AI en Translation, Pages 1-25
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Presidency of the Court of Cassation of Iraq
Baghdad
Case Number: 260 / Procedural / 1951
The Court of Cassation of Iraq was formed on 29 / 5 / 1951 from the Judges ⟦...⟧
⟦...⟧ Al-Omari and Abdul Hamid Kubba, authorized to adjudicate in the name of His Majesty the King of Iraq, and issued
the following decision :-
The Appellant - Emile Saleh in his capacity as trustee of the Menachem Daniel Endowments
Based on the primary lawsuit filed with the Court of ⟦...⟧ Baghdad under number ⟦...⟧ / 2345
the aforementioned court by seizing the iron halls ⟦...⟧ Daniel and mandating
to hand over the ledgers and records belonging to the endowment as they belong to ⟦...⟧ in his capacity as an officer
for the estate of her deceased husband Saleh Shlomo in his capacity as the former trustee ⟦...⟧
The current trustee objected to that, requesting the cancellation of the aforementioned decision for the reasons stated therein
And the court rejected his hand in its continuation of its contested decision.
And due to the objector's lack of conviction in that, he requested an audit of the mentioned file through cassation
Decision - Upon audit and deliberation, it was found that the appealed decision was not one of the judicial decisions
that are subject to appeal, therefore it was decided to reject the appeal and charge the appellant the appeal fee, and the decision was issued by consensus
on 29 / 5 / 1951 .
First Judge
True copy
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Baghdad Court of First Instance
Case File 12 / 1955
The Personal Status Court in Baghdad was formed on 10 / 2 / 1956, presided over by Mr. Amin Haidar
Authorized to adjudicate in the name of His Majesty the King of Iraq, and issued its following judgment:
Plaintiff - Emil Saleh Luyu, the trustee (Mutawalli) of the endowments (Awqaf) of Menahem and Sassoon Daniel, in his own capacity - his representative is the lawyer
Salman Bayat
Defendant - Director of the Baghdad Region Endowments, in addition to his post as the party against whom this lawsuit is directed
Third Party - President of the Administrative Committee of the Jewish Community in Baghdad, and in addition from the Secular Council
of the aforementioned community - in addition to the aforementioned committee - in addition to the aforementioned committee and in addition to the aforementioned council
The plaintiff Emil Saleh Luyu, the trustee of the endowments of Menahem and Sassoon Daniel, claimed that there had been issued
the following legal deeds and notifications: The first issued by the Baghdad Sharia Court of First Instance on 6 Shawwal
1336 registered in Register No. 1 under No. 181 and recorded in the Baghdad Endowments Department on March 24,
1919; and the second being the legal deed issued by the Baghdad Sharia Court on 8 Shawwal 1336 registered in
Register No. (1) under No. 179 and page 69 and recorded in the Baghdad Endowments Department on March 24;
and the third issued by the Baghdad Sharia Court on 14 Dhu al-Qi'dah 1342 registered in the register
under No. 151; and the fourth issued by the Baghdad Sharia Court on 28 Rabi' al-Thani 1343 registered in
Register No. 4 under No. 311 and page 83; and the fifth issued by the Baghdad Sharia Court on
14 Dhu al-Qi'dah 1342 registered in Register No. 4 under No. 152; and the sixth being the notification issued by the
Baghdad Court of First Instance on June 3, 1924, under No. 8 in file 156.
The conditions of these deeds and this notification stipulated the endowment of the properties they covered, provided that their
revenue be spent on what was designated for them. Then the two aforementioned endowers and the two trustees of their endowments approached the Court
of Personal Status requesting an amendment to the terms of the endowment, and indeed this court issued the legal deed No.
87 / 935 dated 17 / 8 / 35 which stated that it came to remove the ambiguity and vagueness prevailing
in the endowment deeds and to clarify what was summarized therein, considering that it does not touch the essence of the endowment nor its basic conditions.
However, this deed included basic conditions affecting the essence of the endowment, and since the endowers did not exclude from their ownership
their aforementioned endowments for themselves the right to change and substitute, and that neither the endower nor the trustee after him has the right to change
the conditions of the endowment, nor is it valid for them to do so if they did. And since the judge may not violate the conditions of the endower unless
there is a disruption of the endowment in the condition or a loss of the interest of the beneficiaries, then the aforementioned deed is validly issued in violation
of the Sharia. Therefore, he requests that the defendant be summoned for trial in addition to his post as the party against whom it is directed,
to be appointed by this court pursuant to deed No. 25 / 55 dated 28 / 4 / 1955 in this lawsuit,
and to issue a judgment to annul what was stated in legal deed No. 87 / 35 dated 17 / 8 / 35 regarding additional
conditions that were not stipulated in the original endowment and to charge him with the expenses.
The two parties were summoned for trial and their representatives attended, and it also became clear that the President of the Administrative Committee of the Jewish Community
in Baghdad, acting on behalf of the Secular Council of the aforementioned community, in addition to the committee, had submitted a request to the court
to be joined as a third party in the lawsuit on the grounds that the judgment issued in the lawsuit affects the rights of the Secular
Council, because the deed sought to be annulled authorized the council to organize the budget of the mentioned endowment and supervise it.
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spending its growth and retaining the reserve amounts that are available from the surplus of imports in the manner determined by this
council, and the necessity for the trustee to follow the council's decision in this regard.
The court heard the statements of the two parties regarding the request of the applicant to enter as a third party in the case, and after reviewing
the original deed requested to be annulled, it became clear to the court that the judgment issued in favor of the plaintiff in this case
affects the Lay Council; therefore, the court accepted it as a third party alongside the defendant, and the face-to-face pleading was conducted.
It appeared that the prosecution's statements are summarized in that the deed requested to be annulled includes an amendment to the conditions of the waqf founder. And this
amendment became an obstacle to the management of the waqf affairs. And the Lay Council became almost the trustee. And it was not
a matter of removing ambiguity and vagueness in the waqf deeds. And it obligated the trustee with conditions that were not included in the previous waqf deeds,
and contained a strange condition, which is the annual submission of the budget by the trustee to the Lay Council in order to give permission to the trustee.
And that neither the waqf founder nor the trustee after him have the right to change the conditions of the waqf, nor is that valid from them if they did so. And
the waqf founder did not stipulate for himself in the waqf contract the right of addition, reduction, insertion, or exclusion.
As for the defenses of the third party (supported by the defendant), they are summarized in that the deed requested to be annulled includes
restricting the authority of the trustees and appointing overseers over them. And that the appointment of the trustee, his dismissal, and his installation, whether specified
in the waqf deed or not specified, is the right of the judge. And adding a monitor or overseer over the trustee, whether specified in the waqf deed or
not specified, is the right of the judge. And this deed does not include a change, replacement, or addition to the conditions of the waqf. And even
if it is assumed that it includes amendment, the judge has that right whenever he sees that it is in the interest and leads to correctness,
even if it is contrary to the condition of the waqf founder, it is valid and effective.
As for the court, after examining the case and the statements of the two parties and reviewing the six waqf deeds under discussion,
the legal deed requested to be annulled, and the notification according to which this deed was issued, it found that there are two points
necessary to resolve in this case: First, does the judge have the right to issue a legal deed amending the conditions of the waqf based on
the request of the waqf founder and the trustee in the event that the waqf founder did not stipulate this right for himself in the waqf contract? The second is: Does the
deed requested to be annulled, issued under number 35/87 by this court, consider the handling and amendment of the waqf conditions
in the referred waqf deeds, or does it not handle that but is limited to removing the ambiguity and vagueness mentioned in those
deeds and clarifying what was summarized in the conditions of the waqf and an amendment to them? And is this deed issued according to the rulings of religion or
contrary to them?
With the aim of standing on these two legal points, the court decided to refer the case to a scholar in the rulings of Hanafi jurisprudence
among those who have knowledge in waqf matters to seek his legal opinion on them, and asked the parties to choose him. They requested to refer the case to the scholar
Mr. Abdullah al-Sufi. The court sent him the case file and its attachments, which are the six deeds for these endowments,
the deed requested to be cancelled, and its notification. His answer regarding these two points was received according to his letter dated 6 / 7 / 955.
Regarding the first point, the answer was summarized as: the conditions of the waqf founder are not considered or acted upon except for what was stipulated at the time of the waqf,
not what was stipulated after it. If the waqf is completed, the waqf founder does not have the right to stipulate any condition in it unless he had reserved for himself at the time
of the waqf the right to stipulate whatever he wishes; then he would have the right to stipulate whatever he wishes after the completion of the waqf by virtue of this condition. And
the judge does not have the right to issue a legal deed amending the conditions of the waqf based on the request of the waqf founder and the trustee in the event that the waqf founder did not
stipulate this right for himself in the waqf contract.
As for the second point, his answer was summarized as: the deed requested to be annulled is considered a substantial amendment.
