surah as-Saffat, 153

and He said:

"Has He taken daughters from what He creates and preferred you with sons?"

Surah az-Zukhruf, 16

and He said:

"Wealth and children are the adornment of the life of this world"

Surah al-Kahf, 46

and He informed that they do not desire daughters:

"They assign daughters to Allah, glory be to Him, while for themselves is what they desire, and when one of them is given the good news of a girl"

Surah an-Nahl, 57-58

They enter into the name only when they become a tribe, for the name then passes from the literal sense to customary usage; that is why a woman says "I am one of the sons of so-and-so" when she is attributed to the tribe, and does not say so when she is attributed to her father (Sharh al-Kabir 6/227; al-Mughni 6/87).

The waqf in favor of sons to the exclusion of daughters, or daughters to the exclusion of sons

There is no disagreement among the fuqaha on the permissibility of a waqf in favor of daughters to the exclusion of sons. They differed, however, over the case where the endower makes a waqf on the males of his children to the exclusion of his daughters: is it permitted or not? The views are numerous. The majority of scholars, the Hanafis, the Malikis according to one opinion, the Shafi'is and the Hanbalis, held that if the endower makes a waqf on his male sons to the exclusion of his daughters, the waqf is valid for the sons and the daughters do not enter it; likewise, if he makes a waqf on his daughters to the exclusion of the males, the waqf is valid. Their proof is the hadith narrated by al-Bukhari in the chapter on conditions in the waqf:

Umar ibn al-Khattab acquired land at Khaybar and came to the Prophet to seek his counsel about it, saying: O Messenger of Allah, I have acquired land at Khaybar and I have never had property dearer to me; what do you command me? He said: if you wish, retain its substance and give it in charity. Umar made it charity on condition that it be neither sold, nor gifted, nor inherited, and destined it to the poor, the relatives, the slaves to be freed, the cause of Allah, the wayfarer and the guest, with no blame upon its administrator for eating from it in a reasonable manner and feeding a relative who is not wealthy. He said: I mentioned it to Ibn Sirin, who added: one who does not seek to amass wealth.Narrated by al-Bukhari, no. 2586

Ibn Battal, may Allah have mercy on him, said: the endower may stipulate in his waqf whatever he wishes once he has removed the property from his hand and entrusted it to an administrator, who will place it in one category or in several: among the rich or among the poor, among the near relatives or the distant, among the daughters of his household to the exclusion of the males, or among the males to the exclusion of the females; it is nevertheless preferable for him to treat his sons equally, because of his saying: "Umar made it charity to the poor and the relatives" and the other categories mentioned, which shows that the donor is left to place his property where he stipulated (Sharh Sahih al-Bukhari by Ibn Battal 8/139-140). The Hanafis said: if he made a waqf on his sons, the daughters are not entitled, and the reverse is valid (Bahr al-Ra'iq 5/239). In the Ahkam al-Waqf of Hilal it is said: I asked: what if one says "this land is a charity, a waqf on my daughters" while having sons and daughters? He answered: the waqf belongs to the daughters to the exclusion of the sons (Ahkam al-Waqf, p. 80).

As for the Shafi'is, Ibn Hajar al-Haytami said: it frequently happens that people endow their property, while in good health, on their male children, intending thereby to deprive their daughters, and it has repeatedly happened that more than one mufti has declared such a waqf invalid; yet this is evidently open to question, and the underlying principle is validity. First, we do not concede that the intention of deprivation is a sin: how could it be, when our imams, like most scholars, agreed that preferring some of one's children with all or part of one's property, whether as a gift, a waqf or otherwise, is not forbidden even without excuse? This clearly establishes that the intention of deprivation is not forbidden, for it necessarily follows from the preference without excuse, and they expressly declared its lawfulness. Second, even supposing it were forbidden, it is a sin external to the essence of the waqf, like buying grapes with the intention of pressing them into wine: how would that entail its invalidity? (Tuhfat al-Muhtaj with the Hashiyas of al-Shirwani and al-Abbadi 7/465). The Shafi'is said: if he made the waqf during his illness, it is valid only with the ratification of the daughters, for a disposition made in the illness of death in favor of some heirs depends on the consent of the others (Nihayat al-Muhtaj 5/423; I'anat al-Talibin 3/312; Hashiyat al-Shirwani wal-Abbadi 7/465).

