Fatwa ID: 01727
Answered by Mufti Mohammed Tosir Miah
Question:
Assalamu alaikum
A person made a waqf in his lifetime, of all his property, residential house, open land and the agricultural land.
He had only one son.
After he passed away, his only son, heir and survivor somehow did manage that the property does not go to waqf,
and utilized it the whole life, sold some of it and left the remaining property to his heirs.
the heirs are three sons one daughter and a wife.
the property is to be divided according to the sharia, among the heirs.
being divided in eight parts and, approximately
two parts each to three sons and one part each to daughter and wife.
what does the sharia say about this property.
do the heirs of the son have legal moral sharia rights (haq) to this property.
because the present heirs are not the ones who did manipulate the waqf.
if they do not have the rights what should be done with the property.
i would very much appreciate your fatwa in this matter.
Answer:
The literal meaning of waqf is to stop and in Shariah it means to assign a property in the ownership of Allah in which the benefits are spent on those whom the waqf is assigned to. (Raddul Muhtar p.519 v.6)
It is narrated by Saaiduna Ibn Umar 
that Saaiduna Umar made waaf of the land which he acquired from the Battle of Khaibar and stipulated conditions that It cannot be sold, gifted or inherited. The income derived from it will be spent on travellers, guests, soldiers, the poor and needy. The family of Saaiduna Umar Radiallahu Anhu will be able to eat from it an ordinary amount without hoarding and stocking it. (Sahih Bukhari P.)
The method of making a property waqf according to Imam Abu Hanifa 
is either the Qadhi (Judge) declares the property of the person to be a waqf or the person intending to give the waqf says that after my death this property will become a waqf. (Multaqal Abhur p.400 v.1)
Furthermore, Imam Abu Hanifa says that a waqf would not be complete unless he makes a trustee to execute his waqf or he transfers it to those whom the waqf is assigned to. (Raddul Muhtar p.534 v.6)
With regards to your questions there are a couple of scenarios:
- If the deceased during his lifetime said, “after my death this property will be a waqf,” then this will have the same ruling of a wassiyah or will. Therefore, after his death 1/3 will go to waqf and the rest distributed to the heir. (Raddul Muhtar p.533 v.6)
- If the deceased says during his lifetime, “this property is waqf.” Without placing a condition of after my death and he did not assign a trustee to execute the waqf and nor did he transfer it to those whom the waqf was meant for, then this will not be classified as a valid waqf.
Your situation fits with the second scenario. The upshot of it is that the waqf made by the deceased was not correct. Therefore, the sons possession and ownership of the land was permissible and after his death it will be distributed between his three sons, one daughter and one wife in the following way;
8
SONS SONS SONS DAUGHTER WIFE
2 2 2 1 1
Each of the three sons will receive two shares of the entire estate and the daughter will receive one share due to the Quranic verse:
“Allah directs you concerning your children for a male there is a share equal to that of two females.” (Surah Nisa v.11)
The wife of the deceased will receive one share of the estate.
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham