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regarding the conditions of the endowment related to ⟦its expenditure⟧ and the mentioned charitable entities. And that what was stated in them in terms of paragraphs is not considered
a clarification or removal of the ambiguity and vagueness intended in those deeds, but rather they include an amendment and alteration of those same conditions
contained in the original endowment deeds. In view of the lack of a provision by the endowers in the core of their two endowment deeds that they have the right to alter or change,
what came in this deed from this perspective is not issued in accordance with the provisions of Sharia, and that this specifically concerns the following paragraphs
paragraphs C, D, and E, which appeared on the fourth page of the deed, as these paragraphs and the
conditions and restrictions they contain relate to the expenditure of the endowment. Accordingly, the trustee becomes not bound to apply the conditions stated in this deed
due to their violation of the Sharia rulings on this subject; rather, he applies the conditions of the endowers as stipulated in the original of their two endowment deeds.
(End)
The two parties adhered to this fatwa, and neither of them expressed an objection regarding what was stated in it. On the contrary, each of them requested
to follow what was stated in it, considering that it came in accordance with Sharia and supports their point of view. Each of the parties repeated their statements, and the conclusion of the trial
was understood.
The Decision - Since the scholar whom the court consulted in this case for the purpose of identifying the Sharia ruling
regarding the two points to be resolved in this lawsuit described above was chosen by both parties. And since both
parties have adhered to his answer and did not state any objection regarding what was stated in it, but rather requested to follow what came in this fatwa, and since
this fatwa is explicit in its example and has specified the paragraphs that violate Sharia in the endowment deed requested to be annulled
as paragraphs C, D, and E, which appeared on the fourth page of it only. Accordingly, it was decided to rule to amend the Sharia deed issued by
this court under number 35/875 dated 17/8/35, according to the following:
1 - Cancellation of paragraph (C) of the second item located on the fourth page regarding the expenditure of the endowment's revenues on teaching
sciences and arts, which begins with the phrase (teaching sciences and arts and, when necessary, professions, etc.) and ends with the phrase
(in the mentioned school whenever the need for that appears).
2 - Cancellation of paragraph (D) of the mentioned item located on the same mentioned page regarding the reserve amount, which begins with the
phrase (If a surplus appears in the endowment revenues after spending the required amounts ⟦...⟧ as such ⟦...⟧ from this surplus a reserve amount)
and ends with the phrase (regarding the preparation of the annual budget for the administration of the school and with the same conditions specific to it).
3 - Cancellation of paragraph (E) of the mentioned item also regarding the opening of a branch or branches in the (Kahn Hildim) school, which begins
with the phrase (And if a surplus occurs in the endowment revenues after paying all these expenses and costs, it is permissible to open a branch or branches)
and ends with the phrase (and on feeding and clothing them if the need arises).
By this, the second item under discussion regarding the expenditure of the endowment consists of paragraphs (A and B) only, which include
the renovation and restoration of the endowed properties and the renovation and restoration of the building of the (Kahn Hildim) Menachem Saleh Daniel school in Baghdad. And considering
the other paragraphs as if they do not exist at all in this deed. It was also decided not to interfere with everything else contained in this
deed and to rule to dismiss the lawsuit regarding them. And to charge each of the parties with the expenses and fees of their lawyer and their pleadings. The
judgment was issued in person, subject to appeal, and was announced publicly.
Expenses | Fils | Dinars
Lawsuit fee from the plaintiff | 5 / 000
Notification and stamps from the third party | 0 / 200
Only five dinars and two hundred fils | 5 / 200
The Judge
The First Clerk
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Baghdad First Instance Court
Personal Status Court - Baghdad
Case Number 12 / Sh / 1955
Date 5 / 12 / 1955
The Personal Status Court in Baghdad was formed on 5 / 12 / 1955 by its judge, Mr.
Sadiq Haidar, authorized to adjudicate in the name of His Majesty the King of Iraq, and issued its following ruling:
Plaintiff - Emil Saleh Shlomo, the trustee of the Menachem and Sassoon Daniel endowments - in addition
to the endowment, his attorney, lawyer Salman Bayat.
Defendant - Director of Endowments for the Baghdad Region - in addition to his post - in his capacity as the temporary adversary of the plaintiff
in this lawsuit, his representative Mr. Nafeh Qassim.
Third Party - President of the Administrative Committee of the Jewish Community in Baghdad, acting on behalf of the Community's
Lay Council, in addition to the mentioned committee - his attorneys, the lawyers
Mustafa al-Ankarli and Ibrahim Khazzoum.
The plaintiff had requested a ruling to annul what was stated in the Sharia deed numbered 87 / 35 Sh
and dated 17 / 8 / 935 regarding additional conditions that were not stipulated in the original endowment deeds,
because they violate the Sharia.
So this court issued, under number 12 / 55 Sh and dated 10 / 7 / 955, an in-person judgment
stipulating the amendment of the mentioned Sharia deed as follows:
1- Cancelling paragraph (C) of the second clause located on the fourth page regarding the spending of
endowment revenues on teaching sciences and arts, which begins with the phrase (teaching sciences and arts
and when necessary professions, etc.) and ends with the phrase (in the mentioned school whenever it appears
necessary to do so).
2- Cancelling paragraph (D) of the mentioned clause located on the same mentioned page regarding
the reserve amount, which begins with the phrase (If a surplus appears in the endowment revenues after spending
the required amounts... etc. from this surplus a reserve amount) and ends with the phrase (in what
pertains to preparing the annual budget for the school administration and with the same conditions specific to it).
3- Cancelling paragraph (E) of the mentioned clause also regarding the opening of a section or sections in the
(Gan Yeladim) school, which begins with the phrase (And if a surplus is obtained in the endowment revenues after paying
all these expenses and costs, it is permissible to open a section or sections) and ends with the phrase (and on feeding
and clothing them if the need arises).
By this, the second clause, the subject of research regarding the expenditure of the endowment, consists of paragraphs
(A and B) only, which include the reconstruction and restoration of the endowed properties and the reconstruction and restoration of the building of the
(Gan Yeladim) Menachem Saleh Daniel school in Baghdad. And considering the other paragraphs (C, D, and E)
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as if it did not exist at all in this deed. It also decided not to address everything contained in this deed
otherwise, and ruling to dismiss the lawsuit regarding it.
The third person appealed the aforementioned ruling, as did the plaintiff, and the Court of Cassation, after finding
the two appeals to be related, issued its decision No. 44 and 47 / Personal Status / 955, dated ⟦line⟧
13 / 10 / 1955, which stated the following: (Upon scrutiny and deliberation, it was found that the court decided ⟦line⟧
to cancel paragraphs D and E of the Sharia deed issued on 1635, and since the matter of preserving
the reserve amounts in the manner and method decided and determined by the Communal Council is more secure for the assets
of the endowment and their preservation, giving the decision to invalidate this method, even though it does not contradict the condition of the endower, but rather
pertains to preserving the endowment property, was incorrect. Therefore, it decided to overturn the paragraph relating to the cancellation of the order ⟦line⟧
to preserve the reserve amounts in the manner decided by the Communal Council, and to confirm the decision ⟦line⟧
regarding the rest of the paragraphs, and to return the case files to its court to issue the necessary decision for the preservation ⟦line⟧
of the mentioned reserve amounts.)
The court summoned the two parties to the lawsuit, and the representative of the plaintiff, the representative of the defendant, and the representative of the third person attended,
and the court looked into the case as far as it concerns the overturned point in person. After the decision of the Court of ⟦line⟧
Cassation was read, the court reviewed the viewpoint of each of the two parties, and it appeared that the plaintiff's representative requested an inquiry ⟦line⟧
from the scholar whom the court had consulted for a legal opinion on the Sharia ruling in the overturned paragraph and justified the reason
for this request by stating that Sharia rulings dictate that the trustee alone should be independent in preserving the endowment funds ⟦line⟧
because that is at the heart of his duties, just as negligence on his part in this regard warrants his dismissal. And that the ruling ⟦line⟧
of Sharia on the overturned point is in this manner.
As for the representative of the third person, they requested to follow the decision of the Court of Cassation because the scholar's fatwa was ⟦line⟧
clear, and the Court of Cassation had reviewed it and all the defenses, and its decision is based on Sharia ⟦line⟧
principles and legal rulings. In this form, the proceedings were concluded and the end was announced.
The Decision - This court agrees with what the Court of Cassation held regarding the overturned paragraph that
the matter of preserving the reserve amounts in the manner and method decided and determined by the Communal Council
is more secure for the endowment funds and their preservation, and that issuing the decision to invalidate this method, which does not contradict
the condition of the endower, but rather pertains to preserving the endowment property, is incorrect and contrary to Sharia. Therefore ⟦line⟧
the court decided to follow the decision of the Court of Cassation under discussion regarding the overturned paragraph, by not interfering
with the matter of preserving the reserve amounts in the manner and method decided and determined by the Communal Council
which is described in paragraph (D) of the second item located on the fourth page of the referred deed
issued in the year 1935, and to cancel the second paragraph of the judgment issued by this court in this lawsuit
dated 10 / 7 / 1955 and to consider this paragraph as if it never existed in the mentioned decision at all. By that it becomes
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The second item of the aforementioned deed regarding the expenditure of the endowment, including paragraphs (A, B, and D)
only, which include the reconstruction and renovation of the endowed properties and the reconstruction and renovation of the building of the (Khen Hillel) Menachem
Salih Daniel school in Baghdad. If a surplus appears in the endowment revenues after spending the necessary amounts on
the two aforementioned aspects, a reserve amount shall be taken from this surplus, and these reserve amounts shall be kept
in the manner and method decided and appointed by the Lay Council, and the trustees must follow
the decision of the Lay Council in this regard, etc...
