Series of Answers by the Eminent Scholar Ata bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to Questions from Visitors to his Facebook Page "Fiqhi"
Answer to Question
To: Yusuf Abu Islam
Question:
May Allah bless you and benefit us with your knowledge. However, Sheikh, I have two questions if I may: First: What is the evidence that for a Waqf (endowment) to be valid, the endower must be the owner of the corpus (Raqabah) of what he is endowing? Second: Are there other rulings besides Waqf that differentiate in the disposal of land between it being Ushri or Kharaji? May Allah bless us and our party with your long life and health, and may He grant victory at your hands.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuh,
First: The issue of Waqf in Kharaji land is a matter of difference among the jurists (Fuqaha):
- Some of them permit Waqf on what is constructed upon it, such as buildings or crops. If one builds a school on Kharaji land that he holds, he is permitted to make it a Waqf for students... or if he plants olive trees, for example, he is permitted to make their fruit a Waqf for the poor and needy, provided that this Waqf is permanent.
It is stated in the Kuwaiti Encyclopedia of Fiqh: ["Ibn Abidin narrated from Al-Khassaf that he said: (The endowment of market shops is permissible if the land is in the hands of those who built them through a lease from which the Sultan does not evict them, because we have seen it in the hands of the builders; they inherit it and it is divided among them without the Sultan interfering or displacing them. He only has a yield that he takes from them, and it has been passed from predecessor to successor, through the ages, while it remains in their hands; they trade it, lease it, it is valid in their wills, they demolish its structure and rebuild it or build something else. Thus, the endowment is permissible). Ibn Abidin said: And it was affirmed in Al-Fath, and its justification is the persistence of permanence.
If what he placed in the land was a plantation, then the ruling on its endowment is the same as the ruling on building. As for if what he did on the land was merely filling it with soil or fertilizer, its endowment is not valid."] (End quote)
- Some permit the endowment of the usufruct (Manfa'ah) even if it is temporary. If someone rents a house for a year, he may make this house a Waqf for the needy for the duration of that year mentioned in the lease contract... or he leases a plantation until the end of the harvest and makes it a Waqf for the needy for the duration of that harvest according to the lease contract. Meaning, he permits the Waqf of the usufruct and does not stipulate it be permanent, but rather it can be temporary as well:
It is stated in the Kuwaiti Encyclopedia of Fiqh: ["The majority of jurists—Hanafis, Shafi'is, and Hanbalis—went to the non-permissibility of endowing the usufruct, as they stipulate that the endowed object must be a corpus (Ayn) that is utilized while its substance remains, and they also stipulate the permanence of the endowment (1)... The Malikis went to the permissibility of endowing the usufruct. Thus, whoever rents a house for a known period, it is permissible for him to endow its usufruct for that period, and the endowment ends with its expiration, because they do not stipulate the permanence of the endowment (2)...
(1) Mughni al-Muhtaj 2/377, Sharh Muntaha al-Iradat 2/492, Al-Bada'i 6/220, Hashiyat Ibn Abidin 3/359... (2) Al-Sharh al-Kabir and Hashiyat al-Dasuqi 4/76, Al-Sharh al-Saghir 2/298, Al-Halabi edition."] (End quote)
Second: There is the preferred (Rajih) opinion that Waqf is not permissible unless the corpus (Raqabah) is owned by the endower and in a permanent manner. This is what we prefer on this issue according to the sound evidences on the subject, and here is the explanation:
- It is stated in the Explanation of Article 133 of the Introduction to the Constitution, Part Two, the following:
("Ushri and Kharaji lands have the right to be exchanged and inherited from their owner because they are true property of their owner, so all rulings of ownership apply to them. Regarding Ushri land, this is apparent. As for Kharaji land, its ownership is exactly like the ownership of Ushri land in terms of ownership, and there is no difference between them except in two matters only: one regarding the substance of what is owned, and the second regarding what is due upon the land.
As for the substance of what is owned, the owner of Ushri land owns its corpus (Raqabah) and its usufruct (Manfa'ah), while the owner of Kharaji land owns its usufruct only and does not own its corpus. It follows from this that if the owner of Ushri land wants to endow the land he owns, he can do so at any time he wishes, because he owns its substance, i.e., its corpus. As for the owner of Kharaji land, if he wants to endow the land he holds, he cannot do so, because Waqf stipulates that the endower must be the owner of the corpus of what he endows, and the owner of Kharaji land does not own the substance of the land, i.e., its corpus; rather he owns its usufruct, because its corpus is the property of the Public Treasury (Bait al-Mal).
As for what is due upon the land, Ushri land is subject to the tithe (Ushr) or half-tithe, meaning Zakat is due on the substance of the output if it reaches the Nisab. As for Kharaji land, it is subject to the Kharaj, which is the amount the state determines annually upon it...") (End quote). As you can see, Waqf is not permissible on Kharaji land because Waqf stipulates ownership of the land's corpus, and the corpus of Kharaji land belongs to the Bait al-Mal; the owner does not own it but rather owns its usufruct.