The Hanbalis said: it is permissible to make a waqf on his male children to the exclusion of the females, and on his female children to the exclusion of the males; it is nevertheless preferable to divide the waqf among his children, male and female; if the endower prefers some of them with the waqf over others, and this is on the path of mere favoritism, that is, without a legal purpose, it is disliked, for it leads to rupture among them; if some of them have dependents and are in need, there is no harm in it. Ibn Qudama, may Allah have mercy on him, said: it is preferable that he divide the waqf among his children according to Allah's apportionment of inheritance among them: the male receives the share of two females. If he acts otherwise, equalizing between male and female, or preferring her to him, or preferring some sons or daughters over others, or reserving the waqf for some to the exclusion of others, Ahmad said in the narration of Muhammad ibn al-Hakam: if it is mere favoritism, without legal purpose, I dislike it, for it leads to rupture among them; if it is because some of them have dependents and are in need, there is no harm. The basis of this is that al-Zubayr reserved his charity for al-Marduda among his daughters, to the exclusion of al-Mustaghniyya; and by analogy with Ahmad's view: if he reserves his waqf for the children devoted to knowledge, to encourage them to seek it, or for the religious one, to the exclusion of the wicked, or for the sick, or for one who has merit on account of that merit, there is no harm. The validity of this is proven by the fact that Abu Bakr as-Siddiq granted Aisha six shares of twenty wasq, to the exclusion of the rest of his children; and by the document of Umar, narrated by Abu Dawud, in which he designates Hafsa to the exclusion of her brothers and sisters (al-Mughni 5/360-361; Sharh al-Kabir 6/225-226; al-Mubdi 5/333-334; Kashshaf al-Qina 4/344; al-Rawd al-Murbi 2/177; Matalib Uli al-Nuha 4/366).

The Malikis, in the adopted view, held that it is disliked for one who endows to exclude the daughters from his endowment; Abu al-Hasan, Ibn Naji and Ibn Ghazi said: the dislike belongs to its category: if it has occurred, it is a thing of the past; it has been said: it is a matter of prohibition, and in that case, if it occurs, the waqf is annulled. Al-Dasuqi, may Allah have mercy on him, said: know that this issue, the waqf on sons to the exclusion of daughters, has given rise to several views: the first, invalidity together with the prohibition of reaching it; the second, dislike together with validity, the dislike belonging to its category; the third, lawfulness without dislike; the fourth, the distinction between the case where the endower is dispossessed, the endowment then remaining as he fixed it, and the case where he is not dispossessed, and it is restored to the sons and daughters together; the fifth, what Isa narrated from Ibn al-Qasim: its prohibition, so that if the endower is alive it is annulled and reserved for males and females, and if he has died it is a thing of the past; the sixth, the annulment of the endowment and its conversion into a mosque if the beneficiaries do not object, and if they object, the annulment is not permitted and the endowment remains as it is, even if the endower is alive. The adopted view among these opinions is the second, as the commentator said.

The place of dispute is where the waqf on sons to the exclusion of daughters was pronounced in good health and possession took place before the impediment; if the waqf was made in a state of illness it is void by consensus, even with possession, for it is a gift to an heir; likewise if it was made in good health but the impediment occurred before possession: it is void by consensus as well; this also holds so long as a judge, even a Maliki, has not ruled on its validity, for otherwise it is valid by consensus, since the judge's ruling removes the disagreement (Hashiyat al-Dasuqi on the Sharh al-Kabir 5/460-461; Hashiyat al-Sawi 9/164-165; Mawahib al-Jalil 7/484; al-Taj wal-Iklil 4/565; Sharh Mukhtasar Khalil 7/82; Tathbir al-Mukhtasar 4/644). Al-Sawi, may Allah have mercy on him, said: the author's words about his sons and daughters refer to the direct line; as for a waqf on the sons of his sons to the exclusion of the daughters of his sons, it is valid by consensus, as is the gift of the whole or most of one's property to some of one's children: it is disliked by consensus; likewise it is disliked to give all one's property to one's children: he divides it equally among them if they are male and female, and if he divides it among them according to their shares of inheritance, that is permissible. Likewise the waqf is valid by consensus in the reverse case, such as a waqf on his daughters to the exclusion of his sons; the waqf on sons to the exclusion of daughters was invalidated only according to the view resting on Malik's statement: it is from the practice of the Jahiliyya, meaning it resembles their practice, for in the Jahiliyya, when death approached one of them, he bequeathed to the males to the exclusion of the females, so that the daughters were deprived while the males were not; the waqf, on this view, resembles the practice of the Jahiliyya (Hashiyat al-Sawi 9/164-165).

The Malikis, according to one view, which is Khalil's choice in his Mukhtasar and the view of Ibn al-Qasim in the Utbiyya, held that it is not permitted, that it is forbidden, and that if it has occurred the waqf is annulled, in the case of a waqf on his male sons to the exclusion of his daughters, for it resembles the act of the Jahiliyya of depriving the daughters of their father's inheritance, whether the daughters were excluded from the outset or after their marriage; example: he makes a waqf on all his sons and daughters, stipulating that any daughter who marries loses all right in the waqf, leaves it and does not return to it even if widowed; but if he stipulates that the married daughter recovers her right upon becoming widowed, the waqf is valid. Imam Malik said in the Utbiyya: whoever endows property on the males of his children, excluding the females once they marry: I do not consider that permissible, and it is of the practice of the Jahiliyya; charities for Allah are not placed on this, nor what is done seeking His Face, except for the charity a man makes which he destines, after his children die out, to a path among the paths of goodness. Ibn al-Qasim said: I asked Malik: should the one who endows and excludes his daughters upon their marriage annul it and reform the endowment? He said: yes, and that is the essential part of the matter. Ibn al-Qasim said: but if that has slipped away, the endowment remains as it is: if the endower is alive and possession has not taken place, I consider that he should annul it and include the females; if possession has taken place or he has died, it is a missed opportunity, and the endowment remains as he fixed it. Muhammad ibn Rushd, may Allah have mercy on him, said: the apparent meaning of Malik's statement is that the endowment is not permitted and is void in every case, contrary to the view of Ibn al-Qasim that it stands if possession has occurred without being revoked; the lapse of the endowment, in his view, is the dispossession of the endower before it has taken place, and he granted the endower, so long as possession has not occurred, the right to annul the endowment and include the females, and its apparent meaning is that this applies even if the beneficiaries object, out of regard for the view of the one who holds that charities and gifts are not binding and that the ruling about them does not become obligatory until possession is taken (al-Bayan wal-Tahsil 12/204-205; see Mawahib al-Jalil 7/494-495).