On this basis, only paragraphs (C and E) are considered to be revoked from the
Sharia deed, not paragraphs C, D, and E as stated in the previous decision of this court. Each of the two parties shall bear
their own expenses and the fees of their lawyers and briefs. This judgment was issued in presence, subject to appeal, and was announced publicly.
Judge Sadiq Haidar
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Iraqi Government
Court of Cassation
Case Number 44 and 47 Personal / 955
The Court of Cassation of Iraq was formed on 13 / 10 / 955, chaired by the Vice President, Mr. Ali
Mahmoud al-Sheikh Ali, and membership of Messrs. Abdul Jabbar al-Takrili, Mahmoud Khaki, Abdul Qadir
Jamil, and Abdul Jalil Barto, authorized to adjudicate in the name of His Majesty the King of Iraq, and issued its
following decision:-
The Appellants - 1 - President of the Administrative Committee of the Jewish Community in Baghdad
2 - Emile Saleh Shlomo, the trustee of the endowments of Menachem and Sasson, sons of Saleh Daniel
in addition to the endowment.
The Appellees 1 - Emile Saleh Shlomo, trustee of the Menachem Sasson Daniel endowment
2 - Director of Baghdad Endowments in addition to his post
3 - President of the Administrative Committee of the Jewish Community
Emile Saleh Shlomo, the trustee of the endowments of Menachem and Sasson Daniel, claimed before the Court of Personal
Status in Baghdad that the following Sharia deeds and notifications had been issued - the first issued
from the Baghdad Sharia Court of First Instance on 6 Shawwal 1326, registered in record number 1
under number 181 and recorded in the Endowments Department in Baghdad on 24 March 1916; and the second, the Sharia
deed issued by the Baghdad Sharia Court on 8 Shawwal 1326, registered in record number (1)
under number 179, page 69, and recorded in the Baghdad Endowments Department on 24 March 1916; and the third
issued by the Baghdad Sharia Court on 14 Dhu al-Qi'dah 1343, registered in record number 4
under number 151; and the fourth issued by the Baghdad Sharia Court on 28 Rabi' al-Thani 1343, registered
in record number 4 under number 311, page 83. And the fifth issued by the Baghdad Sharia Court
on 14 Dhu al-Qi'dah 1342, registered in record number 4 under number 153. And the sixth,
the notification issued by the Baghdad Court of First Instance on 3 June 924 under number 8 in file
156. The conditions of these deeds and the notification stipulated the endowment of the properties they covered, provided that
their income is spent on what was allocated for them.. Then the two aforementioned endowers and the two trustees of their endowments applied to the Court of Personal
Status requesting an amendment to the conditions of the endowment. So the aforementioned court issued the Sharia deed numbered
87 / 935 dated 17 / 8 / 35, which stated that it came to remove the ambiguity and vagueness mentioned
in the endowment deeds, as it does not affect the essence of the endowment nor its basic conditions, while it is claimed that
the deed included basic conditions affecting the essence of the endowment. Since the two endowers did not stipulate in their endowment contracts
the right of change and replacement for themselves, and likewise the trustee cannot change the conditions of the mentioned endowment,
and likewise the judge may not violate the conditions of the endower unless the condition causes a suspension of the endowment or a loss
of the interest of the beneficiaries. Therefore, the mentioned deed was issued in violation of Sharia. Therefore, the
plaintiff requests summoning the defendant, the Director of Baghdad Endowments, in addition to his post, and the annulment of the temporary deed number
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Its decision and issuance of the ruling to annul what was stated in the Sharia deed numbered 35/87 and dated
on 17 / 8 / 35 regarding additional conditions that were not stipulated in the original endowment deeds and charging him with the costs, and after
summoning both parties, the head of the Administrative Committee for the Jewish Community in Baghdad and the Acting Representative of the Lay
Council for the aforementioned community submitted a request to the court to be entered as a third party in the lawsuit on the grounds that the ruling
that will be issued affects the rights of the Lay Council. After hearing the statements of both parties, the court accepted him
as a third party. After the court heard the statements of both parties, scrutinized the case, and examined the six
endowment deeds under discussion and the Sharia deed requested to be annulled, it found that there are two points
requiring resolution: (1) Does the judge have the right to issue a Sharia deed amending the conditions of the endowment based on the request of the donor
and the trustee in the event that the donor did not stipulate this right for himself? (2) Does the deed requested to be annulled,
issued under number 35/87 Sh. from this court, be considered as dealing with the amendment of the endowment conditions in the
referred deeds, or is it limited to removing the ambiguity and obscurity contained therein and clarifying the endowment conditions?
In order to resolve these two Sharia points, the court decided to refer the case to a scholar of
Hanafi jurisprudence rulings who has knowledge in endowment matters for a legal opinion. After his response was received, the mentioned court
issued its in-person ruling on 10 / 7 / 955 under number 102 / 955, stipulating:
Since the scholar whom the court consulted to resolve the two points mentioned above was chosen by
the two parties and they did not object to his response, but rather requested to follow what was stated in it, it was decided to rule to amend the Sharia
deed issued by this court under number 35/87 Sh. and dated 17 / 8 / 35, in accordance with what
follows:
1- Canceling paragraph (c) of the second clause located on page four regarding the spending of the endowment
revenues on teaching sciences and arts.
2- Canceling paragraph (d) of the mentioned clause located on the same page regarding the reserve amount, which
begins with the phrase (if a surplus appears from the endowment revenues...) and ends with the phrase (regarding
the preparation of the annual budget for the school administration and under the same conditions specific to it).
3- Canceling paragraph (e) of the mentioned clause as well, regarding opening a branch or branches in the school
of (Gan Yeladim), which begins with the phrase (and if a surplus occurs in the endowment revenues after paying all
these expenses and costs, it is permissible to open a branch or branches and spending on) and ends with the phrase (and on their feeding and clothing
if the need arises for that).
Accordingly, the second clause under discussion regarding the spending of the endowment will consist of paragraphs
(a) and (b) only, which include the reconstruction and restoration of the endowed properties and the reconstruction and restoration of the school building (Gan
Yeladim) Menachem Salih Daniel in Baghdad. And considering the other paragraphs as if they do
not exist at all in this deed. It also decided not to interfere with everything else contained in this deed and ruled
to dismiss the lawsuit regarding it and charge each of the parties with their own costs.
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The President of the Administrative Committee of the Israelite community, the third party in this lawsuit, appealed this decision
as did Emil Saleh Shlomo, the trustee of the children of Menachem and Sassoon Daniel, and the two appeals were merged due to the relationship
between them.
Decision - Upon scrutiny and deliberation, it was found that the court decided to annul paragraphs C, D, and E
of the Sharia title deed issued on the date 935. Since the order to maintain reserve funds
in the manner and method decided and specified by the Corporal Council is a security for the endowment funds and the preservation
of them, giving the decision to invalidate this method, although it does not contradict the condition of the endower, rather it pertains
to the preservation of the endowment money, was incorrect. Therefore, it was decided to overturn the paragraph relating to the annulment of the maintenance order
of the reserve funds in the manner decided by the Corporal Council, and to confirm the decision regarding
the remaining paragraphs, and to return the case files to its court to issue the necessary decision for the preservation of the mentioned
reserve funds. The decision was issued by consensus 13 / 10 / 55
First Clerk | Court Seal
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Baghdad Court of First Instance
Case Number 13 / 1955 S
The Personal Status Court in Baghdad was formed on July 10, 1955, by its judge, Mr. Adel Haidar,
authorized to adjudicate in the name of His Majesty the King of Iraq, and issued the following judgment:
Plaintiff - Emil Saleh Shlomo, the trustee (Mutawalli) of the endowments (Awqaf) of Menachem and Sassoon Daniel, in addition to the endowment - his attorney, lawyer
Salman Bayat
Defendant - Director of Baghdad Endowments, in his official capacity as the temporary opponent to the plaintiff in this lawsuit
Third Party - Head of the Administrative Committee of the Israelite Community in Baghdad and acting on behalf of the Community's Spiritual Council
The plaintiff, Emil Saleh Shlomo, the trustee of the Menachem and Sassoon Daniel endowments, claimed that the following
legal deeds (hujaj) and Sharia notifications had been issued: First, issued by the Baghdad Sharia Court of First Instance on 9 Shawwal
1336, registered in Register No. 1 under No. 181, and recorded in the Baghdad Endowments Department on March 24,
1919. Second, the Sharia deed issued by the Baghdad Sharia Court on 8 Shawwal 1336, registered in
Register No. (1) under No. 179 and page 69, and recorded in the Baghdad Endowments Department on March 24, 1919.