We have previously issued an Answer to a Question on 13/02/2019 regarding this subject, which you may be referring to in your question. It stated: ("...For example, Waqf requires for its validity ownership of the corpus of the endowed object. Thus, the owner of Ushri land, if he wants to endow his land, can do so whenever he wishes because he owns its corpus. However, the owner of Kharaji land, if he wants to endow his land, cannot do so, because the endower is required to own the corpus of what he endows, and the owner of Kharaji land does not own the corpus of the land but only its usufruct, as its corpus belongs to the Bait al-Mal.") (End quote).
The evidences for stipulating the ownership of the corpus (the origin of the usufruct) for the validity of Waqf include the following:
Al-Bukhari narrated in his Sahih from Ibn Umar (ra) that: أَنَّ عُمَرَ بْنَ الْخَطَّابِ أَصَابَ أَرْضاً بِخَيْبَرَ فَأَتَى النَّبِيَّ صلى الله عليه وسلم يَسْتَأْمِرُهُ فِيهَا فَقَالَ يَا رَسُولَ اللَّهِ إِنِّي أَصَبْتُ أَرْضاً بِخَيْبَرَ لَمْ أُصِبْ مَالاً قَطُّ أَنْفَسَ عِنْدِي مِنْهُ فَمَا تَأْمُرُ بِهِ قَالَ: «إِنْ شِئْتَ حَبَسْتَ أَصْلَهَا وَتَصَدَّقْتَ بِهَا» قَالَ فَتَصَدَّقَ بِهَا عُمَرُ أَنَّهُ لَا يُبَاعُ وَلَا يُوهَبُ وَلَا يُورَثُ وَتَصَدَّقَ بِهَا فِي الْفُقَرَاءِ وَفِي الْقُرْبَى وَفِي الرِّقَابِ وَفِي سَبِيلِ اللَّهِ وَابْنِ السَّبِيلِ وَالضَّيْفِ لَا جُنَاحَ عَلَى مَنْ وَلِيَهَا أَنْ يَأْكُلَ مِنْهَا بِالْمَعْرُوفِ وَيُطْعِمَ غَيْرَ مُتَمَوِّلٍ قَالَ فَحَدَّثْتُ بِهِ ابْنَ سِيرِينَ فَقَالَ غَيْرَ مُتَأَثِّلٍ مَالاً. "Umar ibn al-Khattab acquired land in Khaybar, so he came to the Prophet (saw) to consult him about it. He said, 'O Messenger of Allah, I have acquired land in Khaybar; I have never acquired property more precious to me than it, so what do you command me regarding it?' He (saw) said: 'If you wish, you can withhold its corpus and give it in charity.' So Umar gave it in charity, [stipulating] that it is not to be sold, nor gifted, nor inherited. He gave it in charity for the poor, for kin, for freeing slaves, for the sake of Allah, for the wayfarer, and for the guest. There is no sin on the one who administers it to eat from it in a reasonable manner and to feed others without accumulating wealth." Ibn Sirin said: "without storing up property."
Al-Bukhari also narrated in his Sahih from Ibn Umar (ra) that: أَنَّ عُمَرَ تَصَدَّقَ بِمَالٍ لَهُ عَلَى عهرِدِ رَسُولِ اللَّهِ صلى الله عليه وسلم وَكَانَ يُقَالُ لَهُ ثَمْغٌ وَكَانَ نَخْلاً فَقَالَ عُمَرُ يَا رَسُولَ اللَّهِ إِنِّي اسْتَفَدْتُ مَالاً وَهُوَ عِنْدِي نَفِيسٌ فَأَرَدْتُ أَنْ أَتَصَدَّقَ بِهِ فَقَالَ النَّبِيُّ صلى الله عليه وسلم «تَصَدَّقْ بِأَصْلِهِ لَا يُبَاعُ وَلَا يُوهَبُ وَلَا يُورَثُ وَلَكِنْ يُنْفَقُ ثَمَرُهُ» فَتَصَدَّقَ بِهِ عُمَرُ فَصَدَقَتُهُ تِلْكَ فِي سَبِيلِ اللَّهِ وَفِي الرِّقَابِ وَالْمَسَاكِينِ وَالضَّيْفِ وَابْنِ السَّبِيلِ وَلِذِي الْقُرْبَى وَلَا جُنَاحَ عَلَى مَنْ وَلِيَهُ أَنْ يَأْكُلَ مِنْهُ بِالْمَعْرُوفِ أَوْ يُوكِلَ صَدِيقَهُ غَيْرَ مُتَمَوِّلٍ بِهِ. "Umar gave a property of his as charity during the time of the Messenger of Allah (saw); it was called Thamgh and it was palm trees. Umar said, 'O Messenger of Allah, I have gained property which is precious to me, and I want to give it as charity.' The Prophet (saw) said: 'Give its corpus as charity; it is not to be sold, nor gifted, nor inherited, but its fruit is to be spent.' So Umar gave it as charity, and that charity of his was for the sake of Allah, for freeing slaves, for the needy, for the guest, for the wayfarer, and for the kin. There is no sin on the one who administers it to eat from it in a reasonable manner or to feed a friend without accumulating wealth from it."