If he makes a waqf on the sons of his sons to the exclusion of the daughters of his sons, the waqf is valid, as if he makes it on his daughters to the exclusion of his sons; likewise on some of his sons to the exclusion of some of his daughters, on his brothers to the exclusion of his sisters, or on the sons of so-and-so to the exclusion of his daughters: the waqf is valid in all of that, the mentioned cause being absent. Al-Dasuqi, may Allah have mercy on him, said: if he makes a waqf on his male sons, then after them on his daughters, some of our shaykhs hesitated, and some issued a ruling of prohibition (Hashiyat al-Dasuqi on the Sharh al-Kabir 5/460; see Mawahib al-Jalil 7/484; al-Taj wal-Iklil 4/565; Sharh Mukhtasar Khalil 7/82; Tathbir al-Mukhtasar 4/644; Hashiyat al-Sawi 9/164).

Preference among children in the waqf

The fuqaha who permit a waqf on the male sons to the exclusion of the females, or on the females to the exclusion of the males, agree that the endower may stipulate in his waqf equality of entitlement among his children, or the preference of some over others, whether male or female, minor or adult; since deprivation by exclusion from the waqf is admitted, the preference of another over him enters all the more, though what is preferable is equality among them. Ibn Qudama, may Allah have mercy on him, said: if he prefers some of them over others, it is according to what he said: if he says "I have made a waqf on my children and the children of my children, on condition that the male receives two shares and the female one share, or that the male receives the share of two females, or according to their inheritance, or according to their prescribed shares, or the reverse, or that the elder receives double the younger's, or the learned double the ignorant's, or the one with dependents double the rich man's, or the opposite", or if he designates by the preference a specific person, or his child, or the like of that, it is according to what he said, for the initiation of the waqf is entrusted to him, and likewise his preference and ordering. Likewise if he stipulates the exclusion of some by an attribute and the maintenance of others by an attribute, such as: "whoever among them marries has a right to it, whoever separates has nothing, or the reverse; whoever memorizes the Quran has a right to it, whoever forgets it has nothing; whoever devotes himself to knowledge has a right to it, whoever abandons it has nothing; whoever follows such-and-such school has a right to it, whoever leaves it has nothing": all of this is valid according to his condition. Hisham ibn Urwa narrated that al-Zubayr made his houses a charity for his sons, not to be sold or given away, and that al-Marduda among his daughters may dwell therein without harming or being harmed, and that if she is content with a husband she has no right in the waqf; an authentic hadith mentioned earlier; and this is not a suspension of the waqf upon an attribute: the waqf is absolute, and entitlement to it is attached by attribute (al-Mughni 5/360; see Kashshaf al-Qina 4/336-337; Sharh Muntaha al-Iradat 4/367; Matalib Uli al-Nuha 4/344-345; Manar al-Sabil 2/337).

Ibn Qudama said: all of this is the school of al-Shafi'i, and we know of no disagreement on it. He also said: it is preferable that he divide the waqf among his children according to Allah's apportionment of inheritance among them: the male receives the share of two females. Al-Qadi said: the preferable is equality between the male and the female, for the intended aim is nearness in a lasting manner, and they are equal in kinship. Our answer: it is the conveyance of wealth to them, so it should be among them according to inheritance, like the gift; and the male is more likely to be in need than the female, for each of them, as a rule, marries and has children: the male owes the maintenance of his wife and children, whereas the woman is maintained by her husband and owes no maintenance of her children; Allah moreover preferred the male to the female in inheritance in accordance with this meaning, so this justification is sound; and it extends to the waqf and to other gifts and presents; what al-Qadi said has no basis and is invalidated by inheritance and gift. If he acts otherwise, equalizing between the male and the female, preferring her to him, preferring some sons or daughters over others, or reserving the waqf for some to the exclusion of others, Ahmad said in the narration of Muhammad ibn al-Hakam: if it is mere favoritism, he dislikes it; if it is because some of them have dependents and are in need, there is no harm. The basis of this is that al-Zubayr reserved his charity for al-Marduda among his daughters, to the exclusion of al-Mustaghniyya; likewise, on the pattern of Ahmad's view, if he reserves his waqf for the children devoted to knowledge, to encourage them to seek it, or for the religious one, to the exclusion of the wicked, or for the sick, or for one who has merit, there is no harm. The validity of this is proven by the fact that Abu Bakr as-Siddiq granted Aisha six shares of twenty wasq, to the exclusion of the rest of his children, and by the document of Umar narrated by Abu Dawud, which designates Hafsa to the exclusion of her brothers and sisters (al-Mughni 5/360-361; see Sharh al-Kabir 6/226; al-Mubdi 5/334; Kashshaf al-Qina 4/344-345; Sharh Muntaha al-Iradat 4/367; Matalib Uli al-Nuha 4/366; al-Rawd al-Murbi 2/177; Manar al-Sabil 2/339-340).