Third, issued by the Baghdad Sharia Court on 14 Dhu al-Qi'dah 1342, registered in Register No. 4
under No. 151. Fourth, issued by the Baghdad Sharia Court on 28 Rabi' al-Thani 1343, registered in
Register No. 4 under No. 311 and page 83. Fifth, issued by the Baghdad Sharia Court on
14 Dhu al-Qi'dah 1342, registered in Register No. 4 under No. 152. Sixth, the notification issued by
the Baghdad Court of First Instance on June 3, 1924, under No. 8 in Case 156.
The conditions of these deeds and this notification stipulated the endowment of the properties they covered, provided that
their income be spent on what was allocated for them. Then the two mentioned endowers (Waqifs) and the trustees of their endowments petitioned the Personal
Status Court requesting an amendment to the endowment conditions. Indeed, this court issued Sharia Deed No.
87 / 935, dated August 17, 1935, which stated that it came to remove ambiguity and vagueness mentioned
in the endowment deeds and to clarify what was summarized in them, as it does not affect the essence of the endowment or its basic conditions, while
this deed included basic conditions affecting the essence of the endowment. Whereas the two endowers did not stipulate in
their mentioned endowment contracts for themselves the right to change or replace, and it is not for the endower or the trustee after him to replace
the conditions of the endowment, nor is it valid for them to do so if they did. Whereas the judge may not violate the conditions of the endower unless
the condition leads to the suspension of the endowment or the loss of the interest of the beneficiaries, the aforementioned deed was issued in violation
of the Sharia law. Therefore, he requests that the defendant be summoned to court in his official capacity and as the temporary opponent
appointed by this court under Deed No. 25 / 55, dated April 28, 1955, in this lawsuit,
and to issue a judgment to annul what was stated in Sharia Deed No. 87 / 35, dated August 17, 1935, regarding additional
conditions that were not stipulated in the original endowments, and to charge him with the costs.
Both parties were summoned to the trial, and their two attorneys attended. It also appeared that the Head of the Administrative Committee of the Israelite Community
in Baghdad and the acting representative of the Spiritual Council of the mentioned community, in addition to the committee, had submitted a request to the court
to be included as a third party in the lawsuit, considering that the judgment issued in the case affects the rights of the
Spiritual Council, because the deed requested to be annulled had authorized the Council to organize and monitor the budget of the mentioned endowment.
- To be continued -
Page 13
- 2 -
Spending its growth and retaining the reserve amounts that are available from the surplus income in the manner designated by this
Council, and the necessity of the trustee following the Council's decision in this regard.
The court heard the statements of both parties regarding the request of the applicant to enter as a third party in the lawsuit. After reviewing
the original deed requested to be annulled, it became clear to the court that the judgment issued in favor of the plaintiff in this lawsuit
affects the Communal Council; therefore, the court accepted it as a third party alongside the defendant, and the face-to-face pleading was conducted.
It appeared that the prosecution's statements are summarized in that the deed requested to be annulled includes amending the conditions of the waqif (endower). This
amendment has become an obstacle to the administration of the waqf affairs. The Communal Council has become almost the trustee. It was not
for the purpose of removing ambiguity and obscurity in the waqf deeds. It obligated the trustee with conditions that were not included in the previous endowments
and contained a strange condition, which is the annual submission of the budget by the trustee to the Communal Council in order to give permission to the trustees.
- And that neither the endower nor the trustee after him may change the conditions of the waqf, nor is it valid from them if they did so. The
endower did not stipulate for himself in the waqf contract the right of increase, decrease, addition, or removal.
As for the defenses of the third party (supported by the defendant), they are summarized in that the deed requested to be annulled includes
restricting the authority of the trustees and appointing supervisors over them. The appointment, dismissal, and lineage ⟦and name⟧ of the trustee, whether stipulated
in the endowment deed or not, is the right of the judge. Adding a controller or supervisor over the trustee, whether stipulated in the waqf ⟦or⟧
not stipulated, is the right of the judge. This deed does not include a change, substitution, or increase in the conditions of the waqf. Even
if it is assumed that it includes an amendment, the judge has the right to do so whenever he sees that it is in the interest and beneficial,
even if it contradicts the endower's condition, it is valid and effective.
As for the court, after examining the case and the statements of the parties and reviewing the six waqf deeds under discussion
and the Sharia deed requested to be annulled and the file under which this deed was issued, it found that there are two points
requiring resolution in this lawsuit: the first is whether the judge may issue a Sharia deed amending the conditions of the waqf based on
the request of the endower and the trustee in the event that the endower did not stipulate this right for himself in the waqf contract? The second is whether
the deed requested to be annulled, issued under number 35/87 by this court, is considered as addressing and amending the conditions of the waqf
in the referred waqf deeds, or does it not address that, but is limited to removing the ambiguity and obscurity contained in these
deeds and clarifying what was summarized in the waqf conditions and an amendment to them? And whether this deed was issued according to the provisions of Sharia or
contrary to them?
In order to understand these two legal points, the court decided to refer the case to a scholar in the provisions of Hanafi jurisprudence
who has knowledge of waqf matters to seek a fatwa from him about them, and asked the parties to choose him. They requested to refer the case to the scholar
Mr. Abdullah Al-Sufi, so the court sent him the case file and its attachments, which are the six deeds of these endowments
and the deed requested to be cancelled and its file. His answer to these two points was received according to his letter dated 6 / 7 / 955.
Regarding the first point, the answer was summarized as: the endower's conditions are not considered or acted upon except for what was stipulated at the time of the endowment,
not what was stipulated after it. If the endowment is completed, the endower has no right to stipulate any condition in it unless he reserved for himself at the time
of the endowment the right to stipulate whatever he wished; he would then have the right to stipulate whatever he wished after the completion of the waqf by virtue of this condition. It is not
for the judge to issue a Sharia deed amending the conditions of the waqf based on the request of the endower and the trustee in the event that the endower did not
stipulate this right for himself in the waqf contract.
As for the second point, his answer was summarized as: the deed requested to be annulled is considered to involve a substantial amendment.
- To be continued -
Page 14
- 3 -
Regarding the conditions of the endowment related to ⟦expenditure⟧ and the charitable causes stipulated in the two deeds. What was mentioned in them of paragraphs is not considered
a clarification or removal of the ambiguity and vagueness imagined in those deeds; rather, they include an amendment and substitution of those same conditions
contained in the original endowment deeds. Given that the endowers did not stipulate in the core of their two endowment deeds that they have the right to substitute and change,
what came in this deed from this perspective is not issued in accordance with the provisions of Sharia, and it specifically concerns these paragraphs
each of paragraphs C, D, and E that appeared on the fourth page of the deed, as these paragraphs and what they contained of
conditions and restrictions relate to the expenditure of the endowment. Accordingly, the trustee becomes not obligated to implement the conditions mentioned in this deed
due to their violation of the Sharia rulings on this subject; rather, he applies the conditions of the endowers stipulated in the original of their two endowment deeds.
(End)
The two parties adhered to this fatwa, and neither of them expressed an objection regarding what was stated in it. On the contrary, each of them requested
following what was stated in it as it was issued in accordance with Sharia and supports his point of view, and each of the parties repeated his statements and the closing of the
trial was understood.
The Decision - Since the scholar whom the court consulted in this case for the purpose of identifying the Sharia ruling
regarding the two points requiring resolution in this lawsuit described above was chosen by the parties. And since both
parties have adhered to his answer and did not express any objection regarding what was stated in it, but rather requested following what was stated in this fatwa, and since
this fatwa is explicit in its example and has specified the paragraphs that violate Sharia in the endowment deed requested to be annulled
as paragraphs C, D, and E that appeared on the fourth page of it only. Therefore, it was decided to rule by amending the Sharia deed issued by
this court under number 35/87 Shari and date 17 / 8 / 35 in accordance with the following -
1 - Canceling paragraph (C) of the second item located on the fourth page regarding the expenditure of the endowment's revenues on teaching
sciences and arts, which begins with the phrase (teaching sciences and arts when necessary, etc.) and ends with the phrase
(in the mentioned school whenever the need for that appears)
2 - Canceling paragraph (D) of the mentioned item located on the same mentioned page regarding the reserve amount, which begins from
the phrase (if a surplus appears in the endowment's revenues after spending the specialized amounts .. so. from this surplus a reserve amount
and ending with the phrase (regarding the preparation of the annual budget for the school administration and with the same conditions special to it)
3 - Canceling paragraph (E) of the mentioned item also regarding the opening of a branch or branches in the (Kahn Hillel) school, which begins
with the phrase (and if a surplus occurs in the endowment's revenues after paying all these expenses and costs, it is permissible to open a branch or branches
and ends with the phrase (and on their feeding and clothing if the need arises for that)
Instead, the second item under discussion regarding the expenditure of the endowment shall consist of paragraphs (A and B) only, which include
the renovation and repair of the endowed properties and the renovation and repair of the building of the (Kahn Hillel) Menachem Salih Daniel school in Baghdad. And considering
the other paragraphs C, D, and E as if they do not exist at all in this deed. It was also decided not to interfere with everything else contained in this
deed and to rule to dismiss the lawsuit regarding them. And to charge each of the parties his costs and the fees of his lawyer and his briefs. The
judgment was issued in the presence of the parties, subject to appeal, and was understood publicly.
