Q: My Mother passed away leaving behind a house on a Waqf land which she rented. The land is such that we rent it for R5000 per annum. Then we have the option of building whatever we want. Now that she passed away leaving behind 3 sons and her husband. Will the house form part of her estate or not?
Please provide references from the Hanafi Mazhab as one of the brothers is very adamant on following the Hanafi Fiqh.
Some other Mufti mentioned that in Hanafi Fiqh, such a house built on this kind of Waqf land will not form part of the estate as such, rather the value of the house in the form of rubbles will be calculated or something like that.
A: If the house built on the waqf property belonged to your deceased mother, then the house will form part of her estate and will be distributed among her heirs according to their stipulated shares of inheritance.
If the person who made the land waqf or the person in charge of the waqf permitted your mother to build the house on the land, then he has the right to ask the heirs of your deceased mother to demolish the house.
However, if through demolishing the house, considerable damage will be caused to the land, then he will have the right to tell the heirs to leave the house on the land and compensate the heirs of your mother by paying them the value of the house.
However, he will not compensate them for the value of the existing house. Rather, he will pay them the value of the house in a demolished state (i.e. he will pay the value of the rubble of the house if the house had to supposedly be demolished).
He can also allow the heirs to leave the house on the waqf land and take rental from the heirs for using the waqf land.
And Allah Ta'ala (الله تعالى) knows best.
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