The Hanafis said: if he says "this land of mine is a charity, a waqf on the sons of so-and-so, on condition that I may prefer whomever I wish among them", and he dies before preferring one over another, the yield will be shared among them equally, for the preference has attached to none of them; if he said "I have preferred so-and-so and assigned him all the yield", it is not valid, for that is exclusive designation, not preference; he must give each of them something, then increase whomever he wishes among them by whatever he wishes, little or much, without limit or for a defined period; if he adds "and their descendants", preferring one of them together with his children and descendants forever as long as they succeed one another, that is permitted: it belongs to him and his descendants forever, with no right of return, for the preference attaches to the root of the waqf by reason of its stipulation; if he preferred one of them, for example, by half of one year's yield, that is permitted, and he becomes the most disadvantaged of his partners in what happens thereafter, the faculty of preference returning to him (al-Is'af, p. 126; al-Hindiyya 5/722). Imam Ibn Abidin, may Allah have mercy on him, said: an important inquiry into the endower's words concerning the legal endowment. It is treated in an epistle by the mufti of Damascus, who relates that it is said in a hadith:

Treat your children equally in gifts; if I were to prefer anyone, I would prefer women over men.Narrated by Sa'id in his Sunan; a weak version: al-Tabarani in al-Kabir (no. 11997) and al-Bayhaqi in al-Kubra (no. 11780)

In the Sahih of Muslim, from the hadith of Nu'man ibn Bashir:

Fear Allah and be just toward your children.Narrated by Muslim

Justice is among the rights of children in gifts, and the waqf is a gift: equality between the male and the female is therefore required, for they interpreted justice toward children as equality in gifts during one's lifetime. In the Khaniyya: if he gave something to his children in good health and wished to prefer some over others, it is narrated from Abu Hanifa: there is no harm if the preference is for an increase in religious merit; if they are equal, it is disliked. Al-Mu'alla narrated from Abu Yusuf: there is no harm if no harm is intended; otherwise equality between them, and upon this the fatwa is given. Muhammad said: the male is given double the female. In the Tatarkhaniyya, citing the Tatimmat al-Fatawa, he said: it is mentioned in the chapter of istihsan in the book of the waqf: it behooves a man to be just among his children in gifts, and justice therein is equality among them according to Abu Yusuf; Abu Yusuf derived from the hadith the obligation of equality, and the great mujtahids followed him, obliging equality among them and saying: he is a sinner both in exclusive designation and in preference. The verified scholars of the school know no legal obligation in the chapter of the waqf other than this one, by virtue of the mentioned hadith; the apparent state of the Muslim is avoidance of what is disliked, so the legal obligation in the chapter of the waqf can only point to equality, and custom does not oppose the text. Such is the summary of this epistle, in which he mentions that the shaykh al-islam Muhammad al-Hijazi the Shafi'i, the shaykh Salim al-Sanhuri the Maliki, the judge Taj al-Din the Hanafi and others decreed to this effect.

Ibn Abidin said: I once compiled on this issue an epistle titled "The Pearled Links on the Endower's Words Concerning the Legal Endowment", in which I established the question and uncovered its excesses; it appears in the Zahiriyya that if the endower wishes to show filial devotion to his children, what is preferable with Muhammad is to give the male the share of two females, and with Abu Yusuf to treat them equally, and that is the chosen view; then the Zahiriyya says, concerning the drafting of waqf deeds: if he wishes to make a waqf on his children he says "to the male the share of two females", or, if he wishes, "the male and the female equal", but the first formula is closer to correctness and swifter to reward (Hashiyat Ibn Abidin 4/444-445). The Malikis said: if the endower says "my houses are a waqf on my children" without specifying any preference of one over another, equality between the male and the female in the allocation of the yield is obligatory; if he specifies something, preferring the female to the male or the male to the female, it is applied (Sharh al-Kabir with Hashiyat al-Dasuqi 5/474; al-Taj wal-Iklil 4/576; Sharh Mukhtasar Khalil 7/91; Tathbir al-Mukhtasar 4/653; Hashiyat al-Sawi 9/166-168). The Shafi'is said: the endower's condition is observed in the shares, the attributes of the entitled and the time of entitlement; if he makes a waqf on his children stipulating equality between the male and the female, or the preference of one of the two, he is followed (Rawdat al-Talibin 4/158).