The Judge
Dinar | Fils | Expenses
5 | 000 | Lawsuit fee from the plaintiff
0 | 200 | " Notification and stamps from the third person
5 | 200 | Only five dinars and two hundred fils
The First Clerk
Page 15
⟦illegible⟧ Court of First Instance ⟦illegible⟧ Baghdad on the date 11 / 7 / 1955 from ⟦illegible⟧ Mr.
⟦illegible⟧ In the name of His Majesty the King of Iraq and based upon ⟦illegible⟧
⟦illegible⟧ The trustee of the endowments (Awqaf) of Menahem and Sassoon Daniel, lead ⟦illegible⟧ son of ⟦illegible⟧
⟦illegible⟧
⟦illegible⟧ in addition to his position as the defendant addressed in this
⟦illegible⟧
⟦illegible⟧ the administrative [body] of the mentioned community in addition to the mentioned committee ⟦illegible⟧
⟦illegible⟧ the English and Ibrahim Khedhouri
⟦illegible⟧ The trustee of the endowments of Menahem and Sassoon Daniel
⟦illegible⟧ the first Sharia preliminary [ruling] issued by the Baghdad Court of First Instance ⟦illegible⟧
⟦illegible⟧ in the register numbered 1 under number 181 and recorded in the department of ⟦illegible⟧
⟦illegible⟧ and the representation for the Sharia deed issued by the Baghdad Sharia Court ⟦illegible⟧
⟦illegible⟧ in the register numbered (1) under number 170 and page 11 and registered ⟦illegible⟧
⟦illegible⟧ and the third issued by the Sharia Court of Baghdad on the date ⟦illegible⟧
⟦illegible⟧ register numbered 4 under number 151 and the fourth issued by the Sharia Court of Baghdad
⟦illegible⟧ in the register numbered 4 under number 301 and page ⟦illegible⟧
⟦illegible⟧ on the date 14 Dhu al-Qi'dah 1342 registered in the register numbered ⟦illegible⟧
⟦illegible⟧ the notification issued by the Baghdad Court of First Instance on the date 3 June 1944 under number
⟦illegible⟧
⟦illegible⟧ the deed and this notification stipulate the endowment of the properties built by ⟦illegible⟧
⟦illegible⟧ then the two mentioned endowers and the two trustees of their endowments saw the court ⟦illegible⟧
⟦illegible⟧ amendment of the conditions of the endowment, and indeed this court issued the Sharia deed dated
⟦illegible⟧ 17 / 8 / 1925, whose door remains open to remove ambiguity and vagueness ⟦illegible⟧
⟦illegible⟧ and to clarify what was problematic in them as they are ⟦illegible⟧ Khedhouri according to the conditions of the endowment ⟦illegible⟧
⟦illegible⟧ the endowment included basic conditions affecting the essence of the endowment, and whereas the endower did not reserve
⟦illegible⟧ mentioned for himself the right to change and substitute, and that neither the endower nor the trustee has ⟦illegible⟧
⟦illegible⟧ the conditions of the endowment nor to change anything from it if done, and whereas the judge may not violate ⟦illegible⟧
⟦illegible⟧ if the disposal involves a change to the endowment or a change to the condition of the beneficiary, then this mentioned deed
⟦illegible⟧ is legally void, and therefore he requests summoning the defendant for trial and the issuance of his judgment to annul
⟦illegible⟧ the court's initiation according to the deed numbered 25 / 55 and dated 28 / 4 / 1955
⟦illegible⟧ the lawsuit by a judgment decision to invalidate what was stated in the Sharia deed numbered 7 / 35 and dated
⟦illegible⟧ the endowment even if it was not explicitly mentioned in the endowment deed and the freezing of expenses ⟦illegible⟧
Page 16
- 2 -
The two parties were summoned for trial, so ⟦...⟧ attended. It also became clear that the head of the Administrative Committee of the Israeli Community in Baghdad, and the acting Lay Council of the aforementioned community in addition to his post, had submitted
a request to the court to be included as a third party in the lawsuit, considering that the judgment issued in the lawsuit affects the rights of
the Lay Council. This is because the deed requested to be annulled has authorized the Council to organize the budget of the aforementioned endowment (waqf),
monitor its expenditures, and retain the reserve amounts that are available from the surplus of revenues in the manner determined by
this Council, and the necessity for the trustee (mutawalli) to follow the Council's decision in this regard.
So the court heard the statements of both parties regarding the request of the applicant to enter as a third party in the lawsuit.
After reviewing the original deed requested to be annulled, it became clear to the court that the judgment issued in favor of
the plaintiff in this lawsuit affects the Lay Council, and therefore the court accepted him as a third party alongside the defendant,
and the face-to-face litigation was conducted.
It appeared that the statements of the prosecution are summarized in that the deed requested to be annulled includes an amendment to the conditions of
the endowment, and this amendment has become an obstacle to the administration of the endowment's affairs, and the Lay Council has almost become
the trustee, and that it was not for the purpose of removing ambiguity and obscurity in the endowment deeds, and that it obligated the trustee
with conditions that were not included in the previous wills, and contained a strange condition, which is the annual submission of the budget by the trustee
to the Lay Council in order to give him permission for the trusteeship, and that neither the endower nor the trustee after him has the right to change
the conditions of the endowment, nor is it valid for them to do so if they did, and the endower did not stipulate for himself in the endowment contract the right of increase, decrease,
inclusion, or exclusion.
As for the defenses of the third party (supported by the defendant), they are summarized in that the deed requested to be annulled
includes defining the authority of the trustees and appointing supervisors over them, and that the appointment of the trustee, his dismissal, and his appointment, whether
stipulated in the endowment deed or not stipulated, is the right of the judge, and that adding a monitor or supervisor over the trustee, whether
it was in the endowment deed or not, is the right of the judge, and that this deed does not include a change, substitution, or increase
in the conditions of the endowment deed, and purely even if it is assumed that it includes an amendment, then the ruler has the right to do so whenever he sees that it is
consistent with the interest and conducive to the benefit, even if it was contrary to the condition of the endower, it is valid and effective. As for the court, after
it scrutinized the case and the minor's funds and reviewed the six endowment deeds under discussion and the legal deed
requested to be annulled and the administration under which this deed was issued, it found that there are two points that must be
resolved in this lawsuit: The first is whether the judge may issue a deed amending the conditions of the endowment based on the request of
the endower and the trustee in the event that the endower did not stipulate for himself in the endowment contract this right? The second is whether
the deed requested to be annulled issued in Baghdad on 7/7/35 by this court is considered a change in the conditions of
the endowment in the aforementioned endowment deeds, or does it not deal with that, but is limited to removing the ambiguity and obscurity contained
in these deeds and clarifying what was summarized in the conditions of the endowment and detailing that? And is this deed issued according to
the provisions of the Sharia or contrary to them?
In order to find out these two legal points, the court decided to refer the case to a scholar in the provisions of
Hanafi jurisprudence, a well-known author in matters of endowment who does not neglect them, and the minor was brought to choose, so they requested to refer the case
to the scholar Mr. Abdullah Al-⟦...⟧, so the court sent to him the case file and its attachments, which are the six deeds
⟦...⟧ the endowments and the deed requested to be canceled and presented, the subject of his answer to these two points according to his book.
- To be continued -
Page 17
- 2 -
Dated 6 / 7 / 1955 regarding the first point ⟦illegible⟧ the answer is that the conditions of the waqif (endower) are not considered or acted
upon unless the waqif stipulated them, not what was stipulated after him. If the waqf is completed, the waqif has no right to change any condition in it unless
he had granted himself at the time of the waqf the right to stipulate what he wished, in which case he would then have the right to stipulate what he wished after the completion
of the waqf by virtue of this condition. The supervisor (Nazir) may not issue a legal deed (Hujja) amending the conditions of the waqf based on the request of the waqif
and the trustee (Mutawalli) in the event that the waqif did not reserve this right for himself in the waqf contract.
As for the second deed, his answer regarding it concluded that the deed whose annulment is attributed is considered to contain a
substantial amendment to the conditions of the waqf related to its expenditures and the charitable entities designated by the two waqifs. And that what was stated in some
paragraphs is not considered an explanation or removal of the alleged ambiguity and obscurity in those deeds, but rather they contain an amendment and alteration
to those same conditions mentioned in the original waqf deed. Given the absence of a stipulation by the waqifs in the core of their waqf deed that they have the
right of alteration and change according to what was stated in this deed, from this aspect it was not issued in accordance with the provisions of Sharia and that
it appears from these paragraphs, namely paragraphs (C, D, and E) which appeared on the fourth page of the deed, as these
paragraphs and the conditions and restrictions they contain relate to the expenditure of the waqf. Therefore, the trustee is not obligated to apply what was stated in
this deed of conditions due to their violation of the Sharia rulings on this subject regarding the necessity of the conditions of the waqifs that were stipulated
in the original waqf deed (End).
