Question:
My question is regarding an orchard I shared with my sibling. However, my sibling decided to donate it as wakaf from his part of the orchard. Is this permissible in Islam because I am still a partial owner for the orchard?
Answer:
Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
Donating our property as wakaf is an encouraged decree in Islam. The reason is, the rewards from it is continuous for those who perform it with sincerity for Allah SWT. This is in accordance with a statement of Allah SWT:
لَن تَنَالُوا الْبِرَّ حَتَّىٰ تُنفِقُوا مِمَّا تُحِبُّونَ ۚ وَمَا تُنفِقُوا مِن شَيْءٍ فَإِنَّ اللَّـهَ بِهِ عَلِيمٌ
“Never will you attain the good [reward] until you spend [in the way of Allah] from that which you love. And whatever you spend - indeed, Allah is Knowing of it.”
Surah Ali-Imran (92)
The same is stated in a hadith Abu Hurairah RA, where the Prophet PBUH said:
إِذَا مَاتَ الإِنْسَانُ انْقَطَعَ عَمَلُهُ إِلاَّ مِنْ ثَلاَثَةٍ مِنْ صَدَقَةٍ جَارِيَةٍ وَعِلْمٍ يُنْتَفَعُ بِهِ وَوَلَدٍ صَالِحٍ يَدْعُو لَهُ
“When a man dies all his good deeds come to an end except three: Ongoing charity (Sadaqah Jariyah), beneficial knowledge and a righteous son who prays for him.”
Sahih Muslim (1631) and Sunan al-Nasai’e (3651)
The word wakaf itself means retaining a property which will not depreciate in value and is of benefit by handing over the ownership to a permissible and present user. (Refer: Mughni al-Muhtaj, 2/376)
Answering the issue of musya’ asset (shared property); it is permissible to donate property as wakaf even if it is only a portion of the property. This includes movable property such as cars or immovable asset such as orchards, land and others. (Refer: al-Fiqh al-Manhaji, 3/198). This is according to the following hadith:
From Abdullah bin Umar R.Anhuma, Umar RA said to the Prophet PBUH:
إِنَّ الْمِائَةَ سَهْمٍ الَّتِي لِي بِخَيْبَرَ لَمْ أُصِبْ مَالاً قَطُّ أَعْجَبَ إِلَىَّ مِنْهَا قَدْ أَرَدْتُ أَنْ أَتَصَدَّقَ بِهَا . فَقَالَ النَّبِيُّ صلى الله عليه وسلم " احْبِسْ أَصْلَهَا وَسَبِّلْ ثَمَرَتَهَا "
“The one hundred shares that I acquired in Khaibar -I have never acquired any wealth that I like more than that, and I want to give it in charity.' The Prophet said: Freeze it and donate its fruits.”
Sunan al-Nasai’e (3603)
According to the above hadith, it is permissible to donate shared property as wakaf as long as the property is valuable according to Islamic law. The reason is, only property that will not depreciate in its physical value and is of benefit can be donated as wakaf.
Conclusion
In this issue, in our opinion, it is permissible for an owner to donate his portion of shared property, such as an orchard as wakaf. The reason is, the only purpose of such deed is a means to get closer and attain the blessing of Allah SWT and not for his personal and worldly benefit. Hence, the act is valid and accepted by Allah SWT.
May this explanation be of benefit to us all in understanding our religion of Islam better. Amin.