Delegation (niyaba) in the offices of the waqf

The fuqaha differed on the ruling of delegation in endowed offices: is it permitted absolutely, forbidden absolutely, or permitted for excuse and not permitted without excuse? Ibn Nujaym the Hanafi, may Allah have mercy on him, wrote: one will ask: is delegation in offices permitted unconditionally or for excuse, or not permitted at all? He answered: I have seen no transmission from our companions on it except what al-Tarsusi mentioned in the Anfa' al-Wasa'il as an understanding of al-Khassaf's words: if an affliction befalls this caretaker, such as deafness, blindness, loss of reason or paralysis, does the wage due to him stand or not? If one of these afflictions befalls him while he can still speak, command and forbid, the wage remains his; if he can no longer speak, command, forbid, take and give, he has nothing of that wage. Al-Tarsusi said: we derived from it the answer to a live question: the teacher, the jurist, the repeater, the imam, or whoever performs any of the offices of the schools, if he falls ill or goes on pilgrimage, or obtains what people call a legal excuse, in the sense agreed among the fuqaha, the stipend fixed for him is not suspended: it is paid to him and no absence is recorded against him. Yet the implication of al-Khassaf's words is that he deserves nothing of the stipend for the whole duration of the excuse: the ruling on the stipend is tied to actual performance itself: if performance exists he deserves the stipend, and if it does not he has no stipend; and this is the fiqh. We also derived from this discussion the answer to another question: delegation is not permitted, whether for excuse or without excuse, for al-Khassaf did not grant him the right to appoint a deputy even with the mentioned excuses; had delegation been permitted, he would have said: and he appoints someone to stand in his place until his excuse ceases; and this too is the apparent of the proof, and it is fine fiqh. We reported from Ibn Wahban that if he travels for pilgrimage or to visit kin he is not displaced and does not deserve the stipend, although both are obligations upon him; and what he mentioned in the Quniyya: the imam appoints a successor at the mosque to lead the prayer during his absence, and the successor deserves nothing of the endowments of the imamate if the imam performed the greater part of the year.

The summary: the deputy deserves nothing from the waqf, for entitlement is by performance, which did not occur; the original holder deserves the whole if he performed the greater part of the year. We passed over in silence what the original holder assigns to the deputy each month in return for his work: the apparent is that the deputy deserves it, for it is a hire whose work he fulfilled, building upon the view of the later scholars, the one upon which fatwa is given, permitting hiring for the imamate, teaching and the teaching of the Quran. On this basis, if the original holder does not perform and the deputy performs, the post is vacant, and the administrator may not pay either of them; the judge may dismiss him; yet the practice of the people of Cairo is to admit delegations in offices and not to consider the posts vacant when a deputy is present. I then saw in the Khulasa, in the book of the judiciary, that the imam may be deputized for without permission, unlike the judge; on this basis the office is not vacant and the delegation is valid. What refutes al-Tarsusi is that al-Khassaf expressly said the caretaker may appoint an agent to stand in his place and allocate to him part of his stipend; likewise in the Is'af; and this amounts to an express declaration of the lawfulness of delegation, for the deputy is a paid agent, as is not hidden. What is established is the lawfulness of delegation in offices (Bahr al-Ra'iq 5/248-249). Ibn Abidin, after citing these words of Ibn Nujaym, said: they are supported by what passed regarding Friday, where the lawfulness of the khateeb's delegation was preferred.

Al-Khayr al-Ramli said in his Hashiya: what preceded from the Khulasa is mentioned in the book of the judiciary of the Kanz and the Hidaya, and in many texts, commentaries and fatwas; the lawfulness of delegation must be restricted to an office that admits delegation, such as teaching, unlike learning; and once lawfulness is established there is no difference whether the delegate is the delegator's equal in merit, above him or below him, as is apparent. I have seen later Shafi'is restrict it to the equal or the superior, and some said it is lawful absolutely, even the inferior, and that is the apparent. In the Khayriyya, after the summary of the Bahr: epistles have been composed on this issue, and one must act according to what people practice, especially in the presence of an excuse; the whole stipend then goes to the delegate, and the deputy has only the wage for which he was hired. This is a choice contrary to what the great scholar, the mufti Abu al-Su'ud, ruled: he required a legal excuse, an office admitting delegation such as ifta and teaching, and a delegate equal to the original or better, with the entire stipend for the deputy and nothing for the original. Al-Biri transmitted it, saying: it is the truth; but he transmitted from the shaykh Badr al-Din al-Shahawi the Hanafi what is in the Bahr, and from the shaykh of his shaykhs, the judge Ali ibn Zahir the Hanafi, the requirement of the excuse.