The two parties adhered to these contracts and neither of them expressed an objection regarding what was stated in them; on the contrary, each of them
requested to follow what was stated in them as they were in accordance with Sharia and supported his point of view. Each of the parties repeated his statements and the
conclusion of the trial was closed.
Decision - Whereas the landmarks deduced by the court in this case to present the waqf to the Sharia judge
within the limits of the two points necessary for research in this lawsuit shown above have been chosen by the parties, and whereas
both parties have adhered to its content and did not express an objection regarding what was stated in it regarding the ⟦necessity⟧ of following what was stated in these
contracts, and since these contracts are explicit in their invalidity, and the paragraphs that violate Sharia in the waqf deed
requested to be annulled have been identified as paragraphs (C, D, and E) which appeared on the fourth page of it, it has therefore been decided to rule to amend
the legal deed issued by this court under number 35/87 dated 17 / 8 / 35, according to the following:
1 - Cancellation of paragraph (C) of the second item located on the fourth page regarding the spending of waqf revenues on training
sciences and arts, which begins with the phrase (training in sciences and arts and teaching foreign languages and professions etc.) and ends with the phrase
(in the aforementioned school whenever the need for that appears).
2 - Cancellation of paragraph (D) of the mentioned item located on the same mentioned page regarding the reserve amount, which begins
with the phrase (if a surplus appears in the waqf revenues after spending the required amounts... so and so. From this holiday it reaches
a reserve) and ending with the phrase (regarding the preparation of the annual budget for the school administration and its special conditions document).
3 - Cancellation of paragraph (E) of the mentioned item also regarding the opening of vocational classes or a path in the (Kani Sildim) school, which
begins with the phrase (And if a surplus occurs in the waqf revenues after paying all these expenses and costs, it is permissible to open
a branch or branches) and ends with the phrase (and on their feeding and clothing if the need arises for that).
And instead of the second item under discussion regarding the expenditure of the waqf, comprising paragraphs (A and B) only,
which include the repair and restoration of the endowed properties and the repair and restoration of the building of (Kani Sildim) Menachem S. Daniel school
in Baghdad, and considering the other paragraphs C, D, and E as if they do not exist at all in this deed, as it was decided not to interfere
with everything else contained in this deed and ruling to dismiss the lawsuit regarding it. And charging each of the parties his expenses
and his lawyer's fees and his briefs. The ruling was issued in presence, subject to appeal, and was announced publicly.
The Judge
Page 18
Baghdad Court of First Instance:
Personal Status Court:
Judge - Mr.: ⟦illegible⟧
File Number: 195 / ⟦...⟧
Date: 195 / ⟦...⟧
Sequence | Decision Date | File
234 | 28 July 934 | 201
The person named Sassoon Salih Daniel, residing in the Ras al-Qarya neighborhood,
one of the districts of Baghdad, appeared before this court. His identity was verified by the testimony of the two witnesses: Haki Anbar Effendi from the Jadid
Hassan Pasha neighborhood, and Ibrahim Ishaq from the Qanbar Ali neighborhood. He repeated the contents of his petition to this court dated
6 July 934, registered under file 201, saying: While in full possession of my senses and legal capacity, I
have removed from my ownership and established as a valid, legal, and perpetual endowment (waqf), free from voiding conditions, the common
shares of the two houses located in the Taht al-Takiya neighborhood in Baghdad belonging to me. From the first house,
which is unofficially divided into three houses and numbered 42/115 and 45/118 with sequence number
82, bounded on the front by the public road and bordered by the house of the property owner 46/115, bordered by the mosque sequence
167; on the right by the mosque sequence 167, bordered by the house of Jamil Effendi 1/116, and bordered by the house of the heirs of Hardun numbered
1/118; on the left by the house of the property owner 41/115, bordered by the house of Yaqub Saimih 48/115, and bordered by the house of
Samun bin Roubail 41/118; on the back by the house of Murad 27/118, bordered by a private road, bordered by the house of Shlomo
Benjamin 32/118, and bordered by the house of the heirs of Hardun 2/118.
The shares belonging to me from the house numbered
42/115, 44/115, and 45/118, which I wish to consolidate:
1- 2/5 of a share of 6/24 according to the Tabu deed dated June 923, No. 87.
2- 1872/100 of a share of 48/21 according to the Tabu deed dated 923, No. 17.
3- 2/5 of a share of 1872/144 dated 924 according to the Tabu deed dated 923, No. 1.
And from the second house numbered 46/115 with sequence number 84, bounded on the front by the public
road; on the right by the house of the property owner 4/115, the house of Yaqub Saimih 48/115; and on the back
by the house of Yaqub Saimih 48/115, and bordered by the house of the property owner 44/115.
The shares belonging to me from the house numbered 46/115
which I wish to consolidate:
1- 2/5 of a share of 33/24 according to the Tabu deed dated June 923, No. 87.
2- 1872/100 of a share of 48/21 according to the Tabu deed dated 923, No. 1.
3- 2/5 of a share of 1872/144 from a share of 48/21 according to the Tabu deed dated 923, No. 1.
By this act, I have removed the aforementioned shares from my ownership and endowed them for the sake of God Almighty, and I have appointed
for them two specific trustees, namely my nephew Menachem Effendi, also known as Ezra Effendi, and Salih Effendi Shlomo Abdul Nabi.
The Judge
⟦illegible stamp⟧
Page 19
Baghdad Court of First Instance
Personal Matters Court
Judge - Mr.
File Number: 195 / /
Date: 195 / /
- 2 -
And after that, the guardianship transfers to the eldest of the children of my brother Menahem Effendi and his grandsons' male children, as long as they breed
and succeed generation after generation and layer after layer, jointly with the eldest of the children of the second guardian, Saleh Effendi Shlomo
Abdullah, and his grandsons' male children, as long as they breed and succeed generation after generation and layer after layer; and upon the extinction of
the lineage of one of the two guardians, the guardianship shall be restricted to the second guardian or whoever takes his place, and upon the extinction of both lineages, then
the guardianship shall transfer to the Spiritual Council of the Israelite Community in Baghdad, and if one of the two guardians travels, he shall have
the right to appoint the second guardian or another as a proxy in his stead.
First
⟦line⟧
All of these shares I have removed from my ownership and endowed them to the (Gan Yeladim) school, established
by my brother Menahem Effendi and named after him, for the establishment and education of the children of the Musawis (Jews) present in
Baghdad or outside of it, in all the aforementioned houses or in part of them as the situation and time require, and that shall be
according to the opinion and designation of the two guardians; and if there is a surplus of space in the houses, the two guardians are authorized to lease them for a fair rent,
and from the yield obtained from that, the Verko (property tax) shall be paid to the government, and from the remainder, ten percent shall be given
to the two guardians in exchange for their services and their management of the aforementioned endowment in terms of collecting and harvesting revenues and supervising
repairs and restorations as appropriate, and spending the revenues on the designated parties and keeping the books, and in short,
everything that leads to the benefit of the aforementioned endowment; and after that, it shall be given for the necessary repairs and restoration
for the aforementioned endowed property; and whatever remains of the yield shall be spent to meet the needs of the aforementioned school for the purpose of securing,
improving, and teaching the children of the poor who attend it; and if after that there is a surplus of the yield, it shall be spent
on charities and benevolent acts with the knowledge of the two guardians.
Second
⟦line⟧
If after that my brother Menahem Effendi designates a place other than the houses mentioned above for the students of the school
mentioned, the endowed shares and the houses mentioned above shall be leased at a fair rent with the knowledge of the two guardians, and the yield obtained
shall be spent according to the purpose described above; and after the current two guardians, it is mandatory for those
who assume guardianship after them to submit a year-by-year account to the management association of the (Gan Yeladim) school named
after my brother Menahem Effendi, and it shall be submitted to the Spiritual Council of the Musawi Community in Baghdad.
Third
⟦line⟧
I have authorized the two guardians to repair and exchange the common shares of the properties mentioned above and replace them
with others if it is for the benefit of the endowment and if they are more suitable for use as a school according to the conditions of this endowment deed.
Fourth
⟦line⟧
I have authorized the two guardians, if they see fit for the benefit of the endowment, to buy properties from the revenue of the mentioned houses or from
⟦their price⟧ and ⟦the yield of the revenues shall be⟧ attached to the mentioned endowment according to the ⟦mentioned conditions⟧ in the announcement of
this endowment deed.
And this endowment deed has been registered in the Land Registry Department, and their entry from the real estate register is on page number 3741.
The Judge
Page 20
Baghdad Court of First Instance
Personal Status Court
Judge - Mr.
