Islamic Fiqh > Endowments (waqf) and property > Conditions for the validity of a waqf > Changing the waqf for its equivalent and changing its form
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Updated on 27 September 2026 at 3:52 AM
This part belongs to the section: All parts.
The detailed discussion of the majority of jurists on the prohibition of replacing the waqf by something better, even when that would present an interest for the waqf and the beneficiaries, has already been presented. Shaykh al-islam himself, who permitted replacing the waqf for the interest, affirmed the prohibition of replacing it by its equivalent; he said: "it is not permitted to replace the waqf by its equivalent, for that would lose the designation without need" (al-Fatawa al-kubra, 4/514). The condition of permission according to him is the presence of an interest; as for replacing the waqf by its equivalent, no jurist permitted it.
Changing the waqf in its form: its example is transforming the house into an orchard or the reverse, the school into a mosque, or the house into a shop or the reverse. The jurists differed: is changing the form of the waqf permitted absolutely? forbidden? or is changing its type permitted without its kind?
Views exist among the scholars. The Hanbalis, and some Malikis, which is the choice of Shaykh al-islam Ibn Taymiyya, teach that changing the form of the waqf for the interest is permitted.
Al-Hattab said, after mentioning al-Barzali's words on observing the intention of the author of the endowment rather than his words: "similar to what I did myself in the shaykh's school located at the bridge: I changed some of its places, like the ablution room, which I turned into a room and moved to the well's location, the channel feeding it having been cut; and I returned the upper floor of the endowment as rooms for students, after giving an upper floor equivalent in benefit, by virtue of a notarized deed in its place; likewise an increase in the salaries of students who had become numerous: part of its kharaj entered into it; so much so that had the author of the endowment been present, he would have approved it; all of that with the approval of the supervisor of the endowment, after a complete examination of what appeared right to him, giving according to what is mentioned in the book of the endowment" (Mawahib al-Jalil, 7/497).
Shaykh al-islam Ibn Taymiyya (may Allah have mercy on him) said: "The supervisor has the right to change the form of the waqf from one form to a better one, as the rightly guided caliphs changed the form of the two mosques of the two noble sanctuaries, and as Umar ibn al-Khattab moved the mosque of Kufa from one location to another, and the like" (Majmu' al-fatawa, 31/260).
He also said: "The majority of the scholars permitted changing the form of the waqf for the interest, such as turning houses into shops, and the well-known hakura" (note: the hakura is land endowed for planting trees near houses; the hakr is the endowed estate; according to "al-Mu'jam al-wasit", 1/189; in terminology, it denotes a lease contract aimed at preserving land for building, planting or one of the two; according to the "Hashiyat Ibn Abidin", 6/32, the hikr is the fixed rent on the waqf estate, taken from the one who builds or plants on it, and it follows the estate from hand to hand to be paid to the beneficiaries of the waqf; Shaykh Aliysh said: whoever seizes the vacant land owes a rent to the beneficiary of the waqf, called in our Egypt hikr, so that the waqf is not lost; and monopoly is valid only at the fair rental value, which does not remain in a single state: the rent rises and falls with time; "Fath al-'Ali al-Malik", 2/243):
"with no difference between a structure for a structure and a courtyard for a courtyard at the outset; if vineyards were made waqf for the poor and the neighbors suffer harm from them, one compensates with what does not harm the neighbors, the first reverting to ownership and the second remaining waqf; and in case of need, replacing the waqf by its equivalent is obligatory; without need, replacing it by something better for the interest is permitted: it is the analogy of the hadi, and it is a view regarding exchange" (al-Fatawa al-kubra, 4/514). Ibn Qundus said: he means by this that many waqfs were gardens that were leased out (ahkara) and turned into houses and shops, and the eminent scholars did not reject that (Manar al-sabil, 2/343).
The Hanbalis permit changing the form of the waqf if it is for the interest of the waqf, not for that of the founder. Al-Bahuti (may Allah have mercy on him) said: "dividing the mosque into two mosques with two doors toward two different roads is not permitted; for it is a change without interest for it" (Kashshaf al-Qina', 4/355). Ibn Muflih (may Allah have mercy on him) said: "he does not change it for his own interest; if he changed it for his own interest, he is bound to return it to its state and to guarantee what he made it lose of benefit; and the authorities compel him to what is obligatory upon him; if he refuses, he is punished by imprisonment and beating and the like: the debtor is punished thus; all the more one who refuses a obligatory act after a preceding injustice" (al-Furu', 4/441).
