Rules Regarding Waqf
2685. If a person makes something Waqf, it ceases to be his property, and neither he nor anybody else can either gift or sell it to any person. In addition, no one can inherit anything out of it. However, there is no harm in selling it, in certain circumstances, which are mentioned in rule no. 2102 and 2103.
2686. It is not necessary to utter the formal declaration of Waqf in Arabic. If, for example, a person says, "I have made my house Waqf" and the other person for whom he had made it Waqf, or his representative, or his guardian says, “I accept it” it will be considered valid. In case if the Waqf is not made for a specific person, for example, a Masjid or a school has been made Waqf for the public use, or Waqf is made for general poor or Sadat, and it is better and preferred that the Hakim Sharh’ or someone who is appointed by him accepts it.
2687. If a person marks a property for Waqf, but before uttering its declaration, he regrets it or dies, the Waqf is not considered as established.
2688. If a person makes a property Waqf, he should have the intention to become closer to Allah, and he should make it a perpetual Waqf from the time he declares the Waqf. Therefore, if he says, "This property is Waqf after my death" the Waqf will not be valid, because it would not cover the period from the time of declaration until his death. In addition, if he says, "This property will remain Waqf for ten years and will not be Waqf thereafter" or says, "It will be Waqf for ten years and thereafter it will not be Waqf for five years, and will become Waqf again after the expiry of that period", such a Waqf is not valid.
2689. A Waqf will be valid when the property, which has been made Waqf, is given away at the disposal of beneficiaries for whom the Waqf is made, or their representative or guardian. Moreover, if a person makes something Waqf for his minor children, with the intention that it will become their property and looks after it on their behalf, the Waqf is in order.
2690. If a Masjid is made Waqf. The Waqf is established immediately after any one person has prayed in it.
2691. It is necessary that the person who makes a Waqf should be Baligh and sane, and should be doing so out of his free will. In addition, he should have the right, according to Shari’ah, of disposal and discretion over his property. On this ground, a feeble-minded person who squanders his wealth and is therefore debarred cannot make a valid Waqf since has no right over his property.
2692. If some property is made Waqf for an unborn child, it is not valid. However, if Waqf is created for some people who are present at that time, and for the persons who will be born later, for example, if a person makes a property Waqf for his children and after them for his grandchildren, and for every succeeding generation to benefit from it, the Waqf is in order.
2693. If a person creates a Waqf for himself, for example, if he makes a shop Waqf for himself so that its income may be spent for the construction of his tomb after his death, the Waqf is not in order. However, if he creates a Waqf for the poor and later on, he himself becomes poor, he can benefit from the accruals of that Waqf.
2694. If a person appoints a Mutawalli (trustee) of the property, which is made Waqf by him, the trustee should act according to his instructions. However, if he does not appoint a trustee and say, he has made the property Waqf for a particular group, like, for his children, if they are Baligh, the discretion rests with them, and if they are not Baligh, the discretion rests with their guardian. In addition, the permission of the Mujtahid is not necessary for appropriating any benefit from the Waqf.
2695. If a person makes a property Waqf, for example, for the poor, or for the Sayyids, or he make it Waqf for charitable purposes, and does not appoint the trustee for the Waqf, the discretion with regard to that Waqf rests with the Mujtahid.
2696. If a person makes a property Waqf for a particular group of people, like, his descendants, so that generation after generation should benefit from it successively; if the trustee of the Waqf leases it out, and then dies, as per obligatory precaution, the lessee should lease it from the next trustee. However, if the Waqf has no trustee, and someone from the same generation, for whom the property has been made Waqf, leases it out and they die during the period of the lease, the lease becomes void. In addition, if the lessee has given rent for the entire period, he is entitled to receive the refund of rent, which covers a period from the time of their death until the end of the period of lease.
2697. If the property, which has been made Waqf, is ruined, its position as Waqf is not affected.
2698. If one part of a property has been made Waqf and the other part is not, and the property is undivided, the Hakim Sharh’, or the trustee of the Waqf can divide the property and separate the Waqf part in consultation with the experts.
2699. If the trustee of Waqf acts dishonestly, and does not use its income for the prescribed purposes, the Hakim Sharh’ should replace him with an honest trustee.
2700. A carpet, which has been made Waqf for Husayniya (Imambargah), cannot be used in Masjid for offering prayers, even if the Masjid is near the Husayniyah.
2701. If a property is made Waqf for the maintenance of a Masjid, and that Masjid does not stand in need of repairs, and it is also not expected that it will need repairs for quite some time, it can be spent on any other Masjid which is in need for repairs.
2702. If some property is made Waqf so that its income is utilised for the repairs of a Masjid, and it should be given to the Imam of the congregation, and to someone who calls the Azaan, if it is known or they are certain about the share of each as mentioned by the donor; moreover, it should be spent in the same manner. However, if it is not known or they are not certain, the Masjid should be repaired first, and if there is any balance, it should be distributed between the Imam of the congregation and with someone who calls the Azaan, so that these two beneficiaries reach to a compromise between them in respect of the distribution.