Case Number - / / 195
Date - / / 195
- 3 -
Dated July 12, 1924, that the Khakani title deeds stating the ownership of shares of the two houses located
in the Taht al-Takiya neighborhood, when compared with others, were proven to match their records and are not mortgaged or seized.
After reviewing the conditions of the aforementioned endowment, it appeared that they are in accordance with the Sharia rulings for endowments, and then a judgment was made
for the validity of the mentioned endowment and the necessity of its enforcement, and it was entered into the court record under number 201, and this endowment deed was issued
The notification was made to the Baghdad Tabu Department for registration, and that was on the twenty-sixth
of the month of Dhu al-Hijjah 1342, corresponding to the twenty-eighth of July 1924.
The Judge
50 Fils
True Copy of the Original
Personal Status Court
⟦illegible⟧
⟦illegible⟧
The Judge
Page 21
There attended the assembly of the Honorable Sharia, held in the court of the city of Baghdad, both Menahem Effendi and Sassoon
Effendi, the two sons of Salih Effendi Daniel, residing in the Ras al-Qariya neighborhood, one of the neighborhoods of the mentioned city, and they declared
while being in a state in which legal acknowledgments are valid, saying: We have previously endowed four-fifths of the two houses and the seven
shops located in the Tatran neighborhood of Baghdad, known by their boundaries and sides, and the endowment was according to the endowment deed
issued by this court dated the ninth day of Shawwal for the year one thousand three hundred and thirty-six Hijri, and we have
assigned the trusteeship to each of our two sons, Ezra Effendi and Salih Effendi, and after them to the two eldest sons of our children
and our male grandchildren, as long as they reproduce and succeed one another, and we stipulated that the trusteeship, after the extinction of all, shall pass to the Council of the
Israeli Community in Baghdad, and that one of the two trustees has the right to appoint the second or someone else as an agent if he travels to act
in his place until his return. And based on the death of one of the two trustees, the aforementioned Salih Effendi, we have appointed in his stead Salih Effendi
Shlomo Abdullah as a trustee, while the aforementioned Ezra Effendi remains in his position according to the conditions mentioned in the aforementioned deed,
provided that the trusteeship which is in the custody of Salih Effendi Shlomo Abdullah shall be, after him, for the eldest of his children and the children of his
male children, as long as they reproduce and succeed one another, layer after layer and generation after generation, just as the trusteeship which is in the custody of
Ezra Effendi follows the condition included in the endowment deed. And upon the cessation of the lineage of one of the two mentioned trustees, Ezra Effendi
or Salih Effendi Shlomo, the trusteeship shall transfer and be restricted to the lineage of the other trustee according to the condition, provided that whoever
is entitled to take the place of his predecessor is not prevented from doing so by the existence of a trustee of a higher layer than him in his partner's share of the trusteeship.
And following the cessation of their lineage, the trusteeship transfers to the Israelite Corporeal Community Council in the city of Baghdad. So, I request the writing
of this my report to preserve the statement. Accordingly, it was written and recorded on the fourteenth day of Dhu al-Qi'dah for the year one thousand three hundred and forty-two
Hijri.
14 Dhu al-Qi'dah 1342
Identification Witnesses
Heskel Naji Effendi bin Yehuda bin Yusuf from the Haiderkhana neighborhood
and Salman Effendi bin Zion Mu'allem Heskel Musfi from the Torah neighborhood
Recorded and Compared | Number | Page | Register | Recorder | Chief Clerk
⟦line⟧ | 152 | 4 | Stamp | Stamp
30 Rupees, fee for the deed
Paid on its date thirty rupees only, June 28, 924
Chief Clerk
Hussein Fawzi
Page 22
Number
181
Registration / 24 March 1919
In the Council of the Noble Sharia convened at the Sharia Court in the city of Baghdad, there appeared both sane and
mature men, namely Nahim Effendi and Sassoon Effendi, sons of Saleh Effendi Daniel, residing in the Al-Tawrat neighborhood
in Baghdad, and they brought with them the administrator for the purpose of registration, Ezra Effendi, son of the aforementioned Menachem Effendi, and they declared, saying:
We, in our full health, voluntary will, and choice, declare a valid and legal declaration free from compulsion or coercion, that we have endowed, sequestered,
and made eternal, seeking the pleasure of God Almighty and for the rest of the soul of our stepdaughter Simha Khatun, what is our property and under our disposal and possession
until the issuance of this endowment from us, namely four-fifths of the house located in the Al-Tatran neighborhood in Baghdad, on
Al-Masjid Street, bounded on the front by the private road, on the left by the public road, on the right by the house of Al-Qabaya
son of Moshi, and from the back by the house of Meir son of Ibrahim and the heirs of Farha daughter of Haskiel, according to the Imperial Deed dated in
April of the year eighteen hundred and twenty-five, number two hundred and thirty, inherited by us from our sister, the aforementioned
Simha Khatun, with all that these boundaries encompass and these restrictions contain, as a valid, legal, and eternal endowment, and an
explicit sequestration forever and for all ages, provided that the mentioned house be leased at a fair market rent with the knowledge of the administrator,
and the amount obtained from the lease shall be spent on what is required for construction and renovation, and what remains after that shall be given for
feeding the children of the poor Israelites who study in the Musawiyah schools in Hillah. Then we endowed, sequestered, and made eternal,
seeking the pleasure of God Almighty and for the rest of the soul of our aforementioned sister Simha Khatun, what is our property and under our disposal and possession
until the issuance of this endowment from us, namely four-fifths of the house located in the aforementioned Al-Tatran neighborhood on
Al-Jawr Street, bounded on the front by the public road, and on the left by the shops separated at the beginning and separated at the end belonging
to Simha Khatun, the owner of the property, and on the right by the house belonging at present to Haron son of Robin Zanki
and previously to Robin son of Baqji, and from the back by the house belonging at present to Jahla daughter of Shaul Shakarchi
and her partners, and previously to Simha daughter of Haskiel, according to the Imperial Deed dated in December of the year
eighteen hundred and twenty-seven, number eighty-one, and four-fifths of the shop located in the aforementioned neighborhood and street
bounded on the front by the public road, and on the right and back at present by the house of Simha daughter of
Saleh Daniel, and previously by the house of Farha daughter of Menachem Ezra Qojman, and on the left by the shop of the property owner Simha at present
and previously by the shop of Farha daughter of Menachem Ezra Qojman, according to the Imperial Deed dated in July of the year
eighteen hundred and twenty-seven, number forty-one, and four-fifths of the shop located in the aforementioned neighborhood and street
bounded on the front by the public road, and on the right and left by the shops of the property owner Simha daughter of Saleh
Daniel at present, and previously by the shops of Farha daughter of Menachem Ezra Qojman, and from the back by the house of the mentioned property owner Simha
at present, and the aforementioned Farha previously, according to the Imperial Deed dated in July of the year eighteen hundred
and twenty-seven, number forty-two, and four-fifths of the shop located in the aforementioned neighborhood and street, and on the front
and left by the public road, and on the right and back by the house of the mentioned property owner Simha at present, and previously by the house of
the mentioned Farha, according to the Imperial Deed dated in July of the year eighteen hundred and twenty-seven, number forty-
three, and four-fifths of the shop located in the aforementioned neighborhood and street, bounded on the front by the public road,
on the right by the shop of the mentioned property owner Simha, and from the back by the house belonging to the aforementioned Simha, and on
the left by the separated shop belonging to the mentioned Simha, according to the Imperial Deed dated in December of the year
Page 23
- 2 -
[the year] thirteen hundred and twenty-seven, and number seventy-seven, and four-fifths ⟦(c)⟧ of the shop located in the aforementioned district and street,
bounded from the front by the public road, and from the right and left by the partitioned shops belonging to the property owner,
the aforementioned Simha, and from the back by the partitioned house belonging to the aforementioned Simha according to the Khagani deed
dated December of the year thirteen hundred and twenty-seven, and number seventy-eight, and four ⟦(a)⟧ ⟦fifths⟧
of the shop located in the aforementioned district and street, bounded from the front by the public road, and from the right and left
by the partitioned shops belonging to the property owner, the aforementioned Simha, and from the back by the partitioned house belonging to the aforementioned
Simha according to the Khagani deed dated December of the year thirteen hundred and twenty-seven, and number seventy-nine
and four-fifths ⟦(c)⟧ of the shop located in the aforementioned district and street, bounded from the front by the road
public, and from the right by the partitioned shop belonging to the property owner, the aforementioned Simha, and from the back by the partitioned house
belonging to the aforementioned Simha, and from the left by the shop which was in the state of transfer to Jamla daughter of Sharon Shekerji
and her partners, and previously to Simha daughter of Ezekiel according to the Khagani deed dated December of the year thirteen
hundred and twenty-seven, and number eighty, inherited ⟦from⟧ us from ⟦our sister⟧ the aforementioned Simha Khatun, with all
that these boundaries encompass and these restrictions contain, as a valid, legal, eternal endowment and an explicit, perpetual
sequestration until the end of time and the passing of ages until God inherits the earth and those upon it, which religion forbids, provided that
the aforementioned endowed properties are leased at a fair rent through the knowledge of the trustee, and the amount resulting from the lease is given from it
firstly for the maintenance and renovation specific to the aforementioned properties, and what remains shall be used to feed the children of the poor who attend
the school (formerly the Menachem Salih Daniel School), and we have appointed as trustees over the aforementioned endowment both Ezra Effendi
the aforementioned and Salih Effendi son of Sassoon Effendi the aforementioned, and after them for the two eldest of our children and our children's
children, their male descendants, and if we have no male offspring, God forbid, the trusteeship shall transfer to the council
of the Israeli community in Baghdad, and if one of the two trustees travels, he has the right to appoint the second or someone else in his place, and when
the matter of this endowment was completed and became binding containing these recorded conditions, and he handed it over to the designated trustee for the purpose of taking possession,
Ezra Effendi the aforementioned, and he managed it for a period of time like other trustees, the two endowers returned wishing to reclaim
the endowment into their ownership, arguing a lack of binding force according to the opinion of the two Imams, may God Almighty have mercy on them, and they litigated before the judge
whose name is signed at the top of the book, may he be blessed with goodness and a fair return, so the aforementioned judge, may God shower His blessings upon him, saw the side
of the endowment as more worthy and appropriate, and thus ruled on the validity of the endowment and its binding nature in its particulars and generalities, favoring the side of the endowment while knowing the difference
existing between the ancestral Imams, and after the ruling that settles the dispute, the endowment was completed and became binding, so it shall not be revoked, invalidated, changed, or replaced,
nor sold, nor pawned, nor gifted, written on the ninth day of the honored Shawwal for the year thirteen hundred and thirty-six.
