who mutually agree to exchange parts of their respective properties

Question

Kataab: Waqf

Baab

Fatwa: 5

Zaid and Bakr are neighbours, who mutually agree to exchange parts of their respective properties. Bakr then makes his part (of the exchanged property) which is now his own personal property Waqf for Deeni purposes. He is thus both the Waaqif and Mutawalli.
After some time has lapsed, Zaid wants to return his exchanged property back to Bakr. Bakr got upset and and he accordingly informed Zaid that if this is the case, then Zaid's property will be returned to him as well. Zaid is given 2 weeks to think about this offer. The next day, Bakr realises that this offer of returning the property to Zaid is invalid as the property is Waqf and cannot revert back to him.
Bakr at no point had any intention neither did the discussion arise in any way that this offer was to give up and surrender the administration (Mutawaaliship) of Bakr. 

The very next day, Bakr informs Zaid that the offer is null and void of the land reverting back to him as it was made Waqf and that he (Bakr) is still the Mutawalli and Waqif.
Zaid remains absolutely silent for 2 weeks. After 2 weeks, Zaid informs Bakr that he is the new Mutawalli as he has has accepted the offer.

1).   What do the honourable Muftis say concerning Zaid's claim?

2)   The Waqf Institution has a constitution which makes provisions and has a procedure for dismissals, etc. in the event of grievances. Without any verification, Zaid levels certain allegations against Bakr and sends him a letter dismissing him as Mutawalli. This despite the Waqf Institution having a committee and a constitution which makes provisions and has a procedure for dismissals, etc. in the event of grievances.
Zaid has not contacted Bakr or the committee at any time or manner to verify any of his allegations. Is his dismissal valid? Or should he have provided evidence for his claims before sending the 'dismissal' letter? Zaid has not set his foot in the Institution for many years.

3)  Zaid refuses to divulge the identity of the person who had issued the ruling of the dismissal, despite Bakr humbly appealing to him several times to do so. Is this correct?

Answer

Muhtaram / Muhtaramah

In the Name of Allāh, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāh wa-barakātuh.

We understand from your query that the issue is concerning Zaid’s claim as Mutawalli and his letter of dismissal. If our understanding is correct, we hereunder state:

1. Zaid cannot claim to be Mutawalli on the basis of him accepting Bakr’s offer, as his offer was invalid according to the principles of waqf. Bakr’s property (the exchanged land) was made waqf and a waqf property cannot be exchanged in this case.

2. The waqf property has an institution and constitution. If Zaid was elected as Mutawalli via the waqf committee in accordance to the constitution, then he is rightful in his claim as Mutawalli otherwise not.

3. If Zaid wishes to file a letter of dismissal against Bakr (the Mutawalli) he should do so via the committee. If his claims against the Mutawalli, Bakr, are legitimate and not mere allegations, then the committee should follow the necessary procedures of dismissal as stated in the constitution. Zaid cannot issue a letter of dismissal in his personal capacity. Yes, if the committee is un- cooperative in following the procedures of dismissal, Zaid may submit his concerns to a reputable Islamic organization, such as the Jamiatul Ulama and request them to arbitrate the issue.  

لا يزول ملك الواقف عن الوقف عند أبي حنيفة إلا أن يحكم به الحاكم أو يعلقه بموته فيقول: إذا مت فقد وقفت داري على كذا. وقال أبو يوسف: يزول الملك بمجرد القول. وقال محمدٌ: لا يزول الملك حتى يجعل للوقف ولياً ويسلمه إليه.

(مختصر القدورى ، كتاب الوقف )

ثم نقل أن الفتوى على قولهما في جواز الوقف عن الفتاوى الصغرى والحقائق والتتمة والعيون ومختارات النوازل والخلاصة ومنية المفتي وغيرها. ثم قال: ثم إن مشايخ بلخ اختاروا قول أبي يوسف، ومشايخ بخارى اختاروا قول محمد، وقد صح كلا القولين وأفتى به طائفة ممن يعول على تصحيحهم وإفتائهم.

(اللباب ، كتاب الوقف)

And Allah knows best
Darul Iftaa

Madrasah Inaa’miyyah