Inquiry: if the stipend was stipulated for the performer of the imamate, the delegate does not deserve it. The requirement of the excuse has a basis; as for the deputy being the original's equal or better, it is a far-fetched requirement once the deputy possesses the aptitude for that office, unless the equality in aptitude is meant; what is in the Fatawa of Ibn al-Shalbi indicates this: the administrator whose strength declines for managing the waqf was asked whether he may authorize someone else for the rest of his life, and whether he may step down from the stewardship; he answered: yes, he may delegate someone who combines integrity and competence, but his stepping down from the stipulated stewardship is not valid, and even if he dismisses himself he is not dismissed. As for the stipend going to the deputy, it contradicts what passed from the Bahr, that entitlement is by performance, especially if the original performed the greater part of the year: the apparent of the Quniyya is that the deputy deserves nothing, unless the original stipulated a wage for him; but if the performer is the deputy alone, and the endower stipulated the stipend for the performer of the imamate or of teaching, there is no ambiguity: the deputy alone deserves the whole stipend. I wrote in the Tanqih al-Hamidiyya, from the verifier shaykh Abd al-Rahman Afandi al-Imadi, that it was asked about the muezzins of a mosque who hold stipends in endowments, conditioned by the endowers upon invocations made in their favor, when a group of muezzins appointed deputies for them: do the deputies performing the call and the stipulated invocations deserve those stipends to the exclusion of the mentioned group? Answer: yes (Ibn Abidin 4/419-420; Tanqih al-Fatawa al-Hamidiyya 3/127).

As for the Malikis, al-Hattab, may Allah have mercy on him, said in the Masa'il al-Malquta: whoever the endower appointed to an office for a wage, if he delegates another and does not perform the office himself, it is not permitted for either him or his deputy to take the wage, for he did not perform the office himself; what the administrator fixed for him is due only by personal performance, and the administrator appointed no deputy to the office: what both of them took is unlawful; thus said the shaykh Jamal al-Din al-Aqfahsi the Maliki. That is, if he delegated outside the periods of excuse; if he delegates during the days of excuse, he may take the waqf's revenue and give his deputy whatever he wishes of that revenue; al-Qarafi transmitted it in the fifteenth difference of the hundred. Al-Qarafi, may Allah have mercy on him, said: the imam may permit the mosque's overseer to delegate permanently and receive those stipends, for such stipends follow the public interest, not the performance of the office; and if the waqf is for whoever performs the office of imamate, call to prayer, preaching or teaching, no one may take anything from the yield of that waqf unless he fulfills the condition according to the endower's condition; if he permanently delegates another, outside the periods of excuse, neither of the two deserves anything from the yield of that waqf: the deputy, because the validity of his mandate is among the conditions of his entitlement, and its validity is conditional on his being among those who hold stewardship, while the delegator has no stewardship, being only an imam, a muezzin or a teacher, so the delegation issued by him is not valid; the delegator too deserves nothing, because he did not fulfill the endower's condition. If he delegates during the days of excuse, he may take the waqf's revenue and give his deputy whatever he wishes of that revenue. If the imam granted stipends upon an office of teaching, imamate, call, judgment or market inspection and the recipient does not perform it, he may not take that amount, for the imam released it to him from the treasury only upon an office, which he did not perform: taking the treasury's wealth without the imam's permission is not permitted; the imam may release those stipends to him after ascertaining his non-performance, for another interest than that office, and he then deserves it by the second grant, not the first; and if it is a waqf and he did not fulfill its condition, it is not permitted for the imam to release it to one who does not fulfill the endower's condition (al-Furuq 2/406-407).

In the Fath al-Ali al-Malik of the shaykh al-Alish, may Allah have mercy on him: what do you say of the delegation by the holder of an office of imamate, call or teaching, without excuse? Is it barred? And who of the holder or the deputy is entitled to the wage? He answered: yes, the delegation by the holder of an office without excuse is barred by consensus; the lot of the holder is disputed: al-Qarafi said neither the holder, for lack of performance, nor his deputy, for lack of designation, deserves the wage; the implication of the words of al-Manufi and Ibn Rushd is that the deputy deserves all of it for the duration of the delegation; in the Tawdih: our master used to say: mosques and the like are taken by the notable in his own right, then he gives a little of it to the one deputizing for him; I consider the one who keeps it for himself to be in an unlawful position, for he made the worship of Allah a trade and did not fulfill the owner's intent, whose aim was ease, so that the hired man might come with an enlarged heart. Al-Badr said: the conclusion of this discourse is that the whole stipend, during the delegation, goes to the deputy alone, and this is the apparent of what al-Mawwaq transmitted from Ibn Rushd: the food stipends of judges and muezzins may not be sold before receipt, for they are a wage, contrary to the view of Ibn Habib that it is not a hire. It has been debated whether the endowments upon these offices are a hire or an assistance; that it is a hire is understood from the words of the deed-writers who hire the administrator, but perhaps the endowments of old were made so as to be leased out of their yield, whereas the endowments of our age are not so: they are a gift to whoever bears that burden. Ibn Arafa said: the endowments of our land were never endowed except upon whoever bears that burden, not so as to lease out the benefit of the endowment and take estimated advantage of it; on this basis the ruling is what al-Qarafi expressly stated in the fifteenth difference of the hundred, preceded therein by Izz al-Din ibn Abd al-Salam: it is not permitted to delegate a part of the entitlement and retain the rest; the one performing the office is not a deputy but an independent agent, entitled from the benefit to what corresponds to the duration of his performance; thus some of my shaykh muftis ruled, concerning the fruit of trees that bear fruit only once in two years, that this benefit is distributed over the two years, and the performers share it according to the times of their performance.

