Sale Of A Waqf Property

Question

A Muslim brother donated a piece of land to an Islamic Institute some 20 years ago. He gave it as a donation and did not make it Waqf as stated by him in writing. The land remained unused for all this while as the institute has vast amount of vacant land other than this. Furthermore the land comprised of clay ground and a swamp and had sewage spilling into it, thus it was not useful to the institute in its original state. A family approached the committee members for the purchase of this land.  

A purchase agreement was signed between the family and the committee members. The transfer thereafter was done on the family name. For the last 4 months, excavations and construction work is taking place on the site. The donor recently discovered a letter written by himself to the principal of the Institute in 1998 stating that the land should not be sold by the institute and should be used strictly for the benefit of the institute.  However neither the principal nor the committee members had any knowledge of this clause.  Kindly furnish us with guidance on the matter?

Answer

Seeing that the land has not benefitted the institute for the past 20 years; if the donor now decides to change his intention and approves of the sale then the sale will be in order. The institute may then utilize the funds in a more profitable venture whereby the donor too will accrue great rewards. In essence, it depends on the donor giving permission for this sale. Even though he may have written a letter to the principal stating that the land should not be sold, he has the right to now revoke that clause and give the go-ahead for the sale to take place.

If on the other hand, he does not approve of the sale but insists that the land remains the property of the Madrasah then the sale concluded by the trustees was not in order and should be reversed.

Our suggestion is that the donor approves of the sale because the proceeds of the sale would be of more benefit to the institute (this reaping more rewards for the donor) than the land itself, which hasbeen of no benefit to the institute.

Checked and Approved By:

Mufti Muhammed Saeed Motara Saheb D.B.

References

Fataawa Mahmoodiyya pg.148 vol.23

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