The Shafi'is in their school teach the prohibition of changing the waqf from its form. Imam al-Nawawi (may Allah have mercy on him) said: "changing the waqf from its form is not permitted: the house becomes neither an orchard nor a bath, nor the reverse, unless the founder gave the supervisor latitude to see in it an interest for the waqf. In the "Fatawa al-Qaffal": transforming the fullers' shops into bakers' shops is permitted: he would thus have entertained the change of type without that of kind (Rawdat al-talibin, 4/175). Ibn Hajar al-Haytami (may Allah have mercy on him) said: "the summary of the imams' words on change: changing the waqf from its form is not permitted; the house becomes neither orchard nor bath, nor the reverse, unless the founder gave the supervisor latitude to see in it the interest of the waqf.
In the 'Fatawa al-Qaffal': transforming the fullers' shops into bakers' shops is permitted. The two shaykhs said: he would thus have entertained the change of type without that of kind. The apparent of their words is the permission of change as long as the name and the kind remain, whether slight or abundant, whether the interest requires it or not, and whether it entails the disappearance of part of the substance of the waqf or not; but apparently that is not intended by them, as with the companions: it would entail a great transgression and corruptions not hidden; that is why al-Subki stipulated the conditions we shall report, and his companions approved them. In "al-Khadim": "the rule of prohibition is the change of the name, that is, with the kind.
Al-Adhra'i said: al-Ghazali mentioned, as reason for forbidding marrying the waqf slave-woman, that it diminishes the waqf and contradicts the founder's aim. Ibn al-Rif'a said: this indicates that the aims of the founders are taken into consideration even if not explicit. Al-Qaffal stated it explicitly, saying: the aims of the founders must be examined. Ibn al-Rif'a said: that is why our shaykh Imad al-Din (may Allah have mercy on him) used to say: if the interest requires changing part of the waqf building in its form to increase its revenue, that is permitted, even if the founder did not stipulate it in his words; for the proof of the state testifies that if the founder had mentioned it at the time of the waqf, he would have written it in his waqf deed.
I told the shaykh al-islam of his era, Taqi al-Din al-Qushayri, that is, Ibn Daqiq al-'Id (may Allah have mercy on him), about the acts of judges consisting in changing a door from one place to another; he expressed his satisfaction at that; and this statement was reported in "al-Khadim": Ibn al-Rif'a, after his saying in the book of the waqf: "the judge of judges Taj al-Din and his son, the judge of judges Sadr al-Din, ruled thus, changing a door from one place to another; and they were at the highest degree in knowledge and religion"; I said that to Ibn Daqiq al-'Id, who said: my father, that is, Shaykh Majd al-Din, used to say: my shaykh al-Maqdisi used to say that and more. Ibn al-Rif'a said: Ibn Daqiq al-'Id's words expressed his satisfaction; it is said in "al-Tawassut": al-Subki said: this man was the model of his era in knowledge and religion; that is why he rejoiced at what he expressed of his satisfaction, and he was of those with whom one is content without more.
Both, that is, al-Adhra'i in "al-Tawassut" and al-Zarkashi in "al-Khadim", reported that al-Subki said: my view is permission under two conditions, according to the wording of "al-Tawassut", and under three conditions according to the wording of "al-Khadim":
Ibn Hajar said: al-Adhra'i said: the chosen and strongest view is permission, even if the founder did not stipulate the change, so long as no text or consensus prevents it; for the founder's aim is without doubt exploitation and the increase of revenue for the beneficiary, not the name of orchard or the like.
