When a man has an unoccupied space of ground fit for building upon, and has directed a body of persons to assemble on it for prayers, the space becomes a Masjid, if the permission were given expressly to pray on it forever; or, in absolute terms, intending that it should be for ever; and the property does not go to his heirs at his death. But if the permission were given for a day, or a month, or a year, the space would not become a Masjid, and on his death it would be the property of his heirs.
A MOSQUE IN AFGHANISTAN. (A. F. Hole.)
If a man during his sickness has made his own house a Masjid, and died, and it neither falls within a third of his property nor is allowed by his heirs, the whole of it is heritage, and the act of making it a Masjid is void, because, the heirs having a right in it, there has been no separation from the rights of mankind, and an undefined portion has been made a Masjid, which is void. In the same way as if he should make his land a Masjid, and another person should establish an undefined right, in which case the remainder would revert to the property of the appropriator; contrary to the case of a person making a bequest that a third of his residence shall be made a Masjid, which would be valid; for in such a case there is a separation, as the house may be divided and a third of it converted into a Masjid. (A third of a man’s property being the extent to which he can bequeath to other than his heirs.)
When a man has made his land a Masjid, and stipulated for something out of it for himself, it is not valid, according to all the jurists.
It is also generally agreed that if a man make a Masjid on condition that he shall have an option, the waqf is lawful and the condition is void.
When a man has built a Masjid and called persons to witness that he shall have the power to cancel and sell it, the condition is void, and the Masjid is as if he had erected a Masjid for the people of the street, saying, “It is for this street especially,” when it would, notwithstanding, be for others as well as for them to worship in.
When a Masjid has fallen into decay and is no longer used for prayers, nor required by the people, it does not revert to the appropriator or his heirs, and cannot be sold according to the most correct opinions.
When of two Masjids one is old and gone to decay, the people cannot use its materials to repair the more recent one, according to either the Imām Muḥammad or Imām Abū Yūsuf. Because though the former thought that the materials may be so applied, he held that it is the original appropriator or his heirs, to whom the property reverts, that can so apply them, and because Abū Yūsuf was of opinion that the property in a Masjid never reverts to the original appropriator, though it should fall to ruin and be no longer used by the people.
