If he bequeaths a date palm, that includes all his rights
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Fatwa No. ( 219 )
Q: You will find attached a copy ofmy grandfather’s will: Nasser ibn Mulham, which contains his explicit statement that the three al-Khudhari and al-Makhtumiyyah [palm trees] are an endowment, and that their produce is to be disposed of in the manner he specified in the will. He also made one-third of all his palm trees, consisting of the four palm trees mentioned, [an endowment]. Given that the four palm trees have perished and all his other palm trees have also perished, leaving nothing behind, I would like you to review the will and inform us whether the land of the four palm trees and the land of his one-third of his palm trees are to be considered an endowment with the same ruling as the palm trees, or whether they are to be considered free property to be divided among the heirs?
After the Committee studied the question and reviewed the copy of the will attached, which the questioner referred to, it wrote the following answer: As for the testator’s statement in the copy of the will: “And two-thirds of all my date palms shall become the equivalent of the four date palms mentioned at the top of this paper,” the term “date palms” in custom includes the trunks of the date palms, the land, and the legal rights pertaining to the date palms, such as the well, the water channel, and the path. Custom is a legal basis upon which rulings are established if there is no legal evidence preventing its application. In this issue, we are not aware of any legal evidence that overrides the application of custom. As for the four date palms, if their rights to the well, water channel, and path are granted to them, and the land adjacent to them is considered ancillary to them, this is a precautionary measure and a way to avoid scholarly disagreement
and to clear one’s conscience, noting that the owner of the one-third and of these four date palms, to our knowledge, is the original owner who owns the land and the date palms. And success is from Allah, and may Allah send prayers and blessings upon our Prophet Muhammad, his family, and his Companions.
Q: You will find attached a copy ofmy grandfather’s will: Nasser ibn Mulham, which contains his explicit statement that the three al-Khudhari and al-Makhtumiyyah [palm trees] are an endowment, and that their produce is to be disposed of in the manner he specified in the will. He also made one-third of all his palm trees, consisting of the four palm trees mentioned, [an endowment]. Given that the four palm trees have perished and all his other palm trees have also perished, leaving nothing behind, I would like you to review the will and inform us whether the land of the four palm trees and the land of his one-third of his palm trees are to be considered an endowment with the same ruling as the palm trees, or whether they are to be considered free property to be divided among the heirs?
After the Committee studied the question and reviewed the copy of the will attached, which the questioner referred to, it wrote the following answer: As for the testator’s statement in the copy of the will: “And two-thirds of all my date palms shall become the equivalent of the four date palms mentioned at the top of this paper,” the term “date palms” in custom includes the trunks of the date palms, the land, and the legal rights pertaining to the date palms, such as the well, the water channel, and the path. Custom is a legal basis upon which rulings are established if there is no legal evidence preventing its application. In this issue, we are not aware of any legal evidence that overrides the application of custom. As for the four date palms, if their rights to the well, water channel, and path are granted to them, and the land adjacent to them is considered ancillary to them, this is a precautionary measure and a way to avoid scholarly disagreement
and to clear one’s conscience, noting that the owner of the one-third and of these four date palms, to our knowledge, is the original owner who owns the land and the date palms. And success is from Allah, and may Allah send prayers and blessings upon our Prophet Muhammad, his family, and his Companions.
Source
www.alifta.gov.sa
The Arabic text is copied verbatim from the original source, without any edits.