Al-Qaffal said: the aims of the founders must be examined, and everyone affirms that his aim is the provision of revenue to the category of the waqf; with the succession of eras there may occur interests that did not appear in past time, and an opportunity in something of which one is certain that the founder, had he been informed, would not have turned away from it: the supervisor or the ruler must then act; Allah knows the corrupter from the reformer; especially if the rent is considerable and the benefit doubled: the designation of house or orchard generally aims at identification, to preserve the name while elsewhere appears a manifest and great interest, like a house whose rear adjoins a souk and whose monthly rent is ten for example, whereas if shops were made of it they would reach a hundred or two hundred, with the lightness of their upkeep and repair to come; there is then no meaning to rigidity in keeping the name of house without stipulation by the founder; the saying of the Shurunbulali: (waqf of the whole of the house or the orchard) is for identification.
The chosen view among the two views of qadi Husayn is the first, when the interest in planting appears; and it is acted upon in the land of Syria regarding the exploitation villages, without objection. This is what appeared to me: if it is right, it is from Allah and His success; otherwise it is from me. Most founders stipulate in their condition: the supervisor performs what entails growth and increase for its revenues, and the like. End of al-Adhra'i's words.
It is explicit in them that this choice is outside the school; for the school, as is known, forbids when the change leads to changing the name with the kind, like turning the house into an orchard or a bath, unlike turning the blacksmith's shops into fullers' shops, the name remaining: only the type changes, without the kind. It is thereby known that the more probable of the qadi's two divergent views is the preference of al-Subki and al-Adhra'i, as is known (al-Fatawa al-fiqhiyya al-kubra, 3/153, 156; see: Mughni al-muhtaj, 3/480; Hashiyat 'Umayra 'ala Kunz al-raghibin, 3/265).
As for the Hanafis, it is said in the "Fatawa hindiyya": changing the waqf from its form is not permitted: the house does not become an orchard, the khan not a bath, nor the ribat a shop, unless the founder gave the supervisor latitude to see in it the interest of the waqf; thus in "al-Siraj al-wahhaj" (al-Fatawa al-hindiyya, 2/490).
The consolidation of waqfs denotes gathering the substances of several waqfs, or their destinations, into a single substance or destination. Example: that there be a waqf for the needy, another for students of knowledge, and a third for the fighters in the way of Allah, and that these substances be gathered into one. Two cases arise: the founder and the beneficiary are unified while the property is multiple, or the founders are multiple while the beneficiary is unified.
a) The founder and the beneficiary are unified and the property multiple: example: Zayd makes his house and his land waqf for students of knowledge. May he gather the house and the land into a single substance, then give their revenue to the students? The books of the Hanafis contain what indicates the permission. Ibn Nujaym al-Hanafi (may Allah have mercy on him) said: in "al-Zahiriyya": if he possessed lands and houses shared with another, made his share waqf, then wanted to join his partner and gather the whole waqf into one land and one house, that is permitted according to the analogy of Abu Yusuf's and Hilal's view (al-Bahr al-ra'iq, 5/213; Ibn Abidin, 4/354).
b) The founders are multiple and the beneficiary unified: example: Zayd makes a waqf for a mosque and Amr another waqf for that same mosque, or for students of knowledge or the fighters: may the revenues of the two waqfs be gathered? Ibn Nujaym (may Allah have mercy on him) said: in "al-Walwalijiyya": a mosque endowed with several waqfs: the supervisor may mix all their revenues without harm; and if a shop among them has fallen into ruin, restoring it from the revenue of another shop is not problematic; for all of that belongs to the mosque. That is when the founder is one; and if the founders are different, the answer is the same: the meaning gathers them (al-Bahr al-ra'iq, 5/234; al-Muhit al-Burhani, 6/110; Majma' al-damanat, 687; Ibn Abidin, 4/361). Ibn Nujaym also said: the supervisor may mix the revenues of the different waqfs of the mosque, whether the founder be one or multiple (al-Bahr al-ra'iq, 5/269).
Al-Mirdawi (may Allah have mercy on him) said: the author and those who followed him said: if part can be sold to restore the rest, it is sold; otherwise all of it is sold. It is said in "al-Furu'": I found this saying with no one before him. He said: the intent is that the founder be unified, like the category; if he then wants two substances, like two houses, that is apparent. Likewise if he wants a single substance and its value does not diminish through division; if it diminishes, the sale is inclined to according to the school's analogy, like the sale by an executor of a debt, or the need of a minor; and this is even easier, because of the permission to change its attributes for an interest and its sale according to a view.
End of quote. The saying of the author of "al-Furu'", that the intent is that the founder be unified, is apparent in that it is not permitted to restore one waqf from the revenue of another, even if the category is unified. Shaykh Ubada, one of the imams of our companions, gave a fatwa permitting the restoration of one waqf from another waqf of the same category, mentioned by Ibn Rajab in his "Tabaqat" in his biography. I say: it is a strong view, and the people act upon it.
Our shaykh said in "Hawashi al-Furu'": his saying in "al-Furu'" is more apparent. Al-Harithi said: every waqf other than the mosque: part of it may be sold to repair what remains (al-Insaf, 7/104-105). It is said in "Muntaha al-iradat" and its commentary by Ibn Qa'id: one waqf is not restored by another; Ubada gave the fatwa permitting the restoration of one waqf from the revenue of another of the same category. The verifier said: this is acted upon.
His saying: (one waqf is not restored, etc.) is a consequence of the condition of the founder's unity mentioned above: if a person has for example two houses, Zayd makes one waqf and Amr the other, one is not restored from the other; this is apparent if the intent is: "one waqf is not restored by the substance of another waqf", that is, one does not sell for its restoration (note: Abu Muhammad Ubada ibn Abd al-Ghani ibn Mansur al-Harrani al-Dimashqi: jurist and mufti, he presided over contracts and rescissions, and wrote many fatwas, died in 739; "Dhayl Tabaqat al-Hanabila", 2/432-433).
Continuation: if the intent is "one waqf is not restored from the revenue of another of the same category", as their words require, then the revenue is the property of the beneficiary, who does with it what he wills; unless it is said that the intent is: "that is not obligatory"; or that this is carried over to the waqf assigned to non-designated beneficiaries, like the poor: the supervisor is then prevented from restoring one of the two from the revenue of the other. His saying: (from another): from the revenue of another, even of the same category. His saying: (Ubada gave the fatwa): he is one of the imams of our companions, as Ibn Rajab reported in his "Tabaqat". His saying: (this is acted upon): this contradicts what the author affirmed categorically at the beginning (Muntaha al-iradat, 3/385-386).
Spending the revenue of the waqf on another category: Shaykh al-islam Ibn Taymiyya (may Allah have mercy on him) said: "The founder's condition may be changed toward what would be better, even if that differs with the change of times; to the extent that if one made waqf for jurists and Sufis, and the people needed jihad, the revenue is directed to the soldiers" (al-Fatawa al-kubra, 4/509). Al-Bahuti (may Allah have mercy on him) said: "the surplus of the waqf beyond the mosque's need: its mats, its oil, its revenue, its debris, its instruments and their price if sold: directing it to another mosque in need is permitted; for it is a direction within the kind of the designated; and giving it as charity to the poor of the Muslims is permitted, for it is like the interrupted.
Al-Harithi said: it was not set aside because of the shutdown it would entail, which would contradict the aim; if a need is expected at another time and no revenue answers it, it is not spent elsewhere; for the principle is spending in the designated category, and the other is permitted only where there is no need, for fear of shutdown. Abu al-Khattab and al-Majd specified for the poor the poor of its neighborhood, because of their greater constancy and care for its interest. Al-Harithi said: the first view is more likely. The shaykh, that is, Ibn Taymiyya, said: the surplus may be spent on its equivalent, on other interests, and on building houses for the beneficiary of the revenue who manages its interest.
The surplus of the revenue of a waqf assigned to a designated beneficiary: his entitlement is fixed by the waqf through the determination of its allotments (arsad): qadi Muhammad Abu al-Husayn mentioned it, and al-Harithi confined himself to it. As for the surplus of the revenue of the waqf assigned to a designated one, to two designated ones or to a specific group, its allotments are determined; Abu al-Husayn mentioned it for the surplus of the revenue of the waqf assigned to the upkeep of a person; that only comes about if the spending is fixed; in the absence of fixation there is no surplus, for the revenue is absorbed. It is said in "al-Insaf": it is clear; affirmed in "al-Muntaha". The shaykh said: if it is known that its revenue exceeds its needs permanently, spending the surplus is obligatory; for keeping it is a corruption for it, and giving it to the beneficiary beyond what the founder fixed for him is permitted, for his fixation does not prevent his entitlement.
