(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of Visitors to His Facebook Page "Fiqhi")
To: Abu Khattab al-Maqdisi
Question:
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuhu. May Allah protect you. I would like to inquire:
Why was rikaz (buried treasure) placed in the chapter of Al-Kharaj and not in the chapter of Zakat? Is the khumus (fifth) taken for rikaz only when it reaches the nisab (minimum threshold)?
May Allah bless your efforts.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuhu.
Al-Bukhari and Muslim narrated from Ibn Shihab, from Sa'id bin al-Musayyib and Abu Salamah bin Abdur-Rahman, from Abu Hurayrah (ra) that the Messenger of Allah (saw) said:
وَفِي الرِّكَازِ الخُمُسُ
"And in rikaz, there is a fifth (khumus)." (Narrated by Bukhari and Muslim)
Rikaz refers to wealth buried since ancient times or limited mineral veins. Whoever finds it on their property—whether land or a building—owns it. However, if someone finds rikaz or minerals on someone else’s land or building, the rikaz or minerals belong to the owner of that land or building, not to the person who found them. The khumus (one-fifth) becomes obligatory immediately upon finding the rikaz, and it is not permissible to delay its payment to the Bayt al-Mal (State Treasury).
As for whether the khumus is zakat or fay’ (state property), the answer is that it is not zakat, but rather fay’. Among the evidences for this is what Abu Ubayd narrated from Mujalid, from Al-Sha'bi:
"A man found a thousand dinars buried outside of Madinah and brought them to Umar bin al-Khattab. Umar took the khumus (two hundred dinars) and gave the man the remainder. Umar then began distributing the two hundred among the Muslims present until a portion remained. Umar then asked: 'Where is the owner of the dinars?' The man stood up, and Umar said to him: 'Take these dinars, for they are yours.'"
From the report of Al-Sha'bi, it is clear that the amount Umar took from the finder of the rikaz was only the khumus, and the remaining four-fifths were returned to the finder. This khumus was not zakat; rather, it was in the position of fay’. This is because if it were zakat, it would have to be spent on the designated categories of zakat, and Umar would not have given any of it back to the finder of the rikaz, as the finder was wealthy (having just found a thousand dinars), and zakat is not permissible for the wealthy.
Therefore, regardless of the value of the rikaz, four-fifths belong to the finder, and one-fifth belongs to the Bayt al-Mal. This is not dependent on reaching a nisab because it is not zakat. Whether the value of the rikaz reaches the nisab or is below it, the khumus must be paid to the Bayt al-Mal of the Muslims. In our current time, where there is no Bayt al-Mal for the Muslims, the finder of the rikaz should spend the khumus on the interests of the Muslims or the needy among them... they should do what they see as best.
Your brother, Ata Bin Khalil Abu Al-Rashtah
Link to the answer from the Ameer's Facebook page