As for the Shafi'is, al-Qalyubi said in his Hashiya: delegation in the offices, the imamate, the preaching and the like is valid; the earlier bar concerns only the loss of the hired man's reward to the one who hires him, as when one hires someone to lead the prayer while he himself prays alone and obtains the reward of the hired man's imamate; and so on for the rest; as for performing the waqf's rituals, no doubt weighs upon the validity of delegation; but our master, may Allah have mercy on him, required, in the delegation of offices, that the delegate be the delegator's equal or superior (Hashiyat al-Qalyubi on Kanz al-Raghibin 3/185). He said elsewhere: delegation in the offices is permitted, thus said our master, following al-Ramli, following al-Subki; and the deputy's wage weighs upon the one who delegated him, not upon the waqf, whether the waqf be from the treasury or otherwise, contrary to what Jalal al-Suyuti said, who denied it in the second case (Hashiyat al-Qalyubi 3/267).

In the Hawi li-l-Fatawa of Jalal al-Din al-Suyuti, may Allah have mercy on him, there is an epistle titled "Unveiling the Dust of the Question of Delegation": the question of delegation in offices has often been posed and the confusion has spread; many administrators clung to the prohibition on the basis of what they transmitted from al-Nawawi and Ibn Abd al-Salam, who decreed the prohibition, while a group clung to lawfulness on the basis of what al-Damiri transmitted in the Sharh al-Minhaj from al-Subki, who decreed lawfulness. Al-Subki said in the Sharh al-Minhaj, in the chapter of ja'ala: it often happens in this age that the imam of a mosque has himself replaced; Ibn Abd al-Salam and the author decreed that he does not deserve the imamate's stipend: neither the delegator, for lack of performance, nor the deputy, for lack of mandate. Al-Subki said: I derived from the words of the companions that when the holder of a bounty seeks help and the work is done by another with the intention of assistance, alone or shared, the bounty-holder deserves the whole bounty, for that is permitted, and the delegator deserves the entire stipend, the deputy being his helper; I however condition it on the deputy being the delegator's equal or better, for the aim in the bounty is, for example, the return of the slave, which does not vary with persons, whereas the aim in the imamate is knowledge, religion and other qualities: if the holder possesses the quality and his deputy is his equal, the aim of the one who appointed him is achieved, and it is like the assumed image in the bounty; otherwise the aim is not achieved: if the appointment is a condition, neither of the two deserves; if it is not a condition, the performer deserves, by virtue of his possession of the imamate which grounds the entitlement. Delegation in the imamate resembles agency in permitted things; every office that admits delegation, such as teaching and the like, falls within the meaning of the imamate, within the measure of what he can perform himself; beyond that, delegation poses no problem. Such are the words of al-Subki, transmitted and approved by the shaykh Kamal al-Din al-Damiri in the Sharh al-Minhaj. The shaykh Fakhr al-Din Ibn Asakir taught at the Azrawiyya, the Taqwiyya and the Jaru khiyya, three schools of Damascus, as well as at the Salahiyya school of Jerusalem, spending months in each during the year, and that despite his knowledge and piety. It was asked in this age about a man appointed to teach at two schools in two distant cities, such as Aleppo and Damascus: a group ruled its lawfulness, among them the judge of judges Baha al-Din Abu al-Baqa al-Subki, the shaykh Shihab al-Din Ahmad ibn Abdallah al-Baalbeki, Shams al-Din al-Ghazzi and the shaykh Imad al-Din al-Hasbani, all Shafi'is, and among the Hanafis, the Malikis and the Hanbalis others (al-Najm al-Wahhaj 6/98).

Al-Suyuti said: Allah and His messenger, and the bearers of the law of every school, permitted delegation in many places, each of which suffices as an independent proof of the lawfulness of delegation in offices; they are of two kinds: that which is permitted even without excuse, and that which is permitted only with excuse. The first has branches: delegation is permitted in washing the limbs of ablution even without excuse; al-Nawawi said: we know of no disagreement among the Muslims on this, except what the author of the Shamil related from Dawud al-Zahiri: his ablution is not valid if washed by another, a claim refuted by consensus; likewise delegation is permitted for pouring water on the limbs and bringing it for purification, without dislike, with excuse or without; he mentions about a hundred situations in which the Muslim scholars permitted delegation without excuse, most of them by consensus: should the offices founded on benevolence and tolerance not be attached to these? Among the subtlest branches: the imam al-Haramayn mentioned in the Asalib that it is permitted to hire a man to steal for him some of the unbelievers' property without fighting, it becoming the hirer's property; and in the Fatawa of Ibn al-Salah that it is permitted to hire a man to sit in his place in prison. The second kind, with excuse, has branches: the lawfulness of delegating the pilgrimage for one who is despoiled, of the stoning for the pilgrim prevented on the days of stoning, of fasting on behalf of the deceased as al-Nawawi authenticated and as authentic hadiths report, of retreat on his behalf according to a view related from al-Shafi'i, and of prayer on his behalf according to a view likewise.