He said: spending the surplus is not permitted to other than the supervisor, for it would be a usurpation of the authority of the one who holds it. I say: apparently there is no liability, like the division of the hadi and the sacrificial animal.
Whoever made a waqf for a frontier post and the post lost its function: the waqf is directed to an equivalent post, by analogy with the sale of the ruined waqf; for the primary aim here is the spending on the frontier garrisons: applying the condition of the specific post would bring the aim to a halt: spending on another post therefore becomes obligatory. It is said in "al-Tanqih": by analogy: a mosque, a ribat and the like; al-Harithi stated it explicitly. He said: the condition may be contradicted for a need: the waqf assigned to the jurist of a specific school: if such jurists are lacking, spending is imposed on the jurists of another school, by analogy with the sale of the ruined waqf.
He said: if one made a waqf for a mosque or a basin that became unusable, the spending goes to their equivalent; if one vowed to give a property in charity on a specific day of the year and that became impossible on that day, it becomes obligatory as soon as possible; Ahmad stated explicitly regarding one who made a waqf for a bridge whose water was diverted or cut off: the allotment is maintained, for perhaps the water will return and they will need the bridge; al-Harithi said before: one directs to another bridge, for what has preceded (Kashshaf al-Qina', 4/356-357).
In "al-Mi'yar al-mu'rib", in a question addressed to the master Abu Sa'id Farj ibn Lubb, whose meaning is: is it permitted to direct endowments whose destination is unknown toward the works of good? He answered: since for endowments of known destination permission was said to direct their surplus toward other than their destination, within the works of good and the paths of piety, all the more for endowments of unknown destination. It is related in "Nawazil Ibn Jaber": Muhammad ibn Ishaq facilitated the directing of endowments, part toward part. Other judges of Cordoba did likewise, and that is Ibn Habib's view in the book of the endowment of his "Wadiha"; there is divergence on that.
Ibn Sahl mentioned in his "Nawazil" a similar saying from some shaykhs: there is no harm in directing the surpluses of endowments, part toward part; and what belongs to Allah may be directed to what belongs to Allah (al-Mi'yar al-mu'rib, 7/92).
Ibn al-Majishun was asked about land endowed for the burial of the dead that became too small for its people: they filled it and bury elsewhere, so that only the needy are buried in it, while beside it stands a mosque become too small for its worshippers: they wanted to enlarge it from it, and that is permitted; for all of that is an endowment: there is no harm in directing part of it toward part. Asbagh reported from Ibn al-Qasim, regarding a cemetery that reached its term: there is no harm in building a mosque in it; and whatever belongs to Allah, there is no harm in aiding part by part ("al-Nawadir wa-l-ziyadat" of al-Qayrawani, 12/90).
Imam al-Qarafi (may Allah have mercy on him) said: the provisions of mosques and cathedral mosques may be moved from their destinations when they have become unusable, or when a destination more worthy of the interest of the Muslims than the first is found, whether a waqf or a lease for which that would be impossible there; for the waqf cannot be changed, and fulfilling the lease contract is obligatory ("al-Furuq", 2/406).
The public interest denotes the benefit that the generality of people enjoy and that meets their need in a specific domain, such as establishing mosques, cemeteries, roads and wells. If the people need to take a waqf and turn it away from the domain the founder wanted toward a domain of general benefit, like enlarging a mosque, a road or a cemetery, at the expense of a waqf assigned to a specific category or to individuals, the imam of the Muslims is then compelled to expropriate this waqf against its price, and the waqf then enters into the mosque, into the enlargement of the road or of the cemetery.
