فصلنامه وقف میراث جاویدان
پیاپی 99-100 (پاییز و زمستان 1396)

In different times, monarchs of autocracy and their relatives endowed part of their occupied properties to provide their interests, while many parts of them were obtained through illegal ways like as usurpation , huge and uncommon taxes, forced transactions, detention of necessary salary of citizens, occupation of Anfal lands (Properties that do not have special holder and are under possession of governments in all systems ) including meadows and forests, deforcing in Muslims’ public treasury and occupation of others’ endowed properties. Therefore,
there is the doubt of endowment illegitimacy of these endowed properties. Investigation of juridical texts indicates that since benefactor must be owner of the endowed property , In order to correcting and validating these endowments, the decree of legitimacy of these endowed properties must be issued by using ways like as using of the edict of awards by monarch, referring to Yad principle (the ownership and dominance of person on his/her property), correctness ( legitimacy) principle and proving of endowment of monarchs by religious judge.

One of the important issues related to endowment is to investigate different ways of proving the endowment and to determine endowed real properties (Raqabeh). There are different ways to prove the endowment in juridical texts. The important ways of  proof of endowment from the view of jurisprudents are: confession of owner, testimony and attestation, ownership and possession of endowed property and Shiya. So, one of the common ways of proof of endowment which is being considered in legal courts is the proof of endowment actions on the basis of Shiya. There are different types of Shiya including: knowledge useful’ Shiya, certainty useful’ Shiya, and conjecture and suspicion useful’ Shiya that the last type is debatable. Jurisprudents have different views about proof and validity of Shiya. Some believe Shiya is absolutely valid, although not useful for knowledge or certainty. Some believe that Shiya is a proof only if knowledge is obtained, but the well- known view among them is the proof of knowledge and certainty useful’ Shiya. Therefore, according to the recent view, certainty one is considered as one of the ways
of proving the endowment. Legislature in Article 1258 of civil law, knows one of the evidences of proving the action as circumstantial evidences ; so , certainty useful’ Shiya is one of judicial circumstantial evidences and the evidences of action proof and can be considered as the evidences of proving the endowment action.

The legislature in Article 9 of dispute settlement council law has specified inclusion of the competency of these councils by mentioning some actions. Following to this article, this council has authority and competence to investigate the movable actions of endowments against others or vice versa up to 200 million Rials and also cases like as actions of eviction and modification of rent, but Article 10 of this law has excluded the actions related to public property from the competence of these councils. Consequently, if endowed properties are among public properties, these council do not have competence to investigate these actions. It is said that public endowed properties are not considered as public properties because these endowed properties , unlike public property , have special owner and they are used on the basis of view of benefactor. Also, mentioned endowments are managed by trustee that appointed by benefactor or spiritual leader and it is possible to confiscate ( seize) them and referring to judgment and peace is based on the view of trustee and confirmation of head of endowment organization. Hence,  according to Article 9, these councils have the authority and competence to investigate the actions of endowed properties on the basis of specified framework, except in actions related to base of endowment and trusteeship that according to clause (B) of Article 10, the law is discussed, they do not have competence to investigate those actions even by agreement of parties.

According to judicial texts and civil law, after creating the endowment, observing the view and aim of benefactor is the priority in managing the endowed property. One of conditions is seen in deed for an endowment of religious minority of Zoroastrian in Iran is that benefactor has made a condition that “ if trustee apostates Zoroaster religion , he/she will be deposed from trusteeship” ; accordingly, if Zoroastrian trustees leave each condition mentioned by benefactor , they will automatically be deposed from the trusteeship according to Article 80 of civil law. As a result, the endowed property will be without trustee. However, if the benefactor, while creating the endowment contract, has determined a solution, this solution should be followed according to Article 75 of civil law. Otherwise, the edict of issue will be subject to the first clause of Article 1 of structure and authority law of endowment organization and this organization is responsible for managing the endowed property, because ,according to Art 1 of structure and authority law of this organization , responsibility of some endowed properties is undertaken by this organization and this duty is not limited to Muslim’s endowed property. It must be noted that the 12th principle of the constitution of Islamic Republic of Iran (I.R.I) indicates that religious minority follows their religious regulations in their personally issues and this does not include the endowment; and consequently, according to Article 5 of civil law, Zimmi (non- muslim subject living in a muslim country) follow the Islamic Republic of Iran’s law in rules of endowment contract.

Safavi period is one of period of increasing the endowment in Iran. Following to religious nature of Safavi reign and concentrate on promoting Shi’a religion and the training of religious sciences students , endowment in educational area with building different schools in big cities was one of the most important function on endowment in this time.Imamyeh school is one of the endowed school in Shah Soleyman Safavi period that was built by Imam Verdibeig ,Governor of Fars, for eagers and seekers of religious science in Shiraz (Dar al-elm) and it was endowed to teachers and students inhabiting in it and then , in order to provide its costs, at first many real estates of endowment including lands, gardens , stores , caravan-serai, bathes , aqueduct ,… in Shiraz and its suburbs were endowed to holy shrines of 14 ma’soom imams (innocent) and then to school. The details of these endowed properties and detailed conditions that determined by benefactor to attract professors and students and way of spending the incomes from endowed properties have been set as formal deed for an endowment and signed and proved by 20 present witnesses. In the previous issue, parts of this deed for an endowment has been mentioned and two remaining parts of this document, that is, identity papers and its endorsement are investigated in this article.