Al-Hafiz Imad al-Din Ibn Kathir mentioned in his history, in the biography of the shaykh Muhyi al-Din al-Nawawi, that he performed the teaching at the Iqbaliyya in place of Ibn Khallikan, likewise at the Falkiyya and the Rukniyya: this proves, from al-Nawawi, the lawfulness of delegation, for he was too scrupulous to do what is not permitted. Another proof: a group of companions gave legal answers during the Prophet's lifetime, and legal ruling belongs originally to the Prophet, who was sent to convey and teach the people; the scholars' ruling after his death comes by the way of the caliphate and inheritance of his office, so that their ruling during his life, with his permission, is a delegation from him, that they may stand in his place for what is his charge, by way of deputation. Another proof: Abdullah ibn Ahmad ibn Hanbal narrated in the Zawa'id of his father's Musnad, from Ali ibn Abi Talib:

When the ten verses of Surah "Bara'a" were revealed, the Prophet called Abu Bakr to read them to the people of Mecca, then called me and said: catch up with Abu Bakr wherever you find him, take the scroll from him and read it to the people of Mecca. I caught up with him, took the scroll from him, and Abu Bakr returned and said: O Messenger of Allah, was anything revealed about me? He said: no, but Jibril came to me and said: none shall deliver it on your behalf except you or a man of yours.Narrated by Abdullah ibn Ahmad in the Zawa'id of his father's Musnad

And Ahmad and at-Tirmidhi, who graded it good, narrated from Anas:

The Prophet sent Surah "Bara'a" with Abu Bakr, then called him and said: it is not fitting that anyone deliver this except a man of my family; he called Ali and handed it to him.Narrated by Ahmad and at-Tirmidhi, who graded it good

This is a delegation by the Prophet in the conveyance of that which he was commanded to convey; then, when he was ordered to delegate a man of a specific tribe, he took it back: his first act proves the lawfulness of delegation absolutely when the endower is silent about a condition, and his second act proves that if the endower specifies, his condition is followed. At-Tirmidhi, who graded it good, narrated from Ibn Abbas:

The Prophet sent Abu Bakr, ordering him to proclaim these words, then sent Ali after him; both set out for pilgrimage. Ali stood during the days of tashriq and proclaimed: the covenant of Allah and His messenger is cleared of every polytheist: travel through the land four months; no polytheist shall perform the pilgrimage after this year, none shall circumambulate the House naked, and none shall enter Paradise but a believer. Ali proclaimed, and when he wearied, Abu Bakr stood and proclaimed in his turn.Narrated by at-Tirmidhi, who graded it good

This is a deputation of Abu Bakr for Ali, for Ali was the intended one of the sending. Al-Bukhari narrated from Abu Hurayra:

Abu Bakr sent me among those who were to call out on the day of sacrifice at Mina: no polytheist shall perform the pilgrimage after this year, and none shall circumambulate the House naked.Narrated by al-Bukhari

This is also a deputation of Abu Hurayra, and the intended deliverer in this story was Ali.

All of this concerns a waqf whose endower was silent about delegation, whether permitting or forbidding it, and whose endower was a free owner of what he endowed; as for the waqf whose endower expressly permitted or forbade delegation, his condition is followed without exception; and as for the waqf whose endower was not the owner, like that made by the commander of the believers or the sultan from the public treasury, its ruling is that of allotted stipends, not that of endowments whose endowers are owners: he is not bound in it by the endower's condition, for it is the treasury's wealth allocated to the Muslims' interests: if one with an entitlement to the treasury is stipended in it, he may eat from it even if he does not fulfill the condition; and if he has no entitlement to it from the treasury, he may not eat from it even if he performs that office. The later scholars of our school stated this expressly: al-Zarkashi said in the Sharh al-Minhaj, in the chapter of hire: some thought that the weekly allowance for the imamate, the pursuit and the like falls under hire, so that he deserves nothing if he misses some of the prayers or days; it is not so: it falls under stipends and allowances founded upon benevolence and tolerance, unlike hire, which falls under exchange; that is why taking a wage for the judiciary is barred, while allowance from the treasury is permitted by consensus. Al-Damiri said in the Sharh al-Minhaj, in the chapter of ja'ala: I asked our master, that is, al-Isnawi, twice about the student's absence from the lesson: does he deserve the stipend, or a share of his attendance? He said: if the student, during his interruption, engages in knowledge, he deserves it; otherwise not; and if he attended without intending to learn, he does not deserve it, for the aim is his profit through knowledge, not his mere presence; and he considered this to fall under the stipends.

As for the Hanbalis, al-Bahuti, may Allah have mercy on him, said: the shaykh Taqi al-Din Ibn Taymiyya said: among those who consume wealth unlawfully are people granted salaries many times their needs, that is, from the treasury, and people holding known stipends who take much of it and then have themselves replaced in the stipends for a trifling portion; yet this contradicts the endowers' purpose. The shaykh said: deputation in such conditioned works, teaching, imamate, preaching, the call, the closing of the door and the like, is permitted, even if the endower appointed him, and in another wording: even if the endower forbade it, if the deputy is his delegator's equal in fitness for what he is delegated for, and no significant corruption arises. Such is the content of the shaykh's Fatawa (Kashshaf al-Qina 4/324; al-Insaf 7/69; Matalib Uli al-Nuha 4/340).