The principle is that expropriating the waqf is not permitted except in specified cases, for necessity or need, which the jurists mentioned. The majority of jurists (Hanafis, Malikis and Hanbalis) stated explicitly the permission to expropriate the waqf for the public interest, because of what is reported from the Companions (may Allah be pleased with them): when the Sacred Mosque became too small, they took two lands against the will of their owners, for their price, and enlarged the Sacred Mosque (Tabyin al-haqa'iq, 3/331; al-Bahr al-ra'iq, 5/276; Ibn Abidin, 4/379). Imam Malik (may Allah have mercy on him) said, about the houses that surrounded the mosque of the Prophet (pbuh) and that were endowed: they were bought and the mosque was enlarged (al-Fawa'id al-Dawani, 2/165). The general benefit, like the benefit of the mosque, the cemetery and the road, is greater than the benefit of the waqf: it is therefore close to the founder's aim (al-Fawa'id al-Dawani, 2/165; Hashiyat al-'Adawi, 2/349).
The Hanafis say: if the mosque has become too small and beside it lies waqf land for it or a shop, it may be taken and included in it; if it is the property of a man, it is taken for its price, against his will; if it is a public road, only part of it is included, on condition of not harming the road. In the chapter on disapproval of "al-Khalasa", from the jurist Abu Ja'far, from Hisham, from Muhammad: part of the road may be turned into a mosque, or part of the mosque into a public road; that is, when they need it (Sharh Fath al-Qadir, 6/235).
Ibn Nujaym al-Hanafi (may Allah have mercy on him) said: his saying: (if part of the road is turned into a mosque, that is valid, like the reverse): that is, when people build a mosque and need space to enlarge it, and they include part of the road to enlarge the mosque, without harming the holders of the road, that is permitted. Likewise, if the mosque has become too small for the people and beside it lies the land of a man, his land is taken for its price against his will, because of what is reported from the Companions (may Allah be pleased with them): when the Sacred Mosque became too small, they took two lands against the will of their owners for their price, and enlarged the Sacred Mosque. The meaning of his saying: (like the reverse): when a passage is made in the mosque, that is permitted, by the custom of the people of the lands in the cathedrals; and anyone may pass through it, even the disbeliever, except the person in major ritual impurity, the menstruating woman or the one in lochia; they may not bring beasts of burden into it, as the commentator mentioned.
In "al-Khaniyya": a wide public road in which the people of the quarter built a public mosque without harming the road: they said: that is not problematic; the same was reported from Abu Hanifa and Muhammad; for the road belongs to the Muslims, and the mosque likewise; if the people of the quarter want to include part of the road in their houses without harming the road, they have no right to that; and it is permitted to them to move the door of the mosque from one place to another. People built a mosque and needed space to enlarge it: they took from the road and included it in the mosque; if that harms the road, it is not permitted; otherwise there is no problem. If the mosque has become too small and beside it lies the land of a man, his land is taken for its price against his will; if beside the mosque lies land made waqf for it and they want to enlarge the mosque with that land, that is permitted by order of the judge (al-Bahr al-ra'iq, 5/276; see: Tabyin al-haqa'iq, 3/332).
It is said in "al-Durr al-mukhtar": (an element was turned): the builder turned (part of the road into a mosque) because of its narrowness, without harming passers-by (that is permitted); for both belong to the Muslims (like the reverse): that is, like the permission of the reverse, namely making a passage in the mosque, by the custom of the people of the lands in the cathedrals, anyone passing through it, even the disbeliever, except the person in major ritual impurity, the menstruating woman and beasts of burden; Zayla'i; (just as it is permitted to turn, according to the imam, the road into a mosque, but not the reverse): because of the permission of praying in the road, not of passing through the mosque (land is taken), a house and a shop (beside a mosque become too small, for its price, against the owner's will): "Durar" and "Imadiyya".
Ibn Abidin (may Allah have mercy on him) said in his hashiya "Radd al-muhtar 'ala al-Durr al-mukhtar": request on the turning of part of the mosque into a road. His saying: (of the road): he stated the road in absolute terms, covering the capital road and others; their expressions support it. His saying: (because of its narrowness and without harming passers-by): it indicates that permission is subject to these two conditions. His saying: (it is permitted): the apparent is that it acquires the ruling of a mosque; he said in "Jami' al-fusulayn": the mosque taken from the side of the road does not acquire the ruling of a mosque, but remains a road; proof: if its walls were raised, it would become a road again as before; Shurunbulaliyya.
