This article is from alqalam.org.uk


Q: If I own a property jointly with another person, can I make Waqf of my half share?

A: This depends firstly on the nature of the waqf and then on the nature of the property. In the first instance, if the waqf is for the purpose of a Masjid or cemetery then it is necessary that the property being made waqf is the sole property of the dedicator and not subject to common ownership as the dedication of one joint owner is not enforceable upon the other.

As a result, the property would reciprocate being used as a masjid or cemetery for a period and then for another purpose for an equal period. This is not at all conducive to the proper etiquette due to a masjid or cemetery. Thus, the jurists are agreed that the waqf of property subject to common ownership for the purpose of a Masjid or cemetery is not permitted.

If the waqf is for other than a masjid or cemetery, and it is also not divisible, i.e., it cannot retain its normal utility if it is divided such as in the case of a well or stone mill, then it is permitted to dedicate such commonly owned property as waqf by general agreement of the jurists.

If the property is divisible, i.e., it can retain its normal utility if it is divided then there is a difference amongst the jurists. Imam Muhammad of the Hanafi School does not allow such waqf whilst Imam Abu Yusuf of the Hanafi School and the preponderance of jurists from the Maliki, Shafi’i and Hanbali schools allow it.

This difference is based on the difference of opinion in relation to the requirement of possession to complete the waqf. Imam Muhammad considers possession to be a requirement and so does not allow waqf of divisible property that is commonly owned. The majority do not require this and thus allow it. It would appear that the opinion of the majority is preferred not least because the dedicator or trustee has the right to demand separation of the waqf property if its management should prove cumbersome.

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