Likewise, Muslim narrated in his Sahih from Ibn Umar: أَصَابَ عُمَرُ أَرْضاً بِخَيْبَرَ فَأَتَى النَّبِيَّ صلى الله عليه وسلم يَسْتَأْمِرُهُ فِيهَا فَقَالَ يَا رَسُولَ اللَّهِ إِنِّي أَصَبْتُ أَرْضاً بِخَيْبَرَ لَمْ أُصِبْ مَالاً قَطُّ هُوَ أَنْفَسُ عِنْدِي مِنْهُ فَمَا تَأْمُرُنِي بِهِ قَالَ: «إِنْ شِئْتَ حَبَسْتَ أَصْلَهَا وَتَصَدَّقْتَ بِهَا» قَالَ فَتَصَدَّقَ بِهَا عُمَرُ أَنَّهُ لَا يُبَاعُ أَصْلُهَا وَلَا يُبْتَاعُ وَلَا يُورَثُ وَلَا يُوهَبُ قَالَ فَتَصَدَّقَ عُمَرُ فِي الْفُقَرَاءِ وَفِي الْقُرْبَى وَفِي الرِّقَابِ وَفِي سَبِيلِ اللَّهِ وَابْنِ السَّبِيلِ وَالضَّيْفِ لَا جُنَاحَ عَلَى مَنْ وَلِيَهَا أَنْ يَأْكُلَ مِنْهَا بِالْمَعْرُوفِ أَوْ يُطْعِمَ صَدِيقاً غَيْرَ مُتَمَوِّلٍ فِيهِ... "Umar acquired land in Khaybar, so he came to the Prophet (saw) to consult him about it. He said, 'O Messenger of Allah, I have acquired land in Khaybar; I have never acquired property more precious to me than it, so what do you command me regarding it?' He (saw) said: 'If you wish, you can withhold its corpus and give it in charity.' So Umar gave it in charity [stipulating] that its corpus is not to be sold, nor bought, nor inherited, nor gifted. Umar gave it in charity for the poor, for kin, for freeing slaves, for the sake of Allah, for the wayfarer, and for the guest. There is no sin on the one who administers it to eat from it in a reasonable manner or to feed a friend without accumulating wealth in it'..."
Thus, the Hadiths of the Prophet (saw) are clear in explaining that Waqf is the withholding of the corpus (Ayn) of the endowed object and the devoting of its usufruct. Withholding it requires it to be owned in its corpus by the one withholding it, i.e., the endower, before he withholds and endows it. This is because one who does not own a thing cannot withhold it. Withholding a thing can only be done by its owner because it is a disposal of the thing's corpus; so if the corpus does not belong to him, how can he dispose of it by withholding it? Umar ibn al-Khattab (ra) was the owner of the corpus of what the Prophet (saw) commanded him to withhold, as shown in the Hadiths above: ("Umar ibn al-Khattab acquired land in Khaybar..."), meaning he owned that land and it became his land, i.e., he owned its corpus, then he came to ask the Prophet (saw) about how to dispose of it... Therefore, the Hadith indicating the legality of Waqf makes it clear that the endower of the corpus must be the owner of its corpus... For the Messenger (saw) said, as in the Hadiths above:
«إِنْ شِئْتَ حَبَسْتَ أَصْلَهَا...» "If you wish, you can withhold its corpus..." «تَصَدَّقْ بِأَصْلِهِ...» "Give its corpus as charity..." «إِنْ شِئْتَ حَبَسْتَ أَصْلَهَا...» "If you wish, you can withhold its corpus..."
Kharaji land has its corpus already withheld for the Bait al-Mal of the Muslims; its corpus is not owned by its holder, and the holder only owns its usufruct. Since the holder does not own its corpus because it is withheld for the Bait al-Mal, how then can he perform the act of withholding its corpus?
- This is what we prefer and adopt because the Shari’ah evidences apply to it. That is, it is not permissible to endow Kharaji lands, but it is permissible to sell them, gift them, give them as charity or give their price as charity, and all other Shari’ah-permissible actions, with the exception, as we said, of Waqf, which stipulates ownership of the corpus, which in Kharaji land is owned by the Bait al-Mal.
Third: As for your question ("Are there other rulings besides Waqf that differentiate in the disposal of land between it being Ushri or Kharaji?"), the answer is that we have not come across other differences regarding the disposal of Kharaji and Ushri land except for the two matters mentioned above: what is due on Ushri land in terms of Zakat and on Kharaji land in terms of Kharaj, and the second matter regarding the validity of Waqf in Ushri land and its non-validity in Kharaji land.
This is what is preferred and adopted by us. Allah is Most Knowing and Most Wise.
Your Brother, Ata bin Khalil Abu al-Rashtah
21 Rabi’ al-Akhir 1441 AH 18/12/2019 CE
Link to the answer from the Ameer's Facebook page: Facebook
Link to the answer from the Ameer's website: Web