I say: the apparent is that this concerns the mosque turned in its totality from the road, whereas our discussion concerns what was included of the road into the mosque: nothing prevents it from taking the ruling of a mosque where it was included, like the mosque of Mecca and that of Medina; it was expounded, shortly before the section on the votive offering and supererogatory prayers in the study of the rulings of the mosque, that what is attached to the mosque of Medina is attached to it in virtue; but the first scrutiny is preferable. His saying: (like the reverse): it is disputed, as will come; and that is in case of need, as he limited it in "al-Fath". His saying: (by the custom of the people of the lands in the cathedrals): we do not know that in our cathedrals; people have indeed grown used to passing through a mosque with two doors; it is said in "al-Bahr": likewise it is disliked to make the mosque a road and to enter it without purity.
Indeed, at the edges of the courtyards of the cathedrals there are covered galleries for walking in time of rain, meant for prayer or for leaving the cathedral, not for the absolute passage of passers-by like the public road; perhaps that is what is meant: the one who needs to pass through the mosque passes only in that spot, so as to be far from the worshippers and so that the place of prayer be more venerable; consider. His saying: (even the disbeliever): it was objected that the disbeliever is not prevented from entering the mosque, including the Sacred Mosque: there is thus no point in making him the limit here. I say: in "al-Bahr", from "al-Hawi": the disbeliever and the people of the covenant may enter the Sacred Mosque, the Sacred House and the other mosques for the interests of the mosque and other important matters; the implication is that his entry for other than that is reprehensible, and it is to that that our discussion is oriented; understand.
His saying: (just as it is permitted, etc.): it is said in the Shurunbulaliyya: it contains a kind of rectification of what preceded, unless it is said that that concerns turning part of the road into a mosque, whereas this concerns turning all of it; and it must be restricted by the absence of harm; there is no doubt that harm is apparent in turning the whole of the road into a mosque, for it annuls the right of the generality to pass with their beasts and other things: it is therefore only said by interpretation, meaning part of the road and not all of it; consider. It was answered that this form occurs when two roads lead to a destination and the generality needs a mosque: turning one of them into a mosque is then permitted, without annulment of their right in its totality. His saying: (but not the reverse): that is, the mosque is not turned into a road; it contains a kind of objection to what preceded, except according to the examination of part and whole; Shurunbulaliyya.
I say: the author followed the author of the "Durar", although he reported in "Jami' al-fusulayn" first: turning part of the mosque into a road and part of the road into a mosque is permitted; then he alluded to another book: turning the road into a mosque is permitted, not the mosque into a road; for prayer in the road is not permitted: turning it into a mosque is therefore permitted; and passing through the mosque is not permitted: turning it into a road is therefore not. It cannot be hidden that these are two views regarding turning the mosque into a road, in light of the mentioned rationale; it is supported by what is in "al-Tatarkhaniyya", from the fatwas of Abu al-Layth: if the people of the quarter want to turn part of the mosque into a road for the Muslims, it was said: they have no right to that, and that is correct; then it was transferred from "al-Attabiyya", from Khwahar Zada: when the road is narrow and the mosque wide, and they do not need part of it, enlarging the road from the mosque is permitted; for all of it belongs to the generality.
The texts incline to the second view, which is therefore the one adopted; but the texts' words concern turning part of the mosque into a road; as for turning the whole of the mosque into a road, the apparent is that it is not permitted unanimously; in "al-Tatarkhaniyya": Abu al-Qasim was asked about the people of a mosque, some of whom wanted to turn the mosque into an esplanade or the esplanade into a mosque, or make it a door or move its door, while others refused; he said: when the majority and the best have gathered, the minority cannot prevent them. I say: the esplanade of the mosque is its courtyard; if what is meant is turning part of it into an esplanade, there is no problem; if what is meant is turning all of it, it does not annul the mosque from every angle, for it is a matter of moving it by turning the esplanade into a replacing mosque, unlike turning it into a road; consider.
The apparent of what we have reported is that the commentator's restriction, first by the builder and then by the imam, is not necessary; in "al-Tatarkhaniyya": and from Muhammad, about a mosque become too small: there is no harm in including to it part of the public road if it is wide; it was said: it must be by order of the judge; it was said: it is permitted only if the town was conquered by force and not by treaty (Ibn Abidin, 4/376, 379).