1336
Number | Page | Register | Recorded by
1818 | 81 | 1 | First Clerk
Anna | Rupee |
12 | 81 | Fee of the document
Paid on its date eighty-one rupees and twelve annas, nothing else. 25 July 1918
First Clerk
Deputy
Stamp
Recorded at the Baghdad Endowments Department on 24 March 919
Stamp and Signature
Baghdad Endowments Department
True copy
⟦Signature⟧
Page 24
In the Honorable Sharia Court in Baghdad, there appeared Ezra Efendi son of Menachem Efendi Daniel and Saleh Efendi son of
Shlomo Abdullah, both residing in the Ras al-Qarya neighborhood of Baghdad, the trustees of the endowments mentioned below, and they declared, saying
that Menachem Efendi and Sassoon Efendi, the sons of Saleh Efendi Daniel residing in the aforementioned neighborhood, had endowed what
is their joint property, which is four-fifths of the two houses and four-fifths of the seven shops with known boundaries located
in the Tatran neighborhood of Baghdad. The aforementioned Menachem Efendi endowed what is his independent property, namely the house and the two shops and an external
fifth and twenty-four shares out of one hundred and five shares of the aforementioned Khan, also located in the Bab
al-Agha neighborhood. They stipulated that their revenue, after repair and restoration, be spent on feeding the children of the poor who attend a school that
was established in the name of Menachem Saleh Daniel located in Baghdad, and for the salaries of the teachers who teach the students attending the aforementioned
school, except for one of the two mentioned houses located in the Tatran neighborhood, for its revenue shall be spent after repair
and restoration on feeding the children of the poor who attend the Mosaic schools in Hillah. Menachem Efendi also stipulated regarding
what he endowed independently that the two trustees mentioned below and whoever succeeds them may spend what remains of the revenue on charitable causes
and good deeds and establish a school for the mentioned children, after meeting the needs of the mentioned school. They also stipulated the trusteeship
for the two of us: Ezra Efendi son of Menachem Efendi, and the second, the deceased Saleh Efendi son of the aforementioned Sassoon Efendi,
and after us to the two eldest sons of our children and our grandchildren aforementioned, successively and by descent, and after the end of the lineage,
the trusteeship shall transfer to the Lay Council of the community as detailed in the deed issued by this court on the date of
the eighth of Shawwal of the year one thousand three hundred and thirty-six Hijri, number one hundred and seventy-nine, and in their margin issued
also from this court on the date of the fifth of the month of Rajab for the year one thousand three hundred and thirty-eight Hijri, as
detailed in the deed issued by this court on the date of the ninth of Shawwal for the year one thousand three hundred and thirty-six
and number one hundred and eighty-one. When one of the trustees died, namely Saleh Efendi son of Sassoon Efendi, there was appointed in his place
by the aforementioned two endowers through the Sharia, one of us, Saleh Efendi Shlomo Abdullah, according to the conditions mentioned in the two deeds
mentioned, according to the two deeds issued by this court on the fourteenth day of the month of Dhu al-Qi'dah for the year
one thousand three hundred and forty-two, numbers one hundred and fifty-one and one hundred and fifty-two. The two mentioned endowers did not specify
a fee for the trustee in exchange for his work in collecting the endowment's revenue and supervising its repair. Since the trusteeship's affairs are not fully managed and
its properties are not maintained as desired, for the sake of performing its service and fulfilling it as it should be, we request the imposition of a fee for our work relative
to the revenue of the shown endowments. We request the designation of a fee for us from the revenue of the mentioned endowment for our work in a sufficient amount. End. And as
it was verified by the reports of the informers whose names are recorded in the record that the estimated amount spent as a fee for the two trustees for their work from the revenue of the
mentioned endowment after deducting the Vergi tax of ten percent each year, it was assigned by the Sharia accordingly and they were permitted to
collect from the revenue of the endowment each year after deducting the Vergi tax of ten percent, to be shared equally between them as a fee for their work
and their service. Upon request, what occurred was recorded on the twenty-eighth day of the month of Rabi' al-Thani for the year one thousand three hundred and forty-three
Hijri.
Deputy of Baghdad
This copy was extracted according to its original and compared
First Clerk
Signature
1336
1338
This copy was extracted according to its original and compared
Number | Page | Record | Entry | First Clerk
311 | 82 | 4 | Stamp | Stamp
12 Annas | 1 Rupee | Output | Session
Delivered on its date, a Rupee and twelve Annas and nothing else
25 August 1924
Signature of the First Clerk
Endowment Expenses
Page 25
There attended the council of the noble Sharia held in the court of the city of Baghdad, Menahem Effendi and Sassoon Effendi
sons of Salih Effendi Daniel, residing in Ras al-Qarya neighborhood, one of the neighborhoods of the mentioned city, and they declared while in a state
permitting valid legal acknowledgments, saying: We have previously endowed four-fifths of the two houses and the seven shops located
in the Tatran neighborhood of Baghdad, known by their boundaries and borders, and the endowment was according to the endowment deed issued by this
court dated the ninth of Shawwal for the year thirteen hundred and thirty-six Hijri, and we assigned the trusteeship to each of
our two sons Ezra Effendi and Salih Effendi, and after them to the two eldest of our children and our male grandchildren as long as they
procreate and succeed one another, and we stipulated that after the extinction of all, the trusteeship shall pass to the Council of the Israelite Community in Baghdad, and
that one of the two trustees has the right to appoint the second or another as a proxy if he travels to stand in his place until his return. Based on the death of
one of the trustees, the aforementioned Salih Effendi, we have appointed in his place Salih Effendi bin Shlomo Abd Allah as a trustee, while
the aforementioned Ezra Effendi remains in his position according to the conditions mentioned in the aforementioned deed, provided that the trusteeship
which is entrusted to Salih Effendi Shlomo Abd Allah shall pass after him to the eldest of his male children and grandchildren as long as they procreate and succeed,
tier after tier and generation after generation, just as the trusteeship entrusted to Ezra Effendi shall follow the condition included
in the endowment deed. In the event of the cessation of the offspring of one of the two mentioned trustees, Ezra Effendi or Salih Effendi Shlomo, the trusteeship
shall transfer and be restricted to the offspring of the other trustee as stipulated, provided that whoever is entitled to stand in the place of his predecessor is not prevented
from doing so by the presence of a trustee of his same tier in the share of his partner in the trusteeship. Upon the cessation of both their offspring, the trusteeship shall transfer to
the Israelite Corporeal Community Council in the city of Baghdad. This report was recorded to preserve the statement and subsequently written
and registered on the fourteenth day of Dhu al-Qi'dah for the year thirteen hundred and forty-two Hijri.
14 Dhu al-Qi'dah 1342
Witnesses of the Recording
Heskel Naji Effendi son of Yehuda bin Yusuf from the neighborhood of
Haydarkhana and Salman Effendi bin Zion Mu'allim Heskel
⟦resident⟧ from the Torah neighborhood
Recorded and Mandated
Number | Page | Register | Registered by the First Clerk
152 | 4 | Stamp | Stamp | Stamp
30 Rupees Fee for the Deed
Handed over on its date, thirty rupees and no more, 28 June 924
First Clerk
Hussein Fawzi
The endowment is recorded by its condition, the Trustee Mr.
Salih Shlomo Daniel
Ezra Salih Daniel