The Malikis stated explicitly the permission to sell the waqf and expropriate it from its beneficiaries, whether it is assigned to a designated one or to a general category. They say: the sale of the waqf is permitted only in three cases, even without ruin:
for that is a general benefit for the Muslims, broader than selling the endowed house, and this whether the waqf is assigned to a designated beneficiary or not. If the holder of the endowment, the supervisor or the property owner refuses the sale, the well-known opinion is that they are compelled to sell. When they have sold and received the price, they are ordered to place it in another endowment (al-Muntaqa, 6/131; al-Sharh al-kabir with the hashiya of al-Dasuqi, 5/480-481; al-Taj wa-l-iklil, 4/582-583; Sharh Mukhtasar Khalil, 7/94-95; Tahbir al-Mukhtasar, 4/657; al-Fawa'id al-Dawani, 2/164; Manh al-Jalil, 8/155; Hashiyat al-Sawi, 9/181).
Al-Kharshi said, at Khalil's saying: (except for an enlargement, like a mosque, even by force): it was said above that the endowment cannot be sold, even in ruin, except the real estate; and in this question, when the mosque has become too small for its worshippers and needs enlargement, and beside it lies endowed real estate or property, the sale of the endowment for the enlargement of the mosque is permitted; if the holder of the endowment or the owner refuses, the well-known opinion is that they are compelled; and with the price of the endowment what will be an endowment like the first is bought; like the enlargement of the mosque: the enlargement of the road of the Muslims and of their cemetery. The author permitted restricting the mosque by its belonging to the community; the apparent is that it be earlier or later; he restricted himself with his saying: like a mosque from an ablution place.
(And they are ordered to place the price in another): that is, the endowed real estate, when sold for the enlargement of a mosque, a road or a cemetery as mentioned, its price is used to buy an equivalent real estate that will be an endowment in its place; is the seller compelled to carry out the replacement or not? There is divergence on that; the well-known opinion is the absence of compulsion to place the price elsewhere; for the sale having been permitted to them, the waqf status attached to it has altered (Sharh Mukhtasar Khalil, 7/95-96). Al-Nafrawi said in "al-Fawa'id al-Dawani": likewise, the sale of the waqf for the enlargement of a Friday mosque is permitted.
Khalil said: except for an enlargement, like a mosque; it is rented, and with its price what will be an endowment like the first is bought; like the enlargement of the mosque: the enlargement of the road of the Muslims and of their cemetery; for the benefit of the mosque, the cemetery and the road is greater than the benefit of the waqf: it is therefore close to the founder's aim; moreover, its contrary is substituted with the price; if the sellers refuse to place the price in its equivalent, they are not compelled to that according to the adopted view; and the alteration of the waqf's status permits its sale, which does not contradict compelling them to sell, as Malik (may Allah be pleased with him) said about the houses that surrounded the mosque of the Prophet (pbuh) and that were endowed: they were bought and the mosque was enlarged. We restricted ourselves to the Friday mosque to exclude the others: the waqf is not sold for the enlargement of another, like the ablution place (al-Fawa'id al-Dawani, 2/165).
As for the Hanbalis, al-Mirdawi (may Allah have mercy on him) said: Salih transmitted: moving the mosque for the interest of the people is permitted: this is among the unique reports. In the one hundred and forty-third maxim, he stated in absolute terms, regarding the permission to replace the waqf while restoring it, two narrations. According to him: buying the houses of Mecca for a general interest is permitted; it is said in "al-Furu'": a similar view is inclined to here. Shaykh Taqi al-Din (may Allah have mercy on him) said: the majority of the scholars permitted changing the form of the waqf for the interest, such as turning houses into shops, and the well-known hakura, with no difference between a structure for a structure and a courtyard for a courtyard: that is the explicit meaning of his words.
He also said, about one who made vineyards waqf for the poor and whose neighbors suffer harm from them: one compensates with what does not harm the neighbors, the first reverting to ownership and the second remaining waqf. End of quote (al-Insaf, 7/101-102).